AS TO THE ADMISSIBILITY OF
by Mariyan Nikolov PFEIFER
The European Court of Human Rights (Fifth Section), sitting on 10 November 2009 as a Chamber composed of:
Peer Lorenzen, President,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 25 June 2004,
Having deliberated, decides as follows:
The applicant, Mr Mariyan Nikolov Pfeifer, is a Bulgarian national born in 1964 and presently living in Offenburg, Germany. He is represented before the Court by Mr D. Kanchev, a lawyer practising in Sofia, Bulgaria.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s life in Germany
The applicant came from Bulgaria to Germany on 15 January 1992 and settled in Offenburg. On 28 January 1994 he married a German national, Ms E. Pfeifer, and adopted her family name. On 24 February 1995 the two of them had a daughter. In July 1997 the applicant started working in a Daimler Benz factory in Stuttgart. Between 1998 and 2001, when he was in pre trial detention in Bulgaria and accordingly unable to provide for his family (see below), the German authorities were paying child support in his stead.
On 19 May 2006 a court in Offenburg, Germany, granted a divorce petition by the applicant’s wife, chiefly on account of his prolonged absence due to the criminal proceedings against him in Bulgaria and his inability to leave the country to visit his family in Germany (see below).
2. The criminal proceedings against the applicant
On 3 February 1992 the Bulgarian authorities opened an investigation against the applicant on suspicion that on 14 January 1992 he had murdered a man in Pleven. On 1 October 1996 an investigator ordered his arrest.
The applicant’s whereabouts were established through Interpol and on 3 June 1998 he was arrested in Offenburg. On 22 June 1998 the Bulgarian authorities requested his extradition on charges of premeditated murder. On 7 October 1998 the German authorities agreed to extradite him and on 18 November 1998 he was sent to Bulgaria.
On 29 December 1998 the applicant was charged with premeditated murder committed as a repeat offender. However, in April 1999 the charges were modified to aggravated robbery accompanied with murder.
In a judgment of 18 April 2000 the Pleven Regional Court found the applicant guilty of aggravated robbery and sentenced him to sixteen years’ imprisonment.
On an appeal by the applicant, on 24 October 2000 the Veliko Tarnovo Court of Appeal quashed his conviction and sentence and referred the case back to the prosecution authorities. It found, inter alia, that the applicant’s conviction for robbery was in breach of the “rule of speciality” set forth in Article 14 of the European Convention on Extradition.
On 28 February 2001 the applicant was charged with premeditated murder. On 9 November 2001 the prosecution decided to drop the charge of murder committed as a repeat offender. On an application by the private prosecuting parties, in December 2001 the Pleven Regional Court set this decision aside and directed the prosecuting authorities to charge the applicant with murder committed in a capacity of a repeat offender as well.
On 15 February 2002 the prosecuting authorities indicted the applicant, accusing him of premeditated murder committed as a repeat offender and in complicity.
Between June 2002 and March 2004 the Pleven Regional Court held nine hearings. However, on 24 March 2005, pursuant to a request by the applicant, a judge and a lay judge withdrew from the case, the former because certain remarks that he had made could be considered indicative of bias, and the latter on the ground that he had taken part in the examination of the application for judicial review of the prosecution authorities’ decision to drop the charge of murder committed as a repeat offender (see above). Accordingly, the trial had to start anew.
In June or July 2005 the applicant was indicted again. As the Pleven Regional Court found the indictment defective, it had to be re submitted in September 2005, accusing the applicant of murder committed as a repeat offender.
On 26 May 2006 the Pleven Regional Court acquitted the applicant. It held that there was not enough evidence to show that the murder had been committed by him. The presiding judge and a lay judge wrote dissenting opinions in which they expressed the view that the charges against the applicant had been sufficiently made out.
The prosecution appealed to the Veliko Tarnovo Court of Appeal. However, as all judges of that court had previously dealt with the case, mostly pursuant to requests for release or requests to allow the applicant to leave Bulgaria (see below), in November 2006 the proceedings were transferred to the Sofia Court of Appeal.
On 27 June 2007 the Sofia Court of Appeal quashed the applicant’s acquittal and found him guilty of murder committed as a repeat offender. It sentenced him to ten years’ imprisonment.
On an appeal by the applicant, on 24 January 2008 the Supreme Court of Cassation quashed the lower court’s judgment, finding that it had made certain clerical errors in the text of its judgment which, taken as a whole, made it impossible to ascertain the exact tenor of its ruling.
The Sofia Court of Appeal examined the case afresh on 10 March 2008. It turned down the applicant’s request to ask the German authorities to provide copies of the judgments allowing his extradition, holding that there existed enough information on the charges on which he had been extradited. It further rejected his request for the reading of the statement made by his co-accused before the investigator, holding that under intervening amendments of the rules of criminal procedure such statements could not be read at trial. It also rejected a request for a reconstruction of the events of 14 January 1992, holding that the applicant had not given sufficient detail about the underlying circumstances. However, it allowed a request for the rehearing of a witness.
On 21 April 2008 the Sofia Court of Appeal again quashed the applicant’s acquittal and found him guilty of murder committed as a repeat offender. It sentenced him to ten years’ imprisonment. In the reasons for its judgment, which ran to twenty pages, it examined in detail the various pieces of evidence, their probative value and the facts which they served to establish, and explained carefully why it did not believe the applicant’s version of the events of 14 January 1992. It also explained at length why it could not accept the findings of the Pleven Regional Court and the arguments of the applicant’s counsel to the effect that the accusation was not sufficiently made out. It went on to hold that the indictment could not be considered vague, because it contained a sufficient description of the elements of the alleged offence, and that the applicant’s conviction had not breached the “rule of speciality” because he had been extradited on charges of aggravated murder and convicted on those charges. In determining the quantum of the punishment, it observed that there were a number of aggravating circumstances. However, it went on to say that there existed a compelling mitigating circumstance, namely the amount of time which had elapsed since the commission of the offence. Part of this period could be attributed to the conduct of the applicant, who had escaped to Germany. However, there were still grounds to impose a punishment below the statutory minimum, which was fifteen years’ imprisonment, because the excessive duration of the proceedings had had a negative impact on the applicant’s right to a trial within a reasonable time.
On an appeal by the applicant, on 23 December 2008 the Supreme Court of Cassation upheld his conviction and sentence. In the reasons for its judgment, which ran to fifteen pages, it examined in detail the manner in which the Sofia Court of Appeal had assessed the various pieces of evidence, had reached its findings of fact, and had rejected the applicant’s version of the events of 14 January 1992. As regards the quantum of the punishment, the court fully approved of the approach taken by the lower court, stating that the reduction had made good an injustice towards the applicant, namely the failure to determine the charges against him within a reasonable time.
3. The travel ban imposed on the applicant
On 19 November 1998, the day following his extradition, the applicant was placed in pre trial detention. On 7 February 2001 he was released.
In the meantime, in February 1999 the immigration authorities withdrew his passport on the request of the investigation authorities.
On 27 June 2001 the applicant asked the prosecution authorities to allow him to leave Bulgaria for sixty days to visit his wife and daughter in Germany. He argued that he had not seen them for four years, that they were experiencing financial difficulties, that he had fixed places of abode in both Germany and Bulgaria, and that after his release from custody he had always been at the disposal of the authorities. On 28 June 2001 his request was denied, and he sought judicial review by the Pleven Regional Court. On 1 August 2001 that court dismissed his application, holding that the gravity of the charges against him and the potential punishment made it likely that he would flee. There was no indication that he needed to travel urgently and there was nothing to indicate that he would not abscond.
In February 2002 the applicant sought leave by the Pleven Regional Court to go to Germany. In a decision of 7 March 2002 the judge-rapporteur in his case turned down his request. He held that the fact that the applicant had left Bulgaria immediately after the commission of the offence was indicative of his desire to hinder the criminal investigation against him. If he had really acted in good faith, there would have been no need to track him down through Interpol. There was no guarantee that, if allowed to go to Germany, he would return for the trial. He was accused of a serious offence, committed as a repeat offender and carrying a punishment ranging between fifteen years’ imprisonment and life without parole. The harshness of the punishment in itself made it likely that he would try to flee or hinder the progress of the trial by failing to appear.
On 23 April 2002 the applicant asked the Pleven Regional Court to allow him to leave Bulgaria for twenty five days to visit his wife and daughter in Germany. He chiefly relied on the same arguments as before. On an unspecified date in April, May or June 2002 the judge-rapporteur rejected the request, giving exactly the same reasons as earlier.
On 14 October 2002 the applicant made yet another request to be allowed to travel to Germany. He argued that he had not seen his family for more than four years, which had significantly hampered his normal family life, had had profoundly negative effects on the emotional state of his daughter, and had engendered financial difficulties for his wife and daughter. He submitted a medical certificate showing that his wife had developed a psychogenic hysterical paralysis, which prevented her from taking proper care of their daughter. He also asserted that he could not provide for his family from Bulgaria and needed to go to Germany and register with the German social services to obtain financial support for them. He had not hindered the progress of the proceedings in any way, had permanent places of abode in both Bulgaria and Germany, and had never sought to evade justice. On 30 October 2002 the Pleven Regional Court rejected the request, briefly noting that the applicant had been charged with a serious wilful offence. The applicant’s ensuing appeal was declared inadmissible by the Veliko Tarnovo Court of Appeal on 13 November 2002, on the grounds that no appeal lay against the lower court’s decision and that the appeal had been signed solely by the applicant’s counsel.
On 13 December 2002 the applicant sought leave to travel to Germany, reiterating his earlier arguments. On 8 January 2003 the Pleven Regional Court rejected his request, briefly noting that he was accused of a serious offence and that the lifting of the travel ban could cause difficulties for the establishment of the truth and for the conclusion of the trial.
The applicant made a further request on 2 July 2003, reiterating his previous arguments. The court rejected the request the same day, briefly noting that the applicant was accused of a serious offence and had been extradited from Germany. His family-related arguments could not be seen as decisive. The applicant’s ensuing appeal was dismissed by the Veliko Tarnovo Court of Appeal on 28 July 2003.
On 25 July 2003 the applicant requested the lifting of the travel ban, reiterating his earlier arguments. On 14 August 2003 the Pleven Regional Court rejected his request, observing that he was accused of a serious offence, had been hiding in Germany and had been extradited from there. The length of the criminal proceedings had not exceeded a reasonable time. The fact that the applicant’s family was in Germany was not decisive, as there was no indication that they could not visit him in Bulgaria. Moreover, he could work in Bulgaria and support his family from there.
On an appeal by the applicant, on 26 August 2003 the Veliko Tarnovo Court of Appeal reversed the lower court’s ruling and allowed him to travel to Germany. In a detailed opinion it noted that, while the applicant was charged with a serious offence and had been extradited and then kept in custody for a long time, he had not missed any hearings in his case. In the court’s view, at that stage, when the proceedings had already lasted twelve years and thus exceeded a reasonable time, it was no longer justified to turn down the applicant’s requests for permission to travel. The court reviewed the applicant’s conduct during the period 1992-98 and concluded that he had not tried to evade justice. It went on to say that in relying on the gravity of the charges against him the lower court had acted in breach of the presumption of innocence. The only relevant factor in this respect was the conduct of the accused. The court noted that the applicant had not obstructed in any way the proceedings against him since his release from pre trial detention, that the evidence against him was contradictory and that his family life had suffered a grave disruption on account of a measure which could not be maintained forever. It also held that allowing the applicant to travel to Germany would not create a risk of his evading, because he could be re-arrested and extradited. However, the court turned down the applicant’s request for a full lifting of the travel ban.
In August and September 2003 the applicant travelled to Germany. He returned in time for the next hearing, held on 18 September 2003.
On 19 December 2003 the applicant asked the Pleven Regional Court to allow him to travel to Germany again. He relied on the same arguments as previously and stressed that he had returned from his previous trip in time for the hearing. The court examined the request at a hearing held on 23 December 2003 and rejected it in a decision of the same day. It said that there was no indication that the applicant’s family could not visit him in Bulgaria. He had been extradited from Germany and could not be allowed to leave Bulgaria. The applicant appealed, putting forward numerous detailed arguments. On 12 January 2004 the Veliko Tarnovo Court of Appeal upheld the lower court’s decision, holding that the seriousness of the charges against the applicant, coupled with two previous convictions, showed that he was a dangerous individual. It was therefore likely that, if allowed to leave the country, he would not return. The fact that he had been extradited was telling in this direction. He could maintain contacts with his family in Bulgaria.
On 23 February 2004 the applicant made another request to be allowed to travel to Germany, putting forward arguments similar to those supporting his previous requests and stressing that the separation from his wife since 1998 had caused her to apply for divorce, as could be seen from the grounds cited in her divorce petition. He reiterated the request on 4 March 2004. On the same day the Pleven Regional Court rejected it, observing that there was no indication that the separation between the applicant and his wife had not predated his extradition. Moreover, the applicant had presented no proof to show that the divorce petition had already been heard. He was accused of a serious wilful offence, in connection with which he had been extradited. The applicant appealed, reiterating his arguments. On 25 March 2004 the Veliko Tarnovo Court of Appeal upheld the lower court’s ruling, holding that in view of the gravity of the charges against him and the fact that he had prior convictions the applicant was likely to abscond. The proceedings against him had not lasted an unreasonable time, because their length was not attributable to the conduct of the authorities. The applicant’s family could come to Bulgaria, whereas the lifting of the travel ban would render the earlier extradition devoid of purpose.
On 8 December 2004 the applicant made a fresh request to be allowed to travel to Germany. On 14 February 2005 the Pleven Regional Court refused it. On an appeal by the applicant, on 28 February 2005 the Veliko Tarnovo Court of Appeal reversed this ruling and allowed him to travel to Germany, giving exactly the same reasons as on 26 August 2003 (see above).
On 26 May 2006 the Pleven Regional Court, when acquitting the applicant (see above), fully lifted the prohibition on his leaving Bulgaria.
The applicant went to Germany, where on 15 March 2007 he was employed by a German company. However, he attended all hearings in the case against him in Bulgaria.
On 27 June 2007 the Sofia Court of Appeal, when quashing the applicant’s acquittal and finding him guilty (see above), imposed a new travel ban, without giving reasons. Further appeals by the applicant against this ruling were declared inadmissible on the ground that no appeal lay against it.
On 10 March 2008 the applicant asked the Sofia Court of Appeal to lift the travel ban. In a decision of the same day the court granted his request. It noted that he had a wife and a child in Germany and an address in Germany. It went on to observe that the judicial phase of the proceedings had been dragging on for too long, that the applicant, whose conduct during the proceedings had been exemplary, had not caused any adjournments, and that the ban had been in force since 27 June 2007. Finally, it could not be overlooked that the applicant had been acquitted by the lower court.
B. Relevant domestic law
In 1994, a new provision, Article 147 § 3,was added to the 1974 Code of Criminal Procedure. Under it, the imposition of preventive measures (such as detention, house arrest or bail) on individuals accused of an offence punishable by more than three years’ imprisonment automatically triggered a prohibition on their leaving the territory of Bulgaria.
