Communicated on 3 December 2015

FIFTH SECTION

Application no. 37776/15 Ognyan Valentinov PETROV against Bulgaria lodged on 23 July 2015

STATEMENT OF FACTS

1. The applicant, Mr Ognyan Valentinov Petrov , is a Bulgarian national who was born in 1979 and is currently serving a sentence of imprisonment in Vratsa Prison.

A. The circumstances of the case

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

3 . The applicant has fifteen previous convictions, chiefly for property ‑ related offences. He only has elementary school education and is unemployed.

4. On 28 June 2012 the prosecuting authorities in the town of Montana opened a criminal investigation in relation to a theft by housebreaking allegedly committed in March of that year.

5 . On 31 January 2013 the applicant and another person were formally charged and interviewed in the presence of counsel. In the course of that interview, the applicant and his counsel apparently declared that they did not wish to be later given the opportunity to inspect the materials in the case file.

6 . On 25 February 2013 the Montana District Prosecutor ’ s Office submitted to the Montana District Court an indictment against the applicant, accusing him of aggravated theft by housebreaking.

7 . The Montana District Court attempted to hold the trial on 9 May 2013. The applicant was not present. The court noted that neither the summons for the trial nor a copy of the indictment had been served on the applicant because, according to the available information, he had left the country and was working in Italy. It further noted that the charges against the applicant concerned a “serious offence”, and decided to adjourn the case, instructing the competent authorities to check whether he had in the meantime come back to Bulgaria or was in a detention facility, and ordering the court ’ s process server to attempt to serve the indictment and the summons on the applicant at all of his known addresses in Bulgaria, with a warning, as required under Article 254 § 4 of the Code of Criminal Procedure 2005 (see paragraph 12 below), that the case could be tried in his absence. The court also invited the Montana Bar to nominate a lawyer to be appointed as ex officio counsel for the applicant.

8 . On 30 May 2013, noting that the applicant had not been found at any of his addresses in Bulgaria and had, according to the available information, left the country and did not have a known address, the court decided to try him in absentia , as possible in such circumstances under Article 269 § 3 of the above-mentioned Code (see paragraph 13 below).

9 . Having tried the case in the applicant ’ s absence on 30 May, 18 July (when, in view of the evidence that had come to light in the course of the trial, the prosecution amended the charges) and 18 September 2013, in a judgment of that latter date the Montana District Court found the applicant guilty of aggravated theft by housebreaking and sentenced him to three and a half years ’ imprisonment. The judgment was not appealed against and became final shortly after that.

10 . Some time after that the applicant came back to Bulgaria. On 20 December 2013 he was arrested and sent to Vratsa Prison to serve his sentence.

11 . On 7 January 2014 he asked the Supreme Court of Cassation to reopen the proceedings against him. In a judgment of 26 March 2014 ( реш . № 113 от 26.03.2014 г. по н. д. № 249/2014 г., ВКС, II н. о. ), the court dismissed the request. It noted that the applicant had been made aware of the preliminary investigation. The fact that it had been impossible to find him at the address provided by him, or indeed anywhere in Bulgaria, in spite of the efforts to establish his whereabouts, showed his lack of interest in the further unfolding of the proceedings. His absence from the trial and the resulting impossibility to conduct his defence in person were therefore of his own doing, and it was not possible to reopen the proceedings against him under Article 423 § 1 of the Code of Criminal Procedure 2005 (see paragraph 14 below).

B. Relevant domestic law

1. Trial in absentia

12 . Article 254 § 4 of the Code of Criminal Procedure 2005, added in 2008, provides that when summoning the accused for trial, the judge rapporteur must specifically warn him that the case may be tried in his absence in the conditions laid down in Article 269 of the Code.

13 . Article 269 § 1 of the Code provides that in a case in which the accused has been charged with a “serious offence” – defined by Article 93 § 7 of the Criminal Code 1968 as one punishable by more than five years ’ imprisonment, life imprisonment, or full life imprisonment – his presence at trial is mandatory. However, by Article 269 § 3, the case may be tried in his absence if this will not impede fact-finding and (a) the accused has not been found at the address that he has previously given or has changed his address without informing the relevant authority, (b) the accused ’ s place of abode in the country is not known and has not been established even after a thorough search, (c) the accused has been duly summoned for trial, with a warning that the case could be tried in his absence, and has not given a good reason for his absence, or (d) the accused is abroad and either his place of abode is unknown, or he cannot be summoned for other reasons, or has been duly summoned and has failed to give a good reason for his absence.

2. Reopening of criminal proceedings conducted in absentia

14 . By Article 423 § 1 of the 2005 Code, as amended in 2008 and 2011, a person convicted in absentia may seek reopening of the proceedings against him within six months of learning of the conviction, and the request must be allowed unless (a) he has absconded after being charged in the course of the preliminary investigation, so that he could not be warned of the consequences of failure to appear for trial under Article 254 § 4 of the Code (see paragraph 12 above), or (b) having been so warned, has failed to appear for trial without good reason.

COMPLAINT

15. The applicant complains under Article 5 § 1 of the Convention that he is being detained to serve a sentence of imprisonment without having been given the opportunity to present his case.

QUESTION TO THE PARTIES

Is the applicant ’ s detention for the service of his sentence of imprisonment, imposed after a trial conducted in absentia and not reopened, justified under Article 5 § 1 (a) of the Convention (see Stoichkov v. Bulgaria , no. 9808/02, § § 51-59 , 24 March 2005, and Baratta v. Italy , no. 28263/09 , § § 114-19, 13 October 2015 )? Could the applicant be regarded as having expressly or tacitly waived his right to be present at his trial?