Resolution CM/ ResDH (201 1)2 [1]

Execution of the judgment of the European Court of Human Rights

Bonev against Bulgaria

(Application No. 60018/00 , judgment of 08/06/2006 , final on 08/09/2006 )

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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the unfairness of the applicant ’ s trial in that he could not cross-examine the witnesses whose statements had served as the main basis for his conviction (violation of article 6, paragraphs 1 and 3 (d)) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

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

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to clos e the examination of this case.

Appendix to Resolution CM/ ResDH (2011)2

Information about the measures to comply with the judgment in the case of

Bonev against Bulgaria

Introductory case summary

The case concerns the unfairness of criminal proceedings against the applicant in that he was unable to cross-examine the witnesses whose statements had served as the main basis for his conviction (in 1999) and sentencing to 10 years ’ imprisonment for murder (violation of Article 6, paragraphs 1 and 3 (d)).

The European Court found that the applicant could not be regarded as having waived his rights under Article 6 of the Convention, as he was not represented by a lawyer when he agreed to the reading of the statements and, moreover, he had not been cautioned as to the consequences of so agreeing. The Court noted, furthermore, that no effort had been made to establish the whereabouts of the only eyewitness still alive, even though the applicant was accused of murder and risked a severe sentence.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1 500 EUR

1 500 EUR

3 000 EUR

Paid on 06/12/2006

b) Individual measures

The applicant ’ s trial was reopened on the basis of Articles 421§2 and 422§1, p. 4 of the Code of Criminal Procedure (“CCP”) and he was acquitted by a judgment of the Burgas Regional Court of 03/07/2008, which was confirmed by a judgment of the Burgas Court of Appeal of 11/05/2010.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

According to the provisions of the CCP of 1974, in force at the material time in this case, 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. This could also be done if the witness, despite being duly subpoenaed, did not appear and the parties so agreed (article 279§1, pp. 4 and 5 of the CCP of 1974).

An amendment of these provisions, which entered into force after the facts in this case (on 01/01/2000) added the obligation for the court either to appoint a lawyer for the accused, if he was not already represented but wished to have a lawyer, or to explain to the accused what would be the consequences of his consent. This legislative framework was maintained in the new CCP of 2005 (Article 281§§1 and 3).

It should also be noted that at the time of the facts in this case, the Supreme Court had already 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 found that, after a thorough effort to locate the witness, it was impossible to find him or her (decisions of 1981 and 1991).

The judgment of the European Court has been translated into Bulgaria n and published on the website of the Ministry of Justice http://www.justice.gover n ment.bg/new/Default.aspx It has been sent out to the domestic courts involved in the conviction of the applicant.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicant of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that Bulgaria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 10 March 2011 at the 1108th Meeting of the Ministers’ Deputies