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DELOV v. BULGARIA - 30949/04 [2011] ECHR 360 (24 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/360.html
Cite as:
[2011] ECHR 360
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FIFTH
SECTION
CASE OF DELOV v. BULGARIA
(Application
no. 30949/04)
JUDGMENT
STRASBOURG
24
February 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Delov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mirjana Lazarova Trajkovska,
President,
Zdravka Kalaydjieva,
Julia Laffranque,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 31 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 30949/04) 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 Georgi Kostadinov Delov (“the
applicant”), on 3 August 2004.
The
Bulgarian Government (“the Government”) were represented
by their Agent, Mrs R. Nikolova of the Ministry of Justice.
On
31 March 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
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1965 and resides in Bulgaria.
The
applicant was a defendant in several criminal proceedings for
different offences and was convicted a number of times.
A. The proceedings for murder and the applicant’s
extradition
On
an unspecified date in 1992 criminal proceedings for murder committed
in Bulgaria were opened against the applicant and another person.
On
an unspecified date the applicant moved to the Czech Republic. In
September 1993 he was charged with, inter alia, robbery and
unlawful possession of firearms committed in the Czech Republic and
was detained in a prison in Prague. On 7 April 1995 he was released
and on 31 May 1995 the criminal proceedings against him for robbery
and unlawful possession of firearms in the Czech Republic were
discontinued as the Bulgarian authorities
undertook to prosecute him for these offences in Bulgaria instead.
In
a decision of 7 March 1996, taken in camera, the Prague City Court
allowed the applicant’s extradition to Bulgaria, noting that
there he would also be prosecuted for the robbery and the unlawful
possession of firearms committed in the Czech Republic.
On
8 July 1996 the applicant was extradited from the Czech Republic on
account of criminal proceedings opened against him in Bulgaria for a
number of offences, including murder.
The
Court has not been provided with information about the course of the
proceedings for murder between 1992 and 2005.
On
an unspecified date in 2005 the applicant’s case was brought to
the Plovdiv Regional Court.
By
a judgment of 26 May 2006 the Plovdiv Regional Court acquitted the
applicant.
The judgment was upheld on 27
June 2007 by the Sofia Court of Appeal. From the materials at the
Court’s possession it appears that in so far as the judgment
concerned the applicant’s acquittal, it was not appealed
against and entered into force.
B. The criminal proceedings for robbery and unlawful
possession of firearms
In March 1999, pursuant to a
commitment undertaken before the Czech
authorities in 1995 (see paragraph 7 above), the Bulgarian
authorities opened criminal proceedings against the applicant for the
robbery and unlawful possession of a gun, offences committed in the
Czech Republic.
On 25 October 2001 the applicant
was charged with the above offences.
On 12 July 2002 the proceedings
were stayed as the victims of the robbery could not be found for
questioning. On 22 July 2003 they were resumed upon the applicant’s
request.
In August 2003 the Bulgarian
authorities requested form the Czech and the Spanish authorities to
carry out certain investigative actions and to provide information
and documents in connection to the above offences.
On 11 September 2003 the
proceedings were divided into two separate cases.
The case for unlawful possession
of firearms ended on 1 April 2004 by a judgment of the Plovdiv
District Court that became final on 19 April 2004. The court found
the applicant guilty and sentenced him to one year imprisonment,
which was close to the minimum sentence for this offence. In
determining the sentence it took into account, among other mitigating
circumstances, the
fact that the offence had been committed more than ten years ago.
Meanwhile, on 2 October 2003 the
charges for robbery against the applicant were dropped. On 18 July
2005 the applicant was informed that he was not subject to charges
under these proceedings. However the proceedings continued.
On
7 July 2006 the prosecution authorities discontinued the proceedings
against the applicant for lack of sufficient evidence that he had
committed the robbery. The proceedings continued against an unknown
perpetrator.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the two sets of criminal
proceedings against him 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. The criminal proceedings for murder
1. The parties’ submissions
The
Government argued that the case was complicated as it concerned
murder, involved two defendants both of which had to be extradited
from different European countries, and the questioning of numerous
witnesses. They contended that under the circumstances of the case,
the authorities had acted with sufficient speediness and diligence.
The proceedings were handled speedily at the court phase. They argued
that the applicant should be held responsible for the delay until
1996, caused by his absconding and his extradition from the Czech
Republic.
2. The Court’s assessment
(a) Admissibility
The
Court notes that the complaint about the length of the proceedings
for murder is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention and is not inadmissible on
any other grounds. It must therefore be declared admissible.
(b) Period to be taken into consideration
The
Court observes that the proceedings for murder against the applicant
were opened in 1992 (see paragraph 6 above). It appears, however,
that at that time no investigative actions with the participation of
the applicant took place. It is not clear whether he was at all aware
of the existence of these proceedings. It was only in July 1996 when
he was extradited from the Czech Republic in connection to, inter
alia, these proceedings (see paragraph 9 above) that the
applicant’s situation was substantially affected. Accordingly,
the beginning of the period is 8 July 1996.
In
respect of the applicant the proceedings ended on 27 June 2007 (see
paragraph 13 above). They thus lasted ten years, eleven months and
twenty one days for a preliminary investigation and two levels of
jurisdiction.
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 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, among many others, Sidjimov v. Bulgaria, no.
55057/00, § 36, 27 January 2005 and Stefanov and Yurukov v.
Bulgaria, no. 25382/04, § 17, 1 April
2010).
The
Court further notes that the Government have not put forward any
information or arguments demonstrating that the examination of the
case at the preliminary investigation stage for a period of more than
ten years (see paragraphs 9-11 above) was justified. They have not
argued that the applicant was responsible for any significant delays
within the period into consideration.
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.
B. The criminal proceedings for robbery and unlawful
possession of firearms
1. The parties’ submissions
The
Government contended that the proceedings began on 25 October
2001 when the applicant was indicted. They argued, inter alia,
that the cases were complicated as it was necessary to receive the
assistance of the Czech and the Spanish authorities. They also argued
that as the charges for robbery were dropped on 2 October 2003,
thereafter the applicant did not suffer any anguish or distress as a
result of these proceedings.
The
applicant disagreed.
2. The Court’s assessment
(a) Admissibility
The
Court observes that in its judgment of 1 April 2004 the Plovdiv
District Court, when determining the applicant’s sentence,
referred, inter alia, to the long period
of time that had elapsed since the offence was committed and
therefore sentenced the applicant to one year imprisonment, which was
close to the minimum sentence for this offence (see paragraph 19
above). However, as in the cases of Mladenov v. Bulgaria,
(no. 58775/00, §§ 31 and 32, 12 October 2006) and
Sheremetov v. Bulgaria, (no. 16880/02, §§
33-34, 22 May 2008), in the present case the domestic courts did not
acknowledge in a sufficiently clear manner a breach of Article 6 §
1 on account of the length of the proceedings and did not afford
adequate redress as it is unclear what part of the reduction of the
applicant’s sentence was due to the belated determination of
the charges against him and what part to other mitigating factors.
In
these circumstances, as in the cases of Mladenov and
Sheremetov, both cited above, the applicant cannot be
considered as having lost his victim status under Article 34 of the
Convention.
The
Court further considers that the complaint is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention, nor inadmissible on any other grounds. It must therefore
be declared admissible.
(b) Period to be taken into consideration
The
Court notes that the official charges against the applicant were
brought on 25 October 2001. However, as early as 1995–1996 the
Bulgarian authorities had undertaken, in official assurances
given to the Czech authorities, a legal obligation to bring such
charges and in its decision of 7 March 1996 the Prague
City Court referred specifically to the future prosecution of the
robbery and possession of firearms offences (see paragraphs 7
and 8 above). Thus the Court considers that at the time of his
extradition in 1996 the applicant must have been aware of this fact.
Therefore, it finds that the applicant’s situation was
“substantially affected” and he could be considered as
subject to a “charge” from the moment he was extradited
to Bulgaria (for the relevant principles in respect of the autonomous
meaning of the word “charge” under the Convention 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). Accordingly, the beginning of the period
to be taken into consideration is 8 July 1996.
In
respect of the end of the period the Court observes that the formal
charges against the applicant were dropped on 2 October 2003 (see
paragraph 20 above). However, the proceedings against him continued
until 7 July 2006 (see paragraph 21 above). The Court,
therefore, considers that the applicant did not cease to be affected
by the pendency of the proceedings until they were discontinued.
Accordingly, the end of the period is 7 July 2006.
The
proceedings thus lasted ten years and one day for a preliminary
investigation and one level of court.
C. Merits
The
Court accepts the Government’s argument that the proceedings
were slowed down by the fact that the assistance of foreign
authorities had been needed. It also considers that the proceedings
were relatively complex because the offences were committed abroad
and therefore important information and evidence were in the
possession of foreign authorities. On the other hand, however, the
Court observes a number of delays that could be attributed to the
Bulgarian authorities. Thus, for example, the proceedings remained at
the preliminary investigation stage for a period of more than seven
years from their official opening in 1999 and more than ten years
since the applicant’s extradition in 1996 (see paragraphs 9 and
14-20 above). The request for assistance was sent to the Czech
authorities only in 2003, about four years after the beginning of the
proceedings (see paragraph 17 above). It is unclear what, if
any, investigative actions were carried out during the preliminary
investigation stage. The Court finds that the Government have not put
forward any arguments and evidence capable of persuading it that the
delay at this stage of the proceedings was justified. Furthermore,
the global length of the proceedings is excessive in itself. The
applicant does not appear to have been responsible for any
significant delays.
Having
regard to its case-law on the subject and the overall duration 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.
II. THE REMAINDER OF THE APPLICANT’S COMPLAINTS
Relying
on almost all provisions of the Convention and the Protocols to it,
the applicant also complained that the criminal proceedings were
unfair, that the periods of his pre-trial detention and his working
days in prison were not properly deducted from his sentences, that he
was tried twice for the offences committed in the Czech Republic,
that the conditions of his detention were inhuman and that he was
ill-treated by the prison administration and by another prisoner
in 1996 and 1997, that he was not allowed to attend his
father’s funeral in 2001, that his right to correspondence was
violated and that he was discriminated against.
The
Court has examined these complaints as submitted by the applicant.
However, in the light of all the material in its possession, and in
so far as the matters complained of are within its competence, the
Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols.
It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 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 1,000,000 euros (EUR) in damage.
The
Government contested the claim as excessive.
The
Court observes that in the present case, an award of just
satisfaction can be based only on the violation of Article 6 § 1
of the Convention concerning the length of the two sets of
proceedings. It accepts that the applicant must have sustained
non-pecuniary damage as a result of this violation. Ruling on an
equitable basis and taking into account all the circumstances of the
case, it awards him EUR 6,500 under this head.
B. Costs and expenses
The
applicant did not claim costs and expenses for the proceedings before
the Court. He mentioned costs for his legal representation in the
domestic proceedings, without giving any further details in that
respect.
In these circumstances, the Court makes no award under
this head.
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
1. Declares the complaints concerning the
length of the criminal proceedings for robbery and unlawful
possession of firearms and of those for murder 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 two sets of criminal proceedings against the applicant;
3. Holds
(a) that
the respondent State is to pay to the applicant, within three months
EUR 6,500 (six thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Bulgarian levs at the rate applicable at the date of settlement;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mirjana Lazarova Trajkovska Deputy
Registrar President
