BAYRAKOV v. BULGARIA - 63397/12 (Judgment : Right of appeal in criminal matters : Fifth Section Committee) [2020] ECHR 333 (14 May 2020)

JUDGMENT STRASBOURG 14 May 2020 This judgment is final but it may be subject to editorial revision. In the case of Bayrakov v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Ganna Yudkivska, President, Yonko Grozev, Lado Chanturia, judges, and Victor Soloveytchik, Deputy Section Registrar, Having regard to: the application 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 Evgeni Plamenov Bayrakov (“the applicant”), on 26 September 2012; the decision to give notice to the Bulgarian Government (“the Government”) of the complaint concerning the impossibility for the applicant to appeal against a court judgment sentencing him to short-term deprivation of liberty, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 21 April 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION The case concerns a complaint under Article 2 of Protocol No. 7. The applicant complained that he had been unable to appeal against a first­instance judgment, imposing on him a short-term deprivation of liberty for sport hooliganism. THE FACTS 1. The applicant was born in 1992 and lives in Sofia. He was represented by Ms T. Chobanova, a lawyer practising in Sofia. 2. The Government were represented by their Agent, Ms M. Dimova of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 25 March 2012 the applicant and other supporters of a Sofia football club travelled to Plovdiv to attend a football match. According to the accusation, upon their arrival they got into a fight with supporters of the opposing club and threw glass bottles and stones at passers-by. The police arrived and the applicant and other people were arrested. 5. Proceedings under the Preservation of Public Order During Sporting Events Act 2004 (hereinafter “the 2004 Act”, see paragraph 9 below) were opened against the applicant, and on the next day, 26 March 2012, he was brought before the Plovdiv District Court. 6. In a judgment of the same day the Plovdiv District Court found that the applicant was guilty of sport hooliganism, as defined in section 21 of the 2004 Act (see paragraph 10 below), and imposed on him the following punishments provided for under section 25(1) of the same Act (see paragraph 11 below): a fine of 300 Bulgarian levs (BGN, the equivalent of 153 euros - EUR), thirteen-day detention in a police facility, and a one-year ban on attending sporting events in Bulgaria and abroad. 7. The judgment stated that it was final. It was immediately enforced and the applicant was brought to a facility in Plovdiv, where he remained in detention until 8 April 2012. 8. In September 2012 the applicant applied for the reopening of the proceedings, arguing that they had concerned a “criminal charge” against him and had been in breach of Article 6 § 1 of the Convention. He complained also of the impossibility to appeal against the judgment of 26 March 2012, referring to the Constitutional Court’s judgment of 4 May 2011 (see paragraph 16 below). In a decision of 22 October 2012 a Vice‑President of the Supreme Court of Cassation refused to institute reopening proceedings, pointing out that sport hooliganism proceedings under the 2004 Act were not subject to reopening under the relevant provisions of the Code of Criminal Procedure. RELEVANT LEGAL FRAMEWORK I. The 2004 Act 9. The 2004 Act ( Закон за опазване на обществения ред при провеждането на спортни мероприятия ) provides for different measures for the preservation of public order during sporting events and for punishments for breaches of that order. 10. Under section 21 of the Act, the administrative offence of sport hooliganism ( спортно хулиганство ) is defined as disorderly conduct during or in relation to a sporting event, where such conduct does not constitute a criminal offence. Sport hooliganism comprises, among others, the uttering of swearwords and insults, the throwing of objects and the participation in a fight. 11. By section 25(1) of the 2004 Act, as worded at the relevant time, sport hooliganism was punishable by detention in a police facility for up to fifteen days, a fine of between BGN 200 (EUR 102) and BGN 500 (EUR 256), and a ban on attending sporting events during a period of up to two years. 12. At the relevant time, such measures were to be ordered by the respective district court, whose judgment would be final (section 34(1) of the Act). In August 2018 section 34(1) was amended and now provides that district courts’ judgments are subject to appeal before a regional court. II. The Decree on Combatting Minor Hooliganism and the judgment of the constitutional court of 4 may 2011 13. The Decree on Combating Minor Hooliganism ( Указ за борба с дребното хулиганство , hereinafter “the Decree”) was adopted in 1963. It defines acts of minor hooliganism, namely not amounting to the criminal offence of hooliganism, as, among others, uttering swearwords or insults in a public place, a quarrel or a fight that breach the peace. After 2004 the Decree is not applicable to acts of sport hooliganism (section 1(5)). 14. Under section 1(1) of the Decree, minor hooliganism, if perpetrated by persons older than sixteen, carry a penalty of up to fifteen days’ detention in a police facility or a fine. 15. Such penalties are to be decided upon by the district courts. Until May 2011 section 7 of the Decree provided that their judgments were final. 16. On 4 May 2011 the Constitutional Court declared the latter rule unconstitutional, finding in addition that it contradicted Articles 5 § 4 and 6 § 1 of the Convention. It observed in particular that minor hooliganism was an act of breach of public order and that it was punishable by deprivation of liberty, which meant that a person charged with such an offence was subject to a “criminal charge” within the meaning of Article 6 § 1 of the Convention ( Решение № 3 от 4.04.2011 г. на Конституционния съд по к. д. № 19 от 2010 г. ). 17. As a result, in November 2011 section 7 of the Decree was amended and now provides that district courts’ decisions to impose an administrative penalty may be appealed against before a regional court. III. practice of the domestic courts concerning the right to appeal under the 2004 act 18. In a judgment of 4 July 2011 the Sofia Administrative Court accepted for examination an appeal against a district court’s judgment imposing a punishment under the 2004 Act. It referred to the Constitutional Court’s judgment of 4 May 2011 (see paragraph 16 above) and found, for the same reasons as exposed therein, that section 34(1) of that Act providing for no such appeal contradicted the Constitution ( Решение № от .0 .20 на АССГ по д. № 3711/2011 г. ) . . In a judgment of 12 March 2012 the Sofia City Court also declared inadmissible an appeal against a district court’s judgment under the 2004 Act, dismissing comparable arguments ( Решение № от 1 .0 .20 на СГС по в. а. н. д. № 484/2012 г. ) . 21. Subsequently some regional courts started examining appeals against judgments of the district courts imposing punishments under the 2004 Act, considering that the arguments given by the Constitutional Court in its judgment of 4 May 2011 regarding the Decree were applicable by analogy to the 2004 Act, and that consequently section 34(1) of the Act, as worded before 2018, had to be held to contradict the Constitution, as well as Articles 5 § 4 and 6 § 1 of the Convention and Article 2 of Protocol No. 7. They noted that both the Decree and the 2004 Act concerned acts of minor hooliganism, the only difference being that the ones under the 2004 Act had been committed during sporting events. 22. The Government submitted several judgments in which the above conclusions were made, delivered between 3 December 2012 and 11 November 2013. The majority of them are of the Sofia City Court, and one is of the Silistra Regional Court ( Решение № 13 2 от . .20 г. на СГС по в. а. н. д. № 5245/2012 г. ; Решение № 1374 от 7. .20 г. на СГС по в. а. н. д. № 5037/2012 г. ; Решение № 1398 от 11. .20 г. на СГС по в. а. н. д. № 5244/2012 г. ; Решение от 15.04.20 3 г. на ОС Силистра по в. а. н. д. № 108/2013 г. ; Решение № 1281 от 11. 1.20 г. на СГС по в. а. н. д. № 3924/2013 г. ). In one of the cases it was noted that the judicial practice on the matter remained contradictory. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 of protocol no. 7 23. The applicant complained under Article 2 of Protocol. No. 7 that he had been unable to appeal against the Plovdiv District Court’s judgment of 26 March 2012. 24. Article 2 of Protocol No. 7 reads as follows: “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.” A. Submissions by the parties 25. The Government stated that soon after the Constitutional Court’s judgment of 4 May 2011 and the subsequent amendments to the Decree “the majority of the regional courts” had started examining appeals against judgments of the district courts imposing punishments under the 2004 Act. The Government thus argued that the applicant had failed to exhaust an available domestic remedy. 26. The applicant disagreed. He observed that, at the time when the judgment of 26 March 2012 he complained about had been given, the 2004 Act did not contain provisions permitting appeal against such judgments. B. Admissibility 27. While the Government phrased their argument that the regional courts had been examining appeals against district courts’ judgments under the 2004 Act as an objection of non-exhaustion of domestic remedies, the Court is of the view that the argument at issue pertains to the merits of the case. It will thus address it below (see paragraphs 31-34), and not under the heading of admissibility. 28. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. C. Merits 29. In the cases of Kamburov v. Bulgaria (no. 31001/02, 23 April 2009), Stanchev v. Bulgaria (no. 8682/02 , 1 October 2009) and Zhelyazkov v. Bulgaria (no. 11332/04 , 9 October 2012), the Court found violations of Article 2 of Protocol No. 7 on account of the impossibility before 2011 to appeal against district courts’ judgments imposing punishments for minor hooliganism under the Decree. It noted, firstly, that in view of the general nature of the administrative offence of minor hooliganism and the severity of the potential sanctions provided for in the Decree, including deprivation of liberty, the cases concerned the examination of a “criminal charge” against the applicants, within the meaning of Article 6 § 1 of the Convention, which meant also that Article 2 of Protocol No. 7 was applicable (see Kamburov , § 23, and Stanchev , § 45, with reference to further case-law). The Court found, secondly, that under domestic law as it stood before 2011 there had been no possibility to appeal against district courts’ judgments under the Decree (see Kamburov , § 24). Lastly, it noted that the cases did not concern “ offences of a minor character” within the meaning of Article 2 § 2 of Protocol No. 7, in particular since “minor” hooliganism under the Decree was punishable with deprivation of liberty (see Kamburov , §§ 25-26, Stanchev , §§ 47-48, and Zhelyazkov , §§ 43-44). 30. For the same reasons, the Court finds that the case at hand concerns the examination of a “criminal charge” against the applicant, which entails the applicability of Article 2 of Protocol No. 7. The close similarity between the situation under the Decree, discussed by the Court in the cases cited above, and that under the 2004 Act, which is at stake in the case at hand, has been underlined by the domestic courts (see paragraph 21 above), and the parties were not in disagreement on that point. 31. What the parties were in dispute about was whether any possibility to appeal against the Plovdiv District Court’s judgment of 26 March 2012 actually existed. 32. The Court observes in that regard that, at the time when the applicant was convicted under the 2004 Act, namely 26 March 2012, section 34(1) of that Act provided for no right to appeal against such a conviction (see paragraph 12 above). While by that time the Sofia Administrative Court had already accepted for examination an appeal in a case under the 2004 Act (see paragraph 18 above), in disregard of the prohibition under section 34(1), this alone cannot be indicative of an established practice of the national courts. It is significant that soon afterwards, and about the time when the applicant was convicted in March 2012, the Supreme Court of Cassation and the Sofia City Court refused to examine appeals against district courts’ judgments under the 2004 Act, basing themselves on the strict letter of the law (see paragraphs 19-20 above). 33. The Government submitted several judgments of the Sofia City Court and one judgment of the Silistra Regional Court, given between December 2012 and November 2013, where the courts accepted for examination appeals under the 2004 Act, after concluding that section 34(1) of that Act was unconstitutional and contrary to the Convention and refusing to apply it (see paragraphs 21-22 above). Once again however, the Court cannot accept this as an indication of a sufficiently established practice. Those courts themselves admitted that at the time the practice was inconsistent (see paragraph 22 above in fine ). It is also to be noted that the judgments at issue were given by two regional courts only, months after the applicant’s conviction of 26 March 2012. 34. The Court reiterates that the Convention is intended to guarantee rights that are practical and effective, and not theoretical or illusory (see, among other authorities, Waite and Kennedy v. Germany [GC], no. 26083/94 , § 67, ECHR 1999‑I, and Fırat v. Greece , no. 46005/11 , § 41, 9 November 2017) . The Court cannot thus conclude that at the material time - 26 March 2012 - a clear possibility to appeal against a district court’s judgment under the 2004 Act existed. Section 34(1) of the Act ruled that out and, in the particular case, the Plovdiv District Court stated expressly that the judgment of 26 March 2012 was final (see paragraph 7 above). While some second-instance courts found such a position contrary to the Constitution and the Convention and accepted to examine appeals, this mostly happened on later dates and at the material time there was no established domestic practice. 35. Lastly, the Court does not consider that the case at hand concerned an offence of a “minor character” within the meaning of Article 2 § 2 of Protocol No. 7. The Government have not argued that this was the case, and the Court reiterates its conclusions on that question concerning the Decree, summarised in paragraph 29 above. 36. Accordingly, the Court finds that there has been a violation of Article 2 of Protocol No. 7. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 37. 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 38. The applicant claimed unspecified pecuniary damage, stating that he had lost his job following his detention between 25 March and 8 April 2012. He claimed in addition EUR 20,000 for non-pecuniary damage. 39. The Government contested the claims. 40. The Court does not discern any causal link between the violation found, which only concerned the right to appeal against the applicant’s conviction under the 2004 Act, and the pecuniary damage alleged. It therefore rejects this claim. As to non-pecuniary damage, in view of the circumstances of the case, it awards the applicant EUR 1,700, plus any tax that may be chargeable. B. Costs and expenses 41. The applicant claimed EUR 2,500 for his lawyer’s fees. He presented a contract for legal representation stating that he had paid that sum to his representative before the Court. The applicant claimed another EUR 100 for translation, postage and copying. He presented invoices and receipts showing that he had paid for such services BGN 82 (EUR 42). 42. The Government contested the claims. 43. In view of the circumstances and in particular of the repetitive nature of the case, the Court awards EUR 700 covering costs under all heads, plus any tax that may be chargeable on the applicant. 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 application admissible; 2. Holds that there has been a violation of Article 2 of Protocol No. 7; 3. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 1,700 (one thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 700 (seven 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 14 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Victor Soloveytchik Ganna Yudkivska Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII