Information Note on the Court’s case-law 189

October 2015

Konstantin Stefanov v. Bulgaria - 35399/05

Judgment 27.10.2015 [Section IV]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Lawyer fined for declining to act as ex officio legal counsel: no violation

Facts – In 2005 the applicant, a practicing lawyer, was appointed by a district court as ex officio counsel of a defendant in criminal proceedings. At the first hearing the applicant stated that he would represent the defendant only if the domestic court determined his remuneration at or above the legal minimum. As the presiding judge refused, the applicant decl ined to represent the defendant and left the hearing room. As a consequence, he was fined the equivalent of EUR 260. His appeal was ultimately dismissed.

Law – Article 1 of Protocol No. 1: The fine constituted an interference with the applicant’s right to the peaceful enjoyment of his possessions. As to the lawfulness of the interference, the relevant domestic provisions were conflicting both as to when the ex officio legal fees had to be determined by the courts and as to their amount. However, the Court n oted that the domestic court had fined the applicant on the basis of a provision of the Criminal Procedure Code, which, in the hierarchy of domestic legal sources, prevailed over the provisions invoked by the applicant. Given that the applicant was a lawye r, both this basic principle and the content and meaning of the particular provision of the Code should have been sufficiently clear to him and the consequences of its application foreseeable. Moreover, any dispute about the applicant’s remuneration should not have taken precedence over the proper conduct of the judicial proceedings, which in turn should not have been the forum where such a dispute was resolved. The Court therefore found that the applicant had been fined on the basis of an accessible, clear and foreseeable legal provision which pursued the legitimate aim of ensuring the smooth operation of the justice system.

As to whether a “fair balance” was struck between the general interest and the protection of the applicant’s rights, the Court first n oted that causing the postponement of the hearing without a valid reason represented an obstacle to the smooth functioning of the justice system. The respondent State enjoyed a wide margin of appreciation in deciding how that conduct should be punished. Im portantly, the applicant had had at his disposal a procedural guarantee by which to challenge the penalty and had done so. There was nothing to show that the decision-making process resulting in the fine complained of had been unfair or arbitrary. Lastly, although the amount of the fine was the maximum that could be imposed under the relevant legal provision, it was not prohibitive, oppressive or disproportionate. Finally, the present situation had to be distinguished from cases which concerned the right of lawyers to express themselves freely in their capacity as defence counsel, which had been addressed from the standpoint of freedom of expression.*

In the circumstances, a fair balance had been struck between the general interest and respect for the applic ant’s right to property. The interference had not, therefore, imposed an excessive burden on the applicant.

Conclusion : no violation (unanimously).

* See, for example, Nikula v. Finland , 31611/96, 21 March 2002, Information Note 40 ; and Morice v. France [GC], 9369/10, 23 April 2015, Information Note 184 .

© Council of Europe/European Court of Human Righ ts This summary by the Registry does not bind the Court.

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