EHRM, 27-10-2015, nr. 35399/05

The Court reiterates that Article 1 of Protocol No. 1 to the Convention applies only to a person's possessions (see Marckx v. Belgium, 13 June 1979, § 50, Series A no. 31, and Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 64, ECHR 2007-I [GC]) which can be either ‘existing possessions’ or assets, including claims, in respect of which the applicant can argue that he or she has at least a ‘legitimate expectation’ of obtaining effective enjoyment of a property right (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], § 61; Von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74 (c), ECHR 2005-V; and Kopecký v. Slovakia [GC], no. 44912/98, § 35 (c), ECHR 2004-IX). Importantly, Article 1 of Protocol No. 1 to the Convention does not guarantee the right to acquire property (see Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR 2002-II (extracts), and Kopecký, cited above, § 35 (b)). Future income constitutes a ‘possession’ only if the income has been earned or where an enforceable claim to it exists (see Ian Edgar (Liverpool) Ltd v. United Kingdom (dec.), no. 37683/97, 25 January 2000; Wendenburg v. Germany (dec.), no. 71630/01, 6 February 2003; Levänen and Others v. Finland (dec.), no. 34600/03, 11 April 2006; Anheuser-Busch Inc, cited above, § 64; and N.K.M. v. Hungary, no. 66529/11, § 36, 14 May 2013).

In the present case the Court observes that the applicant chose of his own volition not to perform the work required for the fee to be paid. Having been told by the presiding judge that the fee would not be set at the beginning of the hearing, the applicant chose to leave the courtroom and opt out of his role as court-appointed defence counsel. He therefore neither earned the future fee nor did he have a claim to it on different grounds.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The Court notes that whether the applicant has suffered any significant disadvantage represents the main element of the criterion set forth in Article 35 § 3(b) of the Convention (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, 1 June 2010; see also Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). Inspired by the general principle de minimis non curat praetor, this admissibility criterion rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant's subjective perceptions and what is objectively at stake in a particular case (see Korolev, cited above). In other words, the absence of any significant disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Adrian Mihai Ionescu, cited above). The Court observes in this connection that it has previously considered the pecuniary loss of some EUR 90 allegedly sustained by the applicant in the case of Adrian Mihai Ionescu (cited above) as not attaining the required level of significance. It has also assessed as negligible a pecuniary loss of some EUR 0.5 allegedly sustained by the applicant in the case of Korolev, cited above.

In respect of the Government's position that the applicant in the present case had not suffered a significant disadvantage as the fine's size was negligible, the Court notes the following. The applicant was fined approximately EUR 260 by the domestic courts in the context of a criminal case to which he had been assigned to act as defence counsel for one of the accused. Neither party submitted information about the applicant's financial situation. The Court observes that, according to a study commissioned by the European Observatory of Working Life (a European Union agency), the minimum monthly salary in Bulgaria at the time of the facts was equivalent to about EUR 61. Even assuming that the applicant was a freelance lawyer whose earnings were not pegged to the minimum salary level, the Court considers the above information indicative of the general standard of living in the country at the time and, as such, of relevance.

The Court also notes that the fine, which is the subject of the complaint before it, was imposed on the applicant as a pecuniary sanction, or a penalty for what the domestic court considered was his disrespectful conduct during the case proceedings. Therefore, in addition to and apart from the applicant's pecuniary interest in not having been fined, it is also necessary to take into account the fact that the issue of whether he had been fined lawfully concerned a question of principle for him, which was that of respect for his position as a lawyer in the exercise of his professional activities.

Under these circumstances the applicant cannot, in the court's view, be deemed not to have suffered a significant disadvantage.

The Court notes that the admissibility criterion set forth in Article 35 § 3 (b) of the Convention is applicable only when the applicant has suffered no significant disadvantage and provided that the two safeguard clauses contained in the same provision are respected. It follows that where it has not been determined that the applicant has suffered no significant disadvantage, this admissibility criterion does not apply (see Giuran v. Romania, no. 24360/04, § 24, ECHR 2011 (extracts)).

The Court accordingly dismisses the Government's objection in respect of the fine. Noting that the applicant's complaint in respect of the fine is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds, it declares it admissible.

The Government submitted that the fine imposed on the applicant cannot be considered to have unlawfully or disproportionately affected his ‘possessions’. In particular, the fine had been a financial sanction explicitly provided for in domestic legislation. The State was entitled to introduce control mechanisms of different types which included fines. The fine imposed on the applicant had been lawful, given that he had been a court-appointed defence counsel at the time but had been absent from the hearing. The fine had also been proportionate to his conduct, given that it was a disciplinary punishment for unethical conduct and lack of respect displayed by the applicant towards the court. Lastly, by leaving the courtroom and by refusing to carry on representing the defendant, the applicant had caused an unjustified delay in the proceedings for which he had been rightly fined.

The applicant submitted that the fine imposed on him had interfered with his right to peaceful enjoyment of his possessions and was not in accordance with the law.

He pointed out that the court had been obliged to indicate in the decision to appoint him defence counsel the fee he was going to receive. The fee could not be smaller than the minimum amount stipulated in the Remuneration Ordinance; if the court offered a smaller fee, the lawyer had to refuse to represent the defendant or otherwise risked sanctions by the Bar under section 132(6) of the Bar Act (see paragraph 9 above). The applicant argued that, as the court had failed to indicate the fee to be paid to him in the decision appointing him counsel, the court had not acted lawfully; therefore he had effectively not been appointed counsel before he was fined. He further pointed out that he had not failed to appear at the hearing; he had in fact turned up prepared to act for the defence and had only subsequently left because of the court's unlawful refusal to guarantee a fee of no less than the legal minimum. For the above reasons, the applicant claimed, the fine had not been lawful.

The Court points out that Article 1 of Protocol No. 1, which guarantees in substance the right to property, comprises three distinct rules. The first rule, expressed in the first sentence of the first paragraph, is of a general nature and lays down the principle of peaceful enjoyment of one's ‘possessions’. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third rule, contained in the second paragraph, recognises that States are entitled to, among other things, control the use of property in accordance with the general interest. The Court has repeatedly held that the second and third rules must be construed in the light of the general principle laid down in the first rule (see, among many other authorities, Grifhorst v. France, no. 28336/02, §§ 81–83, 26 February 2009).

The Court reiterates that any interference by a public authority with the peaceful enjoyment of possessions must be lawful. In particular, the second paragraph of Article 1 of Protocol No. 1, while recognising that States have the right to control the use of property, subjects their right to the condition that it be exercised by enforcing ‘laws’. Moreover, the principle of lawfulness presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, mutatis mutandis, Frizen v. Russia, no. 58254/00, § 33, 24 March 2005).

Further, a fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see SCHNEIDER AUSTRIA GmbH v. Austria (dec.), no. 21354/93, 30 November 1994). The requisite balance will not be struck where the person concerned bears an individual and excessive burden (see Valico S.r.l. v. Italy (dec.), no. 70074/01, 21 March 2006). Consequently, a financial liability arising out of a fine may undermine the guarantee afforded by that provision if it places an excessive burden on the person or fundamentally interferes with his or her financial position (see Valico S.r.l., cited above). The fair balance requires procedural guarantees to establish the applicant's liability whereby the applicant is afforded an adequate opportunity to put his or her case to the responsible authorities in order to plead, as the case might be, illegality or arbitrary and unreasonable conduct (see Yildirim v. Italy (dec.), no. 38602/02, 10 April 2003).

The Court reiterates also that it is primarily for the national authorities to decide what kind of taxes or contributions are to be collected. Such decisions will commonly involve the appreciation of political, economic and social questions which the Convention leaves within the competence of the Contracting States. The Court has repeatedly held that the margin of appreciation of the Contracting States in those areas is a wide one (see, among many other authorities, Gasus Dosier - und Fördertechnik GmbH v. the Netherlands, 23 February 1995, § 60, Series A no. 306-B. See also, mutatis mutandis, in relation to fiscal policy, Baláž v. Slovakia (dec.), no. 60243/00, 16 September 2003).

The Court observes that the ‘possession’ which forms the object of this complaint is a sum of money, that is to say the EUR 260 which was imposed as a fine on the applicant (see paragraphs 14 and 19). It considers that this measure amounts to an interference with the applicant's right to peaceful enjoyment of possessions. Article 1 of Protocol No. 1 to the Convention is therefore applicable.

The fine constitutes a ‘penalty’ within the meaning of the Convention. It therefore falls within the scope of the second paragraph of Article 1 of Protocol No. 1 which allows the Contracting States to control the use of property to secure the payment of, inter alia, penalties.

In respect of the ‘lawfulness’ of the interference, the applicant submitted both in the national proceedings and before this Court, that he had not been appointed as legal counsel in accordance with the applicable law, as in the decision appointing him the national court failed to indicate the fee to be paid to him as ex officio counsel. This was something explicitly required by national law at the time. As the applicant had not been duly appointed counsel in the proceedings, in accordance with the applicable legal requirements, he could not have been fined for failing to appear and thus obstructing the judicial proceedings. The Government insisted that the applicant had been appointed counsel by the court before it fined him on the basis of Article 269 of the CCP and, therefore, that the fine was lawful.

The Court notes that, indeed, conflicting provisions existed under national law, regulating the appointment by the courts of ex officio legal representatives, and this gave rise to a dispute as to their proper interpretation. The dispute was about the time when legal fees of ex officio lawyers should be determined by the courts, as well as their amount. Section 44(2) of the Bar Act, applicable at the time, stipulated that the court had to indicate the amount of legal fee to be paid to counsel in the decision with which the court appointed that counsel to act in the proceedings. This was also explicitly confirmed by the domestic court before which the applicant appealed the disputed fine. The Bar Act further stipulated that the courts should follow minimum fees, as determined by the National Bar Council, something, which it appears the national courts have failed to do.

The Court notes in that respect, that it is not its role to interpret and define the precise meaning of national law, a task that clearly falls within the realm of the national courts (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 50, first sentence, 20 October 2011, with further references). It is eventually for the national courts to determine the lawfulness under national law of an impugned interference the court's role in that respect being limited. The Court further notes that conflicting legal provisions are an inevitable part of any legal system and that the purpose of the requirement of lawfulness, and consequently of clarity and foreseeability of the domestic law, is there to allow everyone to foresee, to a degree that is reasonable in the particular circumstances, the consequences which a given action may entail (see Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III). Domestic legislation could not in any case provide for every eventuality and the level of precision required depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Hashman and Harrup v. the United Kingdom [GC], no. 25594/94, § 31, ECHR 1999-VIII).

Taking into account those principles and the circumstances of the present case, the Court is not convinced, despite the apparent conflict between different provisions of domestic legislation, that the impugned fine was based on law that failed to meet Convention standards. It is of particular importance in the present case that the fine was imposed on a professional lawyer, by a trial court before which he was appearing in his professional capacity. Under those circumstances the applicant must have been fully aware of the ultimate responsibility of the judge presiding the judicial proceedings for their proper conduct. The applicant was instructed in no unclear terms by the domestic court that he was appointed as defense counsel, before he was fined for choosing to leave the court hearing. The domestic court fined the applicant specifically referring to a legal provision which was part of the Criminal Procedure Code, vesting ultimate authority for the proper administration of the proceedings in the judge. Given that the applicant was a lawyer, both this basic principle and the content and meaning of the particular provision of the CPC should have been sufficiently clear to him and the consequences of its application foreseeable. Any dispute about the remuneration of the applicant as an ex officio counsel could not have been expected to take precedence over the proper conduct of the judicial proceedings and those judicial proceedings could not have been expected to be the forum where such a dispute should be resolved.

In view of the above, the Court is prepared to accept that the applicant, as a representative of a party in criminal proceedings, was fined as a result of his absence from the hearing. As it cannot be said that the application of the law to the applicant's situation was arbitrary, the Court finds that he was fined lawfully, that is to say on the basis of an accessible, clear and foreseeable legal provision.

Furthermore, the law pursued the legitimate aim of ensuring the smooth operation of the justice system (see Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, § 70, 10 May 2011 with further references to the importance of administering justice without delays which might jeopardise its effectiveness and credibility). The Court recognises that, undeniably, it is in the general interest of society to have a justice system which operates efficiently and this includes court proceedings unhindered by unjustified delays.

It remains to be determined whether a ‘fair balance’ was struck between the demands of the general interest and the requirements of the protection of the applicant's fundamental rights. In the present case, causing the postponement of the hearing without a valid reason, as established by the national courts, represented an obstacle to the smooth functioning of the justice system; courts are called upon to ensure the latter. The issue of whether the conduct leading to that obstacle should be punished by a financial sanction with a deterrent effect, such as the fine in the present case, comes within the margin of appreciation of the State. That margin is a wide one (see paragraph 56 above).

Importantly, the applicant had at his disposal a procedural guarantee by which to challenge the penalty, specifically a possibility to bring judicial review proceedings in respect of the fine. He made use of that remedy (see paragraph 18 above) and there is nothing to show that the decision-making process resulting in the fine complained of was unfair or arbitrary.

Lastly, although the fine imposed on the applicant was in the maximum possible amount under the relevant legal provision, it is neither prohibitive, nor oppressive or otherwise disproportionate (see for a similar approach Allianz-Slovenska-Poistovna, A.S., and Others v. Slovakia (dec.), no. 19276/05, 9 November 2010).

The Court points out that the situation in the present case has to be distinguished from cases which concern the right of lawyers to express themselves freely in their capacity as defence counsel; in those cases complaints have been made by applicants and examined by the Court under Article 10 of the Convention (see, for example, Nikula v. Finland, no. 31611/96, §§ 29–56, ECHR 2002-II; see, more recently, Morice v. France [GC], no. 29369/10, § 174, 23 April 2015). In Nikula and Morice, both cited above, the applicants were convicted for having criticised respectively a prosecutor and a judge in a manner which the domestic courts found defaming. The Court held that the issue concerned the applicants' freedom of expression; in Morice specifically it was part of a debate on a matter of public interest about the functioning of the justice system and in the context of a case which had received wide media coverage from the outset. In the present case, the applicant was sanctioned with a fine for having abandoned his duty to represent the accused; that duty stemmed from the fact that the court had appointed the applicant defence counsel and no objective reasons rendered the discharge of his legal representation duties impossible (see paragraphs 23 and 24 above).

In the circumstances of the present case, in view of all said above the Court finds that the authorities have struck a fair balance between, on the one hand, the general interest and, on the other, respect for the applicant's right to property. The interference did not, therefore, impose an excessive burden on the applicant.

It follows that there has been no violation of Article 1 or Protocol No. 1 to the Convention.