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FIFTH
SECTION
CASE OF VALENTIN IVANOV v. BULGARIA
(Application
no. 76942/01)
JUDGMENT
STRASBOURG
26
March 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 Valentin Ivanov 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,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 3 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 76942/01) dated 21 December 2000 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 Valentin
Petrov Ivanov, who was born in 1969 and lives in Sofia
(“the applicant”).
- The
applicant was represented by Ms Y.
Vandova, a lawyer practising in Sofia.
- The
Bulgarian Government (“the Government”) were represented
by their Agents, Ms M. Kotzeva and Ms M. Dimova, of the Ministry of
Justice.
- On
5 January 2006 the
Court declared the application partly inadmissible and decided to
communicate the complaints concerning the length of the proceedings
and the lack of remedies in that respect to the Government. It also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 3).
- On
1 May 2008 the new judge elected in respect of the Republic of
Bulgaria, Ms Zdravka Kalaydjieva, began her term of office. She
subsequently withdrew from the present case and the President of the
Chamber exempted her from sitting in it.
- On
16 September 2008 a Chamber, constituted within the Fifth Section and
composed of Peer Lorenzen, President, Rait Maruste, Karel
Jungwiert, Volodymyr Butkevych, Renate Jaeger, Isabelle Berro-Lefèvre
and Mirjana Lazarova Trajkovska, judges, adopted a judgment in
the case where it found a violation of Articles 6 and 13 of the
Convention (excessive length of criminal proceedings and lack of
effective remedies), which was delivered on 9 October 2008. However,
the Chamber which adopted the judgment was not constituted in
compliance with Article 27 § 2 of the Convention because no
national judge had participated.
- On
23 October 2008 the Registry informed the parties. In a letter of 13
November 2008 the applicant requested to have the proceedings
reopened and a new judgment adopted.
- On
25 November 2008 the Court reopened the proceedings and invited the
Government to appoint an ad hoc judge.
- On
10 January 2009 the Government informed the Court that they
designated the judge elected in respect of “the former Yugoslav
Republic of Macedonia”, Mrs Mirijana Lazarova Trajkovska, to
sit as national judge in the case.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- On
the night of 21 April 1992 two persons, who worked as bodyguards for
the applicant's former father-in-law, were murdered. A preliminary
investigation was opened on an unspecified date.
- The
applicant's former father-in-law was detained and questioned on an
unspecified date. He confessed to the two homicides and implicated
the applicant as an accomplice.
- The
applicant was detained and questioned on 4 and 5 May 1992. He
confessed to having assisted his former father-in-law in planning,
committing and concealing the two murders. The applicant was then
remanded in custody and charged.
- Thereafter
the authorities conducted a preliminary investigation which involved,
inter alia, the questioning of almost two hundred and fifty
witnesses in different cities, performing a number of crime scene
experiments and commissioning the following reports: autopsy,
physical chemical, forensic, ballistic, medico-ballistic,
psychiatric, graphological, and accounting. An assessor's report was
also prepared.
- The
preliminary investigation ended in August 1994.
- On
17 March 1995 an indictment was filed against the applicant and his
co-defendant. The applicant was charged with (a) premeditated
aggravated murder; (b) acquiring and retaining significant amounts of
money obtained through fraudulent means; and (c) obtaining and
possessing a handgun and ammunition without a permit.
- On
21 June 1995 the charges against the applicant were amended, which
led to the initial indictment being withdrawn on an unspecified date
and a revised indictment being filed on 11 July 1995.
- It
is unclear on which dates and how many hearings were conducted before
the Sofia City Court.
- On
15 November 1996 the Sofia City Court remitted the case back to the
public prosecutor's office. The applicant contended, which the
Government did not expressly challenge, that this was because of
procedural violations but that no additional investigative procedures
had been conducted as a result.
- A
new indictment was filed against the applicant on 1 July 1997.
- On
an unspecified date the victims' relatives joined the proceedings as
civil claimants.
- It
is unclear when and how many hearings were conducted before the Sofia
City Court.
- In
a judgment of 11 June 1999 the Sofia City Court found the applicant
guilty of (a) premeditated aggravated murder; (b) acquiring and
retaining money obtained through fraudulent means; and (c) obtaining
and possessing a handgun and ammunition without a permit. The
applicant's co defendant was also found guilty of related
charges. The court sentenced the applicant to life imprisonment
without the possibility of parole and awarded damages to the victims'
successors.
- On
9 July 1999 the applicant appealed against the judgment of the Sofia
City Court. It is unclear on which dates and how many hearings were
conducted before the Supreme Court of Appeal.
- In
a judgment of 18 April 2000 the Supreme Court of Appeal dismissed the
applicant's appeal and upheld the lower court's judgment in its
entirety.
- On
26 April 2000 the applicant filed a cassation appeal. In a final
judgment of 3 November 2000 the Supreme Court of Cassation dismissed
the applicant's appeal, but reduced the imposed sentence to life
imprisonment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him was incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, and
that he lacked effective remedies in that respect.
The
relevant part of Article 6 § 1 of the Convention provides as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
Article
13 of the Convention provides 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 contested that argument. They argued that the case was
very complex and that it had required the collection of such a
multitude of evidence – witness statements, reports and various
other pieces of written evidence – that the length of the
proceedings could not be considered to have been excessive in this
instance. The Government further claimed that the domestic case
consisted of sixty four volumes of documents and that during the
period in question there had been a reform of the judiciary which had
also had an influence on the length. They did not present any copies
of minutes of hearings or any other documentary evidence in support
of their assertions.
A. Period to be taken into consideration
- The
Court considers that the criminal proceedings commenced in respect of
the applicant on 4 May 1992 when he was first detained and
questioned. However, the period which falls within its jurisdiction
did not begin on that date, but on 7 September 1992, when the
Convention entered into force in respect of Bulgaria. The proceedings
ended on 3 November 2000 with the final judgment of the Supreme Court
of Cassation. Thus, the length of the proceedings which falls within
the Court's competence ratione temporis is eight years, one
month and twenty eight days for a preliminary investigation and three
levels of court.
B. 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.
C. Merits
1. Complaint under Article 6 § 1 of the Convention
regarding the alleged excessive length of the criminal proceedings
- The
Court observes 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 applicant 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, most recently, Atanasov and Ovcharov v. Bulgaria,
no. 61596/00, §§ 43-61, 17 January 2008 and
Nalbantova v. Bulgaria, no. 38106/02, §§ 23-36,
27 September 2007).
- Having
examined all the material before it, the Court finds that no facts or
arguments capable of persuading it that the length of the criminal
proceedings in the present case was reasonable have been put forward.
In particular, while noting that the case was somewhat complex and
involved the collection of a multitude of evidence, it is unclear on
which dates and how many hearings were conducted before the domestic
courts, whether they were scheduled within a reasonable amount of
time and whether the said courts diligently managed the proceedings
before them so as to conform to the reasonable time requirement under
Article 6 of the Convention. In addition, on two occasions the
authorities had to file new indictments against the applicant as a
result of an amendment to the charges against him and the remittal of
the case to the public prosecutor's office, which in itself
lengthened the proceedings by at least two years.
- Thus,
having regard to the above and 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.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
2. Complaint under Article 13 in conjunction with
Article 6 § 1 of the Convention regarding the alleged lack of
effective remedies
- The
Court reiterates that Article 13 of the Convention guarantees the
availability at national level of a remedy to deal with the substance
of an “arguable complaint” under the Convention and to
grant appropriate relief (see Kudła v. Poland [GC], no.
30210/96, § 157, ECHR 2000-XI). In the present case, having
regard to its conclusion with regard to the excessive length of the
proceedings, the Court considers that the applicant had an arguable
claim of violation of article 6 § 1.
- Remedies
available to a litigant at domestic level for raising a complaint
about the length of proceedings are “effective”, within
the meaning of Article 13, if they prevent the alleged violation or
its continuation, or provide adequate redress for any violation that
has already occurred (see Kudła, cited above, §
158).
- The
Court notes that in similar cases against Bulgaria it has found that
at the relevant time there was no formal remedy under Bulgarian law
that could have prevented the alleged violation or its continuation,
or provided adequate redress for any violation that had already
occurred (see Osmanov and Yuseinov v. Bulgaria, nos. 54178/00
and 59901/00, §§ 31-42, 23 September 2004; Sidjimov v.
Bulgaria, no. 55057/00, §§ 37-43, 27 January 2005;
Atanasov and Ovcharov, cited above, §§ 55-61; and
Nalbantova, cited above, §§ 32-36). The Court sees
no reason to reach a different conclusion in the present case.
- Accordingly,
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.
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
applicant claimed 50,000 euros (EUR) as compensation for the
non pecuniary damage which arose from the violation of his
rights under the Convention.
- The
Government did not express an opinion on the matter.
- The
Court considers that the applicant has suffered non pecuniary
damage as a result of the protraction of the criminal proceedings
against him for over eight years. Having regard to its case-law in
similar cases and deciding on an equitable basis, the Court awards
EUR 600 under this head, plus any tax that may be chargeable on
that amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,500 for the legal work carried out by
his lawyer and EUR 200 for postal expenses. No supporting documents
were presented.
- The
Government did not express an opinion on the matter.
- 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 were actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes that
the applicant's claim is not supported by any evidence, such as a
legal fee agreement, timesheet or receipts. It must therefore be
rejected as unsubstantiated.
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 remainder of 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 criminal proceedings against the applicant;
- 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 the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 600 (six
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Bulgarian levs at the rate
applicable at the date of settlement;
(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 26 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen
Phillips Peer Lorenzen
Deputy
Registrar President
