Communicated on 16 September 2019

FIFTH SECTION

Application no. 70560/13 Dimitar Markov ZHELEZOV against Bulgaria lodged on 7 November 2013

STATEMENT OF FACTS

The applicant, Mr Dimitar Markov Zhelezov , is a Bulgarian national, who was born in 1945 and lives in Sofia. He is represented before the Court by Mr M. Ekimdzhiev , a lawyer practising in Plovdiv.

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

On 23 June 2010 the applicant was charged with sexual assault, which he had allegedly committed on the previous day against a neighbour of his, taking advantage of her inability to resist (she suffered from dementia and had in addition consumed alcohol). On 18 October 2010 the applicant was additionally charged with raping the woman.

In May 2011 the applicant was indicted. The indictment concerned only the offence of rape, under Article 152 § 1 of the Criminal Code ( see Relevant domestic law and practice below).

In the ensuing proceedings the Omurtag District Court heard experts – doctors who had examined the victim after the alleged attack – who acknowledged that they could not say with certainty whether she had had a sexual intercourse. It also heard witnesses, including a woman who had interrupted the alleged attack. Due to her dementia, the victim was unable to testify. The applicant denied any sexual activity with her, arguing in addition that her state of health would have made any sexual intercourse impossible.

In a judgment of 19 December 2011 the Omurtag District Court convicted the applicant of rape, finding – on the basis in particular of the testimony of witnesses – that such offence was sufficiently proven. It gave the applicant a suspended sentence of three years ’ imprisonment.

This conviction and the sentence were confirmed on 8 March 2012 by the Targovishte Regional Court.

In a final judgment of 8 May 2013 the Supreme Court of Cassation, while upholding the applicant ’ s conviction and sentence, applied a new legal qualification. It stated that, since it had not been proven that the applicant had had an intercourse with the victim, instead of rape he was guilty of sexual assault – an offence under Article 150 § 1 of the Criminal Code (see Relevant domestic law and practice below). The Supreme Court of Cassation relied on Article 354 § 2 (2) of the Code of Criminal Procedure (ibid.), finding that it did not have to remit the case for a fresh examination by the lower courts. In justifying that decision, it pointed out that the difference between rape and sexual assault was only “in the nature of the sexual contact”.

Article 152 § 1 of the Criminal Code defines rape as a sexual intercourse with a woman who is incapable of resisting, who was compelled by the use of force or threats, or who was brought to a state of helplessness by the perpetrator. Where there are no additional aggravating circumstances, rape is punishable by two to eight years ’ imprisonment.

Any other sexual assault ( блудство ), committed through threat or use of force, or against a person incapable of resisting the attack, is also punishable, under Article 150 § 1 of the Criminal Code, by two to eight years ’ imprisonment.

Article 354 of the Code of Criminal Procedure defines the competence of the Supreme Court of Cassation to decide on a case brought before it or to remit it. Paragraph 2(2) of that provision stipulates that the Supreme Court of Cassation may itself decide on a case, amending a lower court ’ s judgment, where, in particular, it requalifies the offence as one carrying “the same or more lenient punishment”.

Despite that, even in cases falling under the above provision, the Supreme Court of Cassation has ordered remittal, relying in particular on the Court ’ s judgment in the case of Penev v. Bulgaria (no. 20494/04 , 7 January 2010), and finding that this was necessary to guarantee the accused ’ s right to a fair trial ( Решение № 625 от 4.01.2011 г. на ВКС по н. д. № 6461/2010 г., III н. о. ; Решение № 314 от 2 0 .0 6 .2011 г. на ВКС по н. д. № 1651/2011 г., I н. о. ) .

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention, taken in conjunction with Article 6 § 3 (a) and (b), as well as under Article 13 of the Convention, that he was unable to defend against the accusation of sexual assault, after the Supreme Court of Cassation adopted that legal qualification of the offence committed by him.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention, in view in particular of the Supreme Court of Cassation ’ s decision to adopt a new legal qualification of the offence committed by him without giving him an opportunity to comment?

Was the applicant informed in sufficient detail of the accusation against him, as required by Article 6 § 3 (a) of the Convention? Was he afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b)?