by Evlogi Georgiev YORDANOV
The European Court of Human Rights (Fifth Section), sitting on 1 December 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 1 October 2004,
Having regard to the declaration submitted by the respondent Government on 12 January 2009 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
The applicant, Mr Evlogi Georgiev Yordanov, is a Bulgarian national who was born in 1942 and lives in Svetovrachane. He was represented before the Court by Mr Heski Heskiya, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Dimova and Ms S. Atanasova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was employed by a public transport company as a bus driver until he was dismissed on 8 August 1997 after an internal inspection established that he had a blood alcohol concentration level several times above the permitted limit.
On 3 December 1997 the applicant brought an action for unfair dismissal and sought reinstatement to his post plus damages.
The Sofia District Court conducted ten hearings between 21 January 1998 and 24 November 1999 during which time a sizeable volume of evidence was collected.
On 30 December 1999 the District Court dismissed the action. The court ruled that the applicant’s dismissal was lawful as it had been carried out in accordance with the statutory procedure. It rejected the applicant’s argument that there had been a lack of prior approval by the trade union of which he was a member, as it found that the amendment of the collective labour agreement which provided for such an obligation for the employer was null and void as not having been concluded by a person lawfully authorised to act for the company. The court further found that as the applicant was not a member of the managing body of the trade union, the special protection against dismissals of such members, provided in the Labour Code, was not applicable to him.
The applicant appealed against the judgment. After conducting four hearings between 8 November 2000 and 18 February 2002, the Sofia City Court delivered a judgment on the latter date with which it upheld the lower court’s findings.
The applicant appealed. In a final judgment of 19 April 2004 the Supreme Court of Cassation, having held an oral hearing on 31 March 2004, upheld the Sofia City Court’s judgment.
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
By letter dated 12 January 2009 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The declaration, in particular, read:
“[...] The Government hereby wish to express [...] their acknowledgment of the unreasonable duration of the domestic proceedings in which the applicant was involved. At the same time, the Government admit that in the particular circumstances of the case the complaint about the length of the proceedings has not been redressed at the domestic level as required by Article 6 § 1 of the Convention.
Consequently, the Government are prepared to pay to the applicant the amount of a total of 800 EUR which they consider reasonable in the light of the Court’s case law. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into Bulgarian [levs] at the exchange rate applicable at the time of payment, and will be free of any taxes that may be chargeable to the applicant. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the [Convention]. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
The Government, therefore, request that this application be struck out of the Court’s list of cases pursuant to Article 37 § 1 (c) of the Convention. [...]”
In a letter of 23 February 2009 the applicant expressed the view that the Government’s declaration did not constitute grounds to strike out the application under Article 37 § 1 (c) of the Convention and that the sum mentioned in the said declaration was unacceptably low.
The Court recalls that Article 37 § 1 (c) of the Convention enables it to strike a case out of its list where:
“[...] for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court also recalls that in certain circumstances it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
Having regard to the acknowledgements contained in the Government’s declaration, as well as to the amount of compensation proposed, which is compatible with the amounts awarded in similar cases, the Court considers that it is no longer justified to continue the examination of the present application, within the meaning of Article 37 § 1 (c) of the Convention.
In view of its extensive and clear case law on length of civil proceedings, including in cases brought against Bulgaria (see, for example, Rachevi v. Bulgaria, no. 47877/99, 23 September 2004; Vatevi v. Bulgaria, no. 55956/00, 28 September 2006; Kambourov v. Bulgaria, no. 55350/00, 14 February 2008), the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Accordingly, this part of the application should be struck out of the list.
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court has examined the applicant’s complaint as submitted by him. However, in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does 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 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration in respect of the length of the proceedings complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen