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FIFTH
SECTION
CASE OF BALABANOV v. BULGARIA
(Application
no. 70843/01)
JUDGMENT
STRASBOURG
3
July 2008
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 Balabanov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Volodymyr
Butkevych,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 10 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 70843/01) 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 Kostadin Stoyanov
Balabanov (“the applicant”), on 23 April 2001.
- The
applicant was represented by Mr V. Stoyanov, a lawyer practising in
Pazardzhik. The Bulgarian Government (“the Government”)
were represented by their Agent, Mrs M. Kotzeva, of the Ministry of
Justice.
- On
5 January 2006 the Court declared the application partly inadmissible
and decided to communicate to the Government the complaint concerning
the length of the criminal proceedings against the applicant. Under
the provisions of Article 29 § 3 of the Convention, it decided
to examine the merits of the complaint at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Peshtera.
- On
11 January 1990 the Pleven district public prosecutor’s office
opened criminal proceedings against the applicant for theft,
embezzlement and other offences allegedly committed in 1989 and the
beginning of 1990. On an unspecified date the applicant was formally
charged.
- At
a later date the case was transferred to the Sofia district public
prosecutor’s office.
-
Subsequently, the scope of the investigation was widened to include
thefts and other offences allegedly committed by the applicant after
January 1990.
- On
an unspecified date it was established that almost the entire case
file, which had consisted of thirty-two volumes, had been lost.
Efforts were made to reconstruct the case file as far as possible.
- On
9 April 1999 the Sofia district public prosecutor’s office
terminated the investigation on unknown grounds.
- That
decision was quashed by the Sofia city public prosecutor’s
office on 8 July 1999.
- The
decision of 8 July 1999 also contained instructions to the
investigator as to the necessary investigative steps.
- Between
1999 and 2002 the investigator examined several witnesses and
commissioned an expert opinion by an economist to establish the value
of the chattels allegedly stolen or appropriated by the applicant.
- On
11 April 2005 the Sofia district public prosecutor’s office
terminated the proceedings on the ground that the prosecution of most
of the offences was time-barred and that it had not been established
that the applicant had committed the remaining offences.
14. In
connection to these and other proceedings, the applicant was in
pre-trial detention or in prison between May 1991 and August 1993,
between 25 November and 7 December 1993 and between May 1994 and an
unspecified date in 2002, 2003 or 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A legislative amendment that entered into force in
June 2003 introduced the possibility for an accused person to request
that his case be brought for trial if the investigation had not been
completed within a time-limit of one or two years, depending on the
charges (Article 239a Code of Criminal Procedure, as in force until
April 2006). That possibility applied with immediate effect in
respect of investigations opened before June 2003. If the prosecution
failed to introduce an indictment or terminate the proceedings, the
trial court was under a duty to terminate the proceedings itself.
-
Under the State and Municipalities Responsibility for Damage Act of
1988 (“the SMRDA”) individuals can in certain
circumstances seek damages for unlawful acts of the authorities. The
Act does not mention excessive length of proceedings as a ground for
an action for damages. Nor is there any practice in the domestic
courts of awarding damages for excessive length of proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained that the criminal proceedings against him were
unreasonably lengthy in breach of Article 6 § 1 of the
Convention and under Article 13 that he did not have effective
remedies in this respect.
- The
relevant part of Article 6 § 1 of the Convention provides 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 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.”
Period to be taken into consideration
- The
period to be taken into consideration began only on 7 September 1992,
when the Convention entered into force for Bulgaria. Nevertheless,
in assessing the reasonableness of the time that elapsed after that
date, account must be taken of the state of proceedings at that time.
The proceedings ended on 11 April 2005. The period was thus twelve
years, seven months and four days. During that time the criminal
proceedings remained at the preliminary investigation stage.
B. Admissibility
- The
Government submitted that the applicant had failed to exhaust the
available domestic remedies because he had not initiated an action
for damages under the SMRDA. The applicant disagreed.
- The
Court finds that the question of exhaustion of domestic remedies
partly relates to the merits of the applicant’s complaint under
Article 13 of the Convention. Therefore, to avoid prejudging the
latter, both questions should be examined together. Accordingly, the
Court holds that the question of exhaustion of domestic remedies
should be joined to the merits (see Nalbantova v. Bulgaria,
no. 38106/02, § 27, 27 September 2007).
- The
Court further finds that the complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and are not inadmissible on any other grounds. They must
therefore be declared admissible.
