Resolution CM/ResDH(2012)158[1]
Borisova against Bulgaria
Execution of the judgment of the European Court of Human Rights
(Application No. 56891/00, judgment of 21/12/2006, final on 21 mars 2007)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),
Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established (see document DH-DD(2012)921E);
Recalling that the respondent State’s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:
- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;
Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2012)921E);
Having satisfied itself that all the measures required by Article 46§1 have been adopted;
DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination thereof.
Action report
Case of Borisova v. Bulgaria, application no. 56891/00, judgment of
21 December 2006, final on 21 March 2007
The present case concerns a violation of the applicant’s right to fair trial under Article 6 §§ 1 and 3 (a), (b) and (d) taken together, in the context of proceedings under the Degree on Combating Minor Hooliganism in 1999, as a result of which the applicant was sentenced to a 5-day arrest. The Court based its finding of a violation on the following considerations:
-The applicant had not been promptly and in detail informed of the nature and cause of the accusation against her and had not had adequate time and facilities for the preparation of her defence. The applicant was arrested in the morning of 08/09/1999, after allegedly having hit a police officer, and brought to a court after about two hours, which she spent either in transit to the court or detained in a cell at the police station. The applicant was not given an opportunity to contact a lawyer or a relative prior to the start of the proceedings. The court hearing lasted about 20 minutes and the judgment given at its close was not subject to appeal. In addition, the applicant claimed that she had been unaware of the upcoming proceedings against her and had only been informed of the accusations just before being presented for trial.
-The applicant could not obtain the attendance and examination of witnesses on her behalf, even though she stated on several occasions during the court hearing that she wished to call witnesses. In fact, only witnesses for the prosecution were heard, which, in the European Court’s view, gave the prosecution an unfair advantage.
1) INDIVIDUAL MEASURES
-The European Court awarded to the applicant EUR 2,000 for non-pecuniary damage arising from the unfair proceedings against her which had resulted in a 5-day detention. The Government paid the sum on 19 September 2007 (the applicant stated that she would not seek interest).
-The applicant has served the 5-day sentence and has been released. The conviction has not been entered into her criminal record (§ 26 of the judgment).
The Government is of the view that no further individual measures are necessary to erase the consequences of the violation of the applicant’s rights.
2) GENERAL MEASURES
The Decree on Combating Minor Hooliganism was adopted in 1963 and amended on numerous subsequent occasions. It covers minor offences of hooliganism which are punishable with an administrative sanction of up to fifteen days’ detention at a police station or a fine. The procedure is expeditious: the accusations are to be filed with the respective court within 24 hours following the discovery of the offence and the court is to decide in another 24 hours. The European Court has noted that the use of such expeditious procedures is not in itself contrary to Article 6, as long as the necessary safeguards and guarantees have been provided for (§ 40 of the judgment).
The Bulgarian Government is of the view that after the latest amendments of November 2011 the Decree provides for those safeguards and guarantees. Most importantly, it is now stipulated that the Administrative Offences and Punishments Act is to be applied to proceedings under the Decree on a subsidiary basis. That Act, which, on its turn, refers on a subsidiary basis to the Code of Criminal Procedure, provides for all the necessary guarantees of fair trial in proceedings concerning administrative offences, such as the rights to effective defence, to legal assistance, to present evidence and to equality of arms. The Government considers that the expeditious character of the proceedings under the Decree on Combating Minor Hooliganism is not in principle incompatible with these guarantees.
In addition, it is now provided that first-instance decisions under the Decree can be appealed against before the respective regional court (this was not previously the case – see § 25 of the judgment), which is an additional assurance against unfairness and provides aggrieved parties with a further chance to prepare and present their case.
The Government is of the view that the legislative amendments described above are sufficient to ensure that violations similar to the ones in the case will not occur in the future. No further general measures are thus necessary.
[1] Adopted by the Committee of Ministers on 6 December 2012 at the 1157th Meeting of the Ministers’ Deputies.
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