CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 novembre 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sC6BCF4B7 { margin-top:0pt; margin-bottom:0pt; border:0.75pt solid #000000; padding:1pt 4pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s6CCEAD68 { font-family:Arial; font-weight:bold; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sAB0FFF87 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s9C230781 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA426CA09 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; page-break-inside:avoid } .s9F0D231E { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s2BF44DB3 { width:159.61pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }       FIFTH SECTION             CASE OF APOSTOLOVI v. BULGARIA   (Application no. 32644/09)                 JUDGMENT   Art 1 P1 • Possessions • Interference • Freezing of assets in the context of criminal proceedings • Courts’ omission to examine argument that freezing impaired defendant’s ability to meet medical expenses   STRASBOURG   7 November 2019     FINAL   07/02/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Apostolovi v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President ,   Gabriele Kucsko-Stadlmayer,   André Potocki,   Yonko Grozev,   Mārtiņš Mits,   Lәtif Hüseynov,   Lado Chanturia, judges , and Claudia Westerdiek, Section Registrar , Having deliberated in private on 8 October 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 32644/09) 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 two Bulgarian nationals, Mr Stoyan Todorov Apostolov and Mrs Milena Georgieva Apostolova (“the applicants”), on 28   April 2009. 2.     The applicants were represented by Ms E. Nedeva, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Nedyalkova of the Ministry of Justice. 3.     The applicants complained, in particular, that the initial freezing of a number of bank accounts and immovable properties belonging to them in the context of criminal proceedings against the first applicant and the maintenance of those freezing orders had unlawfully and unjustifiably interfered with their possessions, in particular because it had prevented them from adequately meeting the medical expenses of their severely disabled son. They also complained of the alleged absence of an effective domestic remedy in that respect. 4 .     On 13 December 2017 the Court gave the Government notice of the first applicant’s complaints concerning the freezing of his assets and the alleged lack of an effective remedy in respect of that (Rule 54 § 2 (b) of the Rules of Court), and asked the parties to submit factual information about the remedial measures taken with respect to the freezing of the second applicant’s assets (Rule 54 § 2 (a)). The Court declared the remainder of the application inadmissible (Rule 54 § 3). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The first applicant (Mr Apostolov) was born in 1956. The second applicant (Mrs Apostolova) was born in 1958. They live in Haskovo. 6.     The applicants are spouses. The first applicant used to be a public prosecutor but at the relevant time was working as a lawyer in private practice. 7 .     The applicants have three children. The third, a son born in 1989, suffers from a number of congenital disorders. He has been declared 100% disabled and receives disability benefit. In the second half of 2008 his monthly disability benefit amounted to about 164 Bulgarian levs (BGN). He requires constant medical treatment and personal care. A.     Criminal proceedings against the first applicant 8.     On 29 March 2007 the Haskovo regional prosecutor’s office opened an investigation with respect to the first applicant and an alleged accomplice on suspicion that they had been conducting banking business without a licence, in breach of Article 252 § 1 of the Criminal Code. 9 .     On 17 November 2008 the first applicant and his alleged accomplice were charged. The first applicant was accused of conducting banking business without a licence and thereby causing others significant damage and obtaining unlawful earnings. This offence, under Article 252 § 2 of the Criminal Code, carried a penalty of (a) five to ten years’ imprisonment; (b)   a fine of BGN 5,000 to 10,000 (equivalent to 2,556 and 5,113 euros (EUR) respectively); and (c) confiscation of some or all of the perpetrator’s assets. It was alleged that he had caused nine people a total loss of BGN   116,030 (equivalent to EUR 59,325) and had unlawfully earned BGN   187,250 (equivalent to EUR 95,739). 10 .     On 4 December 2009 the prosecuting authorities indicted the first applicant and his co-accused. 11 .     Twenty-one trial hearings were held, and on 9 November 2012 the Haskovo Regional Court found the first applicant guilty of conducting banking business without a licence jointly with his co-accused, thereby causing five people damage totalling BGN 12,408 (equivalent to EUR   6,344) and unlawfully earning BGN 51,368 (equivalent to EUR   26,264). The court acquitted him of the remainder of the charges brought by the prosecution. It imposed a two-year suspended prison sentence and a BGN 3,000 (EUR 1,534) fine. It also ordered him and his co ‑ accused jointly to pay the Treasury BGN 29,440 (equivalent to EUR   15,052) and the first applicant personally to pay the Treasury BGN   21,928 (equivalent to EUR 11,212) by way of forfeiture under Article   53 § 2 (b) of the Criminal Code (see paragraph 47 below). Lastly, it ordered him to pay BGN 2,000 (equivalent to EUR 1,023), plus interest, in damages to two civil claimants. The court also partly upheld the charges against the co-accused. 12 .     The prosecution, the first applicant, his co-accused and the two civil claimants (who were also private prosecuting parties) all appealed. On 28   March 2013 the Plovdiv Court of Appeal quashed the lower court’s judgment and remitted the case to the prosecuting authorities. It first noted that the partial acquittal of the first applicant and his co-accused had not been appealed against and was therefore final. It went on to say that the appeals of the first applicant and his co-accused, which concerned the remainder of the lower court’s judgment, were well-founded, as the proceedings had been tainted by a serious procedural irregularity. The indictment had been unclear and internally inconsistent, which had caused confusion about the subject matter of the case and had reflected on the lower court’s findings. That court had spotted the problem but had nevertheless proceeded to judgment. It was, then, necessary to quash its judgment and remit the case to the prosecuting authorities for them to draw up a proper indictment. 13.     On 12 September 2013 the prosecuting authorities submitted an amended indictment to the Haskovo Regional Court. On 10 October 2013 the judge-rapporteur returned it to them with instructions to correct various irregularities in it. The prosecuting authorities appealed against that decision, and on 18 November 2013 the Plovdiv Court of Appeal quashed it, finding that the prosecuting authorities had sufficiently complied with the instructions in its earlier judgment. 14 .     The first applicant was then re-tried, but the civil claims against him were not taken up for examination. The Haskovo Regional Court held nineteen hearings, many of which had to be adjourned owing to the failure of the co-accused to appear. On 10 March 2016 it again found the first applicant guilty of conducting banking business without a licence (in relation to three loans which he had made alone and five loans which he had made jointly with his co-accused), thereby causing three people damage totalling BGN 7,000 (equivalent to EUR 3,579) and unlawfully earning BGN 44,640 (equivalent to EUR 22,824). It gave the first applicant a year’s suspended prison sentence. In fixing the sentence below the statutory minimum and opting not to impose a fine or order confiscation, as provided for under Article 252 § 2 of the Criminal Code, the court had regard, in particular, to the medical conditions of the first applicant’s son and the prolonged duration of the criminal proceedings against him. 15 .     The first applicant and his co-accused appealed. The Plovdiv Court of Appeal held five hearings and on 2 October 2017 upheld the first applicant’s conviction and sentence, fully agreeing with the lower court’s reasons. 16 .     The first applicant and his co-accused appealed on points of law. On 23 February 2018 the Supreme Court of Cassation heard the appeals and on 9 March 2018 it upheld the lower court’s judgment. B.     Freezing of the applicants’ assets 1.     The freezing order 17 .     Following a request by the prosecuting authorities under Article 72 §   1 of the Code of Criminal Procedure (see paragraph 48 below), on 28   November 2008, shortly after the first applicant had been charged (see paragraph 9 above), the Haskovo Regional Court decided to freeze thirty ‑ five bank accounts registered in his name and three immovable properties belonging to him. It noted that the offence of which he stood accused was punishable with a fine and confiscation, and said that his being charged was enough to consider that the charges were probably well-founded. There was also evidence that the bank accounts and properties belonged to him. It was necessary to freeze them to secure the satisfaction of a possible fine or confiscation. The court’s asset-freezing order was issued on 1 December 2008. At that time, the bank accounts apparently contained BGN 88,784 (equivalent to EUR 45,395) plus 300   euros (EUR) and 23,565 United States dollars. 2.     Appeal against the decision to issue the freezing order 18 .     On 31 March 2009 the first applicant appealed against the decision to issue the freezing order, arguing that it impermissibly affected family assets, half of which belonged to his wife, and assets shielded from confiscation. This was particularly problematic in his case owing to the disability of his son and the associated medical expenses (see paragraph 7 above). 19 .     The Haskovo Regional Court refused to forward the appeal to the Plovdiv Court of Appeal, on the basis that it had been lodged out of time. The first applicant appealed against that decision, but on 16 June 2009 the Plovdiv Court of Appeal upheld it, finding, in particular, that he had obtained a copy of the decision to issue the freezing order on 25 February 2009 and had appealed against it long after the expiry of the applicable seven-day time-limit. 3.     First request to have the freezing order lifted 20 .     On 31 March 2009 the applicants also applied to the Haskovo Regional Court to have the freezing order lifted. 21 .     The second applicant pointed out that half of the sums in the bank accounts and half of two of the three immovable properties belonged to her, in her capacity as the first applicant’s spouse. She argued that her half could not lawfully be frozen, since only assets belonging to an accused could be confiscated. 22 .     The first applicant submitted that the impossibility to draw on the money in his bank accounts placed the life of his disabled son at risk, as he had no sources of income apart from his savings. He also argued that the restriction unlawfully affected assets shielded from confiscation under Article 45 § 2 of the Criminal Code (see paragraph 44 below). His argument ran as follows: that provision prohibited the confiscation of funds needed by a convicted person and his or her family for living expenses for one year. It was, then, impermissible to freeze such funds to ensure their confiscation. Yet, the Haskovo Regional Court had not checked what sum would be needed by him and his family to live for one year with a view to excluding it from the scope of the freezing order. That was especially problematic in the light of his son’s medical conditions (see paragraph 7 above), which generated medical expenses on top of the family’s ordinary living expenses. 23 .     The prosecuting authorities made no submissions in reply. 24 .     The Haskovo Regional Court examined the applications on the papers and on 8 May 2009 rejected them. It held that the need for the assets to be blocked was still in place as the criminal proceedings against the first applicant were still under way. The mere fact that charges had been brought against him made those charges potentially well-founded, and that possibility would not vanish unless there was a final acquittal. No fresh developments had obviated the need to keep the assets frozen. As for the second applicant’s arguments, they had to be made in the proceedings in which the competent bailiff and property-registration officials had enforced the freezing order. 25 .     The applicants appealed. They said that they fully maintained their original arguments, and again asserted that only the first applicant’s half of the family assets could lawfully be frozen. The prosecuting authorities made no submissions in reply. 26 .     The Plovdiv Court of Appeal examined the appeal on the papers, and on 29 July 2009 partly quashed the lower court’s decision and unfroze the second applicant’s half of the assets. It agreed that the main reason for the restriction had not ceased to exist, since the criminal proceedings against the first applicant were still under way and could lead to a fine and confiscation of part or all of his assets. The lower court had, however, been wrong to hold that the second applicant’s argument concerning her half of the assets was irrelevant to those proceedings. Since charges had been brought only against her husband, only his half of the family assets could lawfully be frozen. Those were sufficient to ensure that a confiscation order or fine against him would be met. His son’s medical conditions were irrelevant for that assessment. 4.     Second request to have the freezing order lifted 27 .     On 11 May 2013 the first applicant complained to the Haskovo regional prosecutor’s office that his assets had remained blocked for an inordinate amount of time and without a genuine need for that, especially since the likelihood of a confiscation or forfeiture order against him was low and the maximum amount of the potential fine he faced was BGN 10,000 (equivalent to EUR 5,113). His immovable properties were sufficient to guarantee the enforcement of any such sentence. The impossibility to use the money in his bank accounts was a real problem in view of his son’s disability, and it was imperative for him to get unencumbered access to that money as soon as possible. 28 .     The prosecuting authorities did not respond to the request, and on an unknown date in the summer or early autumn of 2013 the first applicant asked the Haskovo Regional Court to unfreeze fully his bank accounts and two of the immovable properties, and to unfreeze partly the third immovable property. 29 .     On 14 October 2013 a civil judge of the Haskovo Regional Court partly allowed the request and unfroze the bank accounts. The first applicant appealed, arguing that his immovable properties should be unfrozen as well, because the restriction was disproportionate as a whole. On 28 November 2013 the Plovdiv Court of Appeal quashed the lower court’s decision in full on the basis that it had been taken by a judge without jurisdiction in the matter, and the matter was referred to the trial panel examining the criminal case against the first applicant. 30 .     At a hearing on 16 January 2014 that panel decided to adjourn the first applicant’s trial owing to the absence of a number of witnesses, and went on to examine the request for the unfreezing of his assets. The first applicant submitted that his co-accused, the charges against whom were more serious, had not suffered any such restrictions. By contrast, all of his assets had remained frozen since 2008, which seriously impeded his ability to take care of his ailing son, especially since the criminal proceedings against him and the attendant publicity had in practice prevented him from practising as a lawyer. In addition, the interest that had accumulated on the money in his bank accounts had likewise remained blocked. 31 .     In a bench ruling of the same date the panel unfroze all of the first applicant’s assets, except one immovable property. It held that although the criminal proceedings against him were still under way and there was still a risk that he might dissipate those assets, it could not be overlooked that the proceedings had begun in 2007 and that his assets had been blocked as early as 2008. He had thus been unable to use the money in his bank accounts despite the need flowing from the serious medical conditions of his son. Another point to be borne in mind was the maximum amount of the fine and confiscation which could be imposed on him on conviction. 5.     Unfreezing of the remaining immovable property 32 .     In view of its judgment of 10 March 2016 convicting the first applicant and giving him only a suspended prison sentence (see paragraph   14 above), on the same day the Haskovo Regional Court unfroze his third immovable property as well. C.     The second applicant’s claims for damages against the authorities 1.     Claim against the Haskovo Regional Court 33 .     On an unknown date in 2010 the second applicant brought a claim in respect of non-pecuniary damage under section 49 of the Obligations and Contracts Act 1950 (see paragraphs 59 and 60 below) against the Haskovo Regional Court. She said that she had suffered non-pecuniary damage to the tune of BGN 50,000 but for the time being sought only BGN 25,500. 34 .     Since none of the judges in the Haskovo Regional Court could deal with the case, as the claim was directed against that court, it was transferred to the Kardzhali Regional Court. On 17 May 2011 that court dismissed the claim, holding that courts could not incur liability under section 49 of the 1950 Act in relation to decisions taken by the judges serving on them. 35 .     The second applicant appealed, but on 31 October 2011 the Plovdiv Court of Appeal upheld the lower court’s judgment on the same basis. 36 .     The second applicant then appealed on points of law. Finding that the appeal raised an important novel issue, the Supreme Court of Cassation admitted it for examination, and on 14 June 2013 upheld the Plovdiv Court of Appeal’s judgment. It held that whenever the State’s liability could not be engaged under the State and Municipalities Liability for Damage Act 1988 (see paragraphs 57 and 58 below), it could in principle be engaged under section 49 of the 1950 Act. It went on to say that liability for damages in relation to the freezing of assets ordered by a court at the behest of a State authority lay with that authority, in line with the general rule in civil proceedings that liability for damages in such situations lay on the party at whose instance an asset freeze had been ordered (see реш. № 110 от 14.06.2013 г. по гр. д. № 93/2012 г., ВКС, IV г. о.). 2.     First claim against the prosecutor’s office 37 .     In line with the reasoning of the Supreme Court of Cassation, on 5   September 2013 the second applicant brought a claim for damages under section 49 of the 1950 Act (see paragraphs 59 and 60 below) against the prosecutor’s office. She said that she had suffered non-pecuniary damage to the tune of BGN 50,000, but that for the time being she sought only BGN   2,000, plus interest running from 28 November 2008. 38 .     On 6 January 2014 the Haskovo District Court allowed the claim. It held that the second applicant had suffered non-pecuniary damage as a result of the freezing of her assets. The prosecutor’s request to that effect had been wrongful and had directly caused that damage. Under section   45(2) of the 1950 Act (see paragraph 60 below), the fault of the prosecutor who had sought the restriction had to be presumed. In any event, the prosecutor should have checked the ownership of the assets before seeking to block them. In view of the duration of the restriction and the medical conditions of the second applicant’s son, the appropriate award was BGN 5,000. Since she was seeking less than that, her claim was to be allowed in full. The court went on to say that although the second applicant had not presented evidence about the actual extent of her distress and the actual shortage of money needed for the medical treatment of her son, it could be presumed that the freezing of her assets for a significant period had caused her psychological distress (see реш. № 15 от 06.01.2014 г. по гр.   д.   №   2505/2013 г., РС-Хасково). 39 .     The prosecutor’s office appealed, and on 29 May 2014 the Haskovo Regional Court upheld the lower court’s judgment, agreeing with its reasoning (see реш. № 257 от 29.05.2014 г. по гр. д. № 260/2014 г., ОС ‑ Хасково). That judgment itself was not amenable to appeal. 40 .     On 17 June 2014 the second applicant obtained a writ of execution and presented it to the prosecutor’s office for payment. On 16 December 2014 the prosecutor’s office paid her the full sum she had been awarded: BGN 2,000 in damages, BGN 1,299 in interest and BGN 280 in costs. 3.     Second claim against the prosecutor’s office 41 .     On 10 February 2015 the second applicant brought a second claim under section 49 of the 1950 Act against the prosecutor’s office. She again put her non-pecuniary damage at BGN 50,000, but said that for the time being she sought only BGN 5,000. 42 .     On 9 June 2015 the Haskovo District Court dismissed the claim. It began by saying that the claim was in principle well-founded, and that, for the same reasons as those in the earlier case against the prosecutor’s office, it considered that the non-pecuniary damage suffered by the second applicant could be made good by BGN 5,000. This meant that, if the BGN   2,000 awarded in the previous proceedings were to be deducted, she was entitled to BGN 3,000. The claim was, however, time-barred. The court analysed in detail the applicable statutory provisions and case-law, and held that the applicable five-year limitation period had started to run when the Haskovo Regional Court had decided to issue the freezing order – 28   November 2008 – and had thus expired on 28 November 2013. The bringing of a partial claim had not stopped the running of the time-limit with respect to the remainder. But even if the period during which the earlier claim for damages against the prosecutor’s office had been pending was to be disregarded, the limitation period had expired on 22 August 2014, whereas the second claim had been brought on 10 February 2015 (see реш.   № 332 от 09.06.2015 г. по гр. д. № 319/2015 г., РС-Хасково). 43 .     The second applicant did not appeal against that judgment, and it became final on 1 July 2015. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Relevant provisions of the Criminal Code 1.     Assets shielded from confiscation or the enforcement of a fine 44 .     Article 45 § 2 of the Criminal Code provides that the funds needed by a convicted person and his or her family for living expenses for one year are shielded from confiscation. The former Supreme Court has held that this prohibition exists not only for the benefit of the convicted person but also for that of members of his or her family (see реш. № 109 от 28.12.1987 г. по н. д. № 103/1987 г., ВС, ОСНК). 45 .     Article 47 § 3 of the same Code provides that assets shielded from confiscation cannot be used to satisfy a criminal fine either. 46 .     No such provisions exist with respect to the freezing of assets with a view to their confiscation or use to satisfy a fine. Various courts with final jurisdiction in such cases, including the Plovdiv Court of Appeal, have held that the exemptions in those two provisions are irrelevant in asset-freezing proceedings under Article 72 of the Code of Criminal Procedure (see paragraph 48 below, and опр. № 12 от 12.01.2015 г. по в.   ч.   н.   д.   №   1146/2014 г., САС; опр. № 453 от 21.07.2016 г. по в.   ч.   н.   д.   №   387/2016 г., ПАС; and опр. № 123 от 08.08.2018 г. по в.   н.   ч.   д. №   350/2018 г., АСпНС). 2.     Forfeiture of proceeds of crime 47 .     Article 53 § 2 (b) of the Criminal Code provides that on conviction, regardless of the main penalty, the proceeds of the offence are liable to forfeiture, unless subject to restitution. B.     Freezing of assets with a view to securing the satisfaction of a criminal fine or a confiscation or forfeiture order 1.     Competence to make a freezing order and prerequisites for doing so 48 .     Under Article 72 § 1 of the 2005 Code of Criminal Procedure, the prosecuting authorities may ask the competent first-instance court to take measures to ensure that a fine, confiscation or forfeiture which may be ordered in criminal proceedings can be satisfied. If the criminal proceedings have reached the trial stage, competence to take such measures rests with the trial court (Article 72 § 2). 49 .     In May 2012 the President of the Supreme Court of Cassation proposed that the plenary of that court’s criminal chambers give an interpretative decision on the application of Article 72. He indicated divergences in the lower courts’ case-law on several points. In particular, they had resolved differently the questions (a) whether the mere bringing of charges could justify a freezing order under that provision or whether those charges had to be based on a reasonable suspicion, and (b) whether the value of the blocked assets had to be proportionate to the possible confiscation or fine. 50 .     In its interpretative decision, given in October 2012, the plenary of the Supreme Court of Cassation’s criminal chambers held, inter alia , that (a) when dealing with requests by the prosecuting authorities to freeze assets under Article 72, the courts must check, on the basis of all the available evidence, whether there was a reasonable suspicion that the accused had committed the alleged offence – a decision to bring charges not being sufficient in that respect – with a view to preventing unjustified interferences with the property rights of the people concerned, in breach of Article 1 of Protocol No. 1; (b) only assets belonging to someone charged with an offence punishable with confiscation or a fine could be frozen under that provision, the only exception being assets subject to forfeiture regardless of their owner; (c) the courts must examine whether the value of the assets sought to be frozen matched the extent of the potential confiscation, fine or forfeiture; and (d) the decisions of the first-instance courts in such cases were amenable to appeal to a higher court in the manner provided for in the Code of Civil Procedure (see тълк. реш. № 2 от 11.10.2012 г. по тълк. д. № 1/2012 г., ВКС, ОСНК). 2.     Maximum duration of a freezing order 51 .     The Sofia Court of Appeal has held that assets blocked under Article   72 of the 2005 Code must normally remain frozen until the conclusion of the criminal proceedings, and that the only situation in which the freezing order can be lifted earlier is if the time-limit under Article   234 §   8 of the Code expires (see опр. № 170 от 10.08.2012 г. по в.   ч.   н.   д. №   797/2012 г., САС). 52 .     Article 234 § 8, which applies solely to the investigation stage, provides that all coercive measures with respect to the accused – which includes the freezing of assets under Article 72 – must be rescinded by the prosecuting authorities if a certain period of time has elapsed since the accused was charged. Originally, the time-limit was two years in cases of offences punishable with more than five years’ imprisonment and one year in all other cases. In August 2013 those periods were shortened to one and a half years and eight months respectively. The Sofia Court of Appeal has, however, held that if the assets were frozen after the charges were brought, the time-limit runs from that later date (see опр. № 403 от 29.12.2014 г. по в. ч. н. д. № 1180/2014 г., САС). 53 .     Article 234 § 9 of the Code provides that if the prosecuting authorities omit to lift the restriction after the expiry of the time-limit of their own motion, the accused may directly ask the first-instance court to do so (see опр. № 83 от 15.03.2017 г. по в. ч. н. д. № 256/2017 г., САС). The court decides on the papers and its decision is not amenable to appeal (Article 234 § 10). 54 .     By contrast, there is no statutory cap on the duration of asset freezing during the ensuing judicial phase of the proceedings (see опр.   №   453 от 21.07.2016 г. по в. ч. н. д. № 387/2016 г., ПАС). However, Article 309 § 5 of the Code provides that if the trial court finds the accused not guilty, it must consider whether to maintain the freezing order. 3.     Procedure 55 .     For the applicable procedure, Article 72 of the 2005 Code of Criminal Procedure refers to the Code of Civil Procedure. Article 395 § 1 of the 2007 Code of Civil Procedure provides that the proceedings start without notice being served on the defendant, and Article 395 § 2 provides that the court decides the matter on the papers. If the court issues a freezing order, the defendant is notified and can appeal against it within seven days of the notification (Article 396 § 1). The appeal has no suspensive effect (Article 396 § 3). 56 .     Under Article 402 §§ 1 and 2 of the 2007 Code, a freezing order can be lifted at the request of an interested party. This is to be allowed if the court finds that the need for it no longer exists. The request is examined on the papers (Article 402 § 2), and the first-instance court’s decision is amenable to appeal. Any appeal is normally also examined on the papers, but the court may, if necessary, hold an oral hearing (Article 278 § 1). C.     Claims for damages against the authorities in relation to measures taken in criminal proceedings 1.     Under the State and Municipalities Liability for Damage Act 1988 57 .     Section 2(1) of the State and Municipalities Liability for Damage Act 1988, as originally enacted and subsequently amended, provides for no-fault liability on the part of the investigating and prosecuting authorities and the courts in several situations arising in relation to criminal proceedings, none of which has to do with the freezing of assets (for details, see Tsonev v. Bulgaria (dec.), no. 9662/13, §§ 29-37, 30 May 2017). 58 .     The Bulgarian courts have consistently held that no-fault liability on the part of the investigating and prosecuting authorities and the courts in relation to decisions or measures taken in connection with criminal proceedings may only be engaged with respect to the situations exhaustively listed in section 2(1) of the Act (see, among other authorities, тълк.   реш.   №   3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ВКС, ОСГК; реш. № 579 от 10.12.2010 г. по гр. д. № 377/2009 г., ВКС, IV г. о.; реш.   № 97 от 03.05.2012 г. по гр. д. № 80/2011 г., ВКС, IV г. о.; реш.   №   157 от 08.07.2013 г. по гр. д. № 1268/2012 г., ВКС, III г. о.; опр.   № 474 от 28.03.2014 г. по гр. д. № 7338/2013 г., ВКС, III г. о.; опр.   № 30 от 12.01.2015 г. по ч. гр. д. № 7269/2014 г., ВКС, IV г. о.; опр. № 264 от 27.12.2016 г. по ч. гр. д. №   5293/2016 г., ВКС, II г. о.; and опр. № 359 от 10.10.2017 г. по ч. гр. д. № 3020/2017 г., ВКС, III г. о.). 2.     Under the Obligations and Contracts Act 1950 59 .     At the same time, the Bulgarian courts have held that in cases not covered by section 2(1) of the 1988 Act, a claim could be brought under section 49 of the Obligations and Contracts Act 1950, which lays down the general rule of the law of tort that a person who has entrusted another with a job is liable for the damage caused by that other person in the course of or in connection with the job (see, apart from the Supreme Court of Cassation’s judgment in the second applicant’s case cited in paragraph 36 above, реш.   № 579 от 10.12.2010 г. по гр. д. № 377/2009 г., ВКС, IV г. о.; реш.   № 362 от 21.11.2013 г. по гр. д. № 92/2013 г., ВКС, IV г. о.; опр.   №   414 от 04.06.2014 г. по ч. гр. д. № 1827/2014 г., ВКС, IV г. о.; and опр. № 359 от 10.10.2017 г., по ч. гр. д. № 3020/2017 г., ВКС, III   г.   о.). 60 .     Liability under section 49 of the 1950 Act is premised on the wrongfulness of the impugned conduct (see, among other authorities, реш.   № 567 от 24.11.1997 г. по гр. д. № 775/1996 г., ВС, петчл. с-в; реш.   № 222 от 05.06.2012 г. по гр. д. № 967/2011 г., ВКС, IV г. о.; реш.   № 104 от 15.05.2014 г. по гр. д. № 5422/2013 г., ВКС, III г. о.; and реш. № 43 от 4.09.2017 г. по гр. д. № 3143/2016 г., ВКС, III г. о.). It does not presuppose fault on the part of the person entrusting the job, but does presuppose fault – which by virtue of section 45(2) is presumed – on the part of the person carrying out the job (see пост. № 7 от 29.12.1958 г. по   гр. д. № 7/1958 г., ВС, Пл.; пост. № 7 от 30.12.1959 г. по гр. д. №   7/1959 г., ВС, Пл.; пост. № 9 от 28.12.1966 г. по гр. д. № 8/1966 г., ВС, Пл.; реш. № 70 от 16.07.2009 г. по гр. д. № 5691/2007 г., ВКС, I   г.   о.; реш. № 100 от 16.02.2010 г. по гр. д. № 696/2009 г., ВКС, III г. о.; реш. № 48 от 08.02.2011 г. по гр. д. № 545/2010 г., ВКС, IV г. о.; and реш. № 268 от 24.02.2016 г. по гр. д. № 2525/2015 г., ВКС, III г. о.). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 61.     The applicants complained under Article 1 of Protocol No. 1 that the freezing of their assets had been unlawful and unjustified, both when initially done and when kept in place. Relying on Article 8 of the Convention, they further submitted that the resulting unavailability of the funds in their bank accounts had made it very hard for them to care for their disabled son. 62.     Since the alleged inability of the applicants to meet the medical expenses of their disabled son was an indirect consequence of the freezing of their assets, in the Court’s view the complaint falls to be examined solely under Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A.     Admissibility 1.     The second applicant’s victim status (a)     The parties’ submissions 63.     The Government submitted that, having obtained compensation for the freezing of her assets, the second applicant could no longer claim to be a victim of a breach of her rights under Article 1 of Protocol No. 1. The amount of that compensation had resulted from her litigation strategy: first to bring a partial claim, which had been allowed in full, and then to seek higher damages in a follow-up action, which moreover had been brought after the expiry of the relevant limitation period. To the extent that the second applicant disagreed with the first-instance court’s ruling on the limitation point, she could have appealed, but had not done so. In the Government’s view, this could alternatively be seen as a failure to exhaust domestic remedies. 64.     The applicants submitted that the sum paid to the second applicant following her successful first claim against the prosecutor’s office did not amount to sufficient redress. The proceedings leading to that award had lasted quite a long time, and the sum had been too low and paid with more than six months’ delay. BGN 2,000 or even BGN 5,000 – which would have been the total award if the first-instance court in the follow-up action had not incorrectly ruled that the limitation period had expired – could not make up for the second applicant’s distress caused by her inability properly to take care of her disabled son as a result of the freezing of her assets. (b)     The Court’s assessment 65 .     The principles governing the assessment of whether an applicant can continue to claim to be a victim of a breach of the Convention or its Protocols following favourable measures at domestic level are settled. They have been set out, for example, in Zaharieva v. Bulgaria ((dec.), no.   6194/06, § 63, 20 November 2012), and, more recently, in Vanchev v.   Bulgaria (no. 60873/09, §§ 28-29, 31 and 36, 19 October 2017). 66 .     In view of the Bulgarian courts’ findings that the freezing of the second applicant’s assets had been unlawful and “wrongful”, and that it had unduly prevented her from properly taking care of her disabled son (see paragraphs 26, 38 and 39 above), it can be accepted that the national authorities acknowledged in substance the alleged breach of Article 1 of Protocol No. 1 with respect to her. 67 .     The salient question is whether the amount of compensation obtained by the second applicant on the back of that recognition was sufficient. 68 .     The second applicant was paid BGN 2,000 in respect of non ‑ pecuniary damage, plus BGN 1,299 in interest, in relation to the blocking of her assets for about eight months (see paragraph 40 above). This equals EUR 1,687. [1] 69 .     It is this final net sum which the Court will take into account when assessing whether the redress was sufficient (see Vanchev , cited above, §   32). It is not manifestly unreasonable in comparison to recent awards made by the Court in similar cases, due account being taken of the fact that those cases were against different respondent States (see Džinić v. Croatia , no. 38359/13, § 87, 17 May 2016, where EUR 2,000 was awarded to one applicant, in respect of the attachment of ten plots of land, two houses and a commercial building for more than three and a half years, and Eilders and   Others v. Russia [Committee], no. 475/08, § 29, 3 October 2017, where EUR 6,000 was awarded jointly to two applicants, in respect of the attachment of four flats and a car for more than ten years). In the absence of specific evidence and information on the point by the applicants, the fact that the non-pecuniary damage suffered by the second applicant in the present case flowed chiefly from the effect of the blocking of her assets on her ability to care for her disabled son does not alter that conclusion. 70 .     The sum awarded to the second applicant was paid in full about six and a half months after the end of the proceedings for damages (see paragraphs 39 and 40 above). This cannot be seen as an unreasonable delay (contrast Delle Cave and Corrado v. Italy , no. 14626/03, § 30, 5 June 2007; Simaldone v. Italy , no. 22644/03, § 31, 31 March 2009; and Uguccioni v.   Italy [Committee], no. 62984/00, § 53, 18 December 2012). 71 .     In this case, however, the analysis cannot stop here. In assessing the sufficiency of the redress obtained by the second applicant, account must be taken not only of the actual compensation she obtained but also of the compensation that she could have obtained had she proceeded in a different manner. According to the Court’s case-law, this second element may also be taken into account when analysing the point (see, among other authorities, Kurić and Others v. Slovenia [GC], no. 26828/06, § 262, ECHR 2012 (extracts); Sarishvili-Bolkvadze v. Georgia , no. 58240/08, § 60, 19 July 2018; and J.B. and Others v. Hungary (dec.), nos. 45434/12 and 2 others, §   59, 27 November 2018). 72 .     The second applicant chose to limit her initial claim for damages against the prosecutor’s office to BGN 2,000 (see paragraph 37 above). Since at the time this was somewhat uncharted territory in Bulgarian law (see paragraph 59 above), and since the second applicant had already pursued one set of proceedings (see paragraphs 33-36 above), she cannot be blamed for treading with caution, especially bearing in mind that to proceed with a claim for damages under section 49 of the 1950 Act, a claimant had to pay up-front a court fee of 4% of the amount sought (see Zaharieva , cited above, § 43). At the same time, nothing suggests that the second applicant would have faced substantial difficulties in affording the court fee for a claim equal to the sum which, according to the Bulgarian courts, would have fully recompensed the non-pecuniary damage suffered by her (BGN   5,000) – that fee would have come to BGN 200, or the equivalent of EUR 102. 73 .     The second applicant thus forwent a reasonable opportunity to obtain up to BGN 5,000 (EUR 2,556) in damages, which in turn would have produced at least BGN 3,248.94 (EUR 1,661) in interest (see paragraph 42 above, and, for the manner in which such interest is calculated in Bulgarian law, see Zaharieva , cited above, § 42). 74 .     In these circumstances, the second applicant cannot be seen as still being a victim of a breach of Article 1 of Protocol No. 1. Her complaint in this regard is hence incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4 of the Convention. 2.     Exhaustion of domestic remedies by the first applicant (a)     The parties’ submissions (i)     The Government 75.     The Government submitted that the first applicant had failed to appeal in time against the freezing order, and that it could not be assumed that such an appeal would have been bound to fail. 76.     The first applicant’s parallel request for the lifting of the order had not been an equally effective remedy, since in such proceedings the courts could only check whether the need for the measure persisted in the light of fresh developments. In any event, in his appeal against the first-instance court’s decision to reject that request, he had failed to include arguments relating to the measure’s proportionality. 77.     The first applicant had then waited until about mid-2013 before renewing his request for the freezing order to be lifted, whereas it had been open to him to do so earlier. Following the Supreme Court of Cassation’s interpretative decision of October 2012, the courts had been clearly required to review the proportionality of the restriction. Indeed, this was evident from the reasons on the basis of which the Haskovo Regional Court had in large part allowed his renewed request. (ii)     The applicants 78.     The applicants argued that the courts’ finding that the first applicant’s appeal against the freezing order had been out of time was not borne out by the facts. In any event, even a timely appeal would not have stood a chance of succeeding, as shortly after that, in the proceedings for the lifting of the order, the Plovdiv Court of Appeal had found that the first applicant’s assets had to remain frozen regardless of his personal circumstances. 79.     For its part, the parallel request to have the order lifted, which the first applicant had pursued properly but without success, was an equally effective remedy, entailing a review of the same factors as an appeal against the order. His omission to plead specifically a lack of proportionality in his appeal against the first-instance court’s decision to reject that request could not be held against him, as the courts had been required to delve into that issue of their own motion. 80.     The first applicant could not have successfully renewed his request for the order to be lifted before mid-2013. Any such request during the original trial against him, and even after the judgment of the Haskovo Regional Court of November 2012, would have been turned down. (b)     The Court’s assessment 81 .     In the specific circumstances of this case, in which the first applicant complained of both the initial freezing of his assets and of the continuation of the measure for a number of years, it is appropriate to consider the exhaustion issue separately for the two matters (see, for a similar approach, BENet Praha, spol. s r.o. v. the Czech Republic , no. 33908/04 and 4 others, § 81, 24 February 2011). 82 .     As regards the initial freezing of the assets, it is true that the first applicant did not appeal against the freezing order in due time. He did, however, concomitantly seek to have it lifted (see paragraphs 18-20 above). Contrary to what the Government suggested, without however citing any domestic case-law in support of their assertion, it does not appear that there was at that point a material difference between those two procedures, as they were applied in practice by the national courts. So far as relevant for the complaint at hand, the request to have the order lifted could, just like the appeal against it, be made immediately. Moreover, the reasons for which the Haskovo Regional Court and the Plovdiv Court of Appeal rejected the request show that, rather than citing