STOYANOV-KOBULADZE v. BULGARIA - 25714/05 - Chamber Judgment [2014] ECHR 308 (25 March 2014)

JUDGMENT STRASBOURG 25 March 2014 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stoyanov-Kobuladze v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Ineta Ziemele, President, Päivi Hirvelä, George Nicolaou, Nona Tsotsoria, Zdravka Kalaydjieva, Krzysztof Wojtyczek, Faris Vehabović, judges, and Fatoş Aracı, Deputy Section Registrar , Having deliberated in private on 4 March 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE . The case originated in an application (no. 25714/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian and Georgian national, Mr Stelian Kirilov Stoyanov-Kobuladze (“the applicant”), on 7 July 2005. . The applicant was represented by Ms T. Todorova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova, of the Ministry of Justice. . The Georgian Government, having been informed of their right to intervene in the case (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), did not avail themselves of that opportunity. . The applicant alleged that he had been convicted in absentia without being given the opportunity to have the proceedings reopened. . On 3 March 2010 the application was communicated to the Government. . On 29 March 2011 the Court struck the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention. By a decision of 23 August 2011, the Court decided to restore it to its list of cases in accordance with Article 37 § 2 of the Convention. THE FACTS I. THE CIRCUMSTANCES OF THE CASE A. Background information . The applicant was born in 1963. . The applicant was convicted twice of fraud, in 1986 and in 1987. . Until 1992 the applicant lived in the town of Gabrovo. From 27 May 1992 onwards he lived at an address in Sofia. . On 26 October 1993 the applicant registered as a sole trader. The applicant did not engage in any business activities until 1995. In 1995, in particular from 20 April to 17 May, on the territory of the town of Varna and in his capacity as a sole trader, the applicant developed a quasi-banking activity by taking loans from individuals with the promise of repaying them at significant levels of interest. . On 17 May 1995 the applicant left Bulgaria and moved to Georgia, where he married a Georgian national in 1997. He has two children. B. The criminal proceedings against the applicant . On an unspecified date in 1995, but after the applicant ’ s departure from the country, criminal proceedings were instituted against him and an accomplice on charges of large-scale fraud. The applicant was declared wanted for prosecution on 12 June 1995. It is not clear what measures the authorities took to detect the whereabouts of the applicant. . On an unspecified date an indictment was filed at Varna District Court. The proceedings were conducted in the absence of the applicant and his accomplice by virtue of a court decision taken in a hearing of 30 September 1996. As regards the applicant, the proceedings were held in absentia on the grounds of Article 268 § 3(1) of the Code of Criminal Procedure 1974, namely because the accused was outside the country and his address was not known to the authorities (see paragraph 25 below). The applicant was represented by court-appointed counsel. . In a judgment of 28 October 1996 the Varna District Court found the applicant guilty of fraud and sentenced him to a ten-year term of imprisonment. The court held that between 20 April and 25 May 1995 the applicant, with his accomplice, committed fraud in the amount of 108,846,390 old Bulgarian levs (BGL) against 1,740 individuals by means of establishing a company which operated as a “financial pyramid” and accrued large amounts of money through loans from the population. Some of the loans were returned to the people with significant interest, apparently with the aim of gaining popularity and attracting more contributions. The majority of the loans, however, were not returned. . The court based its judgment on witness statements, a number of expert reports, documents and other material evidence. No appeal was lodged against the judgment and it became final on 11 November 1996. . On 19 May 2004 the Varna District Court authorities destroyed the case file. C. The applicant’s arrest and ensuing request for reopening of the proceedings . On 22 October 2004 the applicant was arrested at the Bulgarian border and taken to Kremikovtsi Prison to serve his sentence. On 5 November 2004 he sent a request to the prison governor, asking to be treated as a Georgian national for the duration of his ten-year term of imprisonment. He appears to have assumed that being treated as a Georgian national would facilitate contact with his Georgian family. . On 11 December 2004 the prison governor issued a note which contained an explanation of the reasons for the applicant’s arrest. In reply to a letter from the applicant, apparently inquiring about the reasons for his detention, on 8 March 2005 the prosecutor informed the applicant once more that his detention had been ordered on the grounds that he had received a ten-year prison sentence. . Meanwhile, the applicant began to seek reopening of the proceedings. On 17 February and 8 March 2005 he sent two requests to the Supreme Court of Cassation in this respect. In a letter of 28 March 2005 the Supreme Court of Cassation returned the applicant’s requests. It informed him that the sentence could not be revised because the case file had been destroyed after the expiration of the relevant statutory deadline. . On 4 April the applicant submitted a request that the prosecutor take the initiative to have the criminal proceedings against him reopened. In a letter of 29 April 2005 a prosecutor from the Supreme Cassation Prosecutor’s Office informed the applicant that the case file had been destroyed, and, also that reopening could not be applied in the applicant’s case. . On 1 July 2005 the applicant submitted another request to the Supreme Court of Cassation for reopening and suspension of his sentence. In October 2005 the applicant was informed that the Supreme Court of Cassation had instituted proceedings for reopening and that a hearing had been scheduled for 10 March 2006. In a decision of 13 January 2006, however, the Supreme Court of Cassation terminated those proceedings on the grounds that the case file had been destroyed and a procedure for its restoration would need to be instituted. The court instructed the Varna District Court to launch a procedure for the restoration of the case file. Such a procedure took place between 17 February and 20 June 2006, apparently to no avail. . It appears that on an unspecified date the reopening proceedings were resumed, and on 12 April 2007 the Supreme Court of Cassation dismissed the applicant’s request for reopening and suspension of his sentence as ill-founded. The court held that the provisions requiring reopening of criminal proceedings had been introduced into Bulgarian law on 1 January 2000. Relying on the principle of legal certainty, the court held that reopening was not applicable to trials which had ended before that date. The court went on to state that even assuming applicability the criminal proceedings could not have been resumed, because the case file had been irreversibly destroyed. . Nevertheless the court went into the merits of the request and noted that following the collapse of his financial pyramid the applicant had left Bulgaria and moved to Georgia. During the criminal proceedings against him the applicant lived in Georgia, married there in 1997 and even took his wife’s name. In the court’s view, by doing all of the above the applicant was displaying his intention to abscond. The court held that in 1995 and 1996 a number of sets of criminal proceedings had been opened against individuals who had been engaged in similar activities to those of the applicant. The court assumed that the applicant had certainly known that he was being tried, because that type of trial had received extensive media coverage and had become notorious in the country; in addition, the applicant declared that he had been in contact with Bulgarian officials in Georgia. Thus, the court concluded that by not appearing before the authorities at the time of his trial the applicant had waived his right to participate in the criminal proceedings against him. . The applicant was released from prison on 31 March 2011 after serving six years and five months of his sentence. II. RELEVANT DOMESTIC LAW A. Trials in absentia . At the material time, the 1974 Code of Criminal Procedure (“the 1974 CCP”), in force until 29 April 2006, allowed trials in absentia , inter alia where the accused was outside the country and his address was not known to the authorities (Article 268 § 3(1)). . 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 Code of Criminal Procedure 2006, in force since 29 April 2006, contained a similar provision (Article 423 § 1) . . At the material time, the prevailing case-law of the Supreme Court of Cassation, allowed reopening not only of proceedings held in absentia which had terminated after the entry into force of the provision introducing the right to reopening, namely 1 January 2000, but also of proceedings which had terminated before that date (see реш. № 723 от 23 януари 2004 г. на ВКС по н. д. № 582/2003 г., I н. о.; реш. № 348 от 26 юни 2000 г. на ВКС по н. д. № 258/2000 г., I I н. о. ). B. 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 at the material time and 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 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 Court Administration in the District, Regional, Military Courts and Courts 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 court’s order was subject to appeal to a higher court. The superseding regulations are broadly similar (see section 74 of the 2004 Rules and section 108 of the 2009 Rules). THE LAW I. SCOPE OF THE CASE . The case was communicated to the Government on 3 March 2010 under Articles 5 § 2 and 6 § 1 of the Convention. The Court notes that after communication the applicant introduced a complaint under Article 5 § 1 of the Convention concerning his detention in execution of the court sentence. Given that that complaint was not raised before communication of the present application, it is not part of the present case and, as it has decided in other cases, the Court need not rule on it (see Vigovskyy v. Ukraine , no. 42318/02, § 14, 20 December 2005; Dimitriu and Dumitrache v. Romania , no. 35823/03, § 24, 20 January 2009; and Bazjaks v. Latvia , no. 71572/01 , § 70, 19 October 2010 ). II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION . The applicant complained that he had been convicted in absentia and denied a retrial. He relied on Article 6 §§ 1 and 3 (a), (c), and (d) and Article 13 of the Convention, but his complaints fall to be examined solely under Article 6 § 1, the relevant part of which provides : “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions . The Government submitted that the criminal proceedings against the applicant had been fair and the applicant had been represented by court-appointed counsel. They went on to argue that the right to reopening had been introduced into Bulgarian law in 2000 and was applicable only to criminal proceedings which had ended before that date. The Government further maintained that the applicant had waived his right to participate in the criminal proceedings and had deliberately sought to evade trial. They submitted in particular that the authorities had tried to establish the applicant’s whereabouts, but to no avail. Also, in their view, the applicant was obviously hiding from the authorities, as he had married a Georgian national and changed his surname. As regards the Supreme Court of Cassation’s finding, based on the applicant’s own allegations, that he had been in contact with Bulgarian officials in Georgia, the Government stated that there was no information supporting such a conclusion. . The applicant argued that the criminal proceedings against him had been unfair and the conviction had been based on insufficient indirect evidence. He went on to argue that he had never waived his right to appear in court and had never tried to abscond. Finally, he stated that his case file had been destroyed unfairly and in breach of the relevant provisions. 2. The Court’s assessment . The Court notes at the outset that although proceedings that take place in the accused’s absence are not of themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from the court which has heard his case a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself (see Sejdovic v. Italy [GC], no. 56581/00, § 82, ECHR 2006-II , and Colozza v. Italy , 12 February 1985, § 29, Series A no. 89 ), or that he intended to escape trial (see Medenica v. Switzerland , no. 20491/92, § 55, ECHR 2001-VI) . The Convention leaves Contracting States wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6. The Court’s task is to determine whether the result called for by the Convention has been achieved. In particular, the procedural means offered by domestic law and practice must be shown to be effective where a person charged with a criminal offence has neither waived his right to appear and to defend himself nor sought to escape trial (see Somogyi v. Italy , no. 67972/01, § 67, ECHR 2004-IV ). . Turning to the present case, the Court notes that at the time of the applicant’s request the domestic law provided for the right to reopening of proceedings held in absentia, and that the applicant had availed himself of that opportunity. . The Court further observes that in the case at hand the domestic court refused a retrial, relying on two main grounds. The first ground was the destruction of the case file. In this respect, the Court has already held that the destruction of the case file is not a good reason for not having a retrial (see Stoichkov v. Bulgaria , no. 9808/02, § 57, 24 March 2005 ). The Court does not see a reason to depart from this approach in the present case. In addition, it is noteworthy that the case file was destroyed in breach of the relevant domestic provisions (see paragraphs 29-30 above). . The Court notes that the second ground, advanced by the Supreme Court of Cassation with a view to refusing to grant reopening of the criminal proceedings against the applicant, was the court’s finding that the applicant had absconded, or at least had waived his right to participate in the proceedings (see paragraph 23 above). The Court reiterates in this respect that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, his entitlement to the guarantees of a fair trial (see Sejdovic , cited above, § 86). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. . The Court observes in this connection that the first issue is whether the applicant was officially notified of the criminal proceedings against him. The Court has already held that to inform someone of a prosecution brought against him is a legal act of such importance that it must be carried out in accordance with procedural and substantive requirements capable of guaranteeing the effective exercise of the accused’s rights; vague and informal knowledge cannot suffice (see Sejdovic , cited above, § 99; Stoyanov v. Bulgaria , no. 39206/07 , § 34, 31 January 2012 ; and Kounov v. Bulgaria , no. 24379/02, § 47, 23 May 2006 ). The Court notes that it is not disputed between the parties that the applicant left the country before the start of the proceedings against him and that he did not receive any official notification of the criminal investigation opened against him or about the date of his trial. The Court also notes in this connection that the Government did not provide any information as to whether the authorities acted diligently and made sufficient and adequate efforts to track the applicant and establish his whereabouts in order to notify him of the criminal proceedings against him. . Further, in the absence of an official notification, the Court has not ruled out the possibility that certain established facts might provide an unequivocal indication that an accused is aware of the existence of criminal proceedings against him and of the nature and the cause of the accusation, and that he does not intend to take part in the trial or wishes to avoid prosecution (see Sejdovic , cited above, § 99, and Kounov , cited above, § 46). In this connection the Court needs to determine whether such facts had been established in the case at hand. In view of this, the Court takes into account the Government’s contention and the Supreme Court of Cassation’s finding that the applicant had left Bulgaria, had married a Georgian national and had taken her surname. It further observes that indeed trials regarding “financial pyramids” attracted broad media attention and became notorious in the country at the time (see paragraph 23 above). However, the Court refers to its findings in the case of Sejdovic (cited above, §§ 96-100) and points out that the mere absence of the applicant from his usual place of residence and the fact that he was untraceable does not necessarily mean that he had knowledge of the trial against him. The Court is also not convinced that the remainder of the indicated circumstances, namely that the applicant had married and taken his wife’s name or that the said trials had been covered by the media in Bulgaria, amount to facts sufficiently establishing that the applicant had knowledge of the criminal proceedings against him. As regards the applicant’s own allegation that he was in contact with Bulgarian officials in Georgia and the ensuing conclusion of the Supreme Court of Cassation that he must therefore have been aware of the trial against him, that allegation was contested by the Government itself (see paragraph 34 above). Therefore the Court cannot take it as a fact corroborating a conclusion that the applicant had knowledge of the trial against him. . Having in mind all of the above, the Court is of the view that in the instant case it has not been shown by the respondent Government that the applicant had sufficient knowledge of the investigation opened and the specific charges brought against him which could justify the conclusion that he had waived his right to participate in the proceedings or had attempted to evade justice. . In this situation, in order for the proceedings leading to his conviction not to represent a “denial of justice”, the applicant should have had the opportunity to have them reopened and the merits of the charges against him, as well as any possible punishment, determined in his presence (see Stoichkov, cited above, § 57; Sejdovic, cited above, § 84; and Stoyanov, cited above, § 35 ). The Supreme Court of Cassation, however refused to reopen proceedings, and it was not asserted that the applicant had any other opportunities to have the charges against him determined in his presence (see Kounov, cited above, § 53 ). . Having considered all of the above, the Court concludes that there has been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE CONVENTION . The applicant complained that he had not been informed promptly of the reasons for his arrest, in breach of Article 5 § 2 of the Convention, which reads as follows: “Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” . The Government maintained that the authorities had informed the applicant about the reasons for his detention at the time of his arrest by handing him a copy of the judgment. The Government argued that as could be seen from his letter of 5 November 2004 the applicant had been aware of the fact that he had been detained on the basis of a sentence ordering his imprisonment for ten years. As regards the note issued by the prison governor on 11 December 2004, the Government pointed out that that note had been officially served on the applicant in order for him to certify the reasons for his detention before third parties. In conclusion, the Government stated that the applicant’s complaint was ill-founded. . In reply, the applicant stated that at the time of his arrest he had been informed in general terms that there had been a conviction and a sentence ordering his imprisonment, but no details had been given to him. He did not comment on the prison governor’s notification of 11 December 2004, and maintained that he had received official notification of the reasons for his arrest only on 7 March 2005. . The Court reiterates that paragraph 2 of Article 5 contains the safeguard that anyone who has been arrested should know why he is being deprived of his liberty. This is a minimum safeguard against arbitrary treatment. This provision is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph 2 anyone who is arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest. Whilst this information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed are sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v. the United Kingdom , 30 August 1990, § 40, Series A no. 182). As regards the manner of communicating the reasons for the arrest, Article 5 § 2 does not require the reasons to be given in writing to the detained person or otherwise in a particular form (see Kane v. Cyprus (dec.) , no. 33655/06 , 13 September 2011; and X. v. Germany , no. 8098/77 , Commission decision of 13 December 1978, DR 16, p. 111). . Turning to the present case, the Court notes that o n 5 November 2004 the applicant sent a request to the prison governor, asking to be treated as a Georgian national during his ten-year term of imprisonment, and that on 11 December 2004 the prison governor issued a note informing the applicant of the reasons for his arrest. The Court is of the view that in the absence of an effective remedy it was the very act of informing the applicant that triggered the running of the six-month time-limit in respect of that complaint. In the present case the applicant was informed of the reasons for his arrest at the latest on 11 December 2004, whereas the application to the Court was lodged on 7 July 2005, more than six months after that. . It follows that that complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION . Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage . The applicant claimed the overall amount of 120,057 euros (EUR) in compensation for pecuniary damage. He claimed, in particular, EUR 70,215 for loss of earnings for the period between 22 November 2004 and 31 March 2011. The applicant also argued that due to his detention he could not appear to sign a contract for the purchase of a property, and thus lost 65,000 United States dollars (USD, the equivalent of approximately EUR 49,842), which had been paid to the seller in advance as a guarantee. . The Government objected to those claims as exorbitant, unrelated to the alleged violation, and unsupported by any documents. 54. The Court observes that the part of the claim concerning loss of earnings is not supported by any documents. It also notes that there is no causal relationship between the violation found and the pecuniary damage alleged. No award can therefore be made in respect of those sums, and the Court rejects the claim. . In respect of non-pecuniary damage, the applicant claimed EUR 75,600. The Court reiterates that where a violation of Article 6 is found the applicant should, as far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be a retrial or reopening of the proceedings, if requested (see Kounov , cited above, §§ 58-59, with further references). In the present case, however, it appears that reopening of the proceedings is impossible (see paragraph 22 above). In these circumstances, the Court considers that the applicant must be awarded EUR 5,000 for the anxiety and frustration suffered as a result of the violation found. B. Costs and expenses . The applicant claimed EUR 292 in travel expenses related to his lawyer’s trips from Sofia to Varna in relation to the proceedings for the restoration of the case file and EUR 41 in travel expenses for visiting the applicant in prison. He also claimed EUR 1,054 in lawyer’s fees. In support of those claims the applicant submitted receipts for petrol and a contract for legal representation for the amount of 300 Bulgarian levs (BGN, the equivalent of approximately EUR 153). He further claimed EUR 51 in postage, EUR 61 in translation expenses, and EUR 2,500 for legal representation before the Court (at the rate of fifty euros per hour for fifty hours of legal work). He presented only receipts for postal and translation services. 57. The Government argued that the claim was excessive and not supported by relevant documents. 58. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court considers it reasonable to award the sum of EUR 1,000 covering costs and expenses under all heads. C. Default interest . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint under Article 6 § 1 of the Convention concerning the fairness of the criminal proceedings against the applicant held in absentia and the ensuing refusal of the domestic court to reopen them admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 25 March 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş Aracı Ineta Ziemele Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII