I incorrectly predicted that there's no violation of human rights in GENOV v. BULGARIA.

Judgment

FIFTH SECTION

CASE OF NIKOLAY GENOV v. BULGARIA

(Application no. 7202/09)

JUDGMENT

STRASBOURG

13 July 2017

FINAL

13/11/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Nikolay Genov v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,Nona Tsotsoria,André Potocki,Yonko Grozev,Mārtiņš Mits,Gabriele Kucsko-Stadlmayer,Lәtif Hüseynov, judges,and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 20 June 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 7202/09) 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 Nikolay Dimitrov Genov (“the applicant”), on 5 January 2009. 2. The applicant was represented by Mr V. Stoyanov, a lawyer practising in Pazardzhik. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3. The applicant alleged, in particular, that the national courts had failed to respond to an argument he had raised in criminal proceedings against him. 4. On 6 June 2016 the complaint above was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1966 and lives in Pazardzhik. 6. On 10 January 2007 the police searched the applicant’s home, where they found five one hundred dollar (USD) bills, which turned out subsequently to be counterfeit. 7. In May 2007 the applicant was charged by an investigator with having acquired those bills and with their possession, offences under Article 244 §§ 1 and 2 of the Criminal Code (see paragraph 16 below). However, the second charge was subsequently dropped and in July 2007 a prosecutor indicted the applicant for acquiring the notes “in the period between 2002 and 10 January 2007”, in the knowledge that they were counterfeit. It was noted in the description of the facts in the bill of indictment that in 2002 the applicant had sold a flat and that with part of the money had bought several one hundred dollar bills from a person on the street. 8. The applicant was brought to court. He testified to Pazardzhik Regional Court (hereinafter “the Regional Court”), which examined the case at first instance, that it had been his brother who had given him money in 2002 after selling a flat. The applicant had bought dollars with that money, USD 1,000, of which he had been keeping USD 500 “for hard times”. He stated that he did not know that the notes were counterfeit. 9. The applicant’s brother testified as well. He confirmed that in 2002 he had sold his flat and had given the applicant money to buy dollars. He added that in the following years he and the applicant had regularly exchanged the Bulgarian levs they had had for dollars. He admitted that he was uncertain whether the counterfeit notes found in the applicant’s home by the police had been the ones the applicant had acquired in 2002. 10. In a judgment of 25 January 2008 the Regional Court convicted the applicant. However, the conviction was for having acquired counterfeit notes “in the period between 26 March 2005 and 10 January 2007”, as it had been only on the former date that the act of acquiring such notes had been criminalised (see paragraph 16 below). The Regional Court acquitted the applicant for having acquired the notes between 2002 and 26 March 2005. 11. When summarising the facts of the case as it had established them, the Regional Court repeated what the applicant had said, namely that in 2002 his brother had given him money to buy dollars. It also referred to the applicant’s brother’s explanation that after 2002 the two men had regularly exchanged their Bulgarian levs for dollars. It did not comment any further on the question of when the applicant had acquired the counterfeit notes. Finding in addition that he had been aware at the time of obtaining those notes that they had been counterfeit (the key evidence in that regard had been a statement by the applicant made in a telephone conversation with another person on 9 January 2007), the Regional Court found him guilty of that charge. In addition, it found him guilty of another offence and gave him a suspended sentence of two years’ imprisonment. 12. The applicant lodged an appeal, arguing that there was no evidence substantiating the conclusion that, when he had bought the five hundred dollar bills in 2002, he had been aware that they were counterfeit. 13. In a judgment of 24 April 2008 the Plovdiv Court of Appeal (hereinafter “the Court of Appeal”) upheld the Regional Court’s judgment, endorsing its reasoning. Once again, when summarising the facts, it restated what the applicant had said, namely that in 2002 his brother had given him money to buy dollars, which he had done, and had kept USD 500 hidden in his house. It did not comment any further on the question as to when the applicant had acquired the counterfeit notes found on him. 14. In an appeal on points of law lodged with the Supreme Court of Cassation, the applicant stated in particular the following:
“The two lower instances established unconditionally that [the applicant] had bought the five counterfeit dollar bank notes in the spring of 2002 with money given to him by his brother. ...
At the time that did not amount to a criminal offence, which is why [the applicant] was acquitted of having acquired the notes in the period before 26 March 2005. But where is the proof that those notes in particular were acquired after that date? There can only be guesses ... and a conviction cannot be based on guesses.”
