FIFTH SECTION
\nDECISION
\nApplication no. 56777\/11
\nSava Kolev KAROV
\nagainst Bulgaria<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 13\u00a0February 2018 as a Committee composed of:<\/p>\n
Gabriele Kucsko-Stadlmayer, President,
\nYonko Grozev,
\nLado Chanturia, judges,<\/p>\n
and Anne-Marie Dougin, ActingDeputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 1 August 2011,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Sava KolevKarov, is a Bulgarian national, who was born in 1957 and lives in Burgas.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 2.\u00a0\u00a0The facts of the case, as submitted by the applicant, may be summarised as follows.<\/p>\n 3.\u00a0\u00a0The applicant is a barrister, practicing in Burgas.<\/p>\n 4.\u00a0\u00a0In 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.<\/p>\n 5.\u00a0\u00a0In 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.<\/p>\n 6.\u00a0\u00a0The 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.<\/p>\n 7.\u00a0\u00a0On 25 October 2010 the Sofia City Court (hereinafter \u201cthe City Court\u201d) held a hearing on the appeal but adjourned the case, since neither the applicant nor his client were present. Relying on Article 94 \u00a7 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.<\/p>\n 8.\u00a0\u00a0However, on the same day the applicant had to participate in other court hearings in Burgas and could not travel to Sofia.<\/p>\n 9.\u00a0\u00a0At 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\u2019s behaviour was the sole reason for that, imposed a fine of 1,000 Bulgarian levs (BGN, the equivalent of 510 euros \u2013 EUR) on him, on the basis of Article 271 \u00a7 11 of the Code of Criminal Procedure (see paragraph 16 below).<\/p>\n 10.\u00a0\u00a0On 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.<\/p>\n 11.\u00a0\u00a0At a new hearing of 3 February 2011 the City Court refused to cancel the fine, reiterating that the applicant\u2019s 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.<\/p>\n 12.\u00a0\u00a0The 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.<\/p>\n 13.\u00a0\u00a0As to the rehabilitation request by the applicant\u2019s client, the proceedings were discontinued by the City Court since such rehabilitation had in the meantime been granted by another court.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 14.\u00a0\u00a0The Code of Criminal Procedure contains very few special provisions on judicial rehabilitation and it is mainly its general rules which apply to such proceedings.<\/p>\n 15.\u00a0\u00a0Article 94 \u00a7 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\u2019s absence.<\/p>\n 16.\u00a0\u00a0Article 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\u00a01,000. 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 (\u0420\u0435\u0448\u0435\u043d\u0438\u0435 \u043e\u0442 1.11.2017\u0433. \u043d\u0430 \u041e\u0421 – \u0412\u0435\u043b\u0438\u043a\u043e \u0422\u044a\u0440\u043d\u043e\u0432\u043e \u043f\u043e \u0432.\u043d.\u0447. \u0445.\u0434. \u2116\u00a0261\/2017 \u0433.; \u0420\u0435\u0448\u0435\u043d\u0438\u0435 \u2116 281 \u043e\u0442 16.11.2016 \u0433. \u043d\u0430 \u0410\u0421 \u2011 \u041f\u043b\u043e\u0432\u0434\u0438\u0432 \u043f\u043e \u0432.\u00a0\u043d.\u00a0\u043e. \u0445. \u0434. \u2116\u00a0452\/2016 \u0433.) orbeforethesamecourtwhichhadtakenthedecisiontoimposeit (\u041e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 \u2116 184714 \u043e\u0442 1.08.2017 \u0433. \u043d\u0430 \u0421\u0420\u0421 \u043f\u043e \u0447. \u043d. \u0434. \u2116\u00a09744\/2017 \u0433.; \u041e\u043f\u0440\u0435\u0434\u0435\u043b\u0435\u043d\u0438\u0435 \u2116 343 \u043e\u0442 15.09.2015 \u0433. \u043d\u0430 \u041e\u0421 \u2011\u0421\u043b\u0438\u0432\u0435\u043d \u043f\u043e \u0432. \u0447. \u043d. \u0434. \u2116 403\/2015 \u0433.).<\/p>\n COMPLAINTS<\/strong><\/p>\n 17.\u00a0\u00a0The applicant complained under Article 6 \u00a7 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.<\/p>\n THE LAW<\/strong><\/p>\n 18.\u00a0\u00a0The applicant relied on Article 6 \u00a7 1 and Article 13 of the Convention. Article 6 \u00a7 1, in so far as relevant, reads:<\/p>\n \u201cIn 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.\u201d<\/p>\n Article 13 reads:<\/p>\n \u201cEveryone 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.\u201d<\/p>\n 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:<\/p>\n \u201c1.\u00a0\u00a0Everyone 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.<\/p>\n 2.\u00a0\u00a0This 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.\u201d<\/p>\n 19.\u00a0\u00a0As to the applicant\u2019s complaint under Article 6 \u00a7 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 \u201ccriminal charge\u201d against the applicant or of his \u201ccivil rights and obligations\u201d.<\/p>\n 20.\u00a0\u00a0The Court will first address the question whether or not the case concerned the determination of a \u201ccriminal charge\u201d 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 \u201cEngel criteria\u201d \u2013 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.\u00a0the\u00a0Netherlands, 8 June 1976, \u00a7 82, Series A no. 22; Jussila v. Finland [GC], no. 73053\/01, \u00a7\u00a7 30-31, ECHR 2006\u2011XIV; Kurdov and Ivanov v.\u00a0Bulgaria, no. 16137\/04, \u00a7 37, 31 May 2011).<\/p>\n 21.\u00a0\u00a0The applicant in the present case was fined on the basis of a provision of the Code of Criminal Procedure, namely Article 271 \u00a7 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 \u00a7 11 is not entered into the police register (see Ravnsborg v. Sweden, 23 March 1994, \u00a7\u00a033, Series A no. 283\u2011B).<\/p>\n 22.\u00a0\u00a0As to the nature of the offence committed by the applicant, the Court observes that Article 271 \u00a7 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.\u00a0Bulgaria, no. 15347\/08, \u00a7 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, \u00a7 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, \u00a7 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 \u201ccriminal\u201d in nature.<\/p>\n 23.\u00a0\u00a0The Court must then turn to the last of the \u201cEngel criteria\u201d, 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 \u00a7 11 of the Code of Criminal Procedure, namely a fine of BGN\u00a01,000 (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 \u201ccriminal\u201d sanction. Moreover, the Court observes that the fine was not convertible into a term of imprisonment in case of non-payment.<\/p>\n 24.\u00a0\u00a0Accordingly, the Court concludes that the matters complained of did not concern the determination of a \u201ccriminal charge\u201d against the applicant, and that Article 6 \u00a7 1 of the Convention, taken under its \u201ccriminal\u201d head, is inapplicable.<\/p>\n 25.\u00a0\u00a0The 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 \u201ccivil rights and obligations\u201d within the meaning of Article\u00a06 \u00a7 1 of the Convention (see, for example, K\u00f6nig v. Germany, 28\u00a0June 1978, \u00a7\u00a7 87-95, Series A no. 27, and in the specific context of the legal profession Malek v. Austria,no. 60553\/00, \u00a7 39, 12 June 2003, and Di\u00a0Giovanniv. Italy, no. 51160\/06, \u00a7 36, 9 July 2013).<\/p>\n 26.\u00a0\u00a0However, 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\u2019s right to continue to exercise his profession was never at stake (see, a contrario, Hurter v. Switzerland (dec.), no.\u00a053146\/99, 8 July 2004; Helmut Blum v. Austria, no. 33060\/10, \u00a7 60, 5\u00a0April 2016; and Di Giovanni, \u00a7 36, cited above). Accordingly, the Court sees no reason to conclude that Article 6 \u00a7 1 of the Convention, taken in its \u201ccivil\u201d aspect, was applicable to the case.<\/p>\n 27.\u00a0\u00a0Next, since the concept of \u201ccriminal offence\u201d in the first paragraph of Article 2 of Protocol No. 7 corresponds to that of \u201ccriminal charge\u201d in Article 6 \u00a7 1 of the Convention (see Gurepka v. Ukraine, no. 61406\/00, \u00a7\u00a055, 6 September 2005, and Kamburov v. Bulgaria, no. 31001\/02, \u00a7 22, 23\u00a0April 2009), for the reasons developed above concerning the \u201ccriminal\u201d aspect of Article 6 \u00a7 1 the Court finds this provision inapplicable.<\/p>\n 28.\u00a0\u00a0Lastly, 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 \u201carguable\u201d in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, 27 April 1988, \u00a7\u00a054, Series A no. 131, and Hatton and Others v. the United Kingdom [GC],no.\u00a036022\/97, \u00a7 137, ECHR 2003\u2011VIII). However, since neither Article\u00a06\u00a0\u00a7\u00a01 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 \u201carguable\u201d grievance.<\/p>\n 29.\u00a0\u00a0In 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 \u00a7 3 (a) of the Convention, and must be rejected in accordance with Article 35 \u00a7 4.<\/p>\n For these reasons, the Court unanimously<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 8 March 2018.<\/p>\n Anne-Marie Dougin\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Gabriele Kucsko-Stadlmayer
\nActing Deputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n