Published on 25 April 2022

FOURTH SECTION

Application no. 31239/11 Erdzhan Yusein RASHID against Bulgaria lodged on 28 April 2011 communicated on 8 April 2022

STATEMENT OF FACTS

The applicant, Mr Erdzhan Yusein Rashid, is a Bulgarian national, who was born in 1968 and lives in Kardzhali. He is represented before the Court by Mr M. Ekimdzhiev and Ms S. Stefanova, lawyers practising in Plovdiv.

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

On 15 December 2004 the applicant was convicted for having organised unlawful gambling on one occasion in 1998. He was sentenced to a fine.

Since the offence at issue, under Article 327 § 1 of the Criminal Code, fell within the scope of the Forfeiture of Proceeds of Crime Act 2005 (hereinafter “the 2005 Act”), in 2006 the Commission for Uncovering Proceeds of Crime (hereinafter “the Commission”) opened proceedings against the applicant, verifying his financial situation between 1986 and 2006. In 2007 it introduced a forfeiture application against him, seeking the forfeiture of numerous immoveable properties, several cars and a truck, sums of money received from the sale of other immoveable properties and vehicles, and the applicant’s shares in a company. The total value of these assets, according to the Commission, was 1,719,073 Bulgarian levs (BGN), the equivalent of about 880,000 euros (EUR); this was thus considered to be the value of the claim brought before the courts (see below).

The application was allowed in a judgment of 1 August 2008 of the Kardzhali Regional Court. The domestic court noted that the applicant had been convicted of an offence falling within the scope of the 2005 Act; in addition he had been charged with money laundering, with the criminal proceedings still pending at that time, and had previously had several other convictions. During the period under examination the applicant had acquired significant assets, namely the ones enumerated above. His expenses during the period thus equalled 21,825 minimum monthly salaries. His income, on the other hand, coming mostly from the economic activity of his companies and from the sale of immoveable properties, equalled 14,449 minimum monthly salaries. The applicant had not proven the lawful provenance of his assets, making no submissions in that regard. This meant that he had not rebutted the presumption contained in section 4(1) of the 2005 Act and his assets were to be considered the proceeds of crime.

The applicant lodged an appeal. He was instructed to pay the court fee due for appeal, calculated in accordance with the applicable rules as a percentage of the value of the claim, in the amount of BGN 34,381 (EUR 17,586).

On 12 September 2008 the applicant requested to be exempted from the obligation to pay the fee. He pointed out that until 2006 he had been in prison and after that had had no revenues, that previously he had taken a bank loan due to be repaid, and that all his assets had been frozen at the start of the forfeiture proceedings. Three levels of court examined and dismissed the exemption request. The final decision was given on 7 July 2009 by the Supreme Court of Cassation. The courts observed, in the first place, that the applicant had not submitted a declaration on his economic situation, as required under Article 83 § 2 of the Code of Civil Procedure. Next, they noted that the applicant did own substantial assets and could have sought the partial lifting of the freezing measures in order to be able to pay the necessary court fee.

Since the applicant failed eventually to pay the fee, the President of the Kardzhali Regional Court refused to transmit for examination to the higher court his appeal against the judgment of 1 August 2008. The applicant’s contestation against this procedural decision, on the ground that he was being unjustifiably deprived of access to a court, was dismissed in a final decision of the Supreme Court of Cassation of 2 November 2010.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

The relevant domestic law and practice on the forfeiture of proceeds of crime, in particular concerning the application of the 2005 Act, have been summarised in Todorov and Others v. Bulgaria (nos. 50705/11 and 6 others, §§ 90-114, 13 July 2021).

The relevant provisions concerning court fees have been summarised in Chorbadzhiyski and Krasteva v. Bulgaria (no. 54991/10, § 31, 2 April 2020). In particular, the fee for appeal or cassation is 2% of what is considered to be the value of the claim brought before the courts.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that he was unfairly denied access to court to appeal against the Kardzhali Regional Court’s judgment of 1 August 2008. He considers the court fee he was required to pay excessively high, and the national courts’ approach, namely their reliance on his failure to submit a declaration on his economic situation, despite all relevant documents in that regard being in the case file, overly formalistic.

In addition, the applicant complains under Article 1 of Protocol No. 1 and Article 6 § 1 and Article 13 of the Convention of the forfeiture of his assets, contending that they were not shown to have been the proceeds of crime.

QUESTIONS TO THE PARTIES

1. Was the applicant unjustifiably deprived of the right to access to a court, as guaranteed under Article 6 § 1 of the Convention, seeing that he was unable to have his appeal against the judgment of the Kardzhali Regional Court of 1 August 2008 examined by the court of appeal? Was the court fee required from the applicant too high, and was the manner in which the national courts examined his request to be exempted from it fair?

2. Was the forfeiture of the applicant’s assets in compliance with the requirements of Article 1 of Protocol No. 1? In particular, did the domestic authorities reasonably establish that the assets at issue were the proceeds of crime (see Todorov and Others v. Bulgaria , nos. 50705/11 and 6 others, 13 July 2021)?