15. In a final judgment of 24 November 2008 the Supreme Court of Cassation upheld the Court of Appeal’s judgment, failing to comment on the applicant’s argument that it had not been shown that he had acquired the counterfeit bank notes after 26 March 2005. II. RELEVANT DOMESTIC LAW AND PRACTICE
16. Knowingly using counterfeit bank notes and putting such notes into circulation are offences under Article 244 § 1 of the Criminal Code. After an amendment which entered into force on 26 March 2005, acquiring such notes with the knowledge that they are counterfeit was added to the list. As to the possession of counterfeit notes, it is an offence only where the notes possessed are “in large quantities” (Article 244 § 2 of the Code). The national courts have accepted that notes with face value totalling, for instance, 4,400, 5,700 or 20,000 euros (EUR) represented such “large quantities” (Решение No 33 от 17.02.2010 г. на ВКС по н. д. No 700/2009 г., III н. о., НК; Решение No 173 от 7.05.2015 г. на ВКС по н. д. No 50/2015 г., II н. о., НК; Решение No 407 от 9.03.2016 г. на ВКС по н. д. No 1127/2015 г., II н. о., НК). At the relevant time the above offences were punishable by up to eight years’ imprisonment. 17. Trial courts are obliged to give reasons for their decisions by virtue of Article 301 of the Code of Criminal Procedure. For courts of appeal and the Supreme Court of Cassation, the obligation is set out in Article 339 of the Code. It states in particular that when upholding a lower court’s judgment those courts have to indicate the reasons for not accepting the arguments raised before them by the parties. 18. Pursuant to Article 422 § 1 (4) of the Code of Criminal Procedure, the criminal proceedings are reopened when a judgment of the European Court of Human Rights establishes a violation of the Convention which is of particular importance for the case. A request in that regard is to be made by the Chief Public Prosecutor and is to be examined by the Supreme Court of Cassation. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
19. The applicant complained that the domestic courts examining the charges against him had failed to respond to his argument that it had not been shown that he had acquired the counterfeit bank notes after 26 March 2005, namely at a time when acquiring such notes had been an offence. He relied generally on Article 6 and Article 7 of the Convention. 20. The Court is of the view that the complaint falls to be examined under Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Arguments of the parties
21. The Government were of the view that the applicant had not duly raised the argument at issue in his appeal against the Regional Court’s judgment. They argued that he had failed therefore to exhaust the available domestic remedies and submitted that the application was inadmissible. 22. The Government argued further that the complaint under examination was of a fourth-instance character and that in any event the national courts had set out the reasons for their decisions in a “sufficiently clear” manner. In addition, the Government contended that the applicant’s claim that he had acquired the counterfeit bank notes in 2002 had not been proven. 23. The applicant disagreed and reiterated his complaint. B. The Court’s assessment
1. Admissibility
24. The Court takes note of the Government’s argument that the applicant did not exhaust the available domestic remedies since he failed to raise clearly the argument in question in his appeal against the Regional Court’s judgment (see paragraph 21 above). 25. The Court observes that in his appeal against the first-instance judgment the applicant brought up the point that there was no evidence of him having knowingly acquired the counterfeit bank notes in 2002. Moreover, he raised the argument at issue in an unambiguous manner in his appeal on points of law (see paragraphs 12 and 14 above). Accordingly, the Court cannot conclude that the applicant failed to duly exhaust the available domestic remedies and rejects the Government’s inadmissibility plea. 26. The Court notes furthermore that the application is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits
27. The Court reiterates that Article 6 § 1 of the Convention obliges the domestic courts to indicate with sufficient clarity the grounds on which they base their decisions (see, among other authorities, Hadjianastassiou v. Greece, 16 December 1992, § 33, Series A no. 252, and Taxquet v. Belgium [GC], no. 926/05, § 91, ECHR 2010). The extent of the duty to give reasons varies according to the nature of the decision and must be determined in the light of the circumstances of the case. While courts are not obliged to give a detailed answer to every argument raised, it must be clear from the decision that the essential issues of the case have been addressed (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303‐A; Boldea v. Romania, no. 19997/02, §§ 29-30, 15 February 2007; and Tchankotadze v. Georgia, no. 15256/05, § 103, 21 June 2016). 28. In the present case, the applicant stated that he had bought the counterfeit bank notes in 2002, namely at a time when acquiring such notes was not a criminal offence. He defended that version of events before the first-instance Regional Court (see paragraph 8 above) and the Court already found that he raised the matter in a sufficiently clear manner before the Court of Appeal and the Supreme Court of Cassation (see paragraph 25 above). 29. The Court next notes that it is not its task to assess whether the applicant’s submission at issue was well-founded and supported by evidence as it falls on the national courts to determine questions of that nature (see Ruiz Torija, cited above, § 30). For the Court, it suffices to conclude that the submission was arguable, as the applicant’s version of events was at least partially corroborated by his brother’s testimony, confirming that in 2002 the applicant had received money from him to buy US dollars (see paragraph 9 above). 30. Furthermore, the applicant’s argument was clearly relevant, as national law did not criminalise the mere possession of counterfeit bank notes, but only the possession of such notes in large quantities (see paragraph 16 above). This not being the case, the initial criminal charge against the applicant of possession of counterfeit bank notes was subsequently dropped (see paragraph 7 above) and he was indicted and brought to court for having “acquired” such notes. However, acquiring counterfeit bank notes was criminalised only on 26 March 2005, which made it crucial to show both that the applicant had acquired the counterfeit notes after this date and that he had been aware that they were counterfeit, a requirement which was in line with the presumption of innocence, which places the burden of proof of all elements of the accusation on the prosecution and requires that any doubt should benefit the accused (see, for example, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, §§ 76-77, Series A no. 146, and Melich and Beck v. the Czech Republic, no. 35450/04, § 49, 24 July 2008). 31. The national courts were therefore obliged to examine the applicant’s argument and give a reasoned answer to it. This obligation, contained implicitly in Article 6 § 1 of the Convention (see paragraph 27 above), was also provided for in Articles 301 and 339 of the Code of Criminal Procedure (see paragraph 17 above). 32. However, the Court is not satisfied that the domestic courts gave a sufficiently reasoned answer to the argument at issue. Even though the Regional Court and the Court of Appeal restated in their summaries of the relevant facts what the applicant had said, namely that in 2002 his brother had given him money to buy US dollars, they did not analyse that statement or indicate whether they considered it credible. More importantly, they did not explain why and on the basis of what evidence they considered that the applicant had acquired the counterfeit bank notes much later, namely after 26 March 2005 (see paragraphs 11 and 13 above). Apart from the statements of the applicant and his brother, no evidence was collected concerning that question. It appears that the courts merely “adjusted” the time when the offence must have been committed, correcting the time initially indicated in the indictment (see paragraph 7 above), to take into account the date on which such an offence had been criminalised. 33. Nor did the Supreme Court of Cassation comment on the argument at issue, even though the applicant clearly raised it in his appeal on points of law (see paragraphs 14-15 above). 34. The Court therefore concludes that the domestic courts failed to give sufficiently reasoned judgments, as required by Article 6 § 1 of the Convention. 35. There has accordingly been a violation of that provision. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. 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.”
A. Damage
37. The applicant claimed 10,000 euros (EUR) in respect of non‐pecuniary damage. 38. The Government contested the claim. 39. The Court finds that the applicant must have suffered anguish and frustration as a result of the violation of his right to a fair trial found in this case. Judging on an equitable basis, it awards him EUR 2,400 under this head. 40. It must in addition be pointed out that a judgment in which the Court finds a breach of the Convention or the Protocols thereto imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the breach and to redress as far as possible its effects. The most appropriate individual measure in cases where the domestic courts have not examined an applicant’s key argument, in breach of Article 6 § 1 of the Convention is, as a rule, to reopen the proceedings in due course and re‐examine the case in keeping with all the requirements of a fair trial (see, among others, Yanakiev v. Bulgaria, no. 40476/98, § 90, 10 August 2006). The Court notes, in this connection, the power of the Chief Public Prosecutor to request the reopening of proceedings following a judgment of this Court (see paragraph 18 above). B. Costs and expenses
41. The applicant claimed EUR 3,000 for his legal representation before the Court and submitted a time-sheet in support. He requested that any sum awarded under this head be transferred directly into the bank account of his lawyer, Mr V. Stoyanov. 42. The Government contested the claim. 43. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 for the applicant’s legal representation in the proceedings before it. As requested by the applicant, that sum is to be transferred directly into his representative’s bank account. C. Default interest
44. 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,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly to the applicant’s legal representative;
(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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 13 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan BlaškoAngelika NußbergerDeputy RegistrarPresident