CASE OF BOYAN GOSPODINOV v. BULGARIA
(Application no. 28417/07)
5 April 2018
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of BoyanGospodinov v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 6 March 2018,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 28417/07) 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 a Bulgarian national, Mr BoyanDobrinovGospodinov (“the applicant”), on 3 May 2007.
2. The applicant was represented by Ms E. Syarova, a lawyer practising in Stara Zagora. The Bulgarian Government (“the Government”) were represented by their Agent, Ms V. Hristova of the Ministry of Justice.
3. The applicant alleged, in particular, that his criminal case had not been assessed by an impartial tribunal in pursuance of Article 6 § 1 of the Convention.
4. On 9 January 2017 notice of that complaintwas given to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1983 and lives in Stara Zagora.
A. The first criminal proceedings against the applicant
6. On 18 August 2002 the police conducted a search of the applicant’s home in Stara Zagora anddiscovereda certain quantity of cannabis. The applicant wasarrested andplaced in pre-trial detention on 30 August 2002. Criminal proceedings were brought against him.
7. Byjudgmentof 22 May 2003 the Stara Zagora Regional Court found the applicant guilty of the unlawful possession of 14.44 grams of cannabis and sentenced him to three-and-a-half years’ imprisonment. The court decided todeduct the time spent in pre-trial detention from the sentence.
8. The applicant appealed.
9. By judgmentof 13 October 2003 the Plovdiv Court of Appeal set aside the aforementionedjudgment and reduced the sentence to one year’s imprisonment.
10. The applicant appealed on points of law.
11. By decision of 6 April 2004, at the request of counsel for the applicant, the SupremeCourt of Cassation replaced the pre-trial detention with a straightforward judicial supervision measure (подписка) andordered the applicant’s release.
12. The applicant was released on 7 April 2004, having spent one year, seven months and eight days in pre-trialdetention.
13. By judgmentof 25 May 2004 the SupremeCourt of Cassation upheld the judgmentof the Courtof Appeal.
B. Action fordamagesagainst the State
14. On 23 September 2004theapplicant filed with the Sofia City Court an action fordamagesbased on section 2(6) of the Law on StateResponsibility for Damages against the Stara Zagora Regional Court, the PlovdivCourt of Appeal, the SupremeCourt of Cassation and the public prosecutor’s office. In his statement of claim he submitted that the periodof time which he had spent in pre-trial detentionduring the criminal proceedings against him had exceeded the length of the sentence imposed on him by the courts. He claimed 11,500 Bulgarian Lev (BGL) in respect of the pecuniary and non-pecuniary damage which he had sustained. An initial hearing was held on 30 November 2004 before the Sofia City Court.
15. At the hearing on 11 October 2005 therepresentative of thePlovdiv Court of Appeal, Judge N.D., presented acopy of thejudgmentdelivered on 3 October 2005 by the Stara Zagora Regional Court (see paragraph 27 below),and invited the Sofia City Court to adjourn the civil case until the end of the secondset of criminal proceedings against the applicant. He emphasised that the applicant’s action for damages should be dismissed on account of that fresh conviction. Pursuant to Article 182 paragraph 1 (g)of the 1952Code of CivilProcedure (CPC), the court allowed that request on the grounds that the outcome of the secondset of criminal proceedings might prove decisivefor the outcome of the compensation proceedings.
16. Following an appeal lodged by the applicant, thecivilcompensationproceedings resumed inJanuary 2006.
17. Byjudgmentof 24 October 2006 the Sofia City Court dismissed the applicant’s claims. The applicant appealed to the Sofia Courtof Appeal.
18. On 10 July 2007 that court dismissed the applicant’s appeal. It noted that at the end of thesecondset of criminal proceedings against him (see paragraphs 20-32 below)the applicant had been sentenced to three years’ imprisonmentand that that sentence had been combined with the prison sentence passed on him at the end of the first set of criminal proceedings. It furthernoted that the criminal courts had alsodeduced from the combined sentence the periodof one year seven months which the applicant had spent in pre-trial detentionduring the first set of criminal proceedings, and found that therefore the length of the applicant’s detention had not exceeded the sentence imposed on him.