On 1 January 2000 this provision was repealed and replaced by the new Article 153a of the Code. It provided, in paragraph 1, that the prosecutor could prohibit an individual accused of a deliberate offence punishable with imprisonment from leaving the territory of Bulgaria without permission. Under paragraph 2, the prosecutor had to rule on a request for such permission within three days of its lodging. His or her refusal to grant permission was subject to judicial review. The court had to examine the application in private and rule immediately by means of a final decision. At the trial stage, the court became competent to impose a travel ban.
On 29 April 2006 Article 153a was superseded by Article 68 of the 2005 Code of Criminal Procedure. It repeats its text almost verbatim, but also provides, in paragraph 5, that the court may, in addition to quashing the prosecutor’s refusal to grant permission for travel, set aside the travel ban as a whole, provided that there is no risk that the accused may flee abroad. Paragraph 6 additionally specifies that the court’s decision to impose a travel ban taken at the trial stage is subject to appeal to a higher court.
Article 8 (right to respect for private and family life)
“1. Everyone has the right to respect for his ... family life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13 (right to an effective remedy)
“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 2 of Protocol No. 4 (freedom of movement)
“... 2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ...”
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.
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Court observes that in its judgment of 21 April 2008 the Sofia Court of Appeal decided to reduce the applicant’s sentence, citing the unreasonable length of the criminal proceedings against him. This ruling was upheld by the Supreme Court of Cassation on 23 December 2008. The question thus arises whether the applicant may still claim to be a victim of a violation of his right to a trial within a reasonable time.
According to the Court’s case-law, the mitigation of a sentence on account of the excessive length of the proceedings is capable of depriving the accused of his or her victim status, provided that the national authorities acknowledge in a sufficiently clear way the failure to observe the reasonable time requirement of Article 6 § 1 and afford adequate redress by reducing the sentence in an express and measurable manner (see, as a recent authority, Bochev v. Bulgaria, no. 73481/01, § 81, 13 November 2008, with further references).
In the instant case, the Court is satisfied that the Sofia Court of Appeal and the Supreme Court of Cassation rulings did amount to such an acknowledgement. Both of them, albeit briefly, expressly found that the excessive length of the proceedings had infringed the applicant’s right to a trial within a reasonable time (compare with Hadjiiski and Iliev v. Bulgaria (dec.), nos. 68454/01 and 68456/01, 2 June 2005; Kovács v. Hungary (dec.), no. 22661/02, 24 January 2006; Bochev, cited above, § 82; and Terziiski and Others v. Bulgaria (dec.), no. 1509/05, 30 September 2008; and contrast with Mladenov v. Bulgaria, no. 58775/00, §§ 25 and 32, 12 October 2006, and Sheremetov v. Bulgaria, no. 16880/02, §§ 25 and 34, 22 May 2008).
It thus remains to be determined whether the reduction of the applicant’s sentence amounted to sufficient redress in this respect. On this point, the Court observes that the offence of which he was convicted carried a minimum punishment of fifteen years’ imprisonment. The only factor which prompted the courts to reduce his sentence to ten years was the excessive length of the proceedings, which in their view amounted to a mitigating circumstance warranting a punishment below the statutory minimum. In these circumstances, the Court is satisfied that the Sofia Court of Appeal and the Supreme Court of Cassation findings concerning the effect of the duration of the proceedings had a decisive and measurable impact on the applicant’s sentence (see, mutatis mutandis, Beck v. Norway, no. 26390/95, § 28, 26 June 2001; Bochev, cited above § 83; and Terziiski and Others, cited above). It therefore amounted to sufficient redress for the excessive length of the criminal proceedings against him.
For these reasons, the Court concludes that the applicant can no longer claim to be a victim within the meaning of Article 34 of the Convention.
It follows that this complaint is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
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 prohibition on his leaving Bulgaria, the lack of effective remedies in that respect, and the interference with his family life;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen