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FIFTH SECTION
CASE OF VATEVI v. BULGARIA
(Application no. 55956/00)
JUDGMENT
STRASBOURG
28 September 2006
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 Vatevi v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Mr P. Lorenzen,
President,
Mrs S. Botoucharova,
Mr V.
Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having deliberated in private on 4 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 55956/00) 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 the Bulgarian nationals,
Mrs Daniela Kostadinova Vateva (“the first
applicant”) and Mr Nikolai Kostadinov Vatev (“the
second applicant” and, jointly, “the applicants”),
on 3 December 1999.
- The applicants were represented by Mrs I. Trendafilova
Chambova, a lawyer practising in Plovdiv.
- The Bulgarian Government (“the Government”)
were represented by their Agent, Ms M. Karadjova, of the Ministry of
Justice.
- On 8 December 2004
the Court decided to communicate the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
- On 1 April 2006 this case was assigned to the newly
constituted Fifth Section (Rule 25 § 5 and Rule 52 § 1 of
the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The first applicant was born in 1973 and the second
applicant in 1966. Both of them live in Plovdiv.
A. First phase of the partition-of-property proceedings
- On 17 February 1992 the applicants initiated an action
against Mr and Mrs T. ('the defendants”) for partitioning a
jointly inherited real estate consisting of two apartments (“the
real estate”).
- Due to the fact that the defendants lived in Canada at
the time, they were summoned to participate in the proceedings
through a notice published in the State Gazette on 1 September 1992.
- The Plovdiv District Court conducted eleven hearings
between 13 October 1992 and 6 June 1995, scheduled three to five
months apart. During this period, the court obtained an expert's
report, sought the consent of the Ministry of Finance for terminating
the joint ownership and questioned witnesses. The defendants failed
to appear at the hearing of 13 October 1992 so it was adjourned
to 23 March 1993 in order to allow the court to appoint a special
representative to act on their behalf. The appointment was undertaken
in spite of the presence at the hearing of the mother of one of the
defendants who had a power of attorney to act on their behalf and had
retained a lawyer to represent them in the proceedings. The next
hearing of 23 March 1993 was adjourned to 1 June 1993 due to the
defective summoning of the applicants. The hearing of 1 June 1993 was
also not conducted due to the failure of the applicants to appear and
was postponed to 22 September 1993. Finally, the hearing of
22 September 1993 was adjourned to 25 February 1994 due to
another defective summoning of the applicants.
- In a judgment of 27 June 1995 the Plovdiv District
Court found partly in favour of the applicants, allowed the
partitioning of one of the apartments to proceed (“the
property”) and dismissed the action in respect of the other
apartment. The judgment entered into force on an unspecified date.
B. Second phase of the partition-of-property
proceedings
1. Plovdiv District Court
- At the second phase of the proceedings, the applicants
petitioned the courts to assign the property to them against payment
of compensation to the defendants, who, in turn, made a counterclaim
to the same effect.
- The Plovdiv District Court conducted nine hearings
between 9 November 1995 and 24 February 1998, scheduled one to
nine months apart. During this period, witnesses were questioned, two
experts' opinions were obtained and the approval of the local
municipality was sought on two occasions for the plans for
reconstructing the property into two separate apartments. Of the
hearings conducted, one was postponed from 23 January to 1 April
1996, because the experts failed to present their report on time.
- In a judgment of 19 March 1998 the Plovdiv District
Court found in favour of the applicants, assigned to each of them one
of two apartments to be created following the reconstruction of the
property and ordered them to pay compensation to the defendants for
their share of the property. The latter filed an appeal against the
judgment on an unspecified date.
- On 1 April 1998 a number of amendments to the Code of
Civil Procedure entered into force, which related, among other
things, to partition-of-property proceedings and provided for the
annulment of all judgments rendered by the courts of first instance
in partition-of-property proceedings (see, below, Relevant domestic
law).
2. Plovdiv Regional Court
- The appeal proceedings before the Plovdiv Regional
Court started with a hearing on 12 January 1999 at which the court
instructed the defendants to deposit additional court fees. It
considered that the fees due for the appeal proceedings were in the
amount of 161,678 Bulgarian levs (BGL) rather than the BGL 5,000
which the defendants had deposited. The defendants disagreed with the
court's calculation of the said fees and did not deposit any
additional such.
- In a decision of 15 January 1999 the Plovdiv Regional
Court discontinued the proceedings due to the failure of the
defendants to deposit the full amount of the court fees required by
the court. On 31 March 1999 the defendants appealed against this
decision. The Plovdiv Court of Appeals upheld their appeal on 20 May
1999 and, agreeing with the defendants' arguments, found the
calculations of the Plovdiv Regional Court to be erroneous and
quashed the decision of 15 January 1999. The case was then remitted
to the Plovdiv Regional Court.
- At a hearing of 20 October 1999, the Plovdiv Regional
Court declared the case ready for decision.
- In a judgment of 25 November 1999 the Plovdiv Regional
Court upheld the judgment of 19 March 1998 of the Plovdiv District
Court in favour of the applicants.
- On an unspecified date, the defendants filed a
cassation appeal.
3. Supreme Court of Cassation
- It is unclear how many hearings were conducted before
the Supreme Court of Cassation.
- In a judgment of 30 October 2000 the Supreme Court of
Cassation annulled the judgment of the Plovdiv Regional Court of 25
November 1999 and remitted the case to the Plovdiv District Court. It
found that following the entry into force on 1 April 1998 of
paragraph 151 of the Amendment to the Code of Civil Procedure Act of
23 December 1997, the Plovdiv Regional Court could not rule on the
appeal filed by the defendants because the property did not fall
under any of the exceptions provided in the said paragraph. Instead,
it considered that the Plovdiv Regional Court should have immediately
terminated the proceedings before it and remitted the case to the
District Court in order to allow that court to annul its judgment of
19 March 1998 and to re-examine the case.
4. Retrial before the Plovdiv District Court
- The case was then sent back to the Plovdiv District
Court which in a judgment of 5 February 2001 annulled its previous
judgment of 19 March 1998.
- It is unclear how many hearings were thereafter
conducted before the Plovdiv District Court.
- In a judgment of 12 October 2001 the Plovdiv District
Court, examining anew the action for partitioning, found that none of
the parties could be assigned the property and ordered that it be
sold at public auction.
- On an unspecified date, the parties to the proceedings
concluded an out-of-court settlement and petitioned the Plovdiv
District Court to annul its judgment on that basis.
- In a decision of 7 December 2001 the Plovdiv District
Court approved the parties' out-of-court settlement and annulled its
judgment of 12 October 2001, thereby bringing the proceedings to a
close.
II. RELEVANT DOMESTIC LAW
- The relevant provisions of the Code of Civil Procedure
in respect of partition-of-property proceedings are summarised in the
recent Court's judgment in the case of Hadjibakalov v. Bulgaria
(no. 58497/00, §§ 38-40, 8 June 2006).
- In addition, paragraph 151 of the Amendment to the
Code of Civil Procedure Act of 23 December 1997, as in force from 1
April 1998, provided for the annulment of all judgments of the courts
of first instance in partition-of-property proceedings except those
that had already entered into force or concerned community property
assigned to the surviving spouse of a deceased individual.
THE LAW
I. THE SCOPE OF THE CASE
- Following communication of the
application to the respondent Government, the applicants, in
their observations in reply of 6 June 2005, raised new complaints.
Relying on Articles 13 and 34 of the Convention they complained that
they lacked an effective remedy for the excessive length of the
proceedings and that the authorities had interfered with the
effective exercise of their right of application by restricting
access, from 30 May to 5 June 2005, to the court files relating
to the proceedings.
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.”
Article 34 of the Convention provides as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The Court recalls that the institutions set up under
the Convention have jurisdiction to review, in the light of the
entirety of the Convention's requirements, the circumstances
complained of by an applicant. In the performance of their task, the
Convention institutions are, notably, free to attribute to the facts
of the case, as found to be established on the evidence before them,
a characterisation in law different from that given by the applicant
or, if need be, to view the facts in a different manner. Furthermore,
they have to take into account not only the original application but
also the additional documents intended to complete the latter by
eliminating initial omissions or obscurities (see Melnik v.
Ukraine, no. 72286/01, § 61, 28 March 2006).
- The Court notes that in the instant case the
applicants introduced their new complaints after the communication of
the case to the respondent Government. In the Court's view, these
complaints are not an elaboration of their original complaint to the
Court lodged five-and-a-half years earlier and on which the parties
have been given the opportunity to comment. The Court considers,
therefore, that it is not appropriate now to take these matters up
separately at this stage (see Melnik, cited above, § 63,
Skubenko v. Ukraine (dec.), no. 41152/98, 6 April 2004,
and Nuray Şen v. Turkey (no. 2), no. 25354/94,
§§ 199-200, 30 March 2004).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicants complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, provided in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The Government did not submit observations on the
admissibility and merits of this complaint. The applicants reiterated
their complaints.
A. Period to be taken into consideration
- The applicants argued that the period to be taken into
consideration began on 17 February 1992, when they initiated the
action for partitioning of the real estate, and ended on 7 December
2001, with the approval of the out-of-court settlement by the Plovdiv
District Court.
- In respect of the starting date, the Court finds that
that period began not on 17 February 1992, as claimed by the
applicants, but only on 7 September 1992 when the Convention
entered into force in respect of Bulgaria. However, in order to
determine whether the time which elapsed following this date was
reasonable, it is necessary to take account of the stage which the
proceedings had reached at that point (see Proszak v. Poland,
judgment of 16 December 1997, Reports of Judgments and Decisions
1997 VIII, p. 2772, § 31). The Court notes in this respect,
that on 7 September 1992 the proceedings had been pending before the
court of first instance for six months and twenty days, no hearings
had been conducted thus far and only the defendants had been summoned
to participate in the proceedings through a notice published in the
State Gazette on 1 September 1992 (see paragraphs 7-8 above).
- As regards the end of the period under consideration,
the Court finds that to be 7 December 2001 when the Plovdiv District
Court approved the out-of-court settlement reached by the parties,
thereby bringing an end to the proceedings (see paragraph 26 above).
- In view of the above, the overall length of the
proceedings was nine years, nine months and twenty-two days, of which
nine years, three months and two days fall within the Court's
competence ratione temporis. During this period, the case
passed through a two-phase partition-of-property proceeding and was
examined five times at four levels of jurisdiction.
B. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
C. Merits
- 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).
- The Court notes at the outset that the present case
relates to partition of-property proceedings, which in Bulgaria
have the distinctive feature of consisting of two phases. During the
first phase the courts have to ascertain the identity and the number
of the co-owners, the number of property items which are to be
divided and the share of each of the co owners. During the
second phase the courts effect the partition. It seems therefore that
by the way they are fashioned partition-of-property proceedings are
apt to consume more time than an ordinary civil action. However, this
does not justify the overall duration of the proceedings, as the
States have a general obligation to organise their legal systems so
as to ensure compliance with the requirements of that provision,
including that of trial within a reasonable time (see the recent
judgment in Hadjibakalov, cited above, § 50).
- The Court considers that the case was somewhat complex
as it involved the completion of various experts' reports and receipt
of the consent of the Ministry of Finance and the local municipality
for effecting the partitioning of the real estate and for the
reconstruction of the property, even though this solution was
eventually not retained.
- In respect of the conduct of the applicants and the
defendants, the Court finds that there were certain minor delays for
which they were responsible (see paragraph 9 above), but does not
find that they contributed significantly to the overall length of the
proceedings.
- As to the conduct of the authorities, the Court notes
that the domestic courts conducted some of the hearings at intervals
of five to nine months apart (see paragraphs 9 and 12 above). In
addition, two hearings were adjourned due to defective summoning of
the applicants (see paragraph 9 above), there was a delay by experts'
appointed by the court in presenting a report (see paragraph 12
above) and a further delay resulted from the Plovdiv Regional Court
wrongly calculating the court fees due by the defendants in the
appeal proceedings (see paragraphs 15-16 above).
- The most significant delay, however, resulted from the
amendments to the Code of Civil Procedure of 1 April 1998 and the
continuation of the appeal proceedings by the Plovdiv Regional Court
following these amendments (see paragraphs 14-18 above). As
subsequently established by the Supreme Court of Cassation, the
Plovdiv Regional Court should have immediately terminated the appeal
proceedings before it and should have remitted the case to the
Plovdiv District Court (see paragraph 21 above). Instead, it
continued the proceedings, examined in substance the grounds of the
defendants' appeal and delivered a judgment (see paragraphs 15-18
above), against which a cassation appeal was then lodged. The Supreme
Court of Cassation then annulled the judgment of the Plovdiv Regional
Court and remitted the case to the Plovdiv District Court (see
paragraphs 19-21 above), which, in turn, annulled its own previous
judgment of 19 March 1998 and started a retrial (see paragraphs
22-24 above). The above developments alone resulted in a prolongation
of the proceedings by over two and a half years and entailed a
repetition of the second phase of the partition-of-property
proceedings.
- Considering the above, the Court is of the opinion
that the “reasonable time” requirement of Article 6
§ 1 of the Convention was breached in the present case on
account of the civil proceedings initiated by the applicants having
lasted nine years, nine months and twenty-two days, of which nine
years, three months and two days fall within the Court's competence
ratione temporis.
There has accordingly been a breach of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The applicants alleged that the excessive length of
the proceedings resulted in an interference with their right to
peaceful enjoyment of their possessions. They relied on Article 1 of
Protocol No. 1 to the Convention, which provides:
“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.”
- The Government did not submit observations on the
admissibility and merits of this complaint. The applicants reiterated
their complaints.
- Noting its finding of a violation in relation to
Article 6 § 1 of the Convention (see paragraph 45 above), the
Court, while finding this complaint to be admissible, considers that
it is not necessary to examine whether, in this case, there has also
been a violation of Article 1 of Protocol No. 1 to the Convention
(see Kroenitz v. Poland, no. 77746/01, §§
36-37, 25 February 2003).
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
- The applicants claimed 10,000 euros (EUR) as
compensation for the non pecuniary damage arising out of the
excessive length of the proceedings and claimed to have felt
frustration, anguish and despair as a result of their length.
- The Government stated that the claim was excessive and
did not correspond to the size of the awards made by the Court in
previous similar cases.
- The Court, taking into account the circumstances of
the case, and making its assessment on an equitable basis, awards the
applicants the sum of EUR 1,000 as compensation for the non-pecuniary
damage arising out of the excessive length of the proceedings.
B. Costs and expenses
- The applicants claimed EUR 1,680 for 24 hours of legal
work by their lawyer on the proceedings before the Court, at the
hourly rate of EUR 70. In addition, they claimed EUR 26 for
postal and stationery expenses. They submitted a legal fees agreement
between them and their lawyer and a timesheet. The applicants
requested that the costs and expenses incurred should be paid
directly to their lawyer, Mrs I. Trendafilova Chambova.
- The Government stated that the claim was excessive,
that the hourly rate of EUR 70 for the work performed by the
applicants' lawyer was determined arbitrarily, that the timesheet
included hours for non-legal work performed by the said lawyer at the
above stated rate and that not all of the claimed expenses had been
shown to have been incurred. In conclusion, they stated that the
overall size of the claimed costs and expenses did not correspond to
previous such awarded by the Court in similar cases.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his 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 instant case, the
Court considers that the hourly rate of EUR 70 is excessive and that
a reduction of the same is appropriate (see, a contrario,
Anguelova v. Bulgaria, no. 38361/97, §
176 in fine, ECHR 2002 IV, Nikolov
v. Bulgaria, no. 38884/97, § 111, 30 January 2003; Toteva
v. Bulgaria, no. 42027/98, § 75, 19 May 2004, and Rachevi
v. Bulgaria, no. 47877/99, § 111, 23 September 2004,
where the Court found an hourly rate of EUR 50 reasonable). In
addition, the Court finds that the number of hours claimed seems
excessive and that a reduction is also necessary on that basis.
Finally, it notes that no receipts have been presented as proof of
the claimed postal expenses. Accordingly, having regard to all
relevant factors, the Court considers it reasonable to award the sum
of EUR 750 covering costs and expenses for the proceedings
before the Court, plus any tax that may be chargeable on that amount.
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 admissible the complaints concerning
the alleged excessive length of the civil proceedings and the alleged
interference with the applicants' right to peaceful enjoyment of
their possessions;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the civil proceedings;
- Holds that there is no need to separately
examine the complaint under Article 1 of Protocol No. 1 to the
Convention;
- Holds
(a) that the respondent State is to pay to the applicants,
within three months from the date on which the judgment becomes final
according to Article 44 § 2 of the Convention, the following
amounts, to be converted into Bulgarian levs at the rate applicable
on the date of settlement:
(i) EUR 1,000 (one thousand euros) in respect of
non-pecuniary damage, payable to the applicants themselves;
(ii) EUR 750 (seven hundred and fifty euros) in respect of
costs and expenses, payable to the applicants' lawyer in Bulgaria;
(iii) any tax that may be chargeable on the above amounts;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 28 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
