CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 7 janvier 2010

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt }   6 07.01.2010     Press release issued by the Registrar   Chamber judgment [1]   Penev v. Bulgaria (application no. 20494/04)     ACCUSED DENIED THE OPPORTUNITY TO DEFEND HIMSELF AGAINST MODIFIED CHARGES   Violation of Article 6 § 3 (a) and (b) , taken together with Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights       Principal facts   The applicant, Mr Nikolay Anatoliev Penev, is a Bulgarian national, who was born in 1946 and lives in Sofia.   In 1999, Mr Penev was appointed insolvency trustee of a joint stock company (“Plama”). Later in the same year, an investigation was opened into certain actions he had carried out as trustee,, notably the hiring of a lawyer to represent Plama in proceedings that were terminated soon after the appointment of the representative in question.   In December 2001, the Pleven District Court sentenced the applicant to four years’ imprisonment for having exceeded his powers, under Article 282 § 2 of the Criminal Code, as he had retained a lawyer before obtaining the insolvency court’s authorisation to pay the fee agreed upon, and had ordered the payment of that fee even though he had by then ceased to act as insolvency trustee of Plama.   This verdict was upheld on appeal. However, the Supreme Court of Cassation acquitted Mr   Penev in 2003, considering that retaining a lawyer had been within his powers and that Article 282 of the Criminal Code was not applicable to offences against the interests of a private company, but only to offences against the proper exercise of State power.   Nevertheless, the Supreme Court of Cassation sentenced Mr Penev to a suspended term of one year’s imprisonment, as it found he was guilty of an offence under Article   220 § 1 of the Criminal Code, having deliberately entered into a contract which was disadvantageous to the company. That judgment was final.   Complaints, procedure and composition of the Court   Relying on Article 6 §§ 1 and 3 (a) and (b) Mr Penev complained that he had not been given the opportunity to defend himself against the charge under Article 220 of the Criminal Code, after the Supreme Court of Cassation adopted a new legal characterisation of the facts of the case.   The application was lodged with the European Court of Human Rights on 8 June 2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Renate Jaeger (Germany), Karel Jungwiert (the Czech Republic), Rait Maruste (Estonia), Mark Villiger (Liechtenstein), Isabelle Berro-Lefèvre (Monaco), judges , Pavlina Panova (Bulgaria) , ad hoc judge , and also Claudia Westerdiek , Section Registrar .     Decision of the Court   Article 6 §§ 1 and 3 (a) and (b)   In criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation by the domestic courts in the matter, was an essential prerequisite for ensuring that the proceedings were fair.   Mr Penev was indicted under Article 282   §   2 of the Criminal Code of having exceeded his powers and there had been no indication that the domestic courts had in the initial stages of the proceedings considered a charge under Article 220 § 1 of the Criminal Code (charge of deliberately entering into a disadvantageous contract for the company).   Under Bulgarian law, offences of acting in excess of power and of deliberately entering into a disadvantageous contract were different. Therefore the charges under Article 282   §   2 and Article   220 § 1 required the preparation of distinct defences.   The Court did not accept the Government’s contention that the legal characterisation of the offence had been of little importance as long as the alternative conviction had been based on the same facts. The Supreme Court of Cassation should have given the applicant an opportunity to defend himself against the new charge.   Considering that Mr Penev had not been informed in detail of the nature and the cause of the accusation against him, that he had not been afforded adequate time and facilities for the preparation of his defence, and had not received a fair trial, the Court concluded, unanimously, that there had been a violation of Article 6 § 3 (a) and (b), taken together with Article 6 § 1.   Article 41   Under Article 41 (just satisfaction), the Court awarded the applicant EUR 2,000 in respect of pecuniary and non-pecuniary damage, and EUR 2,000 in respect of costs and expenses.   ***   (The judgment is available only in English). This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).   Press contacts Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) or Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.