European Court of Human Rights judgment concerning Bulgaria

Press release issued by the Registrar

Chamber judgments concerning Bulgaria

Two violations of Article 5 §3 Violation of Article 5 §4
Violation of Article 6 § 1 (length)

Pekov v. Bulgaria (application no 50358/99)

The applicant, Rumen Genkov Pekov, is a Bulgarian national who was born in 1959. He was Chairman of the Board of both a popular bank and the Union of the Popular Banks.

In mid-1995 criminal proceedings were opened against him in relation to his duties at the popular bank. In August 1995 he was charged with having engaged in banking business without the requisite licence and in January 1996 he was charged with misappropriating funds.

In May 1996 the investigator in charge of the applicant’s case ordered his pre-trial detention as, among other things, he had failed to appear for questioning. That decision was confirmed by a prosecutor of Burgas Regional Prosecutor’s Office ten days later.

After a nation-wide search the applicant was arrested on 5 July 1996. His appeal to the prosecution authorities against his pre-trial detention was rejected on the ground that, since he had been charged with a “serious intentional offence”, detention was mandatory.

On 2 October 1996, in view of his ailing health, the prosecutor’s office released the applicant from pre-trial detention and placed him under house arrest. He was released from house arrest on 3 July 2003.

The applicant complained that he had not been brought before a judge or judicial officer and that there had been insufficient reasons to justify his deprivation of liberty. He also complained that he could not obtain a proper judicial review of his pre-trial detention or challenge the lawfulness of his house arrest before a court. He further complained that the criminal proceedings against him had been unreasonably long. He relied on Articles 5 (right to liberty and security) and 6 § 1 (right to a fair trial within a reasonable time) of the European Convention on Human Rights.

The European Court of Human Rights found that neither the investigator, nor the prosecutor who ordered the applicant’s detention were sufficiently independent and impartial, in view of the practical role they played in the investigation and the prosecution, and the prosecutor’s potential participation as a party to the criminal trial. The Court found unanimously that there had been a violation of the applicant’s right under Article 5 § 3 to be brought before a judge or other officer authorised by law to exercise judicial power.

The Court noted that on 1 January 2000 the legal provisions applicable to house arrest in Bulgaria were amended and that the applicant would have been able to challenge his detention before a court. The Court therefore only took into consideration the applicant’s deprivation of liberty prior to that date. The Court found that the authorities had failed to justify his continued deprivation of liberty for the period of three years and almost six months. It held unanimously that there had been a breach of the applicant’s right to trial within a reasonable time or release pending trial under Article 5 § 3.

The Court observed that the applicant had not brought proceedings to challenge his pre-trial detention. His allegations about the scope of the judicial review of this detention were therefore a matter of speculation. The Court could not conjecture how the proceedings which the applicant never brought would have unfolded. It therefore held unanimously there had been no violation of the applicant’s rights under Article 5 § 4 in respect of the period which he spent in pre-trial detention.

Concerning the availability of a judicial remedy during the applicant’s subsequent house arrest, the Court noted that until 1 January 2000 there existed no provision under domestic law which established a procedure whereby an individual could apply to a court to review the lawfulness of his or her house arrest. The Court therefore found unanimously that there had been a violation of Article 5 § 4 as regards the period which the applicant spent under house arrest prior to 1 January 2000.

The Court noted that the criminal proceedings had started in August 1995 and that they were still pending. The Court found that their length, amounting to at least nine years and nine months failed to satisfy the reasonable time requirement. It accordingly held unanimously that there had been a violation of Article 6 § 1.

The Court awarded Mr Pekov EUR 6,500 in respect of non-pecuniary damage and EUR 1,500 for costs and expenses. (The judgment is available only in English.)