CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 novembre 2012

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BULGARIA   (Application no. 32238/04)           JUDGMENT       STRASBOURG   6 November 2012   FINAL   06/02/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. . In the case of Zdravko Stanev v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lech Garlicki, President ,   David Thór Björgvinsson,   Päivi Hirvelä,   George Nicolaou,   Nebojša Vučinić,   Vincent A. De Gaetano judges ,   Pavlina Panova, ad hoc judge , and Fatoş Aracı, Section Registrar, Having deliberated in private on 16 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 32238/04) 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 Zdravko Kostov Stanev. 2.     The applicant was represented before the Court by Mr N. Runevski, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their then Agent, Ms M. Dimova. 3.     On 16 June 2008 Zdravka Kalaydjieva, the judge elected in respect of the Republic of Bulgaria, withdrew from sitting in the case. Accordingly, on 28 September 2012 the President of the Fourth Section appointed Pavlina Panova as an ad hoc judge from the list of three persons whom Bulgaria had designated as eligible to serve as such judges (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court). 4.     In the meantime, on 19 October 2009 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1951 and lives in Kazanluk. A.     Background 6.     The applicant was representing his father in a tort action against the local forestry office. At a hearing held in December 2001 he objected to the decision of the judge hearing the case, who was the President of the Kazanluk District Court, to order a graphological examination of a photocopied document. The judge overruled his objection and the applicant appealed. 7.     On 7 December 2001, allegedly in order to illustrate the absurdness of the judge’s ruling, the applicant filed with the court photocopies of two declarations, asking that they be attached to his appeal. The first, purportedly emanating from the judge, said that she had forced the applicant to draw it up and that, to compensate him for the frustration and damage caused, she undertook to pay him 5,000 United States dollars (USD). The second, purportedly emanating from the director and an official of the forestry office, said that they owed the applicant USD 5,000. On 18   December 2001 the applicant filed with the court a further document purportedly emanating from the forestry office’s counsel which stated that she had forced the judge to carry out certain acts in relation to the case and that she owed the applicant USD 10,000. 8.     All three documents, presented in photocopy, bore the purported signatures of the individuals concerned. B.     The criminal proceedings against the applicant 9.     The judge referred the matter to the prosecution authorities, which opened an investigation against the applicant on charges of forgery. The judge, the forestry office’s officials and counsel also brought civil-party claims against him. 10.     All judges of the Kazanluk District Court withdrew from the case and it was transferred to the Stara Zagora District Court. On 23 September 2002 that court referred the case back to the prosecution authorities for the rectification of procedural errors. On 7 May 2003 the prosecuting authorities indicted the applicant, the charge being reduced to using forged documents contrary to Article 316 of the Criminal Code (see Relevant domestic law below). 11.     Following a query by the President of the Kazanluk District Court, on 5 June 2003 the Supreme Court of Cassation ordered that the case be transferred to the Nova Zagora District Court, which was in another judicial region, because that would obviate the need for judges to withdraw from the case even at the appellate level. 12.     On 1 July 2003 the applicant objected to the indictment. He argued, inter alia , that he had filed the copies of the documents in order to illustrate the impossibility of subjecting photocopies to graphological testing. 13.     The trial took place on two dates over the summer of 2003. 14.     In a judgment of 30 September 2003 the Nova Zagora District Court found the applicant guilty. Instead of imposing a penal sentence, it replaced his criminal liability with an administrative fine of 500 Bulgarian levs (BGN). It further ordered him to pay the civil parties non-pecuniary damages in the following amounts: BGN 10,000 to the judge (the full amount claimed), BGN 5,000 to the counsel, BGN 1,200 to the director of the forestry office, and BGN 700 to the official of that office. 15.     In reaching its decision, the District Court found that the applicant had knowingly used false documents with a view to improving his procedural position in the case against the forestry office. Since there was no proof that he had made the documents, he could not be held liable for that. In using them, however, he had understood the unlawful character of his actions and had wished for negative consequences to occur in order to win the civil case. His act was particularly serious, because he had undermined the integrity of the judicial process. Moreover, further aggravating factors included the high amounts mentioned in the documents and the fact that they had been linked with the professional capacities of the individuals mentioned in them. 16.     In assessing the quantum of damages, the court noted that the applicant was unemployed and did not own any property, which militated in favour of a minimal fine. However, concerning the judge’s claim for damages, the court found that the applicant’s act had injured her reputation and lowered her professional standing. The declaration purportedly emanating from her had become known to all judges and staff members of the court in which she worked, as well as to those members of the court which had examined the appeal against her ruling. It had also become known to the investigators and prosecutors who had dealt with the criminal case against the applicant. The judge had been serving for seventeen years, eleven of which as a president of the court; for that reason the allegation that she acted unlawfully when hearing cases had been particularly injurious. The applicant’s act had also impaired society’s trust in the judicial system, at a time when it was being subjected to many criticisms. 17.     The applicant appealed on the ground that there was insufficient evidence to support the court’s conclusions. He asked the court to order the prosecution to produce the originals of the impugned documents, with a view to their graphological examination, and sought leave to re-question the claimants and the experts and to call witnesses and adduce further evidence. Finally, he requested that counsel be appointed for him. 18.     In a decision of 11 November 2003 the Sliven Regional Court held that there was no need for an expert examination of the signatures on the documents, as the applicant was not charged with forging them but merely with using them. In any case, it was impossible to enjoin the prosecution to produce the originals, as this could obviously not be done without the assistance of the person who had used the photocopies. No re ‑ questioning was necessary, because the applicant had been given the opportunity to ask questions at the trial, but had failed to do so. Finally, it was impossible to assess the need for further witnesses, as the applicant had not indicated their identity. 19.     The court also refused to appoint counsel for the applicant. It noted that he could not afford one, but held that the interests of justice did not require that he be provided with free legal assistance, as he held a university degree and the charges against him were not very serious. 20.     In a brief filed on 1 December 2003 the applicant argued that the lower court had erred in the assessment of the evidence and had made arbitrary findings of fact. In particular, it had not specified on what basis it had concluded that the applicant had used the documents to win the civil case, seeing that he had not claimed the sums mentioned in them, but had merely employed them to illustrate a theoretical assertion. The court had also given reasons bordering on the absurd in determining the gravity of the offence, and had impermissibly dealt with the civil ‑ party claims. 21.     In a final judgment of 9 December 2003 the Sliven Regional Court upheld the lower court’s judgment. It held that it had properly admitted and analysed the evidence, had not omitted to gather relevant evidence, had made accurate findings of fact, and had correctly concluded that, by using false documents to win the civil case, the applicant had committed the offence with direct intent. There had been no material breaches of the rules of procedure. In particular, it had not been erroneous to try the applicant and only then give him an administrative punishment, nor to examine the civil claims against him, because all damage directly flowing from the offence – in this case, the claimants’ moral suffering – was subject to reparation. Nor had the court erred in determining the quantum of damages. II.     RELEVANT DOMESTIC LAW 22.     Article 316 of the 1968 Criminal Code provides that whoever uses a false document, but cannot be prosecuted for its forgery, is punishable with up to two years’ imprisonment. 23.     Points (1) to (6) of Article 70 § 1 of the 1974 Code of Criminal Procedure listed certain situations in which an accused who could not retain counsel had to be provided with court ‑ appointed counsel. None of these situations were relevant to the facts of the present case. On 1 January 2000 a new point (7) was added as part of a comprehensive overhaul of the Code intended to bring it into line with the Convention. It was based on Article   6   § 3 (c) of the Convention and provided that the appointment of counsel was compulsory if the accused could not afford it but wished to be legally represented and the interests of justice so required. 24.     In appeal proceedings, the courts are prohibited from worsening the situation of the accused in the absence of a prosecution appeal (Articles   333   § 4, 334 § 2, and 335 § 2 of the 1974 Code of Criminal Procedure). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) OF THE CONVENTION 25.     The applicant complained that the failure to provide him with legal assistance violated his rights under Article 6 § 3 (c) of the Convention, which reads as follows: “Everyone charged with a criminal offence has the following minimum rights: ... (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.” 26.     The Government contested that argument. A.     Admissibility 27.     The Government argued that the applicant could have submitted further evidence to the Sliven Regional Court and, if it considered the evidence to be cogent and sufficient, it could have reconsidered its order of 11 November 2003. Consequently, they submitted that the complaint was inadmissible as the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. 28.     The applicant disputed the Government’s argument on the ground that there was no specific right of appeal against the order of 11 November 2003. 29.     The Court recalls that the rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. The burden of proof is on the Government claiming non-exhaustion to satisfy the Court that an effective remedy was available in theory and in practice at the relevant time, namely, that the remedy was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see T. v. the United Kingdom [GC], no. 24724/ 94, §   55, 16 December 1999). Article 35 must also be applied to reflect the practical realities of the applicant’s position in order to ensure the effective protection of the rights and freedoms guaranteed by the Convention (see   Hilal v. the United Kingdom (dec.), no. 45276/99, 8 February 2000). 30.     Moreover, the Court further recalls that, where several remedies are available, the applicant is not required to pursue more than one (see, among other authorities, Karakó v. Hungary , no. 39311/05, § 14, 28 April 2009). Likewise, an applicant cannot be expected to continually make applications to the same body when previous applications have failed (see   N.A.   v.   the   United Kingdom , no. 25904/07, § 91, 17 July 2008). 31.     In the present case, the Court observes that the “remedy” alluded to by the Government is not in fact an appeal to a higher court, but rather a request to the same court to review its earlier decision. As indicated in paragraph 30 above, Article 35 § 1 of the Convention generally does not require applicants to make further applications to a court or other body which has already rejected a previous application. Moreover, the Court observes that as the Sliven Regional Court had accepted that the applicant did not have the means to pay for legal assistance, the only element of the decision that he could have challenged was the finding that the provision of legal assistance was not in the interests of justice. As this was a question of law rather than a question of fact, it is difficult to imagine what kind of evidence he could have submitted to the Regional Court to encourage it to reconsider its order of 11 November 2003. 32.     Consequently, the Government have not satisfied the Court that an effective remedy was available in theory and in practice at the relevant time, which was accessible, capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. It therefore rejects the Government’s submission that the applicant has failed to exhaust domestic remedies. 33.     The Court further notes that the complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. Furthermore, as it is not inadmissible on any other grounds, it must be declared admissible. B.     Merits 34.     The applicant complained that the Regional Court’s decision not to appoint counsel for him violated his rights under Article 6 § 3 (c) of the Convention. In particular, he complained that as an unemployed person with no income, he could not afford to appoint his own defence counsel. He further complained that the interests of justice required that defence counsel be appointed on his behalf. In this regard, he submitted that the offence with which he was charged was serious and, pursuant to the Criminal Code, carried a sentence of up to two years’ imprisonment. Finally, he argued that the proceedings were sufficiently complex to require the appointment of counsel by the court. 35.     The Government submitted that the applicant had not proved that he lacked the financial resources to appoint defence counsel. They further submitted that the interests of justice did not require the provision of free legal assistance in the present case because first, the case brought against the applicant was neither serious nor complex; secondly, the applicant was legally represented in the proceedings before the Nova Zagora District Court, and no new evidence was produced before the Sliven Regional Court; thirdly, the applicant was well-educated and in good health; and finally, unlike the applicant in Raykov v. Bulgaria (no. 35185/03, 22   October 2009), the applicant in the present case did not face the threat of deprivation of liberty as the Nova Zagora District Court had already replaced the criminal liability with administrative liability. 36.     The Court reiterates that the right of those charged with criminal offences to free legal assistance is subject to two conditions: the persons concerned must lack sufficient means to pay for legal assistance, and the interests of justice must require that they be granted such assistance (see,   among other authorities, Pham Hoang v. France , 25 September 1992, § 39, Series A no. 243) 37.     The Court notes that in spite of the arguments raised by the Government in their observations, the Sliven Regional Court clearly found that the applicant was unemployed and did not have sufficient resources to appoint a defence counsel (see paragraphs 20 and 32 above). In any case, the Court observes that the Government have not substantiated the claim made in their observations that the applicant had, in fact, sufficient resources to appoint counsel. Consequently, the Court accepts that the applicant lacked sufficient means to pay for legal assistance. 38.     As to whether the interests of justice required that the applicant receive free legal assistance in the form of court-appointed counsel, the Court recalls that it must have regard to the severity of the sanction which the applicant might incur, the complexity of the case and the personal situation of the applicant (see, for example, Quaranta v. Switzerland , 24   May 1991, § 33, Series A no. 205). The Court has held that where deprivation of liberty is at stake, the interests of justice in principle call for legal representation and if the defendant cannot pay for it himself, public funds must be available as of right (see Benham v. the United Kingdom , 10   June 1996, §§ 60 ‑ 61, Reports of Judgments and Decisions 1996 ‑ III); however, that is not to say that public funds do not have to be available where deprivation of liberty is not at stake. (see, for example, Barsom   and   Varli v. Sweden (dec.), nos. 40766/06 and 40831/06, 4 January 2008). 39.     In the present case, although the applicant initially risked the imposition of a sentence of up to two years’ imprisonment, the Nova Zagora District Court did not impose a prison sentence but instead fined him BGN   500 and, in response to the civil claims for damages ordered him to pay the injured parties non-pecuniary damages totalling BGN 16,900. As the prosecution did not seek to appeal against this decision, the Sliven Regional Court could not have imposed a heavier penalty on the applicant. Consequently, deprivation of liberty was not at stake in the proceedings before the Sliven Regional Court. Nevertheless, the fine imposed on the applicant amounted to approximately 250 euros (EUR), and the damages he was required to pay amounted to more than EUR 8,000, which was a significant amount in view of his financial situation. 40.     Moreover, although it is not in dispute that the applicant had a university degree, there is no suggestion that he had any legal training, and while the proceedings were not of the highest level of complexity, the relevant issues included the rules on admissibility of evidence, the rules of procedure, and the meaning of intent. In addition, the Court notes that the applicant was charged with a criminal offence which involved the impugnment of a senior member of the judiciary and which called into question the integrity of the judicial process in Bulgaria. Furthermore, the domestic courts appear to have dealt with the civil claims for damages in the course of the criminal proceedings. As such, a qualified lawyer would undoubtedly have been in a position to plead the case with greater clarity and to counter more effectively the arguments raised by the prosecution (see   Artico v. Italy , 13 May 1980, § 34, Series A no. 37). The fact that the applicant, as an educated man, might have been able to understand the proceedings does not alter the fact that without the services of a legal practitioner he was almost certainly unable to defend himself effectively (see Pakelli v. Germany , 25 April 1983, §§ 37-37, Series A no. 64, and Boner v. the United Kingdom , 28 October 1994, § 41, Series A no. 300-B). 41.     The Court therefore accepts that in the present case, the interests of justice demanded that, in order to receive a fair hearing, the applicant ought to have benefited from free legal representation during the proceedings before the Sliven Regional Court. Consequently, there has been a violation of Article 6 § 3 (c) of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 42.     The applicant complained under Article 6 § 1 of the Convention that the proceedings against him were unfair because the authorities failed to order an expert examination of the forged documents; the Prosecutor indicted him instead of punishing him administratively; the courts failed to analyse the evidence properly and made arbitrary findings of fact; the courts failed to address his arguments; the courts wrongly considered the civil claims in the course of the criminal proceedings; the awards of damages were excessive; and the judges were biased. 43.     Article 6 § 1 provides, in so far as relevant: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 44.     The Court has examined this complaint but finds, in the light of all the material in its possession and in so far as the matters complained of are within its competence, that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 45.     It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 46.     The applicant further complained under Article 13 of the Convention in respect of the alleged violations of Article 6 § 1 and Article 6 § 3 of the Convention. 47.     Article 13 of the Convention provides that: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 48.     The Court has examined this complaint but finds, in the light of all the material in its possession and in so far as the matters complained of are within its competence, that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 49.     It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 50.     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 51.     The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage and 16,900 Bulgarian levs (BGN) in respect of pecuniary damage (representing the civil awards made against him). 52.     The Government submitted that these claims were unfounded and exaggerated. 53.     In respect of the claim for pecuniary damage, the Court observes that the applicant’s complaint to the Court under Article 6 § 3 (c) of the Convention concerns the criminal proceedings only. The award of damages was made by the judge in response to the civil claims brought by the injured parties. Consequently, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it accepts that the applicant must be considered to have suffered some non-pecuniary damage as a result of the breach of his right to legal assistance. It therefore awards the applicant EUR   1,000 in respect of non-pecuniary damage. B.     Costs and expenses 54.     The applicant also claimed EUR 2,626 for the costs and expenses incurred before the Court. 55.     The Government considers this sum to be excessive. 56.     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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,600 for costs and expenses in the proceedings before the Court. C.     Default interest 57.     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 § 3 (c) of the Convention admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 6 § 3 (c) 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 the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 1,500 (one thousand five hundred 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 6 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.     Fatoş Aracı   Lech Garlicki Deputy Registrar   President