FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 52788/99
by Ana Liubomirova GROZEVA
against Bulgaria
The European Court of Human Rights (First Section), sitting on 3 November 2005 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 11 August 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Ana Liubomirova Grozeva, is a Bulgarian national, who was born in 1975 and lives in Sofia. She is represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv.
The respondent Government were represented by their agent, Ms M. Kotzeva, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The death of the applicant’s father
Between 1993 and 1994 the father of the applicant was employed by a Bulgarian private company – SD “Kondor Inzhenering” (the “Company”). He worked at a construction site in Germany, where on 11 November 1994 he died. It subsequently transpired that the Company had not taken out a life insurance policy on the applicant’s father even though it had an undertaking to do so in his employment contract. As a result, the applicant did not receive any compensation for the death of her father either from an insurance company or from the Company itself.
2. The applicant’s action for damages
(a) Proceedings before the Plovdiv Regional Court
On 27 February 1995 the applicant filed an action for damages against the Company stemming from its alleged breach of the employment contract with her father (failure to take out a life insurance policy). Her claim was for 400,000 Bulgarian Levs (“BGL”: approximately 9,000 German Marks (DEM) at the time).
On 17 April 1995 the applicant was informed by the Plovdiv Regional Court that there were certain deficiencies in her claim and that she had to present additional documents within seven days. She corrected the deficiencies within the prescribed deadline.
The first court hearing, scheduled for 5 July 1995, was postponed at the request of the respondent Company.
At the hearing on 1 November 1995 the applicant petitioned the Plovdiv Regional Court to obtain an expert’s opinion as to whether the Company’s insurance policy did cover the risk of “loss of life” and to obtain a comparative analysis of what were the habitual compensations paid out under life insurance policies. The court agreed and appointed the expert proposed by the applicant. The case was postponed for 24 January 1996.
The expert’s report was completed on 12 January 1996. It concluded that the Company’s insurance policy did not cover the risk of “loss of life”, that payments under life insurance policies were subject to negotiations and that they usually ranged between BGL 1,000 and BGL 100,000 (approximately between DEM 19.85 and DEM 1,985 at the time).
The hearing on 24 January 1996 was postponed at the request of the applicant’s attorney.
At the hearing on 3 April 1996 the Plovdiv Regional Court accepted the expert’s opinion and declared the case ready for decision.
By judgment of 18 June 1996 the Plovdiv Regional Court considered that the applicant’s claim was in substance a tort action. It found partially in her favour and awarded the applicant BGL 70,000 (approximately DEM 750 at the time) as compensation for loss of insurance payments and dismissed the remainder of her claim. The applicant was informed of the judgment on 26 June 1996.
On 1 July 1996 the applicant appealed against the judgment of 18 June 1996, claiming that the awarded amount was insufficient.
(b) Proceedings before the Supreme Court
On an undetermined date the applicant’s appeal was forwarded by the Plovdiv Regional Court to the Supreme Court where it was received on 14 October 1996.
There were no developments in the processing of the applicant’s appeal for the next year and half and no hearing was scheduled before the Supreme Court.
On 1 July 1997, by virtue of the Bulgarian National Bank Act, the exchange rate of the BGL was fixed, whereby BGN 1,000 was equivalent to DEM 1 (Article 29 § 1).
By amendment of the Code of Civil Procedure of 1 April 1998 the appeals’ procedure was amended. Thereafter, judgments of the regional courts, when acting as a court of first instance, were to be appealed to the newly formed appellate courts. The amendment affected all appeals in civil cases pending before the Supreme Court, which was replaced by the Supreme Court of Cassation.
As a result, on 1 April 1998 the Supreme Court of Cassation discontinued the applicant’s appeal proceedings and transferred her appeal to the Plovdiv Appellate Court.
(c) Proceedings before the Plovdiv Appellate Court
By decision of 17 July 1998 the Plovdiv Appellate Court stayed the appellate proceedings, because the applicant’s appeal was no longer in conformity with the statutory requirements for appeals, as introduced by the above mentioned amendments. The applicant was given a fourteen-day deadline, as of being informed of the decision, to comply. The parties have failed to indicate when the applicant was served with the court’s decision.
On 18 September 1998 the applicant filed changes to her appeal in order to comply with the court’s instructions.
A hearing was held before the Plovdiv Appellate Court on 25 January 1999, when the case was declared ready for decision. The applicant was not present despite having been duly summoned.
By judgment of 11 June 1999 the Plovdiv Appellate Court found in favour of the applicant, increased the awarded compensation to BGL 300,000 (DEM 300 or EUR 153), plus interest, and dismissed the remainder of her claim. The court considered that the economic circumstances and the high inflation over the period entailed the awarding of a larger compensation to the applicant. Her claim was recognised to have arisen in 1995 with the initiation of the proceedings. The applicant did not appeal against the judgment.
The BGL was denominated on 5 July 1999. The award’s equivalent continued to be DEM 300 (EUR 153).
B. Relevant domestic law and practice
In its practice, the Supreme Court of Cassation (Interpretative Decision No. 2 of 1997 under Case No. 2/97 by the General Assembly of Civil Chambers: Тълкувателно решение № 2 от 1997 г. по гр. д. № 2/1997г., ОСГК) held that:
“It is not permissible for the courts to revise an obligation because of a change in the exchange rate.”
The Supreme Court of Cassation expressly noted that the courts cannot award the BGL equivalent, as of the date of their judgments, of a consideration which they recognised was due.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention about the unreasonable delay of the civil proceedings. She stated that the proceedings lasted in excess of four years, that there was a delay of more than two years during which her appeal was pending before the Supreme Court and that the Appellate Court was slow in hearing and delivering its judgment.
2. The applicant also complained under Article 1 of Protocol No. 1 of the Convention that as a result of the length of the civil proceedings and the high inflation over the period the value of her claim fell dramatically - from DEM 9,000 to DEM 300. The applicant maintains that she was therefore, de facto, denied adequate compensation. She further maintains that this was based on the prevailing practice of the Supreme Court of Cassation (Interpretative Decision No. 2 of 1997 under Case No. 2/97 by the General Assembly of Civil Chambers: Тълкувателно решение № 2 от 1997 г. по гр. д. № 2/1997 г., ОСГК), which did not allow courts to take into account the exchange rate fluctuations over a given period when awarding amounts in Bulgarian Lev.
3. The applicant complained under Article 13 of the Convention that she did not have at her disposal effective domestic remedies for her Convention complaints.
THE LAW
A. The Government’s objection as to the non-exhaustion of domestic remedies
The Government maintained that the applicant had failed to exhaust domestic remedies in respect of her complaints before the Court, because she had failed to appeal against the judgment of Plovdiv Appellate Court of 11 June 1999.
The applicant replied that the Government had failed to substantiate its objection and had failed to indicate how such an appeal would have remedied the applicant’s complaints stemming directly from the alleged excessive length of the proceedings.
The Court considers that the Government has made a vacuous objection of non-exhaustion of domestic remedies without specifying how such an appeal would have remedied the applicant’s complaints currently before the Court.
It follows, therefore, that the Government’s objection must be rejected.
B. Complaint under Article 6 § 1 of the Convention regarding the length of the civil proceedings
The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings was excessive and that there was an unreasonable delay of more than two years while the case was pending before the second instance court.
Article 6 § 1 of the Convention provides, as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
1. The parties’ submissions
The Government maintained that the length of the proceedings was not excessive and indicated that during the relevant period significant changes were being implemented to the domestic judicial system. In particular, a three-instance court procedure was being introduced and the courts were being re-organised with the creation of appellate courts. They contended that in those circumstances each of the courts acted as quickly as possible in processing the case before it. The Government disagreed with the applicant’s assertion that her appeal had been left by the Supreme Court to wait for the amendments of April 1998 to enter into force.
Furthermore, the Government contended that the case was complex, evidenced by the need to obtain an expert’s opinion before the Plovdiv Regional Court.
Finally, the Government considered that the parties to the proceedings had contributed to their length. In particular, they referred to fact that the applicant wrongly filed her claim as an action for breach of contract, that there were two postponements of hearings before the first-instance court requested by the parties, that the applicant belatedly revised her appeal in accordance with the instruction of the Plovdiv Appellate Court of 17 July 1998 and that she failed to attend the hearing of 25 January 1999, to which she had been duly summoned.
The applicant responded that there was a year and a half before the Supreme Court which cannot be justified, as argued by the Government, with the changes being undertaken at the time in the judicial system. She contended that absolutely no action had been undertaken by the Supreme Court to process her appeal during that period, but that said court was very expeditious in transferring the case to the Plovdiv Appellate Court once the amendments of April 1998 entered into force.
The applicant also disagreed with the Government that the case was complex and pointed to the expeditious processing of the case once the courts did start hearing the case. In addition, she indicated that there was no need to hear a large number of witnesses and that only one expert’s opinion was obtained.
Finally, the applicant considered the conduct of the parties and contended that the two postponements of hearings that they had requested had not contributed to the overall length of the proceedings. Moreover, she argued that in both cases the new hearings had inexplicably been scheduled by the court for several months later. In respect of the need for the applicant to revise and supplement her appeal following the decision of the Plovdiv Appellate Court she argued that she had complied with the instructions of the court within fourteen days of receiving said decision. Finally, the applicant disagreed that her absence from the hearing on 25 January 1999 before the Plovdiv Appellate Court had resulted in any delay of the proceedings, because the court had proceeded to hear the case in her absence.
2. The Court’s assessment
The Court observes that the civil proceedings lasted from 27 February 1995 until 11 June 1999, a total period of four years, three months and twelve days for two levels of jurisdiction.
The Court recalls that it should assess the reasonableness of the length of the impugned proceedings on the basis of the established criteria for assessing the “reasonable time” requirement of Article 6 § 1 of the Convention, namely the complexity of the case, the conduct of the parties and of the authorities and taking as its point of departure the particular circumstances of the instant case and having regard also to what was at stake for the applicant (see, among other authorities, the Süßmann v. Germany, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, pp. 1172–73, § 48).
(a) Complexity of the case
The Court considers that the subject matter of the litigation was not particularly complex, being concerned with the determination of the Company’s liability stemming from its failure to take out a life insurance policy on the applicant’s father.
Therefore, the complexity of the subject matter of the case cannot, in itself, justify a protraction of the proceedings.
(b) What was at stake for the applicant
The Court notes that the applicant sought compensation from the Company as an alternative to the insurance payments she would otherwise have received had it, the Company, taken out an insurance policy on her father.
(c) Conduct of the parties to the proceedings
The Court observes that the applicant initially filed a deficient claim on 27 February 1995, which was corrected soon after 17 April 1995. Even taking this latter day as the date of filing her corrected claim, this contributed to a delay of a month and eighteen days, which cannot be attributed to the national authorities.
The Court further observes that at the request of the parties to the proceedings the hearings scheduled for 5 July 1995 and 24 January 1996 before the Plovdiv Regional Court were postponed. This contributed to a further delay of six months and six days not attributable to the national authorities.
The Government contended in its observations that the applicant contributed to the length of the proceeding, because she filed a revised appeal two months after the decision of the Plovdiv Appellate Court of 17 July 1998 and failed to participate in the hearing of 25 January 1999.
The Court observes that the applicant filed her revised appeal on 18 September 1998. Insofar as the Government have failed to show on which date the applicant was informed of the decision and considering that the proceedings were not terminated due to failure to comply with the fourteen-day deadline as of being informed of the decision, the Court considers that the applicant must have been informed of the court’s decision sometime after 4 September 1998. Accordingly, the applicant did not contribute to the delay in the proceedings by belatedly filing a revised appeal.
In respect of the applicant’s absence from the hearing on 25 January 1999 before the Plovdiv Appellate Court, the Court considers that this also did not contribute to any further delay insofar as the court proceeded in hearing the case in her absence.
Accordingly, the Court considers that the delay in the proceedings attributable to the parties is for a period of seven months and twenty four days.
(d) Conduct of the national authorities
The Court does not consider that the proceedings before the first-instance court were excessively lengthy as they lasted from 27 February 1995 until 18 June 1996, a period of one year, three months and twenty days.
The appellate proceedings lasted from 1 July 1996 until 11 June 1999, a period of two years, eleven months and ten days. During this period, the only significant gap that may be observed is between 14 October 1996 and 1 April 1998, a period of one year, five months and seventeen days, during which time there were no developments in the processing of the applicant’s appeal.
There were no other significant delays attributable to the authorities.
Accordingly, the Court considers that the delay in the proceedings directly attributable to the authorities is for a period of one year, five months and seventeen days.
(e) Conclusion
The Court concludes that out of a total length of four years, three months and twelve days, the length not directly attributable to the parties’ conduct is for a period of three years, seven months and eighteen days for two levels of jurisdiction.
In the light of the criteria laid down in its case-law and having regard to the particular circumstances of the case, the Court concludes that the overall length of the proceedings did not exceed a “reasonable time” (see, for example, Hadjikostova v. Bulgaria, no. 36843/97, § 39, 4 December 2003 and Bärbel, Dietrich and Ireen Ellersiek v. Germany (dec.), no. 77151/01, 23 June 2005). Considering the delay in the proceedings at the appellate stage directly attributable to the authorities, the Court does not find that this delay, when viewed in the context of the period as a whole, had such an impact on the overall length of the proceedings as to make them exceed what was reasonable.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Complaint under Article 1 of Protocol No. 1 of the Convention regarding the loss of value of the awarded amount
The applicant complained under Article 1 of Protocol No. 1 of the Convention that as a result of the excessive length of the civil proceedings and the high inflation over the period the value of the claimed and awarded amounts fell dramatically, which resulted in a de facto denial of adequate compensation.
Article 1 of Protocol No. 1 of the Convention 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.”
1. The parties’ submissions
The Government maintained that the applicant had no “possession” nor a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 of the Convention. They agreed that it was not possible for the domestic courts to directly take into account the exchange rate fluctuations over the period, but considering the evidence collected during the proceedings, that payments under life insurance policies ranged between BGL 1,000 and BGL 100,000 at the time, they argued that the applicant had been adequately compensated by the first-instance court, which awarded her BGL 70,000, an amount close to the maximum in the foretasted range. In addition, the Government noted that the Plovdiv Appellate Court had awarded the applicant an additional BGL 230,000 primarily because it deemed that there had been high inflation over the period. Finally, the Government contended that it was not obliged to maintain the purchasing power of a claimed and later awarded amount.
In response, the applicant argued that even though the award of the first‑instance court was close to the maximum of BGL 100,000 paid under life insurance policies at the time, the exchange rate of DEM 1 at the time of her father’s death was BGL 42.60, while on 18 June 1996, when the Plovdiv Regional Court awarded her BGL 70,000 as compensation, it was BGL 93.57. Accordingly, the value of this award, at the time, was equal to DEM 748.10. Subsequently, despite the applicant being awarded an additional BGL 230,000 by the Plovdiv Appellate Court, as a result of the inflation over the period and the redenomination of the local currency the value of the total amount fell to DEM 300. Accordingly, the applicant considered that the unreasonable length of the civil proceedings had a direct negative effect on the real value of the awarded amount.
2. The Court’s assessment
In the present case the substance of the applicant’s complaint appears to be that the responsibility of the State under Article 1 of Protocol No. 1 is engaged in that domestic legislation and judicial practice did not allow recovery of the real value of her claim. It is submitted that the courts did not decide within a reasonable time, thus allowing the inflation to destroy the value of the claim.
In this respect, even assuming that the responsibility of the State under Article 1 of Protocol No. 1 may in certain circumstances be engaged, the Court refers to its conclusions in respect of the applicant’s Article 6 complaint (see O.N. v. Bulgaria (dec.), no. 35221/97, 6 April 2000).
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Complaint under Article 13 of the Convention
The applicant complained that she did not have an effective domestic remedy for her Convention complaints and relied on Article 13 of the Convention, which provides:
“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.”
1. The parties’ submissions
The Government maintained that the applicant had a right of action under Section 217a (1) of the Code of Civil Procedure against the alleged unreasonable delay in the proceedings, but at the same time indicated that this provision entered into force a month after the judgment of the Plovdiv Appellate Court.
The applicant responded that the provision indicated by the Government entered into force on 20 July 1999, more than a month after the judgment of 18 June 1999 of the Plovdiv Appellate Court. Moreover, she contended that the provision could not have been utilised by her to correct the deficiencies in the proceedings up to that point nor to obtain compensation for the alleged excessive length. The applicant indicated that the provision only applied to pending cases before the courts and were not effective in speeding up such cases because they primarily provided for disciplinary action for judges if they delayed in processing their cases.
2. The Court’s assessment
The Court recalls that Article 13 of the Convention has been interpreted as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among others, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52 and Agron Gjonbocari and Others v. Albania (dec.), no. 10508/02, 31 March 2005).
The Court has above found that the applicant’s complaints are manifestly ill-founded with the Convention. It follows that the applicant does not have an “arguable claim” and her complaints do not attract the guarantees of Article 13 of the Convention.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy