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FOURTH
SECTION
DECISION
Application no.
40265/04
Todor Kerezov GEORGIEV and Hriska Todorova
GEORGIEVA
against Bulgaria
The
European Court of Human Rights (Fourth Section), sitting on 10 May
2012 as a Chamber composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Päivi Hirvelä,
George
Nicolaou,
Ledi Bianku,
Zdravka
Kalaydjieva,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section Registrar,
Having
regard to the above application lodged on 19 October 2004,
Having regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Mr Todor Kerezov Georgiev and Ms Hriska Todorova
Georgieva, are Bulgarian nationals who were born in 1938 and 1953
respectively and live in Varna. They are represented before the Court
by Mr V. Panayotov, a lawyer practising in Varna.
A. The circumstances of the case
- The
applicants are father and daughter. The second applicant suffers from
severely impaired hearing, an anxiety disorder and hypochondria. In
2001 she was classified as 76% disabled and since then has been in
receipt of a disability pension. She lives with the first applicant.
- On
an unspecified date after 1997 the applicants were charged with
defrauding two individuals by purporting to sell them a flat which
they had already sold to others. In 2002, in the course of the trial,
the defrauded individuals brought claims for damages. It is unclear
whether at that stage of the proceedings the applicants were legally
represented.
- During
the trial the Varna District Court ordered an expert report on the
second applicant’s mental health at the time of the alleged
offence and on her fitness to stand trial. The experts, a
psychiatrist and a psychologist, stated that she suffered from an
anxiety disorder which presented as emotional instability and
irritability which, however, did not amount to psychosis, and
concluded that at the time of the alleged offence she had been able
to understand the nature of her actions and to control them. She was
also judged able to take part in the proceedings and to give
evidence. The experts further observed that she suffered from severe
hearing loss and difficulties in articulation due to missing teeth,
which had hampered their communication with her. On the basis of
previous medical reports in respect of the second applicant, the
experts also observed that her relations with the first applicant had
at times been strained.
- In
a judgment of 23 February 2004, the Varna District Court found both
applicants guilty of fraud and sentenced them each to two years’
suspended imprisonment. In addition, it ordered them to pay damages
to the civil parties.
- All
parties appealed. The first applicant and the civil parties were
represented by counsel, but the second applicant was not. In her
appeal, the second applicant alleged that her conviction was wrongful
and had been tainted by breaches of the rules of procedure, and that
her sentence was too harsh. At the hearing, which took place between
2.30 p.m. and 2.50 p.m. on 15 July 2004, the Varna Regional Court
appointed counsel for the second applicant with reference to Article
70 § 1 (2) of the Code of Criminal Procedure 1974 (see paragraph
14 below). However, it did not specify whether the appointment of
counsel was necessary because of the applicant’s mental
disorder or because of her hearing impairment.
- In
her closing speech, the court appointed counsel argued that the
sentence imposed on the second applicant was too harsh and should be
reduced in view of her state of health and the numerous mitigating
circumstances.
- In
a judgment of 29 July 2004 the Varna Regional Court upheld the
applicants’ conviction and sentence, as well as the award of
damages to the civil parties.
- On
6 August 2004 a court bailiff served notice of the judgment on the
second applicant, who undertook to transmit it to the first
applicant. However, according to the first applicant she did not do
so within the statutory fifteen-day time-limit for appealing on
points of law, which expired on 21 August 2004.
- On
9 September 2004 the first applicant requested the Varna Regional
Court to extend the time-limit for appealing on points of law. He
asserted that he had not been duly notified of the judgment, as
notice of it had been served solely on the second applicant, in
breach of the rules of procedure.
- The
Varna Regional Court examined the request at a hearing held on
19 September 2004. The first applicant was represented by
counsel. The second applicant was absent and was not legally
represented. The court, considering that the applicants had
conflicting interests and noting that the second applicant was
absent, decided to appoint counsel for her. In her closing speech,
the court-appointed counsel argued that the request was unfounded and
that the second applicant had not been negligent with regard to the
delivery of the notice to her father. The court observed that all
previous summonses and notices to the applicants had been served on
the second applicant in her capacity as the daughter of the first
applicant and not as a co-accused. This had been in line with the
relevant rules of procedure and there was no reason to find that the
notice in question had not been properly served.
- The
first applicant appealed against that ruling to the Supreme Court of
Cassation. The court heard the case on 18 January 2005. The public
prosecutor supported the appeal, arguing that it was open to doubt
whether the notice had really been transmitted to the first
applicant. He also said that extending the time-limit for appealing
on points of law would be consistent with the first applicant’s
defence rights.
- In
a final decision of 4 February 2005 the Supreme Court of Cassation
dismissed the appeal. It held that the notice of the Regional Court’s
judgment had been served in accordance with the applicable rules. The
second applicant was an adult. This fact, as well as her relationship
to the first applicant, had been noted in the certificate of service.
The applicants did not have conflicting interests. It was true that
the second applicant suffered from neurasthenia, but, according to
the expert report drawn up during the trial, this had not prevented
her from understanding the nature of her criminal act and bearing
responsibility for it. In their appeals against the first-instance
court’s judgment the applicants had not mentioned any
mental-health problems affecting the second applicant. Moreover, all
earlier notices and summonses to the first applicant had been served
on him through the second applicant without this being the source of
any problems.
B. Relevant domestic law
1. Court appointed counsel
- Article
70 § 1 (2) of the Code of Criminal Procedure 1974 (“the
CCP 1974”), as worded at the material time, provided that the
participation of defence counsel in the proceedings was mandatory if
the accused suffered from a physical or mental handicap preventing
them from conducting their defence in person. The participation of
counsel was also mandatory if two or more accused had conflicting
interests and one of them was legally represented (Article 70 §
1 (5)), or if the case was heard in the accused’s absence
(Article 70 § 1 (6)).
2. Service of process in criminal proceedings
- As
a rule, process had to be served personally (Article 160 § 1 of
the CCP 1974). If the addressee was absent, it could be handed to an
adult member of his or her household, and if there was no such
individual, to the building caretaker, a flatmate, or a neighbour, if
he or she undertook to deliver it to the addressee (Article 160 §
2). If the process was addressed to an accused and it was impossible
to serve it in the manner described it could be handed to his or her
defence counsel (Article 160 § 3). The process server had to
note on the receipt the name and address of the individual through
whom the process was being served, as well as his or her relationship
to the addressee (Article 160 § 7). An individual who undertook
to deliver process to the addressee and failed to do so could be
fined up to 500 Bulgarian levs (Article 162 § 2).
3. Extension of time
- A
statutory time-limit could be extended, after its expiry, if it had
been missed for a valid reason (Article 166 § 1 of the CCP
1974). The court had to examine the matter at a public hearing in the
presence of the parties (Article 166 § 6).
COMPLAINTS
- The
first applicant complained that the domestic courts had dismissed his
request for an extension of time for appealing on points of law.
- The
second applicant complained that she had not been provided with
practical and effective legal assistance in the proceedings before
the Varna Regional Court.
THE LAW
A. Alleged violation of Article 6 § 1 of the
Convention on account of the first applicant’s lack of access
to a review on points of law
- In
respect of his complaint the first applicant relied on Article 6 §
1 of the Convention, which 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
Government argued that the first applicant had been informed of the
judgment of 29 July 2004 through his daughter, the second applicant.
They maintained that the latter had been able to understand and
control her actions, and pointed out that she had transmitted to the
first applicant all previous letters and summonses from the courts.
The applicants lived together and had no conflicting interests in the
criminal proceedings against them. Lastly, the Government stated that
the applicants had never claimed before the domestic courts that the
second applicant had mental-health problems.
- The first applicant maintained that the second
applicant’s mental health had prevented her from appreciating
the importance of the notice that she had received on his behalf and
transmitting it to him. He argued that it had been unreasonable for
the authorities to entrust the transmission of notices addressed to
him to someone who not only had mental-health problems but also had a
similar status in the proceedings, that is, was a co accused. He
further argued that domestic law prohibited the second applicant, as
a co-accused, from representing him in the criminal proceedings, and
inferred that she had therefore also been prohibited from receiving
any communications addressed to him.
- The
Court notes that the first applicant submitted his appeal on points
of law after the charges against him had been determined by both the
Varna District Court and the Varna Regional Court as an appellate
court, each of which had full jurisdiction. The fairness of the
proceedings in those courts was not called into question before the
Court (see, mutatis mutandis, Brualla Gómez de la
Torre v. Spain, 19 December 1997, § 38, Reports of
Judgments and Decisions 1997 VIII).
- In
the instant case the domestic courts had to determine whether the
first applicant had shown any valid reasons for his failure to
observe the time-limit for appealing on points of law. Both the Varna
Regional Court and the Supreme Court of Cassation considered that
this was not the case. In particular, they noted that the second
applicant, who had undertaken to transmit the notice to the first
applicant, was an adult and her mental condition allowed her to bear
responsibility for her actions. The applicants had never claimed
otherwise. On the contrary, all earlier notices and summonses had
been delivered to the first applicant through her. The Court cannot
but agree with that reasoning, which it considers a relevant and
sufficient reply to the first applicant’s grievances. In
particular, it notes that the domestic authorities had no reason to
doubt the second applicant’s ability to transmit messages to
the first applicant. If the latter had feared that she might be an
unreliable link in the chain of his communication with the court, he
could have specified another address for correspondence or requested
that all summonses be sent to the address of his lawyer (see
paragraph 15 above). However, he contented himself with having all
correspondence delivered to his home address where the second
applicant also lived, and never showed any concern that she may
withhold a letter addressed to him. In these circumstances, the
domestic courts justifiably doubted his diligence in observing the
time-limit.
- The
Court therefore considers that the domestic courts’ refusal to
give the first applicant a second chance to appeal on points of law
did not amount to a limitation of his right to access to court. It
follows that the above complaint is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
B. Alleged violation of Article 6 of the Convention on
account of the quality of the second applicant’s legal
representation
- In
respect of her complaint the second applicant relied on Article 6 § 3
(c) of the Convention, which provides:
“3. 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 stated that the complaint was inadmissible. They pointed
out that the second applicant had never complained before the
domestic courts that any of her defence rights had been breached.
They further argued that the second applicant had been free to confer
with her court-appointed counsel, to participate in the proceedings
in person or to choose another lawyer to represent her. Relying on
the Court’s judgments in the cases of Kamasinski v. Austria
(19 December 1989, Series A no. 168) and Imbrioscia v. Switzerland
(24 November 1993, Series A no. 275), they stated that in the absence
of any manifest failure on the part of the court-appointed lawyer to
provide effective representation and without any complaints by the
second applicant to that effect, the domestic courts had not been
required to intervene.
- The
second applicant argued that her state of health had prevented her
from defending herself in person in the criminal proceedings against
her, and from understanding the case sufficiently, as well as from
interacting with others. However, her court-appointed lawyer had
failed to defend her effectively in that she had not raised any
relevant arguments before the Varna Regional Court and had failed to
appeal on points of law on her behalf.
- The
Court observes that the main point in issue in the present case is
whether and to what extent the late appointment of counsel for the
second applicant in the proceedings before the Varna Regional Court
impacted negatively on the quality of her defence. It notes, however,
the Government’s argument that the second applicant did not
complain to the domestic courts about any shortcomings in her
defence. In so far as this argument may be regarded as an objection
in respect of non-exhaustion of domestic remedies, the Court observes
that the second applicant did not seek an adjournment of the hearing
before the Varna Regional Court in order for her newly appointed
counsel to be able to acquaint herself better with the case file and
prepare her defence more thoroughly (see Murphy v. the United
Kingdom, no. 4681/70, Commission decision of 3 October 1972,
Collection 43, p. 1, and Tsonyo Tsonev v. Bulgaria (no. 2),
no. 2376/03, § 35, 14 January 2010), nor did she try to
appeal against that court’s judgment or raise the point before
the higher court (see, mutatis mutandis, Twalib v. Greece,
9 June 1998, § 41, Reports of Judgments and Decisions
1998-IV, and contrast, mutatis mutandis, Bogumil v.
Portugal, no. 35228/03, §§ 29, 30 and 49 in
limine, 7 October 2008). The Court is not persuaded that it would
have been impossible or impracticable for her to do so. It does not
appear that she was so severely handicapped as to be unable to adopt
either of these courses of action, for two reasons. Firstly,
according to the expert report drawn up in the course of the
proceedings she suffered from an anxiety disorder (and not from a
more serious mental handicap – contrast, mutatis mutandis,
Megyeri v. Germany, 12 May 1992, §§ 24-27, Series A
no. 237-A), and that disorder did not prevent her from understanding
her actions and controlling her conduct. It is true that the Varna
Regional Court found it necessary to appoint counsel for her.
However, it did not give reasons for its decision. Article 70 §
1 (2) of the CCP 1974, on which it relied, referred both to mental
and physical handicaps (see paragraph 14 above). While the second
applicant did indeed have a mental disorder, the more immediate
problem was her hearing which was so impaired that it must have
affected her ability to participate at the court hearings and is
likely to have motivated the court to appoint counsel. Secondly, she
had herself earlier appealed against the first-instance court’s
judgment, raising a number of arguments against her conviction and
sentence (see paragraph 6 above).
- It follows that this complaint must be declared
inadmissible under Article 35 §§ 1 and 4 for failure to
exhaust domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President
