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FIFTH
SECTION
CASE OF REZOV v. BULGARIA
(Application
no. 56337/00)
JUDGMENT
STRASBOURG
15 February 2007
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 Rezov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 22 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56337/00) 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 a Bulgarian national, Mr Todor Georgiev Rezov
who was born in 1954 and lives in Vratza (“the applicant”),
on 7 March 2000.
- The
applicant was represented by Mr V. Vasilev, a lawyer practising in
Sofia.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Karadjova, of the Ministry of Justice.
- The
applicant alleged that the criminal proceedings against him for libel
of a public official represented an interference with his right to
freedom of expression, that they were of excessive length and that
the presumption of innocence was not adhered to in the said
proceedings.
- On
10 December 2004 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The publication of the newspaper article
- At
the time of the events, the applicant, a journalist, was the regional
correspondent for Vratza for the national newspapers “Trud”
and “Noshten Trud”.
- A
newspaper article, contributed by the applicant, was published in
“Noshten Trud” in its issue no. 119 of 21-22 June 1995
under the title “Defendants [charged with] kidnapping call for
[criminal proceedings against] the police officers who arrested them”
(“Подсъдими
за отвличане
поискаха съд
за полицаите,
прибрали ги
в ареста”).
The
text of the article read as follows:
“The lawyers of the five defendants in the case
regarding the kidnapping of nurse Mrs G. petitioned the Pleven
Military Prosecutor's Office to open a preliminary investigation
against three [policemen] from the Vratza District Police
Directorate. The [defendants'] case is [currently] being heard by the
Vratza District Court.
Police officer V. and policemen T. and B. participated
in the arrest of the abductors on 23 November [1994], but disguised
as drivers of the luxury cars of the local businessman Mr P. The
owner of a chain of establishments ... had gone to the police, had
claimed that he had been kidnapped and had named his abductors.
[Later] that night his men [wearing] bullet proof
jackets with police insignia and carrying machine guns raided the
residence of the alleged abductors. With the consent of the three
policemen they took the arrestees to the mountain range near Vratza.
[There they held them for] two days and beat them with metal rods
after which they took them to the police station. The relatives of
the injured and the [abductors'] medical certificates provide
evidence as to the rage of their attackers. Charges were brought
against the five abductors, among who is Mr A. ... who was recently
sentenced to three years' imprisonment in [a related case]. He had
been charged with organising the abduction of the nurse and the
businessman. His case had been separated from those of the other
[accused]. The Vratza District Court ruled that the Pleven Military
Prosecutor's Office has three days to decide whether there is enough
evidence [to justify] the opening of a preliminary investigation
against the [three policemen].”
B. The criminal proceedings against the applicant
- On
28 June 1995 policeman B. filed a complaint against the applicant and
petitioned the Vratza District Prosecutor's Office to open criminal
proceedings against him for libel of an official during or in
connection with the exercise of his duties or functions.
- The
applicant was summoned by the Vratza District Prosecutor's Office on
29 June 1995 and gave a written statement. He stated that he had
simply reported on a request made by the lawyer of the alleged
abductors during a hearing in the criminal proceedings before the
Vratza District Court whereby he had demanded that the criminal
proceedings be initiated against the police officers. The applicant
also stated that one of the witnesses in the proceedings before the
Vratza District Court had made a similar request to the Prosecutor's
Office.
- Subsequently,
the Vratza District Prosecutor's Office obtained a copy of the court
transcript which showed that one of the witnesses, the father of one
of the accused, had given testimony implicating certain policemen in
the beating of their son, but had not named policeman B.
- On
19 July 1995 the case file was reassigned to the Sofia District
Prosecutor's Office.
- The
Sofia District Prosecutor's Office issued instructions to the police
on 4 August 1995 to interview the applicant in order to identify the
source of his information and the basis for his claims that policeman
B. had participated in the arrest of the alleged abductors.
- The
applicant was questioned once more on 21 August 1995. He confirmed
that his article was based on statements made by the lawyer of the
alleged abductors and on a petition filed on 22 May 1995 by one of
his clients, Mr G., requesting that proceedings be initiated against
the arresting officers. He claimed that in the said petition, a copy
of which had been shown to the applicant, it had been stated that
policeman B. had been one of the three policemen who had been present
and had not intervened when the men of the local businessman had
beaten them up.
- The
police prepared a report on 22 August 1995 in which they detailed
their additional findings. It noted that they had obtained a copy of
the petition filed on 22 May 1995 by Mr G. and that therein it
had only been claimed that policeman B. was one of several policemen
present when Mr G. had been brought to the police station for
questioning, had threatened him verbally and had made him sign
several blank statement sheets. The report also claimed that after
having shared their additional findings with the applicant the latter
had realised his mistake and had expressed a readiness to apologise
to policeman B.
- On
28 August 1995 the case file was transferred back to the Sofia
District Prosecutor's Office.
- On
an unspecified date in September 1995 the Sofia District Prosecutor's
Office refused to open a preliminary investigation against the
applicant as it found that there was insufficient evidence of a
criminal offence. Policeman B. appealed against the decision on
2 October 1995.
- By
decision of 23 October 1995 the Sofia City Prosecutor's Office
quashed the decision of the lower-standing Prosecutor's Office as it
found that the evidence against the applicant was sufficient to
warrant the opening of a preliminary investigation against him and
remitted the case with instructions that such proceedings be
initiated.
- On
10 November 1995 the Sofia District Prosecutor's Office opened a
preliminary investigation against the applicant for libel of a public
official during or in connection with the exercise of his duties or
functions committed in print [Article 148 § 2 in connection with
§ 1 (2) and (3) and Article 147 § 1 of the Criminal Code
(CC)]. A restriction was also placed on the applicant not to leave
his place of residence without the consent of the Prosecutor's
Office, which was not lifted until the end of the criminal
proceedings against him. The case file was then transferred for
further investigation by the First District Investigation Division
with the following instruction: “The investigation must perform
the following: Procedurally document the offence.”
- On
17 September 1996 policeman B. and an acquaintance of his were
questioned.
- On
19 September 1996 the applicant was charged with libel through
falsely incriminating a public official during or in connection with
the exercise of his duties or functions committed in print by another
public official [Article 148 § 2 in connection with § 1 (2)
and (3) and Article 147 § 1 of the CC]. He was questioned
on the same day and then again on the 26th of the month. On both
occasions he reiterated his previously given statements in that he
had relied on statements and information received from third persons
and expressed a readiness to apologise to policeman B. if he had in
fact been misled.
- The
results of the preliminary investigation were presented to the
applicant and policeman B. on 26 September 1996. The case file was
then transferred to the Sofia District Prosecutor's Office.
- On
18 October 1996 the Sofia District Prosecutor's Office remitted the
case to the investigation stage because it found serious deficiencies
in the investigation. In particular, that there was no information
regarding the status of policeman B. as a public official and
regarding the nature of the offence which the applicant had allegedly
claimed to have been committed by the policeman.
- Subsequently,
on an unspecified date, the investigation obtained a copy of the
employment contract of policeman B.
- On
23 February 1998 the charges against the applicant were amended to
libel of a public official during or in connection with the exercise
of his duties or functions through dissemination of disreputable
facts in print by another public official [Article 148 § 2 in
connection with § 1 (2) (4) and Article 147 of the
CC]. On the same day he was also questioned and the preliminary
investigation was presented to him.
- On
3 June 1998 the preliminary investigation was presented to policeman
B. and on the next day, the 4th, the case file was transferred to the
Sofia District Prosecutor's Office.
- On
7 October 1998 the Sofia District Prosecutor's Office filed an
indictment with the Sofia District Court against the applicant for
libel of a public official during or in connection with the exercise
of his duties or functions through dissemination of disreputable
facts in print by another public official [Article 148 § 2 in
connection with § 1 (2) (4) and Article 147 of the
CC].
- On
10 November 1998 a judge-rapporteur of the Sofia District Court
remitted the case back to the Prosecutor's Office for correction of
serious procedural deficiencies such as to indicate the offence with
which the applicant was being charged in reference to the facts of
the case and what his intent had been.
- The
charges against the applicant were slightly amended on 16 February
1999 but remained libel of a public official during or in connection
with the exercise of his duties or functions through dissemination of
disreputable facts in print by another public official [Article 148 §
2 in connection with § 1 (2) (4) and Article 147 of the
CC]. He was also questioned on the same day.
- The
preliminary investigation was presented to policeman B. on 10 March
1999 and to the applicant on 15 March. The case file was transferred
to the Sofia District Prosecutor's Office on the next day, 16 March
1999.
- On
30 March 1999 the Sofia District Prosecutor's Office filed a new
indictment with the Sofia District Court against the applicant for
libel of a public official during or in connection with the exercise
of his duties or functions through dissemination of disreputable
facts in print by another public official [Article 148 § 2 in
connection with § 1 (2) (4) and Article 147 of the
CC].
- On
26 April 1999 a judge-rapporteur of the Sofia District Court remitted
the case back to the Prosecutor's Office for correction of a serious
procedural deficiency. Namely, she found that it was still not clear
for what offence the applicant was being tried because the charge
brought against him on 19 September 1996 for libel through falsely
incriminating a public official during or in connection with the
exercise of his duties or functions committed in print by another
public official was still standing.
- On
25 May 1999 the Sofia District Prosecutor's Office dropped the charge
of libel through falsely incriminating a public official during or in
connection with the exercise of his duties or functions committed in
print by another public official.
- On
an unspecified date the Sofia District Prosecutor's Office filed a
new indictment with the Sofia District Court against the applicant
for libel of a public official during or in connection with the
exercise of his duties or functions through dissemination of
disreputable facts in print by another public official [Article 148 §
2 in connection with § 1 (2) (4) and Article 147 of
the CC].
- On
30 July 1999 a judge-rapporteur of the Sofia District Court set a
date for the first court hearing for 1 October 1999.
- The
hearings of 1 October, 5 November and 22 December 1999 were adjourned
due to non-attendance of various parties. The applicant was ill for
the first hearing, his lawyer could not attend the second and for the
third hearing both the applicant and policeman B. could not reach
Sofia due to heavy snowfall.
- At
the court hearing on 17 February 2000 the Sofia District Prosecutor's
Office petitioned the Sofia District Court to remit the case for
correction of a serious procedural deficiency as it claimed that
there was still a lack of clarity as to what the applicant was being
charged with. The court refused and proceeded to hear the case. It
also recognised policeman B. as a civil claimant. The hearing
was adjourned so as to allow the parties to collect and present
additional documents and evidence.
- On
21 March 2000 an amendment to the CC entered into force (see below,
Relevant domestic law), which had the effect of reducing the statute
of limitations for libel to two years.
- At
the next hearing on 30 March 2000 the representative of the
Prosecutor's Office petitioned the court to discontinue the
proceedings due to the expiration of the statute of limitations. The
Sofia District Court granted the request and discontinued the
criminal proceedings against the applicant.
II. RELEVANT DOMESTIC LAW
A. Criminal Code
- Prior
to March 2000 Article 148 of the CC envisaged a punishment of up to
three years' imprisonment and a public reprimand for the offence of
libel disseminated in print of a public official during or in
connection with the exercise of his duties or functions by another
public official during or in connection with the exercise of his
duties or functions [Article 148 § 2 in connection with § 1
(2) (4)]. The statute of limitations was five years [Article 80
§ 1 (4)] and it was a publicly prosecuted offence (Article 161
§ 1).
- Following
the amendments of March 2000 the punishment for the above stated
offence was changed to a fine of between five to fifteen thousand
Bulgarian levs [BGN: approximately between 2,564 and 7,692 euros
(EUR)] and a public reprimand [Article 148 § 2 in connection
with § 1 (2) (4)]. As a result, the statute of
limitations fell to two years [Article 80 § 1 (5)]. It also
became a privately prosecuted offence (Article 161 § 1).
B. State
Responsibility for Damage Act
- The
relevant part of the State Responsibility for Damage Act of 1988 (the
“SRDA”) provides that the State is liable for damage
caused by the organs of the investigation, the prosecution and the
courts for having unlawfully charged a private person with an offence
if (1) he/she is declared innocent or (2) the initiated criminal
proceedings are terminated because (a) the deed was not
perpetrated by the said person or (b) the perpetrated deed is not an
offence or because (3) the criminal proceedings were initiated after
the expiration of the statute of limitations for the offence or after
the deed had been amnestied [section 2 (2)].
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that the criminal proceedings against him for
libel of a public official represented an interference with his right
to freedom of expression as guaranteed by Article 10 of the
Convention, which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The
Government contested the applicant's assertion and claimed that the
applicant could not be considered to be the victim of such a
violation because he had never been convicted and the criminal
proceedings against him had been terminated immediately after the
amendments of the CC of March 2000.
They
also argued that if the applicant considered that he had suffered
damage as a result of having had criminal proceedings unlawfully
instituted against him then he had failed to exhaust the available
domestic remedies because he could have allegedly instituted
proceedings for damages under the SRDA.
- The
applicant disagreed with the Government. In respect of their argument
that he could have sought damages under the SRDA, he claimed that
that was not possible because the criminal proceedings against him
had been terminated on the grounds that the statute of limitations
had expired after the said proceedings had been initiated. Thus, he
claimed that he did not have an enforceable right to compensation
under the SRDA because the grounds for the said termination were not
that the proceedings were unlawful in any way.
- The Court notes at the outset that in the case of
Kalpachka v. Bulgaria [(dec.), no. 49163/99, 19 May
2005] it declared inadmissible an identical complaint because it
found that the applicant could no longer claim to be a victim of an
interference with her right of freedom of expression following the
termination of the criminal proceedings as a result of the amendments
of the CC of March 2000. The Court does not identify any material
difference with the present complaint which would justify it to reach
a different conclusion in respect of it.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained of the excessive length of the criminal
proceedings against him. He relied on Article 6 of the Convention,
the relevant part of which provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. The relevant period
- The
Government argued that the period to be taken into consideration
started on 10 November 1995 and ended on 30 March 2000. They claimed
that prior to 10 November 1995 the applicant did not have a clear and
precise indication of the authorities' subsequent decision to
prosecute him. Moreover, his initial questioning had been in the
context of a preliminary enquiry which in itself indicated a lack of
certainty as to how the authorities would proceed with the evidence
they had collected.
- The
applicant disagreed and claimed that the starting date of the
relevant period was 29 June 1995 when he was summoned before an
investigator and was questioned in detail regarding his activities as
a journalist and the newspaper article.
- The
Court reiterates that in criminal matters, the “reasonable
time” referred to in Article 6 § 1 of the Convention
begins to run as soon as a person is “charged”; this may
occur on a date prior to the case coming before the trial court, such
as the date of arrest, the date when the person concerned was
officially notified that he would be prosecuted or the date when
preliminary investigations were opened. “Charge”, for the
purposes of Article 6 § 1 of the Convention, may be defined as
“the official notification given to an individual by the
competent authority of an allegation that he has committed a criminal
offence”, a definition that also corresponds to the test
whether “the situation of the [suspect] has been substantially
affected” (see Eckle v. Germany, judgment of 15 July
1982, Series A no. 51, p. 33,
§ 73).
- Applying
these principles to the present case the Court finds that the
relevant period started to run from 10 November 1995 when the Sofia
District Prosecutor's Office opened a preliminary investigation
against the applicant for libel and imposed a measure to secure his
appearance in court which substantially affected him (see paragraph
17 above). Prior to that date the authorities had only conducted a
preliminary enquiry and the Sofia District Prosecutor's Office had
even initially decided not to prosecute the applicant (see paragraphs
7-16 above). Thus, it cannot be accepted that prior to the date of
the opening of the preliminary investigation the applicant could be
considered to have been officially notified that he would be
prosecuted.
- Further
to the above, the Court finds that the end of the relevant period was
30 March 2000 when the Sofia District Court discontinued the criminal
proceedings against the applicant (see paragraph 37 above).
- Thus,
for the purpose of assessing the “reasonable time”
requirement under Article 6 of the Convention the criminal
proceedings against the applicant lasted from 10 November 1995
to 30 March 2000, a period of four years, four months and twenty days
without concluding one level 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
Government argued that the case was complex as it related to
defamation, which was contentious and difficult to prove, and
involved public officials and local gangsters.
They
also claimed that the criminal proceedings had not been initiated by
the Prosecutor's Office, something they could not allegedly do on
their own accord, but had been started after policeman B. had filed a
petition for private criminal prosecution against the applicant.
The
Government further noted that the restriction placed on the applicant
was not severe as he was never detained.
In
respect of the conduct of the authorities, the Government claimed
that they had shown the required diligence in processing the case.
They claimed that this was evidenced by the fact that the case was
continuously moving between the various institutions with the aim of
finalising and correcting the various deficiencies in the charges
against the applicant.
The
Government noted that the applicant was responsible for the
postponement of two hearings before the Sofia District Court. They
also considered that he had failed to contribute to the speedy
conclusion of the proceedings by having proven the truthfulness of
the statements he had written. Lastly, the Government stated that the
applicant, as a journalist, should have expected to be the target of
such libel proceedings and inferred that he should, therefore, be
ready to endure them.
- The
applicant disagreed with the Government and claimed that the case was
not complex, because it related to only one newspaper article. He
further claimed that he, as a journalist, should never have been
charged as a public official. In any event, he argued that the
involvement of a public official could not, in itself, make a case
complex.
Separately,
he noted that prior to the amendments of the CC of 2000 libel of a
public official by another public official was a publicly prosecuted
offence. Accordingly, he argued that the State was responsible for
initiating and maintaining the charges against him for the duration
of the proceedings.
The
applicant also disagreed with the notion of the Government that the
constant moving of the case between the various institutions could be
considered to indicate that they were diligently processing it. To
the contrary, he considered that the grounds for remitting the case
on several occasions to the Prosecutor's Office was an indication
that the State had failed to correctly formulate the charges against
him, to properly conclude the preliminary investigation and,
therefore, to diligently process the case.
Lastly,
the applicant disagreed with the argument of the Government that he
should have been active in proving the truthfulness of the statements
he had made in his newspaper article and noted that the burden of
proof in the proceedings rested with the prosecuting authorities.
- The
Court reiterates that it must assess the reasonableness of the length
of the proceedings in the light of the particular circumstances of
the case and having regard to the criteria laid down in its case-law,
in particular the complexity of the case and the conduct of the
applicant and of the relevant authorities. On the latter point, what
is at stake for the applicant has also to be taken into account (see
Philis v. Greece (no. 2), judgment of 27 June 1997,
Reports of Judgments and Decisions 1997 IV, p. 1083, §
35). The Court reiterates that only delays attributable to the State
may justify a finding of a failure to comply with the “reasonable
time” requirement (see H. v. France, judgment of 24
October 1989, Series A no. 162 A, pp. 21-22, § 55).
- The
Court considers that the case was
relatively simple as it did not require the collection of a
significant amount of evidence, the questioning of many witnesses or
the performance of any investigative procedures or experiments.
- As
to the conduct of the authorities, the Court observes that there are
considerable periods of inaction or delays in the proceedings for
which the Government did not provide adequate explanations. In
particular, no investigative procedures were conducted for almost a
year following the opening of the preliminary investigation against
the applicant on 15 November 1995 (see paragraphs 17 and 18
above). Similarly, no investigative procedures or other actions were
undertaken for almost two years after the Sofia District Prosecutor's
Office remitted the case on 18 October 1996 (see paragraphs
21-23 above). In addition, the case was remitted on three occasions,
due to serious procedural deficiencies in the investigation, for
proper formulation and correction of the charges against the
applicant which also delayed the proceedings (see paragraphs 21, 26
and 30). In conclusion, the Court finds that the authorities do
not appear to have dealt with the case with the required expedience
and have not satisfactorily explained the reasons for failing to do
so.
- As
to the conduct of the applicant and the other parties to the
proceedings, the Court notes that they were the reason for the
postponement of three court hearings between 1 October and 22
December 1999 (see paragraph 34 above). Other than that they do not
appear to have contributed to such an extent to the overall length of
the proceedings so as to offset the above-noted delays attributable
to the authorities (see paragraph 57 above).
- Lastly,
the Court notes that what was at stake for the applicant was
significant as he risked imprisonment prior to the amendments of the
CC of March 2000 and had a restriction placed on him for the duration
of the proceedings not to leave his place of residence without the
consent of the Prosecutor's Office (see paragraphs 17 and 38 above).
- Considering
the above, the Court finds that the “reasonable time”
requirement of Article 6 § 1 of the Convention was breached in
the present case on account of the criminal
proceedings against the applicant having lasted for almost
four years and five months without concluding one level of
jurisdiction.
There
has accordingly been a violation of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicant complained under Article 6 § 2 of the Convention that
the presumption of innocence was not adhered to because in the course
of the criminal proceedings against him the authorities allegedly
treated him as guilty of the offence and failed to carry out a
balanced investigation. The latter was allegedly evidenced by the
instruction of the Sofia District Prosecutor's Office of 10 November
1995 given to the investigating authorities (see paragraph 17 above).
Article 6 § 2 of the Convention provides as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
- The
Court reiterates that the presumption of innocence enshrined in
Article 6 § 2 of the Convention is one of the elements of a fair
criminal trial guaranteed by the first paragraph of the same article.
The presumption of innocence will be violated if a statement of a
public official concerning a person charged with a criminal offence
reflects an opinion that he is guilty before he has been proved so
according to law. It suffices, even in the absence of any formal
finding, that there is some reasoning to suggest that the official
regards the accused as guilty. Moreover, the presumption of innocence
may be infringed not only by a judge or court but also by other
public authorities, including the prosecution (see Daktaras v.
Lithuania, no. 42095/98, §§ 41-42, ECHR 2000 X
and Falkovych v. Ukraine (dec.), no. 64200/00, 29 June 2004)
- In
the present case, the Court is not convinced by the applicant's
arguments and considers that there are no indications that the
authorities started from the presumption that the applicant had
committed the offence with which he was charged. The instruction of
the Sofia District Prosecutor's Office of 10 November 1995 to the
investigation to “procedurally document the offence” does
not suffice as it is contained in a document which is primarily
internal in nature and rather points to the existence of a strong
suspicion that the applicant had committed the offence rather than to
represent an expressed opinion that the latter was guilty before
having been proven so according to law.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 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
- The
applicant claimed 30,000 euros (EUR) as compensation for the
non pecuniary damage arising out of the alleged violations of
his rights under the Convention. He claimed that he felt frustration,
anguish and despair as a result of the length of the proceedings and
that the restriction on him movement for the duration hampered his
work as a journalist, tarnished his reputation in the community and
did not allow him to travel abroad.
- The
Government stated that the claim was unsubstantiated, that it was
excessive and that it did not correspond to the size of the awards
made by the Court in previous similar cases. They noted that the
applicant had not lost his job as a journalist nor had he been
convicted to a term of imprisonment. In respect of the restriction on
his movement, the Government argued that it was the lightest possible
restriction that could be imposed on a defendant and that no proof
had been presented that a request to leave the country or travel
anyway else had ever been made by the applicant, which they claimed
were usually granted by the prosecuting authorities.
- The
Court, noting its finding of a violation in respect of the excessive
length of the criminal proceedings under Article 6 of the Convention
(see paragraph 60 above), taking into account the circumstances of
the case and making its assessment on an equitable basis, awards the
applicant EUR 1,600 in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed 7,620 United States dollars (USD –
approximately EUR 5,972) for 127 hours of legal work by his lawyer on
the proceedings before the Court, at an hourly rate of USD 60
(approximately EUR 47). He also claimed EUR 170 in respect of
translation, postal and telephone charges, as well as photocopying
and office supplies' expenses. The applicant submitted a legal fees
agreement and a timesheet. He also presented four receipts for
3,398.50 Bulgarian levs (BGN – approximately EUR 1,743) for
payments made to his lawyer by the Bulgarian Lawyers for Human Rights
Foundation as compensation for the legal work on several case before
the Court among which are payments relating to the present case
totalling at least BGN 1,414.50 (approximately EUR 725). He also
enclosed an agreement for the translation expenses, a receipt for BGN
168.35 (approximately EUR 86) for the payment made to the translator
and a postal receipt for BGN 21.70 (approximately EUR 11) all of
which were on the account of the Bulgarian Lawyers for Human Rights
Foundation.
- The
Government disputed the timesheet, stating that the number of hours
claimed was excessive, and challenged the validity of the invoices
and other expense documents presented by the applicant.
- The
Court reiterates that according to its 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,
taking into account that the Court found a violation only of Article
6 § 1 of the Convention on account of the excessive length of
the criminal proceedings (see paragraph 60 above), it considers that
the number of hours claimed seems excessive and that a reduction is
necessary in that respect. Accordingly, having regard to all relevant
factors, the Court considers it reasonable to award the sum of EUR
500 in respect of costs and expenses, 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 complaint concerning the
length of the criminal proceedings against the applicant;
- Declares the
remainder of the application inadmissible;
- 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
(a) that
the respondent State is to pay to the applicant, 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
1,600 (one thousand six hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
