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GERDZHIKOV v. BULGARIA - 41008/04 [2010] ECHR 113 (4 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/113.html
Cite as:
[2010] ECHR 113
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FIFTH
SECTION
CASE OF GERDZHIKOV v. BULGARIA
(Application
no. 41008/04)
JUDGMENT
STRASBOURG
4
February 2010
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 Gerdzhikov 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,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 12 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 41008/04) 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 Dimitar
Iliev Gerdzhikov (“the applicant”), on 9 November 2004.
The
applicant was represented by Mrs P. Gosteva, a lawyer practising in
Pazardzhik. The Bulgarian Government (“the
Government”) were represented by their Agents, Mrs S. Atanasova
and Mrs M. Dimova, of the Ministry of Justice.
On
6 January 2009 the
Court declared the application partly inadmissible and decided to
communicate to the Government the complaints concerning the length of
the criminal proceedings and the lack of remedies in that respect. It
also decided to rule on the admissibility and merits of the remainder
of the application at the same time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1957 and lives in the village of Rosen.
In
1992 the applicant was acting as a liquidator of an agricultural
co operative.
On
an unspecified date in 1993 a preliminary inquiry was opened against
him by the police in Pazardzhik. It concerned his alleged
mismanagement of property of the co-operative between April and
December 1992. On 2 February 1993 the police confiscated the
applicant’s passport. In April 1993 and in the beginning of
June 1993 he was questioned.
On
29 June 1994 the Pazardzhik regional public prosecutor’s office
instituted criminal proceedings against the applicant for mismanaging
the assets of the co-operative thus causing it substantial pecuniary
damage.
On
an unspecified date in 1994 the investigator to whom the case had
been assigned imposed a prohibition on the applicant’s leaving
the country.
No
investigative steps were taken after the opening of the criminal
proceedings and the applicant was never formally charged or indicted.
On
at least thirteen occasions between 26 September 1994 and 5 November
2003, pursuant to oral requests by the applicant to terminate the
proceedings and lift the travel ban, the Pazardzhik regional public
prosecutor’s office sent letters to the Pazardzhik Regional
Investigation Service with instructions to close, and forward to it,
the applicant’s case file. Apparently, those instructions were
not complied with.
On
2 July 2004 the Pazardzhik regional public prosecutor’s office
terminated the criminal proceedings against the applicant, finding
that the limitation period for the prosecution of the respective
offence had expired in 1997.
On
11 November 2004 the police lifted the travel ban imposed on the
applicant (see paragraph 8 above).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A legislative amendment that entered into force in
June 2003 introduced the possibility for an accused person to request
that his case be brought for trial or terminated if the investigation
had not been completed within a time-limit of one or two years,
depending on the charges (Article 239a Code of Criminal Procedure, as
in force until April 2006). That possibility applied with immediate
effect in respect of investigations opened before June 2003.
Under
the State and Municipalities Responsibility for Damage Act of 1988
(“the SMRDA”) individuals can in certain circumstances
seek damages for unlawful acts of the authorities. The Act does not
mention excessive length of proceedings as a ground for an action for
damages. Nor is there any practice in the domestic courts of awarding
damages for excessive length of proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the criminal proceedings
against him had not been reasonable. He relied on Articles 3, 6 §
1, 8 and 17 of the Convention. The Court finds that the complaint
falls to be examined solely under 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 submitted that the applicant had failed to exhaust the
available domestic remedies because he had not initiated an action
for damages under the SMRDA (see paragraph 14 above). Furthermore,
they considered that he had not been adversely affected by the length
of the criminal proceedings.
The
applicant disputed these arguments.
A. Admissibility
The
Court notes the Government’s objection that the applicant had
failed to avail himself of an available domestic remedy under the
SRDA (see paragraph 16 above). It recalls that similar objections has
been rejected in earlier cases against Bulgaria (see Nalbantova,
cited above, § 35, and Balabanov, cited above, § 31)
because the SMRDA does not provide for damages in respect of length
of proceedings (see paragraph 14 above). The Court sees no reason to
reach a different conclusion in the present case and accordingly
rejects the Government’s objection.
The
Court further finds that the present complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
The
Court recalls that the period to be taken into account in the
assessment of the length of criminal proceedings starts from an
official notification given to an individual by the competent
authority of an allegation that he has committed a criminal offence
or from some other act which carries the implication of such an
allegation and which likewise substantially affects the situation of
the suspect (see, among many others, Kangasluoma v. Finland,
no. 48339/99, § 26, 20 January 2004).
In
the case at hand the criminal proceedings against the applicant were
formally opened on 29 June 1994 (see paragraph 7 above). However, his
passport was confiscated by the police much earlier, on 2 February
1993. The preliminary inquiry against him started on an unspecified
date in 1993 and in April 1993 he was questioned for the first time
(see paragraph 6 above).
The
Court has not been informed of the ground on which the applicant’s
passport was confiscated on 2 February 1993, in particular whether
the measure was undertaken in the framework of the preliminary
inquiry against the applicant. It cannot therefore assess whether the
date of this action is relevant in respect of the starting moment of
the period to be taken into consideration. Nor can the Court take a
decision as to the start of that period on the basis of the date on
which a preliminary inquiry was opened, because it has not been
informed of that date (see paragraph 6 above).
On
the other hand, the Court has been informed that in April 1993 the
applicant was questioned in connection with the suspicion that he had
mismanaged the agricultural co-operative’s assets (see
paragraph 6 above) and considers that this represented a sufficient
official notification of an allegation that he had committed a
criminal offence. Therefore, the Court finds that the period to be
taken into consideration began in April 1993.
The
period at issue ended on 2 July 2004 when the criminal proceedings
against the applicant were terminated (see paragraph 11 above).
Therefore, it lasted eleven years and three months during which the
case remained at the stage of the pre-trial investigation.
2. Reasonableness of the period
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 to the following criteria: the complexity of the case,
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 Pélissier and Sassi, cited above). Having
regard to its case-law on the subject, the Court does not see a
reason to reach a different conclusion in the present case. In
particular, it notes that the criminal proceedings against the
applicant remained pending for more than eleven years, during which
the investigative authorities remained completely inactive: they did
not take any investigative steps and did not bring charges or file an
indictment (see paragraph 9 above). This whole delay was therefore
attributable to the authorities. Furthermore, the Pazardzhik Regional
Investigation Service failed to comply with the Pazardzhik regional
public prosecutor’s office’s express instructions, given
on numerous occasions in the course of many years, to close the
applicant’s case (see paragraph 10 above).
Therefore,
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. COMPLAINT UNDER ARTICLE 13 IN CONJUNCTION WITH ARTICLE
6 § 1 OF THE CONVENTION
The
applicant also complained that he did not have effective remedies in
respect of the length of the criminal proceedings, in breach of
Article 13 of the Convention, which reads:
“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.”
A. Admissibility
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
B. Merits
The Court reiterates that Article 13 guarantees an
effective remedy before a national authority for an alleged breach of
the requirement under Article 6 § 1 to hear a case within a
reasonable time. 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 v. Poland [GC], no. 30210/96, § 156-7,
ECHR 2000-XI).
The
Court refers to its finding that an action for damages under the
SMRDA did not represent an effective remedy in the case (see
paragraph 18 above). Nor could the applicant resort to the remedy
provided for in Article 239a of the Code of Criminal Procedure
(see paragraph 13 above), because no charges had ever been brought
against him and the provision was not applicable. The Government have
not referred to the existence of any other relevant remedy under
Bulgarian law, capable of preventing the alleged violation or its
continuation, or of providing adequate redress (see Sidjimov v.
Bulgaria, no. 55057/00, §§ 41 42, 27 January 2005,
and Balabanov, cited above, §§ 32-33).
Accordingly,
the Court concludes that in the present case there has been a
violation of Article 13 of the Convention on account of the lack of
effective remedies under domestic law in respect of the length of the
criminal proceedings against the applicant.
III. 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 10,000 euros (EUR) in respect of non-pecuniary
damage. The Government considered this claim to be excessive.
The
Court observes that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis and taking into account all the
circumstances of the case, it awards award him EUR 6,400 under this
head.
B. Costs and expenses
The
applicant also claimed EUR 2,000 for legal fees charged by his
lawyer, Mrs Gosteva, and 203 Bulgarian levs (BGN), the equivalent of
EUR 104, for translation, postage and other costs and expenses
incurred before the Court. He presented a time-sheet for the work
performed by his lawyer and receipts for the other expenses for
BGN 185.20 (EUR 95). The Government considered these claims to
be excessive.
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 were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession, the above criteria and the fact that
the case is rather simple, the Court considers it reasonable to award
the sum of EUR 600, 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 application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that there has been a violation of Article
13 in conjunction with Article 6 § 1 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, the following amounts, to be
converted into Bulgarian levs at the rate applicable at the date of
settlement:
(i) EUR
6,400 (six thousand four hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
600 (six hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 applicant’s
claims for just satisfaction.
Done in English, and notified in writing on 4 February 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
