BOICHINOV v. BULGARIA
Inadmissible
Matti Pellonpää
The applicant is a Bulgarian national born in 1972 and residing in Biala Slatina, the region of Vratsa. The facts of the case as submitted by the parties may be summarised as follows. A. 1. Background  On an unspecified date in 1993, prior to the events in the present case, criminal proceedings were opened against the applicant and three other persons on charges that they had robbed a Ms P. in her presence, taking away 75 fur coats and some other objects. The applicant was detained on remand between 21 October 1993 and 22 February 1994 when he was released on bail. As of 1998 the case was pending for trial, a hearing having been fixed for 2 October 1998. On 22 April 1995 in the area of the village Gabare three persons were shot and killed in their car in what was seen as an internal war between local criminal groups. According to the indictment the applicant and a Mr G. were in a car which was chased by the victims. At some point the two cars stopped, and the applicant, who had bought an automatic gun three weeks before the events, went out and fired the gun to kill all the victims, one after another. At his trial the applicant stated that he was present during the killings but that it had been Mr G. who had shot the victims. 2. The preliminary investigation The applicant did not return home after the above events. On 25 April 1995 he voluntarily appeared at the police in Sofia where he was arrested and transferred to Vratsa. On 27 or 28 April 1995 an investigator (следовател) officially charged the applicant on three counts of murder and ordered his detention on remand. On 27 or 28 April 1995 this decision was confirmed by a prosecutor. Between April and June 1995 the investigator in the applicant’s case heard more than 30 witnesses and 8 medical, ballistic and other experts. Some of the witnesses were examined upon the request of the applicant’s lawyer of 19 May 1995. The investigator also made site visits and conducted an experiment, reconstructing the events of 22 April 1995. The investigator heard the applicant on at least four occasions during this period of time. He also collected other documentary evidence. On 22 June 1995 the investigator requested the competent prosecutor to authorise the continuation of the investigation for another 60 days. By decision of 7 July 1995 the Regional Prosecutor’s Office (окръжна прокуратура) granted the request. On 10 August 1995 the investigator appointed a psychiatric expert to examine the applicant. An expert in physics and chemistry was appointed on 12 October 1995 to analyse traces of gunpowder. The investigator examined the applicant again on 21 November 1995. The applicant requested the collection of additional evidence. On 22 November 1995 the investigator appointed an expert in graphology. On 24 November 1995 the Chief Public Prosecutor’s Office (главна прокуратура) authorised the continuation of the preliminary investigation. On 8 December 1995 the investigator dealt with the applicant’s requests in relation to the collection of evidence in his case. On 13 December 1995 the investigator completed his work on the case and sent it to the Regional Prosecutor’s Office. On 5 January 1996 the Prosecutor’s Office returned the case for further investigation with instructions to charge the applicant also with unlawful possession of arms. On 22 January 1996 the investigator wrote a letter to the Regional Prosecutor’s Office in Vratsa explaining that the applicant insisted on the presence of his lawyer during the investigation and that the lawyer, who was from Sofia, had declined to come to Vratsa on several proposed dates. Finally the lawyer had agreed to come on 4 or 5 February 1996. The additional preliminary investigation was concluded on 12 February 1996. On 22 February 1996 the Regional Prosecutor’s Office submitted an indictment to the Regional Court in Vratsa. By decision of 10 April 1996 the Regional Court fixed a hearing for 28 May 1996. At the hearing on 28 May 1996 the applicant claimed that there had been breaches of procedure and requested that the case be referred for further preliminary investigation. The Court found that there had been procedural violations which necessitated the referral of the case back to the prosecutor. On 5 June 1996 the prosecutor returned the case to the investigator. On 9 August 1996 the Prosecutor’s Office refused the applicant’s request for the replacement of the investigator. On 16 August 1996 the investigator examined one witness. On 18 August 1996 the investigator allowed eight civil plaintiffs to consult the case-file. On 7 October 1996 the applicant was examined by the investigator. On 14 October 1996 the investigator completed his work on the case and sent it to the Regional Prosecutor’s Office. On 23 October 1996 a new indictment was submitted to the Vratsa Regional Court. During the preliminary investigation stage of the proceedings the applicant, who was legally represented, submitted to the investigator and to the prosecution authorities numerous complaints and requests. He complained of the behaviour of the investigator, about the visit arrangements in prison, about the delays in the examination of his case, requested his release and raised other matters. 3. The trial By decision of 15 November 1996 the Court fixed a hearing for 29, 30 and 31 January 1997. On 28 November 1996 the Court inquired with the competent administrative authorities about the address of a witness. On 29 and 30 January 1997, at the hearing, the Court admitted for joint examination six civil claims submitted by relatives of the victims, heard the applicant and 27 witnesses. Some of the witnesses refused to answer certain questions. Counsel for the applicant requested the collection of additional evidence. The hearing was adjourned until 10 March 1997 when the court heard 6 witnesses and 2 experts. The Court again adjourned the hearing because of the failure of certain witnesses to appear and also in view of the request supported by the applicant’s lawyer for the appointment ballistic experts. This was apparently related to the divergence in the testimonies given by the applicant and Mr G. The applicant claimed inter alia that Mr G. had shot one of the victims during the chase, at a moment when the cars had still been in motion, whereas Mr G. claimed that the applicant had shot all the victims from a static position. The hearing resumed on 13 May 1997 when the Court heard the applicant, the experts and 5 witnesses. The Court adjourned the hearing as two witnesses had not appeared. A warrant for the arrest of one of them had been issued, but his whereabouts had remained unknown. On 27 June 1997, acting in camera, the Court ordered the admission in evidence of several objects. The hearing resumed on 9 September 1997. At that hearing Mr G. partially altered his testimony. The Court adjourned the hearing until 6 November 1997. By letter of 23 September 1997 the applicant requested the examination of two additional witnesses. On 6 October 1997 he requested to be examined with the use of a “lie-detector”. This request was refused. On 6 November 1997, at the resumed hearing, the Court heard a police officer who participated at the applicant’s questioning during the first days after his detention and a shepherd, who was an eye-witness of the events. The applicant also gave additional testimony. Two other witnesses did not appear, the efforts to locate one of them having been fruitless. The Court decided that the questioning of one of the witnesses which had not appeared was essential and listed the case for a hearing on 4 March 1998. The Court also accepted the request of the prosecution for the questioning of an anonymous witness. On 4 March 1998 the hearing was adjourned until 6 and 7 May 1998 as the prosecutor had fallen ill and also because he had been unable to secure the attendance of the anonymous witness requested by him. In April 1998 Mr G, the witness who had been with the applicant during the shooting on 22 April 1995, was murdered. According to the applicant, in whose submission Mr G. was the person who had shot the three victims on 22 April 1995, Mr G. found his death when he visited another witness with the intention to threaten him. The Government have not commented. On 6 May 1998 the Court heard one anonymous witness and another witness. The anonymous witness stated, inter alia, that he feared for his life and declined to name certain persons in his testimony. The applicant submits he has discovered the identity of the anonymous witness. The other witness who testified on 6 May 1998 altered his testimony given at the preliminary investigation, explaining that his previous version of the facts had been dictated to him by Mr G. who had threatened him and beaten him on two occasions in 1995.  At the close of the hearing the applicant’s lawyer and the civil plaintiffs requested the examination of additional witnesses. The Court granted these requests and adjourned the hearing until 29 and 30 June 1998, when it was again adjourned. The parties have not substantiated whether the Court examined any evidence at the hearing on 29 and 30 June 1998. The hearing resumed on 28 October 1998. On that date the trial re-commenced as one of the lay judges had passed away and no reserve lay judge had been appointed. On 28 and 29 October 1998 the new composition of the Vratsa Regional Court examined several witnesses and adjourned the hearing. 