THIRD SECTION
DECISION
Application no. 3410/18
Vasil Kostov KANEV and YUVELIR 90 OOD
against Bulgaria
(see appended table)
The European Court of Human Rights (Third Section), sitting on 9 March 2023 as a Committee composed of:
Darian Pavli, President,
Ioannis Ktistakis,
Andreas Zünd, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having regard to the above application lodged on 11 January 2018,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. A list of the applicants is set out in the appended table. The applicants were represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms D. Kmetova-Mehmed, lawyers practising in Plovdiv.
2. The applicants’ complaints under Article 1 of Protocol No. 1 concerning the forfeiture of alleged proceeds of crime were communicated to the Bulgarian Government (“the Government”).
THE LAW
3. The applicants complained of the forfeiture of alleged proceeds of crime, in essence under Article 1 of Protocol No. 1.
4. The Government did not comment on the complaints.
5. The Court has adopted a leading judgment against Bulgaria on the forfeiture of proceeds of crime under the same legislation as applied in the case at hand, namely the Forfeiture of Proceeds of Crime Act 2005 (hereinafter “the 2005 Act”) – see Todorov and Others v. Bulgaria (nos. 50705/11 and 6 others, 13 July 2021). The Court identified some potential flaws in the 2005 Act and in the manner in which it had been applied, in particular the combined effect of the wide scope of its application – as to predicate crimes and as to the periods for which the defendants’ revenues and expenses were being checked, of the difficulties for defendants to prove what the courts considered “lawful” income during such a period, marked, moreover, by inflation and economic changes, and of the presumption that any asset not shown to have had a “lawful” provenance was the proceed of crime (see Todorov and Others, cited above, §§ 200-09). The Court’s position was that, while these potential flaws were not sufficient to render each forfeiture under the 2005 Act contrary to Article 1 of Protocol No. 1, they certainly placed a considerable burden on defendants in forfeiture proceedings and could tilt the balance in favour of the State. Thus, as a counterbalance and a guarantee of the applicants’ rights, it was necessary that the national courts established, in a sufficiently reasoned manner, a causal link between the assets subject to forfeiture and the criminal conduct of the defendant (ibid., §§ 210-15).
6. Applying these requirements to the specific cases examined in the leading judgment, the Court found a violation of Article 1 of Protocol No. 1 in those of them where the national courts had failed to justify the existence of the causal link defined above (see §§ 217-50 of the judgment). On the other hand, the Court found no violation of Article 1 of Protocol No. 1 in the cases where such a link had been shown to exist, and where the domestic courts had established in a reasonable manner that the assets for which forfeiture was being sought were the proceeds of crime (see §§ 251-81).
7. Similarly to the latter group, the Court is satisfied that in the present case the national courts showed in a reasonable manner that the applicants’ assets for which forfeiture was being sought were the proceeds of crime. They took into account the nature of the offences committed by the first applicant, Mr Vasil Kanev, and their potential to generate profit, as well as the periods when the applicants had acquired the disputed assets and the time when Mr Kanev had paid off the bank loan taken in 2001.
8. The Court stated in Todorov and Others (cited above, § 216) that in such type of cases it would generally defer to the national courts’ analysis as to the existence of a causal link between any criminal conduct of the applicants and the assets subject to forfeiture, unless that analysis was arbitrary or manifestly unreasonable. As noted, the assessment made in the present case was reasonable and acceptable.
9. In view of the above, the Court finds that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 30 March 2023.
Viktoriya Maradudina Darian Pavli
Acting Deputy Registrar President
APPENDIX
Application raising complaints under Article 1 of Protocol No. 1
(forfeiture of alleged proceeds of crime)
Application no.
Date of introduction
Applicant’s name
Year of birth/
registration
Predicate offence
Period for which the applicant’s income and expenses were checked
Forfeited assets
Reasons given by the courts
Final decision in the forfeiture proceedings
3410/18
11/01/2018
Vasil Kostov KANEV
1956
YUVELIR 90 OOD
2000
In a judgment of the Ruse Regional Court of 27 May 2010 (final in 2012) the first applicant was convicted for smuggling and having organised and led a criminal group aiming to commit smuggling; offences committed between October 2008 and March 2009.
1987-2012
A ship bought by the second applicant in 2001 for BGN 77,048 (EUR 39,400), paid with a bank loan of BGN 250,000 (EUR 128,000), and the sums paid by the first applicant in 2007 to repay the loan; the first applicant’s shares in the second applicant and another company.
All assets above were considered worth BGN 280,510 (EUR 143,500).
The applicants had established lawful income for the acquisition of many assets, and the forfeiture claim in that regard was to be dismissed.
As to the remaining assets (which were actually forfeited), they could reasonably be presumed to have been acquired with proceeds of crime: the first applicant’s offences were such that they could generate significant financial means, they presupposed preparation during a lengthy period, and between 2001 and 2009 the first applicant had not had sufficient income to pay for these assets. He had repaid the bank loan in 2007, that is around the time period of his criminal offences.
4 August 2017 – decision of the Supreme Court of Cassation