AS TO THE ADMISSIBILITY OF
by Ivan Penchev IVANOV
The European Court of Human Rights (Fifth Section), sitting on 6 January 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 9 September 2004,
Having deliberated, decides as follows:
The applicant, Mr Ivan Penchev Ivanov, is a Bulgarian national who was born in 1954 and lives in Varna.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 28 January 1994 a prosecutor from the Burgas regional prosecutor's office opened a preliminary investigation against the applicant on charges of bribery following publications in the press of January 1994 alleging that the applicant in his capacity of a general manager of the state-owned tourist company “St. Konstantin and Elena” had received a large amount of money as a bribe for guaranteeing the signing of a certain contract.
Between February 1994 and August 1994 several new preliminary investigations for different offences were opened against the applicant, all of which were later joined.
On 3 August 1994 the applicant was charged with abuse of office.
Between 3 August 1994 and December 1998 the charges against the applicant were amended several times.
On 12 December 1998 the investigation authorities transmitted the case to the Varna regional public prosecutor's office.
On 12 January 1999 the Varna regional public prosecutor's office referred the case back to the investigation authorities for further investigation.
On 16 June 1999 and on 15 June 2000 the charges against the applicant were again amended.
On 17 June 2000 the investigation authorities once again transmitted the case to the Varna regional public prosecutor's office.
Between 1995 and 2000 the applicant filed numerous complaints about the excessive length of the investigation with the prosecution authorities, the Minister of the Interior, the Varna District and the Varna Regional Court and a number of state officials. The prosecution authorities replied that they would examine the issue and inform the applicant about the progress of the investigation. The Ministry of Interior replied that the investigator on the case had been instructed to conclude the investigation as soon as possible. The courts answered that they did not have the power to influence the course of the investigation.
On an unspecified date an indictment against the applicant and one other person was filed with the Varna District Court.
In an order of 4 September 2000 the judge rapporteur declared the case admissible and scheduled the first hearing before the District Court for 22 November 2000. The judge rapporteur on the case was allegedly the daughter of the head of the Regional Investigator's Office, who had purportedly taken part in the investigation on the applicant's case. The applicant did not request her recusal nor did he raise any complaints about her partiality before the domestic courts.
In a judgment of 2 November 2001 the District Court found the applicant not guilty of abuse of office and fraud and dismissed the case.
On 5 November 2001 the prosecutor appealed. On an unspecified date he withdrew the appeal on the part of the judgment finding the applicant not guilty of abuse of office, which then became final, but continued to appeal the finding on the charges for fraud. In a judgement of 14 April 2003 the Varna Regional Court quashed the judgment of the lower court in that respect due to lack of sufficient reasoning and remitted the case.
In a judgment of 8 October 2003 the District Court once again found the applicant not guilty of fraud.
On 15 October 2003 the prosecutor appealed. In a judgment of 13 February 2004 the Regional Court upheld the lower court's judgment, which became final on 18 March 2004.
On an unspecified date the applicant was prohibited to leave the territory of Bulgaria on the basis of Article 147 § 3 of the Code of Criminal Procedure of 1974 (Article 153a § 1 after the amendments of 1 January 2000).
On 24 January, 20 February and 1 March 1995 the applicant requested authorisation from the prosecutor to go on a business trip to Germany, which was refused on 9 March 1995.
There is no information that the applicant made any subsequent request for authorisation to leave the country.
In an order of 2 June 2004 a prosecutor from the Varna regional prosecutor's office lifted the ban imposed on the applicant.
A. Relevant domestic law
Article 147 of the Code of Criminal Procedure of 1974, as amended, is set out in the case of Hristov (cited above).
A. Complaints under Articles 6 § 1 and 13 of the Convention
The applicant complained under Articles 6 § 1 and 13 of the Convention about the length of the criminal proceedings and the lack of an effective remedy in that respect.
The relevant part of Article 6 § 1 of the Convention provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13 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 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 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 and the lack of effective remedies relating thereto;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen