FOURTH SECTION
CASE OF
ALEKSANDROVI v. BULGARIA
(Application no.
42983/04)
JUDGMENT
STRASBOURG
22 January 2013
This judgment is final but it may
be subject to editorial revision.
In the case of Aleksandrovi v. Bulgaria,
The European Court of Human
Rights (Fourth Section), sitting as a Committee composed of:
Päivi Hirvelä, President,
Ledi Bianku,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 18 December 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 42983/04) 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
Russian nationals, Ms Larisa Aleksandrova and Ms Yana Aleksandrova on 27
November 2004.
The Bulgarian Government (“the Government”) were
represented by their Agents, first Ms N. Nikolova, and then Ms M. Kotseva and
Ms A. Panova, of the Ministry of Justice.
On 24 January 2011 the complaint
concerning the length of the criminal proceedings against the first applicant was
communicated to the Government and the parties were invited to reach a friendly
settlement. The parties refused the friendly-settlement proposal.
In a letter of 6 June 2011, the Government submitted
observations on the admissibility and merits of the communicated complaint, in
which they stated that they considered that the application was inadmissible and
unsubstantiated as a whole. The observations were sent to the applicants. In a
letter of 2 August 2012 the applicants submitted claims for just satisfaction,
which were sent to the Government. Finally, in a letter of 29 September
2011, the Government submitted comments on the applicants’ claims for just
satisfaction, which were forwarded to the applicants.
5. The Government of
the Russian Federation, having been informed by the Registrar of the right to
intervene (Article 36 § 1 of the Convention), did not
avail themselves of this right.
6. On 1 February 2011
the Court changed the composition of its Sections (Rule 25 § 1 of the Rules of Court) and the
above application was assigned to the newly composed Fourth Section.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1970 and 1990
respectively and live in Krasnodar, the Russian Federation.
A. The
criminal proceedings against the first applicant
In 1997 the applicants began residing in Bulgaria. The first applicant was a shareholder in several companies including Druzhba OOD
and Sil-Prim OOD. She was one of the managers of Druzba OOD.
On 24 May 2000 the first applicant was taken to
the police station in Blagoevgrad in connection with an attempted theft of a
conveyer belt line, belonging to Druzhba OOD. At about 10 p.m. on the same day
criminal proceedings for theft, an offence under Article 195 of the Criminal
Code (CC) were opened against the first applicant and she was questioned in
that connection. She was released some time after midnight.
Allegedly, the first applicant requested to make
a telephone call to the second applicant, who was 10 years old at the time, but
her request was not granted.
On 12 December 2001 the first applicant’s case
was brought before the Blagoevgrad District Court.
On an unspecified date after 2002 the judge
rapporteur in the case died and a new judge was appointed.
On an unspecified date in 2003 the new judge
resigned from her post and had to be replaced.
For the period between March 2002 and May 2005
at least sixteen hearings were held, six of which were adjourned - two upon the
first applicant’s request, one due to the absence of the expert, one due to
improper summoning and two because of absences of members of the court panel.
At the hearing of 27 September 2002 the District
Court rejected the civil claim filed by one of the shareholders in Druzhba OOD,
finding that he had not personally suffered damages as a result of the first
applicant’s actions. It further appointed a special representative of Druzhba
OOD to protect its interests in the joined civil claim against the first
applicant.
At the hearing of 26 October 2004 the charges
against the first applicant were amended. According to the new charges the
first applicant had deliberately entered into a contract for the sale of the
conveyer belt line which had been disadvantageous to Druzhba OOD, an offence
under Article 220 of the CC.
By a judgment of 12 May 2005 the Blagoevgrad
District Court found the first applicant guilty of an offence under Article 220
of the CC, sentenced her to one year’s imprisonment suspended for a period of
three years and ordered her to pay Druzhba OOD damages.
On appeal, by a judgment of 6 December 2005 the Blagoevgrad Regional Court quashed the lower court’s judgment and remitted it for fresh
examination because of procedural breaches in connection with the charges under
Article 220 of the CC.
On 1 July 2006 the first applicant was presented
with an indictment for an offence under Article 195 of the CC - theft of a
conveyer belt line.
At the hearing of 18 December 2006 the
Blagoevgrad District Court rejected the first applicant’s objection against the
appointment of a special representative of Druzhba OOD and quashed the
amendment of the charges against the first applicant of 26 October 2004. The proceedings
continued in respect of the charges under Article 195 of the CC.
On an unspecified date in May 2007 the
applicants moved to Russia.
The number of hearings held after that date is
not clear.
In January 2009 the first applicant was summoned
in her address in Russia for a hearing before the Blagoevgrad District Court
but she requested the proceedings to continue in her absence.
In her letter to the Court of 20 January 2010
the first applicant alleged that she had no information about the course of the
proceedings.
