FIFTH SECTION
DECISION
Application no. 27937/05
by Georgi Asenov PETROV and Stoyanka Asenova PETROVA
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 15 June 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 16 July 2005,
Having regard to the declaration submitted by the respondent Government on 3 February 2010 requesting the Court to strike the application out of the list of cases and the applicants' reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Georgi Asenov Petrov and Ms Stoyanka Asenova Petrova, are Bulgarian nationals who were born in 1960 and 1955 respectively and live in Sofia. The Bulgarian Government (“the Government”) are represented by their Agent, Ms Svetla Atanasova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 23 January 1995 the applicants brought a rei vindicatio action against a third person. After examining the case in numerous hearings, collecting a multitude of written evidence and commissioning expert opinions and a number of complementary opinions, the Sofia District Court dismissed the applicants' claim on 8 March 1999. Upon appeal by the applicants, the Sofia City Court and subsequently the Supreme Court of Cassation upheld the District Court's judgment, on 19 June 2003 and 22 April 2005, respectively.
Subsequently the applicants petitioned the prosecution office that criminal proceedings be opened against one of the court-appointed experts for a wrong expert conclusion and concealing of documents, and against their lawyer for negligent exercise of his duties.
The applicants also filed with the court a criminal complaint against another expert in the rei vindicatio proceedings accusing him of a wrong expert conclusion and theft of a document. In a final decision of 6 March 2006 the Supreme Court of Cassation rejected the complaint as inadmissible, reasoning that the offence allegedly committed by the expert was not a privately prosecutable one.
The applicants submitted a complaint against their lawyer to the Supreme Bar Council. In a decision of 15 July 2005 it dismissed the complaint, finding that the lawyer had not breached his duties.
The applicants also brought a declaratory action against the lawyer for establishment of the fact of the negligence. In a final decision of 7 April 2005 the Supreme Court of Cassation declared the claim inadmissible as another legal procedure under the tort law existed for the claimed damage.
The applicants also brought an action for damages against the employer of one of the experts. In a judgment of 11 June 2008 the Sofia District Court dismissed the claim, reasoning that there was no link between the expert's employment and his freelance activities as a forensic expert.
COMPLAINTS
1. The applicants complained under Article 6 § 1 of the Convention about the unreasonable length of the rei vindicatio proceedings.
2. The applicants further complained under Articles 6 § 1 that (a) the rei vindicatio proceedings had been unfair and the courts had decided wrongly in their assessment of the evidence; (b) that the prosecution authorities had not investigated their complaints against their lawyer and the expert appointed in the rei vindication proceedings; (c) that the courts had unlawfully dismissed their actions against their lawyer and the experts appointed in the rei vindicatio proceedings.
THE LAW
1. The applicants complained about the length of the rei vindicatio proceedings to which they had been party. They relied on Article 6 § 1 of the Convention which, in so far as relevant, provides as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
By a letter dated 3 February 2010 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The declaration, in particular, read:
“[...] The Government hereby wish to express [...] its acknowledgment of the unreasonable duration of the domestic proceedings in which the applicants were involved.
Consequently, the Government are prepared to pay to each of the applicants Georgi Asenov Petrov and Stoyanka Asenova Petrova the amount of 3000 EUR which they consider reasonable in the light of the Court's case law. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into Bulgarian [levs] at the exchange rate applicable at the time of payment, and will be free of any taxes that may be chargeable [...]. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the [Convention]. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
The Government, therefore, request that this application be struck out of the Court's list of cases pursuant to Article 37 § 1 (c) of the Convention. [...]”
In a letter of 8 March 2010 the applicants requested the Court to continue examining the case.
The Court recalls that Article 37 § 1 (c) of the Convention enables it to strike a case out of its list where:
“[...] for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court also recalls that in certain circumstances it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
Having regard to the acknowledgements contained in the Government's declaration, as well as to the amount of compensation proposed, which is compatible with the amounts awarded in similar cases, the Court considers that it is no longer justified to continue the examination of the present application, within the meaning of Article 37 § 1 (c) of the Convention.
In view of its extensive and clear case law on length of civil proceedings, including in cases brought against Bulgaria (see, for example, Rachevi v. Bulgaria, no. 47877/99, 23 September 2004; Vatevi v. Bulgaria, no. 55956/00, 28 September 2006; Kambourov v. Bulgaria, no. 55350/00, 14 February 2008), the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Accordingly, this part of the application should be struck out of the list.
2. The applicants also complained that (a) the rei vindicatio proceedings had been unfair and the courts had decided wrongly in their assessment of the evidence; (b) that the prosecution authorities had not investigated their complaints against their lawyer and the expert appointed in the rei vindication proceedings; (c) that the courts had unlawfully dismissed their actions against their lawyer and the experts appointed in the rei vindicatio proceedings. They relied on Article 6 § 1 of the Convention, which, in so far as relevant, provides as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court has examined 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.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government's declaration in respect of the length of the proceedings complaint under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases, in so far as it relates to the above complaint, in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy