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
1. 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
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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
14. 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
15. 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
16. 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
17. The first applicant complained that the domestic courts had dismissed his request for an extension of time for appealing on points of law.
18. 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
19. 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 ...”
20. 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.
21. 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.
22. 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).
23. 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.
24. 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
25. 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...”
26. 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.
27. 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.
28. 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).
29. 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 EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy