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STANKOV v. BULGARIA - 68490/01 [2007] ECHR 582 (12 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/582.html
Cite as:
[2007] ECHR 582,
(2009) 49 EHRR 7
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FIFTH
SECTION
CASE OF
STANKOV v. BULGARIA
(Application
no. 68490/01)
JUDGMENT
STRASBOURG
12
July 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 Stankov 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,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 19 June 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 68490/01) 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 a Bulgarian national, Mr Parvan Slavchev
Stankov (“the applicant”), on 17 January 2001.
The
applicant, who had been granted legal aid, was represented by Mr S.
Stavrev, a lawyer practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs M. Kotzeva,
of the Ministry of Justice.
The
applicant alleged, in particular, that in the civil proceedings for
damages under the State Responsibility for Damage Act the courts had
awarded an insufficient sum which, moreover, had been rendered
meaningless as he had been ordered to pay excessive court fees.
On
4 February 2004 the Court decided to give notice of the application
to the respondent Government and invited the parties to submit
observations on the admissibility and merits of the application,
putting a question under Article 5 § 5 of the Convention. On 29
September 2005 the Court invited the parties to submit observations
on the case in the light of Article 6 § 1 of the Convention.
Under the provisions of Article 29 § 3 of the Convention, it
decided on 4 December 2006 to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1952 and lives in Sofia.
A. The applicant's detention
On
15 September 1994 the applicant, who had several convictions and had
served a number of prison terms, was charged with the theft of
construction material from a warehouse. It was alleged that he had
been one of the members of a group that had committed thefts.
The
applicant did not appear when summoned for questioning and on 26 July
1995 he was arrested and remanded in custody, by order of an
investigator or a prosecutor. He remained in detention throughout the
investigation proceedings and the trial.
On
10 March 1997 the Sofia City Court acquitted the applicant. He was
released on 17 March 1997.
Upon
the prosecutor's appeal, the acquittal was upheld by the Supreme
Court of Cassation on 11 December 1997. The Supreme Court of
Cassation found, inter alia, that at the outset there had been
clearly insufficient proof of the applicant's involvement in the
thefts. In particular, a police officer had testified that the only
reason for suspecting the applicant had been the presence of his name
on an internal police list of nicknames as the person behind the
nickname “Kolio Transki”.
B. The action for damages
On
an unspecified date in 1998 the applicant brought an action against
the Chief Public Prosecutor's Office, seeking damages in respect of
his pre-trial detention. He relied on section 2 (1) and (2) of the
State Responsibility for Damage Act (see paragraphs 22-25 below).
The
applicant sought non-pecuniary damages for the suffering caused by
his pre-trial detention, which had lasted one year, seven months and
twenty-one days. In his initial claim he sought 11,000,000 “old”
Bulgarian levs (“BGL”). In the course of the proceedings
he increased the claim to BGL 47,000,000 (the equivalent of
approximately EUR 23,600), including interest, which in his view was
to be calculated as from 26 July 1995, the date of his arrest.
The
Sofia City Court delivered its judgment on 9 February 1999. It held
that the State was liable to pay all damage suffered by the applicant
as a result of his “unlawful pre-trial detention” and the
“unlawful bringing of charges” against him.
The
court stated, inter alia:
“[The Chief Prosecutor's Office] has not exercised
the necessary supervision over the Sofia City prosecutors and the
investigation authorities which, during a period of [more than two
years], mounted an unjustified criminal prosecution against [the
applicant] on charges of theft ...They remanded him in custody,
imposing the harshest measure of judicial control, which resulted in
[the applicant] spending nineteen months and fifteen [sic] days in
detention...[The applicant] has undoubtedly suffered non-pecuniary
damage... ”
As
to the amount, the court considered that the length of the detention
should be taken into consideration and rejected as unproven the
applicant's contention that his health had deteriorated as a
consequence of his detention. Deciding on an equitable basis, the
court awarded to the applicant BGL 2,000,000 in non-pecuniary damages
(the equivalent of approximately EUR 1,050) plus interest from the
date on which the applicant had been acquitted with final effect, 11
December 1997. The court dismissed the remainder of the applicant's
claim for damages.
The
court further applied section 10 § 2 of the State Responsibility
for Damage Act (see paragraphs 20 and 21 below) and ordered the
applicant to pay BGL 1,800,000 (the equivalent of approximately EUR
940) in court fees. That amount represented 4% of the dismissed part
of the applicant's claims.
The
applicant appealed to the Sofia Appellate Court. He averred, inter
alia, that the sum awarded in damages was too low and that it was
unlawful to order him to pay court fees in an amount almost equal to
the compensation award.
On
13 December 1999 the Sofia Appellate Court dismissed the appeal. As
regards the court fees, it stated that section 10 § 2 of the
State Responsibility for Damage Act was unambiguous and required the
payment of court fees proportionately to the dismissed part of the
claim. In the applicant's case, he had indicated an excessive amount
in his claim and had thus himself brought about the situation
complained of.
The
applicant submitted a cassation appeal to the Supreme Court of
Cassation which was dismissed by judgment of 16 August 2000. As
regards the costs, the Supreme Court of Cassation reiterated the
position taken by the Sofia Appellate Court. It stated that although
no initial payment of court fees was required when bringing
proceedings under the State Responsibility for Damage Act, in
accordance with its section 10 § 2 the plaintiff was liable for
fees in an amount proportionate to the dismissed part of the claim.
By setting his claims at an excessive level, the applicant himself
had caused his liability for a substantial amount in court fees.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Court fees in proceedings under the State
Responsibility for Damage Act
In
civil proceedings in Bulgaria, the general rule is that court fees
are payable by the plaintiff in advance, upon the submission of the
claim (Article 55 of the Code of Civil Procedure and sections 1-4 of
the State Fees Act). A court fee at the flat rate of 4% is payable in
respect of pecuniary claims (Fees Schedule 1 to the State Fees Act).
Where the plaintiff succeeds fully or partly, the defendant is
ordered to pay him his costs, including court fees, proportionately
to the successful part of the claim.
By
section 10 § 2 of the State Responsibility for Damage Act, in
proceedings under the Act, no court fees or costs are payable by the
plaintiff upon the submission of the claim. However, in circumstances
where the claim is eventually wholly or partly dismissed, the court
is to order the plaintiff to pay “the court fees and costs
due”. The courts have interpreted the above provision as
meaning that the plaintiff should pay court fees calculated as a pro
rata percentage of the dismissed part of his claims. Article 63 §
1(b) of the Code of Civil Procedure provides for waiver of the fees
in cases of indigence but concerns fees due upon the submission of
the claim (argument from Supreme Court judgment no. 707 of 30.10.1995
in case no. 549/95).
As
a result of section 10 § 2, where a court holds that a claim
against the State is well-founded but excessive in quantum, it orders
the State body concerned to pay damages to the plaintiff and at the
same time orders the plaintiff to pay court fees to the State budget.
Where the plaintiff indicated too high an amount in the claim form,
the court fees may exceed the sum awarded in damages, the overall
financial award being in favour of the State despite the finding that
the plaintiff suffered damage which called for compensation under the
Act (see, for example, the following judgments of the Supreme Court
of Cassation: judgment no. 1095 of 25.07.2000 in case no. 139/2000
and judgment no. 805/05 of 1.08.2005 in case no. 56/2004). There is
no provision for judicial discretion and considerations of equity
play no role in fixing the court fees' amount. The court fees are
fixed with reference to the amount indicated in the claim form, even
if in the course of the proceedings the plaintiff makes a binding
declaration waiving part of the claim (Interpretative Decision no. 3
of 22 April 2005, Supreme Court of Cassation).
B. Action for damages under the State Responsibility
for Damage Act
Section
2 of the State Responsibility for Damage Act of 1988 provides, as
relevant:
“The State shall be liable for damage caused ...
by the organs of ... the investigation, the prosecution, the courts
... for:
unlawful
pre-trial detention ..., if [the detention order] has been set aside
for lack of lawful grounds...
unlawful
bringing of criminal charges, if the person concerned has been
acquitted or the proceedings discontinued on the following
grounds:...”
Persons
seeking redress for damage occasioned by decisions of the
investigating and prosecuting authorities or the courts in
circumstances falling within the scope of the State Responsibility
for Damage Act have no claim under general tort law as the Act is a
lex specialis and excludes the application of the general
regime (section 8(1) of the Act; реш. № 1370/1992
г. от 16 декември
1992 г., по г.д. № 1181/1992 г.
на ВС ІV г.о.).
III. RELEVANT COMPARATIVE LAW
The
following paragraphs – which draw on a summary report prepared
by the research division of the Court's registry – describe
relevant aspects of the system of court fees and costs in several
member States representing different legal traditions, with emphasis
on court fees in proceedings for damages against the State in cases
where the respective domestic law provides for compensation for
pre-trial detention.
A. Estonia
The
general rule with regard to compensation claims lodged with an
administrative court (section 56 (11) of the State Fees Act) is that
a state fee of 3 % of the amount claimed - but not less than 80
kroons (EUR 5) and no more than in civil court proceedings concerning
an equivalent amount – is charged when the claim is brought. In
case non-pecuniary damages are claimed but the amount of the
compensation is left to the discretion of the court, a simple fee of
1,000 kroons (EUR 64) is due (section 56(12)).
The
Unjust Deprivation of Liberty (Compensation) Act (Riigi poolt
isikule alusetult vabaduse võtmisega tekitatud kahju
hüvitamise seadus), which concerns, inter alia,
criminal proceedings that ended in acquittal or were discontinued,
provides that the individual concerned can lodge a compensation
request with the Ministry of Finance. No fees are involved. The
amount of compensation is fixed by the Act: it is 7/30 of the
national monthly minimum salary (enacted by the Government) per day
of detention. There is a presumption that this compensation covers
non-pecuniary damage and loss of profit.
Compensation
for pecuniary damage is regulated by the State Liability Act. In
accordance with section 22 (1)(3) of the State Fees Act (which came
into force on 1 January 2007), no fee is payable on a claim lodged
with an administrative court for pecuniary damage caused by
deprivation of liberty.
B. Finland
A
claim for damages against the State can be brought under the Tort
Liability Act. The court fee is approximately EUR 100-150, depending
on the procedural actions undertaken by the court, regardless of the
amount claimed.
Two
avenues of redress are open in such cases: an administrative claim to
the State Treasury in accordance with the Act on Compensation out of
State Funds to Detainees or Convicts Found to Have Been Innocent
(no. 422/1974 as amended) or a civil action for damages under
the aforementioned Tort Liability Act. In either case no court fees
are due in cases of detainees or acquitted persons.
C. France
Since
1993 the State has been responsible for paying court costs in respect
of criminal proceedings. Article 149 of the Code of Criminal
Procedure provides for a right to be compensated for all pecuniary
and non-pecuniary damage sustained as a result of pre-trial detention
in cases of acquittal or discontinuation of the proceedings. The
claim is filed with the President of the Court of Appeal in whose
area the criminal case was decided. All fees and costs in these
proceedings are borne by the State.
D. Italy
Actions
for damages for unlawful detention are adjudicated by the civil
courts. Proceedings for damages against the State may also be
instituted before the administrative tribunals, where the wrongful
conduct was imputable to the public administration.
Court
fees are in fixed amounts, irrespective of the sum claimed. The fees
are different for first instance and appellate courts and modest in
quantum: none of them exceeds EUR 30, according to the Decree no. 285
of 13 November 2002.
E. Romania
Actions
for damages for unlawful detention are exempt from court fees
(Article 15(g) of the Court Fees Act (no. 146/1997). In proceedings
involving compensation claims against the State, the maximum fee is
the equivalent of approximately EUR 10 (Article 3(m) of the Act). As
to costs and expenses, at the conclusion of the proceedings, the
losing party has to reimburse the other party's costs and expenses.
F. Russia
Claims
for damages for unlawful detention are examined by ordinary courts in
civil proceedings. Plaintiffs are exempt from court fees
(Article 333.36, Sections 1(10) and 3 of the Tax Code) and the
court cannot order the plaintiff to pay such fees at the end of the
proceedings, even if the claim was partially or fully dismissed.
The
successful party is entitled to the reimbursement of its costs. If an
action succeeds only partly, the costs are divided proportionately
between the parties (Article 98(1) of the Code of Civil Procedure).
The defendant is required to pay into the federal budget a fee, from
which the plaintiff is exempt, in proportion to the allowed part of
the claim (Article 103(1) of the Code of Civil Procedure).
G. Sweden
There
are two possibilities for seeking damages for unlawful detention in
Sweden. The first is an administrative quasi-judicial procedure
before the Chancellor of Justice, who can award compensation in fixed
amounts. There is no fee for the claimant. The second possibility is
a civil action for damages before the civil courts, for which a
modest fixed court fee is payable regardless of the amount of the
claim. Also, the claimant who loses the case must pay the other
party's costs
H. United Kingdom
An
action for damages against the state for unlawful detention is called
a “claim for false imprisonment” which is treated as an
action in trespass to the person (i.e. a personal injury claim) and
is brought in the civil courts. Taking into account the money value
of the claim and the complexity of the case, the court will allocate
the case to one of three tracks: the “small claims”
track, the “fast-track” or the “multi-track.”
An action for false imprisonment is likely to be allocated to the
multi-track.
There
are several types of court fees that the claimant has to pay in
proceedings for false imprisonment. The first one is the “issue
fee”, charged for filing the claim. It depends on the amount of
money claimed in accordance with a decreasing table. For example, the
issue fee for claims of up to 300 British pounds (GBP) is GBP 30, for
claims between GBP 5,000 and 15,000 it is GBP 250 and for claims
between GBP 50,000 and 100,000 it is GBP 700. The higher issue fee,
charged for claims of GBP 300,000 and higher, is GBP 1,700.
When
a defence is filed, the court allocates the case to a track and
orders the claimant pay an “allocation fee” in the amount
of £100 (except for claims not exceeding GBP 1,500 for which no
allocation fee is due). Finally, for matters that go to trial, a
“trial fee” is payable as follows: in multi-track cases –
GBP 500 and in fast-track cases – GBP 275, no fee being due for
small claims track cases.
In
respect of all fees, the court may decide that the claimant does not
have to pay a court fee (exemption), or that he/she may pay a smaller
fee (remission). That is usually done in cases involving indigent
claimants.
When
deciding on the award to be granted to the claimant, the courts enjoy
a wide power to limit the amount that a party may recover with regard
to the trial costs. According to the Civil Procedure Rules, the court
is “to have regard to all the circumstances” in
determining what costs are payable (r.44.5(1)). Those circumstances
specifically include those set out in r.44.5(3), namely: (a) the
procedural conduct of all the parties, including in particular, the
efforts made, if any, before and during the proceedings in order to
try to resolve the dispute; (b) the amount involved; (c) the
importance of the matter to all the parties; (d) the particular
complexity of the matter or the difficulty or novelty of the
questions raised; (e) the skill, effort, specialised knowledge and
responsibility involved and (f) the time spent on the case;.
I. Ireland
There
is a constitutional presumption that unreasonable charges would not
be imposed in the court proceedings (Murphy v. the Minister for
Justice and others, Supreme Court judgment of 9 March 2001,
[2001] IESC 29).
THE LAW
I. ADMISSIBILITY AND LEGAL CHARACTERISATION OF THE
APPLICANT'S COMPLAINTS
The
applicant complained that in the civil proceedings for damages for
his unjustified detention the courts had awarded an insufficient sum
which, moreover, had been rendered meaningless as he had been ordered
to pay excessive court fees. The applicant relied on Article 5 §
5 of the Convention and also on Article 6 § 1.
The
Government considered that the complaints under Article 5 § 5 of
the Convention were manifestly ill-founded and did not comment on the
question under Article 6 § 1 of the Convention. The Government
considered that the Bulgarian courts had acted in accordance with the
relevant law. In particular, the court fees had been determined on
the basis of the amount of the applicant's claim, which had been
excessive.
The
Court considers, in the light of the parties' submissions, that the
applicant's complaints raise serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. The Court concludes therefore that the complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring them inadmissible has
been established.
In
so far as the applicant may be understood as claiming that he had a
right to compensation under the Convention, the Court notes that the
Convention does not guarantee an unconditional right to compensation
for pre-trial detention in the event of acquittal or discontinuation
of the proceedings (see, mutatis mutandis, Sekanina v.
Austria, judgment of 25 August 1993, Series A no. 266 A, pp.
13 and 14, § 25). In particular, the right to compensation set
forth in paragraph 5 presupposes that a violation of one of the
preceding paragraphs of Article 5 has been established, either by a
domestic authority or by the Court (see, for example, Stoichkov v.
Bulgaria, no. 9808/02, § 72, 24 March 2005) and the right to
compensation under Article 3 of Protocol No. 7 – which, in any
event, was not in force in respect of Bulgaria at the relevant time –
concerns punishment after conviction that involved a miscarriage of
justice.
The
Court has jurisdiction to review the circumstances complained of by
an applicant in the light of the entirety of the Convention's
requirements. In the performance of that task it is, notably, free to
attribute to the facts of the case a characterisation in law
different from that given by the applicant or, if need be, to view
the facts in a different manner (see Streletz, Kessler and Krenz
v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, §
111, ECHR 2001 II).
The
Court considers that the main issue in the present case is whether,
as alleged by the applicant, excessive court fees hampered his right
of access to a court protected by Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
Article
6 § 1 of the Convention reads, as far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
Article
6 § 1 secures to everyone the right to have any claim relating
to his civil rights and obligations brought before a court or
tribunal. In this way, that provision embodies the “right to a
court”, of which the right of access, that is the right to
institute proceedings before a court in civil matters is one
aspect. The “right to a court” is not absolute. By
its very nature it calls for regulation by the State. Contracting
States enjoy a certain margin of appreciation in that respect but the
ultimate decision as to the observance of the Convention's
requirements rests with the Court (see, Golder v. the United
Kingdom, judgment of 21 January 1975, Series A no. 18, §§
34 in fine and 35-36, and Z and Others v. the United
Kingdom [GC], no. 29392/95, §§ 91 93, ECHR
2001-V).
The
central issue in this case concerns the fact that the applicant was
ordered to pay court fees which, in the event, amounted to
approximately 90 % of the compensation the State was ordered to
pay him. As a consequence, the applicant “lost” his
compensation in court fees despite the fact that the Bulgarian courts
accepted unequivocally that he was entitled to compensation from the
State for all non-pecuniary damage occasioned by his detention (see
paragraphs 12-18 above).
The
requirement to pay fees to civil courts in connection with claims
they are asked to determine cannot be regarded as a restriction on
the right of access to a court that is incompatible per se
with Article 6 § 1 of the Convention. However, the amount of the
fees assessed in the light of the particular circumstances of a given
case is a material factor in determining whether or not a person
enjoyed his right of access (see, Brualla Gómez de la Torre
v. Spain, judgment of 19 December 1997, Reports of Judgments
and Decisions 1997-VIII, p. 2955, § 33, Tolstoy-Miloslavsky
v. the United Kingdom, judgment of 13 July 1995, Series A no.
316-B, pp. 80-81, §§ 61 et seq and Kreuz v. Poland,
no. 28249/95, § 60, ECHR 2001 VI).
Unlike
other cases concerning excessive court fees – where the
individuals concerned, being unable to pay, did not have “access”
to a court or to a particular stage of the proceedings (see, among
many others, Weissman and Others v. Romania, no. 63945/00, 24
May 2006 and Teltronic-CATV v. Poland, no. 48140/99, 10
January 2006) – in the instant case the payment of the fee was
not a pre-condition for the examination of the case. The applicant
thus had “access” to all stages of the proceedings and
the courts examined his case on the merits and delivered binding
judgments (see paragraphs 12-18 above). In the applicant's case,
court fees were assessed at the conclusion of the first instance
proceedings and were only due once the judgments became final (see
paragraph 15 above).
The
Convention is intended to guarantee not rights that are theoretical
or illusory but rights that are practical and effective (see, among
many others, Airey v. Ireland, judgment of 9 October 1979,
Series A no. 32, p.12, § 24 and Aït-Mouhoub v. France,
judgment of 28 October 1998, Reports 1998-VIII, p. 3227, §
52). In practical terms, the imposition of a considerable financial
burden due after the conclusion of the proceedings may well act as a
restriction on the right to a court. The costs order against the
applicant constituted such a restriction.
As
the Court has underlined on a number of occasions, a restriction
affecting the right to a court will not be compatible with Article 6
§ 1 unless it pursues a legitimate aim and there is a reasonable
relationship of proportionality between the means employed and the
legitimate aim sought to be achieved (see, for instance, Tinnelly
& Sons Ltd and Others and McElduff and Others v. the United
Kingdom, judgment of 10 July 1998, Reports 1998-IV, p.
1660, § 72 and Apostol v. Georgia, no. 40765/02,
28 November 2006).
The
Court must examine, therefore, whether this was achieved in the
present case.
The
Court first notes that where proceedings are brought under the
section 10 § 2 of the State Responsibility for Damage Act, court
fees are imposed when, and to the extent that, the claim is
dismissed. Fees are charged at a rate of 4% of the dismissed part of
the claim (see paragraphs 19 and 20 above). The aims pursued by the
general rules on costs can be accepted as compatible with the general
administration of justice, for example to fund the functioning of the
judicial system and to act as a deterrent to frivolous claims. The
aim pursued by the special regulation of claims under the State
Responsibility for Damage Act is apparently to simplify proceedings
for such actions by not requiring plaintiffs to provide the full
amount of 4% of the claim in advance, but only imposing it once
quantum has been fixed. That aim, too, can be accepted as compatible
with Article 6 of the Convention.
In
the instant case, however, the court fees' system applied by the
Bulgarian courts had the effect of depriving the applicant of almost
all of the compensation the State had been ordered to pay him for his
unjustified pre-trial detention.
The
Court has stated – in the context of a claim for damages for
excessive length of proceedings imputable to the authorities –
that in such cases the rules regarding legal costs must avoid placing
an excessive burden on litigants where their action is justified “as
it is paradoxical that, by imposing various taxes the State takes
away with one hand what it has awarded with the other. Nor should
other costs be excessive and constitute an unreasonable restriction
on the right of access to a tribunal” (see Scordino v. Italy
(no. 1) ([GC], no. 36813/97, § 201, 29 March 2006). The duty
of the State to compensate adequately wrongs imputable to the
authorities and duly established by the courts is of central
importance in a society governed by the rule of law. The Court notes
that in the domestic law of a number of member States of the Council
of Europe, proceedings for compensation for unjustified pre-trial
detention or in cases of acquittal are often treated separately for
court fees purposes, with the aim to secure in practice the aggrieved
person's access to those proceedings (see paragraphs 26-43
above).
The
Government's position was that the applicant himself had been
responsible for the fact that he had been ordered to pay a
significant sum in court fees, as he had indicated too high an amount
in his claim when instituting the proceedings.
