FOURTH SECTION

CASE OF PETROVA v. BULGARIA

(Application no. 19532/05)

JUDGMENT

STRASBOURG

24 April 2012

This judgment is final but it may be subject to editorial revision.
 
In the case of Petrova 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 3 April 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 19532/05) 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, Ms Lozinka Yordanova Petrova (“the applicant”), on 10 May 2005.
2.  The applicant was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
3.  On 7 July 2009 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
A.  The applicant’s civil proceedings
4.  The applicant was born in 1948 and lives in Dobrich.
5.  On 21 January 1996 the applicant brought an action against a construction company, claiming that it had damaged her property by building a construction next to it. In February 2002 she modified her compensation claim.
6.  In the period between 21 January 1996 and 13 January 2003 the Dobrich Regional Court conducted at least nineteen hearings. Between September 1999 and February 2001 the proceedings were stayed, awaiting the outcome of administrative proceedings in respect of the status of the construction. Two hearings were adjourned at the applicant’s request, one for correction of certain flaws in her modified claim, one due to improper summoning, and five due to the absence of the experts or a failure to submit their reports. Two hearings were rescheduled upon the expert’s request. Several hearings were postponed because the parties posed additional questions to the experts or requested gathering of further evidence.
7.  The applicant’s claim was partly granted by the Regional Court on 13 January 2003, and upon appeal, by the Varna Court of Appeal on 22 May 2003. The courts ordered the defendant company to repair the damage caused to her property or to pay her BGN 11,960 (approximately EUR 5,980) plus interest and court fees.
8.  In a final judgment of 18 November 2004 the Supreme Court of Cassation upheld the Court of Appeal’s judgment.
B.  Injunction and enforcement proceedings
9.  While the proceedings were pending before the Regional Court, the applicant requested that property of the defendant company be attached as a security of her claim. On 18 January 2000 the Regional Court imposed an injunction forbidding the defendant company to perform transactions with two of its real estates and one lorry. On 19 May 2000 the Varna Administrative Court annulled the injunction in respect of one of the real estates, reasoning that the other injunctions guaranteed the applicant’s claim to a sufficient extent.
10.  After the judgment of the Court of Appeal of 22 May 2003 the applicant initiated enforcement proceedings. At the defendant company’s request, on 8 October 2003 the Supreme Court of Cassation stayed the enforcement proceedings pending the outcome of the review on points of law, because the defendant company had deposited the amount of BGN 11,960, equal to the damages awarded to the applicant.
11.  After the final judgment of the Supreme Court of Cassation, on 29 February and again on 28 March 2005 the applicant requested from the enforcement judge the resuming of the enforcement proceedings, the transfer of the deposited amount to her bank account and the scheduling of other actions for gathering the awarded interest. However, she was informed that the deposited guarantee had been returned to the defendant company on 16 December 2004.
12.  On 28 July 2005 the applicant and the defendant company signed an out-of-court agreement, under which she received the amount of BGN 22,000 (about EUR 11,000) which, according to her submissions, was less than the entire amount of the debt. On 17 September 2005 the enforcement proceedings were discontinued at the applicant’s request.
13.  In 2007 the defendant company requested the lifting of the injunction in respect of the second real estate, stating that it had settled its debt. The applicant did not comment. On 28 November 2007 the Regional Court granted the request, reasoning that the injunction was no longer necessary. As the parties did not appeal against the decision, it became final on 7 December 2007.
II.  RELEVANT DOMESTIC LAW
14.  The relevant domestic law concerning the complaint about delays under Article 217a of the 1952 Code of Civil Procedure is set out in the Court’s judgment in the case of Finger v. Bulgaria, no. 37346/05, § 43, 10 May 2011.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION
15.  The applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the proceedings had been incompatible with the “reasonable time” requirement and that she had not had any effective domestic remedies in that respect.
Article 6 § 1 reads, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”.
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.”
16.  The period to be taken into consideration began on 21 January 1996 and ended on 18 November 2004. The proceedings thus lasted eight years and ten months less three days for three levels of jurisdiction.
A.  Admissibility
17.  The Government stated that the applicant had failed to exhaust the available domestic remedies because she had not made a complaint about delays.
18.  The Court considers that the question of exhaustion of domestic remedies is closely linked with the substance of the applicant’s complaint under Article 13 of the Convention. It should therefore be joined to the merits.
19.  The Court considers furthermore that the present complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and not inadmissible on any other grounds. They must therefore be declared admissible.
B.  Merits
20.  The Government stated that the length of the proceedings had not been unreasonable in view of the complexity of the case. They further maintained that the applicant had been responsible for some of the delays because she had requested postponement of hearings and had modified her claim. Furthermore, the parties had posed numerous additional questions to the experts, which had further delayed the proceedings.
21.  The applicant disagreed.
22.  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).
23.  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 Finger, cited above, §§ 102-103, and Kiurkchian v. Bulgaria, no. 44626/98, §§ 61 and 72, 24 March 2005).
24.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, the case does not appear to have been particularly complex, although it involved several expert reports. Furthermore, although the applicant was responsible for several adjournments (see paragraph 6 above), the Court considers that the bulk of the delay occurred as a result of the manner in which the Regional Court handled the case. In particular, that court held no fewer than nineteen hearings, acceding to numerous belated evidentiary requests of the parties. Thus, it appointed several experts and adjourned the hearings on a number of occasions in order to enable those experts to answer last minute additional questions or in order to give the parties an opportunity to submit further evidence, which, in turn, caused additional delays due to absence of experts or their failure to submit their reports on time, or irregular summoning. As a result, the proceedings before that court lasted almost seven years (see paragraphs 5-7 above). It is true that the proceedings were stayed for more than a year pending the outcome of another set of proceedings. However, the Court notes that much of the delays could have been avoided if the Regional Court had, from the outset, tried to identify the controversial points and gather evidence in relation to them in a more efficient manner (see Finger, cited above, § 102, with further references). Therefore, although no extraordinary delays occurred in the subsequent proceedings before the Court of Appeal and the Supreme Court of Cassation, the Court considers that the overall length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
