European Court of Human Rights
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Cite as: [2008] ECHR 474
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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
10909/04
by Nacho Dimov RADEV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 29 April 2008 as a Chamber composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Karel
Jungwiert,
Volodymyr
Butkevych,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 10 March 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Nacho Dimov Radev, is a Bulgarian national who was born in 1958 and lives in village of Vetren. He is represented before the Court by Mr M. Ekimdjiev and Ms K. Boncheva, lawyers practising in Plovdiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Following the merger in November 1994 of the Burgas Commercial Bank, where the applicant worked as the head of the foreign currency department, with the Bulbank Plc. a financial inspection revealed that misappropriation of funds had been perpetrated by several high-ranking officials, including the applicant.
On 4 May 1995 an investigator from the Burgas regional investigation office opened a preliminary investigation against the applicant on charges of aggravated misappropriation of public funds committed through various bank operations in contravention of the legislation and his official duties. On the same day the applicant was detained and questioned by the investigation authorities.
Between May 1995 and June 1996 around 30 more witnesses were questioned.
On 6 June and 25 July 1996 the charges against the applicant were amended.
On 31 July 1996 the applicant was presented with the findings of the investigation.
On 15 August 1996 the investigation authorities transmitted the case to the Burgas regional public prosecutor’s office.
On 7 February 1997 the regional public prosecutor’s office referred the case back to the investigation authorities for correction of procedural deficiencies and for further investigation and questioning of new witnesses.
On 22 August 1997 the investigation authorities once again transmitted the case to the regional public prosecutor’s office.
On 15 December 1997 an indictment against the applicant and eight other persons was filed with the Burgas Regional Court.
On 24 April 1998 the Regional Court remitted the case to the prosecution authorities as it found that procedural requirements had been breached and that there had been a violation of the procedural rights of the accused. From 21 July to 6 August 1998 the investigation authorities questioned anew three of the accused and 23 of the witnesses.
On 15 October 1998 the regional public prosecutor’s office filed a revised indictment with the Regional Court.
In a judgment of 16 June 1999 the applicant and the eight other accused were found guilty of different offences relating to the misappropriation of bank funds. The applicant was sentenced to two years’ imprisonment and was banned from holding official posts for four years.
On 16 July 1999 the applicant appealed. On 4 July 2000 the Burgas Court of Appeal quashed the judgment of the lower court due to procedural deficiencies and remitted the case.
On 23 October 2000 the Regional Court remitted the case to the prosecution authorities for correction of the procedural deficiencies.
On 20 December 2000 the regional public prosecutor’s office separated the investigation in respect of one of the accused since his whereabouts were not known to the authorities. On 21 December 2000 the prosecutor referred the case back to the investigation authorities for implementation of the court’s instructions and correction of some additional deficiencies pointed out by him. It is unclear what investigative procedures were conducted thereafter and when.
On 21 November 2002 the applicant was presented with the findings of the investigation. On 27 November 2002 the investigator transmitted the case to the regional public prosecutor’s office.
On 26 June 2003 the regional public prosecutor’s office terminated the criminal proceedings against two of the accused and on 30 June 2003 filed a revised indictment against the remainder. The first hearing before the Regional Court was held on 2 January 2003.
As of 10 March 2004, the date of the applicant’s last communication to the Court, the criminal proceedings were still pending before the court of first instance.
In the course of the criminal proceedings against the applicant the authorities appear to have imposed different measures for securing his appearance in court – he was twice held in pre-trial detention from 3 May 1995 to 15 February 1996 and from 12 June 1996 and 28 August 1997.
On 11 April 2002 the Burgas regional public prosecutor’s office imposed a prohibition on the applicant to leave the territory of Bulgaria on the basis of Article 153a of the Code of Criminal Procedure as the investigation was still pending and the absence of any of the accused would hinder it. Moreover, the prosecutor took note of the fact that in spite of the charges against the applicant he had already left the country on two occasions – to the Czech Republic and to the Dominican Republic. The order did not specify the period for which the restriction was being imposed.
On 10 February 2003 the applicant requested authorisation from the prosecutor to go on a business trip abroad for a period of 20 days. He argued that he needed to go on this trip, because in his capacity of deputy executive director of a company he needed to participate in the negotiations concerning a future contract and that the trip was essential for his job and the size of his salary as he was the only breadwinner in the family.
On 21 February 2003 the regional public prosecutor’s office dismissed the applicant’s request because of the gravity of the charges against him, the pending status of the case, the lack of a proven necessity - such as medical treatment or similar such - for undertaking the trip, and the risk that the applicant might, as a result, abscond. Moreover, it was considered that the company’s activities would not be hindered as another person could conduct the negotiations in the applicant’s place.
On 26 February 2003 the applicant lodged an appeal against the order in which he agreed that another person from the company could go on the business trip and accomplish the tasks but considered that he may lose his job if he was not allowed to go on the trip himself. In a final decision of 4 March 2004 the Regional Court upheld the order on the same grounds as the prosecution authorities.
There is no information that the applicant subsequently suffered any negative repercussions as a result of being unable to take this trip abroad.
B. Relevant domestic law
The Code of Criminal Procedure 1974
Article 153a of the Code of Criminal Procedure 1974 provided that while criminal proceedings were pending at the investigation stage the prosecution authorities could impose on the accused a prohibition to leave Bulgaria, except with an explicit authorisation. Where the accused made a request for such authorisation the prosecution authorities had to grant or refuse authorisation within three days. The prosecution authorities’ refusal could then be challenged before the relevant court of first instance. When the case was pending before the courts the powers granted to the prosecution authorities were exercised by the courts.
COMPLAINTS
THE LAW
A. Complaints under Articles 6 § 1 and 13 of the Convention concerning the alleged excessive 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 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 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 (see Hristov v. Bulgaria (dec.), no. 32461/02, ECHR, 3 April 2006).
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.
Claudia Westerdiek Peer Lorenzen
Registrar President