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FIFTH
SECTION
CASE OF
TONCHEV v. BULGARIA
(Application
no. 18527/02)
JUDGMENT
STRASBOURG
19
November 2009
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 Tonchev v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Renate
Jaeger,
Karel Jungwiert,
Mark Villiger,
Isabelle
Berro Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and
Stephen Phillips,
Deputy
Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 18527/02)
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, Mr Krastiu Dimitrov Tonchev (“the applicant”),
on 27 March 2002.
- The
applicant was represented by Mr D. Tonchev, a lawyer practising in
Vratsa. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms M. Kotseva, of the Ministry of
Justice.
- The
applicant alleged, in particular, that the authorities had failed to
prosecute diligently an individual who had assaulted his son.
- By
a decision of 14 October 2008, the Court declared the application
partly admissible.
- Neither
the applicant nor the Government filed further written observations
(Rule 59 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1941 and lives in Vratsa.
A. The incident of 25 March 1993
- At about 2.30 p.m. on 25 March 1993 the applicant’s
five year old son was playing in the street and started
spraying a neighbour, Mr M.T., with water from a bottle. According to
the findings of the national courts which examined the case later,
M.T. asked him to stop. The applicant’s son did not heed his
request. M.T. then took a five centimetre long piece of
tile and threw it at the applicant’s son, hitting him in the
forehead and the left eyelid. The injuries suffered by the boy were a
longitudinal wound on the left eyebrow measuring 11 by 3 millimetres
and a bruised lower left eyelid measuring 5 by 3 millimetres. The
applicant alleged that his son had in addition suffered psychological
trauma.
B. The proceedings against M.T.
- On 3 August 1993 the applicant, acting on behalf of his
son, lodged with the Vratsa District Court (Врачански
районен
съд) a criminal complaint and a claim
for damages against M.T. He alleged that M.T. had wilfully inflicted
actual minor bodily harm on his son and requested that he be
sentenced to two years’ imprisonment and be ordered to pay
100,000 old Bulgarian levs (BGL), plus interest, as compensation for
his son’s pain and suffering.
- At the first hearing, which took place on 15 November
1993, the court invited the parties to settle. M.T. expressed his
regret and said that he was willing to reach a settlement with the
applicant, but the latter refused. The court adjourned the case to
allow the parties to call witnesses.
- At the next hearing, held on 18 April 1994, the court
again unsuccessfully invited the parties to settle. It heard M.T. and
three witnesses and adjourned the case to allow the applicant to call
two more witnesses.
- Four hearings, listed for 19 October 1994, 22
February, 14 June and 18 October 1995, failed to take place: the
first because witnesses called by the applicant did not appear; the
second because the applicant, who was taking care of his sick son in
hospital, and M.T.’s lawyer were absent; the third because the
applicant was ill and could not attend; and the fourth because
neither the applicant, who was ill, nor M.T. appeared. At the fourth
hearing the court noted that M.T. had not given good reasons for his
absence and ordered that he be compelled to attend the next hearing.
- At the next hearing, on 11 December 1995, the court
again invited the parties to settle, without success. It heard one
witness and asked an expert to give an opinion on the exact extent of
the injuries suffered by the applicant’s son. The applicant
increased the claim for damages to BGL 200,000.
- At a hearing held on 13 March 1996, in spite of the
absence of the applicant’s lawyer, the court heard the expert
and admitted his report in evidence. The applicant requested a
neurological expert report on his son’s condition. The court
refused his request and heard the parties’ closing arguments.
In a judgment of the same day it found M.T. guilty of wilfully
inflicting actual minor bodily harm on the applicant’s son,
contrary to Article 130 § 1 of the Criminal Code (see paragraph
25 below). It sentenced him to one year’s imprisonment,
suspended. It awarded the applicant’s son BGL 8,000, plus
interest.
- The applicant appealed to the Vratsa Regional Court
(Врачански
окръжен съд),
arguing that there had been material breaches of the rules of
procedure, that the court had erred in assessing the facts and that
the sentence was too lenient.
- A hearing listed for 18 April 1996 was adjourned as
M.T.’s lawyer was busy with another case and could not attend.
- At a hearing held on 20 June 1996 the court
unsuccessfully invited the parties to settle. It heard their closing
arguments and reserved judgment.
- On 29 July 1996 the Vratsa Regional Court quashed the
lower court’s judgment and remitted the case. It held that by
proceeding on 13 March 1996 in the absence of the applicant’s
lawyer the lower court had committed a material breach of the rules
of procedure. The court went on to say that the failure to question
two witnesses requested by the applicant and to appoint a
neurological expert had led to an insufficient evidentiary basis.
- On remittal, the Vratsa District Court held a hearing
on 24 June 1997. It heard M.T. The applicant reiterated his request
for a neurological expert to be appointed and increased the claim for
damages to BGL 6,300,000. The court ordered a medical report, to be
drawn up by three experts, and adjourned the case.
- At the next hearing, which took place on 23 April
1998, the court heard a medical expert and one witness, and admitted
the expert’s report in evidence. The applicant requested a
further expert report, to be drawn up by three experts. The court
granted his request.
- Two hearings, listed for 11 March and 11 May 1999,
failed to take place, the first because the applicant was ill and the
second because M.T.’s lawyer was attending a colleague’s
funeral.
- A hearing was held on 14 July 1999. M.T. asked the
court to adjourn the case, as his lawyer was absent. The court
refused his request, saying that the case had already been adjourned
many times and that the request was an abuse of process. It heard the
parties’ closing arguments and, in a judgment of the same date,
found M.T. guilty of inflicting minor bodily harm on the applicant’s
son. It sentenced him to six months’ imprisonment and ordered
him to pay the applicant’s son 10 new Bulgarian levs (BGN),
plus interest.
- Both the applicant and M.T. appealed to the Vratsa
Regional Court.
- At a hearing held on 23 November 2000 M.T.’s
lawyer asked the court to discontinue the proceedings, as the
applicable limitation period had expired. In a judgment of the same
date the Vratsa Regional Court once again quashed the lower court’s
judgment and remitted the case. It held that by proceeding in the
absence of M.T.’s lawyer at the last hearing the lower court
had infringed his defence rights. It had also failed to duly admit
for examination the applicant’s increased claim for damages.
The court went on to say that it could not rule on the merits of the
case, as the limitation period had expired in September 2000.
However, it could not discontinue the proceedings on this ground,
such matters falling within the exclusive jurisdiction of the
first instance court. It therefore instructed that court to
discontinue them.
- In a decision of 27 December 2000 the Vratsa District
Court discontinued the proceedings, noting that the limitation period
had expired. The alleged offence had been committed on 25 March 1993,
that is, more than seven and a half years earlier, which barred any
further prosecution. Upon an appeal by the applicant, the Vratsa
Regional Court upheld the decision discontinuing the proceedings in a
judgment of 4 April 2001. A subsequent appeal by the applicant was
dismissed by the Supreme Court of Cassation (Върховен
касационен
съд) on 12 October 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Minor bodily harm
- Article 130 § 1 of the 1968 Criminal Code makes
it an offence wilfully to inflict actual minor bodily harm, defined
as an injury to health other than those specifically set out in
Articles 128 § 2 and 129 § 2 of the Code, which deal with
grievous and intermediate bodily harm. The maximum penalty on
conviction is two years’ imprisonment or compulsory labour.
Aggravated actual minor bodily harm, which includes cases where it
has been inflicted on a child under fourteen years of age, carries a
maximum penalty of three years’ imprisonment (Article 131 §
1 (4) of the Code).
- Minor bodily harm is privately prosecutable (Article
161 of the Code). The prosecution is thus brought directly by the
victim of the offence and not by the public prosecutor (Article 240 §
1 (2) of the 1974 Code of Criminal Procedure, superseded by Article
247 § 1 (2) of the 2005 Code of Criminal Procedure). In
exceptional cases, where the aggrieved parties cannot ensure the
defence of their interests because of frailty or dependency on the
alleged perpetrator, the public prosecutor may bring a prosecution in
their stead or intervene in the proceedings (Articles 45 46a of
the 1974 Code and Articles 48 50 of the 2005 Code).
B. Limitation periods for the prosecution of criminal
offences
- The law and practice concerning limitation periods for
the prosecution of criminal offences have been described in
paragraphs 27 and 28 of the Court’s judgment in the recent case
of Dinchev v. Bulgaria
(no. 23057/03, 22 January 2009).
C. Tort claims in civil proceedings and in the context
of criminal proceedings
- The victim of a tort which is also a privately
prosecutable criminal offence has the choice of bringing a claim
against the alleged tortfeasor in the civil courts, or of making a
civil party claim in the context of criminal proceedings
(Article 60 § 1 of the 1974 Code of Criminal Procedure,
superseded by Article 84 § 1 of the 2005 Code of Criminal
Procedure).
- Under Article 64 § 2 of the 1974 Code (superseded
by Article 88 § 2 of the 2005 Code), the examination of a
civil party claim should not lead to an adjournment of the
criminal case. If the proceedings are discontinued the claim is not
examined, but may be brought separately in a civil court (Article 64
§ 3 of the 1974 Code, superseded by Article 88 § 3 of the
2005 Code). The criminal court rules on the claim only when giving
judgment on the merits of the criminal case, even if in that judgment
it finds that the accused’s criminal liability has been
extinguished (Article 305 of the 1974 Code, superseded by Article 307
of the 2005 Code; and реш. №
225 от 20 септември
2004 г. по н.д. № 849/2003, ВКС,
II н.о.).
THE LAW
I. THE APPLICANT’S STANDING
- The
first issue to be determined is whether the applicant was entitled to
bring an application in his own name for an alleged violation of the
rights of his son.
- On
this point the Court observes that the object and purpose of the
Convention as an instrument for the protection of individual human
beings requires that its provisions, both procedural and substantive,
be interpreted and applied so as to render its safeguards both
practical and effective. In this context, the position of children
under Article 34 qualifies for careful consideration, as they must
generally rely on other persons to present their claims and represent
their interests, and may not be of an age or capacity to authorise
any steps to be taken on their behalf in any real sense. A
restrictive or technical approach in this area is therefore to be
avoided and the key consideration in such cases is that any serious
issues concerning respect for a child’s rights should be
examined (see C. and D. v. the United Kingdom (dec.), no.
34407/02, 31 August 2004, citing Scozzari and Giunta v. Italy
[GC], nos. 39221/98 and 41963/98, ECHR 2000 VIII, and P., C.
and S. v. the United Kingdom (dec.), 56547/00, 11 December 2001).
- In
the instant case the Court observes that at the time of the events in
issue, as well as at the time when the application was lodged, the
applicant’s son was still a minor (see paragraphs 1 and 7
above). Therefore, in the light of the above principles, it can be
concluded that the applicant was entitled to apply to the Court to
protect his interests. Moreover, it was the applicant who brought the
domestic proceedings on his son’s behalf and was representing
him in them (see paragraph 8 above, mutatis mutandis, Velikova
v. Bulgaria (dec.), no. 41488/98, ECHR 1999 V).
- The
Court is therefore satisfied that the applicant was entitled to bring
the application on behalf of his son.
II. ALLEGED VIOLATIONS OF ARTICLES 3 AND 8 OF THE
CONVENTION
- The
applicant complained that the criminal proceedings against M.T. had
dragged on for too long and had failed to provide effective
protection in respect of the ill-treatment to which the latter had
subjected his son. In his view, they had exceeded a reasonable time.
- The
respondent Government submitted that the complaint should not be
examined under Article 3 as the applicant had not expressly relied on
this provision. In the alternative, they submitted that the treatment
to which his son had been subjected – a single, not very
violent, blow with a small piece of tile – had not been
sufficiently serious to fall within the ambit of this provision. In
any event, the case against M.T. had been examined three times by the
first-instance court, three times by the second-instance court and
once by the Supreme Court of Cassation. The proceedings had taken a
long time and had, as a result, been discontinued because of the
numerous adjournments requested by the applicant and M.T. and the
failure of witnesses to appear. Even though no criminal sanction had
been imposed on M.T., it was still open to the applicant to seek
damages from him in a separate tort claim.
- The
applicant replied that the Court was free to give to the facts any
legal characterisation which it saw fit. In his view, the minimum
level of severity required by Article 3 had clearly been exceeded.
