CINAR proti Bulharsku

FIFTH SECTION

DECISION

Application no. 1320/03
by Şükrü ÇINAR
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 11 December 2006 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 28 December 2002,

Having regard to the correspondence with the parties,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Şükrü Çınar, is a Turkish national who was born in 1966 and at the relevant time resided in Obersulm, Willsbach, Germany. The respondent Government were represented by Ms M. Karadzhova, Agent, of the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 21 July 2001 the applicant, apparently on his way from Germany to Turkey, tried to cross the Yugoslav‑Bulgarian border at Kalotina. According to the findings of the criminal courts which later tried him, he was stopped by customs officers who handed him a customs declaration in Turkish and explained, in German, the manner of and the conditions for filling it in. The applicant stated that he was not aware of the exact amount of money he was carrying. He checked in the front pocket of his trousers and took 4,380 German marks (DM) out of it. He noted that amount in the declaration and handed the declaration back to the officers. A subsequent search of the applicant and of his car, carried out in a garage at the premises of the customs, revealed a further DM 73,870, which were found in a wallet in the applicant’s back pocket, in the right front pocket of his trousers, in the pocket of his shirt, and in a second wallet located in his car, beneath the arm-rest beside the driver’s seat. The customs officers then drew up a procès-verbal of a customs violation. They seized the undeclared money with a view to forfeiting it, and they seized the declared money with a view to securing the payment of a possible fine. They also arrested the applicant and questioned him without an interpreter being present. The applicant gave written explanations in Turkish.

It seems that the next day, 22 July 2001, the applicant was formally charged with failing to declare the entire amount carried by him, contrary to Article 251 § 1 of the Criminal Code. Prior to the charging the investigator appointed a Turkish‑language interpreter.

On 24 July 2001 the applicant was released on bail. He was prohibited from leaving the territory of Bulgaria pending the determination of the criminal charges against him.

The trial was held before the Slivnitsa District Court on 28 September 2001. The applicant was represented by counsel retained by him. An interpreter from Turkish was also present.

In a judgment of the same date the Slivnitsa District Court found the applicant guilty and sentenced him to one year’s imprisonment, suspended for three years. It also forfeited the entire undeclared amount. The court found that despite the facts that the applicant had been handed a customs declaration in Turkish upon entering Bulgaria and had received explanations in German as to the manner of filling it in by the customs officers, he had declared only the amount of DM 4,380, omitting the further DM 73,870 later found on him and in his car. The court further noted that the applicant’s act had concerned a sizeable of sum of money. Finally, it held that the applicant had acted wilfully: he had envisaged the criminality of his act and its harmful consequences and had wished the latter to occur. Concerning the individual sentence, the court noted the lack of any criminal record or negative information about the applicant, and concluded that a suspended sentence of one year’s imprisonment would adequately further the special and general deterrence aims of the criminal law.

The applicant appealed to the Sofia Regional Court, arguing that the trial had been tainted with procedural irregularities and that the lower court’s judgment suffered from an evidentiary insufficiency. In particular, the Slivnitsa District Court had erred by taking into account his statements made without an interpreter on 21 July 2001 and had omitted to take into consideration that the search of the applicant had been effected in a garage, in breach of the relevant customs regulations, which provided that it had to be conducted in closed, lighted and heated premises featuring a toilet.

On 23 April 2002 the Sofia Regional Court upheld the lower court’s judgment. It found, inter alia, that the search, the seizure and the questioning of the applicant on 21 July 2001 had been carried out without an interpreter. The information thus obtained was not to be admitted in evidence and taken into account. However, the remainder of the evidence – in particular, the customs officers’ testimony and the applicant’s statements during the trial – was sufficient to enable the court to conclude that the applicant had committed the offence. Nor had there been any other material breaches of the rules of procedure. In particular, while the garage where the search and seizure had taken place had not been in full conformity with the technical requirements of the relevant customs regulations, that had not had a material impact on the applicant’s defence rights.

The applicant appealed on points of law to the Supreme Court of Cassation. A hearing was held on 5 July 2002. At the hearing, the counsel retained by the applicant withdrew from the proceedings, because he did not have the requisite five years’ professional experience to appear before the Supreme Court of Cassation. Accordingly, the court appointed an ex officio counsel. There is no indication in the case file that the applicant requested to be allowed to retain a new counsel.

In a final judgment of 8 July 2002 the Supreme Court of Cassation upheld the lower court’s judgment. It held that there had been no material breaches of the rules of procedure, that the lower courts had applied the law correctly, and that the punishment of a suspended sentence of one year’s imprisonment had been proportionate to the gravity of the offence. There were no grounds to show further lenience, regard being had to the general deterrence purposes of the criminal law.

There is no indication in the case file that at any point in time the applicant complained about the quality of the translation from or into Turkish during the preliminary investigation or during the trial.

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention about the fairness of the criminal proceedings against him. In particular, he alleged that the search and seizure carried out by the customs officers had been effected in breach of the relevant regulations. He also submitted that the courts examining the case had not been impartial.

2. The applicant complained under Article 6 § 3 (a) and (b) of the Convention that he had not been promptly informed of the nature and cause of the accusation against him in a language which he understood, had not been allowed to consult a lawyer, and had not had enough time for the preparation of his defence.

3. The applicant complained under Article 6 § 3 (c) of the Convention that he had not had the opportunity to retain a lawyer of his own choosing in the proceedings before the Supreme Court of Cassation. He also relied on Article 11 of the Convention.

4. The applicant complained under Article 6 § 3 (e) of the Convention that he had not been appointed a licensed interpreter. He submitted that the interpretation during the preliminary investigation and at the trial had been ensured by two persons who had not had a sufficient command of Turkish. He also relied on Article 11 of the Convention.

5. The applicant complained that the treatment and the food during his stay in custody had been incompatible with his Muslim faith. He relied on Article 7 of the Convention.

6. The applicant complained that the Bulgarian authorities had treated him as a criminal from the very outset. He relied on Article 10 of the Convention.

7. The applicant complained that the authorities had deprived him of DM 78,250 on account of an offence which he had not committed.

THE LAW

On 30 November 2005, pursuant to a decision of the President of the Chamber of 28 November 2005, notice of the application was given to the Bulgarian Government under Rule 54 § 2 (b) of the Rules of Court. They were invited to submit written observations on the admissibility and merits of the case.

The applicant being of Turkish nationality, on the same date the Turkish Government were also invited to submit, if they so wish, written comments on the case (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court). As the Turkish Government did not reply within the time indicated, on 24 March 2006 the Court decided to conduct the further proceedings on the assumption that they did not wish to exercise their right to intervene.

The Bulgarian Government’s observations were submitted on 8 March 2006. On 24 March 2006 they were transmitted to the applicant who was invited to submit observations in reply and any claims for just satisfaction before 19 May 2006. On 18 May 2006 a lawyer contacted the Court, stating that he had been authorised by the applicant to represent him and requesting an extension of the time allowed for submitting observations and claims for just satisfaction. The time‑limit was accordingly extended until 20 June 2006.

On 12 July 2006 the Court sent, by registered mail with acknowledgement of receipt, a letter to the applicants’ representative, drawing his attention to the terms of Article 37 § 1 (a) of the Convention. In reply, in a letter of 20 July 2006 the applicant’s representative informed the Court that he had lost contact with the applicant, and requested a further extension of the time allowed for submitting observations and claims for just satisfaction, so as to be able to re‑establish contact with the applicant. The time‑limit was accordingly extended until 29 September 2006.

On 16 October 2006 the Court once more sent, by registered mail with acknowledgement of receipt, a letter to the applicant’s representative, drawing his attention to the terms of Article 37 § 1 (a) of the Convention. In a letter dated 13 October and post‑stamped 17 October 2006 the applicant’s representative stated that he had lost contact with the applicant and no longer represented him.

The applicant himself has not tried to contact the Court at any point after notice of the application was given to the respondent Government.

Having regard to the foregoing, the Court finds that the applicant does not intend to pursue his application within the meaning of Article 37 § 1 of the Convention, which, as far as material, provides as follows:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; ...

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

Furthermore, the Court is of the view that respect for human rights as defined in the Convention and the Protocols thereto does not require the continued examination of the application (Article 37 § 1 in fine).

Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Claudia Westerdiek Peer Lorenzen
Registrar President