FOURTH SECTION
DECISION
Application no. 23603/05
Rumen Rumenov HINOV
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 14 May 2013 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 20 June 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Rumen Rumenov Hinov, is a Bulgarian national, who was born in 1967 and lives in Sofia. He was represented before the Court by Ms K. Trifonova, a lawyer practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. At the relevant time the applicant was a practising lawyer and a member of the Kyustendil Bar Association (“the KBA”).
1. Suspension of the applicant from the KBA
5. On 1 December 2004 the Council of the KBA, relying on section 23(1) of the Bar Act 2004 (see paragraph 15 below), decided to suspend the applicant’s membership because a charge had been brought against him for aggravated hooliganism, an offence under the Criminal Code of 1968.
6. The applicant submitted that on one occasion he was prevented from defending a client in proceedings before the domestic courts because of the suspension.
7. The applicant appealed against his suspension to the Supreme Bar Council. He argued, most notably, that the measure had breached the presumption of innocence and his constitutionally-guaranteed right to work.
8. On 25 March 2005 the Supreme Bar Council upheld the KBA’s decision.
9. Upon further appeal by the applicant, who reiterated the above-mentioned arguments, by a judgment of 27 February 2006 the Supreme Court of Cassation quashed the applicant’s suspension, noting that as of 24 May 2005 the Bulgarian Parliament had repealed the relevant part of section 23(1) of the Bar Act as being contrary to the Constitution. The Supreme Court of Cassation also noted that the legal power to suspend an individual from exercising professional activities pending the outcome of criminal proceedings against him was regulated by Article 154(1) of the Code of Criminal Procedure (see paragraph 17 below), which was the constitutionally sound way to achieve the aim pursued by that measure.
10. Meanwhile, on 30 May 2005 the Supreme Bar Council notified the applicant that following the repeal of the relevant part of section 23(1) of the Bar Act he was again eligible to practise his profession. On 2 June 2005 the Council of the KBA formally revoked its decision of 1 December 2004.
2. Criminal proceedings against the applicant
11. Between 2004 and 2010 the applicant was convicted on eight occasions of a variety of offences, such as theft, hooliganism, making false accusations and perjury, most of which were committed between 2002 and 2004. As of 2011 there were other criminal proceedings pending against him.
12. In particular, in the criminal proceedings which led to the applicant’s suspension from the KBA, by a judgment of 5 December 2007, in force as of 23 June 2008, the Sofia District Court convicted the applicant of aggravated hooliganism and sentenced him to three years’ imprisonment.
13. On several occasions in 2007 the applicant was remanded in custody in connection with the criminal proceedings against him. He was imprisoned in Sofia Prison from 15 November 2007 to 21 September 2011 to serve an aggregate prison sentence in respect of a number of his convictions.
14. On the basis of the applicant’s convictions, on 26 February 2007 the KBA struck him off the list of its members.
B. Relevant domestic law
15. Section 23(1) of the Bar Act 2004 as originally enacted provided that barristers’ practising rights were to be temporarily suspended in the event, inter alia, that they were charged with a criminal offence.
16. On 11 May 2005 the Bulgarian Parliament, acting on the initiative of a group of its members, repealed that part of section 23(1). The members of Parliament who initiated the amendment argued that suspension while criminal charges were pending was contrary to the Constitution, which provided that everyone was innocent until proved guilty, and that the right to practise a profession was guaranteed and protected by law. The repeal entered into force on 24 May 2005.
17. Article 154 of the Code of Criminal Procedure 1974, in force until April 2006, provided that in the event that criminal charges were brought for an offence which related to the accused individual’s professional activity, and where the accused’s professional position could prevent the establishment of the facts, the first-instance court could, upon the prosecutor’s request, suspend the individual from his position. The measure was to be discontinued when it was no longer considered justified.
COMPLAINTS
18. The applicant, relying on Article 1 of Protocol No. 1, complained that the suspension of his right to practise as a barrister in the period from 1 December 2004 to 24 May 2005, which he considered to have been unlawful, had resulted in the complete loss of his client base, and hence in the loss of his income.
19. Relying on Article 6 § 2 of the Convention, the applicant also complained that he had been punished for an offence without having been convicted by a court and that this had damaged his reputation as a lawyer.
20. Lastly, the applicant complained under Article 13 of the Convention that because of the automatic nature of the suspension provided by section 23(1) of the Bar Act 2004 he had lacked effective remedies in respect of the alleged violations.
THE LAW
21. The applicant complained under Article 1 of Protocol No. 1 and Articles 6 § 2 and 13 of the Convention, which read as follows:
Article 1 of Protocol No. 1
“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.”
Article 6 § 2
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
Article 13
“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.”
22. In addition, the Court is of the view that Article 8 of the Convention and Article 4 of Protocol No. 7 to the Convention could also be applicable. These provisions read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 4 of Protocol No. 7
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. No derogation from this Article shall be made under Article 15 of the Convention.”
A. Arguments of the parties
23. The Government argued that the applicant was not a victim of the alleged violations of the Convention and its Protocols, because he had not suffered any specific damage as a result of the developments complained of. In addition, the Government considered that the applicant had abused his right to bring an application, because he had not informed the Court of the numerous criminal proceedings against him, about which the Government had sent information after the present application’s communication.
24. On the merits, the Government argued that in the present case there had not been any violations of the Convention. They pointed out that barristers had certain ethical obligations and responsibilities to society.
25. The applicant reiterated his complaints. He considered that the Government’s reference to his convictions and sentences was an attempt to “demonise” him and justify the violations of his rights that had occurred.
B. The Court’s assessment
26. The applicant complained, in the first place, under Article 1 of Protocol No. 1, that the suspension of his right to practise as a barrister had prevented him from exercising his profession and had led to the loss of his client base.
27. The Court considers that the applicant’s right to practise constituted a “possession” within the meaning of Article 1 of Protocol No. 1 (see, mutatis mutandis, Van Marle and Others v. the Netherlands, 26 June 1986, § 41, Series A no. 101, and Buzescu v. Romania, no. 61302/00, § 81, 24 May 2005).
28. However, the Court is not convinced that the applicant has established that the suspension amounted to an interference with the peaceful enjoyment of his possessions on the part of the authorities. The applicant stated that as a result of the measure he was prevented from representing a client in a set of proceedings before the domestic courts (see paragraph 6 above), but has not substantiated this statement. Even assuming that during the period in which the suspension remained into force, namely from 1 December 2004 to 24 May 2005, the applicant may have lost opportunities to attract clients, he has not shown that this was not due, for instance, to the damage to his reputation due to the number of criminal proceedings which were pending against him (see paragraph 11 above). Nor has he explained whether he was able to recover some of his client base once the suspension of his right to practise was lifted (see Malik v. the United Kingdom, no. 23780/08, §§ 106-108, 13 March 2012).
29. The considerations above are also applicable in respect of the applicant’s complaint that his reputation was damaged, which is most appropriately examined under Article 8 of the Convention. Once again, the applicant has not shown that, if his reputation did indeed suffer as a result of the facts complained of, this was not due to his own behaviour during the same period of time, which resulted in several criminal convictions (see paragraph 11 above).
30. It follows from the above 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.
31. The applicant complained, in addition, that he had been punished for an offence without having been convicted by a court. Applying, in the first place, Article 6 § 2 of the Convention, the Court is not convinced that the suspension complained of amounted to treatment of the applicant as being “guilty” of the offence with which he was charged, as the measure seems to have been of a mostly preventive character. While this was not specifically indicated in the Bar Act, the preventive nature of the similar measure provided for in Article 154 of the Code of Criminal Procedure (as in force at the time) was apparent (see paragraph 17 above). Moreover, the measure imposed on the applicant was not so intrusive as to be seen as anticipating any punishment which could be imposed on him (see, mutatis mutandis, Deweer v. Belgium, 27 February 1980, §§ 55-56, Series A no. 35). Thus the Court does not consider that the case raises an issue as regards the applicant’s right to be presumed innocent.
32. Nor can the applicant’s complaints be considered to raise a valid issue under Article 4 of Protocol No. 7, because, as already mentioned, the applicant has not shown that the measure against him amounted to a “punishment” for an offence imposed in criminal proceedings (see, mutatis mutandis, R.T. v. Switzerland (dec.), no. 31982/96, 30 May 2000).
33. Accordingly, this part of the application is manifestly ill-founded as well and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
34. Lastly, given that it has dismissed the complaints above, the Court does not consider that the applicant had an “arguable claim” under Article 13 of the Convention. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy