THIRD SECTION
CASE OF BOGDAN v. ROMANIA
(Application no. 21750/04)
JUDGMENT
STRASBOURG
26 January 2010
FINAL
26/04/2010
This judgment has become final under 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
1. 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.
2. The Romanian Government (“the Government”) were represented by their Agent, Mr. Răzvan‑Horaţiu Radu, from the Ministry of Foreign Affairs.
3. 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
4. The applicant was born in 1957 and lives in Bucharest.
5. 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.
6. 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.
7. The applicant's father joined a civil complaint to the criminal proceedings on 26 April 1995.
8. 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.
9. In a final decision of 15 January 1996, the Timiş County Court dismissed N.B.'s appeal and confirmed the lower court's decision.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. Subsequently, on 19 May 2003, the applicant lodged an action with the Strehaia District Court to have the prosecutors' decisions quashed.
18. 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.
19. 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
20. 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 ...”
21. 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.
22. 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
23. 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.
24. 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
25. 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).
26. 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.
27. 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
28. 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
29. The applicant claimed EUR 25,000 for non-pecuniary damage incurred by him.
30. The Government considered the claim excessive.
31. 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
32. The applicant also claimed EUR 20,250 for the costs and expenses incurred before the domestic courts and the Court.
33. The Government contested these claims mentioning that the applicant did not submit any documents proving the costs and expenses allegedly incurred by him.
34. 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
35. 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
1. Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;
2. 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;
4. 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 QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy