CASE OF KARCHEVA AND SHTARBOVA v. BULGARIA
(Application no. 60939/00)
28 September 2006
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 Karcheva and Shtarbova v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 4 September 2006,
Delivers the following judgment, which was adopted on that date:
THE CIRCUMSTANCES OF THE CASE
A. The first hearing of the case
B. The second hearing of the case
1. Proceedings before the Supreme Court
2. Proceedings before the Plovdiv District Court
3. Proceedings before the Supreme Court of Cassation
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government further submitted that there were no unreasonable delays attributable to the authorities and that the courts had processed the case expeditiously. They argued, however, that the applicants and Mr S. had contributed significantly to the delays in the proceedings, both by failing to attend court hearings and by missing appointments with medical specialists. In particular, the Government noted Mr S.'s prolonged failure to pay the required fees for performing the examinations he had requested before the Supreme Court.
Finally, the Government noted the approach of the domestic courts to impose additional fees on the parties to the proceedings when they considered that they were unreasonably protracting them, as was undertaken by the Plovdiv District Court.
They challenged the assertion of the Government that they had shown interest in the completion of the proceedings only after the divorce proceedings had ended. To the contrary, the applicants argued that they had always acted diligently and with the aim of attaining an expedient completion of the said proceedings and had petitioned the courts on more than one occasion to dismiss the action of Mr S.
In addition, they argued that the authorities had contributed to the length of the proceedings as a result of the adjournments of hearings due to defective summons, the failure of the Supreme Court to sanction Mr S. for his failure to timely deposit the required fees for the DNA test, the wrong appointment of a DNA expert by the Plovdiv District Court and the overall lack of diligence in scheduling and conducting hearings by the courts.
In conclusion, the applicants stressed the importance of the proceedings for them and claimed that the authorities had failed to provide the required diligence in processing the case expeditiously.
A. Period to be taken into consideration
The second hearing of the case by the Supreme Court and, subsequently, the Supreme Court of Cassation which replaced it, took much longer and was completed within a little over four years in spite of the fact that, in effect, it involved only one level of jurisdiction (see paragraphs 13 and 35 above). The Court recognises that part of the delay over the given period was caused by Mr S. who did not attend a hearing (see paragraph 17 above), missed a medical appointment (see paragraph 18 above) and failed to timely deposit the fees required for the DNA test (see paragraphs 16 and 18 above). However, it considers that this fails to completely explain and excuse the almost complete inactivity in the proceedings between 20 March 1996 and 13 February 1998 (see paragraphs 15-20 above). Moreover, Mr S.'s actions do not release the domestic courts of their responsibility to take the necessary actions and to diligently and expeditiously process paternity cases by, for example, cancelling the medical tests whose performance Mr S. was evidently hampering and proceeding to hear the case as it stood.
The Court further recognises that a delay was caused by the failure of two court-appointed experts to attend hearings (see paragraphs 23, 24 and 27 above), but notes the domestic court's failure to sanction the conduct of the said experts and to provide for their regular attendance at hearings.
Finally, the Court notes that there were delays directly attributable to the authorities as a result of the adjournments of several hearings due to the defective summoning of various parties and experts and as a result of the erroneous appointment of a DNA specialist by the Plovdiv District Court, irrespective of the fact that some of the parties also failed to attend hearings over the same period (see paragraphs 12, 21-26, 27, 32 and 33 above).
There has accordingly been a breach of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“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.”
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
They relied on Article 8 of the Convention, which provides, as relevant:
“1. Everyone has the right to respect for his private and family life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
The second applicant, meanwhile, claimed BGN 6,000 (approximately EUR 3,076) as compensation for the non pecuniary damage arising out of the excessive length of the paternity proceedings. She noted that she was a child at the time and, in so far as the case related to her civil status and directly reflected on her relationship with her father, the domestic courts had failed to show the special diligence in processing such cases.
Each of the applicants also claimed BGN 3,000 (approximately EUR 1,538) as compensation for the non pecuniary damage arising out of the interference with their right to respect of their family life resulting from the excessive length of the paternity proceedings.
Lastly, the applicants each claimed BGN 2,000 (approximately EUR 1,025) as compensation for the non pecuniary damage arising out of the lack of effective remedies to speed up the paternity proceedings.
In total, therefore, the applicants claimed BGN 20,000 (approximately EUR 10,256) as compensation for the non pecuniary damage.
Accordingly, taking into account the circumstances of the case, and making its assessment on an equitable basis, the Court awards the first applicant the sum of EUR 2,400 and the second applicant EUR 2,800 as compensation for the non pecuniary damage arising out of the excessive length of the proceedings.
B. Costs and expenses
Having regard to all relevant factors, the Court considers it reasonable to award the sum of EUR 1,200 covering costs and expenses for the proceedings before the Court, plus any tax that may be chargeable on that amount.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay to the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable on the date of settlement:
(i) in respect of non-pecuniary damage – EUR 2,400 (two thousand four hundred euros) to the first applicant and EUR 2,800 (two thousand eight hundred euros) to the second applicant;
(ii) EUR 1,200 (one thousand two hundred euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 28 September 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Westerdiek Peer Lorenzen