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Asenov v. Bulgaria
The applicant, Traicho Assenov, is a 35-year-old Bulgarian national who
lives in Sofia.
On 22 December 1994 he was charged with conspiring to break into premises
belonging to the water board to steal tools and machinery. He was detained
pending trial on the order of an investigating officer. A series of bail
applications made by the applicant were dismissed on the ground that his
detention was mandatory, as other criminal proceedings were pending against
him.
In September 1997 Sofia District Court granted the applicant bail conditional
on his providing security in the sum of 100,000 levs (the equivalent of
EUR 49.50). However, he failed to pay the sum and remained in custody.
Subsequently, the district court twice refused to hear further applications
for his release, on the grounds that, although he remained in custody,
technically he was no longer in detention pending trial but under an obligation
to pay the security.
On 9 February 1998 Sofia District Court ordered the applicant's release
under supervision. However, the prison authorities were unable to release
him as the file reference was incorrect. On 9 April 1998 the district
court sentenced the applicant to a year's imprisonment. He was released
on 13 April 1998. On 22 February 1999 he was acquitted on appeal, on the
grounds that there had been insufficient evidence to convict him.
The applicant complained of a violation of Article 5 §§ 1, 3 and 4 (right
to liberty and security) on the grounds that he had not been brought promptly
before a judge and that the length of his detention pending trial had
been unreasonable. He also complained that he had been deprived of a remedy
to have the lawfulness of his detention decided and that he had not been
released on 9 February 1998. Lastly, he complained under Article 6 § 1
(right to a fair trial within a reasonable time) of the length of the
proceedings.
The Court noted that it had previously found, in cases concerning the
system of pre-trial detention that had existed in Bulgaria until 1 January
2000, that investigating officers and public prosecutors could not be
considered sufficiently independent and impartial for the purposes of
Article 5 § 3 of the Convention to order or approve pre-trial detention.
It therefore held unanimously that there had been a violation of Article
5§3 as regards the applicant's right to be brought before a judge
or other officer authorised by law to exercise judicial power.
The Court further noted that the applicant had remained in detention pending
trial for three years, one month and 18 days. Since the national authorities
had failed to give relevant and adequate reasons to justify detention
for such a lengthy period, the Court held unanimously that there had also
been a violation of Article 5§3 on that account.
The Court noted that the district court had twice refused to hear applications
by the applicant for his release on the ground that, although he remained
in custody, technically he was no longer in detention pending trial but
under an obligation to pay a sum of money. It found that this had deprived
the applicant of the right to have the lawfulness of his detention decided
and held unanimously that there had been a violation of Article 5§4.
Further, although the district court had ordered the applicant's release
on 9 February 1998, he had remained in custody for a further 63 days until
13 April 1998. The Court found that there could be no justification for
the delay and held unanimously that there had been a violation of Article
5§1.
Lastly, as regards the length of the two sets of proceedings, the Court
noted that the first had taken four years and two months and the second
two years and ten months. Finding that those periods were excessive in
the circumstances of the case, the Court held unanimously that there had
been a breach of the "reasonable-time" requirement of Article
6 § 1 in both sets of proceedings.
The Court awarded Mr Assenov EUR 7,000 for non-pecuniary damage and EUR
2,500 for costs and expenses. (The judgment is available only in French.)
Mihailov v. Bulgaria
The applicant, Boris Kostov Mihailov, is a Bulgarian national who was
born in 1933 and lived in Sofia. He died on 16 April 2001. His son and
daughter, Kostik Borisov Mihailov and Eleonora Borisova Mihailova, continued
the proceedings on their father's behalf.
On 27 November 1989 the Labour?Expert Medical Commission (LEMC) specialising
in pulmonary diseases diagnosed the applicant as suffering from asbestosis
and various other diseases and classified his disability as second degree.
The applicant's health deteriorated and on 21 May 1998 another LEMC reclassified
his disability as first degree, as he needed another person's assistance.
On 18 June 1998 the Central Labour?Expert Medical Commission at the Ministry
of Health overturned the decision of 21 May 1998 again classifying the
applicant's disability status as second degree. Mr Mihailov appealed to
the Supreme Administrative Court, arguing that the reclassification affected
the amount of disability pension to which he was entitled. On 6 October
1998 a three?member panel of the Supreme Administrative Court found that
the decision was not subject to judicial review and declared the appeal
inadmissible.
Mr Mihailov complained about the Supreme Administrative Court's refusal
to examine his appeal, relying on Article 6 § 1 (right to a fair hearing
within a reasonable time) of the European Convention on Human Rights.
The European Court of Human Rights held that the commissions could not
be regarded as tribunals as they did not satisfy a series of procedural
and structural guarantees. It therefore found that their decisions should
have been subject to review by a judicial body with full jurisdiction.
However, the Court noted that the Supreme Administrative Court expressly
refused to examine the applicant's appeal against the decision of the
CLEMC of 18 June 1998, citing the provisions of several statutory instruments,
which apparently excluded judicial review of such decisions. Neither that
court in its reasoning, nor the Government in their observations, had
sought to justify this restriction on the applicant's right of access
to a court. It was noteworthy in that connection that, only a month later,
the Supreme Administrative Court had changed its case-law and started
examining such appeals. The Court therefore found that there had been
a violation of Article 6§1 of the Convention.
The Court awarded the applicant's heirs 2,000 euros (EUR) for non-pecuniary
damage and EUR 950 for costs and expenses.
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