FOURTH SECTION

DECISION

Application no . 3453/06 Kiril Zhelev ZHELEV against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 3 September 2013 as a Chamber composed of:

Ineta Ziemele , President, David Thór Björgvinsson , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , Vincent A. De Gaetano, Paul Mahoney, judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 5 January 2006,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Kiril Zhelev Zhelev , is a Bulgarian national, who was born in 1962 and lives in Sofia. He was represented by Ms N. Kovacheva and Ms T. Toromanova , lawyers practising in Sofia.

2 . The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Dimova and Mr V. Obretenov , of the Ministry of Justice.

A. The circumstances of the case

3 . On 6 February 2003 the applicant, when travelling by bus to the Czech Republic, tried to cross the Bulgarian-Yugoslav border at Kalotina . He was carrying 13,094 euros (EUR). He mentioned this fact and showed the money to the customs officials on duty only when they were about to start searching him and his luggage.

4 . The customs officers drew up a procès-verbal for a customs violation, considering that the applicant had failed to comply with his duty under section 11 of the Currency Act to declare th e export of cash (see paragraph 13 below), and seized the sum with a view to its possible forfeiture. The applicant refused to sign the procès-verbal . It does not appear that he objected to it.

5 . The customs authorities opened administrative proceedings. Later on, considering that the case might concern a criminal offence, they suspended those proceedings and sent the case file to the prosecuting authorities.

6 . The Slivnitsa district public prosecutor ’ s office opened criminal proceedings, but in a decision of 23 May 2003 discontinued them, finding that the applicant had not committed an offence as there was no indication that he had intentionally breached the Currency Act ’ s requirements.

7 . The customs authorities then resumed the administrative proceedings and on 10 June 2003 the head of the Kalotina customs office adopted a decision finding that the applicant had committed an administrative offence under section 11(2) of the Currency Act (see paragraphs 13 and 15 below). He imposed on the applicant a fine of 5,000 Bulgarian levs (BGN), the equivalent of about EUR 2,550, and, on the basis of section 17(3) of the Currency Act (see paragraph 16 below), ordered that the money which the applicant had failed to declare be forfeited.

8 . The applicant applied for judicial review of that decision. He argued that the procedure had been flawed because the decision had not been adopted by a competent body; in addition, he considered that that decision and the procès-verbal of 6 February 2003 did not contain all the elements required by law. The applicant also argued that he had not failed to meet his obligation under section 11(2) of the Currency Act, because he had intended to declare the money.

9 . Following a first-instance judgment in the applicant ’ s favour , which was quashed by the Sofia Regional Court, and the remittal of the case to the Slivnitsa District Court, in an additional statement dated 26 November 2004, the applicant pointed out, inter alia , that the money forfeited had not been his but had been the property of company G., on whose behalf he had been going to buy a car in the Czech Republic. He considered that the provision of section 20(3) of the Administrative Offences and Penalties Act 1969, which allowed the forfeiture of the object of an administrative offence only where it belonged to the offender (see paragraph 18 below), precluded the forfeiture of the undeclared money. In support of the statement that the money was not his, the applicant submitted the following documents: a document certifying that he had been paid per diem for an official trip on behalf of company G., and three contracts whereby private individuals loaned to the company BGN 21,000 in total. It is unclear whether the objection was accepted for examination.

10 . In a judgment of 27 April 2005 the Slivnitsa District Court allowed the application for judicial review and quashed the decision of 10 June 2003, finding that the procedural requirements of the Administrative Offences and Penalties Act had been breached. It did not examine the defence raised in the applicant ’ s statement of 26 November 2004, namely that the forfeited money was not his.

11 . The head of the Kalotina customs office filed an appeal. At the court hearing before the Sofia Regional Court the applicant urged that court to uphold the lower judgment. There is no indication in the case file that he reiterated his earlier argument in relation to company G.

12 . In a final judgment of 10 November 2005 the Sofia Regional Court reversed the District Court ’ s decision, finding that all procedural requirements had been complied with. Noting that section 18(1) of the Currency Act had in the meantime been amended, providing for lighter penalties in cases of failure to declare the export of cash (see paragraph 15 below) , it reduced the fine imposed on the applicant to BGN 1,000 (the equivalent to EUR 510). The Regional Court upheld the remainder of the decision of 10 June 2003, including the part concerning the forfeiture of the undeclared sum of EUR 13,094.

B. Relevant domestic law

1. The Currency Act 1999

13 . Section 11(2) of the Currency Act 1999, as in force up to July 2003, obliged all Bulgarian residents exporting cash to declare the amount to customs if it exceeded BGN 5,000 or the equivalent in another currency. For amounts exceeding BGN 20,000 or the equivalent, permission from the Bulgarian National Bank was also required.

14 . At present residents and non ‑ residents alike have to declare the amount of cash they are exporting if it exceeds the equivalent of EUR 10,000.

