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FIFTH
SECTION
CASE OF NALBANTOVA v. BULGARIA
(Application
no. 38106/02)
JUDGMENT
STRASBOURG
27
September 2007
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 Nalbantova v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 4 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 38106/02) 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, Mrs Todorka
Petrova Nalbantova (“the applicant”) who
was born in 1950 and lives in Plovdiv,
on 3 October 2002.
- The
applicant was represented by Mr M. Neikov and Mr Z. Zahariev, lawyers
practising in Plovdiv.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Kotzeva, of the Ministry of Justice.
- On
14 December 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings
- In
1991 part of the production facilities of the cooperative “Maritza”
were spun off and the cooperative “Rodina” (“the
cooperative”) was established. The applicant was appointed to
be its executive officer.
- On
unspecified dates, a tax audit was performed of the activities of the
cooperative for the period from June 1991 to June 1992, which
established that certain funds were missing.
- On
15 February 1993 a preliminary investigation was opened against the
applicant for embezzlement and failure to exercise supervision over
the activities of subordinates responsible for managing and
accounting of funds, which resulted in the cooperative suffering
losses in the amount of 14,587 old Bulgarian levs (approximately
918 German marks on that date).
- On
16 January, 9 April and 8 August 1994 the Plovdiv District
Prosecutor's Office sent reminders to the investigator in charge of
the case to conclude the investigation as quickly as possible because
the period for its completion had long since expired.
- On 21 May 1997 the Plovdiv Regional Prosecutor's Office
requested the case file from the investigator, which it obtained on
an unspecified date. It established that, in spite of the express
instructions to that effect, absolutely no investigative procedures
had been conducted in the case. The Plovdiv Regional Prosecutor's
Office remitted the case on 1 July 1997.
- Five
witnesses were questioned on 22 and 23 February 2000.
- On
2 March 2000 the applicant was questioned and charged with
embezzlement and failure to exercise supervision over the activities
of subordinates responsible for managing and accounting of funds,
which resulted in the cooperative suffering losses in the amount of
14,587 old Bulgarian levs (approximately 7 euros on that date). A
restriction was also imposed on her not to leave her place of
residence without the authorisation of the Prosecutor's Office.
- Another
ten witnesses were questioned between 6 March and 16 April 2000,
an accounting expert's report was commissioned on 22 May 2000 and the
applicant was further questioned on 20 and 26 June 2000.
- The
case file was then forwarded to the Plovdiv Regional Prosecutor's
Office, which on 3 November 2000 remitted the case with instructions
for further investigative procedures to be conducted.
- Another
witness was questioned on 12 December 2000 and a supplementary
accounting expert's report was commissioned on the 27th.
- On
12 April 2001 the charges against the applicant were amended and she
was again questioned.
- On
19 February 2002 the Plovdiv District Prosecutor's Office requested
the case file from the investigator, which it obtained on an
unspecified date
- On
27 March 2002 the Plovdiv Regional Prosecutor's Office again remitted
the case with further instructions for concluding the investigation.
- On
16 April 2002 the cooperative joined the criminal proceedings against
the applicant as a civil claimant.
- The
findings of the investigation were presented to the applicant on 29
April 2002, which were then forwarded to the Plovdiv Regional
Prosecutor's Office on an unspecified date.
- In
a decision of 11 May 2002 the Plovdiv Regional Prosecutor's Office
terminated the criminal proceedings against the applicant due to lack
of sufficient evidence of an offence.
B. Relevant domestic law and practice
- The
relevant part of the State and Municipalities Responsibility for
Damage Act of 1988 (the “SMRDA” : title changed in 2006)
provided that the State was liable for damage caused to private
persons by the organs of the investigation, the prosecution and the
courts for, inter alia, having unlawfully charged a private
person with an offence if the initiated criminal proceedings were
terminated because the deed was not perpetrated by the said person or
the perpetrated deed was not an offence (section 2 (2)).
- Persons
seeking redress for damage occasioned by decisions of the
investigating and prosecuting authorities or the courts in
circumstances falling within the scope of the SMRDA have no claim
under general tort law as the Act is a lex specialis and
excludes the application of the general regime (section 8 (1) of the
Act; решение
№ 1370 от 16.XII.1992 г. по гр.д.
№ 1181/92 г., IV г.о. and Тълкувателно
решение № 3 от
22.04.2005 г. по т. гр. д.
№ 3/2004 г., ОСГК на
ВКС).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 and 13 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against her was incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, and
that she lacked an effective remedy to speed them up.
The
relevant part of Article 6 § 1 of the Convention provides as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
Article
13 of the Convention provides as follows:
“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.”
A. Period to be taken into consideration
- The
Court finds that the period to be taken into consideration lasted
from 15 February 1993 to 11 May 2002, a period of nine years, two
months and twenty six days, during which time the criminal
proceedings remained at the stage of the preliminary investigation.
B. Admissibility
- The
Government submitted that the applicant failed to exhaust the
available domestic remedies because she did not initiate an action
for damages under the SMRDA. They noted that the criminal proceedings
had been terminated on 11 May 2002 due to lack of sufficient evidence
of an offence. The Government claimed, therefore, that the applicant
had a right of action under the SMRDA to seek redress from the
authorities for having been unlawfully charged with an offence. In
support of their assertion they presented a number of domestic court
judgments where the domestic courts had awarded damages on such
grounds.
