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DORON v. BULGARIA - 39034/04 [2010] ECHR 1513 (14 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1513.html
Cite as:
[2010] ECHR 1513
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FIFTH
SECTION
CASE OF
DORON v. BULGARIA
(Application
no. 39034/04)
JUDGMENT
STRASBOURG
14 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Doron v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mirjana
Lazarova Trajkovska,
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. 39034/04) 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 Dilian Spiridonov
Doron (“the applicant”), on 25 October 2004.
The
applicant was represented by Mr M. Ekimdzhiev and Mrs K. Boncheva,
lawyers practising in Plovdiv. The Bulgarian Government (“the
Government”) were represented by their Agents,
Mrs S. Atanasova, Mrs N. Nikolova and Mr V. Obretenov of
the Ministry of Justice.
On
11 February 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 1953 and lives in Sofia.
A. The criminal proceedings against the applicant
On
7 March 1994 the applicant was charged with aiding and abetting large
scale embezzlement. The charges were brought within the framework of
criminal proceedings for abuse of power and embezzlement against
several persons.
On
8 March 1994 the applicant was questioned in connection to the above
charges and a search of his business premises was carried out.
On
11, 15, 23 and 24 March 1994 the applicant, some of the other persons
charged and witnesses were questioned.
On
28 March 1994 the applicant was also charged with documentary fraud,
was questioned in that connection and bail was fixed for him.
Between
April and November 1994 at least fifteen questioning sessions and a
search were carried out and several other persons were charged with
abuse of power and embezzlement.
As the applicant did not pay the bail and could not be found for
questioning, on an unspecified date in 1994 the Bulgarian
authorities, with the assistance of Interpol, initiated a national
and an international search for him.
On
5 December 1994 the applicant was found in Switzerland and on 26
January 1996 he was extradited to Bulgaria.
Meanwhile,
the criminal proceedings against him were still pending and between 9
November 1994 and 8 January 1996 at least fourteen questioning
sessions were carried out and two expert opinions were commissioned.
On
26 January 1996 the applicant was questioned and the findings of the
investigation were presented to him.
Between
January and October 1996 a number of questioning sessions and several
other investigative actions took place and the charges against the
applicant were separated from these against the other persons
involved.
On
5 July 1997 a prosecutor from the Sofia city public prosecutor’s
office dropped some of the charges against the applicant and prepared
an indictment. Thus, the applicant remained charged only with
aggravated documentary fraud, as a result of which he unlawfully
received a large amount of money.
On
5 September 1997 the indictment was sent to the Sofia City Court.
During
the first hearing of 5 March 1998 it became clear that the applicant
had returned the allegedly embezzled amount to the victim company.
For
the period between 5 March 1998 and 12 January 1999 the Sofia City
Court held at least fourteen hearings.
By
a judgment of 12 January 1999 the Sofia City Court acquitted the
applicant.
The
prosecutor appealed.
The
Sofia Court of Appeal held at least three hearings. By a judgment of
13 March 2000 it upheld the acquittal.
The
prosecutor appealed further. On 22 May 2000 the Supreme Court of
Cassation held a hearing.
By
a judgment of 3 October 2001 the Supreme Court of Cassation quashed
the Sofia Court of Appeal judgment because of procedural breaches and
remitted the case for fresh examination.
After
the remittal the Sofia Court of Appeal held hearings on 20 May and 23
September 2002.
In
a judgment of 21 November 2003 the Court of Appeal upheld the Sofia
City Court judgment of 12 January 1999.
So
did the Supreme Court of Cassation in a final judgment of 24 June
2004.
Apparently,
no civil claim was brought against the applicant throughout the
proceedings.
B. The seizure of the money
During
the search of the applicant’s business premises, carried out on
8 March 1994, a metal safe was seized. On 11 May 1994 an investigator
from the Sofia National Investigation Service opened the safe and
seized the amount of 986,444 old Bulgarian levs (BGL) (the equivalent
of 41,874 German marks at the time or 21,410 euros (EUR)). In the
seizure record of 11 May 1994 it was stated that the amount had been
seized pursuant to Article 156 of the Code of Criminal Procedure of
1974 (CCP). The amount was deposited in a special bank account under
which no interest was due.
After
the end of the criminal proceedings against the applicant, he
requested the return of the seized amount.
