EU & Human Rights

GOSPODINOVA v. BULGARIA - 38646/04

[2011] ECHR 253European Court of Human Rights2011

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The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Mirjana Lazarova Trajkovska, President, Zdravka Kalaydjieva, Julia Laffranque, judges, and Stephen Phillips , Deputy Section Registrar,

The case originated in an application (no. 38646/04) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Yordanka Ilieva Gospodinova (“the applicant”), on 13 October 2004. The applicant was represented by Ms S. Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv.

On 20 November 2004 the applicant passed away. In a letter dated 22 January 2010 her son and only heir, Mr Rosen Gospodinov, informed the Court that he wished to pursue the present proceedings in her stead. He indicated that he also wished t o be represented by Ms Stefanova and Mr Ekimdzhiev .

The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

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BAILII · Verbatim mirror

Mirjana Lazarova Trajkovska, President,
Zdravka Kalaydjieva,
Julia Laffranque, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 18 January 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

On 20 November 2004 the applicant passed away. In a letter dated 22 January 2010 her son and only heir, Mr Rosen Gospodinov, informed the Court that he wished to pursue the present proceedings in her stead. He indicated that he also wished to be represented by Ms Stefanova and Mr Ekimdzhiev.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

On 23 June 2009 the Court decided to communicate to the Government the applicant’s complaints concerning the length of the criminal proceedings in which she had acted as a civil claimant and the lack of effective remedies in that respect. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges. The complaints of the remaining initial applicants were dismissed as inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1946.

The applicant lived in a house in Plovdiv situated in the same yard as the house of Ms N.K. The applicant’s family had bad relations with Ms N.K.’s family.

On 27 July 1996 a quarrel erupted in the yard between Ms N.K., accompanied by friends of hers, and the applicant, accompanied by some relatives. The quarrel grew into a fight between the two groups. According to the applicant, one of Ms N.K.’s friends entered the applicant’s house to prevent her husband from calling the police. Allegedly, one of Ms N.K.’s friends had a gun and threatened to kill the applicant.

On 27 July 1996 the applicants filed a complaint with the Plovdiv district public prosecutor’s office describing the events of the same day and requesting that Ms N.K. and her companions be prosecuted. In September 1996 the Plovdiv district public prosecutor’s office opened criminal proceedings. However, until August 1999 it did not take any investigative action.

In August and September 1999 the prosecuting authorities questioned the applicant and several other witnesses.

On an unspecified date Ms N.K. was charged with having threatened the applicant and having, together with other persons, forcibly entered into her house.

On 9 August 1999 the applicant filed with the investigator in charge of the case a civil claim against Ms N.K., seeking 3,000 Bulgarian levs (BGN) in non-pecuniary damages. On the same day, by a decision of the investigator, the applicant was formally admitted as a civil party in the criminal proceedings.

Between 1999 and 2004 the Plovdiv district public prosecutor’s office discontinued the criminal proceedings against Ms N.K. on two occasions, finding that she had committed no publicly prosecutable offences. However, on both occasions its decisions were quashed upon appeals by the applicant, either by the Plovdiv appellate public prosecutor’s office or by the Plovdiv District Court, which remitted the case for further investigation. During that period the prosecuting authorities questioned several more witnesses.

On 3 June 2004 the Plovdiv district public prosecutor’s office discontinued the proceedings once again, on the ground that the time-limit for prosecuting the offences Ms N.K. had been charged with had expired. That decision was upheld by the Plovdiv District Court on 25 June 2004.

II. RELEVANT DOMESTIC LAW

Under the Code of Criminal Procedure 1974, as in force at the relevant time, a victim of a criminal offence could bring, in the framework of the criminal proceedings, a civil claim against the accused or any third person who might le liable for any damage inflicted.

THE LAW

I. PRELIMINARY REMARK

The Court notes that the applicant passed away on 20 November 2004, while the case was pending before the Court, and that her son and only heir, Mr Rosen Gospodinov, expressed the wish to pursue the application on her behalf (see paragraph 2 above). It has not been disputed that he is entitled to do so and the Court sees no reason to hold otherwise (see, among many other authorities, Donka Stefanova v. Bulgaria, no. 19256/03, § 11, 1 October 2009).

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained that the length of the criminal proceedings in which she had acted as a civil party had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, in so far as relevant, reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

The Government urged the Court to dismiss the complaint as inadmissible for failure to exhaust domestic remedies, because the applicant had failed to seek damages from Ms N.K. outside the framework of the criminal proceedings.

However, the Court does not see how such an action could have remedied the applicant’s grievances, which did not concern access to a court to seek damages, but, instead, the length of the criminal proceedings in which she had acted as a civil party. Accordingly, the Court dismisses the Government’s objection.

The Court notes furthermore that the complaint is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention and not inadmissible on any other ground. It must therefore be declared admissible.

B. Period to be taken into consideration

The Court notes that the applicant brought a civil claim in the framework of the criminal proceedings against Ms N.K. on 9 August 1999 (see paragraph 11 above). In his written submission in the case her son considered that no civil rights and obligations of the applicant had been at stake prior to this date and that Article 6 § 1 had not been applicable. The Court also finds that the period to be taken into consideration for the purposes of Article 6 § 1 started on 9 August 1999, when the applicant brought a civil claim. Nevertheless, it wishes to add the following observations.

The applicant’s initial complaint to the prosecuting authorities dated back to July 1996. After opening criminal proceedings in September 1996 those authorities remained completely inactive for almost three years, until August 1999 (see paragraph 8 above) and it appears that charges against Ms N.K. were only brought around that time, after the investigation was resumed (see paragraphs 10-11 above). Apparently, the applicant, who brought her civil claim on 9 August 1999, did so immediately after this had become possible, that is after charges had been brought and there was an “accused”, as required by domestic law at the time (see paragraph 14 above). Accordingly, the applicant cannot be blamed for not having brought an action for damages earlier. Although these considerations do not affect the Court’s conclusion above that the period to be taken into consideration started on 9 August 1999, it will take them into account when assessing the reasonableness of that period.

The period in question ended on 25 June 2004, when the criminal proceedings against Ms N.K. were discontinued with finality (see paragraph 13 above). It thus lasted nearly five years, during which the case remained at the stage of preliminary investigation.

C. Merits

The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see, for example, Rachevi v. Bulgaria, no. 47877/99, 23 September 2004, and Marinova and Radeva v. Bulgaria, no. 20568/02, 2 July 2009). Having examined all the material submitted to it, the Court sees no reason to reach a different conclusion in the present case. It notes, in particular, that the case remained at the stage of preliminary investigation for nearly five years and that it was not of any particular complexity as it concerned a minor quarrel between neighbours. Furthermore, significant delays in the proceedings were caused by the discordant actions of the authorities, who discontinued on two occasions the proceedings, but after that, upon appeals by the applicant, decided to investigate further (see paragraph 12 above).

Moreover, as the Court already noted (see paragraph 21 above), the applicant brought her claim for damages in August 1999, immediately after it became possible to do so. However, by that time the proceedings had already been delayed by three years, due to the prosecuting authorities’ initial inactivity (see paragraphs 8-11 above).

In view of the above considerations, the Court concludes that there has been a breach of Article 6 § 1 of the Convention in that the proceedings for the determination of the applicant’s civil rights and obligations lasted an unreasonably long period of time.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

The applicant further complained under Article 13 of the Convention that she had had no effective remedy in respect of the length of the proceedings.

Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Without raising any specific arguments, the Government contended that Article 13 had not been violated in the case.

The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

Article 13 of the Convention guarantees an effective remedy before a national authority for an alleged breach of the right under Article 6 § 1 to have a case heard within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI).

The Court already found that a remedy referred to by the Government, namely an action for damages against the alleged offender before the civil courts, did not represent an effective remedy in the case (see paragraphs 17-18 above). The Court has not been informed of the existence of any other remedy allowing civil claimants in criminal proceedings to obtain the speeding up of those proceedings or compensation for their excessive length.

Accordingly, it concludes that in the present case there has been a violation of Article 13 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

On behalf of the applicant, her son, Mr Rosen Gospodinov, claimed 20,000 euros (EUR) in respect of non-pecuniary damage.

The Government contested this claim.

The Court considers that the applicant must have sustained non pecuniary damage as a result of the protraction of the proceedings and the lack of effective remedies in that regard. Ruling on an equitable basis, it awards EUR 2,000 under that head, plus any tax that may be chargeable, to be paid to the applicant’s son, Mr Rosen Gospodinov.

B. Costs and expenses

Mr Rosen Gospodinov also claimed EUR 2,275 for the costs and expenses incurred before the Court. He requested that any sum awarded under this head be transferred directly into the bank account of his lawyers, Ms Stefanova and Mr Ekimdzhiev. The Government contested this claim.

According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the circumstances of the case and the above criteria, the Court considers it reasonable to award the sum of EUR 600, plus any tax that may be chargeable to Mr Rosen Gospodinov, to be paid directly to Ms Stefanova and Mr Ekimdzhiev.

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the application admissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds that there has been a violation of Article 13 of the Convention;

Holds

(a) that the respondent State is to pay the applicant’s son, Mr Rosen Gospodinov, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement;

(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 600 (six hundred euros), plus any tax that may be chargeable to Mr Rosen Gospodinov, in respect of costs and expenses, to be transferred directly into the bank account of the his legal representatives;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the claims for just satisfaction.

Done in English, and notified in writing on 10 February 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Mirjana Lazarova Trajkovska
Deputy Registrar President

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