European Court of Human Rights

 

 

THIRD SECTION

CASE OF LYAPCHEV AND OTHERS v. BULGARIA

(Applications nos. 75478/13 and 30713/15)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

2 March 2023

 

This judgment is final but it may be subject to editorial revision.

In the case of Lyapchev and Others v. Bulgaria,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Darian Pavli, President,
          Ioannis Ktistakis,
          Andreas Zünd, judges,

and Viktoriya Maradudina, Deputy Section Registrar,

Having deliberated in private on 2 February 2023,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in applications against Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table

2.  The Bulgarian Government (“the Government”) were given notice of the applications.

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The applicants complained of the forfeiture of alleged proceeds of crime.

THE LAW

I.        JOINDER OF THE APPLICATIONS

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.     ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1

6.  The applicants complained of the forfeiture of alleged proceeds of crime. They relied, expressly or in substance, on Article 1 of Protocol No. 1, which reads as follows:

“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.”

 

8.  That judgment concerned the forfeiture of alleged proceeds of crime under the same legislation as applied in the case at hand, namely the Forfeiture of Proceeds of Crime Act 2005 (hereinafter “the 2005 Act”).

9.  In Todorov and Others (cited above, §§ 200-09) the Court identified some potential flaws in the 2005 Act and in the manner in which it had been applied. It highlighted in this respect the combined effect of the wide scope of its application - as to predicate crimes and as to the periods for which the defendants’ revenues and expenses were being checked, the difficulties for defendants to prove what the courts considered “lawful” income during such a period, marked, moreover, by inflation and economic changes, and the presumption that any asset not shown to have had a “lawful” provenance was the proceed of crime. The Court’s position was that, while these potential flaws were not sufficient to render each forfeiture under the 2005 Act contrary to Article 1 of Protocol No. 1, they certainly placed a considerable burden on defendants in forfeiture proceedings and could tilt the balance in favour of the State. Thus, as a counterbalance and a guarantee of the applicants’ rights, it was crucial that the national courts established a causal link between the assets for which forfeiture was being sought and the criminal conduct of the defendants.

10.  Applying these requirements to the specific cases examined in the leading judgment, the Court found a violation of Article 1 of Protocol No. 1 in those of them where the national courts had failed to justify the existence of the causal link defined above, and had ordered forfeiture relying on the above-mentioned presumption contained in the 2005 Act and on discrepancies between the applicants’ expenses and their “lawful” income during the relevant periods (see §§ 217-50 of the judgment).

11.  As to the two cases under examination in the present judgment, in the case of Lyapchevi the national courts ordered the forfeiture of assets acquired before Mr Lyapchev had committed the predicate offence, relying only on the discrepancies between the applicants’ “lawful” income and expenses and on the fact that Mr Lyapchev was under further investigation. In the case of Chupetlovski the courts referred merely to the nature of the applicant’s unspecified “criminal activity”. While the Court stated in Todorov and Others (cited above, § 216) that in such type of cases it would generally defer to the national courts’ assessment as to the existence of a causal link between any criminal conduct of the applicants and the assets subject to forfeiture, in the particular case the reasons provided to substantiate such a link are clearly insufficient.

12.  The Court thus sees no reason to reach a conclusion different than the one in the cases examined in Todorov and Others where it found a violation of Article 1 of Protocol No. 1 and criticised the approach taken by the national courts.

13.  The complaints under examination are therefore admissible and disclose a breach of Article 1 of Protocol No. 1.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

15.  In respect of pecuniary damage, the applicants claimed the value of their respective forfeited assets. They urged the Court to depart from the approach taken in Todorov and Others (cited above, §§ 320-22), where it rejected the applicants’ claims in respect of pecuniary damage and indicated that the national authorities had to reopen the domestic proceedings and re-examine the forfeiture claims. The applicants argued that such a procedural path would be ineffective. The applicants in the case of Lyapchevi pointed out that the re-examination of their case at the domestic level would be lengthy and costly, while the applicant in the case of Chupetlovski doubted that the Supreme Court of Cassation would order re-opening.

16.  The Government urged the Court to reject the claims for pecuniary damage and follow the approach taken in Todorov and Others.

17.  The Court is not in a position to speculate on whether the applicants’ forfeited assets were or were not the proceeds of crime, and cannot thus determine any pecuniary damage which the applicants might have suffered as a result of unjustified forfeiture. Accordingly, it dismisses the applicants’ claims in respect of pecuniary damage, and reiterates, as in Todorov and Others (cited above, §§ 320-22), that the most appropriate means to remedy the violation is the reopening of the domestic proceedings and the re-examination of the matter by the domestic courts, in compliance with the requirements of Article 1 of Protocol No. 1.

18.  As to non-pecuniary damage, each of the applicants claimed 5,000 euros (EUR). The Court, taking note of the circumstances of the case, awards the amounts indicated in the appended table.

19.  As to costs, the applicants in the case of Lyapchevi claimed EUR 3,022, and the applicant in the case of Chupetlovski claimed EUR 4,980, for the cost of their legal representation before the Court, as well for translation and postage. The Court, taking into account the circumstances of the case and in particular its repetitive character, finds it appropriate to award the sums indicated in the appended table. The applicant in the case of Chupetlovski requested that any sum awarded under the present head be paid directly to his legal representative before the Court.

20.  Lastly, the applicant in the case of Chupetlovski claimed the equivalent of EUR 10,420, paid by him for legal representation and court fees in the domestic proceedings. The Court rejects this claim, noting that the applicant would be entitled to seek the reimbursement of any costs already paid in case he is successful at any fresh examination of his case (Articles 245 § 3 and 309 of the Code of Civil Procedure).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the applications admissible;

3.      Holds that these applications disclose a breach of Article 1 of Protocol No. 1 concerning the forfeiture of alleged proceeds of crime;

4.      Holds

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses the remainder of the applicants’ claims for just satisfaction.

Done in English, and notified in writing on 2 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

      Viktoriya Maradudina                                                Darian Pavli
          Deputy Registrar                                                      President

 

APPENDIX

List of applications raising complaints under Article 1 of the Convention

(forfeiture of alleged proceeds of crime)