EHRM, 21-12-2006, nr. 56891/00

The Government did not challenge the admissibility of the application. The applicant argued that in so far as the applicability of Article 6 of the Convention was not disputed by the Government that the application should be declared admissible.

The Court reiterates that in its case law it has established a criteria in order to determine whether an offence qualifies as ‘criminal’ for the purposes of the Convention. In particular, that is the classification of the offence under national law, the nature of the proceedings and the nature and degree of severity of the penalty (see, for example, Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 756, § 56; Garyfallou AEBE v. Greece, judgment of 24 September 1997, Reports 1997-V, p. 1830, §§ 32–33; and Lauko v. Slovakia, judgment of 2 September 1998, Reports 1998-VI, p. 2504, §§ 56–57).

Noting that the Government did not challenge the admissibility of the application, the Court, by applying the above criteria to the present case and taking into account the five days' deprivation of liberty imposed on the applicant as a sanction for the offence of minor hooliganism, finds that the proceedings against her involved the determination of a ‘criminal charge’ within the autonomous meaning of Article 6 § 1 of the Convention. Thus, the criminal limb of Article 6 of the Convention is applicable in the present case.

In addition, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Government submitted that the applicant was afforded a fair trial in the proceedings against her. They contested her claims of violations in that respect and her assertion that she was not promptly informed of the reasons of her arrest. They noted that she had signed the assessment without any reservation and considered her subsequent allegation before the domestic court that she was not aware of its contents as completely unsubstantiated.

The Government further noted that the Decree was intended to combat minor infractions of hooliganism, which were not considered a criminal offence, and the sanctions imposed there under were not entered into the criminal record of the respective individual. Moreover, the expedited procedure under the Decree was to take not longer than twenty four hours to complete. The Government thus argued that, in the light of the aforesaid and the circumstances of the present case, the applicant had adequate time for the preparation of her defence.

The Government also considered that the applicant had failed to avail herself of the right to be defended by counsel and argued that, even assuming that she was unable to contact a lawyer while in the police station, she could have requested to do so at the hearing on 8 September 1999 which she failed to do.

Lastly, the Government contended that Article 6 § 3 (d) of the Convention is not absolute and that the domestic courts have discretionary powers as to whether to call further witnesses. Moreover, they noted that three witnesses had been heard and that the applicant had failed to indicate the names of the witnesses she wanted to call and also how their testimonies might have contributed to the proceedings.

The applicant disagreed with the Government and stated that she was denied a fair trial in the proceedings on account of the expedited procedure under the Decree which resulted in her being convicted within three hours of being detained during which time she did not have time to prepare her defence nor to retain legal counsel. Moreover, she considered the lack of a requirement under the said Decree to have legal counsel appointed ex officio contributed to the lack of fairness of the proceedings.

As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaints under both provisions taken together (see, among many other authorities, the F.C.B. v. Italy, judgment of 28 August 1991, Series A no. 208-B, p. 20, § 29; Poitrimol v. France, judgment of 23 November 1993, Series A no. 277-A, p. 13, § 29; Lala v. the Netherlands, judgment of 22 September 1994, Series A no. 297-A, p. 12, § 26; and Krombach v. France, no. 29731/96, § 82, ECHR 2001-II).

The Court reiterates that the principle of equality of arms relied on by the applicant — which is one of the elements of the broader concept of fair trial — requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among many other authorities, Nideröst-Huber v. Switzerland, judgment of 18 February 1997, Reports 1997-I, pp. 107-8, § 23, and Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 102, ECHR 2000-VII).

The Court also points out that it is not within its province to substitute its own assessment of the facts and the evidence for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see Edwards v. the United Kingdom, 16 December 1992, Series A no. 247-B, pp. 34–35, § 34; Mantovanelli v. France, 18 March 1997, Reports 1997-II, pp. 436–37, § 34; and Bernard v. France, 23 April 1998, Reports1998-II, p. 879, § 37).

Turning to the specifics of the present case and the expedited procedure under the Decree, the Court recognises that the intention was to deal quickly and efficiently with petty offences of hooliganism. More significant disturbances of public order were to be dealt with as a criminal offence under the Criminal Code (Article 325). The Court further recognises that the existence and utilisation of expeditious proceedings in criminal matters is not in itself contrary to Article 6 of the Convention as long as they provide the necessary safeguards and guarantees contained therein. Thus, in order to ascertain whether the proceedings against the applicant, considered as a whole, were fair, the Court will individually address the complaints raised in that respect.

The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage resulting from the pain, suffering and distress endured as a result of the violations of her rights under the Convention. She argued that regard should also be taken of the stressful conditions of her arrest and trial, the uncertainty she faced, the five days' detention she had to endure as a result of the unfair proceedings and the fact that she was detained in a police station not equipped for long periods of detention.

The Government did not submit comments on the applicant's claims for damage.

The Court considers that the applicant has undoubtedly suffered non-pecuniary damage as a result of the unfair proceedings against her which resulted in her detention for a period of five days in a police station (see paragraphs 9–20 and 50 above). Having regard to the circumstances of the present case and deciding on an equitable basis, the Court awards EUR 2,000 under this head, plus any tax that may be chargeable on that amount.

The applicant also claimed EUR 1,500 for the legal work provided by his representatives before the Court, consisting of their examination of the documents in the case, travel from Sofia to Pazardzhik, legal research and drafting of one letter and two submissions to the Court.

The Government did not submit comments on the applicant's claims for costs and expenses.

The Court reiterates that under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents and within the time-limit fixed for the submission of the applicant's observations on the merits, ‘failing which the Chamber may reject the claim in whole or in part’. In the instant case, it observes that the applicant failed to present a legal fees agreement with her representatives or an approved timesheet of the legal work performed before the Court. In addition, she did not present any invoices or receipts for any other costs. In view of the applicant's failure to comply with the aforesaid requirement, the Court makes no award for costs and expenses.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.