EU & Human Rights

GEORGIEV AND OTHERS v. BULGARIA - 4551/05

[2011] ECHR 358European 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. 4551/05) 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 the Bulgarian nationals Mr Georgi Ivanov Georgiev, Mr Lyubcho Petrov Tsochev, and Mr Kiril Kostadinov Studenkov (“the applicants”), on 21 January 2005.

The applicants were represented by Ms S. Stefanova and Mr A. Atanasov, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms 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

THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1961, 1950 and 1971 respectively. The first applicant lives in Lisets and the second and the third applicants live in Plovdiv.

On 29 August 1995 the applicants were questioned by the police and gave written statements admitting their involvement in a theft of car spare parts and boxes of beer from a warehouse. On the next day the investigator opened criminal proceedings against them. A witness was questioned on 14 September 1995, after which the case remained dormant until February 2002, when seven other witnesses were questioned.

Theft charges were brought against the applicants on 17 July, 26 June and 14 October 2002 respectively. In the period from March to October 2003 the investigator questioned the applicants and several witnesses. In December 2003 the public prosecutor filed an indictment against the applicants.

On 25 May and 2 December 2004 the Plovdiv District Court held two hearings and on the latter date approved a plea bargain agreement between the applicants and the public prosecutor and discontinued the proceedings. The first and the second applicants were punished by six months’ imprisonment, and the third applicant by three months’ imprisonment.

THE LAW

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

The applicants 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 ...”

The Government argued that for the purposes of Article 6 of the Convention the criminal proceedings against the applicants commenced on 17 July, 26 June and 14 October 2002 respectively, when the applicants were charged. Thus, the Government contended that the proceedings had lasted for about two years and a half. Accordingly, they considered that the applicants’ complaints should be rejected as being manifestly ill-founded.

A. Period to be taken into consideration

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 v. Germany, 15 July 1982, § 73, Series A no. 51; and Corigliano v. Italy, 10 December 1982, § 34, Series A no. 57).

In the present case the applicants were questioned in connection with a theft and confessed to taking part in its commission on 29 August 1995. Criminal proceedings were opened against them on the following day (see paragraph 5 above).

Having regard to these facts and applying the principles set out above, the Court finds that in the present case the applicants’ situation was “substantially affected” and they could be considered as subject to a “charge” from the moment when they were questioned by the police and confessed to the theft (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 29 August 1995.

The period ended on 2 December 2004, when the applicants concluded a plea bargain agreement. It thus lasted nine years three months and three days for a preliminary investigation and one level of jurisdiction.

B. Admissibility

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

C. Merits

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, Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, § 30, 23 September 2004 and Yankov and Manchev v. Bulgaira, cited above §§ 17-26). 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 September 1995 to February 2002 when the case was effectively dormant (see paragraph 5 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 applicants further complained of the lack of an effective remedy in respect the excessive length of the proceedings against them. They 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 this complaint is linked to the one examined above and must therefore likewise 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). It notes that it has frequently found violations of Article 13 of the Convention in cases raising issues similar to the one in the present case (see, with further references, Myashev v. Bulgaria, no. 43428/02, §§ 22 and 23, 8 January 2009, and Yankov and Manchev, cited above, §§ 32-34). It sees no reason to reach a different conclusion in the present case.

There has therefore been a violation of Article 13 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

The applicants claimed a total of 39,000 euros (EUR), EUR 13,000 per person, in respect of non-pecuniary damage.

The Government contested these claims.

The Court observes that the applicants must have sustained non-pecuniary damage. Ruling on an equitable basis and taking into account all the circumstances of the case, it awards EUR 2,000 to each applicant under this head.

B. Costs and expenses

The applicants also claimed EUR 3,150 in lawyer’s fees for the proceedings before the Court, EUR 45 for postage and EUR 30 for office materials. In support of this claim they presented an agreement with their lawyers and a time sheet for forty five hours at the hourly rate of EUR 70. The applicants requested that the amount awarded for costs and expenses under this head be paid directly to their lawyers, Mrs S. Stefanova and Mr A. Atanasov.

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 applicants’ legal representatives.

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 on account of the excessive length of the proceedings;

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 proceedings;

Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

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

(ii) to Mr Tsochev, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non pecuniary damage;

(iii) to Mr Studenkov, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non pecuniary damage;

(iv) jointly to the applicants, EUR 600 (six hundred euros), plus any tax that may be chargeable, in respect of costs and expenses, to be paid into the bank account of their legal representatives, Ms S. Stefanova and Mr A. Atanasov;

(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 24 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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