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Cite as: [2012] ECHR 265

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FOURTH SECTION

CASE OF DIMITAR IVANOV v. BULGARIA

(Application no. 19418/07)

JUDGMENT

STRASBOURG

14 February 2012

This judgment is final but it may be subject to editorial revision.

In the case of Dimitar Ivanov v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a committee composed of:

Päivi Hirvelä, President,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 24 January 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 19418/07) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Dimitar Vasilev Ivanov (“the applicant”), on 5 April 2007.

The applicant was represented by Mr V. Stoyanov, a lawyer practising in Pazardzhik. The Bulgarian Government (“the Government”) were represented by their Agents, Mrs M. Dimova and Mr V. Obretenov, of the Ministry of Justice.

3. The applicant alleged that the criminal charges against him had not been determined within a reasonable time, that he had not had effective remedies in that respect, and that the prohibition on his leaving Bulgaria had been unlawful and unjustified.

On 20 September 2010 the application was communicated to the Government.

5. The application was later transferred to the Fourth Section of the Court, following the re-composition of Court’s sections on 1 February 2011.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1974 and lives in Dinkata.

A. The criminal proceedings against the applicant

On 6 October 1994 the applicant confessed before the police to committing robbery together with two other individuals earlier that day. The stolen goods were confiscated by the police that same day.

On 4 October 1995 criminal proceedings against the applicant were formally instituted.

It appears that thereafter the case remained dormant until 5 October 2004 when witnesses were questioned.

In the period between 2001 and 2004 the applicant left the country on a number of occasions and returned each time.

On 6 October 2004 the applicant, who was abroad at the time, was appointed an ex officio lawyer and was charged in absentia with robbery.

The first hearing of the case was held on 14 January 2005 in the applicant’s presence.

In a judgment of 12 April 2006 the Pazardzhik District Court found the applicant guilty and sentenced him to one year’s imprisonment, suspended for three years.

Following an appeal lodged by the applicant’s co-defendant, in a final judgment of 12 October 2006 the Pazardzhik Regional Court upheld the lower court’s judgment including the applicant’s conviction and sentence.

B. Prohibition to leave the country

On 9 March 2007 the Pazardzhik Regional Police Directorate ordered the imposition of a ban on the applicant leaving the country on account of his conviction and pending his rehabilitation. It relied on section 76(2) of the 1998 Bulgarian Identity Papers Act.

The applicant contested the order arguing that he was unable to provide for his family in Bulgaria and that he had employment opportunities in Serbia.

On 25 May 2007 the applicant was refused passage by a border police official while attempting to leave Bulgaria in spite of the imposed prohibition.

By a final judgment of 10 October 2007 the Supreme Administrative Court upheld the prohibition. The court reasoned that it was within the administrative authority’s discretion to impose such a ban and that its assessment was not subject to judicial control. At the same time, it held that the law had been complied with in that such restriction could be imposed in cases where a conviction was in place and prior to the rehabilitation of the convicted person and that other factors, such as the impossibility to find employment in Bulgaria, were irrelevant.

II. RELEVANT DOMESTIC LAW AND PRACTICE

The relevant domestic law and practice concerning travel bans on convicted individuals pending their rehabilitation is set out in the Court’s judgment in the case of Nalbantski v. Bulgaria, no. 30943/04, §§ 25-29, 10 February 2011.

The relevant statutory provisions concerning the rehabilitation of persons convicted with a suspended sentence are summarised in the above cited Nalbantski judgment, § 30.

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION

The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention and that he did not have effective remedies in that respect as provided by Article 13.

The relevant part of Article 6 § 1 reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government left it to the Court to decide whether, in the particular case, there had been a breach of the Convention.

The period to be taken into consideration began on 6 October 1994 when the applicant confessed to committing the offence in a statement before the police (see Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, § 74, 10 May 2011, with further reference). It ended on 12 October 2006, the day of delivery of the Regional Court’s final judgment. The proceedings thus lasted twelve years for a preliminary investigation and two levels of jurisdiction.

A. Admissibility

The Court finds that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Alleged violation of Article 6 § 1

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, among many other authorities, Dimitrov and Hamanov, cited above; Makedonski v. Bulgaria, no. 36036/04, 20 January 2011).

Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, the case was not particularly complex and the authorities were responsible for a large part of the delay as a result of their being inactive for a period of nine years when the case remained dormant at the pre-trial stage (see paragraph 9 above). Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

2. Alleged violation of Article 13

The Court reiterates that 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 (see Dimitrov and Hamanov, cited above, § 90).

It observes further that it recently adopted a pilot judgment in the case Dimitrov and Hamanov, cited above where it examined the availability of domestic remedies in respect of the length of criminal proceedings in Bulgaria (ibid., §§ 86-99) and concluded that Article 13 had been violated in that respect. The Court sees no reason to reach a different conclusion in the present case.

Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention on account of the lack of domestic remedies in respect of the applicant’s complaint about the length of the criminal proceedings against him.

II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION

The applicant complained about the travel ban which had been imposed on him pending his rehabilitation. He relied on Article 2 of Protocol No. 4, which reads, in so far as relevant, as follows:

“... 2. Everyone shall be free to leave any country, including his own.

3. No restrictions shall be placed on the exercise of [that right] other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. ...”

A. Admissibility

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

The applicant argued that the interference with his right under that Convention provision was disproportionate as the domestic provisions did not strike a fair balance between the general interest and that of the individual. In addition, the domestic courts, despite being under an obligation to do so, had excluded the police authority’s assessment of the necessity to impose a prohibition on leaving the country from the scope of their judicial control.

The Government disagreed. They submitted that the travel ban had been lawful and its duration had not been unlimited. Further, the applicant had not substantiated his submissions before the domestic authorities and was free to appeal again in case of changes of circumstances.

2. The Court’s assessment

The Court notes at the outset that the present case is very similar to Nalbantski, cited above where the Court found a violation of Article 2 of Protocol No. 4.

In the instant case, like in Nalbantski, the authorities referred but to the applicant’s conviction and lack of rehabilitation in deciding to impose the travel ban while failing to take his individual situation into consideration or to assess the proportionality of the measure (see Nalbantski, cited above, § 66, with further reference). As in Nalbantski, that situation could not have been remedied in the judicial review proceedings (ibid.) seeing that the Supreme Administrative Court exercised only limited judicial review over the formal lawfulness of the ban while holding that the manner in which the police authorities exercised their discretion to assess the necessity of imposing the restriction was not subject to judicial review (see paragraph 18 above). Such rigid and automatic approach cannot be reconciled with the obligation imposed by Article 2 of Protocol No. 4 on the Bulgarian authorities to ensure that any interference with an individual’s right to leave his or her country is, from the outset and throughout its duration, justified and proportionate in the light of the circumstances (see Gochev v. Bulgaria, no. 34383/03, § 50, 26 November 2009).

There has accordingly been a violation of Article 2 of Protocol No. 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Lastly, the applicant complained that he had not had any effective domestic remedies in respect of his complaint under Article 2 of Protocol No. 4 and that the prohibition on his leaving the country interfered with his private life. He relied on Articles 8 and 13 of the Convention.

In view of its findings above under Article 2 of Protocol No. 4, the Court finds that the above complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.

However, having regard to the finding relating to Article 2 of Protocol No. 4 (see paragraph 38 above), the Court considers that it is not necessary to examine whether the facts examined under that provisions also gave rise to a violation of Articles 8 and 13 (see, in respect of Article 8, Riener v. Bulgaria, no. 46343/99, § 134, 23 May 2006).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant claimed 15,000 euros (EUR) in respect of non pecuniary damage.

The Government considered that the claim was exorbitant.

The Court considers that the applicant must have sustained non pecuniary damage as a result of the above established violations. Ruling on an equitable basis and taking into account all the circumstances of the case, it awards the applicant EUR 3,600 in respect of non-pecuniary damage.

B. Costs and expenses

The applicant also sought reimbursement of EUR 3,500 for the costs and expenses incurred before the Court. In support of his claim he presented a time-sheet and a contract for legal representation. He requested that the amount awarded under this head be transferred directly into the bank account of his lawyer.

The Government contested these claims as excessive.

According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads. The amount is payable directly to the applicant’s legal representative.

C. Default interest

The Court considers it appropriate that the default interest rate 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 application admissible;

Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the criminal proceedings against the applicant;

Holds that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, on account of the lack of an effective remedy for the excessive length of the criminal proceedings against the applicant;

Holds that there has been a violation of Article 2 of Protocol No. 4 of the Convention;

Holds that that there is no need to examine the complaints under Articles 8 and 13 of the Convention relating to the travel ban imposed on the applicant;

Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, payable into the bank account of the applicant’s legal representative;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Päivi Hirvelä Deputy Registrar President