CASE OF TSONYO TSONEV v. BULGARIA (No. 2)
Violation of Article 6+6-3-c - Right to a fair trial (Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance;Free legal assistance;Legal assistance of his own choosing;Required by interests of justice);No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate time;Preparation of defence;Article 6 - Right to a fair trial);No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Free legal assistance;Insufficient means;Required by interests of justice;Article 6 - Right to a fair trial);Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general};Non-pecuniary damage - award
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1977 and lives in Gabrovo. At the relevant time he was unemployed. 6. At about 9 p.m. on 11 November 1999 the applicant and Mr D.M., after having consumed alcohol, went to the flat of Mr G.I., apparently with the intention of recovering certain items which Mr D.M.’s former girlfriend had left there. A violent incident ensued and the police, who were called by neighbours, arrested the applicant and Mr D.M. 7. On 12 November 1999 a police officer drew up a report describing the applicant’s conduct on the previous evening. On the basis of this report, in a decision of 19 November 1999 the mayor of Gabrovo found the applicant guilty of breaching section 2(1) of municipal by-law no. 3 (see paragraph 25 below) and fined him 50 Bulgarian levs (BGN). The mayor explained that, while drunk, the applicant had broken down the door of Mr G.I.’s flat and had beaten him up. These actions had constituted a breach of public order and an expression of manifest disregard towards society, contrary to the above-mentioned provision. The decision, which specified that it was subject to judicial review within seven days after being served on the offender, was not served on the applicant, whose address was unknown. It was put in the file and considered as constructively served under section 58(2) of the 1969 Administrative Offences and Penalties Act (see paragraph 28 below). The applicant did not learn about it within the timelimit for seeking judicial review and the decision became final. 8. Some time later the prosecution authorities charged the applicant with inflicting “intermediate” bodily harm on Mr G.I., contrary to Article 129 § 1 of the 1968 Criminal Code, and breaking into his home, contrary to Article 170 § 2 of that Code (see paragraphs 18 and 19 below). They alleged that he had acted in concert with Mr D.M. 9. The applicant’s trial took place before the Gabrovo District Court between 9.30 a.m. and 12.40 p.m. on 1 December 2000 and between 1.30 p.m. and 4 p.m. on 14 November 2001. He was represented by two lawyers. It is unclear whether they were retained by him or appointed by the court. The court heard the two coaccused, three experts and five witnesses. It admitted numerous documents in evidence and heard the parties’ closing argument. 10. In a judgment of 14 November 2001 the Gabrovo District Court found the applicant guilty of inflicting “intermediate” bodily harm on Mr G.I. It found him not guilty of committing this offence in concert with others and not guilty of entering another’s home by force. It sentenced him to eighteen months’ imprisonment. The court found that Mr D.M. alone had broken down the door of Mr G.I.’s flat and that the applicant had entered the flat after him. The court further found that in the ensuing scuffle the applicant had broken two of Mr G.I.’s teeth, which amounted to “intermediate” bodily harm, but at the same time held that in committing this act the applicant had not acted in concert with Mr D.M., because the latter had not hit Mr G.I. in the head. 11. The applicant appealed to the Gabrovo Regional Court. He drafted the appeal himself. Mr D.M. did not appeal. 12. The Gabrovo Regional Court held a hearing on the morning of 2 April 2002. The counsel previously appointed by the court for the applicant did not show up and new counsel was thus appointed. The applicant said that the new counsel was acquainted with his arguments and the case, and that he agreed to be defended by her. The record of the hearing says that the newly appointed counsel took half an hour to acquaint herself with the file; according to the applicant, she only had ten minutes to do so, because, as shown by the record, the hearing started at 10 a.m. and finished at 10.10 a.m. 13. In her closing speech, counsel for the applicant argued that it was not certain whether he had hit Mr G.I. in the head. Even if that had been so, he had done so in selfdefence, because Mr G.I. had tried to shoot him with a gas pistol and he had panicked. It was furthermore unclear whether the blows allegedly administered by the applicant could result in the type of injuries sustained by Mr G.I. The experts’ statements on this point had not been properly recorded. Counsel later filed a memorial previously drawn up by the applicant. 14. In a judgment of 9 April 2002 the Gabrovo Regional Court upheld the lower court’s judgment. It found that it had assessed the evidence properly and had established the facts correctly, and went on to say that there was no indication that the applicant had acted in selfdefence. 15. On 23 April 2002 the applicant appealed on points of law, again drafting the appeal himself. On 26 August 2002 he asked the Supreme Court of Cassation to appoint counsel for him. He relied on Article 70 § 1 (7) of the 1974 Code of Criminal Procedure (see paragraph 20 below) and asserted that he had no legal knowledge and could not afford to retain counsel, whereas the interests of justice required that he be legally represented because he risked imprisonment. 16. In a letter of 9 September 2002 the president of the Second Criminal Division of the Supreme Court of Cassation advised the applicant that it was not possible to appoint counsel for him, as the prerequisites of Article 70 of the 1974 Code of Criminal Procedure were not met. 17. The Supreme Court of Cassation held a hearing on 14 October 2002. The applicant acted pro se. The prosecution argued that his appeal should be dismissed. On 22 October 2002 the Supreme Court of Cassation, which had the power to quash, vary or reverse the lower court’s judgment, decided to uphold it. It found that the lower court had properly established the facts, had fully examined all relevant issues, and had not breached the rules of procedure. 18. Article 129 § 1 of the 1968 Criminal Code makes it an offence to inflict “intermediate” bodily harm on another. Article 129 § 2 defines “intermediate” bodily harm as, among other things, the knocking out of teeth whose loss makes chewing or speaking more difficult. 19. By Article 170 § 1 of the Code, it is an offence to enter another person’s home using force, threats, dexterity, abuse of power, or special technical devices. Article 170 § 2 provides that the offence is aggravated if it has been committed at night or by an armed individual. 20. Points (1) to (6) of Article 70 § 1 of the 1974 Code of Criminal Procedure listed situations in which the appointment of counsel for the accused was mandatory: (i) the accused was a minor; (ii) the accused suffered from a disability preventing him or her from defending himself or herself in person; (iii) the accused was charged with an offence punishable by more than ten years’ imprisonment; (iv) the accused did not speak Bulgarian; (v) another accused who had diverging interests had already retained counsel; or (vi) the case was heard in the absence of the accused. On 1 January 2000 a new point (7) was added. It was part of a comprehensive overhaul of the Code intended to bring it in line with the Convention, based on Article 6 § 3 (c), and it provided that the appointment of counsel was compulsory if the accused could not afford it but wished to be legally represented and the interests of justice so required. 21. On 29 April 2006 the 1974 Code was superseded by the 2005 Code of Criminal Procedure. The text of its Article 94 § 1 (9) matches exactly that of Article 70 § 1 (7) of the 1974 Code. Article 94 § 1 (7) provides that the participation of counsel in the proceedings before the Supreme Court of Cassation is compulsory. Where the participation of counsel is compulsory, the competent authority has to appoint counsel when not retained by the accused (Article 94 §§ 2 and 3). 22. Article 269 § 2 (3) of the 1974 Code provided that a hearing had to be adjourned if counsel for the accused failed to appear and if such counsel could not be replaced without causing prejudice to the accused’s defence. 23. In 1997 the text was amended, providing that an adjournment was only necessary where the case could not proceed without the accused being legally represented. In a decision of 14 April 1998 (решение № 9 от 14 април 1998 г. по к. д. № 6 от 1998 г. обн., ДВ, бр. 45 от 21 април 1998 г.) the Constitutional Court declared the amendment unconstitutional, finding that it made it possible to hold hearings in which the accused would not be legally represented and that this would certainly prejudice the defence. It was true that certain limitations on the rights of the defence were permissible under the Constitution in the interest of the proper administration of justice. However, this particular limitation was disproportionate, because it made it harder to ascertain the truth and put the accused at a disadvantage vis-à-vis the prosecution, in breach of the principle of equality of arms. 24. Article 21 § 1 (6) of the 1974 Code (whose text has been copied almost verbatim into Article 24 § 1 (6) of the 2005 Code) provided that criminal proceedings could not be opened or had to be discontinued if in respect of the same person and in respect of the same offence there existed a final judgment or decision. The former Supreme Court – in a binding interpretative decision –, and later the Supreme Court of Cassation, have construed this provision as not barring the opening of criminal proceedings in respect of persons who have already been punished in administrative proceedings (тълк. реш. № 85 от 1 ноември 1966 г. по н. д. № 79/1960 г., ОСНК на ВС; реш. № 348 от 29 май 1998 г. по н. д. № 180/1998 г., ВКС, II н. о.; и реш. № 564 от 9 декември 2008 г. по н. д. № 626/2008 г., ВКС, I н. о.). 25. Bylaw no. 3 for safeguarding public order on the territory of the municipality of Gabrovo (Наредба № 3 за опазване на обществения ред на територията на габровската община, приета с решение № 50, протокол № 10 от 26 март 1992 г.) was adopted by the Gabrovo Municipal Council on 26 March 1992 pursuant to section 22(1) of the 1991 Local SelfGovernment and Local Administration Act, which, as worded at the material time, empowered municipal councils to make bylaws concerning local issues. Section 2(1) of the bylaw provided that citizens were prohibited from committing acts which breached public order and expressed manifest disregard towards society. Section 27(1) provided that violations of the by-law were punishable with a fine of up to BGN 50. Under section 30 of the bylaw, the procedure for establishing such violations and their punishment was governed by the 1969 Administrative Offences and Penalties Act. 26. Section 2(3) of the 1969 Administrative Offences and Penalties Act provides that municipal councils may, in issuing bylaws, determine the elements of administrative offences and provide for penalties among those envisaged by the Local SelfGovernment and Local Administration Act of 1991. Under section 22(2) of that Act, as in force at the material time, the breach of a municipal by-law was punishable with a fine of up to 500 Bulgarian levs. 27. The 1969 Act governs administrative offences and penalties and lays down the procedure for punishing such offences. It defines them, in section 6, as acts or omissions which run counter to the established order, have been committed wilfully and are punishable with administrative penalties. Section 11 provides that, absent specific provisions in the Act, the 1968 Criminal Code governs all questions concerning mens rea, capacity, exculpating circumstances, complicity, preparation and attempts. 28. Under section 58(1), a decision imposing an administrative penalty must be served on the offender. If, however, the offender cannot be found at the address he specified and his new address is unknown, a note to this effect is made on the decision and it is considered as served on the date of the note (section 58(2)). The decision may be challenged by way of judicial review (section 59(1)) within seven days after it has been served (section 59(2)). Under section 64, decisions imposing administrative penalties become final when (i) they are not subject to review, (ii) have not been challenged within the statutory timelimit, or (iii) have been challenged but have been upheld or varied by the competent court.