DIMITAR KRASTEV v. BULGARIA - 26524/04 - HEJUD [2013] ECHR 139 (12 February 2013)

In the case of Dimitar Krastev v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          David Thór Björgvinsson,
          Päivi Hirvelä,
          George Nicolaou,
          Zdravka Kalaydjieva,
          Vincent A. De Gaetano,
          Krzysztof Wojtyczek, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 22 January 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 26524/04) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Dimitar Krastev Krastev (“the applicant”), on 7 July 2004.

The applicant was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

The applicant alleged, in particular, that a set of judicial review proceedings in which he had challenged a prosecutor’s decision to forfeit items seized from him had not been fair and did not involve a hearing; that the seizure and the forfeiture of those items had been unlawful and unjustified; and that two sets of criminal charges against him had not been determined within a reasonable time.

On 20 January 2010 the Court (Fifth Section) decided to give the Government notice of the application. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).

The Government filed their observations on the admissibility and merits of the case on 4 June 2010. The applicant filed his observations in reply and his claim for just satisfaction on 20 September 2010. The Government filed their comments on the applicant’s claim on 4 November 2010.

Following the re-composition of Court’s sections on 1 February 2011, the application was transferred to the Fourth Section.

In a letter dated 1 August 2012 the applicant’s legal representatives informed the Court that the applicant had died on 19 March 2012 and that his widow, Ms Mariana Nedelcheva Krasteva, his son, Krasen Dimitrov Krastev, and his daughter, Ms Ralitsa Dimitrova Krasteva, wished to pursue the application in his stead.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1947 and lived in Plovdiv.

A. The search of the applicant’s office and the criminal proceedings against him

At the relevant time the applicant was the head of the criminal police force in one of the districts of Plovdiv. On 15 September 1999 his superior ordered an internal inquiry against him and a search of his office in connection with his alleged failure to note down a complaint concerning a serious offence.

On 24 September 1999 three police officers searched the applicant’s office, including his safe. They made a record of almost all the items found in the safe and seized them, despite the applicant’s protests that some of those items - jewellery and money - were his and his family’s personal belongings which he kept in the safe because he was afraid to leave them at home. The officers refused to give the applicant a copy of the record. It is unclear whether it was presented to him for signature.

On 14 February 2000 a criminal investigation was instituted in respect of the applicant on suspicion of helping offenders to evade justice and abusing his office on numerous occasions between 1997 and 1999. The Government submit, without giving further particulars as to dates, that in the course of the proceedings the authorities interviewed a total of one hundred and forty-five witnesses; some of them had to be interviewed by delegation and some even abroad, by way of letters rogatory.

On 12 June 2000 the proceedings were stayed because it was found that one witness had gone into hiding and because four other witnesses who were Greek and Turkish nationals had to be interviewed by way of letters rogatory. It appears that by that time, most other witnesses had already given evidence.

In the following months the applicant made two requests for the return of the items seized from the safe. The prosecuting authorities refused, saying that those items had to be retained as real evidence in the case. In November 2000 the applicant enquired why the investigation had been stayed.

The proceedings were resumed on 15 November 2002. They were again stayed between 11 April and 8 May 2003 in order to establish the whereabouts of two witnesses.

On 14 May 2003 the applicant was charged with ordering, on ninety-four occasions, his subordinates not to note down reports of criminal activity, thus preventing the prosecution of offenders. This had amounted to a breach of his duties and abuse of office. He was interviewed on 28 May and 9 and 16 June 2003.

On 7 July 2003 the investigator in charge of the case decided to split the investigation against the applicant in two: one investigation for abuse of office and another for helping offenders to evade justice.

B. The proceedings concerning the charge of helping offenders to evade justice

In the following months, acting within the context of the latter investigation, the investigator interviewed the applicant, his son and wife, an acquaintance of the applicant, the officers who had carried out the search in the applicant’s office, other police officers, and three persons who had previously been victims of offences. His questions concerned, inter alia, the origin of the items found in the safe. The investigator also ordered the Plovdiv police to interview twenty-four alleged offenders whose offences the applicant was being suspected of having covered up. The investigator in addition organised two confrontations between the applicant and one of the police officers who had carried out the search in his office. On 12 November 2003 the investigator asked two of the persons who had previously been victims of offences whether they could identify any of the items. The first one did not identify any, but the second identified a gold ring, and the same day the investigator handed it over to her. The investigator also obtained two expert reports on the genuineness of a number of bank notes found in the safe, and an expert report on the market value of certain items of jewellery also found in the safe.

On 7 January 2004 the investigator proposed that the investigation be discontinued.

On 11 February 2004 a prosecutor of the Plovdiv Regional Military Prosecutor’s Office agreed with the proposal and discontinued the investigation, citing insufficient evidence. He decided to return to the applicant a pistol, munitions, an air rifle, a baseball bat, binoculars, a gold ring and a pair of earrings in respect of which there existed evidence that they belonged to him and his family. He decided to forfeit 6,360 German marks (DM), 898 United States dollars (USD), 450,000 old Bulgarian levs (BGL) and 700 new Bulgarian levs (BGN), as well as eleven gold rings, two gold necklaces and two gold bracelets, all found in the applicant’s safe, because he found that their origin could not be established. The applicant’s assertion that some of the German marks and the United States dollars were his, acquired as a result of the sale of real property and a car, was not supported by evidence. According to the prosecutor, neither could the applicant prove, by producing documents showing their origin, that DM 1,500 belonged to his son, as claimed by him. The origin of the jewellery was likewise uncertain. The applicant’s assertion that it belonged to his wife had not been made out, because, when interviewed, his wife had failed to describe its characteristic features, and another witness - one of the officers carrying out the search in the applicant’s office - had said that during the search the applicant had conceded that it belonged to victims of crime. On the other hand, several years had passed and the owners of those items had not come forward to claim them. The prosecutor did not cite the provision on which the forfeiture was based.

The applicant sought judicial review of the prosecutor’s decision, arguing that the proceedings should have been discontinued not on account of the lack of sufficient evidence but on account of the lack of any criminal activity. He also argued that the forfeiture was unlawful and unjustified because, in concluding that the forfeited items were not his or his family’s, the prosecutor had disregarded his statements and had given undue weight to the officers’ statements. He asked the court to vary the prosecutor’s decision or order an additional investigation, in which he, his wife and his son could be questioned again in order to describe the jewellery in detail and provide further particulars. His wife’s mother could be interviewed for that purpose as well.

After examining the application in private and on the papers, on 11 March 2004 the Plovdiv Military Court refused to vary the grounds for the discontinuance of the proceedings or to set the forfeiture aside. It summarised in detail the findings of fact made by the prosecutor. It found no substance in the applicant’s assertion that part of the money found in the safe had been acquired as a result of the sale of real property and a car, because the applicant had not produced documents proving such transactions. However, it noted that a witness interviewed during the investigation had said he had bought a car from the applicant, paying him DM 2,000 (one note of DM 500, two notes of DM 200, and the rest in DM 100 notes). That, coupled with the applicant’s assertion that a DM 200 note in the safe came from that transaction, showed that it indeed belonged to the applicant. As for the DM 1,500 alleged to belong to the applicant’s son, the two of them had made diverging statements during the investigation in respect of that money and had failed to produce evidence showing its origin. The same went for the USD 898, and for a gold necklace. As for the rings and the other jewellery, the applicant had stated during the search that he had seized them from offenders. No evidence had been gathered about their origin during the investigation, and the applicant’s wife had failed to describe them in detail.

As a result of the court’s ruling, on 15 March 2004 the same prosecutor of the Plovdiv Regional Military Prosecutor’s Office ordered the DM 200 be returned to the applicant, along with the items which he had already decided not to forfeit.

C. The proceedings concerning the charge of abuse of office

On 7 July 2003 the applicant was allowed to consult the case file. His ensuing request to the investigator to carry out additional investigative steps was turned down. On 18 September 2003 he appealed to the Military Appellate Prosecutor’s Office, but on 27 October 2003 that Office dismissed the appeal. The applicant’s further appeal was dismissed by the Supreme Cassation Prosecutor’s Office on 27 April 2004.

On 10 June 2004 the Plovdiv Military Prosecutor’s Office indicted the applicant, but on 29 June 2004 the Plovdiv Military Court referred the case back for additional investigation.

On 21 November 2004 the Plovdiv Military Prosecutor’s Office again indicted the applicant, and on 26 November 2004 the judge rapporteur at the Plovdiv Military Courts set the case down for trial.

The trial took place over five days in the end of January and the beginning of February 2005. It appears that the court heard one hundred and forty-one witnesses.

On 18 March 2005 the Plovdiv Military Court found the applicant guilty of abuse of office and sentenced him to eighteen months’ imprisonment, suspended.

The applicant appealed. On 27 December 2005 the Military Court of Appeal upheld the lower court’s judgment.

The applicant appealed on points of law. In a judgment of 19 October 2006 (реш. № 742 от 19 октомври 2006 г. по н. д. № 197/2006 г., ВКС, ІІІ н. о.), the Supreme Court of Cassation quashed the court of appeal’s judgment and remitted the case to it.

On 29 December 2006 the Military Court of Appeal partly upheld the applicant’s conviction and partly quashed it in view of the lapse of the statute of limitations in respect of parts of the offence. It also decided to replace the applicant’s criminal liability with an administrative fine of BGN 500. It appears that none of the parties appealed and the judgment became final.

On an unspecified later date the Chief Prosecutor sought re-opening of the proceedings. In a judgment of 20 March 2008 (реш. № 131 от 20 март 2008 г. по н. д. № 81/2008 г., ВКС, І н. о.), the Supreme Court of Cassation turned down his request.

II. RELEVANT DOMESTIC LAW

A. Relevant provisions of the Code of Criminal Procedure and the Criminal Code

At the relevant time searches and seizures of real evidence were governed by Articles 106-07 and 134-37 of the Code of Criminal Procedure 1974. Article 135 § 1, as in force until the end of 1999, provided that a search and seizure could be carried out by order of the court or the public prosecutor. In urgent cases the investigating authorities could carry out a search and seizure without prior permission by the prosecutor, but in that case had to inform the prosecutor within twenty-four hours (Article 135 § 2, as worded until the end of 1999).

Article 108 § 1 of the Code of Criminal Procedure 1974 provided that real evidence had to be retained until the end of the criminal proceedings. It could be returned to its owners earlier if that would not hinder the establishment of the facts (Article 108 § 2). After the end of the proceedings, items retained as real evidence and not forfeited under Article 53 of the Criminal Code 1968 (see paragraph 36 below) could be forfeited if it was impossible to ascertain their owner and they had not been claimed within one year after the end of the proceedings (Article 109 § 1). If a dispute over ownership requiring adjudication by the civil courts arose in respect of items retained as real evidence, they had to be retained until the relevant judgment became final (Article 110). In 2006 the above provisions were superseded by Articles 111 §§ 1 and 2, 112 § 1, and 113 of the Code of Criminal Procedure 2005, which are almost identical. One difference is that Article 111 § 2 of the 2005 Code speaks of the possibility of returning the evidence to “those entitled”, instead of “their owners”, the expression used in Article 108 § 2 of the 1974 Code.

There is no reported case-law clarifying the manner of application of Article 109 § 1 of the 1974 Code. However, in a final judgment of 9 April 2010 (реш. № 47 от 10 април 2010 г. по в. н. о. х. д. № 38/2010 г. на Хасковски окръжен съд), given under Article 112 § 1 of the 2005 Code, whose wording is identical, the Haskovo Regional Court held that this provision applies only if the ownership of items retained as real evidence is unclear and no one, including the accused, is claiming their return; if no third parties assert rights to the items, they have to be returned to the person from whom they were seized.

Article 53 § 1 (a) of the Criminal Code 1968 provides that things intended for or used in committing a wilful offence (instrumentum sceleris) and belonging to the accused are liable to forfeiture. Under point (b) of the same provision, things which have been the object of a wilful offence (objectum sceleris) and which belong to the accused are also liable to forfeiture, but only if this is envisaged by the provisions governing the specific offence. Article 53 § 2 (a) provides that things which have been the object or the instrument of an offence and the ownership of which is prohibited are liable to forfeiture. Under point (b) of the same provision, the proceeds of an offence (productum sceleris), unless subject to restitution, are also liable to forfeiture.

Under Article 237 § 2 of the 1974 Code, when discontinuing criminal proceedings, the public prosecutor had to determine, inter alia, what was to be done with the real evidence in the case. The accused and the victim of the alleged offence were entitled to seek judicial review of the prosecutor’s decision to discontinue the proceedings (Article 237 § 3). The application was examined by the competent first-instance court in private (Article 237 § 4). Its decision was not subject to appeal (ibid.). In 2006 Article 237 was superseded by Article 243 of the 2005 Code, which is almost identical, but in addition allows the first-instance court’s decision to be appealed before a higher court.

The Supreme Court of Cassation has held that in proceedings under Article 237 § 3 of the 1974 Code the courts could not take evidence, and had to base their decisions on the evidence gathered during the investigation (реш. № 339 от 7 юни 2002 г. по н. д. № 126/2002 г., ВКС, II н. о.; реш. № 538 от 24 януари 2003 г. по н. д. № 427/2002 г., ВКС, III н. о.).

B. The Property Act 1951

Section 108 of the Property Act 1951 provides that the owner of an object may claim it from any person who possesses it or holds it without lawful grounds. This action is commonly referred to as rei vindicatio. Under the courts’ case-law, the claimant in a rei vindicatio action must first prove that he or she has a valid title to the object whose return he or she claims (реш. № 1444 от 19 ноември 2007 г. по гр. д. № 265/2007 г., ВКС, V г. о.; реш. № 1120 от 22 октомври 2008 г. по гр. д. № 4655/ 2007 г., ВКС, II г. о.). Only then does it become relevant whether the defendant has lawful grounds to possess or hold it (реш. № 129 от 22 февруари 2010 г. по гр. д. № 658/2009 г., ВКС, I г. о.). The courts accept that the authorities have legal grounds to hold property seized as real evidence, and have on that basis dismissed claims against them under section 108 (реш. № 261 от 5 декември 2007 г. по в. гр. д. № 403/2007 г., ВтАС, ГК; опр. № 3697 от 25 ноември 2010 г. по ч. гр. д. № 2195/2010 г. Варненски окръжен съд). The former Supreme Court has held that it is not possible to contest a confiscation ordered by a criminal court by way of a claim under section 108 or a claim for judicial declaration (реш. № 1184 от 9 май 1977 г. по гр. д. № 2259/1976 г., ВС, I г. о.).

C. The State Liability for Damage Act 1988

Section 1 of the Act originally called the State Liability for Damage Caused to Citizens Act 1988, renamed on 12 July 2006 the State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”), provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with administrative action. The Supreme Court of Cassation has held that actions or omissions of the prosecuting authorities in relation to the retention and forfeiture of real evidence in criminal proceedings do not constitute administrative action within the meaning of that provision (реш. № 83 от 23 февруари 2009 г. по гр. д. № 6479/ 2007 г., ВКС, ІІІ г. о.).

Section 2(1) of the Act, as in force until 2009, provided for liability of the investigating or prosecuting authorities or the courts in six situations: unlawful detention; bringing of charges or conviction and sentencing, if the proceedings have later been abandoned or the conviction has been set aside; coercive medical treatment or coercive measures imposed by a court, if its decision has later been quashed as being unlawful; and serving of a sentence over and above its prescribed duration. In 2009 a new point 7 was added to section 2(1), providing that the State is liable for damage which the investigating and prosecuting authorities or the courts have caused to individuals through the unlawful use of special surveillance means. In 2012 a new subsection 2 was added to section 2, providing for liability of the State in respect of damage caused by judicial decisions under a newly enacted proceeds-of-crime statute. The Bulgarian courts have consistently held that the liability of the investigating or prosecuting authorities or the courts may be engaged only in respect of the exhaustively listed situations under section 2 (реш. № 617 от 21 ноември 2002 г. по в. гр. д. № 1127/2002 г., ПАС, ГО; тълк. реш. № 3 от 22 април 2005 г. по т. гр. д. № 3/2004 г., ВКС, ОСГК; реш. № 462 от 25 юли 2006 г. по гр. д. № 2220/2003 г., ВКС, III г. о.; опр. № 22 от 5 февруари 2008 г. по адм. д. № 167/2007 г., ВАС, петчл. с-в; опр. № 6325 от 29 май 2008 г. по адм. д. № 9743/2007 г., ВАС, III о.; реш. № 11 от 2 февруари 2009 г. по гр. д. № 6244/2007 г., ВКС, III г. о.; реш. № 343 от 27 април 2009 г. по гр. д. № 5564/2007 г., ВКС, IV г. о.; реш. № 439 от 26 май 2009 г. по гр. д. № 5229/2007 г., ВКС, III г. о.; опр. № 85 от 3 ноември 2009 г. по адм. д. № 74/2009 г., ВАС, петчл. с-в; реш. № 775 от 16 ноември 2009 г. по гр. д. № 1053/2008 г., ВКС, III г. о.; реш. № 869 от 24 ноември 2009 г. по ч. гр. д. № 1576/2008 г., ВКС, III г. о.; опр. № 103 от 22 декември 2009 г. по адм. д. № 86/2009 г., ВАС, петчл. с-в; опр. № 6 от 18 януари 2010 г. по адм. д. № 97/2009 г., ВАС, петчл. с-в; опр. № 39 от 17 юни 2010 г. по адм. д. № 21/2010 г., ВАС, петчл. с-в; реш. № 457 от 25 юни 2010 г. по гр. д. № 1506/2009 г., ВКС, IV г. о.).

THE LAW

I. PRELIMINARY POINT

The applicant died on 19 March 2012 and his widow and two children informed the Court that they wished to pursue the application introduced by him (see paragraph 7 above). In a number of cases in which an applicant died in the course of the proceedings the Court has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings (see Léger v. France (striking out) [GC], no. 19324/02, § 43, 30 March 2009, with further references). It has not been disputed that they are entitled to do so in the present case, and the Court sees no reason to hold otherwise (see Kirilova and Others v. Bulgaria, nos. 42908/98, 44038/98, 44816/98 and 7319/02, § 85, 9 June 2005).

II. THE SEIZURE AND THE FORFEITURE OF SOME OF THE ITEMS FOUND IN THE APPLICANT’S SAFE

The applicant complained that the proceedings in which he had challenged the prosecutor’s decision to forfeit some of the items seized from his safe had not been fair and had not involved a hearing. He relied on Articles 6 § 1 and 13 of the Convention.

The Court observes that the requirements of Article 13 of the Convention are less strict than, and are in such situations absorbed by, those of Article 6 § 1 (see, among other authorities, Vasilescu v. Romania, 22 May 1998, § 43, Reports of Judgments and Decisions 1998-III). It therefore considers that the above complaints should be examined solely by reference to the latter provision, which reads, in so far as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ...”

The applicant also complained that the seizure and the forfeiture of those items had been unlawful and unjustified. He relied on Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. The parties’ submissions

1. The Government

The Government submitted that the applicant had failed to exhaust domestic remedies. He had not brought proceedings under sections 1 or 2 of the 1988 Act, which would have enabled him to obtain compensation for any damage suffered as a result of unlawful actions or omissions of the competent authorities. The courts’ case-law under those provisions was constantly developing. Nor was there any indication that the applicant had sought to seek a judicial declaration that he was the owner of the items seized from his safe or that he had brought a claim under section 108 of the Property Act 1951 to obtain their return, either while the criminal proceedings against him were still pending or after their discontinuance. In that connection, the Government drew attention to the terms of Article 110 of the Code of Criminal Procedure 1974 (see paragraph 33 above).

The Government went on to argue that the prosecutor’s decision to forfeit the items seized from the applicant’s safe and the court’s decision to uphold the forfeiture had been based on an analysis of all the evidence and had been correct. The applicant’s explanations as to the origin of the money and jewellery found in the safe were incoherent and unclear. The witness statements on which he relied did not support his claims and did not prove that he was the owner of those items. It could not therefore be maintained that Article 1 of Protocol No. 1 was applicable.

2. The applicant

The applicant replied that a claim under the 1988 Act was not an appropriate remedy that could have provided redress in respect of his grievances. The circumstances of which he complained did not come within the exhaustive list set out in section 2 of the Act. Moreover, he had not been formally charged in the proceedings concerning the accusation of helping offenders evade justice, and had been convicted of the charge of abuse of office, with the result that he did not come within the ambit of section 2.

The applicant further submitted that according to doctrine and the case-law a claim under section 108 of the Property Act 1951 was not applicable to items seized as real evidence in a criminal case. The position was that the fate of those items was to be decided by the court dealing with the criminal case. As for Article 110 of the Code of Criminal Procedure 1974, it concerned only disputes between private persons claiming to have title to items retained as real evidence, not disputes between private persons and the authorities. In any event, the Government had not supported its contention that section 108 of the Property Act 1951 was an effective remedy with any examples.

The applicant went on to argue that the seizure of the items in his safe had not been carried out in line with the Code of Criminal Procedure 1974, which required that a seizure be carried out by an investigator in the presence of two attesting witnesses and be noted down in minutes, a copy of which was to be given to the person concerned. Later, the applicant had for a number of years not been formally charged and had been regarded as a mere witness, which had prevented him from exercising his procedural rights. After that, the Plovdiv Military Court had heard his legal challenge to the forfeiture in private, without gathering any evidence and without examining properly the question whether the applicant was the owner of the items seized from the safe. Its findings on that point had been entirely based on the evidence gathered during the preliminary investigation against the applicant. All of that showed that the applicant had at no point in the proceedings benefited from a procedure complying with the requirements of Article 6 § 1 of the Convention allowing him to have examined his claim that he was the owner of the items in issue.

