CHOBAN v. BULGARIA
Inadmissible
Christos Rozakis
The applicant, Mr Roman Nikolaevich Choban, is a Ukrainian national who was born in 1958 and lives in Mamaevtsi, the Chernivtsi Region, Ukraine. The applicant is represented by Mr S. Goncharenko, a lawyer practising in Kiev, Ukraine. The Bulgarian Government are represented by Ms M. Kotzeva, coagent, of the Ministry of Justice. The Ukrainian Government, who participate in the proceedings as a third party (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), are represented by their Agent, Ms Z. Bortnovska. The facts of the case, as submitted by the parties, may be summarised as follows. At about 6 a.m. on 10 January 1995 the applicant, Mr Vasilii Savchuk and Mr Viktor Savchuk, Ukrainian nationals on their way from Ukraine to Turkey, crossed the Bulgarian border at Rouse, on the Danube river. They were carrying large amounts of cash, because they intended to purchase goods in Istanbul and resell them in Ukraine. The applicant submits that they declared the money to the customs authorities as follows: Mr Vasilii Savchuk – 29,500 United States dollars (USD), the applicant – USD 13,017, and Mr Viktor Savchuk – nil. However, it seems that later only one customs declaration was found, in which Mr Vasilii Savchuk had declared USD 29,500. The applicant further submits that after the three got out of the customs he gave USD 2,460 to Mr Vasilii Savchuk as prepayment for the transportation costs of the goods they intended to buy in Turkey and USD 1,240 to Mr Viktor Savchuk as prepayment for his help for the purchasing of the goods. After that the three hid all the money in the minibus in which they were travelling. Two hours later, at about 8 a.m., when the three were approximately eighty kilometres south of Rouse, near Veliko Tarnovo, an armed gang, some of which were dressed as police officers, stopped the minibus, pretending to carry out a routine police check. They hit Mr Vasilii Savchuk several times in the head and, after he tried to run, shot him dead. Mr Viktor Savchuk was also hit several times in the head. The applicant was shot in the thigh and later hit in the head. The applicant submits that the robbers pulled a bag hanging around his neck and took it away. According to him, his copy of the customs declaration in which he had declared the USD 13,017 at the Rouse Customs was in that bag. The robbers were not able to find the money hidden in the minibus and left the scene. The police arrived approximately half an hour later and the applicant and Mr Viktor Savchuk were taken to a hospital. Later they returned to Ukraine. A criminal investigation was opened into the incident. On 12 January 1995 an investigator searched the minibus in the presence of the applicant, an expert and two certifying witnesses, and seized the money which was hidden there as evidence in the pending criminal proceedings against the alleged robbers. The total amount found was USD 42,517. According to the declarations of the applicant and Mr Viktor Savchuk, it broke down as follows: USD 31,960 belonging to the deceased Mr Vasilii Savchuk, USD 1,240 belonging to Mr Viktor Savchuk, and USD 9,317 belonging to the applicant. The investigator drew up a record which was signed by himself, the applicant, Mr Viktor Savchuk and two certifying witnesses. The applicant submits that when he was released from hospital several weeks later, he requested the investigator to return the money. However, the investigator refused, stating that applicant had imported the money into Bulgaria without declaring them at the border, because the applicant's customs declaration was missing. On an unspecified date in February or March 1995 the applicant, Mr Viktor Savchuk and Mr Vasilii Savchuk's widow requested from the Veliko Tarnovo Regional Prosecutor's Office, which was supervising the investigation, to return the money seized as evidence. In a decree of 29 March 1995 that Office refused. Their lawyer appealed to the Chief Prosecutor's Office. In a decree of 31 March 1995 the Chief Prosecutor's Office ordered that USD 29,500 be handed over to Mr Vasilii Savchuk's widow, because there was no doubt about their owner and about the fact that they had been duly declared upon Mr Vasilii Savchuk's entry in Bulgaria. It found that the remaining USD 13,017 could not be returned, because the money had been hidden in the minibus and there was no declaration for its importing. On the one hand, this made it impossible to determine who was its owner, and, on the other, whether it had been declared upon entry in Bulgaria, as required by the Regulation on Importing and Exporting of Currency Valuables of 1994, which made it an administrative offence to not declare currency at the border. The prosecution authorities were not competent to rule on this matter and therefore the currency was to be turned over to the Rouse Customs. A copy of the decree was sent to the lawyer who was representing the applicant and Mr Vasilii Savchuk's widow in the criminal proceedings against the alleged robbers. From the applicant's submissions it transpires that he was made aware of that decree. Pursuant to that decree, in August 1995 the Regional Investigation Service in Veliko Tarnovo turned the money over to the Rouse Customs. Apparently thereafter the customs authorities opened proceedings against the applicant for having failed to declare the money at the border, as required by section 36 of the Currency Transactions and Currency Control Act of 1969 (“the CTCCA”), and as a result the money was forfeited by a decision of 19 February 1996. It is unclear whether the applicant was notified about the proceedings. He did not seek judicial review of the decision of 19 February 1996. The file containing all documents relating to these proceedings was destroyed on 21 October 2003, because of the expiry of the timelimit for its archiving at the Rouse Customs. Approximately ten days after the incident of 10 February 1995 most of the alleged attackers who had robbed the applicant, Mr Vasilii Savchuk and Mr Viktor Savchuk were identified and arrested. They were charged with having committed numerous armed robberies during the period 199495. The investigation was completed in August 1995 and in October 1995 an indictment was submitted to the Veliko Tarnovo Regional Court against twelve persons. The Veliko Tarnovo Regional Court held hearings on 11 December 1995, 3-10 January, 3-5 June and 2-12 September 1996. The applicant did not appear in person, but was represented by a lawyer retained by him and Mr Viktor Savchuk. Numerous witnesses and expert witnesses were heard and other evidence admitted. On an unspecified date during the preliminary investigation or at the first hearing on 11 December 1995 the applicant made a civil claim against the accused, claiming nonpecuniary damages. In a judgment of 12 September 1996 the Veliko Tarnovo Regional Court found all twelve accused guilty of numerous robberies and related offences and sentenced them to various terms of imprisonment. It rejected the applicant's claim. The prosecution appealed to the Supreme Court. So did all but one of the accused. On 19 September 1996 the applicant's and Mr Viktor Savchuk's lawyer also appealed, arguing, inter alia, that the applicant's claim had been improperly rejected. The Supreme Court held hearings on 14 February, 25 April and 27 June 1997. In 1998 the judicial system in Bulgaria was reformed. As a result, on 1 April 1998 the case was transferred to the newly created Veliko Tarnovo Court of Appeals, which had henceforth jurisdiction to hear appeals against judgments of the Veliko Tarnovo Regional Court. A hearing listed for 11 January 1999 failed to take place, because the applicant and Mr Viktor Savchuk had not been duly summoned. A hearing took place on 8 February 1999. The applicant, who had been duly summoned for it by letter rogatory, did not show up. He notified the court by telex that he did not wish to pursue the appeal. Accordingly, the court discontinued the proceedings relating to the applicant's civil claim. Its decision was not subject to appeal. On 9 February 1999 the Veliko Tarnovo Court of Appeals quashed the Veliko Tarnovo Regional Court's judgment, noting that two of the accused had been represented at the preliminary investigation stage by the same lawyer despite an obvious conflict of interest. In the court's view, that fact had vitiated the entire procedure and warranted the remitting the case to the preliminary investigation stage. The proceedings are still pending. For a more detailed account of their unfolding after 9 February 1999 see Vasilev v. Bulgaria ((dec.), no. 59913/00, 14 December 2004). The applicant avers that in 199599 he wrote letters requesting the returning of the money to the Rouse Customs, the Veliko Tarnovo Regional Court, the Veliko Tarnovo Regional Prosecutor's Office and the Supreme Court. He further avers that he received no reply. However, he does not provide any evidence to corroborate these averments. The applicant submits that in 199596 he travelled seven times to Bulgaria to give evidence in the criminal proceedings against the alleged robbers. It does not seem that on any of these occasions he inquired about what had become of the money at the Rouse Customs. On 24 April and 23 September 1997 and 19 November 1998 the Ministry of Justice of Ukraine, acting pursuant to requests by the applicant, sent letters to the Ministry of Justice of Bulgaria, inquiring why the applicant's money had not been returned to him. In a letter of 4 March 1998, which was sent to the Ministry of Justice of Bulgaria and apparently later transmitted to the Ukrainian authorities, the Bulgarian Supreme Court of Cassation stated, inter alia, that the USD 13,017 had not been returned to the applicant by the authorities dealing with the criminal case, because it was unclear who its owner was, and because it had not been declared upon the applicant's entry in Bulgaria and could have been the object of a customs offence. This was apparent from the Chief Prosecutor's Office's decree of 31 March 1995. A copy of the decree was enclosed. The applicant avers that he also contacted various other bodies in Ukraine. In particular, he addressed the Ministry of Foreign Affairs, which in turn contacted the Bulgarian embassy in Kiev. However, he does not provide any evidence to corroborate this averment. Article 108 § 1 of the Code of Criminal Procedure provides that a piece of physical evidence seized in the context of criminal proceedings is held by the authorities until the conclusion of the proceedings. Paragraph 2 of that Article provides that items seized as evidence may be returned to their owners prior to the conclusion of the proceedings only if this would not hamper the elucidation of the facts of the case. Section 36 of the CTCCA, as in force at the material time, provided that the importing and exporting of foreign currency was to be effected in a manner specified by the Council of Ministers and the Bulgarian National Bank. Section 7 of the Regulation on the Importing and Exporting of Currency Valuables of 1994, made by the Council of Ministers and the Bulgarian National Bank pursuant to section 36 of the CTCCA, as in force at the relevant time, provided that foreign currency, whose value was above USD 1,000 and which was carried by persons crossing the border, had to be declared to the customs authorities. Any failure of abide by the provisions of the Regulation constituted an administrative offence (section 11 of the Regulation and section 37 of the CTCCA). The Administrative Offences and Penalties Act of 1969 (“the AOPA”) defines administrative offences and penalties and governs the procedure for punishing such offences. The possible penalties are a reprimand, a fine, or occupational disbarment (section 13 of the AOPA). In addition, the things which constitute the object of an offence may be forfeited if they belong to the offender and if the respective statute so provides (section 20(3) of the AOPA). The authority competent to impose an administrative penalty is the administrative body which is responsible for the enforcement of the statute or the statutory instrument defining the offence, or the administrative body expressly authorised to do so under the respective statute or statutory instrument (section 47(1) and (2) of the AOPA). The proceedings start with the drawing up of a report, a copy of which has to be served on the alleged offender, who has the right to comment on it (sections 43(4), 44(1) and 52(2) of the AOPA). A copy of the decision imposing an administrative penalty must likewise be served on the offender (section 58(1) of the AOPA). If the offender cannot be found at the address specified by him and his new address is unknown, a note to this effect is made on the decision and it is deemed served as of the date of the note (section 58(2) of the AOPA). The decision is subject to appeal before the competent district court (section 59(1) of the AOPA) within seven days after it has been served on the offender (section 59(2) of the AOPA). The court may affirm, vary or quash the decision (section 63(1) of the AOPA).