BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF IVANOVI v. BULGARIA
(Application
no. 14226/04)
JUDGMENT
STRASBOURG
7 January 2010
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 Ivanovi v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Pavlina Panova, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 14226/04) 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 Margarita Todorova Ivanova and Mr
Robert Petrov Ivanov (“the applicants”), on 14 April
2004.
- The
applicants were represented by Mrs S. Margaritova-Vuchkova, a lawyer
practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs M. Dimova, of
the Ministry of Justice.
- On
16 September 2008 the
Court declared the application partly inadmissible and decided to
communicate to the Government the complaint concerning the length of
the civil proceedings. It also decided to rule on the admissibility
and merits of the remainder of the application at the same time
(Article 29 § 3).
- Judge
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case. On 30 January 2009 the Government appointed in
her stead Mrs Pavlina Panova as an ad hoc judge (Article 27 §
2 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
- The
applicants were born in 1936 and 1960 respectively and live in Sofia.
The first applicant is the second applicant’s mother.
- In
1969 the first applicant and her husband bought from the Sofia
municipality an apartment which had become State property by virtue
of the nationalisations carried out by the communist regime in
Bulgaria after 1947.
- On
22 February 1993 the heir of the pre-nationalisation owner of the
apartment brought proceedings against the first applicant and her
husband, alleging that their title to the apartment was null and void
and seeking the restoration of his own title.
- The
case was examined by the Sofia District Court, which dismissed the
action in a judgment of 17 July 1995. On an appeal by the former
owner’s heir, on 10 June 1996 the Sofia City Court reversed and
allowed the claim.
- On
an unspecified date in the summer of 1996 the first applicant and her
husband filed a petition for review (cassation). While the case was
pending before the Supreme Court of Cassation, on an unspecified
date, most likely in 1998, they also sought the reopening of the
proceedings. Under domestic law at the time, they were entitled to do
so in view of the fact that the judgment of the Sofia City Court was
formally considered to be final. The first applicant and her husband
sought reopening on the basis of newly-discovered evidence, namely an
instruction of the Ministry of Architecture and Public Works of 1968
concerning the sale of State-owned apartments.
- The
Supreme Court of Cassation held a hearing on 10 November 1998 and
dealt both with the petition for review (cassation) submitted in 1996
and the request for reopening submitted in 1998. In a judgment of
2 March 1999 it reopened the proceedings, finding that the first
applicant and her husband could not have been aware of the
newly-discovered document earlier. It quashed the judgment of the
Sofia City Court of 10 June 1996 and remitted the case. Accordingly,
it held that it would not examine the petition for review
(cassation).
- The
case was remitted to the Sofia City Court, which held its only
hearing on 21 June 2001. Although it took into account the 1968
instruction of the Ministry of Architecture and Public Works on the
basis of which the proceedings had been reopened, the domestic court
reached again the conclusion that the title of the first applicant
and her husband was null and void. In a judgment of 3 August 2001 it
allowed the claim against them.
- On
29 October 2001 the first applicant and her husband appealed against
that judgment in cassation.
- On
9 March 2002 the first applicant’s husband passed away and was
succeeded by the two applicants. The second applicant joined the
proceedings.
- The
Supreme Court of Cassation held two hearings on 18 March and 4
November 2003. In a final judgment of 9 December 2003 it upheld the
Sofia City Court’s judgment of 3 August 2001 whereby the title
of the first applicant and her husband had been found to be null and
void.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the civil 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 comment.
A. Period to be taken into consideration
- The
proceedings in the case at hand began on 22 February 1993, when the
former owner of the apartment brought an action against the first
applicant and her husband (see paragraph 7 above), and ended with the
final judgment of the Supreme Court of Cassation of 9 December 2003
(see paragraph 14 above). The Court notes that the proceedings were
pending without interruption during that period, including in the
interval 1996-98, when the case awaited examination at the review
(cassation) stage before the Supreme Court of Cassation (see
paragraphs 9-10 above). Thus, the proceedings lasted ten years, nine
months and seventeen days, during which the case was examined at
three levels of jurisdiction.
B. Admissibility
- The
Court notes that the complaint 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
- 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 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 and does not see here a reason to reach a different conclusion.
In particular, it notes that the claim examined by the domestic
courts does not appear to have been of any particular complexity and
that its examination was delayed by the reopening of the proceedings
in 1999, following the discovery of new evidence (see paragraph 10
above). Moreover, there were long periods of inactivity on the part
of the authorities. For a period of approximately two years the
Supreme Court of Cassation left unexamined the petition for review
(cassation), lodged by the first applicant and her husband in 1996
(see paragraphs 9-10 above). It remained inactive once again, for a
period of more than a year and four months (from 29 October 2001 to
18 March 2003), when the case reached it for a second time (see
paragraphs 12 and 14 above).
- The
Court thus concludes that the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement
under Article 6 § 1 of the Convention. There has accordingly
been a breach of that provision.
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 9,000 euros (EUR) and the second applicant
EUR 5,000 in respect of non-pecuniary damage. The applicants
submitted that they had suffered anguish and frustration for many
years.
- The
Government considered these claims to be excessive.
- The
Court considers that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards jointly to the two of
them EUR 3,200 under that head.
B. Costs and expenses
- The
applicants claimed 600.25 Bulgarian levs (BGN), the equivalent of EUR
310, for the costs and expenses incurred before the domestic courts.
They also claimed EUR 1,140 for the fees charged by their lawyer and
BGN 424.70, the equivalent of EUR 220, for other costs and
expenses incurred in the proceedings before the Court. In support of
these claims they presented the relevant receipts and a contract for
legal representation with their lawyer.
- The
Government considered the claim for legal fees to be 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 considers it reasonable
to award the sum of EUR 600 covering costs under all heads.
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 civil proceedings;
- Holds
(a) that
the respondent State is to pay jointly to the two applicants, 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
3,200 (three thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
600 (six hundred euros), plus any tax that may be chargeable to the
applicants, 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 applicants’
claims for just satisfaction.
Done in English, and notified in writing on 7 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
