AS TO THE ADMISSIBILITY OF
by Zdravko Ivanov PETROV
The European Court of Human Rights (Fifth Section), sitting on 3 February 2009 as a Chamber composed of:
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 22 May 2004,
Having deliberated, decides as follows:
The applicant, Mr Zdravko Ivanov Petrov, is a Bulgarian national who was born in 1972 and is serving a life sentence in Belene prison.
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 24 May 1999 the applicant was arrested on suspicion of murder. He submits that he did not have a lawyer for the first twenty-four hours after the arrest.
Charges against the applicant were brought on 25 May 1999. He was questioned on the same day.
The charges were amended on several occasions. In order to clarify them, on 16 March 2000 the prosecution dropped some of the initial charges and reiterated the remaining ones.
During the pre-trial proceedings the applicant had a court-appointed counsel, M.D. He subsequently found out that after his arrest M.D. had handed items he had given her earlier over to the prosecution authorities, which could incriminate him.
On an unspecified date the applicant was allowed to examine the findings of the investigation and study the evidence collected.
On 19 May 2000 an indictment against the applicant was filed with the Ruse Regional Court. The document is not provided.
On 6 October 2000 the Ruse Regional Court convicted the applicant of murder, accessory to murder, causing bodily injury, theft, armed robbery, abduction and illegal possession of firearms, and sentenced him to life imprisonment without the possibility of parole. It acquitted him of a rape charge. The judgment was based on the testimony of numerous witnesses, on the statements of the applicant given on 25 May 1999 and after that, on statements from the applicant’s accomplice, on expert opinions and on other evidence. The Regional Court found that on one of the occasions the applicant had planned to rob the D.’s house, but had entered another house by mistake, where he had killed one of the inhabitants.
According to the applicant, publications in the media during the trial that assumed that he was guilty were at least partly based on information obtained from the prosecution and the police.
On an appeal by the applicant, on 11 December 2001 the Veliko Tarnovo Court of Appeal upheld the conviction and the sentence. The applicant lodged a cassation appeal.
On 27 November 2003 the Supreme Court of Cassation (“the SCC”) upheld the lower courts’ judgments. It dismissed the applicant’s arguments that there had been substantial procedural violations. To his argument that M.D could not have acted in his interest and had not therefore been lawfully appointed as his counsel during the pre-trial stage of the proceedings it responded that she had been appointed in accordance with the law, that the applicant had expressly stated that he wished her to represent him and that he had not complained about her actions.
The SCC held that the fact that the Regional Court had permitted the applicant to familiarise himself with the case file only in the presence of his lawyer had not encroached upon his right to prepare his defence, but had, to the contrary, provided him with an additional procedural guarantee. Nor had the alleged refusal of the Regional Court to provide the applicant with copies of certain documents encroached upon the rights of the defence as it was clear from the applicant’s subsequent submissions that he was well acquainted with the whole case file.
The SCC found that the amendments of the charges against the applicant during the investigation had not resulted in him not understanding what he had been charged with. It also found that the failure of the lower courts to examine a witness, Y., did not represent a procedural violation: the witness had refused to testify and her testimony given during the investigation had been read out in court; the courts had been free to interpret the credibility of this testimony in light of the witness’s refusal to appear.
2. Investigation into the alleged beating of the applicant by the police
Following his arrest on 24 May 1999 the applicant was allegedly beaten by the police in order to make him confess. In 2000 he requested the opening of criminal proceedings against the police officers allegedly involved. On 31 March 2003 the Varna regional military prosecutor’s office refused to open such proceedings as it found that there was no appearance of an offence. On 27 October 2003 the refusal was upheld by the Chief Public Prosecutor’s Office, which also noted that on 31 May 1999 the applicant had been examined by a doctor, who had found no injuries which might corroborate his allegations.
3. Conditions of detention
It appears that the applicant was detained throughout the proceedings. He was initially held in the Ruse regional investigation service and on an unspecified date transferred to Belene prison. He later remained there to serve his sentence of life imprisonment.
According to the applicant, in Belene prison he is spending all the time in a four-square-metre cell, which he leaves for a few minutes’ walk once every few months. The cell is damp and cold and not sufficiently ventilated. He submits also that on one occasion he did not receive timely medical care and on another occasion he was not promptly taken to a dentist. Lastly, according to the applicant, the prison authorities exercised psychological pressure on him and attempted to hypnotise him and to kill him by poisoning his cigarettes.
4. Correspondence of the applicant
According to the applicant, letters he received in the prison, including from the Court’s Registry, were subjected to inspection by the prison administration.
5. Request for documents from the Ruse Regional Court
In October 2004 the applicant requested from the Ruse Regional Court copies of unspecified documents from his case file in order to support his application to the Court. In a letter of 26 October 2004 the Regional Court refused and informed him that he needed to show that he had made an application and that the Court Registry had requested the specific documents he had sought.
Regarding the proceedings before the Ruse Regional Court, the applicant complained that the court had been partial, that it had held a closed hearing and had not allowed him to examine the case file in the absence of his counsel and that the prosecution had presented forged evidence. He further complained that in describing a robbery committed by him the Regional Court had convicted him for having prepared another robbery, that of D.’s house, and that although he had been acquitted of the rape charge he had been ordered to pay all expenses for the trial. The applicant also complained that he had not been able to obtain the examination of witnesses.
He further complained that the Veliko Tarnovo Court of Appeal had failed to collect evidence requested by him and that the Court of Appeal and the Supreme Court of Cassation had failed to examine all of his arguments.
He complained that he had wished to be represented by lawyers of his choice before the Ruse Regional Court and the Supreme Court of Cassation but had been forced to accept court-appointed lawyers. He also complained that the domestic courts had decided wrongly.
The applicant complained that the media had presented him as guilty before there had been any final judgment in his case.
A. Complaints under Article 6 of the Convention in respect of the fairness of the proceedings
The applicant complained that the proceedings against him had not been fair. The complaints fall to be examined under Article 6 §§ 1, 2 and 3, which reads, in so far as relevant:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
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. Complaint under Article 34 of the Convention
The applicant complained that the authorities had hindered the exercise of his right to make an application to the Court, in violation of Article 34 of the Convention, by refusing to provide him with documents from his case file in order to substantiate his complaints to the Court. Article 34 reads:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
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.
C. 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 did 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 §§ 1, 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the fairness of the criminal proceedings against him and the hindrance in the exercise of his right of individual petition with the Court;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen