GEORGIEVI v. BULGARIA
Inadmissible
David Thór Björgvinsson;George Nicolaou;Georgieva;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
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. 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 courtappointed 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. 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)). 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). 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).