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Cite as: [2010] ECHR 1507

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FIFTH SECTION

CASE OF RUMEN GEORGIEV v. BULGARIA

(Application no. 27240/04)

JUDGMENT

STRASBOURG

14 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of Rumen Georgiev v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Rait Maruste, President,
Mark Villiger,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 21 September 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 27240/04) 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 Rumen Dimitrov Georgiev (“the applicant”), on 14 July 2004.

The applicant was represented by Mrs S. Stefanova and Mr A. Atanasov, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their agents, Mrs N. Nikolova and Mr V. Obretenov from the Ministry of Justice.

On 14 January 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1968 and lives in Plovdiv.

On 11 September 1993 criminal proceedings were opened against an unknown perpetrator for a theft of objects of considerable value from a private apartment, committed the same day.

On 22 September 1993 the applicant was questioned in connection to the theft and admitted to having taken part in its commission.

On 20 October 1993 a police report in connection to the theft was prepared. The applicant was mentioned as one of the perpetrators. On 26 October 1993 the case was sent to the Plovdiv regional public prosecutor’s office.

Apparently thereafter the case remained dormant.

On 11 December 1998 the preliminary investigation (предварително производство) was transformed into a police investigation (дознание). Thereafter, until January 2002 the case again remained dormant.

A number of investigative actions were carried out between January and August 2002.

On 6 August 2002 the applicant was charged with the theft and was questioned.

A number of investigative actions were carried out between August 2002 and February 2003.

In March 2003 the applicant’s case was brought before the Plovdiv District Court. The first hearing was held on 8 October 2003 and was adjourned upon the applicant’s request.

On 7 April 2004 the District Court approved a plea bargain agreement and the applicant was sentenced to three years’ imprisonment.

II. RELEVANT DOMESTIC LAW

With an amendment of June 2003 the new Article 239a of the Code of Criminal Procedure (CCP) of 1974 was introduced which provided for the possibility for an accused person to have his case examined by a trial court if the investigation had not been completed within the statutory time-limit (two years in investigations concerning serious offences and one year in all other investigations).

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTION

The Government argued that the applicant failed to exhaust all remedies available to him as he did not complain of the excessive length of the proceedings before the domestic authorities and did not initiate the procedure under Article 239a of the CCP (see paragraph 15 above).

In a number of cases against Bulgaria raising issues similar to those in the present case the Court has dismissed the objection for non-exhaustion of domestic remedies, finding that until June 2003 Bulgarian law did not provide remedies allowing those accused in criminal proceedings to expedite the determination of the charges against them (see, among others, 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 that after this date any acceleration of the proceedings could not have possibly made up for the delays which had already accumulated by June 2003 (see, with further reference, Yankov and Manchev v. Bulgaria, nos. 27207/04 and 15614/05, §32, 22 October 2009). It sees no reason to depart from this conclusion in the present case. In addition, the Government have not indicated any other domestic procedure whereby the applicant could complain of the length of the proceedings.

The Government’s objection of failure to exhaust the available domestic remedies is therefore dismissed.

The Court further finds that the application 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.

II. 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...”

A. Period to be taken into consideration

The Government argued that for the purposes of Article 6 of the Convention the criminal proceedings commenced only on 6 August 2002 when the applicant was charged. Thus, the Government contended that the proceedings had lasted for about one year and eight months. Accordingly, they considered that the applicant’s complaints should be rejected as being manifestly ill-founded.

The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is “charged”. 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. Thus, whilst "charge", for the purposes of Article 6 § 1 may in general be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence", it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect (see, among many others, Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35, Eckle v. Germany, 15 July 1982, § 73, Series A no. 51 and Corigliano v. Italy, 10 December 1982, § 34, Series A no. 57).

In the present case the criminal proceedings in connection to the theft were opened against an unknown perpetrator on 11 September 1993 and the applicant was questioned and confessed to taking part in the commission of the theft on 22 September 1993 (see paragraphs 5 and 6 above). In the police report for the theft he was mentioned as one of the perpetrators (see paragraph 7 above).

Having regard to these facts and applying the principles set out above, the Court finds that in the present case the applicant’s situation was “substantially affected” and he could be considered as subject to a “charge” from the moment when he was questioned by the police and confessed to the theft (see, with further reference, Yankov and Manchev, cited above, §§ 17-18 and §§ 23-24). Accordingly, the beginning of the period to be taken into consideration is 22 September 1993.

The period ended on 7 April 2004 when the applicant concluded a plea bargain agreement. It thus lasted ten years, six months and fifteen days for a preliminary investigation and one level of jurisdiction.

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 to the following criteria: the complexity of the case, the conduct of the applicants 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, among many others, Osmanov and Yuseinov, cited above, § 30, and Yankov and Manchev, cited above, §§ 17-26). 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 to reach a different conclusion in the present case. In particular, the Court notes that the major source of delay in the present case was the lack of sufficient activity from October 1993 to December 1998 and from December 1998 to January 2002, when the case was effectively dormant (see paragraphs 8, 9 and 10 above).

In view of the above and having regard to its case-law on the subject and the global length of the proceedings, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

The applicant further complained of the lack of an effective remedy in respect the excessive length of the proceedings against him. He relied on Article 13 of the Convention, which reads 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 did not comment.

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 (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that it has frequently found violations of Article 13 of the Convention in cases raising issues similar to the one in the present case (see, with further references, Myashev, §§ 22 and 23 and Yankov and Manchev, §§ 32-34, both cited above). It sees no reason to reach a different conclusion in the present case.

Accordingly, there has 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

The applicant claimed 13,000 euros (EUR) in respect of non pecuniary damage.

The Government contested this claim as excessive.

The Court observes that the applicant has sustained non-pecuniary damage. Ruling on an equitable basis and taking into account all the circumstances of the case, it awards him EUR 3,000 under this head.

B. Costs and expenses

The applicant also claimed EUR 3,150 in lawyer’s fees for the proceedings before the Court and EUR 150 for other costs, among which postage and office materials. In support of this claim the applicant presented an agreement with his lawyers and a time sheet for forty five hours at the hourly rate of EUR 70. The applicant requested that the amount awarded for costs and expenses under this head be paid directly to his lawyers, Mrs S. Stefanova and Mr A. Atanasov.

The Government contested these claims as 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 and the above criteria, the Court considers it reasonable to award the sum of EUR 600, covering costs under all heads, payable directly into the bank account of the applicant’s legal representatives.

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 on account of the excessive length of the criminal proceedings;

3. Holds that 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;

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 3,000 (three thousand 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, payable directly into the bank account of the applicant’s legal representatives;

(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 claim for just satisfaction.

Done in English, and notified in writing on 14 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Rait Maruste Deputy Registrar President