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DEMEBUKOV v. BULGARIA - 68020/01 [2008] ECHR 180 (28 February 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/180.html
Cite as:
[2008] ECHR 180
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FIFTH
SECTION
CASE OF DEMEBUKOV v. BULGARIA
(Application
no. 68020/01)
JUDGMENT
STRASBOURG
28
February 2008
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 Demebukov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Snejana
Botoucharova,
Karel Jungwiert,
Rait
Maruste,
Javier Borrego Borrego,
Renate
Jaeger,
Mark Villiger, judges,
and
Claudia Westerdiek, Section Registrar,
Having
deliberated in private on 29 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 68020/01) 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 Georgi Borisov
Demebukov (“the applicant”) who was born in 1947 and
lives in Plovdiv, on 5 October 2000.
The
applicant was represented by Ms I. Loulcheva, a lawyer practising in
Sofia.
The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Pasheva, of the Ministry of Justice.
The
applicant alleged that he had been denied a fair trial as a result of
having been tried in absentia and then having been refused a
reopening of the proceedings once he had found out about the judgment
against him.
On
13 October 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The preliminary investigation
The
applicant owned a house in the village of Brod where he resided at
the time of the events.
On
18 September 1997 the cables supplying the village with electricity
were stolen.
On
2 October 1997 a preliminary investigation was opened against the
applicant and two other individuals for the theft of the electricity
cables.
On
15 October 1997 the applicant, assisted by a lawyer, was charged with
the theft of the electricity cables and a restriction was imposed on
him not to leave the village of Brod without the authorisation of the
public prosecutor's office.
The
preliminary investigation was concluded on an unspecified date and
the case was forwarded to the public prosecutor's office. On an
unspecified date the case was remitted for further investigation.
On
16 January 1998 the charges against the applicant were amended; he
was once again assisted by a lawyer.
The
results of the preliminary investigation were presented to the
applicant and his lawyer on 30 January 1998.
On
an unspecified date the applicant left the village of Brod without
authorisation from the public prosecutor's office. He claimed to have
moved to live at an address in Plovdiv which was registered with the
police and where he received his pension.
B. The court proceedings
On
an unspecified date the public prosecutor's office entered an
indictment against the applicant and his two accomplices with the
Dimitrovgrad District Court for the theft of the electricity cables.
A
copy of the indictment was sent to the applicant's address in the
village of Brod, apparently by registered post with return receipt.
The indictment and the receipt were returned to the District Court in
their entirety and without an indication whether they had been
served.
The
first hearing before the District Court was scheduled for
22 September 1998, but was postponed, for undisclosed reasons,
to 15 October 1998.
A
summons to the first hearing was sent to the applicant's address in
the village of Brod, which was returned without any indication
whether it had been served. In an accompanying letter, the mayor of
the village of Brod informed the District Court that the applicant
was not registered as living in the village, that he had not resided
there for several months and that he had moved to the city of
Plovdiv.
At
the hearing on 15 October 1998 the District Court established that
the applicant had not been duly summoned because he had not received
the summons. Nevertheless, at the request of the public prosecutor's
office, the court decided to examine the case in his absence as it
found that this would not impede the proceedings, and assigned a
court-appointed lawyer to represent the applicant.
The
second hearing was conducted on 24 November 1998; the applicant was
summoned to it through his court-appointed lawyer.
In
a judgment of 24 November 1998 the District Court found the applicant
and his accomplices guilty as charged. The applicant was sentenced to
three years' imprisonment.
No
appeal was lodged against the judgment, so it became final on
28 December 1998.
The
applicant was arrested on 9 February 1999 to serve the prison
sentence, which he did until 27 April 2001.
C. The request that the case be reopened
On
an unspecified date in 2000 the applicant requested the Supreme Court
of Cassation to reopen the criminal proceedings against him. He
relied on Article 362a of the Code of Criminal Procedure
1974 (“CCP”: see Relevant domestic law below)
and claimed that he had not been aware of the criminal trial
against him. The applicant argued that even though he had been aware
of the preliminary investigation against him he could not be expected
to constantly follow the subsequent development of the proceedings
against him. Moreover, as he had not received the indictment entered
against him by the public prosecutor's office, he had been unaware
that formal court proceedings had been initiated against him. The
applicant also argued that once the authorities had established that
he was no longer residing in the village of Brod they should have
attempted to find him at his other address in Plovdiv, where they
would have found him without difficulty.
In
a judgment of 4 May 2000 the Supreme Court of Cassation dismissed the
applicant's request to reopen the case. It found that the applicant
had been aware of the criminal proceedings against him because he had
been present, together with his lawyer, when he had been initially
charged on 15 October 1997, when the charges had been amended on
16 January 1998 and also when the results of the preliminary
investigation had been presented on 30 January 1998. Moreover, he had
violated the restriction order imposed on him not to leave the
village of Brod without the authorisation of the public prosecutor's
office and had moved to another address without informing the said
authorities. Thus, the court found that the applicant had wilfully
made himself unavailable to participate in the criminal proceedings
against him and had lost the right to seek their reopening.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
CCP, revoked in 2006, allowed trial in absentia in certain
limited instances. It provided in Article 268 § 3, as
in force at the relevant time, the following:
“When it would not hamper the ascertaining of the
truth, the case can be examined in the absence of the accused if:
1. [he] was not found at the address he had
given or had changed it without informing the competent authorities;
2. [he] was duly summoned and had not
indicated a good cause for his failure to appear.”
When
an accused was tried in absentia, there was a statutory
requirement that he be represented by an ex officio counsel
(Article 70 § 1 (6) of the CCP).
Until
1 January 2000 Bulgarian law did not provide for the reopening of
criminal cases heard in absentia. Thereafter reopening became
possible in cases where the convicted person was unaware of the
criminal proceedings against him or her and had submitted a request
for a reopening within a year of learning of the conviction (Article
362a of the CCP). The request was examined by the Supreme Court of
Cassation (Article 363 of the CCP), which could quash the conviction
and either order a rehearing of the case (Article 364 § 1 of the
CCP) or discontinue or suspend the criminal proceedings (Article 364
§ 2 of the CCP).
The
Bulgarian courts' prevailing practice has been summarised in the
Court's judgment in the case of Kounov v. Bulgaria
(no. 24379/02, §§ 31-33, 23 May 2006).
In
further judgments, the Supreme Court of Cassation stated that a
convicted person cannot claim not to have been aware of the criminal
proceedings against him if he had been charged with the offence in
question in the course of the preliminary investigation and had had a
restriction placed on him not to leave his place of residence without
the authorisation of the public prosecutor's office (решение
№ 348 от 26.06.2000 г. по н.д.
№ 258/2000 г., II н.о. на
ВКС; решение
№ 651 от 05.01.2001 г. по н.д.
№ 609/2000 г., II н.о. на
ВКС). Moreover, it
considered that it was irrelevant whether in such instances the
convicted person was actually seeking to evade justice or had simply
moved to another address without having duly informed the competent
authorities where he could be summoned (решение
№ 182 от 18.04.2001 г. по н.д.
№ 99/2001 г., II н.о. на
ВКС).
The
new Code of Criminal Procedure 2006 provides for the reopening of
criminal cases heard in absentia in cases where the convicted
person was unaware of the criminal proceedings against him or her,
including of the conviction, and had submitted a request for a
reopening of the case within six months of learning of the conviction
(Article 423 § 1).
In
the first reported case under the new rule, the Supreme Court of
Cassation restated its understanding that the possibility for
reopening of criminal cases heard in absentia aimed to restore
the right of the convicted person to participate personally in the
criminal proceedings, which he or she had previously been denied for
reasons outside his or her control. In particular, its aim was not to
be of benefit to convicted persons who had known of the criminal
proceedings against them, but had belatedly learnt of their
conviction because they had absconded or had avoided participating in
the court proceedings (решение
№ 882 от 07.11.2006 г. по н.д.
№ 331/2006 г., I н.о. на
ВКС).
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained, relying on Article 6 § 3 (b), (c) and (d)
of the Convention, that he had been denied a fair trial as a result
of having been tried in absentia and then having been being
refused a reopening of the proceedings once he had found out about
the judgment against him. He contended that he had learnt of the
conviction only on 9 February 1999 when he had been arrested to serve
the sentence of imprisonment.
The
relevant parts of Article 6 of the Convention 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:
...
(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...”
A. The parties' submissions
1. The Government
The
Government noted, at the outset, the extensive domestic case-law
regarding requests for reopening of criminal proceedings conducted in
absentia (see Relevant domestic law and practice above).
They
also argued that it had not been possible to summon the applicant at
the address he had given in the village of Brod because he had moved
to another address in violation of the restriction not to leave the
village without the authorisation of the public prosecutor's office,
which was the most lenient restriction on his freedom of movement
that could have been imposed on him. Thus, through his wilful conduct
the applicant had knowingly deprived himself of the opportunity to be
informed of the continuation of the criminal proceedings against him.
The
Government further claimed that when he moved to Plovdiv the
applicant had changed addresses every couple of months. They referred
to the documentary evidence presented before the Supreme Court of
Cassation, but not to the Court, in the procedure regarding the
request for reopening, which indicated that the applicant had resided
at one address from July to 19 August 1998 and at a different
address thereafter. The Government claimed, therefore, that the
applicant cannot be considered to have had a permanent place of
residence in the town of Plovdiv where the domestic authorities could
have summoned him to attend the trial stage of the criminal
proceedings.
In
conclusion, the Government considered the application inadmissible
and unsubstantiated, and that it should be rejected in accordance
with Article 35 §§ 3 and 4 of the Convention.
2. The applicant
The
applicant considered that the Government had failed to refute or
disprove the substance of his complaint that he had been denied a
fair trial. He noted that the Government had confirmed that he had
never been served with the indictment entered against him or with any
summons to appear before the District Court. The applicant considered
therefore that his right to be personally present at the trial stage
of the criminal proceedings had been infringed by the domestic court
which had examined the case in his absence. Moreover, it had failed
to request the competent authorities to undertake a search for him
and to look for him at his address in Plovdiv.
The
applicant also claimed that the Government had not disputed the fact
that he had not been aware that the criminal proceedings had
proceeded to the trial stage. He argued in this respect, that the
trial stage was the principal phase of the criminal proceedings and
that being present during the preliminary investigation and
knowledgeable of the charges brought against you did not entail or
presuppose knowledge of a possible subsequent trial. The applicant
claimed that it had not been possible for him to have followed the
development of the case once it had been forwarded to the public
prosecutor's office and that it had not been certain that it would
definitively result in a trial, because it could, for example, have
been remitted for further investigation, terminated or suspended.
The
applicant further argued that Article 362a of the CCP provided for
reopening of criminal cases heard in absentia in all instances
where the convicted person had not been aware of any one of the
stages of the proceedings in question. However, the Supreme Court of
Cassation in its judgment of 4 May 2000 had found that he should be
considered to have been informed of the whole criminal proceedings
against him as a result of having been personally informed of the
opening of the criminal proceedings against him and the charges that
had been brought against him. The court did not recognise however
that the District Court had failed to serve him with the indictment
or the summons to appear before it and had not taken any action to
find him at his address in Plovdiv.
In
respect of the practice of the domestic courts cited by the
Government, the applicant considered the decisions erroneous as they
had failed to recognise the principal place of the trial stage of the
criminal proceedings and to uphold the right of convicted persons to
be personally present during the said phase. Moreover, he considered
this to have been rectified by the Bulgarian legislator in the Code
of Criminal Procedure 2006, which provides for the reopening of
criminal cases heard in absentia where the convicted person
was unaware either of the criminal proceedings or of the conviction
against him or her (see Relevant domestic law and practice above).
B. Admissibility
The
Court notes that when on 9 February 1999 the applicant learnt of his
conviction he had no available domestic remedy, but that following
the introduction of a remedy he requested a reopening within the
statutory one-year deadline of having learned of the said conviction.
The judgment in those proceedings was delivered on 4 May 2000 and the
applicant introduced his application on 5 October 2000. In view of
the aforesaid, the Court has difficulties to accept that the
applicant's complaint regarding the fairness of the criminal
proceedings conducted in absentia has been submitted on time
(see Adah v. Turkey, no. 38187/97, § 195, 31 March 2005).
On the other hand, the matter is intrinsically linked to and at the
heart of the assessment whether the Supreme Court of Cassation's
refusal to grant him a retrial amounted to a denial of justice.
Accordingly, the Court decides to join to the merits the question
whether the six-month rule under Article 35 of the Convention
has been complied with in respect of the applicant's complaint
regarding the alleged unfairness of the proceedings conducted in
absentia.
The
Court further finds that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
C. Merits
As
the requirements of paragraph 3 of Article 6 are to be seen as
particular aspects of the right to a fair trial guaranteed by
paragraph 1, the Court will examine the complaint under both
provisions taken together (see Medenica v. Switzerland, no.
20491/92, § 53, ECHR 2001 VI, and Van Geyseghem v.
Belgium [GC], no. 26103/95, § 27, ECHR 1999 I).
1. General principles concerning trial in
absentia
(a) Right to take part in the hearing and
to obtain a new trial
Although
this is not expressly mentioned in paragraph 1 of Article 6, the
object and purpose of the Article taken as a whole show that a person
“charged with a criminal offence” is entitled to take
part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of
paragraph 3 guarantee to “everyone charged with a criminal
offence” the right “to defend himself in person”,
“to examine or have examined witnesses” and “to
have the free assistance of an interpreter if he cannot understand or
speak the language used in court”, and it is difficult to see
how he could exercise these rights without being present (see Colozza
v. Italy, judgment of 12 February 1985, Series A no. 89, p.
14, § 27; Belziuk v. Poland, judgment of 25 March 1998,
Reports of Judgments and Decisions 1998 II, p. 570, §
37; and Sejdovic v. Italy [GC], no. 56581/00, § 81,
ECHR 2006 ...).
Although
proceedings that take place in the accused's absence are not of
themselves incompatible with Article 6 of the Convention, a denial of
justice nevertheless undoubtedly occurs where a person convicted in
absentia is unable subsequently to obtain from a court which has
heard him a fresh determination of the merits of the charge, in
respect of both law and fact, where it has not been established that
he has waived his right to appear and to defend himself (see Colozza,
cited above, p. 15, § 29; Somogyi v. Italy,
no. 67972/01, § 66, ECHR 2004 IV; and Sejdovic,
cited above, § 82) or that he intended to escape trial (see
Medenica, cited above, § 55).
The
Convention leaves Contracting States wide discretion as regards the
choice of the means calculated to ensure that their legal systems are
in compliance with the requirements of Article 6. The Court's task is
to determine whether the result called for by the Convention has been
achieved. In particular, the procedural means offered by domestic law
and practice must be shown to be effective where a person charged
with a criminal offence has neither waived his right to appear and to
defend himself nor sought to escape trial (see Somogyi, §
67, and Sejdovic, § 83, both cited above).
(b) Waiver of the right to appear at the
trial
Neither
the letter nor the spirit of Article 6 of the Convention prevents a
person from waiving of his own free will, either expressly or
tacitly, the entitlement to the guarantees of a fair trial. However,
if it is to be effective for Convention purposes, a waiver of the
right to take part in the trial must be established in an unequivocal
manner and be attended by minimum safeguards commensurate to its
importance;
furthermore, it must not run counter to any
important public interest (see Håkansson and Sturesson v.
Sweden, judgment of 21 February 1990, Series A no. 171-A, p. 20,
§ 66; Sejdovic, cited above, § 86 and Poitrimol
v. France, judgment of 23 November 1993, Series A no. 277-A, pp.
13-14, § 31).
48. The
Court has held that where a person charged with a criminal offence
had not been notified in person, it could not be inferred merely from
his status as a “fugitive” (latitante),
which was founded on a presumption with an insufficient factual
basis, that he had waived his right to appear at the trial and defend
himself (see Colozza,
cited above, pp. 14-15, § 28). It has also had occasion to point
out that before an accused can be said to have implicitly, through
his conduct, waived an important right under Article 6 of the
Convention it must be shown that he could reasonably have foreseen
what the consequences of his conduct would be (see Jones
v. the United Kingdom (dec.),
no. 30900/02, 9 September 2003
and Sejdovic, cited above, § 87).
49. Furthermore,
a person charged with a criminal offence must not be left with the
burden of proving that he was not seeking to evade justice or that
his absence was due to force
majeure
(see Colozza,
cited above, pp. 15 16, § 30). At the same time, it is
open to the national authorities to assess whether the accused showed
good cause for his absence or whether there was anything in the case
file to warrant finding that he had been absent for reasons beyond
his control (see Medenica,
§ 57 and Sejdovic, § 88, both
cited above).
(c) Representation by counsel of
defendants tried in absentia
Although
not absolute, the right of everyone charged with a criminal offence
to be effectively defended by a lawyer, assigned officially if need
be, is one of the fundamental features of a fair trial (see
Poitrimol, cited above, p. 14, § 34).
At
the same time, it is of capital importance that a defendant should
appear, both because of his right to a hearing and because of the
need to verify the accuracy of his statements and compare them with
those of the victim – whose interests need to be protected –
and of the witnesses. The legislature must accordingly be able to
discourage unjustified absences, provided that any sanctions used are
not disproportionate in the circumstances of the case and the
defendant is not deprived of his right to be defended by counsel (see
Krombach v. France, no. 29731/96, §§ 84, 89 and 90,
ECHR 2001 II; Van Geyseghem, cited above, § 34; and
Sejdovic, cited above, § 92).
It
is for the courts to ensure that a trial is fair and, accordingly,
that counsel who attends trial for the apparent purpose of defending
the accused in his absence is given the opportunity to do so (see Van
Geyseghem, § 33, and Sejdovic, § 93, both cited
above).
2. Application of these principles to the present case
In
the instant case the Court notes that the applicant had been present
and had been assisted by a lawyer of his own choosing when he had
been initially charged with the theft of the electricity cables on 15
October 1997, when the charges had been amended on 16 January 1998
and also when the results of the preliminary investigation had been
presented to him on 30 January 1998. Thus, the Court finds that
the applicant was in possession of sufficient knowledge of the
criminal proceedings against him and his accomplices, that they were
progressing rather rapidly as the case file had been forwarded to the
public prosecutor's office and, accordingly, that it was probable
that he would be indicted and brought to trial.
Separately,
when the applicant had been charged on 15 October 1997 the
authorities had placed a restriction on his movements. This entailed
that he should not leave the village of Brod without an authorisation
from the public prosecutor's office. However, in violation of the
imposed restriction and without informing the prosecuting authorities
of his new address, the applicant changed his place of residence. The
Court notes that there is no indication or claim that the applicant
had good cause in violating the restriction order or that he had
moved for reasons beyond his control. Moreover, he changed his
residence relatively soon after having been presented with the
results of the preliminary investigation on 30 January 1998
because he appears to have been residing in Plovdiv from July 1998
onwards at the latest (see paragraph 35 above). The Court notes that
there is disagreement between the parties as to whether the applicant
had moved to live at his permanent address in the town of Plovdiv
which had been registered with the police or had changed residence
more than once (ibid.). In so far as the parties failed to provide
documentary evidence in support of their respective claims, the Court
considers that it should not give any particular weight to either of
their assertions.
Consequently,
even though the authorities had been unable to serve the applicant
with the indictment against him and the summons to attend the
hearings before the District Court, the latter decided to examine the
case against the applicant and his accomplices in the absence of the
former as it found that this would not impede the proceedings. It
then assigned a court-appointed lawyer to defend the applicant and
proceeded to examine the case. The District Court found the accused
guilty as charged and sentenced the applicant to three years'
imprisonment.
Subsequently,
the Supreme Court of Cassation refused to reopen the criminal
proceedings conducted in the absence of the applicant because it
found that he had known about them and had, by violating the
restriction placed on his movement and changing his place of
residence without informing the public prosecutor's office, wilfully
made himself unavailable to participate in the proceedings against
him and had therefore lost the right to seek their reopening.
In
the light of the circumstances taken as a whole, the Court likewise
considers that through his actions the applicant had brought about a
situation that made him unavailable to be informed of and to
participate in, at the trial stage, the criminal proceedings against
him. It refers in particular to the order restricting his freedom of
movement, the most lenient restriction on his liberty which the
authorities could have imposed in order to guarantee his appearance
in court, and the violation of the same by the applicant soon after
having been informed of the results of the preliminary investigation.
Moreover, up to that stage of the proceedings he had been assisted by
a lawyer of his own choosing and should reasonably have foreseen what
the consequences of his conduct would be.
In
the light of the foregoing, the Court considers that, regard being
had to the margin of appreciation allowed to the Bulgarian
authorities, the applicant's conviction in absentia and the
refusal to grant him a retrial at which he would be present did not
amount to a denial of justice.
Consequently,
there has been no violation of Article 6 § 1 of the Convention,
taken in conjunction with Article 6 § 3 (b), (c) and (d) of the
Convention.
In
view of the above, the Court does not consider it necessary to decide
on whether the six-month rule under Article 35 of the Convention has
been complied with in respect of the applicant's complaint regarding
the alleged unfairness of the proceedings conducted in absentia.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to join to the merits the question
whether the six-month rule under Article 35 of the Convention has
been complied with in respect of the applicant's complaint regarding
the alleged unfairness of the proceedings conducted in absentia
and, after considering the merits, does not consider it necessary
to decide it;
Declares the application admissible;
Holds that there has been no violation of
Article 6 of the Convention.
Done in English, and notified in writing on 28 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer
Lorenzen
Registrar President
