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SPAS TODOROV v. BULGARIA - 38299/05 [2009] ECHR 1836 (5 November 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1836.html
Cite as:
[2009] ECHR 1836
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FIFTH
SECTION
CASE OF SPAS TODOROV v. BULGARIA
(Application
no. 38299/05)
JUDGMENT
STRASBOURG
5
November 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 Spas Todorov 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,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 13 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 38299/05) 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 a Bulgarian national, Mr Spas
Dimitrov Todorov (“the applicant”), on 13 October 2005.
The
applicant was represented by Mrs S. Stefanova and Mr K. Bakov,
lawyers practising in Plovdiv. The Bulgarian Government
(“the Government”) were represented by their Agent, Mrs
M. Kotzeva, of the Ministry of Justice.
On
12 December 2005 the
Court decided to communicate the complaints concerning the length of
the proceedings and alleged lack of effective remedies in this
respect to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1970 and lives in Belozem.
On
12 November 1997 the applicant, who had previous convictions for rape
and other offences, was arrested, charged with rape and sexual
assault and remanded in custody. The charges on which the applicant
was later convicted concerned a gang rape by three persons who
entered the home of a woman who lived with her two minor daughters,
forced her to leave the house and raped the girls, aged thirteen and
sixteen.
The
preliminary investigation was completed in July 1998. During that
stage of the proceedings the investigator held more than twenty
interviews with witnesses and the accused, commissioned medical
reports and a psychiatric report, conducted searches and collected
other evidence.
On
31 July 1998 an indictment was submitted to the Plovdiv District
Court.
In
the following two years and two months the District Court invited the
parties to ten or twelve hearings, five or six of which were
adjourned. Three adjournments were caused by the fact that one of the
jurors was absent. That caused a delay of approximately six months.
One adjournment was the result of the absence of the lawyer of one of
the accused and another adjournment was occasioned by the absence of
the civil plaintiff. The authorities also encountered difficulties in
locating and summoning some of the witnesses.
By
judgment of 25 September 2000, the District Court found the applicant
guilty as charged and sentenced him to six years' imprisonment. The
applicant and the other accused appealed.
By
judgment of 28 March 2001 the Plovdiv Regional Court quashed the
lower court's judgment and remitted the case on the ground that on
26 May and 28 September 1999 the District Court had ruled on the
accused persons' appeals against detention in a composition different
from that in which it had sat in the criminal case against them. That
was considered to be a “significant breach of procedure”
that automatically required the quashing of the District Court's
judgment in the criminal case and a fresh trial. In reaching that
conclusion, the Regional Court referred to the practice of the
Supreme Court of Cassation on the matter (see paragraph 30 below).
In
April 2001 the prosecutor rectified two minor omissions in the
indictment.
The
new trial started with a hearing on 16 July 2001 which was, however,
adjourned, because the victims had not been summoned.
The
hearing listed for 25 January 2002 was adjourned as two of the
accused did not appear. One of them had fallen ill and the other had
left the country.
The
hearing listed for 20 February 2002 was adjourned as one of the
jurors did not appear.
The
hearing listed for 9 May 2002 could not proceed because the
applicant's lawyer was attending to other business and the applicant
had not had the time to seek assistance from other counsel.
The
hearing listed for 19 June 2002 was adjourned because the applicant's
lawyer did not appear and the applicant had not retained counsel. The
court appointed counsel for the applicant itself and adjourned the
hearing.
The
court held hearings on 16 and 17 September 2002, 21 and 22 November
2002 and 21 and 24 March 2003. It heard witnesses and the parties'
pleadings and admitted other evidence.
Throughout
the proceedings delays occurred as a result of the fact that the
victims and witnesses could not be found at their registered
addresses.
By
judgment of 24 March 2003 the applicant and the other accused were
found guilty as charged. The applicant was sentenced to six and a
half years' imprisonment.
The
applicant appealed to the Regional Court.
The
hearing before the Regional Court listed for 2 October 2003 was
adjourned as the civil plaintiff, the victim, was absent.
The
hearing listed for 2 December 2003 could not proceed as the applicant
had fallen ill.
On
13 January 2004 the Regional Court held a hearing at which it heard
the parties' pleadings.
By
judgment of 28 May 2004 the Regional Court upheld the District
Court's judgment of 24 March 2003.
The
applicant filed a cassation appeal.
The
Supreme Court of Cassation heard the case on 25 January 2005. By
judgment of 9 May 2005 the Supreme Court of Cassation upheld the
lower courts' judgments.
2. The applicant's deprivation of liberty
The
applicant was arrested and remanded in custody on 12 November
1997. On 25 September 2000 he was convicted and sentenced to a term
of imprisonment. His conviction and sentence were quashed on 28 March
2001 and the trial recommenced. The applicant remained in pre-trial
custody. In the fresh trial, on 24 March 2003 the applicant was
convicted and sentenced to a term of imprisonment.
The
applicant remained in custody until 2 December 2003, when he was
placed under house arrest. He remained under house arrest until the
end of the criminal proceedings on 9 May 2005.
B. Relevant domestic law and practice
Article
257 § 1 of the Code of Criminal Procedure 1974, as in force at
the relevant time, provided that the composition of the trial court
must remain unchanged throughout the proceedings. In accordance with
the second paragraph of Article 257, if one of the judges or jurors
was prevented from sitting, the trial had to recommence.
It
follows from Article 304 § 1 of the same Code that at the trial
stage of the criminal proceedings the detainee's requests for release
are examined by the trial court.
In
a 1998 decision (реш. № 45, 2.02.1998, н.д..
№ 732/1997, II н.о.), the Supreme Court of
Cassation stated as follows:
“The modification of the measure of judicial
control [(pre-trial detention, house arrest, surety, etc)] in the
course of the trial is a procedural act and has to be undertaken by
the same composition of the court which had started the examination
of the criminal case. The decision to modify the measure must be
taken by the court on the basis of a careful assessment of the
behaviour of the accused person during the trial ...
Since the jurors [who decided to modify the measure of
control in the case at hand] did not participate in the examination
of the criminal case, [and were not present] when the accused person
and most of the witnesses were heard, they could not form an
objective opinion as to the necessity to modify the measure... [It
follows that there has been a substantial breach of procedure in that
Article 257 § 1 CCP has been violated ...]”
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 ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested that argument.
The
period to be taken into consideration began on 12 November 1997 and
ended on 9 May 2005. It thus lasted seven years and almost six months
for the preliminary investigation and three levels of jurisdiction.
A. Admissibility
The
Court notes 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
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, in particular, to the complexity of the case and the
conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, for example, Valentin Ivanov v. Bulgaria, no.
76942/01, 26 March 2009 and Nalbantova v. Bulgaria, no.
38106/02, 27 September 2007).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it that the period of seven years and six months was
reasonable in the circumstances of the present case.
The
Court notes, in particular, that in March 2001 the Plovdiv Regional
Court undid the fruit of more than two years of trial proceedings
(see paragraphs 7-9 above) and ordered a fresh trial. The Court must
determine whether the ensuing delay of more than two years was
imputable to the authorities.
It
observes that the District Court's judgment was quashed on the sole
ground that it had ruled on the accused persons' appeals against
detention in a composition different from that in which it had sat in
the criminal case against them. According to the Supreme Court of
Cassation's practice, this was considered to be a “significant
breach of procedure” that automatically required the quashing
of the District Court's judgment in the criminal case and a fresh
trial (see paragraphs 10 and 31 above). This practice was apparently
based on the provisions of the Code of Criminal Procedure, which
require that the same trial court which examines the merits of the
criminal charges must also deal with the requests for release
submitted by the accused (see paragraphs 30 and 31 above).
In
the present case, the Regional Court did not notice any change of
composition of the District Court at hearings dealing with the
criminal charges against the accused. In such circumstances, the fact
that the District Court's composition changed unlawfully when it
dealt with the appeals against pre-trial detention – a matter
unrelated to the admissibility or merits of the criminal charges –
could have possibly justified the quashing of the District Court's
decisions on pre-trial detention, but not of its judgment on the
merits of the criminal charges. Indeed, according to the Bulgarian
Supreme Court of Cassation, the reason underlying the rule that the
trial court should deal with appeals against detention in the same
composition in which it examines the merits of the criminal charge is
that changes in the composition would adversely affect the judges'
capacity to appraise the need to detain or release the accused (see
paragraph 31 above). It has not been stated that the judges' capacity
to appraise the merits of the criminal charges would be affected if
other judges considered appeals against detention.
In
spite of these obvious distinctions, the relevant law and established
practice, and the Regional Court in the applicant's case, applied a
formalistic approach which ascribed automatic consequences to certain
types of procedural omissions, without regard to their effect on the
proceedings and without consideration of less onerous and less
time-consuming possibilities to remedy the omissions.
It
is incumbent on the respondent State to choose and devise the
procedural means most appropriate to secure the enjoyment of all
Convention rights, including the right under Article 6 § 1 to a
trial within a reasonable time. The Court's task is limited to
examining whether the delay of more than two years caused by the fact
that the applicant's trial recommenced from the very beginning was
imputable to the authorities. In the light of the considerations set
out above, the Court finds that that was so, this delay having been
unnecessary.
Indeed,
the Court has already noted in previous cases against Bulgaria that
inordinate delays in criminal proceedings were brought about by the
unnecessary remittal of cases on excessively formalistic grounds (see
Kitov v. Bulgaria, no. 37104/97, § 73, 3 April
2003, Vasilev v. Bulgaria, no. 59913/00, § 93, 2
February 2006, Kalpachka v. Bulgaria, no. 49163/99, § 73,
2 November 2006 and Karov v. Bulgaria, no. 45964/99, §§
62 and 63, 16 November 2006). The present case is another example of
this unjustified approach of the Bulgarian courts.
The Court further notes that other delays, totalling
at least ten months, were also imputable to the authorities (see
paragraphs 8 (second and third sentence), 12 and 14 above).
Having
regard to the above and taking into consideration all other relevant
facts, including the overall length of the proceedings and the fact
that only very short delays may be considered as imputable to the
applicant (see paragraphs 15 and 16 above), the Court considers that
in the instant case the length of the criminal proceedings was
excessive and failed to meet the “reasonable time”
requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
Court reiterates that Article 13 of the Convention guarantees the
availability at national level of a remedy to deal with the substance
of an “arguable complaint” under the Convention and to
grant appropriate relief (see Kudła v. Poland [GC], no.
30210/96, § 157, ECHR 2000-XI). In the present case, having
regard to its conclusion with regard to the excessive length of the
proceedings, the Court considers that the applicant had an arguable
claim of a violation of Article 6 § 1.
Remedies
available to a litigant at domestic level for raising a complaint
about the length of proceedings are “effective”, within
the meaning of Article 13, if they prevent the alleged violation or
its continuation, or provide adequate redress for any violation that
has already occurred (see Kudła, cited above, §
158).
The
Court notes that in similar cases against Bulgaria it has found that
at the relevant time there was no formal remedy under Bulgarian law
that could have prevented the alleged violation or its continuation,
or provided adequate redress for any violation that had already
occurred (see Valentin Ivanov v. Bulgaria, cited above, §§
34-37, Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and
59901/00, §§ 31-42, 23 September 2004; Sidjimov v.
Bulgaria, no. 55057/00, §§ 37-43, 27 January 2005; and
Nalbantova, cited above, §§ 32-36). The Court sees
no reason to reach a different conclusion in the present case.
Accordingly,
there has been a violation of Article 13, in conjunction with Article
6 § 1 of the Convention, on account of the lack of an effective
remedy for the excessive length of the criminal proceedings.
III. REMAINING COMPLAINTS
The
applicant complained under Article 5 §§ 3 and 5 of the
Convention that his pre-trial detention and house arrest had been
excessively lengthy and that he did not have an enforceable right to
compensation in this respect.
The
Court reiterates that the period to be considered under Article 5 §
3 of the Convention ends on the day on which the charges brought
against the applicant were determined by a first-instance court (see,
for a detailed explanation of the Court's case-law on the issue,
Solmaz v. Turkey, no. 27561/02, §§ 23-37, ECHR
2007 ... (extracts)).
In
the present case, the application was introduced with the Court in
October 2005, more than six months after 24 March 2003, the date of
the applicant's conviction in his second trial, which is the date
marking the end of his pre-trial deprivation of liberty falling under
Article 5 §§ 1(c ) and 3 of the Convention. The complaint
under Article 5 § 3 must be rejected, therefore, for failure to
observe the six-month time-limit under Article 35 § 1 of
the Convention.
Furthermore,
there not having been a finding by a domestic court or by this Court
that the applicant's deprivation of liberty was contrary to one or
more of the requirements of Article 5 of the Convention, the Court
finds that Article 5 § 5 was not applicable. This part of the
application is thus incompatible ratione materiae with the
provisions of the Convention and must be rejected under its Article
35 §§ 3 and 4.
The
applicant's complaints under Article 5 §§ 3 and 5 of the
Convention must therefore be declared inadmissible.
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 12,000 euros (EUR) in respect of non-pecuniary
damage allegedly resulting from the violations of his rights under
Articles 6 and 13 of the Convention.
The
Government did not express an opinion on the matter.
The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards award him EUR 1,200.
B. Costs and expenses
The
applicant also claimed EUR 3,010 in respect of legal fees for
43 hours of legal work on the case before the Court at the
hourly rate of EUR 70. He also claimed EUR 60 in respect of
postage and stationary expenses. In support of these claims the
applicant submitted a time sheet and a legal fees agreement between
him and his lawyers. The applicant requested that the amounts awarded
in respect of costs and expenses should be paid directly into the
bank account of his legal representatives.
The
Government did not express an opinion on the matter.
According
to the Court's case-law, an applicant is 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, the Court,
taking into consideration in particular the fact that part of the
complaints were rejected and the relatively low level of complexity
of this case, the Court considers it reasonable to award the sum of
EUR 500 covering costs under all heads.
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 complaints concerning the excessive
length of the proceedings and lack of effective remedies in this
respect admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
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 1,200 (one thousand and
two hundred euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage and EUR 500 (five hundred euros), plus any
tax that may be chargeable to the applicant, in respect of costs and
expenses, both amounts to be converted into Bulgarian levs at the
rate applicable at the date of settlement;
(b) that
the sum awarded in respect of costs and expenses, namely EUR 500
(five hundred euros) be paid directly into the bank account of the
applicant's representatives;
(c) 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 5 November 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
