CASE OF STOICHKOV v. BULGARIA
Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Christos Rozakis
8. The applicant was born in 1958. He is presently detained in the Bobov Dol prison. 9. During the 197588 period the applicant was convicted six times of various offences: theft, car theft, deserting military duties and possession of narcotic drugs. 10. In 1988 the applicant fled Bulgaria to Austria, travelling through the former Yugoslavia and Italy on a Yugoslav passport. The applicant submits that he left Bulgaria on 25 June 1988, but according to the Pernik District Court's judgment of 30 October 1989 (see paragraph 15 below) he committed a rape on 13 July 1988 and an attempted rape on 3 September 1988, both offences taking place in Bulgaria. In 1990 the applicant settled in the United States of America, where he lived until 1999. 11. On 13 September 1988 criminal proceedings were opened against the applicant on charges of rape. There is no indication – and it has not been argued by the Government – that the applicant was notified of the proceedings. 12. On 16 November 1988 the proceedings were stayed, most probably because the applicant was abroad. The proceedings resumed on 29 June 1989 and thereafter were conducted in the applicant's absence. 13. On 7 September 1989 the Pernik District Prosecutor's Office submitted an indictment against the applicant to the Pernik District Court. 14. The court held a hearing on 30 October 1989. The applicant was represented by an ex officio counsel, as mandated by Article 70 § 1 (6) of the Code of Criminal Procedure (“the CCP”). 15. In a judgment of 30 October 1989 the Pernik District Court found the applicant guilty of rape and attempted rape and sentenced him to ten years' imprisonment. The court found that on 13 July 1988 the applicant had decoyed a Mrs D.K., who vaguely knew him, into following him into a house, where he had threatened and beaten her into having sexual intercourse with him. The court also found that on 3 September 1988 the applicant had decoyed, in a similar manner, an acquaintance of his, a Ms S.V., had likewise threatened and heavily beaten her and had cut her with a knife. She had, however, managed to break out, thus avoiding sexual intercourse with the applicant. The court based its findings of fact on the testimony of Mrs D.K., Ms S.V., Mrs D.K.'s husband, two other witnesses, medical reports and other written evidence, including two notes written by the applicant himself. 16. No appeal having been lodged against the judgment, it came into force on 14 November 1989. 17. On 16 January 1997 the Pernik District Court's casefile, containing all documents relevant to the proceedings, was destroyed. Only a copy of the judgment was kept in the archive of the court. 18. On 21 November 1989 the Pernik District Prosecutor's Office transmitted a copy of the judgment to the police with a view to the applicant's apprehension for the purpose of enforcing his sentence. The letter accompanying the judgment stated that the applicant was believed to be in Austria, but his exact whereabouts were unknown. 19. On 25 April 1990 the Pernik District Prosecutor's Office sent a copy of the judgment to the Chief Prosecutor's Office with a view to the applicant's extradition from Austria. On 14 May 1990 the Chief Prosecutor's Office wrote back to the Pernik District Prosecutor's Office, stating that the legal cooperation treaty between Bulgaria and Austria contained no provisions for assistance in criminal cases, and that therefore there was no possibility to request the applicant's extradition from Austria. 20. On 22 September 1992 the Pernik District Prosecutor's Office sent a second copy of the judgment to the police with instructions to enforce it in the event the applicant returned to Bulgaria. 21. On 9 November 1995 the police issued a nationwide search warrant for the applicant. Interpol was also requested to establish the applicant's whereabouts, apparently to no avail. 22. In November 1999 the applicant came back to Bulgaria, to visit relatives. 23. On 18 February 2000 he went to a police station in Pernik to renew his driver's licence. The same day he was arrested and taken to a prison facility to start serving his sentence. 24. On 1 June 2000 the applicant filed with the Pernik District Prosecutor's Office a request for release. He argued that the tenyear limitation period for the enforcement of his sentence had expired in 1999. 25. On 9 June 2000 the Pernik District Prosecutor's Office rejected the request, holding that the ten-year limitation period had been interrupted on several occasions and had therefore not expired. The latest interruption had taken place on 22 September 1992, which was less than ten years before the day of the applicant's arrest. 26. The applicant appealed to the Pernik Regional Prosecutor's Office. 27. On 11 August 2000 the Pernik Regional Prosecutor's Office dismissed the appeal, holding that actions had been undertaken for the enforcement of the applicant's sentence in 1992 and in 1995. Therefore, the running of the limitation period had been interrupted and a new period had started to run in 1995, due to expire on 9 November 2005. 28. The applicant appealed to Sofia Appellate Prosecutor's Office, submitting that the actions which had been undertaken during the 19892000 period had not in fact had the effect of interrupting the running of the limitation period. 29. On 27 October 2000 the Sofia Appellate Prosecutor's Office dismissed the appeal, holding that the running of the limitation period for the enforcement of a sentence was interrupted by every act of the competent authorities aimed at its enforcement. These acts could be legal acts, or organisational, or technical acts. During the 19892000 period the competent authorities had undertaken a number of acts for enforcing the applicant's sentence. In particular, a copy of the judgment had been sent to the police in 1992 and a nationwide search warrant had been issued for the applicant in 1995. These had had the effect of interrupting the running of the limitation period. 30. The applicant appealed to the Supreme Cassation Prosecutor's Office. 31. On 20 December 2001 the Supreme Cassation Prosecutor's Office dismissed the appeal, holding that the running of the limitation period had been interrupted on several occasions and that therefore it had not expired as of 18 February 2000. 32. In the meantime, in February 2001, the applicant lodged with the Supreme Court of Cassation a request for the reopening of the 198889 criminal proceedings against him on the basis of Article 362a of the CCP. He also argued that the limitation period for the enforcement of his sentence had expired and requested release on that basis. 33. The Supreme Court of Cassation rejected the request in a judgment of 19 July 2001. It held that the request was partly inadmissible and partly illfounded. The applicant's request for reopening and rehearing of the case was inadmissible, since that could not be done, the casefile having been destroyed in 1997. Whether the casefile had been destroyed in accordance with the relevant rules was immaterial, the fact remained that as a result, a rehearing was impossible in practice. Insofar as the applicant could be understood as requesting reopening, quashing of the conviction and suspension or discontinuation of the proceedings, that request was illfounded, as it had not been established that at the time of the trial there had existed grounds for suspension or discontinuation of the proceedings. As to the applicant's request for the application of the statute of limitations, it was inadmissible, as the Supreme Court of Cassation had no primary jurisdiction in such matters. 34. On 21 August 2002 the applicant requested the president of the Pernik District Court to restore the casefile of the 198889 criminal case against him. It seems that he has received no reply to his request. 35. The CCP allows trial in absentia in certain limited circumstances. According to Article 268 § 3 of the Code, as in force at the material time, it was possible when: “[the trial in absentia] would not hamper the ascertaining of the truth ... [and] the accused [was] outside the territory of Bulgaria, if: 1. his residence [was] unknown; [or] 2. he [could not] be summoned because of other reasons; [or] 3. he ha[d] been duly summoned and ha[d] not indicated a good cause for his failure to appear.” Cases where the offence carried a term of imprisonment could be heard in absentia “only if [the accused's] residence in the country [was] unknown and [had] not been established after a thorough effort to locate [him]” (Article 268 § 4 of the CCP). When an accused is tried in absentia, he must be mandatorily represented by an ex officio counsel (Article 70 § 1 (6) of the CCP). 36. Until 1 January 2000 Bulgarian law did not provide for reopening of criminal cases heard in absentia. Thereafter such reopening became possible in cases where the convicted person was unaware of the criminal proceedings against him or her and submits a request for reopening within one year after having learned of the conviction (new Article 362a of the CCP). The request is examined by the Supreme Court of Cassation (Article 363 of the CCP), which may quash the conviction and either order rehearing of the case (Article 364 § 1 of the CCP) or discontinue or suspend the criminal proceedings (Article 364 § 2 of the CCP). 37. Article 82 §§ 1 and 2 of the Criminal Code (“the CC”), insofar as relevant, provides that a judgment imposing a sentence from three to ten years' imprisonment cannot be enforced more than ten years after its entry into force. The running of this limitation period is interrupted by every act effected by the competent authorities for the purpose of enforcing the sentence (Article 82 § 3 of the CC). Such interruptions notwithstanding, the sentence may no longer be enforced if fifteen years have elapsed since the judgment's entry into force (Article 82 § 4 of the CC). 38. The CCP does not contain express provisions establishing a procedure to be followed in cases where there is a dispute as to whether a person has been detained in execution of a sentence after the expiry of the limitation period for its enforcement. Article 373 § 1 (1) of the CCP provides that the court which has delivered a judgment rules on all difficulties or uncertainties relating to its interpretation. In general, the authority responsible for supervising legality in the enforcement of sentences of imprisonment is the competent prosecutor (Article 375 § 2 of the CCP, section 118(2) of the Judicial Power Act and section 4(1) of the Execution of Sentences Act). In particular, the competent prosecutor has to order the release of every imprisoned person whom he or she finds deprived of liberty unlawfully (section 119(7)(1) of the Judicial Power Act). 39. By section 91(4) of Regulation no. 28 of 1995 on the functions of the registries of the district, regional, military and appellate courts („Наредба № 28 за функциите на служителите в помощните звена и канцелариите на районните, окръжните, военните и апелативните съдилища“), in force at the material time and until 28 November 2004, criminal casefiles where the sentence had not been enforced were to be kept in the court's archive for a period equal to the limitation period for the enforcement of the sentence. The superseding regulations provide the same (see section 148(4) of the Rules on Court Administration in the District, Regional, Military and Appellate Courts) 40. Section 14 of the Regulation provided that if a casefile was lost or destroyed prematurely, it could be restored by order of the president of the respective court, acting ex officio or pursuant to a request by a party. This was technically done by the administrative secretary of the court, who gathered all documents relating to the case which were kept by the court, by other bodies and by the parties to the case. After all available materials were collected, the court held a public hearing, to which the parties were summoned, and ruled on the restoration of the casefile. The court's order was subject to appeal to a higher court. The superseding regulations are broadly similar (see section 74 of the Rules on Court Administration in the District, Regional, Military and Appellate Courts). 41. Section 2 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), which sets out causes of action for tort claims against the investigation and prosecution authorities and the courts, provides, as relevant: “The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for unlawful: 1. pretrial detention ..., if [the detention order] has been set aside for lack of lawful grounds; 2. accusation of a crime, if the accused is acquitted or if the criminal proceedings are discontinued because the crime was not committed by the accused, because the act committed by the accused does not constitute a crime, or because the criminal proceedings were instituted after the expiry of the limitation period or despite an amnesty; 3. conviction of a crime ... if the convicted is [subsequently] acquitted ...; ... 6. execution of a sentence above and beyond the specified period.” 42. The reported caselaw under section 2 of the Act suggests that the term “unlawful” refers to unlawfulness under domestic law (реш. № 859/ 2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС, реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС). 43. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). The Government have not referred to any successful claim under general tort law in connection with unlawful deprivation of liberty.