The legal characterisation of the offence as the infliction of minor
bodily harm was not paramount on this point. The psychological
repercussions of the attack on a young child’s mind were very
serious: they had caused his son feelings of terror. The exact extent
of the psychological trauma was unknown, as the national courts had
declined to commission an expert report on that aspect. Moreover, the
tile’s impact point had been very close to his son’s eye
and could have blinded him.
- The
Court considers that the applicant’s complaint falls to be
examined under Articles 3 and 8 of the Convention, which provide, in
so far as relevant:
Article 3 (prohibition of torture)
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 8 (right to respect for private ... life)
“1. Everyone has the right to respect
for his private ... life...”
- The
first question for decision is the applicability of these provisions.
On this point the Court observes that ill-treatment must attain a
minimum level of severity if it is to fall within the scope of
Article 3 of the Convention. The assessment of this level depends on
all the circumstances of the case. Factors such as the nature and
context of the treatment, the manner and method of its execution, its
duration, its physical and mental effects and, in some instances, the
sex, age and state of health of the victim must all be taken into
account (see, among many other authorities, Costello Roberts
v. the United Kingdom, 25 March 1993, § 30, Series A
no. 247 C).
- In
the instant case the Court observes that the assault upon the
applicant’s son, while wilful, was not very violent: it
consisted in the one off throwing of a small piece of tile. The
resultant harm – a longitudinal wound on the left eyebrow
measuring 11 to 3 millimetres and a bruise on the lower left eyelid
measuring 5 to 3 millimetres (see paragraph 7 above) – was not
very serious, even if account is taken of the fact that the boy was
five years old. It is conceivable that as a result of the attack he
might have suffered a certain psychological trauma. However, the
applicant, despite his allegations in this respect, has adduced no
evidence of any severe or long lasting psychological effects on
his son. While his requests in this respect were rejected by the
domestic courts (see paragraphs 13 and above), there was nothing to
prevent him from submitting such evidence in the proceedings before
the Court.
- Previous cases in which the Court has found that the
State’s positive obligations under Article 3 were engaged
concerned far more serious instances of ill treatment: beating
with a garden cane applied with considerable force on more than one
occasion (see A. v. the United Kingdom, 23 September 1998, §
21, Reports of Judgments and Decisions 1998 VI), very
serious neglect and abuse for a number of years (see Z and Others
v. the United Kingdom [GC], no. 29392/95, §§ 11 36,
40 and 74, ECHR 2001 V), consistent sexual abuse over a period
of years (see D.P. and J.C. v. the United Kingdom, no.
38719/97, §§ 66-74, 10 October 2002), extremely serious
sexual and physical abuse over a long period of time (see E. and
Others v. the United Kingdom, no. 33218/96, §§ 43 and
89, 26 November 2002), multiple rape (see M.C. v. Bulgaria,
no. 39272/98, §§ 16 21, 30 and 153, ECHR
2003 XII), beating all over the body with wooden planks, leading
to multiple rib fractures (see Šečić v. Croatia,
no. 40116/02, § 8, 11 and 51, ECHR 2007 VI), and anal
fissure caused by several attackers in highly intimidating
circumstances (see Nikolay Dimitrov v. Bulgaria, no.
72663/01, §§ 9 and 70, 27 September 2007). By contrast, in
the present case the Court is not persuaded that the treatment to
which the applicant’s son was subjected was sufficiently harsh
to bring Article 3 into play.
- Similarly,
the Court considers that the treatment complained of did not entail
adverse effects for the physical or moral integrity of the
applicant’s son sufficient to bring it within the scope of the
prohibition contained in Article 8. While not wishing to be taken to
condone in any way the assault on him, the Court finds that in the
circumstances there has also been no violation of that Article (see,
mutatis mutandis, Costello Roberts, cited above, §
36 in fine).
- There
has therefore been no violation of Article 3 or of Article 8 of the
Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant alleged that the proceedings against M.T. had exceeded a
reasonable time and had failed to provide him with effective redress.
- The
Court considers that this complaint falls to be examined under
Article 6 § 1 of the Convention, which in so far as relevant
provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law.”
- This
provision does not guarantee the right to have third parties
prosecuted or sentenced for a criminal offence (see, among many other
authorities, Perez v. France [GC], no. 47287/99, § 70,
ECHR 2004 I). However, since the applicant brought a civil claim
against M.T. from the very outset, Article 6 § 1 applied, under
its civil limb, to the entirety of the proceedings (see Calvelli
and Ciglio v. Italy [GC], no. 32967/96, § 62, ECHR 2002 I,
and Perez, cited above, §§ 70 and 71).
- As
regards the first limb of the complaint, which concerns the length of
the proceedings, the Court observes that they started on 3 August
1993 and ended on 12 October 2001 (see paragraphs 8 and 24 above and,
mutatis mutandis, Schumacher v. Luxembourg, no.
63286/00, § 28, 25 November 2003, as regards the dies ad
quem). Their overall duration was therefore just over eight years
and two months.
- The
reasonableness of the length of proceedings must be assessed in the
light of the particular circumstances of the case and having regard
to the criteria laid down in the Court’s case law, in
particular the complexity of the case and the conduct of the
applicant and of the relevant authorities (see Calvelli and
Ciglio, cited above, § 64).
- The
Court does not consider that the case gave rise to any complex
issues. While a number of adjournments were the product of the
parties’ conduct (see paragraphs 11, 15 and 20 above), it
cannot be overlooked that the intervals between most of the hearings
were substantial – between four and twelve months (see
paragraphs 9 13 and 21 above). The Court additionally
observes that the Vratsa District Court started examining the case
for a second time almost a year after its initial judgment had been
quashed by the Vratsa Regional Court, and that the Vratsa Regional
Court heard the appeal against the second judgment of the Vratsa
District Court after an interval of more than fifteen months, when
the limitation period had already kicked in (see paragraphs and 23
above).
- Having
regard to these delays, and observing that the courts were unable
finally to determine the merits of a relatively simple case for more
than eight years, the Court concludes that the length of the
proceedings failed to satisfy the reasonable time requirement of
Article 6 § 1. There has therefore been a violation of this
provision.
- Concerning
the second limb of the complaint, the Court observes that the issue
in the present case is whether the criminal courts’ failure,
due to the manner in which the proceedings unfolded, to determine
finally the applicant’s claim for damages deprived him of
effective access to a court, in spite of his being able subsequently
to bring a separate civil claim against M.T.
- On
this point the Court observes that in the recent cases of Atanasova
and Dinchev it had to deal with situations which were
essentially identical to those of the present case. In those two
cases the applicants’ civil-party claims brought in the context
of criminal proceedings had not been examined due to the
discontinuance of those criminal proceedings following the expiry of
the relevant limitation periods. In both cases the Court found, by
reference to Anagnostopoulos v. Greece (no. 54589/00, 3 April
2003), that the applicants had not enjoyed effective access to a
court and that this could not be cured by the possibility of bringing
fresh claims in the civil courts (see Atanasova v. Bulgaria,
no. 72001/01, 2 October 2008, and Dinchev, cited above).
- The
Court does not find anything in the facts of the present case –
whose only material difference is that it concerns a privately rather
than a publicly prosecutable offence – to prompt it to vary
this conclusion. It reiterates that where the domestic legal order
provides litigants with an avenue of redress, such as a civil party
claim in the context of criminal proceedings, the State is under an
obligation to ensure that they enjoy the fundamental guarantees laid
down in Article 6 § 1. Thus, in the Court’s view, the
applicant could not be expected to wait for the extinction of the
criminal liability of the alleged perpetrator of the offence of which
his son was the victim, many years after making his original
civil party claim and even longer after the impugned events, to
bring a fresh claim before the civil courts (see Atanasova, §
46, and Dinchev, § 50, both cited above). This conclusion
is not altered by the fact he could have opted to bring a separate
civil claim from the outset (see paragraph 28 above). His preference
for seeking damages in the context of criminal proceedings does not
appear unjustified in the circumstances. Having chosen this remedy,
he was entitled to have his claim determined and not required to try
the alternative avenue of redress available under Bulgarian law (see
Dinchev, cited above, § 51).
- There
has therefore been a violation of Article 6 § 1 on this account
also.
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.”
A. Damage
- The
applicant claimed 12,000 euros (EUR) in medical and other expenses
incurred as a result of his son’s injury. He did not formulate
a claim in respect of any non pecuniary damage.
- The
Government did not comment on the applicant’s claim.
- The
Court observes that the bodily harm which lies at the source of the
medical and other expenses incurred by the applicant was not the
result of acts attributable to agents of the respondent State (see
Angelova and Iliev v. Bulgaria, no. 55523/00, § 125, ECHR
2007 IX). There are therefore no grounds for making an award in
respect of these matters (see, mutatis mutandis, Ülkü
Ekinci v. Turkey, no. 27602/95, § 167, 16 July 2002, and
Türkoÿlu v. Turkey, no. 34506/97, § 138, 17
March 2005). Any award of just satisfaction in the present case can
only be based on the breaches of Article 6 § 1 arising from the
length of the proceedings against M.T. and the lack of effective
access to a court for the examination of the applicant’s
civil party claim. As the damage complained of by the applicant
did not have a causal link with these violations, the Court rejects
the claim (see Atanasova, cited above, §§ 59 and
61).
B. Costs and expenses
- The
applicant sought the reimbursement of EUR 51 incurred in lawyers’
fees and EUR 12,000 for the translation of documents. He submitted a
fee agreement with his lawyer and two invoices for translation
services.
- The
Government did not comment on the applicant’s claim.
- According
to the Court’s case-law, applicants are entitled to the
reimbursement of their 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. 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 and that the
applicant’s complaints under Article 3 and Article 8 did not
lead to the finding of a violation, the Court considers it reasonable
to award the sum of EUR 200, plus any tax that may be chargeable to
the applicant.
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
- Holds unanimously that the applicant had
standing to bring the application on behalf of his son;
- Holds unanimously that there has been no
violation of Article 3 or Article 8 of the Convention;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention on account of the
length of the proceedings;
- Holds by five votes to two that there has been a
violation of Article 6 § 1 of the Convention, in that the
applicant was not afforded effective access to a court;
- Holds unanimously
(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 200 (two hundred euros),
plus any tax that may be chargeable, in respect of costs and
expenses, to be converted into Bulgarian levs at the rate applicable
at 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;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judges
Jaeger and Kalaydjieva is annexed to this judgment.
R.M.
S.P.
JOINT DISSENTING OPINION OF JUDGE JAEGER AND JUDGE
KALAYDJIEVA
We
share the majority’s conclusions in regard of the unreasonable
length of the proceedings (paragraphs 43 49) in so far as the
impugned delays were attributable to the absence of expedience on
part of the judicial authorities. But we are unable to join the
majority’s conclusion that these delays deprived him of
effective access to court. The situation in the present case is
clearly not essentially identical with the one in Anguelova
and Dinchev where the applicants were totally dependent on the
authorities’ expediency in pursuing publicly prosecutable
crimes.
In
the present case the applicant had a free choice between bringing a
civil claim in a civil court or joining the civil claim to the
criminal proceedings which are as well exclusively depending on his
free decision because the applicant was simply affected by a
privately prosecutable crime. Crimes which are only privately
prosecutable lack the requisite importance for the prosecution to act
ex officio. Criminal procedure as a whole lies in the hands of
the victim who is at all times free to define timely evidence
requests and to design a strategy of expediency or delays, and most
importantly – whether and when to discontinue the criminal
proceedings.
That
is why the case has to be distinguished from the cases of Anguelova
and Dinchev where the applicants were totally dependent on the
authorities’ expediency in pursuing publicly prosecutable
crimes. In these two cases, the fate of the applicant’s civil
claim was dependant on the public authorities’ decision to
institute criminal proceedings and on the expediency with which they
were pursued. In such circumstances – despite the formal
accessibility of two possible avenues for compensation (in the
instituted criminal proceedings or in separate civil proceedings) –
the right to civil compensation may remain effectively barred as a
result of the manner in which the authorities perform the instituted
criminal proceedings.
In
contrast to the victims of publicly prosecutable crimes who have to
await the outcome of criminal proceedings, access to court for the
determination of a compensation claim for victims of privately
prosecutable crimes is entirely in their own hands. They are free to
drop criminal prosecution which the Convention does not guarantee at
all and to pursue instead their civil interests in compensation of
damages.
The
applicant in the present case was at all times free to choose the
court to which he wished to have access. For these reasons, it cannot
be said that the alleged temporary bar to the applicant’s
access to a civil court was attributable to the authorities.
