ZLATEV v. BULGARIA
Inadmissible
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Zlati Svetoslavov Zlatev, is a Bulgarian national who was born in 1946 and lives in Aksakovo. He was represented before the Court by Mr B. Tsvetkov, a lawyer practising in Varna. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date a preliminary investigation for robbery was opened against the applicant. He was questioned as a suspect on an unspecified date and a search of his apartment was conducted on 23 and 24 October 1991. On an unspecified date the preliminary investigation was suspended. The preliminary investigation was resumed on 28 March 1996 and then again suspended on 30 April 1996. The preliminary investigation against the applicant was again resumed on 23 February 1999. On an unspecified date in 1999 it was discontinued in respect of the applicant and was transformed as being against an unknown perpetrator. The applicant was never formally charged with an offence. In the course of the search of the applicant's apartment on 23 and 24 October 1991 the investigating authorities seized various items, such as a helm, an electric sander, a car radio, a stereo, thirty-two turbot fishing nets, three goby fishing nets, five bluefish and shad fishing nets, two fishing hooks, a car battery, six life jackets, a leather bag, nine signal rockets and a reversible boat coupling. According to the applicant the items were either new or of high quality. The seized items were held by the investigating authorities as physical evidence in the preliminary investigation against the applicant. On the instructions of the Varna district public prosecutor's office of an unspecified date part of the seized items were returned to four individuals who had reported them stolen and from whom they had apparently been stolen. The items were returned to their owners only after the authorities had verified the owners' claims on the basis of ownership documents and identification checks. The said transfers were effected on 27 November 1991, 8 and 16 January 1992 and 12 April 1996. On 17 March 1999 the Varna regional public prosecutor's office invited the applicant to receive the remainder of the items in their possession. He refused to accept them as he claimed that most of the items were either missing, had been replaced with similar such of lower quality or had become unusable for their intended purpose. On 4 June 1999 the Varna Regional Investigation Service invited the applicant to receive the helm. It is unclear whether he did so. On an unspecified date in 1999 the applicant initiated an action for damages under section 2 (2) of the State Responsibility for Damage Caused to Citizens Act of 1988 (renamed on 12 July 2006 to the State and Municipalities Responsibility for Damage Act: “the SRDA”). The applicant sought compensation in the amount of 22,453 Bulgarian levs (approximately 11,514 euros) for the missing, lost or destroyed items seized from him as physical evidence in the course of the preliminary investigation against him which had subsequently been terminated. The applicant argued that in so far as he would have been entitled to compensation for an unlawful indictment, the preliminary investigation against him should also be considered to have been unlawful and subject to compensation, including, in particular, the damage resulting from the conducted search and seizure of his possessions. In a judgment of 17 August 2001 the Varna Regional Court found that the applicant had no right of action under the SRDA against the authorities because he had never been indicted for an offence and, therefore, no liability arose for the investigation and the prosecution authorities under section 2 of the Act. The applicant appealed against this judgment on 21 September 2001 arguing that the preliminary investigation against him constituted a de facto indictment as he had to endure the negative effects of an ongoing criminal investigation against him, such as the search and seizure of his possessions. In a judgment of 19 February 2002 the Varna Court of Appeal found against the applicant and upheld the lower court's findings that he had no right of action under the SRDA because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in section 2 of the Act. On 19 March 2002 the applicant filed a cassation appeal against the judgment of the Varna Court of Appeal. He argued that the State's liability under the Act arose from the fact that there had been a preliminary investigation against him for robbery, subsequently discontinued, which amounted to having been subjected to unlawful criminal proceedings. In a final judgment of 30 July 2003 the Supreme Court of Cassation found against the applicant and upheld the lower courts' judgments. It also found that the applicant had no right of action under the SRDA because the liability of the investigation and the prosecution authorities arose only in the exhaustively listed instances in section 2 of the Act. In so far as the applicant had never been charged, but had only been questioned as a suspect and then as a witness, the court found that no liability arose for the authorities in question. Moreover, the Supreme Court of Cassation noted that the investigation and the prosecution authorities could also not be held liable under the Act for any of their actions or inactions related to the safekeeping of the seized items. The relevant domestic law and practice have been summarised in the judgments in the cases of Karamitrov and Others v. Bulgaria (no. 53321/99, §§ 29-45, 10 January 2008) and Atanasov and Ovcharov v. Bulgaria (no. 61596/00, §§ 30-42, 17 January 2008).