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PAVLOVA v. BULGARIA - 39855/03 [2010] ECHR 41 (14 January 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/41.html
Cite as:
[2010] ECHR 41
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FIFTH
SECTION
CASE OF
PAVLOVA v. BULGARIA
(Application
no. 39855/03)
JUDGMENT
STRASBOURG
14
January 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 Pavlova 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,
Isabelle
Berro Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 8 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 39855/03) 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, Ms Galya
Ivanova Pavlova (“the applicant”), on 29 November 2003.
The
applicant was not legally represented. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms R. Nikolova,
of the Ministry of Justice.
On
14 October 2008 the
Court declared the application partly inadmissible and decided to
communicate to the Government the complaints concerning the length of
the proceedings and the lack of remedies in that respect. It also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1963 and lives in Yambol. At the material time
she was employed as a human resources specialist at a steel
production company.
A. The proceedings instituted in September 1998
In
February 1998 the applicant’s employment was terminated and she
was offered another position with the same company for a lower
salary.
On 17 September 1998 she brought a claim against her
employer, complaining about the loss of income resulting from her
reassignment to a less well-paid job.
In a judgment of 29 June 1999 the Sofia District Court
dismissed the claim, and the applicant appealed to the Sofia City
Court.
The court held two hearings, one of which was adjourned
owing to the defective summoning of the applicant’s employer.
At the third hearing, held on 23 November 2000, the applicant
asked for the proceedings to be stayed pending the outcome of the
proceedings brought in May 1999 (see paragraph 11 below). On 4 June
2001 the court turned down her request. The applicant appealed
against this ruling. On 22 November 2001 the Supreme Court of
Cassation found that it could not examine the appeal as it had no
access to the case file of the May 1999 proceedings. It therefore
sent the case back to the Sofia City Court, instructing it to enclose
the case file and return all the materials to it for an examination
of the appeal. After this was done, on 6 August 2002 the Supreme
Court of Cassation upheld the Sofia City Court’s ruling,
holding that the determination of the case was not dependent on the
outcome of the 1999 proceedings.
The proceedings on the merits then resumed before the
Sofia City Court. On 27 October 2004, after holding four more
hearings, it upheld the Sofia District Court’s judgment. The
text of the court’s judgment indicated that it was appealable
on points of law.
The applicant lodged an appeal, but on 14 March 2007
the Supreme Court of Cassation declared it inadmissible, observing
that following a legislative amendment which had entered into force
in 2002, appellate judgments in certain employment disputes were no
longer subject to appeal on points of law.
B. The proceedings instituted in May 1999
In February 1999 the applicant was dismissed from her
employment, and on 25 May 1999 she instituted proceedings against her
former employer, seeking a declaration that the dismissal had been
unfair, reinstatement and compensation for six months of lost wages.
After holding five hearings, two of which were
adjourned owing to the failure of an expert to file her report in
time, in a judgment of 17 July 2000 the Sofia District Court
dismissed the applicant’s claim.
On 6 October 2000 the applicant appealed. After
holding six hearings, in a judgment of 29 April 2004 the Sofia City
Court upheld the lower court’s judgment.
On 29 November 2004 the applicant appealed on points
of law. After holding a hearing on 8 February 2008, in a final
judgment of 1 July 2008 the Supreme Court of Cassation upheld the
lower court’s judgment.
II. RELEVANT DOMESTIC LAW
Article 217a of the 1952 Code of Civil Procedure,
added in July 1999, created a “complaint about delays”.
Through such a complaint a litigant aggrieved by the slow examination
of his or her case, or by delays in the delivery of judgment or in
the processing of an appeal, could request the president of the
higher court to give mandatory instructions that the case be
expedited. On 1 March 2008 the 1952 Code was superseded by the 2007
Code of Civil Procedure, which lays down a similar procedure in
Articles 255 57.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the two sets of 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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
The
Government contested this allegation.
The
Court considers that the complaints are not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. They must therefore be declared
admissible.
A. The proceedings instituted in September 1998
The
period to be taken into account began on 17 September 1998, when the
applicant brought her claim. The Court, noting that the applicant
appealed on points of law following an indication by the Sofia City
Court that she was entitled to do so, takes 14 March 2007, the date
on which the Supreme Court of Cassation declared this appeal
inadmissible (see paragraphs 9 and 10 above), as the date on which it
ended. Its duration was therefore nearly eight and a half years for
three levels of jurisdiction.
The reasonableness of this period must be assessed in
the light of the circumstances of the case and with reference to the
following criteria: the complexity of the case and the conduct of the
applicant and of the relevant authorities. It should also be borne in
mind that special diligence is necessary in employment disputes (see,
among many other authorities, Parashkevanova v. Bulgaria, no.
72855/01, § 19, 3 May 2007).
The Court does not consider that the case under
consideration was particularly complex in fact or in law. Indeed, the
Sofia District Court was able to dispose of it in about ten months
(see paragraph 7 above). By contrast, after that it remained pending
before the Sofia City Court for five years and four months (see
paragraphs 8 and 9 above). This delay was in large part due to the
fact that it took more than a year and a half to determine the
applicant’s request for the proceedings to be stayed and her
appeal against the Sofia City Court’s refusal to do so (see
paragraph 8 above). Such a length of time for the resolution of a
preliminary procedural point of limited complexity seems
unreasonable. To that has to be added the long period of inactivity
between the lodging of the applicant’s appeal on points of law
in late 2004 and its determination in March 2007. Noting that the
Supreme Court of Cassation disposed of the appeal on a very simple
procedural ground (see paragraph 10 above), the Court finds this
length of time clearly excessive, especially in view of the fact that
the proceedings concerned the applicant’s employment.
In the light of the criteria laid down in its
case law, and having regard to what was at stake for the
applicant and to the delays attributable to the authorities, the
Court considers that the length of the proceedings failed to satisfy
the “reasonable time” requirement. There has therefore
been a violation of Article 6 § 1 of the Convention.
B. The proceedings instituted in May 1999
The
proceedings began on 25 May 1999 and ended on 1 July 2008, a period
of nine years and just over one month for three levels of
jurisdiction.
The Court does not consider, in the light of the
criteria set out in paragraph 20 above, that this length of time was
reasonable. The case does not appear particularly complex in fact or
in law. Indeed, the Sofia District Court was able to dispose of it in
a little over a year (see paragraphs 11 and 12 above). By contrast,
the case remained pending before the Sofia City Court for more than
three and a half years (see paragraph 13 above). After that, there
was a significant gap – between November 2004 and February 2008
– when the case was pending before the Supreme Court of
Cassation (see paragraph 14 above). This length of time appears
excessive, especially in view of the fact that the proceedings
concerned the termination of the applicant’s employment.
In the light of the criteria laid down in its case law
and having regard to what was at stake for the applicant and to the
delays attributable to the authorities, the Court considers that the
length of the proceedings failed to satisfy the “reasonable
time” requirement. There has therefore been a violation of
Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained that she did not have effective remedies in
respect of the excessive length of the proceedings she had brought.
She relied on Article 13 of the Convention, which provides 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 contested this allegation.
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention, or
inadmissible on any other grounds. It must therefore be declared
admissible.
Article
13 guarantees an effective remedy in respect of an arguable complaint
of a breach of the requirement of Article 6 § 1 to hear a case
within a reasonable time (see Kudła v. Poland [GC], no.
30210/96, §§ 146 57, ECHR 2000-XI). A remedy is
effective if it prevents the alleged violation or its continuation or
provides adequate redress for any beach that has already occurred
(ibid., § 158, and Mifsud v. France (dec.) [GC],
no. 57220/00, ECHR 2002 VIII).
Having
regard to its conclusions in paragraphs 22 and 25 above, the Court is
satisfied that the applicant’s complaints were arguable.
While
prior to July 1999 the applicant did not have at her disposal any
domestic remedies in respect of the excessive length of the
proceedings (see, among other authorities, Hadjibakalov v.
Bulgaria, no. 58497/00, § 61, 8 June 2006), after that time
she could have filed a “complaint about delays” (see
paragraph 15 above). The Court has already found that this remedy can
be effective, but that regard must be had to the specific
circumstances of each case (see Stefanova v. Bulgaria, no.
58828/00, § 69, 11 January 2007) and to the impact that its use
may have on the overall duration of the proceedings (see Kuncheva
v. Bulgaria, no. 9161/02, § 40, 3 July 2008). In the present
case, the bulk of the delay occurred when the applicant’s two
cases were pending before the Supreme Court of Cassation (see
paragraphs 8, 10, 14, 21 and 24 above). In view of the fact that
there was no higher court, and a “complaint about delays”
is to be made to the president of the higher court (see paragraph 15
above), it is questionable whether this avenue of redress was
available to the applicant. The Government have not provided any
example of its being used with success in such circumstances.
The
Court additionally notes that Bulgarian law does not provide any
remedies capable of leading to an award of compensation in respect of
excessive delays in civil proceedings (see, among other authorities,
Kambourov v. Bulgaria, no. 55350/00, § 82, 14 February
2008).
There
has therefore been a violation of Article 13 of the Convention.
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 12,600 Bulgarian levs in compensation for the loss
of income allegedly occasioned by the excessive length of the two
sets of proceedings. She also claimed 20,000 euros (EUR) in respect
of non pecuniary damage. In addition, she requested the Court to
rule on whether the authorities should take account of the length of
the proceedings in determining the duration of her employment for the
purpose of assessing her retirement pension.
The
Government contested these claims.
The
Court does not discern a sufficient causal link between the
violations found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it considers that the length
of the proceedings and the lack of effective remedies in this regard
must have caused the applicant a certain amount of frustration. It
therefore awards her EUR 5,000 under this head, plus any tax that may
be chargeable. As regards the applicant’s request for the Court
to rule on the effect the length of the proceedings should have on
the calculation of her retirement pension, the Court observes,
firstly, that it is not empowered under the Convention to make a
ruling such as that requested by the applicant (see, mutatis
mutandis, Tolstoy Miloslavsky v. the United Kingdom, 13
July 1995, § 72, Series A no. 316 B), and secondly,
that this matter does not have a sufficient causal connection with
the violations found.
B. Costs and expenses
The
applicant sought the reimbursement of EUR 200 incurred for the
translation of correspondence from the Court, photocopying, telephone
conversations and postage. She stated that she had not kept any
supporting documents, but that her claim was nonetheless justified.
The
Government contested the claim, pointing out the lack of any
supporting documents.
According
to the Court’s case law, applicants are entitled to the
reimbursement of their costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. To this end, Rule 60 §§ 2 and
3 of the Rules of Court stipulate that applicants must enclose with
their claims “any relevant supporting documents”, failing
which the Court “may reject the claims in whole or in part”.
In the present case, the applicant has failed to produce any
documents in support of her claim. However, the Court considers it
reasonable to assume that she has incurred certain expenses for the
conduct of the proceedings before it (see Krastanov v. Bulgaria,
no. 50222/99, § 89, 30 September 2004). Indeed, had she been
eligible for legal aid, she would have been entitled to a similar sum
in respect of normal secretarial expenses without being required to
provide proof of actually incurring them. In view of those
considerations, the Court considers it reasonable to award the full
amount claimed by the applicant, plus any tax that may be chargeable.
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 remainder of the application
admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings instituted in September 1998;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the
proceedings instituted in May 1999;
Holds that there has been a violation of Article
13 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
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR
200 (two hundred euros), plus any tax that may be chargeable, 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 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