C. Merits
1. Complaint under Article 6 § 1 of the Convention regarding
the length of the criminal proceedings
- 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 observes that in the present case the proceedings remained at
the pre-trial stage for more than twelve and a half years. It is true
that the case appears to have been complex as it concerned numerous
offences allegedly committed by the applicant (see paragraphs 5 and 7
above). However, it is clear from the facts of the case that the
conduct of the authorities, not the complexity of the case, led to
the excessive length of the proceedings. In particular, delays
resulted from the loss of the case file and the efforts to
reconstruct it (see paragraph 8 above). Furthermore, the only
investigative steps taken between 1999 and 2002 were the questioning
of several witnesses and the commissioning of an expert report (see
paragraph 12 above). The proceedings were only terminated three years
later, in 2005 (see paragraph 13 above). These delays are clearly
attributable to the authorities. There is, on the other hand, no
indication that the applicant, who was in detention for most of the
period under consideration (see paragraph 14 above), was responsible
for any substantial delay.
- The
Court thus comes to the conclusion 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. Complaint under Article 13 in conjunction with Article 6 §
1 of the Convention
- The
Court reiterates that Article 13 of the Convention guarantees the
availability at national level of a remedy to deal with the substance
of an “arguable complaint” under the Convention and to
grant appropriate relief (see Kudła v. Poland [GC], no.
30210/96, § 157, ECHR 2000 XI). In the present case, having
regard to its conclusion with regard to the excessive length of the
proceedings (see paragraph 26 above), the Court considers that the
applicant had an arguable claim of violation of Article 6 § 1.
- 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, if they prevent the alleged
violation or its continuation, or provide adequate redress for any
violation that has already occurred (see Kudla,
cited above,
§ 158).
- The
Court must determine whether, in the particular circumstances of the
present case, there existed in Bulgarian law effective remedies in
respect of the length of the proceedings.
- The
Court notes that in June 2003 an amendment to the Bulgarian Code of
Criminal Procedure, the new Article 239a, introduced the possibility
for an accused person to have his case brought before the trial court
if the investigation has not been completed within a certain
time-limit (see paragraph 15 above). However, even assuming that
after June 2003 the applicant could make use of the new remedy, any
acceleration of the proceedings at that time would have come too late
to make up for the excessive delay already accumulated.
- As
to the Government’s preliminary objection that the applicant
has failed to avail himself of an available domestic remedy under the
SMRDA, the Court notes that a similar objection has been rejected in
an earlier case (Nalbantova v. Bulgaria, cited above, §
35) because the SMRDA does not provide for damages in respect of
length of proceedings (see paragraph 16 above). The Court sees no
reason to reach a different conclusion in the present case.
- The
Court further notes that the Government have not referred to the
existence of any other relevant remedy under Bulgarian law.
- Accordingly,
there has been a violation of Article 13 of the Convention in that
the applicant had no domestic remedy whereby he could enforce his
right to a “hearing within a reasonable time” as
guaranteed by Article 6 § 1 of the Convention.
II. 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 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government did not express an opinion.
- The
Court considers that the applicant has undoubtedly suffered
non-pecuniary damage as a result of the protraction of the criminal
proceedings against him for over twelve years. Having regard to its
case-law in similar cases and deciding on an equitable basis, the
Court awards EUR 8,000
under this head, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant claimed EUR 30,000 for legal work by his lawyer before the
domestic authorities and the Court. He also claimed 30 Bulgarian levs
(BGN) for postage. He requested that any amount awarded by the Court
under this head be transferred to the account of his legal
representative, Mr V. Stoyanov. In support of his claims the
applicant provided a time sheet of his representative and receipts
for the postage.
- The
Government did not express an opinion.
- 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 information in its possession and the above criteria, and also
noting that part of the applicant’s complaints were declared
inadmissible, the Court considers it reasonable to award the sum of
EUR 600 covering costs under all heads. This amount is to be paid
into the bank account of the applicant’s representative,
Mr V. Stoyanov.
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
- Decides to join to the merits the question of
the exhaustion of domestic remedies;
- Declares admissible the complaints concerning
the length of the criminal proceedings against the applicant and the
alleged lack of any effective remedy in this respect;
- 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 and accordingly dismisses the
Government’s preliminary objection based on non-exhaustion of
domestic remedies;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from 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 at the date of
settlement:
(i)
EUR 8,000 (eight thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii)
EUR 600 (six hundred euros), plus any tax that
may be chargeable to the applicant, in respect of costs and
expenses, to be paid in 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 3 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
