CASE OF BONEV v. BULGARIA
Violation of Art. 6-1+6-3-d;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
5. At the material time the applicant was a vagrant, without a permanent place of abode. It seems that he had several convictions for various offences and had served jail time. 6. On an unknown date in the end of September or in early October 1998 criminal proceedings were instituted against the applicant for having heavily beaten up an acquaintance of his, Mr S.K. (“the victim”) at a construction site on 26 September 1998, and thus having caused his death on one of the following days. 7. On an unspecified later date the investigator in charge of the case questioned Mr L.A., an eyewitness to the incident. The applicant was not present. Mr L.A. died a few days later, in early October 1998. 8. On 6 October 1998 the applicant was arrested. 9. On 10 October 1998 the investigator interviewed Mr I.Y., a witness. The applicant was not present. 10. On 21 October 1998 the applicant was charged with intentionally murdering the victim in an especially cruel manner and with extreme ferocity, while being a dangerous repeat offender, contrary to Article 116 § 1 (6) and (11) of the Criminal Code of 1968, as in force at that time, and placed in pretrial detention. 11. On 28 October 1998 the investigator questioned Mr Z.T., another eyewitness to the incident. The applicant was not present. 12. On 16 November 1998 the applicant was questioned in the presence of an ex officio counsel. It seems that he admitted to having beaten the victim with a wooden board. 13. On 26 November 1998 the charges were diminished. The applicant was accused of intentionally causing severe bodily injury to the victim and thus negligently bringing about his death, while being a dangerous repeat offender, contrary to Article 124 §§ 1 and 3 of the Criminal Code of 1968. His pretrial detention was continued. 14. The Bourgas Regional Prosecutor’s Office subsequently filed an indictment against the applicant with the Bourgas Regional Court. 15. The trial took place in the morning of 2 February 1999 at the Bourgas Regional Court. The applicant did not have counsel and was acting pro se. 16. The court first heard the applicant, who admitted to having beaten the victim with a wooden board, but stated that the next day he had seen him in good health. He had learned that the victim had died only on 6 October 1998, when arrested by the police. 17. The court then questioned two expert witnesses and admitted their reports in evidence. The first expert, a psychiatrist, gave an opinion on the applicant’s mental state at the time of the commission of the alleged offence and on his fitness to stand trial, on the basis of documents in the investigation case file and an examination of the applicant on 12 November 1998. The second expert, a forensic medical doctor, who had carried out an autopsy on the victim’s body on 30 September 1998, gave an opinion on the cause of the death, the extent of the injuries found on the body, the possible timing of their inflicting and the causal link between the injuries and the death. 18. After that the court heard the victim’s sons, who testified about their father’s character. 19. As Mr I.Y. and Mr Z.T. had not been found at the addresses which they had indicated during the preliminary investigation and had thus not been called at the trial, and as Mr S.V. did not appear despite being subpoenaed, the prosecution requested that their statements made during the preliminary investigation be read out before the court. The applicant agreed. The court, acting in pursuance of Article 279 § 1 (4) of the Code of Criminal Procedure of 1974 (see paragraph 31 below), observing that the first two witnesses had not been found at the addresses which they had indicated and were permanently changing their places of abode, and noting that the applicant agreed to the reading out of their statements, decided to admit these statements in evidence. The court also read out the statement of Mr S.V. on the basis of Article 279 § 1 (5) of the Code (see paragraph 32 below). 20. The court then questioned Mr S.V., who showed up later that morning. He testified that he had heard from Mr Z.T. and Mr L.A. that the applicant had beaten up the victim and that on the day after the incident he had seen the victim who could not stand up. 21. At the end of the trial the court heard the parties’ closing statements. The applicant said that he considered himself guilty, expressed his regrets for his act, and pleaded for a minimal sentence. 22. In a judgment of the same day the Bourgas Regional Court found the applicant guilty as charged. It sentenced him to ten years’ imprisonment. On the basis of the statements of Mr L.A. and Mr Z.T., the eyewitnesses, the testimony of Mr S.V., who had learned about the incident from them, and the statements of the applicant made during the preliminary investigation and at the trial, the court found that during the early hours of 26 September 1998 the applicant had heavily beaten up the victim with a wooden board at a construction site, after consuming a considerable amount of alcohol and having had a quarrel and a fight with him and the eyewitnesses several hours earlier. The court went on to find, on the basis of the statements of Mr L.A. and Mr Z.T. and the testimony of Mr S.V., that the victim had been in a very bad state of health the following day, when the three had visited him at the construction site. The court relied on the opinion of the forensic expert to determine that the death had occurred in all probability on 28 September 1998 and could be the result of a beating as the one described by the applicant and the eyewitnesses. It relied on the other expert’s opinion to conclude that the applicant had not been as heavily intoxicated by alcohol as to be unable to control his actions. 