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FIFTH
SECTION
CASE OF
KAMBOUROV v. BULGARIA
(Application
no. 55350/00)
JUDGMENT
STRASBOURG
14
February 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Kambourov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Snejana
Botoucharova,
Karel Jungwiert,
Rait Maruste,
Javier
Borrego Borrego,
Renate Jaeger,
Mark Villiger, judges,
and
Claudia Westerdiek, Section Registrar,
Having
deliberated in private on 22 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 55350/00) 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 Mr Dimitar Kostadinov Kambourov, a Bulgarian national who was born
in 1926 and lives in Plovdiv (“the applicant”), on
3 November 1999.
- The
applicant was represented by Ms E. Nedeva, a lawyer practising in
Plovdiv. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms M. Kotseva, of the Ministry of
Justice.
- On
20 May 2005 the Court
decided to give notice of the application to the Government. Applying
Article 29 § 3 of the Convention, it decided to rule on the
admissibility and the merits of the application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- Until
1987 the applicant occupied a flat with his wife. In that year he
moved out. On 28 June 1989 they divorced. On 16 September 1989 the
applicant's former wife died.
A. The first phase of the partition proceedings
- On
12 February 1990 the applicant issued proceedings against his son and
daughter in the Plovdiv District Court. He requested partition of his
deceased former wife's estate. The estate allegedly consisted of the
above mentioned flat, a garage, a car and a number of chattels.
- On 7 March 1990 the proceedings were stayed to await
the outcome of an already pending suit between the applicant and his
former wife. This suit, in which, after her death, the applicant's
former wife had been replaced by their son and daughter, concerned
her claim to exclusive title to the flat. The suit ended in July 1991
with a ruling that the flat was joint marital property of the
applicant and of his former wife. Accordingly, in August 1991 the
partition proceedings were resumed.
- At
the invitation of the court, in September and November 1991 the
applicant gave further particulars of his claims.
- Out of seven hearings listed for various dates between
December 1991 and September 1992, three were adjourned on account of
improper summoning of the respondents and a further two because of
their absence.
- The
Plovdiv District Court gave judgment on 16 September 1992, allowing
the partition of the flat and of a number of chattels, but refusing
the partition of the car and of certain other chattels. The court
also determined the share of each of the co owners.
- All
three litigants appealed to the Plovdiv Regional Court.
- In
a judgment of 25 January 1993 the Plovdiv Regional Court allowed the
applicant's appeal, additionally allowing the partition of the car
and of certain other chattels. It dismissed the respondents' appeal
in so far as it concerned the flat, but allowed it in respect of
certain chattels, excluding them from the partition. It decided to
proceed on the merits and determine each party's share of the car and
of the chattels whose partition it had additionally allowed.
- After
holding a hearing on 10 March 1993, in a judgment of 17 March
1993 the Plovdiv Regional Court allowed the partition of the car, but
not of the additional chattels. It determined the parties' shares of
the car and ordered an expert report on its value.
B. The second phase of the partition proceedings
- The Plovdiv District Court listed a hearing for 9 June
1993. However, the applicant's son was absent and the expert report
had not been filed in due time before the hearing. The court
accordingly only took note of the applicant's and his daughter's
requests to be allotted the entire flat and of the applicant's claims
for indemnification for the exclusive use of the flat and of the car
by his son and daughter, as well as for wear of the car, and
adjourned the case.
- A
hearing was held on 19 October 1993. The court admitted two expert
reports in evidence. The applicant's son challenged the reports and
requested a fresh one. The court agreed and adjourned the case.
- The
next hearing took place on 9 December 1993. The applicant's son was
absent; so was one expert.
- On
11 March 1994 the applicant asked the court to provisionally allow
him to use the flat, arguing that because of his low income it was
very hard for him to pay the rent for a flat which he was leasing.
- The court held a hearing on 22 March 1994. The
applicant's son did not show up. The court admitted the new expert
report in evidence. The applicant repeated his request to be allowed
to provisionally use the flat. The court directed that the
applicant's son be notified about the applicant's request and
adjourned the case.
- A
hearing took place on 13 April 1994, despite a request by the
applicant's son for an adjournment.
