AS TO THE ADMISSIBILITY OF
by Lenko Veselinov YORDANOV
The European Court of Human Rights (Fifth Section), sitting on 7 October 2008 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 20 December 2002,
Having deliberated, decides as follows:
The applicant, Mr Lenko Veselinov Yordanov, is a Bulgarian national who was born in 1952 and lives in Gabrovo. He is represented before the Court by Ms Z. Stefanova and Ms S. Razboinikova, lawyers practising in Sofia.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 4 November 1993 the applicant was transporting a consignment of paper across the Bulgarian-Yugoslav border, which had previously arrived in Bulgaria from Austria, but the trucks carrying it were stopped by customs officials and were inspected. It was discovered that the paper loaded onto them did not correspond to the type declared in the export customs declaration – toilette paper – but was actually self-adhesive folio. The authorities seized the consignment.
2. The criminal proceedings against the applicant
On 18 November 1993 the Kula district public prosecutor's office opened a preliminary investigation against the applicant for attempted fraudulent export of goods in violation of the Bulgarian export regime by using forged official documents.
On 10 December 1993 the applicant was charged with the offence and questioned.
Between May 1994 and October 1997 the preliminary investigation was concluded and the case was transmitted to the public prosecutor's office which in turn remitted the case back for further investigation on nine separate occasions.
On an unspecified date the seized consignment was sold and the proceeds were deposited in a bank account of the Vidin Regional Investigation Service.
On 15 December 1997 an indictment was filed against the applicant with the Kula District Court.
On 27 May 1998 the District Court remitted the case back to the public prosecutor's office because of serious procedural violations.
On 18 March 1999 the Kula public prosecutor's office filed a revised indictment with the District Court against the applicant for (a) attempted fraudulent export of goods in violation of the Bulgarian export regime by using forged official documents (Article 242(3) of the Criminal Code) and (b) inducement of a public official to issue an official document which certifies untrue facts (Article 311 of the Criminal Code).
In a judgment of 7 September 1999 the District Court found the applicant guilty only of attempted fraudulent export of goods in violation of the Bulgarian export regime by using forged official documents and sentenced him to three years' imprisonment which it suspended for four years.
On 7 October 1999 the applicant appealed against this judgment.
In a judgment of 14 December 1999 the Vidin Regional Court quashed the lower court's judgment and remitted the case back to the District Court for re-examination.
From 10 April to 27 September 2000 the District Court conducted three hearings. Then from 27 September 2000 to 20 September 2001 three Serbian nationals, the drivers of the trucks, were questioned by the Serbian authorities on a request from the Bulgarian courts. The interrogations were requested in order to establish what goods the trucks had contained at the time of entering Bulgaria from Austria and whether the travel documents issued by the transporter had correctly described the cargo being transported at the time. At a hearing held on 20 September 2001 the District Court remitted the case back to the public prosecutor's office for further investigation.
On 10 July 2002 the Kula public prosecutor's office filed a revised indictment against the applicant with the District Court.
The District Court conducted seven hearings from 18 September 2002 to 24 September 2003.
In a judgment of 24 September 2003 the District Court acquitted the applicant on both counts.
On an unspecified date the prosecution authorities appealed against the judgment.
In a judgment of 28 September 2004 the Regional Court partly reversed the lower court's judgment and found the applicant guilty of attempted fraudulent export of goods in violation of the Bulgarian export regime by using forged official documents. It also ordered the confiscation of a sum equal to the proceeds from the sale of the seized consignment.
On an unspecified date the applicant appealed against the judgment.
In a judgment of 28 December 2005 the Supreme Court of Cassation quashed the lower court's judgment because of breach of procedural rules and remitted the case back to the Regional Court for re-examination.
In a judgment of 17 May 2006 the Regional Court once again partly reversed the judgment of the District Court and found the applicant guilty of attempted fraudulent export of goods in violation of the Bulgarian export regime by using forged official documents. It sentenced him to three years' imprisonment which it suspended for four years and ordered the confiscation of a sum equal to the proceeds from the sale of the seized consignment.
On an unspecified date the applicant appealed against the judgment.
In a final judgment of 22 March 2007 the Supreme Court of Cassation upheld the lower court's judgment. The court noted that the applicant's sentence was appropriate considering, inter alia, the “lengthy criminal proceedings for which the applicant could not bear any responsibility”.
3. The prohibition imposed on the applicant to leave Bulgaria
On 14 December 1993 the Regional Investigation Service imposed a ban on the applicant to leave the territory of Bulgaria. The restriction was originally imposed for one year but was apparently thereafter automatically renewed every year.
The applicant submitted that he learnt of the imposed restriction only in 1995 when he requested to be issued a passport and was then orally informed by the chief of the local police station of its existence.
In March 2002 the applicant filed a complaint with the Regional Police Authority. In response, he was informed in a letter of 5 April 2002 that the prohibition to leave the country was imposed on him because he was a suspect in the criminal proceedings (see above) and was also a party to divorce proceedings. The applicant was also informed that the prohibition could only be lifted on the initiative of the authority which had imposed it.
On an unknown date in 2002 the applicant requested authorisation from the Kula public prosecutor's office to be allowed to take a trip to Greece to see his son and daughter who lived there. In a letter of 26 April 2002 the Regional Investigation Service informed the regional public prosecutor's office that no prohibition had been imposed on the applicant under the Code of Criminal Procedure. In an order of 29 April 2002 a prosecutor from the Kula district public prosecutor's office refused the applicant's request in reference to the Bulgarian Identity Documents Act. The applicant did not appeal against the order before the District Court.
In a letter of 7 June 2002 the Director of the Veliko Tarnovo Regional Police Authority informed the applicant that the Vidin Regional Police Authority had imposed the restriction on his travel abroad on the basis of the pending criminal proceedings against him and that it was still in force.
On 15 February 2003 the applicant requested the District Court, before which the case was pending, to grant him permission to take a trip to Greece in January 2003 in order to participate in a post-funeral ceremony for his son who had died and had been buried there. The applicant did not provide any further information concerning this request and whether it had been granted or not.
A. Complaints under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention
The applicant complained about the alleged excessive length of the criminal proceedings against him and the lack of effective remedies in that respect. He also complained that this resulted in a protracted interference with his right to peaceful enjoyment of his possessions in regards to the consignment which had been seized.
Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, in so far as relevant, read as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
“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.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints 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 are 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 is manifestly ill-founded and must be rejected in accordance with 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 alleged excessive length of the criminal proceedings against him (Article 6 § 1), the lack of effective remedies in that respect (Article 13) and that as a result of the alleged excessive length of the criminal proceedings there had also been a protracted interference with his right to peaceful enjoyment of his possessions in regards to the consignment which had been seized (Article 1 of Protocol No. 1 to the Convention);
Declares the remainder of the application inadmissible.
Westerdiek Rait Maruste