FIRST SECTION

DECISION

Application no. 39792/98 by Veselin Stelianov ZHEKOV against Bulgaria

The European Court of Human Rights (First Section), sitting on 6 November 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky ,

Mrs E. Steiner, judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 8 October 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Veselin Stelianov Zhekov, is a Bulgarian national who was born in 1969 and lives in Sofia. He was represented before the Court by Mr Ch. Spasov, a lawyer practising in Sofia. The respondent Government were represented by Ms M. Dimova, co ‑ agent, of the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. The circumstances of the case

At about 3.10 p.m. on 21 November 1989 a military personnel carrier driven by the applicant, who was then a private in the Bulgarian army, hit a car and caused the death of two persons.

The same day an investigation was opened into the accident.

On 25 January 1990 the applicant was charged with involuntary manslaughter of two or more persons while driving, an offence carrying a penalty of up to ten years’ imprisonment. He was questioned and was allowed to consult the investigation case file.

On 26 January 1990 the investigator recommended that the applicant be committed for trial and sent the file to the Regional Military Prosecutor’s Office in Sofia.

On 15 February 1990 the applicant was questioned by a prosecutor.

On 19 February 1990 the Regional Military Prosecutor’s Office referred the case back for further investigation.

On 27 February 1990 the applicant was allowed to go on home leave. He was due to return to his unit on 8 March 1990, but apparently failed to do so.

On 9 March 1990 the investigator recommended that the proceedings be stayed because the applicant had absconded and his whereabouts were unknown. On 12 March 1990 the Regional Military Prosecutor’s Office stayed the proceedings.

On an unknown later date the applicant moved to Germany, where he resided throughout the remainder of the proceedings. The authorities tried to establish his whereabouts in Bulgaria or whether he had left the country, but their efforts were unsuccessful.

On 30 January 1991 the investigator recommended that the applicant be committed for trial in absentia .

On 13 February 1991 the Regional Military Prosecutor’s Office resumed the proceedings and sent the case file to the investigator.

On 7 June 1991 the investigator requested the Blagoevgrad Bar to appoint a lawyer to represent the applicant.

On 11 June 1991 the investigator allowed the applicant’s ex officio counsel to acquaint himself with the case file.

On 17 September 1991 the applicant was indicted.

On 19 March 1992 the Regional Military Court in Sofia referred the case back to the prosecution with instructions to indicate where and how the applicant had been searched for.

On 21 July 1992 the case was again sent to the court, which on 31 August 1992 scheduled a hearing.

The hearing was held on 23 September 1992. The applicant, who was absent, was represented by his ex officio counsel. On the same day the court found the applicant guilty and sentenced him to six years’ imprisonment and eight years’ prohibition to drive a motor vehicle. No appeal was made against the judgment and it entered into force.

The applicant submitted that he was unaware of these developments. When he accidentally found out about the judgment in 1994, he retained a lawyer to submit a petition for review to the Supreme Court. In the petition, lodged on 10 November 1994, he complained that the Regional Military Court had not gathered all relevant pieces of evidence, that its judgment was ill-founded, that it had erred in its application of the substantive law, that the sentence was patently unfair and that there had been a breach of the rules of procedure in that the court had held a trial in absentia without making appropriate efforts to locate him. He asked that the judgment be set aside and the case be remitted for retrial.

The Supreme Court held a hearing on 16 November 1995 during which the applicant was represented by his counsel. The applicant remained in Germany and did not attend the hearing.

The Supreme Court gave judgment on 29 December 1995. It found the applicant’s sentence too severe and reduced the term of imprisonment to three years. It rejected the remainder of the complaints, holding that the authorities had made adequate efforts to locate the applicant and that he had been defended by an ex officio counsel. The court also held that the Regional Military Court had correctly assessed the evidence and established the facts of the case.

The applicant was not notified of the judgment of the Supreme Court. He alleged that his lawyer did not inform him either.

On 7 July 1997 the applicant was arrested by the German authorities pursuant to an extradition request by the Bulgarian authorities. He submitted that it was only then that he became aware of the Supreme Court’s judgment.

On 5 August 1997 the applicant submitted to the Regional Military Prosecution Office in Sofia a request for a reopening of the proceedings on the ground of newly discovered evidence. By a decision of 25 September 1997 his request was rejected. This decision was upheld by the General Military Prosecution Office on 21 October 1997.

On 12 January 1998 the applicant was transferred to Bulgaria and started serving his sentence.

By a decree of 7 July 1998 the President of Bulgaria commuted the applicant’s three ‑ year sentence to a year and a half.