- In a judgment of 21 April 1994 the Plovdiv District
Court allotted the flat to the applicant, and ordered him to pay his
son and his daughter certain amounts for their shares of it. The
court allotted the garage to the applicant's daughter and ordered her
to pay the applicant's son a certain amount for his share. It also
allotted the car to the applicant's son and made a scheme for the
repartition of the remainder of the chattels. The court went on to
disallow the applicant's and his daughter's claims for
indemnification for the use of the flat and of the car. Finally, it
discontinued the examination of the applicant's claim for wear of the
car, holding that it was not sufficiently connected with the main
subject matter of the case.
- Both
the applicant and his son appealed.
- After holding a hearing on 27 June 1994, in a decision
of 4 July 1994 the Plovdiv Regional Court held that the Plovdiv
District Court had erred by discontinuing the examination of the
claim for wear of the car. It remitted the case to that court with
instructions to supplement its judgment by ruling on this claim and
then re send the case to the Plovdiv Regional Court for
examination of the appeals against the other parts of the judgment.
- After holding two hearings on 14 September and 15
December 1994, in a judgment of 21 December 1994 the Plovdiv District
Court found that by discontinuing the examination of the claim for
wear of the car, it had in fact ruled on it. There was therefore no
need for it to supplement its judgment of 21 April 1994.
- The
applicant appealed against this latter judgment. The applicant's son
again appealed against the judgment of 21 April 1994.
- The Plovdiv Regional Court held a hearing on 3 April
1995 and in a judgment of 10 April 1995 reversed the Plovdiv District
Court's ruling concerning the applicant's claim for indemnification
for the use of the flat and the car. It ordered his son and daughter
to pay him certain amounts under this head. It then examined the
claim for wear of the car on the merits and dismissed it. It also
quashed the lower court's ruling concerning the valuation of the
flat, and said that it would determine the flat's value – and
thus the sums due by the applicant to his son and daughter –
after conducting proceedings on the merits and receiving an expert's
opinion on the issue.
- The expert report was not ready until February 1996
because in September and December 1995 two experts appointed by the
court withdrew from the case and had to be replaced. The report was
admitted in evidence on 28 February 1996.
- In a judgment of 3 May 1996 the Plovdiv Regional Court
assessed the value of the flat and determined the amounts which the
applicant had to pay his son and his daughter for their respective
shares of it.
- On 29 May 1996 the applicant was issued a writ of
execution on the basis of the Plovdiv District Court's judgment of 21
April 1994 whereby the flat had been allotted to him (see paragraph 19
above). After several unsuccessful attempts, the writ was executed by
an enforcement judge on 20 October 1997. However, as the flat
was in very bad repair, the applicant continued to live elsewhere and
decided to lease it out.
- In
early 1998 the applicant's son asked the Plovdiv District Court to
annul the writ of execution and set its enforcement aside. His
request was rejected on 7 March 1998 and his ensuing appeal was
dismissed by the Plovdiv Regional Court in a final decision of 10
June 1998.
- Meanwhile,
the proceedings concerning the chattels were continuing in the
Plovdiv District Court.
- On 19 September 1996 the court ordered an expert
report on the chattels' value. However, the report proved impossible
to draw up, as during the following year the applicant's son was
refusing the experts access to the chattels. The court repeatedly
ordered him to give them such access, under pain of a fine, but
apparently did not fine him. In June and September 1997 the experts
eventually managed to prepare two reports without inspecting the
chattels. The court admitted them in evidence. On 24 September 1997
the court instructed an expert to propose how to allocate the
chattels to each of the litigants in proportion to their shares.
- In the meantime, two hearings listed for 7 November
1996 and 20 May 1997 failed to take place because the
applicant's son had not been duly summoned.
- At
a hearing held on 14 October 1997 the court admitted the expert's
proposal in evidence. However, it adjourned the case to allow the
newly retained lawyer of the applicant's son to acquaint herself with
it.
- After hearing the parties on 20 October 1997, in a
judgment of 29 October 1997 the Plovdiv District Court finally
determined the repartition of the chattels in four lots, in line with
the expert's proposal.
- The applicant's son lodged two appeals. He challenged
all prior judgments of the Plovdiv District Court and of the Plovdiv
Regional Court. The Plovdiv District Court apparently did not process
one of the appeals. Upon the appeal of the applicant's son, on 4
November 1998 the Plovdiv Regional Court remitted the case to the
Plovdiv District Court with instructions to send copies of all
appeals to the parties to the case, and, having received their
replies, re-send the case to it.
- After holding on a hearing on 29 March 1999, in a
judgment of 2 June 1999 the Plovdiv Regional Court found the
applicant's son's appeals partly inadmissible and partly ill founded.
- On 6 July 1999 the applicant's son appealed on points
of law. The Supreme Court of Cassation heard the appeal on 5 December
2000 and on 4 June 2001 upheld the Plovdiv Regional Court's
judgment. The case was then transmitted to the Plovdiv District Court
for effecting the partition of the chattels by drawing lots.
- A hearing listed for 15 October 2001 failed to take
place because applicant's son, not having been properly summoned, did
not appear.
- At
a hearing on 28 November 2001 the parties drew lots to determine
which of the partitioned chattels should go to which co owner.
In a judgment of the same date the Plovdiv District Court confirmed
the repartition and concluded the proceedings.
C. The enforcement proceedings concerning the chattels
- On
an unspecified date in the first half of 2002 the applicant issued
enforcement proceedings against his son and daughter.
- On 24 June 2002 an enforcement judge seized from the
applicant's son a number of the chattels allotted to the applicant
and delivered them to him. Noting that the remainder were missing,
she attached a number of other chattels belonging to the applicant's
son with a view to selling them and paying the applicant the monetary
equivalent of the missing chattels. On 9 September 2002 the same
judge attached a number of chattels belonging to the applicant's
daughter and her husband with a view to selling them and satisfying
the applicant's claim in respect of the chattels allotted to him.
- The
parties do not provide further information about the unfolding of the
enforcement proceedings.
- The applicant said that between April 2003 and October
2006 no steps had been taken for enforcing the Plovdiv District
Court's judgment of 28 November 2001. In corroboration of his
allegation he produced a certificate in which the enforcement judge
stated that during that time the case file had been sent to the
Plovdiv District Court, as it had been needed for the examination of
a civil action pending before that court.
- At
the time of the latest information from the parties (12 November
2006) the enforcement proceedings were still pending.
II. RELEVANT DOMESTIC LAW
A. Partition of property proceedings
- 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). If one
of the partitioned items was a flat which used to be a family
dwelling, the surviving spouse could request that it be allotted
exclusively to him or her (Article 288 § 2, as in force at the
relevant time). During that phase the court could also have
cognisance of certain ancillary matters, such as the reimbursement of
expenses incurred in relation with the partitioned property,
indemnification for the exclusive use of the property by one or more
of the co owners pending its partition (Article 286 § 1),
or the use of the property during the pendency of the proceedings
(Article 282 § 2).
B. Other relevant provisions of the Code of Civil
Procedure of 1952
- Article 217a of the Code, added in July 1999, created
a “complaint about delays”. In such a complaint a
litigant aggrieved by the slow examination of the case, delivery of
judgment or transmitting of an appeal against a judgment could
request the chairperson of the higher court to give mandatory
instructions for faster processing of the case.
- Article 332 § 1 of the Code provided that the
parties to enforcement proceedings could complain of the failure to
of the enforcement judge to undertake an action which they had
requested of him or her. Until November 2002 these complaints were
examined by the district courts, and after that – by the
regional courts (Article 333 § 1). A copy of the complaint was
served on the other party (Article 333 § 2), which had the
opportunity of replying in writing (Article 333 § 3). The court
examined the matter in private, unless it was necessary to hear
witnesses or experts (Article 334 § 1), and had to rule
within thirty days after receiving the complaint (Article 334 §
4). Until 12 November 2002 the district courts' decisions on such
complaints were appealable before the regional courts (Article 335 §
2, as in force before 12 November 2002); after that date they were
final (Article 334 § 4, as in force after 12 November 2002).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant alleged that the length of the proceedings was in breach of
Article 6 § 1 of the Convention, which reads, as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that allegation.
A. Admissibility
- The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further finds that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. Period to be taken into consideration
- The
proceedings started on 12 February 1990. However, the period to be
considered did not begin to run until 7 September 1992, when the
Convention entered into force in respect of Bulgaria. Nevertheless,
to determine whether the time which has elapsed since this date is
reasonable, the Court has to take account of the stage which the
proceedings had reached at that point (see, among many other
authorities, Rachevi v. Bulgaria, no. 47877/99, §
70, 23 September 2004).
- The
judicial stage of the proceedings ended on 28 November 2001. However,
in 2002 the applicant issued enforcement proceedings. At the time of
the latest information from the parties (12 November 2006) these
proceedings were still pending. The Court has previously said that
the enforcement proceedings are the second stage of the proceedings
and that the right asserted does not actually become effective until
enforcement (see Di Pede v. Italy and Zappia v. Italy,
judgments of 26 September 1996, Reports of Judgments and Decisions
1996-IV, pp. 1384 85, §§ 22, 24 and 26, and pp.
1411 12, §§ 18, 20 and 22). This is even more so in
partition of property cases, where the proceedings are
issued with the sole aim of allowing the joint owners of an estate to
effectively exercise their individual property rights. The relevant
period has therefore not ended yet.
- The
overall length of the proceedings has thus been at least sixteen
years and nine months, and the duration of the period to be
considered has been no less than fourteen years and two months.
2. Reasonableness of the length of the proceedings
- 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 litigation (see, among many other authorities,
Hadjibakalov v. Bulgaria, no. 58497/00, § 48, 8 June
2006).
- The
parties presented arguments as to the way in which these criteria
should apply in the present case.
- 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 (see
paragraphs 44, 45 and 46 above). It thus seems that by their very
nature such proceedings are apt to consume more time than a typical
civil case. However, this cannot absolve the authorities from their
duty to dispose of the case within a reasonable time, as States have
a general obligation to organise their legal systems so as to ensure
compliance with all the requirements of Article 6 § 1, including
that of trial within a reasonable time (ibid., § 50).
- The
case was not very complicated legally, but had a certain amount of
factual complexity, due to the number of partitioned items and the
parties' ancillary claims. A number of issues, such as the value of
the flat, of the garage, of the car and of the chattels, required
expert opinions. However, these elements cannot explain all of the
accumulated delays.
- Concerning
what was at stake for the applicant, the Court notes that the
proceedings related, among others, to a flat where he had lived until
1987. It should however be observed that in May 1996 the applicant
obtained a writ of execution in respect of that flat and that in
October 1997 it was delivered into his possession (see paragraph 27
above). After that the proceedings concerned only the car and certain
chattels.
- The
Court does not consider that the applicant was to blame for any
significant delays.
- As
to the conduct of the authorities, the Court observes that, apart
from the adjournment of three hearings due to improper summoning of
the respondents (see paragraph 8 above), no major unjustified delays
attributable to them may be discerned during the first phase of the
partition proceedings. In any event, this period lies mostly outside
its temporal jurisdiction. However, the fact remains that on 7
September 1992, the beginning of the period under consideration, the
proceedings had already been pending for more than two and a half
years.
- As
regards the period after 7 September 1992, the Court notes the
following elements.
- The
absence of the applicant's son, most often due to the authorities'
failure to properly summon him, triggered the adjournment of a number
of hearings (see paragraphs 13, 17, 31 and 37 above).
- The
applicant's son was also at the origin of the gap between September
1996 and September 1997, when he was refusing the experts access to
the chattels in his possession (see paragraph 30 above). A large part
of that gap could have been avoided if the courts had adopted a more
proactive approach in processing the case. However, they did not
adequately try to avert the dilatory behaviour of the applicant's son
and may thus be considered responsible for the resulting delay (see
Kuśmierek v. Poland, no. 10675/02, § 65, 21
September 2004; Sokolov v. Russia, no. 3734/02, § 40,
22 September 2005; and Kesyan v. Russia, no. 36496/02, §
58, 19 October 2006).
- Meanwhile,
five months were wasted in the proceedings concerning the flat
between September 1995 and February 1996 because of the need to
replace two experts (see paragraph 25 above). Bearing in mind that
they had been appointed by the court, responsibility for the belated
presentation of their report may be considered to lie with the
authorities (see Rachevi, cited above, § 90, with further
references).
- The
Court also notes that, while the proceedings concerning the flat were
pending before the Plovdiv Regional Court, the Plovdiv District Court
made no progress in the proceedings concerning the car and the
chattels. It does not appear from the documents in file that the
determination of this latter part of the case required awaiting the
outcome of the controversy concerning the former, which was finally
determined by the Plovdiv Regional Court on 3 May 1996 (see paragraph
26 above). Therefore, the delay in the proceedings concerning the
chattels between April 1995 and September 1996 does not appear
justified.
- The
courts' incoherent approach in processing the appeals against the
Plovdiv District Court's judgments of 21 April 1994 and 29 October
1997, coupled with the drawing out of the examination of the appeal
on points of law by the Supreme Court of Cassation (see paragraphs
19 22 and 33 36 above) caused more than two years of delay.
- Concerning
the enforcement proceedings, the Court notes that in June and
September 2002 the enforcement judge seized and attached a number of
chattels with a view to satisfying the applicant's claim (see
paragraph 40 above). The applicant did not specify whether he
requested further steps to be taken and whether the enforcement judge
refused or failed to act. The Court is not persuaded that this was
rendered wholly impossible by the sending of the case file to the
Plovdiv District Court for use in other proceedings (see paragraph 42
above). However, even assuming that the length of the enforcement
proceedings is not attributable to the authorities, the fact remains
that by 2006 the case had been pending for sixteen years, which
appears excessive.
- Having regard to the delays identified above and the
overall length of the proceedings, the Court concludes that the
applicant's case was not determined within a “reasonable time”,
as required by under Article 6 § 1 of the Convention. There has
therefore been a violation of that provision.
II. ALLEGED VIOLATION OF
ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that because of the excessive length of the
proceedings he had been unable to peacefully use the partitioned
flat, had incurred expenses for repairing it, and had had to lease
another flat where to live during the pendency of the proceedings. He
relied on Article 1 of Protocol No. 1, 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 said that this complaint was out of time, as the part of
the case relating to the flat had been finally determined on 3 May
1996, whereas the application had been lodged on 3 November 1999. As
regards the part of the complaint relating to the incurred expenses,
the applicant had failed to exhaust domestic remedies, as he had not
requested indemnification under Article 286 of the Code of Civil
Procedure of 1952 (see paragraph 46 above) or under the general law
of tort.
- The
applicant replied that at the time when his application had been
lodged the overall dispute between him and his son and daughter had
not been finally determined. The Government's reliance on Article 286
was misplaced, as it did not apply to claims for deterioration of
property, which were tortuous in nature. It was therefore not open to
him to claim compensation for the flat's deterioration in the context
of the partition proceedings. He finally said that as a result of the
length of the proceedings he had been unable to recover most of the
chattels allotted to him, because in the meantime the respondents had
disposed of them.
- The
Court finds that this complaint is closely linked to the one about
the length of the proceedings and must, therefore, be declared
admissible. However, having regard to its conclusion under Article 6
§ 1 (see paragraph 69 above), it does not consider it necessary
to examine it separately (see Zanghì v. Italy, judgment
of 19 February 1991, Series A no. 194 C, p. 47, § 23;
and Di Pede, cited above, p. 1395, § 42).
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention about the
lack of effective remedies in respect of the excessive length of the
proceedings. Article 13 provides:
“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.”
- The
Government said that the applicant could have used the “complaint
about delays” under Article 217a of the Code of Civil Procedure
of 1952.
- The
applicant replied that this remedy came to late to be able to impact
on the global length of the proceedings and was not effective.
Moreover, in Bulgarian law there existed no compensatory remedies for
the length of civil proceedings.
- The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further finds that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
- Having
regard to its conclusion under Article 6 § 1 (see paragraph 69
above), the Court considers that the complaint is arguable and that
Article 13 is applicable.
- The
Court notes that the proceedings had two stages: judicial (consisting
of two phases) and enforcement. It considers it appropriate to
examine the availability of remedies in each of those stages
separately.
- Concerning the judicial stage, which started on 12
February 1990 and ended on 28 November 2001, the Court notes that in
several judgments against Bulgaria it has found that until July 1999
– more than nine years after the beginning of the proceedings
in issue and slightly less than seven years after the beginning of
the period to be considered – Bulgarian law did not provide any
remedies capable of accelerating civil proceedings (see Djangozov
v. Bulgaria, no. 45950/99, § 51, 8 July 2004; Rachevi,
cited above, §§ 64, 65 and 101; Dimitrov v. Bulgaria,
no. 47829/99, § 77, 23 September 2004; and Todorov v.
Bulgaria, no. 39832/98, § 59, 18 January 2005). Even
assuming that the “complaint about delays” under Article
217a of the Code of Civil Procedure of 1952 (see paragraph 47 above)
could have speeded up the examination of the case after that date, it
came too late to have a significant effect on the length of the
proceedings as a whole (see Djangozov, § 52; Rachevi,
§§ 66 and 67; Dimitrov, §§ 78 and 79; and
Todorov, § 60, all cited above; as well as Holzinger v.
Austria (no. 2), no. 28898/95, §§ 20 and 21, 30
January 2001).
- As
regards the enforcement stage, which started in 2002 and has
apparently still not ended, the Court notes that the applicant had
the possibility of challenging the inaction of the enforcement judge
before a court (see paragraph 48 above). This procedure does not
appear prima facie ineffective, but the Court must have regard
to the specific circumstances of each case (see, mutatis mutandis,
Stefanova v. Bulgaria, no. 58828/00, § 69, 11 January
2007). It observes that it is not clear whether after September 2002
the applicant requested the enforcement judge to take further steps
to execute the final judgment in his favour and, if so, whether he
challenged her inaction before the competent court. In these
circumstances, the Court does not consider that the remedy available
to the applicant was not effective as such. However, having regard to
overall delay accumulated by September 2002, it does not consider
that its use could have had a significant impact of the length of the
proceedings as a whole (see the cases cited in paragraph 80 in
fine above).
- The
Court finally notes that, as already found in the judgments mentioned
above, Bulgarian law does not presently provide any remedies capable
of leading to the award of compensation for excessive delays in civil
proceedings (see Djangozov, § 58; Rachevi, §
103; Dimitrov, § 82; Todorov, § 65; and
Stefanova, § 73 in fine, all cited above).
- There
has therefore 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
- The
applicant claimed 21,400 euros (EUR) in respect of pecuniary damage
sustained on account of the excessive length of the proceedings. This
damage consisted of the rent which he had had to pay as a result of
his not being able to live in the partitioned flat, of the loan which
he had had to take to make repairs to the flat, and of the value of
the chattels which had been allotted to him but were still not in his
possession. The applicant also claimed EUR 6,000 in respect of
non pecuniary damage.
- The
Government did not comment.
- In
the Court's view, it is reasonable to conclude that, as a result of
the long delay, in breach of Article 6 § 1, the applicant
suffered a loss of opportunities which warrants an award of just
satisfaction in respect of pecuniary damage. However, the various
components of this damage cannot be calculated precisely (see,
mutatis mutandis, Martins Moreira v. Portugal, judgment
of 26 October 1988, Series A no. 143, pp. 22 23, §§ 65
and 67). Making an assessment on an equitable basis, the Court awards
under this head EUR 1,000, plus any tax that may be chargeable. The
Court also considers that the applicant has sustained non pecuniary
damage on account of the violation of Article 6 § 1 and awards
him under this head EUR 3,000, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant sought the reimbursement of EUR 4,645 for the costs and
expenses incurred before the Court.
- The
Government did not comment.
- 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 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 1,000, plus any tax
that may be chargeable.
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 it is not necessary to examine the
complaint under Article 1 of Protocol No. 1 to 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, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five thousand
euros) in respect of pecuniary and non pecuniary damage and
costs and expenses, plus any tax that may be chargeable to the
applicant, the said amount to be converted into Bulgarian levs at the
rate applicable on the date of settlement;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amount 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 14 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
