AS TO THE ADMISSIBILITY OF
Application no. 76942/01
by Valentin Petrov IVANOV
The European Court of Human Rights (First Section), sitting on 5 January 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 21 December 2000,
Having deliberated, decides as follows:
The applicant, Mr Valentin Petrov Ivanov, is a Bulgarian national who was born in 1969 and lives in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The criminal proceedings against the applicant
On the night of 21 April 1992 two persons, who worked as bodyguards for the applicant’s former father-in-law, were murdered. They had been shot and stabbed numerous times and their bodies had been dumped in a shaft of an abandoned construction site.
A preliminary investigation into the two murders was opened on an unspecified date.
The applicant’s former father-in-law was detained and questioned on an unspecified date. He apparently gave a statement before the investigators confessing to the two homicides and revealed that the applicant had assisted him in preparing, committing and concealing the murders.
The car of the applicant’s father was searched on 23 and 24 April 1992. During the second search, a bullet was found embedded in the car door. The applicant contends, however, that this search was unlawfully performed by officer A., who was allegedly not authorised to conduct such a search.
The applicant was detained and questioned on 4 May 1992, but was released on the next day, 5 May 1992, on unspecified grounds.
He was again arrested and questioned on 7 May 1992. On that day, he apparently gave a statement before the investigators confessing to having assisted his former father-in-law in preparing, committing and concealing the two murders. The applicant was then apparently detained on remand and charged with (a) premeditated aggravated murder of more than one individual; (b) obtaining and safekeeping significant amounts of money for his former father-in-law, which money he was aware or suspected had been obtained by his former father-in-law through fraudulent means; and (c) obtaining and possessing a handgun and ammunition without a permit. At the court stage of the proceedings, the applicant retracted this confession and contended that it had been given under duress.
Thereafter the authorities conducted a preliminary investigation which appears to have involved, inter alia, the questioning of almost two hundred and fifty witnesses in different cities, conducting a number of crime scene experiments and commissioning the following experts’ reports: autopsy, physic-chemical, forensic, ballistic, medico-ballistic, psychiatric, graphological, accounting and an assessor’s report.
The preliminary investigation concluded sometime in August 1994.
On 17 March 1995 an indictment was entered against the applicant and his co-defendant. The applicant was charged with (a) premeditated aggravated murder of more than one individual, perpetrated with extreme viciousness, in an exceptionally torturous manner for the victims, in order to cover up other offences and with a fraudulent aim; (b) obtaining and safekeeping significant amounts of money for his co-defendant, which money he was aware or suspected had been obtained by his co-defendant through fraudulent means; and (c) obtaining and possessing a handgun and ammunition without a permit.
On 21 June 1995 the charge against the applicant that he had committed the murders in order to cover up other offences was dropped. This apparently led to the initial indictment being withdrawn on an unspecified date. A revised indictment was entered against the applicant on 11 July 1995 without the aforementioned charge.
It is unclear when and how many hearings were conducted before the Sofia City Court.
On 15 November 1996 the Sofia City Court remitted the case allegedly due to procedural violations. The applicant contends that no additional investigative procedures were conducted thereafter.
A new indictment was entered against the applicant on 1 July 1997, which he contends was identical to that of 11 July 1995.
On an unspecified date the victims’ relatives joined the proceedings as civil claimants.
It is unclear how many hearings were conducted before the Sofia City Court. The applicant refused to give any statements before the court.
By judgment of 11 June 1999 the Sofia City Court found the applicant guilty of (a) premeditated aggravated murder of more than one individual, perpetrated with extreme viciousness, in an exceptionally torturous manner for the victims and with a fraudulent aim; (b) safekeeping and hiding in various places the equivalent of 4,744,601 old Bulgarian levs (approximately 2,433,128 Euros) for his co-defendant, which money he was aware had been obtained by his co-defendant through fraudulent means; and (c) obtaining and possessing a handgun and ammunition without a permit. The applicant’s co-defendant was also found guilty of related charges and of defrauding a large number of individuals.
The court imposed a joint sentence on the applicant of “life imprisonment without the possibility of parole”, which it assessed was a more lenient penalty than the death penalty envisaged for the offence of aggravated murder at the time the offences had been committed. The court also awarded damages to the victims’ successors totalling 55,000,000 old Bulgarian levs (approximately 28,205 Euros).
In respect of the murder charges, the court found that the applicant and his co-defendant had undertaken considerable preparatory actions and had lured the victims to the abandoned construction site on the night of the 21 April 1992 with the promise of paying them their share of the proceeds from the fraudulent activities of the applicant’s co-defendant. There they had been shot several times by the applicant’s co-defendant, but as they had not died immediately, the applicant had proceeded to stab them repeatedly with a knife, to shoot, strangle and hit one of them with a tool handle, the handle of a gun or other such blunt object. The applicant had then disposed of the victims’ bodies by throwing them into the shaft at the abandoned construction site and had undertaken a series of measures to cover up the crime, his involvement and that of his former father-in-law.
In reaching its decision, the court relied on the statements of numerous witnesses, on over twenty three experts’ reports, the results of the various crime scene experiments and the reports of the conducted investigative procedures. The court did not rely on the confessions of the applicant and his co-defendant given before the investigators because it considered them inadmissible as they had been given in the absence of their legal counsels. In its judgment, which ran to almost one hundred pages, the Sofia City Court undertook an extensive analysis of all the evidence before it, providing in-depth and well founded reasoning for its conclusions. It also responded to all the arguments of the applicant and his co-defendant pertaining to the evidence against them, how it had been gathered and its relevance.
On 9 July 1999 the applicant appealed against the judgment of the Sofia City Court arguing that it was unfounded, that his guilt had not been conclusively proven and questioning the admissibility, relevance and assessment of the evidence against him.
By judgment of 18 April 2000 the Supreme Appellate Court dismissed the applicant’s appeal and upheld the lower-court’s judgment in its entirety. In reaching its decision, the court reassessed the evidence in the case and concurred with the lower-court that a concerted and comprehensive evaluation of the same conclusively demonstrated that the applicant had perpetrated the offences for which he had been found guilty. The court also addressed and dismissed the applicant’s grounds for appeal as it found them to be unsubstantiated and uncorroborated by the evidence in the case.
On 26 April 2000 the applicant appealed against the lower-courts’ judgments to the Supreme Court of Cassation. He argued that his statements before the investigators had been given under duress but admitted that he had no direct evidence or medical certificates to substantiate his assertions. The applicant also questioned the admissibility and relevance of certain evidence, challenged the conclusions reached by the lower-courts and argued that his guilt had not been conclusively proven.
By final judgment of 3 November 2000 the Supreme Court of Cassation dismissed the applicant’s appeal, but reduced the imposed sentence from “life imprisonment without parole” to “life imprisonment”. The court addressed and, similar to the second-instance court, dismissed the arguments of the applicant pertaining to the admissibility, relevance and assessment of the evidence in the case as it found them to be unsubstantiated and uncorroborated by the facts in the case.
Subsequently, the applicant made several unsuccessful attempts to reopen the proceedings.
The applicant also filed a number of unsuccessful complaints with the Prosecutor’s Office imploring it to initiate criminal proceedings against the presiding judge of the first-instance court and officer A. who had conducted the searches of his father’s car on 23 and 24 April 1992. He alleged that they had violated his rights as a defendant and had acted in contravention with applicable legislation. The Prosecutor’s Office refused to initiate criminal proceedings due to lack of evidence that those individuals had perpetrated any of the alleged offences.
2. The applicant’s pre-trial detention and his appeals against it
The applicant was detained on 4 May 1992, but was released on the next day 5 May 1992 on unspecified grounds.
On 7 May 1992 the applicant was detained on remand and charged.
On an unspecified date the applicant appealed against his detention. By decision of 17 February 1994 the Sofia City Prosecutor’s Office dismissed his appeal. It found that detention on remand was mandatory in the case of the applicant, because he had been charged with a serious intentional offence.
On an unspecified date in 1995 the applicant filed another appeal against his detention. It is unclear whether it was ever examined.
The applicant filed another three appeals against his detention on 12 August, 10 September and 29 September or October 1997.
By decision of 3 October 1997 the Sofia City Court dismissed the applicant’s appeals as it found that there was lack of any grounds warranting his release and that there was reasonable suspicion that he may have committed the offences with which he had been charged. The applicant allegedly appealed against this decision to which he received no response.
The applicant was convicted by the first-instance court on 11 June 1999.
B. Relevant domestic law
The Criminal Code
The forms of penalty envisaged for aggravated murder under section 116 of the Criminal Code, as in force in 1992, were fifteen to twenty years’ imprisonment or death. By amendment of 1998, the death penalty was abolished and replaced by “life imprisonment” and “life imprisonment without the possibility of parole”.
1. The applicant complains, relying on Articles 5 § 3 and 17 of the Convention, that his detention was unjustified and excessively lengthy.
2. The applicant complains, relying on Articles 5 § 4 and 17 of the Convention, that the courts did not examine all factors relevant to the lawfulness of his detention. In addition, he maintains that his appeals were decided in violation of the requirement for a speedy decision under Article 5 § 4 of the Convention.
3. The applicant complains under Article 6 of the Convention of the fairness of the criminal proceedings against him and contends that the evidence against him was tainted, inadmissible and wrongly assessed by the domestic courts. In particular, he argues (a) that a bullet was found in the car of his father in the course of an unlawful search conducted one day after the official search of the vehicle had been made, which had not established any bullet hole nor had any such projectile been found; (b) that there was no evidence that he had destroyed any of his clothing as claimed by the prosecution; (c) that his statements before the investigators were given under duress, without the assistance of legal counsel and should not have been considered by the courts as evidence; (d) that the forensic examinations of a hatchet were inconclusive; (e) that there was no evidence that he had bought certain cement and that a witness had attested to that; (f) that the statements of his co-defendant should not have been taken into account as that person had had an interest in transferring part of the blame to someone else; (g) that the conclusions of the courts that he knew of the fraudulent source of the money he was safekeeping for his co-defendant were unsubstantiated; and (h) that the investigators had only taken photographs of a footprint found at the crime scene, but had failed to make a cast of the same. The applicant also complains of the excessive length of the criminal proceedings, which lasted for eight and a half years.
4. The applicant complains under Article 7 of the Convention that the domestic courts imposed a sentence of life imprisonment on him, which was not provided for under national law at the time the offences were committed and considers that he should have been sentenced to not more than twenty years’ imprisonment.
5. The applicant complains that the Prosecutor’s Office refused to prosecute the presiding judge of the first-instance court and officer A., whom the applicant alleged had violated his rights as a defendant and had acted in contravention with applicable legislation.
6. The applicant also complains under Article 13 of the Convention.
A. Complaints under Articles 6 § 1 and 13 of the Convention concerning the length of the criminal proceedings and the lack of effective remedies relating thereto
The applicant complained of the excessive length of the criminal proceedings against him and the lack of effective remedies relating thereto.
Article 6 § 1 of the Convention provides, as relevant:
“In the determination of ..., any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
B. The remainder of the applicant’s complaints
The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the length of the criminal proceedings (Article 6 § 1) and the lack of effective remedies relating thereto (Article 13);
Declares the remainder of the application inadmissible.
Søren Nielsen Christos Rozakis
IVANOV v. BULGARIA DECISION
IVANOV v. BULGARIA DECISION