FOURTH SECTION

DECISION

Application no. 105/14 I.B. against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 17 May 2022 as a Committee composed of:

Tim Eicke, President, Faris Vehabović, Pere Pastor Vilanova, judges, and Ludmila Milanova, Acting Deputy Section Registrar,

Having regard to:

the application (no. 105/14) against Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 December 2013 by a Bulgarian national, I.B., born in 1951 (“the applicant”), represented by Mr M. Ekimdzhiev, a lawyer practising in Plovdiv;

the decision to give the Bulgarian Government (“the Government”), represented by their Agent, Mrs I. Stancheva-Chinova, of the Ministry of Justice, notice of the applicant’s complaints under Articles 7, 8, 10 and 13 of the Convention and to declare inadmissible the remainder of the application;

the decision not to have the applicant’s name disclosed;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns complaints under Articles 7, 8, 10 and 13 of the Convention in relation to the applicant’s conviction for the creation of pictures showing the naked bodies of two women, considered pornographic under Article 159 (1) of the 1968 Criminal Code.

2 . The applicant was found guilty for the creation of pornographic material following an initial examination of his case by the District Court, based on, among others, witness statements and the findings of expert reports. However, the case was remitted for a fresh examination on procedural grounds by the Regional Court and a new bill of indictment was submitted to the District Court. Pursuant to a request to that effect by the applicant’s representative, that court conducted a summary judicial investigation ( съкратено съдебно следствие ) under Articles 370 to 374 of the 2006 Code of Criminal Procedure (“the CCP”). The applicant admitted all facts as described in the indictment and agreed that no additional evidence be collected (relevant domestic case-law in regard to that procedure has been summarised in Z v. Bulgaria , no. 39257/17, §§ 44-47, 28 May 2020). In his closing statement he also admitted his guilt and expressed his regrets of what he had done, asking the court for a less severe punishment. On 20 September 2011 the District Court concluded that the applicant’s statement was supported by the evidence gathered at the pre-trial stage, found him guilty of the creation of pornographic material, and sentenced him to probation. The judgment indicated that it was subject to appeal before the Regional Court within a fifteen-day period following its pronouncement. The applicant did not submit an appeal and the judgment became final on 6 October 2011.

3 . On 19 March 2012 the applicant lodged to the Supreme Court of Cassation a request for reopening, provided for by Article 422, paragraph 1, point 5 of the CCP, a remedy which is fully akin to an appeal on points of law concerning alleged serious breaches of substantial or procedural law, or imposition of an unfair punishment (relevant domestic case-law in that regard has been summarised in Paraskeva Todorova v. Bulgaria , no. 37193/07, §§ 19-21, 25 March 2010). In particular, he argued that it had not been established from the witness statements that he had created the pornographic pictures. In addition, he claimed that the District Court had failed to take into account statements of the allegedly unclear definition of “pornographic material” in domestic law, contained in one of the expert reports submitted during the initial examination of his case (see paragraph 2 above). The applicant thus requested the court to quash the judgment of the District Court, to re-examine the case and to acquit him.

4. On 28 June 2013, the Supreme Court of Cassation dismissed the applicant’s appeal on points of law. As regards his allegations as to the factual findings of the District Court and the admission and assessment of evidence, it referred to the application of summary judicial investigation before that court and the applicant’s agreement that no further evidence be gathered. Therefore, it pointed out that the District Court could not rely on an expert report which had not been admitted for examination in those proceedings. The Supreme Court of Cassation found no breaches of substantive or procedural rules as deficiencies which could justify the re-examination of the case.

THE COURT’S ASSESSMENT

5 . The Government raised several objections as to the admissibility of the application, inter alia , that the applicant had failed to exhaust an available and effective domestic remedy in that he had not appealed against the judgment of the District Court of 20 September 2011 before the Regional Court. To that effect, the Government provided the Court with examples of domestic practice, where second-instance courts have acquitted applicants despite the fact that they had admitted the facts in the indictment before the lower courts (see Присъда № 234 от 24.06.2010 на СГС по в.н.о.х.д. № 1459/2010 г. ; Присъда № 29 от 24.01.2013 г. на СГС по в.н.о.х.д. № 80/2013 г. ) . Furthermore, the Government argued that the applicant had failed to raise the substance of his complaints under Articles 7, 8 and 10 before the domestic courts.

6. The general principles on the rule of exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). That rule obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. Doubts about the prospects of a remedy which appears to offer a reasonable possibility of redress are not a sufficient reason to eschew it.

7. The Court observes at the outset that the applicant complained before the domestic court of the allegedly unclear definition of “pornographic material” in domestic law (see paragraph 3 above), thus raising in substance his complaint under Article 7 of the alleged lack of clarity and foreseeability of the applicable national law.

8. It notes, however, that the applicant, who was assisted by a lawyer, himself requested the application of summary judicial investigation before the first-instance court, thus waiving the opportunity to adduce new evidence regarding certain issues of fact, and even admitted his guilt in his closing statement (see paragraph 2 above). Notwithstanding these actions, the applicant was entitled to challenge the judgment of the District Court before the Regional Court, in order to obtain review on points of fact and of law, irrespective of the grounds of appeal. Nevertheless, he did not avail himself of this remedy. The Court notes the applicant’s argument that the proceedings before the Regional Court would have been ineffective. However, given the established practice of domestic courts in that regard (see paragraph 5 above) it finds that the Regional Court would have been competent to examine all questions of fact, such as whether the applicant had indeed created pornographic pictures, as well as questions concerning the legal qualification under domestic law, including whether the applicable legal basis was sufficiently precise and clear. Therefore, the Court sees no reason to doubt the effectiveness of the examination by the second-instance court as regards the complaint raised under Article 7 of the alleged lack of clarity and foreseeability of the legal basis for the applicant’s conviction.

9. Moreover, the Court notes that, while in his appeal on points of law before the Supreme Court of Cassation the applicant contested the fact that the pornographic pictures for which he was convicted were created by him (see paragraph 3 above), that court could not revisit the facts, being a cassation court entrusted with jurisdiction on points of law only. Similarly, the Supreme Court of Cassation could not have been expected to address the applicant’s argument about lack of clarity and foreseeability of the applicable law in the abstract, without a challenge of the factual basis on which the applicant was found guilty. Accordingly, the Court cannot accept the applicant’s argument that the review by the Supreme Court of Cassation under Article 422, paragraph 1, point 5 of the CCP was identical to the review of a second-instance court.

10. Therefore, while under the applicable national law it was possible for the applicant to introduce an appeal on points of law under Article 422, paragraph 1, point 5 of the CCP directly before the Supreme Court of Cassation, the Court considers that, by failing to submit a regular appeal on points of facts and of law before the Regional Court, the applicant deprived himself of the possibility to have the substance of his complaint addressed by a competent domestic court.

11. The Court reiterates that in so far as there exists at the national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, it is that remedy which should be exhausted (see Vučković and Others , cited above, § 75). In the light of that principle, any finding that the applicant in the present case could be dispensed from the obligation to exhaust a remedy which is not obviously futile, such as the full judicial review carried out by the second-instance criminal court, in the absence of special circumstances which absolve him from that obligation, would undermine the principle of subsidiarity established in the Court’s case-law. To hold that the applicant did not have to exhaust the remedy in question would suggest that applicants may systematically address their complaints to the Court, without having initially given the opportunity to the competent domestic courts to address the breaches alleged.

12. Finally, concerning the complaints raised under Articles 8 and 10 of the Convention, the Court finds that the applicant did not bring any argument, either expressly or in substance, about interference with his rights to respect for private life and to freedom of expression at any stage before the national courts.

13. Therefore, by failing to appeal against the District Court’s judgment before the Regional Court and to raise complaints under Articles 8 and 10 before the domestic courts, either expressly or in substance, the applicant deprived the national courts of the opportunity which Article 35 § 1 of the Convention offers them of addressing and so preventing or putting right the breaches alleged.

14. In the circumstances described above, the Court concludes that the complaints under Articles 7, 8 and 10 must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. Given the close affinities between Article 13 and Article 35 § 1 of the Convention, the Court also concludes that the applicant’s complaints raised under Article 13 are manifestly ill-founded within the meaning of Article 35 § 3 (see Sultan Öner and Others v. Turkey , no. 73792/01, § 117, 17 October 2006).

15. In view of those conclusions, the Court does not find it necessary to examine the Government’s remaining objections as to the admissibility.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 June 2022.

Ludmila Milanova Tim Eicke Acting Deputy Registrar President