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THIRD
SECTION
CASE OF BOGDAN v. ROMANIA
(Application
no. 21750/04)
JUDGMENT
STRASBOURG
26 January 2010
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 Bogdan v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
Ann
Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 5 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 21750/04) against Romania
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Romanian national, Mr Constantin Bogdan (“the applicant”),
on 5 April 2004.
- The
Romanian Government (“the Government”) were represented
by their Agent, Mr. Răzvan Horaţiu
Radu, from the Ministry of Foreign Affairs.
- On
15 November 2006 the
President of the Third Section decided to communicate the complaint
concerning the length of the proceedings to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Bucharest.
- On
23 September 1994 N.B., the applicant's father lodged a criminal
complaint with the Strehaia District Court for injuries against G.M.
seeking compensation for damage.
- On
19 January 1995, the Supreme Court of Justice, acting at the request
of N.B. for the file to be transferred to another jurisdiction,
transferred the case to the Timişoara District Court. The case
was registered with this latter court on 21 February 1995.
- The
applicant's father joined a civil complaint to the criminal
proceedings on 26 April 1995.
- On
31 May 1995, the Timişoara District Court gave judgment,
acquitting G.M. on the ground that the evidence in the case did not
support N.B.'s allegations. It consequently dismissed the claim for
damages.
- In
a final decision of 15 January 1996, the Timiş County Court
dismissed N.B.'s appeal and confirmed the lower court's decision.
- On
an unknown date, the Procurator-General, acting at the request of
N.B., lodged an application with the Supreme Court of Justice to have
the final decision of 15 January 1996 quashed (recurs în
anulare) on the ground that the decision had seriously infringed
the law because it had inaccurately interpreted the evidence, in
particular, the forensic report.
- In
a final decision of 27 May 1997, the Supreme Court allowed the
appeal, quashed the two decisions of the ordinary courts and sent the
case back to the Prosecutor's Office attached to the Strehaia
District Court for further investigations.
- On
13 April and 9 October 1998, the Prosecutor's Office attached to the
Mehedinţi County Court allowed complaints by the applicant that
there had been unjustified delays in the investigations. The
applicant continued the proceedings after his father's death.
- On
25 February 1999, the same Prosecutor's Office decided not to start
criminal proceedings against G.M., on the ground that the evidence
gathered did not prove that the latter had committed an offence.
- However,
on 18 June 1999, when this decision was contested by the applicant,
the Prosecutor's Office reversed its decision and sent the case back
to the Mehedinţi police for further investigation.
- On
2 March 2000, the Prosecutor's Office upheld its earlier decision not
to start criminal proceedings against G.M. However, on 16 May
2001, the Prosecutor's Office attached to the Craiova Court of Appeal
reversed the decision of 2 March 2000.
- On
12 October 2001, the Mehedinţi Prosecutor's Office confirmed its
previous decisions. Following complaints by the applicant, this
decision was upheld by the Craiova Prosecutor's Office on 26 June
2002 and by the Prosecutor's Office attached to the Supreme Court of
Justice on 11 April 2003.
- Subsequently,
on 19 May 2003, the applicant lodged an action with the Strehaia
District Court to have the prosecutors' decisions quashed.
- In
a judgment of 1 September 2003, the District Court confirmed the
decision adopted by the prosecutors, on the grounds that a new
forensic opinion of 24 September 2001 contradicted the previous
findings concerning the trauma that N.B. had allegedly suffered and,
in these circumstances, G.M.'s guilt could not be established.
- This
judgment was confirmed following an appeal by the applicant, in a
final decision of 24 October 2003 of the Mehedinţi County Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about the outcome and the length of the
proceedings, which he considered incompatible with the “reasonable
time” requirement, laid down in Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
Government contested that argument. They submitted that there had
been no periods of inactivity attributable to the authorities and
that the request of the applicant's father for the file to be
transferred to another jurisdiction caused a certain delay.
- The
period to be taken into consideration began on 26 April 1995, when
the applicant's father joined a civil complaint to the criminal
proceedings, and ended on 24 October 2003. It thus lasted eight years
and a half for two levels of jurisdiction.
A. Admissibility
- The
Court notes that the complaint regarding the length of proceedings is
not manifestly ill-founded 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.
- As
for the reminder of the application, namely, the complaint regarding
the outcome of the proceedings under Article 6 § 1, the Court
finds that in the light of all the material in its possession, and in
so far as the matters complained of are within its competence, 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 complaint is manifestly illfounded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
B. Merits
- 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 (see, among
many other authorities, Foley v. the United Kingdom, no.
39197/98, § 36, 22 October 2002).
- 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.
- 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.
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. 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 EUR 25,000 for non-pecuniary damage incurred by
him.
- The
Government considered the claim excessive.
- The
Court considers that the applicant must have sustained nonpecuniary
damage. Ruling on an equitable basis, it awards him EUR 3,000
under that head.
B. Costs and expenses
- The
applicant also claimed EUR 20,250 for the costs and expenses incurred
before the domestic courts and the Court.
-
The Government contested these claims mentioning that the applicant
did not submit any documents proving the costs and expenses allegedly
incurred by him.
- 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. In the present case, regard being had to
the fact that the applicant did not submit any documents as evidence
of costs and expenses allegedly incurred by him, the Court rejects
the claim for costs and expenses in the domestic proceedings and the
proceedings before the Court.
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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3 Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand Euros) in respect of non-pecuniary damage, to be
converted into Romanian lei 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 amounts 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 26 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
