CYIL vol. 15 (2024)

JIŘÍ MULÁK released. Nevertheless, the applicant objected that he could not appeal against his conviction in view of the wording of Article 2 of Protocol No. 7 to the ECHR. In response to the ECtHR application, the Government argued that the offence for which he had been convicted was of a less serious nature (i.e., an administrative offence), i.e., it would constitute an exception to Article 2 of Protocol No. 7 to the ECHR. The applicant responded to the Government’s argument by arguing that, although it was an administrative offence under Bulgarian law, it was still a criminal offence and a criminal sanction within the meaning of Article 2 of Protocol No. 7 to the ECHR. The ECtHR examined the case and ruled in the present case that there had been a violation of this provision. In this context, it should be noted that in May 2011 the Constitutional Court declared Article 7 of the 1963 Decree unconstitutional and in November 2011 this provision was amended to comply with the ECHR and the case-law of the ECtHR. It should be noted that the factual situation is very specific to the legal circumstances of the case and the Bulgarian legal situation. The national legislation did not allow for the possibility of remedies for acts punishable under the Decree on Administrative Punishment, as the Decree applied to certain minor offences. However, even this argumentation did not hold water in the eyes of the ECtHR, since these offences and the penalties imposed for them were, by their material nature, criminal offences and the penalties were in the nature of criminal sanctions. 39 In case of Bayrakov v. Bulgaria , 40 the subject-matter of the review was a complaint about the impossibility to appeal against a first instance judgment imposing a sentence of short-term deprivation of liberty for sports hooliganism. The applicant, together with other football fans, travelled to a football match where, on arrival, they began to assault supporters of a rival club and were all arrested by the local police. The Plovdiv District Court found the applicant guilty of sports hooliganism and imposed the following penalties: a fine of € 153, plus 13 days’ detention in a police facility and a one-year ban on attending sporting events. The judgment of the Court of First Instance became immediately final, and its execution was immediately commenced. The applicant brought only an application for a retrial under Bulgarian law. The Supreme Court refused to initiate the retrial procedure, as sports hooliganism is not subject to retrial under the Bulgarian Criminal Procedure Code. On the ECtHR’s referral, the Government of Bulgaria argued that the applicant had not exhausted all available domestic remedies. From the outset, the ECtHR examined whether the general nature of the administrative offence, which is defined as petty disorderly conduct. The penalties which may be imposed for such conduct are defined by the Ordinance. That ordinance stated that a person could be deprived of his personal liberty for such conduct. In the ECtHR’s view, then, such a factual situation essentially concerns the examination of a criminal charge within the meaning of Article 6(1) ECHR, which also means that Article 2 of Protocol No. 7 to the ECHR may apply. Under Bulgarian domestic law in force before 2011, there was no possibility to appeal against judgments of district courts imposing sanctions under the Decree. The present case therefore concerns the examination of a criminal charge against the applicant, which implies the applicability of Article 2 of Protocol No. 7 to the ECHR. On judicial review, the ECtHR concluded that the offence in the present case was of a “minor

39 ECtHR decision in Zhelyazkov v. Bulgaria , of 9 October 2012, application no. 11332/04, §§ 40–45. 40 ECtHR decision in Bayrakov v. Bulgaria , of 14 May 2020, application no. 63397/14.

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