FOURTH SECTION

DECISION

Application no. 16822/15 Pene Yanev GININ against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 16 February 2021 as a Committee composed of:

Tim Eicke, President, Faris Vehabović, Pere Pastor Vilanova, judges,

and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the above application lodged on 27 March 2015,

the decision to give notice on 10 September 2019 to the Bulgarian Government (“the Government”) of the complaint, made under Article 10 of the Convention, about the applicant’s sanctioning for making a complaint against a police officer, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Pene Yanev Ginin, is a Bulgarian national, who was born in 1953 and lives in Parazdzhik. He was represented before the Court by Mr M. Ekimdzhiev and Mrs S.H. Stefanova, lawyers practising in Plovdiv.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms V. Hristova, from the Ministry of Justice.

3. In April 2013 the applicant saw a police officer, Y, take a banknote of BGN 20 (around EUR 10) from a driver who, instead of being fined for a road offence, drove away.

4. An inquiry, opened into the applicant’s report of what he had witnessed, ended in May 2013 with the conclusion that no offence had been committed.

5. In August 2013 Y brought a private criminal prosecution against the applicant for defamation under Article 148 § 2 in conjunction with Article 147 § 1 of the Criminal Code, and a civil claim for non-pecuniary damages in the amount of EUR 1,500. On 2 June 2014 the Pazardzhik District Court found the applicant guilty of that offence, absolved him from criminal responsibility and imposed on him a fine of EUR 500. The court also ordered the applicant to pay EUR 1,000 in non-pecuniary damages to Y and EUR 40 in court fees. Having concluded that the applicant had not proven his allegations, the court held that his actions had been defamatory.

6. Following an appeal by the applicant, the Pazardzhik Regional Court upheld the lower court’s judgment in its entirety in a final decision of 22 October 2014.

7. After the Government were given notice of the application they brought the applicant’s case to the attention of the Chief Prosecutor who sought the reopening of the proceedings and the acquittal of the applicant. He referred in particular to the relevant case-law of the Court.

8. In a final judgment of 15 July 2020 (реш. № 100 от 15.07.2020 г. по нохдв № 204/2020 г., ПАС, н. о.), the Plovdiv Court of Appeal allowed the request, reopened the proceedings and set the judgments of the first- and second -instance courts aside, thus acquitting the applicant. The court held that the applicant’s actions had not amounted to an offence and the lower courts had wrongly applied the law. The statements in the applicant’s complaint had been an exercise of his constitutional right to complain to the authorities and express his opinion.

9. The relevant domestic law provisions and case-law in connection with the complaint under Article 10 of the Convention have been set out in paragraphs 41-59 of the Court’s judgment in the case Marinova and Others v. Bulgaria , nos. 33502/07, 30599/10, 8241/11 and 61863/11, 12 July 2016.

10 . As regards damages for wrongful conviction, section 2(1) of the State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”) provides since 2012, in so far as relevant:

“The State shall be liable for damage caused to individuals by investigative bodies, the public prosecution, or the courts for:

...

3. a charge of committing a criminal offence, if the person is acquitted or if the criminal proceedings initiated are terminated on the basis that the act has not been committed by the person or that the act committed is not a criminal offence...”

11 . The Government submitted copies of a number of cases in which the national courts have awarded, under section 2(1)(3) of the SMRDA, both pecuniary and non-pecuniary damages stemming from wrongful conviction (see реш. â„– 2425/21.04.2020 г. на СГС по гр. дело â„– 7067/2017 г.; реш. â„– 1345/7.09.2018 г. на РС - Плевен по гр. д. â„– 2650/2018 г.; реш. â„– 159/10.04.2018 г. на ОС - Плевен по гр. д. â„– 943/2017 г.; реш. â„– 227 от 9.01.2018 г. на СГС по в. гр. д. â„– 5509/2017 г.). Section 4 of the SMRDA provides that the State’s liability extends to all pecuniary and non ‑ pecuniary damage which is a direct and proximate result of the impugned decision, act or omission.

COMPLAINTS

12. The applicant complained under Article 10 of the Convention that his punishment for making complaints against a public official, coupled with the order to pay damages to that official, was in breach of his right to freedom of expression. He further complained under Article 13 of the Convention in conjunction with Article 10 about the absence of an effective remedy.

