FIFTH SECTION
DECISION
Application no. 29757/02
by Alexander Yankov OGNYANOV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 18 September 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrR. Maruste,
MrJ. Borrego Borrego,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 16 July 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Alexander Yankov Ognyanov, is a Bulgarian national who was born in 1952 and lives in Sofia.
The respondent Government were represented by their Agent, Ms M. Kotzeva, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The criminal proceedings against the applicant
On the morning of 24 November 1999 the applicant, having been charged with fraud, was due to attend a hearing of the Sofia District Court.
At 9.02 a.m. he called the police and informed them that three unknown individuals had left suspicious packages, which might contain explosives, in the toilettes of the court. In the course of the communication the number of the public phone he had been using was detected and several minutes later the applicant was arrested while still speaking on the phone. No explosives were found in the court building.
On 25 November 1999 the applicant was charged with having given fake distress signals (Article 326 of the Criminal Code) and was detained on remand.
On an unspecified date the applicant filed a request for release. The Sofia District Court examined his request on 13 December 1999 and released him on bail.
On 21 March 2000 the applicant appeared before the investigator, who presented him with the results of the investigation. The investigator recommended that the applicant be committed for trial and forwarded the case file to the Sofia District Prosecutor’s Office. It is not clear whether the applicant was aware of the investigator’s decision. Some time after 21 March 2000 he changed his place of residence.
On an unspecified date the Sofia District Prosecutor’s Office filed an indictment against the applicant with the Sofia District Court.
As his whereabouts could not be ascertained, the applicant was placed on the national most-wanted list. The attempts made to locate and detain him proved unsuccessful.
On an unspecified date the trial court decided to proceed with the case in the applicant’s absence and appointed an ex officio counsel to represent him. On 16 January 2001 it found him guilty as charged and sentenced him to a year-and-a-half imprisonment. On appeal the applicant’s conviction was upheld by the Sofia City Court on 31 May 2001 and by the Supreme Court of Cassation on 28 September 2001.
The applicant was arrested on 23 March 2002 and was brought to the Sofia Central Prison to serve his sentence.
2. The applicant’s request for reopening
Following his arrest, the applicant requested the reopening of the criminal proceedings, arguing that he had not been informed of the trial against him and that he could therefore have attended it.
In a judgment of 27 May 2002 the Supreme Court of Cassation dismissed the request as it found that the applicant, having been informed of the results of the preliminary investigation against him, had been aware of the forthcoming court proceedings and had deliberately absconded. The court also found that the lower courts had made an exhaustive effort to locate the applicant and having failed had correctly examined the case in his absence while complying with their duty to appoint an ex officio counsel to represent him. The Supreme Court of Cassation thus concluded that the conditions for reopening had not been met.
3. Other relevant facts
(a) The cumulating of sentences
In the meantime, the applicant was also convicted of fraud and was sentenced to two years’ imprisonment, which conviction became final on 7 March 2000.
On unspecified dates the applicant filed several complaints with different institutions, arguing that he should have been given a single sentence in the proceedings for fraud and for having given fake distress signals.
On 13 September 2002 the Sofia District Court granted his request and ruled that the applicant must serve only the more severe punishment – the two years’ imprisonment – which it increased with six months. The applicant did not appeal against this decision.
On 4 October 2002 the applicant was released from prison.
(b) The applicant’s accident in 1976
In a letter to the Court of 20 January 2003 the applicant submitted that in 1976, while he had been serving a prison sentence, an unknown individual had hit him and had broken his right arm, and that he had had to undergo two surgical operations for this. He had then unsuccessfully tried to obtain compensation.
COMPLAINTS
1. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he was convicted unfairly in his absence in spite of the fact that he had had a permanent place of residence. He also alleged that the courts erred in assessing the evidence against him.
2. The applicant complained that he should have been given a single prison sentence in the proceedings for fraud and for having given fake distress signals and that he had already served his sentence when he was arrested in March 2002. He therefore considered his subsequent detention to have been unlawful.
3. The applicant complained that his arm was broken in 1976 and that he had not received any compensation for the accident.
THE LAW
On 8 February 2007 notice of the application was given to the respondent Government under Rule 54 § 2 (b) of the Rules of Court and they were invited to submit written observations on the admissibility and merits of the case.
On the same day, 8 February 2007, the applicant was informed that notice of his application had been given to the respondent Government. The letter was returned to the Court on 23 April 2007 as undelivered with an indication that the recipient had moved to a new address.
On 26 April 2007 the letter to the applicant was resent, by registered mail with acknowledgement of receipt, both to his last known address and to the one he had initially given in his application. The letter to his previous address was returned to the Court on 6 June 2007 as undelivered without any indication as to the reason, while the one to the applicant’s last known address was retuned on 20 June 2007 as undelivered with an indication that the recipient had moved to a new address.
On 18 June 2007 the letter to the applicant was again resent, by registered mail with acknowledgement of receipt, to his last known address, which was also returned to the Court on 2 July 2007 as undelivered with an indication that the recipient had moved to a new address.
On 11 July 2007 the letter to the applicant was once again resent, by registered mail with acknowledgement of receipt, to the address he had initially given in his application, which was returned to the Court on 19 July 2007 as undelivered with an indication that the recipient had moved to a new address.
In the meantime, on 2 July 2007 the respondent Government submitted their observations, which in view of the above development have not been copied and forwarded to the known addresses of the applicant.
No further correspondence has been received by the Court on behalf of the applicant. Moreover, no communication has been received from him since 2003 and neither has he informed the Court of his change of address, as required under Rule 47 § 6 of the Rules of Court.
Having regard to the foregoing, the Court finds that the applicant does not intend to pursue his application within the meaning of Article 37 of the Convention, which, so far as material, provides as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; ...
...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
Furthermore, the Court considers that respect for human rights as defined in the Convention and the protocols thereto does not require the continued examination of the application (Article 37 § 1 in fine).
Accordingly, Article 29 § 3 of the Convention should no longer apply to the case and it should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy