I correctly predicted that there was a violation of human rights in STEFANOV v. BULGARIA.

Judgment

FOURTH SECTION

CASE OF STEFANOV v. BULGARIA
(Application no. 26198/13)

JUDGMENT

STRASBOURG
2 February 2021

This judgment is final but it may be subject to editorial revision. In the case of Stefanov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Tim Eicke, President,Faris Vehabović,Pere Pastor Vilanova, judges,and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 26198/13) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Vladimir Pelov Stefanov (“the applicant”), on 28 March 2013;
the decision to give notice of the application to the Bulgarian Government (“the Government”);
the parties’ observations;
the decision to reject the Government’s objection to the examination of the application by a Committee;
Having deliberated in private on 12 January 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns a complaint that a statement by the Minister of the Interior, concerning offences allegedly committed by the applicant, at a time when the investigation of those offences was pending, breached the applicant’s right to be presumed innocent under Article 6 § 2 of the Convention. THE FACTS
2. The applicant was born in 1973. 3. After the applicant passed away on 5 June 2018, his son, Mr Vladimir Vladimirov Stefanov, expressed a wish to continue the application in his stead. 4. The applicant’s son was represented by Ms Z. Stefanova and Ms I. Vasileva, lawyers practising in Sofia. 5. The Government were represented by their Agents, Ms M. Kotseva and Ms V. Hristova, of the Ministry of Justice. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On an unspecified date the applicant was convicted of robbery and murder, and sentenced to a term of imprisonment for those offences, which had been committed in 1997. In 2011 he was granted early release from prison. 8. In September 2011 the applicant was arrested again, after an armed robbery was committed in the town of Botevgrad. While fleeing, the perpetrator had shot at police officers and kidnapped people. Various charges were brought against the applicant and he was placed in pre-trial detention. On 17 January 2013 he was placed under house arrest after his health had deteriorated in prison. At that time the criminal proceedings against him were still at the preliminary investigation stage. 9. Several days later, on 25 January 2013, the Minister of the Interior was a guest on a popular evening talk show on Bulgarian National Television, called Panorama. Commenting on the work of the judiciary, he said the following:
“What is important for me is that institutions should work in the interests of society. That they should abide by the rule of law. I can give you many astounding examples, [such as that of] Vladimir Pelov; you know that a year and several months ago he committed an armed robbery in Botevgrad. After that he ran away, unlawfully taking a car with a woman and a child in it. [H]e shot at police officers. When we saw his criminal record, it turned out that ... he had committed a similar robbery of a jewellery workshop, and after that he had also committed a murder for which he had received a twenty-year prison sentence. Ten years later he was granted early release for good behaviour. One year after that, less than a year in fact, he committed this armed robbery in Botevgrad.”
10. The Minister then went on to criticise the fact that the domestic courts had placed the applicant under house arrest. 11. In a final judgment of 5 May 2016 the applicant was convicted of the robbery committed in 2011. RELEVANT LEGAL FRAMEWORK
12. The general rules of the law of tort are set out in sections 45 to 54 of the Obligations and Contracts Act 1951. Section 45(1) provides, in particular, that everyone is obliged to make good the damage which they have, through their own fault, caused to another. Under section 49, a person who has entrusted another person with carrying out a task is liable for the damage caused by that other person in the course of, or in connection with the performance of, that task. THE LAW
13. The Government contested the standing of the applicant’s son to continue the application in his father’s stead, after the latter had passed away on 5 June 2018 (see paragraph 3 above). The Government argued that the right to be presumed innocent was eminently personal and could not be considered transferable, and pointed out that the applicant’s death had had no connection with the subject matter of the case. The Government relied in particular on the Court’s findings in the case of Sanles Sanles v. Spain ((dec.), no. 48335/99, ECHR 2000‐XI). 14. The applicant’s son pointed out that he was a close relative and an heir of the applicant. He contended that, where the Court was called upon to determine whether a deceased applicant’s heirs could pursue an application, the decisive point was not whether or not the right at stake was transferable, but whether the heirs could claim a legitimate interest in requesting the Court to deal with the case. The applicant’s son pointed out that he had a moral obligation to take the necessary action to see that justice was done. He relied, among other things, on the Court’s judgment in Ergezen v. Turkey (no. 73359/10, 8 April 2014). 15. The case of Sanles Sanles (cited above), relied on by the Government, concerned a situation where a deceased person’s heir wished to bring an application to the Court on that person’s behalf. The Court considered that the rights which had allegedly been violated were non‐transferable and dismissed the application. In a number of other cases where applicants had died in the course of the proceedings before it, the Court, in examining whether their heirs or close family members had standing to pursue the proceedings, also referred to the transferability or not of the rights which were at stake (see, for example, Thévenon v. France (dec.), no. 2476/02, ECHR 2006‐III; Angelov and Angelova v. Bulgaria (dec.), no. 16510/06, 7 December 2010; Bittó and Others v. Slovakia, no. 30255/09, § 74, 28 January 2014). 16. However, in more recent cases relating to situations in which applicants have died in the course of the proceedings before it, the Court has held that the decisive point was not whether the rights in question were or were not transferable to the heirs wishing to pursue the proceedings, but whether the heirs could in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant’s wish to exercise his or her individual and personal right to lodge an application (see Ergezen, cited above, § 29; Ivko v. Russia, no. 30575/08, § 68, 15 December 2015; and Provenzano v. Italy, no. 55080/13, § 96, 25 October 2018). The Court has also stated that human rights cases before the Court generally have a moral dimension, and persons near to an applicant may have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‐XII). 17. Turning to the present case, the Court observes that the person seeking to pursue the proceedings before it is the applicant’s son, and thus a close family member and an heir (see paragraph 3 above). Having regard to the other circumstances of the case and the considerations above, the Court is satisfied that the applicant’s son has a legitimate interest in pursuing the application in his father’s name and obtaining a judgment. 18. The applicant complained under Article 6 § 2 of the Convention that in his statement of 25 January 2013 the Minister of the Interior had presented him as guilty of the offences committed in 2011, despite the lack of a final conviction in that regard. 19. Article 6 § 2 reads as follows:
“ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
20. The Government raised an objection of non-exhaustion of domestic remedies. They argued that it had been open to the applicant to bring a tort action under the relevant provisions of the Obligations and Contracts Act (see paragraph 12 above). In support of this argument the Government submitted three judgments given in a single set of proceedings, namely tort proceedings against the Ministry of the Interior, brought by a person whom the head of the National Police Directorate had called a “bandit” in a statement to the media. The Sofia City Court had dismissed the claimant’s action on procedural grounds, despite considering it, in principle, meritorious (Решение No 4133 от 12.06.2017 г. на СГС по гр. д. No 7714/2015 г.). Subsequently, the Sofia Court of Appeal had awarded the claimant 500 Bulgarian levs (BGN), equivalent to 255 euros (EUR), in compensation for non-pecuniary damage (Решение No 2648 от 19.12.2017 г. на АС София по в. гр. д. No 3943/2017 г. ), but ultimately its judgment had been quashed by the Supreme Court of Cassation, once again on procedural grounds (Решение No 99 от 3.07.2019 г. на ВКС, IV г. о., гр. д. No 1876/2018 г.). The course of the proceedings after that is unclear. 21. The applicant contended that the judgments of the Sofia City Court and the Sofia Court of Appeal cited above, which had not come into effect, could not prove the existence of an effective domestic compensatory remedy. 22. The general principles in respect of exhaustion of domestic remedies are summarised in Vučković and Others v. Serbia [GC] (preliminary objections) (no. 17153/11 and 29 others, §§ 69-77, 25 March 2014). The Court reiterates in particular, as regards the burden of proof, that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time (ibid., § 77). 23. In previous similar cases against Bulgaria the Court has concluded that the Government had not shown that the remedy they referred to in the case at hand – a tort action under the Obligations and Contracts Act (see paragraphs 12 and 20 above) – could have been effective for the purposes of Article 35 § 1 of the Convention (see Maslarova v. Bulgaria, no. 26966/10, §§ 35 and 38, 29 January 2019, and Lolov and Others v. Bulgaria, no. 6123/11, §§ 48-51, 21 February 2019). In the present case the Government submitted three judgments of the domestic courts given in a single set of proceedings, and relied in particular on the judgment of the Sofia Court of Appeal, where a claimant had been awarded compensation for non-pecuniary damage for a breach of his right to be presumed innocent (see paragraph 20 above). However, that judgment and the judgment of the Sofia City Court were eventually quashed and have not come into effect. The Court cannot therefore, on this basis alone, reach a different conclusion as to the effectiveness of the remedy at issue from the conclusion reached in earlier cases (contrast Posevini v. Bulgaria, no. 63638/14, §§ 53-55, 19 January 2017, where one judgment, which had, however, become final, was sufficient for the Court to conclude that a tort claim had, in principle, a reasonable prospect of success, and was a remedy that must be pursued). 24. Accordingly, the Court finds that the Government have not shown that an effective domestic remedy existed, and dismisses their objection based on the non-exhaustion of such remedies. 