FOURTH SECTION
CASE OF
IVANOV v. BULGARIA
(Application no.
41140/05)
JUDGMENT
STRASBOURG
5 July 2012
This judgment is final but it may
be subject to editorial revision.
In the case of Ivanov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
Päivi Hirvelä, President,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy
Section Registrar,
Having deliberated in private on 14 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
41140/05) 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 a Bulgarian national, Mr Dimitar Gospodinov
Ivanov (“the applicant”), on 31 October 2005.
The applicant was represented by Mr D. Mitkov and
Mrs S. Vasileva, lawyers practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs M. Dimova, of the Ministry of
Justice.
The applicant raised complaints under Articles 5
and 6 of the Convention in relation to the criminal proceedings against him,
his pre-trial detention and the civil proceedings for damages against the
State, which he instituted after his acquittal.
On 16 September 2009 the President of the Fifth
Section decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the application at the
same time (Article 29 § 1). The case was subsequently assigned to the
Fourth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1962 and lives in Varna.
A. The criminal proceedings against the applicant and
his pre-trial detention
On 22 June 1994 the applicant was charged with
robbery, arrested and remanded in custody. He was released on bail on 4 March
1997.
On 1 June 1998 the Sofia City Court acquitted the
applicant. This acquittal was upheld in a judgement of 4 April 2001 of the
Sofia Court of Appeal, which was not appealed against and became final on 28
May 2001.
B. The proceedings for damages against the State
On 28 June 2001 the applicant brought an action
against the Chief Public Prosecutor’s Office and the Sofia Investigation
Service under section 2(2) of the State Responsibility for Damage Act (“the
SMRDA”, the Act’s title having been amended later). He sought initially 15,000
Bulgarian levs (BGN) in respect of non-pecuniary damage and later increased his
claim to BGN 25,000 (the equivalent of approximately EUR 12,780). The applicant
also claimed pecuniary damage, interest and reimbursement of his legal costs.
The applicant’s main claim was that the criminal
proceedings against him and his detention had become unlawful because he had
been acquitted. He also made submission concerning the consequences for his
reputation, alleged pecuniary losses and the manner in which interest on the
compensation award was to be calculated.
On 29 July 2002 the Sofia City Court awarded the
applicant BGN 15,000 in non-pecuniary damages and BGN 49 for pecuniary
loss. In determining the former amount, the court had regard to “... the nature
of the criminal charges, the period of his pre-trial detention, his age ... and
the level of suffering he [had] endured during the criminal proceedings against
him.” In a separate decision of 12 September 2002 the City Court dismissed the
claim for costs.
On appeal, on 27 June 2003 the Sofia Court of
Appeal granted the applicant’s claim for non-pecuniary damages in full,
awarding him BGN 25,000. He was also awarded BGN 840 in legal costs. In a
separate decision of 1 September 2003 the Court of Appeal made an additional
award of BGN 640 in respect of costs. The applicant and the prosecutor filed
cassation appeals.
In a final judgment of 14 July 2005 the Supreme
Court of Cassation reduced the non-pecuniary damages to BGN 3,000 (the
equivalent of approximately EUR 1,535) and the costs award to BGN 200
(approximately EUR 96). It stated that, having regard to the period spent by
the applicant in detention and all other factors, BGN 5,000 would normally be
seen as adequate compensation. However, this amount had to be reduced further
as the applicant had been partly responsible for the damage he had suffered
since he had confessed to having committed the offence at the early stage of
the investigation. The court fees due by the applicant were fixed at BGN 455
(the equivalent of approximately EUR 232.50).
C. The enforcement of the judgment of 14 July 2005
On 28 July 2003 the Sofia Court of Appeal issued
the applicant with a writ of execution for the amount of BGN 25,000, plus
interest, although the Court of Appeal’s judgment had not become final.
On 5 August 2005, shortly after the entry into
force of the final judgment of 14 July 2005, the applicant requested from the relevant
court to be issued with a new writ of execution, in compliance with the final
judgment in his case. His request referred specifically to the amounts awarded
to him in respect of damage and costs. The applicant enclosed the writ of
execution of 28 July 2003, which did not reflect the final award.
As he did not receive a reply, the applicant
reiterated his request several times. In connection with this matter, the case
file was transmitted back and forth between the domestic courts a number of
times.
On an unspecified date at the end of 2005 the
Sofia Court of Appeal, informed the applicant that the writ of execution of 28
July 2003 remained valid and that the applicant should present it for payment
together with the final judgment, which modified the award.
In April 2006 the writ of 28 July 2003 was
returned to the applicant to enable him to seek payment. He also received a
separate writ of execution, issued in January 2006, in respect of the legal
costs award.
In October 2006 the applicant received payment
for the damages awarded to him by the final judgment of 14 July 2005. In July
2007 he received the sum awarded to him in respect of costs.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Section 2 of the State Responsibility for Damage
Act, renamed in July 2006 the State and Municipalities Responsibility for
Damage Act, as in force at the material time, read, in so far as relevant:
“The State shall be liable for damage caused to [private
persons] by the organs of ... the investigation, the prosecution, the courts
... for unlawful:
1. pre‑trial detention, including when imposed
as a preventive measure, when it has been set aside for lack of lawful grounds;
2. criminal charges, if the person concerned has
been acquitted, or if the criminal proceedings have been discontinued because
the act has not been committed by the person concerned or did not constitute a
criminal offence ...”
Section 2(2) of the SMRDA guarantees, in the
event of acquittal or certain cases of discontinuation of criminal proceedings,
a right to compensation for the fact that the individual was subjected to
prosecution and was in pre-trial detention. The view taken in judicial practice
appears to be that, in the event of acquittal, pre-trial detention is to be
considered “unlawful” retrospectively, for purposes of compensation under the
Act, the question whether or not the domestic provisions on remand in custody or
Article 5 of the Convention have been complied being irrelevant (see Kolevi
v. Bulgaria (dec.), no. 1108/02, 4 December 2007; see also реш.
№ 978/2001 г. от 10 юли 2001
г. по гр.д. № 1036/2001 г.
and Тълкувателно
решение № 3 от
22.04.2005 г. по т. гр. д. №
3/2004 г., ОСГК на
ВКС).
According to the domestic courts’ practice,
compensation for non-pecuniary damage under section 2 of the SMRDA is to be
determined in compliance with the principle of equity, taking into account a
number of different factors. Such factors are the nature of the charges, the
length of the criminal proceedings, their impact on the individual, including
distress and adverse consequences on personal life and reputation, and the length
of the pre-trial detention, if any. In accordance with an interpretative
decision of the Supreme Court (Пoстановление
№ 4 от 23.12.1968 г.,
Пленум на ВС), when
determining non-pecuniary damages, the courts must give reasons on each
relevant factor taken into consideration.
Under section 5(2) of the SMRDA the compensation
award may be reduced in cases where the plaintiff, through his conduct, may
have contributed to the damage he suffered.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS FOR DAMAGES
The applicant complained that the length of the
proceedings for damages against the State had been incompatible with the
“reasonable time” requirement, laid down in Article 6 § 1 of the Convention.
The Government stated that there had not been
any unwarranted delays attributable to the authorities until the adoption of
the final judgment in 2005. They did not comment on the length of the
enforcement phase.
The Court reiterates the enforcement of a final
judgment should not be dissociated from the judicial proceedings, which must be
examined in their entirety (see, Scordino
v. Italy (no. 1) [GC], no. 36813/97, § 197, Estima
Jorge v. Portugal, 21 April 1998, § 35, Reports
of Judgments and Decisions 1998-II, Sika
v. Slovakia, no. 2132/02, §§ 24-27, 13 June 2006, and Ivan
Panchenko v. Ukraine, no. 10911/05, §
55, 10 December 2009).
It notes that the consideration of the applicant’s
case by the domestic courts lasted from 28 June 2001 to 14 July 2005, when the Supreme
Court of Cassation gave its final judgment (see paragraphs 8-12 above). However,
the period to be taken into consideration did not end before an unspecified
date in July 2007 when the final judgment was enforced. That period was
therefore approximately six years, for three levels of jurisdiction.
A. Admissibility
The Court notes that the above 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.
B. 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 applicant 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 applicant was not
responsible for any significant delays. As to the conduct of the authorities, it
notes that there was significant delay in the enforcement of the final
judgment. There was a certain lack of clarity in respect of the writ of
execution which was resolved by the courts approximately eight months after the
applicant’s request (see paragraphs 13-17 above). Furthermore, it took the
state authorities more than one year until the final judgment was fully
executed (see paragraph 18 above). The respondent Government have not provided
any justification for these delays.
In view of the above, 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 VIOLATIONS OF ARTICLE 5 OF THE
CONVENTION
The applicant complained under Article 5 §§ 1,
3, 4 and 5 that upon his arrest in 1994 he had not been brought promptly before
a judge, his pre trial detention had been unlawful and excessively lengthy, his
requests for release had not been examined speedily and he did not have an
enforceable right to compensation for his detention in violation of the
Convention.
The Government stated that the above complaints
had been submitted outside the six-month time-limit under Article 35 § 1 of the
Convention as the applicant had been released on 4 March 1997 and had lodged
his application with the Court on 31 October 2005. In their view, the
proceedings under the SMRDA did not affect the running of the six-month period.
The Government submitted, alternatively, that the applicant had received
compensation and could no longer claim to be the victim of the alleged
violations.
The applicant considered that the six-month
period had stared running in July 2005, after the final judgment in the
proceedings for damages.
The Court notes that compensation under section
2(2) of the SMRDA is awarded automatically following acquittal or
discontinuance of the criminal proceedings, regardless of the lawfulness or
justification of any pre-trial detention. The proceedings under this provision
do not determine whether the detention was unjustified or excessively lengthy (see
Nikolov v. Bulgaria (dec.), no. 38884/97, 19 September 2000, I.I.
v. Bulgaria (dec.), no. 44082/98, 25 March 2004). The same is true with
regard to alleged violations of the right under Article 5 § 3 to bring the accused
person promptly before a judge and the right under Article 5 § 4 to have
appeals against detention examined speedily (see Hamanov v. Bulgaria
(dec.), no. 44062/98, 11 May 2000 and Andrei Georgiev v. Bulgaria,
no. 61507/00, § 80, 26 July 2007) and as regards alleged violations of
Article 5 § 1, except in very specific cases where there was a prior domestic
decision containing a clear finding that the detention had been unlawful under
domestic law (see Kolevi v. Bulgaria (dec.), no. 1108/02, 4 December 2007 and Gavril Yosifov v. Bulgaria,
no. 74012/01, 6 November 2008).
In view of the domestic law and practice
described above, in cases against Bulgaria, the Court has not required
applicants claiming violations of Article 5 to bring an action under the SMRDA for
purposes of the exhaustion of domestic remedies and has repeatedly found
violations of Article 5 § 5 on account of the fact that Bulgarian law does not
provide for an enforceable right to compensation for violations of Article 5 (see,
among many others, Hamanov v. Bulgaria, §§ 93-97, cited above, and Vachev
v. Bulgaria, no. 42987/98, § 80, ECHR 2004‑VIII (extracts) and
the cases cited in the preceding paragraph).
It is true that the domestic courts would
normally take into consideration the length of the pre-trial detention as one
among many other relevant factors for the determination of the sum to be
awarded. However, the relevant legal ground for compensation remains the
acquittal or the discontinuation of the proceedings and no legally binding
decision is taken as to the justification of the pre-trial detention. In an isolated
case the domestic courts mentioned that the length of the pre-trial detention
had been excessive and in violation of Article 5 § 3, but the Court considered
that this had no bearing on its assessment of whether there exist in Bulgaria
effective domestic remedies in respect of allegedly excessively lengthy
detentions pending trial (see Staykov v. Bulgaria, no. 49438/99, § 89,
12 October 2006).
In the present case, the applicant has not substantiated
any arguments capable of persuading the Court that he could reasonably expect
to obtain, in the proceedings he instituted under the SMRDA, a ruling on the alleged
violations of his rights under Article 5 and compensation on that account. Indeed,
in these proceedings he had only alleged that the criminal proceedings against
him and his detention had been unlawful because he had been innocent (see
paragraph 9 above).
In view of the above, the Court considers that
in the circumstances of the present case the proceedings under the SMRDA were
without relevance for the running of the six-month time limit under Article 35
§ 1 of the Convention. Therefore, in the absence of an effective remedy at the
national level, the applicant should have introduced his application with the
Court, in so far as it concerns his Article 5 complaints, within six months of
his release (see Ječius v. Lithuania,
no. 34578/97, § 44, ECHR 2000-IX). As the application was lodged several years
later, the Court finds that the above complaints must be rejected as time
barred in accordance with Article 35 § 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant submitted other complaints under
Article 6 § 1 of the Convention concerning the length of the criminal
proceedings against him, the outcome of the proceedings for damages, the court
fees in these proceedings and alleged arbitrariness and lack of clarity of the
law tainting their fairness.
The Court has examined the remainder of the
first applicant’s complaints as submitted by him. However, in the light of all
the material in its possession, and in so far as the matters complained of are
within its competence, the Court finds that they do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention or its
Protocols.
It follows that the remainder of the application
must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
IV. 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.”
According to its case-law the Court does not
make any award by way of just satisfaction where quantified claims and the
relevant documentation have not been submitted within the time-limit fixed for
that purpose under Rule 60 § 2 of the
Rules of Court (see Willekens v. Belgium, no. 50859/99, § 27, 24 April 2003; Giniewski
v. France, no. 64016/00, §§ 58-60, ECHR 2006‑I; and
Pelevin v. Ukraine, no. 24402/02, § 37,
20 May 2010).
In the present case the applicant submitted his
claim for just satisfaction outside the time allowed. In these
circumstances, there is no room for making an award under Article 41.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares admissible the complaints concerning
the length of the proceedings for damages and declares inadmissible the
remainder of the application;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the excessive length of the
proceedings for damages against the State;
3. Dismisses the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 5 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Päivi Hirvelä
Deputy Registrar President
