FOURTH SECTION. CASE OF IVANOV v. BULGARIA. (Application no /05) JUDGMENT STRASBOURG. 5 July 2012

Transcription

1 FOURTH SECTION CASE OF IVANOV v. BULGARIA (Application no /05) JUDGMENT STRASBOURG 5 July 2012 This judgment is final but it may be subject to editorial revision.

2

3 IVANOV v. BULGARIA JUDGMENT 1 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 1. The case originated in an application (no /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 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. 3. 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. 4. 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 5. The applicant was born in 1962 and lives in Varna.

4 2 IVANOV v. BULGARIA JUDGMENT A. The criminal proceedings against the applicant and his pre-trial detention 6. On 22 June 1994 the applicant was charged with robbery, arrested and remanded in custody. He was released on bail on 4 March 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 B. The proceedings for damages against the State 8. 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. 9. 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. 10. 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. 11. 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. 12. 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

5 IVANOV v. BULGARIA JUDGMENT 3 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 ). C. The enforcement of the judgment of 14 July 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. 14. 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. 15. 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. 16. 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. 17. 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. 18. In October 2006 the applicant received payment for the damages awarded to him by the final judgment of 14 July In July 2007 he received the sum awarded to him in respect of costs. II. RELEVANT DOMESTIC LAW AND PRACTICE 19. 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...

6 4 IVANOV v. BULGARIA JUDGMENT 20. 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 г. по т. гр. д. 3/2004 г., ОСГК на ВКС). 21. According to the domestic courts practice, compensation for nonpecuniary 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 г., Пленум на ВС), when determining non-pecuniary damages, the courts must give reasons on each relevant factor taken into consideration. 22. 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 23. 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. 24. The Government stated that there had not been any unwarranted delays attributable to the authorities until the adoption of the final judgment in They did not comment on the length of the enforcement phase. 25. 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 /97, 197,

7 IVANOV v. BULGARIA JUDGMENT 5 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 /05, 55, 10 December 2009). 26. 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 27. The Court notes that the above complaint is not manifestly illfounded 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 28. 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 /96, 43, ECHR 2000-VII). 29. 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 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. 30. 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 31. 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

8 6 IVANOV v. BULGARIA JUDGMENT release had not been examined speedily and he did not have an enforceable right to compensation for his detention in violation of the Convention. 32. 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 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. 33. The applicant considered that the six-month period had stared running in July 2005, after the final judgment in the proceedings for damages. 34. 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 /97, 19 September 2000, I.I. v. Bulgaria (dec.), no /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 /98, 11 May 2000 and Andrei Georgiev v. Bulgaria, no /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 /01, 6 November 2008). 35. 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 /98, 80, ECHR 2004-VIII (extracts) and the cases cited in the preceding paragraph). 36. 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

9 IVANOV v. BULGARIA JUDGMENT 7 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 /99, 89, 12 October 2006). 37. 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). 38. 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 /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 39. 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. 40. 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. 41. 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.

10 8 IVANOV v. BULGARIA JUDGMENT IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 42. 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. 43. 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 /99, 27, 24 April 2003; Giniewski v. France, no /00, 58-60, ECHR 2006-I; and Pelevin v. Ukraine, no /02, 37, 20 May 2010). 44. 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 Deputy Registrar Päivi Hirvelä President