CASE OF GANCHEV v. BULGARIA
Preliminary objection allowed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
4. The applicant was born in 1940 and lives in Velingrad. 5. On 11 November 1999 the applicant was arrested and brought before an investigator who decided to remand him in custody on charges of sexual assault allegedly committed against a minor on 20 October 1999, an offence punishable with up to five years' imprisonment under Article 149 § 1 of the Criminal Code. The investigator's decision was confirmed by a prosecutor. 6. On 18 November 1999 the investigator conducted searches in the applicant's home. 7. On 29 March 2000 the applicant was released. 8. In the course of the investigation a number of witnesses, the alleged victim and the applicant were heard and several forensic and medical reports were drawn up. 9. On 5 February 2001 the investigator submitted his conclusions to the prosecutor, proposing that the applicant should be indicted for sexual assault. 10. On 10 April 2001 the District Prosecutor's Office referred the case back to the investigator instructing him to undertake further investigation as to whether the applicant had raped the same girl on 9 November 1999, as alleged by her. 11. Since the alleged victim had changed her address and could not be located, the investigation could not proceed and was suspended on 1 October 2003. 12. In October 2003 the case file was transmitted to the district police in Velingrad with instruction to continue seeking the alleged victim's address. It appears that as of September 2006, the date of the latest communication received from the parties, the investigation remained suspended. 13. The relevant provisions of the Code of Criminal Procedure (“CCP”) concerning decisions on pre-trial detention and the Bulgarian authorities' practice at the relevant time are summarised in the Court's judgments in several similar cases (see, among others, the Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-62, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003XII (extracts)). 14. A legislative amendment that entered into force on 2 June 2003 introduced a possibility for an accused person to request that his case be brought for trial if the investigation has not been completed within two years in cases concerning serious offences and one year in all other cases (Article 239a CCP as in force until April 2006). In accordance with section 140 of the transitory provisions to the 2003 amendment, that possibility applies with immediate effect in respect of investigations opened before June 2003. In April 2006, Article 239a was superseded by Articles 368 and 369 of the new CCP, which have the same wording. 15. The procedure under those provisions is as follows. The accused person must submit a request to the relevant court which has seven days to examine the file. It may refer the case back to the prosecuting authorities or terminate the criminal proceedings. If the case is referred to the prosecutors, they have two months to file an indictment with the trial court or to terminate the proceedings failing which the court is under a duty to terminate the proceedings against the accused person who had filed the request. 16. The 2003 amendment was introduced in Parliament with the reasoning that it was necessary to secure observance of the right to trial within a reasonable time as guaranteed by the Convention.