AS TO THE ADMISSIBILITY OF
by Plamen Todorov RADKOV
The European Court of Human Rights (Fifth Section), sitting on 3 February 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 19 August 2003,
Having deliberated, decides as follows:
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The preliminary investigation, the arrest of the applicant and Z.P. and their initial questioning
A search was conducted on 24 May 1999 in the building where the applicant lived. Firearms and ammunition were seized. S.S. participated in the procedure as a witness.
On 26 May 1999 the applicant was arrested and on 27 May he was charged with the murder of G. The decision of the prosecution to bring the charge did not refer to the date on which the alleged offence had been committed, or to the evidence on which it was based. On the same day the applicant was questioned about the murder of G.
On 18 June 1999 the applicant was once again questioned about the murder of G.
On the same day he was questioned about a theft of firearms. He was formally charged with the theft of firearms on 31 August 1999.
On 11 January 2000 the applicant was charged with robbery accompanied with the murder of Y., with harbouring a criminal and with illegal possession of firearms. On an unspecified date he was also charged with aiding and abetting the murder of M.
On 1 February 2000 the charge for the murder of G. was modified to robbery accompanied by murder.
Z.P., an alleged accessory of the applicant, was arrested on 24 May 1999. Prior to the arrest he had given to M.D. items that could incriminate him. Subsequently M.D. had handed over the items to the prosecution authorities. During the pre-trial proceedings she acted as his court-appointed lawyer.
On unspecified dates Z.P. was also charged with the murders of G. and Y. On 26 and 31 May and 3 June 1999 he was questioned about these offences. Subsequently, the charges were modified to robberies accompanied by the murders of G. and Y.
On unspecified dates Z.P. was charged with the murder of M. and with a robbery in a restaurant owned by S.S.
2. The court proceedings against the applicant and Z.P.
On 19 May 2000 the applicant was indicted for two robberies accompanied by the murders of G. and Y., for aiding and abetting the murder of M., for theft of firearms and ammunition and illegal possession of firearms and for harbouring a criminal.
On 6 October 2000 the Ruse Regional Court acquitted the applicant on the charge of aiding and abetting the murder of M., convicted him on all other charges and sentenced him to life imprisonment without the possibility of parole.
The conviction for the robbery accompanied by the murder of G. was based, inter alia, on the confessions the applicant had given before the modification of the initial charge with murder on 1 February 2000, and the testimony that Z.P. had given at the pre-trial stage of the proceedings, when M.D had acted as his court-appointed lawyer. The conviction for the robbery accompanied by the murder of Y. was also based, inter alia, on the explanations Z.P. had given at the pre-trial stage of the proceedings. In convicting the applicant of theft of firearms the Regional Court relied, inter alia, on his explanations of 18 June 1999, given before he had been formally charged with that offence. In convicting him of illegal possession of firearms and ammunition the domestic court referred to the report of the search and seizure of 24 May 1999 conducted in the presence of S.S. as a witness, to the testimony of witnesses and to the explanations of the applicant and Z.P. The applicant was convicted in relation to the possession of various firearms, including two rifles which had not been found by the police.
The Regional Court also convicted Z.P. on several counts, including for the two robberies accompanied by the murders of G. and Y., for the murder of M. and for the robbery of S.S.'s restaurant. Like the applicant, Z.P. was sentenced to life imprisonment without the possibility of parole.
The applicant appealed against the judgment of the Regional Court. On 11 December 2001 the Veliko Tarnovo Court of Appeal upheld it, fully concurring with the findings of the lower court.
The applicant lodged a cassation appeal. He argued, inter alia, that the judgment of the Regional Court, upheld by the Court of Appeal, had been based on inadmissible evidence, namely (a) the explanations he had given during the pre-trial proceedings, seeing that the initial charges of murder had been modified to robbery accompanied by murder, and because he had been questioned in connection with the theft of firearms before having been formally charged with that offence; (b) the explanations Z.P. had given during the pre-trial proceedings, since the charges relating to the murders of Y. and G. had subsequently been modified to robbery accompanied by murder and Z.P.'s explanations regarding the theft of firearms had been given before he had been formally charged with that offence; (c) the report of the search and seizure of 24 May 1999, which had been signed by S.S. as a witness, whereas, in the applicant's view, S.S. had an interest in the outcome of the trial because he had been the victim of a robbery for which Z.P. had been convicted in the same proceedings.
Z.P. also lodged a cassation appeal. One of his arguments was that M.D. had not been lawfully appointed as his counsel during the pre trial stage of the proceedings as she had handed over incriminating items to the prosecution authorities and could not, in his view, have acted in his best interests.
The Supreme Court of Cassation held a hearing on 19 February 2003. Z.P.'s lawyer requested that the hearing be adjourned as the decision for appointing M.D. as Z.P.'s lawyer at the pre-trial stage of the proceedings, the record of her handing over items to the prosecution and a certificate for the payment of a bail had been missing from the case file. Z.P. also requested that the hearing be adjourned adding that X-ray images and a medical expertise had also been missing from the case file. The applicant's lawyer stated that he preferred that the hearing be adjourned but nevertheless expressed readiness to make his pleadings. The Supreme Court of Cassation decided to proceed with the examination of the case.
On 27 November 2003 it delivered a final judgment and fully upheld the judgments of the lower courts. It dismissed the applicant's arguments on the admissibility of evidence and found that his right to mount a proper defence had not been prejudiced. Furthermore, it held that the report of the search and seizure of 24 May 1999 had not lost its evidentiary force as S.S., although formally the victim of one of the offences, had not participated in the proceedings in any capacity other than as a witness to the search and seizure and had not demonstrated any partiality.
Regarding Z.P.'s argument that M.D. had not been lawfully appointed as his counsel, the Supreme Court of Cassation noted that the appointment was in accordance with the law and that, moreover, Z.P. had expressly agreed to it.
3. Alleged interference with the applicant's correspondence with his lawyer and the Court
The applicant has been detained in Lovech Prison since 8 March 2000, initially being held there in pre-trial detention and, after 27 November 2003, as a prisoner serving a sentence of life imprisonment.
On 4 August 2003 he received a letter dated 1 August 2003 from the lawyer representing him in the proceedings before the Supreme Court of Cassation. The letter concerned the possible outcome of the proceedings and the actions of the defence as a consequence. After the conclusion of the domestic proceedings the applicant received another two letters from the same lawyer and two letters from another lawyer, dated, respectively, 12 January and 13 April 2004 and 27 and 30 January 2004. All five envelopes had been opened and bore the signatures of officials of the prison administration.
On 8 December 2003 the applicant received a letter from the Registry of the Court concerning his application in the present case. The envelope had been opened and bore the signature of an official of the prison administration.
4. Attempts of the applicant to obtain documents in support of his application to the Court
In written requests of 12 April and 5 May 2004 the applicant requested the Regional Court to provide him with copies of certain documents in connection with his application to the Court. He received some of the documents; in a letter of 13 May 2004 the Regional Court informed him that the remainder could not be sent as they concerned Z.P.
Following repeated requests by the applicant, the Regional Court informed him that he had not shown that he needed the remaining documents to support his application.
B. Relevant domestic law and practice
Correspondence of detainees and prisoners
The relevant domestic law and practice concerning the correspondence of detainees and prisoners has been summarised in the Court's judgment in the case of Petrov v. Bulgaria, no. 15197/02, §§ 17-18, 20-23 and 25, 22 May 2008.
A. Complaint that the authorities monitored the applicant's correspondence
The applicant complained that the Lovech prison administration had inspected letters sent to him by his lawyers and by the Registry of the Court. The Court considers that the complaint falls to be examined under Article 8 of the Convention, which reads, in so far as relevant:
“1. Everyone has the right to respect for his ... correspondence.
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.”
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 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 his right to respect for his correspondence;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen