Published on 25 April 2022
FOURTH SECTION
Application no. 21039/13
TONOVI
against Bulgaria
lodged on 11 March 2013
communicated on 8 April 2022
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. The applicants are represented before the Court by Mr M. Menkov and Ms S. Karakusheva, lawyers practicing in Sofia.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In a judgment of 2 November 2001 the first applicant was convicted for coercion, an offence under Article 214 of the Criminal Code, which had been committed in 1993.
Since the offence fell within the scope of the Forfeiture of Proceeds of Crime Act 2005 (hereinafter “the 2005 Act”), in 2007 the Commission for Uncovering Proceeds of Crime opened proceedings against the first applicant, verifying his financial situation between 1985 and 2007. In 2008 it introduced a forfeiture application against the first applicant, his wife (the second applicant) and his parents (his father died in the course of the proceedings and was succeeded by the first applicant and his mother and sister – the third and fourth applicants).
The application was allowed in a judgment of 19 February 2010 of the Vratsa Regional Court, which ordered the forfeiture of the following assets from the applicants: a shop in Vratsa; shares in companies; a car; money available on bank accounts or received from the sale of other immoveable properties or shares. The total value of these assets was 215,640 Bulgarian levs (BGN), the equivalent of about 110,300 euros (EUR). The forfeiture of further assets, owned by companies which are not applicants in the present case, was ordered as well.
The Vratsa Regional Court found that the first applicant had not established the lawful provenance of the assets acquired by himself and his family. In particular, his claims to have received loans, dividends and income from gambling had remained unproven. This meant that the applicant had not rebutted the presumption under section 4(1) of the 2005 Act about the criminal provenance of his assets and the ones transferred to his family.
The applicants lodged an appeal. Their request to be exempted from the obligation to pay court fees was dismissed by the Sofia Court of Appeal on 20 May 2010. The applicants thus paid the fees, amounting to BGN 4,312 (EUR 2,205) for the four of them. In a judgment of 14 March 2011 the Sofia Court of Appeal upheld the Vratsa Regional Court’s judgment.
The applicants lodged a cassation appeal, which the Supreme Court of Cassation (hereinafter “the SCC”) accepted for examination in a decision of 24 February 2012.
On 19 March 2012 the applicants applied for an exemption from the obligation to pay court fees for cassation, again amounting to BGN 4,312 (EUR 2,205). They stated the following: the first applicant had been under house arrest (in new set of criminal proceedings against him) and unable to work between 2008 and 2011; the second applicant was unemployed; the third applicant was retired and receiving a rather low pension; and the fourth applicant was working but for a relatively low salary. Alternatively, the applicants requested the SCC to lift the interim injunctions imposed on some of their properties at the start of the forfeiture proceedings, to permit them to pay the court fee due and the remuneration for their legal representation.
In a decision of 6 April 2012 the SCC dismissed the applicants’ requests. Upon appeal by the applicants, that decision was upheld on 14 June 2012 by another panel of the SCC. The domestic court found that the applicants had not sufficiently established that they had no further assets apart from the ones frozen at the start of the forfeiture proceedings, enabling them to pay the court fees.
Since the applicants failed to pay the court fees due within the statutory time-limit of one week after the decision of 14 June 2012, in a new decision of 26 June 2012 the SCC discontinued the proceedings.
The applicants appealed against the latter decision. They contended that they had not been duly informed of the decision of 14 June 2012.
In a final decision of 9 October 2012 the SCC dismissed the appeal. It noted that the decision of 14 June 2012 had been final as concerned the applicant’s exemption request, that is why it was not subject to service, but was to be made available in the SCC’s registry and on the Internet. After that decision the applicants had had the opportunity to pay the court fees due for cassation, which they had failed to do.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
The relevant domestic law and practice on the forfeiture of proceeds of crime, in particular concerning the application of the 2005 Act, have been summarised in Todorov and Others v. Bulgaria (nos. 50705/11 and 6 others, §§ 90-114, 13 July 2021).
The relevant provisions concerning court fees have been summarised in Chorbadzhiyski and Krasteva v. Bulgaria (no. 54991/10, § 31, 2 April 2020). In particular, the fee for appeal or cassation is 2% of what is considered to be the value of the claim brought before the courts.
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that they were unjustifiably refused access to court, since the SCC refused to exempt them from the obligation to pay court fees for cassation. They contend that they were unable to pay the fees at issue, seeing that their moveable and immoveable property had been frozen at the start of the forfeiture proceedings. Furthermore, the applicants complain of the failure of the SCC to serve on them its decision of 14 June 2012.
The applicants also complain, relying on Article 13 of the Convention and Article 1 of Protocol No. 1, of the forfeiture of their assets.
QUESTIONS TO THE PARTIES
1. Were the applicants unjustifiably deprived of their right to access to a court, as guaranteed under Article 6 § 1 of the Convention, seeing that they were unable to have their appeal against the judgment of the Sofia Court of Appeal of 14 March 2011 examined by the Supreme Court of Cassation? Were the court fees required from the applicants too high, and was the manner in which the Supreme Court of Cassation examined their request to be exempted from the obligation to pay fees fair? Finally, was the applicants’ right to access to a court further restricted by the short deadline to pay the court fees following the decision of 14 June 2012, in view of the fact that that decision had not been served on them?
2. Was the forfeiture of the applicants’ assets in compliance with the requirements of Article 1 of Protocol No. 1? In particular, did the domestic authorities reasonably establish that the assets at issue were the proceeds of crime (see Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, 13 July 2021)?
APPENDIX
No.
Applicant’s Name
Year of birth/registration
Nationality
Place of residence
1.
Yordan Tonov TONOV
1967
Bulgarian
Kurnovo
2.
Polina Simeonova TONOVA
1967
Bulgarian
Vratsa
3.
Tsenka Ivanova TONOVA
1939
Bulgarian
Kurnovo
4.
Vesa Tonova TONOVA
1970
Bulgarian
Sofia