European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38646/04
by Yordanka, Atanas and Rosen GOSPODINOVI
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 23 June 2009 as a Chamber composed of:

Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 13 October 2004,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Yordanka Gospodinova, Mr Atanas Gospodinov and Mr Rosen Gospodinov, are Bulgarian nationals who were born in 1946, 1943 and 1970 respectively and live in Plovdiv. They are represented before the Court by Mrs S. Stefanova, a lawyer practising in Plovdiv.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first two applicants are spouses and the third applicant is their son. They live in a house in Plovdiv situated in the same yard as the house of Ms N.K. For years the applicants have been in bad relations with Ms N.K.’s family.

On 27 July 1996 a quarrel erupted in the yard between Ms N.K., accompanied by five men, and the applicants. The quarrel grew into a fight. According to the applicants Ms N.K.’s friends beat the second and third applicants and one of them entered the applicants’ house to prevent the second applicant from calling the police. Allegedly, one of the attackers had a gun and threatened to kill them.

Two medical examinations of 29 July 1996 showed that the second applicant had an oedema and a bruise on one of his fingers and the third applicant had bruises on his left thigh and a contusion in the loins. Under Bulgarian criminal law, such injuries are considered light bodily harm.

On 27 July 1996 the applicants filed a complaint with the Plovdiv district public prosecutor’s office describing the version of the events of the same day and requesting that Ms N.K. and her companions be punished. In September 1996 the Plovdiv district public prosecutor’s office opened criminal proceedings.

It appears that between September 1996 and August 1999 the prosecution authorities did not investigate the events. Between 1997 and 1999 the first applicant repeatedly inquired about the course of the proceedings.

In August and September 1999 the prosecution questioned the applicants and several other witnesses.

On an unspecified date Ms N.K. was charged with having threatened the first applicant and having, together with other persons, forcibly entered into the applicants’ house.

On 9 August 1999 the first applicant filed with the investigator a civil claim against Ms N.K. claiming 3,000 new Bulgarian levs (BGN) in non pecuniary damages. On the same date, by a decision of the investigator, she was constituted as a civil party in the criminal proceedings.

On 8 October 1999 the Plovdiv district public prosecutor’s office terminated the proceedings finding that Ms N.K. and her companions had not committed any publicly prosecuted offence. The Plovdiv regional public prosecutor’s office upheld this conclusion on 12 November 1999. Upon appeal by the applicants, on 10 February 2000 the Plovdiv appellate public prosecutor’s office quashed the lower prosecutors’ decisions and ordered that other witnesses be questioned as well.

After these additional questionings, on 15 August 2001 the Plovdiv district public prosecutor’s office terminated the proceedings finding once again that Ms N.K. and her companions had not committed any publicly prosecuted offence. In particular, it found that the witnesses, including an independent eye-witness to the fight, had not seen any gun being brandished by Ms N.K.’s friends. The latter witness had not heard anyone utter a threat. It did not therefore appear that anyone had threatened the applicants. Furthermore, the scandal and the fight had broken out in the yard which the applicants and Ms N.K shared. She had not therefore penetrated into their home. Even if she or any of her friends had done so, such an act would have amounted to a privately prosecuted offence.

On 27 February 2002 the decision of the Plovdiv district public prosecutor’s office was quashed by the Plovdiv District Court, which remitted the case for further investigation.

On 3 June 2004 the Plovdiv district public prosecutor’s office terminated the proceedings finding that the time-limit for prosecuting the offences Ms N.K. had been charged with, which was seven and a half years, had expired. On 25 June 2004 this decision was upheld by the Plovdiv District Court.

B.  Relevant domestic law and practice

Under Bulgarian law a victim of a criminal offence may bring an action against the alleged offender before a civil court. Such proceedings are normally suspended pending the outcome of concurrent criminal proceedings against the alleged offender.

The victim can also bring a civil claim in the criminal proceedings. Under Article 60 § 1 of the Code of Criminal Procedure 1974, as in force at the relevant time, this was possible at the stage of preliminary investigation. By Articles 60 and 62, the action could be directed against the accused or any third party liable for the damage inflicted.

By Article 161 § 1 in conjunction with Article 130 of the Criminal Code of 1968, wilfully inflicting light bodily harm is a privately prosecuted offence.

COMPLAINTS

THE LAW

A.  Complaints of the first applicant in respect of the length of the proceedings

The first applicant complained under Articles 6 § 1 and 13 that the criminal proceedings against Ms N.K., in which she brought a civil claim for damages, had been unreasonably lengthy and that she had no effective remedies in that regard.

Article 6 § 1, in so far as relevant, reads:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Article 13 reads:

“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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B.  Remainder of the applicants’ complaints

The three applicants also raised other complaints under Articles 2, 3 and 8 of the Convention. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first applicant’s complaints concerning the length of the proceedings and the lack of any effective remedies thereto;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President