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FIFTH
SECTION
CASE OF ATANASOV AND OVCHAROV v. BULGARIA
(Application
no. 61596/00)
JUDGMENT
STRASBOURG
17
January 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 Atanasov and Ovcharov 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 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 61596/00) 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 two Bulgarian nationals, Mr Ivan Georgiev
Atanasov and Mr Petar Asenov Ovcharov (“the applicants”),
on 19 April 2000.
- The
applicants, who had been granted legal aid, were represented by Mr
V.S. Stoyanov, a lawyer practising in Pazardzhik.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Kotzeva, of the Ministry of Justice.
- The
applicants alleged that the length of the criminal proceedings
against them had been excessive, that they had lacked an effective
remedy in that connection and that they had been subjected to inhuman
and degrading treatment as a result. The applicants further
complained that their tractor and hunting rifles had been unlawfully
seized by the police, that they had been held as physical evidence
for the duration of the criminal proceedings against them and that
the tractor had then been delivered to the farm cooperative. They
also claimed to have lacked an effective remedy in that connection.
- On
28 January 2005 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
- Mr
Atanasov (“the first applicant”) was born in 1957 and
lives in Pazardzhik. He is the son-in-law of Mr Ovcharov (“the
second applicant”) who was born in 1936 and lives in Aleko
Konstantinovo.
- Between
1993 and 1994 the second applicant was the head of a farm
cooperative.
A. The criminal proceedings against the applicants
- On
12 August 1993 the farm cooperative, represented by the second
applicant, acquired a tractor (“the first tractor”) at an
auction organised by another cooperative.
- On
31 August 1993 the first applicant acquired a similar, cheaper
tractor (“the second tractor”) at a second auction
organised by the same cooperative. Immediately after the auction the
first applicant, assisted by the second applicant, took possession of
a tractor. However, they apparently took the first tractor.
- The
farm cooperative took possession of the second tractor on 6 September
1993.
- On
15 November 1993 an invoice was issued to the first applicant for the
purchase of the second tractor. Subsequently, the first applicant
requested the seller to reissue the sales invoice so that it
indicated that he had in fact acquired the first tractor.
- Sometime
around 11 February 1994 the farm cooperative discovered that it had a
different tractor from the one it had purchased. Soon thereafter it
complained to the authorities of the alleged fraud perpetrated by the
applicants.
- On
16 May 1994 a preliminary investigation was opened against the
applicants.
- On
29 March 1996 the applicants were charged with fraud and malfeasance.
The charges against the first applicant were amended on 28 February
1997 to include the offence of using a falsified document to obtain
another's chattel with the aim of misappropriating it.
- On
7 April 1997 the Pazardzhik district prosecutor's office entered an
indictment against the applicants with the Pazardzhik District Court
for malfeasance fraud and use of a falsified document.
- Between
2 June 1997 and 18 February 2000 the District Court conducted ten
hearings. During this period the judge in charge of the proceedings
was changed on three occasions for undisclosed reasons. At the
hearing on 18 February 2000 the District Court established that there
had been procedural violations at the stage of the preliminary
investigation, discontinued the proceedings and remitted the case to
the investigation authorities.
- The
preliminary investigation against the applicants continued and there
were no significant developments until 2004.
- On
29 June and 20 July 2004 the applicants filed separate requests with
the Pazardzhik Regional Court under the procedure envisaged in the
new Article 239a of the Code of Criminal Procedure (see paragraph 34
below) and petitioned the court to order the termination of the
preliminary investigation against them.
- In
decisions of 12 July and 22 July 2004 the Regional Court referred the
case to the Pazardzhik regional prosecutor's office either to
discontinue the preliminary investigation or to enter indictments
against the applicants. In its decision of 12 July 2004 the court
established that no investigative procedures whatsoever had been
undertaken since 18 February 2000, when the District Court had
remitted the case to the investigation authorities.
- Following
a delay by the prosecutor's office to rule on the matter, the
applicants lodged their requests again on 19 October 2004.
- In
a decision of 28 October 2004 the regional prosecutor's office
discontinued the preliminary investigation against the applicants
because the time-limit for prosecution under the statute of
limitations for the offences had expired.
- On
10 November 2004 the applicants appealed against the decision of the
prosecutor's office and claimed that the grounds for terminating the
preliminary investigation should be the lack of evidence of an
offence and not the expiry of the time-limit for prosecution under
the statute of limitations.
- In
a decision of 22 November 2004 the District Court upheld the decision
to discontinue the preliminary investigation against the applicants
and found that they could not seek to amend the grounds for its
termination. The court reasoned that if the applicants had wanted to
have the criminal proceedings terminated because of the lack of
evidence that they had perpetrated an offence then they should have
requested that the proceedings continue in spite of the expiry of the
time-limit under the statute of limitations, which they had not done.
B. The seizure and impounding of the first tractor
- On
25 January 1995 the police seized the first tractor from the first
applicant and impounded it as physical evidence in the pending
criminal proceedings.
- The
seizure and impounding of the first tractor was upheld on appeal by
the district and regional prosecutor's offices and by the Chief
Public Prosecutor on unspecified dates.
- The
first tractor was held in storage at a police compound until it was
delivered to the farm cooperative on an unspecified date before 1
April 2002.
- On
1 April 2002 the district prosecutor's office ordered the farm
cooperative to deliver the second tractor to the second applicant,
which it did not do.
C. The seizure and impounding of the hunting rifles
- The
applicants asserted that in the course of the preliminary
investigation against them the authorities also seized a hunting
rifle from each of them and held them as physical evidence. However,
it is unclear when and how these actions were undertaken.
- In
so far as can be ascertained from the documents presented, the second
applicant voluntarily handed over a hunting rifle to the police on
4 October 2000, which was returned to him on 23 August 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure (1974)
1. Physical evidence
- Paragraphs
1, 2 and 4 of Article 107 of the Code of Criminal Procedure (1974)
provided as follows:
“(1) Physical evidence must be
carefully examined, described in detail in the respective record, and
photographed, if possible.
(2) Physical evidence shall be attached to
the case file while at the same time measures shall be taken not to
spoil or alter the evidence.
...
(4) Physical evidence which, because of its
size or other reasons, cannot be attached to the case file, must be
sealed, if possible, and deposited for safekeeping at the places
indicated by the respective authority.”
- Paragraphs
1 and 2 of Article 108 of the Code, as in force at the relevant time
and until 1 January 2000, provided as follows:
“(1) Physical evidence shall be held
until the termination of the criminal proceedings.
(2) Chattels which have been collected as
physical evidence can be returned to their owners before the
termination of criminal proceedings only as long as this will not
hinder the establishment of the facts in the case.”
- Article
108 paragraph 2 of the Code was amended on 1 January 2000 to clarify
that it was within the powers of the prosecutor's office to rule on
requests for the return of chattels held as physical evidence. In
addition, a right of appeal to a court was introduced against
refusals by the prosecutor's office to return such chattels (Article
108 paragraph 4 of the Code of Criminal Procedure as in force after 1
January 2000).
- If
a dispute over ownership requiring adjudication by the civil courts
arose in respect of items held as physical evidence, the authorities
were obliged to keep those items safe until the relevant judgment
became final (Article 110).
2. Request to have a case examined by a court
- By
an amendment of June 2003 the new Article 239a introduced the
possibility for an accused person to request to have his case
examined by a court if the preliminary investigation had not been
completed within the statutory time-limit (two years in
investigations concerning serious crimes and one year in all other
investigations). In such instances the courts would remit the case to
the prosecutor's office with instructions to either enter an
indictment against the accused within two months or discontinue the
criminal proceedings. If the prosecutor's office failed to take
action, the courts would then terminate the criminal proceedings
themselves.
B. State and Municipalities' Responsibility for Damage
Act (1988)
- Section
1 (1) of the State and Municipalities' Responsibility for Damage Act
of 1988 (the “SMRDA”: title changed in 2006), as in force
at the relevant time, provided as follows:
“The State shall be liable for damage caused to
[private persons] from unlawful acts, actions or inactions of its
apparatus and officials [in the exercise] of administrative duties.”
- Section
2 of the SMRDA provides as follows:
“The State shall be liable for damage caused to
[private] persons by the [apparatus] of ... the investigation
authorities, the prosecution authorities, the court ... for an
unlawful:
1. detention ... ;
2. charge for an offence, if the person has
been acquitted or the opened criminal proceedings have been
terminated because the act was not perpetrated by the person [in
question] or the act is not an offence ... ;
3. sentence ... ;
4. ... forced medical treatment ... ;
5. ... imposition of administrative sanctions
... ;
6. enforcement of an imposed sentence in
excess of the determined period ... ”
- Compensation
awarded under the Act comprises all pecuniary and non-pecuniary
damage which is the direct and proximate result of the illegal act of
omission (section 4). The person aggrieved has to lodge an “action
... against the [entity] ... whose illegal orders, actions, or
omissions have caused the alleged damage” (section 7).
Compensation for damage arising from instances falling under section
1 and 2 of the Act can only be sought under the Act and not under the
general rules of tort (section 8 § 1).
- The
practice of the Bulgarian courts in the application of the Act has
been very restrictive.
- In
particular, the domestic courts have ruled that liability for damage
stemming from instances within the scope of section 1 of the Act are
to be examined only under the Act and not under the general rules of
tort (решение
№ 55 от 14.III.1994 г. по гр.д.
№ 599/93 г., ВС,
IV г.о.).
- Similarly,
liability of the investigation and prosecution authorities may arise
only in respect of the exhaustively listed instances under
section 2 (2) of the Act and not under the general rules of
tort (решение № 1370
от 16.XII.1992 г. по гр.д.
№ 1181/92 г., IV г.о. and Тълкувателно
решение № 3 от
22.04.2005 г. по т. гр. д.
№ 3/2004 г., ОСГК на
ВКС). In particular, the investigation authorities
and the prosecutor's office are not liable for their actions in
instances, such as in the present case, where criminal proceedings
have been discontinued because the time-limit for prosecution under
the statute of limitations expired after the criminal proceedings had
been opened (Тълкувателно
решение № 3 от
22.04.2005 г. по т. гр. д.
№ 3/2004 г., ОСГК на
ВКС). No reported cases have been identified of
successful claims for damage stemming from actions by the
investigation or prosecution authorities which fall outside the list
in section 2 of the Act.
- Lastly,
liability under section 2 of the Act may only arise for unlawful
actions, but not for unlawful inactions by the investigation
authorities, the prosecution authorities and the courts (решение
№ 183 от 05.IV.2001 г. по
гр. д. № 1362/2000 г.).
C. The Obligations and Contracts Act
- The
Obligations and Contracts Act provides in section 45 that a person
who has suffered damage can seek redress by bringing a civil action
against the person who has, through his fault, caused the damage.
Under section 110 the claim for damage is extinguished on expiry of a
five-year prescription period.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3, 6 § 1 AND 13 OF
THE CONVENTION
- The
applicants complained of the excessive length of
the criminal proceedings against them, and that they lacked an
effective remedy in that connection. Articles 6 § 1 and 13 of
the Convention provide, in their relevant parts:
Article 6 (right to a fair hearing)
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
Article 13 (right to an effective remedy)
“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.”
They
also raised a complaint under Article 3 of the Convention that they
had been subjected to inhuman and degrading treatment as a result of
the length of the criminal proceedings against them. Article 3 of the
Convention provides:
Article 3 (prohibition of torture)
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. Complaints under Articles 6 § 1 and 13 of the
Convention
- The
Government submitted that the applicants had failed to exhaust the
available domestic remedies. They claimed that they should have
initiated an action under the SMRDA and should have sought
compensation for all pecuniary and non-pecuniary damage which was the
direct and proximate result of the alleged violation. The Government
referred to the practice of the domestic courts in similar cases.
- The
applicants replied that the Government had failed to substantiate
their objection because they had failed to show that an action under
the SMRDA was an effective remedy for their complaint of the
excessive length of the criminal proceedings against them and,
therefore, that it was required of them to have made use of it. They
submitted that the violations complained of could neither be
established nor compensated under the SMRDA.
- The
Court considers that the question of exhaustion of domestic remedies
is so closely related to the merits of the applicants' complaint that
they lacked an effective remedy for the excessive length of the
criminal proceedings against them that it cannot be detached from it.
Therefore, to avoid prejudging the merits of the said complaint,
these questions should be examined together.
Thus,
the Court holds that the issue of whether the applicants exhausted
the domestic remedies should be joined to the merits of their
complaint under Article 13, in conjunction with Article 6 of the
Convention.
- The
Court notes that complaints about “length of proceedings”
fall to be considered under Article 6 § 1 of the Convention.
There is no indication that the length of the criminal proceedings
itself amounted to treatment attaining the minimum level of severity
at which Article 3 of the Convention becomes relevant (see Osmanov
and Yuseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4
September 2003). The Court considers that the applicants' complaints
under Articles 6 § 1 and 13 of the Convention about the length
of the criminal proceedings and the availability of an effective
remedy in that connection are not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. It further notes
that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits of the complaints under Articles 6 § 1
and 13 of the Convention
1. Period to be taken into consideration
- The
Court finds that the period to be taken into consideration lasted
from 16 May 1994, when the preliminary investigation was opened (see
paragraph 13 above), to 22 November 2004, when the decision to
terminate the criminal proceedings became final (see paragraph 23
above).
- This
represents a period of ten years, six months and ten days during
which time the criminal proceedings had failed to effectively
progress further than the investigation stage because the court
proceedings had been discontinued on 18 February 2000 and the case
had been remitted to the investigation authorities (see paragraph 16
above) where it remained until it was discontinued (see paragraphs
17-23 above).
2. The parties' submissions
- The
Government did not submit separate observations on the merits of the
applicants' complaints other than in the context of their objection
of non-exhaustion of domestic remedies, with which the applicants
disagreed (see paragraphs 44-45 above).
- The
applicants further claimed that there was no justification for the
excessive length of the criminal proceedings and claimed that there
had been unexplained and unreasonable delays by the authorities.
Moreover, they noted that it was only after they had filed a request
under new Article 239a of the Code of Criminal Procedure that
the criminal proceedings had been discontinued.
3. Compliance with Article 6 § 1 of the Convention
regarding the length of the criminal proceedings
- 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,
and the conduct of the applicants and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- Having
examined all the material before it, the Court finds that no facts or
arguments capable of persuading it that the length of the criminal
proceedings in the present case was reasonable have been put forward.
In particular, the criminal proceedings against the applicants lasted
ten and a half years and failed to effectively
progress further than the investigation stage (see paragraphs 48-49
above). In addition, no investigative procedures whatsoever were
performed from 18 February 2000 to 29 June 2004, as established by
the Pazardzhik Regional Court in its decision of 12 July 2004 (see
paragraph 19 above).
- Thus,
having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
4. Compliance with Article 13 in conjunction with
Article 6 § 1 of the Convention regarding the availability of an
effective remedy
- The
Court reiterates that Article 13 of the Convention guarantees an
effective remedy before a national authority for an alleged breach of
the requirement under Article 6 § 1 of the Convention to hear a
case within a reasonable time (see Kudła, cited above, §
156).
- The
Court notes that it has found in similar cases against Bulgaria that,
in respect of the period before June 2003, there was no formal remedy
under domestic legislation that could have expedited the
determination of the criminal charges against the applicants (see
Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and
59901/00, §§ 38-42, 23 September 2004, and Sidjimov
v. Bulgaria, no. 55057/00, § 41, 27 January 2005). It sees
no reason to reach a different conclusion in the present case
regarding that period.
- The
Court recognises that with the introduction in June 2003 of the new
Article 239a of the Code of Criminal Procedure (see paragraph 34
above) the possibility was introduced for an accused person to
request to have his case brought before the courts if the preliminary
investigation had not been completed within a certain statutory
time-limit. The applicants used this possibility in June and July
2004 and successfully brought about the discontinuation of the
criminal proceedings against them on 22 November 2004.
- However,
the acceleration of the proceedings at that moment cannot be
considered to make up for the delay of over nine years which had
already accumulated (see Sidjimov, cited above, § 40).
- As
regards compensatory remedies and the Government's preliminary
objection, the Court observes that they submitted that the applicant
had failed to have recourse to an available domestic remedy under
section 2 (2) of the SMRDA and referred to the existing
possibility therein to obtain redress for having been unlawfully
charged with an offence. They did not, however, indicate how that
would have remedied the complaint currently before this Court in
respect of the alleged excessive length of the criminal proceedings.
Moreover, the Government failed to provide copies of domestic court
judgments where awards had been made under the SMRDA providing
redress for excessive length of criminal proceedings.
- In
view of the above, the Court does not find it proven by the
Government that in the circumstances of the present case an action
under the SMRDA would have provided for an enforceable right to
compensation which could be considered an effective, sufficient and
accessible remedy in respect of the applicants' complaint concerning
the alleged excessive length of the criminal proceedings (see,
likewise, Osmanov and Yuseinov, cited above, §41;
Sidjimov, cited above, § 42; and Nalbantova v.
Bulgaria, no. 38106/02, § 36, 27 September 2007).
- Accordingly,
there has been a violation of Article 13 in conjunction with Article
6 of the Convention.
It
follows that the Government's preliminary objection (see
paragraphs 44-46 above) must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION AND ARTICLE 13 OF THE CONVENTION
- The
applicants complained under Article 1 of Protocol No. 1 to the
Convention that their tractor and hunting rifles had been unlawfully
seized by the police, that they had been held as physical evidence
for the duration of the criminal proceedings against them and that
the tractor had then been delivered to the farm cooperative.
Article
1 of Protocol No. 1 to the Convention provides:
Article 1 of Protocol No. 1 (protection of property)
“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
applicants also complained that they did not have at their disposal
an effective domestic remedy for their complaints under Article 1 of
Protocol No. 1 to the Convention and that they were de facto
denied access to a court, because (1) they could not challenge
the continued seizure of their possessions before a court and (2)
they lacked an effective domestic remedy for their claims against the
authorities for compensation stemming from the prolonged inability to
use those possessions. The Court recognises that the applicants
complained of the lack of a substantive right of action under
domestic law rather than of the existence of procedural bars
preventing or limiting the possibilities of bringing potential claims
to court. Thus, it considers that this complaint should be examined
under Article 13 of the Convention in respect of the alleged lack of
effective domestic remedies against the interference with their right
to peaceful enjoyment of their possessions, rather than under Article
6 of the Convention as an access to court issue (see, mutatis
mutandis, Fayed v. the United Kingdom, judgment of 21
September 1994, Series A no. 294 B, p. 49, § 65, and Karamitrovi
v. Bulgaria (dec.), no. 53321/99, 9 February 2006).
Admissibility
1. Complaints concerning the hunting rifles
- In
so far as can be ascertained from the documents presented to the
Court there is no indication, other than the applicants' contentions,
that in the course of the criminal proceedings against them two
hunting rifles were seized from them as physical evidence and are
still being held as such by the authorities.
- The
only documentary evidence before the Court indicates that the second
applicant voluntarily presented a hunting rifle to the police on
4 October 2000 which was returned to him on 23 August 2001 (see
paragraphs 28-29 above). Accordingly, he can no longer claim to be a
victim of an interference with his right to the peaceful enjoyment of
his possession under Article 1 of Protocol No. 1 to the Convention.
- The
first applicant, meanwhile, failed to provide any specifics in
respect of when his rifle was allegedly seized and impounded by the
authorities.
- It
follows that the applicants' complaints concerning the alleged
seizure and impounding of their hunting rifles are manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
2. Complaints concerning the tractor
(a) The second applicant
- The
Court finds no indication that the second applicant ever acquired any
proprietary or other rights to either of the tractors, and no claims
or documents have been presented to that effect. Accordingly, the
second applicant cannot claim to be a victim of a violation under
Article 1 of Protocol No. 1 to the Convention because the
alleged interference did not relate to a possession of his.
- It
follows that the second applicant's complaints concerning the tractor
are manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
(b) The first applicant
- The
Court notes at the outset that there is no indication that the
initial seizure and impounding of the tractor was unlawful or
arbitrary, as it was performed in conformity with domestic
legislation with the aim of securing physical evidence in an ongoing
criminal investigation.
- As
to the continued seizure of the tractor, the Court recognises that
under Article 108 of the Code of Criminal Procedure it was possible
to petition the authorities to return objects held as physical
evidence in criminal proceedings (see paragraph 31 above). Moreover,
by an amendment of 1 January 2000 it was clarified that it was within
the powers of the prosecutor's office to rule on requests for the
return of chattels held as physical evidence and a right of appeal to
a court was introduced against refusals by the prosecutor's office to
return such chattels (see paragraph 32 above). The Court finds that
the first applicant failed to use these procedures prior to filing
his application with the Court on 19 April 2000 or to argue that they
were in any way an ineffective remedy for his complaint concerning
the continued interference.
- As
to the period prior to 1 January 2000, the interference had lasted a
little over four years, which does not appear to have been an
unreasonable length of time given that the tractor had been seized
and held as the primary physical evidence in an ongoing criminal
investigation.
- Separately,
the first applicant does not claim to have ever challenged the
decision of the prosecutor's office to deliver the tractor to the
farm cooperative or to have initiated separate civil proceedings
against the latter challenging their alleged proprietary rights to
it. Thus, it does not appear that he ever officially instigated a
property dispute with the farm cooperative which would have required
that the tractor remain with the authorities for the duration of such
proceedings (see paragraph 33 above).
- In
respect of the lack of compensation for the interference under
Article 1 of Protocol No. 1 to the Convention, the Court notes that
the seizure of property for legal proceedings relates to the control
of the use of property (see Raimondo v. Italy, judgment of 22
February 1994, Series A no. 281 A, § 27, and G., S.
and M. v. Austria, no. 9614/81, Commission decision of 12 October
1983, Decisions and Reports (DR) 34, pp. 122-23) and that such a
right to compensation is not inherent in the second paragraph of that
provision (see Banér v. Sweden, no. 11763/85,
Commission decision of 9 March 1989, DR 60, p. 128, at p. 142). Nor
does Article 13 of the Convention require that compensation be paid
under all circumstances.
- In
view of the above considerations, the Court finds that the first
applicant's complaints concerning the tractor are manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
III. 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
- Each
of the applicants claimed 15,000 euros (EUR) in respect of
non-pecuniary damage stemming from the violations of their rights
under the Convention. They argued that they had felt insecure and in
fear for their future for a considerable length of time while the
criminal proceedings against them had been ongoing and that they had
been discredited among friends and neighbours.
- The
applicants also claimed in respect of pecuniary damage
3,700 Bulgarian levs (BGL), amounting to the present day value
of the tractor, and EUR 9,000, representing the rental payments they
could have obtained if they had had possession of the vehicle, plus
interest. In support of their claim, the applicants submitted an
expert report attesting to the aforesaid amounts.
- The
Government failed to submit comments on the applicants' claims for
just satisfaction in one of the official languages.
- The
Court does not discern any causal link between the violations found
(see paragraphs 54 and 61 above) and the pecuniary damage alleged; it
therefore rejects this claim.
- In
respect of non-pecuniary damage, the Court finds that the applicants
must undoubtedly have suffered a certain degree of anguish and
despair as a result of the criminal proceedings having continued for
over ten years. Thus, having regard to the circumstances of the
present case and deciding on an equitable basis, the Court awards EUR
5,600 to each applicant under this head, plus any tax that may be
chargeable on those amounts.
B. Costs and expenses
- The
applicants claimed EUR 8,500 for the legal work by their lawyer
before the domestic courts and the Court as well postal expenses in
the amount of BGL 18.90. They submitted a legal fees agreement and a
time sheet, as well as receipts for the postal expenses. A request
was also made that any award made in respect of costs and expenses
incurred should be paid directly to their lawyer, Mr V. Stoyanov.
- The
Government failed to submit comments on the applicants' claims for
costs and expenses in one of the official languages.
- The
Court reiterates that according to its case-law, an applicant is
entitled to reimbursement of his or her costs and expenses only in so
far as it has been shown that these have been actually and
necessarily incurred and are reasonable as to quantum. Noting all the
relevant factors and the fact that the applicants were paid EUR 824
in legal aid by the Council of Europe, 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 to the applicants 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
- Decides to join to the merits of the complaint
under Article 13, in conjunction with Article 6 of the Convention,
the question of whether the applicants exhausted the available
domestic remedies and dismisses it after considering the
merits;
- Declares admissible the complaints concerning
the alleged excessive length of the criminal proceedings against the
applicants and the lack of an effective remedy related thereto;
- 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 applicants;
- Holds that there has been a violation of Article
13, in conjunction with Article 6 § 1 of the Convention, on
account of the lack of an effective remedy for the excessive length
of the criminal proceedings;
- 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
5,600 (five thousand six hundred euros) in respect of non-pecuniary
damage to each of the applicants;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses, payable
into the bank account of the applicants' lawyer in Bulgaria, Mr V.
Stoyanov;
(iii) any
tax that may be chargeable to the applicants on the above amount;
(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 17 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