23. After delivering its judgment, the court ordered that the applicant be maintained in custody pending any appeals against it. 24. The applicant appealed to the Bourgas Court of Appeals. He complained, inter alia, that the Bourgas Regional Court had convicted him on the basis of the statements of persons who had not been present during the trial. He specifically requested the court to call Mr I.Y. and Mr Z.T. as witnesses. 25. In a decision of 16 April 1999 the Bourgas Court of Appeals rejected the applicant’s request to call Mr I.Y. and Mr Z.T. It held that both were vagrants and had no permanent place of abode where to be subpoenaed. The subpoenas sent out before the trial to the addresses which they had indicated during the preliminary investigation had been returned with a mention that neither of them lived at the respective address. The court went on to state that it was impossible for it to locate and subpoena Mr I.Y. and Mr Z.T. 26. After holding a hearing on 18 May 1999, in a judgment of the same day the Bourgas Court of Appeals upheld the lower court’s judgment. It fully confirmed its findings of fact and went on to state that it had not erred by reading out the statements of Mr Z.T. and Mr L.A. made during the preliminary investigation and admitting them in evidence. These two witnesses were vagrants, did not have a permanent place of abode and could not be found in order to be subpoenaed. Moreover, the applicant had acquiesced to the reading of their statements and did not dispute that he had beaten up the victim and had said that he was guilty. The court held that the applicant’s guilt had been established beyond doubt on the basis of the statements of the witnesses, the admissions of the applicant and the findings made during the victim’s autopsy. 27. The applicant appealed on points of law to the Supreme Court of Cassation. The counsel representing him argued, inter alia, that he had been convicted on the basis of the statements of persons whom the court had not heard personally and whom the applicant had not been able to crossexamine. The courts below had not made any effective efforts to locate Mr Z.T. and Mr I.Y. and there was no indication that Mr L.A. had indeed deceased. He relied on Article 6 § 3 (d) of the Convention. 28. The Supreme Court of Cassation held a hearing on 17 September 1999. 29. In a final judgment of 8 November 1999 the Supreme Court of Cassation upheld the lower court’s judgment, fully confirming its findings of fact. It held that the applicant’s complaint that Mr L.A. had not been called by the lower courts was unfounded, because the applicant had not requested that. In any event, it had been established that Mr L.A. had died before the trial. As regards the reading of the statements of Mr Z.T. and Mr I.Y., the court found they could not have been called at the trial because they did not have permanent places of abode and were vagrants. The subpoenas sent to the address indicated by them during the preliminary investigation had been returned with the notes that one of them was unknown at that address and the other had left that address and his current address was likewise unknown. In these circumstances, their statements had been properly read out, to which the applicant had agreed. The court further noted that the lower courts’ findings of fact rested also on the applicant’s statements made during the preliminary investigation and at the trial. 30. At his trial the applicant stood accused of an offence under Article 124 §§ 1 and 3 of that Code, which, as in force at the relevant time, provided that whoever negligently caused the death of another by intentionally inflicting him bodily injury while being a dangerous repeat offender was punishable by a term of imprisonment ranging from five to fifteen years in the case of serious bodily injury, from three to ten years in the case of intermediate bodily injury, and up to five years in the case of light bodily injury. 31. Article 279 § 1 (4) of that Code, as in force at the relevant time, provided that the statement of a witness given at the preliminary investigation could be read out at the trial if the witness could not be found in order to be called or had died. The Supreme Court has said that statements made by a witness during the preliminary investigation may be read out at the trial and admitted in evidence only if the court expressly finds that, after a thorough effort to locate the witness, it is impossible to find him or her (реш. № 301 от 19 юни 1981 г. по н.д. № 292/1981 г., ВС, II н.о.; реш. № 674 от 16 януари 1991 г. по н.д. 765/1990 г., ВС, ІІ н.о.). 32. By Article 279 § 1 (5) of the Code, as in force at the material time, a witness’ statement made during the preliminary investigation could also be read out at the trial if the witness, despite being duly subpoenaed, did not appear and the parties agreed to this. The same provision, amended effective 1 January 2000 (after the proceedings in issue), added the requirement that the court had to explain to an accused acting pro se that the statements thus read out will be used in reaching the verdict. 33. Article 95 § 1 of the Code provided that a recalcitrant witness could be fined and brought for questioning by force. By Article 157 § 2 of the Code, a witness could be brought by force even without being previously subpoenaed if he or she did not have a permanent place of abode. The authority responsible for bringing a witness by force was the Ministry of Internal Affairs (Article 157 § 4 of the Code). 34. Article 91 § 1 of the Code provided that the conviction could not rest solely on the admission of the accused.