EU & Human Rights

NACHEV v. BULGARIA - 27402/05

[2010] ECHR 2089European Court of Human Rights2010

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

Rait Maruste, President, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, judges, and Stephen Phillips , Deputy Section Registrar ,

The case originated in an application (no. 27402/05) 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 Spas Stoilov Nachev (“the applicant”), on 20 July 2005 .

The applicant was represented by Ms E. Nedeva, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Dimova of the Ministry of Justice.

On 15 June 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14 the application was allocated to a Committee of three Judges.

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THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The preliminary investigation against the applicant

On 22 March 1993 the applicant, who was working as an armed guard in a greenhouse, after having argument with a certain S.G. – a client of the greenhouse, shot the latter in the chest in the presence of a large number of witnesses.

On the same day the applicant went to the police, handed in his gun and allegedly made a statement about the incident, admitting that he had opened fire against S.G. The gun was held by the police as physical evidence.

On 29 March 1993 a preliminary investigation was opened against the applicant for having inflicted minor bodily harm on S.G. Apparently, the applicant was not informed about the opening of the criminal investigation against him. However, on the same day the leading investigator asked the applicant to sign a declaration as to his income and possessions. The latter was done in the course of the measures to secure the satisfaction of a civil claim which S.G. could file against the applicant.

On 18 October 1993, upon S.G.’s request the leading investigator on the case was changed.

For the period between October 1993 and 9 February 1995 the case remained dormant.

In February 1995 S.G. and several witnesses were questioned.

On 6 December 1995 the investigator requested from the competent authorities information on the applicant’s right to carry firearms, which was submitted to him the following day.

The case remained dormant for the period between December 1995 and December 2002.

On 17 December 2002 a medical expert opinion was commissioned.

On 25 February 2003 the applicant was charged with inflicting intermediate bodily harm, was questioned and was presented with the findings of the investigation.

On 25 April 2003 the charges against him were amended to attempted murder.

For the period between 25 April 2003 and 10 May 2003 the applicant and several witnesses were questioned.

B. The court proceedings against the applicant

On 22 May 2003 the indictment was filed with the Pazardzhik Regional Court and a hearing was scheduled for 25 June 2003.

On 24 June 2003 S.G. filed a civil claim for damages against the applicant and the company Oranzherii – Kozarsko AD.

In a judgment of 23 December 2003 the Pazardzhik Regional Court found the applicant guilty of attempted murder, sentenced him to six years’ imprisonment and ordered him to pay S.G. the amount of 10,000 Bulgarian levs (BGN), the equivalent of 5,112 euros (EUR) in damages, plus interest as of 22 March 1993, plus expenses. The court rejected the civil claim against Oranzherii-Kozarsko AD as it was not established that it was the successor of Co-operative Oranzherii Kozarsko, which had been the applicant’s employer at the time of the incident.

Upon appeal, in a judgment of 1 April 2004 the Plovdiv Court of Appeal partly quashed the lower court’s judgment, reducing the applicant’s sentence to four years’ imprisonment and the amount of the awarded damages to BGN 5,000 (the equivalent of EUR 2,556), plus interest as of 22 March 1993. In determining the applicant’s reduced sentence, the court had regard to a number of factors, among which the long lapse of time between the offence and the sentence, the applicant’s good behaviour and the fact that he had not committed other offences and his family status. It further held that the applicant was not responsible for the delay in the criminal proceedings, which was clearly attributable to the authorities.

On further appeal, in a final judgment of 25 January 2005 the Supreme Court of Cassation upheld the judgment of the Court of Appeal.

On 14 February 2005 the applicant was taken to prison.

On 7 March 2006 a writ of execution was issued to S.G. and on an unspecified date enforcement proceedings were opened against the applicant.

On 26 April 2005 the latter was invited to voluntarily pay the amount of BGN 5,000, the equivalent of EUR 2,556 – damages, BGN 24, 062 (the equivalent of EUR 12,302) – interest and BGN 540 (the equivalent of EUR 276) – lawyer’s fees and other expenses. Form the information in the case file it appears that as of the applicant’s latest communication to the Court of January 2010 he still had not fully paid the above amounts.

On 20 December 2007 the applicant was released from prison.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Remedies in respect of length of criminal proceedings

The domestic law provisions concerning remedies in respect of length of criminal proceedings have been summarized in paragraphs 34-42 of the Court’s judgment in the case of Atanasov and Ovcharov v. Bulgaria, no. 61596/00, 17 January 2008.

B. Measures for guaranteeing the satisfaction of civil claims in the criminal proceedings

Article 156 of the CCP, as in force between 1974 and 1999, provided that the investigation and prosecution authorities and the courts had to take measures to guarantee, inter alia, the satisfaction of civil claims against the perpetrator.

Ordinance No. 35 of the Council of Ministers of 29 April 1997, still in force at the relevant time, provided that the financial situation of individuals could be established by virtue of certificates from the employer and declarations for the individuals’ income.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS

The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. Admissibility

The Court observes that in its judgment of 1 April 2004 the Plovdiv Court of Appeal, referring, inter alia, to delays in the proceedings attributable to the authorities, reduced the applicant’s sentence (see paragraph 19 above). The question thus arises whether he may still claim to be a victim of a violation of his right to a trial within a reasonable time.

According to the Court’s case-law, the reduction of a sentence on the grounds of the excessive length of proceedings does not in principle deprive the individual concerned of his status as a victim unless the national authorities have acknowledged, either expressly or in substance, in a sufficiently clear way a violation of Article 6 § 1 and have afforded appropriate redress (see, among other authorities, Eckle v. Germany, 15 July 1982, § 66-70, Series A no. 51, Morby v. Luxembourg (dec.), no. 27156/02, ECHR 2003-XI; Mladenov v. Bulgaria, no. 58775/00, § 31, 12 October 2006 and Sheremetov v. Bulgaria, no. 16880/02, § 33, 22 May 2008).

In the instant case, the Plovdiv Court of Appeal took note of the delays in the proceedings, which were clearly attributable to the authorities and took them into account, along with the other mitigating circumstances in reducing the applicant’s sentence (see paragraph 19 above). However, that court did not make reference to Article 6 § 1 of the Convention. Nor did it, expressly or in substance, consider the length of the proceedings to have been in breach of the “reasonable time” requirement. In these circumstances, the Court is not satisfied that the domestic authorities have acknowledged in a sufficiently clear manner a breach of Article 6 § 1 on account of the length of the proceedings. It is furthermore not persuaded that the authorities afforded adequate redress by reducing the applicant’s sentence in an express and measurable manner, as it is unclear what part of the reduction was due to the belated determination of the charges against him and what part, to other mitigating factors (see paragraph 19 above and Sheremetov, cited above, § 34).

In these circumstances, the applicant cannot be considered as having lost his victim status under Article 34 of the Convention.

The Court further considers that the complaint is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.

B. Period to be taken into consideration

The Government argued that for the purposes of Article 6 of the Convention the criminal proceedings commenced only on 25 February 2003 when the applicant was charged for the first time and that the signing of the declaration for the applicant’s income and possessions was not sufficient to consider that criminal proceedings had been opened against him. Thus, they contended that the proceedings had lasted for about two years and were therefore not excessive. Accordingly, they considered that the applicant’s complaints should be rejected as being manifestly ill-founded.

The applicant contended that the earliest moment when he was aware that criminal proceedings were opened against him was 22 March 1993 when he handed his gun to the police. The gun was held throughout the proceedings as physical evidence. Furthermore, on 29 September 1993 he was asked to sign a declaration for his income and possessions, which was in accordance with the obligation of the investigation authorities to take measures for securing the satisfaction of civil claims against the applicant.

The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is “charged”. According to the Court’s case-law, the word “charge” in Article 6 § 1 must be interpreted as having an autonomous meaning in the context of the Convention and not on the basis of its meaning in domestic law. Thus, whilst “charge”, for the purposes of Article 6 § 1 may in general be defined as “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, it may in some instances take the form of other measures which carry the implication of such an allegation and which likewise substantially affect the situation of the suspect (see, among many others, Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35, Eckle, cited above, § 73, and T.K. and S.E. v. Finland, no. 38581/97, § 26, 31 May 2005).

In the present case the Court observes that although the criminal proceedings against the applicant were opened on 29 March 1993, it appears that he was never officially informed about that. Nevertheless, as early as the very day of the incident, 22 March 1993, the applicant handed his gun to the police. Thereafter, it was held as physical evidence. The applicant alleged that at the same time he made a statement about the incident and admitted that he had opened fire against S.G. (see paragraph 5 above). Although the parties did not submit a copy of that statement and it is not clear whether it was made in writing, in the form of questioning or simply orally, the Court considers it only natural that the handing in of the gun was accompanied by certain explanations as to the nature of the incident, which took place in the presence of numerous witnesses. Furthermore, on 29 September 1993 the applicant was asked to sign the declaration for his income and possessions (see paragraph 6 above), which would not have been necessary had no criminal proceedings been opened.

Having regard to these facts and applying the principles set out above, the Court finds that in the present case the applicant’s situation was “substantially affected” and he could be considered as subject to a “charge” from the moment when he handed his gun to the police or at the latest from the moment he signed the declaration for his income and possessions (see, with further reference, Yankov and Manchev v. Bulgaria, nos. 27207/04 and 15614/05, §§ 17-18 and §§ 23-24, 22 October 2009). Accordingly, the beginning of the period to be taken into consideration is September 1993.

The period ended on 25 January 2005 when the Supreme Court of Cassation gave its final judgment. It thus lasted some eleven years and four months for a preliminary investigation and three levels of jurisdiction.

C. Reasonableness of the length of the 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, 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).

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, among many others, Yankov and Manchev, cited above, §§ 17-26 and Stefanov and Yurukov v. Bulgaria, no. 25382/04, § 17, 1 April 2010). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, the Court notes that the major source of delay in the present case was the lack of sufficient activity from October 1993 to February 1999 (see paragraph 8 above) and from December 1995 to December 2002 when the case was effectively dormant (see paragraph 11 above).

In view of the above and having regard to its case-law on the subject and the global length of the proceedings, 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.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

The applicant further complained of the lack of an effective remedy in respect the excessive length of the proceedings against him. He relied on Article 13 of the Convention, which 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.”

The Government did not comment.

The Court notes that the applicant’s complaint under Article 13 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). Referring to its reasoning in other cases against Bulgaria where it found that at the material time and in similar circumstances Bulgarian law did not provide for an effective remedy (see, for example, Sidjimov v. Bulgaria, no. 55057/00, § 40-43, 27 January 2005, Atanasov and Ovcharov v. Bulgaria, cited above §§ 55-61 and Yankov and Manchev v. Bulgaria, cited above, §§ 32-34), the Court sees no reason to reach a different conclusion in the present case.

Accordingly, there has been a violation of Article 13 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

The applicant also complained under Article 6 § 1 and Article 1 of Protocol No. 1 that the amount of damages which he was ordered to pay to S.G. was excessive and that as a result of the prolonged proceedings and the inflation processes in the country during this time, he had to pay interest which was five times higher than the damages themselves.

The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to 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 EUR 8,000 in respect of non-pecuniary damages and EUR 15,290 in pecuniary damages constituting the amount of the interest which he had to pay to S.G.

The Government contested these claims as excessive and ill-founded and contended that in case a violation was found, this would constitute a sufficient just satisfaction within the meaning of Article 41 of the Convention.

The Court considers that the applicant must have sustained non-pecuniary damage as a result of the violations found (see paragraphs 42 and 47 above). It also accepts that he has sustained pecuniary damage in view of the fact that due to, inter alia, the lengthy proceedings he had to pay an increased amount of damages. The Court cannot, however, speculate on the precise amounts of interest which the applicant would have had to pay had the proceedings been conducted within a reasonable time and considers it appropriate to award a global amount in respect of pecuniary and non-pecuniary damage. In view of the above, making its assessment on an equitable basis, it awards the applicant the amount of EUR 3,000.

B. Costs and expenses

The applicant also claimed EUR 2,050 in lawyer’s fees for the proceedings before the Court and EUR 149 for other costs, among which translation of the observations, postage and office materials. In support of this claim the applicant presented an agreement with his lawyer, a time sheet for thirty six and a half hours at a rate of EUR 50 per hour and postage receipts. The applicant requested that the amount awarded for costs and expenses under this head be paid directly to his lawyer.

The Government contested these claims as excessive.

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 documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 600, covering costs under all heads, payable directly into the bank account of the applicant’s legal representative.

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 complaints concerning the excessive length of the proceedings and the lack of effective remedies in that respect admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings;

3. 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 applicant, within three months the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage;

(ii) EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, payable directly into the bank account of the applicant’s legal representative;

(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 21 December 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Rait Maruste
Deputy Registrar President

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