THE LAW

13. In view of the above developments in the case, the Government invited the Court to strike the case out of the list of cases before the Court on one of the grounds in Article 37 § 1 of the Convention. In particular, they suggested that the matter had been resolved at the national level, as the applicant had been acquitted. Further, the applicant could also seek compensation under section 2(1)(3) of the SMRDA for his wrongful conviction.

14. The applicant disagreed. He pointed out that while his acquittal at the national level could be equated with a recognition by the authorities of a violation of his rights under Article 10 of the Convention, he had not been adequately compensated for the suffering he had sustained in that connection. If he were to bring a claim for damages under section 2(1)(3) of the SMRDA, as the Government had suggested, the court was most likely to examine the direct pecuniary damage caused to him by the initial conviction, namely the amount he had been ordered to pay in damages. The court was unlikely, however, to deal with the high level of frustration which the applicant had experienced as a result of his conviction having been wrong.

15. The Court observes that in order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for the applicant to pursue his application, it must examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (compare with Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002).

16. The Court has examined the new information brought to its attention. Having regard to the nature of that information and to the parties’ observations, it finds that the matter has been resolved (Article 37 § 1 (b)), for the following reasons.

17. Firstly, the criminal proceedings against the applicant have been reopened at the Chief Prosecutor’s request and the applicant’s conviction has been quashed and no longer has any legal force.

18. Secondly, under Article 41 of the Convention the purpose of awarding sums by way of just satisfaction is to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that cannot otherwise be remedied (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98 , § 250, ECHR 2000 ‑ VIII). Under section 2(1)(3) of the SMRDA (see paragraph 10 above), the applicant may seek compensation from the State for his wrongful conviction. As it can be seen from the relevant domestic case-law (see paragraph 11 above), the courts systematically award compensation in respect of non-pecuniary damage, following an examination of the specific circumstances in each case. The Court considers that the compensation which the applicant is entitled to claim at the national level as a result of his wrongful conviction is indissociable from any compensation in the event of a finding of a violation of Article 10 of the Convention.

19. The Court is in addition satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application (Article 37 § 1 in fine ), in particular as the Court has already dealt with almost identical issues in a number of cases in respect of Bulgaria (see, among others, Marinova and Others v. Bulgaria , nos. 33502/07 and 3 others, 12 July 2016).

20. Accordingly, the case should be struck out of the list.

21. Rule 43 § 4 of the Rules of Court provides:

“When an application has been struck out in accordance with Article 37 of the Convention, the costs shall be at the discretion of the Court. If an award of costs is made in a decision striking out an application which has not been declared admissible, the President of the Chamber shall forward the decision to the Committee of Ministers...”

22. The applicant claimed EUR 5,437.55 for costs and expenses incurred in connection with his application before the Court. He indicated that EUR 5,280 of that sum was in respect of legal fees, of which he had already effectively paid EUR 613.75. Those legal fees related to forty-four hours of work at an hourly rate of EUR 120. He further claimed EUR 157.55 for costs incurred by his lawyer in connection with postal expenses, stationery, copying services and translation.

23. The Government, for their part, contested the costs claimed in respect of legal fees as being excessive, both in terms of the number of hours and of the hourly rate claimed.

24. According to the Court’s settled 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 (see, as a recent authority, Merabishvili v. Georgia [GC], no. 72508/13 , § 370, 28 November 2017). A representative’s fees are actually incurred if the applicant has paid them or is liable to pay them (ibid.). The fees payable to a representative under a conditional-fee agreement are actually incurred only if that agreement is enforceable in the respective jurisdiction (see Ivanova and Cherkezov v. Bulgaria , no. 46577/15 , § 89, 21 April 2016).

25. The Court considers that those principles should also be observed in the application of Rule 43 § 4 (compare with Pisano (striking out) [GC] , cited above, § 54).

26. In the instant case, having regard to the information in its possession and to the criteria set out above, the Court considers it reasonable to award the sum of 2,300 euros for costs and expenses. The Court finds that EUR 613.75 of this sum is to be paid to the applicant, and the remainder, namely EUR 1,686.25, directly to his legal representatives.

27. 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. Decides to strike the application out of its list of cases;

2. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amount, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

EUR 2,300 (two thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, of which EUR 1,686.25 is to be paid directly to the applicant’s legal representatives;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 18 March 2021.

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Ilse Freiwirth Tim Eicke Deputy Registrar President