ROSITSA GEORGIEVA v. BULGARIA - 32455/05 [2011] ECHR 1081 (5 July 2011)


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    European Court of Human Rights
    You are here: BAILII >> Databases >> European Court of Human Rights >> ROSITSA GEORGIEVA v. BULGARIA - 32455/05 [2011] ECHR 1081 (5 July 2011)
    URL: http://www.bailii.org/eu/cases/ECHR/2011/1081.html
    Cite as: [2011] ECHR 1081

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    FOURTH SECTION







    CASE OF ROSITSA GEORGIEVA v. BULGARIA


    (Application no. 32455/05)











    JUDGMENT




    STRASBOURG


    5 July 2011



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

    In the case of Rositsa Georgieva v. Bulgaria,

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

    Lech Garlicki, President,
     Zdravka Kalaydjieva,
     Vincent A. De Gaetano, judges,
    and Fatoş Aracı, Deputy Section Registrar,

    Having deliberated in private on 14 June 2011,

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

    PROCEDURE

  1. The case originated in an application (no. 32455/05) 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, Ms Rositsa Dimitrova Georgieva (“the applicant”), on 1 August 2005.

  2. The applicant was represented by Mr M. Ekimdjiev and Mrs K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Dimova, of the Ministry of Justice.

  3. On 16 November 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14 to the Convention, the application was allocated to a Committee of three Judges.

    4. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  4. The facts of the case, as submitted by the applicant, may be summarised as follows.

  5. The applicant was born in 1938 and lives in Haskovo. In 1991 the applicant’s husband died, leaving his wife and his brother as his only heirs.

    6. A.  First phase of the partition-of-property proceedings

  6. On 17 January 1994 the applicant brought an action against her husband’s brother with the Haskovo District Court, seeking partition of their common inheritance.

  7. Between March 1994 and February 1995 the court held four hearings. By a judgment of 13 February 1995 it allowed the partition of the second floor of a house, of a garage and a car, determined the parties’ shares and ordered that the use of all the items be granted to the applicant for the course of the proceedings. In the same judgment the court dismissed the action for partition of the first floor of the same house, finding that the first floor belonged solely to the respondent.

  8. The applicant filed an appeal with the Haskovo Regional Court, arguing, inter alia, that the District Court should have allowed the partition of the first floor.

  9. By a judgment of 22 May 1995 the Regional Court quashed the judgment of the District Court as regards the partition of the house, announced a hearing on the merits and appointed three experts to prepare a report on certain aspects of the partition of the house.

  10. Between May 1995 and June 1996 the court held four hearings where, in particular, it examined the expert report and heard the experts. By a judgment of 4 June 1996 the court allowed the partition only of the second floor of the house and determined the parties’ shares.

  11. By a judgment of 19 December 1996 the Supreme Court of Cassation dismissed the applicant’s ensuing appeal.

  12. On 21 April 1997 the applicant filed a request for reopening of the partition proceedings with the Supreme Court of Cassation which was rejected by a judgment of 16 June 1998.

  13. In relation to this phase of the partition proceedings on 16 February 1999 the applicant brought a declaratory action, seeking to establish criminal conduct on the part of the experts, in that by acting with negligence they had presented false reports before the court (a crime under Article 291 § 2 of the Criminal Code). In case such conduct was established, the applicant could have sought reopening of the case. Following proceedings before three instances, by a final judgment of 4 April 2006 the Supreme Court of Cassation dismissed the action.

    14. B.  Second phase of the partition-of-property proceedings

  14. Neither the applicant, nor the Government specify the date on which the second phase of the partition proceedings began before the Haskovo District Court. It appears from the parties’ submissions that it was not later than 16 October 1998. Until December 2001 the court listed nine hearings. One was adjourned for collection of additional evidence, three were adjourned for reasons related to the experts and two more for reasons related to the respondent. During some of the hearings the applicant unsuccessfully requested the court to stay the proceedings in order to await the outcome of the proceedings seeking to establish criminal conduct on the part of the experts.

  15. By a judgment of 5 December 2001 the District Court allotted the second floor of the house to the applicant, allotted the garage to the respondent and ordered the applicant to make payment for levelling away the differences in the respondent’s share.

  16. The District Court held an additional hearing on 12 April 2002 in respect of the car. By a judgment of 18 June 2002 the court ordered that the car be auctioned off and determined the parties’ shares in this respect.

  17. On 22 July 2002 the applicant filed an appeal against the two judgments before the Haskovo Regional Court. By a judicial order of 31 October 2002 the appeal was returned to the applicant, as she allegedly failed to pay the court fee. Upon the applicant’s appeal, by a final decision of 26 June 2003 the Regional Court quashed the order and ruled on the continuation of the proceedings.

  18. Following the applicant’s request, on 25 February 2004 the partition proceedings before the Regional Court were stayed in order to await the outcome of the proceedings, seeking a declaration of criminal conduct on the part of the experts (see paragraph 13 above).

  19. On 2 November 2006 the court resumed the partition proceedings. Between November 2006 and January 2008 the court held five hearings. The court adjourned the case three times for reasons related to the experts.

  20. By a judgment of 28 January 2008 the Regional Court quashed the lower instance judgments and allotted the second floor of the house to the applicant and the garage with the car to the respondent.

  21. On 28 February 2008 the applicant filed a cassation appeal. On 10 March 2008 the court ordered the applicant to pay the court fee. The applicant fails to provide information about the course of the proceedings between March 2008 and July 2009. By a final judgment of 5 January 2010 the Supreme Court of Cassation dismissed the applicant’s appeal and upheld the lower court’s judgment.

  22. Meanwhile, in April 2008 the applicant filed another request for reopening of the partition proceedings in its first phase to the Supreme Court of Cassation which was rejected by a final judgment of 24 June 2009.

    23. II.  RELEVANT DOMESTIC LAW

  23. At the relevant time partition-of-property proceedings were governed by Articles 278 to 293a of the Code of Civil Procedure of 1952. They had two phases. During the first phase the court had to ascertain the number and the identity of the co-owners and of the items of common property to be partitioned, as well as the share of each co-owner (Article 282 § 1). During the second phase the court carried out the partition, which could be done either by specifying which item of property went to which co-owner (Articles 287 and 289), or by auctioning off an undividable piece of property and distributing the proceeds among the co owners (Article 288 § 1).

  24. Until July 1999 Bulgarian law did not provide for any remedies in respect of length of civil proceedings. A “complaint about delays”, was introduced in July 1999, by virtue of Article 217a of the Code of Civil Procedure 1952, in force until 2007. Pursuant to this procedure, a litigant aggrieved by the slow examination of the case could file a complaint before the president of the higher court. The latter had the power to issue mandatory instructions for faster processing of the case.

    25. THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

  25. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

    26. “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

    A.  Admissibility

  26. The Government argued that the applicant had failed to exhaust the available domestic remedies because she had not filed a “complaint about delays” (see paragraph 24 above).

  27. The applicant replied that such a complaint did not represent an effective remedy to be exhausted.

  28. The Court has already found that the “complaint about delays” can be effective, but that regard must be had to the specific circumstances of each case (see Stefanova v. Bulgaria, no. 58828/00, § 69, 11 January 2007).

  29. In the present case, the Court observes that the “complaint about delays” was introduced only in July 1999. Therefore, its use could not have made up for the delays which had occurred prior to this date (see, among others, Djangozov v. Bulgaria, no. 45950/99, § 52, 8 July 2004). Furthermore, in respect of the period after July 1999 the major source of delay was the fact that the courts dealt with the case over a number of hearings (see paragraphs 14 and 19 above) and on one occasion wrongly assumed that the applicant failed to pay the court fee upon appeal (see paragraph 17 above). It does not seem that that state of affairs could have been remedied through a “complaint about delays”.

  30. In view of the above, in the particular circumstances of the case, a “complaint about delays” did not represent an effective remedy to be exhausted within the meaning of Article 35 § 1 of the Convention. The Government’s objection is therefore dismissed.

  31. 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.

    32. B.  Merits

  32. The Government contested the applicant’s claim. It maintained, in particular, that with her behaviour she had contributed to the overall length of the proceedings. The applicant argued in reply that she had engaged in different proceedings only in order to defend her rights.

  33. The Court observes that the period to be taken into consideration began on 17 January 1994 when the applicant brought an action before the Haskovo Regional Court and ended on 5 January 2010 with the final judgment of the Supreme Court of Cassation. It thus lasted approximately sixteen years for two phases of partition-of-property proceedings each one with three levels of jurisdiction.

  34. 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 and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

  35. 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 Kambourov v. Bulgaria, no. 55350/00, 14 February 2008; Hadjibakalov v. Bulgaria, no. 58497/00, 8 June 2006). The Court observes that the distinctive feature of the case is that the judicial stage of partition of property proceedings in Bulgaria has two phases, during which the courts must, as a rule, deal with more issues than in an ordinary civil action. It thus seems that by their very nature such proceedings are apt to consume more time than a typical civil case (see Kambourov, cited above, § 57). However, this cannot absolve the authorities from their duty to dispose of the case within a reasonable time.

  36. As regards the conduct of the authorities, the Court observes that some of the delay occurred because of the number of adjournments for reasons related to experts during the second phase of the partition proceedings (see paragraphs 14 and 19 above); another delay was caused by the pendency of the applicant’s appeal before the Haskovo Regional Court due to the court’s wrongful assumption that the applicant had failed to pay the court fee (see paragraph 17 above).

  37. As regards the conduct of the applicant, the Court observes that it also contributed to the overall length. On two occasions the applicant filed requests for reopening which were rejected as ill-founded. For a number of years she was seeking to establish, as it turned out unsuccessfully, criminal conduct on the part of the experts. The applicant repeatedly requested staying in the proceedings and as a result in February 2004 the proceedings were stayed for two years and nine months (see paragraphs 14 and 18 above). Furthermore, the applicant fails to provide any information in respect of the gap between the two phases of the partition proceedings, which in all probability occurred as a result of her first request for reopening (see paragraph 12 above), and the reasons for the pendency of her cassation appeal during the second phase of the proceedings (see paragraph 21 above), thus of a period of approximately three years and two months.

  38. The Court is conscious of the aforementioned as well as of the complexity of the proceedings which by law involved two stages, each one with three levels of jurisdictions, but considers that these circumstances alone could not justify the fact that the proceedings lasted approximately sixteen years.

  39. The Court finds therefore that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

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

    II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

  40. The applicant further complained under Article 13 of the Convention that she did not have an effective domestic remedy for the length of the proceedings.

  41. The Government contested that argument.

  42. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

  43. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

  44. The Court must, therefore, 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.

  45. The Court refers to its finding that in the particular circumstances of the present case a “complaint about delays” did not represent a remedy to be exhausted (see paragraph 30 above). For the same reasons it cannot be considered as an effective remedy within the meaning of Article 13 of the Convention. As regards compensatory remedies, the Court has also not found it established that in Bulgarian law there exists the possibility to obtain compensation or other redress for excessively lengthy proceedings (see, for example, Rachevi v. Bulgaria, no. 47877/99, §§ 96-104, 23 September 2004). The Court sees no reason to reach a different conclusion in the present case.

  46. Accordingly, there has been a violation of Article 13 of the Convention.

    47. III.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION AND ARTICLE 13 RELATED THERETO

  47. The applicant further complained that the length of the proceedings complained of had infringed her right to the peaceful enjoyment of her possessions, as guaranteed by Article 1 of Protocol No. 1 and that she did not dispose of an effective remedy related thereto, as required by Article 13.

  48. The Government contested that argument.

  49. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

  50. Having regard to its finding under Article 6 § 1 (see paragraph 36 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 and Article 13 related thereto (see Zanghì v. Italy, judgment of 19 February 1991, Series A no. 194-C, p. 47, § 23).

    51. IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  51. Article 41 of the Convention provides:

    52. “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

  52. The applicant claimed 8,000 euros (EUR) in respect of non pecuniary damage sustained on account of the excessive length of the proceedings and 3,000 in respect of the lack of effective remedies related thereto.

  53. The Government contested these claims.

  54. The Court considers that the applicant must have sustained certain non-pecuniary damage as a result of the excessive length of the proceedings and the lack of effective remedies in this respect. Taking into account the particular circumstances, including the conduct of the applicant during the proceedings, and the awards made in similar cases, and ruling on an equitable basis, as required under Article 41, the Court awards the applicant EUR 3,000, plus any tax that may be chargeable.

    55. B.  Costs and expenses

  55. The applicant also claimed EUR 2,311 for legal fees for the proceedings before the Court and EUR 42 for other costs, including postage, office materials and telephone calls. In support of this claim the applicant presented an agreement with her lawyer and a time-sheet for thirty-three hours at a rate of EUR 70 per hour. The applicant requested that the amount awarded for costs and expenses under this head be paid directly to her lawyer, Mr M. Ekimdjiev.

  56. The Government contested these claims as excessive.

  57. According to the Court’s case-law, applicants are 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, the Court considers it reasonable to award the sum of EUR 600, covering costs and expenses under all heads. This sum is to be paid into the bank account of the applicant’s legal representative, Mr M. Ekimdjiev.

    58. C.  Default interest

  58. 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.

    59. FOR THESE REASONS, THE COURT UNANIMOUSLY

  59. Declares the application admissible;


  60. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the civil proceedings;


  61. 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 civil proceedings;


  62. Holds that it is not necessary to examine the complaint under Article 1 of Protocol No. 1 to the Convention and Article 13 related thereto;


  63. Holds

    64. (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 3,000 (three 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 on the applicant, in respect of costs and expenses, payable directly 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;


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

    65. Done in English, and notified in writing on 5 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Fatoş Aracı Lech Garlicki
    Deputy Registrar President

     


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