{"id":21316,"date":"2023-10-17T09:42:32","date_gmt":"2023-10-17T09:42:32","guid":{"rendered":"https:\/\/laweuro.com\/?p=21316"},"modified":"2023-10-17T09:42:41","modified_gmt":"2023-10-17T09:42:41","slug":"case-of-slavkov-and-others-v-bulgaria-36250-12","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=21316","title":{"rendered":"CASE OF SLAVKOV AND OTHERS v. BULGARIA – 36250\/12"},"content":{"rendered":"

The present case concerns the duration of the detention on remand of the first applicant, Mr I. Slavkov. It also concerns the freezing of the three applicants\u2019 assets with a view to their prospective forfeiture as proceeds of crime.<\/span><\/p>\n

\n

THIRD SECTION
\nCASE OF SLAVKOV AND OTHERS v. BULGARIA<\/strong>
\n(Application no. 36250\/12)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n17 October 2023<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Slavkov and Others v. Bulgaria,<\/strong><\/p>\n

The European Court of Human Rights (Third Section), sitting as a Committee composed of:
\nIoannis Ktistakis, President,
\nYonko Grozev,
\nAndreas Z\u00fcnd, judges,
\nand Olga Chernishova, Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the application (no. 36250\/12) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 4 June 2012, by three applicants \u2013 two physical persons and a limited liability company \u2013 whose relevant details are listed in the appended table (\u201cthe applicants\u201d) and who were represented by Mr M. Ekimdzhiev and Ms\u00a0S.\u00a0Stefanova, lawyers practising in Plovdiv;<\/p>\n

the decision to give notice to the Bulgarian Government (\u201cthe\u00a0Government\u201d), represented by their Agent, Ms B. Simeonova from the Ministry of Justice, of the first applicant\u2019s complaint under Article 5 \u00a7\u00a7 3 and\u00a05 of the Convention, as well as the complaint concerning the prolonged freezing of the three applicants\u2019 assets, and to declare inadmissible the remainder of the application;<\/p>\n

the parties\u2019 observations;<\/p>\n

Having deliberated in private on 26 September 2023,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

SUBJECT MATTER OF THE CASE<\/strong><\/p>\n

1. The present case concerns the duration of the detention on remand of the first applicant, Mr I. Slavkov. It also concerns the freezing of the three applicants\u2019 assets with a view to their prospective forfeiture as proceeds of crime.<\/p>\n

2. Mr Slavkov was arrested on 20 October 2008 upon charges of participation in an organised criminal group created for the commission of money laundering, pimping, human trafficking and drug trafficking. He remained in detention until 11 July 2012 when he was released on bail; by that time the criminal proceedings against his group were pending before the first-instance Varna Regional Court. During the period of his detention the first applicant submitted twenty-two requests to be released, which were dismissed by the Varna Regional Court and the Varna Court of Appeal. On many occasions the domestic courts referred to the gravity of the charges against the applicant, the fact that his criminal group had been well-structured and armed and had functioned for some time before being dismantled, his leading position in it and his having \u201cauthority\u201d in criminal circles; all these elements were seen as justifying a risk of the applicant reoffending, absconding or intimidating witnesses. The first applicant\u2019s \u201caggressiveness\u201d in the courtroom was also seen as an indication that he might reoffend or try to tamper with evidence. The domestic courts pointed out that the criminal proceedings were complex, that the hearings were being held at regular intervals, and that substantial delays had been caused by the defence.<\/p>\n

3. In a judgment of 15 January 2013 the Varna Regional Court convicted the first applicant and his co-accused; its finding was that their criminal group had operated between 1996 and 2008. The applicant was sentenced to ten years\u2019 imprisonment. However, the conviction and sentence were quashed by the Supreme Court of Cassation and the proceedings restarted from first instance, where they were still pending at the time of the latest communication from the parties in May 2023.<\/p>\n

4. In the meantime, the Commission for Uncovering Proceeds of Crime (hereinafter \u201cthe Commission\u201d) opened proceedings and in December 2008 applied for the freezing of assets of the three applicants \u2013 Mr Slavkov, his wife and a company controlled by him (see the appended list), with a view to their prospective forfeiture as proceeds of crime. While the Commission could only apply for actual forfeiture after the close of the criminal proceedings, and if the first applicant was convicted, its preliminary investigation already showed that during the period under examination, between 1997 and 2008, Mr Slavkov and his wife had received lawful income equivalent to about 1,517 minimum monthly salaries (on the national courts\u2019 use of such equivalents in similar situation, see Todorov and Others v.\u00a0Bulgaria, nos. 50705\/11 and 6 others, \u00a7 109, 13 July 2021), while the three applicants\u2019 expenses had equalled 6,892 minimum monthly salaries. The Commission was thus of the view that it could be presumed that the assets owned by the applicants at that time, namely two flats in Varna, several cars and shares in several companies, were the proceeds of crime.<\/p>\n

5. In a decision of 13 January 2010 the Varna Court of Appeal froze those assets, save for a flat which was not subject to the freezing request. Injunctions were also imposed on bank accounts of the applicants in which, according to the Government, there were no funds.<\/p>\n

6. Subsequently the applicants applied for the unfreezing of their assets, but their application was dismissed in a final decision of the Varna Court of Appeal of 1 November 2012. The domestic courts held that the continuing criminal proceedings against the first applicant justified the validity of the contested measures, and that at that stage it was impossible to assess the well\u2011foundedness of the prospective forfeiture application.<\/p>\n

7. The applicants\u2019 assets described above remained frozen at the time of the latest communication from the parties in May 2023.<\/p>\n

8. Mr Slavkov complained under Article 5 \u00a7 3 of the Convention of the length of his detention on remand, and under Article 5 \u00a7 5 of the lack of an enforceable right to compensation in that regard. The three applicants complained under Article 1 of Protocol No. 1 of the freezing of their assets; they considered this measure unjustified and excessively lengthy.<\/p>\n

THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n

I. ALLEGED VIOLATIONs OF ARTICLE 5 \u00a7\u00a7 3 and 5 OF THE CONVENTION<\/strong><\/p>\n

9. The Government argued that Mr Slavkov could have claimed compensation under section 2(1)(2) of the State and Municipalities Liability for Damage Act, which provides for liability of the authorities for breaches of Article 5 of the Convention. However, the remedy at issue was introduced in December 2012 (see, for more details, Stefanov v. Bulgaria (dec.), no.\u00a051127\/18, \u00a7 48, 8 September 2020), while the applicant\u2019s detention ended on 11 July 2012 (see paragraph 2 above), and the Court has already found that section 2(1)(2) has not been shown to apply to facts having occurred prior to its entry into force (see, for example, Kiril Andreev v. Bulgaria, no.\u00a079828\/12, \u00a7\u00a7 31-41, 28 January 2016). In the present case the Government submitted a domestic judgment, given in 2015, where the provision at issue had been applied to facts having occurred in 2010, but one such decision is not sufficient to disprove the Court\u2019s previous findings.<\/p>\n

10. The Government argued in addition that, even if the State and Municipalities Liability for Damage Act had been inapplicable, the applicant could have sought damage under the general law of tort. Similarly, he could have had recourse to a remedy aimed at providing compensation for excessive length of judicial proceedings. Still, the Government have submitted no domestic practice showing that these remedies could have been effective with regard to the complaints under examination.<\/p>\n

11. Lastly, the Government pointed out that Mr Slavkov had not appealed against all refusals of the Varna Regional Court to order his release (see paragraph 2 above). He did however appeal against the majority of these refusals, and on each occasion they were upheld by the Varna Court of Appeal. The Court cannot therefore conclude that the applicant failed to make adequate use of the possibility under domestic law to seek release (see, for similar considerations, Bielski v. Poland and Germany, no. 18120\/03, \u00a7 33, 3\u00a0May 2011).<\/p>\n

12. In view of the above the Court dismisses the Government\u2019s inadmissibility plea based on non-exhaustion of domestic remedies. It notes moreover that the complaints under examination are not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention, or inadmissible on any other ground. They must therefore be declared admissible.<\/p>\n

13. On the merits, the Government argued that the length of the first applicant\u2019s detention had been reasonable, in view of the serious offence he had been charged with and \u201cthe undeniable factual and legal complexity of the case\u201d. The applicant reiterated his complaints.<\/p>\n

14. The general principles concerning the right to \u201ctrial within a reasonable time\u201d or to release pending trial, as guaranteed by Article 5 \u00a7 3 of the Convention, have been summarized in Buzadji v. the Republic of Moldova ([GC], no. 23755\/07, \u00a7\u00a7 87-91, 5 July 2016).<\/p>\n

15. The applicant\u2019s detention on remand started on 20 October 2008 and lasted until 11 July 2012 when he was released on bail (see paragraph 2 above). Its duration was thus three years, eight months and twenty-one days.<\/p>\n

16. The domestic courts justified the applicant\u2019s continued detention on a number of grounds, as discussed in paragraph 2 above. While these grounds were indisputably \u201crelevant\u201d, and the Court sees no reason to doubt that the criminal case against the applicant was complex, it is not satisfied that the grounds relied on were \u201csufficient\u201d to justify such lengthy detention on remand, in circumstances which, while apparently difficult, were not exceptional.<\/p>\n

17. Having regard to its case-law on the subject, the Court concludes that the length of the first applicant\u2019s detention on remand was excessive. There was therefore a violation of Article 5 \u00a7 3 of the Convention.<\/p>\n

18. As to the first applicant\u2019s complaint under Article 5 \u00a7 5, the Court refers to its finding that he did not have at his disposal an effective remedy to seek compensation for the violation of his rights under Article 5 \u00a7 3 (see\u00a0Stanev v. Bulgaria [GC], no. 36760\/06, \u00a7 184, ECHR 2012; and paragraphs\u00a09-10 above). It follows that there has been a violation of Article\u00a05\u00a0\u00a7 5 of the Convention as well.<\/p>\n

II. ALLEGED VIOLATION of article 1 of protocol no. 1<\/strong><\/p>\n

19. The three applicants complained of the freezing of their assets upon a request by the Commission (see paragraph 8 above).<\/p>\n

20. Those measures were imposed in 2010 (see paragraph 5 above), that is more than six months before the lodging of the present application on 4\u00a0June 2012. Any complaint related to the initial decision of the Varna Court of Appeal is therefore time-barred, under Article 35 \u00a7 1 of the Convention.<\/p>\n

21. What the Court is competent to examine is the duration of the impugned measures \u2013 up to at least May 2023 \u2013 as well as the dismissal of the applicants\u2019 request in 2012 to have these measures lifted (see paragraphs\u00a06-7 above).<\/p>\n

22. In previous cases before the Court where lengthy interlocutory measures gave rise to a violation of Article 1 of Protocol No. 1, the finding of a violation was based on an accumulation of factors. While the length of time during which the restrictions had remained in place was a crucial part of the Court\u2019s assessment (see, for example, Uzan and Others v. Turkey, nos.\u00a019620\/05 and 3 others, \u00a7\u00a7 207 and 212, 5 March 2019), the scope and nature of the restrictions and the availability or not of procedural guarantees were also relevant (see Shorazova v. Malta, no. 51853\/19, \u00a7 113, 3 March 2022).<\/p>\n

23. In the case at hand, the applicants\u2019 assets were frozen with a view to their prospective forfeiture as proceeds of crime. The restrictions were ordered after the initiation of criminal proceedings against the first applicant (see paragraph 4 above). He is accused of participation in an organised criminal group created for the commission of money laundering, pimping, human trafficking and drug trafficking (see paragraph 2 above), that is an offence which clearly has the potential to yield financial gain.<\/p>\n

24. The Commission found in its initial analysis that the expenditure of Mr Slavkov and his wife during the period under examination appeared to have substantially exceeded their income from lawful sources, and that this justified a preliminary conclusion that their assets could be the proceeds of crime (see paragraph 4 above). It was these assets which were subject to the interim measures (see paragraph 5 above); thus the scope of the measures at issue was not disproportionate vis-\u00e0-vis the prospective financial loss for the applicants in the event of a successful forfeiture claim (compare the situation in Karahasano\u011flu v. Turkey, nos. 21392\/08 and 2 others, \u00a7 153, 16 March 2021; contrast D\u017eini\u0107 v. Croatia, no. 38359\/13, \u00a7\u00a7 73-80, 17 May 2016).<\/p>\n

