CASE OF DEMEBUKOV v. BULGARIA
Preliminary objection joined to merits (six-month rule);No violation of Art. 6
Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
6. The applicant owned a house in the village of Brod where he resided at the time of the events. 7. On 18 September 1997 the cables supplying the village with electricity were stolen. 8. On 2 October 1997 a preliminary investigation was opened against the applicant and two other individuals for the theft of the electricity cables. 9. 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. 10. 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. 11. On 16 January 1998 the charges against the applicant were amended; he was once again assisted by a lawyer. 12. The results of the preliminary investigation were presented to the applicant and his lawyer on 30 January 1998. 13. 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. 14. 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. 15. 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. 16. The first hearing before the District Court was scheduled for 22 September 1998, but was postponed, for undisclosed reasons, to 15 October 1998. 17. 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. 18. 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. 19. The second hearing was conducted on 24 November 1998; the applicant was summoned to it through his court-appointed lawyer. 20. 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. 21. No appeal was lodged against the judgment, so it became final on 28 December 1998. 22. The applicant was arrested on 9 February 1999 to serve the prison sentence, which he did until 27 April 2001. 23. 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. 24. 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. 25. 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.” 26. 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). 27. 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). 28. 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). 29. 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). 30. 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). 31. 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).