In
a decision of 2 September 2004 the Sofia City Court ordered the
amount to be returned to the applicant. It found that no civil claim
had been lodged within the framework of the criminal proceedings and
no attachments had been imposed. The applicant received 986.40 new
Bulgarian levs (BGN), approximately EUR 504, which was the equivalent
of the seized amount after the denomination of 1999.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Remedies in respect of length of criminal
proceedings
The
domestic law provisions concerning remedies in respect of length of
criminal proceedings have been summarized in paragraphs 34-42 of the
Court’s judgment in the case of Atanasov and Ovcharov v.
Bulgaria, no. 61596/00, 17 January 2008.
B. Measures for guaranteeing the satisfaction of civil
claims in the criminal proceedings
Article
156 of the CCP, as in force between 1974 and 1999, provided for
attachment measures to guarantee the satisfaction of civil claims
against the perpetrator, the payment of fines or the execution of
confiscation orders. The provisions of the Civil Procedure Code of
1952 (CPC), including as regards appeals to higher courts, applied in
respect of the attachment procedure.
In
case no civil action had been lodged within the prescribed
time-limit, the interested party could request from the court to lift
the imposed measure (Article 322 of the CPC).
C. Appeal against the orders of the investigator
Article
181 of the CCP provided that the orders of the investigator were
subject to appeal before the prosecutor and the orders of the
prosecutor could be appealed before the prosecutor with a higher
rank.
D. Physical evidence in criminal proceedings
Articles
133-137 provided for the seizure of documents and other objects that
could be of importance for the criminal proceedings. Pursuant to
Article 106 of the CCP chattels and other objects could be collected
as physical evidence and had to be held by the authorities until the
termination of the criminal proceedings. They could be returned to
their owners before that only as long as this would not hinder the
establishment of the facts in the case (Article 108 § 2). As of
1 January 2000 Article 108 of the CCP was amended, thus clarifying
that it was within the powers of the prosecutor’s office to
rule on requests for the return of such objects and introducing the
right to appeal before the court in case of refusal.
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 argued that the case had been complex and therefore
time-consuming and that by fleeing the country the applicant had
caused the slowing down of the proceedings.
A. Period to be taken into consideration
The
period to be taken into consideration began on 7 March 1994 when the
applicant was charged with aiding and abetting large scale
embezzlement (see paragraph 5 above). It ended on 24 June 2004, when
the Supreme Court of Cassation gave a final judgment in the case (see
paragraph 26 above). It thus lasted ten years, three months and
seventeen days for a preliminary investigation and three levels of
jurisdiction.
B. Admissibility
The
Court notes that the applicant’s complaint under Article 6 §
1 is not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention and is not inadmissible on any other grounds. It
must therefore be declared admissible.
C. 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 notes that the global length of the proceedings in the
present case was more than ten years.
It
accepts that the case was relatively complex as it initially involved
charges against several persons, questioning of a number of witnesses
and several expert options.
In
respect of the applicant’s conduct, the Court finds that
significant delays during the preliminary investigation stage were
caused by his absence from the country which lasted for more than a
year (see paragraphs 10-12 above).
On
the other hand, however, it observes a number of delays in the
proceedings, which were attributable to the authorities, such as the
delay of about three years because of the remittal of the case due to
procedural breaches (see paragraph 23 above) and this of about one
year and two months between the last hearing before the Sofia Court
of Appeal of 23 September 2002 and the delivery of that court’s
judgment on 21 November 2003 (see paragraphs 24 and 25 above).
It also notes that the case was not handled with particular
expediency by the Supreme Court of Cassation (see paragraphs 21-23
above).
In
view of the above, having regard to its case-law on the subject, the
overall duration of the proceedings and the delays attributable to
the authorities the Court considers that in the instant case the
length of the proceedings 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
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 notes that the applicant’s complaint under Article 13 is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention and is not inadmissible on any other grounds. It
must therefore be declared admissible.
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). Referring to its reasoning in other cases against Bulgaria
where it found that in similar circumstances Bulgarian law did not
provide for an effective remedy (see, for example, Sidjimov v.
Bulgaria, no. 55057/00, § 40-43, 27 January 2005,
Atanasov and Ovcharov v. Bulgaria, cited above §§
57-61 and Yankov and Manchev v. Bulgaria, nos.
27207/04 and 15614/05, §§ 32-34, 22 October 2009),
the Court sees no reason to reach a different conclusion in the
present case.
Accordingly,
there has been a violation of Article 13 of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 1 AND
ARTICLE 13
The
applicant complained under Article 1 of Protocol No. 1 that in
violation of Article 156 of the CCP the seizure of the amount of
BGL 986,444 had been ordered by an investigator and not by a
court. He further complained that as a result of the lengthy criminal
proceedings, inflation and the denomination of the Bulgarian currency
in 1999, this amount depreciated in value. He contended that he could
not receive interest on the seized amount and thus suffered a loss.
He further complained under Article 13 that he did not have an
effective remedy respect of his complaint under Article 1 of Protocol
No. 1.
Article
1 of Protocol No. 1 provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The parties’ submissions
The
Government argued, inter alia, that the applicant never
complained about the seizure of the money before the domestic courts
and never appealed against the actions of the investigation
authorities in connection to the seizure. He also did not claim any
interest on the seized amount. Thus, he failed to exhaust all
domestic remedies before bringing his complaint to the Court.
The
applicant argued that he did not have at his disposal effective
domestic remedies in respect of his complaint under Article 1 of
Protocol No. 1. He contended that pursuant to Article 156 of the
CCP the investigation and the prosecution authorities were under the
obligation to undertake measures to guarantee the satisfaction of
civil claims against the perpetrators of an offence and that
therefore any claims and requests for returning of the seized amount
or appeals against the seizure stood no chances of success.
The applicant further argued that the seizure had been unlawful as,
if considering that it had been carried out pursuant to Article 156
of the CCP, the decision had not been taken by a court and, if
considering that it had been carried out under Article 133 of the
CCP, the seized objects had not been of importance for the criminal
proceedings. He also argued that the seizure had resulted in a loss
of EUR 20,905.87, which constituted the difference in value between
the seized and the returned amount.
B. The Court’s assessment
The
Court observes that, the applicant never complained about the seizure
of the money before any domestic authority. His complaints under
Article 1 of Protocol No. 1 were raised for the first time directly
before the Court.
The
Court notes that under Bulgarian law, regardless of the grounds for
the seizure and the procedure followed in that respect, all orders of
investigators could be appealed before a prosecutor and all orders of
prosecutors could be appealed before the higher rank prosecutor (see
paragraph 34 above). Therefore the Court considers that the applicant
could have challenged the investigator’s order to seize the
amount. Furthermore, irrespective of whether the amount continued to
be seized as a guarantee or as physical evidence, it was open for the
applicant to request its return from the prosecutor or from the court
(see paragraphs 32, 33 and 35 above). He however, did not try to
avail himself of any of these remedies. As to his argument that he
stood no chance of success (see paragraph 54 above), the Court
reiterates that the existence of mere doubts as to the prospects of
success of a particular remedy which is not obviously futile is not a
valid reason for failing to exhaust domestic remedies (see, among
many other authorities, Akdivar and Others v. Turkey, 16
September 1996, § 71, Reports of Judgments and Decisions
1996 IV; Allaoui and Others v. Germany (dec.), no.
44911/98, 19 January 1999; and Muazzez Epözdemir v. Turkey
(dec.), no. 57039/00, 31 January 2002).
In
view of the above, the Court finds that the applicant failed to
exhaust all remedies available to him in respect of the complaint
under Article 1 of Protocol No. 1. It follows that this complaint
must be rejected under Article 35 §§ 1 and 4 of the
Convention. It also follows that the applicant’s complaint
under Article 13 must be rejected as manifestly ill founded
pursuant to Article 35 §§ 3 and 4 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 17,000 euros (EUR) in non-pecuniary damage,
stemming from the length of the criminal proceedings and the lack of
effective remedies in that respect.
The
Government contested this claim as excessive.
The
Court observes that the applicant must have sustained non pecuniary
damage as a result of the established violations (see paragraphs 45
and 50 above). Ruling on an equitable basis and taking into account
all the circumstances of the case, it awards EUR 2,400 under this
head.
B. Costs and expenses
The
applicant also claimed EUR 2,730 in lawyer’s fees for the
proceedings before the Court, EUR 17 in postage and EUR 52 in office
materials. In support of this claim the
applicant presented an agreement with his lawyers and a time
sheet for thirty nine hours at the hourly rate of EUR 70. The
applicant requested that the sum for costs and expenses in excess of
EUR 1,000 be paid directly to his lawyers.
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.
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 length of the
criminal proceedings against the applicant and the lack of effective
remedies in that respect admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the 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 to 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
2,400 (two 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
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
