The ECHR Ruling of July 13, 2021 in the case of Todorov and Others v. Bulgaria (complaint No. 50705/11).
In 2011, the applicants were assisted in preparing the complaint. Subsequently, the complaint was communicated to Bulgaria.
The case considers the issue of an individual reasoned assessment necessary to eliminate deficiencies in the legislation on the procedure for the confiscation of property obtained by criminal means. In the case, there was a violation of article 1 of Protocol No. 1 to the Convention in respect of some applicants and there was no violation of article 1 of Protocol No. 1 to the Convention in respect of others.
THE CIRCUMSTANCES OF THE CASE
The applicants of each of the complaints had their property confiscated on the basis of the 2005 Law on Confiscation of Property Obtained as a Result of Criminal Activity (hereinafter referred to as the 2005 Law), which was called income from alleged criminal activity.
LEGAL ISSUES
Regarding compliance with Article 1 of Protocol No. 1 to the Convention. The confiscation of the applicants' property was an interference with their right guaranteed by article 1 of Protocol No. 1 to the Convention. In this case, the European Court should not have made a final decision on whether the interference fell within the scope of the second paragraph (control over the use of property) or the second sentence of the first paragraph (deprivation of property) of Article 1 of Protocol No. 1 to the Convention. The principles governing the question of validity were essentially the same.
The intervention was based on Bulgarian legislation (2005 Law), which pursued a legitimate aim in the public interest, namely the prevention of illegal acquisition of property in the course of criminal activity and the use of such property. Therefore, the European Court had to determine whether the interference was proportionate.
Considered as a whole, the procedure provided for by the 2005 Law imposed an excessive burden on the applicants. The scope of the 2005 Law was very extensive with regard to the time periods to be considered, as well as the list of crimes for which the punishment could include confiscation of property. Proving the legality of the origin of the income and the circumstances of the case as a whole could be difficult, since the applicants were obliged to restore their financial situation for many years prior to the proceedings, in most cases including economic crises, as well as due to the fact that the percentage of the shadow economy and, consequently, undeclared income was quite high in Bulgaria. At the same time, the 2005 Law operated on the basis of the presumption of a criminal origin of income, which meant that the Bulgarian authorities were not obliged to prove such an origin of income, but could only indicate the absence of legitimate income. In some cases, this led to the implicit assumption, in the absence of evidence and clarification, that the applicants had participated in other criminal activities.
Although none of the shortcomings of the procedure provided for by the 2005 Law could in itself decisively affect the proportionality of the confiscation of property applied to applicants, the European Court had to take into account their cumulative effect. Taken together, these factors could lead to a state of uncertainty and a sense of uncertainty, criticized by the European Court in its Ruling in the Dimitrov v. Bulgaria case (See: The Ruling of the European Court in the Dimitrov v. Bulgaria case Bulgaria) dated March 3, 2015, complaint No. 12655/09.). In other words, they could have made the measures of confiscation of property provided for by the 2005 Law inconsistent with the legitimate purpose of this Law.
In such circumstances, assessing the proportionality of the intervention, the European Court adhered to the position of the Supreme Court of Bulgaria, as set out in the Plenum decision of 2014, and considered it critical to achieve the required balance, according to Article 1 of Protocol No. 1 to the Convention, the establishment of a causal link, direct or indirect, between the property subject to confiscation and criminal activity, when In this case, the connection must be "logically justified" and based on the individual circumstances of each particular case. In this regard, the European Court examined whether the Bulgarian courts, in the context of each specific case, both as a counterweight and as a guarantee of the applicants' rights, had provided any details about the criminal activity as a result of which the proceeds to be confiscated were allegedly obtained, and whether the Bulgarian courts had demonstrated with all justification that the said proceeds could be the result of proven criminal activity. This approach has also been noted in the case law of the European Court of Justice and in the Directive of the Council of the European Union 2014/42/EC "On the freezing and confiscation of instruments of crime and proceeds of crime in the European Union". While such analytical work was being carried out, the European Court usually relied on the assessment of the courts of the State concerned, unless the applicants proved that the assessment was arbitrary or manifestly unfounded.
Depending on the quality of the assessment carried out by the Bulgarian courts in the present case, the European Court found a violation of Article 1 of Protocol No. 1 to the Convention in respect of some applicants (Todorov, Gaich, Barov, Zhekov) and no violation of Article 1 of Protocol No. 1 to the Convention in respect of others (Rusev, Katsarov, Dimitrov).
RESOLUTION
In the case, there was a violation of Article 1 of Protocol No. 1 to the Convention in respect of some applicants and there was no violation of article 1 of Protocol No. 1 to the Convention in respect of others (adopted unanimously).
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded sums in the amount of 2,000 to 4,000 euros to each of the applicants in the complaints of Todorov, Gaich and Barov as compensation for moral damage, the claims for compensation for material damage were rejected.