CASE OF DINCHEV v. BULGARIA
(Application no. 23057/03)
22 January 2009
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 Dinchev v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Isabelle Berro Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 16 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Bodily harm
B. Limitation periods for the prosecution of criminal offences
C. Tort claims in civil proceedings and in the context of criminal proceedings
30. Under Article 64 § 2 of the 1974 Code (superseded by Article 88 § 2 of the 2005 Code), the examination of the civil party claim could not cause the criminal case to be adjourned. If the proceedings were discontinued, the claim was not examined, but could be brought separately in a civil court (Article 64 § 3 of the 1974 Code, as worded both before and after June 2003, presently superseded by Article 88 § 3 of the 2005 Code). The criminal court ruled on the claim only when giving judgment on the merits of the criminal case, even if in that judgment it ruled that the accused's criminal liability had been extinguished (Article 305 of the 1974 Code, superseded by Article 307 of the 2005 Code; and реш. № 225 от 20 септември 2004 г. по н.д. № 849/2003, ВКС, II н.о.).
D. Limitation periods for tort claims
E. Private prosecuting parties in criminal proceedings instituted by the prosecuting authorities
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
II. 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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(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, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non pecuniary damage;
(ii) EUR 800 (eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the bank account of the applicant's representative, Mr M. Ekimdzhiev;
(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 22 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of judges Lorenzen and Jaeger and is annexed to this judgment.
DISSENTING OPINION OF JUDGES LORENZEN
In the present case the majority found a violation of Article 6 § 1 of the Convention because the applicant did not enjoy effective access to a court for the examination of his civil party claim. For the following reasons we disagree with this conclusion.
Even if the Convention under the Court's constant case law grants a right to have a civil claim determined by a court (“access to court”) it does not grant a right to have it heard in any particular form, this being left to the national legislation to determine. There is thus no absolute right to have a civil claim for tort based on alleged criminal behaviour determined in criminal proceedings against the person who has caused the damage. However, where in accordance with domestic law a civil claim has been lodged in criminal proceedings, a violation of the right of access to court has been found if the proceedings have been conducted in a protracted way leading to the non examination of the claim because the criminal prosecution has become time barred (see, for example, the Anagnostopoulos judgment referred to in paragraph 48 of the judgment).
We can agree with the majority that the criminal prosecution in the present case was conducted in a “slow manner” (paragraph 49 of the judgment), in particular at the investigation stage. But the applicant himself contributed considerably to the lapse of time by bringing his allegations to the attention of the prosecuting authorities not earlier than one year and five months after the events (paragraph 8 of the judgment), when he could only expect to succeed later on with a civil claim in case investigation and court proceedings would be terminated by a final judgment very speedily within the next one year and seven months. This was not the case.
The applicant was able to present his claim only during the first court hearing on 23 February 1999 after the indictment had been submitted on 15 May 1998 more than six years after the incident. However, the Convention does not grant a right to have criminal proceedings instituted, and accordingly Article 6 § 1 was not applicable in the present case until the claim effectively had been lodged. At that time the prosecution was time barred as the three years period had expired already in January 1995, (see paragraph 25 of the judgment). When lodging his claim the applicant, who was represented by counsel, must – or at least should – have been aware of this and that it was unlikely that the claim would be examined unless the charge was legally qualified as a more serious offence under the Criminal Code. This question is primarily for national courts to determine and as the majority has rightly stated there are no grounds for finding that they arbitrarily refused to qualify the charge in a different way.
In these circumstances we fail to see that the applicant, who before as well as after the termination of the criminal prosecution, could have lodged his claim against V.M. in civil proceedings, has been denied access to court in breach of Article 6 § 1 of the Convention.