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FOURTH
SECTION
DECISION
Application no.
33065/05
Krastyo Damyanov KRASTEV
against Bulgaria
The
European Court of Human Rights (Fourth Section), sitting on 15 May
2012 as a Chamber composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Päivi Hirvelä,
George
Nicolaou,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy Section
Registrar,
Having
regard to the above application lodged on 23 August 2005,
Having
regard to the observations submitted by the respondent Government,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Krastyo Damyanov Krastev, is a Bulgarian national who
was born in 1934 and lives in Sinyo Bardo. The Bulgarian Government
(“the Government”) were represented by their Agent, Mrs
N. Nikolova, of the Ministry of Justice.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
an unspecified date in 2003 the applicant, a doctor, lodged a private
criminal complaint against V.V. with the Mezdra District Court. The
applicant claimed that V.V. had publicly defamed him by saying that
the applicant had administered the wrong medicine to V.V.’s
mother and that she had died as a result. The applicant also lodged a
civil action for compensation for non-pecuniary damage which he
claimed he had suffered.
- By
a judgment of 9 November 2004 the court acquitted V.V. and dismissed
the applicant’s civil action, finding that the defendant had
publicly stated that the applicant had given an unspecified medicine
to his mother and had failed to inform him of its nature. The court
noted that this statement did not contain any accusation that the
applicant had caused the death of the defendant’s mother.
- The
judgment was pronounced publicly in the presence of the applicant and
his counsel. The court noted that it was subject to appeal within a
fifteen-day period following its pronouncement. The court further
noted that in case of an appeal a hearing before the Vratza Regional
Court was to be held on 20 January 2005. The judgment was pronounced
without reasons, which were to be delivered later.
- The
applicant alleged that on several occasions he checked at the court’s
registry in order to determine whether the reasons for the judgment
had been delivered, but to no avail. It appears that on 17 December
2004 the applicant brought the issue to the attention of the
president of the court by submitting a written request to be served
with the reasons.
- On
29 December 2004 the applicant obtained the reasons.
- On
4 January 2005 the applicant filed an appeal against the judgment. In
a decision of 5 January 2005 the Mezdra District Court returned the
appeal to the applicant as having been submitted after the expiry of
the fifteen-day time-limit.
- The
applicant’s appeal against this decision was dismissed by the
Vratza Regional Court on 22 March 2005. The court stated that the
deadline for lodging an appeal had been 24 November 2004. It noted
that the time limit for delivering the reasons was not related
to the one for lodging an appeal. The court concluded that the
belated delivery of the reasons had not impaired the applicant’s
right to make an effective appeal, as he could have lodged an appeal
and presented additional arguments at a later stage.
B. Relevant domestic law and practice
1. Appeals against first-instance judgments in criminal
cases
- At
the relevant time, an appeal was to be lodged with the first instance
court within fifteen days of the pronouncement of the judgment
(Article 318 of the Code of Criminal Procedure 1974). The court would
check whether the appeal satisfied the procedural requirements and,
if so, send it to the court of appeal (Article 332).
- The
appeal against the judgment might be detailed, containing specific
grounds for contesting the judgment, or open-ended (бланкетна
жалба). In substance, an open-ended
appeal might contain only a declaration that the first-instance
judgment was wrong (реш. на ВтАС
№ 165 от 24.19.2009 по в.н.о.х.
д. № 101/2009 г., and реш.
№ 135 от 1.07.2005 г.
ВтАС по в. н. о.
х. д. № 139/2005 г., н. о.). The
practice of submitting open-ended appeals in criminal cases was, and
continues to be, common in Bulgaria (see, among many others, реш.
от 11.11.2004 г. на ВтАС
по в.н.о.х.д. №
240/2004 г. н.о.; реш. № 24
от 12.03.2005 г. на ВтАС
по в. н. о. х. д. №
3/2005 г., н. о.; and реш. от
28.09.2010 по в.н.о.х.д №
255/2010 на АС Варна).
- Until
the hearing and regardless of whether a detailed appeal or an
open-ended appeal was filed, the appellant could submit additional
written pleadings in order to supplement his appeal (Article 319 §
3 of the 1974 Code,
реш. от
13.07.2004 г. на ВтАС по
в. н. о. х. д. № 113/2004 г.,
н. о.).
- The
court of appeal was obliged to examine the lawfulness and the
correctness of the entire judgment, regardless of the grounds of
appeal specified by the parties (Article 313 § 1 of the 1974
Code). This state of affairs was valid even when, in the case of an
open-ended appeal, the appellant did not supplement the appeal with
additional arguments (реш. от
16.04.2004 г. на ВнАС по
в.н.д. № 312/2003, н. о.; реш.
от 18.01.2005 г. на ВтАС
по в. н. о. х. д. №
234/2004 г., н. о.; and реш. от
18.05.2009 по в.н.ч.х.д. №
247/2009 на ОС Пазарджик).
- The
above-mentioned provisions were reproduced almost verbatim in the new
Code of Criminal Procedure 2005 (“the 2005 Code”)
(Articles 314 § 1, 319, 320 § 3).
2. Reasons for the judgment in criminal cases
- At the relevant time, in factually or legally complex
cases the reasons for the judgment could be delivered after the
judgment but not later than fifteen days following its pronouncement
(Article 306 of the 1974 Code).
- According
to the case-law of the Supreme Court of Cassation, the periods for
lodging an appeal and for delivering the reasons for a judgment run
independently and each party to the proceedings is duty-bound to
observe the time-limit for lodging an appeal. This is so because the
party could file an appeal and supplement it with additional
arguments once the reasons for the judgment were delivered (реш.
на ВКС № 664 от
13.12.2004 по н. д. № 326/2004 г.,
III н. о.).
- Pursuant
to the 2005 Code, the reasons for the judgment may be delivered after
the judgment but not later than fifteen days following its
pronouncement. In factually or legally complex cases the reasons for
the judgment may be delivered within thirty days after its
pronouncement (Article 308).
COMPLAINT
- The
applicant complained, without relying on a particular Convention
Article, that, as a result of the belated delivery of the reasons for
its judgment, the domestic court had thwarted his right to appeal
against the judgment.
THE LAW
- The
applicant complained that he had not had access to the court of
appeal because his appeal had been rejected as submitted out of time.
His complaint falls to be examined under Article 6 § 1 which, in
so far as relevant, provides that:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
Government argued, in particular, that it was open to the applicant
to submit an open-ended appeal and he should not have waited for the
reasons for the judgment to be delivered. They further maintained
that the applicant could have requested the reopening of the
proceedings or an extension of the deadline for submitting an appeal.
- The
applicant did not submit observations in reply.
- The
Court reiterates that the right to a fair hearing, as guaranteed by
Article 6 § 1 of the Convention, embodies the “right to a
court”, one aspect of which is the right of access, namely the
right to institute proceedings before courts in civil matters (see
Golder v. the United Kingdom, 21 February 1975, §
36, Series A no. 18). While Article 6 § 1 of the Convention does
not compel the Contracting States to set up courts of appeal or of
cassation, where such courts do exist the proceedings before them
must comply with the guarantees of Article 6 (see, among many other
authorities, Andrejeva v. Latvia [GC], no. 55707/00,
§ 97, ECHR 2009 ...).
- Turning
to the present case, the Court notes at the outset that the applicant
lodged a private criminal complaint before the Vratza District Court
but also participated in the proceedings as a civil claimant. Thus
Article 6 applies to the proceedings at hand (see Perez v. France
[GC], no. 47287/99, §§ 62-72, ECHR 2004 I)
and the Court must examine whether by refusing to examine his appeal
on the merits as submitted out of time the domestic courts unlawfully
restricted the applicant’s right of access to court.
- The Court reiterates that the right of access to court
is not absolute and may be subject to limitations, since the right of
access by its very nature calls for regulation by the State. In this
respect, the Contracting States enjoy a certain margin of
appreciation, although the final decision as to the observance of the
Convention’s requirements rests with the Court. The Court must
be satisfied that the limitations applied do not restrict or reduce
the access left to the individual in such a way or to such an extent
that the very essence of the right is impaired (see, among other
authorities, Angel Angelov v. Bulgaria, no. 51343/99, §
35, 15 February 2007; Kreuz v. Poland, no. 28249/95, §
54, ECHR 2001 VI). Furthermore, a limitation will not be
compatible with Article 6 § 1 if it does not pursue a
legitimate aim and if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
achieved (see Ashingdane v. the United Kingdom, 28
May 1985, § 57, Series A no. 93).
- The
Court observes that in the present case the time-limit for lodging an
appeal against the first-instance judgment was fifteen days. The
applicant did not complain that the time-limit was too short. The
Court recalls that time-limits such as the one at issue are designed
to ensure the proper administration of justice and compliance with,
in particular, the principle of legal certainty (see Mikulová
v. Slovakia, no. 64001/00, § 52, 6 December 2005). It can be
concluded therefore that the domestic court’s decision not to
admit the applicant’s appeal on account of his failure to
comply with the time-limit pursued a legitimate aim. It remains to be
established whether such an approach was proportionate.
- The
Court observes that, in accordance with the relevant domestic
provisions in force at the material time, the period for lodging an
appeal against a first-instance judgment overlapped with the period
for delivery of the reasons for the judgment. The Court takes into
account the margin of appreciation afforded to States in regulating
the right of access to court and the judicial procedure and notes
that it is not called upon to assess, as such, the Bulgarian system
of delivering reasons for convictions or acquittals and the rules
regulating appeals against such judgments. It must confine its
attention as far as possible to the issue raised by the specific case
before it (see De Geouffre de la Pradelle v. France,
16 December 1992, § 31, Series A no. 253 B).
- In
that connection, the Court notes that domestic law and practice
provided for the possibility of filing an open-ended appeal.
- In
accordance with the case-law of the domestic courts, with which the
applicant’s counsel should have been familiar, the possibility
to file an open-ended appeal is given to appellants in order to allow
them to comply with the deadline for lodging an appeal. An appellant
who files an open ended appeal is relieved from the requirement
to state the specific grounds for his or her appeal (see, by
contrast, Hadjianastassiou v. Greece, 16 December 1992,
§ 36, Series A no. 252). Thus it is not necessary for the
applicant or his lawyer to be familiar with the exact reasoning of
the first-instance court. Moreover, once the reasons are delivered,
the appellant may submit additional arguments or may withdraw his or
her appeal. In any event, even if the applicant does not file
additional arguments after being notified of the reasoned judgment,
the court is still bound to conduct a full review of the
first-instance judgment (see paragraphs 12 and 13 above).
- In
view of that and despite the fact that the domestic court, contrary
to the relevant procedural rules, delivered its reasons with a
significant delay, it was for the applicant in the present case to
show the necessary diligence and lodge an appeal within the statutory
deadline, even before acquainting himself with the reasoning
contained in the judgment of the first-instance court. For the Court,
the domestic courts’ decision to reject his appeal for being
out of time did not impair the very essence of the applicant’s
right of access to court and was not disproportionate in the
circumstances.
- Accordingly,
the Court finds that the complaint is manifestly ill founded and
must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention. In these circumstances the Court need
not examine whether the applicant should have requested the reopening
of the case or an extension of the deadline.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı Lech
Garlicki
Deputy Registrar President