25.  As regards the existence of effective remedies capable of preventing the violation of Article 6 § 1 or its continuation, or providing adequate redress, the Court notes that the proceedings had already lasted three and a half years at the time when the complaint about delays was introduced (see paragraphs 5 and 14 above). Furthermore, it has already held that a complaint about delays is not an effective remedy in cases where the major source of delay is not the courts’ failure to schedule hearings at reasonable intervals, but rather the fact that they did not organise the examination of the case properly, dealt with it over a considerable number of hearings, and failed to gather evidence in a more efficient manner (see Finger, cited above, § 88). The Court considers that in the instant case the reasons for unjustified delays disclose no material difference from those examined in Finger (see paragraph 24 above). Therefore the Court is not persuaded that a “complaint about delays” would have been an effective remedy. It is not disputed furthermore that Bulgarian law does not provide any other remedies, whether acceleratory or compensatory, in respect of the excessive length of civil proceedings (Finger, cited above, § 89). The Government’s objection that the applicant failed to exhaust domestic remedies should therefore be dismissed. Accordingly, the Court considers that the applicant did not have effective remedies under domestic law in respect of the excessive length of the proceedings.
26.  It follows that there has been a violation of Articles 6 § 1 and 13 of the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
27.  The applicant also complained, relying on Articles 6 § 1 and 13 and Article 1 of Protocol No. 1 to the Convention, that due to the allegedly unlawful actions of the authorities in the course of the injunction and the enforcement proceedings, notably the decision of the Supreme Court of Cassation to return the guarantee to the defendant company (see paragraph 11 above), she had been deprived of the full amount of the damages and interest awarded to her in the domestic proceedings and that she had not had effective remedies in that respect.
28.  The Government stated that the authorities’ decisions had been in compliance with the national law.
29.  The Court notes that even after the release of the guarantee of BGN 11,960 a real estate of the debtor remained attached in favour of the applicant (see paragraphs 11-13 above). However, she preferred to sign an out-of-court agreement, receiving a much larger amount than the one covered by that guarantee and waiving any further claims to the debtor (see paragraph 12 above). She obtained payment of that amount shortly after the determination of her claim and expressly requested the discontinuance of the enforcement proceedings. Therefore, on the facts of the case, the Court is not persuaded that the return of the guarantee prevented or delayed the enforcement of the judgment in her favour.
30.  It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
31.  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
1.  Pecuniary damage
32.  The applicant claimed 10,685.07 euros (EUR) in respect of pecuniary damage, representing the difference between the compensation awarded by the domestic courts and the real damage sustained by her as a result of the unlawful construction.
33.  The Government contested the claim as unsubstantiated.
34.  The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim.
2.  Non-pecuniary damage
35.  The applicant claimed EUR 16,000 in respect of non-pecuniary damage stemming from the unreasonable length of the proceedings and the lack of effective remedies in that respect.
36.  The Government contested this claim as excessive.
37.  The Court considers that the applicant must have sustained non‑pecuniary damage as a result of the breaches of her rights found in the case. Taking into account all the circumstances of the case, and deciding on an equitable basis, it awards her EUR 1,000 under this head.
B.  Costs and expenses
38.  The applicant sought reimbursement of EUR 2,170 incurred in lawyers’ fees for thirty one hours of work on the proceedings before the Court, billed at EUR 70 per hour. She further claimed EUR 314.28 for other expenses, such as translation, postage and office expenses. She submitted a fees agreement between her and her legal representatives, a time sheet, and a contract for translation services, the latter signed on behalf of Lawyers Association Ekimdzhiev, Boncheva and Chernicherska. She requested that EUR 358 of any award made under this head be paid directly to her (since she had already paid that sum to her lawyers), the award for translation expenses – to Lawyers Association Ekimdzhiev, Boncheva and Chernicherska, and the remainder to her lawyers, Mr M. Ekimdzhiev and Ms K. Boncheva.
39.  The Government contested these claims.
40.  According to the Court’s case-law, costs and expenses claimed under Article 41 must have been actually and necessarily incurred and reasonable as to quantum. In the present case, having regard to the information in its possession and the above criteria, and noting that part of the application was declared inadmissible, the Court considers it reasonable to award the applicant the sum of EUR 700 in respect of lawyers’ fees, plus any tax that may be chargeable to her. EUR 358 of that amount is to be paid to the applicant herself, and the remainder to her legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva.
41.  As for the claim for other expenses, the Court observes that the applicant has provided supporting documents only for the sum paid for translation services (EUR 126.82). It therefore awards her that amount, plus any tax that may be chargeable to her. It is to be paid to Lawyers Association Ekimdzhiev, Boncheva and Chernicherska.
C.  Default interest
42.  The Court considers it appropriate that the default interest rate 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
1.  Declares the complaints concerning the excessive length of the proceedings and the alleged lack of effective remedies in that respect admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 13 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 826.82 (eight hundred and twenty-six euros and eighty-two cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, EUR 358 of which is to be paid to the applicant herself, EUR 126.82 to Lawyers Association Ekimdzhiev, Boncheva and Chernicherska, and the remainder to be paid to the applicant’s legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva;
(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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 24 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Päivi Hirvelä
	Deputy Registrar	President