19. An appeal on points of law lay against thatjudgment, but the applicant did not avail himself of that option.
C. Secondset of criminal proceedings against the applicant
20. On 14 October 2004 theStara Zagora regionalprosecutor’s office drew up a formal indictment against the applicant and committed him for trial before the Stara Zagora RegionalCourt for narcoticstrafficking during theperiodfrom 21 March 2000 to 14 March 2002.
21. At the hearing on 18 October 2004 counsel for the applicant requested the transfer of the case to another regional court. She alleged that thejudgesof theStara Zagora Regional Court were not impartial, on the grounds that their court was a respondent in the framework of the action for damages brought by the applicant (see paragraph 14 above).
22. That request was dismissed by the trial court as ill-founded, on the following grounds: “as regards the formal indictment presented, there is information to the effect that that indictment wasreceived in the Sofia City Court on 29 September 2004,and there is no information to suggest that civilproceedings have beenformally commenced by the court of first instance”. The trial court further held that there had been no evidence of bias on the part of any of the two professional judges and the three layjudges sitting in the trial court, who had not been involved in the first set of criminalproceedings against the applicant.
23. Nevertheless, the President of the trial court, who was also acting as Judge Rapporteur, decided to withdraw from the case on the grounds that he had sat on the trial bench which had previously convicted the applicant (see paragraphs 6-13 above). The hearing was adjourned to enable the defenceto acquaint itself with the casefile and the indictment.
24. In his written observations of 21 Octoberand 8 November 2004 inreply to the indictment, the applicant repeated his argument concerning thealleged bias on the part of all theregional court judgesand requested theircollectivewithdrawal and the assignment of the case to another court. He submitted that it had been injudges’interesttogive him a prison sentence in order to prevent a finding against their court in the framework of the compensationproceedings before the Sofia City Court.
25. At the 10 January 2005 hearing counsel for the applicant called once again for the withdrawal of all theregional court judgesand the assignment of the case to another court of the same level of jurisdiction. Thatrequest wasdismissedon thefollowing grounds: none of the lawful reasons for the withdrawal ofjudgesset out in Article 25 of the Code of Criminal Procedurehad been established in the present case; there was no evidence of bias on the part of the trial courtjudges, the case had beenexamined by a different court whoseimpartialitywas unchallenged and the regionalcourt had no means of influencing the outcome of the respectiveproceedings; and in any event, an appeal lay against the regional court’sfuture decision in that criminal case.
26. Theregionalcourt examined the criminal case of drug-trafficking between 10 Januaryand 3 October 2005. It gathered material evidence and heard a number of experts and prosecution anddefence witnesses. The court refused to summon two defencewitnesses and to put specific questions to the prosecution witnesses as beingirrelevant to the establishmentof thefacts.
27. Byjudgmentof 3 October 2005, theregionalcourt found the applicant guilty of the unlawful purchase, possession and sale of a certainquantityof cannabis between March 2000 and March 2002, and sentenced him to sixteen year’imprisonment. The court decided to combine that sentence with that imposed at the end of the first set of criminal proceedings and to deduct the periodspent in pre-trial detention between 2002 and 2004.
28. On 17 October 2005theapplicant appealed to the Plovdiv Court of Appeal against theregionalcourt’s judgment. On several subsequent occasions his lawyer filed additional observations complaining of various proceduralshortcomings on the part of theregionalcourt and the investigatingauthoritiesandcontestingthat court’sfactual and legal findings. In her observations of 18 January 2006 counsel for the applicant complained of bias on the part of the judgesof the court of first instance, inter alia on account of that court’s refusaltotransmit the casefile to another court for assessment.
29. The Plovdiv Courtof Appeal examined the criminal case in apublic hearing held on 23 January 2005.Counsel for the applicant did not request the withdrawal of the appeal courtjudges. That court heard a witness and accepted new written evidencepresented by thedefence. In herpleadings counsel complained, inparticular, of theinsufficiencyof the evidence to convict the applicant, called for her client’sacquittal and, in the alternative, sought the referral of the case to the lower-level court on grounds of proceduralshortcomings.
30. By judgmentof 25 January 2006 thecourtof appeal set aside theregional court’s judgment. It excluded some evidenceas being in breach of defence rights, and twostatementsgiven during the preliminary investigation which the court of first instance had taken into account. It considered, however, that the other evidence gathered had confirmed that the applicant had been involved in cannabis trafficking, and found no other breach of the applicant’s procedural rights. The court sentenced him to ten years’imprisonmentand upheld the part of theregionalcourt’s decision relating to the combination of sentences and the deductionof the time spent in pre-trial detention.
31. The applicant lodged an appeal on points of law. His lawyer submitted, inter alia, that the appellate court had not addressed the allegation of bias on the part of the court of first instance.
32. By judgmentof 16 November 2006 the SupremeCourt of Cassation set aside the 25 January 2006 judgment of the Plovdiv Courtof Appeal, reduced the applicant’s sentence to three years’imprisonment, combined the latter with the sentence imposed during the first set of criminal proceedings anddeducted theperiodspent inpre-trial detentionduring the first set of criminal proceedings. Accordingly, the applicant only had in fact toserve a seventeen-month prisonsentence.
II. RELEVANT DOMESTIC LAW
33. Article 25 of the 1974 Code of Criminal Procedure, which was in force untilApril 2006, listed the grounds of withdrawal of a criminal judgefrom a case, including his or herparticipation in the same case as a civil party, prosecutor, investigator, witnessor expert, orthe existence of kinship between a judgeand one of the aforementionedpersons orwith another judgesitting in the trial court. Pursuant to Article 25 § 9, suchjudgewas required to withdraw from the case under any other circumstanceliable to jeopardise his or her impartiality.
34. Inpursuance of Article 36 of the same code, the SupremeCourt of Cassation coulddecide to refer a criminal case for consideration to another court of the same level of jurisdiction where the competentcourt was no longer capable of constituting a trial court. Such a scenario could arise if all the judgesof thecompetent court withdrew (Определение № 19 от 25.II.1991 г. на ВС по ч. н. д. № 80/91 г., III н. о.,Бюлетинна ВС на РБ, кн. 5/1991 г., стр. 11).
35. Article 23 of the PenalCode provides for the concurrent running of sentences in cases of the actual or notionalcoincidence of two or more criminal offences. In such cases thecompetentcourt must impose the heaviest sentence on the convicted person.
36. Pursuant to Article 59 of the Penal Code, with aview to enforcing prison sentences, time spent by the convicted person in pre-trialdetentionmust bededucted from the sentence determined by the courts.
37. Pursuant to section 2(6) of the Law on State Responsibilityfor Damages, the State’s civil liabilitymay beincurredincases ofimprisonmentfor aperiodlonger than that determined by the courts, where thatimprisonmentistheresult of actions or omissions on the part of the courts, the public prosecutor’s office or the criminal investigation agencies.
38. Pursuant to section 196(1) of the 1994 Law on the Judiciary as in force at the material time, thejudiciary has its ownseparate budget established by the HigherCouncilof the Judiciary and adopted by the National Assembly.
39. The HigherCouncilof the Judiciary was primarily responsible for managing and supervising the budget for the wholejudicial system. Judicial authorities having legalpersonality, such as the courts, were also responsible for managing their own specific budgets.
40. Article 399 § 2 of the Code of Criminal Procedure in force at the material time and now repealed, provided that personswith a public-law claim against the public authorities should transmit the writ of execution to the finance department of the authority in question in order to obtainpayment. Payments were effected from appropriations earmarked for the purpose in the authority’s budget. Where no fundswere available, a budget line had to be opened for the purpose for the following year.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
41. The applicant complained that his second criminal case had not been examined by an impartial tribunal. He relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination …of any criminal charge against him, everyone is entitled to a fair … hearing … by an independentand impartial tribunalestablished by law.”
42. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
(a) The applicant
43. The applicant submitted that in the framework of the first set of criminal proceedings against him for drug-trafficking he had been placed in pre-trial detention and had remained in detention for one year, seven months and eight days, whereas, at the end of the proceedings, he had been sentenced to only one year’s imprisonment.
44. He had therefore brought an action for damages under section 2(6) of the Law on State Responsibilityagainst the three courts which had examined that criminal case. He stated that alongside those civilproceedings, a second set of criminalproceedings for drug-trafficking had been brought against himbefore the same court of first instance against which he had brought his action. He therefore considered that it had been in the interests of the judgesof the court of first instance to convict him a second time of similar offences and to combine the two sentences passed after both sets of criminal proceedings in order toexonerate their court from any responsibilityin the framework of the compensationproceedings. Furthermore, his request to have his criminal case transferred to another court of the same judicial level with different territorial jurisdiction had been dismissed, and he had received a heavy sentence.
45. The applicant alleged that thejudgesof thecourtof appeal who hadexamined his appeal against that conviction had been equally biased, because, in his view, anacquittal would have inevitably led to a finding against the court in question in the framework of the compensation proceedings. Moreover, the appellatecourt’srepresentative in the compensationproceedings had beenparticularlyactiveand had requested and obtained the adjournment of thatproceedings until the end of the second set of criminal proceedings against him.
46. The applicant also submitted that his action against the SupremeCourt of Cassation had cast doubt on theimpartialityof that court’sjudges.
47. He considered that all those circumstanceshad been sufficientto cast doubt on theimpartialityof thejudgeswho hadexamined the second criminalcase against him, which had thus amounted to a violation of Article 6 § 1 of the Convention.
(b) The Government
48. The Governmentcontested the applicant’s arguments. They considered that the criminal case inissuehad beenexamined by impartial tribunals in accordance with Article 6 § 1 of the Convention.
49. They pointed out that under the Court’s constantcase-law,two tests should be used to assess theimpartialityofjudges: firstly, a subjective test focusing on the personal conviction and behaviour of a particular judge, and secondly, an objective test, ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality (see Micallefv. Malta [GC], no. 17056/06, § 93, ECHR 2009). The Government added that in connection with the objective test, the decisive factor was not so much the standpoint of the accused, but rather the question whether his or her fears could be deemed objectively justified (see Parlov-Tkalčić v. Croatia, no. 24810/06, § 80, 22 December 2009).
50. The Government explained that the sameimpartialitycriteriahad been reprised in the provisionsof the Code of Criminal Procedure governing challenges to and withdrawal ofjudges. In considering a request for the withdrawal of one or more judges, the trial court had to give a reasoned decision, which took on especial importance where the court had to ascertain the existence of possible bias.
51. The Governmentpointed out that in the present case the applicant had requested the withdrawal of the judgesof the Stara ZagoraRegional Court and that that request had been duly considered by the trial court. They submitted that the JudgeRapporteur had been challenged under the “subjective test”approach. On the other hand, the trial court had noted no objectiveevidence such as to call into question theimpartialityof the otherjudgescalled upon to adjudicate on the merits of that criminal case.
52. The Governmentconsidered that the criminal case against the applicant had beendulyexamined by the courts, which had had regard to all the relevantcircumstancesof the case in order to find the applicant guilty and sentence him as prescribed by law. They considered that from that angle the criminal judgeshad in no way been influenced by thecivil compensation proceedingsbrought by the applicant against various legal persons, that is to say the Stara ZagoraRegional Court, the Plovdiv Court of Appeal and the SupremeCourt of Cassation, where they had discharged their duties.
53. TheCourtlaid down a number ofprinciples relating to theexamination of theimpartialityofjudges, as enshrined in Article 6 of the Convention, in its judgment in the case ofKyprianouv. Cyprus[GC], no. 73797/01, §§ 118-121, ECHR 2005‑XIII. Thoseprinciplescan be summarised as follows. Impartialitydenotes the absence ofprejudice or bias, and its existence must be determined according to two types of test: a subjective one seeking to determine the personal conviction or interest of a particular judge in a given case, and an objective test ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. As regards thesecondtest, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether that fear can be held to be objectively justified.
b) Application of those principles to the present case
54. The Court observes that the instant case raises no issues of subjective impartiality. It will therefore address the question of the impartiality of the criminal judges in the present case in the light of the objective test (see paragraph 53 above).
55. The Court notes that the Stara Zagora Regional Court examined the second criminal case against the applicant while a civil action for damageswhich had been brought by the applicant against that same court was pending before the Sofia City Court (see paragraphs 20-27 and 14-17 above). It also observes that the latter court agreed to adjourn the compensationproceedings until the end of the second set of criminalproceedings against the applicanton the grounds that the latter might provedecisivefor the outcome of the dispute (see paragraph 15 above). Under thosecircumstances, even though there is noreasonto doubt thepersonalimpartiality of the criminaljudgesof theStara ZagoraRegional Court, and notwithstanding thefact that four of themembersof that court’s trial bench had not taken part in the assessment of theprevious criminalproceedingsagainstthe applicant (see paragraphs 22 and 23 above), theirprofessionalconnection with one of the parties to theconcurrently running civil proceedings, combined with the detrimental effect on the compensation proceedings of the criminal proceedings against the applicant, could, on its own, haveprompted legitimate misgivings in the applicant as regards the judges’ objective impartiality.
56. Furthermore, under the budgetary rules relevant to the present case, any compensation awarded to the applicant inthe event of the success of his action for damageswould have been paid from the budget of the Stara Zagora Regional Court (see paragraphs 38-40 above). Even though it has not been established that thatfact had in any wayinfluenced theindividualsituation of the court’s judges, it mightlegitimately have intensified the applicant’s doubts.
57. TheCourt furtherobserves that domestic law required judgesto withdraw from a criminal case if there was any doubt about theirimpartiality (see paragraph 33 above). In particular, under Article 25 § 9 of the version of the CCP in force at the material time, judges could be expected to withdraw from a case on the basis of any circumstance potentially casting doubt on their impartiality, even in cases not explicitly mentioned in that article (ibid.). Domestic law also provided a mechanismfor assigning a criminal case to another court of the same level of jurisdiction where the competentcourt was unable toconstitute a trial bench because of the withdrawal of all itsjudges (see paragraph 34 above).
58. In the present case, the applicant requested the withdrawal of all the judgesof the Stara Zagora Regional Court and the transfer of the criminal case to another court of the same level of jurisdiction, but his request was dismissed on purelyformal grounds without any thorough consideration of the arguments in support of such a transfer (see paragraphs 21-25 above). The applicantraised the issue of bias on the part of the criminaljudgesof Stara Zagora Regional Court before two higher authorities, that is to say the Plovdiv Courtof Appeal and theSupremeCourt of Cassation (see paragraphs 28 and 31 above), which were themselves respondents in the framework of the same civil compensationproceedings. The fact is that neither of those higher courts replied to the applicant’s submissions (see paragraphs 30 and 32 above). Thus they failed todispel thelegitimatedoubt as to the bias on the part of the court of first instance.
59. Having regardto these observations, theCourtconsiders that theStara Zagora Regional Court, whichexamined the second criminal case brought against the applicant at first instance, did not fulfil the requirements of objectiveimpartiality. The higher-level courts had not redressed the infringement of that safeguard on the fairness of criminal proceedings, since they haddeclined to quash the first-instance decision and in so doing had upheld the applicant’sconviction (see Kyprianou, cited above, § 134, andDe Cubberv. Belgium, 26 October 1984, § 33, Series A no. 86). The Court therefore holds that it is not necessary to examine the applicant’s other pleas (see paragraphs 45 and 46 above).
60. The foregoing considerations are sufficient to enable the Court to conclude that there was a violation of Article 6 § 1 of the Convention on the grounds that the second criminal case against the applicant was not assessed by an impartial tribunal.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
61. 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.”
62. The applicant claimed 25,000 euros (EUR) in respect of pecuniary damage.
63. The Government considered that claim excessive.
64. TheCourtconsidersthat the applicant sustained pecuniary damageon account of the fact that the proceedings against him were not assessed by an impartial tribunal. It holds that he should be awarded a sum of EUR 3,600 in respect of pecuniary damage.
B. Costs and expenses
65. The applicant also claimed BGN 4,046 (equal to EUR 2068.68) for the costs and expenses incurred before the Court.
66. The Government considered that claim exaggerated and unjustified, and disputed, in particular, the number of hours of legal work on the application declared by counsel for the applicant.
67. 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 to the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 in respect of the proceedings before it Court.
C. Default interest
68. 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. Declaresthe application admissible;
2. Holdsthat there has been a violation of Article 6 § 1 of the Convention;
(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 Bulgarian Lev, at the rate applicable at the date of settlement:
(i) EUR 3,600 (three thousand six hundred 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 claim for just satisfaction.
Done in French, and notified in writing on 5 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Angelika Nußberger