Resolution CM/ ResDH (2008)70 [1]

Execution of the judgment of the European Court of Human Rights

Kounov against Bulgaria

(Application No 24379/02, judgment of 23 May 2006, final on 23 August 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns an unjustified refusal to reopen the applicant ’ s trial after conviction in absentia (violation of Article 6 paragraph 1) (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 Bulgaria ’ s 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 close the examination of this case.

Appendix to Resolution CM/ ResDH (2008)70

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

Kounov against Bulgaria

Introductory case summary

The case concerns a violation of the applicant ’ s right to a fair trial due to the unjustified refusal by the Supreme Court of Cassation to reopen the criminal trial which resulted in his conviction in absentia in 1999 (violation of Article 6§1). In 2002, the Supreme Court of Cassation refused to re-examine the applicant ’ s case, finding that he had deliberately withdrawn from the proceedings when he absconded from the police station where he was being questioned about the relevant facts and that it was because of his wrongful conduct that he had been tried in absentia. The European Court noted that the applicant had been tried in absentia without having received any official information as to the accusations against him or the date of his trial. Having been interviewed about the facts by the police in 1998, he could only have suspected that proceedings might be initiated but had no way of precisely knowing what charges were to be brought. In those circumstances, the Court did not consider it established that the applicant had had sufficient knowledge of the proceedings or of the accusations against him on the basis of which he could deliberately decide to abscond or unequivocally waive his right to appear in court and defend himself. Accordingly, Article 6 of the Convention required that he should have had the possibility to obtain a re-trial of his case, but that had been denied by the Supreme Court of Cassation.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

1 299 EUR

1 299 EUR

P aid on 22/11/2006

b) Individual measures

The European Court recalled its case-law according to which when a person in a situation similar to the applicant ’ s in this case has been convicted despite a violation of his right to participate in proceedings, new proceedings or reopening of the same proceedings represent in principle an appropriate means for redressing the violation found (§59 of the judgment).

Following the European Court ’ s judgment, the P rosecutor General requested reopening of the proceedings in accordance with Article 422 of the Code of Criminal P rocedure. In a decision of 10/04/2007, the Supreme Court of Cassation upheld this request. It annulled the applicant ’ s conviction and sent the case to the competent court for a new examination. It should further be noted that the applicant has served the entire sentence of four years ’ imprisonment imposed in the proceedings criticised by the European Court . In case of acquittal, reduction of sentence or discharge of the accused, there is a possibility for the applicant to request compensation for having been detained on the basis of a conviction pronounced in his absence, relying on the Act on Responsibility of the State for damage caused to individuals by its acts.

II. General measures

Since 2000, domestic law provides the possibility for a person sentenced in absentia to request the reopening of the proceedings, provided that he or she had not been aware of the criminal proceedings (Article 362a of the Code of Criminal P rocedure of 1974, incorporated into the new Code of Criminal P rocedure of 2006, §423). According to the prevailing practice of the Supreme Court of Cassation, the accused must be notified personally of the trial and the charges against him to establish that he is aware of the proceedings.

In addition, a bench of the Supreme Court of Cassation, different from that which refused the reopening of the applicant ’ s trial in the present case, granted the applicant ’ s request concerning the reopening of another trial in absentia against him, finding that the fact of being questioned by the police on the relevant facts (the interrogation of 1998 concerned a number of burglaries for which the applicant was sentenced in two different proceedings) was not sufficient ground for assuming he was aware of the proceedings.

In these circumstances, the violation found does not appear to reveal any structural problem concerning the guaranties of a fair trial in cases of conviction in absentia . For this reason, and having regard to the development of the direct effect given by Bulgaria n courts to the Convention and to the Court ’ s case law, the publication and dissemination of the European Court ’ s judgment to the Supreme Court of Cassation appear to be sufficient measures for execution.

The judgment of the European Court was published on the website of the Ministry of Justice www.mjeli.government.bg and was sent on 2/10/2007 to the Supreme Court of Cassation.

III. Conclusions of the respondent state

The government considers that the measures taken 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 new, 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 8 October 2008 at the 1035th meeting of the Ministers’ Deputies