1177th meeting – 11 September 2013

Appendix 5

( Item H46-1 )

Resolution CM/ ResDH (2013) 153

Angel Angelov against Bulgaria

Execution of the judgment of the European Court of Human Rights

(Application No. 51343/99 , judgment of 15 February 20 07 , final on 15 May 2007 )

(Adopted by the Committee of Ministers on 11 September 2013 at the 1177th 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 violation 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 the 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)756 ) ;

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.

A ction report

Case Angel Angelov v. Bulgaria

Application No . 51343/99 , j udgment of 15/02/2007 , f inal on 15/05/2007

1. Convention violation found

The case concerns the lack of access to a court due to the unmotivated dismissal of the applicant ’ s petition for review (cassation) by the Supreme Court of Cassation in 1999 (violation of Article 6 § 1). The violation of the applicant ’ s rights was apparently due to a judicial mistake leading the Supreme Court of Cassation to believe that his appeal was time-barred.

The European Court noted that the order dismissing the applicant ’ s petition as time-barred could not be seen as a justified enforcement of a legitimate procedural limitation on the applicant ’ s right of access to a court, because it did not indicate the dates on which the relevant time-limit had started to run and expired and the date on which the appeal had been submitted.

2. Individual measures

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained. The compensation awarded was transferred to the applicant ’ s account on 2 August 2007.

Since 2007 until now , no request for reopening from Angel Angelov has been received in the Supreme Prosecution of Cassation. The Supreme Prosecutor ’ s Office of Cassation has not requested the reopening of the proceedings. By letter of 4 January 2012 of the Plovdiv Regional Court, the Bulgarian authorities were informed that the case-file has been destroyed following the expiration of the period during which a case file is kept in the archives of the court. The absence of the case file makes it impossible for the Supreme Prosecution of Cassation to file a request to the Supreme Court of Cassation to reopen the case.

In these circumstances, no further individual measures are possible in this case .

3. General measures

a) Publication and dissemination of the judgment

The translation of the judgment is available on the Ministry of Justice website at http://www.justice.government.bg/

The translation of the judgment was sent to the Supreme Court of Cassation and the Supreme Prosecution of Cassation through a circular letter drawing their attention to the main conclusions of the ECHR ’ s judgment.

By a letter of 9 January 2012, the Supreme Court of Cassation has indicated that the judgment in the case of Angel Angelov had been made available to all the judges of the Supreme Court of Cassation through the internal information system of the court.

b) Practice concerning decisions dismissing requests for reopening of criminal proceedings

i . Reopening of criminal proceedings

The reopening of criminal cases – a procedure similar to the review proceedings described in the Angel Angelov judgment, is currently regulated in Chapter 33 [1] of the Criminal Procedure Code.

By a letter of 9 January 2012, the Supreme Court of Cassation has provided a detailed description of its current practice with respect to the decisions dismissing petitions for reopening.

The verification of compliance with the terms and preconditions for admissibility of the petitions is done by each of the three chairpersons of the departments in the criminal division of the Supreme Court of Cassation. After the verification, instructions shall be made which propose the reopening of proceedings or a refusal to reopen the proceedings. If there are grounds for refusal to initiate proceedings for reopening, the chairman of the department shall prepare an order containing the following details: name of the chairman of the department; the date of issuance of the order; the grounds for inadmissibility and other motives. According to the Criminal Procedure Code, this decision shall not be subject to subsequent control. There is an opportunity for a new referral to the Supreme Court of Cassation, if the reasons for the refusal are removed.

If any inaccuracies are detected in the order, like false circumstances or wrongly calculated deadlines, the person may apply to the President of the Criminal Division of the Supreme Court of Cassation. After verification , the President of the Criminal Division may cancel the order of the chairman of the Department and initiate a reopening of the proceedings. Such a possibility was available in practice to the applicant Angelov after the notification of the order dismissing the petition for revision.

In more complex cases , the President of the Criminal Division shall initiate proceedings which are heard by a three-judge panel, according to Art. 426 of the Criminal Procedure Code in Chapter 33 (in the absence of special rules, the rules of cassation proceedings apply).

ii. Cassation appeal in criminal proceedings

The compliance of the cassation appeal with the formal requirements of the Criminal Procedure Court is to be examined by a judge from the second instance court. If the judge decides that a cassation appeal does not meet the above-mentioned formal requirements, the interested party may appeal his or her order before a panel of the Supreme Court of Cassation.

The established practice in the areas of law enforcement and drafting of legal acts provides full guarantees for parties to know the reasons for a refusal to reopen proceedings and in case of disagreement with them to submit a new application for reopening.

Conclusion

No other measures including any legislative amendments seem to be necessary for execution of the judgment .

[1] Article 420 (2) Any individual sentenced for a publicly actionable criminal offence who has not been exempted from criminal liability with the imposition of an administrative punishment on grounds of Art. 78a Criminal Code may alone extend a request for reopening the criminal case in the hypotheses of Art. 422, paragraph 1, item 5.

Article 421 (3) The sentenced person may file a new request under Art. 422, paragraph 1, item 5 , within six months of the entry into force of the respective act.

Article 422 (1) A criminal case shall be re opened where (…):

4. By virtue of a judg ment of the European Court of Human Rights , a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms has been established that has a considerable importance for the case;

5. Substantial violations have been committed under Article 348 , paragraph 1, sub-paragraphs 1 -3 under sentences, decisions, court rulings and orders which have not been examined in the course of cassation proceedings.

Art. 424 (1) The request for re opening of the case shall be examined by the Supreme Court of Cassation.

Art. 426 The rules for cassation proceedings shall apply, insofar as this Chapter does not contain any special rules.