Communicated on 8 September 2016

FIFTH SECTION

Application no. 20981/09 Rashko Angelov OGNYANOV against Bulgaria lodged on 28 January 2009

STATEMENT OF FACTS

The applicant, Mr Rashko Angelov Ognyanov , is a Bulgarian national, who was born in 1963 and, at the time of lodging the present application, was detained in Plovdiv Prison. He is represented before the Court by Mr S. Donkov and Mr S. Haralampiev , lawyers practising in Plovdiv.

A. The circumstances of the case

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

In the early hours of 6 November 2007, when visited by the police in connection with complaints by his neighbours about loud music, the applicant started hitting, insulting and threatening the officers and hitting their car.

Later on the same day the applicant was brought before the Plovdiv District Court, which found him guilty of an act of minor hooliganism under the 1963 Decree on Combating Minor Hooliganism (“the 1963 Decree”, see Relevant domestic law and practice below) and imposed on him a punishment which, as appears from the applicant ’ s explanations, included deprivation of liberty.

The Plovdiv District Prosecutor ’ s office also opened criminal proceedings in relation to the same incident and in March 2008 indicted the applicant and brought him to court. The applicant entered into a plea agreement with the prosecution, admitting that he had committed the offence of aggravated breach of public order under Article 325 § 2 of the Criminal Code (see Relevant domestic law and practice below) and accepting a punishment of five months ’ imprisonment. The agreement was approved on 28 July 2008 by the Plovdiv District Court.

On an unspecified date the applicant applied for the re-opening of the criminal proceedings, claiming that he had been convicted for the second time for the same offence.

The Supreme Court of Cassation examined the application and in a judgment of 9 December 2008 dismissed it, pointing out that “minor hooliganism” within the meaning of the 1963 Decree did not amount to a criminal offence and that the punishments imposed under that Decree were of an administrative character. Accordingly, the applicant ’ s conviction under the Decree did not bar his prosecution for an offence under Article 325 of the Criminal Code. Lastly, it was noted that that conclusion was in line with Interpretative decision no. 85 of 1966 of the former Supreme Court (see Relevant domestic law and practice below).

The applicant served his sentence and was released on 16 February 2009.

B. Relevant domestic law and practice

1. The 1963 Decree

The Decree on Combating Minor Hooliganism was adopted in 1963 by the then existing Presidium of the National Assembly. It is currently accepted by the national courts that it has the same legal force as an Act of Parliament.

Section 1 (2) of the Decree defines minor hooliganism as an indecent act consisting of uttering swearwords, insults or other offensive words in a public place and in front of many people, in an offensive attitude towards other citizens or public officials, or in a quarrel, fight or suchlike that breach the peace but due to their lower degree of dangerousness do not amount to the criminal offence of hooliganism.

Such acts, if perpetrated by persons older than sixteen, carry a penalty of up to fifteen days ’ detention in the premises of the Ministry of Internal Affairs or a fine.

2. Relevant provisions of the Criminal Code

Under Article 325 § 1 of the Criminal Code, the offence of breach of public order is defined as “indecent actions which grossly violate public order and show overt disrespect for society” and is punishable by up to two years ’ imprisonment or probation and a reprimand. By virtue of Article 325 § 2, the punishment is up to five years ’ imprisonment if the above actions were accompanied by resistance to a law enforcement officer, or were characterised by “exceptional cynicism or arrogance”.

3. Relevant provisions of the Code of Criminal Procedure

Article 24 § 1 (6) of the Code of Criminal Procedure provides that criminal proceedings cannot be opened or have to be discontinued if, in respect of the same person and in respect of the same offence, there exists a final judgment or decision. In a binding interpretative decision of 1 November 1966 ( Тълкувателно решение № 85 от 1.Х I .1966 г. по н. д. № 79/60 г., ОСНК ) t he former Supreme Court has construed the equivalent provision under the Code of Criminal Procedure in force at the time as not barring the opening of criminal proceedings in respect of persons who have already been punished under the 1963 Decree. The same conclusion has been reached by the Supreme Court of Cassation ( Решение № 348 от 29 май 1998 г. по н. д. № 180/1998 г., ВКС, II н. о. ; Решение № 564 от 9 декември 2008 г. по н. д. № 626/2008 г., ВКС, I н. о. ).

COMPLAINTS

The applicant, relying on Article 6 § 1 of the Convention and Article 4 of Protocol No. 7, complains that he was tried and punished twice for the same offence.

QUESTION TO THE PARTIES

Has the applicant been tried and punished twice for the same offence, in breach of Article 4 § 1 of Protocol No. 7?