It
is true that had the applicant sought a lesser amount in
compensation, the court fees he would have been liable to pay under
section 10 § 2 of the State Responsibility for Damage Act
would have been less significant. However, the Government have not
suggested that the applicant's claim for the equivalent of
approximately EUR 23,600 in non-pecuniary damages for more than one
year and seven months in detention was vexatious, grossly exaggerated
or abusive (see paragraphs 12-18 above).
In
the Court's view the applicant, who – as established by the
Bulgarian courts – should not have been in pre-trial detention,
cannot be blamed for putting a high estimate on the “value”
of his freedom. Non pecuniary damage is inherently difficult to
assess and, save where the amount of compensation is fixed by law,
will frequently involve research into previous cases in order to
establish, on the basis of similar circumstances, the likely amount
of any award. The Government have not shown, however, that there
existed developed or accessible case-law in this respect. Moreover,
the period under consideration was characterised in Bulgaria by
monetary fluctuations, inflation, legal reforms and changes in legal
practice (see, for example, Credit Bank and Others v. Bulgaria
(dec.), no. 40064/98, 30 April 2002). Therefore, it is unclear how
anyone, even a lawyer, could have determined what would have been a
“reasonable” claim in the applicant's case.
The
applicant cannot therefore be criticised for having made the claim
which he did.
The
financial burden on the applicant in the present case was
particularly significant because the legislation which brought it
about imposed a flat 4% rate with no upper limit and no room for any
judicial discretion (see paragraphs 15 and 21 above).
Owing
to the difficulty assessing likely awards of non-pecuniary damages
and as a result of its automatic and post hoc nature, the
impugned court fees system has effects which were not necessarily
intended by the legislator. In particular, dispensing with the
requirement of advancing the court fees removes the “cautioning
effect” such a requirement may have on claimants (see
paragraphs 20 and 21 above).
The
Court notes that various procedural solutions exist in the law of
member States to avoid situations as that in the present case. In
some legal systems, proceedings for damages against the State in
general or in cases concerning pre-trial detention in particular are
fully free of court fees or a modest simple fee applies. In a number
of countries the courts enjoy certain discretion in fixing costs and
are thus able to take into consideration relevant matters, such as
the nature of the claim (see paragraphs 24-42 above).
The
foregoing considerations lead the Court to the conclusion that
although the imposition of court fees is an aim which is compatible
as such with the good administration of justice, the practical
difficulties in assessing the likely award under the State
Responsibility for Damage Act, taken together with the relatively
high and wholly inflexible rate of court fees, amounted to a
restriction on the applicant's right to a court which was
disproportionate to the otherwise legitimate aim. There has been,
therefore, a breach of Article 6 § 1 of the Convention.
III. 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 BGN 45,000 (the equivalent of approximately EUR
23,000), stating that his detention had been illegal and he had not
been compensated therefor. The Government did not comment.
The
Court may only award just satisfaction if it has found “that
there has been a violation of the Convention ...”. In the
present case it has found that there had been a violation of the
applicant's right of access to a court under Article 6 § 1 of
the Convention.
The
Court considers that the applicant must have suffered distress having
seen his compensation “lost” in excessive court fees.
Deciding on an equitable basis, the Court awards EUR 2,000 in respect
of damage occasioned by the violation of Article 6 § 1 found in
the present case.
B. Costs and expenses
The
applicant claimed BGN 6,720 (the equivalent of approximately EUR
3,500) for legal fees in the domestic civil proceedings and the
proceedings before the Court. He relied on the usual practice and
regulations on legal fees in Bulgaria and submitted a copy of a legal
fees' agreement between him and his lawyer. The Government did not
comment.
Taking
into consideration the sum of EUR 701 received by the applicant by
way of legal aid from the Council of Europe, the Court considers that
EUR 1,300 is sufficient just satisfaction in respect of the costs and
expenses claimed and awards that amount.
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
(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, the following
amounts:
(i) EUR
2,000 (two thousand euros) in respect of damage;
(ii) EUR
1,300 (one thousand three hundred euros) in respect of costs and
expenses, payable directly into the bank account of the applicant's
representative;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
