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Cite as: [2012] ECHR 822
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FOURTH SECTION
CASE OF KOTSEV AND ERMENKOVA v. BULGARIA
(Application no. 33864/03)
JUDGMENT
STRASBOURG
10 May 2012
This judgment is final but it may be subject to editorial revision.
In the case of Kotsev and Ermenkova 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 17 April 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Relevant background information
B. The proceedings brought in 1996
7. On 21 March 1996 the mayor, noting that the building erected by B.I. could not be legalised, ordered its demolition. In April 1996 B.I. sought judicial review of this order by the Sofia City Court.
8. On 23 March 1999 it gave leave to the applicants, as well as to B.I.’s wife and brother, to join the proceedings.
9. A total of at least fifteen hearings were held between 8 June 1999 and 26 October 2007 in intervals ranging between four and eight months. Five hearings, listed for 8 June and 26 October 1999 and 25 February, 6 June and 21 November 2000, failed to take place because various parties had not been duly summoned. At least six hearings between January 2005 and October 2007 were adjourned on account of the need to summon a newly added party at her address in Toronto, Canada, by means of a letter rogatory.
10. The Sofia City Court rendered a judgment on an unspecified date in 2010. According to the latest correspondence received from the applicants in October 2010 the proceedings at that time were pending before the second level of court.
C. The proceedings brought in 1999
12. On 13 July 1999 B.I. and his wife sought judicial review of this order by the Sofia City Court. At the first hearing, held on 26 November 1999, the applicants intervened in the proceedings as interested parties.
13. Some twenty hearings were held until February 2006 scheduled at intervals ranging from two to nine months. At least four hearings were adjourned on account of improper summoning of the parties, including of B.I’s brother who lived in Canada. Following the latter’s death in 2002 at least six hearings were adjourned on account of a failure to summon his widow, who also lived in Canada, by a letter rogatory.
14. According to the latest correspondence received from the applicants in October 2010 the proceedings were still pending before the Sofia City Court.
D. The complaints lodged by the applicants
16. In 2002 the Ministry of Justice informed the local authorities which were a party to the proceedings involving the applicants that following an inspection carried out by a representative of the Inspectorate with the Supreme Judicial Council it had been established that a delay had indeed occurred and that it had been due to the abuse of process by B.I. and the high case-load of the Sofia City Court. The letter also stated that the Inspectorate had written to the Chairman of the Sofia City Court about the delays.
II. RELEVANT DOMESTIC LAW
THE LAW
I. PRELIMINARY OBSERVATION
18. The first applicant died on 20 November 2005, while the case was pending before the Court (see paragraph 1 above). His wife and son wish to pursue the application. It has not been disputed that they are entitled to do so on his behalf and the Court sees no reason to hold otherwise (see Toteva v. Bulgaria, no. 42027/98, § 45, 19 May 2004). For convenience this judgment will continue to refer to Mr Valentin Konstantinov Kotsev as the “first applicant” although his heirs are today to be regarded as having that status (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 1, 19 February 2009).
II. ALLEGED VIOLATIONS OF THE CONVENTION
20. The relevant parts of Article 6 § 1 read as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13 reads 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.”
Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. Admissibility
B. Merits
1. Article 6 § 1
23. The applicants complained that the length of the two sets of proceedings to which they had been parties had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.
26. 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; the above-cited Finger judgment, § 94).
27. 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 Frydlender, Finger, both cited above).
28. 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. While it is true that the authorities cannot be held responsible for the execution of letters rogatory in Canada, that fact alone cannot explain the overall length of the two sets of proceedings. The cases were not particularly complex and the authorities were responsible for a large part of the delays as a result of improper summoning of the parties and on account of the lengthy intervals between hearings (see paragraph 9 and 13 above). Having regard to its case-law on the subject, the Court considers that in the instant case the length of the two sets of proceedings to which the applicants were parties was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1.
2. Article 13
30. 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 Finger, cited above, § 83).
31. It notes that the applicants lodged at least three complaints (see paragraph 15 above) which, albeit not referring to Article 217a of the 1952 Code of Civil Procedure, related, inter alia, to the delays in the two sets of proceedings at issue. However, having regard to the recently adopted pilot judgment against Bulgaria in the above-cited Finger case, it is not necessary to determine whether these complaints could be considered as such about delays. In Finger, the Court examined the availability of domestic remedies in respect of the length of civil proceedings in Bulgaria (ibid., §§ 82-91), including the effectiveness of the “complaint about delays” set out by the 1952 Code of Civil Procedure, 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.
32. The Court therefore dismisses the Government’s objection about exhaustion of domestic remedies and finds that there has been a violation of Article 13 of the Convention.
3. Article 1 of Protocol No. 1
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable to the first applicant and 7,000 (seven thousand euros), plus any tax that may be chargeable to the second applicant, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros) jointly to the applicants, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of the applicants’ 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;
Done in English, and notified in writing on 10 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Päivi
Hirvelä
Deputy Registrar President