CEDH · CASELAW;CLIN;ENG — 24 mars 2005

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Bulgaria - 9808/02 Judgment 24.3.2005 [Section I] Article 5 Article 5-1 Lawful arrest or detention Refusal to reopen proceedings having resulted in the applicant’s conviction in absentia : violation   Facts :The applicant left Bulgaria in 1988. In 1989, following proceedings in absentia , he was convicted of rape and attempted rape and sentenced to ten years’ imprisonment. In 2000 he returned to Bulgaria and was arrested and taken to prison to serve his sentence. His request to be released – based on the argument that the ten-year limitation period for the enforcement of his sentence had expired – was rejected in turn by district and regional prosecutors and the Supreme Cassation Prosecutor, all considering that the period had been interrupted by several measures taken with a view to having his sentence enforced. In 2001 the Supreme Court held that his request for a reopening of the criminal proceedings was inadmissible as the case-file had been destroyed in 1997, which rendered a rehearing impossible in practice. His request for restoration of the case‑file was in vain. Law :Article   5 § 1(a) – The Court found no indication that the applicant had waived his right to appear and defend himself in the proceedings against him in 1989. He should, therefore, have had the opportunity to have those proceedings reopened and the merits of the rape charges against him determined in his presence. Since 1 January 2000 Bulgarian law had expressly provided for such a possibility. However, when the applicant had requested that his case be reopened, the Supreme Court of Cassation had refused, essentially on the ground that the case‑file of the original proceedings had been destroyed, which, in its view, rendered a rehearing impossible in practice. He had apparently not received a reply to his request for restoration of the case‑file. He had thus been deprived of the possibility to obtain from a court, which had heard him, a fresh determination of the merits of the charges on which he had been convicted. It followed that the criminal proceedings against the applicant, coupled with the impossibility to obtain a fresh determination of the charges against him by a court which had heard him, had been manifestly contrary to the principles embodied in Article   6. Therefore, while his initial deprivation of liberty in 2000 might have been deemed justified under Article   5 § 1(a), having been effected for the purpose of enforcing a lawful sentence, it ceased to be so in 2001, when the Supreme Court of Cassation had refused to reopen the proceedings. Conclusion : violation (unanimously). Article   5 § 4 – The applicant’s argument that his sentence could no longer be enforced as the limitation period had expired raised an issue of fact determinative of the legality of his detention which was independent of, and distinct from, his 1989 conviction and sentence. As the legality of his detention was not clear he should have been able to have this issue resolved by a court meeting the requirements of Article   5 § 4. Under Bulgarian law, however, all issues affecting the legality of execution of prison sentences were entrusted to the public prosecutor. There was no provision expressly providing for judicial review of such issues and no general habeas corpus procedure applying to all kinds of deprivation of liberty. Conclusion : violation (unanimously). Article   5 § 5 – Bulgarian law did not provide the applicant with an enforceable right to compensation for the violations found. Conclusion : violation (unanimously). Article   41 – The Court held that the most appropriate form of redress for the violation of Article   5 § 1(a) would be to reopen the proceedings and retry the applicant in keeping with all the requirements of a fair trial. The Court awarded the applicant EUR 8,000 for non-pecuniary damage and also made an award for costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes