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FIFTH
SECTION
CASE OF
OGNYAN ASENOV v. BULGARIA
(Application
no. 38157/04)
JUDGMENT
STRASBOURG
17
February 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Ognyan Asenov v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Angelika
Nußberger,
Julia
Laffranque,
judges,
Maiia
Rousseva, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38157/04) 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 a Bulgarian national, Mr Ognyan Lyubomirov
Asenov (“the applicant”), on 7 October 2004.
- The
applicant was represented by Mr D. Kanchev and Ms Z. Stefanova,
lawyers practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agents, Ms M. Dimova and
Ms S. Atanasova, of the Ministry of Justice.
- The
applicant alleged that a court order requiring him to reimburse the
fees of counsel appointed for him during his criminal trial had
violated his right under Article 6 § 3 (c) of the Convention to
free legal assistance, and that he had not had effective remedies in
that connection, in breach of Article 13 of the Convention.
- On
16 June 2008 Zdravka Kalaydjieva, the judge elected in respect of the
Republic of Bulgaria, withdrew from sitting in the case. On 11 March
2010 the Government appointed in her stead Pavlina Panova as an ad
hoc judge (Article 27 § 2 of the Convention and Rule 29 §
1 of the Rules of Court, as worded before 1 June 2010). On 22
November 2010 Pavlina Panova also withdrew from sitting in the case.
The same day the President of the Fifth Section chose Maiia Rousseva
as an ad hoc judge from a list of three persons whom Bulgaria
had designated as eligible to serve as such judges (Article 26 §
4 of the Convention and Rule 29 § 1 of the Rules of Court, as
worded after 1 June 2010).
- In
the meantime, on 2 March 2009 the President of the Fifth Section
decided to give notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1978 and lives in Sofia. He
has five children, born in 1998, 2001, 2004 and 2006.
- According to a certificate issued by the competent
employment bureau, for most of the period between July 1994 and June
2007 he was not in formal employment. According to a document issued
by a street cleaning company, between 2004 and 2007 it employed
the applicant for approximately four months, paying him salaries
ranging from 120 Bulgarian levs (BGN) (equivalent to 61.36 euros
(EUR)) to BGN 200 (equivalent to EUR 102.26).
- In 2001 the applicant and his brother were charged with
raping a woman. They were arrested on 18 October 2001 and released on
bail on 19 November 2002. Shortly after that they were committed
for trial before the Sofia District Court (Софийски
районен съд).
- At the outset of the first hearing, held on 4 April
2003, the applicant and his brother stated that they were illiterate.
The applicant also said that he could not afford to retain counsel.
The court appointed counsel for each of them, relying on their
illiteracy and grounding its decision on Article 70 § 1 (4) of
the 1974 Code of Criminal Procedure (see paragraph 17 below).
- At the close of its last hearing in the case, which
took place on 10 June 2004, the court, noting the seriousness of
the charges against the applicant and his brother, and observing that
their counsel had represented them at several hearings, found that
the counsel should be paid BGN 200 (equivalent to EUR 102.26) each.
- On 10 June 2004 the Sofia District Court convicted the
applicant and his brother of aggravated rape. It sentenced the
applicant to eight years’ imprisonment, but deducted from them
the time which he had spent in pre trial detention (see
paragraph 8 above). Under Article 169 § 2 of the Code of
Criminal Procedure (see paragraph 18 below), it ordered them to
reimburse the costs of the proceedings, amounting to BGN 1,934.20
(equivalent to EUR 988.94) for each of them. It issued writs of
execution for those sums.
- Counsel for the applicant lodged an appeal against the
conviction and sentence. In her detailed submissions she challenged
the Sofia District Court’s findings of fact and the manner in
which it had assessed various pieces of evidence. She also challenged
the manner in which the court had applied the substantive criminal
law and the severity of the sentence that it had imposed.
- On 8 November 2004 the Sofia City Court (Софийски
градски съд)
upheld the applicant’s conviction, but reduced his
sentence to five years’ imprisonment. It ordered the applicant
and his brother to reimburse the costs of the appeal proceedings,
which consisted of the fees of their court appointed counsel.
Those amounted to BGN 100 (the equivalent of EUR 51.13) for each of
the two accused.
- In a final judgment of 23 April 2007 (реш.
№ 7 от 23 април
2007 г. по н.
д. №
672/2006 г.,
ВКС, II
н. о.), given on an appeal by the applicant’s
brother, a three member panel of the Supreme Court of Cassation
(Върховен
касационен
съд) upheld
the Sofia City Court judgment in full. As the applicant did not
participate in the cassation proceedings, he was not ordered to pay
any costs.
- At
the time of the latest information from the applicant on that point
(20 March 2009), he was still serving his sentence. It is unclear
whether he worked in prison. According to the Government, there was
nothing to prevent him from doing so; he was of an active age and
able to work. According to the applicant, he was not given any
opportunity to work in prison and was, moreover, unable to do so due
to his poor health. A certificate submitted by him shows that between
22 April and 10 September 2008 he was admitted to a prison hospital,
where he was treated for pulmonary tuberculosis.
II. RELEVANT DOMESTIC LAW
A. The Constitution
- Article 98, point 12 of the 1991 Constitution empowers
the President of the Republic to remit uncollectable State debts. The
President has set up a Commission for the Remission of Uncollectable
State Debts to advise him in the exercise of his power under that
provision.
B. The Code of Criminal Procedure
- Article 70 of the 1974 Code of Criminal Procedure
contained a list of circumstances requiring the appointment of
defence counsel by the court. These included, among others, lack of
command of the Bulgarian language (point 4). On 1 January 2000 a new
point (7) was added. It was part of a comprehensive overhaul of the
Code intended to bring it in line with the Convention, was based on
its Article 6 § 3 (c), and provided that the appointment of
counsel was compulsory if the accused could not afford it but wished
to be legally represented and the interests of justice so required.
On 29 April 2006 the 1974 Code was superseded by the 2005 Code of
Criminal Procedure. The text of its Article 94 § 1 (9) is
identical to that of Article 70 § 1 (7) of the 1974 Code.
- Article 169 § 2 of the 1974 Code provided that if
the accused was found guilty, the court were to order him or her to
reimburse the costs of the proceedings, including the fees and
disbursements of any court appointed counsel. If there was more
than one accused, the court was to apportion the costs between them
at its discretion. In a judgment of 3 February 2005 (реш.
№ 33 от 3 февруари
2005 г. по н. д.
509/2004 г., ВКС, ІІ н.
о.), in reply to a submission that
Article 169 § 2 of the Code was incompatible with Article 6 §
3 (c) of the Convention, the Supreme Court of Cassation found that
the requirement for the accused to reimburse the fees of their
court appointed counsel after their conviction became final was
not contrary to the latter provision.
- Article 169 § 2 of the 1974 Code was superseded
by Article 189 § 3 of the 2005 Code, which repeats it almost
verbatim. As some courts were complying strictly with that provision,
ordering all convicted accused to reimburse the fees of their
court appointed counsel, whereas others did not, in late 2009
the President of the Supreme Bar Council asked the General
Meeting of the Criminal Chambers of the Supreme Court of Cassation to
settle the issue. In a binding interpretative decision of 19 February
2010 (тълк. реш.
№ 4 от 19 февруари
2010 г. по тълк. д. №
4/2009, ОСНК на
ВКС), General Meeting of the Criminal
Chambers of the Supreme Court of Cassation held that Article 189 §
3 required convicted criminal defendants to reimburse the fees of
their court appointed counsel in all cases. Referring to
Croissant v. Germany (25 September 1992, Series A no. 237 B),
it expressed the view that that requirement did not run counter to
Article 6 § 3 (c) of the Convention. Eleven out of the
twenty-six judges who took part in the proceedings dissented,
considering, inter alia, that the requirement for indigent
accused to reimburse the fees of their court appointed counsel
after conviction was incompatible with Article 6 § 3 (c) of the
Convention. The three members of the panel which had dealt with the
case after the applicant’s brother appealed on points of law
(see paragraph 14 above) voted with the majority.
C. The 2005 Legal Aid Act
- The 2005 Legal Aid Act came into force on 1 January
2006.
- Under section 23(1), read in conjunction with section
21(3), counsel may be appointed for a litigant if legal
representation is mandatory by law.
- Under section 23(2), read in conjunction with section
21(3), counsel may be appointed for individuals subject to criminal
proceedings if they do not have sufficient means to pay, wish to have
counsel, and the interests of justice so require. The assessment
whether such individuals lack sufficient means is made by the
authority in charge of the proceedings, on the basis of their
financial resources (section 23(3)). The decision can be taken either
at the request of those concerned or ex officio (section
25(1)). Those who have been granted legal aid must inform the
authority of any relevant change of circumstances (section 27(1)). If
they cease to be eligible for legal aid, the authority may
discontinue it (section 27(2)). If they fail to provide information
in a timely manner, they are liable to repay any amounts paid after
the relevant change of circumstances (section 27(3)).
- Once legal aid is granted, the competent authority
sends a copy of its decision to the local bar council, which
nominates a lawyer to be appointed as counsel for the accused
(section 25(4)). The lawyer is paid for his or her services by the
National Legal Aid Bureau, on the basis of a report for the work done
(sections 37 39).
- Paragraph 3 of the Act’s transitional and
concluding provisions provides that the Act does not apply to cases
which were pending at the time when it came into force.
D. The Code of Civil Procedure and the Code of Tax and
Social Security Procedure
- Article 444 of the 2007 Code of Civil Procedure
provides that money debts owed by individuals cannot be enforced
against certain assets: (a) personal belongings set out in a list
drawn up by the Council of Ministers; (b) food needed by the debtor
or his family for one month; (c) fuel needed for three months;
(d) machines, instruments, devices and books which the debtor needs
to carry out his professional occupation; (e) gardens or
vineyards smaller than 0.5 hectares, fields and pastures smaller than
3 hectares, as well as machines and consumables needed for working
those; (f) two heads of cattle, one cow, five sheep or goats, ten
beehives, poultry, as well as the food necessary to feed them until
the next crop; (g) the debtor’s home, if the debtor and the
family members who live with the debtor have no other home,
regardless of whether any of them lives in that home, provided that
if the home is bigger than a certain minimum fixed by the Council of
Ministers, the surplus area may be sold if it is possible to separate
it.
- Article 446 § 1 of the same Code provides that
money debts cannot be enforced against wages and pensions if they are
below a certain amount.
- Article 448 § 1 of the Code provides that if the
authorities do not find in the possession of the debtor enough assets
against which they can enforce the debt, the debtor must appear
before a district court judge and declare all his assets and income.
- Article 213 of the 2005 Code of Tax and Social
Security Procedure likewise provides that debts owed to the State
cannot be enforced against certain assets: (a) personal belongings of
the debtor and his or her family members, food, fuel, livestock and
tools necessary for carrying a trade, to be set out in a list drawn
up by the Council of Ministers; (b) the debtor’s only home, if
the area per family member is less than 30 square metres, provided
that if the home is bigger than a certain minimum fixed by the
Council of Ministers, the surplus area may be sold if it is possible
to separate it; (c) money in bank accounts, if it is not more
than BGN 250 per family member; (d) agricultural land, if it is less
than 0.3 hectares and is being worked by the debtor or a family
member, as well as the tools necessary to do so; (e) wages and
related payments, pensions and scholarships, up to BGN 250 per
month; (f) social security payments, including unemployment benefits,
social payments, gifts received by handicapped individuals, and
alimony and child support payments.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c)
OF THE CONVENTION
- The
applicant complained that following his conviction he was ordered to
reimburse the fees of his court appointed counsel. He relied on
Article 6 of the Convention, which provides, in so far as relevant:
“1. In the determination ... of any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;
...”
A. Admissibility
- The
Government pleaded that the applicant had not exhausted domestic
remedies. They said that he had not tried to challenge the order
requiring him to reimburse the fees of his court appointed
counsel, and had not sought to have his debt remitted by the
President of the Republic. If the President refused to do so, nothing
prevented the applicant from applying again in the event of changes
in his financial situation or health.
- The
applicant replied that he had appealed against the Sofia District
Court’s judgment as a whole, and his appeal had therefore
included the order for costs. However, the Sofia City Court had not
reviewed that order, and had instead issued a new order for costs
relating to the proceedings before it. The applicant also submitted
that the President enjoyed unlimited discretion whether or not to
remit debts, and that in view of the specificity of the situation it
was highly improbable that he would choose to exercise it in his
case.
- As regards the first limb of the Government’s
objection, the Court does not find it necessary to inquire whether or
not it was possible for the applicant to challenge separately the
order for costs against him. It observes that the requirement for an
individual who has been finally convicted to bear the costs of
proceedings, including the fees and disbursements of his or her
court appointed counsel, flowed directly from the wording of
Article 169 § 2 of the 1974 Code of Criminal Procedure (see
paragraph 18 above and, mutatis mutandis, Immobiliare Saffi
v. Italy [GC], no. 22774/93, § 42 in limine, ECHR
1999 V). The Government have not cited any examples in which a
convicted individual has been able to challenge successfully a court
order requiring him to reimburse such costs (see, mutatis
mutandis, Granger v. the United Kingdom, 28 March 1990, §
40, Series A no. 174). On the contrary, the Supreme Court of
Cassation specifically rejected such a challenge in February 2005
(see paragraph 18 above). Moreover, on 19 February 2010 the
General Meeting of the Criminal Chambers of that court held, in a
binding interpretative decision, that the provision which superseded
Article 169 § 2 of the 1974 Code of Criminal Procedure,
Article 189 § 3 of the 2005 Code of Criminal Procedure,
requires convicted criminal defendants to reimburse the fees of their
court appointed counsel in all cases. All three judges who had
heard the applicant’s case in the Supreme Court of Cassation
voted in favour of that ruling (see paragraph 19 above). It thus
seems that a legal challenge to the order for costs against the
applicant would not have offered a reasonable prospect of success.
- The second limb of the objection does not stand up to
examination either. According to the Court’s and the former
Commission’s established case law, extraordinary remedies
which depend on the discretionary power of a public authority cannot
be regarded as effective (see, among many other authorities, Byloos
v. Belgium, no. 14545/89, Commission decision of 9 October 1990,
Decisions and Reports (DR) 66, p. 238; Kustannus Oy Vapaa
Ajattelija AB and Others v. Finland, no. 20471/92, Commission
decision of 15 April 1996, DR 85 A, p. 29, at p. 42; and
Seliwiak v. Poland, no. 3818/04, §
46, 21 July 2009). The exercise of the President’s power under
Article 98, point 12 of the Constitution to remit uncollectible State
debts (see paragraph 16 above) appears to be of a wholly
discretionary character.
- The
Government’s objection must therefore be dismissed.
- The
Court further considers that this complaint is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
- The
Government submitted that the opportunity for any individual to
benefit from qualified legal advice was characteristic of any State
governed by the rule of law. However, the applicant had not been
denied a fair hearing. The order requiring him to reimburse the costs
of his defence had not prevented him from having a proper defence and
the services of counsel, and had not had a negative impact on the
fairness of the proceedings against him. He could reimburse that sum,
which was not exorbitant, by working, even while still in prison.
There was no indication that he had paid it.
- The
Government further submitted that the new Legal Aid Act, in force
since 1 January 2006, made provision for effective legal aid in all
sorts of proceedings. Under that Act, counsel had to be appointed
under the legal aid scheme in every case where legal representation
was mandatory by law. The competent authority had to appoint such
counsel of its own motion or upon the request of the individual
concerned. The legal aid scheme was administered by the National
Legal Aid Bureau and the bar councils and was funded by the State
budget. That legislative arrangement, which was applicable to all
proceedings commenced after it had come into force, was fully in line
with the requirements of Article 6 §§ 1 and 3 (c) of the
Convention.
- The
applicant argued that there existed a crucial difference between his
case and Croissant (cited above). While Mr Croissant had not
requested free legal assistance on the basis of his indigence, the
applicant had specifically done so. His request had however been
overlooked by the trial court, which had appointed counsel for him on
a different ground. That had in itself amounted to a breach of
Article 6 § 3 (c).
- The
applicant further submitted that the order requiring him to reimburse
the fees of his court appointed counsel had begun to be enforced
immediately, because the trial court had issued a writ of execution
pursuant to it. In view of the express wording of Article 169 §
2 of the 1974 Code of Criminal Procedure and of Article 189 § 3
of the 2005 Code of Criminal Procedure, he would inevitably be forced
to comply with that order. Contrary to what the Government suggested,
he had not been given any opportunity to work in prison, and had in
any event been incapable of doing so because he had fallen ill with
tuberculosis and had even been hospitalised for several months.
Moreover, he had been in a poor financial situation at the time of
his trial and afterwards. He had five children and between 1994 and
2007 had been almost constantly out of work, with a few brief spells
of employment with a street cleaning company, which had paid him very
low wages.
- The
Court observes that the question whether it is compatible with
Article 6 § 3 (c) of the Convention to require an individual
convicted in criminal proceedings to reimburse the fees of his
court appointed counsel first came up, albeit obliquely, in
Luedicke, Belkacem and Koç v. Germany. It
left the issue open, saying that it did not intend to establish
whether and under what conditions the expenses associated with the
provision of free legal assistance under Article 6 § 3 (c) could
be awarded against or left to be borne by the accused after his or
her conviction (see Luedicke, Belkacem and Koç
v. Germany, 28 November 1978, § 44, Series A no. 29).
- Drawing
on that, the former Commission found that such a situation was not
incompatible with Article 6 § 3 (c), unless the accused’s
means were insufficient. It reasoned that the existence of a
qualifying condition in that provision implied that the term “free”
in this context was not incompatible with a mere temporary exemption
from costs, operating only as long as the accused did not have
sufficient means to pay them. The phrase “has not sufficient
means to pay” does not, in the Commission’s view, refer
solely to the moment when the authorities decide whether to provide
free legal assistance, but is relevant also at the time when it is
being decided whether and to what extent the convicted individual has
to pay the costs of the proceedings (see X v. Germany, no.
9365/81, Commission decision of 6 May 1982, DR 28, p. 229, and K.
v. Germany, no. 11626/86, Commission decision of 6 May 1986,
unreported).
- Later,
in Croissant v. Germany the Court noted that under German law
the requirement for a convicted individual to pay the fees and
disbursements of his court-appointed counsel was a normal consequence
of the conviction, and that it was only in the ensuing enforcement
proceedings that his or her financial situation played a role. In the
Court’s view, such a system would not be compatible with
Article 6 if it adversely affected the fairness of the proceedings.
There was, however, no indication that it generally produced such a
result or had done so in Mr Croissant’s case. The appointment
of his defence counsel had been compatible with the requirements of
Article 6 and it was therefore not incompatible with that provision
that he was liable to pay their fees, which were not excessive (see
Croissant, cited above, §§ 35 and 36).
- The
Court left open the question whether, under such a system, it would
be compatible with Article 6 § 3 (c) for the State to continue
to seek full or partial reimbursement of the costs of the accused’s
defence after he or she subsequently establishes that he or she lacks
sufficient means to bear them. It did so because it found that in the
Land where the case originated it was standard practice to grant at
least a partial remission of costs where the individual concerned was
able to establish that he or she could not afford to pay the entire
sum. In that connection, the Court found it admissible that the
burden of proving a lack of sufficient means should be borne by the
person who pleads it (ibid., § 37).
- In
the present case, contrary to what the applicant seems to suggest,
the question of costs did not adversely affect the fairness of the
criminal proceedings against him (see P.W. v. Denmark (dec.),
no. 38986/97, 15 June 1999; Schrieder v. Denmark (dec.), no.
32085/96, 6 April 2000; and Dmitrijevs v. Latvia (dec.), no.
62390/00, 7 November 2002). There is no indication that the
possibility of being ordered to bear the costs of his defence in the
event of his being convicted inhibited the applicant from asking the
trial court to appoint counsel for him. On the contrary, he stated at
the outset of his trial that he could not afford to retain counsel
and that he was illiterate, and the court appointed counsel for him
(contrast Tsonyo Tsonev v. Bulgaria (no. 2),
no. 2376/03, §§ 15, 16 and 39, 14 January 2010). It
is true that the appointment of counsel was not premised on the
applicant’s indigence, but on the fact that he did not have
sufficient command of the Bulgarian language (see paragraph 9 above).
Even so, as correctly pointed out by the Government, the applicant
benefited from a proper defence, irrespective of whether he had
sufficient means during the proceedings (see paragraphs 10 and 12
above).
- However,
the question remains whether it was compatible with Article 6 §
3 (c) for the State to seek reimbursement of the fees paid to counsel
appointed for the applicant after the end of the proceedings.
- On
that point, the Court starts by observing that in cases arising from
individual applications it is not its task to review domestic law in
the abstract, but to examine the manner in which that law has been
applied to the applicant (see, as a recent authority, Taxquet v.
Belgium [GC], no. 926/05, § 83 in
fine, 16 November 2010). In the
case at hand, there is no indication that the authorities have taken
any steps to enforce the court order requiring the applicant to pay
the costs of the criminal proceedings against him, including the fees
of his court appointed counsel (see P.W. v. Denmark,
cited above). Nor is there any indication that the applicant has made
any payments in relation to that matter (contrast Croissant,
cited above §§ 17 and 18). The mere issuing of a writ of
execution cannot be equated with the order’s actual
enforcement. If the authorities try to enforce it, they will be bound
by the provisions of Articles 444 and 446 § 1 of the 2007 Code
of Civil Procedure and Article 213 of the 2005 Code of Tax and Social
Security Procedure, which shield certain assets and classes of income
from execution (see paragraphs 25, 26 and 28 above). The effect of
those provisions is similar to the practice disclosed in Croissant
to grant at least a partial remission of costs where the individual
concerned was able to establish that he or she could not afford to
pay the entire amount (see Croissant, cited above, §§
17 19, 21 and 37, and Pfister v. Germany, no. 19512/92,
Commission decision of 7 September 1993, unreported).
- Furthermore,
although the applicant appears not to have been in formal employment
during the bulk of the period 1994 2007, has five young children
and was sentenced to five years’ imprisonment (see paragraphs 6
and 7 above), he has not produced evidence which gives a full picture
of his overall financial situation (assets, liabilities and income),
at the time when the costs order against him became final or
afterwards. The Court thus lacks an adequate basis on which to
conclude that throughout that time the applicant remained unable to
reimburse the relatively modest fees of his counsel (see paragraphs 10
and 13 above and also, mutatis mutandis, P.W. v.
Denmark, cited above, and contrast, mutatis mutandis,
Pakelli v. Germany, 25 April 1983, § 34, Series A
no. 64). As already mentioned, it is not contrary to the Convention
that the burden of proving a lack of sufficient means should be borne
by the person who pleads it.
- There
has therefore been no violation of Article 6 §§ 1 and 3 (c)
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that he did not have effective remedies in
respect of the alleged breach of Article 6 §§ 1 and 3 (c).
He relied on Article 13 of the Convention, which provides as
follows:
“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.”
- The
Court does not find it necessary to examine whether the applicant’s
complaint is arguable. It already found that a legal challenge to the
order requiring him to reimburse the fees of his court appointed
counsel would not have stood a reasonable prospect of success (see
paragraph 32 above). However, this was so because of the wording of
the applicable law, whereas Article 13 of the Convention does not go
so far as to guarantee a remedy allowing a Contracting State’s
laws as such to be challenged before a national authority on the
ground of being contrary to the Convention (see, as a recent
authority, Petrov v. Bulgaria, no. 15197/02, § 65, 22 May
2008).
- It
follows that this complaint is manifestly ill founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government’s preliminary
objection;
- Declares the complaint concerning the
requirement for the applicant to reimburse the fees of his
court appointed counsel admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 6 §§ 1 and 3 (c) of the Convention.
Done in English, and notified in writing on 17 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
