Resolution CM/ ResDH ( 2013)183 Penev against Bulgaria

Execution of the judgment of the European Court of Human Rights

(Application No. 20494/04, judgment of 07/01/2010, final on 07/04/2010)

(Adopted by the Committee of Ministers on 26 September 2013 at the 1179th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)826 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Application Penev v. Bulgaria (No. 20494/04)

Action report on the execution of the judgment of the European Court of human rights delivered on 7/1/2010

The case concerns the violation of the applicant ’ s right to a fair trial in that in a judgment delivered on 10/12/2003 determining appeal proceedings brought by the applicant against a conviction and sentence, the Supreme Court of Cassation adopted a new legal characterisation of the facts of the case. It also found the applicant guilty of a new offence which carried a less severe punishment, sentenced him to a one-year suspended sentence and confirmed the lower courts ’ judgments in part in allowing the claim of the civil party.

1. Convention violation found

The European Court found that the two offences in question were different, that the elements of the new offence had not been debated throughout the applicant ’ s trial or at any time considered during the investigation, that the applicant had not been aware that the Supreme Court of Cassation might have returned an alternative verdict, and that it was only through the final judgment that he became aware of the new legal characterisation of the facts. The Court concluded that the applicant had not been informed in detail of the nature and the cause of the accusation against him, that he had not been afforded adequate time and facilities for the preparation of his defence, and that he had not received a fair trial. The absence of a clear requirement in the applicable law to allow the accused to defend himself against the modified charges had been undoubtedly decisive in that aspect (violation of Article 6§3(a) and (b), together with Article 6§1).

2. Individual measures:

The amount of just satisfaction awarded by the Court was duly paid.

According to information provided by the Supreme Court of Cassation re-opening of the criminal proceedings against the applicant hasn ’ t been sought by the competent authorities. The applicant hasn ’ t approached the Supreme prosecution office in order to initiate a re-opening of the case.

No further individual measures seem to be necessary.

3. General measures

a) Legislative measures

Under the present case the Supreme Cassation Court returned a verdict and declared the applicant guilty of an offence under article 220 §1 of the Criminal code. For the offence under article 282 § 2 of the Criminal Code, which is punishable by imprisonment for between one and eight years, the applicant was acquitted by the Supreme Cassation Court. Therefore, by changing the legal qualification of the indictment the Court applied a law for a less heavily punishable crime.

The Bulgarian government refers to the amendment of Article 422 of the Code of Criminal Procedure introduced in 2011 (effective since 01/01/2012) specifically to allow persons in a position similar to that of the applicant in the present case to request the reopening of the criminal proceedings. Indeed, in the reopened proceedings the accused persons will have the possibility to defend themselves against the charge retained according to the more lenient characterisation of the facts.

The amended article 422 § 1 (5) of the Code of criminal procedure provides for reopening of criminal cases where substantial violations have been committed under Article 348 § 1 in relation to court decisions issued under Article 354, § 2 (2) and § 5, i.e. judgments in which an accused is found guilty of an offence which carries a less severe punishment or judgments in which the Supreme Court of Cassation has decided the case on the merits without referring it to the second instance court. There are three types of substantial violations under Article 348: violation of substantive law; serious violation of the procedural rules; manifestly unfair punishment.

According to article 421 (3) of the Code of criminal procedure the convict is entitled to file the request under Article 422 (1), item 5 within six months of the entry into force of the respective act. Article 424 of the Code of criminal procedure makes provision that the request for re-opening of the case shall be examined by the Supreme Court of Cassation. According to article 426 of the Code of criminal procedure the rules for cassation proceedings shall apply, insofar as Chapter 32 does not contain any special rules.

According to Article 425 (1), where the Supreme Court of Cassation finds the request for reopening well-founded, it may:

1. revoke the sentence, judgement, ruling or order, and return the case for new examination, specifying the stage at which the new examination should start;

2. revoke the sentence, the decision or ruling and terminate or suspend the criminal proceedings or acquit the defendant in the case of Article 24, paragraph 1, item 1 within the framework of the factual situations under the effective sentence;

3. m odify the sentence, the appellate instance decisions or the new sentence in cases where the grounds to this effect are in favour of the convict.

In its judgment Paraskeva Todorova v. Bulgaria (§§ 24 - 30), the European Court found that the reopening procedure under Article 422 (1), item 5 is very similar to a regular cassation procedure, even when a request for reopening is finally rejected, because the Supreme Court of cassation examines the legal qualification, the manner in which the facts were established and the fairness of the sanction imposed. The Supreme Court of Cassation took a similar approach in recently reported cases (see, for instance, judgment № 388 fr om 04/10/2012 in criminal case No. 1166/2012).

b) Publication and dissemination

Translation of the judgment is awaiting and afterwards it is intended to disseminate copies of the judgment among the relevant authorities in order to raise the awareness of the Convention ’ s requirements as they result from this case

4. Conclusions

In conclusion the government considers to have fulfilled its obligations arising from article 46 §1 of the Convention with the measures adopted and that these measures will prevent new similar violations. The government asks the Committee of ministers after deliberation to adopt a decision for closure the examination of this case.