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FOURTH
SECTION
CASE OF
STOYANOV v. BULGARIA
(Application
no. 39206/07)
JUDGMENT
STRASBOURG
31 January
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Stoyanov v.
Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 10 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39206/07)
against the Republic of Bulgaria lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Bulgarian national, Mr Aleksandar Tonev Stoyanov (“the
applicant”), on 17 August 2007.
- The
applicant was represented by Mr Y. Grozev, a lawyer practising in
Sofia. The Bulgarian Government (“the Government”)
were represented by their Agent, Ms M. Kotzeva, of the Ministry of
Justice.
3. The
applicant alleged, in particular, that he had been convicted
in absentia without having had the opportunity to have the
proceedings reopened, and that his imprisonment was unlawful.
- On
12 April 2010 the President of the Fifth Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1). The case was
later transferred to the Fourth Section of the Court,
following the re composition of the Court’s sections on 1
February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and is currently
serving prison sentences in Varna prison.
1. The events of 23 September 2002
- According
to the indictment filed against the applicant in December 2003, in
the evening of 23 September 2002 it was alleged that he had held a
party with his girlfriend and four other individuals. He drank a lot
and became jealous. Later, while he and his girlfriend were in
another room, witnesses heard a shot. They went to the room and saw
the victim lying in a pool of blood. It was alleged that the
applicant was holding a pistol and told them he had shot her. Then he
got into the car of an acquaintance of his, together with two of the
witnesses, threatened the driver with the pistol and forced him to
drive him out of town. After some time he asked the driver to stop
and then ran away. According to the indictment, the witnesses
informed the police.
2. Steps taken by the authorities to find the applicant
- The
applicant had been sought by the police since 29 July 2002 in
connection with previous criminal proceedings.
- After
the murder of 23 September 2002, the applicant was not found at his
permanent address. Following inquiries by an investigator at the
Haskovo regional investigation service, it became clear that he was
not in prison and had not left the country. On 14 November 2002
the investigator ordered the police to find and bring the applicant
before him. There is no information whether the police took any
measures in pursuance of the order.
3. The criminal proceedings against the applicant
- On
24 September 2002 a preliminary investigation was opened on suspicion
that the applicant had intentionally shot dead his girlfriend, after
which he had forced a witness to drive him away and had gone into
hiding.
- On
20 November 2003 the investigator established that the applicant’s
whereabouts were unknown, appointed a lawyer to represent him and
charged him in absentia with intentional murder and coercion.
The results of the preliminary investigation were presented to the
applicant’s officially appointed lawyer, who did not make any
objections or requests for additional evidence to be obtained.
- On
an unspecified date in December 2003 the Haskovo regional
prosecutor’s office filed an indictment against the applicant
with the Haskovo Regional Court.
- The
Regional Court tried to summon the applicant at his permanent
address. The summons was returned undelivered with information from
the applicant’s father to the effect that the applicant had
left the address two years ago. After an inquiry, it was again
established that the applicant was not in prison and had not left the
country. Therefore, the Regional Court assigned counsel to represent
the applicant during the trial.
- In
a judgment of 7 July 2004 the Regional Court convicted the applicant
as charged, sentenced him to sixteen years’ imprisonment and
allowed a civil claim brought by the victim’s mother in the
amount of 25,000 levs (BGN) (12,783 euros: EUR). The judgment was
based on witness testimonies, expert reports and an inspection of the
crime scene. The applicant’s court-appointed lawyer did not
appeal against the judgment and it became final.
4. The applicant’s detention
- On 11 April 2006 the applicant was arrested and taken
to Varna prison to start serving a previously imposed sentence. At
that time he had already received prison sentences in at least four
sets of criminal proceedings, with terms of imprisonment varying from
one to ten years. According to a letter from the prison authorities,
on 11 November 2008 the Sofia District Court, applying Articles 25
and 27 of the Criminal Code, cumulated the sentences given in three
sets of criminal proceedings, including the proceedings in
absentia. It joined in its entirety the sixteen -year sentence
imposed in absentia to the outstanding parts of the other
sentences and thus determined an aggregate punishment of twenty
years, three months and two days’ imprisonment, starting from
11 November 2008. Four years were to be deducted from this period by
virtue of the Amnesty Act, which, according to the prison
authorities, was applicable in respect of an unspecified previous
offence committed by the applicant.
5. The applicant’s request for a reopening of the
criminal proceedings
- On
10 October 2006 the applicant submitted a request for a reopening of
the criminal proceedings held in absentia. He stated that he
had learned about the criminal proceedings against him on 11 April
2006, when he had been arrested and sent to prison. He further
maintained that his right to defence had been violated because no
psychiatrist had been appointed to assess his mental state at the
time of the incident and no fingerprint sample had been taken from
him. He also stated that he had been denied the right to the
effective assistance of counsel, because the lawyer assigned to him
had not taken any steps in his defence and had not appealed against
the judgment of 7 July 2004.
- In
a judgment of 1 March 2007 the Supreme Court of Cassation dismissed
the applicant’s request. The court held that under Article 423
of the 2006 Code of Criminal Procedure a reopening was only possible
where the convicted person had been unaware of the criminal
proceedings against him for reasons beyond his control. It noted,
however, that the applicant had left the
scene of the crime and had failed to inform the authorities of his
current address. Therefore the fact that he had not been aware of the
criminal proceedings against him was a consequence of his own
conduct. The court concluded that by fleeing and failing to inform
the authorities of his whereabouts the applicant had given up his
procedural rights of his own free will. As to the applicant’s
court-appointed lawyer, the court found that he had not breached his
duties, his failure to appeal against the judgment of 7 July 2004
having been based on a careful assessment of its fairness and
lawfulness.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Trials in absentia
- The
1974 Code of Criminal Procedure (“CCP”), in force until
29 April 2006, allowed trials in absentia, inter alia,
where the place of residence of the accused was unknown and had not
been established after diligent tracing (Article 268 § 3
(2)).
- The
new 2006 CCP, in force since 29 April 2006, provided for the
reopening of criminal cases heard in absentia where the
convicted person had been unaware of the proceedings against him and
had submitted a request for reopening within six months of learning
about the conviction (Article 423 § 1).
- Pursuant
to the established case-law of the Supreme Court of Cassation, a
person convicted in absentia was entitled to a reopening of
the criminal proceedings only if he had been denied the right to
participate in those proceedings for reasons beyond his control.
- On
23 December 2008, Article 423 § 1 of the 2006 CCP was amended to
extend the scope of cases in which reopening was allowed. In
particular, it provided that reopening might be refused if the
convicted person had failed to appear at the trial stage or had
absconded, despite having been informed of the indictment against him
and of the possible consequences of his absence.
2. Reopening of proceedings following a judgment of the
European Court of Human Rights
- Pursuant
to Article 422 § 1 (4) of the 2006
CCP, the criminal proceedings are reopened when a judgment of the
European Court of Human Rights establishes a violation of the
Convention which is of particular importance for the case. The Chief
Public Prosecutor shall make the request within one month of becoming
aware of the judgment (Article 421 §
2 of the 2006 CCP). The request is examined by the Supreme Court of
Cassation (Article 424 of the 2006 CCP).
3. Aggregate punishment
- Pursuant
to Articles 23 and 24 of the Criminal Code, an aggregate punishment
is imposed on a person who has committed two or more offences and has
not yet been convicted of any of them, by absorption of the less
severe punishments by the most severe one. Where the punishments are
of the same type, the most severe punishment may be increased by up
to fifty percent. According to Article 25 of the Criminal Code, the
same rules apply when the person has already been convicted of two or
more offences with individual sentences.
- Pursuant
to Article 27 of the Criminal Code, where a person has committed an
offence after having been sentenced to imprisonment for another
offence but before having served his sentence, an aggregate
punishment is imposed by joining, fully or in part, the new prison
sentence to the outstanding part of the previous sentence. Where the
new prison sentence is for a term of more than five years, it is
joined without any reduction.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been convicted in absentia
without having had the opportunity of presenting his defence before
the courts and without the effective assistance of counsel, and that
he had been denied a retrial. He relied on Article 6 §§
1 and 3 of the Convention, the relevant parts of which provide:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an
interpreter if he cannot understand or speak the language used in
court.”
A. The parties’ submissions
1. The Government
- The
Government submitted that the applicant had deliberately sought to
escape trial. They argued that since he had gone into hiding
immediately after the commission of the offences, his ignorance of
the criminal proceedings conducted against him had been due to his
own misconduct. They concluded that he had waived his right to appear
in court, a fact which had been unequivocally established by the
domestic authorities. They further stated that the authorities had
sought the applicant at his known addresses and had made inquiries
about his whereabouts with the prison authorities and in the border
control database.
2. The applicant
- The
applicant stated that he had never waived, either expressly or
tacitly, his right to appear and defend himself in court. He argued
that he had learned of the criminal proceedings against him when he
had been detained on 11 April 2006. Before that date, he had only
been aware that the authorities were looking for him in order to
enforce a previous sentence. Furthermore, he stated that the Supreme
Court of Cassation had not established in an unequivocal manner that
he had waived his right to the safeguards of a fair trial. Finally,
he complained that he had not had the effective assistance of
counsel.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- A
statement of the general principles concerning trials in absentia
may be found in the Court’s judgment in the case of Sejdovic
v. Italy [GC], no. 56581/00, §§ 81-95, ECHR 2006 II.
- The
Court notes that it is not disputed between the parties that the
applicant did not receive any official notification about the
criminal investigation opened against him or about the date of his
trial. After the opening of the murder investigation, the authorities
made several unsuccessful attempts to locate the applicant at his
permanent address, in detention facilities and in the border control
database. They ultimately decided that the criminal proceedings
brought against him would be conducted in his absence (see paragraphs
10 and 12 above). The Supreme Court of Cassation also confirmed that
the applicant had not been officially informed of the proceedings
instituted against him (see paragraph 16 above).
- According
to the Government, the applicant went into hiding immediately after
the murder and therefore, in their opinion, lost his entitlement to a
new trial as he had sought to evade justice. The applicant maintained
that all that he had known was that he had been sought by the
authorities in connection with a previous sentence.
- The
Court has not ruled out the possibility that, in the absence of
official notification, certain established facts might provide an
unequivocal indication that the accused is aware of the existence of
criminal proceedings against him and of the nature and the cause of
the accusation and that he does not intend to take part in the trial
or wishes to avoid prosecution. This may be the case, for example,
where the accused states publicly or in writing that he does not
intend to respond to summonses of which he has become aware through
sources other than the authorities, or succeeds in evading an
attempted arrest (see, among other authorities, Iavarazzo v. Italy
(dec.), no. 50489/99, 4 December 2001), or when materials are brought
to the attention of the authorities which unequivocally show that he
is aware of the proceedings pending against him and of the charges he
faces (see Sejdovic, cited above, § 99). Such
circumstances are to be distinguished from the outright fact of
fleeing from the crime scene in fear of prosecution or a general
expectation that criminal proceedings might be instituted, which are
not sufficient to justify the assumption that the accused was aware
of the proceedings for the determination of the charges against him
and has waived his right to appear in court. An assumption of that
kind would risk undermining the very concept of the right to a public
hearing within the meaning of Article 6 § 1
of the Convention as well as the notion of an effective defence
guaranteed under Article 6 § 3 of the
Convention, which includes the right of the accused to be informed
promptly of the nature and cause of the charges against him, to have
adequate time and facilities for the preparation of the defence and
to examine or have examined witnesses against him.
- For
a trial in absentia to be justified, what is decisive is whether the
facts of the case show unequivocally that the applicant was
sufficiently aware of the opportunity to exercise these rights in the
context of the specific proceedings instituted against him and
whether he might be considered to have waived his right to appear in
court. In the absence of any notification this right can neither be
seen to have been clearly waived nor exercised effectively.
- In
the Court’s view, no such circumstances have been established
in the instant case. In this respect the present case discloses no
material difference from the case of Sejdovic, cited above.
The mere absence of the applicant from his home is insufficient to
consider that he was aware of the proceedings and, consequently, had
absconded (see Shkalla v. Albania, no. 26866/05, §
73, 10 May 2011, Hu v. Italy, no. 5941/04, § 55,
28 September 2006, and Sejdovic, cited above, §
100). The Government’s argument is not based on any objective
factors viewed in the light of the evidence against the applicant; it
assumes that the applicant was responsible for the killing of his
girlfriend. As in Sejdovic, the Court is unable to accept this
argument, which also runs counter to the presumption of innocence.
- In
previous cases concerning convictions in absentia the Court
has held that to inform someone of a prosecution brought against him
is a legal act of such importance that it must be carried out in
accordance with procedural and substantive requirements capable of
guaranteeing the effective exercise of the accused’s rights;
vague and informal knowledge cannot suffice (see T. v. Italy,
12 October 1992, § 28, Series A no. 245 C, and Somogyi
v. Italy, no. 67972/01, § 75, ECHR 2004 IV). In the
instant case it has not been shown by the respondent Government that
the applicant had sufficient knowledge of the investigation opened on
24 September 2002 and the concrete charges brought against him on 20
November 2003.
- Accordingly,
in order for the proceedings leading to his conviction to not
represent a “denial of justice”, the applicant should
have had the opportunity to have them reopened and the merits of the
murder charges against him, as well as any possible punishment,
determined in his presence (Stoichkov v. Bulgaria, no.
9808/02, § 57, 24 March 2005, and Sejdovic, cited above,
§ 84).
- As
this did not happen in the present case, there has therefore
been a violation of Article 6 of the Convention.
- This
finding makes it unnecessary for the Court to examine the applicant’s
allegations that the defence conducted by his court-appointed lawyer
was defective (see Sejdovic, cited above, §
107).
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his imprisonment after 22 April 2009, when
he had allegedly started serving the sentence imposed on him in
absentia, had been unlawful and arbitrary.
He relied on Article 5 § 1 (a) of the Convention, which
provides:
“Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court; ...”
A. The parties’ submissions
1. The Government
- The
Government insisted that the applicant had deliberately sought to
escape trial and thus had waived his right to appear in court, and
therefore the criminal proceedings against him and the subsequent
refusal of the Supreme Court of Cassation to grant a retrial had been
lawful. They concluded that the applicant’s imprisonment had
been in compliance with Article 5 § 1 (a) of the Convention.
2. The applicant
- The
applicant stated that on 11 April 2006 he had been
arrested and sent to prison to serve a previously imposed sentence,
which had expired on 22 April 2009. He maintained that after the
latter date he had been serving the sentence imposed following the
proceedings conducted in absentia.
Referring to the Court’s judgment in the case of Stoichkov
(cited above), he considered that the criminal proceedings against
him, coupled with the impossibility to obtain a fresh determination
of the charges against him, had been manifestly contrary to the
provisions of Article 6, and therefore his detention after 22 April
2009 was not justified under Article 5 § 1 of the
Convention.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
2. Merits
- The
Court’s views on the general principles concerning the
lawfulness of detention under Article 5 § 1 (a) of the
Convention, and in particular, detention based on a sentence imposed
in absentia in flagrant denial of justice, may be found in the
judgment in the case of Stoichkov, cited above, §
52.
- The
Court notes that the applicant was detained on 11 April 2006 on the
basis of a previous “conviction by a competent court”
(see paragraph 14 above). Subsequently, an aggregate punishment of
more than twenty years’ imprisonment was imposed on the basis
of several final prison sentences, including the one delivered in the
proceedings in absentia (ibid.). On the basis of the materials
before it, the Court is unable to conclude that at the time of
adoption of the present judgment the applicant would have completed
serving his aggregate punishment but for the sentence imposed in the
impugned trial in absentia. It further notes that the
lawfulness of the other sentences imposed on the applicant, among
which there was, notably, a ten-year prison sentence, has not been
disputed. Therefore, he has failed to establish that at present the
violation of Article 6 found above should be seen as necessarily
resulting in an unjustified deprivation of liberty contrary to
Article 5 § 1 (a).
- It
follows that there has been no violation of Article 5 § 1 of the
Convention.
III. APPLICATION OF ARTICLES 41 AND 46 OF THE CONVENTION
- Articles 41 and 46 of the Convention provide:
Article 41
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
Article 46
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. Damage
- The
applicant maintained that the most appropriate form of
redress for the violation of Article 6 of the Convention would be a
retrial or reopening of the proceedings without delay. He
further claimed 5,000 euros (EUR) for non-pecuniary damage in respect
of the violation of Article 6.
- The
Government contested this claim.
- The
Court reiterates that where a violation of Article 6 is found, the
applicant should, as far as possible, be put in the position that he
would have been in had the requirements of that provision not been
disregarded, and that the most appropriate form of redress would, in
principle, be a retrial or the reopening of the proceedings, if
requested (see Kounov, cited above, §§
58-59, with further references). It notes, in this
connection, the power of the Chief Public Prosecutor under Articles
420-422 of the 2006 CCP to request the reopening of proceedings
following a judgment of this Court (see paragraph 21 above).
- As
regards the claim for non-pecuniary damage, the Court considers that
its finding of a violation constitutes sufficient just satisfaction
in the circumstances of the present case (see Kounov, cited
above, § 60).
B. Costs and expenses
- The
applicant also claimed EUR 1,600 for 16 hours
of legal work by his lawyer in the proceedings before the Court, at
the hourly rate of EUR 100. In support of this claim he
presented a contract and a timesheet. He requested that any award
made by the Court under this head be made payable to his lawyer, Mr
Y. Grozev.
- The
Government considered that the claims were excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the
entire amount claimed by the applicant under this head, plus any tax
that may be chargeable to him. That amount is to be paid into the
bank account of the applicant’s lawyer, Mr Y. Grozev.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been
no violation of Article 5 § 1 of the
Convention;
- Holds that the finding of a violation of Article
6 § 1 constitutes in itself sufficient
just satisfaction for any non-pecuniary damage sustained by the
applicant;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 1,600 (one thousand six hundred euros),
to be converted into Bulgarian levs at the rate applicable at the
date of settlement, plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to
be paid into the bank account of the applicant’s
representative, Mr Y. Grozev;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 31 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech
Garlicki
Deputy Registrar President
