CASE OF KONSTANTIN STEFANOV v. BULGARIA
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Yonko Grozev
5. The applicant was born in 1974. He is a lawyer who lives and practises in Plovdiv. 6. The facts of the case may be summarised as follows. 7. At the beginning of 2005, in the course of criminal proceedings against N.R. and another individual on charges of aggravated theft, punishable by imprisonment of up to fifteen years, the Plovdiv District Court (“the District Court”) decided that in the interests of justice two lawyers should be appointed defence counsel for the two accused, who could not afford to pay for a lawyer but wished to be legally represented. 8. The District Court sent a request to the Plovdiv Bar asking them to nominate two lawyers as defence counsel to represent the accused. The letter stated, inter alia, that the counsel’s remuneration would be determined in accordance with the Ordinance of the National Bar Council on Lawyers’ Minimum Remuneration 2004 (“the Remuneration Ordinance”). 9. In a letter of 31 May 2005, sent to the applicant and the District Court, the Plovdiv Bar nominated the applicant to represent N.R. The letter contained the following text: “In accordance with section 44 of the Bar Act, you must act as defence counsel ... and appear at the hearing in the court proceedings. Failure to comply may result in disciplinary action under the Bar Act and civil liability vis-à-vis the parties [to the criminal proceedings]. In its decision to appoint [you as] defence counsel, the [criminal] court ... must set [your] remuneration in an amount not lower than the minimum provided for in the Remuneration Ordinance. Otherwise you must refuse to provide legal representation because you are at risk of a disciplinary [sanction] for breach of section 132 (6) of the Bar Act and the instructions of the National Bar Council ...” 10. The Plovdiv District Court held a hearing in the criminal case against N.R. on 10 June 2005. At the beginning of the hearing, at around 3.30 p.m., the court appointed the applicant as N.R’s counsel and invited him to state his position in respect of whether there was an obstacle to proceeding with the hearing or not. 11. The applicant replied that he would represent N.R. if the court undertook to comply with section 44(2) of the Bar Act, which in turn referred to the Remuneration Ordinance, and thereby determined his remuneration at or above the minimum 550 Bulgarian levs (BGN; the equivalent of approximately 280 euros (EUR)) provided for in law. 12. The presiding judge refused to determine the minimum remuneration at that point in time. He warned the applicant that he would fine him if he refused to act as counsel for the defendant. 13. Following this exchange, the applicant refused to represent the defendant and left the courtroom. 14. The court fined the applicant BGN 500 (approximately EUR 260). The decision imposing the fine referred to Article 269 § 7 of the Code of Criminal Procedure 1974 (see paragraph 33 below) and stated as follows: “In the court’s view, the lawyers already appointed to serve as defence counsel should not have asked about their remuneration [at this stage of the proceedings]. The court would be in a position to estimate that amount only after the collection of all evidence and following the final oral pleadings. By raising the question of setting their remuneration at a minimum of BGN 550 before the examination of the case started, the [two lawyers] showed manifest disrespect for the court and were in breach of the Code of Criminal Procedure. Despite a warning, they did not comment, they refused to act as legal representatives nominated by the Plovdiv Bar upon this court’s request ... and left the courtroom. Seeing that in the present case the defendants must be legally represented ... the hearing will have to be adjourned owing to the unjustified absence of their defence counsel. Therefore, [the applicant and the other lawyer] shall be fined BGN 500 each.” 15. Then the prosecutor requested a one-hour break so that new counsel could be found for the accused. He submitted that, in view of the principle of speediness of criminal proceedings and the fact that all witnesses and experts were there in the courtroom, the hearing should not be adjourned to a later date. The court granted the request and decided to proceed with the case at 4.40 p.m. on the same day. 16. The hearing was resumed as scheduled. The prosecutor asked the court to appoint another lawyer who was present in the courtroom as counsel for the accused and to give him time to get acquainted with the case file. The court granted the request. 17. At 4.55 p.m. the new lawyer stated that he had acquainted himself with the case and agreed to be appointed defence counsel. The court did so and proceeded with the case. The proceedings ended with a plea bargain agreement between the prosecutor and the defendants. The court set the replacement defence counsel’s remuneration at BGN 30 (about EUR 15). 18. On an unspecified date the applicant appealed against the fine imposed on him (see paragraph 14 above). He claimed that he had not been appointed by the District Court in accordance with the law. In particular, the court had been bound by law, specifically the Bar Act, to determine his remuneration in the actual decision to appoint him counsel (see paragraph 30 below); the court had also had to determine the amount according to the Remuneration Ordinance. By refusing to comply with those legal requirements, the court had breached the law. Therefore, the applicant’s refusal to act as counsel had been justified; he should not have been held responsible for the adjournment of the hearing and he had not acted disrespectfully. Consequently, he submitted, the fine had been unlawful. 19. On 11 July 2005 the Plovdiv Regional Court dismissed the applicant’s appeal against the fine in a final decision. It acknowledged that pursuant to section 44(2) of the Bar Act the remuneration to be paid to a court-appointed defence counsel had to be indicated in the order for his or her appointment and that it ought not be lower than the minimum provided for in the Remuneration Ordinance. However, the court found that it was only possible to determine the exact amount of remuneration to be paid at the end of the proceedings. The reason for this was that the Remuneration Ordinance provided for a lower amount in case of termination of the criminal proceedings by way of a plea bargain (see paragraph 28 below). The court could not predict the outcome of the proceedings at their outset. Therefore, the applicant’s insistence on a prior determination of his fee was contrary to section 44 of the Bar Act. The applicant had thus caused an unjustified adjournment and had rightly been fined under Article 269 § 7 of the Code of Criminal Procedure. The court finally held that the amount of the fine was proportionate to the gravity of the offence.