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FIFTH
SECTION
CASE OF KOVACHEVA AND HADJIILIEVA v. BULGARIA
(Application
no. 57641/00)
JUDGMENT
STRASBOURG
29
March 2007
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 Kovacheva and Hadjiilieva v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and
Mr J.S. Phillips, Deputy Section Registrar,
Having
deliberated in private on 6 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 57641/00) 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, Mrs Lili Georgieva Kovacheva and Mrs
Petya Georgieva Hadjiilieva (“the applicants”), on
8 September 1999
- The
applicants were represented by Mr Y. Grozev, a lawyer practising in
Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs M. Karadjova,
of the Ministry of Justice.
- On
8 November 2004 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 merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- On
18 May 1990, the applicants, who are sisters, filed with the Sofia
District Court a civil action against Hydrostroy'82 Apartment
Construction Cooperative (“HACC”), claiming sums
allegedly owed to their late father under a 1988 agreement between
him and HACC.
- Under
the 1988 agreement the applicants' late father had undertaken to
manage and supervise construction works against the payment of fees.
He had worked until his death in July 1989 but had not been paid in
full. The applicants thus considered that, as his heirs, they were
entitled to 24,132 old Bulgarian levs (“BGL”) (the
equivalent of approximately 6,000 US dollars (USD) at the relevant
time) and submitted a partial claim for BGL 4,333, as is customary in
legal practice.
- Between
July and October 1990 the case could not proceed because of defective
summons. In November 1990 an adjournment was necessary as the
applicants had not clarified their claims. Between January 1991 and
June 1992 the District Court held nine hearings. The adjournments
were ordered because of defective summons, delays in the presentation
of expert opinions, withdrawal of experts and alleged dilatory
behaviour of the respondent party.
- The
hearing listed for 8 October 1992 was adjourned until 16 November
1992 as HACC had not been validly summoned.
- On
9 November 1992 the judge decided to adjourn the hearing until
19 November 1992.
- On
19 November 1992 the hearing was adjourned owing to an anonymous
telephone call warning that an explosive device had been installed in
the court's building. Such calls were made on each of the next three
dates for which the adjourned hearing was listed: 28 January,
23 March and 15 April 1993, which caused additional delay.
- On
17 June 1993 the hearing was adjourned as only one witness had
appeared. Witnesses had been called by both parties with a view to
establishing the work done on the construction site.
- The
hearings listed for 13 October and 24 November 1993 were adjourned as
witnesses and expert-witnesses had not appeared. The court fined two
of them for their failure to appear without cause.
- At
the hearing on 21 February 1994 the court replaced the expert who had
failed to appear repeatedly. The case was adjourned.
- The
hearing held on 25 April 1994 was adjourned as the court granted the
applicants' disclosure order against HACC.
- The
hearing listed for 13 June 1994 was adjourned as one of the experts
did not appear.
- On
24 October 1994 the court, having heard the experts' opinion,
accepted the applicants' request for an additional question to the
experts and adjourned the examination of the case until 5 December
1994.
- In
view of the experts' opinion who gave an estimate on the value of the
construction works and the inflation, at the hearing on 5 December
1994 the applicants sought to increase their claim. The court
considered that it was necessary to give them seven days to file such
a request in writing and adjourned the hearing until 6 March 1995.
The applicants filed a written request increasing their claim to BGL
100,000, the value of the national currency having dropped
significantly since 1990.
- On
6 May 1995 the hearing could not proceed owing to defective summons.
The final hearing was held on 17 May 1995.
- On
22 May 1995 the District Court delivered its judgment, served on
16 June 1995. It awarded the applicants BGL 15,851 plus interest
since 18 May 1990. The court noted that the inflation and
depreciation of the national currency could not be taken into account
as the relevant law did not allow the revalorisation of monetary
claims.
- On
19 June 1995 the applicants filed an appeal. The file was transmitted
to the higher court with a delay of two months.
- The
Sofia City Court held a hearing in November 1995 and dismissed the
appeal by judgment of 29 December 1995. On that date the judgment
awarding the applicants BGL 15,851 plus interest became enforceable.
As of December 1995 the amount awarded plus interest did not exceed
the equivalent of approximately USD 350.
- On
26 February 1996 the applicants filed a petition for review
(cassation) with the Supreme Court. They argued that the lower
courts' refusal to accept the revalorisation of their claim had
resulted in unjust enrichment for HACC. They considered that the
value of the construction work done should be evaluated on the basis
of current prices.
- On
21 May 1997 the applicants, noting that their petition for review
(cassation) must have been misfiled in the Supreme Court's registry,
requested a speedy examination of their case.
- In
1998 the Supreme Court was divided into a Supreme Court of Cassation
and a Supreme Administrative Court.
- A
hearing before the Supreme Court of Cassation was eventually held on
10 February 1999.
- On
8 March 1999 the Supreme Court of Cassation dismissed the petition
for review stating succinctly that it endorsed the reasoning of the
lower courts.
- As
of March 1999 the amount awarded to the applicants plus interest did
not exceed the equivalent of approximately USD 25.
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 his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government did not submit written observations on the admissibility
and merits of the case within the relevant time-limit.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
period to be taken into consideration began only on 7 September 1992,
the date of the Convention's entry into force for Bulgaria and ended
on 8 March 1999, when the Supreme Court of Cassation delivered its
final judgment in the case. It thus lasted six years and six months
for three levels of jurisdiction.
- The
Court must also have regard to the fact that as of the date of the
Convention's entry into force for Bulgaria the proceedings had
already been pending before the first instance court for two years
and almost four months (see paragraphs 4 and 6 above).
- 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 and what was at stake for the
applicants 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 Frydlender, cited above, and – for a detailed
analysis of the relevant issues in a recent case concerning Bulgaria
– Vatevi v. Bulgaria, no. 55956/00, 28 September
2006).
- Having
examined all the material submitted to it and 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. In reaching this
conclusion, the Court takes into account that the case was not
complex (see paragraphs 4 and 5 above) and that the applicants were
not responsible for any significant delay, the adjournments requested
by them having been necessary for the collection of evidence (see
paragraphs 13 and 15 above). Moreover, numerous adjournments and
other delays were imputable to the authorities: the failure to secure
the presence of experts appointed by the court and of witnesses (see
paragraphs 10, 11, 12 and 14 above), the failure to undertake
efficient measures to avoid delays caused by false security alerts
(see paragraph 9 above), defective summons (see paragraphs 7 and 17
above), inactivity periods (see paragraphs 19 and 21-24 above) and a
formalistic approach to procedural requirements (see paragraph 16
above). Finally, in the particular circumstances of rampant inflation
the courts failed to display diligence in conducting the proceedings
despite the fact that the value of the applicants' claim was bound to
diminish significantly with the passage of time (see paragraphs 5,
16, 18, 20 and 26 above).
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicants complained that the length of the proceedings complained
of had infringed their right to the peaceful enjoyment of their
possessions, as guaranteed by Article 1 of Protocol No. 1.
- The
Government did not reply within the relevant time-limit.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to its finding under Article 6 § 1 (see paragraph 35
above), the Court considers that it is not necessary to examine
whether, in this case, there has been a violation of Article 1 of
Protocol No. 1 (see Zanghì v. Italy, judgment of 19
February 1991, Series A no. 194-C, p. 47, § 23).
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
- The
applicants claimed jointly 8,000 euros (EUR) in respect of
non pecuniary damage, referring to the Court's case-law. They
stated that the anxiety suffered by them had been exacerbated by the
fact that at the relevant time inflation had run high and with the
passage of time the applicants had practically lost the value of
their claim. In the applicants' view, where a State had chosen –
as Bulgaria had done – to apply, in court judgments, low
interest rates fixed by law in disregard of the inflation, the
judicial authorities of such a State must undertake special measures
to secure the right to a trial within a reasonable time as any
failure to do so undermined the very essence of the right to a court.
- The
Government contested the amount claimed, considering it excessive.
The Government referred to other Bulgarian cases decided recently
(Kiurkchian v. Bulgaria, no. 44626/98, 24 March 2005 and
Todorov v. Bulgaria, no. 39832/98, 18 January 2005).
- The
Court considers that the applicants must have sustained non pecuniary
damage as a result of the excessive length of the civil proceedings
in their case. In determining the amount, the Court also finds it
appropriate to take into consideration the fact that with the
accumulation of delays in the proceedings the applicants must have
experienced a growing frustration, witnessing those delays
contributing to the loss of value of their claim, during a period of
high inflation not compensated by the applicable interest rates (see
paragraphs 5, 16, 18, 20 and 26 above). Ruling on an equitable basis,
the Court awards to each of the applicants the sum of EUR 1,200
plus any tax that may be chargeable (EUR 2,400 in total).
B. Costs and expenses
- The
applicants also claimed EUR 1,500 in respect of legal fees. They
submitted a legal-fees agreement between them and their
representative. The claim concerned thirty-two hours of legal work on
the case. The applicants asked that any sums awarded in respect of
costs and expenses be paid directly into their lawyer's bank account.
- The
Government asked the Court to reject the claim for costs and
expenses. They stated that the claim was not supported by details as
to the type of work done (for example, research, drafting or other
work). Also, no proof of expenses made, such as postal expenses for
example, had been submitted.
- The
Court finds that in the present case the claim for reimbursement of
expenses other than legal fees is fully unsubstantiated and must be
rejected. In so far as legal fees are concerned, the Court notes that
the applicants have submitted a copy of the legal-fees agreement they
had signed with their lawyer and have specified the number of hours
of legal work claimed. In the absence of details, such as a time
sheet, the Court cannot accept the claim as proven in full but finds
it established that the applicants have actually and necessarily
incurred certain costs in respect of legal fees for the proceedings
before it. It considers it reasonable to award the applicants jointly
the sum of EUR 500 under this head.
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
separately the complaint under Article 1 of Protocol No. 1 to the
Convention;
- Holds
(a) that
the respondent State is to pay 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 at the date
of settlement:
(i) in
respect of non pecuniary damage, EUR 1,200 (one thousand
two hundred euros) to the first applicant and EUR 1,200 (one thousand
two hundred euros) to the second applicant;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses, payable
into the bank account of the applicants' lawyer in Bulgaria;
(iii) any
tax that may be chargeable on the above amounts;
(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 29 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer Lorenzen
Deputy Registrar President
