FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 51562/99 
by Tanko Zaprianov TODOROV 
against Bulgaria

The European Court of Human Rights (First Section), sitting on 29 September 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 16 July 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tanko Zaprianov Todorov, was born in 1976 and lives in the vilage of Chalakovi. He states that he is of Roma ethnic origin. He is represented before the Court by Ms E. Nedeva, a lawyer practising in Plovdiv. The respondent Government are represented by Mrs M. Dimova, Agent.

A.  The circumstances of the case

1.  The criminal proceedings

On the night of 2 December 1997 a customer of a bar was brutally beaten up after leaving with a friend to go home. The friend who accompanied him witnessed the start of the attack from a distance, but did not intervene. The victim died from his injuries. A preliminary investigation into the murder was opened on the following day.

On 11 December 1997 the applicant, who had also been in the bar on the night in question, was arrested and questioned by the police. He signed a statement confessing to having beaten the victim, which he subsequently retracted. The applicant claimed to have been beaten by two police officers and to have signed the confession under duress (see point A.2 below).

On 12 December 1997 the applicant was charged with murder and placed in pre-trial detention. The offence carried a possible sentence of ten to twenty years’ imprisonment. Immediately thereafter, the applicant was questioned by an investigator. In the presence of a State-appointed attorney and despite having been informed of his right not to give testimony, the applicant reiterated the statement he had given on the previous day and made a full confession. Subsequently, he claimed to have done so fearing reprisal and further beatings by the police.

During the preliminary investigation various witnesses were questioned, DNA tests were performed on the applicant’s clothes and a crime scene experiment was conducted. No traces of human blood were apparently found on the applicant’s clothes and the crime scene experiment was inconclusive as to whether the principal witness for the prosecution could have seen the attack and could have identified the applicant as the perpetrator. Various experts’ opinions were also obtained, such as to assess the applicant’s physical and mental state, as well as his eyesight. A medical examination of the victim was also conducted. In addition, an agronomical expertise was commissioned to determine what the foliage cover of the trees was at the time of the murder and whether that could have impaired the witness’s line of sight. A meteorological expertise was also obtained to assess whether the weather could have had a similar hampering effect.

On an unspecified date, the Prosecutor’s Office entered an indictment for murder against the applicant with the Plovdiv Regional Court. Subsequently, the Plovdiv Regional Court remitted the case back to the investigation stage on at least two occasions.

Revised indictments were entered against the applicant on 13 January and 14 October 1999. The final indictment against the applicant was for murder with extreme viciousness, which carried a possible sentence of fifteen to twenty years’ imprisonment. The prosecution claimed that the applicant had beaten up the victim after he had refused to lend him money to pay his bill.

Thereafter, six hearings were conducted by the Plovdiv Regional Court on 30 January, 9 March, 30 May, 13 July, 21 November and 3 December 2001, respectively.

In response to the applicant’s assertions that his confession had been obtained under duress, on an unspecified date the court heard testimonies from the police officers who questioned him on 11 December 1997.

By judgment of 3 December 2001 the Plovdiv Regional Court, acting as the court of first instance, acquitted the applicant, ordered his release, but imposed a restriction on him not to leave his place of residence without the permission of the Prosecutor’s Office. The court considered that it was unclear whether the applicant’s confession was given voluntarily. Assessing it in the light of the other evidence and witnesses’ statements, the court found that the prosecution had failed to prove its case against the applicant. The Prosecutor’s Office appealed against the judgment on 18 December 2001.

It is unclear how many hearings were conducted before the Plovdiv Appellate Court.

By judgment of 20 September 2004 the Plovdiv Appellate Court quashed the lower-court’s judgment and delivered a new one in its place. It found the applicant guilty of murder with extreme viciousness, sentenced him to seventeen years’ imprisonment and ordered that he pay damages to the victim’s family. In reaching its decision, the court reassessed all the evidence in the case before it. It considered that the first-instance court had given too much weight to the applicant’s assertions that his confession had been extracted under duress. Insofar as these assertions were not supported by any other evidence, the court analysed them in the context of all the other facts and evidence in the case and found them to be unsubstantiated. In addition, it found the applicant’s version of the events on the night of the murder to be in contradiction with the other evidence in the case. Moreover, it found them be in conflict with his actions on the day after the murder when he tried to hide the shoes and the training suit he had worn on the previous night and, subsequently, when he presented the police with other garments for examination. The court also addressed the conclusions of the various experts’ opinions, tests and experiments and found that they corroborated its finding of guilt. On an unspecified date the applicant filed a cassation appeal against the judgment.

As of December 2004 the proceedings were pending before the Supreme Court of Cassation.

2.  Alleged ill-treatment by the police and lack of investigation

On 11 December 1997, the day of his arrest, the applicant was questioned by two investigators, Mr S. and Mr G.

The applicant maintains, which is disputed by the Government, that two other individuals, allegedly plainclothes police officers, then entered the room and started to beat him up. One was subsequently named by the applicant as being Mr B.

All of the aforementioned police officers were employed by the Plovdiv Regional Police Directorate.

The beating allegedly consisted of numerous blows to the applicant’s abdominal area by one of the plainclothes police officers, while the other constrained him and held his hands behind his back. The applicant’s head was also hit numerous times against a metal case. Investigator Mr S. also allegedly slapped the applicant once.

The beating continued, on and off, for most of the day as the applicant allegedly continued to maintain his innocence. In the end, investigator Mr G. allegedly proposed the following to the applicant:

Let’s write that you met the victim, that he provoked and offended you and that you hit him in self defence. Otherwise, I’ll leave you with my colleagues who are [waiting] outside.”

The applicant, who was also allegedly promised that he would be released immediately thereafter, signed the statement presented to him by the investigator. Subsequently, he was not released and was in fact charged on the following day with murder.

The applicant was then returned to his detention cell, which he shared with other detainees. They all allegedly witnessed the state he was in after the alleged beating. No statements or other corroborative evidence have been presented from said detainees.

The applicant was not examined by a doctor while he was in police custody. Neither does he claim that he requested such an examination and that it was refused.

On 12 December 1997, when the applicant was charged, he was assisted by a State-appointed attorney. He did not complain of his ordeal of the previous day nor did he seek medical attention for his injuries. Moreover, he reiterated his statement of the previous day and confessed to the murder. Subsequently, he claimed to have feared reprisal and further beatings by the police.

When the applicant was transferred to the Plovdiv Prison on 12 June 1998 he was examined by a doctor and made no complaints as to his medical condition. He was pronounced as being physically healthy.

On an unspecified date at the beginning of 1999 the applicant sent a letter to the Supreme Cassation Prosecutor’s Office regarding his continued detention, in which he also complained that he had suffered ill-treatment at the hands of the police, but without providing specific details. By letter of 24 March 1999 the Supreme Cassation Prosecutor’s Office informed the applicant that he should submit his complaint directly to the competent local Prosecutor’s Office together with supporting evidence. The Supreme Cassation Prosecutor’s Office did not transfer the complaint to the competent local Prosecutor’s Office.

On 2 September 1999 the applicant complained of the alleged beating to the Plovdiv Regional Military Prosecutor’s Office, which opened a preliminary inquiry in respect of the three known police officers, but no apparent action was undertaken for more that a year.

The investigators, whom the applicant claimed had orchestrated or condoned the beating, were questioned and gave written statements in November and December 2000. This was done in the course of a preliminary inquiry assigned to the Plovdiv Regional Police Directorate. The investigators contested the applicant’s allegations and maintained that no one had ever beaten him.

On 20 December 2000 the Plovdiv Regional Police Directorate sent a brief report to the Plovdiv Regional Military Prosecutor’s Office informing it that after having conducted an allegedly exhaustive preliminary inquiry it had not found any evidence to corroborate the applicant’s allegations. It also attached to its report the results of its preliminary inquiry, namely applicant’s complaint and the statements of the police officers.

By decision of 2 February 2001 the Plovdiv Regional Military Prosecutor’s Office refused to open a preliminary investigation against the police officers. It considered the applicant’s allegations to be unsubstantiated, because they lacked any corroborative medical evidence or statements from witnesses. In conclusion, it held that the conducted preliminary inquiry had not yielded sufficient evidence or data warranting the opening of a preliminary investigation against the three police officers. A copy of the decision, addressed to the applicant, was sent to the Plovdiv Prison but he apparently did not receive it. The applicant’s lawyer maintains that neither she nor the applicant ever received a copy of the decision of 2 February 2001 of the Plovdiv Regional Military Prosecutor’s Office.

On 25 July 2001 the applicant’s lawyer complained to the Plovdiv Regional Military Prosecutor’s Office and the Ministry of Justice of the supposed inaction of the authorities in response to her client’s complaint of 2 September 1999. By letter of 30 July 2001 the Plovdiv Regional Military Prosecutor’s Office informed the applicant of its decision of 2 February 2001 not to open a preliminary investigation against the three police officers. It also informed him that its decision was still subject to appeal before the Supreme Appellate Prosecutor’s Office. There are no indications that the applicant appealed against the decision of 2 February 2001.

Separately, the question of whether the applicant’s confession had been given under duress was examined in the context of the criminal proceedings against him and the police officers gave testimony to that effect before the Plovdiv Regional Court sometime in 2001. In their respective judgments, the first and second instance courts reached somewhat divergent conclusions as to the credence of the applicant’s assertions (see point A.1 above).

3.  The applicant’s detention

The applicant was arrested on 11 December 1997.

On the next day, 12 December 1997, the applicant was placed in pre-trial detention by order of an investigator, which was confirmed by the Prosecutor’s Office later on the same day. The applicant was assisted by a State-appointed attorney. The grounds for placing him in pre-trial detention, as stated in the decision of the investigator, were the following:

there is a danger that the charged may abscond or re-offend”

The applicant’s detention was confirmed by a prosecutor on 11 May 1998 without citing any grounds.

The applicant was transferred to the Plovdiv Prison sometime around 12 June 1998.

At the latest, the trial stage of the criminal proceedings against the applicant began on 14 October 1999.

By judgment of 3 December 2001 the applicant was acquitted. Although this judgment did not enter into force, as the Prosecutor’s Office appealed, the applicant was released on the same day and was not detained pending the appellate proceedings.

4.  The applicant’s appeals against his detention

(a)  Before 1 January 2000

The applicant made several unsuccessful appeals against his detention. Information was provided only about some of them.

The applicant’s appeals dating from 18 June, 2 September and sometime at the beginning of November 1999 were dismissed by the Plovdiv Regional Court on 13 July, 15 September and 5 November 1999, respectively. Separately, an appeal dated 16 September 1999 was rejected on the next day by a judge-rapporteur of the Plovdiv Regional Court because he found that it had been filed only one day after the court had ruled on a previous appeal and considered that there was a lack of new circumstances justifying a new right of appeal.

In each of his appeals, the applicant petitioned for his release and claimed that there was no risk that he would abscond, re-offend or hamper the investigation, because he had a permanent address, had no prior criminal record, was the main breadwinner in the family, the financial and living conditions of his wife and children had worsened, the two-year maximum period of pre-trial detention under Section 152 § 4 of the Code of Criminal Procedure (“CCP”) was being violated and, in any case, there was insufficient evidence that he had perpetrated the offence.

In its decisions to dismiss the applicant’s appeals the Plovdiv Regional Court found that there was a risk that the applicant might abscond, re-offend or hamper the investigation primarily because he was charged with a serious intentional offence. In respect of the claimed violation of the two-year maximum period of pre-trial detention the court considered that it had not been exceed because that period concerned only detention pending the investigation stage of the proceedings and was not applicable to detention at the trial stage. The court also explicitly refused to examine the specific evidence in the case as to whether there was a reasonable suspicion against the applicant. In its decision of 13 July 1999 the Plovdiv Regional Court stated that:

The court does not find it necessary to consider the evidence in substance...”

Similarly in its decision of 15 September 1999 the court considered that:

The court cannot go into the specifics of the case and examine the collected evidence in the context of the [present] proceedings...”

(b)  After 1 January 2000

On an unspecified date in 2000 the applicant allegedly filed another appeal against his detention under the rules introduced on 1 January 2000. On 11 May 2000 the Plovdiv Appellate Court dismissed the appeal, apparently with reasoning similar to that contained in the previous decisions of the Plovdiv Regional Court.

On 29 August 2001 the applicant appealed before the Supreme Court of Cassation against the aforementioned decision of the Plovdiv Appellate Court of 11 May 2000. The basis for the appeal was § 19 of the Amendments to the CCP promulgated on 27 April 2001.

In protest of his continuing detention the applicant was on hunger strike from 27 August 2001 until 6 September 2001.

On 24 September 2001 the Supreme Court of Cassation refused to initiate cassation proceedings. It found that it was not competent to review the lawfulness of a detention at the trial stage.

B.  Relevant domestic law and practice

1.  Duty to investigate ill-treatment by the police

Sections 128 – 130 of the Criminal Code (“CC”) make it an offence to cause a light, intermediate or severe bodily injury to another person.

Section 131 § 1 (2) provides that if the injury is caused by a police officer in the course of, or in connection with, the performance of his/her duties the offence is an aggravated one. Section 161 of the CC makes this offence a publicly prosecuted one.

Under Bulgarian law criminal proceedings for publicly prosecuted offences can be brought only by the decision of a prosecutor or of an investigator (Section 192 of the CCP). The prosecutor or the investigator must open an investigation whenever they receive information, supported by evidence, that an offence might have been committed (Section 187 and 190 of the CCP). If the information to the prosecuting authorities is not supported by evidence, the prosecutor may order a preliminary inquiry in order to determine whether the opening of a criminal investigation is warranted (Section 191 of the CCP).

2.  Grounds for pre-trial detention

(a)  Before 1 January 2000

At the relevant time and until the reform of the CCP of 1 January 2000 detention pending trial was mandatory in cases where the charges concerned a serious intentional offence. Detention could only be dispensed with, as interpreted by the Supreme Court, when it was clear and beyond doubt that any danger of absconding or re-offending was objectively excluded, for example, if the accused was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (Decision no. 1 of 4 May1992, case no. 1/92, II Chamber, Bulletin 1992/93, p. 172; Decision no. 4 of 21 February 1995, case no. 76/95, II Chamber; Decision no. 78 of 6 November 1995, case no. 768/95, II Chamber; Decision no. 24, case no. 268/95, I Chamber, Bulletin 1995, p. 149). In some other decisions, the Supreme Court nevertheless embarked on an analysis of the particular facts to justify findings that there existed a danger of absconding or of offending (Decision No. 76 of 25.07.1997, case no. 507/97 II Chamber, Bulletin no. 9-10/97, p. 5; Decision no. 107 of 27.05.1998, case no. 257/98, II Chamber, Bulletin no. 3-4/98, p. 12).

The relevant domestic law and practice have been summarised in a number of judgments of the Court in several similar cases against Bulgaria (see, among others, the Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).

(b)  Since 1 January 2000

As of that date the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation).

The relevant part of the amended Section 152 provides:

(1)  Detention pending trial shall be ordered [in cases concerning] offences punishable by imprisonment ... , where the material in the case discloses a real danger that the accused person may abscond or commit an offence.

(2)  In the following circumstances it shall be considered that [such] a danger exists, unless established otherwise on the basis of the evidence in the case:

1.  in cases of special recidivism or repetition;

2.  where the charges concern a serious offence and the accused person has a previous conviction for a serious offence and a non-suspended sentence of not less than one year imprisonment;

3.  where the charges concern an offence punishable by not less than ten years’ imprisonment or a heavier punishment.

(3)  Detention shall be replaced by a more lenient measure of control where there is no longer a danger that the accused person may abscond or commit an offence.”

It appears that divergent interpretations of the above provisions were observed in the initial period of their application, upon their entry into force on 1 January 2000.

In June 2002 the Supreme Court of Cassation clarified that the amended Section 152 excluded any possibility of a mandatory detention. In all cases the existence of a reasonable suspicion against the accused and of a real danger of him absconding or committing an offence had to be established by the authorities. The presumption under paragraph 2 of Section 152 was only a starting point of analysis and did not shift the burden of proof to the accused (TR 1-02 Supreme Court of Cassation).

3.  Statutory maximum period of detention

Statutory maximum periods of pre-trial detention, whose duration depend on the gravity of the charges, were introduced with effect from 12 August 1997 (paragraph 3 of Section 152 as in force between 12 August 1997 and 1 January 2000 and paragraph 4 of the same Section since 1 January 2000).

They only concern remand in custody pending the investigation. Detention at the trial stage is not limited by a statutory maximum period.

In June 2002 the Supreme Court of Cassation, clarifying that the statutory maximum periods of detention aimed at protecting the accused person’s rights and exerting pressure on the investigation authorities for a “disciplined approach” on their part, stated that where a case was referred by the trial court back for further investigation, the relevant statutory time-limit was not renewed but resumed, the period during which the case was pending before the courts not being counted (TR 1-02 Supreme Court of Cassation).

The maximum period applicable in the applicant’s case was two years, in view of the gravity of the charges against him.

Section 152 § 5 of the CCP, as in force since 1 January 2000 provides:

Upon the expiry of the [statutory maximum period of detention] the detainee shall be immediately released by order of the [competent] prosecutor".

4.  Scope of judicial control on pre-trial detention

On the basis of the relevant law before 1 January 2000, when ruling on appeals against pre-trial detention of a person charged with having committed a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person’s absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise (see the Supreme Court’s cases cited above and the decisions of the domestic authorities criticised by the Court in the cases of Nikolova v. Bulgaria [GC], cited above, Ilijkov v. Bulgaria, cited above, and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004).

In June 2002, interpreting the amended provisions on pre-trial detention, the Supreme Court of Cassation stated that when examining an appeal against pre-trial detention the courts’ task was not only to verify whether the initial decision on remand in custody had been lawful but also to establish whether continued detention was still lawful and justified. In such proceedings the courts had to examine all available evidence on all relevant aspects, including the amount of the recognisance as the case may be (TR 1-02 Supreme Court of Cassation).

5.  Extraordinary right of appeal under the Amendments of the Code of Criminal Procedure of 27 April 2001

The relevant § 19 provided the following:

Decisions of the appellate courts regarding the [grounds for] detention in pending cases, which have entered into force, can be appealed or challenged before the Supreme Court of Cassation within six months of entry into force of the present [amendments].”

COMPLAINTS

1.  The applicant complained under Article 3 of the Convention that he was subjected to torture or inhuman and degrading treatment by the police while in their custody on 11 December 1997. He further complained that the authorities failed to perform an effective investigation into the alleged ill-treatment by the police.

2.  The applicant also complained under Article 5 §§ 1 and 3 that his detention was unlawful under domestic law as it exceeded the statutory maximum period and that in any event was excessively lengthy and unjustified.

3.  Referring to Article 5 § 4 of the Convention, the applicant submits that the courts did not examine all factors relevant to the lawfulness of his detention. In addition, the applicant maintains that his appeal of 2 September 1999 was decided on 15 September 1999 by the Plovdiv Regional Court, thereby violating the requirement for a speedy decision under Article 5 § 4 of the Convention. The applicant also complained that the Supreme Court of Cassation violated his right to challenge the legality of the detention before a court with its refusal of 24 September 2001 to initiate cassation proceedings.

THE LAW

A.  The Government’s objection as to the exhaustion of domestic remedies

The Government maintained that the applicant had failed to exhaust domestic remedies in respect of his complaints.

The applicant replied that the Government had failed to substantiate its objection and had not indicated what remedies it was referring to.

The Court concurs with the applicant in that the Government has made a vacuous objection of non-exhaustion of domestic remedies without specifying in respect of which of the applicant’s complaints the latter had not exhausted the available remedies and what those remedies were.

It follows, therefore, that the Government’s objection must be rejected.

B.  As to the substance of the complaints

1.  The complaints under Article 3 of the Convention

(a)  Ill-treatment by the police

In respect of his complaint about the alleged ill-treatment by police officers the applicant relied on Article 3 of the Convention, which provides:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submitted that the applicant’s allegations of ill-treatment were unsubstantiated and ill-founded, as they were not supported by any corroborative evidence.

The applicant replied that he lacked corroborative medical evidence because, he contended, the police routinely restricted access to medical assistance in such cases in order not to taint the obtained confession. He did not claim, however, that in the present case he had sought medical assistance which had been refused.

The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see Labita v. Italy ([GC], no. 26772/95, § 121, ECHR 2000-IV). To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161 in fine).

Turning to the particular circumstances of the case, the Court observes that, apart from his own statements, the applicant has not produced any conclusive proof in support of his allegations of ill-treatment. While the Court recognises the difficulty for detained people to obtain evidence of ill-treatment during police custody, in the instant case the applicant did not supply any medical evidence or corroborative statements from witnesses who could have substantiated his assertions. Such possible witnesses were the detainees with whom he shared a cell and the lawyer who assisted him in the questioning on the day following the alleged ill-treatment.

In conclusion, the materials submitted by the applicant are not sufficient to enable the Court to find beyond reasonable doubt that he sustained any injuries on 11 December 1997 while in police custody.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(b)  Lack of an effective investigation

The applicant also complained that there had been no effective investigation into his complaints about the alleged ill-treatment, in breach of Article 3 of the Convention.

The Government contended that the Military Prosecutor’s Office undertook an exhaustive preliminary inquiry and found that the applicant’s allegations were not supported by any medical or other evidence. Moreover, it submitted that the applicant never appealed against the decision of 2 February 2001 not to open a preliminary investigation against the police officers. In addition, the Government noted that both court instances had examined the applicant’s allegations of ill-treatment in the context of the criminal proceedings against him and, basing itself on the findings of the Plovdiv Appellate Court, considered them to be simply part of the applicant’s defence strategy in said proceedings.

The applicant replied that neither he, nor his lawyer, were ever presented with a copy of the decision of 2 February 2001 of the Military Prosecutor’s Office. Accordingly, he could not have appealed against it. Separately, the applicant contended that the authorities failed to undertake an effective investigation. He argued that the preliminary inquiry was superficial and consisted only of obtaining the statements of the police officers. Neither the applicant, nor the detainees with whom he shared the detention cell on the day in question and whose names he had given to the authorities, were questioned. Finally, the applicant argued that authorities were under an obligation to investigate his allegations of ill-treatment and should have opened a preliminary investigation against the police officers.

The Court starts by noting that the applicant allowed a considerable period of time to elapse before complaining about the alleged ill-treatment. In particular, it is noteworthy that during his questioning on 12 December 1997 – one day after the alleged beating –, when he was assisted by counsel, the applicant did not make any reference whatsoever to his allegations. The applicant also failed to raise the issue before the prison doctor when he was examined six months later on 12 June 1998. It was only sometime at the beginning of 1999 in a letter to the Supreme Cassation Prosecutor’s Office that the applicant first raised the issue in the context of his continued detention. He then reiterated his complaints in more detail in a complaint filed with the Plovdiv Regional Military Prosecutor’s Office on 2 September 1999. This was more than a year, and in the case of the detailed complaint – more than twenty months, after the alleged beating took place and significantly after being transferred to the Plovdiv Prison in June 1998.

Even supposing that initially the applicant’s circumstances could have caused him to feel vulnerable, powerless and apprehensive of the representatives of the State during his custody, the Court cannot accept a priori and without further explanations that the situation remained the same for more than a year after the alleged beating (see Kürküt v. Turkey (dec.), no. 24933/94, 9 January 2001 and D.E. v. Bulgaria (dec.), no. 44625/98, 1 July 2004). The Court further notes in this context that the applicant did not argue that he was prevented from filing or pursuing his complaints by intimidation or otherwise.

The Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment only when they are “arguable” and “raise a reasonable suspicion” (see Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, pp. 3289-90, §§ 101-02). However, the Court does not consider that the applicant has laid the basis of an arguable claim that he was ill-treated at the hands of the police. In this connection, it notes that the authorities had no corroborative evidence, such as medical certificates, witness statements or other, on which to conduct an effective investigation in respect of the applicant’s allegations.

In these circumstances, and contrary to what the applicant argues, he could not legitimately claim that a preliminary investigation should be carried out without him or his lawyer having furnished to the authorities a more reliable starting point for their inquiries (see Işik v. Tukrey (dec.), no. 35064/97, 2 September 2003 and D.E. v. Bulgaria (dec.), cited above).

Finally, the Court notes that the first and second instance courts examined the applicant’s allegation of ill-treatment in the context of the criminal proceedings and found them to be questionable.

Therefore, in the particular circumstances of the case, the Court considers that the procedural obligation of the authorities of the respondent State under Article 3 of the Convention cannot be said to have been breached (see S.T. v. Turkey (dec.), no. 28310/95, 9 November 1999, Kaplan v. Turkey (dec.), no. 24932/94, 19 September 2000 and D.E. v. Bulgaria (dec.), cited above).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The complaint under Article 5 § 1 of the Convention that the applicant’s detention was unlawful because the statutory maximum period of detention was exceeded

Article 5 § 1 of the Convention reads, in so far as relevant:

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so”

The Government stated that the maximum period of detention at the stage of the preliminary investigation had not been exceeded.

The applicant replied that he had been detained for almost four years, that the maximum period of detention at the stage of the preliminary investigation is two years and that there is no such limit at the trial stage of the proceedings. He contended that the whole period prior to the judgment of the first instance court should be limited in time regardless of the fact whether the criminal case was at the investigation stage or at the trial stage. In his view, the authorities should have interpreted the relevant domestic law in that sense.

The Court notes, at the outset, that the applicant was in pre-trial detention falling under Article 5 § 1 (c) of the Convention between 11 December 1997 and 3 December 2001.

In accordance with the relevant provision of the CCP, the statutory limitation on pre-trial detention only concerns periods when the criminal case against the detained person is pending at the investigation stage (see above, Relevant domestic law and practice).

The Court recalls that on at least two occasions, sometime at the beginning of 1999, the Prosecutor’s Office entered indictments against the applicant with the domestic courts, but the case was remitted back to the investigation stage on both occasions. Accordingly there were two periods of unknown duration during which the case was pending before the courts, not before the investigator.

In any event, the final indictment against the applicant was submitted on 14 October 1999, which was twenty two months and three days after the applicant was arrested on 11 December 1997. After that date the case was pending before the courts and was no longer at the investigation stage. It follows that the applicant was not detained in breach of the statutory two years’ maximum period under domestic law.

The Court finds, therefore, that the complaint that the applicant was detained unlawfully and in breach of Article 5 § 1 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with its Article 35 § 4.

3.  The complaint under Article 5 § 3 of the Convention about the excessive length of, and the alleged lack of justification for, the applicant’s detention

The applicant complained under Article 5 § 3 of the Convention that his detention was excessively lengthy and unjustified.

Article 5 § 3 of the Convention provides, insofar as relevant:

Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government stated that the applicant’s pre-trial detention was based on the reasonable suspicion that he had committed the murder.

The Government also contended that the authorities had acted as diligently as possible in the present case and that the length of the detention was the result of a number of objective factors. In particular, the case was extremely complex and required the examination of numerous witnesses, commissioning of various experts’ opinions, performing DNA tests and conducting a crime-scene experiment. It argued that there were no unreasonable delays attributable to the authorities.

The applicant replied that the authorities never examined carefully the question whether or not there was a real danger of him absconding or committing offences if released but that they applied the defective automatic approach according to which persons accused of serious offences must be detained. He recalled that he had had no prior criminal record and that his family’s financial and living conditions required consideration.

The applicant also considered that the period of detention was excessive irrespective of whether the case was at the stage of the preliminary investigation or pending before the courts.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4.  The complaints under Article 5 § 4 of the Convention

The applicant complained that the courts did not examine all factors relevant to the lawfulness of his detention. In addition, he maintained that some of his appeal were decided in violation of the requirement for a speedy decision under Article 5 § 4 of the Convention. Finally, the applicant complained that the Supreme Court of Cassation failed to rule on his appeal against his detention of 29 August 2001.

Article 5 § 4 of the Convention provides the following:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government stated that the courts had periodically examined all aspects of the lawfulness of the applicant’s detention and had done so in observance of the presumption of innocence, the justification of the detention and other relevant factors, such as his personality. In addition, it contended that the applicant’s appeals were decided speedily.

The applicant replied that the courts had not examined carefully whether there had been a danger of him absconding or re-offending if released and had refused to examine all aspects relevant to the lawfulness of his detention. He referred to previous cases against Bulgaria, where the Court found a violation when the domestic courts primarily relied on the seriousness of the offence to justify a continuation of the period of detention and disregarded the detainees’ arguments concerning the alleged lack of danger of absconding, re-offending or hampering the investigation (see Nikolova, cited above, and Ilijkov v. Bulgaria, cited above).

The applicant also contended that the courts had failed to examine his appeals speedily. In particular, the appeal of 18 June 1999 was examined on 13 July 1999, while the one filed on 2 September 1999 was decided on 15 September 1999.

Finally, the applicant maintained that the courts failed to rule on his appeals of 16 September 1999 and 29 August 2001.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning

  the length of, and justification for, his pre-trial detention (Article 5 § 3), and

–  the limited scope of judicial review of the lawfulness of his detention (Article 5 § 4).

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis  
 Registrar President

TODOROV v. BULGARIA DECISION


TODOROV v. BULGARIA DECISION