FOURTH SECTION
CASE OF ZDRAVKO STANEV
v. BULGARIA
(Application no.
32238/04)
JUDGMENT
STRASBOURG
6 November 2012
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 Zdravko Stanev v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Nebojša Vučinić,
Vincent A. De Gaetano judges,
Pavlina Panova, ad hoc judge,
and Fatoş Aracı, Section Registrar,
Having deliberated in private on 16 October 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
32238/04) 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 Zdravko Kostov Stanev.
The applicant was represented before the Court by
Mr N. Runevski, a lawyer practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their then Agent, Ms M. Dimova.
On 16 June 2008 Zdravka Kalaydjieva, the judge
elected in respect of the Republic of Bulgaria, withdrew from sitting in the
case. Accordingly, on 28 September 2012 the President of the Fourth Section
appointed Pavlina Panova as an ad hoc judge from the list of three
persons whom Bulgaria had designated as eligible to serve as such judges
(Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court).
In the meantime, on 19 October 2009 the
application was communicated to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time (Article 29 §
1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1951 and lives in Kazanluk.
A. Background
The applicant was representing his father in a
tort action against the local forestry office. At a hearing held in December
2001 he objected to the decision of the judge hearing the case, who was the President
of the Kazanluk District Court, to order a graphological examination of a
photocopied document. The judge overruled his objection and the applicant
appealed.
On 7 December 2001, allegedly in order to
illustrate the absurdness of the judge’s ruling, the applicant filed with the
court photocopies of two declarations, asking that they be attached to his
appeal. The first, purportedly emanating from the judge, said that she had
forced the applicant to draw it up and that, to compensate him for the
frustration and damage caused, she undertook to pay him 5,000 United States
dollars (USD). The second, purportedly emanating from the director and an
official of the forestry office, said that they owed the applicant USD 5,000.
On 18 December 2001 the applicant filed with the court a further document
purportedly emanating from the forestry office’s counsel which stated that she
had forced the judge to carry out certain acts in relation to the case and that
she owed the applicant USD 10,000.
All three documents, presented in photocopy, bore
the purported signatures of the individuals concerned.
B. The criminal proceedings against the applicant
The judge referred the matter to the prosecution
authorities, which opened an investigation against the applicant on charges of
forgery. The judge, the forestry office’s officials and counsel also brought
civil-party claims against him.
All judges of the Kazanluk District Court
withdrew from the case and it was transferred to the Stara Zagora District
Court. On 23 September 2002 that court referred the case back to the
prosecution authorities for the rectification of procedural errors. On 7 May
2003 the prosecuting authorities indicted the applicant, the charge being reduced
to using forged documents contrary to Article 316 of the Criminal Code (see
Relevant domestic law below).
Following a query by the President of the
Kazanluk District Court, on 5 June 2003 the Supreme Court of Cassation ordered
that the case be transferred to the Nova Zagora District Court, which was in
another judicial region, because that would obviate the need for judges to
withdraw from the case even at the appellate level.
On 1 July 2003 the applicant objected to the
indictment. He argued, inter alia, that he had filed the copies of the
documents in order to illustrate the impossibility of subjecting photocopies to
graphological testing.
The trial took place on two dates over the
summer of 2003.
In a judgment of 30 September 2003 the Nova
Zagora District Court found the applicant guilty. Instead of imposing a penal
sentence, it replaced his criminal liability with an administrative fine of 500
Bulgarian levs (BGN). It further ordered him to pay the civil parties non-pecuniary
damages in the following amounts: BGN 10,000 to the judge (the full amount
claimed), BGN 5,000 to the counsel, BGN 1,200 to the director of the forestry
office, and BGN 700 to the official of that office.
In reaching its decision, the District Court
found that the applicant had knowingly used false documents with a view to improving
his procedural position in the case against the forestry office. Since there
was no proof that he had made the documents, he could not be held liable for
that. In using them, however, he had understood the unlawful character of his
actions and had wished for negative consequences to occur in order to win the
civil case. His act was particularly serious, because he had undermined the
integrity of the judicial process. Moreover, further aggravating factors included
the high amounts mentioned in the documents and the fact that they had been
linked with the professional capacities of the individuals mentioned in them.
In assessing the quantum of damages, the court
noted that the applicant was unemployed and did not own any property, which
militated in favour of a minimal fine. However, concerning the judge’s claim
for damages, the court found that the applicant’s act had injured her
reputation and lowered her professional standing. The declaration purportedly
emanating from her had become known to all judges and staff members of the
court in which she worked, as well as to those members of the court which had
examined the appeal against her ruling. It had also become known to the
investigators and prosecutors who had dealt with the criminal case against the
applicant. The judge had been serving for seventeen years, eleven of which as a
president of the court; for that reason the allegation that she acted
unlawfully when hearing cases had been particularly injurious. The applicant’s
act had also impaired society’s trust in the judicial system, at a time when it
was being subjected to many criticisms.
The applicant appealed on the ground that there
was insufficient evidence to support the court’s conclusions. He asked the
court to order the prosecution to produce the originals of the impugned
documents, with a view to their graphological examination, and sought leave to
re-question the claimants and the experts and to call witnesses and adduce
further evidence. Finally, he requested that counsel be appointed for him.
In a decision of 11 November 2003 the Sliven Regional Court held that there was no need for an expert examination of the
signatures on the documents, as the applicant was not charged with forging them
but merely with using them. In any case, it was impossible to enjoin the prosecution
to produce the originals, as this could obviously not be done without the
assistance of the person who had used the photocopies. No re-questioning
was necessary, because the applicant had been given the opportunity to ask
questions at the trial, but had failed to do so. Finally, it was impossible to
assess the need for further witnesses, as the applicant had not indicated their
identity.
The court also refused to appoint counsel for
the applicant. It noted that he could not afford one, but held that the
interests of justice did not require that he be provided with free legal
assistance, as he held a university degree and the charges against him were not
very serious.
In a brief filed on 1 December 2003 the
applicant argued that the lower court had erred in the assessment of the
evidence and had made arbitrary findings of fact. In particular, it had not
specified on what basis it had concluded that the applicant had used the
documents to win the civil case, seeing that he had not claimed the sums
mentioned in them, but had merely employed them to illustrate a theoretical
assertion. The court had also given reasons bordering on the absurd in
determining the gravity of the offence, and had impermissibly dealt with the
civil-party claims.
In a final judgment of 9 December 2003 the Sliven Regional Court upheld the lower court’s judgment. It held that it had properly
admitted and analysed the evidence, had not omitted to gather relevant
evidence, had made accurate findings of fact, and had correctly concluded that,
by using false documents to win the civil case, the applicant had committed the
offence with direct intent. There had been no material breaches of the rules of
procedure. In particular, it had not been erroneous to try the applicant and
only then give him an administrative punishment, nor to examine the civil
claims against him, because all damage directly flowing from the offence - in
this case, the claimants’ moral suffering - was subject to reparation. Nor had
the court erred in determining the quantum of damages.
II. RELEVANT DOMESTIC LAW
Article 316 of the 1968 Criminal Code provides
that whoever uses a false document, but cannot be prosecuted for its forgery,
is punishable with up to two years’ imprisonment.
Points (1) to (6) of Article 70 § 1 of the 1974
Code of Criminal Procedure listed certain situations in which an accused who
could not retain counsel had to be provided with court-appointed counsel.
None of these situations were relevant to the facts of the present case. On 1
January 2000 a new point (7) was added as part of a comprehensive overhaul of
the Code intended to bring it into line with the Convention. It was based on Article 6 §
3 (c) of the Convention and provided that the appointment of counsel was compulsory
if the accused could not afford it but wished to be legally represented and the
interests of justice so required.
In appeal proceedings, the courts are prohibited
from worsening the situation of the accused in the absence of a prosecution
appeal (Articles 333 § 4, 334 § 2, and 335 § 2 of the 1974 Code of
Criminal Procedure).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) OF THE
CONVENTION
The applicant complained that the failure to
provide him with legal assistance violated his rights under Article 6 § 3 (c) of
the Convention, which reads as follows:
“Everyone charged with a criminal offence has the following
minimum rights:
...
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice so require.”
The Government contested that argument.
A. Admissibility
The Government argued that the applicant could
have submitted further evidence to the Sliven Regional Court and, if it
considered the evidence to be cogent and sufficient, it could have reconsidered
its order of 11 November 2003. Consequently, they submitted that the complaint
was inadmissible as the applicant had failed to exhaust domestic remedies as required
by Article 35 § 1 of the Convention.
The applicant disputed the Government’s argument
on the ground that there was no specific right of appeal against the order of
11 November 2003.
The Court recalls that the
rule of exhaustion of domestic remedies in Article 35 § 1 of the Convention
requires applicants first to use the remedies provided by the national legal
system, thus dispensing States from answering before the Court for their acts
before they have had an opportunity to put matters right through their own
legal system. The burden of proof is on the Government claiming non-exhaustion
to satisfy the Court that an effective remedy was available in theory and in
practice at the relevant time, namely, that the remedy was accessible, capable
of providing redress in respect of the applicant’s complaints and offered
reasonable prospects of success (see T. v. the
United Kingdom [GC], no. 24724/94, § 55, 16 December 1999). Article 35 must also be applied
to reflect the practical realities of the applicant’s position in order to
ensure the effective protection of the rights and freedoms guaranteed by the
Convention (see Hilal v. the United
Kingdom (dec.), no. 45276/99, 8 February
2000).
. Moreover,
the Court further recalls that, where several remedies are available, the
applicant is not required to pursue more than one (see, among other
authorities, Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009). Likewise, an applicant
cannot be expected to continually make applications to the same body when
previous applications have failed (see N.A. v. the United
Kingdom, no. 25904/07, § 91, 17 July 2008).
. In the present case, the Court
observes that the “remedy” alluded to by the Government is not in fact an
appeal to a higher court, but rather a request to the same court to review its
earlier decision. As indicated in paragraph 30 above, Article 35 § 1 of
the Convention generally does not require applicants
to make further applications to a court or other body which has already
rejected a previous application. Moreover, the Court observes that as the Sliven Regional Court had accepted that the applicant did not have the means to pay for legal
assistance, the only element of the decision that he could have challenged was
the finding that the provision of legal assistance was not in the interests of
justice. As this was a question of law rather than a question of fact, it is
difficult to imagine what kind of evidence he could have submitted to the Regional Court to encourage it to reconsider its order of 11 November 2003.
Consequently, the Government have not satisfied
the Court that an effective remedy was available in
theory and in practice at the relevant time, which was accessible, capable of
providing redress in respect of the applicant’s complaints and offered
reasonable prospects of success. It therefore rejects the Government’s
submission that the applicant has failed to exhaust domestic remedies.
. The
Court further notes that the complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the
Convention. Furthermore, as it is not
inadmissible on any other grounds, it must be declared admissible.
B. Merits
The applicant complained that the Regional Court’s decision not to appoint counsel for him violated his rights under Article 6
§ 3 (c) of the Convention. In particular, he complained that as an unemployed
person with no income, he could not afford to appoint his own defence counsel.
He further complained that the interests of justice required that defence
counsel be appointed on his behalf. In this regard, he submitted that the
offence with which he was charged was serious and, pursuant to the Criminal
Code, carried a sentence of up to two years’ imprisonment. Finally, he argued
that the proceedings were sufficiently complex to require the appointment of
counsel by the court.
The Government submitted that the applicant had
not proved that he lacked the financial resources to appoint defence counsel.
They further submitted that the interests of justice did not require the provision
of free legal assistance in the present case because first, the case brought
against the applicant was neither serious nor complex; secondly, the applicant
was legally represented in the proceedings before the Nova Zagora District
Court, and no new evidence was produced before the Sliven Regional Court; thirdly,
the applicant was well-educated and in good health; and finally, unlike the
applicant in Raykov v. Bulgaria (no. 35185/03, 22 October 2009), the applicant in the present case did not
face the threat of deprivation of liberty as the Nova Zagora District Court had
already replaced the criminal liability with administrative liability.
The Court reiterates that the
right of those charged with criminal offences to free legal assistance is
subject to two conditions: the persons concerned must lack sufficient means to
pay for legal assistance, and the interests of justice must require that they be
granted such assistance (see, among other authorities, Pham Hoang v. France, 25
September 1992, § 39, Series A no. 243)
The Court notes that in spite of the arguments
raised by the Government in their observations, the Sliven Regional Court clearly
found that the applicant was unemployed and did not have sufficient resources
to appoint a defence counsel (see paragraphs 20 and 32 above). In any case, the
Court observes that the Government have not substantiated the claim made in
their observations that the applicant had, in fact, sufficient resources to
appoint counsel. Consequently, the Court accepts that the applicant lacked
sufficient means to pay for legal assistance.
As to whether the interests of justice required that
the applicant receive free legal assistance in the form of court-appointed
counsel, the Court recalls that it must have regard to the severity of the
sanction which the applicant might incur, the complexity of the case and the
personal situation of the applicant (see, for example, Quaranta v.
Switzerland, 24 May 1991, § 33, Series A no. 205). The Court has held that where deprivation of
liberty is at stake, the interests of justice in principle call for legal
representation and if the defendant cannot pay for it himself, public funds
must be available as of right (see Benham v. the United Kingdom,
10 June 1996, §§ 60-61, Reports of Judgments and Decisions
1996-III); however, that is not to
say that public funds do not have to be available where deprivation of liberty
is not at stake. (see, for example, Barsom and Varli v. Sweden
(dec.), nos. 40766/06 and 40831/06, 4 January 2008).
. In the present case, although the
applicant initially risked the imposition of a sentence of up to two years’
imprisonment, the Nova Zagora District Court did not impose a prison sentence
but instead fined him BGN 500 and, in response to the civil claims for
damages ordered him to pay the injured parties non-pecuniary damages totalling BGN
16,900. As the prosecution did not seek to appeal against this decision, the Sliven Regional Court could not have imposed a heavier penalty on the applicant.
Consequently, deprivation of liberty was not at stake in the proceedings before
the Sliven Regional Court. Nevertheless, the fine imposed on the applicant
amounted to approximately 250 euros (EUR), and the damages he was required to
pay amounted to more than EUR 8,000, which was a significant amount in view of
his financial situation.
. Moreover, although it is not in
dispute that the applicant had a university degree, there is no suggestion that
he had any legal training, and while the proceedings were not of the highest
level of complexity, the relevant issues included the rules on admissibility of
evidence, the rules of procedure, and the meaning of intent. In addition, the
Court notes that the applicant was charged with a criminal offence which
involved the impugnment of a senior member of the judiciary and which called
into question the integrity of the judicial process in Bulgaria. Furthermore, the domestic courts appear to have dealt with the civil claims for damages in
the course of the criminal proceedings. As such, a qualified lawyer would
undoubtedly have been in a position to plead the case with greater clarity and
to counter more effectively the arguments raised by the prosecution (see Artico
v. Italy, 13 May 1980, § 34, Series A no. 37). The fact that the applicant, as an educated man, might have been able to understand the proceedings does not alter the fact
that without the services of a legal practitioner he was almost certainly
unable to defend himself effectively (see Pakelli v. Germany, 25
April 1983, §§ 37-37, Series A no. 64, and Boner v. the United Kingdom,
28 October 1994, § 41, Series A no. 300-B).
The Court therefore accepts
that in the present case, the interests of justice demanded that, in order to
receive a fair hearing, the applicant ought to have benefited from free legal
representation during the proceedings before the Sliven Regional Court. Consequently,
there has been a violation of Article 6 § 3 (c) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
The applicant complained under Article 6 § 1 of the Convention that the proceedings against him were
unfair because the authorities failed to order an expert examination of the
forged documents; the Prosecutor indicted him instead of punishing him
administratively; the courts failed to analyse the evidence properly and made
arbitrary findings of fact; the courts failed to address his arguments; the
courts wrongly considered the civil claims in the course of the criminal
proceedings; the awards of damages were excessive; and the judges were biased.
Article 6 § 1 provides, in
so far as relevant:
“In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court has examined this complaint but finds, in the
light of all the material in its possession and in so far as the matters
complained of are within its competence, that it does not disclose any
appearance of a violation of the rights and freedoms set out in the Convention
or its Protocols.
. It
follows that this part of the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant further complained under Article
13 of the Convention in respect of the alleged violations of Article 6 § 1 and Article 6 §
3 of the Convention.
Article 13 of the Convention provides that:
“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.”
The Court has examined this complaint but finds,
in the light of all the material in its possession and in so far as the matters
complained of are within its competence, that it does not disclose any
appearance of a violation of the rights and freedoms set out in the Convention or
its Protocols.
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The applicant claimed 20,000 euros (EUR) in
respect of non-pecuniary damage and 16,900 Bulgarian levs (BGN) in
respect of pecuniary damage (representing the civil awards made against him).
The Government submitted that these claims were
unfounded and exaggerated.
In respect of the claim for pecuniary damage, the
Court observes that the applicant’s complaint to the Court under Article 6 § 3 (c)
of the Convention concerns the criminal proceedings only. The award of damages
was made by the judge in response to the civil claims brought by the injured
parties. Consequently, the Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore rejects this
claim. On the other hand, it accepts that the applicant must be considered to
have suffered some non-pecuniary damage as a result of the breach of his right
to legal assistance. It therefore awards the applicant EUR 1,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 2,626 for the
costs and expenses incurred before the Court.
The Government considers this sum to be
excessive.
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 the above criteria, the Court considers it reasonable
to award the sum of EUR 1,600 for costs and expenses in the proceedings before
the Court.
C. Default interest
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. Declares the complaint under Article 6 § 3
(c) of the Convention admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 3 (c) of the Convention;
3. Holds
(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 the currency of the respondent State
at the rate applicable at the date of settlement:
(i) EUR 1,000 (one thousand 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’s
claim for just satisfaction.
Done in English, and notified in writing on 6 November 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
