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YANKOV AND MANCHEV v. BULGARIA - 27207/04 [2009] ECHR 1608 (22 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1608.html
Cite as:
[2009] ECHR 1608
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FIFTH
SECTION
CASE OF
YANKOV AND MANCHEV v. BULGARIA
(Applications
nos. 27207/04 and 15614/05)
JUDGMENT
STRASBOURG
22
October 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 Yankov and Manchev v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 29 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications
(nos. 27207/04 and 15614/05) 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 two Bulgarian nationals, Mr Dimitar Simeonov Yankov and Mr Stoyan
Ivanov Manchev (“the applicants”), on 13 July 2004
and 7 April 2005 respectively.
The
applicants were represented by Ms S. Stefanova and Mr A. Atanasov,
lawyers practising in Plovdiv. The Bulgarian Government
(“the Government”) were represented by their Agents, Ms
N. Nikolova and Ms R. Nikolova, of the Ministry of Justice.
The
President of the Fifth Section decided to give notice of the
applications to the Government on 16 and 17 June 2008 respectively.
It was also decided to rule on the admissibility and merits of the
applications at the same time (Article 29 § 3 of the
Convention).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1971 and 1960 respectively and live in
village of Stryama, the Plovdiv region.
A. The proceedings against Mr Yankov
On
21 January 1995 criminal proceedings were opened against an unknown
perpetrator in respect of the theft of two sheep and a lamb. On
27 January 1995 the police took a statement from Mr Yankov in
which he confessed to taking part in the commission of the offence.
On
24 February 1995 the investigation against an unknown perpetrator was
transformed into an investigation against Mr Yankov and two other
individuals.
From
April 1995 until October 2001 the case remained dormant. In October
2001 the authorities started working on it. On 7 November 2001
Mr Yankov was charged. The investigation was completed in
February 2002, and Mr Yankov was indicted on 15 July 2002.
The
first hearing, listed for 2 July 2003, was adjourned because certain
witnesses and an expert were absent. It took place on 29 January
2004. The Plovdiv District Court approved a plea agreement between
Mr Yankov and the prosecution and terminated the proceedings.
The applicant was sentenced to one year's imprisonment, suspended.
B. The proceedings against Mr Yankov and Mr Manchev
On
4 September 1993 the police received a complaint that six sheep had
been stolen. The following day, 5 September 1993, they took
statements from Mr Manchev and Mr Yankov in which the applicants
confessed to taking part in the commission of the offence.
On
19 October 1993 a preliminary investigation was opened against the
applicants and two other individuals on charges of theft.
Between
November 1993 and November 2001 the case remained dormant. In
November 2001 the authorities started working on it. Mr Yankov
and Mr Manchev were charged on 16 and 19 November 2001 respectively.
In December 2003 the investigation was completed, and the applicants
were indicted in January 2004.
At
the first hearing, held on 27 October 2004, the Plovdiv District
Court approved a plea agreement between the applicants and the
prosecution and terminated the proceedings. Each of the applicants
was sentenced to one year's imprisonment, suspended.
THE LAW
I. PRELIMINARY REMARK
Noting
that the two applications are based on similar facts and contain
identical complaints, the Court considers it appropriate to join them
(Rule 42 (former 43) § 1 of the Rules of Court).
II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
The
applicants complained of the excessive length of the criminal
proceedings against them. They relied on Article 6 § 1 of the
Convention, which, in so far as relevant, provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested this allegation.
The
Court considers that the complaints are not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention, or
inadmissible on any other grounds. They must therefore be declared
admissible.
A. The proceedings against Mr Yankov
The
parties were in dispute as to the starting point of the period to be
taken into account. The Government considered that this was 15
November 2001, when Mr Yankov had been formally charged, because
before that the proceedings had not been directed against him and he
had not suffered any detriment. The applicant was of the view that
the relevant date was 27 January 1995, when he had made a
statement in relation to the offence and had confessed to taking part
in its commission.
According
to the Court's case law, the word “charge” in
Article 6 § 1 must be interpreted as having an autonomous
meaning in the context of the Convention and not on the basis of its
meaning in domestic law. The prominent place held in a democratic
society by the right to a fair trial favours a substantive, rather
than a formal, conception of “charge”; it requires the
Court to look behind the appearances and examine the realities of the
procedure in question (see Deweer v. Belgium, 27 February
1980, § 44, Series A no. 35, and Adolf v. Austria,
26 March 1982, § 30, Series A no. 49). Applying these principles
to the situation before it, the Court finds that Mr Yankov was
subject to a “charge” from the moment when the police
took a statement from him in which he confessed to taking part in the
commission of the offence, that is, 27 January 1995 (see Howarth
v. the United Kingdom, no. 38081/97, §§ 8, 9 and 20, 21
September 2000, and Martins and Garcia Alves v. Portugal, no.
37528/97, §§ 9, 10 and 20, 16 November 2000).
The
end point is not in contention, namely 29 January 2004, when the
trial court approved the plea agreement between Mr Yankov and the
prosecution and terminated the proceedings. Accordingly, the period
to be taken into consideration lasted a little more than nine years
for a preliminary investigation and one level of court.
The reasonableness of this period must be assessed in
the light of the circumstances of the case and having regard to the
criteria laid down in the Court's case law: the complexity of
the case and the conduct of the applicant and of the relevant
authorities (see, among many other authorities, Howarth, §
25, and Martins and Garcia Alves, § 22, both cited
above).
The
Court does not consider that the case was complex. Nor does it appear
that Mr Yankov's conduct was at the origin of any delays. The major
source of delay was the lack of any activity in the case between
February 1995 and October 2001. The Government have not provided any
explanation for this gap.
The Court concludes that the charges against Mr Yankov
were not determined within a “reasonable time”, in breach
of Article 6 § 1 of the Convention.
B. The proceedings against Mr Yankov and Mr Manchev
The
parties did not agree on the starting point of the period to be taken
into consideration.
For
the same reasons as set out above in respect of the proceedings
against Mr Yankov, the Court accepts that Mr Yankov and Mr Manchev
were subject to a “charge” from 5 September 1993, when
the police took statements from them in which they confessed to
taking part in the commission of the offence. The proceedings came to
an end on 27 October 2004, when the trial court approved a plea
agreement between the applicants and the prosecution. The period to
be taken into consideration was therefore eleven years and almost two
months for a preliminary investigation and one level of court.
The
Court does not consider, in light of the criteria set out in
paragraph 20 above, that this amount of time was reasonable. The case
was not complex and the applicants did cause any delays. The main
reason why the charges against them were not determined for such a
long time was the fact that between November 1993 and November 2001
the case remained dormant. The Government have not provided any
explanation for this gap.
There has therefore been a violation of Article 6 §
1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained that they did not have effective remedies in
respect of the excessive length of the proceedings against them. They
relied on Article 13 of the Convention, which provides as follows:
“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
Government contested this allegation.
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention, or
inadmissible on any other grounds. It must therefore be declared
admissible.
Article
13 guarantees an effective remedy in respect of an arguable complaint
of a breach of the requirement of Article 6 § 1 to hear a case
within a reasonable time (see Kudła v. Poland [GC], no.
30210/96, §§ 146 57, ECHR 2000-XI). A remedy is
effective if it prevents the alleged violation or its continuation or
provides adequate redress for any beach that has already occurred
(ibid., § 158, and Mifsud v. France (dec.) [GC],
no. 57220/00, ECHR 2002 VIII).
Having
regard to its conclusions in paragraphs 22 and 26 above, the Court is
satisfied that the applicants' complaints were arguable.
The
Court has previously found that until 2003 Bulgarian law did not
provide remedies allowing those accused in criminal proceedings to
expedite the determination of the charges against them (see Osmanov
and Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, §§
38 40, 23 September 2004; Sidjimov v. Bulgaria, no.
55057/00, § 41, 27 January 2005; Nalbantova v. Bulgaria,
no. 38106/02, § 34, 27 September 2007; and Atanasov and
Ovcharov v. Bulgaria, no. 61596/00, § 56, 17 January 2008).
It is true that after a reform of the 1974 Code of Criminal Procedure
in June 2003, it became possible for the accused to request to have
their cases brought before a court if the preliminary investigation
had not been completed within a certain time limit. However, any
acceleration of the proceedings against the applicants after June
2003 could not have possibly made up for the delays which had already
accumulated by that time (see Sidjimov, § 40; Atanasov
and Ovcharov, §§ 57 and 58, both cited above; and
Gavazov v. Bulgaria, no. 54659/00, §§ 164 and 165, 6
March 2008).
As
regards compensatory remedies, the Court has not found it established
that under Bulgarian law there exists an avenue allowing the accused
to obtain damages or other redress in respect of the excessive length
of criminal proceedings against them (see Osmanov and Yuseinov,
§ 41; Sidjimov, § 42; Nalbantova, §
35; Atanasov and Ovcharov, §§ 59 and 60; and
Gavazov, § 166, all cited above; see also Staykov v.
Bulgaria, no. 49438/99, § 89 in fine, 12 October
2006).
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
Mr
Yankov claimed 8,000 euros (EUR) in respect of the non pecuniary
damage sustained as a result of the unreasonable length of the
proceedings against him. He further claimed EUR 10,000 in respect of
the non pecuniary damage sustained as a result of the
proceedings against him and Mr Manchev. Mr Manchev claimed EUR 10,000
under this head. Mr Yankov additionally claimed EUR 10,000 for the
non pecuniary damage suffered as a result of the lack of
effective remedies against the excessive length of the proceedings.
Mr Manchev claimed EUR 5,000 under this head.
The
Government contested these claims.
The
Court considers that the applicants must have suffered certain
non pecuniary damage as a result of the excessive length of the
proceedings against them and the lack of effective remedies in this
respect. Taking into account the particular circumstances and the
awards made in similar cases (see, for instance, Myashev v.
Bulgaria, no. 43428/02, § 27, 8
January 2009), and ruling on an equitable basis, as required under
Article 41, the Court awards Mr Yankov EUR 3,000 and Mr Manchev EUR
2,000, plus any tax that may be chargeable.
B. Costs and expenses
The
applicants sought the reimbursement of EUR 5,140 incurred in lawyers'
fees for the proceedings before the Court, and of EUR 310 for other
expenses. They asked that any award under this head be made directly
payable to their lawyers, Ms S. Stefanova and Mr A. Atanasov.
The
Government contested these claims.
According
to the Court's case law, applicants are entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, and to the
fact that the applicants were represented by the same lawyers, the
Court considers it reasonable to award them jointly EUR 1,500, plus
any tax that may be chargeable to them. This sum is to be paid into
the bank account of their legal representatives, Ms S. Stefanova
and Mr A. Atanasov.
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
Decides to join the applications;
Declares the applications admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings against Mr Yankov;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings against Mr Yankov and Mr Manchev;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State is to pay the applicants, 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) to
Mr Yankov, EUR 3,000 (three thousand euros), plus any tax that may be
chargeable, in respect of non pecuniary damage;
(ii) to
Mr Manchev, EUR 2,000 (two thousand euros), plus any tax that may be
chargeable, in respect of non pecuniary damage;
(iii) jointly
to both applicants, EUR 1,500 (one thousand five hundred euros), plus
any tax that may be chargeable to them, in respect of costs and
expenses, to be paid into the bank account of their legal
representatives, Ms S. Stefanova and Mr A. Atanasov;
(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 applicants'
claims for just satisfaction.
Done in English, and notified in writing on 22 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President