25. Lastly, the Court notes that the application is neither manifestly ill‐founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 26. The applicant considered that the Minister of the Interior had stated “categorically”, “doubtlessly” and “in a narrative sentence” that his father had committed criminal offences, even though at the time the investigation concerning these offences had been pending. The statement could not be considered a critical political comment. The words had been uttered on a popular television show, watched by many people. 27. The Government contended that the Minister of the Interior’s statement of 25 January 2013 had been made spontaneously, and that the Minister had not in fact said whether, in his view, the applicant had been guilty of the offences committed in 2011. The applicant’s case had been given as an example concerning the work of the judiciary, in an effort by the Minister to make a critical political comment. 28. Under the Court’s case-law, the presumption of innocence under Article 6 § 2 of the Convention will be violated if a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before his guilt has been proven according to law (see, among other authorities, Allenet de Ribemont v. France, 10 February 1995, §§ 35-36, Series A no. 308, and Velyo Velev v. Bulgaria, no. 16032/07, § 46, ECHR 2014 (extracts)). In this context, the choice of words by public officials in their statements before a person has been tried and found guilty of an offence is important (see Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000‐X). The question whether a statement by a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances of the specific case (see Natsvlishvili and Togonidze v. Georgia, no. 9043/05, § 103, ECHR 2014 (extracts), and Lolov and Others, cited above, § 63). 29. In the case at hand, the applicant complained about a statement by the Minister of the Interior made on national television, quoted in paragraph 9 above. The statement was made in relation to the fact that the applicant had been placed under house arrest by the national courts, which the Minister criticised (see paragraphs 8 and 10 above). 30. Even if the Court may be prepared to accept that the words were uttered spontaneously, during a live television broadcast, while the Minister of the Interior was giving an example of decisions of the national courts which he disapproved of, it reiterates once again that the Minister, as a high‐ranking public official, was obliged to choose his words carefully (see paragraph 28 above). 31. In view of the circumstances of the case and the exact words uttered, the Court is satisfied that the statement at issue went beyond a comment on relevant factual developments or an explanation that a person had been suspected of having committed criminal offences (see, mutatis mutandis, Gutsanovi v. Bulgaria, no. 34529/10, § 200, ECHR 2013 (extracts), and Alexey Petrov v. Bulgaria, no. 30336/10, § 70, 31 March 2016): it could give the audience the impression that the applicant had undoubtedly committed an armed robbery, shot at police officers, taken a car and kidnapped the people in it. The statement was made at a time when the investigation in relation to these offences was still pending (see paragraph 8 above). 32. The Court has come to similar conclusions in many earlier cases, including against Bulgaria, finding a violation of Article 6 § 2 of the Convention (see, among others, Gutsanovi, § 201; Alexey Petrov, § 74: and Maslarova, § 46, all cited above; Butkevičius v. Lithuania, no. 48297/99, § 53, ECHR 2002‐II (extracts); and Petrov and Ivanova v. Bulgaria, no. 45773/10, § 46, 31 March 2016). It sees no reason to reach a different conclusion in the case at hand. 33. There has accordingly been a violation of Article 6 § 2 of the Convention. 34. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
35. The applicant’s son claimed 3,500 euros (EUR) in respect of non‐pecuniary damage. 36. The Government considered the claim excessive. 37. The Court is of the view that the applicant must have suffered non‐pecuniary damage as a result of the violation of his rights, as found above. It reiterates that family members who are entitled to pursue the application following the applicant’s death may also take the applicant’s place as regards claims for just satisfaction, including claims for non‐pecuniary damage (Sargsyan v. Azerbaijan (just satisfaction) [GC], no. 40167/06, § 53, 12 December 2017). In view of the circumstances of the case, the Court considers it justified to award the amount claimed by the applicant’s son, namely EUR 3,500. 38. The applicant’s son claimed in addition 1,800 Bulgarian levs (BGN), the equivalent of EUR 920, paid by his father to his legal representatives before the Court. In support of this claim the applicant’s son submitted a contract for legal representation dated 27 March 2013 and invoices. He claimed in addition BGN 28.8 (EUR 15) for postage, presenting the relevant receipts. 39. The Government considered the amount claimed for legal representation excessive. 40. The Court is of the view that the costs and expenses claimed were actually and necessarily incurred and are reasonable as to quantum. It therefore allows the claim in full, awarding the applicant’s son EUR 935 in total, plus any tax that may be chargeable to him. 41. Lastly, the Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay Mr Vladimir Vladimirov Stefanov, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 935 (nine hundred and thirty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 2 February 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Ilse Freiwirth Tim EickeDeputy RegistrarPresident