- The
applicant disagreed and noted that under the SMRDA she could only
have sought damage for having been unlawfully charged with an offence
and not in respect of the length of the criminal proceedings as such.
She noted in this respect that the Government had failed to present a
single judgment where the domestic courts had awarded damages for
such an alleged violation of Article 6 § 1 of the Convention.
Accordingly, she submitted that the SMRDA did not provide a remedy
that had to be exhausted in respect of her complaint currently before
the Court.
- The
Court finds that the question of exhaustion of domestic remedies
partly relates to the merits of the applicant's complaint under
Article 13 of the Convention that she lacked an effective remedy in
respect of the length of the criminal proceedings against her.
Therefore, to avoid prejudging the latter, both questions should be
examined together. Accordingly, the Court holds that the question of
exhaustion of domestic remedies should be joined to the merits.
- The
Court further finds that the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
C. Merits
1. Complaint under Article 6 § 1 of the Convention
regarding the alleged excessive length of the criminal proceedings
- The
Government did not submit observations on the merits of the
applicant's complaint. The applicant reiterated her complaint.
- 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).
- Having
examined all the material before it and noting the Government's
failure to submit observations on the merits of the complaint, the
Court finds that no facts or arguments capable of persuading it that
the length of the criminal proceedings in the present case was
reasonable have been put forward. Thus, 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. In particular, the
criminal proceedings against the applicant lasted over nine years and
remained at the stage of the preliminary investigation for the whole
duration (see paragraph 24 above). Notably, the first investigative
procedures were conducted only on 22 February 2000 (see paragraph 10
above) – more than seven years after the preliminary
investigation had been opened on 15 February 1993 (see paragraph 7
above)
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
2. Complaint under Article 13 in conjunction with
Article 6 § 1 of the Convention regarding the alleged lack of
effective remedies
- The
Government did not submit observations on the merits of the
applicant's complaint other than in the context of their preliminary
objection (see paragraph 25 above). The applicant reiterated her
complaint.
- The
Court reiterates that Article 13 of the Convention guarantees an
effective remedy before a national authority for an alleged breach of
the requirement under Article 6 § 1 of the Convention to hear a
case within a reasonable time (see Kudła v. Poland [GC],
no. 30210/96, § 156, ECHR 2000-XI).
- The
Court notes that in similar cases against Bulgaria it has found that
at the relevant time there was no formal remedy under Bulgarian law
that could have expedited the determination of the criminal charges
against the applicant (see Osmanov and Yuseinov v. Bulgaria,
nos. 54178/00 and 59901/00, §§ 38-42, 23 September
2004; and Sidjimov v. Bulgaria, no. 55057/00, § 41,
27 January 2005). The Court sees no reason to reach a different
conclusion in the present case.
- As
to the Government's preliminary objection, the Court observes that
they submitted that the applicant failed to exhaust an available
domestic remedy under the SMRDA and referred to the existing
possibility therein to obtain redress for having been unlawfully
charged with an offence. They did not, however, indicate how that
would have remedied the complaint currently before this Court in
respect of the alleged excessive length of the criminal proceedings.
Moreover, the Government failed to present copies of domestic court
judgments where awards had been made under the SMRDA providing
redress for excessive length of criminal proceedings. In view of the
aforesaid, the Court does not find it proven by the Government that
in the circumstances of the present case an action under the SMRDA
would have provided for an enforceable right to compensation which
could be considered an effective, sufficient and accessible remedy in
respect of the applicant's complaint in respect of the alleged
excessive length of the criminal proceedings (see, likewise, Osmanov
and Yuseinov, cited above, §41; and Sidjimov, cited
above, § 42).
- Accordingly,
there has been a violation of Article 13 of the Convention in that
the applicant had no domestic remedy whereby he could enforce his
right to a “hearing within a reasonable time” as
guaranteed by Article 6 § 1 of the Convention. It follows that
the Government's preliminary objection (see paragraphs 25-27 above)
must be dismissed.
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
applicant claimed 5,000 euros (EUR) as compensation for the
non pecuniary damage arising out of the violation of her rights
under the Convention.
- The
Government did not express an opinion on the matter.
- The
Court considers that the applicant has undoubtedly suffered
non pecuniary damage as a result of the protraction of the
criminal proceedings against her for over nine years. Having regard
to its case-law in similar cases and deciding on an equitable basis,
the Court awards EUR 4,600
under this head, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the legal work by her lawyers on
the proceedings before the Court and EUR 100 for unspecified
expenses. No supporting documents were presented.
- The
Government did not express an opinion on the matter.
- The
Court notes that the claim is not supported by any evidence, such as
a legal fees agreement or timesheet. It must therefore be rejected.
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
- Decides to join to the merits the question of
the exhaustion of domestic remedies;
- 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 criminal proceedings against the applicant;
- Holds that there has been a violation of Article
13, in conjunction with Article 6 § 1 of the Convention, on
account of the lack of an effective remedy for the excessive length
of the criminal proceedings and accordingly dismisses the
Government's preliminary objection based on non-exhaustion of
domestic remedies;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,600
(four thousand six hundred euros) in respect of non-pecuniary damage,
plus any tax that may be chargeable;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
