CASE OF DORON v. BULGARIA

FIFTH SECTION

CASE OF DORON v. BULGARIA

(Application no. 39034/04)

JUDGMENT

STRASBOURG 

14 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of Doron v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Rait Maruste, President,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Stephen Phillips, Deputy Section Registrar,

Having deliberated in private on 21 September 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 39034/04) 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 a Bulgarian national, Mr Dilian Spiridonov Doron (“the applicant”), on 25 October 2004.

2. The applicant was represented by Mr M. Ekimdzhiev and Mrs K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agents, Mrs S. Atanasova, Mrs N. Nikolova and Mr V. Obretenov of the Ministry of Justice.

3. On 11 February 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1953 and lives in Sofia.

A. The criminal proceedings against the applicant

5. On 7 March 1994 the applicant was charged with aiding and abetting large scale embezzlement. The charges were brought within the framework of criminal proceedings for abuse of power and embezzlement against several persons.

6. On 8 March 1994 the applicant was questioned in connection to the above charges and a search of his business premises was carried out.

7. On 11, 15, 23 and 24 March 1994 the applicant, some of the other persons charged and witnesses were questioned.

8. On 28 March 1994 the applicant was also charged with documentary fraud, was questioned in that connection and bail was fixed for him.

9. Between April and November 1994 at least fifteen questioning sessions and a search were carried out and several other persons were charged with abuse of power and embezzlement.

10. As the applicant did not pay the bail and could not be found for questioning, on an unspecified date in 1994 the Bulgarian authorities, with the assistance of Interpol, initiated a national and an international search for him.

11. On 5 December 1994 the applicant was found in Switzerland and on 26 January 1996 he was extradited to Bulgaria.

12. Meanwhile, the criminal proceedings against him were still pending and between 9 November 1994 and 8 January 1996 at least fourteen questioning sessions were carried out and two expert opinions were commissioned.

13. On 26 January 1996 the applicant was questioned and the findings of the investigation were presented to him.

14. Between January and October 1996 a number of questioning sessions and several other investigative actions took place and the charges against the applicant were separated from these against the other persons involved.

15. On 5 July 1997 a prosecutor from the Sofia city public prosecutor’s office dropped some of the charges against the applicant and prepared an indictment. Thus, the applicant remained charged only with aggravated documentary fraud, as a result of which he unlawfully received a large amount of money.

16. On 5 September 1997 the indictment was sent to the Sofia City Court.

17. During the first hearing of 5 March 1998 it became clear that the applicant had returned the allegedly embezzled amount to the victim company.

18. For the period between 5 March 1998 and 12 January 1999 the Sofia City Court held at least fourteen hearings.

19. By a judgment of 12 January 1999 the Sofia City Court acquitted the applicant.

20. The prosecutor appealed.

21. The Sofia Court of Appeal held at least three hearings. By a judgment of 13 March 2000 it upheld the acquittal.

22. The prosecutor appealed further. On 22 May 2000 the Supreme Court of Cassation held a hearing.

23. By a judgment of 3 October 2001 the Supreme Court of Cassation quashed the Sofia Court of Appeal judgment because of procedural breaches and remitted the case for fresh examination.

24. After the remittal the Sofia Court of Appeal held hearings on 20 May and 23 September 2002.

25. In a judgment of 21 November 2003 the Court of Appeal upheld the Sofia City Court judgment of 12 January 1999.

26. So did the Supreme Court of Cassation in a final judgment of 24 June 2004.

27. Apparently, no civil claim was brought against the applicant throughout the proceedings.

B. The seizure of the money

28. During the search of the applicant’s business premises, carried out on 8 March 1994, a metal safe was seized. On 11 May 1994 an investigator from the Sofia National Investigation Service opened the safe and seized the amount of 986,444 old Bulgarian levs (BGL) (the equivalent of 41,874 German marks at the time or 21,410 euros (EUR)). In the seizure record of 11 May 1994 it was stated that the amount had been seized pursuant to Article 156 of the Code of Criminal Procedure of 1974 (CCP). The amount was deposited in a special bank account under which no interest was due.

29. After the end of the criminal proceedings against the applicant, he requested the return of the seized amount.

30. In a decision of 2 September 2004 the Sofia City Court ordered the amount to be returned to the applicant. It found that no civil claim had been lodged within the framework of the criminal proceedings and no attachments had been imposed. The applicant received 986.40 new Bulgarian levs (BGN), approximately EUR 504, which was the equivalent of the seized amount after the denomination of 1999.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Remedies in respect of length of criminal proceedings

31. The domestic law provisions concerning remedies in respect of length of criminal proceedings have been summarized in paragraphs 34-42 of the Court’s judgment in the case of Atanasov and Ovcharov v. Bulgaria, no. 61596/00, 17 January 2008.

B. Measures for guaranteeing the satisfaction of civil claims in the criminal proceedings

32. Article 156 of the CCP, as in force between 1974 and 1999, provided for attachment measures to guarantee the satisfaction of civil claims against the perpetrator, the payment of fines or the execution of confiscation orders. The provisions of the Civil Procedure Code of 1952 (CPC), including as regards appeals to higher courts, applied in respect of the attachment procedure.

33. In case no civil action had been lodged within the prescribed time-limit, the interested party could request from the court to lift the imposed measure (Article 322 of the CPC).

C. Appeal against the orders of the investigator

34. Article 181 of the CCP provided that the orders of the investigator were subject to appeal before the prosecutor and the orders of the prosecutor could be appealed before the prosecutor with a higher rank.

D. Physical evidence in criminal proceedings

35. Articles 133-137 provided for the seizure of documents and other objects that could be of importance for the criminal proceedings. Pursuant to Article 106 of the CCP chattels and other objects could be collected as physical evidence and had to be held by the authorities until the termination of the criminal proceedings. They could be returned to their owners before that only as long as this would not hinder the establishment of the facts in the case (Article 108 § 2). As of 1 January 2000 Article 108 of the CCP was amended, thus clarifying that it was within the powers of the prosecutor’s office to rule on requests for the return of such objects and introducing the right to appeal before the court in case of refusal.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

36. The applicant complained that the length of the proceedings 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 ...”

37. The Government argued that the case had been complex and therefore time-consuming and that by fleeing the country the applicant had caused the slowing down of the proceedings.

A. Period to be taken into consideration

38. The period to be taken into consideration began on 7 March 1994 when the applicant was charged with aiding and abetting large scale embezzlement (see paragraph 5 above). It ended on 24 June 2004, when the Supreme Court of Cassation gave a final judgment in the case (see paragraph 26 above). It thus lasted ten years, three months and seventeen days for a preliminary investigation and three levels of jurisdiction.

B. Admissibility

39. The Court notes that the applicant’s complaint under Article 6 § 1 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

40. 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.).

41. The Court notes that the global length of the proceedings in the present case was more than ten years.

42. It accepts that the case was relatively complex as it initially involved charges against several persons, questioning of a number of witnesses and several expert options.

43. In respect of the applicant’s conduct, the Court finds that significant delays during the preliminary investigation stage were caused by his absence from the country which lasted for more than a year (see paragraphs 10-12 above).

44. On the other hand, however, it observes a number of delays in the proceedings, which were attributable to the authorities, such as the delay of about three years because of the remittal of the case due to procedural breaches (see paragraph 23 above) and this of about one year and two months between the last hearing before the Sofia Court of Appeal of 23 September 2002 and the delivery of that court’s judgment on 21 November 2003 (see paragraphs 24 and 25 above). It also notes that the case was not handled with particular expediency by the Supreme Court of Cassation (see paragraphs 21-23 above).

45. In view of the above, having regard to its case-law on the subject, the overall duration of the proceedings and the delays attributable to the authorities the Court considers that in the instant case the length of the proceedings failed to meet the “reasonable time” requirement.

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

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

46. The applicant further complained of the lack of an effective remedy in respect the excessive length of the proceedings against him. He relied on Article 13 of the Convention, which reads 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.”

47. The Government did not comment.

48. The Court notes that the applicant’s complaint under Article 13 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.

49. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). Referring to its reasoning in other cases against Bulgaria where it found that in similar circumstances Bulgarian law did not provide for an effective remedy (see, for example, Sidjimov v. Bulgaria, no. 55057/00, § 40-43, 27 January 2005, Atanasov and Ovcharov v. Bulgaria, cited above §§ 57-61 and Yankov and Manchev v. Bulgaria, nos. 27207/04 and 15614/05, §§ 32-34, 22 October 2009), the Court sees no reason to reach a different conclusion in the present case.

50. Accordingly, there has been a violation of Article 13 of the Convention.

III. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL No. 1 AND ARTICLE 13

51. The applicant complained under Article 1 of Protocol No. 1 that in violation of Article 156 of the CCP the seizure of the amount of BGL 986,444 had been ordered by an investigator and not by a court. He further complained that as a result of the lengthy criminal proceedings, inflation and the denomination of the Bulgarian currency in 1999, this amount depreciated in value. He contended that he could not receive interest on the seized amount and thus suffered a loss. He further complained under Article 13 that he did not have an effective remedy respect of his complaint under Article 1 of Protocol No. 1.

52. Article 1 of Protocol No. 1 provides:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. The parties’ submissions

53. The Government argued, inter alia, that the applicant never complained about the seizure of the money before the domestic courts and never appealed against the actions of the investigation authorities in connection to the seizure. He also did not claim any interest on the seized amount. Thus, he failed to exhaust all domestic remedies before bringing his complaint to the Court.

54. The applicant argued that he did not have at his disposal effective domestic remedies in respect of his complaint under Article 1 of Protocol No. 1. He contended that pursuant to Article 156 of the CCP the investigation and the prosecution authorities were under the obligation to undertake measures to guarantee the satisfaction of civil claims against the perpetrators of an offence and that therefore any claims and requests for returning of the seized amount or appeals against the seizure stood no chances of success.

55. The applicant further argued that the seizure had been unlawful as, if considering that it had been carried out pursuant to Article 156 of the CCP, the decision had not been taken by a court and, if considering that it had been carried out under Article 133 of the CCP, the seized objects had not been of importance for the criminal proceedings. He also argued that the seizure had resulted in a loss of EUR 20,905.87, which constituted the difference in value between the seized and the returned amount.

B. The Court’s assessment

56. The Court observes that, the applicant never complained about the seizure of the money before any domestic authority. His complaints under Article 1 of Protocol No. 1 were raised for the first time directly before the Court.

57. The Court notes that under Bulgarian law, regardless of the grounds for the seizure and the procedure followed in that respect, all orders of investigators could be appealed before a prosecutor and all orders of prosecutors could be appealed before the higher rank prosecutor (see paragraph 34 above). Therefore the Court considers that the applicant could have challenged the investigator’s order to seize the amount. Furthermore, irrespective of whether the amount continued to be seized as a guarantee or as physical evidence, it was open for the applicant to request its return from the prosecutor or from the court (see paragraphs 32, 33 and 35 above). He however, did not try to avail himself of any of these remedies. As to his argument that he stood no chance of success (see paragraph 54 above), the Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 71, Reports of Judgments and Decisions 1996‑IV; Allaoui and Others v. Germany (dec.), no. 44911/98, 19 January 1999; and Muazzez Epözdemir v. Turkey (dec.), no. 57039/00, 31 January 2002).

58. In view of the above, the Court finds that the applicant failed to exhaust all remedies available to him in respect of the complaint under Article 1 of Protocol No. 1. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention. It also follows that the applicant’s complaint under Article 13 must be rejected as manifestly ill‑founded pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

59. 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

60. The applicant claimed 17,000 euros (EUR) in non-pecuniary damage, stemming from the length of the criminal proceedings and the lack of effective remedies in that respect.

61. The Government contested this claim as excessive.

62. The Court observes that the applicant must have sustained non‑pecuniary damage as a result of the established violations (see paragraphs 45 and 50 above). Ruling on an equitable basis and taking into account all the circumstances of the case, it awards EUR 2,400 under this head.

B. Costs and expenses

63. The applicant also claimed EUR 2,730 in lawyer’s fees for the proceedings before the Court, EUR 17 in postage and EUR 52 in office materials. In support of this claim the applicant presented an agreement with his lawyers and a time sheet for thirty nine hours at the hourly rate of EUR 70. The applicant requested that the sum for costs and expenses in excess of EUR 1,000 be paid directly to his lawyers.

64. The Government contested these claims as excessive.

65. 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 were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 600, covering costs under all heads.

C. Default interest

66. 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 complaints concerning the length of the criminal proceedings against the applicant and the lack of effective remedies in that respect admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings;

3. 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;

4. Holds

a) that the respondent State is to pay to the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses.

(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsRait Maruste
              Deputy RegistrarPresident

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