CASE OF PARASKEVA TODOROVA v. BULGARIA - [English Translation] by European Roma Rights Centre "ERRC"
Violation of Art. 14+6-1;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1952 and lives in Trud, in the Plovdiv region. She is a Bulgarian citizen and belongs to the Roma ethnocultural minority. 6. In 2005, on an undisclosed date, the Plovdiv District Prosecutor’s Office opened criminal proceedings against the applicant for fraud; she was reproached in particular for the fraudulent appropriation of the sum of 2,600 Bulgarian levs (approximately 1,300 euros) and the jewels of a certain G.S. On 23 December 2005, she was sentenced to trial in the District Court of Plovdiv. 7. During the proceedings, the District Court heard the prosecution and defence witnesses, gathering documentary evidence and the conclusions of experts. The concerned party claimed that on the day of the events in question, 12 July 2005, she was in Zlatitsa, a town about 100 kilometres from the victim’s village, and that she had consulted a doctor because she had felt ill. She submitted a doctor’s medical certificate and had her son’s companion interviewed. In her defence speech, her lawyer emphasised that the police had not found significant amounts of money or jewellery at the applicant’s home. She challenged the reliability of the identity parade carried out at the preliminary stages of investigation and drew the court’s attention to the contradictions in the evidence of the prosecution’s witnesses as to the age and the physical appearance of the applicant who had defrauded the victim. The lawyer insisted that the first of three prosecution witnesses, a neighbour, had seen a woman of Roma origin approaching and speaking with the victim, but that she was not in a position to recognize the individual. In addition, during the identity parades and in the courtroom, the second witness, another neighbour, had stated that she was not sure whether the applicant was the woman who had defrauded the victim. As for the third of these witnesses, the counsel for the applicant noted that she was the granddaughter of the victim and invited the court not to grant credit to her statements. The lawyer admitted that the applicant had previously been sentenced for theft. However, her last conviction was more than twenty years old. 8. In her defence speech, the district prosecutor invited the court to recognize the applicant guilty of the alleged facts: she had been recognized by the victim and two witnesses against her. The testimony of a third witness corroborated the conclusion that the concerned party had fraudulently taken the money and jewels of the victim. She invited the court not to grant credit to the evidence of the defence’s witness, who was among those close to the applicant. In view of the preponderance of mitigating circumstances in the present case and of the applicant’s state of health, the prosecutor argued in favour of a suspended conviction and a sentence close to the minimum provided for by the Criminal Code. 9. On 29 May 2006, the Plovdiv District Court, consisting of a professional judge and of two lay assessors (съдебни заседатели), pronounced its judgment in which it found the applicant guilty of defrauding G.S. and sentenced her to three years of imprisonment. The reasons for the judgment were issued to the applicant in June 2006 and bore the signature of the professional judge who had presided over the District Court’s trial. At the beginning of these reasons, among other personal information used to identify the applicant, such as her place and date of birth, her home address and her unique identification number, her Roma origin was also listed. In the fact-finding portion of the reasoning, the court found that the accused had entered the victim’s home fraudulently, suggesting to her that her family had been struck by black magic which she could dispel. Taking advantage of G.S.’s credulity, she took the money and jewellery that she then kept in her home. The court based these findings on the statements of the prosecution witnesses which it found to be consistent with the other evidence gathered. It did not retain the statements of the defence witness who had explained that the applicant had visited relatives in Zlatitsa in July 2005 and that she had consulted a doctor there. The court refused to take into account the medical certificate presented by the applicant: even if it was dated 12 July 2005, there was no date after its reference number, as is normally the case. Similarly, the doctor had affixed his stamp on the document, but it lacked the stamp of the hospital. The court found that the sentence should be three years’ imprisonment because of the balance between the aggravating and mitigating circumstances in this case. Among the aggravating circumstances, it mentioned the negative data on the applicant’s personality, previous convictions, the absence of a stable job, the gravity of the alleged acts, the high amount of money taken by the applicant, and the operating mode thereof. The court held as a mitigating circumstance the advanced age of the applicant. 10. The District Court refused to suspend the execution of the three-year sentence for the following reasons: “The decision to impose an effective sentence of imprisonment in this case arises from the legal obligation for the court (Article 66 of the Penal Code) to determine whether suspension of the sentence’s execution is compatible with the objectives of the penal sanction. The court considers that this is not the case in this case, especially as there is a feeling of impunity, especially among members of minority groups, for whom a conditional sentence is not a conviction (this concerns general prevention). Moreover, this conclusion is equally valid with regard to special prevention – the execution of the sentence imposed will prevent [the applicant] from committing other criminal offenses and [will enable her] to correct her behaviour and to rehabilitate herself.” 11. The applicant appealed against this judgment. She considered that the court based its findings on the statements of the prosecution’s witnesses, who did not prove her implication in the acts alleged against her, and that the lower court refused to obtain evidence corroborating the defence’s case. At her request, the Plovdiv Regional Court questioned the doctor who issued the medical certificate, as well as the nurse who worked with him. Both confirmed that the applicant had come to the doctor’s office on the morning of 12 July 2005 for a matter of high blood pressure. The examination was finished after twenty minutes. In her plea, the applicant’s lawyer reiterated her arguments before the first-instance court concerning the credibility of the prosecution’s witnesses’ statements and the accountant’s alibi (see paragraph 7 above) and argued that the lower court had taken into account the applicant’s ethnicity to justify its decision. She invited the regional court to acquit her client or to give her no more than a suspended sentence. 12. On 16 October 2006, the Plovdiv Regional Court upheld the judgment of the first-instance court. It upheld again the statements of the prosecution’s witnesses, which it considered consistent with the other evidence. It did not uphold the statements of the applicant’s son’s companion, believing that they were not sufficiently specific. It found that the applicant’s allegation that she had, on 12 July 2005, consulted a doctor in Zlatitsa was well established. However, in the absence of any indication as to the exact time of the medical visit, the court found that, given the length of the consultation and the distance between the town of Zlatitsa and the victim’s village, in theory as well as in practice, the interested party would have had the opportunity to go to G.S.’s home at the time indicated by the witnesses, namely around noon on the same day. In its part on the appropriateness of suspending the execution of the sentence, the judgment of the Regional Court reads as follows: “The appeal court shares the reasons for the inapplicability of a suspended sentence with respect to Paraskeva Todorova. It agrees wholeheartedly with the opinion of the initial court that a possible suspension of execution could not contribute to the accomplishment of the objectives of general and specific prevention because, on one hand, it would have created a feeling of impunity, and on the other, it would not have prevented [the applicant] from resuming her wrongful behaviour, and the sentence would not have had a deterring effect on other members of society.” This judgment was not subject to appeal in ordinary cassation. 13. On 6 November 2006, the applicant lodged an appeal with the Supreme Court of Cassation provided for by Article 422, paragraph 1, point 5 of the Code of Criminal Procedure. She claimed that her conviction was unfair, discriminatory, and contrary to domestic law and to international conventions ratified by Bulgaria, including Article 6 § 1 of the Convention. The applicant requested the High Court to order the re-examination of the case or to potentially modify the judgment of the Regional Court. 14. In her defence brief submitted to the High Court, the applicant’s counsel challenged in particular the courts’ reasoning concerning sentencing and the refusal to suspend the execution of the sentence. It argued that the file contained no information which could lead to the conclusion that there was negative information on the applicant’s personality. The applicant had received a pardon after her prior convictions, which obligated the courts to no longer consider her criminal record as an aggravating circumstance. Given the unemployment rate in the country and the age of the applicant, the lack of a stable job could not be considered as such a circumstance. As for the gravity of the events, this was part of the very characteristics of the penal infraction for which the conviction had been made, which prevented the courts from taking up the same argument for also arguing it as an aggravating circumstance. Moreover, according to the consistent legal precedents of the domestic courts, the amount of the money appropriated was not significant. The decision of the courts not to suspend the execution of the applicant’s sentence was motivated by her membership with a minority ethnic group. The applicant’s counsel argued that this same motivation demonstrated the bias of the court that had sentenced her client. 15. In a judgment on 5 June 2007, the Supreme Court of Cassation dismissed the applicant’s appeal. The High Court found that the lower courts had correctly established the facts on the bases of the relevant evidence gathered during the criminal investigation and in court. They had correctly characterized the established events as fraud and determined the length of the sentence imposed by taking into account the seriousness of the events and the personality of the applicant in light of previous criminal infractions. The Supreme Court of Cassation admitted that the formal conditions for a sentence suspension had been met, particularly in view of the fact that the applicant had been rehabilitated. However, it found that the conviction of an effective sentence was justified for the following reasons: “It has been rightly admitted [by the lower courts] that the execution of the sentence was indispensable and justified from society’s point of view. Thus, the accused will be deprived of the opportunity to resume her wrongful behaviour and [the penal sanction] will have a deterring effect on other members of society.” 16. Article 6, paragraph 2 of the Constitution proclaims the principle of equality of citizens before the law and prohibits any restriction of their rights or privileges based on, among others, race or ethnicity. Article 11, paragraph 2 of the Code of Criminal Procedure of 2006 (hereinafter the CCP), obligates the courts, the public prosecutor’s department, and the bodies responsible for the criminal investigation to apply the law uniformly to all citizens. 17. According to Article 66 of the Penal Code, the court may suspend enforcement of the sentence of imprisonment imposed if the term of imprisonment does not exceed three years, if the concerned party has not already been convicted to a term of imprisonment for a criminal offense prosecuted ex officio and if the court finds that the objectives of the penal sanction can be attained without the imposition of an effective penalty. The existence of a previous conviction does not preclude, in principle, the application of Article 66 of the Penal Code, if the party in question has benefited from rehabilitation (see, for example, Решение № 13 от 25.01.2001г. на ВКС по н.д. № 700/2000г., ІІ н.о.). 18. According to Article 36 of the Penal Code, the imposition of a criminal penalty has the following objectives: to correct the behaviour of the convicted person and encourage him or her to respect the laws and virtue; to prevent the possibility for him or her to commit other criminal offenses; to prevent criminal offenses by other members of society and encourage in them respect for the law and good virtues. 19. According to Article 346 of the CCP, the judgments of regional courts rendered in the appeal court, when they confirm the judgments of initial courts, are not susceptible to ordinary appeal. 20. Nevertheless, these judgments can be criticised for the same deficiencies which justify appeal in cassation (non-observance of substantive or procedural legislation or imposition of an unfair penalty) before the Supreme Court of Cassation by the appeal provided by Article 422, paragraph 1, point 5 of the CCP. This plea, which the legislature regulated in the chapter of the CCP dedicated to the reopening of criminal proceedings, can be introduced by the sentenced person, through the court of first instance (Article 422, paragraph 2) within a period of six months from the date of the judgment of the appeal court (Article 421, paragraph 3 of the CCP). 21. If the Supreme Court of Cassation finds any of the aforementioned breaches of substantive or procedural rules, it is bound to overturn the judgment of the lower court and may remit the case for reconsideration, terminate the criminal proceedings, acquit the person concerned or amend the judgment under appeal (Article 425, paragraph 1 of the CCP). 22. In view of Articles 420, paragraph 1, Article 421, paragraph 2 and Article 422, paragraph 1, point 4 of the CCP, the public prosecutor is obligated to request the reopening of the criminal proceedings of a convicted person within one month of the judgement of the European Court of Human Rights finding a violation of the Convention, if the violation found is of particular importance for the outcome of the criminal proceedings. The body competent to decide in this case is the Supreme Court of Cassation.