Last Updated on November 4, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 56777/11
Sava Kolev KAROV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 13 February 2018 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lado Chanturia, judges,
and Anne-Marie Dougin, ActingDeputy Section Registrar,
Having regard to the above application lodged on 1 August 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Sava KolevKarov, is a Bulgarian national, who was born in 1957 and lives in Burgas.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is a barrister, practicing in Burgas.
4. In 2010 he was authorised by a client who had been convicted for several criminal offences in the 1980s to apply on his behalf for judicial rehabilitation. On 3 June 2010 the applicant introduced a request for rehabilitation with the Sofia District Court.
5. In a decision of 14 September 2010 the Sofia District Court refused to examine the request, considering that this was unnecessary because the rehabilitation sought had occurred ex lege after the lapse of the relevant period of time.
6. The applicant lodged an appeal against this decision, explaining that rehabilitation could only occur ex lege where the person had been convicted once. Where the convictions were several, as in the case, rehabilitation had to be ordered by a court.
7. On 25 October 2010 the Sofia City Court (hereinafter “the City Court”) held a hearing on the appeal but adjourned the case, since neither the applicant nor his client were present. Relying on Article 94 § 1 of the Code of Criminal Procedure (see paragraph 15 below), the City Court was of the view that the presence of counsel for the convicted person was obligatory, seeing that the latter lived abroad. Thus, scheduling its next hearing on 1 December 2010, it held that the applicant had to be summoned to appear.
8. However, on the same day the applicant had to participate in other court hearings in Burgas and could not travel to Sofia.
9. At the hearing of 1 December 2010 the City Court noted that the applicant was not present and reiterated that the participation of counsel for the convicted person was obligatory. It adjourned the case and, considering that the applicant’s behaviour was the sole reason for that, imposed a fine of 1,000 Bulgarian levs (BGN, the equivalent of 510 euros – EUR) on him, on the basis of Article 271 § 11 of the Code of Criminal Procedure (see paragraph 16 below).
10. On 26 January 2011 the applicant lodged an appeal against the fine. He explained that on 1 December 2010 he had been prevented from travelling to Sofia and considered that his presence at the hearing had at any event been pointless, since the City Court had not had to collect any new evidence and he had made written submissions.
11. At a new hearing of 3 February 2011 the City Court refused to cancel the fine, reiterating that the applicant’s presence had been obligatory and that his absence had been the sole reason for the adjournment of the case on 1 December 2010. At the time, the applicant had not duly informed the judges of his reasons for failing to attend.
12. The applicant attempted to appeal that decision before the Supreme Court of Cassation, but the latter held on 13 April 2011 that the decision was not amenable to appeal.
13. As to the rehabilitation request by the applicant’s client, the proceedings were discontinued by the City Court since such rehabilitation had in the meantime been granted by another court.
B. Relevant domestic law and practice
14. The Code of Criminal Procedure contains very few special provisions on judicial rehabilitation and it is mainly its general rules which apply to such proceedings.
15. Article 94 § 1 of the Code enumerates the occasions where the participation of counsel for the accused is obligatory in criminal proceedings. This includes, in particular, cases where the proceedings are conducted in the latter’s absence.
16. Article 271 of the Code deals with the organisation of court hearings. Its paragraph 11 provides that where one of the parties, a witness or an expert has failed to attend a hearing without a valid reason, thus causing the adjournment of the case, the person responsible is to be fined up to BGN 1,000. In 2017 paragraph 11 was amended to provide for a possibility to appeal against such a fine before a higher court. Prior to that the national courts acceptedthat such a fine could be contested with the main judgment (Решение от 1.11.2017г. на ОС – Велико Търново по в.н.ч. х.д. № 261/2017 г.; Решение № 281 от 16.11.2016 г. на АС ‑ Пловдив по в. н. о. х. д. № 452/2016 г.) orbeforethesamecourtwhichhadtakenthedecisiontoimposeit (Определение № 184714 от 1.08.2017 г. на СРС по ч. н. д. № 9744/2017 г.; Определение № 343 от 15.09.2015 г. на ОС ‑Сливен по в. ч. н. д. № 403/2015 г.).
COMPLAINTS
17. The applicant complained under Article 6 § 1 of the Convention of the manner in which the City Court had refused to cancel the fine ordered by it on 1 December 2010, in particular of its allegedly not being impartial, and of the impossibility to appeal against that refusal. He further relied on Article 13 of the Convention.
THE LAW
18. The applicant relied on Article 6 § 1 and Article 13 of the Convention. Article 6 § 1, in so far as relevant, reads:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law.”
Article 13 reads:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Based on the substance of the complaint, the Court is of the view that Article 2 of Protocol No. 7 might be relevant to the case. It reads:
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
19. As to the applicant’s complaint under Article 6 § 1 of the Convention, the Court must determine whether this provision was applicable to the case. In doing so, it must determine whether or not the procedure complained of concerned the determination of a “criminal charge” against the applicant or of his “civil rights and obligations”.
20. The Court will first address the question whether or not the case concerned the determination of a “criminal charge” against the applicant. It has on numerous occasions stated that this is an autonomous concept and must be interpreted according to the three criteria known as the “Engel criteria” – the legal classification of the offence under national law, the very nature of the offence, and the nature and degree of severity of the penalty that the person concerned risks incurring (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22; Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006‑XIV; Kurdov and Ivanov v. Bulgaria, no. 16137/04, § 37, 31 May 2011).
21. The applicant in the present case was fined on the basis of a provision of the Code of Criminal Procedure, namely Article 271 § 11 (see paragraphs 9 and 16 above). However, this fact alone cannot lead to the conclusion that the offence committed by him, namely his failure to attend a court hearing, thus causing the adjournment of the proceedings, should be seen as being classified as criminal under national law. Such an offence is not defined in the Criminal Code and it does not concern criminal conduct per se, but the good organisation of court hearings. In addition, it is for the court sitting in the particular case to examine of its own motion and without the involvement of the public prosecutor whether there has been an offence. Lastly, it is significant that any fine imposed under Article 271 § 11 is not entered into the police register (see Ravnsborg v. Sweden, 23 March 1994, § 33, Series A no. 283‑B).
22. As to the nature of the offence committed by the applicant, the Court observes that Article 271 § 11 of the Code of Criminal Procedure applies only to persons taking part in criminal proceedings, namely the parties, witnesses and experts (see paragraph 16 above; contrast Varadinov v. Bulgaria, no. 15347/08, § 39, 5 October 2017). Furthermore, since the rules enabling a court to sanction any misconduct in the proceedings before it derive from its power to ensure the proper and orderly functioning of those proceedings, any measure ordered under such rules is more akin to the exercise of disciplinary power than to the imposition of a punishment for commission of a criminal offence (see Ravnsborg, § 34, cited above). Lastly, even though a fine is certainly aimed at ensuring punishment and deterrence, which has been seen as a feature of criminal penalties (see, for example, Sergey Zolotukhin v. Russia [GC], no. 14939/03, § 55, ECHR 2009), in the case at hand this element was mitigated, since the fine was imposed in the course of ongoing court proceedings and could be reviewed and repealed in the course of those proceedings at a subsequent hearing. This demonstrates that at least in part the fine was also geared towards guaranteeing the presence of the parties at subsequent hearings. Thus, the fact that the fine could have also been aimed at ensuring punishment and deterrenceis insufficient to lead to the conclusion that the offence committed by the applicant was “criminal” in nature.
23. The Court must then turn to the last of the “Engel criteria”, namely the nature and degree of severity of the potential penalty (see paragraph 20 above). The applicant was imposed the maximum penalty provided for in Article 271 § 11 of the Code of Criminal Procedure, namely a fine of BGN 1,000 (the equivalent of EUR 510). The Court is of the view that the amount of that fine, while applicable to proceedings such as the ones in the present case, did not in itself attain such a level as to make it a “criminal” sanction. Moreover, the Court observes that the fine was not convertible into a term of imprisonment in case of non-payment.
24. Accordingly, the Court concludes that the matters complained of did not concern the determination of a “criminal charge” against the applicant, and that Article 6 § 1 of the Convention, taken under its “criminal” head, is inapplicable.
25. The Court observes furthermore that disciplinary proceedings in which the right to continue to exercise a profession is at stake can give rise to a dispute over “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention (see, for example, König v. Germany, 28 June 1978, §§ 87-95, Series A no. 27, and in the specific context of the legal profession Malek v. Austria,no. 60553/00, § 39, 12 June 2003, and Di Giovanniv. Italy, no. 51160/06, § 36, 9 July 2013).
26. However, even though the Court found above that the proceedings in which the applicant was fined for having failed, in his quality of barrister, to attend a court hearing were akin to disciplinary ones (see paragraph 22 above), it is significant that the applicant’s right to continue to exercise his profession was never at stake (see, a contrario, Hurter v. Switzerland (dec.), no. 53146/99, 8 July 2004; Helmut Blum v. Austria, no. 33060/10, § 60, 5 April 2016; and Di Giovanni, § 36, cited above). Accordingly, the Court sees no reason to conclude that Article 6 § 1 of the Convention, taken in its “civil” aspect, was applicable to the case.
27. Next, since the concept of “criminal offence” in the first paragraph of Article 2 of Protocol No. 7 corresponds to that of “criminal charge” in Article 6 § 1 of the Convention (see Gurepka v. Ukraine, no. 61406/00, § 55, 6 September 2005, and Kamburov v. Bulgaria, no. 31001/02, § 22, 23 April 2009), for the reasons developed above concerning the “criminal” aspect of Article 6 § 1 the Court finds this provision inapplicable.
28. Lastly, as to Article 13, it has been consistently interpreted by the Court as requiring a remedy in the domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, § 54, Series A no. 131, and Hatton and Others v. the United Kingdom [GC],no. 36022/97, § 137, ECHR 2003‑VIII). However, since neither Article 6 § 1 of the Convention nor Article 2 of Protocol No. 7 is applicable to the circumstances of the present case, the applicant cannot be deemed to have raised such an “arguable” grievance.
29. In view of the above considerations, the Court concludes that the present application is incompatible rationemateriae with Articles 6 and 13 the Convention and Article 2 of Protocol No. 7, within the meaning of Article 35 § 3 (a) of the Convention, and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 8 March 2018.
Anne-Marie Dougin Gabriele Kucsko-Stadlmayer
Acting Deputy Registrar President
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