CASE OF ALEKSANDROVI v. BULGARIA

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

1. 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.

2. 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.

3. 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.

4. 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

7. The applicants were born in 1970 and 1990 respectively and live in Krasnodar, the Russian Federation.

A. The criminal proceedings against the first applicant

8. 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.

9. 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.

10. 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.

11. On 12 December 2001 the first applicant’s case was brought before the Blagoevgrad District Court.

12. On an unspecified date after 2002 the judge rapporteur in the case died and a new judge was appointed.

13. On an unspecified date in 2003 the new judge resigned from her post and had to be replaced.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. On an unspecified date in May 2007 the applicants moved to Russia.

22. The number of hearings held after that date is not clear.

23. 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.

24. 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.

25. In a judgment of 15 June 2009 the Blagoevgrad District Court acquitted the first applicant. The prosecution appealed.

26. 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.

27. 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.

28. 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

29. 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.

30. 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

31. 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.

32. On 2 July 2003 the District Court authorised the first applicant to leave Bulgaria for the period between 3 July and 31 August 2003.

33. On 12 May 2005 the Blagoevgrad District Court lifted the prohibition.

D. The applicants’ residence permits and the 2003-2006 proceedings in that connection

34. 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.

35. On 27 February 2003 she was issued a temporary residence identity card.

36. 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.

37. 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.

38. The case was examined by three levels of jurisdiction.

39. 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

40. 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.

41. 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.

42. 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.

43. It appears that on 22 November 2007 the Supreme Court of Cassation upheld these judgments.

F. The proceedings under the Consumers Protection Act

44. 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

45. 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

46. 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.

47. 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).

48. The Court has also many times noted the lack of compensatory remedies (see Dimitrov and Hamanov, cited above, §§ 96-98, with further references).

49. Against this background, the Court finds that the Government’s preliminary objection about non-exhaustion of domestic remedies must be dismissed.

50. 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

51. 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.

52. 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.

53. The first applicant disagreed.

54. 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).

55. 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).

56. 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.

57. There has accordingly been a breach of Article 6 § 1.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

58. 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.

59. 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.

60. 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.

61. 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

62. 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

63. 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.

64. The Government contested the claim.

65. 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

66. 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.

67. The Government submitted that the claim should be dismissed as unfounded and unsubstantiated.

68. 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).

69. 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

70. 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 AracıPäivi Hirvelä
Deputy RegistrarPresident

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