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Apostolovi v. Bulgaria
Apostolovi v. Bulgaria
JUDGMENT
STRASBOURG
7 November 2019
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
APOSTOLOVI v. BULGARIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 32644/09) against the
Republic of Bulgaria lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by two Bulgarian nationals, Mr Stoyan Todorov
Apostolov and Mrs Milena Georgieva Apostolova (“the applicants”), on
28 April 2009.
2. The applicants were represented by Ms E. Nedeva, a lawyer practising
in Plovdiv. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms I. Nedyalkova of the Ministry of Justice.
3. The applicants complained, in particular, that the initial freezing of a
number of bank accounts and immovable properties belonging to them in
the context of criminal proceedings against the first applicant and the
maintenance of those freezing orders had unlawfully and unjustifiably
interfered with their possessions, in particular because it had prevented them
from adequately meeting the medical expenses of their severely disabled
son. They also complained of the alleged absence of an effective domestic
remedy in that respect.
4. On 13 December 2017 the Court gave the Government notice of the
first applicant’s complaints concerning the freezing of his assets and the
alleged lack of an effective remedy in respect of that (Rule 54 § 2 (b) of the
Rules of Court), and asked the parties to submit factual information about
the remedial measures taken with respect to the freezing of the second
applicant’s assets (Rule 54 § 2 (a)). The Court declared the remainder of the
application inadmissible (Rule 54 § 3).
2 APOSTOLOVI v. BULGARIA JUDGMENT
THE FACTS
5. The first applicant (Mr Apostolov) was born in 1956. The second
applicant (Mrs Apostolova) was born in 1958. They live in Haskovo.
6. The applicants are spouses. The first applicant used to be a public
prosecutor but at the relevant time was working as a lawyer in private
practice.
7. The applicants have three children. The third, a son born in 1989,
suffers from a number of congenital disorders. He has been declared 100%
disabled and receives disability benefit. In the second half of 2008 his
monthly disability benefit amounted to about 164 Bulgarian levs (BGN). He
requires constant medical treatment and personal care.
16. The first applicant and his co-accused appealed on points of law. On
23 February 2018 the Supreme Court of Cassation heard the appeals and on
9 March 2018 it upheld the lower court’s judgment.
38. On 6 January 2014 the Haskovo District Court allowed the claim. It
held that the second applicant had suffered non-pecuniary damage as a
result of the freezing of her assets. The prosecutor’s request to that effect
had been wrongful and had directly caused that damage. Under
section 45(2) of the 1950 Act (see paragraph 60 below), the fault of the
prosecutor who had sought the restriction had to be presumed. In any event,
the prosecutor should have checked the ownership of the assets before
seeking to block them. In view of the duration of the restriction and the
medical conditions of the second applicant’s son, the appropriate award was
BGN 5,000. Since she was seeking less than that, her claim was to be
allowed in full. The court went on to say that although the second applicant
had not presented evidence about the actual extent of her distress and the
actual shortage of money needed for the medical treatment of her son, it
could be presumed that the freezing of her assets for a significant period had
caused her psychological distress (see реш. № 15 от 06.01.2014 г. по
гр. д. № 2505/2013 г., РС-Хасково).
39. The prosecutor’s office appealed, and on 29 May 2014 the Haskovo
Regional Court upheld the lower court’s judgment, agreeing with its
reasoning (see реш. № 257 от 29.05.2014 г. по гр. д. № 260/2014 г.,
ОС-Хасково). That judgment itself was not amenable to appeal.
40. On 17 June 2014 the second applicant obtained a writ of execution
and presented it to the prosecutor’s office for payment. On 16 December
2014 the prosecutor’s office paid her the full sum she had been awarded:
BGN 2,000 in damages, BGN 1,299 in interest and BGN 280 in costs.
have reached the trial stage, competence to take such measures rests with
the trial court (Article 72 § 2).
49. In May 2012 the President of the Supreme Court of Cassation
proposed that the plenary of that court’s criminal chambers give an
interpretative decision on the application of Article 72. He indicated
divergences in the lower courts’ case-law on several points. In particular,
they had resolved differently the questions (a) whether the mere bringing of
charges could justify a freezing order under that provision or whether those
charges had to be based on a reasonable suspicion, and (b) whether the
value of the blocked assets had to be proportionate to the possible
confiscation or fine.
50. In its interpretative decision, given in October 2012, the plenary of
the Supreme Court of Cassation’s criminal chambers held, inter alia, that
(a) when dealing with requests by the prosecuting authorities to freeze
assets under Article 72, the courts must check, on the basis of all the
available evidence, whether there was a reasonable suspicion that the
accused had committed the alleged offence – a decision to bring charges not
being sufficient in that respect – with a view to preventing unjustified
interferences with the property rights of the people concerned, in breach of
Article 1 of Protocol No. 1; (b) only assets belonging to someone charged
with an offence punishable with confiscation or a fine could be frozen under
that provision, the only exception being assets subject to forfeiture
regardless of their owner; (c) the courts must examine whether the value of
the assets sought to be frozen matched the extent of the potential
confiscation, fine or forfeiture; and (d) the decisions of the first-instance
courts in such cases were amenable to appeal to a higher court in the manner
provided for in the Code of Civil Procedure (see тълк. реш. № 2 от
11.10.2012 г. по тълк. д. № 1/2012 г., ВКС, ОСНК).
however, held that if the assets were frozen after the charges were brought,
the time-limit runs from that later date (see опр. № 403 от 29.12.2014 г. по
в. ч. н. д. № 1180/2014 г., САС).
53. Article 234 § 9 of the Code provides that if the prosecuting
authorities omit to lift the restriction after the expiry of the time-limit of
their own motion, the accused may directly ask the first-instance court to do
so (see опр. № 83 от 15.03.2017 г. по в. ч. н. д. № 256/2017 г., САС). The
court decides on the papers and its decision is not amenable to appeal
(Article 234 § 10).
54. By contrast, there is no statutory cap on the duration of asset
freezing during the ensuing judicial phase of the proceedings (see
опр. № 453 от 21.07.2016 г. по в. ч. н. д. № 387/2016 г., ПАС). However,
Article 309 § 5 of the Code provides that if the trial court finds the accused
not guilty, it must consider whether to maintain the freezing order.
3. Procedure
55. For the applicable procedure, Article 72 of the 2005 Code of
Criminal Procedure refers to the Code of Civil Procedure. Article 395 § 1 of
the 2007 Code of Civil Procedure provides that the proceedings start
without notice being served on the defendant, and Article 395 § 2 provides
that the court decides the matter on the papers. If the court issues a freezing
order, the defendant is notified and can appeal against it within seven days
of the notification (Article 396 § 1). The appeal has no suspensive effect
(Article 396 § 3).
56. Under Article 402 §§ 1 and 2 of the 2007 Code, a freezing order can
be lifted at the request of an interested party. This is to be allowed if the
court finds that the need for it no longer exists. The request is examined on
the papers (Article 402 § 2), and the first-instance court’s decision is
amenable to appeal. Any appeal is normally also examined on the papers,
but the court may, if necessary, hold an oral hearing (Article 278 § 1).
1. Under the State and Municipalities Liability for Damage Act 1988
57. Section 2(1) of the State and Municipalities Liability for Damage
Act 1988, as originally enacted and subsequently amended, provides for no-
fault liability on the part of the investigating and prosecuting authorities and
the courts in several situations arising in relation to criminal proceedings,
none of which has to do with the freezing of assets (for details, see Tsonev
v. Bulgaria (dec.), no. 9662/13, §§ 29-37, 30 May 2017).
58. The Bulgarian courts have consistently held that no-fault liability on
the part of the investigating and prosecuting authorities and the courts in
12 APOSTOLOVI v. BULGARIA JUDGMENT
THE LAW
61. The applicants complained under Article 1 of Protocol No. 1 that the
freezing of their assets had been unlawful and unjustified, both when
initially done and when kept in place. Relying on Article 8 of the
Convention, they further submitted that the resulting unavailability of the
funds in their bank accounts had made it very hard for them to care for their
disabled son.
