AFFAIRE PENEV CONTRE LA BULGARIE

Rezoluția CM/ResDH(2013)183 Penev împotriva Bulgariei Executarea hotărârii Curții Europene a Drepturilor Omului (Recherche n 20494/04, Hotărârea 07/01/2010, definitivă la 07/04/2010) (adoptată de Comitetul de Miniștri la 26 septembrie 2013, cu ocazia celei de-a 1179-a ședințe a delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârea definitivă care a fost transmisă de Curte Comitetului în cauza de mai sus și încălcările constatate reamintind obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum ; și măsuri generale de prevenire a unor încălcări similare ; Am invitat guvernul de la statul pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligațiilor După examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârii judecătorești, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2013) 826 și având în vedere faptul că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1), DECLAMENTUL CHIIL și-a îndeplinit funcțiile în temeiul articolului 46 alineatul (2) din convenție în această cauză și DECIDE d Caseta referitoare la încălcarea dreptului de a face fair trial in that in a judgment delivered on 10/12/2003 determining appeal procedings brought by the aplicant against a concret and sentence, the Supreme Court of Cassation/d a new legal characterization of thefacts of the case. It also found the applicant guilty of a new offence which carried a les severe pedepseshment, sended her to a one-year apendiced sentince and confirmed the lower pends judgments in part in allowing the claim of the civil party. Convention violation found The European Court found that the two offences in question were different, that the elements of the new offence had not been debated throughout the applicicants trial or at any time considered during the investigation, that the aplicant had not been aware that the Supreme Court of Cassation might have returned an alternativ verdict, and that it was only through the final judgment that he bechame aware of the new legal characterization of thefacts. The Court concluzioneazăd that the aplicant had not been informad in detail of the natura and the caus of the acuzation against him, that he had not been aforded adequate time and facilities for the preparation of his defence, and that he had not received a fair trial. The absence of a clear requirement in the application law to allow the acuzăd to defend himself against the modified sarcini had been undoubtedly decisive in that aspect (violation of Article 6§3(a) and (b), together with Article 6§1). Individual measures: The amount of just satisfaction awarded by the Court was duly paid. According to information provided by the Supreme Court of Cassation re-opening of the criminal proceedings against the applicant hasn mait been sought by the competent authorities. The approached the Supreme prosecution office in order to initiate a re-opening of the case. No further individual measures seem to be necessary. General Measures Legislative measures Under the present case the Supreme Cassation Court returned a verdict and declarad the applicant guilty of an offence under art. 220 §1 of the Criminal Code. For the offence under art. 282 § 2 of the Criminal Code, which is sanctionable by imprisonment for between one and eight years, the aplicant was aplated by the Supreme Cassation Court. Therefore, by changing the legal calification of the information the Court applied a law for a les heavily sanctionable infraction. The Bulgarian government refers to the amendment of Article 422 of the Code of Criminal Procese introduced in 2011 (efectiv since 01/01/2012) specially to allow persons in a position similar to that of the aplicant in the present case to request the reopening of the criminal proceseding. Indeed, in the reopened procesing the acuză persons will ave the possibility to defend themselves against the sarcina retained acording to the more lenient characterization of thefacts. art. 422 alineatul (1) (5) din Codul de procedură penală provides for reopening of criminal cazes where substantial viols have been committed under art. 348 alineatul (1) in relation to courte decisions under Article 354 alineatul (2) and § 5 i.e. judgments in which an acuzad is found guilty of an offence which carries a les severe pedepseshment or judgments in which the Supreme Court of Cassation has decided the case on the merits without reperring it to the a doua instanță. There are three types of substantial viols under art. 348: violare a substantive law; serious violation of the procesdural rules; manifestly unfair puncishment. According to article 421 (3) of the Code of criminal procesual procesure the convict is entitled to file the request under Article 422 (1), item 5 within 6 months of the entry into force of the respective act. art. 424 din Codul de procedură penală makes provision that the request for re-opening of the case shall be examined by the Supreme Court of Cassation. According to article 426 of the Code of infractional procedure the rules for cassation procesion shall applications, insofar as Chapter 32 does not contain any special rules. Acording to Article 425 (1), where the Supreme Court of Cassation finds the request for reopeningwell-founded, it may: revoke the sentince, judgement, ruling or or order, and return the case for new examination, specificing the stagiar at which the new examination should start; Revoke the sendviș, the decision or ruling and finalate or suspendă crimial procesedings or acquit the fondant in the case of Article 24, paragraph 1, item 1 within the framework of the factual situations under the efective sentince; modify the sentince, the apellate instance decides or the new sente in cases where the grounds to this effect are infallour of the convict. In its judgment Paraskeva Todorova v. Bulgaria (§ 24 - 30), The European Court found that the reopening process under Article 422 (1), item 5 is very similar to a regulal cassation procedure, even when a request for reopening is finally rejected, because the Supreme Court of cassation examines the legal casation, the manner in which thefacts were established and the fairness of the sanction impuned. The Supreme Court of Cassation took a similarar approach in recently reported cases (see, for instance, judgment No 388 from 04/100/2012 in incriminal case No. 1166/2012). Publication and disemination Translation of the judgment is awaiting and afterwards it is intendented to diseminate copies of the judgment among the relevant authorities in order to raise the awareness of the convention mais requirements as they result from this case Concluzii In conclusion the government considers to have folined its obligations arising from article 46 §1 of the convention with the Measures adopted and that these measures will prevent new similar viols. The government aks the Committee ofministers after deliberation to adoption a decision for closure the examination of this case. [1] Numai în limba engleză

Résolution CM/ResDH(2013)183

Penev contre Bulgarie

Exécution de l’arrêt de la Cour européenne des droits de l’homme

(Requête n

o

20494/04, arrêt 07/01/2010, définitif le 07/04/2010)

(adoptée par le Comité des Ministres le 26 septembre 2013,

lors de la 1179e réunion des Délégués des Ministres)

Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «

la Convention

» et «

la Cour

»),

Vu l’arrêt définitif qui a été transmis par la Cour au Comité dans l’affaire ci-dessus et les violations constatées

;

Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe

1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire

:

-

de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par

restitutio in integrum

; et

-

de mesures générales permettant de prévenir des violations semblables ;

Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée

;

Ayant examiné le bilan d’action fourni par le gouvernement indiquant les mesures adoptées afin d’exécuter l’arrêt, y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document

DH-DD(2013)826

)

;

S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,

DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et

DECIDE d’en clore l’examen.

