Communicated on 17 November 2014

FOURTH SECTION

Application no. 25159/10 Arsen Mihaylov LALOV against Bulgaria lodged on 13 April 2010

STATEMENT OF FACTS

The applicant, Mr Arsen Mihaylov Lalov , is a Bulgarian national, who was born in 1962 and lives in Grayan , France . He is represented before the Court by Mr A. Kotsev , a lawyer practising in Pleven .

A. The circumstances of the case

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

On an unspecified date in March 1996 the applicant was arrested for hav ing stolen thirty-two window frames of the total value of 40,000 old Bulgarian lev from a building construction in the village of Novachene , belonging to the local health service unit . A preliminary investigation was opened against him. In the course of the proceedings several witnesses were inquired. The authorities seized thirty-one window frames which were later returned to their owner. The applicant was questioned and apparently he confessed to the crime. He was charged with aggravated theft and a restriction not to leave his place of residence without the authorisation of the public prosecutor ’ s office was imposed on him ( подписка ).

The applicant alleged that once charges had been brought against him, he appointed a lawyer to assist him and represent him in the course of the criminal proceedings.

O n an unspecified date the applicant left the country and settled in France.

The preliminary investigation was concluded on an unspecified date and on 28 May 1997 the public prosecutor ’ s submitted the indictment against the applicant to the Nicopol District Court.

It is not clear whether the applicant or his legal counsel were summoned for the first hearing and whether they received a copy of the indictment.

At the first hearing held on an unspecified date, the district court established that the applicant had left the country and that he had not informed the authorities about his new address. In view of that, it decided to examine the case in the applicant ’ s absence on the ground of Article 268 § 3(1) of the Code of Criminal Procedure ( “ CCP ” ) of 1974 and assigned a court-appointed lawyer to represent him.

In a judgment of 19 November 1997 the district court convicted the applicant as charged and sentenced him to four years ’ imprisonment. As no appeal was lodged against the judgment, it became final on 3 December 1997.

On 27 October 2009 the applicant was arrested in France pursuant to a European arrest warrant and returned to Bulgaria. He was then taken to Pleven Prison to serve his sentence.

On 24 November 2009 the applicant ’ s lawyer submitted a request with the Nicopol District Court to examine the case file of the criminal proceedings. However, the case file could not be found.

On 8 December 2009 the applicant requested the Supreme Court of Cassation to reopen the criminal proceedings against him . In relation to that demand, the Supreme Court of Cassation requested the case file from the District Court. In a letter dated 15 February 2010, which has not been provided to the Court, the President of the Nicopol District Court informed the Supreme Court of Cassation that the case file had been destroyed as the statutory time limits for keeping it had expired.

On 9 March 2010 the Supreme Court of Cassation rejected the applicant ’ s request for reopening. The court noted that the possibility to seek reopening under Article 362 § 1(5) of the 1974 CCP was not open to the applicant as his conviction had become final before the adoption of this provision in 2006. As for the right to reopening of criminal proceedings held in absentia under Article 362a of the 1974 CCP (and Article 423 of the new C CP 2006 ), the court considered that the time limit to seek reopening could not exceed the time limits for keeping the case files under section 75 of the Regulation on the Functions of the Registries of the District, Regional, Military Courts and Courts of Appeal 2009. In the case at hand, the case file had been destroyed in accordance with the statutory rules which rendered the rehearing of the applicant ’ s case in practice impossible.

Several days later, on 29 March 2010, the President of the Pleven District Court issued a certificate to the applicant ’ s lawyer with a view to its being used in the reopening proceedings , stating the 1997 case file had not been destroyed .

I n a letter dated 8 April 2010 , referring to the certificate issued by the President of the Nicopol District Court o n 29 March 2010 and to his letter of 15 February 2010 , the Deputy President of the Supreme Court of Cassation asked the district court for clarification s as to whether the case file had indeed been destroyed . In a letter of 13 April 2010 , the President of the Nicopol District Court replied that the case file had not been destroyed in accordance with the statutory provisions, but as a result of an inundation occurred in 2006 which had damaged the district court ’ s archive s . Accordingly, it was impossible to restore the case file.

The applicant allege d that on 19 March 2010 he submitted a new request for reopening, but he received no reply.

On 31 August 2012 he was released from prison and settled again in France.

B. Relevant domestic law and practice

1. Trial in absentia

The 1974 CCP, in force until 29 April 2006, allowed trials in absentia , in certain limited circumstances. Pursuant to Article 268 § 3, as in force before the amendments of 11 August 1997, it was possible when :

“[th e trial in absentia] would not hamper the ascertaining of the truth ... [and] the accused [was] outside the territory of Bulgaria, if:

1. his residence [was] unknown; [or]

2. he [could not] be summoned because of other reasons; [or]

3. he ha [d] been duly summoned and ha[d] not indicated a good cause for his failure to appear.”

Cases where the offence carried a term of imprisonment could be heard in absentia “only if [the accused ’ s] residence in the country [was] unknown and [had] not been established after a thorough effort to locate [him]” (Article 268 § 4 of the 1974 CCP).

By amendments of 11 August 1997, in force from 15 August 1997, Article 268 § 4 of the 1974 CCP was repealed and Article 268 § 3 was amended as follows:

“When it would not hamper the ascertaining of the truth, the case can be examined in the absence of the accused if:

1. [ he ] was not found at the address he had given or had changed it without informing the competent authorities;

2. [ he ] was duly summoned and had not indicated a good cause for his failure to appear.”

Reopening of criminal cases heard in absentia was allowed where a convicted person had been unaware of the proceedings against him and had submitted a request for reopening within one year of learning about the conviction (Article 362a § 1). That provision came into force on 1 January 2000. The new CCP 2006, in force since 29 April 2006, contained a similar provision (Article 423 § 1).

2 . Time limits for keeping case files and restoration of destroyed case files

The relevant part of Article 82 §§ 1 and 2 of the Criminal Code 1968 (“the CC”) provides that a judgment imposing a sentence of three to ten years ’ imprisonment cannot be enforced once ten years have passed since the sentence became final. The running of this limitation period is interrupted by every act effected by the competent authorities for the purpose of enforcing the sentence (Article 82 § 3 of the CC). Such interruptions notwithstanding, the sentence may no longer be enforced if fifteen years have elapsed since the judgment became final (Article 82 § 4 of the CC).

By virtue of section 91(4) of Regulation no. 28 of 1995 on the Functions of the Registries of the District, Regional, Military Courts and Courts of Appeal (“the 1995 Regulation”), in force until 28 November 2004, criminal case files in respect of which the sentence had not been enforced were to be kept in the court ’ s archive s for a period equal to the limitation period for the enforcement of the sentence. The superseding regulations make the same provision (see section 148(4) of the Rules on Cou rt Administration in the District, Regional, Military Courts and Co urts of Appeal 2004 and section 75(1)(5) of the Rules on Court Administration in the District, Regional, Military Courts and Courts of Appeal 2009).

Section 14 of the 1995 Regulation provided that if a case file was lost or destroyed prematurely it could be restored by order of the president of the respective court, either acting of his own motion or at the request of one of the parties. This was done in practice by the administrative secretary of the court, who gathered all documents relating to the case which were in the possession of the court and of other bodies and the parties to the case. After all available materials had been collected the court held a public hearing to which the parties were summoned, and ruled on the restoration of the case file. The superseding regulations are broadly similar (see section 74 of the 2004 Rules and section 108 of the 2009 Rules).

COMPLAINT

The applicant complains under Article 6 §§ 1 and 3 (c) and (d) of the Convention that the criminal proceedings against him, held in absentia , had been unfair.

QUESTION 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 particular, was the refusal for reopening of the criminal proceedings against him in violation of Article 6 § 1 of the Convention (see, for example, Sejdovic v. Italy [GC], no. 56581/00, § 82, ECHR 2006 ‑ II)?