NIKOLOV v. BULGARIA
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Nikolay Milanov Nikolov, is a Bulgarian national who was born in 1963 and lives in Shumen. He was represented before the Court by Ms N. Milanova, a lawyer practising in Shumen. The Government were represented by their agent Mrs M. Dimova, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 November 1995 the applicant, who is a practising lawyer, initiated before the Novi Pazar District Court private criminal proceedings for defamation and aggravated insult, against Mrs N.T., a former client of his. He alleged that because of certain statements of hers his reputation had been undermined and he had lost a large number of his clients. He joined a civil claim seeking 840,000 old Bulgarian levs in damages. The applicant was legally represented throughout the proceedings. On an unspecified date in 1996 all the judges from the Novi Pazar District Court recused themselves and the case was transferred to the Razgrad District Court. By a judgment of 5 May 1998 the Razgrad District Court found Mrs N.T. guilty of defamation and sentenced her to eight months' imprisonment, suspended for a period of three years. It also partly granted the applicant's civil claim. On appeal, on 19 October 1998 the Razgrad Regional Court quashed the judgment and remitted the case for a fresh examination. It found that in violation of the relevant legislation the panel of the District Court had not included lay judges throughout the entire proceedings. On 2 October 2000 the Razgrad District Court discontinued the proceedings as the statutory time limit for prosecuting the offence had expired. On appeal by the applicant, by a decision of 5 January 2001 the Razgrad Regional Court upheld the discontinuation. Upon the applicant's cassation appeal, on 28 May 2001 the Supreme Court of Cassation (SCC) upheld the discontinuation of the criminal proceedings and remitted the case for examination of the civil action. By a judgment of 17 January 2003 the Razgrad Regional Court found that Mrs N.T. had defamed the applicant and partly granted the civil claim awarding him 500 new Bulgarian levs, the equivalent of 250 euros with interest. The judgment stated that it was subject to appeal before the SCC. A notification that the judgment had been delivered was received by the applicant on 5 February 2003. On 10 February 2003 he appealed. On 5 June 2003 the SCC held a hearing. By a judgment of 23 October 2003 the SCC rejected the appeal as inadmissible, finding that the judgment of 17 January 2003 was not amenable to cassation appeal. This was so because under the relevant law judgments of the criminal courts in respect of privately prosecutable offences punishable with less than five years' imprisonment, as in the applicant's case, were not amenable to cassation appeal and, consequently, the civil part of such judgments was likewise not amenable to cassation appeal. Article 349 of the Code of Criminal Procedure 1974 (the CCP), as in force at the relevant time, listed exhaustively the judgments and decisions that were subject to cassation appeal. Decisions of second instance courts discontinuing criminal proceedings were amenable to cassation appeal before the SCC irrespectively of their subject mater. On the other hand, certain second instance judgments, such as those concerning privately prosecutable offences punishable with less than five years' imprisonment, were not amenable to cassation appeal. The SCC has held that where a case falls into one of the categories of cases where second instance judgments are not amenable to cassation appeal, this is also valid in respect of the civil part of the case, where a civil claim has been admitted for examination in the criminal proceedings. Owing to their subsidiary character, civil claims in criminal proceedings fell to be processed under criminal procedure rules (реш. № 358/2003 от 12 юни 2003 г. по н. д. № 145/2003 г., ВКС, I н. о., реш. № 445/2003 от 10 юли 2003 г. по н. д. № 227/2003 г, ВКС, III н. о.). In a judgment of 19 February 1999 (реш. № 118 от 19 февруари 1999 г. по н. д. № 31/99 г., ВКС, II н. о.) the SCC held that where the law did not provide for cassation appeal, the fact that a second instance court may have erroneously indicated in the text of its judgment that an appeal was possible was irrelevant. Cassation appeals submitted in such circumstances were inadmissible as the second instance court judgment was final.