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KUYUMDZHIYAN v. BULGARIA - 77147/01 [2007] ECHR 410 (4 May 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/410.html
Cite as:
[2007] ECHR 410
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FIFTH
SECTION
CASE OF KUYUMDZHIYAN v. BULGARIA
(Application
no. 77147/01)
JUDGMENT
STRASBOURG
24
May 2007
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 Kuyumdzhiyan v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mr R.
Maruste,
Mr J. Borrego Borrego,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 2 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 77147/01) 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 Mr Rafi Hrant Kuyumdzhiyan, a Bulgarian national born in 1944 and
living in Plovdiv (“the applicant”), on 23 October 2001.
The
applicant was represented by Mr M. Ekimdzhiev and Ms S. Stefanova,
lawyers practising in Plovdiv. The Bulgarian Government (“the
Government”) were represented by their Agents, Ms M. Pasheva
and Ms M. Kotseva, of the Ministry of Justice.
On
19 September 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
In
1948 and 1950 a flat owned by an ancestor of the applicant was
nationalised. In 1969 the State sold that flat to Mr and Mrs B. It
seems that Mr B. died on an unspecified date prior to 1987.
On
11 May 1992 the applicant brought an action against Mrs B. and the
municipality of Plovdiv under section 7 of the Restitution of
Ownership of Nationalised Real Property Act of 1992 (“the
Restitution Act of 1992”), seeking a declaration that the sale
of the flat had been null and void. He stated that the sale had been
made in breach of the law and that Mr B.,
who had been registered as an “anti-fascist and anti-capitalist
veteran” – a title which at the relevant time carried a
number of privileges guaranteed by law – had abused his
position to obtain the flat.
At
the first hearing, held on 4 August 1992, the Plovdiv District Court
admitted written evidence and gave leave to the parties to adduce
further evidence.
At
the next hearing, held on 26 October 1992, the court rejected the
applicant's request to supplement his statement of claim, admitted
written evidence, heard the parties and reserved judgment.
On
5 November 1992 the court, sitting in private, observed that the
claim as initially worded by the applicant was inconsistent and
instructed him to clarify his request for relief. It scheduled a new
hearing for 4 December 1992. On 30 November 1992 the
applicant declared that he claimed the restitution of the apartment
under section 7 of the Restitution Act of 1992.
The
hearing scheduled for 4 December 1992 was adjourned as the
municipality of Plovdiv had not been properly summoned.
The
Plovdiv District Court held hearings on 20 January, 13 April and 28
December 1993, and 12 April 1994. At the hearing on 13 April 1993 it
granted the applicant's request to constitute the heirs of Mr B. as
additional defendants. One hearing listed for 21 September 1993 was
adjourned because the newly constituted defendants had not received
copies of the statement of claim. At the hearings of 28 December 1993
and 12 April 1994 three of the newly constituted defendants, two of
whom were residing in Russia, were represented by counsel.
In
a judgment of 8 June 1994 the Plovdiv District Court ordered that the
part of the flat which had been acquired by Mrs B. be restituted to
the applicant and dismissed the remainder of his claim.
On
13 July 1994 the applicant appealed. So did the defendants.
At
a hearing held on 3 October 1994 the Plovdiv Regional Court admitted
written evidence and reserved judgment.
In
a judgment of 23 February 1995 the Plovdiv Regional Court quashed the
lower court's judgment and dismissed the entirety of the applicant's
claim.
On
11 April 1995 the applicant lodged a petition for review. The Plovdiv
District Court tried to serve a copy of the petition on the counsel
of the two defendants who were residing in Russia, but she refused to
accept the service of process, stating that her power of attorney did
not extend to the review proceedings. On 4 January 1996 the Plovdiv
District Court agreed that the representative's power of attorney was
only valid until the end of the second instance proceedings and
accordingly ordered that the defendants be served personally in
Russia. In view of this, on 12 April 1996 the Bulgarian Ministry of
Justice sent a letter rogatory to the Russian authorities, asking
them to serve a copy of the petition on the two defendants. It seems
that the letter rogatory was executed in respect of one of the
defendants on an unspecified date prior to November 1998. However, it
remained unexecuted in respect of the other defendant. Between 1996
and 1999 the Bulgarian Ministry of Justice sent nine reminders to the
Russian authorities and twice asked the Bulgarian Ministry of Foreign
Affairs for assistance. However, these efforts were to no avail.
Accordingly, the petition for review remained with the Plovdiv
District Court and was not sent to the Supreme Court of Cassation for
examination.
In
the meantime, in 1997, the applicant found out that the two
defendants residing in Russia were on a visit to Bulgaria and
apprised the Plovdiv District Court about that. On 30 September 1997
the court ordered that a copy of the petition for review be served on
them in Bulgaria. However, the process was returned to the court with
a note that the defendants could not be found at the address
specified.
On
23 February 1998 the applicant complained about the protraction of
the proceedings to the Ministry of Justice. In a letter of 7 March
1998 the Ministry informed the applicant that the letter rogatory was
unfortunately still not executed and that, regrettably, the Russian
authorities used to procrastinate in the execution of letters
rogatory. On 16 April 1999 the applicant complained to the
chairperson of the Plovdiv District Court and asked him to apply
Article 44 of the Code of Civil Procedure of 1952 (“the CCP”)
(see paragraph 26 below).
Despite
the lack of service, on an unspecified date in 2000 the Plovdiv
District Court sent the petition for review to the Supreme Court of
Cassation.
The
first hearing before the Supreme Court of Cassation, listed for
8 November 2000, was adjourned due to the defective summoning of
the two defendants residing in Russia.
On
28 February 2001 the Supreme Court of Cassation held a hearing,
despite the absence of the two defendants residing in Russia. It
briefly noted that all defendants, including those residing in
Russia, had been properly summoned.
In
a final judgment of 31 May 2001 the Supreme Court of Cassation
dismissed the applicant's petition for review.
II. RELEVANT DOMESTIC LAW
A. Review proceedings before the former Supreme Court
and the Supreme Court of Cassation
Until
31 March 1998 the judgments of the regional courts given as a
second instance court were “final” and could be set
aside only in accordance with Article 225 et seq. of the CCP.
Articles
225-30 of the CCP, repealed with effect from 1 April 1998, governed
review proceedings before the former Supreme Court. Prior to 1990
these texts stipulated that review proceedings were initiated on the
proposal of the Chief Prosecutor or the chairperson of the Supreme
Court, which was not, as a rule, limited by time, and was examined in
private by a section of the Supreme Court or its Plenary.
However,
these texts were fully reshuffled with effect from 21 April 1990 and
henceforth provided that review proceedings were initiated upon the
petition of a party to the case (Article 225 § 1), lodged within
two months after the entry into force of the lower court's judgment
(Article 226 § 1), or the proposal of the Chief Prosecutor
(Article 225 § 2), lodged within one year after the judgment's
entry into force (Article 226 § 1). The petition was examined by
the Supreme Court at a public hearing in the presence of the parties
to the case (Article 227 § 2). The Supreme Court had the power
to set the judgment aside wholly or in part, whenever (i) it was
“contrary to the law”, (ii) “substantial breaches
of procedural law [had] occurred during the proceedings or in
connection with the delivery of the judgment”, or (iii) it
was “ill-founded” (Article 225 § 3 in conjunction
with Article 207). If the Supreme Court set the lower court's
judgment aside, it could either decide the case itself, or
exceptionally remit it to the lower court for re examination
(Article 229 § 2).
B. Validity of a representative's power of attorney
By
Article 22 § 4 of the CCP, unless stipulated otherwise, the
power of attorney of the representative of a party to a case is valid
for all levels of court until the proceedings come to an end.
C. Service of process on a party residing outside
Bulgaria or leaving the country during the pendency of the
proceedings
By
Article 44 § 1 of the CCP, if a party resides outside Bulgaria
or goes out of the country for more than thirty days, and does not
have a representative residing in the country, it has to indicate an
address in Bulgaria for the service of process. If it fails to do so,
all documents which need to be served on it are put in the case file
and are considered as duly served. The parties must be warned about
this upon the first communication from the court (Article 44 §
2). The obligation stemming from Article 44 § 1 of the CCP
continues until the case is examined by the Supreme Court in review
proceedings (реш. № 380 от
26 ноември 1999 г. по
гр.д. № 246/1999 г., ВКС,
петчленен
състав), but does not
apply in the fresh proceedings before the first instance court,
if the case is remitted (реш. № 2441
от 29 август 1979 г.
по гр.д. № 1494/1979 г.,
ВС, І г.о.).
D. Complaint about delays
Article
217a of the CCP, adopted in July 1999, provides:
“1. Each party may lodge a complaint
about delays at every stage of the case, including after oral
argument, when the examination of the case, the delivery of judgment
or the transmitting of an appeal against a judgment is unduly
delayed.
2. The complaint about delays shall be lodged
directly with the higher court, no copies shall be served on the
other party, and no State fee shall be due. The lodging of a
complaint about delays shall not be limited by time.
3. The chairperson of the court with
which the complaint has been lodged shall request the case file and
shall immediately examine the complaint in private. His instructions
as to the acts to be performed by the court shall be mandatory. His
order shall not be subject to appeal and shall be sent immediately
together with the case file to the court against which the complaint
has been lodged.
4. In case he determines that there has been
[undue delay], the chairperson of the higher court may make a
proposal to the disciplinary panel of the Supreme Judicial Council
for the taking of disciplinary action.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
The
Government submitted that the proceedings on the merits had ended on
23 February 1995, when the Plovdiv Regional Court had given its final
judgment. As the application had been lodged on 23 October 2001, it
was out of time.
The
applicant replied that review proceedings were part of the normal
three instance examination of the case and that the proceedings
had accordingly come to an end on 31 May 2001, the date of the
Supreme Court of Cassation's judgment.
The
Court notes that, despite the terminological similarity with such
proceedings in Russia and Ukraine, review proceedings before the
former Supreme Court and the Supreme Court of Cassation in Bulgaria
were not extraordinary proceedings, but part of the normal
three instance proceedings (see paragraphs 22 24 above and
Yanakiev v. Bulgaria, no. 40476/98, § 65, 10 August
2006, with further references). It therefore considers that the
proceedings at issue in the present case came to an end on 31 May
2001, when the Supreme Court of Cassation gave its final judgment
(see paragraph 21 above). The application was lodged 23 October 2001,
less than six months after that. The Government's objection must thus
be rejected.
The
Court further considers that this complaint is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention, nor inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
Although
the proceedings started on 11 May 1992, the period to be taken into
account began only on 7 September 1992, when the Convention entered
into force in respect of Bulgaria. Nevertheless, in assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at that time. The proceedings
ended on 31 May 2001, when the Supreme Court of Cassation gave
its final judgment (see paragraphs 21 24 and 31 above). The
period to be considered thus lasted eight years and almost nine
months for three levels of court.
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
The
parties presented arguments as to the way in which the various
criteria employed by the Court in this context should apply in the
present case.
The
Court notes at the outset that most of the delays which took place in
the instant case cannot be explained by its legal or factual
complexity.
The
applicant was responsible for a certain amount of delay in the
proceedings before the first instance court, due to the
apparently imprecise wording of his original statement of claim (see
paragraph 8 above).
The
authorities were responsible for the adjournment of two hearings (see
paragraphs 9 and 10 above), which resulted in approximately four
months of delay. There was also a gap of almost six years between the
time when the applicant lodged his petition for review (11 April
1995) and the time when the Supreme Court of Cassation held a hearing
(28 February 2001). This delay was exclusively due to problems with
the serving of copies of the petition for review and the summoning of
two defendants residing in Russia. It is true that the Bulgarian
authorities, who did not remain idle and several times urged the
Russian authorities to execute the letter rogatory (see paragraph 15
above), cannot be held accountable for the latter's failure to do so
(see Włoch v. Poland, no. 27785/95, §§ 149 51,
ECHR 2000 XI). However, the Court cannot overlook the facts that
because of this problem the proceedings grinded to a halt for almost
six years (see, mutatis mutandis, Ikanga v. France, no.
32675/96, § 20 in fine, 2 August 2000) and that the
Bulgarian courts were not powerless in the face of this apparent
deadlock. These courts could have – and, indeed, apparently
eventually did – applied Article 44 of the CCP and deemed that
the defendants who were no longer legally represented and had left
Bulgaria without specifying a domestic address for the service of
process were duly served by the putting of the process in the case
file (see paragraphs 17, 18, 20 and 26 above). The Court sees no
reason why this was not done earlier. In particular, there is no
indication that the application of Article 44 of the CCP was deferred
because of the failure of the domestic courts to warn, as required by
paragraph 2 of that provision, the defendants of the consequences of
their not having supplied an address for the service of process in
Bulgaria. The Court accordingly concludes that the resulting delay
was, at least in part, attributable to the authorities.
In
the light of the criteria laid down in its case-law and having regard
in particular to the delays attributable to the authorities, the
Court considers that the length of the proceedings failed to satisfy
the reasonable-time requirement. There has therefore been a violation
of Article 6 § 1 of the Convention.
II. COMPLAINT
UNDER ARTICLE 1 OF PROTOCOL No. 1
The
applicant complained under Article 1 of Protocol No. 1 that by reason
of the excessive length of the proceedings his alleged title to the
disputed flat had become more precarious. Article 1 of Protocol No. 1
provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
The
Court finds that this complaint is closely linked to the one examined
above and must likewise be declared admissible.
However,
the Court notes that this complaint relates to the same facts as the
one based on Article 6 § 1. Having regard to its conclusion in
paragraph 39 above, it does not consider that it must deal with it
(see Zanghì v. Italy, judgment of 19 February 1991,
Series A no. 194 C, p. 47, § 23; Kroenitz v. Poland,
no. 77746/01, § 37, 25 February 2003; and Krastanov
v. Bulgaria, no. 50222/99, § 82, 30 September 2004).
III. COMPLAINT
UNDER ARTICLE 13 OF THE CONVENTION
The
applicant complained under Article 13 of the Convention that he did
not have effective remedies against the unreasonable length of the
proceedings. Article 13 provides:
“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.”
A. Admissibility
The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
The
applicant submitted that the only remedy which had at his disposal
was the “complaint about delays” under Article 217a of
the CCP. However, this remedy was not effective, as it could neither
really expedite the proceedings, nor provide compensation. Moreover,
it had become available only in July 1999, more than seven years
after the commencement of the proceedings in issue.
The
Government submitted that the applicant could have filed a tort
action against the State, grounding his claim on the inactivity of
the administration.
Having
regard to its conclusion in paragraph 39 above, the Court is of the
view that the complaint under Article 6 § 1 is arguable. It
follows that Article 13 is applicable. It notes that in several cases
(see Djangozov v. Bulgaria, no. 45950/99, § 51, 8
July 2004, Rachevi v. Bulgaria, no. 47877/99, § 65,
23 September 2004; and Dimitrov v. Bulgaria, no. 47829/99,
§ 77, 23 September 2004) it found that until July 1999 –
more than seven years after the commencement of the proceedings at
issue – Bulgarian law did not provide any remedies against the
excessive length of civil proceedings. The Court does not consider it
necessary to examine whether a “complaint about delays”
under Article 217a of the CCP, enacted in July 1999 (see paragraph 27
above), is an effective remedy in principle. Even assuming that it is
one – which is quite doubtful in the particular circumstances
of the present case –, any decision given under this provision
that might have speeded up the examination of the case could not have
made up for the delays which had occurred prior to its introduction
and had already had a significant impact on the overall duration of
the proceedings (see Djangozov, § 52; Rachevi, §
67; and Dimitrov, § 78, all cited above). The Court also
notes that under Bulgarian law there exists no possibility to obtain
compensation for excessively lengthy civil proceedings (see
Djangozov, § 58; Rachevi, § 103; and
Dimitrov, § 82, all cited above). The Government's
averment that the applicant could have filed a tort action and be
awarded such compensation was not supported by any example of a
litigant having successfully mounted such proceedings (see Rachevi,
cited above, § 64).
There
has therefore been a violation of Article 13 of the Convention.
IV APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“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.”
A. Damage
The
applicant claimed 7,000 euros (EUR) in respect of non pecuniary
damage.
The
Government did not express an opinion on the matter.
The
Court considers that the applicant must have sustained non pecuniary
damage on account of the violations found in the present case. Ruling
on an equitable basis, it awards award him EUR 2,000, plus any tax
that may be chargeable.
B. Costs and expenses
The
applicant sought the reimbursement of EUR 1,614.80 for the costs and
expenses incurred before the Court.
The
Government did not express an opinion on the matter.
According
to the Court's case law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 600, plus any tax
that may be chargeable.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that it is not necessary to examine
separately the complaint under Article 1 of Protocol No. 1;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,600 (two thousand six
hundred euros) in respect of non pecuniary damage and costs and
expenses, plus any tax that may be chargeable;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