Lastly, the applicant submitted that Article 1 of Protocol No. 1 was applicable. The authorities had found that part of the items seized from his safe were his and had returned them to him. They had therefore regarded it as paramount that those items had been found in a safe to which only the applicant had had access. Based on this logic, it could be accepted that the money and jewellery in the safe that were not shown to be connected with preliminary investigations or police operations belonged to the applicant. Instead, the authorities had, in proceedings conducted in private, found that the applicant had been unable to prove that he was their owner. During the search the applicant had told the officers carrying out the search that all items in his safe had been carefully arranged and that some of them belonged to him; however, they had disregarded that and had seized all of the safe’s contents. It could therefore be concluded that there had been an interference with his rights under Article 1 of Protocol No. 1. That interference could by no means be regarded as lawful. The search and seizure had not been carried out in compliance with the Code of Criminal Procedure 1974. The subsequent forfeiture of the safe’s contents had been decided in proceedings conducted in private and in breach of the basic requirements of fairness.

B. The Court’s assessment

1. Admissibility

(a) Exhaustion of domestic remedies

In relation to the first limb of the Government’s objection of non-exhaustion of domestic remedies, the Court observes that the Supreme Court of Cassation has held that actions or omissions of the prosecuting authorities in relation to the retention and forfeiture of real evidence in criminal proceedings do not constitute administrative action within the meaning of section 1 of the 1988 Act (see paragraph 40 above). A claim under that provision would therefore have been devoid of any prospects of success. Nor does it appear that the applicant could have prosecuted successfully a claim under section 2 of the Act. That section provides for liability of the investigating or the prosecuting authorities or the courts in certain exhaustively listed situations, none of which applies to the applicant’s case, and the Bulgarian courts have consistently held that the liability of the authorities or the courts under that section may be engaged only in those exhaustively listed situations (see paragraph 41 above, and Georgiev and Others v. Bulgaria (dec.), no. 37714/03, 5 October 2010).

The first limb of the Government’s objection must therefore be rejected.

As regards the second limb of the objection, the Court observes that the Government’s assertion that the applicant had at his disposal another procedure - a claim for a declaration or a claim under section 108 of the Property Act 1951 - which would have enabled him to obtain a proper judicial determination of his alleged entitlement to the items seized from the safe is inextricably linked to the merits of his complaint that, because of the defects of the judicial review proceedings, he was not able to obtain such a determination in line with the requirements of Article 6 § 1 of the Convention. The second limb of the Government’s objection must therefore be joined to the merits.

(b) Compatibility ratione materiae of the complaint under Article 1 of Protocol No. 1

In as much as the Government claimed that Article 1 of Protocol No. 1 was not applicable because the applicant had failed to prove that he had title to the items seized from his safe, the Court considers that in the present case any issues related to the complaint’s compatibility ratione materiae with the provisions of the Convention or the Protocols thereto are more appropriately addressed at the merits stage (see, mutatis mutandis, Maggio and Others v. Italy, nos. 46286/09, 52851/08, 53727/08, 54486/08 and 56001/08, § 36, 31 May 2011, and Valkov and Others v. Bulgaria, nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, § 75, 25 October 2011).

The Court further considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits of the complaints under Article 6 § 1 of the Convention

The Court is of the view that the public prosecutor’s decision of 11 February 2004 amounted to a determination of a civil right of the applicant. By forfeiting the seized items, whose return the applicant claimed, on the ground that the applicant’s assertion that those items were his had not been made out and that they were to be considered as abandoned property (see paragraphs 19, 33-35 and 37 above), the prosecutor effectively determined a dispute relating to the applicant’s property rights (see Air Canada v. the United Kingdom, 5 May 1995, § 56, Series A no. 316-A, and Saccoccia v. Austria (dec.), no. 69917/01, ECHR 2007-VIII (extracts), concerning forfeitures; Vasilescu, cited above, § 39, concerning the retention of seized items; and Zlínsat, spol. s r.o. v. Bulgaria, no. 57785/00, § 72, 15 June 2006, concerning the determination of civil rights by a prosecutor; and contrast Dogmoch v. Germany (dec.), no. 26315/03, 18 September 2006, and Dassa Foundation and Others v. Liechtenstein (dec.), no. 696/05, 10 July 2007, concerning the provisional freezing of assets with a view to their forfeiture). Article 6 § 1 of the Convention therefore applies under its civil limb.

The prosecutor was not a tribunal: he was conducting the criminal proceedings against the applicant; in deciding to forfeit the items he acted of his own motion; and his decision was not attended by the procedural safeguards normally associated with the functioning of a tribunal (see, mutatis mutandis, Zlínsat, spol. s r.o., cited above, §§ 74-79). His order should therefore have been subject to review by a judicial body having full jurisdiction and complying with the requirements of Article 6 § 1 (ibid., §§ 73 and 80). Indeed, it was reviewed by a court (see paragraph 21 above). The issue, however, is whether the proceedings before that court complied in all respects with Article 6 § 1 of the Convention, especially seeing that such proceedings were in principle not intended to determine a civil right of the person concerned, their main object being to review the lawfulness of the prosecutor’s decision to discontinue the criminal proceedings against him or her (see paragraphs 37 and 38 above).

The Court considers that those proceedings fell short of the requirements of that provision in two respects.

First, the Plovdiv Military Court, which was acting in the exercise of its powers under Article 237 §§ 3 and 4 of the Code of Criminal Procedure 1974 (see paragraphs 21 and 37 above), examined the application for judicial review of the prosecutor’s decision on the papers, without holding a hearing. Since Article 237 § 4 expressly provided that the case was to be examined in private, there is no question of the applicant having waived his right to a hearing (see Saccoccia v. Austria, no. 69917/01, § 72, 18 December 2008, and contrast Zumtobel v. Austria, 21 September 1993, § 34, Series A no. 268-A) and no possibility for the court to opt for one (see Martinie v. France [GC], no. 58675/00, § 43 in limine, ECHR 2006-VI, and contrast Jussila v. Finland [GC], no. 73053/01, § 48, ECHR 2006-XIII).

The Court has had occasion to emphasise that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1 of the Convention, and that this public character protects litigants against the administration of justice in secret with no public scrutiny and is one of the means whereby confidence in the courts can be maintained (see Saccoccia, cited above, § 70, with further references). The Court has also held that the right to a public hearing under Article 6 § 1 entails the right to an oral hearing unless there are circumstances that justify dispensing with one (ibid., § 71, with further references).

It must therefore be determined whether there were in the present case circumstances that could dispense the Plovdiv Military Court from holding a hearing. The character of those circumstances essentially comes down to the nature of the issues to be decided by the national court (ibid., § 74 in limine). Thus, a hearing may not be required where there are no issues of credibility or contested facts which necessitate a hearing and the court may fairly and reasonably decide the case on the basis of the parties’ submissions and other written materials (ibid., § 72, with further references).

It can hardly be said that this was so in the present case, for several reasons. First, the case essentially revolved around a contested issue of fact: was there enough evidence that the applicant was the owner of items that had been seized from the safe and whose return he claimed. Secondly, the determination of that question involved issues of credibility - both the personal credibility of the applicant and the credibility of the witnesses who had made statements before the investigator in relation to that point (see paragraph 17 above). Indeed, in deciding that the applicant had failed to prove his assertion that the items were his, the prosecutor relied heavily on the statements of those witnesses and on the lack of credibility of the applicant’s statements, and in challenging the prosecutor’s findings on this point the applicant requested the re-examination of those witnesses and the examination of a new witness (see paragraphs 19 and 20 above). In those circumstances, the Plovdiv Military Court could not decide the case fairly and reasonably on the basis of the parties’ written submissions and other written materials. It was not therefore dispensed from holding a hearing. It is also important to note in this context that that court was the first and only judicial body before which the case was brought (see Fischer v. Austria, 26 April 1995, § 44, Series A no. 312).

The second - and related - respect in which the proceedings fell short of the requirements of Article 6 § 1 of the Convention concerns the scope of the Plovdiv Military Court’s jurisdiction in relation to the forfeiture. A reading of its decision (see paragraph 21 above) shows that it did not gather fresh evidence and relied almost exclusively on the prosecutor’s findings, even though the applicant expressly contested those findings, requested the re-examination of witnesses and the examination of a new witness, and said that he wished to give further explanations (contrast Fischer, cited above, § 34). This is hardly surprising, since under the Supreme Court of Cassation’s case-law under Article 237 § 3 of the Code of Criminal Procedure 1974, the court reviewing a public prosecutor’s decision to discontinue a criminal investigation could not take evidence and had to decide the case on the basis of the evidence gathered during the investigation (see paragraph 38 above). However, in the circumstances of the present case such limited review cannot be regarded as sufficient in relation to the question whether the forfeiture of the items seized from the applicant’s safe was lawful and justified.

The Court must also examine whether the applicant could have resorted to another procedure in which to obtain a judicial determination - carried out in line with the requirements of Article 6 § 1 of the Convention - of his alleged entitlement to the items seized from the safe. It starts by noting that the Government did not provide any examples in support of their contention that the applicant could have availed himself of a claim for a judicial declaration or a claim under section 108 of the Property Act 1951 (see paragraph 39 above), and did not try to explain how these procedural avenues could have been used in the circumstances of the present case. In so far as it may be deduced from the Bulgarian courts’ case-law under Article 110 of the Code of Criminal Procedure 1974 and Article 113 of the Code of Criminal Procedure 2005, which superseded it but is couched in identical terms, that provision governed only situations where the authorities provisionally retained real evidence in a criminal case because third parties had come forward with claims that they were its rightful owners (see paragraph 35 above). By contrast, in the present case there were no third parties contesting the applicant’s rights to the items seized from the safe. It is therefore unclear against whom he would have directed his claim. In as much as the Government may be taken to submit that it could have been directed against the authorities, the Court observes that the Government have not provided any arguments or examples in support of that contention. It appears that the Bulgarian civil courts refuse to entertain claims under section 108 of the Property Act 1951 brought while the criminal proceedings are still pending, or to allow confiscations to be challenged by way of such claims or claims for a judicial declaration (see paragraph 39 above). The Government have not pointed to any cases in which those courts have scrutinised a public prosecutor’s decision to forfeit items retained as real evidence. The Court is therefore not persuaded that these procedural avenues were open to the applicant.

In view of the above considerations, the Court rejects the second limb of the Government’s objection of non-exhaustion of domestic remedies and holds that there has been a breach of Article 6 § 1 of the Convention.

3. Merits of the complaint under Article 1 of Protocol No. 1

The Court starts by observing that it is not for it to decide whether or not a property right exists under domestic law (see Matos e Silva, Lda., and Others v. Portugal, 16 September 1996, § 75, Reports 1996-IV; Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II; OOO Torgovyi Dom “Politeks” v. Russia (dec.), no. 72145/01, 16 September 2004). In the present case, the question of whether the applicant had a good claim to the items seized from his safe lay at the heart of the dispute between him and the authorities. The instant complaint is thus directly connected with the complaint under Article 6 § 1 of the Convention, in relation to which the Court found that the applicant had not obtained a proper judicial determination of his alleged entitlement to the items. Quite apart from the practical, ethical and internal disciplinary issues arising out of the fact that the applicant appears to have been using State property - the safe box in his office - for purely personal use, the Court cannot speculate as to what would have happened if the case had been heard in keeping with all the requirements of Article 6 § 1 of the Convention, and is therefore dispensed from determining whether the applicant had a possession and from ruling on the complaint based on Article 1 of Protocol No. 1 (see, mutatis mutandis, Glod v. Romania, no. 41134/98, § 46, 16 September 2003; Albina v. Romania, no. 57808/00, § 43, 28 April 2005; Lungoci v. Romania, no. 62710/00, § 48, 26 January 2006; and Yanakiev v. Bulgaria, no. 40476/98, § 82, 10 August 2006).

III. THE LENGTH OF THE CRIMINAL PROCEEDINGS AGAINST THE APPLICANT

The applicant complained that the criminal charges against him had not been determined within a reasonable time. He relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. The parties’ submissions

The Government acknowledged that the criminal case against the applicant had not been very complex. However, they pointed out that it had required the authorities to gather evidence in relation to a number of events stretching over a period of two years. This had made it necessary to identify, track down and interview one hundred and forty-five witnesses, some of whom did not have a known address, and had inevitably led to delays during the preliminary investigation. The applicant had been formally charged only after all witnesses had been interviewed.

The applicant submitted that the search in his office had in effect amounted to the bringing of criminal charges. The proceedings relating to the charge of helping offenders evade justice had come to an end with the decision of the Plovdiv Military Court of 11 March 2004, whereas the proceedings concerning the charges of abuse of office had lasted until 10 March 2008. The length of both proceedings could not be regarded as reasonable within the meaning of the Court’s case-law. They had moreover lasted considerably longer than permissible under Bulgarian law. By the Government’s own admission, the case had not been complex, and the undoubted need to carry out a number of investigative steps could not justify the overall duration of the proceedings.

B. The Court’s assessment

The search of the applicant’s office on 24 September 1999 may be regarded as the bringing of a criminal charge against him (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, §§ 19 and 133, ECHR 2000-VII; Marpa Zeeland B.V. and Metal Welding B.V. v. the Netherlands, no. 46300/99, § 55 in limine, 9 November 2004; and De Clerck v. Belgium, no. 34316/02, § 50, 25 September 2007). However, since the search took place during an internal inquiry preceding the criminal proceedings, it may be more appropriate to take the date when those proceedings were instituted - 14 February 2000 (see, mutatis mutandis, I.J.L. and Others v. the United Kingdom, nos. 29522/95, 30056/96 and 30574/96, § 131, ECHR 2000-IX). The applicant clearly was aware of them as early as November 2000, and possibly much earlier, and it would therefore not be appropriate to take the later date in 2003, when he was formally charged (see Corigliano v. Italy, 10 December 1982, § 35 in fine, Series A no. 57, and S.H.K. v. Bulgaria, no. 37355/97, § 26, 23 October 2003).

On 7 July 2003 the proceedings were split in two. The charges of helping offenders evade justice were dropped on 11 February 2004, and the applicant’s appeal against the public prosecutor’s decision was rejected on 11 March 2004. The period to be taken into consideration in relation to those charges was therefore at least four years, for a preliminary investigation and proceedings for judicial review of its discontinuance.

The proceedings relating to the charges of abuse of office came to an end when the judgment of the Military Court of Appeal of 29 December 2006 became final (see paragraph 30 above), which, in the absence of appeals on points of law, probably happened shortly after it was handed down. The ensuing proceedings for re-opening before the Supreme Court of Cassation (see paragraph 31 above) cannot be taken into account because Article 6 § 1 of the Convention does not apply to proceedings for the re-opening of criminal proceedings, since at that stage the person concerned is no longer charged with a criminal offence (see Sonnleitner v. Austria (dec.), no. 34813/97, 6 January 2000). The period to be taken into consideration in relation to those charges was therefore at least six years and two months, for a preliminary investigation and three levels of court.

The Court agrees that the two cases against the applicant bore a certain level of factual complexity because the authorities had to gather evidence in relation to a period of criminal activity spanning over two years, which entailed, inter alia, interviewing a considerable number of witnesses.

It does not appear that the applicant is responsible for any major delays.

No undue delays attributable to the authorities appear to have occurred during the judicial phase of the proceedings concerning the charges of abuse of office. On the contrary, both the Plovdiv Military Court and the Military Court of Appeal dealt with the case very quickly, taking respectively about four, nine and two months, and the proceedings before the Supreme Court of Cassation took less than a year (see paragraphs 26-30 above). It is true that the same cannot be said of the preliminary investigation, which lasted about four years in relation to the charges of abuse of office and about three years and four months in relation to the charges of helping offenders avoid justice. Nevertheless, it cannot be overlooked that most of that delay appears to have been due to the need to track down and interview a considerable number of witnesses, some of whom were abroad (see paragraphs 12-14 above). In view of that, and bearing in mind the overall duration of the proceedings, the Court does not consider that their length can be regarded as unreasonable.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant complained that the reason for the forfeiture of the items seized from his safe had been the fact that he had failed to prove the origin of the items. He relied on Article 6 § 2 of the Convention.

The Court observes that the forfeiture came at a time when the prosecuting authorities decided to drop the charges against the applicant, and was entirely based on his failure to produce sufficient proof that he was the owner of the items in issue. Thus, it was not intended as a sanction and did not carry any implication of guilt. It was not a result of the applicant’s prosecution and conviction (contrast Phillips v. the United Kingdom, no. 41087/98, ECHR 2001-VII), nor was it ordered because the forfeited items were deemed to have been unlawfully acquired (contrast Raimondo v. Italy, 22 February 1994, § 29, Series A no. 281-A; Arcuri and Others v. Italy (dec.), no. 52024/99, 5 July 2001; and Riela and Others v. Italy (dec.), no. 52439/99, 4 September 2001) or intended for use in illegal activities (contrast Butler v. the United Kingdom (dec.), no. 41661/98, 27 June 2002; Yildirim v. Italy (dec.), no. 38602/02, ECHR 2003-IV; and Webb v. the United Kingdom (dec.), no. 56054/00, 10 February 2004). In any event, in all of those cases the Court found that Article 6 was not applicable under its criminal limb.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

The applicant further complained that, in the absence of formal charges against him in the proceedings concerning the suspicion of helping offenders evade justice, he had not been able to enjoy the guarantees afforded to a person charged with a criminal offence. He relied on Article 6 § 3 of the Convention.

The Court observes that those proceedings were discontinued (see paragraph 19 above). According to its established case-law, a person may not claim to be a victim of a violation of his or her right to a fair trial under Article 6 of the Convention which, according to him or her, took place in the course of proceedings in which he or she was acquitted or which were discontinued (see, among other authorities, Osmanov and Yuseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003).

It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

Lastly, the applicant complained that in the absence of formal charges, Article 237 § 3 of the 1974 Code of Criminal Procedure had not given him the possibility to seek judicial review of the discontinuance of the criminal proceedings against him. He relied on Article 13 of the Convention.

The Court observes that although the applicant was not formally charged and was thus as a matter of law not entitled to seek judicial review of the prosecutor’s decision, his legal challenge to that decision was in fact examined by the court and dismissed on the merits (see paragraph 21 above). According to the Court’s case-law, the provisions of domestic law must not be examined in the abstract but as they were applied to the applicant (see Vasilescu, cited above, § 39). In any event, it is not necessary to examine separately that complaint, because the proceedings for judicial review of the prosecutor’s decision were already examined by reference to Article 6 § 1 of the Convention (see paragraphs 63 and 64 above).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant claimed 10,000 euros (EUR) in respect of the non-pecuniary damage flowing from the alleged breaches of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in relation to the seized and forfeited items. He submitted that although he had an arguable claim that the items in issue were his, he could not expect the Court to determine that question in the place of the national courts. On the other hand, he had been unable to obtain a determination of that point in fully blown judicial proceedings at national level. This had caused him to feel powerless and resentful.

The applicant also claimed EUR 8,000 in respect of the alleged breach of his right under Article 6 § 1 of the Convention to have the criminal charges against him determined within a reasonable time.

The Government submitted that the claims were exorbitant. In their view, any award made by the Court had to take into account the nature of the breaches found by it, and the standard of living in Bulgaria, and be commensurate to the awards made in similar cases.

The Court considers that the applicant must have suffered non-pecuniary damage as a result of not being given a proper opportunity to challenge the forfeiture of the items found in his safe and of the excessive length of the criminal proceedings against him. Taking into account the particular circumstances of the case and the awards made in previous similar cases, and ruling on an equitable basis, as required under Article 41, the Court awards him EUR 2,400, plus any tax that may be chargeable.

The Court also considers it necessary to point out that a judgment in which it finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Lungoci, § 55, and Yanakiev, § 89, both cited above). The most appropriate form of redress in cases where an applicant has not had access to a tribunal in breach of Article 6 § 1 of the Convention is, as a rule, to re-open the proceedings in due course and re-examine the case in keeping with all the requirements of a fair trial (see Lungoci, § 56, and Yanakiev, § 90, both cited above).

B. Costs and expenses

The applicant sought reimbursement of EUR 2,613.20 incurred in fees for thirty-two hours and fifty minutes of work by his lawyers on the Strasbourg proceedings, at EUR 80 per hour. He also sought reimbursement of EUR 9 spent on postage, EUR 8 spent on office supplies, EUR 10 spent on photocopying of documents, and EUR 96.41 spent on the translation of his observations and claims. He submitted a fee agreement, a time-sheet, a translation bill, postal receipts, and a declaration that he agreed that any costs and expenses awarded by the Court in excess of EUR 250 be paid directly to his lawyers.

The Government contested the hours billed by the applicant’s lawyers as well as the rates charged by them, which in the Government’s view were unreal and far above the usual rates charged by counsel in Bulgaria. They also submitted that the claim for other expenses could be allowed only in so far as supported by documents.

According to the Court’s case-law, costs and expenses claimed under Article 41 of the Convention must have been actually and necessarily incurred and reasonable as to quantum. When considering a claim in respect of costs and expenses for the proceedings before it, the Court is not bound by domestic scales or standards (see, among other authorities, Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, §§ 123 and 125, 25 November 2010).

Having regard to the materials in its possession and these considerations, and noting that part of the application was declared inadmissible, the Court finds it reasonable to award the applicant the sum of EUR 1,000, plus any tax that may be chargeable to him. EUR 250 of that amount is to be paid to the applicant’s widow and two children, and the remainder to his legal representatives.

C. Default interest

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Joins to the merits the second limb of the Government’s objection of non-exhaustion of domestic remedies and declares the complaints concerning the fairness of the proceedings for judicial review, the lack of a hearing in those proceedings and the alleged interference with the applicant’s possessions admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention in that the applicant did not have available to him a procedure allowing him to obtain proper judicial review, entailing a public hearing, of the prosecutor’s decision to forfeit the items seized from the safe, and rejects in consequence the second limb of the Government’s objection of non-exhaustion of domestic remedies;

3. Holds that there is no need to examine the complaint under Article 1 of Protocol No. 1;

4. Holds

(a) that the respondent State is to pay the applicant’s widow and two children jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, EUR 750 (seven hundred and fifty euros) of which is to be paid into the bank account of the applicant’s legal representatives, and the remainder, EUR 250 (two hundred and fifty euros), to the applicant’s widow and two children;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 12 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Ineta Ziemele
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> DIMITAR KRASTEV v. BULGARIA - 26524/04 - HEJUD [2013] ECHR 139 (12 February 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/139.html Cite as: [2013] ECHR 139