FOURTH SECTION
DECISION
Applications nos. 6194/11 and 34887/11
Polyana Ivanova VALCHEVA against Bulgaria
and Enyo Nikolov ABRASHEV against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 18 June 2013 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens‑Passos, Section Registrar,
Having regard to the above applications lodged on 3 December 2010 and 25 May 2011 respectively,
Having regard to this Court’s pilot judgments in the cases of Finger v. Bulgaria (no. 37346/05, 10 May 2011) and Dimitrov and Hamanov v. Bulgaria (nos. 48059/06 and 2708/09, 10 May 2011),
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant in the second application, Mr Abrashev,
Noting that (i) after notice of the application was given to the respondent Government, by letter dated 21 March 2013 their observations were sent to the applicant in the first application, Ms Valcheva, who was requested to submit, by 15 April 2013, observations in reply, together with any claims for just satisfaction; that (ii) Ms Valcheva did not reply to that letter; that (iii) by further letter, dated 30 April 2013 and sent by registered post, Ms Valcheva’s attention was drawn to the fact that the time‑limit for submitting observations and claims had expired and that no extension of time had been requested, and that she was reminded that, under Article 37 § 1 (a) of the Convention, the Court may strike a case out of its list where the circumstances lead to the conclusion that the applicant does not intend to pursue the application; and, lastly, that (iv) Ms Valcheva received that letter on 13 May 2013 and has until now not replied to it,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first application (no. 6194/11), Ms Polyana Ivanova Valcheva, is a Bulgarian national who was born in 1945 and lives in Lovech. She is not legally represented.
2. The applicant in the second application (no. 34887/11), Mr Enyo Nikolov Abrashev, is a Bulgarian national who was born in 1957 and lives in Stara Zagora. He is represented before the Court by Mr M. Ekimdzhiev and Ms S. Stefanova, lawyers practising in Plovdiv.
3. The respondent Government (“the Government”) were represented by their Agent, Ms I. Stancheva‑Chinova, of the Ministry of Justice.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The criminal proceedings against Ms Valcheva
5. On 11 February 2004 the Lovech District Prosecutor’s Office, having been tipped off by Ms Valcheva, a member of the Lovech Bar, that her former de facto spouse had committed documentary fraud, asked the Lovech police to inquire into the matter. On 1 March 2004 the police proposed that criminal proceedings be brought against Ms Valcheva’s de facto spouse.
6. On 30 March 2004 the Lovech District Prosecutor’s Office opened criminal proceedings against him. In the following days it gathered evidence, heard eleven witnesses, including Ms Valcheva, and obtained a graphological expert report.
7. As the evidence led the investigator in charge of the case to believe that Ms Valcheva had forged an employment certificate to enable her de facto spouse to obtain a retirement pension, on 30 June 2004 he brought charges of documentary fraud against her.
8. On 7 July 2004 Ms Valcheva was allowed to inspect the case file, and on 15 July 2004 the investigator proposed that she be brought to trial.
9. On 22 July 2004 the Lovech District Prosecutor’s Office indicted Ms Valcheva and her de facto spouse, alleging that he had committed documentary fraud by using the employment certificate to obtain a retirement pension, and that she had consciously enabled him to commit that fraud by forging that certificate.
10. The Lovech District Court held a hearing on 20 October 2004. Noting that the alleged victim of the offence – the social security authorities – had not appeared, it decided to adjourn the case.
11. The next hearing took place on 15 December 2004. The social security authorities brought a civil claim against Ms Valcheva and her de facto spouse, seeking repayment, plus interest, of the amounts that the latter had obtained by way of a retirement pension. The president of the panel hearing the case recused himself, citing the fact that Ms Valcheva was a member of the Lovech Bar. On 21, 27, 29 and 30 December 2004 all other judges of the Lovech District Court also declined to sit in the case, citing the same reason. Accordingly, on 4 January 2005 the court’s president sent the case to the Supreme Court of Cassation for a decision to which other district court the case was to be transferred, and on 2 February 2005 the Supreme Court of Cassation chose the Pleven District Court.
12. The trial before the Pleven District Court was due to start on 14 June 2005. However, on that date the court found that it could not proceed with the case because the prosecution had not appeared, and decided to adjourn it. On 28 November 2005 the case was again adjourned because Ms Valcheva’s de facto spouse was ill and could not attend.
13. The trial started on 3 April 2006. The Pleven District Court heard eight witnesses and an expert and admitted an expert report.
14. On an unspecified date in 2006 the social security authorities withdrew their civil claim against Ms Valcheva’s de facto spouse because he had repaid the amounts that he had obtained by way of a retirement pension. At the next hearing, held on 26 September 2005, he entered into a plea agreement with the prosecution. After approving the agreement, the panel hearing the case recused themselves by reference to a rule of criminal procedure barring judges and lay judges from sitting in a case in which they had approved a plea agreement.
15. The case was then assigned to another panel, which held hearings on 12 January, 26 March, 16 May, 21 September and 5 December 2007.
16. A hearing listed for 29 February 2008 had to be postponed because it coincided with the annual plenary meeting of the Pleven District Court, and took place on 31 March 2008. The Pleven District Prosecutor’s Office asked the court to discontinue the trial and refer the case back to the Lovech District Prosecutor’s Office with a view to clarifying the charges against Ms Valcheva. The court, observing that the indictment did not clearly spell out the time, the place or the manner of commission of the offence alleged against her, acceded to the request.
17. On 7 May 2008 the Lovech District Prosecutor’s Office lodged an amended indictment against Ms Valcheva with the Lovech District Court. On 21 May 2008 the judge to whom the case had been assigned again withdrew, citing his earlier decision to withdraw from the case in 2005. Noting that the Supreme Court of Cassation had already determined which court should deal with the case, on 17 November 2008 the president of the Lovech District Court sent it to the Pleven District Court.
18. On 12 January 2009 the Pleven District Court set the case down for trial. It was due to take place on 23 April 2009 but was adjourned due to Ms Valcheva’s failure to appear without showing cause. The court fined her for that failure. She appealed the fine.
19. The trial was held on 30 November 2009 and 12 February 2010. On the last‑mentioned date the Pleven District Court acquitted Ms Valcheva, finding that the charges against her had not been made out to the required criminal standard of proof.
20. The prosecution appealed. The Pleven Regional Court heard the appeal on 1 and 29 June 2010. In a final judgment of 7 July 2010, it fully upheld Ms Valcheva’s acquittal.
2. The criminal proceedings against Mr Abrashev
21. On 6 March 2002 the Stara Zagora Regional Prosecutor’s Office opened criminal proceedings against Mr Abrashev on suspicion that he had committed aggravated documentary fraud.
22. On 10 May 2002 Mr Abrashev was charged with attempting, with the help of an accomplice, to obtain a large sum of money by using a false promissory note. Mr Abrashev’s alleged accomplice was likewise charged the same day.
23. Having interviewed the two accused and a number of witnesses, and having obtained other evidence, including a graphological expert report, on 15 October 2002 the investigator in charge of the case proposed that Mr Abrashev and his alleged accomplice be brought to trial.
24. On 29 October 2002 the Stara Zagora Regional Prosecutor’s Office referred the case back to the investigator, citing a number of omissions in the investigation. The investigator objected to the referral, but on 21 November 2002 the Stara Zagora Regional Prosecutor’s Office dismissed his objections.
25. On 27 January 2003 the investigator ordered a financial expert report. The report was ready on 6 February 2003. On 24 March 2003 the investigator again proposed that Mr Abrashev be brought to trial. By contrast, this time he proposed that the charges against Mr Abrashev’s alleged accomplice be dropped for lack of sufficient evidence.
26. On 18 April 2003 the Stara Zagora Regional Prosecutor’s Office decided that the charges against Mr Abrashev’s alleged accomplice should be dropped and that Mr Abrashev should not be prosecuted for documentary fraud but simple fraud. It went on to note that the prosecution of simple frauds fell within the competence of the Stara Zagora District Prosecutor’s Office, and referred the case to that office.
27. On 13 May 2003 the investigator laid the amended charges against Mr Abrashev, accusing him of aggravated simple fraud, and on 4 June 2003 proposed that he be brought to trial.
28. On 13 June 2003 the Stara Zagora District Prosecutor’s Office decided to discontinue the proceedings, considering that the charges against Mr Abrashev had not been made out and that the facts alleged against him did not constitute an offence. On an application by the victim of the alleged offence, on 11 July 2003 the Stara Zagora District Court set the discontinuance aside.
29. On 6 August 2003 the Stara Zagora District Prosecutor’s Office again discontinued the proceedings. The victim of the alleged offence again sought judicial review. On 24 October 2003 the Stara Zagora District Court found that it could not examine the application, because the lawyer who had lodged it had not enclosed with it a power of attorney. The victim then asked the Stara Zagora District Prosecutor’s Office to vary its decision to discontinue the proceedings – as possible when it had not been reviewed by a court on the merits –, and on 18 November 2003 that office acceded to her request. Mr Abrashev appealed to the Stara Zagora Regional Prosecutor’s Office, but on 23 January 2004 that office upheld the lower office’s decision. Mr Abrashev appealed further, but on 17 February 2004 the Plovdiv Appellate Prosecutor’s Office also upheld the lower offices’ decisions.
30. On 15 June 2004 the Stara Zagora District Prosecutor’s Office indicted Mr Abrashev, but on 9 November 2004 the Stara Zagora District Court referred the case back to it, citing defects in the indictment.
31. On 13 December 2004 the Stara Zagora District Prosecutor’s Office again indicted Mr Abrashev.
32. This time the case proceeded to trial, which took place on 7 June, 6 July and 8 November 2005, and on 20 February, 13 April and 25 May 2006. The Stara Zagora District Court heard a number of witnesses and obtained an expert report. One trial sitting was adjourned because Mr Abrashev was ill and could not attend, and another was adjourned due to the absence of witnesses. On 25 May 2006 the Stara Zagora District Court acquitted Mr Abrashev.
33. On 31 May 2006 the victim of the alleged offence, who had taken part in the trial as a private prosecutor, appealed. The public prosecutor likewise appealed on 9 June 2006. Having heard the appeals on 8 November 2006, on 8 December 2006 the Stara Zagora Regional Court decided to quash the lower court’s judgment and to remit the case.
34. On 17 January 2007 the Stara Zagora District Court in turn decided to refer the case back to the prosecuting authorities, citing, inter alia, defects in the indictment.
35. On 26 March 2007 the Stara Zagora District Prosecutor’s Office presented the amended charges to Mr Abrashev. On 30 May 2007 it indicted him.
36. On 31 July 2007 the Stara Zagora District Court, considering that the facts of which Mr Abrashev stood accused did not constitute an offence, decided to discontinue the proceedings against him. The public prosecutor and the private prosecutor both appealed. On 12 December 2007 the Stara Zagora Regional Court quashed the discontinuance, holding that it had been improper for the lower court to proceed in that manner, and remitted the case to a different formation.
37. On 4 March 2008 the Stara Zagora District Court once more referred the case back to the prosecution, citing defects in the indictment.
