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FIFTH
SECTION
CASE OF MARINOVA AND RADEVA v. BULGARIA
(Application
no. 20568/02)
JUDGMENT
STRASBOURG
2 July
2009
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 Marinova and Radeva v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate
Jaeger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Pavlina Panova, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 9 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 20568/02) 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 Rayna Vasileva Marinova and Mrs Maria
Stefanova Radeva (“the applicants”), on 23 May 2002.
- The
applicants were represented by Mr N. Runevski, a lawyer practising in
Sofia. The Bulgarian Government (“the
Government”) were represented by their Agents, Mrs M. Dimova
and Mrs S. Atanasova of the Ministry of Justice.
- On
25 September 2007 the
Court declared the application partly inadmissible and decided to
communicate to the Government the complaints concerning the length of
the civil proceedings and the lack of remedies in that respect. It
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
- Mrs Kalaydjieva, the judge
elected in respect of Bulgaria, withdrew from sitting in the case
(Rule 28). The Government subsequently appointed Mrs Pavlina Panova
to sit as an ad hoc judge (Article 27 § 2
of the Convention and Rule 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1925 and 1946 respectively and live in Sofia.
- In
1959 Mr M., the husband of the first applicant and father of the
second applicant, purchased from the Sofia municipality a four-room
flat which had been nationalised in 1948.
- On
22 February 1993 the heirs of the pre-nationalisation owner of the
flat brought proceedings under section 7 of the 1992 Law on the
Restitution of Ownership of Nationalised Real Property (the
Restitution Law) seeking the annulment of the applicants' title.
Initially, however, their action was directed against the first
applicant and Mr M. Finding that this did not represent a valid claim
against the second applicant, and in view of the fact that no such
claim had been brought within the time-limit indicated in the
Restitution Law, in a final decision of 22 September 1997 the courts
terminated the proceedings against the second applicant.
- The
Sofia District Court held its first hearing on 23 February 1994. The
first applicant had been duly summoned on 29 November 1993 but did
not attend.
- The
Sofia District Court held seventeen more hearings, eight of which,
held between 15 February 1995 and 7 October 1996, were adjourned
because the first applicant had not been found at her address to be
summoned. For the first time a representative of the first applicant
attended a hearing on 12 March 1997.
- In a judgment of 11 November 1997 the Sofia District
Court dismissed the plaintiffs' action. On 19 January 1999 the Sofia
City Court upheld the lower court's judgment.
- The
plaintiffs appealed. In a judgment of 19 October 1999 the Supreme
Court of Cassation reversed that decision and referred the case back
to the Sofia City Court, holding that the latter had applied the law
wrongly.
- On
30 June 2000 the Sofia City Court gave a judgment finding against the
first applicant and ordering her to surrender possession of the flat
to the plaintiffs.
- The
first applicant appealed to the Supreme Court of Cassation. In a
final judgment of 27 November 2001 the latter court upheld the Sofia
City Court's judgment.
II. RELEVANT DOMESTIC LAW
- Until
July 1999 Bulgarian law did not provide any remedies capable of
accelerating civil proceedings.
- A “complaint about delays” was created in
July 1999, by virtue of the new Article 217a of the Code of Civil
Procedure 1952, in force until 2007. In such a complaint a litigant
aggrieved by the slow examination of the case could request the
president of the higher court to issue mandatory instructions for
faster processing of the case.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13
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
applicants also complained under Article 13 of the Convention that
they did not have an effective domestic remedy for the length of the
proceedings. Article 13 reads:
“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.”
A. Admissibility
1. Complaints of the second applicant
- The
Court observes that in respect of the second applicant the
proceedings were terminated on 22 September 1997 whereas the present
application was lodged on 23 May 2002. It follows that the second
applicant's complaints have been introduced out of time and must be
rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
2. Complaints of the first applicant
- In
respect of this applicant, the Court notes that the complaints 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 and must therefore be declared admissible.
B. Period to be taken into consideration
- The
Government argued that the period to be taken into consideration only
started on 12 March 1997, when a representative of the first
applicant attended a hearing before the Sofia District Court.
- The
Court does not accept this argument. It recalls that the period to be
taken into consideration starts to run from the moment an action was
instituted (see Erkner and Hofauer v. Austria, 23 April 1987,
§ 64, Series A no. 117). The Court sees no reason to depart from
that rule in the instant case. Moreover, it notes that on 29 November
1993 the first applicant was summoned for the Sofia District Court's
first hearing (see paragraph 8 above) and was therefore aware that an
action had been lodged against her.
- The
Court thus finds that the period to be taken into consideration began
on 22 February 1993, when the plaintiffs lodged an action against the
first applicant. It ended on 27 November 2001 when the Supreme Court
of Cassation gave a final judgment in the case. It thus lasted eight
years, nine months and six days for three levels of jurisdiction.
C. Merits
1. Alleged violation of Article 6 § 1 of the
Convention
- The
Government contended that the length of the proceedings had been
reasonable. They also argued that the first applicant had been
partially responsible for the delay incurred as several hearings
between 15 February 1995 and 7 October 1996 had been adjourned
because of her failure to notify the Sofia District Court of a change
of her address.
- The
first applicant contested these arguments.
- 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 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 observes that the civil proceedings in the case at hand
continued for more than eight years and nine months.
- The
Court accepts the Government's argument that the first applicant was
responsible for part of the delay incurred before the Sofia District
Court in so far as between 15 February 1995 and 7 October 1996 –
a period of approximately one year and eight months – she
apparently failed to notify the domestic court of a change of her
address (see paragraph 9 above). However, the applicant's behaviour
cannot account for all the delays in the proceedings. Concerning the
conduct of the authorities, the Court notes, for instance, that a
delay of more than two years (from 19 October 1999 to 27
November 2001) occurred when the Supreme Court of Cassation remitted
the case because the Sofia City Court had failed to correctly apply
the law (see paragraph 11 above).
- Taking
into account the fact that the case does not appear to have been
complex, and also having regard to its case-law on the subject, the
Court is of the view 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.
2. Alleged violation of Article 13 of the Convention
- The Government argued that the first applicant could
have used the “complaint about delays” under Article 217a
of the Code of Civil Procedure of 1952 (see paragraph 15 above).
- The
first applicant replied that such a complaint did not represent an
effective remedy within the meaning of Article 13 of the Convention.
- 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).
31. The Court notes that in similar cases against Bulgaria it
has found that a “complaint about delays” under Article
217a of the Code of Civil Procedure is not an effective remedy. In
addition, it does not appear that Bulgarian law provides any other
means of redress whereby a litigant could obtain the speeding up of
civil proceedings. Finally, as regards compensatory remedies, the
Court has also not found it established that in Bulgarian law there
exists the possibility to obtain compensation or other redress for
excessively lengthy proceedings (see, for example, Rachevi
v. Bulgaria, no. 47877/99, §§ 96-104, 23
September 2004). 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 in that
the first applicant had no domestic remedy whereby she could enforce
her right to a “hearing within a reasonable time” as
guaranteed by Article 6 § 1 of the Convention.
II. 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
first applicant claimed 120,000 euros (EUR) in respect of pecuniary
and non-pecuniary damage.
- The
Government considered this claim to be excessive.
- The
Court considers that the first applicant must have sustained
non pecuniary damage. Ruling on an equitable basis and taking
into account all the circumstances of the case, including the overall
length of the proceedings and the fact that the first applicant was
responsible for a delay of one year and eight months, it awards her
EUR 800 under that head, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
- The
first applicant claimed EUR 400 for costs and expenses incurred
before the domestic courts. She submitted the relevant invoices.
- For
the proceedings before the Court, she claimed
EUR 800 for legal work by her lawyer and EUR 128 for
translation and postage. In support of this
claim she presented a time sheet and the relevant invoices.
- The
Government considered these claims 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 are reasonable as to quantum.
- In
the present case, regard being had to the information in its
possession and the above criteria, the
Court finds it reasonable to award EUR 400.
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 of the first applicant
admissible and those of the second applicant inadmissible;
- Holds that in respect of the first applicant
there has been a violation of Article 6 § 1 of the Convention on
account of the excessive length of the civil proceedings;
3. Holds that in respect of the first applicant
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 civil
proceedings;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with 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) EUR
800 (eight hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
400 (four hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 first applicant's
claim for just satisfaction.
Done in English, and notified in writing on 2 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
