CASE OF KONSTANTIN STEFANOV v. BULGARIA

FOURTH SECTION

CASE OF KONSTANTIN STEFANOV v. BULGARIA

(Application no. 35399/05)

JUDGMENT

STRASBOURG

27 October 2015

FINAL

27/01/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Konstantin Stefanov v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Paul Mahoney,
Krzysztof Wojtyczek,
Yonko Grozev, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 6 October 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 35399/05) 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 Konstantin Stefanov Stefanov (“the applicant”), on 20 September 2005.

2. The applicant was represented by Mr M. Neykov, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova, from the Ministry of Justice.

3. The applicant alleged, in particular, that his right to peaceful enjoyment of his possessions was breached as a result of not receiving a fee for legal work and of being fined unlawfully during court proceedings in which he had been selected to act as legal aid defence counsel.

4. On 24 May 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1974. He is a lawyer who lives and practises in Plovdiv.

6. The facts of the case may be summarised as follows.

7. At the beginning of 2005, in the course of criminal proceedings against N.R. and another individual on charges of aggravated theft, punishable by imprisonment of up to fifteen years, the Plovdiv District Court (“the District Court”) decided that in the interests of justice two lawyers should be appointed defence counsel for the two accused, who could not afford to pay for a lawyer but wished to be legally represented.

8. The District Court sent a request to the Plovdiv Bar asking them to nominate two lawyers as defence counsel to represent the accused. The letter stated, inter alia, that the counsel’s remuneration would be determined in accordance with the Ordinance of the National Bar Council on Lawyers’ Minimum Remuneration 2004 (“the Remuneration Ordinance”).

9. In a letter of 31 May 2005, sent to the applicant and the District Court, the Plovdiv Bar nominated the applicant to represent N.R. The letter contained the following text:

“In accordance with section 44 of the Bar Act, you must act as defence counsel ... and appear at the hearing in the court proceedings. Failure to comply may result in disciplinary action under the Bar Act and civil liability vis-à-vis the parties [to the criminal proceedings].

In its decision to appoint [you as] defence counsel, the [criminal] court ... must set [your] remuneration in an amount not lower than the minimum provided for in the Remuneration Ordinance. Otherwise you must refuse to provide legal representation because you are at risk of a disciplinary [sanction] for breach of section 132 (6) of the Bar Act and the instructions of the National Bar Council ...”

10. The Plovdiv District Court held a hearing in the criminal case against N.R. on 10 June 2005. At the beginning of the hearing, at around 3.30 p.m., the court appointed the applicant as N.R’s counsel and invited him to state his position in respect of whether there was an obstacle to proceeding with the hearing or not.

11. The applicant replied that he would represent N.R. if the court undertook to comply with section 44(2) of the Bar Act, which in turn referred to the Remuneration Ordinance, and thereby determined his remuneration at or above the minimum 550 Bulgarian levs (BGN; the equivalent of approximately 280 euros (EUR)) provided for in law.

12. The presiding judge refused to determine the minimum remuneration at that point in time. He warned the applicant that he would fine him if he refused to act as counsel for the defendant.

13. Following this exchange, the applicant refused to represent the defendant and left the courtroom.

14. The court fined the applicant BGN 500 (approximately EUR 260). The decision imposing the fine referred to Article 269 § 7 of the Code of Criminal Procedure 1974 (see paragraph 33 below) and stated as follows:

“In the court’s view, the lawyers already appointed to serve as defence counsel should not have asked about their remuneration [at this stage of the proceedings]. The court would be in a position to estimate that amount only after the collection of all evidence and following the final oral pleadings. By raising the question of setting their remuneration at a minimum of BGN 550 before the examination of the case started, the [two lawyers] showed manifest disrespect for the court and were in breach of the Code of Criminal Procedure. Despite a warning, they did not comment, they refused to act as legal representatives nominated by the Plovdiv Bar upon this court’s request ... and left the courtroom. Seeing that in the present case the defendants must be legally represented ... the hearing will have to be adjourned owing to the unjustified absence of their defence counsel.

Therefore, [the applicant and the other lawyer] shall be fined BGN 500 each.”

15. Then the prosecutor requested a one-hour break so that new counsel could be found for the accused. He submitted that, in view of the principle of speediness of criminal proceedings and the fact that all witnesses and experts were there in the courtroom, the hearing should not be adjourned to a later date. The court granted the request and decided to proceed with the case at 4.40 p.m. on the same day.

16. The hearing was resumed as scheduled. The prosecutor asked the court to appoint another lawyer who was present in the courtroom as counsel for the accused and to give him time to get acquainted with the case file. The court granted the request.

17. At 4.55 p.m. the new lawyer stated that he had acquainted himself with the case and agreed to be appointed defence counsel. The court did so and proceeded with the case. The proceedings ended with a plea bargain agreement between the prosecutor and the defendants. The court set the replacement defence counsel’s remuneration at BGN 30 (about EUR 15).

18. On an unspecified date the applicant appealed against the fine imposed on him (see paragraph 14 above). He claimed that he had not been appointed by the District Court in accordance with the law. In particular, the court had been bound by law, specifically the Bar Act, to determine his remuneration in the actual decision to appoint him counsel (see paragraph 30 below); the court had also had to determine the amount according to the Remuneration Ordinance. By refusing to comply with those legal requirements, the court had breached the law. Therefore, the applicant’s refusal to act as counsel had been justified; he should not have been held responsible for the adjournment of the hearing and he had not acted disrespectfully. Consequently, he submitted, the fine had been unlawful.

19. On 11 July 2005 the Plovdiv Regional Court dismissed the applicant’s appeal against the fine in a final decision. It acknowledged that pursuant to section 44(2) of the Bar Act the remuneration to be paid to a court-appointed defence counsel had to be indicated in the order for his or her appointment and that it ought not be lower than the minimum provided for in the Remuneration Ordinance. However, the court found that it was only possible to determine the exact amount of remuneration to be paid at the end of the proceedings. The reason for this was that the Remuneration Ordinance provided for a lower amount in case of termination of the criminal proceedings by way of a plea bargain (see paragraph 28 below). The court could not predict the outcome of the proceedings at their outset. Therefore, the applicant’s insistence on a prior determination of his fee was contrary to section 44 of the Bar Act. The applicant had thus caused an unjustified adjournment and had rightly been fined under Article 269 § 7 of the Code of Criminal Procedure. The court finally held that the amount of the fine was proportionate to the gravity of the offence.

II. RELEVANT DOMESTIC LAW

A. Appointment of defence counsel by a court

20. Article 70 of the Code of Criminal Procedure 1974 (“the 1974 CCP”) contained a list of circumstances requiring the appointment of counsel by the court. These included, among others, a situation where the accused wished to be legally represented and there was another accused with conflicting interests who had already retained counsel (Article 70 § 1 (5) in relation to Article 70 § 2 of the 1974 CCP). The appointment of counsel was also compulsory when the accused could not afford to – but wished to – be legally represented and the interests of justice so required (Article 70 § 1 (7) of the 1974 CCP). Apart from the circumstances envisaged in Article 70 of the 1974 CCP, the court was under a duty to appoint counsel when the accused was unrepresented and the prosecutor had proposed a plea bargain agreement (Article 414к of the 1974 CCP). Similar provisions appear in the Code of Criminal Procedure (“the CCP”) which came into force in 2006 (Articles 94 § 1 and 384 of the 2006 CCP).

21. Where a court examining a criminal case decides to appoint a defence counsel, the relevant Bar Council is informed and selects one of its members for the task, proposing him or her for appointment by the court hearing the case in question (section 44 § 2 of the Bar Act).

22. On 1 January 2006 the provisions concerning the appointment of counsel were amended and became part of the newly adopted Legal Aid Act (sections 21 to 26). Under the new regime, once legal aid is granted, the legal-aid board sends a copy of its decision to the local Bar Council, which nominates a lawyer to be appointed as counsel for the accused (section 25 § 4).

B. Circumstances in which an appointed counsel may resign

23. Section 44(1) of the Bar Act provides that defence counsel appointed by the court is under a duty to act for the accused.

24. Legal counsel, whether appointed by the accused person or by the court, are entitled to resign their duties solely in a situation where “objective reasons” render their discharge “impossible” (section 35 of the Bar Act and Article 71 of the 1974 CCP).

C. General rules on minimum legal fees

25. Lawyers are not allowed to charge fees lower than those determined by the National Bar Council. They may offer their services pro bono to, inter alia, persons of modest means (sections 36(2) and 38(1) of the Bar Act).

26. At the relevant time the minimum fees were set out in the Remuneration Ordinance.

27. The minimum fees differed according to the type of legal work and the relevant stage of the proceedings (sections 12-16 of the Remuneration Ordinance in respect of criminal proceedings).

D. Legal fees payable to court-appointed lawyers

28. At the relevant time, in accordance with section 44(2) of the Bar Act, the courts were under a duty to determine the fees for court-appointed defence counsel in amounts not lower than those set out in the Remuneration Ordinance. The Remuneration Ordinance stipulated that the fee for legal representation in cases where the offence was punishable with up to fifteen years was BGN 550. In a case where the proceedings were terminated by a plea bargain agreement, the amount was BGN 150.

29. With the adoption of the Legal Aid Act, in force as of 1 January 2006, the Remuneration Ordinance no longer applied to court-appointed legal representation. In line with this new legislation the Council of Ministers adopted an Ordinance for the Reimbursement of Legal Aid 2006 (“the Legal Aid Ordinance”) which set out specific rules governing the remuneration of court-appointed counsel and provided for both minimum and maximum amounts of payment. The Legal Aid Act introduced a new system for processing the actual payment of court-appointed defence counsel’s fees which, until it came into force, had been payable from the court’s budget.

E. When fees due to court-appointed counsel are determined

30. At the relevant time section 44(2) of the Bar Act provided that a court’s decision to appoint a lawyer should indicate the amount of his or her remuneration.

31. As from 1 January 2006, the new relevant provisions of the Legal Aid Act no longer require that the counsel’s remuneration be indicated in the court’s decision for his or her appointment (section 25 §§ 1 and 4). Under the new system, at the conclusion of the criminal proceedings the court-appointed lawyer prepares a report for the work done, certified by the relevant Bar Council, and submits it to the National Legal Aid Bureau. The Bureau pays counsel’s fees in accordance with the type and quantity of the work done, within the limits envisaged in the Legal Aid Ordinance. It is not bound by the counsel’s report and may determine a higher or lower amount (sections 37-39 of the Legal Aid Act and sections 1-12 of the Legal Aid Ordinance). The Bureau may also refuse to pay if faced with a case of misconduct or lack of necessary diligence (section 4 of the Legal Aid Ordinance).

F. Fines imposed by the presiding judge

32. Section 103 of the Judicial System Act 1994, as in force at the relevant time, provided that during hearings the presiding judge was responsible for maintaining order; the judge could issue binding orders and sanction those acting in breach of the established rules, in accordance with the applicable procedural law. The same rules are reproduced in the Judicial System Act 2007.

33. In accordance with Article 269 § 7 of the 1974 CCP, as in force at the relevant time, when a hearing was postponed as a result of a failure of a party to appear, the presiding judge could impose a fine of up to BGN 500 on the party in question.

G. Disciplinary measures by Bar Councils against lawyers

34. According to section 132 (6) of the Bar Act it is a disciplinary offence to act as counsel for an accused in contravention of the conditions provided for by the law. Section 133 of the Bar Act lists the different types of disciplinary punishments applicable to lawyers. These include a reprimand, a fine of up to eight times the minimum salary in the country, and suspension from the bar for periods ranging from three months to five years.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

35. The applicant complained that, by not paying his legal representation fee and by fining him, the Plovdiv District Court had breached his right to peaceful enjoyment of his possessions as provided in Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

1. The Government’s submissions

36. The Government submitted, first, that the applicant’s complaint about the legal fee was inadmissible as he himself had been responsible for not receiving the fee in question. Given that he had voluntarily chosen not to carry out the work required for payment of the legal fee, he did not have a claim in respect of receiving payment.

37. Secondly, as regards the complaint related to the fine, the Government asserted that the applicant had suffered no significant disadvantage and so that complaint should be dismissed. This was because the size of the fine imposed on him was small and he had not shown that it had negatively affected his financial situation.

2. The Applicant’s submissions

38. The applicant disagreed. In particular he pointed out that he had been unlawfully deprived of the fee for representing a defendant in a criminal case which was due to him under domestic law.

39. Furthermore, by fining him the authorities had breached his right to peaceful enjoyment of his property.

40. Lastly, neither the size of the fee which he did not receive nor of the fine could be described as negligible. Quite apart from their monetary value (EUR 280 for the legal fee and EUR 260 for the fine), neither of which was insignificant in itself, both represented a clear lack of respect by the court to the applicant and that had affected him negatively.

3. The Court’s assessment

(a) Fee for legal representation

41. The Court reiterates that Article 1 of Protocol No. 1 to the Convention applies only to a person’s possessions (see Marckx v. Belgium, 13 June 1979, § 50, Series A no. 31, and Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 64, ECHR 2007‑I [GC]) which can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], § 61; Von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74 (c), ECHR 2005‑V; and Kopecký v. Slovakia [GC], no. 44912/98, § 35 (c), ECHR 2004‑IX). Importantly, Article 1 of Protocol No. 1 to the Convention does not guarantee the right to acquire property (see Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002‑II (extracts), and Kopecký, cited above, § 35 (b)). Future income constitutes a “possession” only if the income has been earned or where an enforceable claim to it exists (see Ian Edgar (Liverpool) Ltd v. United Kingdom (dec.), no. 37683/97, 25 January 2000; Wendenburg v. Germany (dec.), no. 71630/01, 6 February 2003; Levänen and Others v. Finland (dec.), no. 34600/03, 11 April 2006; Anheuser-Busch Inc, cited above, § 64; and N.K.M. v. Hungary, no. 66529/11, § 36, 14 May 2013).

42. In the present case the Court observes that the applicant chose of his own volition not to perform the work required for the fee to be paid. Having been told by the presiding judge that the fee would not be set at the beginning of the hearing, the applicant chose to leave the courtroom and opt out of his role as court-appointed defence counsel. He therefore neither earned the future fee nor did he have a claim to it on different grounds.

43. 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.

(b) In respect of the fine

44. The Court notes that whether the applicant has suffered any significant disadvantage represents the main element of the criterion set forth in Article 35 § 3(b) of the Convention (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010; see also Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). Inspired by the general principle de minimis non curat praetor, this admissibility criterion rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev, cited above). In other words, the absence of any significant disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Adrian Mihai Ionescu, cited above). The Court observes in this connection that it has previously considered the pecuniary loss of some EUR 90 allegedly sustained by the applicant in the case of Adrian Mihai Ionescu (cited above) as not attaining the required level of significance. It has also assessed as negligible a pecuniary loss of some EUR 0.5 allegedly sustained by the applicant in the case of Korolev, cited above.

45. In respect of the Government’s position that the applicant in the present case had not suffered a significant disadvantage as the fine’s size was negligible, the Court notes the following. The applicant was fined approximately EUR 260 by the domestic courts in the context of a criminal case to which he had been assigned to act as defence counsel for one of the accused. Neither party submitted information about the applicant’s financial situation. The Court observes that, according to a study commissioned by the European Observatory of Working Life (a European Union agency), the minimum monthly salary in Bulgaria at the time of the facts was equivalent to about EUR 61. Even assuming that the applicant was a freelance lawyer whose earnings were not pegged to the minimum salary level, the Court considers the above information indicative of the general standard of living in the country at the time and, as such, of relevance.

46. The Court also notes that the fine, which is the subject of the complaint before it, was imposed on the applicant as a pecuniary sanction, or a penalty for what the domestic court considered was his disrespectful conduct during the case proceedings. Therefore, in addition to and apart from the applicant’s pecuniary interest in not having been fined, it is also necessary to take into account the fact that the issue of whether he had been fined lawfully concerned a question of principle for him, which was that of respect for his position as a lawyer in the exercise of his professional activities.

47. Under these circumstances the applicant cannot, in the Court’s view, be deemed not to have suffered a significant disadvantage.

48. The Court notes that the admissibility criterion set forth in Article 35 § 3 (b) of the Convention is applicable only when the applicant has suffered no significant disadvantage and provided that the two safeguard clauses contained in the same provision are respected. It follows that where it has not been determined that the applicant has suffered no significant disadvantage, this admissibility criterion does not apply (see Giuran v. Romania, no. 24360/04, § 24, ECHR 2011 (extracts)).

49. The Court accordingly dismisses the Government’s objection in respect of the fine. Noting that the applicant’s complaint in respect of the fine is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds, it declares it admissible.

B. Merits

1. The parties’ submissions

(a) The Government’s observations

50. The Government submitted that the fine imposed on the applicant cannot be considered to have unlawfully or disproportionately affected his “possessions”. In particular, the fine had been a financial sanction explicitly provided for in domestic legislation. The State was entitled to introduce control mechanisms of different types which included fines. The fine imposed on the applicant had been lawful, given that he had been a court‑appointed defence counsel at the time but had been absent from the hearing. The fine had also been proportionate to his conduct, given that it was a disciplinary punishment for unethical conduct and lack of respect displayed by the applicant towards the court. Lastly, by leaving the courtroom and by refusing to carry on representing the defendant, the applicant had caused an unjustified delay in the proceedings for which he had been rightly fined.

(b) The Applicant’s observations

51. The applicant submitted that the fine imposed on him had interfered with his right to peaceful enjoyment of his possessions and was not in accordance with the law.

52. He pointed out that the court had been obliged to indicate in the decision to appoint him defence counsel the fee he was going to receive. The fee could not be smaller than the minimum amount stipulated in the Remuneration Ordinance; if the court offered a smaller fee, the lawyer had to refuse to represent the defendant or otherwise risked sanctions by the Bar under section 132(6) of the Bar Act (see paragraph 9 above). The applicant argued that, as the court had failed to indicate the fee to be paid to him in the decision appointing him counsel, the court had not acted lawfully; therefore he had effectively not been appointed counsel before he was fined. He further pointed out that he had not failed to appear at the hearing; he had in fact turned up prepared to act for the defence and had only subsequently left because of the court’s unlawful refusal to guarantee a fee of no less than the legal minimum. For the above reasons, the applicant claimed, the fine had not been lawful.

2. The Court’s assessment

(a) General Principles

53. The Court points out that Article 1 of Protocol No. 1, which guarantees in substance the right to property, comprises three distinct rules. The first rule, expressed in the first sentence of the first paragraph, is of a general nature and lays down the principle of peaceful enjoyment of one’s “possessions”. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, contained in the second paragraph, recognises that States are entitled to, among other things, control the use of property in accordance with the general interest. The Court has repeatedly held that the second and third rules must be construed in the light of the general principle laid down in the first rule (see, among many other authorities, Grifhorst v. France, no. 28336/02, §§ 81-83, 26 February 2009).

54. The Court reiterates that any interference by a public authority with the peaceful enjoyment of possessions must be lawful. In particular, the second paragraph of Article 1 of Protocol No. 1, while recognising that States have the right to control the use of property, subjects their right to the condition that it be exercised by enforcing “laws”. Moreover, the principle of lawfulness presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, mutatis mutandis, Frizen v. Russia, no. 58254/00, § 33, 24 March 2005).

55. Further, a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see SCHNEIDER AUSTRIA GmbH v. Austria (dec.), no. 21354/93, 30 November 1994). The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Valico S.r.l. v. Italy (dec.), no. 70074/01, 21 March 2006). Consequently, a financial liability arising out of a fine may undermine the guarantee afforded by that provision if it places an excessive burden on the person or fundamentally interferes with his or her financial position (see Valico S.r.l., cited above). The fair balance requires procedural guarantees to establish the applicant’s liability whereby the applicant is afforded an adequate opportunity to put his or her case to the responsible authorities in order to plead, as the case might be, illegality or arbitrary and unreasonable conduct (see Yildirim v. Italy (dec.), no. 38602/02, 10 April 2003).

56. The Court reiterates also that it is primarily for the national authorities to decide what kind of taxes or contributions are to be collected. Such decisions will commonly involve the appreciation of political, economic and social questions which the Convention leaves within the competence of the Contracting States. The Court has repeatedly held that the margin of appreciation of the Contracting States in those areas is a wide one (see, among many other authorities, Gasus Dosier - und Fördertechnik GmbH v. the Netherlands, 23 February 1995, § 60, Series A no. 306‑B. See also, mutatis mutandis, in relation to fiscal policy, Baláž v. Slovakia (dec.), no. 60243/00, 16 September 2003).

(b) Application of those principles to the present case

57. The Court observes that the “possession” which forms the object of this complaint is a sum of money, that is to say the EUR 260 which was imposed as a fine on the applicant (see paragraphs 14 and 19). It considers that this measure amounts to an interference with the applicant’s right to peaceful enjoyment of possessions. Article 1 of Protocol No. 1 to the Convention is therefore applicable.

58. The fine constitutes a “penalty” within the meaning of the Convention. It therefore falls within the scope of the second paragraph of Article 1 of Protocol No. 1 which allows the Contracting States to control the use of property to secure the payment of, inter alia, penalties.

59. In respect of the “lawfulness” of the interference, the applicant submitted both in the national proceedings and before this Court, that he had not been appointed as legal counsel in accordance with the applicable law, as in the decision appointing him the national court failed to indicate the fee to be paid to him as ex officio counsel. This was something explicitly required by national law at the time. As the applicant had not been duly appointed counsel in the proceedings, in accordance with the applicable legal requirements, he could not have been fined for failing to appear and thus obstructing the judicial proceedings. The Government insisted that the applicant had been appointed counsel by the court before it fined him on the basis of Article 269 of the CCP and, therefore, that the fine was lawful.

60. The Court notes that, indeed, conflicting provisions existed under national law, regulating the appointment by the courts of ex officio legal representatives, and this gave rise to a dispute as to their proper interpretation. The dispute was about the time when legal fees of ex officio lawyers should be determined by the courts, as well as their amount. Section 44(2) of the Bar Act, applicable at the time, stipulated that the court had to indicate the amount of legal fee to be paid to counsel in the decision with which the court appointed that counsel to act in the proceedings. This was also explicitly confirmed by the domestic court before which the applicant appealed the disputed fine. The Bar Act further stipulated that the courts should follow minimum fees, as determined by the National Bar Council, something, which it appears the national courts have failed to do.

61. The Court notes in that respect, that it is not its role to interpret and define the precise meaning of national law, a task that clearly falls within the realm of the national courts (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 50, first sentence, 20 October 2011, with further references). It is eventually for the national courts to determine the lawfulness under national law of an impugned interference the Court’s role in that respect being limited. The Court further notes that conflicting legal provisions are an inevitable part of any legal system and that the purpose of the requirement of lawfulness, and consequently of clarity and foreseeability of the domestic law, is there to allow everyone to foresee, to a degree that is reasonable in the particular circumstances, the consequences which a given action may entail (see Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999‑III). Domestic legislation could not in any case provide for every eventuality and the level of precision required depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999‑VIII).

62. Taking into account those principles and the circumstances of the present case, the Court is not convinced, despite the apparent conflict between different provisions of domestic legislation, that the impugned fine was based on law that failed to meet Convention standards. It is of particular importance in the present case that the fine was imposed on a professional lawyer, by a trial court before which he was appearing in his professional capacity. Under those circumstances the applicant must have been fully aware of the ultimate responsibility of the judge presiding the judicial proceedings for their proper conduct. The applicant was instructed in no unclear terms by the domestic court that he was appointed as defense counsel, before he was fined for choosing to leave the court hearing. The domestic court fined the applicant specifically referring to a legal provision which was part of the Criminal Procedure Code, vesting ultimate authority for the proper administration of the proceedings in the judge. Given that the applicant was a lawyer, both this basic principle and the content and meaning of the particular provision of the CPC should have been sufficiently clear to him and the consequences of its application foreseeable. Any dispute about the remuneration of the applicant as an ex officio counsel could not have been expected to take precedence over the proper conduct of the judicial proceedings and those judicial proceedings could not have been expected to be the forum where such a dispute should be resolved.

63. In view of the above, the Court is prepared to accept that the applicant, as a representative of a party in criminal proceedings, was fined as a result of his absence from the hearing. As it cannot be said that the application of the law to the applicant’s situation was arbitrary, the Court finds that he was fined lawfully, that is to say on the basis of an accessible, clear and foreseeable legal provision.

64. Furthermore, the law pursued the legitimate aim of ensuring the smooth operation of the justice system (see Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, § 70, 10 May 2011 with further references to the importance of administering justice without delays which might jeopardise its effectiveness and credibility). The Court recognises that, undeniably, it is in the general interest of society to have a justice system which operates efficiently and this includes court proceedings unhindered by unjustified delays.

65. It remains to be determined whether a “fair balance” was struck between the demands of the general interest and the requirements of the protection of the applicant’s fundamental rights. In the present case, causing the postponement of the hearing without a valid reason, as established by the national courts, represented an obstacle to the smooth functioning of the justice system; courts are called upon to ensure the latter. The issue of whether the conduct leading to that obstacle should be punished by a financial sanction with a deterrent effect, such as the fine in the present case, comes within the margin of appreciation of the State. That margin is a wide one (see paragraph 56 above).

66. Importantly, the applicant had at his disposal a procedural guarantee by which to challenge the penalty, specifically a possibility to bring judicial review proceedings in respect of the fine. He made use of that remedy (see paragraph 18 above) and there is nothing to show that the decision-making process resulting in the fine complained of was unfair or arbitrary.

67. Lastly, although the fine imposed on the applicant was in the maximum possible amount under the relevant legal provision, it is neither prohibitive, nor oppressive or otherwise disproportionate (see for a similar approach Allianz-Slovenska-Poistovna, A.S., and Others v. Slovakia (dec.), no. 19276/05, 9 November 2010).

68. The Court points out that the situation in the present case has to be distinguished from cases which concern the right of lawyers to express themselves freely in their capacity as defence counsel; in those cases complaints have been made by applicants and examined by the Court under Article 10 of the Convention (see, for example, Nikula v. Finland, no. 31611/96, §§ 29-56, ECHR 2002‑II; see, more recently, Morice v. France [GC], no. 29369/10, § 174, 23 April 2015). In Nikula and Morice, both cited above, the applicants were convicted for having criticised respectively a prosecutor and a judge in a manner which the domestic courts found defaming. The Court held that the issue concerned the applicants’ freedom of expression; in Morice specifically it was part of a debate on a matter of public interest about the functioning of the justice system and in the context of a case which had received wide media coverage from the outset. In the present case, the applicant was sanctioned with a fine for having abandoned his duty to represent the accused; that duty stemmed from the fact that the court had appointed the applicant defence counsel and no objective reasons rendered the discharge of his legal representation duties impossible (see paragraphs 23 and 24 above).

69. In the circumstances of the present case, in view of all said above the Court finds that the authorities have struck a fair balance between, on the one hand, the general interest and, on the other, respect for the applicant’s right to property. The interference did not, therefore, impose an excessive burden on the applicant.

70. It follows that there has been no violation of Article 1 or Protocol No. 1 to the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

71. The applicant also complained that he had not had at his disposal an effective domestic remedy in connection with his complaint about the peaceful enjoyment of possessions, contrary to the requirement of Article 13 of the Convention. That provision reads as follows:

“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.”

72. The Government contested that argument.

A. Admissibility

73. The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible.

B. Merits

74. Having regard to its findings in respect of the procedural guarantees under Article 1 of Protocol No. 1 to the Convention which had been available to the applicant (see paragraph 66 above), the Court considers it unnecessary to examine this issue also under Article 13 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention;

3. Holds that there is no need to examine the complaint under Article 13 of the Convention.

Done in English, and notified in writing on 27 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıGuido Raimondi
              Deputy RegistrarPresident

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