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26 14.01.2010   Press release issued by the Registrar   Chamber judgment[1]   Tsonyo Tsonev v. Bulgaria (No. 2) (application no. 2376/03)   CONVICTION FOR BREACHING PUBLIC ORDER IN BOTH ADMINISTRATIVE AND CRIMINAL PROCEEDINGS BREACHED CONVENTION   Unanimously:   Violation of Article 4 to Protocol No 7 (right not to be tried or punished twice) of the European Convention on Human Rights Violation of Article 6 §§ 1 and 3 (c) (right to fair trial)       Principal facts   The applicant, Mr Tsonyo Tsonev, is a Bulgarian national who was born in 1977 and lives in Gabrovo.   On the evening of 11 November 1999, the applicant and a friend got into a violent fight with a third person to whose apartment they had both gone. The police, having arrived upon a call from the neighbours, arrested the applicant.   On the basis of the police report drawn in connection with that incident, a week later, the mayor of Gabrovo, applying a municipal by-law concerning public order, fined Mr Tsonev for having broken into the home of a person and beaten him up. That mayor’s decision specified that it could be appealed in court within seven days of being served on the offender. As Mr Tsonev’s address was unknown, it was not served on him and thus became final.   Some time later, in relation to the same event, the prosecution charged Mr Tsonev with inflicting bodily harm and breaking into the home of another. The court found him guilty of inflicting bodily harm only and sentenced him to eighteen months imprisonment. On appeal, a new counsel was appointed to him by the court as his old one failed to appear at the hearing. Mr Tsonev agreed to be represented by that new counsel, stating that she was sufficiently acquainted with his case. At the cassation appeal, despite Mr Tsonev’s specific request the Supreme Court refused to appoint him a counsel without giving specific reasons for its refusal.   Complaints, procedure and composition of the Court   Relying on Article 6, Mr Tsonev complained that he was unable to defend himself effectively due to the late appointment of his counsel and the Supreme Court’s refusal to appoint him counsel for the hearing before it. He also complained under that Article that the domestic courts had assessed the evidence and established the facts erroneously. Relying on Article 4 of Protocol No 7, Mr Tsonev complained that he had been tried twice for the same offence.   The application was lodged with the European Court of Human Rights on 17 December 2002.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President, Renate Jaeger (Germany), Karel Jungwiert (Czech Republic), Rait Maruste (Estonia), Mark Villiger (Liechtenstein), Mirjana Lazarova Trajkovska (“The former Yugoslav Republic of Macedonia”), Zdravka Kalaydjieva (Bulgaria), judges, and Claudia Westerdiek, Section Registrar.   Decision of the Court   Lack of fair trial   Late appointment of counsel   The Court observed that the applicant had explicitly stated that the new counsel was acquainted with the case and his arguments and had agreed to be defended by her. Also, neither the applicant nor his lawyer had sought an adjournment in order to prepare the defence. In addition, in her closing speech, the applicant’s counsel had raised a number of arguments in his defence. Accordingly, there had been no violation of Article 6 on this count.   Refusal to appoint a counsel   The Court recalled that the right to free legal assistance formed an element of fair trial in criminal proceedings on condition that the persons concerned could not afford to pay for a lawyer and that the interests of justice required such legal assistance. The applicant had not had the money to hire a lawyer and, where the accused risked deprivation of liberty, the interest of justice required in principle legal assistance. Accordingly, there had been a violation of Article 6 §§ 1 and 3 (c).   Double trial and punishment   The applicant had been fined in proceedings regarded under domestic law as “administrative” rather than “criminal”. However, the offence for which Mr Tsonev had been fined fell within the sphere protected by criminal law, given that it had the characteristic features attaching to criminal offences, as it aimed to punish and deter socially unacceptable conduct.   The Court noted that the same facts – breaking into someone’s apartment and beating a person up – had been at the centre both of the fine imposed by the mayor and the charges brought by the prosecution. As it had not been appealed, the fine had become final. The domestic courts had not terminated the subsequent criminal proceedings, given that the Supreme Court had consistently ruled that criminal proceedings could be opened against persons already punished in administrative proceedings. Accordingly, the Court found that Mr Tsonev had been convicted – separately in administrative and criminal proceedings – for the same conduct, the same facts and the same offence, in violation of Article 4 of Protocol No 7.   Application of Article 41 (just satisfaction)   The Court awarded Mr Tsonev 3,000 euros (EUR) in respect of non-pecuniary damage.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website (http://www.echr.coe.int).     Press contacts Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17‑member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.