FIFTH SECTION

DECISION

Application no. 44768/10 Boris Tsvetanov YANKOV against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 18 June 2019 as a Chamber composed of:

Angelika Nußberger , President, Yonko Grozev, André Potocki , Mārtiņš Mits, Gabriele Kucsko-Stadlmayer, Lәtif Hüseynov , Lado Chanturia , judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 20 July 2010,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Boris Tsvetanov Yankov , is a Bulgarian national, who was born in 1968 and lives in Sofia. He was represented before the Court by Mr M. Ekimdzhiev and Mrs S.H. Stefanova , lawyers practising in Plovdiv.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The applicant is a former notary.

4 . On 27 August 1999 a certain Ms T.G. lodged a complaint with the Sofia district prosecutor ’ s office. She had found that her father ’ s coffin was missing from the grave that she and her aunt owned. She had discovered the existence of a declaration signed in hers and her aunt ’ s name and certified by the applicant, through which Ms T.G. had ceded her property rights over the grave to a third party. On 7 March 2000 the prosecution opened criminal proceedings against the applicant. On 16 March 2007 the Sofia district prosecutor ’ s office filed an indictment against the applicant with the Sofia District Court. The applicant was charged with drawing up a document containing false statements in an official capacity, an offence under Article 311 § 1 of the Criminal Code 1968. By a judgment of 10 December 2007 the Sofia District Court found the applicant not guilty and acquitted him. The Sofia City Court quashed the lower court ’ s judgmen t on appeal. In a judgment of 4 March 2009 it found the applicant guilty and sentenced him to six months ’ imprisonment, suspended. By a final judgment of 26 January 2010 the Supreme Court of Cassation upheld the applicant ’ s conviction.

5. By a decision of 13 February 2010 the Council of Notaries (“the Council”) disbarred the applicant and struck him off the Notary Chamber ’ s register of notaries on the grounds that, following his conviction, his situation had become incompatible with the requirements of section 8(1)(4) of the Notaries Act, which provided that persons sentenced to imprisonment for a criminal offence committed intentionally were not allowed to practise as a notary, regardless of whether the relevant rehabilitation period had expired.

6. Although under the Notaries Act there was no possibility to appeal, the applicant sought a judicial review of the decision by way of two separate sets of proceedings.

7. On 2 September 2010 the applicant filed a claim with the Supreme Court of Cassation requesting that the court declare the Council ’ s decision null and void. He argued, in particular, that the Council lacked competence to take such a decision and that only a public body could disbar him. By a decision of 8 November 2010 that court dismissed the claim as inadmissible, finding that under the Notaries Act there was no possibility of appeal against the Council ’ s decisions. By a final decision of 7 August 2011 another panel of the Supreme Court of Cassation upheld the decision of 8 November 2010 on appeal.

8 . On 8 September 2010 the applicant attempted to challenge the Council ’ s decision before the Supreme Administrative Court, claiming that the Council had lacked competence to take it. By a decision of 24 March 2011 a three-member panel of that court dismissed the applicant ’ s appeal as inadmissible, finding that under the Notaries Act there was no possibility to appeal against the Council ’ s decision before the courts. The court referred to Article 159 § 1 of the Code of Administrative Procedure 2006, which provided that an appeal against a decision that was itself not amenable to appeal had to be dismissed and the proceedings terminated.

9 . The applicant challenged the decision before a five-member panel of the Supreme Administrative Court, which, by a decision of 4 July 2011, quashed the lower-instance decision and referred the matter back to another three-member panel of the same court for re-examination. The court found that the Council ’ s decision was an individual administrative decision adversely affecting the applicant ’ s rights and as such was amenable to judicial appeal. The court referred, in particular, to Article 120 § 2 of the Bulgarian Constitution of 1991, which provided that every natural or legal person could challenge any administrative decision affecting them except for those specifically excluded by law. However, by a new decision of 26 October 2011 a three-member panel of the Supreme Administrative Court again found the applicant ’ s appeal inadmissible on the grounds that the Council ’ s decision could not be appealed against before the courts. By a final decision of 24 February 2012 a five-member panel of the same court upheld the lower-instance decision. The court found that under the Notaries Act it was possible to appeal against certain decisions of bodies of the Notary Chamber; however, the decisions of the Council were not among them. The court further found that the inability to appeal against the decisions of the Council was also related to the function of that body, and that the applicant had lost the right to practise as a notary by the fact of his conviction, while the Council had been obliged to take the decision to strike him off the register pursuant to section 37(1) of the Notaries Act.

10. Article 120 of the Constitution of 1991 provides:

“1. The courts shall review the lawfulness of the decisions and actions of the administrative authorities.

2. Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.”

11. Article 311 § 1 of the Criminal Code 1968 makes it an offence for a public official, in the exercise of his or her duties, to draw up an official document certifying false circumstances or statements with the intention of having the document used as proof of the existence of those circumstances or the veracity of those statements. The offence is punishable by a maximum of five years ’ imprisonment, with the possibility for the criminal court to also revoke the person ’ s right to practise in that profession.

12 . The status of notaries is governed by the Notaries Act 2007. Section 8(1) sets out a number of requirements that an individual has to meet in order to be able to practise as a notary. In particular, notaries must (a) have a degree in law and at least three years ’ relevant professional experience; (b) have successfully sat an examination and as a result been admitted to the Notary Chamber ’ s register of notaries; (c) have never been sentenced to imprisonment for a criminal offence committed intentionally, regardless of whether the relevant rehabilitation period has expired; (d) not have had the right to practise as a notary or lawyer revoked; (e) not have had the right to exercise a commercial activity revoked; (f) not be in insolvency proceedings; (g) not be a person declared insolvent whose rights have not been reinstated; and (h) not have been convicted of bankruptcy (section 8(1)(1)-(8)).

13 . Section 35(1)(1)-(4) of the Notaries Act lists the following grounds on which a notary loses the right to practise: (a) on his or her own request made in writing to the Notary Chamber; (b) in case of death or declaration of incapacity; (c) if he or she does not meet the requirements of section 8 or exercises an incompatible activity under section 9 of the Notaries Act; or (d) if a disciplinary sanction has been imposed under section 75(1)(4) of the Notaries Act.

14 . Section 37(1) provides that the Council strikes an individual off the Notary Chamber ’ s register of its own motion, indicating (a) the grounds on which the notary has lost the right to practise; (b) the name of the person to whom the notary ’ s archive was handed to; (c) the date on which that was done. Under Section 37(2), the right to practise is considered revoked once the notary is struck off the register, except in cases of death or declaration of incapacity.

15. Under section 39(1), an individual can request to have the right to practise as a notary restored when (a) the said right was revoked for a fixed period of time and that period has expired; or (b) when the said individual has ceased exercising the incompatible activity under section 9(1 )( 1) on grounds of which the right had been revoked.

16 . Section 52(1) provides that the bodies of the Notary Chamber are its General Assembly, the Council, the Control Council and the Disciplinary Committee. Under the Notaries Act it is possible to appeal against decisions of the bodies of the Notary Chamber in several cases. These include the possibility to appeal against the decisions of the General Assembly of the Notary Chamber before the Supreme Administrative Court (section 60), and the possibility to appeal against the decisions of the Disciplinary Committee in disciplinary proceedings against notaries and deputy notaries before the Supreme Court of Cassation (section 80). Under the Notaries Act it is not possible to seek a judicial review of decisions of the Council to strike an individual off the Notary Chamber ’ s register.

17. The relevant provisions concerning the remedies for length of proceedings available under domestic law have been summarised in the Court ’ s decisions in the cases of Balakchiev and Others v. Bulgaria (( dec. ), no. 65187/10, §§ 18-37, 18 June 2013) and Valcheva and Abrashev v. Bulgaria (( dec. ), nos. 6194/11 and 34887/11, §§ 47-66, 18 June 2013).

COMPLAINTS

18 . The applicant complained under Article 6 § 1 (a) that he had been denied effective access to a court in respect of his disbarment, (b) that the criminal proceedings against him had been unfair, and (c) that the criminal proceedings had been unreasonably lengthy.

19. He also complained under Article 6 § 2 that the presumption of innocence had been violated because the courts had failed to prove his guilt. The applicant further complained under Article 7 that the acts he had been convicted for had not constituted a criminal offence.

20. The applicant also complained under Article 1 of Protocol No. 1 that he had been deprived of the possibility to receive an income from his duties as a notary as a result of his disbarment.

21 . Lastly, the applicant complained under Article 13 in relation to Article 6 §§ 1 and 2, Article 7 and Article 1 of Protocol No. 1 that he had had no effective remedies at his disposal.

THE LAW

22. The applicant complained that he had been denied effective access to a court because under domestic law it had not been possible to challenge the Council ’ s decision with which he had been disbarred and struck off the register of notaries. He relied on Article 6 § 1 and Article 13 of the Convention. Article 6 § 1, in so far as relevant, reads:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 13 reads:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

23. The Court reiterates that Article 6 § 1 secures the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Osman v. the United Kingdom , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3166, § 136, and Cordova v. Italy (no. 1), no. 40877/98, § 48, ECHR 2003-I). For Article 6 § 1 to be applicable under its civil limb, there must be a genuine and serious dispute over a right that can be said, at least on arguable grounds, to be recognised in domestic law. The dispute may relate not only to the actual existence of the right but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for that right (see, among other authorities, Fazliyski v. Bulgaria , no. 40908/05, § 51, 16 April 2013).

24. In the instant case, the Court first notes that the applicant had been duly registered and had the right to practise as a notary. As this registration was not limited in time, the applicant could, in principle, maintain that under Bulgarian law he had a right to remain on the register of notaries. At the same time, the Court notes that in accordance with the applicable legislation, namely section 8(1) of the Notaries Act, the right of the applicant to continue practising as a notary was conditioned on the lack of a criminal conviction for an intentional crime (see paragraphs 12-13 above).

25. It is true that, under the applicable legislation, the applicant did not have the possibility to challenge the Council ’ s decision (see paragraphs 8, 9 and 16 above). The latter decision, however, was not one through which that body examined the merits of his case. In striking the applicant off the register of notaries, the Council enjoyed no discretion. The legislator itself had made disbarment mandatory upon it being established that the individual concerned had been sentenced to imprisonment for a criminal offence committed intentionally (see Bia gioli v. San Marino ( dec. ), no. 64735/14, § 64, 13 September 2016). In the instant case, the applicant ’ s conviction for certifying a document containing false statements became final with the Supreme Court of Cassation ’ s decision of 26 January 2010. In accordance with the national law, the applicant thereby fell within a category of persons excluded from practising as a notary.

26. The Court notes that the applicant has not submitted that the Council took a decision that was contrary to the requirements of the law but he rather challenged his criminal conviction and questioned the competence of the Council to take the decision for his disbarment. As regards the latter point, the Court notes that the relevant law unequivocally empowered the Council to strike an individual off the register upon the establishment of statutory grounds on which a notary lost the right to practice (see paragraph 14 above). No dispute existed as to whether or not the applicant had been sentenced to imprisonment for a criminal offence committed intentionally (compare and contrast Deixler v. Austria , no . 17798/91 , Commission decision of 22 October 1997, §§ 57-58).

27. In these circumstances, the Court finds that there was no genuine and serious dispute about a right guaranteed under national law.

28. It follows that Article 6 is not applicable in the present case.

29. To the extent that the applicant invoked Article 13, he failed to substantiate that he needed a remedy to enforce the substance of any of the Convention rights and freedoms.

30. Accordingly, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

31. The applicant also complained that the criminal proceedings against him had been excessively lengthy and that he had had no effective remedy at his disposal, under Article 6 § 1 and Article 13 of the Convention.

32. The Court reiterates that in its decisions in the cases of Balakchiev and Others (cited above, §§ 53-85) and Valcheva and Abrashev (cited above, §§ 92-124), it found that the remedies for unreasonable length of proceedings introduced in 2012 in Bulgarian law, under sections 60a et seq. of the Judiciary Act 2007 and section 2b of the State and Municipalities Liability for Damage Act 1988, allowing compensation to be awarded, could be regarded as effective. It further found that the remedies were available to applicants who, as in the present case, had lodged their applications with the Court before the remedies ’ introduction. There is nothing in the present case to suggest that those remedies would not be able to provide the applicant with adequate redress.

33. It follows from the above that the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings must be rejected under Article 35 §§ 1 and 4 for non-exhaustion of domestic remedies.

35. Lastly, the applicant raised additional complaints under Article 6 §§ 1 and 2, Article 7, Article 13 of the Convention and under Article 1 of Protocol No. 1 (see paragraphs 18 - 21 above). However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

36. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 July 2019 .

Milan Blaško Angelika Nußberger Deputy Registrar President