CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 5 septembre 2023

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BULGARIA (Application no. 21039/13)         JUDGMENT   STRASBOURG 5 September 2023   This judgment is final but it may be subject to editorial revision. In the case of Tonovi v. Bulgaria, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Ioannis Ktistakis , President ,   Yonko Grozev,   Andreas Zünd , judges , and Olga Chernishova, Deputy Section Registrar, Having regard to: the application (no.   21039/13) 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”) on 11 March 2013 by four Bulgarian nationals, whose relevant details are listed in the appended table (“the applicants”), and who were represented by Ms   S.   Karakusheva and Mr M. Menkov, lawyers practising in Sofia; the decision to give notice to the Bulgarian Government (“the Government”), represented by their Agent, Ms I. Stancheva-Chinova from the Ministry of Justice, of the complaints raised by the four applicants concerning access to a court and the forfeiture of their assets as proceeds of crime, and to declare the complaints of a fifth applicant inadmissible; the parties’ observations; the decision to reject the Government’s objection to examination of the application by a Committee; Having deliberated in private on 4 July 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case is of the type examined in Todorov and Others v. Bulgaria (nos. 50705/11 and 6 others, 13 July 2021) and concerns the forfeiture of assets of the applicants as proceeds of crime. Forfeiture proceedings were opened following a conviction of Mr   Yordan Tonov for coercion committed in 1993, and were directed against him and members of his family – the remaining applicants. In judgments of 19 February 2010 and 14 March 2011 the Vratsa Regional Court and the Sofia Court of Appeal allowed the State’s forfeiture application. They ordered the forfeiture of assets worth 215,000 Bulgarian levs (BGN), the equivalent of about 110,300 euros (EUR). 2 .     In a decision of 24 February 2012, given under case no. 991/2011, the Supreme Court accepted for examination the applicants’ appeal on points of law, and instructed them to pay in a court fee of BGN   4,312 (EUR 2,205). 3.     The applicants applied for an exemption, claiming that they did not have sufficient financial means to pay the fee. However, in a new decision dated 6 April 2012, once again given under case no. 991/2011, the Supreme Court rejected their application. 4.     The applicants appealed against that latter decision. On 14 June 2012 a different panel of the Supreme Court, examining the matter under case no.   355/2012, dismissed their appeal at a closed hearing. 5 .     Since the decision of 14 June 2012 was final as concerns the exemption request, and domestic law does not require the service of final decisions and judgments, the decision was not served on the applicants’ legal representatives. The representatives claimed that they had checked the Supreme Court’s website where decisions are published, but under case no.   911/2011, since they were not aware of the new number. They did not thus find out about the decision of 14 June 2012, and the applicants did not pay the court fee within the statutory seven-day time-limit, starting running as from the date of the decision. Accordingly, the Supreme Court, noting that the applicants had not paid the fee, discontinued the examination of their appeal on points of law. 6.     The applicants complained under Article 1 of Protocol No. 1, relying also on Article 13 of the Convention, considering the forfeiture of their assets unjustified. They also complained under Article 6 § 1 of the Convention that they had been denied access to a court, seeing that the Supreme Court had not examined on the merits their appeal on points of law. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 7 .     The Government argued that the court fee exacted from the applicants for the examination of their appeal on points of law had not been excessively high, and that, seeing their financial situation, the applicants should have been able to pay it. In addition, their legal representatives, who had had experience in proceedings before the Supreme Court, should have been aware that the appeal against the decision of 6 April 2012 would be examined under a different number, and should have inquired as to that number. Therefore, it had been the representatives’ negligence that had led to the applicants’ failure to pay the fee within the relevant time-limit. 8 .     The applicants, for their part, argued that the decision of 14 June 2012 should have been served on them, seeing that it had been the starting point of the seven-day time-limit. 9.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 10 .     The general principles concerning admissibility criteria applicable to appeals before higher courts have been summarised in Miragall Escolano and Others v. Spain (nos. 38366/97 and 9 others, § 37, ECHR 2000 ‑ I) and Ivanova and Ivashova v. Russia (nos. 797/14 and 67755/14, §§   41-46, 26 January 2017). In particular, while rules governing time-limits for appeals are in principle intended to ensure the proper administration of justice, such rules, or their application, should not prevent litigants from using an available remedy. In Miragall Escolano and Others (cited above, § 37), the Court has criticised the “unreasonable construction of a procedural requirement which prevented a claim [from] being examined on the merits”, and has held that “parties must be able to avail themselves of the right to bring an action or to lodge an appeal from the moment they can effectively apprise themselves of court decisions imposing a burden on them or which may infringe their legitimate rights or interests”. 11.     Turning to the circumstances of the present case, it is not necessary to examine whether the amount of court fees the applicants were required to pay was excessive, or whether the domestic courts reached correct conclusions when refusing to order exemption. It suffices to note that, once their exemption request was dismissed, the applicants were not able to avail themselves of an opportunity to comply with that requirement. 12.     The impossibility for the applicants to pay the court fees due was the result of several factors. The Supreme Court’s decision of 14 June 2012 was not served on them, as it was final on the particular matter it addressed. The decision was given without the applicants’ participation, and under a different case number, which prevented the applicants’ representatives from finding out about it when checking on the Internet. The time-limit for the applicants to pay the fees was short, namely seven days after the decision of 14 June 2012 (see paragraphs 2-5 above). 13.     The situation thus described cannot be seen as corresponding to the requirements set in the Court’s case law, namely that the rules governing time-limits should not prevent litigants from using an available remedy, and that parties should be able to apprise themselves of decisions imposing a burden on them (see paragraph 10 above). The conduct of the applicants’ representatives was not unreasonable and their efforts to follow the procedure before the Supreme Court seem to have been adequate (see paragraph 5 above). The Government have presented no justification for the failure to serve on the applicants the decision of 14 June 2012 which, while considered final, triggered the running of a short time-limit. 14.     The applicants were thus denied access to a higher court which, in light of the considerations above, is unjustified. 15.     There has accordingly been a violation of Article   6 § 1 of the Convention. alleged violation of article 1 of protocol n o . 1 16.     The applicants complained furthermore that the forfeiture of their assets had been unfair. The complaint falls to be examined under Article 1 of Protocol No. 1. 17.     The Government argued that the applicants had failed to exhaust the available domestic remedies, seeing that they had not paid the necessary court fee and had thus brought about the Supreme Court’s failure to examine their appeal on points of law. 18.     However, the Court found above that the applicants had unduly been denied access to a court. It thus dismisses the Government’s objection. It notes furthermore that the complaint under examination is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other grounds. It must therefore be declared admissible. 19.     The leading judgment of Todorov and Others (cited above) concerned the forfeiture of alleged proceeds of crime under the same legislation as applied in the case at hand, namely the Forfeiture of Proceeds of Crime Act 2005 (hereinafter “the 2005 Act”). The Court identified some potential flaws in the 2005 Act and in the manner in which it had been applied. It highlighted in this respect the combined effect of the wide scope of its application – as to predicate crimes and as to the periods for which the defendants’ revenues and expenses were being checked, the difficulties for defendants to prove what the courts considered “lawful” income during such a period, marked, moreover, by inflation and economic changes, and the presumption that any asset not shown to have had a “lawful” provenance was the proceed of crime (see Todorov and Others , cited above, §§ 200-209). 20 .     The Court’s position was that, while these flaws were not sufficient to render any forfeiture under the 2005 Act contrary to Article 1 of Protocol No.   1, they certainly placed a considerable burden on defendants in forfeiture proceedings. Thus, as a counterbalance, it was crucial that the national courts provided some particulars as to the criminal conduct in which the assets for which forfeiture was being sought had originated, and established a causal link between these assets and any such conduct (ibid., §§ 210-15). 21.     Applying these requirements to the specific cases examined in the leading judgment, the Court found a violation of Article 1 of Protocol No.   1 in those of them where the national courts had failed to justify the existence of the causal link defined above, and had ordered forfeiture relying merely on the presumption contained in the 2005 Act that any asset not shown to have had a “lawful” origin was the proceed of crime (ibid., §§ 217-50). 22.     The present case is similar. The domestic courts found that the first applicant had not established the lawful provenance of the assets acquired by himself and his family; in particular, his claims to have received loans, dividends and gambling winnings had remained unproven. This meant, according to the courts, that the applicant had not rebutted the presumption under the 2005 Act about the criminal provenance of his assets and the ones transferred to his family. 23.     The national courts did not thus undertake the necessary analysis, as outlined in paragraph 20 above, and took the same approach as criticised in Todorov and Others (cited above). 24 .     The Government submitted information on further criminal proceedings against the first applicant; in particular, in 2015 he had been convicted for having formed and led a criminal group for the commission of drug trafficking, pimping and other offences. However, these circumstances were never discussed by the domestic courts in the forfeiture proceedings, and did not serve to justify the forfeiture of the applicants’ assets as proceeds of crime; accordingly, the Court will not take them into account as well (see Todorov and Others , cited above, § 228). The issues raised in the case are of a procedural character, seeing that the national courts did not undertake the analysis required under Article 1 of Protocol No. 1, and it is not the Court’s task to carry out such an analysis itself and determine, on the basis of the additional circumstances referred to by the Government, whether the applicants’ assets were indeed, or not, the proceeds of crime. 25.     There has accordingly been a violation of Article 1 of Protocol No. 1. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26.     In respect of pecuniary damage, the applicants claimed BGN   1,509,280 (EUR 772,010), plus interest, without specifying what this sum covered. In respect of non-pecuniary damage, each of the applicants claimed EUR 100,000. The applicants claimed also BGN 16,000 (EUR   8,200) for the cost of their legal representation before the Court. 27.     The Government contested the claims. 28.     As noted (see paragraph 24 above), the Court cannot speculate on whether the applicants’ forfeited assets were or were not the proceeds of crime, and cannot thus determine any pecuniary damage which the applicants might have suffered as a result of unjustified forfeiture. Accordingly, it dismisses the claim related to pecuniary damage, and reiterates, as in Todorov and Others (cited above, §§ 320-322), that the most appropriate means to remedy the violation is the reopening of the domestic proceedings and the re-examination of the matter by the domestic courts, in compliance with the requirements of Article 1 of Protocol No. 1. 29.     On the other hand, the Court awards each of the applicants EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants. 30.     An applicant is entitled to the reimbursement of costs and expenses only if they were actually incurred. A representative’s fees are actually incurred if the applicant has paid them or is liable to pay them (see Merabishvili v. Georgia [GC], no. 72508/13, § 371, 28   November 2017). The applicants did not submit any documents showing that this was their case; accordingly, the Court dismisses this part of their claim. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds that there has been a violation of Article 1 of Protocol No. 1; Holds (a)   that the respondent State is to pay each of the applicants, within three months, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (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; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 5 September 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Olga Chernishova   Ioannis Ktistakis   Deputy Registrar   President     APPENDIX List of applicants: No. Applicant’s Name Year of birth Nationality Place of residence 1. Yordan Tonov TONOV 1967 Bulgarian Kurnovo 2. Polina Simeonova TONOVA 1967 Bulgarian Vratsa 3. Tsenka Ivanova TONOVA 1939 Bulgarian Kurnovo 4. Vesa Tonova TONOVA 1970 Bulgarian Sofia