TONCHEV v. BULGARIA (II)

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18527/02
by Krastiu Dimitrov TONCHEV
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 14 October 2008 as a Chamber composed of:

Rait Maruste, President,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 27 March 2002,

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, Mr Krastiu Dimitrov Tonchev, is a Bulgarian national who was born in 1941 and lives in Vratsa. He is represented before the Court by Mr D.G. Tonchev, a lawyer practising in Vratsa. The Bulgarian Government (“the Government”) are represented by their Agent, Ms M. Kotseva, 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 incident of 25 March 1993

At about 2.30 p.m. on 25 March 1993 the applicant's five‑year‑old son was playing in the street and started spraying a neighbour, Mr M.T., with water from a bottle. According to the findings of the national courts which examined the case later, Mr M.T. asked him to stop. The applicant's son did not heed his call. Then Mr M.T. took a five‑centimetre‑long piece of tile, and threw it at the applicant's son, hitting him in the forehead and the left eyelid. The injuries suffered by the applicant's son were a longitudinal wound on the left eyebrow measuring 11 by 3 millimetres and a bruise of the skin of the lower left eyelid measuring 5 by 3 millimetres. The applicant alleged that his son had additionally suffered psychological trauma, but no such findings were made by the courts.

2. The proceedings against Mr M.T.

On 3 August 1993 the applicant, acting on behalf of his son, lodged with the Vratsa District Court a criminal complaint and a claim for damages against Mr M.T. He alleged that Mr M.T. had wilfully inflicted actual minor bodily harm on his son, and requested that he be sentenced to two years' imprisonment and be ordered to pay 100,000 old Bulgarian levs (BGL), plus interest, as compensation for his son's pain and suffering.

At the first hearing, which took place on 15 November 1993, the court invited the parties to settle the case. Mr M.T. expressed his regret and said that he was willing to reach an arrangement with the applicant, but the latter refused. The court adjourned the case to allow the parties to call witnesses.

At the next hearing, held on 18 April 1994, the court again invited the parties to settle, to no avail. It heard Mr M.T. and three witnesses and adjourned the case to allow the applicant to call two more witnesses.

Four hearings, listed for 19 October 1994, 22 February, 14 June and 18 October 1995, failed to take place: the first because witnesses called by the applicant did not show up; the second because the applicant, who was taking care of his sick son in hospital, and Mr M.T.'s lawyer were absent; the third because the applicant was ill and could not attend; and the fourth because neither the applicant, who was ill, nor Mr M.T. appeared. At the fourth hearing the court noted that Mr M.T. had not given good reasons for his absence and ordered that he be compelled to attend the next hearing.

A hearing took place on 11 December 1995. The court again invited the parties to settle, without success. It heard one witness and appointed a medical expert to check the documents in the case file and examine the applicant's son, and report on the exact extent of his injuries. The applicant increased the claim for damages to BGL 200,000.

At a hearing held on 13 March 1996, in spite of the absence of the applicant's lawyer, the court heard the medical expert and admitted his report in evidence. The applicant requested a neurological expert report on his son's condition. The court turned down his request, heard the parties' closing argument and reserved judgment.

In a judgment of the same day the Vratsa District Court found Mr M.T. guilty of wilfully inflicting actual minor bodily harm on the applicant's son, contrary to Article 130 § 1 of the 1968 Criminal Code (see below, Relevant domestic law and practice). It sentenced him to one year's imprisonment, suspended. It awarded the applicant's son BGL 8,000, plus interest.

The applicant appealed to the Vratsa Regional Court, arguing that there had been material breaches of the rules of procedure, that the court had erred in assessing the facts and that the sentence was too lenient.

A hearing listed for 18 April 1996 was adjourned, as Mr M.T.'s lawyer was busy with another case and could not attend.

At a hearing held on 20 June 1996 the court unsuccessfully invited the parties to settle. It heard their closing argument and reserved judgment.

On 29 July 1996 the Vratsa Regional Court quashed the lower court's judgment and remitted the case. It held that by proceeding on 13 March 1996 in the absence of the applicant's lawyer the lower court had infringed his defence rights, which was a material breach of the rules of procedure. The court went on to say that the failure to question two witnesses requested by the applicant and to appoint a neurological expert had led to an insufficient evidentiary basis.

On remittal, the Vratsa District Court held a hearing on 24 June 1997. It heard Mr M.T. The applicant reiterated his request for a neurological expert to be appointed and increased the claim for damages to BGL 6,300,000. The court commissioned a medical report, to be drawn up by three experts, and adjourned the case.

At the next hearing, which took place on 23 April 1998, the court heard a medical expert and one witness, and admitted the expert's report in evidence. The applicant requested a further expert report, to be drawn up by three experts. The court granted his request.

Two hearings, listed for 11 March and 11 May 1999, failed to take place, the first because the applicant was ill and the second because Mr M.T.'s lawyer was attending a colleague's funeral.

A hearing was held on 14 July 1999. Mr M.T. asked the court to adjourn the case, as his lawyer was absent. The court turned down his request, saying that the case had already been adjourned many times and that the request was an abuse of the rights of the defence. It heard the parties' closing argument and reserved judgment.

In a judgment of the same date the Vratsa District Court again found Mr M.T. guilty of inflicting minor bodily harm on the applicant's son. It sentenced him to six months' imprisonment and ordered him to pay the applicant's son 10 new Bulgarian levs (BGN)[1], plus interest.

Both the applicant and Mr M.T. appealed to the Vratsa Regional Court.

At a hearing held on 23 November 2000 Mr M.T.'s lawyer asked the court to discontinue the proceedings, as the relevant limitation period had expired. In a judgment of the same date the Vratsa Regional Court once again quashed the lower court's judgment and remitted the case. It held that by proceeding in the absence of Mr M.T.'s lawyer at the last hearing the lower court had infringed his defence rights. It had also failed properly to admit for examination the applicant's increased claim for damages. The court went on to say that it could not rule on the merits of the case, as the relevant limitation period had expired in September 2000. However, it was not competent to discontinue the proceedings on this ground, such matters falling in the exclusive jurisdiction of the first‑instance court. It therefore instructed that court to apply Article 81 § 3 of the 1968 Criminal Code (see Relevant domestic law and practice below).

Accordingly, in a decision of 27 December 2000 the Vratsa District Court discontinued the proceedings, noting that the relevant limitation period had expired. The alleged offence had been committed on 25 March 1993, that is more than seven and a half years earlier, which barred any further prosecution. Upon the appeal of the applicant, the Vratsa Regional Court upheld the discontinuation in a judgment of 4 April 20001. The applicant's ensuing appeal on points of law was dismissed by the Supreme Court of Cassation in a final judgment of 12 October 2001.

2. The applicant's attempts to obtain restitution of certain agricultural lands

On an unspecified date in 1991 or 1992 the applicant's mother requested the restitution of several plots of agricultural land which had been nationalised in the 1950s. In two decisions, of 12 October 1992 and 24 February 1993, the competent agricultural lands commission partly granted and partly denied her claims. On 5 March and 14 July 1993 the applicant's mother sought judicial review of the decisions by the Vratsa District Court. Her applications were dismissed on unspecified dates before 1997. Apparently she did not appeal further.

On 30 August 1994 the lands commission drew up a redistribution plan (see Relevant domestic law and practice below), whereby it allotted to the applicant's mother parcels of land which were different from those which she had apparently owned before the nationalisation. The plan was published in the State Gazette on 14 October 1994. The applicant's mother sought judicial review of the plan, but her application was dismissed by the Vratsa Regional Court on an unspecified date before 1997. She did not appeal further.

On 20 November 1997 the applicant sought judicial review of the same redistribution plan. After asking him to specify whether he sought review of the original plan and obtaining his confirmation on this point, in a decision of 15 May 2001 the Vratsa Regional Court declared his application inadmissible as being out of time. The Supreme Administrative Court upheld this with identical reasoning on 3 October 2001.

Pursuant to the objections of a number of persons, including the applicant, on 31 October 2001 the Minister of Agriculture ordered that the redistribution plan be redrawn due to alleged obvious factual mistakes in it. On 5 February 1998 the lands commission found that most of the objections were valid, and recommended that the plan be redrawn. On 23 November 1998 the Minister of Agriculture made an order to that effect. In March 1999 the commission tasked with the redrawing made an on-site inspection in the presence of the applicant. It is unclear when the revised plan was completed. It does not appear that the applicant sought judicial review of the revised plan.

B. Relevant domestic law and practice

1. Remedies for minor bodily harm

(a) Criminal prosecution

Article 130 § 1 of the 1968 Criminal Code makes it an offence to wilfully inflict actual minor bodily harm, defined as an injury to health other then those specifically set out in Articles 128 § 2 and 129 § 2 of the Code, which deal with grievous and intermediate bodily harm. The maximum penalty on conviction is two years' imprisonment or compulsory labour. Aggravated actual minor bodily harm, which includes cases where it has been inflicted on a child no more than fourteen years of age, carries a maximum penalty of three years' imprisonment (Article 131 § 1 (4) of the Code).

Unlike grievous and intermediate bodily harm, as a rule minor bodily harm is privately prosecutable (Article 161 of the 1968 Code). This means that the prosecution is directly brought by the victim of the offence and not by the public prosecutor (Article 240 § 1 (2) of the 1974 Code of Criminal Procedure, superseded by Article 247 § 1 (2) of the 2005 Code of Criminal Procedure). In exceptional cases, where the aggrieved parties cannot ensure the defence of their interests because of frailty or dependency on the alleged perpetrator, the public prosecutor may bring a prosecution in their stead or intervene in the proceedings (Articles 45-46a of the 1974 Code and Articles 48‑50 of the 2005 Code).

(b) Limitation periods for criminal prosecution

By Article 79 § 1 (2) of the 1968 Criminal Code, prosecution is barred after the expiry of a prescribed limitation period. These periods differ depending on the severity of the maximum penalty. The limitation period for actual minor bodily harm, as punishable at the relevant time, was five years (Article 80 § 1 (4) of the Code). The running of time is interrupted by each act of criminal prosecution (Article 81 § 2 of the Code). Such interruptions notwithstanding, prosecution is barred if seven and a half years have elapsed since the commission of the alleged offence (Article 81 § 3 of the Code).

(c) Tort claims

Section 45(1) of the 1951 Obligations and Contracts Act provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. The limitation period for bringing a tort claim is five years (section 110 of the Act). It starts to run when the identity of the tortfeasor is established (section 114(3) of the Act). By section 115(1)(g) of the Act, time ceases to run during the “pendency of the judicial proceedings relating to the [tort] claim”. In some cases the courts construed this phrase as meaning that time stops running not only during the pendency of a civil suit, but also during the pendency of criminal proceedings relating to the same facts, even at their preliminary investigation phase (реш. № 456 от 18 май 2000 г. по н.д. № 435/1999 г., ВКС, І н.о.). In other cases they held that even the bringing of a civil claim in the context of a preliminary investigation does not stop the running of time, because these proceedings are not “judicial” (реш. № 2110 от 28 март 2005 г. по гр.д. № 3159/2002 г., ВКС, ІІІ г.о.). The issue was settled by the General Assembly of the Civil and the Commercial Chambers of the Supreme Court of Cassation, which held, in a binding interpretative decision of 5 April 2006, that time stops running under section 115(1)(g) of the Act only when the victim brings a claim against the tortfeasor, whether in the context of the criminal proceedings or in separate civil proceedings (тълк. реш. № 5 от 5 април 2006 г. по тълк. д. № 5/2005 г., ОСГК и ОСТК на ВКС).

(d) Relevant procedural provisions

Article 60 § 1 of the 1974 Code of Criminal Procedure, as in force at the material time, provided that the victim of an offence who had suffered damage could bring a civil claim in the context of the criminal proceedings. Under paragraph 2 of that provision, the aggrieved party could lodge such a claim only if it had not already commenced a separate civil action. Article 84 of the 2005 Code of Criminal Procedure is phrased in identical terms, the only difference being that it does not allow a civil claim to be lodged during the preliminary investigation, but only after the accused has been brought to trial.

If the aggrieved party has brought a separate civil action and criminal proceedings are later instituted, the civil court has to stay the proceedings pending the conclusion of the criminal proceedings (Article 182 § 1 (d) and (e) of the 1952 Code of Civil Procedure, superseded by Article 229 § 1 (4) and (5) of the 2007 Code of Civil Procedure), because the criminal court's judgment – if the criminal proceedings result in one – will be binding on the civil court on the issues whether or not the act has been committed, whether or not it is unlawful, and whether or not the offender is guilty (Article 222 of the 1952 Code of Civil Procedure, superseded by Article 300 of the 2007 Code of Civil Procedure, and Article 372 § 2 of the 1974 Code of Criminal Procedure, superseded by Article 413 § 2 of the 2005 Code of Criminal Procedure).

The examination of the civil claim may not cause the criminal case to be adjourned (Article 64 § 2 of the 1974 Code of Criminal Procedure, superseded by Article 88 § 2 of the 2005 Code of Criminal Procedure). If the criminal proceedings are discontinued, the civil claim is not determined, but may be lodged separately with the civil courts (Article 64 § 3 of the 1974 Code, superseded by Article 88 § 3 of the 2005 Code; реш. № 225 от 20 септември 2004 г. по н. д. № 849/2003 г., ВКС, I н. о.). However, in some cases the criminal courts do examine the civil claim even though they find that the criminal proceedings are to be discontinued due to the lapse of the applicable limitation period (реш. № 635 от 3 юни 2003 г. по н.д. № 536/ 2002 г., ВКС, ІІІ н.о.).

2. Restitution of agricultural lands

The 1991 Agricultural Lands Act and its implementing regulations, as in force at the material time, provided, inter alia, that persons, or their heirs, whose land had been nationalised could request its restitution under certain conditions (section 10 of the Act). As a rule, restitution could be obtained through a request to the competent agricultural lands commission (section 11(1) of the Act), whose decisions were reviewable by the competent district court (section 14(3) of the Act).

Restitution could be “in actual boundaries” or through a redistribution plan. This plan was reviewable by the competent regional court (section 25(6) of the implementing regulations). It could also be redrawn by order of the Minister of Agriculture due to alleged obvious factual mistakes in it (section 26(1) of the implementing regulations). The decision approving the revised plan was also subject to judicial review (section 26(6) of the implementing regulations).

COMPLAINTS

1. The applicant complained that the criminal proceedings against Mr M.T. had dragged on for too long and had failed to provide effective protection against the ill-treatment to which the latter had subjected his son.

2. The applicant complained about the length of the proceedings against Mr M.T.

3. The applicant complained that the land belonging to his ancestors had not been restored to him on account of unfair judicial proceedings. He also complained that the land had not been restored because it was more fertile than other pieces of land.

4. Finally, the applicant alleged that he had not had effective remedies in respect of the above complaints.

THE LAW

1. The applicant complained that the criminal proceedings against Mr M.T. had dragged on for too long and had failed to provide effective protection against the ill-treatment to which the latter had subjected his son. In his view, they had exceeded a reasonable time.

The respondent Government submitted that the complaint should not be examined under Article 3 of the Convention as the applicant had not expressly relied on this provision. In the alternative, they submitted that the treatment to which his son had been subjected – a single not very violent blow with a small piece of tile – had not been sufficiently serious to fall within the ambit of Article 3. In any event, the case against Mr M.T. had been examined three times by the first-instance court, three times by the second-instance court and once by the Supreme Court of Cassation. The proceedings had taken a long time – and had as a result been discontinued – because of the numerous adjournments requested by the applicant and Mr M.T. and the failure of witnesses to appear. Even though no criminal sanction had been imposed on Mr M.T., it was still open to the applicant to claim damages from him in separate civil action under section 45 of the 1951 Contracts and Obligations Act.

The applicant replied that the Court was free to give to the facts any legal characterisation which it saw fit. In his view, the minimum level of severity required by Article 3 had clearly been exceeded. The legal characterisation of the offence as the infliction of minor bodily harm was not paramount on this point. The psychological repercussions of the attack on a young child's mind were very serious – they had caused his son feelings of terror. The exact extent of the psychological trauma was unknown, as the national courts had declined to commission an expert report on that. Moreover, the impact point of the tile had been very close to his son's eye and could have caused him to become blind.

The applicant further submitted that the numerous adjournments of the case had been indicative of the national courts' unwillingness or incapacity to dispose of it in good time, before the expiry of the limitation period. The availability of a separate civil action was immaterial for the assessment of the effectiveness of the criminal proceedings, as these were independent avenues of redress.

The Court considers that the complaints fall to be examined under Articles 3, 6 § 1 and 8 § 1 of the Convention, which provide, in so far as relevant:

Article 3 (prohibition of torture)

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 6 § 1 (right to a fair hearing)

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 8 (right to respect for private ... life)

“Everyone has the right to respect for his private ... life...”

The Court further considers, in the light of the parties' submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

2. The Court considers that the applicant's complaints relating to the refusal to restore certain plots of land to him and the related proceedings fall to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it 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.

3. In respect of his complaint about the lack of effective remedies in respect of the violations alleged above the applicant 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.”

The Court observes that the applicant did not specify, either in his initial application or in his observations in reply to those of the respondent Government, in what respect Article 13 had, in his view, been breached (see Jechev v. Bulgaria (dec.), no. 57045/00, 2 May 2006).

It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court

By a majority, declares admissible, without prejudging the merits, the complaints, examined under Article 6 § 1 of the Convention, concerning the length of the proceedings against Mr M.T. and the applicant's son's access to a court;

Unanimously, declares admissible, without prejudging the merits, the complaints, examined under Articles 3 and 8 of the Convention, concerning the State's positive obligations to provide effective protection to the applicant's son;

Unanimously, declares inadmissible the remainder of the application.

              Claudia WesterdiekRait Maruste
RegistrarPresident

[1]. On 5 July 1999 the Bulgarian lev was revalorised. One new Bulgarian lev (BGN) equals 1,000 old Bulgarian levs (BGL).

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