CASE OF ZDRAVKO STANEV v. BULGARIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Free legal assistance;Insufficient means;Required by interests of justice);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Pavlina Panova;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1951 and lives in Kazanluk. 6. The applicant was representing his father in a tort action against the local forestry office. At a hearing held in December 2001 he objected to the decision of the judge hearing the case, who was the President of the Kazanluk District Court, to order a graphological examination of a photocopied document. The judge overruled his objection and the applicant appealed. 7. On 7 December 2001, allegedly in order to illustrate the absurdness of the judge’s ruling, the applicant filed with the court photocopies of two declarations, asking that they be attached to his appeal. The first, purportedly emanating from the judge, said that she had forced the applicant to draw it up and that, to compensate him for the frustration and damage caused, she undertook to pay him 5,000 United States dollars (USD). The second, purportedly emanating from the director and an official of the forestry office, said that they owed the applicant USD 5,000. On 18 December 2001 the applicant filed with the court a further document purportedly emanating from the forestry office’s counsel which stated that she had forced the judge to carry out certain acts in relation to the case and that she owed the applicant USD 10,000. 8. All three documents, presented in photocopy, bore the purported signatures of the individuals concerned. 9. The judge referred the matter to the prosecution authorities, which opened an investigation against the applicant on charges of forgery. The judge, the forestry office’s officials and counsel also brought civil-party claims against him. 10. All judges of the Kazanluk District Court withdrew from the case and it was transferred to the Stara Zagora District Court. On 23 September 2002 that court referred the case back to the prosecution authorities for the rectification of procedural errors. On 7 May 2003 the prosecuting authorities indicted the applicant, the charge being reduced to using forged documents contrary to Article 316 of the Criminal Code (see Relevant domestic law below). 11. Following a query by the President of the Kazanluk District Court, on 5 June 2003 the Supreme Court of Cassation ordered that the case be transferred to the Nova Zagora District Court, which was in another judicial region, because that would obviate the need for judges to withdraw from the case even at the appellate level. 12. On 1 July 2003 the applicant objected to the indictment. He argued, inter alia, that he had filed the copies of the documents in order to illustrate the impossibility of subjecting photocopies to graphological testing. 13. The trial took place on two dates over the summer of 2003. 14. In a judgment of 30 September 2003 the Nova Zagora District Court found the applicant guilty. Instead of imposing a penal sentence, it replaced his criminal liability with an administrative fine of 500 Bulgarian levs (BGN). It further ordered him to pay the civil parties non-pecuniary damages in the following amounts: BGN 10,000 to the judge (the full amount claimed), BGN 5,000 to the counsel, BGN 1,200 to the director of the forestry office, and BGN 700 to the official of that office. 15. In reaching its decision, the District Court found that the applicant had knowingly used false documents with a view to improving his procedural position in the case against the forestry office. Since there was no proof that he had made the documents, he could not be held liable for that. In using them, however, he had understood the unlawful character of his actions and had wished for negative consequences to occur in order to win the civil case. His act was particularly serious, because he had undermined the integrity of the judicial process. Moreover, further aggravating factors included the high amounts mentioned in the documents and the fact that they had been linked with the professional capacities of the individuals mentioned in them. 16. In assessing the quantum of damages, the court noted that the applicant was unemployed and did not own any property, which militated in favour of a minimal fine. However, concerning the judge’s claim for damages, the court found that the applicant’s act had injured her reputation and lowered her professional standing. The declaration purportedly emanating from her had become known to all judges and staff members of the court in which she worked, as well as to those members of the court which had examined the appeal against her ruling. It had also become known to the investigators and prosecutors who had dealt with the criminal case against the applicant. The judge had been serving for seventeen years, eleven of which as a president of the court; for that reason the allegation that she acted unlawfully when hearing cases had been particularly injurious. The applicant’s act had also impaired society’s trust in the judicial system, at a time when it was being subjected to many criticisms. 17. The applicant appealed on the ground that there was insufficient evidence to support the court’s conclusions. He asked the court to order the prosecution to produce the originals of the impugned documents, with a view to their graphological examination, and sought leave to re-question the claimants and the experts and to call witnesses and adduce further evidence. Finally, he requested that counsel be appointed for him. 18. In a decision of 11 November 2003 the Sliven Regional Court held that there was no need for an expert examination of the signatures on the documents, as the applicant was not charged with forging them but merely with using them. In any case, it was impossible to enjoin the prosecution to produce the originals, as this could obviously not be done without the assistance of the person who had used the photocopies. No requestioning was necessary, because the applicant had been given the opportunity to ask questions at the trial, but had failed to do so. Finally, it was impossible to assess the need for further witnesses, as the applicant had not indicated their identity. 19. The court also refused to appoint counsel for the applicant. It noted that he could not afford one, but held that the interests of justice did not require that he be provided with free legal assistance, as he held a university degree and the charges against him were not very serious. 20. In a brief filed on 1 December 2003 the applicant argued that the lower court had erred in the assessment of the evidence and had made arbitrary findings of fact. In particular, it had not specified on what basis it had concluded that the applicant had used the documents to win the civil case, seeing that he had not claimed the sums mentioned in them, but had merely employed them to illustrate a theoretical assertion. The court had also given reasons bordering on the absurd in determining the gravity of the offence, and had impermissibly dealt with the civilparty claims. 21. In a final judgment of 9 December 2003 the Sliven Regional Court upheld the lower court’s judgment. It held that it had properly admitted and analysed the evidence, had not omitted to gather relevant evidence, had made accurate findings of fact, and had correctly concluded that, by using false documents to win the civil case, the applicant had committed the offence with direct intent. There had been no material breaches of the rules of procedure. In particular, it had not been erroneous to try the applicant and only then give him an administrative punishment, nor to examine the civil claims against him, because all damage directly flowing from the offence – in this case, the claimants’ moral suffering – was subject to reparation. Nor had the court erred in determining the quantum of damages. 22. Article 316 of the 1968 Criminal Code provides that whoever uses a false document, but cannot be prosecuted for its forgery, is punishable with up to two years’ imprisonment. 23. Points (1) to (6) of Article 70 § 1 of the 1974 Code of Criminal Procedure listed certain situations in which an accused who could not retain counsel had to be provided with courtappointed counsel. None of these situations were relevant to the facts of the present case. On 1 January 2000 a new point (7) was added as part of a comprehensive overhaul of the Code intended to bring it into line with the Convention. It was based on Article 6 § 3 (c) of the Convention and 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. 24. In appeal proceedings, the courts are prohibited from worsening the situation of the accused in the absence of a prosecution appeal (Articles 333 § 4, 334 § 2, and 335 § 2 of the 1974 Code of Criminal Procedure).