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FIFTH
SECTION
CASE OF BABICHKIN v. BULGARIA
(Application
no. 56793/00)
JUDGMENT
STRASBOURG
10 August 2006
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Babichkin v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego
Borrego,
Mrs R. Jaeger, judges
and Mrs C. Westerdiek,
Section Registrar,
Having
deliberated in private on 3 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 56793/00) against the
Republic of Bulgaria lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Bulgarian national, Mr Dimitar Angelov Babichkin
(“the applicant”), on 19 January 2000.
- The
applicant was represented by Ms S. Stefanova and Mr M. Ekimdjiev,
lawyers practising in Plovdiv.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Karadjova, of the Ministry of Justice.
- On
26 November 2004 the Court decided to communicate the application to
the Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
- On
1 April 2006 this case was assigned to the newly constituted Fifth
Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1939 and lives in Asenovgrad.
- On
29 May 1991 he entered into an employment agreement with a local
company (the “company”) whereby he undertook to work for
it abroad. Several months later, while working for the company in
Germany, the applicant fell seriously ill, underwent an operation and
was on sick leave for about two months. At the end of his sick leave
on 18 October 1991, the applicant found that his employment
agreement had been unilaterally terminated by the company. He
returned to Bulgaria soon thereafter.
- On
19 May 1992 the applicant initiated an action against the company. He
sought damages in the amount of 13,170 German marks (DEM), or their
equivalent of 184,389 Bulgarian levs (BGL), on account of the
company’s failure to pay out sick leave entitlements, back pay
for overtime work and a payment for an insurance policy.
- The
Plovdiv Regional Court conducted ten hearings between 2 September
1992 and 23 January 1995, scheduled two to five months apart. During
this time it obtained two experts’ reports and questioned
witnesses. Of the hearings conducted, one was adjourned from 5 March
to 5 May 1993 due to the absence of the applicant, another was
postponed from 12 May to 14 September 1994 at the request of the
defendant and a third, was adjourned from 14 September to 28
November 1994 because the defendant was hindering an expert from
completing his report.
- In
a judgment of 2 March 1995 the Plovdiv Regional Court found partly in
favour of the applicant. It awarded him BGL 1,032 for sick leave
entitlements and dismissed the remainder of his claims. On 22 March
1995 the applicant appealed against the judgment.
- A
hearing was held before the Supreme Court on 28 February 1996.
- In
a judgment of 16 July 1996 the Supreme Court declared the judgment of
the Plovdiv Regional Court null and void and remitted the case to the
lower court. It established that the lower court had been sitting in
an unlawful composition of three judges rather than of one judge and
two jurors.
- At
the retrial, the Plovdiv Regional Court conducted nine hearings
between 28 October 1996 and 12 June 1998, scheduled one to four
months apart. During this time it obtained an expert’s report
and questioned witnesses. Of the hearings conducted, one was
adjourned from 29 April to 2 May 1997 because the applicant
could not be summoned at his address. In addition, between 3
September 1997 and 16 April 1998 three consecutive hearings were
postponed because the applicant or his lawyer were ill and at the
request of the defendant in order to acquaint himself with the
expert’s report.
- In
a judgment of 22 December 1998 the Plovdiv Regional Court again found
partly in favour of the applicant. It awarded him BGL 24,100 for sick
leave entitlements and dismissed the remainder of his claims. On
25 February 1999 the applicant appealed against the judgment.
- The
Plovdiv Court of Appeals conducted four hearings between 10 September
1999 and 17 April 2000, scheduled one to four months apart. One of
the hearings was adjourned from 10 September to 19 November 1999
because the applicant was ill.
- In
a judgment of 3 July 2000 the Plovdiv Court of Appeals quashed part
of the judgment of the lower court in respect of the amount awarded
to the applicant for sick leave entitlements in Bulgarian levs and
rendered a judgment in the case whereby it re-calculated the award in
German marks, specifying it to be DEM 1,679 plus interest as from 22
May 1992. It upheld the remainder of the judgment of the Plovdiv
Regional Court in respect of the dismissal of the applicant’s
other claims. On 13 September 2000 the applicant appealed
against the judgment.
- A
hearing was held before the Supreme Court of Cassation on 5 June
2001.
- In
a judgment of 10 August 2001 the Supreme Court of Cassation quashed
part of the judgment of 3 July 2000 of the Plovdiv Court of Appeals,
in which the latter had upheld the dismissal of the applicant’s
claims for back pay and overtime work, and remitted that part of the
case to the lower court. It upheld the remainder of the judgment of
the Plovdiv Court of Appeals in respect of the amounts awarded for
sick leave entitlements.
- The
Plovdiv Court of Appeals conducted three hearings between 24 October
2001 and 23 January 2002, scheduled one to two months apart, during
which time an expert’s opinion was obtained.
- In
a judgment of 22 February 2002 the Plovdiv Court of Appeals quashed
the remaining part of the judgment of 22 December 1998 of the Plovdiv
Regional Court and rendered a judgment in the case in which it
ordered the company to pay the applicant DEM 2,220 for back pay and
overtime work plus interest as from 22 May 1992.
- On
25 March 2002 the applicant obtained a writ of execution against the
company for the amounts awarded. It is unclear whether and if the
applicant obtained execution of the same.
- On
3 April 2002 the company appealed against the judgment of the Plovdiv
Court of Appeals.
- A
hearing was held before the Supreme Court of Cassation on 25 February
2004.
- In
a final judgment of 5 March 2004 the Supreme Court of Cassation
upheld the judgment of 22 February 2002 of the Plovdiv Court of
Appeals.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the civil proceedings had
been incompatible with the “reasonable time” requirement,
provided in Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument. They claimed that the parties to
the proceedings had contributed to their overall length and that the
authorities had shown the required diligence in processing the case.
In addition, they contended that what was at stake for the applicant
was not significant.
The
applicant disagreed with the Government’s arguments.
A. Period to be taken into consideration
- The
parties agreed that the period to be taken into consideration did not
begin to run on 19 May 1992 when the applicant initiated the
action against the company (see paragraph 8 above), but only on
7 September 1992 when the Convention entered into force in
respect of Bulgaria. However, in order to determine whether the time
which elapsed following this date was reasonable, it is necessary to
take account of the stage which the proceedings had reached at that
point (see Proszak v. Poland, judgment of 16 December 1997,
Reports of Judgments and Decisions 1997 VIII, p. 2772,
§ 31). The Court notes that on 7 September 1992 the proceedings
had been pending before the court of first instance for only three
and a half months and that only one hearing had been conducted.
- As
regards the end of the period under consideration, the Government
contended that the proceedings should be considered to have ended on
26 March 2002 when the applicant obtained a writ of execution for the
amounts awarded. The applicant disagreed with the Government’s
argument.
The
Court notes that following the issuance of the writ of execution the
defendant appealed against the judgment of the Plovdiv Court of
Appeals and the proceedings continued before the Supreme Court of
Cassation (see paragraphs 22-24 above). Accordingly, the judgment of
the Plovdiv Court of Appeals did not enter into force and did not
definitively determine the amount of compensation due, thereby
bringing the domestic proceedings to an end (see Pailot v. France,
judgment of 22 April 1998, Reports 1998 II, p. 802,
§ 59). The Court therefore finds that the period under
consideration ended on 5 March 2004, when the Plovdiv Court of
Appeals’s judgment became final (see paragraph 24 above).
- The
overall length of the proceedings was thus eleven years, nine months
and nineteen days, of which eleven years, five months and thirty days
fall within the Court’s competence ratione temporis,
during which time the case was examined seven times at three levels
of jurisdiction.
B. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
C. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII). In addition, only delays attributable to the
State may justify a finding of a failure to comply with the
“reasonable time” requirement (see H. v. France,
judgment of 24 October 1989, Series A no. 162 A, pp. 21-22, §
55).
- The
Court considers that the case was moderately complex as it involved
the completion of experts’ reports pertaining to the
determination of the amounts claimed by the applicant.
- In
respect of the conduct of the applicant and the defendant, the Court
finds that there were certain delays directly attributable to them as
a result of failure to appear at some of the hearings, unreasonable
requests for adjournments and illnesses. Moreover, the defendant
hindered an expert from completing his report to the court by
obstructing or denying him access to the accounting documents in its
possession (see paragraph 9 above). In conclusion, having regard to
the facts of the case, the applicant and the defendant were directly
responsible for eight months and seventeen days of delay during the
first hearing of the case before the Plovdiv Regional Court (see
paragraph 9 above), seven months and fifteen days at the time of the
retrial before the same court (see paragraph 13 above) and two months
and nine days before the Plovdiv Court of Appeals (see paragraph 15
above). Thus, the total period of delay not attributable to the State
was one year, six months and eleven days.
- As
to the conduct of the authorities, the Court notes at the outset that
the domestic courts conducted hearings at regular intervals of one to
five months apart (see paragraphs 9, 13, 15 and 19 above). The
transfer of the case between the various courts did not result in any
significant delays with one notable exception: further to the
defendant’s appeal of 3 April 2002 the Supreme Court of
Cassation conducted a hearing one year, ten months and twenty four
days after it had been lodged (see paragraphs 22-23 above).
The
most significant delay in the proceedings, however, resulted from the
judgment of the Plovdiv Regional Court having been declared null and
void on 16 July 1996 due to a procedural violation by the said
court (see paragraph 12 above). This resulted in a retrial and fully
negated the proceedings up to that point, which had involved two
levels of jurisdiction and had lasted almost four years and two
months, of which eight months and seventeen days were attributable to
the applicant and the defendant (see paragraphs 9 and 33 above).
Thus,
considering the above period of inactivity before the Supreme Court
of Cassation and the delay as a result of the retrial, the period of
delay attributable to the authorities is five years, four months and
five days.
- Lastly,
the Court reiterates that special diligence is necessary in
employment disputes (see Ruotolo v. Italy, judgment of
27 February 1992, Series A no. 230 D, p. 39, § 17).
- Considering
the above, the Court is of the opinion that the “reasonable
time” requirement of Article 6 § 1 of the Convention
was breached in the present case on account of the civil proceedings
initiated by the applicant having lasted eleven years, nine months
and nineteen days, of which eleven years, five months and thirty days
fall within the Court’s competence ratione temporis,
during which time the case was examined seven times at three levels
of jurisdiction.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant also complained of the fact that in Bulgaria there was no
court to which application could be made to complain of the excessive
length of proceedings. He relied on Article 13 of the Convention,
which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government did not expressly contest that argument.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI).
- The
Court notes that in similar cases against Bulgaria it has found that
a complaint based on the direct applicability of the Convention in
Bulgarian law is not an effective remedy and neither is a “complaint
about delays” under Article 217a of the Code of Civil
Procedure. In addition, it does not appear that Bulgarian law
provides any other means of redress whereby a litigant could obtain
the speeding up of civil proceedings. Finally, as regards
compensatory remedies, the Court has also not found it established
that in Bulgarian law there exists the possibility to obtain
compensation or other redress for excessively lengthy proceedings
(see, for example, Rachevi v. Bulgaria, no. 47877/99, §§
96-104, 23 September 2004). The Court sees no reason to reach a
different conclusion in the present case.
- Accordingly,
there has been a violation of Article 13 of the Convention in that
the applicant had no domestic remedy whereby he could enforce his
right to a “hearing within a reasonable time” as
guaranteed by Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) as compensation for the
non pecuniary damage arising out of the excessive length of the
proceedings. Furthermore, the applicant claimed that he had been
frustrated on account of the lack of remedies against the
unreasonable length of the proceedings.
- The
Government did not express an opinion on the matter.
- The
Court considers that it is reasonable to assume that the applicant
may have suffered some distress and frustration on account of the
unreasonable length of the proceedings and the lack of any remedies
in this respect. Moreover, it notes that what was at stake for the
applicant was significant (see paragraph 35 above). Accordingly,
taking into account the circumstances of the case, and making its
assessment on an equitable basis, the Court awards the applicant the
sum of EUR 3,600 as compensation for the non pecuniary damage
arising out of the excessive length of the proceedings.
B. Costs and expenses
- The
applicant claimed EUR 1,851 for 25.5 hours of legal work on the
proceedings before the Court, at the hourly rate of EUR 70. In
addition, he claimed EUR 117 for translation of documents, stationery
and postal expenses of his lawyers. He submitted a legal fees
agreement between him and his lawyers, a timesheet, an agreement for
the translation expenses and postal receipts. The applicant requested
that the costs and expenses incurred should be paid directly to his
lawyers, Ms S. Stefanova and Mr M. Ekimdjiev.
- The
Government did not express an opinion on the matter.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the instant case, the Court considers
that the hourly rate of EUR 70 is excessive and that a reduction of
the same is appropriate (see, a contrario, Anguelova v.
Bulgaria, no. 38361/97, § 176 in
fine, ECHR 2002 IV; Nikolov
v. Bulgaria, no. 38884/97, § 111, 30 January 2003;
Toteva v. Bulgaria, no. 42027/98, § 75, 19 May
2004 and Rachevi, cited above, § 111, where
the Court found an hourly rate of EUR 50 reasonable). Having regard
to all relevant factors, the Court considers it reasonable to award
the sum of EUR 1,000 covering costs and expenses for the proceedings
before the Court, plus any tax that may be chargeable on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay to the applicant, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts, to be
converted into Bulgarian levs at the rate applicable on the date of
settlement :
(i) EUR
3,600 (three thousand six hundred euros) in respect of non-pecuniary
damage, payable to the applicant himself;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses, payable
in two equal instalments of EUR 500 (five hundred euros) into the
bank accounts of the applicant’s lawyers in Bulgaria, Ms S.
Stefanova and Mr M. Ekimdjiev;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