The applicant was released on 18 September 1998.

B. Relevant domestic law and practice

1. Trial in absentia

At the relevant time the Code of Criminal Procedure (“CCP”) allowed trial in absentia in certain limited circumstances. By Article 268 § 3, it was possible when:

“[its holding] would not hinder the ascertaining of the truth ... [and] the accused [was] outside the territory of Bulgaria, if:

1. his residence [was] unknown;

2. he [could not] be summoned because of other reasons;

3. he ha[d] been duly summoned and ha[d] not indicated good cause for his failure to appear; ...”

In cases where the offence carried a term of imprisonment, the case 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, as in force at the relevant time).

Until 1 January 2000 Bulgarian law did not provide a possibility for reopening of cases heard in absentia . Thereafter such reopening became possible where the convicted person was unaware of the criminal proceedings against him and submitted a request for reopening within one year after learning about the conviction (new Article 362a of the CCP).

2. Procedure and powers of the Supreme Court in proceedings for review of a final judgment

At the relevant time Bulgarian criminal procedure provided for three levels of jurisdiction: trial, appellate, and review.

In review proceedings the Supreme Court did not hold a trial of fact (Article 326 in conjunction with Article 358 § 4 of the CCP, as in force at the relevant time). It did not admit or examine evidence and decided the case on the record, but the parties could present written and physical materials in view of establishing that the judgment of the trial court was suffering from evidentiary insufficiency, i.e. that the facts of the case had not been fully elucidated (Article 315 in conjunction with Article 358 § 4).

Article 314 of the CCP (applicable to review proceedings by virtue of Article 358 § 4), was entitled “[p]rohibition on the establishing of new facts” and provided that “[t]he [reviewing court] may not establish new facts”. The case-law of the Supreme Court was that the reviewing court could not substitute the trial court’s findings of fact with its own, unless there was no evidence to support them, or if they were patently unreasonable in view of the evidence. The reviewing court could control whether the trial court’s findings of fact were logical and based on the evidence, as indicated by the record. It had to give a measure of deference to the trial court’s findings in respect of the credibility of the evidence ( решение № 83 от 1 декември 1955 г. по н.ч.пр. № 79/1955 г. ОСНК на ВС; решение № 649 от 22 декември 1975 г. по н.д. № 647/1975 г., I н.о.; решение № 214 от 29 май 1987 г. по н.д. № 200/1987 г., I н.о.; решение № 89 от 12 юни 1997 г. по н.д. № 7907/1997 г., ВКС, петчленен състав; решение № 5 от 2 февруари 1998 г. по н.д. № 7/1998 г., II н.о. ).

The powers of the Supreme Court included the possibility to quash the lower court’s judgment if it found that it was suffering from evidentiary insufficiency or if it was ill-founded (Article 334 § 1(4) and (5)).

COMPLAINTS

1. The applicant complained that the Regional Military Court, in its judgment of 1992, had erred in assessing the evidence and in applying the substantive law. He relied on Article 6 § 2 of the Convention.

2. The applicant complained under Article 6 of the Convention that his ex officio counsel had not appealed against the Regional Military Court’s judgment.

3. Finally, the applicant complained under Article 6 of the Convention that he could not obtain reopening of the proceedings and a fresh determination of the merits of the charges against him in his presence.

THE LAW

The Court recalls that on 7 May 2002 it decided to give notice of the application to the Bulgarian Government under Rule 54 § 2 (b) of the Rules of Court.

On 10 October 2002 the Government submitted their written observations on the admissibility and merits of the application. On 28 October 2002 the applicant’s representative was invited to submit his observations in reply by 6 January 2003. He did not submit any observations within the above time-limit, nor did he ask the Court for any extension.

On 4 June 2003 the Court sent, by registered mail with acknowledgement of receipt, a letter to the applicant’s representative, informing him of the terms of Article 37 § 1 (a) of the Convention. The applicant’s representative was further warned that failure to reply might lead the Court to conclude that the applicant no longer intended to pursue his application. The applicant’s representative, who received the said letter on 9 June 2003, did not reply.

The Court finds therefore that the applicant does not intend to pursue his application within the meaning of Article 37 of the Convention, which, so far as material, provides as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; ...

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

Furthermore, the Court considers that respect for human rights as defined in the Convention and the protocols thereto does not require the continued examination of the application (Article 37 § 1 in fine ).

In these circumstances, the Court finds that the application should be struck out of its list of cases in accordance with Article 37 of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis              Deputy Registrar President