In a judgment of 15 June 2009 the
Blagoevgrad District Court acquitted the first applicant. The prosecution
appealed.
In a judgment of 11 January 2010 the Blagoevgrad Regional Court quashed the lower court’s judgment and remitted the case to the
prosecuting authorities with instruction that a new indictment should be prepared.
In a decision of 21 September 2010, which
apparently became final, the Blagoevgrad District Prosecutor’s Office terminated
the proceedings as the relevant statutory limitation period for prosecution had expired.
Throughout the proceedings the first applicant
sent numerous complaints to the courts alleging partiality and unsubstantial
procedural errors, which were often examined by two or three levels of
jurisdiction. On several occasions the judges examining the case recused
themselves because of these complaints.
B. The
criminal proceedings against the police officers
On 8 August 2000 the first applicant filed a
complaint about the treatment of the officers who detained her on 24 May 2000,
alleging, inter alia, that she was denied the possibility to call
the second applicant.
In a final order of 9 July 2004 a prosecutor
from the Chief Public Prosecutor’s Office refused to open criminal proceedings,
finding that the officers involved in the detention had acted in accordance
with the legislation. There is no mentioning of the denied possibility to make
a telephone call to the second applicant.
C. The
prohibition to leave Bulgaria
On 11 September 2000 a prosecutor from the
district public prosecutor’s office imposed on the first applicant a
prohibition to leave Bulgaria because of the criminal proceedings against her.
On 2 July 2003 the District Court authorised the
first applicant to leave Bulgaria for the period between 3 July and 31 August
2003.
On 12 May 2005 the Blagoevgrad District Court
lifted the prohibition.
D. The applicants’ residence permits and
the 2003-2006 proceedings in that connection
On 4 December 2001 the first applicant requested
the prolongation of her long-term residence permit, which was refused on 27
March 2002 on account of a provision in the Aliens Act, stating that residence
permits could be refused to persons who had committed certain criminal offences.
The applicant appealed. The outcome of the appeal is unknown.
On 27 February 2003 she was issued a temporary
residence identity card.
In July 2003 the two applicants visited Russia. Upon their return to Bulgaria on 28 August 2003 they were detained at the airport’s
transition zone as it was established that the second applicant had no residence
permit or a visa. She had to pay a fee for the issuing of the visa. Her
requests for exemption from this fee were rejected.
On 7 October 2003 the first applicant initiated
proceedings against the Blagoevgrad district police department (BDPD) under the
State and Municipalities Responsibility for Damage Act (SMRDA). She sought
damages stemming from certain omissions in connection to the issuing of her
residence permits in the period between 2001 and 2003 and from the impediments
she and the second applicant experienced upon their return to Bulgaria in August 2003.
The case was examined by three levels of
jurisdiction.
By a final judgment of 13 May 2006 the Supreme Court
of Cassation dismissed the claim, finding that although there had been certain
delays in examining the first applicant’s requests for residence permits, these
delays had not been excessive and she was partly responsible for them as she
had failed to appear before the competent authorities when summoned and to pay
the due fees. It further ordered the first applicant to pay BGN 318,
approximately EUR 150 in court fees in accordance with the SMRDA.
E. The civil proceedings in connection to
the conveyer belt line
In 2005 and 2006 the first applicant, in her
capacity of a shareholder in “Sil-Prim” OOD, which owned the conveyor belt line
mentioned above, brought proceedings for damages against the BDPD under general
tort law. She alleged that following the events of 24 May 2000 the police
department had not taken appropriate measures to safeguard the belt line.
Her request for court fee exemption was rejected
on 22 August 2005 as she had not submitted any evidence for her income. It is
not clear whether she eventually paid the court fees or was exempted.
By judgments of 21 March and 13 November 2006
the Blagoevgrad Regional Court and the Sofia Court of Appeal dismissed the
claim, finding that the first applicant had failed to prove that the conveyer
belt line had been destroyed as a result of omissions of the officers form the
BDPD.
It appears that on 22 November 2007 the Supreme
Court of Cassation upheld these judgments.
F. The proceedings under the Consumers
Protection Act
On 29 October 2006 the first applicant initiated
proceedings under the Consumers Protection Act, seeking damages from the
inappropriate behaviour of a shop assistant in a shoe shop. She also requested
to be exempted from the court fees but on 12 January 2007 her request was
rejected by the Blagoevgrad Regional Court for failure to prove that she lacked
sufficient means to pay the court fee. She appealed before the Supreme Court of
Cassation. The course and the outcome of the proceedings thereafter are
unknown.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The first applicant complained that the length
of the criminal proceedings against her 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 ... any criminal charge against him
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal...”
A. Admissibility
The Government stated that the first applicant had
not made a complaint about the length of the proceedings to the Supreme
Judicial Council Inspectorate or to the Ministry of Justice Inspectorate which
amounted to a failure to exhaust the available domestic remedies.
The Court has found in a number of judgments
that apart from the remedies under Article 239a of the
1974 Code of Criminal Procedure or Articles 368 and 369 of the 2005 Code of
Criminal Procedure there are no acceleratory remedies in respect of the length
of criminal proceedings in Bulgaria (see Dimitrov and Hamanov v.
Bulgaria, nos. 48059/06 and 2708/09, §§ 92-95, 10 May 2011, with further references). The Government did not
point out this specific remedy. In any event, it would have been inapplicable because
it can only speed up the proceedings at the preliminary investigation stage,
whereas at the time of introduction of the remedy in 2003, the criminal
proceedings against the first applicant were already at the trial stage (see
paragraph 11 above).
. The
Court has also many times noted the lack of compensatory remedies (see Dimitrov
and Hamanov, cited above, §§
96-98, with further references).
Against this background, the Court finds that
the Government’s preliminary objection about non-exhaustion of domestic
remedies must be dismissed.
The Court notes that the complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The period to be taken into consideration began
on 24 May 2000 and ended on 21 September 2010. It thus lasted ten years and
four months for one level of jurisdiction.
The government stated that the length of the
proceedings had not been unreasonable in view of the complexity of the case and
the conduct of the first applicant.
The first applicant disagreed.
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 (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 Dimitrov and Hamanov, cited above, § 110 and Annex
1).
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. The case was not particularly complex and although the first
applicant was responsible for some of the delay, the proceedings before the
Blagoevgrad District Court alone took more than three years (see paragraphs 11-17
above). Furthermore, the bulk of the delay was caused by the repeated remittal
of the case because of procedural breaches in connection with the charges
against the first applicant (see paragraphs 18-26 above). Having regard 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.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
The first applicant also complained in
connection to her arrest on 24 May 2000, the fairness and outcome of the
criminal proceedings with the joined civil claim, the amendment of the charges
against her, the refusal to grant her long-term residence permission,
contending that it violated the presumption of innocence, the length, fairness
and outcome of the 2003-2006 proceedings for damages and the amount of
the court fee in these proceedings, the prohibition to leave Bulgaria, the
alleged failure of the authorities to properly guard the conveyor belt line and
the fairness and outcome of the proceedings in that connection, the fairness of
the proceedings under the Consumers Protection Act and the fact that she was
not exempted from paying the court fee in these proceedings and the alleged
partiality of the investigators and the judges in all the proceedings in which
she was involved. She relied on Articles 1, 2, 3, 5, 6 §§ 1 and 3 (a), (b)
and (d), 8, 13, 14, 17 and 18 of the Convention, Article 1 of Protocol No.
1, Articles 3 and 4 of Protocol No. 7 and Article 2 of Protocol No. 4.
The two applicants further complained under
Article 8 that upon the first applicant’s arrest on 24 May 2000 she had not
been allowed to call the second applicant, as a result of which the second
applicant suffered anguish and distress.
The Court has examined the remainder of the
applicants’ complaints as submitted by them. 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 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
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 a global sum of
3,552,000 euros (EUR) in respect of non-pecuniary damage, out of which she claimed
19,000 euros (EUR) in respect of non-pecuniary damage stemming from the
unreasonable length of the criminal proceedings against her.
The Government contested the claim.
The Court considers that the first applicant
must have sustained non-pecuniary damage. Taking into account all the
circumstances of the case, and deciding on an equitable basis, it awards EUR 2,500
to the first applicant under this head.
B. Costs and expenses
The first applicant also claimed 40,000 euros
(EUR) for the time and efforts that she had invested in the national
proceedings and in the Strasbourg proceedings and for expenses. She did not present
any documents in this respect.
. The
Government submitted that the claim should be dismissed as unfounded and unsubstantiated.
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 (see, for example, Iatridis
v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
In the instant case, the Court observes that the
applicant has not substantiated her claim with any relevant supporting
documents establishing that she was under an obligation to pay legal costs and
administrative expenses, or that they have actually been paid. Accordingly, the
Court does not award any sum under this head (see Cumpǎnǎ and
Mazǎre v. Romania [GC], no. 33348/96, §§ 133-134, ECHR 2004-XI).
C. Default interest
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. Dismisses the Government’s preliminary
objections of failure to exhaust domestic remedies;
2. Declares the complaint concerning the
excessive length of the proceedings admissible and the remainder of the
application inadmissible;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention;
4. Holds
(a) that the respondent
State is to pay the first applicant, within three months, EUR 2,500 (two
thousand five 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 on 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 amount 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 first applicant’s claim for
just satisfaction.
Done in English, and notified in writing on 22 January 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Päivi
Hirvelä
Deputy Registrar President