4. Decisions on the continuation of the applicant’s detention Following the applicant’s detention on remand on 27 April 1995 and until the first indictment his detention was confirmed by the Regional Prosecutor’s Office and by the Chief Public Prosecutor’s Office by decisions dated 7 July 1995, 14 November 1995, 20 November 1995 and 5 January 1996. The decisions of 27 April 1995 and 14 November 1995 stated that there was a danger of absconding, obstructing justice and re-offending. The decision of 20 November 1995 stated that there were no grounds justifying release. The parties have not substantiated the reasoning of the remaining decisions. On 10 April 1996 a judge at the Vratsa Regional Court confirmed the applicant’s detention. Following the referral of the case back to the prosecution authorities, the detention was confirmed by their decisions of 5 June 1996, 8 July 1996 and 6 October 1996. The decision of 5 June 1996 did not contain any reasoning. The decision of 8 July 1996 stated that the applicant’s request to be released for lack of sufficient proof against him was unfounded as his detention was in conformity with the Code of Criminal Procedure. The reasoning of the decisions of 10 April and 6 October 1996 has not been substantiated. During the applicant’s trial his detention on remand was confirmed by the Vratsa Regional Court on 15 November 1996, 21 January 1997, 30 January 1997, 10 March 1997, 13 May 1997, and 9 September 1997. The decision of 21 January 1997 was in the form of a letter which informed the applicant that his detention was lawful as he was detained by decision of the Regional Prosecutor’s Office, which had been subject to appeal. The decision of 30 January 1997 stated that the applicant could not be released in view of the charges against him. The decision of 9 September 1997 stated that the new legislation referred to by the applicant concerned only time-limits on pre-trial detention and was therefore inapplicable. The Court further stated that in the case before it the accusation concerned a serious wilful crime and that therefore there were no grounds for release on bail. The reasoning of the remaining decisions confirming the applicant’s detention has not been substantiated. Some of the above decisions were taken ex officio whereas others were in response to the applicant’s requests for release. During the preliminary-investigation stage of the proceedings he applied for release at least in October 1995, and in July, October and November 1996. Following the commencement of the trial in November 1996 the applicant requested his release in December 1996, in January, March, May, September and December 1997 and in October 1998. The parties have not substantiated the decisions taken on the latter two requests. The minutes of the hearing of 6 May 1998 record the following words of the applicant’s lawyer: “In this respect I would request that ... Mr P. ... be summoned as a witness. I would ask for his summoning through the district police. I would ask for leave to submit later the exact address of this witness. I make all these requests after consultation with my client. With a view to avoid any suspicion about manipulation on his part, he wishes to underline that he does not insist on [release] and for that reason asks that the witnesses be summoned [by the court].” B. Relevant domestic law and practice Provisions of the Code of Criminal Procedure (Наказателно процесуален кодекс), as in force at the relevant time: Section 152 §§ 1 and 2, as in force until 4 June 1995, provided as follows: "(1) Detention on remand shall be imposed [in cases where the charges concern] crimes punishable by ten or more years’ imprisonment or capital punishment. (2) In the cases under the preceding paragraph [detention on remand] shall not be imposed if there is no danger of the accused evading justice or of committing another crime ..." Section 152 §§ 1 and 2, as in force after 4 June 1995, provide as follows: "(1) Detention on remand shall be imposed [in cases where the charges concern] a serious wilful crime. (2) In the cases referred to in paragraph 1 [detention on remand] may not be imposed if there is no danger of the accused evading justice, obstructing the investigation, or committing another crime.” According to Section 93 § 7 of the Penal Code (Наказателен кодекс) "serious" is a crime punishable by more than five years’ imprisonment. The relevant part of Section 152 §§ 3 and 5, as in force between 4 June 1995 and August 1997, provided as follows: “(3) Paragraph 2 shall not apply where other criminal proceedings for [a publicly prosecuted] crime are pending against the accused person, or where [the accused is a recidivist] ... ... (5) The detained person shall immediately be provided with the opportunity to file an appeal to the competent court against his [detention on remand]..." In August 1997 the text of paragraph 3 of Section 152 was replaced by a provision limiting the length of pre-trial detention. These limits do not apply in respect of detention after the commencement of the trial.