Application Penev v. Bulgaria (No. 20494/04)

[1]

Action report on the execution of the judgment

of the European Court of human rights delivered on 7/1/2010

(anglais uniquement)

The case concerns the violation of the applicant’s right to a fair trial in that in a judgment delivered on 10/12/2003 determining appeal proceedings brought by the applicant against a conviction and sentence, the Supreme Court of Cassation adopted a new legal characterisation of the facts of the case. It also found the applicant guilty of a new offence which carried a less severe punishment, sentenced him to a one-year suspended sentence and confirmed the lower courts’ judgments in part in allowing the claim of the civil party.

1.

Convention violation found

The European Court found that the two offences in question were different, that the elements of the new offence had not been debated throughout the applicant’s trial or at any time considered during the investigation, that the applicant had not been aware that the Supreme Court of Cassation might have returned an alternative verdict, and that it was only through the final judgment that he became aware of the new legal characterisation of the facts. The Court concluded that the applicant had not been informed in detail of the nature and the cause of the accusation against him, that he had not been afforded adequate time and facilities for the preparation of his defence, and that he had not received a fair trial. The absence of a clear requirement in the applicable law to allow the accused to defend himself against the modified charges had been undoubtedly decisive in that aspect (violation of Article 6§3(a) and (b), together with Article 6§1).

2.

Individual measures:

The amount of just satisfaction awarded by the Court was duly paid.

According to information provided by the Supreme Court of Cassation re-opening of the criminal proceedings against the applicant hasn’t been sought by the competent authorities. The applicant hasn’t approached the Supreme prosecution office in order to initiate a re-opening of the case.

No further individual measures seem to be necessary.

3.

General measures

a)

Legislative measures

Under the present case the Supreme Cassation Court returned a verdict and declared the applicant guilty of an offence under article 220 §1 of the Criminal code. For the offence under article 282 § 2 of the Criminal Code, which is punishable by imprisonment for between one and eight years, the applicant was acquitted by the Supreme Cassation Court. Therefore, by changing the legal qualification of the indictment the Court applied a law for a less heavily punishable crime.

The Bulgarian government refers to the amendment of Article 422 of the Code of Criminal Procedure introduced in 2011 (effective since 01/01/2012) specifically to allow persons in a position similar to that of the applicant in the present case to request the reopening of the criminal proceedings. Indeed, in the reopened proceedings the accused persons will have the possibility to defend themselves against the charge retained according to the more lenient characterisation of the facts.

The amended article 422 § 1 (5) of the Code of criminal procedure provides for reopening of criminal cases where substantial violations have been committed under Article 348 § 1 in relation to court decisions issued under Article 354, § 2 (2) and § 5, i.e. judgments in which an accused is found guilty of an offence which carries a less severe punishment or judgments in which the Supreme Court of Cassation has decided the case on the merits without referring it to the second instance court. There are three types of substantial violations under Article 348: violation of substantive law; serious violation of the procedural rules; manifestly unfair punishment.

According to article 421 (3) of the Code of criminal procedure the convict is entitled to file the request under Article 422 (1), item 5 within six months of the entry into force of the respective act.

Article 424 of the Code of criminal procedure makes provision that the request for re-opening of the case shall be examined by the Supreme Court of Cassation. According to article 426 of the Code of criminal procedure the rules for cassation proceedings shall apply, insofar as Chapter 32 does not contain any special rules.

According to Article 425 (1), where the Supreme Court of Cassation finds the request for reopening well-founded, it may:

1.

revoke the sentence, judgement, ruling or order, and return the case for new examination, specifying the stage at which the new examination should start;

2.

revoke the sentence, the decision or ruling and terminate or suspend the criminal proceedings or acquit the defendant in the case of Article 24, paragraph 1, item 1 within the framework of the factual situations under the effective sentence;

3.

modify the sentence, the appellate instance decisions or the new sentence in cases where the grounds to this effect are in favour of the convict.

In its judgment Paraskeva Todorova v. Bulgaria (§§ 24 - 30), the European Court found that the reopening procedure under Article 422 (1), item 5 is very similar to a regular cassation procedure, even when a request for reopening is finally rejected, because the Supreme Court of cassation examines the legal qualification, the manner in which the facts were established and the fairness of the sanction imposed. The Supreme Court of Cassation took a similar approach in recently reported cases (see, for instance, judgment № 388 from 04/10/2012 in criminal case No. 1166/2012).

b)

Publication and dissemination

Translation of the judgment is awaiting and afterwards it is intended to disseminate copies of the judgment among the relevant authorities in order to raise the awareness of the Convention’s requirements as they result from this case

4.

Conclusions

In conclusion the government considers to have fulfilled its obligations arising from article 46 §1 of the Convention with the measures adopted and that these measures will prevent new similar violations. The government asks the Committee of ministers after deliberation to adopt a decision for closure the examination of this case.

[1]

En anglais uniquement