15 . Failure to comply with the above requirements amounts to an administrative offence punishable by a fine, if the breach does not constitute a criminal offence (section 18(1) of the Act). Until July 2003 the fine ranged from BGN 5,000 to 35,000 (the equivalent of EUR 2,560 to 17,950). In July 2003 it was decreased to BGN 1,000 to 3,000 (the equivalent of EUR 510 to 1,540).

16 . In addition, section 17(3 )( a) of the Currency Act 1999, as in force up to July 2003 (and subsequently the new section 20 of that Act), provided that any undeclared cash was to be forfeited.

2. The Administrative Offences and Penalties Act 1969

17 . As to the procedure to be followed when establishing an administrative offence and imposing a punishment, section 21 of the Currency Act, introduced in July 2003, refers to the Administrative Offences and Penalties Act 1969. As set out in its section 1, that Act provides general rules concerning administrative offences and punishments and the guarantees necessary for the protection of citizens ’ rights.

18 . The Administrative Offences and Penalties Act 1969 provides, in section 20(3), that items which are the subject of an administrative offence may be forfeited if they are property to the offender and if the relevant special statute so provides.

19 . The administration ’ s decision to impose an administrative penalty is subject to judicial review by the respective district court (section 59(1) of the Administrative Offences and Penalties Act 1969). Section 63 of the same Act, as worded at the material time, provided that the district court ’ s judgment was subject to appeal on points of law (cassation) before the respective regional court in the manner laid down in the Supreme Administrative Court Act 1997. Section 38 of that Act provided that only written evidence was admissible in cassation proceedings, and section 39 provided that the cassation court was to rule only on the grounds of appeal raised in the appeal. In practice, regional courts dealt with issues of fact and evidence in such cassation proceedings (see реш . от 20 юли 2000 г. по н. а. к. п. р. д. № 73/2000 г., ОС – Монтана, н. с-в; реш . от 18 май 2001 г. по к. н. а. х. д. № 44/2001 г., ОС – Монтана, НК; реш . от 15 март 2004 г. по к. н. а. х. д. № 791/2003 г., ОС – Велико Търново, НК; реш . от 10 май 2004 г. по к. а. н. д. № 367/2004 г., ОС – Пазарджик; реш . от 7 юни 2004 г. по к. н. а. х. д. № 453/2004 г., ОС – Пазарджик, НК; реш . от 20 септември 2004 г. по к. н. а. х. д. № 212/2004 г., ОС – Монтана, НК; реш . № 8 от 31 януари 2005 г. по к. н. а. х. д. № 594/2004 г., ОС – Шумен, НО; and реш . № 9 от 31 януари 2005 г. по к. н. а. х. д. № 628/2004 г., ОС – Шумен, НО ). Section 40(2) provided that, if the cassation court quashed the lower court ’ s judgment for serious breaches of the rules of procedure, it had to remit the case for reconsideration by a differently constituted panel. In other cases, the case was to be decided on the merits. Section 40(3) provided that if the cassation court was dealing with the case for a second time, it had to decide it on the merits.

COMPLAINTS

20 . The applicant complained, relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, that the domestic courts had failed to respond to his argument that the money he had not declared at the border had not been his, which would, pursuant to section 20(3) of the Administrative Offences and Penalties Act 1969, have barred its forfeiture.

21 . In addition, the applicant raised the following complaints:

(a) He complained under Article 6 § 1 of the Convention that the Sofia Regional Court had decided wrongly when dismissing his arguments that the decision of 10 June 2003 had been issued following a defective procedure;

(b) He complained also that criminal and administrative proceedings concerning the same act had been pending against him at the same time, because when transferring the case to the prosecuting authorities the customs authorities had not discontinued but merely suspended the administrative proceedings;

(c) Lastly, the applicant complained, relying on Article 13 of the Convention, that by forfeiting the undeclared money the authorities had interfered with the property rights of company G.

THE LAW

A. Alleged violation of Article 6 § 1 of the Convention on account of the domestic courts ’ failure to examine an argument raised by the applicant

22 . The applicant complained, relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, that the domestic courts which examined the case had not responded to his argument that the undeclared money had not been his.

23 . The Court is of the view that the complaint is more appropriately examined under Article 6 § 1 alone, which, in so far as relevant, reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

24 . The Government argued that Article 6 of the Convention was inapplicable, because the case did not concern the determination of any “criminal charge” against the applicant. They argued in addition that the applicant had ceased to be a victim of the alleged violation of Article 6 § 1 because the amount of the fine imposed on him had been reduced: the head of the Kalotina customs office had imposed a fine of BGN 5,000, whereas in its final judgment in the case the Sofia Regional Court had reduced it to BGN 1,000 (see paragraphs 7 and 12 above).

25 . The Government pointed out also that the applicant had only raised the argument that the undeclared money was not his and that therefore section 20(3) of the Administrative Offences and Penalties Act 1969 might apply in his written statement to the Slivnitsa District Court of 26 November 2004. He had not reiterated that argument before the Sofia Regional Court.

26 . The applicant disputed the above arguments. He considered that proceedings under the Administrative Offences and Penalties Act 1969 fell within the scope of Article 6. In addition, he pointed out that he had validly raised the argument that the undeclared money was not his in his written submissions of 26 November 2004. He considered that he had not been obliged to repeat the argument in the procedure before the Sofia Regional Court and pointed out that he had urged that court to uphold the Slivnitsa District Court ’ s judgment of 27 April 2005. The applicant reiterated that section 20(3) of the Administrative Offences and Penalties Act 1969 only allowed the forfeiture of items which were property of the offender.

27 . The Court takes note of the Government ’ s objections that Article 6 § 1 of the Convention was inapplicable in the case and concerning the applicant ’ s victim status (see paragraph 23 above). However, it is not necessary for the Court to reach a conclusion on these points – in particular, whether the fact that not only the fine but also the forfeiture was subject to judicial review had any incidence on the applicability of Article 6 § 1 of the Convention – since the application is inadmissible in any case for the reason given below.

28 . The Court takes further note of the Government ’ s argument (see paragraph 25 above) that the applicant, having stated in the proceedings before the first-instance Slivnitsa District Court that the undeclared money was not his, failed to reiterate that argument before the second-level Sofia Regional Court. Even though the Government did not expressly state that the applicant had thus failed to exhaust the available domestic remedies, as required by Article 35 § 1 of the Convention, the Court is of the view that their argument concerns, in essence, the non-exhaustion rule.

29 . In that connection, the Court highlights that, in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies within the national legal system which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Micallef v. Malta [GC], no. 17056/06, § 55, ECHR 2009) .

30 . Turning to the circumstances of the present case, the Court observes that, as pointed out by the Government, the applicant, having raised, quite belatedly, the argument that the undeclared money had not been his in the written submissions addressed to the first-instance Slivnitsa District Court, did not reiterate the same argument before the second-level Sofia Regional Court. This was so even though he attended the hearing before that court and was given an opportunity to comment on the other party ’ s appeal. However, he merely urged the Regional Court to uphold the lower court ’ s judgment (see paragraph 11 above).

31 . Consequently, the Court is not convinced that the question concerning the ownership of the undeclared money and the possible application of section 20(3) of the Administrative Offences and Penalties Act 1969 was adequately brought to the Regional Court ’ s attention and, accordingly, submitted to its jurisdiction – which apparently did extend to issues of fact (see paragraph 19 above) –, so as to trigger for it an obligation to respond (contrast, mutatis mutandis , Ivan Stoyanov Vasilev v. Bulgaria , no. 7963/05, §§ 12 and 35, 4 June 2013). The Court is not prepared to accept that the Regional Court had a duty to examine the arguments raised in the first-instance proceedings, in the absence of an express reiteration and substantiation by the interested parties.

32 . The failures by the applicant described above are sufficient to allow the Court to conclude that the applicant did not make use of remedies which were available to him under domestic law and were sufficient to afford him adequate redress. He has provided no valid justification for his failure to duly defend his case.

33 . It follows that the present complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Other alleged violations of the Convention

34 . The applicant further complained under Article 6 § 1 of the Convention that the Sofia Regional Court had decided wrongly when dismissing his arguments that the decision of 10 June 2003 had been issued following a defective procedure. However, the Court reiterates that it is not a court of fourth instance and that it is in the first place for the national courts to interpret the evidence and apply domestic law. The Court ’ s jurisdiction is limited to ensuring that the decisions of the national courts are reached in accordance with the requirements of the Convention and are not flawed by arbitrariness or otherwise manifestly unreasonable ( see, among many other authorities, Centro Europa 7 S.r.l . and Di Stefano v. Italy [GC], no. 38433/09 , § 197, ECHR 2012 ). In the case at hand, the Court sees no reason to find that the domestic courts ’ judgments fell foul of the above criteria . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

35 . The applicant complained also that criminal and administrative proceedings concerning the same act had been pending against him at the same time, because when transferring the case to the prosecuting authorities the customs authorities had not discontinued but merely suspended the administrative proceedings (see paragraphs 5-6 above). However, the Court observes that this complaint does not appear to raise issues under the Convention and its Protocols. In particular, Article 4 of Protocol No. 7 does not appear to be applicable because the case did not concern new proceedings after the applicant had been “finally acquitted or convicted”, as provided for by that provision. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

36 . Lastly, the applicant complained, relying on Article 13 of the Convention, that by forfeiting the undeclared money the authorities had interfered with the property rights of company G., which had not been able to take part in the administrative proceedings. This complaint does not concern rights of the applicant. Accordingly, it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must also be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens -Passos Ineta Ziemele Registrar President