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DIMITROV AND HAMANOV v. BULGARIA - 48059/06 [2011] ECHR 780 (10 May 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/780.html
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[2011] ECHR 780
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FOURTH
SECTION
CASE OF
DIMITROV AND HAMANOV v. BULGARIA
(Applications
nos. 48059/06 and 2708/09)
JUDGMENT
STRASBOURG
10
May 2011
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 Dimitrov and
Hamanov v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić, judges,
and Fatoş Aracı,
Deputy
Section Registrar,
Having
deliberated in private on 3 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in two applications (nos. 48059/06 and 2708/09)
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 two Bulgarian
nationals, Mr Stoyan Tsochev Dimitrov and Mr Nikolay Tomov Hamanov
(“the applicants”), on 10 November 2006 and 6 January
2009 respectively.
The
first applicant was represented by Mr A. Atanasov, a lawyer
practicing in Plovdiv. The second applicant was represented by
Mr M. Ekimdzhiev and Ms K. Boncheva, also lawyers
practising in Plovdiv. The Bulgarian Government (“the
Government”) were represented by their Agents, Ms M. Kotseva
and Ms N. Nikolova, of the Ministry of Justice.
Both
applicants alleged, in particular, that the criminal charges against
them had not been determined within a reasonable time, and that they
had not had at their disposal effective remedies in that regard.
On
23 February 2010 the Court (Fifth Section) decided to grant priority
to the applications under Rule 41 of its Rules. It declared
application no. 2708/09 partly inadmissible and decided to give the
Government notice of the complaints concerning the length of the
criminal proceedings against the two applicants and the alleged lack
of remedies in that regard. It also invited the parties to comment on
whether the case was suitable for a pilot judgment procedure (see
Broniowski v. Poland [GC], 31443/96, §§ 189 94
and points 3 and 4 of the operative provisions, ECHR 2004 V, and
Hutten Czapska v. Poland [GC] no. 35014/97, §§
231 39 and points 3 and 4 of the operative provisions, ECHR
2006 VIII, as well as the newly adopted Rule 61 of the Rules of
Court, which was inserted by the Court on 21 February 2011 and came
into force on 1 April 2011).
The
application was later transferred to the Fourth Section of the Court,
following the re composition of the Court’s sections on 1
February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1977 and 1963 respectively and live in
Plovdiv.
A. The criminal proceedings against Mr Dimitrov
On 21 September 1995 Mr Dimitrov was arrested by the
police while trying to break into a car with two other individuals,
M.M. and S.D. He was taken to a police station, where he made a
written confession. M.M., who was apparently also taken into custody,
made a confession as well and turned over to the police two radio
cassette players stolen from two cars which he had broken into
earlier. On the same day a police officer drew up a report on the
incident.
On 1 November 1995 a police investigator interviewed
S.D. who confessed that he had committed the offence in concert with
Mr Dimitrov and M.M.
On an unspecified date in 1995 the case was given the
number 1074/95.
On 19 February 2002 the investigator in charge of the
case interviewed one of the police officers who had arrested Mr
Dimitrov. On 21 February 2002 he interviewed the owner of one of
the cars, and on the same day ordered an expert report on the value
of the stolen goods. The report was ready the same day. On 1 March
2002 the investigator interviewed the owner of another car.
On 4 March 2002 Mr Dimitrov was formally charged with
attempted theft committed in concert with M.M. and S.D. He was
interviewed in the presence of his counsel and pleaded guilty. On the
same day the investigator interviewed S.D. as a witness. It seems
that neither M.M. nor S.D. were charged.
On 22 May 2002 the Plovdiv District Prosecutor’s
Office, noting that in January 2000 M.M. had left Bulgaria and was in
Spain, that it was impossible to establish the facts without
interviewing him, and it was necessary to charge him as well, decided
to stay the proceedings pending his return. On 11 April 2005, noting
that on 28 March 2005 M.M. had come back from Spain, the same Public
Prosecutor’s Office decided to resume the proceedings.
On 18 April 2005 M.M. was interviewed as a witness. He
was interviewed again on 15 June 2005 in the presence of a judge.
S.D. was also interviewed as a witness in the presence of the judge.
It seems that neither M.M. nor S.D. were charged.
On 11 July 2005 Mr Dimitrov was allowed to acquaint
himself with the case file. On 19 July 2005 the investigator
recommended that he be brought for trial, and on 25 August 2005 the
Plovdiv District Prosecutor’s Office indicted him.
The Plovdiv District Court (Пловдивски
районен съд)
heard the case on 18 May 2006. The prosecution and Mr Dimitrov stated
that they had entered into a plea bargain. The court approved the
bargain, sentenced the applicant to five months’ imprisonment,
suspended, and terminated the proceedings.
B. The criminal proceedings against Mr Hamanov
On 11 March 1996 a criminal investigation was opened
against Mr Hamanov, a bank branch manager, and several other
individuals in connection with a number of financial transactions.
After March 1996 the case went through a preliminary investigation,
trial and appeal. Following a remittal to the preliminary
investigation stage in June 2000, in April 2003 it was again pending
before the prosecuting authorities. The detailed course of the
proceedings up to April 2003 has been set out in paragraphs 11 32
of the Court’s judgment in the case of Hamanov v. Bulgaria
(no. 44062/98, 8 April 2004).
In September 2003 one of Mr Hamanov’s co accused
made a request under the new Article 239a of the 1974 Code of
Criminal Procedure (see paragraphs 38 40 below). On 31 October
2003 the Plovdiv District Court requested the Plovdiv District
Prosecutor’s Office to send it the case file. On 6 November
2003 that Office forwarded the request to the Plovdiv Regional
Prosecutor’s Office, which was dealing with the case.
Apparently as a result of the above, on 10 November
2003 the Plovdiv Regional Prosecutor’s Office submitted to the
Plovdiv Regional Court (Пловдивски
окръжен съд)
an indictment against Mr Hamanov and seven other accused. Mr Hamanov
was accused of breaching his duties as bank branch manager by making
thirty five unauthorised bank transfers, in breach of the
applicable financial regulations, and by guaranteeing nine promissory
notes, in breach of a resolution of the bank’s management board
prohibiting branch managers from issuing such guarantees, and thereby
causing the bank a pecuniary loss. The offences were characterised by
the prosecution as abuse of office under Article 282 of the Criminal
Code. Mr Hamanov was additionally charged with unlawfully
acquiring and possessing ammunition.
On
30 January 2004 the court set the case down for trial.
Two hearings, listed for 26 April and 15 June 2004,
were adjourned, the first because the State had not been properly
summoned as a civil party, and the second because Mr Hamanov was ill
and could not attend.
A hearing was held from 25 to 28 October 2004. On the
last mentioned date the court adjourned the case, finding that
this was necessary in order to obtain the testimony of certain
witnesses and experts who had failed to show up, and to hear
additional witnesses called by the prosecution and the defence.
Three hearings, fixed for 23 February, 14 April and 13
June 2005, failed to take place, the first because Mr Hamanov’s
counsel was absent, the second because another accused’s
counsel had to be replaced, and the third because another accused was
ill and could not attend.
A hearing was held from 26 to 30 September 2005. On
the last mentioned date the court adjourned the case, finding
that this was necessary in order to obtain the testimony of certain
witnesses and experts who had failed to show up, to hear additional
witnesses called by the prosecution and the defence, and to obtain
certain documents.
Two hearings, listed for 19 December 2005 and 23
February 2006, were adjourned because other accused and their counsel
were ill and could not attend.
Two hearings were held from 25 to 28 April and from 26
to 28 June 2006.
The Plovdiv Regional Court gave its judgment on 29
June 2006, and handed down the reasons for it in March 2007. It
convicted Mr Hamanov of guaranteeing the promissory notes, holding
that this had amounted to wilful mismanagement contrary to Article
219 of the Criminal Code (see paragraph 51 below), not abuse of
office contrary to Article 282 of the Code. It acquitted him of the
charge relating to the making of the thirty five bank transfers.
In addition, it found Mr Hamanov guilty of possession of ammunition,
but not guilty of acquiring it. In connection with the mismanagement,
the court sentenced Mr Hamanov to four years and four months’
imprisonment and barred him from acting as a director of a commercial
bank for four years and six months. In connection with the possession
of ammunition, it sentenced him to a fine of ten Bulgarian levs. In
determining the quantum of the punishment to be imposed in relation
to the mismanagement, the court noted the following:
“Bearing in mind the legal characterisation of the
[offence] committed by [Mr Hamanov] ..., [his] dangerousness,
[his] personality, the long period during which [he] was criminally
prosecuted, and the need to attain the aims of the punishment ...,
the court considers that [he] should be sentenced in line with
Article 54 of the [1968 Criminal Code – see paragraph 50
below], under predominantly mitigating circumstances. The court finds
that those circumstances were [the applicant’s] clean criminal
record, his good character, the fact that [he] is in employment at
the time of delivery of this judgment, [his] stable family and social
situation, [and] the partial confession that he made during the
trial. The aggravating circumstances [consist in] the perseverance,
determination and coordination displayed by [Mr Hamanov] in carrying
out [his] criminal acts.
...
In view of the established case law that, when
accompanying a sentence of imprisonment, [occupational debarment]
cannot be shorter than that imprisonment, and bearing in mind the
significant amount of time which has elapsed since the commission of
the offence ... the court considers that is must bar [Mr Hamanov]
from acting as a director of a commercial bank for a period of four
years and six months...”
Between 10 and 13 July 2006 Mr Hamanov and the other
accused, as well as the prosecution, appealed against the judgment.
On 17 May 2007 the Plovdiv Court of Appeal (Пловдивски
апелативен
съд) set the appeals down for hearing on
28 June 2007. However, the hearing failed to take place on that date
because another accused did not have legal representation. It was
held on 27 September 2007.
The Plovdiv Court of Appeal gave its judgment on 23
October 2007, fully upholding the lower court’s judgment.
Mr Hamanov and the other accused appealed on points of
law.
The hearing before the Supreme Court of Cassation
(Върховен
касационен
съд) was fixed for 4 April 2008, but was
adjourned because the civil party had not been properly summoned and
because another accused who wished to be present was prevented from
attending. It took place on 9 May 2008.
The Supreme Court of Cassation gave its judgment on 9
July 2008, upholding the part of the lower court’s judgment
concerning Mr Hamanov in its entirety.
II. RELEVANT DOMESTIC LAW
A. The 1991 Constitution
Article 31 § 1 of the 1991 Constitution provides
as follows:
“Anyone charged with an offence shall be brought
before a court within the time established by law.”
Under Article 130 of the Constitution, the Supreme
Judicial Council is the principal body concerned with the
administration of the judiciary (which, in Bulgaria, comprises the
courts, the prosecutor’s offices and the investigation
services). It has the power to, inter alia, appoint, promote,
demote and dismiss judges, prosecutors and investigators (Article 129
§ 1 and Article 130 § 6 (1)) and impose the harshest
disciplinary punishments (Article 130 § 6 (2)).
A 2007 amendment to the Constitution added a new
Article 132a, which envisaged the creation of an Inspectorate
attached to the Supreme Judicial Council. The Inspectorate, which
consists of a chief inspector and ten inspectors, is tasked with
checking the work of the judiciary without infringing the
independence of judges, prosecutors or investigators (Article 132a
§ 6). It can act either of its own motion or pursuant to reports
by private individuals, legal persons or State authorities (Article
132a § 7). It has the power to refer matters to the appropriate
authorities, or make suggestions or reports to them (Article 132a §
9).
B. The 2007 Judiciary Act
Section 7(1) of the 2007 Judiciary Act provides that
“[e]veryone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal”.
Sections 40 60 of the Act govern the structure,
powers and operations of the Inspectorate attached to the Supreme
Judicial Council (see paragraph 35 above). One of the Inspectorate’s
tasks is to check the processing of cases and their completion within
the prescribed time-limits (section 54(1)(2)). It carries out planned
annual checks or unplanned checks prompted by reports (section
56(1)). After carrying out a check of the work of an individual
judge, prosecutor or investigator, the Inspectorate draws up a report
containing its findings and recommendations, if any (section 58(2)).
That report is presented to the judge, prosecutor or investigator
concerned and to his or her hierarchical superior (section 58(3)).
The hierarchical superior must then, within the time set in the
report, inform the chief inspector about the implementation of the
recommendations (section 58(4)).
C. The 1974 Code of Criminal Procedure
An amendment to the 1974 Code of Criminal Procedure
that came into force in June 2003 introduced the possibility for
accused persons to request that their case be brought for trial if
the investigation had not been completed within two years in cases
concerning serious offences and one year in all other cases (new
Article 239a). Paragraph 140 of the amendment’s transitional
provisions provided that that possibility applied with immediate
effect in respect of investigations opened before June 2003.
The procedure under that Article was as follows. The
accused person had to submit a request to the relevant court, which
then had seven days to examine the file and rule on the request. It
could refer the case back to the prosecuting authorities, giving them
two months to submit an indictment against the accused or,
alternatively, to drop the charges against him or her. If the
prosecuting authorities failed to do so, the court was bound to
discontinue the criminal proceedings against the person who had made
the request. If the prosecuting authorities did submit an indictment,
but the court found that the pre trial investigation had been
tainted by serious breaches of the rules of procedure, the court had
to refer the case back to the prosecuting authorities, which then had
one month to rectify those breaches and re submit the
indictment. If they failed to re-submit the indictment or to rectify
the breaches highlighted by the court, or committed fresh breaches of
the rules of procedure, the court had to discontinue the criminal
proceedings.
The 2003 amendment was put before Parliament with the
reasoning that it was necessary in order to secure observance of the
right to a hearing within a reasonable time guaranteed by the
Convention.
In a judgment of 1 July 2010 (реш.
№ 340 от 1 юли 2010 г. по
к. н. д. № 271/2010 г. ВКС,
I н. о.), the Supreme Court of Cassation analysed
in detail the manner in which Article 239a was to be applied and held
that a failure to finalise the procedure under that provision did not
automatically put in jeopardy the fairness of the ensuing trial. It
was precisely during that trial – as opposed to the pre trial
phase of the proceedings – that the accused would be able to
obtain a determination of the criminal charges against him or her in
fully adversarial proceedings conducted in line with the requirements
of, inter alia, the Convention.
D. The 2005 Code of Criminal Procedure
The 2005 Code of Criminal Procedure came into force on
29 April 2006, superseding the 1974 Code. Its Article 22 provides as
follows:
“1. The court shall examine and decide
cases within a reasonable time.
2. The prosecutor and the investigating
authorities must ensure that the pre trial proceedings are
conducted within the time limits laid down in this Code.
3. Cases in which the accused is remanded in
custody shall be investigated, examined and disposed of as a matter
of priority.”
Articles 368 and 369 of the 2005 Code, which
superseded Article 239a of the 1974 Code, provided as follows:
Article 368 – Request by the accused to the
court
“1. If, in pre trial proceedings,
more than two years have passed since a person has been charged with
a serious offence, or one year in the case of other offences, the
accused may request that his or her case be examined by the court.
2. In the cases envisaged in subparagraph 1
the accused shall file a request with the relevant first instance
court, which shall request the case file immediately.”
Article 369 – Examination of the request
“1. The court, consisting of a single
judge, shall rule on the request within seven days. If it finds that
the requirements of Article 368 § 1 are in place, it shall
return the case to the prosecutor and give him or her two months
within which he or she must submit an indictment, a proposal for the
imposition of an administrative punishment, or a plea agreement, or
discontinue the criminal proceedings and inform the court
accordingly.
2. If, within the above mentioned period
of two months, the prosecutor does not carry out any of the measures
referred to in subparagraph 1 or if the court does not approve the
proposed plea bargain, the court, sitting as a single judge and in
private, shall request the case file and shall discontinue the
criminal proceedings by means of a decision. After the delivery of
the decision the criminal proceedings shall continue with regard to
the other accused as well as with regard to the other offences with
which the accused has been charged.
3. If the prosecutor carries out [one of] the
steps referred to in subparagraph 1, but the pre-trial proceedings
have been tainted by substantive breaches of the rules of procedure,
the court, sitting as a single judge and in private, shall
discontinue the judicial proceedings and refer the case back to the
prosecutor for rectification of the breaches and re submission
of the case to the court within one month.
4. If within the time limit referred to
in subparagraph 3 the prosecutor does not submit the case to the
court or the substantive breaches of the rules of procedure have not
been made good, or further ones have been committed, the court,
sitting as a single judge and in private, shall discontinue the
criminal proceedings by means of a decision.
5. The decisions referred to in subparagraphs
2 and 4 shall be final.”
On 25 March 2010 Parliament repealed Articles 368 and
369 with effect from 28 May 2010.
On 29 April 2010 the President of the Republic
challenged the repeal, along with certain other amendments to the
2005 Code of Criminal Procedure, before the Constitutional Court. In
a decision of 28 September 2010 (реш.
№ 10 от 28 септември
2010 г., по к. д. № 10/2010 г.,
обн., ДВ, бр. бр.
80 от 12 октомври
2010 г.) that court examined
the repeal by reference to, inter alia, Article 13 of the
Convention. It noted that, unlike Article 6 § 1 of the
Convention, the Bulgarian Constitution did not explicitly lay down as
a basic right the right of those charged with criminal offences to
have the charges against them examined and to have the criminal
proceedings against them finalised within a reasonable time. However,
it analysed in detail the terms of Article 31 § 1 of the
Constitution (see paragraph 33 above) and held that that provision
was to be construed as containing a procedural obligation to comply
with the statutory time limits for conducting and finalising the
pre-trial phase of criminal proceedings, with a view to bringing
those charged with criminal offences to trial. It thus served the
same purpose as Article 6 § 1 of the Convention, albeit only in
relation to the first phase of criminal proceedings. The court
continued:
“As noted above, the [abolished remedy] was
intended to serve as an effective remedy within the meaning of
Article 13 of the Convention in order to ensure the right to have a
criminal case examined within a ‘reasonable time’ during
the pre trial phase of the proceedings. The Constitutional Court
finds that the repeal of that remedy is not unconstitutional, because
it does not remove the disciplining procedural time limits
envisaged under Article 31 § 1 of the Constitution. Statutory
limitations on the duration of the two parts of the pre trial
phase of criminal proceedings – ‘investigation’ and
‘steps to be taken by the prosecutor after the investigation
has been completed’ – still exist and continue to be
applied. ...
The repealed ... Articles 368 and 369 of the Code
contained the implicit assessment of the legislature that, in view of
the need to complete criminal proceedings within a reasonable time,
it was unacceptable for a person to remain charged in pre trial
proceedings for more than two years in cases of serious offences and
for more than one year in cases of lesser offences. In most cases
those time limits would be longer than the sum of the
time limits under Article 234 §§ 1 5 and Article
242 § 3 of the Code. An exception could occur only if the
duration of the investigation was extended, exceptionally, to more
than six months by the head of a regional or higher prosecutor’s
office or a person designated by him or her (Article 234 § 3 of
the Code). Only then would the repeal lead to a restriction of a
procedural right and raise the question whether, in the light of
Article 31 § 4 of the Constitution and Article 18 of the
Convention, that restriction did not exceed what was required for the
administration of justice.
The Constitutional Court does not accept the argument
that the legislative change destroys the right of the accused to have
their cases examined within a ‘reasonable time’, as
required under Article 6 § 1 of the Convention. The [2005] Code
of Criminal Procedure laid down the basic principle that cases are to
be examined and decided within a reasonable time, requiring the
authorities in charge of pre trial investigations to comply with
procedural time limits (Article 22 of the Code). The
constitutional amendments in 2006 and the new [Judiciary Act],
adopted in 2007, put in place additional safeguards for the faster
examination of cases and for avoiding their undue protraction. The
repeal of [Articles 368 and 369 of the Code] does not affect that
system of rules. Its aim was to improve the law in order to ensure
good justice, which is [a legitimate aim].
The main weakness of the repealed procedure was that it
used a formal, purely quantitative criterion to measure ‘reasonable
time’ during the pre trial phase of the proceedings. It is
true that in most cases such an approach would lead to a correct
assessment – something fully logical in view of the fact that
under the rules of procedure a person can be charged only if there
already exists ‘enough evidence’ that he or she is
guilty. However, in some complex cases that criterion might, contrary
to the public interest that all offenders be brought to justice, give
the accused an undue advantage – for instance in cases in which
it proves to be genuinely difficult to trace and charge accomplices,
cases in which the need arises to gather additional evidence,
including through letters rogatory, cases in which the accused has
slowed down the proceedings, etc. It is no wonder that the case law
of the European Court of Human Rights under Article 6 § 1 of the
Convention is quite flexible. That Court uses three criteria to
assess the relevant period: the factual and legal complexity of the
case, the conduct of any authorities involved and the conduct of the
person concerned [(see Eckle v. Germany, 15 July 1982, Series
A no. 51; Zimmermann and Steiner v. Switzerland, 13 July
1983, Series A no. 66; Kreps v. Poland, no. 34097/96, 26 July
2001; and S.H.K. v. Bulgaria, no. 37355/97, 23 October 2003)].
It is equally possible to exceed a reasonable time while formally
complying with the applicable time limits and to comply with the
‘reasonable time’ requirement while exceeding the
applicable time limits. The European Court of Human Rights finds
breaches of the ‘reasonable time’ requirement only on the
basis of delays attributable to the authorities. In view of that, the
Constitutional Court considers that by repealing [Articles 368
and 369] of the [2005] Code of Criminal Procedure the
legislature sought to achieve a constitutionally legitimate aim –
to ensure the interests of justice while taking into account the
right to ‘a hearing within a reasonable time’, as
construed by the European Court of Human Rights. In so far as in
exceptional cases the new legal framework could restrict the rights
of the accused, one should take into account that there exists a
balancing mechanism, namely the requirement under Article 234 §§
8 and 9 of the [Code] for all preventive measures [such as pre trial
detention or house arrest] to be set aside after the expiry of
time limits that are identical to those under the repealed
provisions.
It is also important to examine whether the repeal of
the possibility for accused persons to request that their case be
brought for trial does not create a lacuna in the law, in breach of
the requirement of Article 13 of the Convention for effective
remedies in respect of the rights and freedoms enshrined in the
Convention and in particular the right of those charged with criminal
offences to have their cases examined within a reasonable time. In
its case law the European Court of Human Rights has held that
remedies are effective if they can prevent the alleged violation or
its continuation, or provide adequate redress for any violation that
has already occurred [(see Kudła v. Poland [GC], no.
30210/96, § 158, ECHR 2000 XI)]. In a number of judgments,
that Court has noted that before the introduction of Article 239a of
the [1974] Code of Criminal Procedure our State did not make
available a remedy complying with the requirements of Article 13,
read in conjunction with Article 6 § 1 of the Convention and
capable of ensuring that the pre trial phase of criminal
proceedings does not exceed a reasonable time [(see Osmanov and
Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, 23
September 2004; Mitev v. Bulgaria, no. 40063/98, 22
December 2004; and Sidjimov v. Bulgaria, no. 55057/00, 27
January 2005)]. In those circumstances, the answer to the above
question depends on whether, from the creation of that remedy in 2003
until its abolition in 2010, the State has created alternative
mechanisms ensuring the availability of effective remedies in respect
of the right to have charges examined within a reasonable time during
the pre trial phase of criminal proceedings. In [our] view, that
has been done, as far as rules are concerned. An amendment to the
Constitution [which came into force in February 2007] created a new
independent body, the Inspectorate attached to the Supreme Judicial
Council, which may act pursuant to requests by the persons concerned,
a category which includes those charged with a criminal offence. That
Inspectorate checks the work of the judicial authorities and has the
power to report and make proposals to all State authorities,
including the competent judicial authorities (Article 132a §§
6 and 9 of the Constitution). The Inspectorate’s powers have
been laid down in more detail in the new [Judiciary Act]. It may now
check ‘the way in which judicial, prosecutorial and
investigation case files are being opened and processed, as well as
their completion within the prescribed time limits’
(section 54(1)(2) of the Act). Under section 58(3) of the Act,
the results of such checks have to be made available not only to the
judge, prosecutor or investigator concerned, but also to the head of
the relevant department of the judiciary. That head must then inform
the chief inspector whether any recommendations given have been
complied with within the time limit set in the Inspectorate’s
report (section 58(4) of the Act). If it is necessary to prevent or
overcome an undue delay during the pre trial phase of criminal
proceedings, the authority in charge of ensuring compliance with the
Inspectorate’s directions is the head of the relevant
department of the prosecuting authorities. He or she has the power to
take various measures: organisational (under section 136(4) of the
Act), disciplinary (to impose certain light sanctions under section
311(1) of the Act or to initiate disciplinary proceedings before the
Supreme Judicial Council) and procedural (to set aside or vary the
decisions of the lower prosecutors, to give mandatory directions or
personally to take the necessary procedural steps, as possible under
Article 46 § 3 of the [2005] Code of Criminal Procedure, [or] to
exercise control over the activities of the investigating authorities
in line with Articles 196 and 197 of the [same Code]). It can
therefore be accepted that the repeal of [Articles 368 and 369 of the
Code] does not lead to a legal vacuum incompatible with Article 13 of
the Convention. Naturally, the mere existence of rules does not
preclude the risk of future judgments in which the European Court of
Human Rights will find violations in respect of Bulgaria. All State
authorities must take into account the general statement made in
Kudła, cited above, namely that the remedy required by
Article 13 must be effective in practice as well as in law.”
E. The 1988 State Responsibility for Damage Act
Section 1 of the 1988 State and Municipalities
Responsibility for Damage Act (“the 1988 Act”), as in
force since July 2006, provides as follows:
“The State and the municipalities shall be liable
for damage caused to individuals and legal persons by unlawful
decisions, actions or omissions by their organs and officials,
committed in the course of or in connection with the performance of
administrative action.”
Section 2(1)(2) of the Act provides as follows:
“The State shall be liable for damage caused to
individuals by organs of [the investigation], the prosecution and the
courts through unlawful:
...
2. bringing of criminal charges, if the
person concerned has been acquitted or if the criminal proceedings
are discontinued because the offence was not committed by the person
concerned, or [that person’s] act does not constitute a
criminal offence...”
Individuals who have been acquitted or had the
proceedings against them discontinued on one of the grounds set forth
in section 2(1)(2) – which, according to an interpretative
decision of the Supreme Court of Cassation (тълк.
реш. № 3 от 22 април
2005 г. по тълк.
гр. д. № 3/2004 г.,
ОСГК на ВКС),
include discontinuance because the
charges have not been made out – can obtain compensation for
the mere fact that criminal proceedings have been instituted against
them. According to the same decision, compensation is due in respect
of the proceedings themselves and in respect of any incidental
measures, such as pre trial detention. The decision also says
that compensation is due in cases of partial acquittal, where there
is an established causal link between the charges in respect of which
a person has been acquitted and the damage sustained.
In several judgments given between 2005 and 2008 the
Supreme Court of Cassation, when fixing the amount of damages it
awarded pursuant to such claims, had regard to, among other factors,
the length of the proceedings (реш.
№ 1599 от 22 юни 2005 г. по
гр. д. № 876/2004 г., ВКС,
IV г. о.; реш. № 1017 от
15 декември 2005 г.
по гр. д. № 524/2004 г.,
ВКС, IV г. о.; реш. №
2851 от 23 януари
2006 г. по гр. д. № 2252/2004
г., ВКС, IV г. о.; реш.
№ 429 от 30 март 2006 г.
на гр. д. № 3163/2004
г., ВКС, IV г. о.; реш.
№ 156 от 10 май 2006 г. по
гр. д. № 2633/2004
г., ВКС, IV г. о.; реш.
№ 1557 от 27 декември
2006 г. по гр. д. №
2800/2005 г., ВКС, IV г. о.; реш.
№ 1323 от 27 ноември
2007 г. по гр. д. №
1400/2006 г., ВКС, I г. о.; реш.
№ 148 от 11 февруари
2008 г. по гр.
д. № 1518/2007 г., ВКС, V г.
о.; реш. № 692 от 12 май
2008 г. по гр. д. №
2394/2007 г., ВКС, IV г. о.). The
examination of those claims lasted between three and seven years in
total.
F. The 1968 Criminal Code
Under Article 54 § 1 of the 1968 Criminal Code,
when sentencing a convicted offender the court has to fix the
punishment within the limits set by law, by reference to the Code’s
general rules and taking into account the dangerousness of the
offence and of the offender, the motives, as well as all other
aggravating and mitigating circumstances.
Article 219 § 1 of the Code makes it an offence
for officials or managers to fail to take due care in managing or
keeping secure the assets entrusted to them, where such failure
results in substantial losses, destruction or dissipation of such
assets, or other substantial damage to the undertaking or the
economy. The punishment can be up to three years’ imprisonment.
Article 219 § 3 provides that if the offence has been committed
wilfully, it is punishable by up to eight years’ imprisonment.
Article 219 § 4 provides that if the offence is particularly
serious, the punishment ranges between one and five years if the
offence has been committed negligently, and one and ten years if it
has been committed wilfully.
III. RELEVANT COUNCIL OF EUROPE MATERIAL
A. Committee of Ministers
On 2 December 2010, during its 1100th meeting, the
Committee of Ministers of the Council of Europe adopted an Interim
Resolution on the execution of the judgments of the European Court of
Human Rights concerning the excessive length of judicial proceedings
in eighty four cases against Bulgaria (CM/ResDH(2010)223). The
resolution reads:
“The Committee of Ministers, under the terms of
Article 46, paragraph 2, of the Convention for the Protection of
Human Rights and Fundamental Freedoms (hereinafter “the
Convention”),
Having regard to the number of judgments of the European
Court of Human Rights (“the Court”) finding Bulgaria in
violation of Article 6, paragraph 1 and Article 13 of the Convention
on account of the excessive length of judicial proceedings and the
absence of an effective remedy in this regard (see Appendix III to
this resolution);
Recalling that excessive delays in the administration of
justice constitute a serious danger, in particular to respect for the
rule of law and access to justice;
Recalling also its Recommendation Rec(2010)3 to member
states on the need to improve the effectiveness of domestic remedies
for excessive length of proceedings, and emphasising the importance
of this question where judgments reveal structural problems likely to
give rise to a large number of further similar violations of the
Convention;
Having examined the information supplied by the
Bulgarian authorities concerning the measures taken or envisaged in
response to those judgments (see Appendix I), including the
statistical data on the length of judicial procedures (see Appendix
II);
Assessment of the Committee of Ministers
I. Individual measures
Having noted the individual measures taken by the
authorities to provide the applicants redress for the violations
found (restitutio in integrum), in particular the acceleration, as
far as possible, of proceedings which were still pending after the
findings of violations by the Court;
Noting however with concern that the domestic
proceedings in seven cases are still pending before the domestic
courts and that the authorities have been unable to provide
information about two other cases (see Appendix I);
CALLED UPON the Bulgarian authorities to provide
for acceleration as much as possible of the proceedings pending in
these cases, in order to bring them to an end as soon as possible,
and to inform it of the progress of proceedings in the two
afore-mentioned cases;
II. General measures
1) Measures aimed at reducing the length
of judicial proceedings
Noting the numerous violations found by the Court on
account of the excessive length of civil and criminal proceedings in
Bulgaria, revealing certain structural problems in the administration
of justice at the time of the relevant facts;
Welcoming the numerous legislative reforms adopted by
the authorities in order to remedy these structural problems and in
particular the adoption of the new codes of criminal and civil
procedure (see Appendix I);
Welcoming likewise the other measures taken by the
authorities to increase the efficiency of the judicial system, and in
particular the establishment of assessment and monitoring mechanisms,
including the collection and analysis of statistical data;
Noting that the 2009 statistics show a reduction in the
backlog in the Bulgarian courts as a whole, and an increase in the
number of cases dealt with in the space of 3 months (see
Appendix II);
Noting however that, according to the statistics, the
backlog in the district courts located in regional centres has
increased slightly by reason of the substantial rise in the number of
cases registered, and that those courts were responsible for
examining half the cases pending in the country in 2009 (see Appendix
II);
Noting also that the legislative reforms introduced
between 2006 and 2010 have not yet produced their full impact on the
length of proceedings and that a longer period of time is needed
before the effectiveness of all the measures taken can be fully and
completely assessed;
ENCOURAGED the Bulgarian authorities to pursue
their efforts in following up the reforms introduced, in order to
consolidate their positive effects, in particular as regards the
situation in the district courts located in regional centres;
CALLED ON the authorities to continue to monitor
the effects of these reforms as it proceeds, with a view to adopting,
if appropriate, any further measure necessary to ensure its
effectiveness, and to keep the Committee informed of the developments
in this regard;
2) Measures relating to the effectiveness
of remedies
Recalling that the Court has found numerous violations
of the right to an effective remedy in contesting the excessive
length of proceedings in Bulgaria, revealing certain structural
problems in this field;
Recalling its Recommendation Rec(2010)3 encouraging
states to introduce remedies making it possible both to expedite
proceedings and to grant compensation to interested parties for
damage suffered;
Noting with interest that Articles 255 57 of the
Code of Civil Procedure provide that, if a court does not take a
procedural step in due time, the parties may at any time apply to the
superior court for a time-limit to be set for the taking of the
procedural step in question, thus affording a remedy designed to
speed up the civil proceedings (see Appendix I);
Noting also that there exist in criminal law certain
forms of non pecuniary redress, such as the possibility of
reducing the sanction, where there is a finding of excessive length
of proceedings;
Noting however that at the present time no domestic
remedy is available for expediting excessively lengthy criminal
proceedings or obtaining pecuniary compensation if appropriate (see
Appendix I);
Welcoming in this context the reform undertaken by the
authorities aimed at introducing into Bulgarian law a compensatory
remedy where excessive length of judicial proceedings is alleged (see
Appendix I);
INVITED the Bulgarian authorities to complete as
soon as possible the reform undertaken in order to introduce a remedy
whereby compensation may be granted for prejudice caused by excessive
length of judicial proceedings, and to keep the Committee informed of
its progress and of any other measure that may be envisaged in this
field;
Having regard to the foregoing, the Committee of
Ministers
DECIDED to resume its examination of progress
made at the latest:
– by the end of 2011, with regard to
the question of effective remedy;
– by mid 2012, with regard to the
question of the excessive length of judicial proceedings.”
An appendix to the resolution summarised the
information provided by the Bulgarian Government on the measures
taken by the Bulgarian authorities in that domain. It reads:
“I. Individual measures
The proceedings which were still pending before the
domestic courts at the time when the Court gave its judgments have
been terminated in most of the cases. At the present time, the
proceedings have not yet been terminated in the Belchev, Hamanov,
Nedyalkov, Valkov, Kamburov, Kavalovi and Merdzhanov cases.
Information is still awaited also on the state of progress in the
proceedings in the Kolev and Sidjimov cases.
II. General measures
1) Measures aimed at reducing the length
of proceedings
– Legislative measures
...
A new Code of Criminal Procedure (“CCrP”),
adopted in 2005, came into force on 29 April 2006. Like the new CCvP,
it aims in particular to speed up criminal proceedings. For example,
it prescribes short time-limits for the examination of a case and for
postponement of its examination (Articles 252, 271 and 345) and the
more widespread use of simplified procedures (Articles 356 361,
362 367 and 370 374). According to the 2009 report of the
president of the Supreme Court of Cassation on the work of the
courts, the simplified judicial procedures most often used in 2009 in
the field of criminal justice related to summary judicial
investigation and plea bargaining between the accused and the
prosecution (an agreement enabling the prosecution to be terminated
provided the court approves).
The other important provisions of the CCrP provide for:
– the obligation on the courts and
bodies responsible for the preliminary investigation to examine
criminal cases within a reasonable time; in addition, cases in which
the accused is held in detention must be given priority over other
cases by the courts examining and judging them (Article 22);
– time-limits for termination of the
preliminary investigation and prohibition on the use in court of any
evidence obtained outside the time-limit (Article 234);
– the introduction of summary judicial
investigation in courts of first instance; this procedure makes it
possible for the accused to obtain a reduction of sentence if he
admits the offence and relinquishes the production of evidence,
provided he is assisted by counsel (where necessary appointed by the
court);
– broader applicability of the
simplified procedure whereby the accused may be absolved of his
criminal responsibility and an administrative penalty imposed
instead.
Furthermore, the 2005 CCrP was amended in 2010 for the
purpose, in particular, of avoiding (a) unjustified referrals at the
preliminary investigation stage (Article 249 § 3) and (b)
postponement of the hearing where the representative of the accused
fails to appear without good reason (Article 94). In addition, it is
to be noted that now the possibility for the prosecution to bring
further charges during the judicial investigation has been widened,
even if those charges relate to different facts or an offence
carrying a more severe penalty (Article 287 § 1).
Some other changes are aimed at reducing the excessive
formalism of criminal procedure in Bulgaria (for example, the
abrogation of the requirement that the investigator draws up a formal
document setting out his conclusions – Articles 231 235).
– Administrative measures designed
to improve the organisation and management of the courts
Among other reforms designed to improve the efficiency
of the Bulgarian judicial system, should be mentioned the creation in
2007 of an electronic commercial register managed by an
administrative agency (see the commercial register law in force since
1 July 2007). Thus the regional courts which were responsible for
registering commercial companies in the past have been absolved of
that responsibility.
Furthermore, following the adoption of the new Code of
Administrative Procedure in 2006, 28 administrative courts were set
up in 2007. These new administrative courts have powers previously
exercised by the regional courts. In addition, as an ad hoc measure
aimed at lightening the workload of the Supreme Court of Cassation,
labour disputes pending before it when the 2007 CCvP came into force
have been transferred to the appeal courts.
It should also be pointed out that the judicial
authorities now have access to the national database containing the
population register, which should overcome certain delays arising
from requests for information needed to take judicial proceedings
forward.
Finally, Bulgaria has achieved a high level of
computerisation designed to assist both judges and other personnel
(for further details, see the 2010 report of the European Commission
for the Efficiency of Justice – CEPEJ). Moreover, the courts
are continuing their efforts to improve their IT equipment in order
to communicate with parties. Those efforts were recently rewarded by
the award of the 2010 “Crystal Scales of Justice” prize
to the Yambol administrative court for the work it has done to
improve users’ understanding of judicial procedure.
– Mechanisms for periodic assessment
and monitoring of the work of the courts
Two bodies – the Supreme Judicial Council
Inspectorate and the Ministry of Justice Inspectorate – have
the main responsibility for monitoring and assessing the work of the
courts, prosecution services and investigating magistrates.
The Supreme Judicial Council Inspectorate,
established in 2007, comprises an inspector general and ten
inspectors elected by Parliament for terms of five and four years
respectively (Article 132a of the Constitution). It oversees the
administrative organisation of the courts, prosecution services and
bodies in charge of preliminary investigations, together with the
proper organisation of preliminary investigations and cases pending
before prosecutors and courts. In particular, the inspectorate
oversees compliance with the time-limits laid down by law for dealing
with cases. It carries out its tasks (a) through planned regional
inspections and (b) through inspections focussing on particular
questions. It may also conduct inspections in response to reported
irregularities ([sections] 54 and 56 of the [2007 Judiciary Act]).
Following inspections, it makes recommendations,
particularly concerning compliance with the time limits laid
down by law for dealing with cases. Implementation of its
recommendations is monitored in the course of follow up
inspections. The inspectorate may also make proposals to courts’
administrative authorities and to the Judicial Service Commission for
the imposition of disciplinary penalties on judges, prosecutors and
investigating magistrates (see “Disciplinary measures”
below). The work of the inspectorate is covered in the progress
report of the Supreme Judicial Council.
The Ministry of Justice Inspectorate oversees,
among other things, the manner in which case registration and
handling are managed, as well as closure of cases within the legal
time-limits. This inspectorate organises thematic controls in
accordance with a programme approved by the Ministry of Justice. It
may make recommendations and supervises their implementation in the
course of subsequent inspections.
The Ministry of Justice Inspectorate is also responsible
for overseeing application of the new CCvP and CCrP. During
inspections already carried out, it has observed some of the causes
of procedural delays and made recommendations in this regard.
Furthermore, the presidents of the Supreme Court of
Cassation and the Supreme Administrative Court are required to
present annual reports on the functioning of trial and appeal courts,
in addition to annual reports on their own activities
([sections 114(1) and (2) and 122(1) and (2)] of the [2007
Judiciary Act]). Lastly, each year the Supreme Judicial Council
centralises and analyses the statistics on the work of all the
country’s courts (cf. Appendix II).
– Disciplinary measures
Under the [2007 Judiciary Act], systematic failure to
comply with the time-limits laid down in procedural laws, and action
or inaction such as to delay proceedings in an unjustified manner,
are disciplinary offences ([section] 307 § 4). The Judicial
Service Commission has the power to impose disciplinary penalties
(other than comment and reprimand, which are imposed by the
hierarchical superior) on judges, prosecutors and investigating
judges. The public bodies responsible for enforcing judicial
decisions and the bodies responsible for entries in the land registry
may be sanctioned by the Ministry of Justice ([section] 311).
The authorities have stated that during the period
2007 2009 the number of disciplinary proceedings before the
Supreme Judicial Council rose steadily (13 in 2007, 28 in 2008 and 83
in 2009). By way of example, in 2009 seven judges and one head of
administration were sanctioned, mainly for systematic failure to
comply with the time-limits laid down by law. Among them, three
judges were dismissed and three others had their salaries reduced by
10 to 25% for periods of up to a year.
– Long term strategies
The Bulgarian authorities have adopted several
strategies on judicial reforms. For example, a criminal policy
strategy for the period 2010 2014 has been adopted, the
principal objective being to further reduce the excessive formalism
of criminal procedure. It should be noted that the amendments to the
2010 CCrP were decided on the basis of this strategy (see above).
Further, in 2009 the government adopted a plan to
eradicate the causes of violations of the Convention found by the
European Court in its judgments concerning Bulgaria. That plan was
drawn up by a working party which included representatives of the
Ministry of Justice as well as human rights activists. Among the
tangible results obtained on the basis of this plan, should be
mentioned the working party set up to introduce an application for
compensation in cases of excessive length of judicial proceedings
(see below). In June 2010 the government adopted the strategy on
continued judicial reforms in Bulgaria following its accession to the
European Union.
2) Measures relating to the effectiveness
of remedies
...
– Remedy concerning speeding up of
criminal proceedings
The provisions of Articles 368 and 369 of the new CCrP,
which incorporated Article 239a of the 1974 CCrP, envisaged the
possibility for the accused to request referral of his case to the
competent court once a period of 1 to 2 years, depending on the
gravity of the charges, had elapsed since the start of the
preliminary inquiry. The court to which that request was submitted
could order the prosecuting authority to complete the preliminary
inquiry within a period of two months or else bring the criminal
proceedings to an end.
In the Ganchev judgment (No. 57855, §§
26-34, 12 July 2007), the European Court declared the complaint based
on Article 6 § 1 inadmissible for failure to exhaust the
domestic remedies, because the applicant had not availed himself of
the remedy provided for in Article 239a of the 1974 CCrP. However, it
should be noted that in another case examined by the European Court
(Shishkovi against Bulgaria, No. 17322/04, 25 March
2010), the application of Article 239a of the 1974 CCrP was the cause
of the closure of a criminal inquiry into ill treatment. In that
case the European Court found a violation of Article 3 of the
Convention.
Articles 368 and 369 were abrogated as from 28 May 2010.
The authorities indicated in this connection that the abrogated
provisions had mainly served as a reason for terminating the criminal
proceedings, without guaranteeing a full inquiry. They consider that
new provisions relating to the possibility of imposing disciplinary
penalties for systematic failure to comply with time limits or
for unjustified delays could be seen as a guarantee of expeditious
criminal proceedings (for more details, see the Government’s
reply to one NGO’s observations on this point on the Committee
of Ministers website: DH DD(2010)335).
– Compensatory remedy
The European Court has consistently pointed to the
absence in Bulgarian law of a remedy enabling compensation to be
obtained for excessive length of judicial proceedings (see, for
example, the Mincheva against Bulgaria judgment cited above,
§ 107).
In this connection the Government has indicated that, in
the context of implementing a plan to eradicate the causes of the
violations found by the European Court in judgments concerning
Bulgaria, it has set up a working party to prepare a bill amending
the law on the responsibility of the state and municipalities for
prejudice caused to individuals. This bill envisages, in particular,
the introduction of an application for compensation in cases of
unjustified delay in the proceedings. This working party has drafted
a bill providing that the state may be held responsible, in addition
to the cases already settled, where unjustified delay in civil,
criminal and administrative proceedings are attributable to the
judicial authorities.
As regards criminal proceedings, it should also be noted
that certain forms of non pecuniary redress exist in cases of
excessive length of proceedings, such as the possibility of reducing
the penalties. This form of redress has been recognised by the
European Court as an effective remedy in certain circumstances
(Bochev against Bulgaria judgment of 13 November 2008, §
83).”
A second appendix to the resolution contained
statistical data on the processing of cases in the Bulgarian courts.
It reads (footnotes omitted):
“I. Statistics on length of
judicial proceedings before the Bulgarian courts
1) Data for Bulgarian courts as a whole
The general trend which emerges from the data available
shows that, despite a resurgence in the number of cases registered,
the number of cases terminated for all courts is on the increase (in
2009 it was 4.59% higher than in 2007, and 15.46% higher than in
2008). Similarly, the backlog facing the courts as a whole decreased
for the second year running. Thus the decrease in the number of cases
pending at the end of 2009 is of 10.26% as compared with 2007 and of
2.35% as compared with 2008.
The number of judges, taking all courts together, was
2,162 in 2009, 1.45% more than in 2007 and 1.74% more than in 2008.
2) Supreme Court of Cassation
– Criminal bench
One consequence of the entry into force of the 2005 CCrP
was a fall in the number of cases registered, since judgments
delivered on appeal upholding the judgments delivered at first
instance are now not subject to review by the Supreme Court of
Cassation. Thus, while the criminal bench had examined 3,950 cases at
public hearings in 2006, the corresponding figures for 2008 and 2009
were 2,081 and 1,955 cases respectively.
In 2009 the criminal bench registered 131 cases more
than in 2008, and its backlog also increased (from 279 cases at the
end of 2008 to 383 cases at the end of 2009). However, that increase
in the backlog had no major effect on the length of proceedings
before the criminal bench. Indeed, in 2009, the proceedings following
appeals in cassation and applications for reopening of procedures
took between 3 and 4 months, as in 2008.
...
4) Appeal courts
The backlog in the appeal courts is constantly
decreasing. The number of cases pending at the end of 2009 (1,713)
decreased by 45.89% as compared with 2007 and by 22.28% as compared
with 2008.
5) Military [courts]
The same trend is observed in military [courts]. In
2009, the backlog decreased by 52.07% as compared with 2007 and by
35.20% as compared with 2008.
6) Regional courts and the Sofia City
[C]ourt
The creation in 2007 of 28 administrative courts, as
well as an agency responsible for entries in the commercial register,
led to a significant decrease in the number of cases registered by
regional courts in 2009 (42.73% fewer than in 2007 and 2.64% fewer
than in 2008). Cases pending at the end of 2009 numbered 23,392, a
figure 31.76% lower than in 2007 and 15.99% lower than in 2008.
7) District courts located in regional
centres
The backlog in these courts at the end of 2009 had grown
by 1.05% as compared with 2007 and by 7.03% as compared with 2008.
This increase is due to the rise in the number of cases they had to
deal with in 2009 (23.05% more than in 2007 and 18.29% more than in
2008), and despite a larger number of cases terminated during that
year (28.36% more than in 2007 and 20.70% more than in 2008).
In 2009 the district courts located in regional centres
registered 285,547 cases; 94,317 cases were registered by the Sofia
district court, i.e. 33% of all cases newly registered with the
courts in this category.
8) District courts located outside
regional centres
The backlog in these courts at the end of 2009 had
fallen (by 12.64% as compared with 2007 and by 7.54% as compared with
2008) notwithstanding an increase in the number of cases they had to
deal with (11.30% more than in 2007 and 15% more than in 2008).
This trend was due to the increase in the number of
cases terminated in 2009 (16.47% more than in 2007 and 19.72% more
than in 2008). It is also to be noted that in 2009, 92,541 cases were
concluded within three months, a figure 22.88% higher than for 2007
and 25.71% higher than for 2008.
...
II. Statistics for the length of
preliminary investigations
In 2009, cases in which the preliminary investigation
was under way numbered 213,151, a figure 4% higher than for 2008.
Investigations started during 2009 numbered 139,894, 6% more than for
2008. Investigations initiated during the year represented 66% of
investigations under way in 2009. The backlog at the start of 2009
consisted of 73,257 cases being investigated. The backlog at the end
of 2009 consisted of 52,511 cases being investigated (as against
59,048 in 2007).
As regards cases in which the investigation was
suspended, their number fell from 961,713 in January 2007 to 654,334
at the end of 2009. In 98% of these cases, the reason for suspension
is the impossibility of identifying the perpetrator of the criminal
offence.”
B. Parliamentary Assembly
In Resolution 1787 (2011) on the implementation of the
Court’s judgments, adopted on 26 January 2011, the
Parliamentary Assembly of the Council of Europe noted “with
grave concern” the continuing existence of “major
systemic deficiencies which cause large numbers of repetitive
findings of violations of the Convention and which seriously
undermine the rule of law” in some Member States of the Council
of Europe. One of those was the “excessive length of judicial
proceedings” (paragraph 5.1). The Assembly, in particular,
urged Bulgaria to, inter alia, “pursue its efforts to
solve the problem of excessive length of court proceedings”
(paragraph 7.1 in fine).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained that the criminal charges against them had not
been determined within a reasonable time. They relied on Article 6 §
1 of the Convention, which provides, in so far as relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
1. Mr Dimitrov’s complaint
The
Government drew attention to the fact that Mr Dimitrov had entered
into a plea agreement with the prosecution, thus profiting from the
more favourable treatment that such an agreement entailed. They
pointed out that plea agreements were intended to prevent lengthy
proceedings, and required the express waiver by the accused of his
right to be tried.
The
applicants submitted that there was no indication that the duration
of the proceedings had played any part in the conclusion of the case
by means of a plea bargain or had been taken into account by the
Plovdiv District Court in approving the bargain.
The
Court observes that a decision or measure favourable to an applicant
is not in principle sufficient to deprive him of his status as a
victim unless the national authorities have acknowledged, either
expressly or in substance, and then afforded redress for, the breach
of the Convention (see, among many other authorities, Scordino v.
Italy (no. 1) [GC], no. 36813/97, § 180, ECHR
2006 V). The Court does not doubt that the plea bargain between
Mr Dimitrov and the prosecution (see paragraph 15 above) prevented
further delay in the determination of the criminal charges against
him. It also probably led to a more lenient punishment than the one
that he might have received if his case had gone to trial. It is a
common feature of European criminal justice systems for a criminal
defendant to receive a reduction in his or her sentence for a guilty
plea in advance of trial (see Babar Ahmad and Others v. the United
Kingdom (dec.), nos. 24027/07, 11949/08 and 36742/08, § 168,
6 July 2010, with further references). However, the plea bargain
cannot be regarded as amounting to an acknowledgement of a failure on
the part of the authorities to determine the criminal charges against
Mr Dimitrov within a reasonable time, or as having afforded him
express and measurable redress in relation to that (see, mutatis
mutandis, Kozarov v. “the former Yugoslav Republic of
Macedonia” (dec.), no. 64229/01, 10 November 2005).
Mr
Dimitrov may therefore still be regarded as a victim of an alleged
breach of his right to a hearing within a reasonable time.
The
Court further considers that Mr Dimitrov’s complaint is not
manifestly ill founded within the meaning of Article 35 § 3
(a) of the Convention or inadmissible on any other grounds. It must
therefore be declared admissible.
2. Mr Hamanov’s complaint
The
Government submitted that Mr Hamanov could no longer claim to be a
victim of a violation of his right to a hearing within a reasonable
time. They pointed out that when sentencing the applicant, the
Plovdiv Regional Court had mentioned, as a mitigating circumstance,
the long time during which he had been criminally prosecuted. Taking
into account all aggravating and mitigating circumstances, the court
had imposed a sentence below the mean envisaged in respect of the
chief offence of which Mr Hamanov had been convicted. That
approach had been representative of a steady practice of the
Bulgarian courts in recent years. In the Government’s view,
this case could be distinguished from the cases of Mladenov v.
Bulgaria (no. 58775/00, § 32, 12 October 2006) and
Sheremetov v. Bulgaria (no. 16880/02, § 34, 22 May 2008),
where the Court had not been satisfied that the authorities had
acknowledged the breach of the reasonable time requirement of
Article 6 § 1, in three respects. First, the Court had already
found, in Hamanov (cited above), that the proceedings had been
unreasonably long, and that finding had been taken into account by
the domestic courts. Secondly, the criminal case against Mr Hamanov
had been of considerable complexity. Thirdly, the part of the
proceedings which post dated the Court’s judgment in
Hamanov (cited above) had not been unreasonably long.
The
applicants replied that the brief and general statement made by the
Plovdiv Regional Court had not amounted to an acknowledgement that
Article 6 § 1 of the Convention had been breached. In
particular, the court had not said that the length of the proceedings
had been attributable to the conduct of the authorities, and had not
specified what weight it had given to that length when reducing Mr
Hamanov’s sentence. Applicants should not be stripped of their
victim status as a result of a mere mention of the duration of the
proceedings in the domestic courts’ reasoning concerning the
determination of their sentence, because the Court would be unable to
assess the extent to which that factor had been taken into account.
In the applicants’ view, loss of victim status in such
circumstances should be predicated on a clear indication by the
national courts as to the weight of the length factor in the
reduction of the sentence, and a clear recognition by those courts
that Article 6 § 1 has been breached.
According to the Court’s case law,
mitigation of sentence granted on account of the excessive length of
proceedings may deprive the individual concerned of his or her status
as a victim when the national authorities acknowledge in a
sufficiently clear way the failure to observe the reasonable time
requirement of Article 6 § 1 and afford redress by reducing the
sentence in an express and measurable manner (see Eckle v.
Germany, 15 July 1982, § 66, Series A no. 51, and, more
recently, Bochev v. Bulgaria, no. 73481/01, § 81, 13
November 2008, with further references).
In the instant case, the Court is not satisfied that
the statement of the Plovdiv Regional Court amounted to such an
acknowledgement. That court did not analyse the point in any detail,
did not make reference to Article 6 § 1, and did not find
that the excessive length of the proceedings had infringed Mr
Hamanov’s right to a trial within a reasonable time (see
paragraph 26 above). Although it acknowledged that the criminal
prosecution against Mr Hamanov had lasted a long time and mentioned
that a long period had elapsed since the commission of the offence,
it did not specify whether this had been attributable to the
authorities’ conduct (see Mladenov, § 32, and
Sheremetov, § 34, both cited above, and contrast
Hadjiiski and Iliev v. Bulgaria (dec.), nos. 68454/01 and
68456/01, 2 June 2005; Terziiski and Others v. Bulgaria
(dec.), no. 1509/05, 30 September 2008; Bochev, cited above,
§§ 16, 18 and 82; and Pfeifer v. Bulgaria (dec.),
no. 24733/04, 10 November 2009).
Nor is the Court persuaded that the Plovdiv Regional
Court’s finding concerning the length of the proceedings
against Mr Hamanov had a decisive and measurable impact on his
sentence. As evident from its reasoning, that court took the length
of the proceedings into account amongst a number of other mitigating
circumstances (see paragraph 26 above). While it is true that Mr
Hamanov’s sentence was below the mean punishment envisaged by
the 1968 Criminal Code for the chief offence of which he was
convicted (see paragraph 51 above), it is not clear from the court’s
reasoning whether the time/delay element amounted to a primary ground
to mitigate the sentence. The Court cannot therefore find that the
reduction on account of the length factor was measurable and had a
decisive impact on Mr Hamanov’s sentence. He cannot therefore
be regarded as having been afforded quantifiable redress for the
alleged breach of his right to a hearing within a reasonable time
(see Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001 X;
Lehtonen v. Finland, no. 11704/03, § 16, 13 June
2006; Donner v. Austria, no. 32407/04, § 27, 22 February
2007; Taavitsainen v. Finland, no. 25597/07, §§ 30
and 31, 8 December 2009, and contrast DZelili v. Germany, no.
65745/01, §§ 101 03, 10 November 2005; Cordier v.
Germany (dec.), no. 71741/01, 19 January 2006; Bochev,
cited above, § 83; Kaletsch v. Germany (dec.), no.
31890/06, 23 June 2009; and Stein v. Germany (dec.), no.
12895/05, 7 July 2009). Moreover, the question whether the alleged
redress was sufficient to make good a violation resulting from the
entire length of the proceedings can be decided only at their close.
The reduction of Mr Hamanov’s sentence by the first instance
court could not remedy any delays that occurred later, when the case
was heard on appeal (see Uoti v. Finland, no. 61222/00, §
31, 9 January 2007).
The fact this Court has already found a breach of the
reasonable time requirement of Article 6 § 1 in relation to
an earlier phase of the criminal proceedings against Mr Hamanov is
irrelevant in this context. The same goes for the assertions that the
case was complex and that the proceedings post dating the
Court’s judgment in Hamanov (cited above) were not
unreasonably lengthy. They concern the merits of the complaint and
are of no significance for determining the applicant’s
continuing victim status (see, mutatis mutandis, Corigliano
v. Italy, 10 December 1982, § 31, Series A no. 57).
It
follows that the Government’s objection must be rejected.
The
Court further considers that Mr Hamanov’s complaint is not
manifestly ill founded within the meaning of Article 35 § 3
(a) of the Convention or inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. General principles
The
“reasonable time” guarantee of Article 6 § 1 serves
to ensure public trust in the administration of justice. The other
purpose of the guarantee is to protect all parties to court
proceedings against excessive procedural delays; in criminal matters,
especially, it is designed to avoid that a person charged with a
criminal offence should remain too long in a state of uncertainty
about his or her fate (see Stögmüller v. Austria,
10 November 1969, p. 40, § 5, Series A no. 9). It
underlines the importance of administering justice without delays
which might jeopardise its effectiveness and credibility (see
Guincho v. Portugal, 10 July 1984, § 38 in fine,
Series A no. 81; H. v. France, 24 October 1989, § 58,
Series A no. 162 A; Moreira de Azevedo v. Portugal, 23
October 1990, § 74, Series A no. 189; Katte Klitsche de
la Grange v. Italy, 27 October 1994, § 61, Series A no.
293 B; Bottazzi v. Italy [GC], no. 34884/97, § 22,
ECHR 1999 V; Niederböster v. Germany, no.
39547/98, § 44, ECHR 2003 IV (extracts); and Scordino
(no. 1), cited above, § 224).
The reasonableness of the duration of proceedings must
be assessed in the light of the particular circumstances of each case
and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and the relevant authorities, and
what was at stake for the applicant in the litigation (see, among
many other authorities, Scordino (no. 1),
cited above, § 177).
The
States have the duty to organise their judicial systems in such a way
that their courts can meet each of the requirements of Article 6 §
1 of the Convention, including the obligation to hear cases within a
reasonable time (see, among many other authorities, Bottazzi,
§ 22, and Scordino (no. 1), § 183,
both cited above). They are responsible for delays attributable to
the conduct of their judicial or other authorities (see, by way of
example, Foley v. the United Kingdom, no. 39197/98, §§
38 39, 22 October 2002). They are also responsible for
delays in the presentation of the opinions of court appointed
experts (see Capuano v. Italy, 25 June 1988, § 32, Series
A no. 119, and Nibbio v. Italy, 26 February 1992, § 18,
Series A no. 228 A). A State may thus be found liable not only for
delay in the handling of a particular case, but also for a failure to
increase resources in response to a backlog of cases, or for
structural deficiencies in its judicial system that cause delays (see
Zimmermann and Steiner v. Switzerland, 13 July 1983,
§§ 29 32, Series A no. 66; Guincho, cited
above, §§ 39 41; and Pammel v. Germany, 1
July 1997, §§ 69 72, Reports of Judgments and
Decisions 1997 IV). Tackling the problem of unreasonable
delay in judicial proceedings may thus require the State to take a
range of legislative, organisational, budgetary and other measures.
In
that connection, it should be emphasised that a failure to deal with
a particular case within a reasonable time is not necessarily the
result of omissions on the part of individual judges, prosecutors or
investigators. For instance, while in some cases delays may result
from the lack of diligence on the part of the investigator,
prosecutor or judge in charge of a particular case (see, by way of
example, B. v. Austria, cited above, §§ 52 54,
and Reinhardt and Slimane-Kaïd v. France, 31 March 1998,
§ 100, Reports 1998 II), in others the delays may
stem from the State’s failure to place sufficient resources at
the disposal of its judicial system (see, by way of example,
Zimmermann and Steiner, cited above, §§ 30 32),
or allocate cases in an efficient manner (see, by way of example,
Georgiadis v. Cyprus, no. 50516/99, § 46, 14 May
2002).
2. Mr Dimitrov’s case
Mr
Dimitrov was subject to a “charge” from the day when he
was arrested and confessed to taking part in the commission of the
offence – 21 September 1995 (see paragraph 7 above; and,
as regards arrest as a starting point, see Ewing v. the United
Kingdom, no. 11224/84, Commission’s report of 6 October
1987, Decisions and Reports (DR) 56, p. 71, at pp. 84 85, §
145, and Crowther v. the United Kingdom, no. 53741/00, §§
8 and 26, 1 February 2005; as regards police interview and confession
as a starting point, see Howarth v. the United Kingdom,
no. 38081/97, §§ 8, 9 and 20, 21 September 2000;
Martins and Garcia Alves v. Portugal, no. 37528/97, §§
9, 10 and 20, 16 November 2000; Myashev v. Bulgaria, no.
43428/02, § 15, 8 January 2009; Yankov and Manchev v.
Bulgaria, nos. 27207/04 and 15614/05, §§ 18 and 24,
22 October 2009; Stefanov and Yurukov v. Bulgaria, no.
25382/04, §§ 4 and 14, 1 April 2010; and Rangelov and
Stefanov v. Bulgaria, no. 23240/04, §§ 5 and 14, 1
April 2010). The proceedings ended on 18 May 2006 (see paragraph 15
above). The period to be considered thus lasted ten years and almost
eight months, for a preliminary investigation and one level of court.
The
criteria for assessing the reasonableness of that period have been
set out in paragraph 71 above.
The
applicants presented a number of arguments as to the way in which
those criteria should apply in the present case. The Government, for
their part, acknowledged that the criminal proceedings against Mr
Dimitrov had been excessively lengthy, chiefly as a result of delays
attributable to the authorities.
The
Court observes that, at least between 1995 and 2002, the criminal
proceedings against Mr Dimitrov apparently did not have a significant
impact on him: there is no indication that he suffered any practical
consequences or damage as a result of the fact that there were
outstanding criminal charges against him. It does not appear that he
risked a serious sentence either. However, it cannot be overlooked
that the case was very simple, that Mr Dimitrov’s conduct was
not the source of any delays, and the authorities were responsible –
directly or indirectly – for all the delays. Between November
1995 and February 2002 the case remained dormant for no apparent
reason (see paragraphs 8, 9 and 10 above). The period of inactivity
between May 2002 and March 2005, while at first sight due to an
objective reason – a key witness and possible co accused
being abroad – cannot be considered justified, given that that
individual could have been interviewed during the five years between
the opening of the proceedings in 1995 and the time when he left
Bulgaria in 2000 (see paragraphs 12 and 13 above). Lastly, almost ten
months passed between the submission of the indictment and the first
trial hearing, at which the court approved the plea bargain between
Mr Dimitrov and the prosecution (see paragraphs 14 and 15 above). The
Government have not put forward any explanation for that gap.
There has therefore been a violation of Article 6 §
1 of the Convention.
3. Mr Hamanov’s case
This
is a second application by Mr Hamanov. His first one concerned, among
other things, the length of the criminal proceedings against him. It
resulted in a judgment in which the Court found, among other things,
a breach of Mr Hamanov’s right to a hearing within a reasonable
time. The Court’s conclusion was based on the length of the
proceedings from when they started in March 1996 until the latest
information from the parties in April 2003 (see Hamanov, cited
above, §§ 11 32 and 102 07). While as a
rule, when assessing whether proceedings are reasonable in length,
the Court looks at their actual duration up to the adoption of its
judgment (see Pailot v. France, 22 April 1998, § 57,
Reports 1998 II; S.A.GE.MA S.N.C. v. Italy, no.
40184/98, § 11, 27 April 2000; Rotondi v. Italy, no.
38113/97, § 13, 27 April 2000; S.A. v. Portugal,
no. 36421/97, § 22, 27 July 2000; and Geraldes Barba v.
Portugal, no. 61009/00, § 32, 4 November 2004), in that
case it did not consider the period between May 2003, the date of the
latest information from the parties, and 18 March 2004, the date of
the adoption of its judgment (see Hamanov, cited above, §§
102 03). The period to be considered in the present case thus
started in April 2003 (see paragraph 16 above). The proceedings ended
on 9 July 2008 (see paragraph 32 above). The period to be taken into
account in this case is therefore five years and approximately three
months, for three levels of jurisdiction.
The
criteria for assessing the reasonableness of that period have been
set out in paragraph 71 above.
The
parties presented a number of arguments as to the way in which those
criteria should apply in this case.
The
Court starts by noting that the importance of what was at stake for
the applicant, a serious criminal conviction and a long sentence of
imprisonment, is not in doubt. It also seems that the proceedings had
an impact on the applicant’s ability to practise his
profession.
On
the other hand, the Court observes that in Hamanov (cited
above, § 104), it noted that the case, which involved several
persons accused of having committed offences in relation to a number
of financial transactions, was factually and legally complex. In view
of that, a period of just over five years and three months for three
levels of jurisdiction does not appear prima facie
unreasonable.
However,
it cannot be overlooked that that period came after the criminal
proceedings against Mr Hamanov had already lasted more than seven
years, and had been found by the Court to be unreasonably lengthy by
reason of a number of unjustified delays (see Richard v. France,
22 April 1998, § 66, Reports 1998 II; Leterme v.
France, 29 April 1998, § 70, Reports 1998 III;
Henra v. France, 29 April 1998, § 70, Reports
1998 II; Ada Maccari v. Italy, no. 44464/98, § 11, 1
March 2001; S.A.GE.MA S.N.C, cited above, § 12, Rotondi,
cited above § 14; Lutz v. France (no. 2),
no. 49531/99, § 22, 17 June 2003; and Geraldes
Barba, cited above, § 38). There were no serious delays in
the proceedings before the Supreme Court of Cassation (see paragraphs
29 32 above). However, the same cannot be said of the
proceedings before the Plovdiv Regional Court and the Plovdiv Court
of Appeal. The Plovdiv Regional Court held eleven hearings. One of
those was adjourned for reasons attributable to the authorities, four
for reasons attributable to Mr Hamanov’s co accused, two
for reasons attributable to Mr Hamanov, and two because of the need
to gather additional evidence, with the result that the case remained
pending before that court for more than two and a half years (see
paragraphs 18 25 above). After that, there was a gap of about
fourteen months between the filing of the appeals against the Plovdiv
Regional Court’s judgment and the time when the Plovdiv Court
of Appeal heard those appeals (see paragraph 28 above). Part of that
delay was apparently due to the late handing down of the reasons for
the Plovdiv Regional Court’s judgment (see paragraph 26
in limine above). The Court considers that the
authorities could have done more to expedite the examination of the
case, which had started as early as March 1996 and had already been
beset by considerable delays (see Hamanov, cited above, §
105).
Having regard to the foregoing, the Court concludes
that the criminal charges against Mr Hamanov were not determined
within a reasonable time. There has therefore been a violation of
Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The applicants complained that they had not had
effective remedies in respect of the excessive length of the criminal
proceedings against them. They 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.”
A. The parties’ submissions
The
Government did not address that complaint in their observations.
The
applicants submitted that at the material time Bulgarian law did not
provide any remedies allowing them to speed up the proceedings
against them or obtain appropriate redress in respect of their
excessive duration. Unlike the 1952 Code of Civil Procedure, the 1974
Code of Criminal Procedure did not envisage a “complaint about
delays”. There was no possibility to claim compensation under
section 2 of the 1988 Act, because it did not envisage the excessive
duration of criminal proceedings as a cause of action. The Bulgarian
courts construed the causes of action under that provision strictly;
that was evident from the Supreme Court of Cassation’s
interpretative decision no. 3 of 2005.
B. The Court’s assessment
1. Admissibility of the complaints
The
Court considers that the applicants’ complaints are not
manifestly ill founded within the meaning of Article 35 § 3
(a) of the Convention or inadmissible on any other grounds. They must
therefore be declared admissible.
2. General principles
The
application of Article 13 of the Convention in this context began
with the Court’s judgment in Kudła v. Poland ([GC],
no. 30210/96, §§ 146 60, ECHR 2000 XI). A
comprehensive restatement of the relevant principles, as established
in Kudła and its progeny, may be found in the Court’s
judgment in the case of Sürmeli v. Germany ([GC], no.
75529/01, §§ 97 101, ECHR 2006 VII, with further
references):
(a) Under
Article 1 of the Convention, which provides that “[t]he High
Contracting Parties shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of [the]
Convention”, the primary responsibility for implementing and
enforcing the rights and freedoms guaranteed by the Convention is
laid on the national authorities. The machinery of complaint to the
Court is thus subsidiary to national systems safeguarding human
rights. This subsidiary character is articulated in Article 13
and Article 35 § 1 of the Convention;
(b) Article
13 of the Convention guarantees the availability at national level of
a remedy to enforce the substance of the Convention rights and
freedoms in whatever form they may happen to be secured in the
domestic legal order. The effect of Article 13 is thus to require the
provision of a domestic remedy to deal with the substance of an
“arguable complaint” under the Convention and to grant
appropriate relief. The effectiveness of a remedy within the meaning
of Article 13 does not depend on the certainty of a favourable
outcome for the applicant. Also, even if a single remedy does not by
itself entirely satisfy the requirements of Article 13, the aggregate
of remedies provided for under domestic law may do so. It is
therefore necessary to determine in each case whether the means
available to litigants in domestic law are “effective” in
the sense either of preventing the alleged violation or its
continuation, or of providing adequate redress for any violation that
has already occurred;
(c) Remedies
available to a litigant at domestic level for raising a complaint
about the length of proceedings are “effective” within
the meaning of Article 13 of the Convention if they prevent the
alleged violation or its continuation, or provide adequate redress
for any violation that has already occurred. A remedy is therefore
effective if it can be used either to expedite a decision by the
courts dealing with the case, or to provide the litigant with
adequate redress for delays that have already occurred (on that
point, see also Mifsud v. France (dec.) [GC], no. 57220/00,
ECHR 2002 VIII);
(d) The
best solution in absolute terms is indisputably, as in many spheres,
prevention. Where the judicial system is deficient with regard to the
reasonable time requirement in Article 6 § 1 of the
Convention, a remedy designed to expedite the proceedings in order to
prevent them from becoming excessively lengthy is the most effective
solution. Such a remedy offers an undeniable advantage over a remedy
affording only compensation since it also prevents a finding of
successive violations in respect of the same set of proceedings and
does not merely repair the breach a posteriori, as does a
compensatory remedy. Some States have understood the situation
perfectly by choosing to combine two types of remedy, one designed to
expedite the proceedings and the other to afford compensation (on
that point, see also Scordino (no. 1), cited above, §
186);
(e) Where
a domestic legal system has made provision for bringing a claim
against the State, such a claim must remain an effective, sufficient
and accessible remedy in respect of the excessive length of judicial
proceedings, and its sufficiency may be affected by excessive delays
and depend on the level of compensation.
3. Application of those principles to the present case
In
view of its findings under Article 6 § 1 (see paragraphs 78 and
85 above), the Court considers that the applicants’ complaints
concerning the length of the criminal proceedings against them were
arguable. They were therefore entitled to an effective remedy in that
regard.
The possibility for an accused to have his or her case
brought to trial or obtain a discontinuance of the proceedings if the
preliminary investigation is taking too long (see paragraphs 38 40
above) is the only remedy that the Court has found, in certain
situations, to be effective in relation to the length of criminal
proceedings in Bulgaria (see Ganchev v. Bulgaria, no.
57855/00, §§ 23 34, 12 April 2007; Iordan Iordanov
and Others v. Bulgaria, no. 23530/02, §§ 65 67, 2
July 2009; and Gerdzhikov v. Bulgaria, no. 41008/04, §
31, 4 February 2010). However, it would not have been able to provide
adequate redress to either applicant.
The bulk of the delay in Mr Dimitrov’s case took
place before the introduction of that remedy in June 2003 (see
paragraphs 8 10 above), and could not have been remedied through
it (see Mitev v. Bulgaria, no. 40063/98, § 158, 22
December 2004; Sidjimov v. Bulgaria, no. 55057/00, §
40, 27 January 2005; Karov v. Bulgaria, no. 45964/99, §
74 in fine, 16 November 2006; Vasilev and Others v.
Bulgaria, no. 61257/00, §§ 29 and 37 40, 8
November 2007; Atanasov and Ovcharov v. Bulgaria, no.
61596/00, §§ 57 58, 17 January 2008; Yankov v.
Bulgaria (no. 2), no. 70728/01, § 57, 7 February 2008;
Gavazov v. Bulgaria, no. 54659/00, §§ 164 65, 6
March 2008; Ivan Hristov v. Bulgaria, no. 32461/02, §§
36 37 and 45 48, 20 March 2008; Balabanov v. Bulgaria,
no. 70843/01, § 30, 3 July 2008; Yankov and Manchev v.
Bulgaria, nos. 27207/04 and 15614/05, § 32, 22 October 2009;
Rumen Georgiev v. Bulgaria, no. 27240/04, § 17, 14
October 2010; Kashavelov v. Bulgaria, no. 891/05, § 51,
20 January 2011; and Makedonski v. Bulgaria, no. 36036/04, §
58, 20 January 2011). Nor was the procedure capable of remedying
delays occurring during the judicial phase of the proceedings against
Mr Dimitrov.
The same goes for Mr Hamanov, whose case is a good
illustration of the remedy’s potential and limitations. One of
his co accused used the remedy shortly after it was introduced,
and his request served as a stimulus for the prosecuting authorities
promptly to submit an indictment against all eight accused (see
paragraph 17 above). However, that did not provide Mr Hamanov
any redress in respect of the delays which occurred before that, and
did not – indeed, could not – accelerate the proceedings
or prevent delays during the ensuing trial and appeals.
The Court has found in a number of judgments that,
apart from the above mentioned remedy, there are no acceleratory
remedies in respect of the length of criminal proceedings in Bulgaria
(see Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and
59901/00, § 38, 23 September 2004; Mitev, cited above, §§
158 59; Sidjimov, cited above, §§ 40 41;
Popov v. Bulgaria, no. 48137/99, § 91, 1 December 2005;
Nalbantova v. Bulgaria, no. 38106/02, § 34, 27
September 2007; Karamitrov and Others v. Bulgaria, no.
53321/99, § 58, 10 January 2008; Atanasov and Ovcharov,
cited above, §§ 56 and 57; Krasimir Yordanov v.
Bulgaria, no. 50899/99, § 35, 15 February 2007;
Gavazov, cited above, §§ 164 65; Petrov
v. Bulgaria, no. 15197/02, § 62, 22 May 2008; Kirov
v. Bulgaria, no. 5182/02, § 81, 22 May 2008;
Sheremetov, cited above, § 52; Balabanov, cited
above, §§ 30 and 32; Myashev, cited above, §
22; Valentin Ivanov v. Bulgaria, no. 76942/01, § 36,
26 March 2009; and Yankov and Manchev, cited above, §
32).
The Court has also many times noted the lack of
compensatory remedies (see Osmanov and Yuseinov, § 41;
Mitev, § 160; Sidjimov, § 42; and Popov,
§ 91, all cited above; Karov v. Bulgaria, no. 45964/99, §
74 in limine, 16 November 2006; Nalbantova, §
35; Karamitrov and Others, §§ 59 and 60; and
Atanasov and Ovcharov, §§ 59 and 60; Yankov (no.
2), §§ 58 and 59; Krasimir Yordanov, § 35;
Gavazov, § 166; Petrov, § 63; Kirov, §
80; Sheremetov, § 53; Balabanov, § 31;
Myashev, § 22; Valentin Ivanov, § 36;
and Yankov and Manchev, § 33, all cited above). In a
number of cases the Bulgarian Government argued that the 1988 Act can
provide an effective remedy in that regard. However, that Act does
not explicitly envisage liability of the authorities for excessively
lengthy proceedings (see paragraph 47 above). The Court has therefore
in a number of cases rejected the Government’s argument, noting
that they were unable to cite any domestic case law in support
of their assertion (see Nalbantova, cited above, §§
25 and 35; Doinov v. Bulgaria, no. 68356/01, §§
31 37, 27 September 2007; Karamitrov and Others, §§
47, 59 and 60; Atanasov and Ovcharov, § 44, 59 and 60;
Kirov, § 80; and Balabanov, §§ 20 and 31,
all cited above; as well as Mirchev and Others v. Bulgaria,
no. 71605/01, §§ 16 18, 27 November 2008;
Gerdzhikov, cited above, § 31; F.G. v. Bulgaria,
no. 17911/03, §§ 22 and 32, 4 March 2010; Filipov
v. Bulgaria, no. 40495/04, §§ 32 and 44, 10 June
2010; Konovski v. Bulgaria, no. 33231/04, § 31, 2
September 2010; and Makedonski, cited above, §§
28 29 and 59).
Naturally, the Court cannot overlook that in its
recent case law the Supreme Court of Cassation, when it allows
claims for compensation brought under section 2(1)(2) of the 1988 Act
by persons who have been acquitted or the proceedings against whom
have been discontinued, in fixing the amount of damages takes into
account, among other factors, the length of the proceedings (see
paragraph 49 above). However, the Court does not consider that such
claims can be regarded as an effective remedy in respect of the
excessive length of criminal proceedings, for several reasons. First,
the cause of action underlying such claims is not a breach of the
right to a hearing within a reasonable time, but the fact that the
proceedings have resulted in an acquittal or have been discontinued
(see paragraph 48 above and contrast Gonzalez Marín
v. Spain (dec.) no. 39521/98, ECHR 1999 VII; Mifsud,
cited above; and Paulino Tomás v. Portugal (dec.), no.
58698/00, ECHR 2003 VIII). Therefore, it cannot be regarded as
an avenue whereby persons charged with criminal offences can
vindicate, as such, their right to a hearing within a reasonable time
(see Ommer v. Germany (no. 1), no. 10597/03, §§
41 43 and 75, 13 November 2008, and Ommer v. Germany (no. 2),
no. 26073/03, §§ 37 40 and 62, 13 November 2008, as
well as, mutatis mutandis, Peev v. Bulgaria, no.
64209/01, §§ 72 73, 26 July 2007). Secondly –
and this point is closely related with the first – it is
unclear what weight the domestic courts, when calculating the amount
of damages to be awarded to a successful claimant, accord to the
length of the proceedings vis à vis other relevant
factors, such as the length of any related pre trial detention
or the impact of the proceedings on the individual’s private or
family life (see paragraph 48 above). It is thus impossible to
ascertain whether the level of compensation afforded to the applicant
in relation to the length of the proceedings is reasonable (see
Scordino (no. 1), cited above, § 206, and
Simaldone v. Italy, no. 22644/03, § 30, 31 March
2009). Thirdly, those claims do not fall to be examined under a
streamlined procedure, but under the general rules of civil
procedure, by at least two, and possibly three, levels of court, with
the result that the proceedings can last several years (see paragraph
49 in fine above). Such a lapse of time is not reconcilable
with the requirement that a remedy for delay be sufficiently swift
(see McFarlane, cited above, § 123). Fourthly, such
claims can be brought only after the criminal proceedings have ended
and not while they are still pending (see Robert Lesjak v.
Slovenia, no. 33946/03, §§ 52 53, 21 July
2009). Lastly, such claims may come for hearing before the courts
against which they are directed, and any awards that the courts make
pursuant to such claims must be paid out of their budget. Both of
those facts may raise serious issues in relation to the lack of
objective impartiality of the courts hearing such claims (see
Mihalkov v. Bulgaria, no. 67719/01, §§ 45 51,
10 April 2008). Therefore, claims under section 2(1)(2) of the 1988
Act cannot be taken into account for the purposes of Article 13 of
the Convention, but any awards made in such proceedings may be
relevant in respect of an award of just satisfaction under Article 41
of the Convention (see, mutatis mutandis, Hornsby v.
Greece, 19 March 1997, § 37 in fine, Reports of
Judgments and Decisions 1997 II, and Iatridis v. Greece
[GC], no. 31107/96, § 47, ECHR 1999 II).
Lastly, it should be mentioned – and welcomed –
that the 2007 Judiciary Act expressly recognises, in its section
7(1), the right to a “hearing within a reasonable time”
(see paragraph 36 above), and that the 2005 Code of Criminal
Procedure lays down, in its Article 22, an obligation for the courts
to “examine and decide cases within a reasonable time”,
and for prosecutors and the investigating authorities to ensure that
“pre trial proceedings are conducted within the
time limits laid down in [the] Code” (see paragraph 42
above). However, it does not seem that there exists a mechanism
whereby the individuals concerned may vindicate that right or obtain
redress for a failure to comply with that obligation.
In view of the foregoing considerations, the Court
concludes that the applicants did not have at their disposal
effective remedies in respect of their complaints about the length of
the criminal proceedings against them. There has therefore been a
violation of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
The
Court finds it appropriate to consider the present case under Article
46 of the Convention, which reads as follows:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
A. The parties’ submissions
1. The Government
The Government submitted that the problems
illustrated by the two sets of criminal proceedings at issue in the
present case were not such as to call for the adoption of a pilot
judgment. The mere fact that there had been many judgments in which
the Court had found Bulgaria in breach of its obligation to provide
applicants with proceedings within a reasonable time did not show the
existence of a systemic problem. It had to be borne in mind that the
two applications concerned proceedings which had taken place between
1996 and 2009. The assessment whether they were indicative of a
structural problem called for the consideration of the reform of the
criminal justice system which had taken place during that period.
Many of those reforms, which had started in 1999, had been a result
of rulings made by the Court. The increasing incidence of adverse
rulings against Bulgaria and the high number of pending applications
evinced not only problems with the Bulgarian criminal justice system,
but also the increasing popularity of the Court. Another fact showing
the lack of a structural problem was that the Committee of Ministers
had not adopted an interim resolution in relation to the group of
Bulgarian cases concerning length of proceedings. More time was
therefore needed to assess the effect of the ongoing reform of the
judicial system and the impact of the newly adopted rules of
procedure.
The statistics compiled by the Supreme Judicial
Council for 2009 were very encouraging in that respect. Those
statistics showed that in 2009 the number of new cases in the
judicial system had increased by 12.04% compared with 2008, even
though 71,000 company registration cases had been taken out of the
system following the reform of the register of companies. The number
of cases completed in 2009 had increased by 15.46% in relation to
those completed in 2008; that figure was chiefly due to the number
coming from the district courts, where the increase had been upwards
of 20%. The number of cases processed in less than three months had
also increased in 2009, being 22.62% higher than in 2008. In 2009,
the number of cases resulting in a judicial decision had increased by
19%. In spite of the huge increase in the incoming cases, the number
of unfinished cases at the end of 2009 had diminished by 2,500
compared with the previous year.
Further measures taken by the authorities to tackle
the problem were reflected in the recent adoption of a “Blueprint”
for the Penal Policy of the Republic of Bulgaria for the Period
2010 14 (“Концепция
за наказателната
политика на
Република
България за
периода 2010 2014 г.”),
and a “Blueprint” for Overcoming the Causes for the
Adverse Rulings of the Court Against Bulgaria (“Концепция
за преодоляване
на причините
за осъдителните
решения на
Европейския
съд по правата
на човека срещу
България и за
решаване на
проблемите,
произтичащи
от тях”), adopted by
the Government in March 2009. One of the aims of the former had been
a reduction of the formalities in criminal proceedings. The aim of
the latter had been the creation of a roadmap for overcoming the
problems leading to judgments in which the Court finds that Bulgaria
is in breach of its Convention obligations. That Blueprint had been
drawn up by a working group comprising senior State officials and
prominent human rights activists. It had specifically addressed
the issue of unreasonable length of proceedings and had proposed
solutions for overcoming it and for putting in place effective
remedies in respect of it. Based on that Blueprint, a working group
had been asked to propose amendments to the 1988 Act. In May 2010
that group had drawn up a draft bill, but work on it was still under
way. That bill specifically envisaged adding undue delay in criminal,
civil and administrative cases as a cause of action entailing State
liability.
Other factors were the comprehensive monitoring
carried out by the inspectorate of the Ministry of Justice and by the
newly created inspectorate of the Supreme Judicial Council, the
increased use of disciplinary sanctions against judges, and the
improved continuing legal training provided to judges.
In the Government’s view, all of the above
showed that the Bulgarian authorities were taking effective measures
to prevent repetitive breaches of the right to a hearing within a
reasonable time. The Government nonetheless stated that they would
welcome any recommendations made by the Court with a view to
overcoming the issues raised by the case.
2. The applicants
The
applicants submitted that the excessive length of proceedings in
Bulgaria was a systemic problem requiring an appropriate response
from the Court. They pointed out that the Court had found breaches of
the reasonable time requirement of Article 6 § 1 in a
number of cases relating to proceedings which had taken place between
1993 and 2009. Despite that, the Bulgarian State had not done enough
to tackle the problem. Mr Hamanov’s case was a telling
example. Legislative reforms had been somewhat chaotic, as evidenced
by the changes in policy in that domain from one government to the
next. The statistics provided by the Government were incomplete; they
did not show whether undue delays had occurred and could not serve as
a basis to conclude that the problem had been resolved. It was
unclear whether and when the measures envisaged in the two blueprints
mentioned by the Government would be implemented. The fact that the
draft bill for the amendment of the 1988 Act had not been put before
Parliament for more than a year showed the lack of political will to
see those measures through. It could not be accepted that the
inspectorates of the Ministry of Justice and of the Supreme Judicial
Council would provide a solution to the problem. The Government had
not pointed to specific examples in which interventions by those
bodies had led to an acceleration of the proceedings. Those bodies
were only competent to analyse the work of the courts and make
suggestions for disciplinary action, not to give binding instructions
for the faster processing of individual cases.
The
applicants further submitted that it was clear that Bulgarian law did
not provide any remedies in respect of the excessive length of
criminal proceedings. There was no possibility to claim compensation
in respect of such matters under the 1988 Act, which the Bulgarian
courts construed strictly.
B. The Court’s assessment
1. Applicable principles
A
summary of the principles applicable to pilot judgments may be found
in the Court’s judgments in the cases of Broniowski
(cited above, §§ 188 94), Burdov v. Russia
(no. 2) (no. 33509/04, §§ 125 28, ECHR 2009 ...),
Olaru and Others v. Moldova (nos. 476/07, 22539/05, 17911/08
and 13136/07, §§ 49 49, 28 July 2009), Rumpf v.
Germany (no. 46344/06, §§ 59 61, 2 September
2010) and Vassilios Athanasiou and Others v. Greece
(no. 50973/08, §§ 39 42, 21 December 2010), as well as
in the newly adopted Rule 61 of the Rules of Court (which was
inserted by the Court on 21 February 2011 and came into force on 1
April 2011).
2. Application of those principles to the present case
(a) Suitability of the pilot procedure in
the present context
The
present case is similar to other cases, such as Scordino (no.
1), Vassilios Athanasiou and Rumpf (all
cited above), which also concerned the unreasonable length of
proceedings and the lack of effective remedies in that regard.
Moreover, the recurrent and persistent nature of the underlying
problem, the large number of persons in Bulgaria who are liable to be
affected by it, and the need to grant those persons appropriate
redress at the domestic level are all factors militating in favour of
applying the pilot judgment procedure in this case.
(b) Existence of a practice incompatible
with the Convention
Since
its first judgment concerning the length of criminal proceedings in
Bulgaria (see Ilijkov v. Bulgaria, no. 33977/96, §§
111 18, 26 July 2001), the Court has found breaches of the
reasonable time requirement in criminal proceedings in more than
eighty cases (see Annex 1). Forty one cases concerning such
complaints have resulted in friendly settlements or have been struck
out of the Court’s list on the basis of unilateral declarations
by the Government (see Annex 2). According to the information in the
Court’s case management database, there are at present
approximately two hundred cases against Bulgaria awaiting first
examination which contain a complaint concerning the length of
criminal proceedings. The above numbers show the existence of a
systemic problem (see, among other authorities, Bottazzi v. Italy
[GC], no. 34884/97, § 22, ECHR 1999 V; Lukenda v.
Slovenia, no. 23032/02, §§ 90 93, ECHR 2005 X;
and Rumpf, cited above, §§ 64 70). Indeed, as
recently as 26 January 2011 the issue was noted “with
grave concern” by the Parliamentary Assembly of the Council of
Europe, which urged Bulgaria to “pursue its efforts to solve
the problem of excessive length of court proceedings” (see
paragraph 55 above).
The
Government argued that the problem had recently been overcome, as a
result of the adoption of new legislation and a range of
organisational measures. The Court welcomes all measures capable of
preventing delays in future proceedings, but must also make two
points in connection with that assertion.
First,
in its recent Interim Resolution of 2 December 2010 the Committee of
Ministers, having examined the information – including
statistics – supplied by the Bulgarian authorities, noted that
the legislative reforms introduced between 2006 and 2010 had not yet
produced their full impact on the length of proceedings and that a
longer period was needed before the effectiveness of the measures
taken could be fully assessed (see paragraph 52 above). Since the
statistics on which the Government relied before the Court to prove
that the problem of the excessive length of proceedings in Bulgaria
has been resolved are largely identical to those that they provided
to the Committee of Ministers, the Court sees no reason to come to a
conclusion that differs from that of the Committee. It also considers
that it is too early to find that the measures taken by the Bulgarian
State to prevent unreasonably lengthy proceedings, while certainly to
be encouraged, have produced tangible results. Indeed, the statistics
supplied by the Government contain no data about the average duration
of criminal proceedings in Bulgaria (see paragraphs 54 and 102
above).
Secondly,
in view of the nature of the problem, the introduction of measures
designed to ensure that the examination of criminal cases will not be
unduly delayed in the future cannot remedy the problems engendered by
delays accrued before the introduction of such measures.
For
those reasons, the Court, while welcoming the Bulgarian State’s
continued efforts to improve the speed with which criminal cases are
dealt with and the Government’s willingness to conclude
friendly settlements in respect of such complaints, finds that the
problem of the excessive length of criminal proceedings in Bulgaria
cannot at this stage be regarded as having been fully resolved.
It
is not the Court’s function to express an opinion on the
Bulgarian criminal justice system. The Contracting States enjoy
considerable freedom in the choice of the means calculated to ensure
that their judicial systems are in compliance with the requirements
of Article 6 of the Convention (see König v. Germany, 28
June 1978, § 100, Series A no. 27, and, more recently, Taxquet
v. Belgium [GC], no. 926/05, §§ 83 and 84, 16 November
2010). Moreover, the unreasonable length of proceedings is a
multifaceted problem which may be due to a large number of factors,
of both a legal and logistical character. Some of those – such
as an insufficient number of judges, prosecutors, investigators or
administrative staff, inadequate court premises, overly complex
procedures, procedural loopholes allowing unjustified adjournments,
or poor case management – may be internal to the judicial
system, whereas others – such as the belated submission of
expert reports and failures by the authorities to provide in a timely
manner documents needed as evidence – may be extrinsic to that
system. The Court will therefore abstain from indicating any specific
measures to be taken by the respondent State to tackle the problem.
The Committee of Ministers is better placed and equipped to monitor
the measures that need to be adopted by Bulgaria in that respect
(see, mutatis mutandis, Burdov (no. 2), §§
136 and 137, and Olaru and Others, § 57, both cited
above, as well as Yuriy Nikolayevich Ivanov v. Ukraine, no.
40450/04, §§ 90 92, ECHR 2009 ... (extracts)).
Indeed, as evident from its Interim Resolution of 2 December 2010 and
the first Appendix to it, the Committee is already doing so and will
continue, in cooperation with the national authorities (see
paragraphs 52 and 53 above). By way of example, the Court would point
to the recent adoption of statutory provisions proclaiming the right
to a “hearing within a reasonable time” (see paragraph 36
above) and the obligation for the courts to “examine and decide
cases within a reasonable time” (see paragraph 42 above).
However,
there remains the question of the existence – or lack –
of effective remedies in that respect (see, mutatis mutandis,
Burdov (no. 2), § 138, and Olaru and Others,
§ 58, both cited above). In its Interim Resolution the Committee
of Ministers gave consideration to the point and found that there
existed “certain structural problems in this field” (see
paragraph 52 above). Indeed, less than full application of the
guarantees of Article 13 would undermine the operation of the
subsidiary character of the Court in the Convention system and, more
generally, weaken the effective functioning, on both the national and
international level, of the scheme of human rights protection set up
by the Convention (see McFarlane v. Ireland ([GC], no.
31333/06, § 112, ECHR 2010 ..., with further references).
The
Court has already found that in Bulgaria there is no remedy whereby
defendants aggrieved by the excessive length of criminal proceedings
against them can obtain compensation (see paragraphs 96 98
above). It has also noted that there are no acceleratory remedies
(see paragraph 95 above).
Nor
is there a remedy allowing a reduction of sentence on account of
accumulated delays. In some cases, the Bulgarian courts mitigate
sentences on the basis of the general provisions of the Criminal Code
governing the individualisation of punishment (see paragraph 50
above). However, that practice is often a result of the courts’
view that long after the commission of an offence the aims of the
punishment and the public interest do not require harsh sentences.
Thus, while in some cases the courts spell out clearly that the
reduction is meant as redress for a breach of the right to trial
within a reasonable time, in others, such as Mr Hamanov’s, they
do not (see paragraphs 26, 65 and 66 above). Since that practice is
not based on express statutory language or established case law,
usually does not make clear that the sentence is reduced in an
express and measurable manner so as to make good any undue delays,
and, most importantly, is not a possibility available as of right to
those concerned, it cannot for the time being be regarded as an
effective remedy. In addition, it should be pointed out that it is
obviously available only if the proceedings result in a conviction
(see Ommer (no. 1), cited above, § 71).
The
only remedy found by the Court to be effective, at least in some
limited situations, was the procedure under Article 239a of the 1974
Code of Criminal Procedure, introduced in June 2003 (see paragraphs
38 40 and 92 above). In April 2006 that procedure was superseded
by an almost identical procedure, governed by Articles 368 69 of
the 2005 Code of Criminal Procedure (see paragraph 43 above). That
remedy could function either as an acceleratory one (it could
expedite the bringing of a case to trial) or as a compensatory one
(it could lead to a discontinuance of proceedings). However, it had
certain limitations. When operating as an acceleratory remedy, it
could prevent further delay only in the pre trial proceedings,
and was available only to persons who had been formally charged. That
is well illustrated by the proceedings in Mr Hamanov’s case
(see paragraph 17 above). In addition, it does not seem that it could
prevent delays resulting from repeated referrals of cases back to the
pre trial stage – a major source of delay in some
Bulgarian criminal cases (see Yankov (no. 2), cited
above, § 51). When functioning as a compensatory remedy, in
could not make up for delays accrued before its introduction in June
2003 (see the cases cited in paragraph 93 above). Lastly, as
correctly pointed out by the Bulgarian Constitutional Court (see
paragraph 45 above), that remedy used a formal criterion to measure
“reasonable time”, which in some cases could, contrary to
the public interest that offenders be brought to justice, result in
the undue discontinuance of criminal prosecutions. It could also, as
pointed out by the Supreme Court of Cassation, come into conflict
with the right to a fair trial (see paragraph 41 above).
In
any event, that procedure was abolished with effect from 28 May 2010
(see paragraphs 44 and 45 above). It does not therefore seem that at
present there exists in Bulgaria any remedy in respect of the
excessive length of criminal proceedings.
Concerning
the possibility for checks by the Inspectorate attached to the
Supreme Judicial Council pursuant to reports by private individuals
(see paragraphs 35, 37 and 45 above), the Court welcomes the
introduction of such machinery – in particular, the
Inspectorate’s capacity to check whether judges, prosecutors
and investigators have processed the cases assigned to them within
the statutory time limits. However, according to the Court’s
established case law, such mechanisms cannot be regarded as an
effective remedy because they do not give the individuals concerned a
personal right to compel the State to exercise its supervisory powers
(see Gibas v. Poland, no. 24559/94, Commission decision
of 6 September 1995, DR 82, p. 76, at p. 82; Kuchař and Štis
v. the Czech Republic (dec.), no. 37527/97, 23 May 2000;
Horvat v. Croatia, no. 51585/99, § 47, ECHR 2001 VIII;
Hartman v. the Czech Republic, no. 53341/99, § 66,
ECHR 2003 VIII (extracts); Djangozov, cited above, §
56; Osmanov and Yuseinov, cited above, § 39; Rachevi
v. Bulgaria, no. 47877/99, § 101, 23 September 2004;
Sidjimov, cited above, § 41; and Sürmeli,
cited above, § 109).
There
is thus a clear need for the introduction of a remedy or a range of
remedies in respect of the excessive length of criminal proceedings.
However, the introduction of an acceleratory remedy alone would not
be sufficient. Indeed, in Scordino (no. 1) (cited
above, § 186) the Court observed that “some States, such
as Austria, Croatia, Spain, Poland and Slovakia, have understood the
situation perfectly by choosing to combine two types of remedy, one
designed to expedite the proceedings and the other to afford
compensation”. It also stated that it is clear that for
countries where length of proceedings problems already
exist, a remedy designed to expedite the proceedings – although
desirable for the future – may not be adequate to redress a
situation in which proceedings have clearly already been excessively
long (ibid., § 185). It confirmed this position in three
subsequent cases against Slovenia (see Zunič v. Slovenia
(dec.), no. 24342/04, 18 October 2007; TomaZič v.
Slovenia, no. 38350/02, § 37 in fine, 13
December 2007; and Robert Lesjak, cited above, § 36). In
view of what has been said above, Bulgaria can be considered as a
country in which length of proceedings problems already
exist. It must therefore put in place a remedy which can provide
redress for past delays. Indeed, the Committee of Ministers very
recently invited the Bulgarian authorities “to complete as soon
as possible the reform undertaken in order to introduce a remedy
whereby compensation may be granted for prejudice caused by excessive
length of judicial proceedings” (see paragraph 52 above), and
the Bulgarian authorities are now working on a draft bill in that
domain (see paragraphs 53 and 103 above). The Court would add that
the introduction of effective domestic remedies in this domain would
be particularly important in view of the subsidiarity principle, so
that individuals are not systematically forced to refer to the Court
in Strasbourg complaints that could otherwise, and in the Court’s
opinion more appropriately, have been addressed in the first place
within the national legal system (see Kudła, § 155,
and Scordino (no. 1), § 188, both cited above).
That
makes it appropriate for the Court to provide guidance to the
Government, in order to assist them in the performance of their duty
under Article 46 § 1 of the Convention.
(c) General measures to be adopted
The
Court observes at the outset that, subject to monitoring by the
Committee of Ministers, the respondent State is free to choose the
means by which it will discharge its duty under Article 46 § 1
of the Convention. However, those means must be compatible with the
conclusions set out in the Court’s judgment (see, among other
authorities, Burdov (no. 2), § 136; Rumpf, §
71; and Vassilios Athanasiou and Others, § 54, all
cited above).
In
view of the similarity of the situations obtaining in the present
case and in Vassilios Athanasiou and Others (cited
above, § 55, with further references), the Court would refer to
the description it gave in that judgment of the key features of an
effective compensatory remedy:
– the
procedural rules governing the examination of such a claim must
conform to the principle of fairness enshrined in Article 6 of the
Convention;
– the
rules governing costs must not place an excessive burden on litigants
where their claim is justified;
– a
claim for compensation must be heard within a reasonable time. In
that connection, consideration may be given to subjecting the
examination of such claims to special rules that differ from those
governing ordinary claims for damages, to avert the risk that, if
examined under the general rules of civil procedure, the remedy may
not be sufficiently swift (see Scordino (no. 1), cited
above, § 200; Vidas v. Croatia, no. 40383/04, §§ 36 37,
3 July 2008; and McFarlane, cited above, § 123);
– the
level of compensation must not be unreasonable in comparison with the
awards made by the Court in similar cases (on this point, see also
Magura v. Slovakia, no. 44068/02, § 34, 13 June 2006;
Rišková v. Slovakia, no. 58174/00, § 89, 22
August 2006; Šidlová v. Slovakia, no. 50224/99,
§ 58, 26 September 2006; and Simaldone, cited above,
§ 30). In relation to this criterion, it should be noted that
the domestic authorities or courts are clearly in a better position
than the Court to determine the existence and quantum of pecuniary
damage. In relation to non pecuniary damage, there exists a
strong but rebuttable presumption that excessively lengthy
proceedings will cause such damage. Although in some cases the length
of proceedings may result in only minimal non-pecuniary damage or no
non pecuniary damage at all, the domestic authority or court
dealing with the matter will have to justify its decision to award
lower or no compensation by giving sufficient reasons, in line with
the criteria set out in this Court’s case law;
– the
compensation must be paid promptly and generally no later than six
months from the date on which the decision that awards it becomes
enforceable (on that point, see, as a recent authority, Gaglione
and Others v. Italy, no. 45867/07,
§§ 34 44, 21 December 2010).
The
Court would further emphasise that, to be truly effective and
compliant with the principle of subsidiarity, a compensatory remedy
needs to operate retrospectively and provide redress in respect of
delays which predate its introduction, both in proceedings which are
still pending and in proceedings which have been concluded but in
which the persons charged with a criminal offence have already
applied to the Court or may do so (see Brusco v. Italy (dec.),
no. 69789/01, ECHR 2001 IX; Nogolica v. Croatia (dec.),
no. 77784/01, ECHR 2002 VIII; Charzyński v. Poland
(dec.), no. 15212/03, §§ 20, 23, 36 and 40, ECHR
2005 V; Michalak v. Poland (dec.), no. 24549/03, §§
20, 23, 37 and 41, 1 March 2005; Vokurka v. the Czech Republic
(dec.), no. 40552/02, §§ 11 in fine and 62, 16
October 2007; Grzinčič v. Slovenia, no. 26867/02, §
48 and 57 68, ECHR 2007 V (extracts); and Korenjak v.
Slovenia (dec.), no. 463/03, § 39 and 63 71, 15 May
2007).
By
way of example, the Court would point to remedies introduced in
recent years in Poland (see Charzyński, cited above, §§
12 23), the Czech Republic (see Vokurka, cited above, §
11), Slovenia (see Grzinčič, cited above, §§
36 48), and Croatia (see Nogolica, cited above).
Another
measure that can, in certain situations, make good past delays is the
possibility to obtain a reduction in the penalty imposed on a
convicted defendant (see Scordino (no. 1), cited above,
§ 186). The effectiveness of such a measure does not depend on
whether it is the product of legislative changes or of
well established case law of the domestic courts. However,
to be able to redress the breach of the defendant’s right to a
hearing within a reasonable time, such a measure must meet three
conditions. First, the courts must acknowledge the failure to observe
the reasonable time requirement of Article 6 § 1 in a
sufficiently clear way. Secondly, they must afford redress by
reducing the sentence in an express and measurable manner. Lastly,
the opportunity to request such a reduction, whether based on express
statutory language or clearly established case law, must be
available to the convicted defendant as of right. Naturally, that
does not mean that the courts must as a rule accede to such requests;
in situations where a reduction of sentence would not be an
appropriate measure, they may refuse to do so, and it will then be
for the defendant to seek other forms of redress, such as pecuniary
compensation.
Conversely,
in cases of extreme delay or delay which has been exceptionally
prejudicial to the accused, consideration may even be given to
discontinuing the proceedings altogether (see Sprotte v. Germany
(dec.), no. 72438/01, 17 November 2005), provided that the
public interest is not adversely affected by such a discontinuance.
Similar
measures may also be envisaged in the context of plea bargaining
between the accused and the prosecution.
The
Court concludes that Bulgaria must introduce a remedy or a
combination of remedies in respect of the unreasonable length of
criminal proceedings. Those remedies must conform to the principles
set out above and become available within twelve months from the date
on which the present judgment becomes final.
(d) Procedure to be followed in similar
cases
One
of the goals of the pilot judgment procedure is to allow the
speediest possible redress to be given at the domestic level to
persons affected by the structural problem identified in the pilot
judgment. Therefore, in a pilot judgment the Court is in a position
to decide on the procedure to be followed in cases stemming from the
same systemic problem (see Burdov (no. 2), § 142; Olaru
and Others, § 59; Yuriy Nikolayevich Ivanov, §
95; and Rumpf, § 74, all cited above).
In
the present case, the Court does not consider it appropriate to
adjourn the examination of similar cases pending the implementation
of the relevant measures by the respondent State. Continuing to
process all length of proceedings cases in the usual manner will not
interfere with the respondent State’s duty to comply with its
obligations under the Convention and in particular those resulting
from this judgment (see Rumpf, § 75, and Vassilios
Athanasiou and Others, § 58, both cited above).
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
Mr
Dimitrov claimed 10,000 euros (EUR) in respect of the non pecuniary
damage occasioned by the violation of Article 6 § 1 of the
Convention, and EUR 3,000 in respect of the non pecuniary damage
caused by the violation of Article 13 of the Convention.
Mr
Hamanov claimed EUR 6,000 in respect of the non pecuniary
damage occasioned by the violation of Article 6 § 1 of the
Convention, and EUR 3,000 in respect of the non pecuniary damage
caused by the violation of Article 13 of the Convention.
The
Government submitted that the claims were exorbitant, and pointed out
that the applicants were entitled to compensation only for the damage
suffered as a result of the length of the proceedings against them.
They referred to the awards made in previous similar cases against
Bulgaria, and invited the Court to make similar awards.
The
Court considers that the applicants must have suffered certain
non-pecuniary damage as a result of the excessive length of the
criminal proceedings against them and the lack of an effective remedy
in that respect. Taking into account the particular circumstances of
the two cases, the fact that Mr Hamanov has already been awarded
compensation for the non pecuniary damage suffered as a result
of the excessive length of the criminal proceedings against him prior
to April 2003 (see Hamanov, cited above, § 111), and
the awards made in previous similar cases, and ruling on an equitable
basis, as required under Article 41, the Court awards EUR 6,400
to Mr Dimitrov and EUR 600 to Mr Hamanov. To those sums is to be
added any tax that may be chargeable.
B. Costs and expenses
Mr
Dimitrov sought reimbursement of EUR 2,683 incurred in lawyers’
fees for thirty eight hours and twenty minutes of work on the
proceedings before the Court, billed at EUR 70 per hour, and EUR 52
for other expenses, such as postage, office consumables and
photocopying. He requested that any sum awarded under this head be
paid directly to his legal representative, Mr A. Atanasov. He
submitted a fee agreement between him and his legal representatives,
a time sheet, and a contract for translation services.
Mr
Hamanov sought reimbursement of EUR 1,820 incurred in lawyers’
fees for twenty six hours of work on the proceedings before the
Court, billed at EUR 70 per hour, and EUR 322.64 for other expenses,
such as postage, office consumables, translation of documents and
photocopying. He requested that EUR 153 of the lawyers’ fees be
paid directly to him (since he had already paid that sum to his
lawyers), and the remaining EUR 1,667 to his legal
representatives, Mr M. Ekimdzhiev and Ms K. Boncheva. He
also requested that the award in respect of the other expenses be
made payable to his lawyers. He submitted a time sheet for the work
carried out by his legal representatives, a contract for translation
services, and postal receipts.
The
Government did not dispute the number of hours billed by the
applicants’ lawyers, but submitted that the hourly rate charged
by them was several times higher than those usually charged in
Bulgaria.
According
to the Court’s case-law, costs and expenses claimed under
Article 41 must have been actually and necessarily incurred and be
reasonable as to quantum.
When
considering a claim for just satisfaction, the Court is not bound by
domestic scales or standards (see, as a recent authority, Mileva
and Others v. Bulgaria, nos. 43449/02 and 21475/04, §§
123 and 125, 25 November 2010). Moreover, the hourly rate
charged by the applicants’ lawyers is comparable to those
charged in recent cases against Bulgaria having a similar complexity
(see Velikovi and Others v. Bulgaria, nos. 43278/98,
45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01
and 194/02, §§ 268 and 274, 15 March 2007; Holy Synod of
the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v.
Bulgaria, nos. 412/03 and 35677/04, § 183, 22 January 2009;
Bulves AD v. Bulgaria, no. 3991/03, § 85, 22 January
2009; Kolevi v. Bulgaria, no. 1108/02, § 221, 5
November 2009; and Mutishev and Others v. Bulgaria, no.
18967/03, § 160, 3 December 2009). It can thus be regarded as
reasonable. In view of that and bearing in mind that the case, due to
its pilot character, raised a range of issues which surpass the
complexity of those usually raised by a normal length of proceedings
case, the Court awards the applicants the full sums claimed in
respect of legal fees: EUR 2,683 to Mr Dimitrov and EUR 1,820 to Mr
Hamanov. The sum awarded to Mr Dimitrov is to be paid into the bank
account of his legal representative, Mr A. Atanasov. EUR 1,667 of the
sum awarded to Mr Hamanov is to be paid into the bank account of
his legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva, and
the remaining EUR 153 is to be paid to the applicant himself.
Having
regard to the documents in its possession, the Court awards
Mr Hamanov EUR 260 in respect of other expenses, and awards
Mr Dimitrov EUR 40 in respect of other expenses.
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 two applicants and the alleged
lack of effective remedies in that regard admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of Mr Dimitrov;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of Mr Hamanov;
Holds that there has been a violation of Article
13 of the Convention in respect of both applicants;
Holds that the violations of Article 6 § 1
and Article 13 of the Convention originated in a practice
incompatible with the Convention which consists in the unreasonable
length of criminal proceedings in Bulgaria and in Bulgaria’s
failure to introduce an effective remedy allowing persons charged
with criminal offences to obtain appropriate redress in that regard;
Holds that the respondent State must set up,
within twelve months from the date on which this judgment becomes
final in accordance with Article 44 § 2 of the Convention, an
effective remedy which complies with the requirements set out in this
judgment;
Holds
(a) that
the respondent State is to pay the applicants, within three months of
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 on the date of
settlement:
(i) to
Mr Dimitrov, EUR 6,400 (six thousand four hundred euros), plus any
tax that may be chargeable, in respect of non pecuniary damage;
(ii) to
Mr Hamanov, EUR 600 (six hundred euros), plus any tax that may be
chargeable, in respect of non pecuniary damage;
(iii) to Mr Dimitrov, EUR 2,723 (two thousand seven
hundred and twenty three euros), plus any tax that may be
chargeable to him, in respect of costs and expenses, to be paid into
the bank account of his legal representative, Mr A. Atanasov;
(iv) to Mr Hamanov, EUR 2,080 (two thousand and eighty
euros), plus any tax that may be chargeable to him, in respect of
costs and expenses, EUR 153 (one hundred and fifty three euros)
of which are to be paid to the applicant himself, and the remaining
EUR 1,927 (one thousand nine hundred and twenty seven
euros) are to be paid into the bank account of his legal
representatives, Mr M. Ekimdzhiev and Ms K. Boncheva;
(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 applicants’
claims for just satisfaction.
Done in English, and notified in writing on 10 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
ANNEX 1
(judgments against Bulgaria in which the
Court has found breaches of the “reasonable time”
requirement in relation to the determination of criminal charges
against the applicants):
Ilijkov
v. Bulgaria, no. 33977/96, §§
111 18, 26 July 2001
Kitov
v. Bulgaria, no. 37104/97, §§ 66 75 and
78 85, 3 April 2003
Hristov
v. Bulgaria, no. 35436/97, §§ 123 and 124, 31
July 2003
Al
Akidi v. Bulgaria, no. 35825/97, §§ 92 and 93,
31 July 2003
S.H.K.
v. Bulgaria, no. 37355/97, §§
26 39, 23 October 2003
Yankov
v. Bulgaria, no. 39084/97, §§
204 07, 11 December 2003
Belchev
v. Bulgaria, no.
39270/98, §§ 99 104, 8 April 2004
Hamanov
v. Bulgaria, no.
44062/98, §§ 102 07, 8 April 2004
Vachev
v. Bulgaria, no.
42987/98, §§ 84 97, 8 July 2004
Zhbanov
v. Bulgaria, no.
45563/99, §§ 34 41, 22 July 2004
Osmanov
and Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, §§ 23 30,
23 September 2004
Kuibishev
v. Bulgaria, no. 39271/98, §§
82 87, 30 September 2004
Nikolova
v. Bulgaria (no. 2), no. 40896/98, §§
79 90, 30 September 2004
Mitev
v. Bulgaria, no. 40063/98, §§
143 52, 22 December 2004
Iliev
v. Bulgaria, no. 48870/99, §§ 53 and 56 62, 22
December 2004
E.M.K.
v. Bulgaria, no. 43231/98, §§
139 45, 18 January 2005
Sidjimov
v. Bulgaria, no. 55057/00, §§
34 36, 27 January 2005
Kolev
v. Bulgaria,
no. 50326/99, §§ 91 99,
28 April 2005
Asenov
v. Bulgaria, no. 42026/98, §§ 91 98 and 101 08,
15 July 2005
Nedyalkov
v. Bulgaria, no. 44241/98, §§
85 95, 3 November 2005
Popov
v. Bulgaria, no. 48137/99, §§
82 86, 1 December 2005
Iovchev
v. Bulgaria, no. 41211/98, §§
115 20, 2 February 2006
Vasilev
v. Bulgaria, no. 59913/00, §§
89 96, 2 February 2006
Pekov
v. Bulgaria,
no. 50358/99, §§ 101 08, 30 March 2006
Vasko
Yordanov Dimitrov v. Bulgaria, no.
50401/99, §§ 32 42, 3 May 2006
Toshev
v. Bulgaria, no. 56308/00, §§
84 92, 10 August 2006
Sodadjiev
v. Bulgaria, no. 58733/00, §§
18 22, 5 October 2006
Mladenov
v. Bulgaria, no. 58775/00, §§
38 45, 12 October 2006
Kalpachka
v. Bulgaria, no. 49163/99, §§ 64 67, 71 74,
77 78 and 82 85, 2 November 2006
Karov
v. Bulgaria, no. 45964/99, §§
58 66, 16 November 2006
Yosifov
v. Bulgaria, no. 47279/99, §§
63 74, 7 December 2006
Hristova
v. Bulgaria, no. 60859/00, §§
144 57, 7 December 2006
Rezov
v. Bulgaria, no. 56337/00, §§ 49 52 and 56 61,
15 February 2007
Krasimir
Yordanov v. Bulgaria, no. 50899/99, §§
29 33, 15 February 2007
Dimov
v. Bulgaria, no. 56762/00, §§
131 42, 8 March 2007
Terziev
v. Bulgaria, no. 62594/00, §§
29 36, 12 April 2007
Vasil
Angelov v. Bulgaria, no. 61662/00,
§§ 20 30, 12 April 2007
Ivanov
v. Bulgaria, no. 67189/01, §§
38 47, 24 May 2007
Nikola
Nikolov v. Bulgaria, no. 68079/01, §§
67 75, 14 June 2007
Doinov
v. Bulgaria, no. 68356/01, §§ 28 30 and 40 41,
27 September 2007
Nalbantova
v. Bulgaria, no. 38106/02, §§ 30 and 31, 27 September
2007
Karagyozov
v. Bulgaria, no. 65051/01, §§
38 40, 25 October 2007
Vasilev
and Others v. Bulgaria, no. 61257/00, §§ 31 41,
8 November 2007
Karmo
v. Bulgaria, no. 76965/01, §§ 22 and 23, 6 December
2007
Karamitrov
and Others v. Bulgaria, no. 53321/99, §§ 54 56,
10 January 2008
Atanasov
and Ovcharov v. Bulgaria, no. 61596/00, §§ 52 54,
17 January 2008
Yankov
v. Bulgaria (no. 2), no. 70728/01, §§
44 52, 7 February 2008
Gavazov
v. Bulgaria, no. 54659/00, §§
158 61, 6 March 2008
Ivan
Hristov v. Bulgaria, no. 32461/02, §§
40 55, 20 March 2008
Sheremetov
v. Bulgaria, no. 16880/02, §§ 37 45, 22 May 2008
Kirov
v. Bulgaria, no. 5182/02, §§
65 72, 22 May 2008
Petrov
v. Bulgaria, no. 15197/02, §§
30 34, 22 May 2008
Rashid
v. Bulgaria (no. 2), no. 74792/01, §§
78 83, 5 June 2008
Balabanov
v. Bulgaria, no. 70843/01, §§
23 26, 3 July 2008
Vasil
Petrov v. Bulgaria, no. 57883/00, §§
94 98, 31 July 2008
Stoine
Hristov v. Bulgaria (no. 2), no.
36244/02, §§ 27 36, 16 October 2008
Mirchev
and Others v. Bulgaria, no. 71605/01, §§ 20 22,
27 November 2008
Myashev
v. Bulgaria, no. 43428/02, §§
14 18, 8 January 2009
Valkov
v. Bulgaria, no. 72636/01, §§
46 52, 8 January 2009
Lisev
v. Bulgaria, no. 30380/03, §§
37 42, 26 February 2009
Valentin
Ivanov v. Bulgaria, no. 76942/01, §§ 28 and 30 33,
26 March 2009
Rangelov
v. Bulgaria, no. 14387/03, §§
52 57, 23 April 2009
Iordan
Iordanov and Others v. Bulgaria, no. 23530/02, §§
57 61, 2 July 2009
Yankov
and Manchev v. Bulgaria, nos. 27207/04 and 15614/05, §§ 17 26,
22 October 2009
Spas
Todorov v. Bulgaria, no. 38299/05, §§ 34 and 36 47,
5 November 2009
Maxim
Dimitrov v. Bulgaria, no. 36552/03, §§
20 28, 7 January 2010
Gerdzhikov
v. Bulgaria, no. 41008/04, §§
20 27, 4 February 2010
F.G.
v. Bulgaria, no. 17911/03, §§
24 27, 4 March 2010
Rangelov
and Stefanov v. Bulgaria, no. 23240/04, §§ 14 17,
1 April 2010
Stefanov
and Yurukov v. Bulgaria, no. 25382/04, §§ 14 17,
1 April 2010
Kostov
and Yankov v. Bulgaria, no. 1509/05, §§ 18 21, 22
April 2010
Filipov
v. Bulgaria, no. 40495/04, §§
34 39, 10 June 2010
Konovski
v. Bulgaria, no. 33231/04, §§
22 25, 2 September 2010
Yankov
and Others v. Bulgaria, no. 4570/05, §§ 20 24 and
26 28, 23 September 2010
Rumen
Georgiev v. Bulgaria, no. 27240/04, §§ 22 28, 14
October 2010
Doron
v. Bulgaria, no. 39034/04, §§ 38 and 40 45, 14
October 2010
Angelov
and Others v. Bulgaria, no. 43586/04, §§ 18 23,
4 November 2010
Nachev
v. Bulgaria, no. 27402/05, §§
36 42, 21 December 2010
Arabadzhiev
and Alexiev v. Bulgaria, no. 20484/05, §§ 11 15,
21 December 2010
Kashavelov
v. Bulgaria, no. 891/05, §§ 44 47, 20 January
2011
Makedonski
v. Bulgaria, no. 36036/04, §§ 49 and 51 55, 20
January 2011
ANNEX 2:
(applications
concerning alleged breaches of the “reasonable time”
requirement in relation to the determination of criminal charges
against the applicants which have been struck out of the Court’s
list following friendly settlements or unilateral declarations by the
Government):
Petkov
v. Bulgaria (dec.), no. 10786/02, 9
May 2007
Yakimov
v. Bulgaria (dec.), no. 22124/02, 4
September 2007
Piryankov
v. Bulgaria (dec.), no. 74481/01, 4
September 2007
Georgiev
v. Bulgaria (dec.), no. 70721/01, 27 November 2007
Ivan
Ivanov v. Bulgaria, no. 53746/00, 10
January 2008
Stanev
v. Bulgaria (dec.), no. 1115/03, 15
January 2008
Tatarov
v. Bulgaria (dec.), no. 19189/03, 15
January 2008
Ivanov
v. Bulgaria (dec.), no. 21560/03, 18
March 2008
Kondev
v. Bulgaria (dec.), no. 21533/03, 1
April 2008
Trifonov
v. Bulgaria (dec.), no. 39049/03, 22
April 2008
Karamanova
v. Bulgaria (dec.), no. 579/03, 29
April 2008
Nayden
Kostov v. Bulgaria (dec.), no.
11063/03, 20 January 2009
Kiskinov
v. Bulgaria (dec.), no. 36051/03, 3
March 2009
Tzvetkova
v. Bulgaria (dec.), no. 16501/04, 10
March 2009
Stoimenov
v. Bulgaria (dec.), no. 19351/04, 31
March 2009
Iliev
v. Bulgaria (dec.), no. 11342/04, 16
June 2009
Petkov
v. Bulgaria (dec.), no. 33733/04, 16
June 2009
Radev
v. Bulgaria (dec.), no. 10909/04, 25
August 2009
Bogoev
v. Bulgaria (dec.), no. 42025/04, 25
August 2009
Tanova
v. Bulgaria (dec.), no. 30478/05, 13
October 2009
Raykov
v. Bulgaria (dec.), no. 28990/04, 9
February 2010
Genov
v. Bulgaria (dec.), no. 34675/04, 2
March 2010
Andonov
v. Bulgaria (dec.), no. 34877/05, 23
March 2010
Shterev
v. Bulgaria (dec.), no. 10353/05, 23 March 2010
Lazarov
v. Bulgaria (dec.), no. 42923/04, 4
May 2010
Srebarnov
v. Bulgaria (dec.), no. 36321/05, 4
May 2010
Kiryakov
v. Bulgaria (dec.), no. 36504/05, 4
May 2010
Antonov
v. Bulgaria (dec.), no. 43064/05, 18
May 2010
Ivanov
v. Bulgaria (dec.), no. 27397/05, 18
May 2010
Dukova
v. Bulgaria (dec.), no. 36318/05, 15
June 2010
Lenko
Yordanov v. Bulgaria (dec.), no.
1143/03, 6 July 2010
Ivanov
v. Bulgaria (dec.), no. 8930/05, 31
August 2010
Ognyanov
and Others v. Bulgaria (dec.), no. 24572/05, 31 August 2010
Yordanova
and Others v. Bulgaria (dec.), no. 8919/05, 31 August 2010
Popov
and Others v. Bulgaria (dec.), no. 2042/05, 31 August 2010
Kraev
v. Bulgaria (dec.), no. 43007/04, 5
October 2010
Georgiev
v. Bulgaria (dec.), no. 38066/06, 5 October 2010
Encho
Petkov v. Bulgaria (dec.), no.
30506/04, 2 November 2010
Chervenyakova
v. Bulgaria (dec.), no. 42953/06, 2
November 2010
Tanko
Todorov v. Bulgaria (dec.), no.
38454/04, 31 January 2011
Dinchev
v. Bulgaria (dec.), no. 12109/06, 31
January 2011