62. Since the alleged inability of the applicants to meet the medical
expenses of their disabled son was an indirect consequence of the freezing
of their assets, in the Court’s view the complaint falls to be examined solely
under Article 1 of Protocol No. 1, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his
possessions. No one shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair the right of a State
to enforce such laws as it deems necessary to control the use of property in
accordance with the general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
been the total award if the first-instance court in the follow-up action had
not incorrectly ruled that the limitation period had expired – could not make
up for the second applicant’s distress caused by her inability properly to
take care of her disabled son as a result of the freezing of her assets.
(b) The Court’s assessment
65. The principles governing the assessment of whether an applicant can
continue to claim to be a victim of a breach of the Convention or its
Protocols following favourable measures at domestic level are settled. They
have been set out, for example, in Zaharieva v. Bulgaria ((dec.),
no. 6194/06, § 63, 20 November 2012), and, more recently, in Vanchev
v. Bulgaria (no. 60873/09, §§ 28-29, 31 and 36, 19 October 2017).
66. In view of the Bulgarian courts’ findings that the freezing of the
second applicant’s assets had been unlawful and “wrongful”, and that it had
unduly prevented her from properly taking care of her disabled son (see
paragraphs 26, 38 and 39 above), it can be accepted that the national
authorities acknowledged in substance the alleged breach of Article 1 of
Protocol No. 1 with respect to her.
67. The salient question is whether the amount of compensation
obtained by the second applicant on the back of that recognition was
sufficient.
68. The second applicant was paid BGN 2,000 in respect of
non-pecuniary damage, plus BGN 1,299 in interest, in relation to the
blocking of her assets for about eight months (see paragraph 40 above). This
equals EUR 1,687.1
69. It is this final net sum which the Court will take into account when
assessing whether the redress was sufficient (see Vanchev, cited above,
§ 32). It is not manifestly unreasonable in comparison to recent awards
made by the Court in similar cases, due account being taken of the fact that
those cases were against different respondent States (see Džinić v. Croatia,
no. 38359/13, § 87, 17 May 2016, where EUR 2,000 was awarded to one
applicant, in respect of the attachment of ten plots of land, two houses and a
commercial building for more than three and a half years, and Eilders
and Others v. Russia [Committee], no. 475/08, § 29, 3 October 2017, where
EUR 6,000 was awarded jointly to two applicants, in respect of the
attachment of four flats and a car for more than ten years). In the absence of
specific evidence and information on the point by the applicants, the fact
that the non-pecuniary damage suffered by the second applicant in the
present case flowed chiefly from the effect of the blocking of her assets on
her ability to care for her disabled son does not alter that conclusion.
1. Since 1998 the exchange rate between the euro and the Bulgarian lev has been fixed by
law (section 29(2) of the Bulgarian National Bank Act 1997, and decision no. 223 of the
Bulgarian National Bank of 31 December 1998). EUR 1 is equal to BGN 1.95583
(or 1,955.83 old Bulgarian levs (BGL), before the revalorisation on 5 July 1999).
APOSTOLOVI v. BULGARIA JUDGMENT 15
70. The sum awarded to the second applicant was paid in full about six
and a half months after the end of the proceedings for damages (see
paragraphs 39 and 40 above). This cannot be seen as an unreasonable delay
(contrast Delle Cave and Corrado v. Italy, no. 14626/03, § 30, 5 June 2007;
Simaldone v. Italy, no. 22644/03, § 31, 31 March 2009; and Uguccioni
v. Italy [Committee], no. 62984/00, § 53, 18 December 2012).
71. In this case, however, the analysis cannot stop here. In assessing the
sufficiency of the redress obtained by the second applicant, account must be
taken not only of the actual compensation she obtained but also of the
compensation that she could have obtained had she proceeded in a different
manner. According to the Court’s case-law, this second element may also be
taken into account when analysing the point (see, among other authorities,
Kurić and Others v. Slovenia [GC], no. 26828/06, § 262, ECHR 2012
(extracts); Sarishvili-Bolkvadze v. Georgia, no. 58240/08, § 60, 19 July
2018; and J.B. and Others v. Hungary (dec.), nos. 45434/12 and 2 others,
§ 59, 27 November 2018).
72. The second applicant chose to limit her initial claim for damages
against the prosecutor’s office to BGN 2,000 (see paragraph 37 above).
Since at the time this was somewhat uncharted territory in Bulgarian law
(see paragraph 59 above), and since the second applicant had already
pursued one set of proceedings (see paragraphs 33-36 above), she cannot be
blamed for treading with caution, especially bearing in mind that to proceed
with a claim for damages under section 49 of the 1950 Act, a claimant had
to pay up-front a court fee of 4% of the amount sought (see Zaharieva, cited
above, § 43). At the same time, nothing suggests that the second applicant
would have faced substantial difficulties in affording the court fee for a
claim equal to the sum which, according to the Bulgarian courts, would
have fully recompensed the non-pecuniary damage suffered by her
(BGN 5,000) – that fee would have come to BGN 200, or the equivalent of
EUR 102.
73. The second applicant thus forwent a reasonable opportunity to obtain
up to BGN 5,000 (EUR 2,556) in damages, which in turn would have
produced at least BGN 3,248.94 (EUR 1,661) in interest (see paragraph 42
above, and, for the manner in which such interest is calculated in Bulgarian
law, see Zaharieva, cited above, § 42).
74. In these circumstances, the second applicant cannot be seen as still
being a victim of a breach of Article 1 of Protocol No. 1. Her complaint in
this regard is hence incompatible ratione personae with the provisions of
the Convention within the meaning of Article 35 § 3 (a) and must be
rejected in accordance with Article 35 § 4 of the Convention.
16 APOSTOLOVI v. BULGARIA JUDGMENT
applicant had sufficiently brought the point he has now raised before the
Court to the attention of the Bulgarian courts (compare with Paulet
v. the United Kingdom, no. 6219/08, §§ 50-52, 13 May 2014, and with
Valant v. Slovenia, no. 23912/12, § 54, 24 January 2017).
84. In sum, the first applicant sufficiently exhausted domestic remedies
with respect to the initial freezing of his assets.
85. The position with regard to the continued freezing of those assets
over many years is, however, different. The need for them to remain
blocked with a view to securing the satisfaction of a possible confiscation or
forfeiture order or a fine did not fully recede until it became clear that the
prosecution would not seek to appeal against the Haskovo Regional Court’s
judgment of March 2016, in which that court chose not to impose a
monetary penalty on the first applicant (see paragraph 14 above). Yet, most
of the assets – the bank accounts and two of the three immovable
properties – had been unblocked more than two years earlier, in January
2014 (see paragraphs 12 and 31 above). That had happened in response to
the first applicant’s second request to have the freezing order lifted by a
court – the first time he had tried to do so since early 2009 – which he made
at some point in mid-2013 (see paragraphs 27 and 28 above). It cannot be
said with full certainty that, if made earlier, such a request would have been
likely to succeed. It is nevertheless striking that the Haskovo Regional
Court allowed it purely on the basis of arguments relating to the
proportionality of maintaining the freezing order (see paragraph 31 above).
It is hard to fathom to what extent that court’s position was influenced by
the Supreme Court of Cassation’s 2012 interpretative decision – which had
broadly highlighted the need for a proportionality assessment in relation to
the freezing of assets in criminal proceedings (see paragraph 50 above) –,
by the manner in which the criminal proceedings against the first applicant
had unfolded up to that point (see paragraphs 9-14 above), or by fresh
arguments about the difficulties that he faced as a result of the restriction
(see paragraph 30 above). However, it cannot simply be presumed that an
earlier request to the competent courts to lift the freezing order would have
been treated differently. By not making one until mid-2013, the first
applicant failed to exhaust domestic remedies with respect to the continued
freezing of his assets.
86. It follows that the Government’s non-exhaustion objection, so far as
it concerns the first applicant’s failure to challenge the continued freezing of
his assets, must be allowed. By contrast, so far as it concerns his alleged
failure duly to pursue domestic remedies with respect to the initial freezing
of his assets, the objection must be rejected.
APOSTOLOVI v. BULGARIA JUDGMENT 19
B. Merits
specific – the first applicant did not tell the courts how much money he
needed for those expenses, or provide any evidence or details in support of
his assertion that he had no other sources of income –, the fact remains that
it had been expressly raised and that it was of considerable importance. It is
also true that the first applicant did not repeat the argument in terms on
appeal. But in his appeal he said that he fully maintained his original
arguments (see paragraph 25 above). The Plovdiv Court of Appeal’s brief
statement that the argument was irrelevant (see paragraph 26 in fine above)
is unsurprising in view of the absence of any statutory provisions covering
such situations (see paragraph 46 above). This absence is all the more
striking when juxtaposed with the express provisions in the Criminal Code
which shield the funds needed by a convicted person and his or her family
for living expenses for one year from confiscation or the enforcement of a
fine (see paragraphs 44 and 45 above). This is hard to reconcile with the
need to afford those affected by such freezing measures procedures that
make it possible to strike a fair balance between their rights and the public
interest (see paragraph 96 above, and, mutatis mutandis, Paulet, cited
above, §§ 67-68). Indeed, when recently legislating in a closely related
domain, the Bulgarian legislature recognised the need to have regard to such
matters: a 2005 statute providing for the forfeiture of proceeds of crime by
way of proceedings before the civil courts expressly envisaged a possibility
to permit payments out of assets frozen with a view to their forfeiture if this
was necessary for medical treatment or other humanitarian needs (see
Nedyalkov and Others, cited above, § 56).
104. The courts’ omission to address the first applicant’s argument does
not, in the event, appear to have substantively affected him, since the
Plovdiv Court of Appeal concomitantly decided, for other reasons, to
unfreeze the half of the initially frozen assets that belonged to his wife (see
paragraph 26 above). The total sum of money in the frozen bank accounts at
the time of the freezing order (see paragraph 17 in fine above) was not
negligible, and the applicants have not presented any evidence about the
specific amount of money that they needed to take care of their disabled
son. But this cannot, in itself, affect the above analysis, since it was the
domestic courts’ duty to satisfy themselves that the freezing of the first
applicant’s assets would not cause him more damage than that which
inevitably flows from such measures. The Court has had occasion to say
that although any seizure entails damage, the actual damage sustained by
those affected by it should not be more extensive than that which is
inevitable, if it is to be compatible with Article 1 of Protocol No. 1 (see
Borzhonov, § 61; Džinić, § 68 in fine; and Piras, § 55 in fine, all cited
above).
105. There has therefore been a breach of Article 1 of Protocol No. 1.
24 APOSTOLOVI v. BULGARIA JUDGMENT
106. The applicants further complained that they had not had an
effective remedy with respect to their grievance under Article 1 of
Protocol No. 1. They relied on Article 13 of the Convention, which
provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
107. The Government submitted that neither of the two applicants had
an arguable claim of a breach of Article 1 of Protocol No. 1, and that, in any
event, they had had effective remedies with respect to the freezing of their
assets. In support of this assertion, the Government reiterated the arguments
which they made with respect to the exhaustion of domestic remedies. They
went on to say, with reference to the possibility for the first applicant to
bring a claim for damages under section 49 of the 1950 Act, that only
unlawful property-control measures called for compensation, whereas
nothing suggested that this had been the case with respect to the first
applicant, in contrast with the situation of his wife. In any event, he could
have sought compensation for the duration of the blocking of his assets,
which had resulted from the duration of the criminal proceedings against
him, by way of a claim for compensation under the dedicated
length-of-proceedings remedy put in place in 2012.
108. The applicants reiterated their assertion that they had not had
effective remedies with respect to the freezing of their assets. According to
them, a claim for compensation in relation to the length of the criminal
proceedings against the first applicant would only have concerned the length
of the proceedings as such, not the duration of attendant restrictions on his
property rights.
110. The first applicant, for his part, had at his disposal an apparently
effective remedy with respect to the continued freezing of his assets, but
resorted to it – successfully – nearly four years after the freezing (see
paragraphs 85-86 above). This part of his complaint under Article 13 of the
Convention is therefore manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 (a) and 4 (compare with İçyer v. Turkey
(dec.), no. 18888/02, §§ 90-91, ECHR 2006-I).
111. As for the remedies whereby the first applicant could challenge the
initial freezing of his assets, their effectiveness was taken into account in the
analysis of the merits of his complaint under Article 1 of Protocol No. 1 (see
paragraphs 97-104 above). Although the part of his complaint under
Article 13 of the Convention relating to those remedies is linked to that
under Article 1 of Protocol No. 1, and must thus likewise be declared
admissible, it is not necessary to examine those remedies also by reference
to Article 13 (see, mutatis mutandis, Džinić, cited above, § 82;
C.M. v. France (dec.), no. 28078/95, ECHR 2001-VII; and G.I.E.M. S.R.L.
and Others v. Italy [GC], nos. 1828/06 and 2 others, § 309, 28 June 2018).
A. Damage
not sufficient to compensate that damage. She did not submit any
documents in support of her claim either.
115. The Government noted that neither applicant specified whether
their claims concerned pecuniary or non-pecuniary damage, or submitted
any documents in support. In their view, the claims were exorbitant, and
lower sums or even the mere finding of a breach would amount to sufficient
just satisfaction.
(b) EUR 368 said to have been incurred by the second applicant in
counsel’s fees for the cassation phase of the first proceedings under
section 49 of the Obligations and Contracts Act 1950 (see paragraph 36
above); and
(c) 500 Bulgarian levs (BGN) said to have been incurred again by both
applicants for the translation of their observations and claims.
120. In support of these claims, the applicants submitted two fee
agreements, the first between the two of them and their counsel in the
proceedings before the Court, and the second between the second applicant
and her counsel in the proceedings before the Supreme Court of Cassation.
When later filing the English translation of their observations and claims,
the applicants enclosed with them an invoice for translation services.
121. The Government submitted that the claim in respect of counsel’s
fees for the proceedings before the Court was excessive. For their part, the
counsel’s fees for the cassation phase of the first proceedings under
section 49 of the Obligations and Contracts Act 1950 had not been
necessarily incurred, as those proceedings had not been directed against the
proper defendant. As for the claim in respect of translation expenses, no
supporting documents had been enclosed with it within the time-limit fixed
for filing the applicants’ observations and claims in Bulgarian, and no
extension of time had been sought by them in relation to that.
admissibility and merits and their claims first in Bulgarian, and then, within
an additional time-limit of four weeks, a translation of those in English. The
invoice for translation services was enclosed with the English translation. In
those circumstances, it cannot be seen as having been submitted out of time.
125. The next question is whether the costs and expenses claimed by the
first applicant were actually and necessarily incurred and are reasonable as
to quantum. The rejection of many of his complaints as inadmissible (see
paragraphs 4 and 86 above) calls for a certain reduction (see, among other
authorities, Glass v. the United Kingdom, no. 61827/00, § 91,
ECHR 2004-II; International Bank for Commerce and Development AD
and Others v. Bulgaria, no. 7031/05, § 169, 2 June 2016; and Posevini
v. Bulgaria, no. 63638/14, § 100, 19 January 2017; see also paragraph 17 of
the Practice Direction on Just Satisfaction Claims). Furthermore, the
EUR 1,500 incurred in counsel’s fees for the proceedings before the Court
and the BGN 500 incurred for the translation of the observations and claims
were, according to the materials submitted by the applicants, borne jointly
by both of them. In the absence of any indication about the way in which
they apportioned those between themselves, each must be considered to
have borne half.
126. In view of all this and the materials in the Court’s possession, it is
appropriate to award the first applicant EUR 700, plus any tax that may be
chargeable to him.
2. Holds that there has been a breach of Article 1 of Protocol No. 1 with
respect to the first applicant;
4. Holds
(a) that the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
APOSTOLOVI v. BULGARIA JUDGMENT 29