European Court of Human Rights

Information Note on the Court’s case-law No. 164

June 2013

Balakchiev and Others v. Bulgaria (dec.) - 65187/10

Decision 18.6.2013 [Section IV]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Establishment in accordance with Court pilot judgment of domestic remedy affording compensation in length-of-proceedings cases and requiring exhaustion: inadmissible

 

Facts - In two pilot judgments (Finger and Dimitrov and Hamanov) delivered on 10 May 2011, the Court required the respondent State to introduce effective legal remedies, conforming to the principles laid down in the Court’s case-law, for the excessive length of civil, administrative and criminal proceedings. In response, Bulgaria put in place two new compensatory remedies: an administrative remedy, governed by the new sections 60a et seq. of the Judiciary Act 2007 Act (“2007 Act”), for concluded proceedings, and a judicial one, governed by a new section 2b of the State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”), for pending proceedings.

The issue before the European Court in the present cases was whether the applicants, who complained of the length of civil proceedings (Balakchiev) and of criminal proceedings (Valecha and Abrashev), were first required to exhaust these new remedies, which were untested and had been introduced after their applications to the Court were lodged. 

Law - Article 35 § 1: The Court had to determine whether the new remedies, taken alone or together, were available and effective. As regards procedural guarantees, it noted in particular that the 2007 Act did not provide for a contentious procedure, and that the enforceability of a possible decision to grant compensation was open to doubt. However, the administrative remedy governed by the 2007 Act was only the first limb of the system of remedies introduced by the Bulgarian authorities. Indeed, the amended 1988 Act provided for a fully judicial procedure which could result in a legally binding decision by a court. Therefore, claims under the 1988 Act would benefit from the full panoply of the normal judicial procedure applicable to the examination of civil actions.

The other characteristics of the new remedies, namely their costs, their speediness, their scope as well as the amount and prompt payment of compensation, did not give rise to any general concerns. The Court found in particular that, although some aspects of the administrative and judicial procedures laid down in the 2007 Act and the 1988 Act might call for clarification, this would be a question of interpretation and practice by the Bulgarian authorities and courts. Therefore, it could not be assumed at this stage that the authorities and the courts would not give proper effect to the new provisions. Moreover, mere doubts about the effective functioning of a newly created remedy did not dispense applicants from having recourse to it.

The Court also found that the remedies operated retrospectively as they provided redress in respect of delays preceding their introduction, both in pending cases before the Bulgarian courts and to people who had already lodged an application with the Court in which they had raised complaints in relation to unreasonably lengthy proceedings.

The remedies appeared to be available not only to persons who were party to proceedings which ended after they became operational - 1 October and 15 December 2012, respectively - but also to persons who were party to proceedings which ended less than six months before 15 December 2012, and to persons, such as the applicants in the present case, who lodged applications with this Court before those dates.

The Court therefore considered that, taken together, an application for compensation under the 2007 Act and a claim for damages under the 1988 Act could be regarded as effective domestic remedies in respect of the allegedly unreasonable length of proceedings before the civil, criminal and administrative courts in Bulgaria. Hence, the applicants were, in line with the Court’s well-established case-law in relation to post-pilot judgment remedies, required to turn to the newly introduced remedies. As they had apparently not brought any proceedings under the new provisions of the 2007 Act or the 1988 Act and no special circumstances absolved them from doing so, they had failed to exhaust domestic remedies.

Conclusion: inadmissible (failure to exhaust domestic remedies).

(See Finger v. Bulgaria, no. 37346/05, and Dimitrov and Hamanov v. Bulgaria, no. 48059/06, both delivered on 10 May 2011, Information Note no. 141; and Turgut and Others v. Turkey (dec.), no. 4860/09, 26 March 2013, Information Note no. 161)

 

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