CASE OF TONCHEV v. BULGARIA
(Application no. 18527/02)
19 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 Tonchev 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 20 October 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The incident of 25 March 1993
B. The proceedings against M.T.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Minor bodily harm
B. Limitation periods for the prosecution of criminal offences
C. Tort claims in civil proceedings and in the context of criminal proceedings
I. THE APPLICANT’S STANDING
II. ALLEGED VIOLATIONS OF ARTICLES 3 AND 8 OF THE CONVENTION
Article 3 (prohibition of torture)
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8 (right to respect for private ... life)
“1. Everyone has the right to respect for his private ... life...”
III. ALLEGED VIOLATIONS 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.”
IV. 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, EUR 200 (two hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into Bulgarian levs at the rate applicable at the date of settlement;
(b) that from the expiry of the above mentioned three months until settlement simple interest shall be payable on the above amount 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 19 November 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
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 Jaeger and Kalaydjieva is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGE JAEGER AND JUDGE KALAYDJIEVA
We share the majority’s conclusions in regard of the unreasonable length of the proceedings (paragraphs 43 49) in so far as the impugned delays were attributable to the absence of expedience on part of the judicial authorities. But we are unable to join the majority’s conclusion that these delays deprived him of effective access to court. The situation in the present case is clearly not essentially identical with the one in Anguelova and Dinchev where the applicants were totally dependent on the authorities’ expediency in pursuing publicly prosecutable crimes.
In the present case the applicant had a free choice between bringing a civil claim in a civil court or joining the civil claim to the criminal proceedings which are as well exclusively depending on his free decision because the applicant was simply affected by a privately prosecutable crime. Crimes which are only privately prosecutable lack the requisite importance for the prosecution to act ex officio. Criminal procedure as a whole lies in the hands of the victim who is at all times free to define timely evidence requests and to design a strategy of expediency or delays, and most importantly – whether and when to discontinue the criminal proceedings.
That is why the case has to be distinguished from the cases of Anguelova and Dinchev where the applicants were totally dependent on the authorities’ expediency in pursuing publicly prosecutable crimes. In these two cases, the fate of the applicant’s civil claim was dependant on the public authorities’ decision to institute criminal proceedings and on the expediency with which they were pursued. In such circumstances – despite the formal accessibility of two possible avenues for compensation (in the instituted criminal proceedings or in separate civil proceedings) – the right to civil compensation may remain effectively barred as a result of the manner in which the authorities perform the instituted criminal proceedings.
In contrast to the victims of publicly prosecutable crimes who have to await the outcome of criminal proceedings, access to court for the determination of a compensation claim for victims of privately prosecutable crimes is entirely in their own hands. They are free to drop criminal prosecution which the Convention does not guarantee at all and to pursue instead their civil interests in compensation of damages.
The applicant in the present case was at all times free to choose the court to which he wished to have access. For these reasons, it cannot be said that the alleged temporary bar to the applicant’s access to a civil court was attributable to the authorities.
1. On 5 July 1999 the Bulgarian lev was revalued. One new Bulgarian lev (BGN) equals 1,000 old Bulgarian levs (BGL).