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FIFTH
SECTION
CASE OF GOSPODINOVA v. BULGARIA
(Application
no. 38646/04)
JUDGMENT
STRASBOURG
10
February 2011
This
judgment is final but it may be subject to editorial revision
In the case of Gospodinova v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mirjana Lazarova Trajkovska,
President,
Zdravka Kalaydjieva,
Julia Laffranque,
judges,
and Stephen Phillips,
Deputy
Section Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 38646/04) 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 Yordanka Ilieva Gospodinova (“the
applicant”), on 13 October 2004.
The applicant was represented by Ms S. Stefanova and Mr M.
Ekimdzhiev, lawyers practising in Plovdiv.
- On
20 November 2004 the applicant passed away. In a letter dated
22 January 2010 her son and only heir, Mr Rosen Gospodinov,
informed the Court that he wished to pursue the present proceedings
in her stead. He indicated that he also wished to be
represented by Ms Stefanova and
Mr Ekimdzhiev.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Dimova, of the Ministry of Justice.
- On
23 June 2009 the Court
decided to communicate to the Government the
applicant’s complaints concerning the length of the criminal
proceedings in which she had acted as a civil claimant and the lack
of effective remedies in that respect. In accordance with
Protocol no. 14, the application was allocated to a Committee of
three Judges. The complaints of the remaining
initial applicants were dismissed as inadmissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946.
- The
applicant lived in a house in Plovdiv situated in the same yard as
the house of Ms N.K. The applicant’s family had bad relations
with Ms N.K.’s family.
- On
27 July 1996 a quarrel erupted in the yard between Ms N.K.,
accompanied by friends of hers, and the applicant, accompanied by
some relatives. The quarrel grew into a fight between the two groups.
According to the applicant, one of Ms N.K.’s friends entered
the applicant’s house to prevent her husband from calling the
police. Allegedly, one of Ms N.K.’s friends had a gun and
threatened to kill the applicant.
- On
27 July 1996 the applicants filed a complaint with the Plovdiv
district public prosecutor’s office describing the events of
the same day and requesting that Ms N.K. and her companions be
prosecuted. In September 1996 the Plovdiv district public
prosecutor’s office opened criminal proceedings. However, until
August 1999 it did not take any investigative action.
- In
August and September 1999 the prosecuting authorities questioned the
applicant and several other witnesses.
- On
an unspecified date Ms N.K. was charged with having threatened the
applicant and having, together with other persons, forcibly entered
into her house.
- On
9 August 1999 the applicant filed with the investigator in charge of
the case a civil claim against Ms N.K., seeking 3,000 Bulgarian levs
(BGN) in non-pecuniary damages. On the same day, by a decision of the
investigator, the applicant was formally admitted as a civil party in
the criminal proceedings.
- Between
1999 and 2004 the Plovdiv district public prosecutor’s office
discontinued the criminal proceedings against Ms N.K. on two
occasions, finding that she had committed no publicly prosecutable
offences. However, on both occasions its decisions were quashed upon
appeals by the applicant, either by the Plovdiv appellate public
prosecutor’s office or by the Plovdiv District Court, which
remitted the case for further investigation. During that period the
prosecuting authorities questioned several more witnesses.
- On
3 June 2004 the Plovdiv district public prosecutor’s office
discontinued the proceedings once again, on the ground that the
time-limit for prosecuting the offences Ms N.K. had been charged with
had expired. That decision was upheld by the Plovdiv District Court
on 25 June 2004.
II. RELEVANT DOMESTIC LAW
- Under
the Code of Criminal Procedure 1974, as in force at the relevant
time, a victim of a criminal offence could bring, in the framework of
the criminal proceedings, a civil claim against the accused or any
third person who might le liable for any damage inflicted.
THE LAW
I. PRELIMINARY REMARK
- The
Court notes that the applicant passed away on 20 November 2004, while
the case was pending before the Court, and that her son and only
heir, Mr Rosen Gospodinov, expressed the wish to pursue the
application on her behalf (see paragraph 2 above). It has not been
disputed that he is entitled to do so and the Court sees no reason to
hold otherwise (see, among many other authorities, Donka Stefanova
v. Bulgaria, no. 19256/03,
§ 11, 1 October 2009).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings in
which she had acted as a civil party had been incompatible with the
“reasonable time” requirement laid down in Article 6 §
1 of the Convention, which, in so far as relevant, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
- The
Government urged the Court to dismiss the complaint as inadmissible
for failure to exhaust domestic remedies, because the applicant had
failed to seek damages from Ms N.K. outside the framework of the
criminal proceedings.
- However,
the Court does not see how such an action could have remedied the
applicant’s grievances, which did not concern access to a court
to seek damages, but, instead, the length of the criminal proceedings
in which she had acted as a civil party. Accordingly, the Court
dismisses the Government’s objection.
- The
Court notes furthermore that the complaint is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and not inadmissible on any other ground. It must
therefore be declared admissible.
B. Period to be taken into consideration
- The
Court notes that the applicant brought a civil claim in the framework
of the criminal proceedings against Ms N.K. on 9 August 1999 (see
paragraph 11 above). In his written submission in the case her son
considered that no civil rights and obligations of the applicant had
been at stake prior to this date and that Article 6 § 1 had not
been applicable. The Court also finds that the period to be taken
into consideration for the purposes of Article 6 § 1 started on
9 August 1999, when the applicant brought a civil claim.
Nevertheless, it wishes to add the following observations.
- The
applicant’s initial complaint to the prosecuting authorities
dated back to July 1996. After opening criminal proceedings in
September 1996 those authorities remained completely inactive for
almost three years, until August 1999 (see paragraph 8 above) and it
appears that charges against Ms N.K. were only brought around
that time, after the investigation was resumed (see paragraphs 10-11
above). Apparently, the applicant, who brought her civil claim on 9
August 1999, did so immediately after this had become possible, that
is after charges had been brought and there was an “accused”,
as required by domestic law at the time (see paragraph 14 above).
Accordingly, the applicant cannot be blamed for not having brought an
action for damages earlier. Although these considerations do not
affect the Court’s conclusion above that the period to be taken
into consideration started on 9 August 1999, it will take them into
account when assessing the reasonableness of that period.
- The
period in question ended on 25 June 2004, when the criminal
proceedings against Ms N.K. were discontinued with finality (see
paragraph 13 above). It thus lasted nearly five years, during
which the case remained at the stage of preliminary investigation.
C. Merits
- 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).
- 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, for example, Rachevi v. Bulgaria, no. 47877/99, 23
September 2004, and Marinova and Radeva v. Bulgaria, no.
20568/02, 2 July 2009). Having examined all the material submitted to
it, the Court sees no reason to reach a different conclusion in the
present case. It notes, in particular, that the case remained at the
stage of preliminary investigation for nearly five years and that it
was not of any particular complexity as it concerned a minor quarrel
between neighbours. Furthermore, significant delays in the
proceedings were caused by the discordant actions of the authorities,
who discontinued on two occasions the proceedings, but after that,
upon appeals by the applicant, decided to investigate further (see
paragraph 12 above).
- Moreover,
as the Court already noted (see paragraph 21 above), the applicant
brought her claim for damages in August 1999, immediately after it
became possible to do so. However, by that time the proceedings had
already been delayed by three years, due to the prosecuting
authorities’ initial inactivity (see paragraphs 8-11 above).
- In
view of the above considerations, the Court concludes that there has
been a breach of Article 6 § 1 of the Convention in that the
proceedings for the determination of the applicant’s civil
rights and obligations lasted an unreasonably long period of time.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the Convention that
she had had no effective remedy in respect of the length of the
proceedings.
- 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.”
- Without
raising any specific arguments, the Government contended that Article
13 had not been violated in the case.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Article
13 of the Convention guarantees an effective remedy before a national
authority for an alleged breach of the right under Article 6 § 1
to have a case heard within a reasonable time (see Kudła v.
Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).
- The
Court already found that a remedy referred to by the Government,
namely an action for damages against the alleged offender before the
civil courts, did not represent an effective remedy in the case
(see paragraphs 17-18 above). The Court has not been informed of
the existence of any other remedy allowing
civil claimants in criminal proceedings to obtain the speeding up of
those proceedings or compensation for their excessive length.
- Accordingly,
it concludes that in the present case there has been a violation of
Article 13 of the Convention.
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
- On
behalf of the applicant, her son, Mr Rosen Gospodinov, claimed 20,000
euros (EUR) in respect of non-pecuniary damage.
- The
Government contested this claim.
- The
Court considers that the applicant must have sustained non pecuniary
damage as a result of the protraction of the proceedings and the lack
of effective remedies in that regard. Ruling on an equitable basis,
it awards EUR 2,000 under that head, plus any tax that may be
chargeable, to be paid to the applicant’s son, Mr Rosen
Gospodinov.
B. Costs and expenses
- Mr
Rosen Gospodinov also claimed EUR 2,275 for the costs and expenses
incurred before the Court. He requested that any sum awarded under
this head be transferred directly into the bank account of his
lawyers, Ms Stefanova and Mr
Ekimdzhiev. The Government contested this claim.
- 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 were
reasonable as to quantum. In the present case, regard being had to
the circumstances of the case and the above criteria, the Court
considers it reasonable to award the sum of EUR 600, plus any tax
that may be chargeable to Mr Rosen Gospodinov, to be paid
directly to Ms Stefanova and
Mr Ekimdzhiev.
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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant’s son,
Mr Rosen Gospodinov, within three months, the following
amounts, to be converted into Bulgarian levs at the rate applicable
at the date of settlement;
(i) EUR
2,000 (two 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 Mr
Rosen Gospodinov, in respect of costs and expenses, to be transferred
directly into the bank account of the his legal representatives;
(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 claims for just
satisfaction.
Done in English, and notified in writing on 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mirjana Lazarova Trajkovska
Deputy
Registrar President
