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Cite as: [2010] ECHR 1957
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FIFTH SECTION
DECISION
Application no.
42953/06
by Kamelia Aleksandrova CHERVENYAKOVA
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 2 November 2010 as a Committee composed of:
Rait
Maruste,
President,
Karel
Jungwiert,
Zdravka
Kalaydjieva,
judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having regard to the above application lodged on 11 October 2006,
Having regard to the partial decision of 5 January 2010,
Having regard to the text of the Government’s unilateral declaration made with a view to resolving the application,
Having regard to the applicant’s comments on the Government’s unilateral declaration,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Kamelia Aleksandrova Chervenyakova, is a Bulgarian national who was born in 1968 and lives in Pretoria, Republic of South Africa. The Bulgarian Government (“the Government”) are represented by their Agent, Mrs R. Nikolova of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 31 January 1997 the investigator opened a preliminary investigation against the applicant in connection with a theft. On 10 April 1997 the district prosecutor ordered the applicant’s detention on remand. On 4 June 1997 the National Security Service informed the investigator that on 29 January 1997 the applicant had left the country, flying to the Republic of South Africa.
On 4 November 1997 the prosecutor stayed the proceedings on the ground that the applicant had not been found.
According to the applicant she learned about the proceedings in September 2000, apparently in relation with her request to the Bulgarian consulate in Pretoria for a new passport. She was informed about the refusal to issue her a passport on 4 December 2000.
On 22 November 2001, after the applicant’s lawyer had asked for the proceedings to be continued, the District Court revoked the prosecutor’s order of 4 November 1997 and transferred the case to the prosecutor for further investigation.
In the period between February 2002 and October 2003 the investigation was concluded three times and sent to the prosecutor who on each occasion remitted it with instructions for further investigation.
On 27 January 2004 the applicant’s lawyer filed a request under Article 239a of the Code of Criminal Procedure of 1974 to the Sofia City Court to speed up the proceedings.
On 27 May 2004 the prosecutor brought an indictment to the Sofia City Court.
Between October 2004 and October 2006 the court held seven hearings. It postponed one as an expert and witnesses had failed to appear, and another because the applicant’s second lawyer could not attend. Two hearings were postponed as a result of witnesses not being properly summoned and another two because the whereabouts of witnesses were not known.
On 15 November 2006 the court held another hearing and on the same day delivered its judgment, finding the applicant not guilty. The prosecutor appealed. The Sofia Appellate Court held a hearing on 23 April 2007 and on 11 May 2007 upheld the lower court’s judgment.
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings against her.
THE LAW
The applicant complained under Articles 6 § 1 of the Convention about the length of the criminal proceedings.
On 14 July 2010 the Court received a unilateral declaration from the Government made with a view to resolving the application. The declaration, in particular, read:
“[...] The Government hereby wish to express [...] its acknowledgment of the unreasonable duration of the domestic proceedings in which the applicants was involved within the meaning of Article 6 § 1 of the Convention.
Consequently, the Government are prepared to pay to the applicant Ms Kamelia Chervenyakova the amount of 1,800 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 rate applicable on the date 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 her written reply dated 24 August 2010 the applicant stated her disagreement with the proposed amount.
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”.
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).
In view of its extensive and clear case law on length of criminal proceedings, including in cases brought against Bulgaria (see, for example, Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, 23 September 2004, Balabanov v. Bulgaria, no. 70843/01, 3 July 2008 and Yankov and Manchev v. Bulgaria, nos. 27207/04 and 15614/05, 22 October 2009), 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).
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Stephen Phillips Rait Maruste
Deputy Registrar President