25. As stated by the Government and not disputed by the applicants, the first and second applicants could freely use and profit from their flat and car which are subject to injunctions. Accordingly, the interim measures complained of did not put at stake those two applicants\u2019 living conditions (contrast Uzan and Others, cited above, \u00a7 212). Nor has it been claimed that the freezing of the third applicant\u2019s cars has in any substantial manner affected its business activities (contrast JGK Statyba Ltd and Guselnikovas v.\u00a0Lithuania, no. 3330\/12, \u00a7 143, 5 November 2013), or that the freezing of the applicants\u2019 shares in other companies affected the exercise of their membership rights or the companies\u2019 functioning.<\/p>\n

26. As to the refusal in 2012 to lift the impugned restrictions (see paragraph 6 above), once these measures were already ordered in 2010 \u2013 a decision which, as noted, the Court will not review \u2013 the Court does not find the approach of the domestic courts, namely their unwillingness to examine the well-foundedness of the Commission\u2019s prospective forfeiture claim, inadequate or unreasonable. What was relevant at the time was that the pending criminal proceedings against the first applicant continued to justify the measures. After 2012 the applicants have not sought to have the measures lifted or modified, despite the fact that during these years the domestic practice on the forfeiture of proceeds of crime underwent important changes (see Todorov and Others, cited above, \u00a7\u00a7 104\u2011107).<\/p>\n

27. Consequently, for the considerations above the Court cannot conclude that the continued freezing of the applicants\u2019 assets breached the requirements of Article 1 of Protocol No. 1.<\/p>\n

28. It should also be noted that if the restrictions complained of turn out eventually to have been unjustified, namely if the proceedings against the first applicant do not result in an conviction, or a potential forfeiture claim is eventually rejected, the applicants will be, in principle, entitled to seek compensation at the domestic level (see Nedyalkov and Others v. Bulgaria (dec.), no. 663\/11, \u00a7\u00a7 91-100, 10 September 2013).<\/p>\n

29. Accordingly, the complaint under examination is manifestly ill\u2011founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n

APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n

30. The Court found violations of the first applicant\u2019s rights under Article\u00a05 \u00a7 3 and Article 5 \u00a7 5 of the Convention. It will therefore only examine the claims related to these violations.<\/p>\n

31. The first applicant claimed 448,900 euros (EUR) in non-pecuniary damage. The Government contested the claim. The Court, judging in equity, awards the applicant EUR 2,300 in non-pecuniary damage, plus any tax that may be chargeable to him.<\/p>\n

32. As to costs and expenses, the three applicants claimed EUR 5,089 for their legal representation before the Court and for postage and translation. They submitted contracts and invoices. Having regard to the nature of the case, the documents in its possession, and the fact that it dismissed part of the application as inadmissible, the Court considers it reasonable to award the first applicant EUR 2,000 covering costs under all heads. To this should be added any tax that may be chargeable to the first applicant.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Declares the complaints of the first applicant, Mr I. Slavkov, under Article 5 \u00a7\u00a7 3 and 5 of the Convention admissible and the remainder of the application inadmissible;<\/p>\n

2. Holds that there has been a violation of Article 5 \u00a7 3 of the Convention;<\/p>\n

3. Holds that there has also been a violation of Article 5 \u00a7 5 of the Convention;<\/p>\n

4. Holds<\/p>\n

(a) that the respondent State is to pay Mr I. Slavkov, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n

(i) EUR 2,300 (two thousand three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n

5. Dismisses the remainder of the claims for just satisfaction.<\/p>\n

Done in English, and notified in writing on 17 October 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Olga Chernishova \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Ioannis Ktistakis
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n

___________<\/p>\n

APPENDIX<\/strong><\/p>\n

List of applicants:<\/p>\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplicant\u2019s Name<\/strong><\/td>\nYear of birth\/ registration<\/strong><\/td>\nNationality<\/strong><\/td>\nPlace of residence\/ registered seat<\/strong><\/td>\n<\/tr>\n<\/thead>\n
1.<\/td>\nIvan Stoyanov SLAVKOV<\/td>\n1967<\/td>\nBulgarian<\/td>\nVarna<\/td>\n<\/tr>\n
2.<\/td>\nEmel Nezhdet SLAVKOVA<\/td>\n1971<\/td>\nBulgarian<\/td>\nVarna<\/td>\n<\/tr>\n
3.<\/td>\nBARET AUTO OOD<\/td>\n2003<\/td>\nBulgarian<\/td>\nVarna<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n