38. On 29 April 2008 the Stara Zagora District Prosecutor’s Office again indicted Mr Abrashev.
39. The case proceeded to trial, which took place on 26 September, 12 November and 11 December 2008, and on 18 February, 19 March and 23 April 2009. One trial sitting was adjourned because Mr Abrashev’s counsel was busy elsewhere and could not attend. On 23 April 2009 the Stara Zagora District Court acquitted Mr Abrashev.
40. The public prosecutor and the private prosecutor both appealed. The first hearing before the Stara Zagora Regional Court, initially fixed for 14 October 2009, had to be postponed because counsel for Mr Abrashev was busy elsewhere. It took place on 28 October 2009. The second hearing was held on 2 December 2009. On 7 January 2010 the Stara Zagora Regional Court quashed the lower court’s judgment and referred the case back to the prosecuting authorities, citing their failure to specify the charges against Mr Abrashev.
41. In February 2010 the Stara Zagora District Prosecutor’s Office again indicted Mr Abrashev.
42. On 11 August 2010 the Stara Zagora District Court, considering that the facts of which Mr Abrashev stood accused did not constitute an offence, decided to discontinue the proceedings against him. The public prosecutor and the private prosecutor both appealed. Having heard the appeals on 20 October 2010, in a final decision of 6 January 2011 the Stara Zagora Regional Court upheld the lower court’s decision.
43. On 16 February 2011 the victim of the alleged offence asked the Chief Prosecutor to seek re‑opening of the proceedings. On 18 April 2011 the Chief Prosecutor requested the Supreme Court of Cassation to re‑open the proceedings, citing flagrant breaches of the rules of procedure and the substantive law in the making of the Stara Zagora District Court’s ruling of 11 August 2010 and the Stara Zagora Regional Court’s ruling of 6 January 2011. The Supreme Court of Cassation heard the request on 18 May 2011. On 28 June 2011 it decided to re‑open the case and refer it back to the Stara Zagora District Court for trial.
44. The Stara Zagora District Court held five hearings: on 17 October and 15 December 2011, and on 13 February, 2 April and 21 May 2012. At the last of those hearings it found Mr Abrashev not guilty.
45. The public prosecutor and the private prosecutor both appealed. A number of judges at the Stara Zagora Regional Court withdrew from sitting in the case because they had previously sat in it. The court heard the appeal on 14 November 2012 and, in a judgment of the same date, quashed Mr Abrashev’s acquittal, convicted him and sentenced him to nine months’ imprisonment, suspended.
46. Both Mr Abrashev and the private prosecutor appealed on points of law. The hearing before the Supreme Court of Cassation was initially listed for 28 January 2013, but was adjourned at the request of counsel for Mr Abrashev, and took place on 22 February 2013. In a final judgment of 4 March 2013, the Supreme Court of Cassation quashed the lower court’s judgment and acquitted Mr Abrashev.
B. Relevant domestic law
1. The Inspectorate attached to the Supreme Judicial Council
47. A 2007 amendment to the 1991 Constitution added a new Article 132a, which envisaged the creation of an Inspectorate attached to the Supreme Judicial Council. The Inspectorate, which consists of a Chief Inspector and ten inspectors, is tasked with checking the work of the judiciary without infringing the independence of judges, prosecutors or investigators (Article 132a § 6). It can act either of its own motion or pursuant to reports by private individuals, legal persons or State authorities (Article 132a § 7). It has the power to refer matters to the appropriate authorities, or make suggestions or reports to them (Article 132a § 9). Both the Chief Inspector and the inspectors are elected by Parliament by a majority of two thirds; the term of office of the Chief Inspector is five years and that of the inspectors is four years (Article 132a §§ 2 and 3).
48. The manner of election and dismissal of the inspectors is laid down in sections 42‑53 of the Judiciary Act 2007 (“the 2007 Act”). They must be lawyers having high professional and moral qualities (section 42(1)). The Chief Inspector must have at least fifteen years of professional experience, and the inspectors at least twelve years of professional experience (section 42(2) and (3)). They cannot engage in a number of activities – such as business or being member of a political party – that might prejudice their independence (section 43 read in conjunction with section 18(1)). They may be dismissed before the expiry of their term of office only if they resign, are finally convicted of a criminal offence, are unable to carry out their duties for more than one year, are deprived of the right to exercise as a lawyer, heavily or systematically breach their duties or commit acts which tarnish the prestige of the judiciary, or do not cease activities that they are prohibited from pursuing while in office (section 48(1)). The proposal for dismissal must be made by at least one‑fifth of the members of Parliament (section 48(2)). The remuneration of the Chief Inspector is equal to that of a section president of the Supreme Court of Cassation, and the remuneration of the inspectors is equal to that of a judge of that court (section 51).
2. The amendments to the 2007 Act
49. On 6 April 2012 the Government laid before Parliament a bill for the amendment of the 2007 Act. The explanatory notes to the bill said the following:
“Slow judicial proceedings lead to an enormous amount of judgments of the European Court of Human Rights against Bulgaria. In its judgments concerning the right to a fair trial within a reasonable time the European Court of Human Rights (‘the ECtHR’) emphasises the need for the introduction of an effective domestic remedy in respect of such breaches. With a view to securing the effective exercise of the right to a fair trial within a reasonable time, in its case-law the ECtHR points to the need to introduce a remedy capable of providing compensation for damage resulting from delays in proceedings (compensatory remedy).
The systemic problem found by the ECtHR in relation to the excessive duration of criminal and civil cases in the Republic of Bulgaria calls for urgent legislative measures to introduce the remedies suggested by the European Court.
With a view to the effective use of the available resources, it is expedient to give the power to find a breach and set compensation to an existing authority with similar competences. In view of the constitutional function of the Inspectorate attached to the Supreme Judicial Council to check the work of the judiciary (Article 132a § 6 of the Constitution) and more specifically its power under section 54(1)(2) of the Judiciary Act [2007] to check the processing of court, prosecutors’ and investigation cases and their completion within the prescribed time-limits, the bill envisages the creation of a special unit attached to the Inspectorate. That special unit will examine and decide complaints relating to breaches concerning the unreasonable length of completed civil, administrative and criminal cases, as well as discontinued pre-trial proceedings. An important premise for laying down the procedure in such a way is the Inspectorate’s constitutional obligation to carry out checks pursuant to reports by private individuals and legal persons (Article 132a § 7 of the Constitution).
The right to complain is open to all persons who may suffer damage as a result of delays in proceedings: parties to judicial proceedings (civil, administrative and criminal) or persons subjected to the pre-trial phase of criminal proceedings (accused, victims and wronged legal persons).
The envisaged procedure will be a light (simple) way of obtaining redress. The complainant will not have to produce evidence – it will be gathered by the checking panel of their own motion; no fees will be due; the proceedings will finish in six months with a settlement, which will ensure fast payment of the compensation.
Since the proposed procedure envisages a light and fast mode of redress, there is a cap on the maximum amount of compensation. This cap conforms with the ECtHR’s case-law on the amount of compensation awarded in past cases.
The transitional and concluding provisions allow the procedure to be applied in respect of complaints already lodged through the ECtHR.
The compensatory remedy has to have retrospective effect, so as to be available to persons who have become victim of excessive length of proceedings even before the coming of the Act into force, including those who have lodged applications with the ECtHR, if that court has not yet ruled on the admissibility of those applications.
The creation of an effective domestic remedy will ensure a drastic reduction of the number of applications to the ECtHR and will thus lead to less judgments finding a breach of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.”
50. The bill underwent its first reading on 10 May 2012, and its second reading on 7 June 2012, when it was adopted. The Act was published in the State Gazette on 3 July 2012. It inserted a new Chapter 3a in the 2007 Act. The Chapter is entitled “Examination of applications against breaches of the right to examination and determination of the case within a reasonable time” and consists of twelve sections. The newly introduced provisions, the bulk of which came into force on 1 October 2012, read as follows:
Subchapter I – General Provisions
60a. (1) This chapter applies to applications by individuals and legal persons against decisions, actions or omissions of judicial authorities which infringe their right to have their cases examined and decided within a reasonable time.
(2) Applications under subsection 1 shall be lodged by individuals and legal persons who are:
1. parties to finished civil, administrative or criminal proceedings;
2. accused, victims or wronged legal persons in discontinued pre‑trial proceedings;
(3) This chapter set out the manner of determining and paying compensation in line with the case-law of the European Court of Human Rights not amounting to more than 10,000 levs.
(4) Applications under subsection 1 shall be lodged within six months after the conclusion of the proceedings at issue with a final decision, though the Inspectorate attached to the Supreme Judicial Council to the Minister of Justice.
(5) A special register shall be created for the applications, and it shall be published on the internet site of the Inspectorate attached to the Supreme Judicial Council.
(6) No fees shall be due for the examination of applications under this chapter.
Subchapter II – Contents and Verification of the Application
60b. (1) The application must be written in Bulgarian and set out:
1. for Bulgarian nationals – their names as featuring in the identification documents; uniform citizen number and address; telephone, fax and electronic address, if any;
2. for foreigners – their names as featuring in the identification documents; uniform foreigner number and address; telephone, fax and electronic address, if any;
3. the commercial firm of the trader or the name of the legal person, written in Bulgarian; the seat and the latest registered address and electronic address;
4. the decision, action or omission alleged to amount to a breach by the respective authority;
5. the authority to which the application is addressed;
6. the request for relief;
7. the applicant’s signature.
(2) Applicants shall submit a declaration that they have not sought or obtained compensation in respect of the same breach in other proceedings.
Subchapter III – Manner of Examination of the Applications
60c. (1) Applications under section 60a(1) shall be examined by the Inspectorate attached to the Supreme Judicial Council, which shall set up a special unit for this purpose.
(2) The experts staffing the unit shall be lawyers who have at least five years of professional experience. Their remuneration shall be equal to that of a district court judge.
(3) The chief inspector shall allocate incoming applications to panels consisting of one inspector and two experts, randomly selected, and one of the experts shall be appointed as rapporteur.
(4) If the application does not meet the requirements of section 60b(1) or (2), the applicant shall be given notice to rectify the deficiencies within seven days of receiving the notice.
(5) If the applicant does not rectify the deficiencies, the application and the supporting documents shall be returned.
60d. (1) The results of the examination shall be noted down in a record of findings.
(2) That record shall be signed by the members of the panel and shall contain information about:
1. the time and place where and when it has been drawn up;
2. the applicant;
3. the panel which has examined the application;
4. the case in respect of which it is being drawn up;
5. the overall duration of the proceedings; the period of delay attributable to the competent authority; the period of delay attributable to actions or omissions of the complainant or his legal or procedural representative;
(3) The record of findings shall also set out the view of the panel as to whether the time-limit under section 60a(4) has been met.
60e. The record of findings under section 60d shall be drawn up within four months of receipt of the application or the rectification of its deficiencies, as the case may be. The record, along with the application and all supporting documents, shall be sent immediately to the Minister of Justice.
60f. (1) Based on the findings of the panel, the Minister of Justice or a person authorised by him or her shall reject the application as unfounded if
1. the length of the proceedings has not exceeded a reasonable time;
2. the delay is due to actions or omissions of the applicant or his legal or procedural representative.
(2) If the right of the applicant to have his or her case examined and decided within a reasonable time has been breached, the Minister of Justice or a person authorised by him or her shall fix the amount of compensation in line with the case‑law of the European Court of Human Rights and shall propose the conclusion of a settlement with the applicant.
60g. The underlying circumstances shall be examined and the application shall be determined within six months of the application’s receipt.
Subchapter IV – Payment of Compensation
60h. Compensation shall be paid on the basis of the concluded settlement.
60i. The funds required for the payment of sums under concluded settlements shall be covered by the republican budget.
60j. (1) Compensation due under this chapter shall be paid out of the budget of the Ministry of Justice.
(2) Each quarter the Minister of Finance shall make available to the budget of the Ministry of Justice funds matching the compensations actually paid under subsection 1 during that quarter through a modification of the budgetary arrangements with the central State budget.
60k. Persons who have received compensation under this chapter may not seek compensation in respect of the same matter by way of civil proceedings.
Subchapter V – Measures to Eliminate the Causes of Breaches
60l. (1) Every quarter the chief inspector shall send to the Supreme Judicial Council information about breaches found, and Minister of Justice – about compensations paid out.
(2) Every six months the Supreme Judicial Council shall analyse the reasons for the breaches and shall take measures to eliminate them.
(3) The Supreme Judicial Council shall publish on its internet site the information under subsections 1 and 2.
51. Paragraphs 34 and 35 of the transitional and concluding provisions of the amending Act provide as follows:
34. (1) Within six months of the entry into force of Chapter 3a or of notification by the Registry of the European Court of Human Rights, persons who have lodged with the European Court of Human Rights applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under Chapter 3a, except in cases where the Court has already given judgment on the merits of the application or has rejected the application as inadmissible.
(2) Applications under subparagraph 1 shall be examined within eighteen months of their receipt.
35. To ensure the application of Chapter 3a in 2012 the Council of Ministers shall make available additional funds in the budgets of the Judiciary and the Ministry of Justice.
52. In a decision of 11 September 2012 that came into effect on 18 September 2012 (Постановление № 209 от 11 септември 2012 г. за одобряване на допълнителни бюджетни кредити по бюджета на съдебната власт и по бюджета на Министерството на правосъдието за 2012 г.), the Council of Ministers increased the budget of the judiciary with 300,000 Bulgarian levs earmarked for the creation, in the Inspectorate attached to the Supreme Judicial Council, of the special unit dealing with applications under Chapter 3a of the 2007 Act (point 1(1) of the decision).
53. In September 2012 the Inspectorate appointed a number of officials and assigned them to the special unit dealing with applications under Chapter 3a of the 2007 Act. On 1 October 2012 the Inspectorate published on its website an application form and a sample declaration under section 60b(2) of the 2007 Act (see paragraph 50 above). It later put on its website software allowing applicants to lodge applications electronically and track their progress on‑line.
3. The amendments to the State and Municipalities Liability for Damage Act 1988
54. On 23 July 2012 the Government laid before Parliament a bill for the amendment of the State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”). The explanatory notes to the bill said the following:
“An analysis of the judgments in which the European Court of Human Rights has found violations in respect of Bulgaria shows that there are repetitive violations due to the lack of an effective domestic remedy allowing those concerned to obtain redress. More specifically, there is a need to create a domestic remedy allowing those concerned to obtain compensation for damage resulting from a breach of the [Convention] made by the State or its authorities or officials. The Court’s finding that the law of the Republic of Bulgaria does not make provision for such a remedy calls for its creation through an expansion of the ambit of the State and Municipalities Responsibility for Damage Act [1988]. This will overcome the prior approach – to provide for liability only in specific circumstances – which has led to many violation judgments of [the Court] against Bulgaria.
For that purpose, it is proposed to make the following amendments and additions to the Act:
...
2. The proposal to insert a new section 2b seeks to broaden the ambit of the Act, so that it embrace also cases of ‘delayed justice’. Under the pilot judgments of the European Court of Human Rights in the case of Finger [cited above] (which concerns civil cases) and the joined cases of Dimitrov and Hamanov [cited above] (which concern criminal cases), which find breaches of Article 6 § 1 of the Convention, the Bulgarian authorities must, within twelve months (until 10 August 2012) put in place a mechanism to resolve the systemic problem concerning the ‘reasonable time’ of proceedings. The envisaged amendments create a mechanism for the compensation of damage.
Individuals and legal persons whose right to have their cases examined and decided within a reasonable time been breached may bring claims under section 2b only if they have exhausted the administrative procedure for obtaining compensation under Chapter 3a of the Judiciary Act [2007] but have not reached a settlement.
At the same time, in cases of separate breaches occurring in one and the same proceedings, the fact that a person has brought a claim in respect of one breach does not prevent him or her from seeking compensation in respect of a breach of the right to a trial within a reasonable time in cases where the overall length of the proceedings has been excessive.
3. ... As regards claims for compensation in respect of breaches of the right to have one’s case examined and decided within a reasonable time, [the amendments] envisage that such claims, in view of their character and subject matter, shall be examined by the court having local jurisdiction in the place where the aggrieved person has his or her current address or its seat.
4. It is proposed to insert transitional provisions under which, within six months of the entry into force of the Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to [that Court] have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings are still pending before the national courts, may also bring claims for compensation under section 2b.
In respect of proceedings which have already ended at the national level, within six months of the entry into force of the Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to [that Court] have been rejected due to failure to exhaust the newly created domestic remedies may lodge applications for compensation under Chapter 3a of the Judiciary Act [2007].
Persons whose national pre‑trial or judicial proceedings have ended at the time when the Act comes into force, and less than six months have elapsed since the final decision, shall also have the right to lodge applications for compensation under Chapter 3a of the Judiciary Act [2007] within six months of the Act’s entry into force.
The bill reflects the proposals of non‑governmental organisations, the European Court of Human Rights’ case‑law, and the recommendations of the Council of Europe’s Committee of Ministers, and with it the Republic of Bulgaria shall fulfil its duties of State Party to the [Convention].”
55. The bill underwent its first reading on 26 September 2012 and its second reading on 28 November 2012, when it was adopted. The amending Act was published in the State Gazette on 11 December 2012 and came into force on 15 December 2012. It amended a number of provisions of the 1988 Act. In particular, it inserted a new section 2b, which is entitled “Liability of the judicial authorities for breaches of the right to have one’s case examined and decided within a reasonable time” and reads as follows:
“1. The State shall be liable for damage caused to individuals or legal persons by breaches of the right to have one’s case examined and decided within a reasonable time, in accordance with Article 6 § 1 of the Convention.
2. Claims under subsection 1 shall be examined in the manner provided by the Code of Civil Procedure [2007], and the court shall take into account the overall duration and the subject matter of the proceedings, their factual and legal complexity, the conduct of the parties and their procedural or legal representatives, the conduct of the other participants in the proceedings and of the competent authorities, as well as other facts which have a bearing on the proper determination of the dispute.
3. The bringing of a claim for damages in respect of pending proceedings shall not preclude the bringing of a fresh claim after the proceedings have come to end.”
56. A new section 7(2) provides that claims for compensation under section 2b are to be brought in the court in whose region the aggrieved person has his or her current address or seat.
57. A new section 8(2) provides that individuals or legal persons may bring claims under section 2b(1) in respect of proceedings which have ended only if they have already exhausted the administrative procedure under Chapter 3a of the 2007 Act (see paragraph 50 above) but that procedure has not resulted in a settlement.
58. Paragraphs 8 and 9 of the transitional and concluding provisions of the amending Act provide as follows:
“8. (1) Within six months of the entry into force of this Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to the European Court of Human Rights have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings are still pending before the national courts, may also bring claims for compensation under section 2b.
(2) Within six months of the entry into force of this Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to the European Court of Human Rights have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings at national level have already ended, may lodge applications for compensation under Chapter 3a of the [2007 Act].
9. Persons whose national pre‑trial or judicial proceedings have ended at the time when this Act comes into force, and less than six months have elapsed since the final decision, shall also have the right to lodge applications for compensation under Chapter 3a of the [2007 Act] within six months of this Act’s entry into force.”
4. Other relevant provisions of the 1988 Act
59. Section 4 of the 1988 Act provides that the State is liable for all pecuniary and non‑pecuniary damage which is a direct and proximate result of the impugned act, action or omission. However, the Supreme Court of Cassation and the Supreme Administrative Court have held that legal persons, such as commercial companies, cannot suffer non‑pecuniary damage and are not entitled to compensation for such damage (see опр. № 271 от 19 март 2010 г. по гр. д. № 8/2010 г., ВКС, III г. о., and реш. № 7861 от 6 юни 2011 г. по адм. д. № 3689/2011 г., ВАС, III о.).
60. Section 9a(1) of the Act, which was inserted in April 2008 and came into force in May 2008, provides that the fee due in respect of cases under the Act is flat and is to be fixed in a tariff adopted by the Government. Under the Tariff of fees collected by the courts under the Code of Civil Procedure, as currently in force, the fee is BGN 10 in respect of first‑instance proceedings, BGN 5 in respect of appellate proceedings, and BGN 5 in respect of cassation proceedings. The fee is payable up‑front (see опр. № 12420 от 4 октомври 2011 г. по адм. д. № 12302/2011 г., ВАС, III о.).
61. Section 10(2) of the Act, as worded after May 2008, provides that if the claim is rejected in full, the court must order the claimant to pay the costs of the proceedings. The claimant must also pay those costs if he or she withdraws the claim in its entirety.
62. Section 10(3) of the Act, which was also inserted in April 2008 and came into force in May 2008, provides that if a claim under the Act is allowed fully or in part, the court is to order the defendant to pay the costs of the proceedings and to reimburse the court fee paid by the claimant. The defendant must also pay the claimant the fee of one counsel, if the claimant had retained counsel, pro rata the allowed part of the claim.
63. In their case‑law under section 10(2) and (3), the Supreme Court of Cassation and the Supreme Administrative Court have held that it is a lex specialis in relation to the general rules on costs in the Code of Civil Procedure, and that in the case of a partly rejected claim the defendant authority is not entitled to costs (see опр. № 12023 от 18 октомври 2010 г. по адм. д. № 11620/2010 г., ВАС, I о.; реш. № 785 от 2 март 2011 г. по гр. д. № 556/2010 г. ВКС, III г. о.; and опр. № 525 от 13 октомври 2011 г. по ч. гр. д. № 531/2011 г., ВКС, III г. о.).
5. Relevant provisions of the Code of Civil Procedure
64. Article 172 § 2 of the Code of Civil Procedure 1952, superseded on 1 March 2008 by Article 216 § 2 of the Code of Civil Procedure 2007, which is couched in identical terms, provided that when on account of the character of the right in dispute the court’s ruling had to be the same in relation to all co‑claimants or co‑defendants, they were regarded as mandatory co‑claimants or co‑defendants (необходими другари) and the procedural steps taken by one of them produced effects in respect of all of them.
65. Article 519 of the Code of Civil Procedure 2007 provides as follows:
“1. The enforcement of money claims against State bodies and municipalities is not allowed.
2. Money claims against State bodies and municipalities shall be paid out of funds allotted for that purpose in their budgets. For this purpose, the writ of execution shall be presented to the financial department of the [State] body in issue. If no funds have been allocated, the higher [State] body shall take the necessary measures to provide such funds at the latest in the next budget.”
66. In March 2010 the Ombudsman of the Republic challenged that provision before the Constitutional Court. He argued, inter alia, that it fell foul of several Articles of the 1991 Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. On 22 April 2010 the Constitutional Court, noting that under Article 150 § 3 of the 1991 Constitution the Ombudsman was not entitled to seek from the Constitutional Court declarations that statutes are contrary to international treaties to which Bulgaria is party, declared the request admissible in so far as the allegations of unconstitutionality were concerned and inadmissible in so far as the allegations of lack of compliance with the Convention and its Protocol were concerned. In a judgment of 21 December 2010 (реш. № 15 от 21 декември 2010 г. по к. д. № 9/2010 г., обн. ДВ, бр. 5/2011 г.), the Constitutional Court refused to declare Article 519 unconstitutional in so far as it concerns State bodies, but declared it unconstitutional in so far as it concerns municipalities.
C. Relevant Council of Europe documents
67. The Committee of Ministers examined the amendments to the 2007 and the 1988 Acts at its 1150th meeting, held on 24‑26 September 2012. Based on an information document drawn up by the Department for the Execution of Judgments of the European Court of Human Rights (CM/Inf/DH(2012)27), the Committee adopted the following decision:
“The Deputies
1. took note with interest of the revised action report submitted by the authorities on 30/07/2012 presenting the introduction of an administrative compensatory remedy in the field of excessive length of proceedings, as well as of a draft bill for the introduction of a judicial compensatory remedy in this field;
2. approved the assessment of the administrative remedy and of the draft judicial remedy contained in information document CM/Inf/DH(2012)27 and invited the Bulgarian authorities to provide clarifications as concerns outstanding questions identified in this information document;
3. invited the Bulgarian authorities to adopt rapidly the proposed judicial remedy and to amend the provision governing the retrospective effect of the administrative remedy in order to take into account the requirements of the Court in this respect;
4. decided to declassify information document CM/Inf/DH(2012)27;
5. decided to resume consideration of these cases, including the question of the measures aimed at reducing the length of the judicial proceedings, during one of their next Human Rights meetings and invited the authorities to provide additional information also on this question.”
68. The Committee of Ministers again examined the amendments at its 1157th meeting, held on 4‑6 December 2012. Based on an information document drawn up by the Department for the Execution of Judgments of the European Court of Human Rights (CM/Inf/DH(2012)36), the Committee adopted the following decision:
“The Deputies
As regards the effective remedies required in this field:
1. recalled their decision adopted during their 1150th meeting (DH) (September 2012) according to which the administrative compensatory remedy recently adopted by the authorities and the judicial compensatory remedy proposed in the field of length of proceedings, taken together, seem capable of meeting the main requirements of the case‑law of the Court;
2. noted with satisfaction the adoption by the Bulgarian Parliament, on 28 November 2012, of the legislative amendments aimed at introducing the above‑mentioned judicial remedy; noted in this respect that according to the information submitted, the adopted provisions are identical to those already assessed by the Committee, except for those relating to the competent courts; invited the authorities to keep the Committee informed about the entry into force of the adopted provisions and to provide it with their translation;
3. noted with interest the explanations provided by the Bulgarian authorities in relation to some outstanding questions identified in Information document CM/Inf/DH(2012)27, in particular their intention to modify the provision governing the retrospective effect of the administrative remedy in order to ensure its compliance with the requirements of the Court in this respect; invited them to reply to the other outstanding questions contained in Information document CM/Inf/DH(2012)36, namely as concerns the functioning of the administrative compensatory remedy;
...
7. invited the authorities to reply to the other outstanding questions identified in Information document CM/Inf/DH(2012)36 and decided to declassify it.”
69. The information document forming the base for this decision (CM/Inf/DH(2012)36) was drawn up on 27 November 2012 and reads as follows:
“...
I. Compensatory remedies elaborated in response to the pilot judgments
A. Presentation of the adopted administrative compensatory remedy
1. Positive aspects of the administrative compensatory remedy
1. The [2007] Act provides that applications for compensation in respect of excessive length of proceedings are to be addressed to the Minister of Justice through the Supreme Judicial Council’s Inspectorate. When examining these claims, the Minister (or a person authorised by him or her) is assisted by a panel made up of an Inspector and two experts working in a special unit of that Inspectorate. The time‑limit for the examination of applications is six months. The procedure is free of charge for the claimants.
2. The applications are to be directed ‘against acts, actions or omissions of judicial authorities’, breaching the right to have a case heard and decided within a reasonable time. The authorities have indicated that this wording would not preclude the examination of applications concerning delays that do not stem from omissions by individual judges or judicial officers but, for instance, from an overburdening of the judicial system as a whole.
3. The criteria which must be taken into account when examining applications are the overall length of the proceedings, the delays attributable to the authorities, as well as the delays attributable to the applicant and his representative ([s]ection 60d(2)(5)). The merits of the application and the amount of compensation are to be determined in light of the Court’s case‑law.
4. The compensation is to be paid out of the budget of the Ministry of Justice. The Ministry of Finance must then restore to the budget of the Ministry of Justice the funds paid as compensation each quarter.
Assessment:
5. The law governing the administrative remedy imposes on the authority competent to examine applications for compensation the obligation to take into account the overall length of the proceedings and the conduct of the parties and of the competent authorities, in line with the Court’s case‑law. The legal or factual complexity of the case and the stakes involved in the dispute are not mentioned explicitly, but the general reference to the Court’s case-law should be enough to cause them to be taken into account as well. The new provisions also seem to take into account the case‑law of the Court as to, inter alia, the promptness of the examination, the absence of charges for the introduction of a claim and the existence of specific budgetary provisions. In conclusion, this administrative remedy takes into account, to a very large extent, the criteria used by the Court for the assessment of the excessive length of proceedings.
2. Questions raised by the administrative compensatory remedy
6. The administrative remedy put in place raises a number of questions, namely: (a) the fact that it does not apply to proceedings which are pending, (b) the wording of the provision governing the retrospective effect of the remedy and (c) the compliance of the remedy with the institutional requirements of Article 13 of the Convention, (d) the compensation ceiling and (e) the payment of compensation. In this respect, it should be recalled that the Court has constantly indicated in its case‑law that even if a particular remedy does not fully satisfy the requirements of Article 13, the aggregate of remedies under domestic law may satisfy these requirements. Therefore, the questions raised by this remedy and its weaknesses may be examined also in the light of the judicial compensatory remedy adopted at first reading by the Bulgarian Parliament (for a detailed presentation of the judicial remedy, see paragraphs 22‑37 below).
(a) Inapplicability of the administrative remedy to proceedings which are still pending
7. The administrative remedy provides that only parties to completed judicial and pre-trial proceedings are entitled to introduce applications for compensation within six months of the end of the proceedings in question. If the proceedings are still pending, the parties have to wait for them to end in order to submit a claim to the Minister of Justice, whatever the delays already accumulated. In contrast, it appears from the information presented by the Bulgarian authorities that the proposed judicial remedy for length of proceedings would also be applicable to proceedings which are still pending.
Assessment:
8. It should be recalled that the Court has already held that the impossibility to use a remedy against the excessive length of proceedings which are still pending may render such a remedy ineffective. It should also be recalled that the pilot judgments require the introduction, within the time‑limit set in the operative part of the judgments, of a remedy that fully complies with the Court’s case‑law. It thus appears that the introduction of just an administrative remedy with limited scope is not sufficient to ensure the full execution of the pilot judgments. This lacuna could, however, be overcome by the introduction, without delay, of a judicial remedy which fully complies with the requirements of the Court’s case‑law, as the Bulgarian authorities seem to have foreseen.
(b) Wording of the provision governing the retrospective effect of the remedy
9. Paragraph 34(1) of the transitional provisions of the [2007 Act], which concerns the retrospective effect of the new remedy, is worded as follows (emphasis added):
‘Within six months of the entry into force of Chapter 3a or notification by the Registry of the European Court of Human Rights, persons who have lodged with the European Court of Human Rights applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under Chapter 3a, except in cases where the Court has already given judgment on the merits of the application or has rejected the application as inadmissible.’
Assessment:
10. The current wording of paragraph 34 suggests that the new remedy will not be available to applicants whose applications are declared inadmissible by the Court, and this without making the distinction between the different grounds of inadmissibility. This provision should therefore be amended in order to indicate clearly that it will be available to persons whose applications, introduced before its adoption, are declared inadmissible for non‑exhaustion of the domestic remedies. Thus, if the Court confirms the effectiveness of the new remedy or of the aggregate of new remedies, it will be able to declare inadmissible the applications pending before it for non-exhaustion of this remedy/these remedies and the applicants concerned will be able to introduce their applications for compensation at the domestic level. The authorities have indicated that this provision will be amended in the near future in order to ensure that applicants whose applications have been declared inadmissible for non‑exhaustion of the domestic remedies will be able to use effectively this new remedy at the domestic level. Information is awaited on the time‑table for the adoption of this amendment.
(c) Compliance of the remedy with the institutional requirements of Article 13 of the Convention
11. The new provisions of the [2007] Act describe in considerable detail the procedure for the examination of applications for compensation for excessive length of proceedings. The relevant facts for the examination of a complaint concerning excessive length of proceedings are to be established by a panel of one Inspector from the Supreme Judicial Council’s Inspectorate and two experts working in a special unit of this Inspectorate. This panel communicates its findings to the Minister or to the person whom he or she has authorised to act on his or her behalf.
12. If the Minister of Justice or the person designated by him or her finds that the reasonable-time requirement has not been breached, he or she has to reject the application. If the Minister or the person designated by him or her finds, on the contrary, that the reasonable-time requirement has been breached, he or she has to fix the amount of compensation in line with the Court’s case-law and propose a settlement to the claimant. Claimants who have accepted the settlement and have obtained compensation under that procedure cannot claim compensation in judicial proceedings.
13. The [2007] Act does not contain specific provisions concerning a possible judicial review of the decisions rejecting applications or proposing a settlement.
Assessment:
14. It should be recalled that the authority to which Article 13 refers does not need to be a judicial one for a remedy to be considered effective under the Court’s case‑law. However, the effectiveness of the remedy before that authority is assessed by reference to the guarantees that it affords (see, among other authorities, Leander [v.] Sweden, 26 March 1987, § 77, Series A No. 116). In particular, the decision‑making body needs to have a ‘sufficiently independent standpoint’ (see, among other authorities, Silver and [O]thers [v.] the United Kingdom, 25 March 1983, § 116, Series A No. 61). It should also be noted that the Court requires in principle that the authority in charge of the implementation of a domestic remedy be able to come up with a ‘legally binding decision’, some element of enforceability being generally required (see, among other authorities, Leander, cited above, § 82). As said above, the case‑law also indicates that even if a single remedy does not fully satisfy the requirements of Article 13, the aggregate of remedies under domestic law may do so (see, among other authorities, Leander, cited above, § 77).
15. In the light of the information currently available, it is not clearly established whether the new administrative procedure under the [2007] Act can be regarded as providing alone the required ‘element of enforceability’ and sufficient ‘independence’. However, for the reasons set out below, if an effective judicial remedy is introduced without delay, the aggregate of remedies could in principle meet the institutional requirements of Article 13.
16. According to the authorities, the settlements proposed by the Minister of Justice should be considered as legally binding decisions, because under the [2007]Act, as amended, the Minister of Finance has to guarantee to the Ministry of Justice funds up to the amounts paid in compensation to claimants. However, a question remains whether the decision of the Minister of Justice taken on applications for compensation, whether positive or negative, can be considered to have itself a legally binding effect in cases in which no settlement has been concluded. In any event, according to the draft bill for the amendment of the [1988 Act] (aiming at the introduction of a judicial remedy), unsuccessful claimants in the procedure before the Minister of Justice and claimants who have refused to conclude a settlement, will have the right to request compensation in the context of judicial proceedings (see paragraphs 29 and 30 below).Thus, it seems that – if the foreseen judicial remedy is adopted – in the absence of a settlement the claim could be resolved by a final and legally binding decision in the context of judicial proceedings.
17. As to the issue of independence of the decision‑making body, it should be recalled that, in a case against the Czech Republic, the Court accepted that an administrative remedy was effective because the persons who were not satisfied with the decision of the Ministry of Justice on their applications for compensation could seek compensation in the context of judicial proceedings (see Vokurka [v.] the Czech Republic (dec.), No. 40552/02, § 60, 16 October 2007). Thus, if only an administrative remedy is introduced, the availability of judicial review of the decisions of the Minister of Justice may prove crucial for the remedy to meet the institutional requirements of the Court’s case‑law. By contrast, if an effective judicial remedy is introduced without delay as foreseen by the Bulgarian authorities, the aggregate of the two remedies could in principle meet the institutional requirements of Article 13, even in the absence of judicial review of the minister’s decisions.
(d) Compensation ceiling
18. The [2007 Act] provides that compensation cannot exceed 10,000 Bulgarian levs (BGN) (5,112.92 euros (EUR)).
Assessment:
19. As concerns the above‑mentioned compensation ceiling, there may be situations in which that sum will fall short of the amounts awarded in compensation by the Court. That said sums of up to EUR 5 112.92 appear sufficient, in the light of the Court’s judgments against Bulgaria concerning length of proceedings, to compensate adequately the non‑pecuniary damage arising in the majority of cases concerning excessive length of proceedings in Bulgaria. Moreover, if an effective judicial remedy is introduced without delay as foreseen by the Bulgarian authorities, the aggregate of newly introduced remedies would normally be sufficient to provide an adequate level of compensation in all situations, as the draft law concerning the introduction of judicial remedy does not provide for a compensation ceiling.
(e) Time‑limit and procedure for payment of compensation
20. The [2007] Act makes provision for a specific funding mechanism for the payment of compensations for excessive length of procedure (see paragraph 4 above). It does not seem to contain any specific provisions concerning the procedure for payment of compensation. In their reply to the questions identified in the memorandum CM/Inf/DH(2012)27 (see DH‑DD(2012)977), the authorities indicated that budgetary funds and other measures have been foreseen in order to avoid delays in the payment of compensation.
Assessment:
21. The Court’s case‑law requires that payment should normally be made not later than six months after a judgment or a decision in that respect has become enforceable. Given the importance attached by the Court to this requirement, it seems useful to provide the Committee with detailed information on the payment procedure and on the time‑limits in which the payments are made in practice.
B. Presentation of the proposed judicial remedy
22. The following presentation is based on the translation of the draft bill for the amendment of the 1988 Act presented by the Bulgarian authorities on 30/07/2012 (see DH‑DD(2012)732). The judicial remedy adopted at first reading by the Bulgarian Parliament seems to comply in principle with the main requirements of the Court’s case-law in the field of compensatory remedies for excessive length of proceedings. However, some clarifications still seem necessary.
(a) Scope of the remedy
23. Section 2b of the draft bill for the amendment of the [1988 Act] provides that the State is responsible for damages caused to persons and legal entities through breaches, by the judicial authorities, of the right enshrined in Article 6 § 1 of the Convention to have their cases examined and resolved within a reasonable time. The claims have to be examined under the rules of the Code of Civil Procedure. The court have to take into account the legal and factual complexity of the case, the conduct of the claimant, the conduct of the other parties and participants in the proceedings and the conduct of the competent authorities, the stakes involved in the dispute, as well as the overall length of the proceedings. The introduction of a claim for damages while the proceedings are still pending is not an obstacle to introducing a claim for damages after the end of these proceedings. The authorities have confirmed that the scope of the judicial remedy comprises the actions of the prosecutors and the investigating magistrates, as well as the actions of the police investigators (to which makes reference paragraph 9 of the transitional and final provisions of the draft bill for the amendment of the [1988 Act]).
24. As concerns the question of the applicability of the judicial remedy to the procedures concerning execution of court decisions, it should be noted that the majority of the execution proceedings in Bulgaria are conducted by private bailiffs whose civil responsibility can be engaged in a case of damage caused by their activity. As far as the public bailiffs are concerned, although their status is governed by the [2007] Act, they are not magistrates. Therefore, it is not clear whether their actions are covered or not by the scope of the proposed judicial remedy.
Assessment:
25. The scope of the proposed judicial remedy seems to comply with the relevant requirements of the Court’s case‑law. The draft Section 2b refers to breaches of the reasonable time requirement attributable to the judicial authorities. Although this provision does not mention explicitly the delays caused by the police investigators, the Bulgarian authorities have indicated that the delays which have occurred at the stage of the preliminary investigation and are attributable to the police investigators will fall within the scope of the judicial remedy. It would be useful to clarify whether this is so also in respect of the actions of the public bailiffs responsible for the execution of a court decision.
(b) Procedure according to which a claim should be examined: length and applicable court fees
26. The draft bill for the amendment of the [1988 Act] provides that claims will be examined under the rules of the Code of Civil Procedure [2007]. Under Bulgarian law, a civil dispute can be examined by three levels of jurisdiction.
27. Under the provisions of [s]ection 10 of the [1988 Act], a flat‑rate court fee is due to file a claim under the Act which is either BGN 10 for physical persons or BGN 25 for legal persons (EUR 5.12 or EUR 12.82). The claimants must pay all the costs incurred in the proceedings only if their claim has been entirely rejected or if they withdraw or waive their claim entirely. If the court decides in favour of the claim, in whole or in part, the defendant should be ordered to pay the costs relating to the proceedings, as well as the claimant’s court fees. If a claim is granted only in part, the claimant receives only partial reimbursement of the lawyer’s fees. The authorities have specified that according to domestic case‑law, if a claim is partially rejected, the claimant should not be required to pay the part of the lawyer’s fees incurred by the defendant.
Assessment:
28. One of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time. The Court suggested in this respect that ‘consideration may be given to subjecting the examination of such claims to special rules that differ from those governing ordinary claims for damages, to avert the risk that, if examined under the general rules of civil procedure, the remedy may not be sufficiently swift’. However, the introduction of such special rules was not set out as a requirement for the effectiveness of the future remedy or aggregate of remedies. Therefore, the absence of such special rules does not per se put into question the efficiency of the proposed judicial remedy. Moreover, the adopted administrative remedy, if correctly implemented, could provide swift redress to many potential claimants.
29. As concerns the requirement set out in the pilot judgments that the rules governing costs must not place an excessive burden on litigants where their claim is justified, it seems that, even if a claim has been partly rejected, successful claimants could not be required to pay costs relating to the proceedings and the part of the lawyer’s fees incurred by the defendant and that their court fees are to be reimbursed.
(c) Need to exhaust the administrative remedy in some situations
30. Parties to completed judicial proceedings will need to exhaust the administrative remedy before introducing a judicial claim. According to [s]ection 8(2) of the draft bill for the amendment of the 1988 Act, the judicial remedy is not available to claimants who have concluded a settlement in the administrative procedure.
Assessment:
31. As said above, one of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time. It seems that the requirement for a certain category of claimants to exhaust the administrative remedy before introducing a judicial remedy will not have a considerable impact on the promptness of the compensation process as a whole, because it seems that the administrative phase could be very short (cf. the six‑month’ time‑limit for the examination of applications, paragraph 1 above).
(d) Retrospective effect
32. Paragraph 8(2) of the transitional and final provisions of the draft bill for the amendment of the [1988 Act] provides that persons whose applications have been rejected by the Court on the ground of non‑exhaustion of the newly introduced domestic remedies and who have been parties in completed judicial proceedings will be able to introduce administrative applications for compensation within six months of the entry into force of the amendments or within six months of the notification by the Registry of the Court. Under the same conditions, applicants to the Court who have seen their application rejected for non‑exhaustion of the domestic remedies and who are parties in pending proceedings at the domestic level will be able to introduce judicial claims for compensation.
33. According to paragraph 9 of the transitional and final provisions of the draft bill for the amendment of the [1988 Act], parties to proceedings which have been completed less than six months before the entry into force of the draft bill will also have access to the judicial remedy.
Assessment:
34. The provisions concerning the scope of the retrospective effect of the proposed judicial remedy seem to comply with the recommendations given by the Court under Article 46 in the pilot judgments.
(e) Time‑limit and procedure for payment of compensation
35. Unlike the [2007] Act, the draft bill for the amendment of the [1988 Act] does not seem to provide for specific budgetary provisions concerning the payment of compensations for excessive length of proceedings. In their response to the questions identified in the memorandum CM/Inf/DH(2012)27 (see DH‑DD(2012)977), the authorities indicated that it is foreseen that the amendments to the [1988 Act] will be accompanied by the provision of budgetary funds to the institutions concerned.
36. It seems that according to the relevant budgetary rules, the payment of compensation granted in the event of successful claim against a court/the prosecution should be made out of the budget of the court in question/of the prosecution. Likewise, Article 250 of the Code of Civil Procedure provides that persons who have financial claims against public institutions have to submit the writ of execution to the institution’s financial department in order to receive payment. Payments are made out of the funds earmarked for that purpose in the institution’s budget. If there are no funds available, a budgetary provision for this purpose should be made available the following year.
Assessment:
37. As said above in paragraph 21, the Court’s case‑law requires that payment should normally be made not later than six months after a judgment or a decision in that respect has become enforceable. Given the importance attached by the Court to this requirement, it seems useful to provide the Committee, in due time, with information on the exact content of the budgetary provisions taken by the authorities in order to ensure the funding of compensations for excessive length of proceedings and on any other measure aimed at avoiding late payment of compensation.
...
Conclusion
65. In the light of the information available, it seems that the administrative remedy which entered into force on [1 October 2012] represents a very positive step forward towards the execution of the pilot judgments of the Court. This remedy does not in itself comply with all the requirements of the Convention, but most of the outstanding questions could be addressed by the proposed judicial remedy in the field of excessive length of proceedings, if the latter is adopted without delay. Thus, it seems that the aggregate of these two remedies could in principle comply with the main requirements of the Court’s case‑law. Therefore, it seems useful to invite the Bulgarian authorities to adopt without delay the judicial remedy proposed and to encourage them to take the necessary measures in order to ensure for themselves that the new remedies will be applied in compliance with this case-law. Likewise, it seems useful to encourage the authorities to continue with their works regarding the introduction of a remedy which allows requesting the acceleration of the criminal proceedings. ...”
COMPLAINTS
70. Ms Valcheva complains under Article 6 § 1 of the Convention that the criminal proceedings against her lasted an unreasonably long time.
71. Mr Abrashev also complains under Article 6 § 1 of the Convention that the criminal proceedings against him lasted an unreasonably long time.
72. He further complains under Article 13 of the Convention that he did not have an effective domestic remedy in that respect.
THE LAW
A. Preliminary points
73. As the two applications are based on similar facts and as they contain, for the most part, identical complaints, the Court considers it appropriate to join them under Rule 42 § 1 of its Rules.
74. The applicant in the first application, Ms Valcheva, did not reply to the Government’s observations and did not file claims for just satisfaction within the time‑limit fixed by the Court. Moreover, she has, for the time being, not replied to the Court’s reminder, sent by registered post and received by her, that she missed that time‑limit without requesting an extension. The question therefore arises whether Ms Valcheva still intends to pursue her application, and whether the Court should strike that application out of its list under Article 37 § 1 (a) of the Convention. However, since the Court considers, for the reasons that follow, that the application is in any event inadmissible, it does not find it necessary to determine that point. Moreover, since the application is being examined in a post‑pilot procedure, the Court is of the view that respect for human rights requires its continued examination (Article 37 § 1 in fine of the Convention).
B. The length of the proceedings
75. In respect of their complaints concerning the length of the proceedings in their cases the applicants relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time ...”
1. The parties’ submissions
(a) The Government’s initial observations
76. The Government submitted that the applicants had not exhausted domestic remedies. They pointed out that following this Court’s pilot judgments in the cases of Finger (cited above) and Dimitrov and Hamanov (cited above) new legislation had been enacted, making provision for two remedies in respect of the unreasonable length of proceedings. The first remedy, governed by newly inserted provisions of the 2007 Act, had been designed to operate retrospectively, so that persons who had already applied to this Court but had not yet obtained a decision on the admissibility of their applications could make use of it. The second remedy, governed by the new section 2b of the 1988 Act, was also retrospective. Both of those remedies were fully in line with the Court’s pilot judgments and with the Committee of Ministers’ recommendations. The first one was being actively used, with seventy‑five applications for compensation already lodged, dealt with by the Inspectorate attached to the Supreme Judicial Council and under consideration by the Minister of Justice. Eleven of those had been found well‑founded, and for some of them offers had been made for the conclusion of settlements. The first settlement had been concluded on 4 March 2013. The applicants in the present case could likewise avail themselves of that opportunity and obtain adequate compensation for the allegedly excessive length of the proceedings in their case.
(b) Mr Abrashev’s observations
77. Mr Abrashev submitted that the newly introduced remedies were not effective and did not comply with the requirements set out in the pilot judgments. Their first defect was that they were solely intended to provide compensation for delay, but could not be used to accelerate proceedings. Secondly, under the Court’s prevalent case‑law the availability of effective domestic remedies was to be assessed by reference to the time of lodging of the application, whereas the two remedies had been put into place after the Government had been given notice of his application.
78. The administrative remedy under the 2007 Act did not entail an open and contentious procedure, in breach of the requirement, set out in the pilot judgments, that the procedural rules governing such remedy had to conform to the principle of fairness enshrined in Article 6 of the Convention. Moreover, the authority fixing the amount of compensation was not only not independent of the executive but part of it. There were no guarantees that the six‑month time‑limit for the examination of applications for compensation would be complied with, or that the compensation would be paid in a timely manner. The requirement of section 60b(1)(4) of the 2007 Act to specify the decision, action or omission alleged to amount to a breach of the right to a hearing within a reasonable time was unclear and impossible to comply with, because in most cases that breach flowed from a multitude of such decisions, actions or omissions. Thus, instead of having unimpeded access to a simple and rapid procedure, victims of unreasonable delay would have to resort to the services of a lawyer familiar with this Court’s case‑law. The problem was amplified by the lack of clear criteria for fixing the amount of compensation. Moreover, that amount was capped at BGN 10,000, which in some cases would be too low and prevent awards similar to those made by this Court. Since the compensation was to be paid out of the budget of the Ministry of Justice, the Minister could not be relied on to fix its amount impartially. That defect could not be overcome, because the Act made no provision for judicial review of the Minister’s decision on the amount of compensation. It was not possible to enforce awards of compensation against the Ministry if it did not pay them voluntarily. The only avenue open to persons in whose cases the Minister would fix a manifestly unfair amount of compensation was to refuse to conclude the settlement.
79. The judicial remedy under the 1988 Act could be resorted to only if the administrative remedy under the 2007 Act had already been used. Claims under section 2b of the 1988 Act were to be examined in normal three‑instance proceedings, with no provision for shortened time‑limits, which in most cases would be too slow. That could lead to a situation where the compensation proceedings would be lengthier than the proceedings in respect of whose length compensation was being sought. Such claims would often be directed against the court hearing them, entailing the need to transfer the case to another court, which would result in yet more delay. The sums awarded by way of compensation were to be paid out of the budget of the courts awarding them, which could give rise to doubts about those courts’ impartiality. Indeed, that point had been noted in the two pilot judgments. Another issue was the Bulgarian courts’ approach to the mode of proof of non‑pecuniary damage in proceedings under the 1988 Act: they were often too formalistic, requiring witness evidence to make out the existence of such damage, and failing to take into account the cumulative effect of all factors when assessing its quantum. In addition, under the courts’ prevailing case‑law, legal persons were not entitled to compensation for non‑pecuniary damage. There were also no settled criteria for assessing its quantum, as evidenced by, inter alia, several cases in which this Court had found awards made by the Bulgarian courts unreasonably low.
80. The defects common to the two remedies were the lack of a time‑limit for the payment of compensation; the impossibility to enforce the payment of compensation if it was not paid voluntarily by the authorities; and the lack of settled case‑law under the new provisions of the 1988 Act and the 2007 Act.
(c) The Government’s additional observations
81. The Government submitted that they were taking steps to introduce both acceleratory and compensatory remedies in respect of the excessive length of proceedings, but that the subject matter of the present case, which concerned proceedings that had already come to a close, was limited to assessing the effectiveness of the compensatory remedies. The purpose of the new remedies under the 1988 Act and the 2007 Act was to make good breaches which had already taken place. It was true that these remedies had been put into place after the lodging of the applications, but that had happened in the context of pilot proceedings; the Court’s case‑law in such situations was that newly introduced domestic remedies were in principle to be exhausted.
82. The Government drew attention to the information document drawn up by the Department for the Execution of Judgments, and submitted that the time‑limit for the examination of applications for compensation under sections 60a et seq. of the 2007 Act was being scrupulously complied with, by both the Inspectorate attached to the Supreme Judicial Council and the Minister of Justice. The average time that it took to examine such an application was about four months, and in some cases even less than three months.
83. It was not true that an applicant’s failure to specify the decision, action or omission alleged to amount to a breach of the right to a hearing within a reasonable time would result in non‑examination of his or her application for compensation. The Inspectorate did not approach that issue in a formalistic way, and was dealing with all applications in which the underlying proceedings could be identified. The Inspectorate examined the unfolding of those proceedings in depth, without requiring applicants to come up with proof in support of their assertions. The Government provided one example of an incomplete application which had been found well‑founded, and in which a settlement had already been concluded and the applicant had received the compensation under the settlement.
84. The cap on the amount of compensation was not problematic. Nor were there grounds to suspect that the Minister of Justice would be partial in fixing the amount of compensation, because the money only passed, for administrative convenience, through the Ministry’s budget but ultimately came, as stipulated in section 60j(2) of the 2007 Act, from the central State budget. The Ministry had come up with very detailed internal rules on fixing the amount of compensation, and those rules were fully in line with the Court’s case‑law under Article 6 § 1 of the Convention.
85. The lack of a possibility to enforce the payment of compensation was not decisive because there was a three‑month time‑limit after which interest at the legal rate started to run. That was enough to safeguard the applicants’ interest in the event of late payment. In any event, the Ministry of Justice was making all efforts to pay the compensation long before the expiry of that time‑limit. The Government pointed to the first eleven cases, in which compensation had been paid between one and six days after the conclusion of the settlement.
86. The Government went on to say, in relation to the remedy under the 1988 Act, that by section 7 of that Act claimants could choose in which court to bring their claims, which could preclude the examination of length‑of‑proceedings claims by panels involved in the underlying proceedings. There was also the possibility to transfer the case to another court; that was usually a quick procedure. The applicants’ misgivings about the impartiality of the courts hearing claims under section 2b of the Act were groundless. The sums to be paid out as compensation came from a distinct line item in the budget of each court and could not affect the remuneration of the judges concerned. That section also specifically said that both individuals and legal persons could claim compensation for non‑pecuniary damage, and laid down the criteria for fixing the amount of that compensation. Moreover, the Convention was directly applicable in Bulgarian law, which meant that the courts hearing such claims could have regard to the Court’s case‑law in determining those points.
87. Lastly, the Government submitted that during the first seven months of operation of the remedy under the 2007 Act one hundred and fourteen applications for compensation had been filed and processed. Seventy‑seven of those had been inadmissible (chiefly because out of time or relating to proceedings that were still pending), fourteen had been ill‑founded, and twenty-three had been well‑founded. Of those, twelve had already resulted in settlements, and the settlements in ten others were in the process of being finalised. There was only one case in which the applicant had refused to settle. As for the remedy under the 1988 Act, five months – the time since the remedy had become operative – was too short a period for the emergence of a stable body of case‑law. Moreover, since the administrative remedy under the 2007 Act functioned so well, very few persons resorted to claims under the 1988 Act.
2. The Court’s assessment
(a) General considerations
88. By virtue of Article 1 of the Convention, which provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”, the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities. The machinery of complaint to the Court is thus subsidiary to national systems safeguarding human rights. This subsidiary character is reflected in Articles 13 and 35 § 1 of the Convention (see, among other authorities, Grzinčič v. Slovenia, no. 26867/02, § 82, ECHR 2007‑V (extracts), and, more recently, Uzun v. Turkey (dec.), no. 10755/13, § 37, 30 April 2013).
89. Article 35 § 1 (former Article 26) of the Convention provides, in so far as relevant:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”
90. The rule set out in this provision, commonly referred to as the rule of exhaustion of domestic remedies, is well‑established in international law and is, as noted above, an indispensable part of the functioning of the system of protection established under the Convention. Under that rule, States are dispensed from answering before an international body for their acts or omissions before they have had an opportunity to put matters right through their own legal system. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a Contracting State are thus obliged to first use the remedies provided by the national legal system. In this connection, the Court would emphasise that it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 69, ECHR 2010).
91. Under the rule of exhaustion of domestic remedies, normal recourse should be had by applicants to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of those remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (ibid., § 70, with further references). However, 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, as a recent authority, Uzun, cited above, § 38 in fine).
(b) Availability and effectiveness of the new remedies
92. The first point that needs to be determined is whether the two new remedies are, alone or taken together, available and effective for the purposes of Article 35 § 1 of the Convention.
93. In the two pilot judgments (Finger, § 130, and Dimitrov and Hamanov, § 125, both cited above), the Court stated that the length‑of‑proceedings remedy or remedies to be put in place in Bulgaria should have the following characteristics:
(a) the procedural rules governing the examination of claims concerning the length of proceedings must conform to the principle of fairness enshrined in Article 6 of the Convention;
(b) the rules governing costs must not place an excessive burden on litigants where their claim is justified;
(c) a claim for compensation must be heard within a reasonable time. In that connection, consideration may be given to subjecting the examination of such claims to special rules that differ from those governing ordinary claims for damages, to avert the risk that, if examined under the general rules of civil procedure, the remedy may not be sufficiently swift;
(d) the level of compensation must not be unreasonable in comparison with the awards made by the Court in similar cases. In relation to this criterion, it should be noted that the domestic authorities or courts are clearly in a better position than the Court to determine the existence and quantum of pecuniary damage. In relation to non‑pecuniary damage, there exists a strong but rebuttable presumption that excessively lengthy proceedings will cause such damage. Although in some cases the length of proceedings may result in only minimal non‑pecuniary damage or no non‑pecuniary damage at all, the domestic authority or court dealing with the matter will have to justify its decision to award lower or no compensation by giving sufficient reasons, in line with the criteria set out in this Court’s case‑law. In this context, it should additionally be pointed out that the presumption that excessively lengthy proceedings will cause non‑pecuniary damage applies to both individuals and legal persons;
(e) the compensation must be paid promptly and generally no later than six months from the date on which the decision that awards it becomes enforceable.
94. The Court went on to say that, to be truly effective and compliant with the principle of subsidiarity, a compensatory remedy needs to operate retrospectively and provide redress in respect of delays which predate its introduction, both in proceedings which are still pending and in proceedings which have been concluded but in which the persons charged with a criminal offence have already applied to the Court or may do so (see Finger, § 131, and Dimitrov and Hamanov, § 126, both cited above).
95. In response, Bulgaria put in place two compensatory remedies: an administrative one, governed by the new sections 60a et seq. of the 2007 Act, and a judicial one, governed by the new section 2b of the 1988 Act.
96. The Court notes at the outset that States can choose to introduce a solely compensatory remedy in respect of undue length of proceedings without that remedy being automatically regarded as ineffective (see Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002‑VIII; Žunič v. Slovenia (dec.), no. 24342/04, 18 October 2007; Fakhretdinov and Others v. Russia (dec.), nos. 26716/09, 67576/09 and 7698/10, § 28, 23 September 2010; and Trūps v. Latvia (dec.), no. 58497/08, §§ 45‑46, 20 November 2012).
97. The Court will now examine the availability and effectiveness of the two remedies and their compatibility with each of the requirements set out in the pilot judgments.
(i) Procedural guarantees
98. The administrative remedy under the 2007 Act does not follow a contentious procedure, and it cannot therefore be expected that applications for compensation made to the Inspectorate of the Supreme Judicial Council will be examined fully in line with the requirements of Article 6 § 1 of the Convention. However, since the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective (see Klass and Others v. Germany, 6 September 1978, § 67, Series A no. 28; Silver and Others v. the United Kingdom, 25 March 1983, § 113 (b), Series A no. 61; Leander v. Sweden, 26 March 1987, § 77 (b), Series A no. 116; and, more recently, Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 197, ECHR 2012), it should be observed that the Inspectorate enjoys considerable independence (see paragraphs 47 and 48 above). However, it is questionable whether the same could be said of the authority involved in the second stage of the procedure – the Minister of Justice or a person authorised by the Minister. It is also open to doubt whether the Minister’s decision to grant compensation is enforceable. That said, it cannot be overlooked that the administrative remedy is only the first limb of the system of remedies put in place by the Bulgarian authorities, and that there is a second, fully judicial procedure, which can result in a legally binding decision by a court. The situation is therefore fully akin to that obtaining in Vokurka v. the Czech Republic ((dec.), no. 40552/02, § 60, 16 October 2007), where the Court was satisfied that the system of remedies created under Czech law was effective. Indeed, this was noted by the Department for the Execution of Judgments in paragraphs 16‑17 of its memorandum, quoted in paragraph 69 above.
99. As for claims under section 2b of the 1988 Act, they will benefit from the full panoply of the normal judicial procedure applicable to the examination of civil actions (see, mutatis mutandis, De Souza Ribeiro v. France, no. 22689/07, § 92, ECHR 2012).
100. It is true that an issue might arise in relation to the impartiality of the courts hearing such claims in the – by definition rare – situation where the claim is directed against the court dealing with it. Indeed, in one of the pilot judgments the Court noted, by reference to its earlier ruling in Mihalkov v. Bulgaria (no. 67719/01, §§ 45‑51, 10 April 2008), that claims under the 1988 Act may come for hearing before the courts against which they are directed, and that any awards that the courts make pursuant to such claims must be paid out of their budget. Based on that, the Court expressed misgivings about the objective impartiality of the courts hearing such claims (see Dimitrov and Hamanov, cited above, § 97). However, as explained by the Government in their observations, the sums to be paid out as compensation under section 2b of the 1988 Act would come from a distinct line item in the budget of each court. In those circumstances, the Court is satisfied that this factor will not call into question the impartiality of the courts hearing such claims or the effectiveness of the remedy.
(ii) Costs
101. No issue appears to arise in relation to costs or fees.
102. There are no fees for the administrative procedure under the 2007 Act (see section 60a(6) of that Act, quoted in paragraph 50 above). The court fees for the judicial procedure under the 1988 Act are flat‑rate: BGN 10 (5.11 euros (EUR)) in respect of first‑instance proceedings, BGN 5 (EUR 2.56) in respect of appellate proceedings, and BGN 5 (EUR 2.56) in respect of cassation proceedings (see paragraph 60 above). These amounts can hardly be regarded as excessive (see, mutatis mutandis, Charzyński v. Poland (dec.), no. 15212/03, § 38, ECHR 2005‑V, and Uzun, cited above, § 58).
103. It does not appear that there are any costs in the administrative procedure under the 2007 Act, and claimants under the 1988 Act have to meet the defendant authority’s costs only if their claims are rejected in full (see paragraphs 61‑63 above). On the other hand, successful claimants under 1988 Act are able to recoup their own costs (see paragraph 62 above).
(iii) Speediness
104. The speediness of the remedy under the 2007 Act does not give rise to any general concern. The Act lays down two concurring time‑limits: (a) the authority dealing with the applications must draw up its record of findings not more than four months after the moment when the application has been lodged or rectified, as the case may be (see section 60e, quoted in paragraph 50 above), and (b) the application must be finally determined by the Minister of Justice not more than six months after its receipt (see section 60g, also quoted in paragraph 50 above). An extended time‑limit of eighteen months has been laid down for the examination of applications for compensation by persons who have already applied to this Court (see paragraph 34(2) of the transitional and concluding provisions of the Act amending the 2007 Act, quoted in paragraph 50 above). However, it cannot be presumed that the authorities dealing with those applications will wait until the end of that time‑limit and will not be able to determine them speedily.
105. It is true that applications for compensation under the 2007 Act may not be made while the underlying proceedings are still pending (see section 60a(2), quoted in paragraph 50 above). As noted by the Department for the Execution of Judgments (see paragraph 8 of its memorandum, quoted in paragraph 69 above), such a limitation may in some cases undermine the effectiveness of a compensatory remedy (see also Dimitrov and Hamanov, cited above, § 97, citing Robert Lesjak v. Slovenia, no. 33946/03, §§ 52‑53, 21 July 2009). However, as also noted by the Department, that limitation will be largely offset by the possibility of bringing claims under section 2b of the 1988 Act while the underlying proceedings are still pending.
106. The Court is further satisfied that no issue arises in relation to the speediness of the judicial remedy under the 1988 Act. It is true that when the underlying proceedings have come to an end, such claims may be brought only after exhaustion of the administrative remedy under the 2007 Act (see paragraph 57 above). It is also true that those claims will be heard in normal three‑instance judicial proceedings, under the general rules of civil procedure. That is why in one of the pilot judgments the Court expressed some misgivings about such a remedy (see Dimitrov and Hamanov, cited above, § 97). However, it cannot be ruled out of hand as failing to meet the requirements of Article 35 § 1 of the Convention. The Court has consistently held that Contracting States are afforded some discretion as to the manner in which they conform to their obligations under Article 13 of the Convention – which has a close affinity with Article 35 § 1 – to put in place effective domestic remedies (see, among other authorities, Kudła, cited above, § 154; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 188, ECHR 2006‑V; Žunič, cited above; and Taron v. Germany (dec.), no. 53126/07, § 41, 29 May 2012). It is in addition reasonable to expect that in practice the vast majority of grievances will be resolved through the administrative procedure under the 2007 Act, which, except in the case of proceedings that are still pending, needs to be exhausted before recourse could be had to a claim for damages under section 2b of the 1988 Act. This procedure appears, as noted above, sufficiently speedy. Thus, only persons who are unable to obtain adequate redress in that procedure are likely to resort to claims under section 2b of the 1988 Act. Lastly, it is speculative to say that the courts dealing with such claims will not act with due diligence – this is a question of judicial administration and case management (see, mutatis mutandis, Demopoulos and Others, cited above, § 125). It is true that the effectiveness of the remedy will depend on those courts’ ability to handle such cases with special diligence in terms of the length of time taken for their determination. Nevertheless, mere doubts about the effective functioning of a newly created statutory remedy do not dispense applicants from having recourse to it (see Krasuski v. Poland, no. 61444/00, § 71, ECHR 2005‑V (extracts)).
107. The Bulgarian authorities and courts must however take appropriate measures to avoid the clogging up of that avenue of redress (see Grzinčič, cited above, § 109), as the effectiveness of a domestic remedy can be undermined by its excessive duration (see Golha v. the Czech Republic, no. 7051/06, § 49, 26 May 2011, with further references). In this context, the Court observes that several States have chosen to limit compensatory proceedings to one or two judicial instances (ibid., with further references, as well as Taron, cited above, §§ 26 and 43 in fine). Delays in the compensation proceedings may also be made good by an increase of the amount of compensation (see Sartory v. France, no. 40589/07, § 26, 24 September 2009).
(iv) Amount of compensation
108. No issue appears to arise in relation to the amount of compensation.
109. The criteria for the examination of the applications under sections 60a et seq. of the 2007 Act, as set out in its section 60d(1)(5), appear analogous to those laid down in the Court’s case‑law under Article 6 § 1 of the Convention (see, mutatis mutandis, Grzinčič, § 97, and Vokurka, § 63, both cited above). As noted by the Department for the Execution of Judgments (see paragraph 5 of its memorandum, quoted in paragraph 69 above), the 2007 Act does not specifically mention the legal or factual complexity of the case and the stakes involved in the dispute, but contains, in sections 60a(3) and 60f(2), general references to the Court’s case‑law, which should be sufficient to cause the Inspectorate and the Minister to take those factors into account as well, both in determining the merits of the applications and in fixing the amount of compensation. This will be a question of interpretation and practice. It is true that the level of compensation awarded at domestic level may constitute an important element for the assessment of the adequacy of the remedy. However, as already noted, mere doubts about the effective functioning of a newly created statutory remedy do not dispense applicants from having recourse to it (see also Taron, cited above, § 40). It cannot be assumed that the Bulgarian authorities and courts will not give proper effect to the new provisions (see Krasuski, cited above, § 71).
110. The cap on the amount of compensation, laid down in section 60a(3) of the 2007 Act, does not present a problem. An upper limit of BGN 10,000 (EUR 5,112.92) will allow ample room for complying with the Court’s criteria in respect of compensation (see, mutatis mutandis, Grzinčič, cited above, § 90). Moreover, those concerned will be able to seek higher compensation by way of a claim for damages under section 2b of the 1988 Act, which does not envisage any cap on the amount that may be awarded (see, mutatis mutandis, Charzyński, cited above, § 38).
111. The criteria for the examination of claims for damages under section 2b of the 1988 Act, as set out in its subsection 2 (see paragraph 55 above), appear to be fully in line with those laid down in the Court’s case‑law under Article 6 § 1 of the Convention (see, mutatis mutandis, Taron, § 39, and Fakhretdinov and Others, § 26, both cited above).
112. It is true that in cases under the 1988 Act the Bulgarian courts have held that legal persons are not entitled to compensation for non‑pecuniary damage (see paragraph 59 above). However, this does not automatically call into question the remedial effectiveness of claims under the new section 2b of that Act. First, the alleged impossibility for legal persons to obtain compensation for non‑pecuniary damage flowing from the excessive length of proceedings does not affect individuals, such as the applicants in the present case. Moreover, it is far from certain that this limitation will be applied in cases under section 2b. It cannot be overlooked in this connection that in the explanatory notes to the bill for the amendment of the 1988 Act the Government specifically said that the intention was for both individuals and legal persons to be able to bring claims under section 2b, with a view to obviating the need for them to apply to this Court (see paragraph 54 above). The text of the section itself refers to “damage caused to individuals or legal persons” without distinguishing between pecuniary and non‑pecuniary damage. As already noted, it cannot be assumed that the Bulgarian courts will not give proper effect to that provision.
113. In this connection, attention should be drawn to the fact that section 2b was enacted following a pilot procedure intended to enable the Bulgarian authorities and courts to deal domestically, and in line with the criteria flowing from this Court’s case‑law, with grievances relating to the unreasonable length of proceedings. The Bulgarian authorities and courts should therefore take particular care to ensure that the above‑mentioned provisions are applied in conformity with the Convention and the Court’s case‑law (see Grzinčič, cited above, § 109). Under that case‑law, legal persons, including commercial companies, are in principle entitled to compensation for non‑pecuniary damage flowing from the unreasonable length of proceedings (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, §§ 31‑37, ECHR 2000‑IV; Římskokatolická Farnost Obříství v. the Czech Republic, no. 65196/01, § 38, 24 May 2005; and Provide S.r.l. v. Italy, no. 62155/00, §§ 10, 24 and 46, 5 July 2007).
(v) Prompt payment of compensation
114. As noted by the Department for the Execution of Judgments (see paragraph 21 of its memorandum, quoted in paragraph 69 above), the 2007 Act does not lay down a time‑limit for the payment of compensation. However, the Act contains, in section 60j(1) and (2), specific budgetary provisions which should enable the authorities to pay compensation in time (see, mutatis mutandis, Demopoulos and Others, § 125, and Grzinčič, § 90 in fine, both cited above). The 1988 Act does not lay down a time‑limit either, and does not contain budgetary provisions. Although proceedings under that Act result in final and binding judicial decisions, Bulgarian law does not allow the enforcement of judicially determined money claims against State bodies (see paragraphs 65 and 66 above). However, this problem is not necessarily systematic and it would be speculative at this stage to say that compensation granted in administrative proceedings section 60a et seq. of the 2007 Act or damages awarded under section 2b of the 1988 Act will not be paid in due time.
(vi) Scope
115. The administrative remedy under the 2007 Act covers civil, administrative and criminal proceedings, including pre‑trial proceedings (see section 60a(2), quoted in paragraph 50 above). It is open to persons who are aggrieved by the length of proceedings which have come to an end (ibid.).
116. The judicial remedy under the 1988 Act appears to cover all sorts of judicial proceedings (see section 2b, quoted in paragraph 55 above). It is open to persons who are aggrieved by the length of proceedings which are still pending (see section 2b(3), quoted in paragraph 55 above), as well as to persons who are aggrieved by the length of proceedings which have come to an end but who have not obtained adequate redress through the administrative remedy under the 2007 Act (see section 8(2), quoted in paragraph 57 above). The Department for the Execution of Judgments expressed misgivings about whether that remedy covers delays attributable to police investigators, who in Bulgaria are not regarded as “judicial authorities” (see paragraph 25 of its memorandum, quoted in paragraph 69 above). Those misgivings were based only on the title of section 2b of the 1988 Act, which speaks of “[l]iability of the judicial authorities”. However, the section’s text refers to “the competent authorities” (see paragraph 55 above), which may be interpreted as covering all authorities, judicial or other, whose conduct might cause delay. Again, this will be a question of interpretation and practice; it cannot be assumed that the Bulgarian courts will not give proper effect to the new provisions (see Krasuski, cited above, § 71).
(vii) Retrospective effect
117. As regards retrospective effect, it should be observed that both the administrative remedy under the 2007 Act and the judicial remedy under the 1988 Act were enacted with transitional provisions that enable the domestic authorities and courts to deal with applications – such as the one at hand – pending before this Court, and even with grievances concerning unreasonably lengthy proceedings that may come before this Court (see paragraphs 51 and 58 above, as well as, mutatis mutandis, Vokurka, § 62, and Taron, § 43, both cited above). The wording of paragraph 34(1) of the transitional and concluding provisions of the Act amending the 2007 Act was, as noted by the Department for the Execution of Judgments in paragraph 10 of its memorandum (see paragraph 69 above), somewhat infelicitous, but this problem can be regarded as resolved with the subsequent enactment of paragraph 8(2) of the transitional and concluding provisions of the Act amending the 1988 Act. No issue arises in relation to the time‑limit (contrast, mutatis mutandis, Ratajczyk v. Poland (dec.), no. 11215/02, ECHR 2005‑VIII, and Grzinčič, cited above, §§ 65‑66) because it is alternative: the six‑month time‑limit under the two new remedies runs either from the moment when the amendments came into force – 1 October 2012 and 15 December 2012, respectively – or from the moment when the applicants are notified that their applications to the Court have been declared inadmissible for non-exhaustion of domestic remedies. Under paragraph 34(2) of the transitional and concluding provisions of the Act amending the 2007 Act, the Inspectorate attached to the Supreme Judicial Council and the Minister of Justice will have to deal with their applications for compensation within eighteen months (see paragraph 51 above). If that procedure does not afford adequate redress, the persons concerned will be able to turn to the judicial remedy under the 1988 Act.
(viii) Conclusion on the effectiveness of the new remedies
118. Having regard to the foregoing, and basing its conclusion on an assessment of the legislative provisions as they stand, the Court finds that, taken together, an application for compensation under sections 60a et seq. of the 2007 Act and a claim for damages under section 2b of the 1988 Act can be regarded as effective domestic remedies in respect of the allegedly unreasonable length of proceedings before the civil, criminal and administrative courts in Bulgaria.
119. It is true that no long‑term practice of domestic authorities and courts applying those provisions has been established at this time. However, it is clear that those provisions were specifically designed to provide compensation for unreasonable length of proceedings (see Grzinčič, § 108, and Fakhretdinov and Others, § 27, both cited above). It should also be noted in this connection that before the administrative remedy under the 2007 Act became operational the Council of Ministers put in place special budgetary arrangements to enable the Inspectorate attached to the Supreme Judicial Council to create a special unit administering the remedy. The Inspectorate then appointed a number of officials and assigned them to that unit, and later took practical steps enabling those concerned to lodge and track the progress of their applications for compensation with ease (see paragraphs 52 and 53 above, and, mutatis mutandis, Uzun, cited above, §§ 24 and 65).
120. The remedies under examination appear to be available not only to persons who were party to proceedings which ended after they became operational – 1 October and 15 December 2012, respectively – but also to persons who were party to proceedings which ended less than six months before 15 December 2012, and to persons, such as the applicants in the present case, who lodged applications with this Court before those dates.
(c) Are the applicants required to have recourse to the newly introduced remedies?
121. It remains to be established whether the applicants are required to have recourse to the new remedies.
122. It is true that under the Court’s case‑law the availability of effective domestic remedies is normally assessed by reference to the date of lodging of the application. However, this rule is subject to exceptions if this is justified by the circumstances of the case (see Demopoulos and Others, cited above, § 87, with further references). In particular, the Court has previously departed from this rule in cases against Italy, Croatia, Slovakia, Poland, Slovenia, the Czech Republic, Germany, Russia and Turkey concerning newly introduced remedies in respect of the excessive length of proceedings (see Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX; Giacometti and Others v. Italy (dec.), no. 34939/97, ECHR 2001‑XII; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002‑VIII; Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002‑IX; Charzyński, cited above, §§ 35 and 40; Grzinčič, cited above, §§ 99‑106; Vokurka, cited above, § 49; Fakhretdinov and Others, cited above, §§ 30‑31; Taron, cited above, §§ 36 and 42‑44; and Turgut and Others v. Turkey (dec.), no. 4860/09, §§ 49‑56, 26 March 2013). It sees no reason to take a different approach in the present case.
(d) Conclusion on the admissibility of the complaint
123. There is no indication that the applicants have brought proceedings under section 60a et seq. the 2007 Act or section 2b the 1988 Act, which appear to operate retrospectively, or that there exist special circumstances which absolve them from doing so.
124. It follows that their complaints concerning the length of the proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
C. The alleged lack of an effective remedy in respect of the length of the proceedings
125. In respect of his complaint about the lack of an effective remedy in respect of the length of the proceedings in his case Mr Abrashev relied on Article 13 of the Convention, which provides 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.”
126. The Government submitted that Mr Abrashev did have such remedies at his disposal. Since the criminal proceedings against him had come to an end on 4 March 2013, he could apply for compensation under sections 60a et seq. of the 2007 Act. If he did not accept the settlement available in those proceedings, he could resort to a claim under section 2b of the 1988 Act.
127. Mr Abrashev referred to his submissions dealing with the exhaustion of domestic remedies in relation to his complaint under Article 6 § 1 of the Convention, and on that basis argued that there had been a breach of Article 13.
128. The Court already found that the newly introduced remedies under the 1988 Act and the 2007 Act are available and effective for the purposes of Article 35 § 1 of the Convention. Bearing in mind the close affinity between that provision and Article 13 of the Convention (see, among other authorities, Kudła, § 152, and Scordino (no. 1), § 141, both cited above), it considers that that finding is equally valid in the context of the present complaint (see Nogolica; Charzyński, § 45; Grzinčič, § 111; and Taron, § 48, all cited above).
129. It follows that the complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Françoise Elens‑PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy