BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF SIRMANOV v. BULGARIA
(Application
no. 67353/01)
JUDGMENT
STRASBOURG
10
May 2007
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 Sirmanov 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 10 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 67353/01) 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 Mr Nikolay Tsonev Sirmanov, a Bulgarian
national born in 1968 and living in Gabrovo (“the applicant”),
on 19 November 2000.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Karadzhova, of the Ministry of Justice.
- On
26 September 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- In
a judgment of 8 February 1990 the Pleven Military Court convicted the
applicant of a criminal offence, which had been, according to this
court, committed during the applicant's probationary period after his
early release from prison, and sentenced him, inter alia, to
serve the remainder of the sentence from his prior conviction, which
the applicant did, between 21 December 1989 and 20 March 1990.
In a judgment of 16 May 1994 the Supreme Court quashed that judgment
and ruled that the applicant should not have served the remainder of
his prior prison sentence.
- In
1998 the applicant brought proceedings against the Pleven Military
Court under section 2(6) the State Responsibility for Damage Act (see
paragraph 16 below), seeking 25,0000,000 old Bulgarian levs (BGL)
as compensation for the time he had spent in custody between 21
December 1989 and 20 March 1990.
- In
a judgment of 7 June 1999 the Pleven Regional Court found that the
applicant's deprivation of liberty during that period had been
unlawful within the meaning of above-mentioned provision and awarded
him BGL 1,000,000 in non pecuniary damages, together with
interest at the statutory rate, from 21 December 1989 until the
final settlement of the judgment debt. It dismissed the remainder of
the applicant's claim.
- As
none of the parties appealed, the judgment entered into force on
17 June 1999.
- The
applicant obtained a writ of execution against the Pleven Military
Court on 17 June 1999. On the same date he presented it to the
chairperson of that court for payment. The chairperson made a copy of
the writ and returned the original to the applicant.
- As
no payment was made, the applicant complained to numerous State
agencies and bodies.
- In
a letter of 14 September 1999 the Inspectorate of the Ministry of
Justice informed the applicant that the amount owed to him was
BGL 6,128,316. Since this was a significant amount for the
budget of the Pleven Military Court, the chairperson of that court
had made an express request for funding before the Supreme Judicial
Council – the body responsible for managing the judiciary's
budget. The debt would be paid fully or in part, depending on the
amount of the available funding.
- On
17 April 2000 the applicant asked the Pleven Regional Court to issue
him a duplicate of the writ of execution, because the original had
been stolen. His request was examined at a hearing on 16 June 2000
and the duplicate was issued on 9 August 2000.
- In
the meantime, on 23 May 2000, the Supreme Judicial Council allotted
to the Pleven Military Court 1,000 new Bulgarian levs (BGN) with a
view to paying the debt towards the applicant. On 1 June 2000 the
Pleven Military Court paid the applicant BGN 1,000, apparently
intended to be imputed to the principal of the debt. However, the
remainder of the debt remained outstanding.
- The
applicant subsequently complained to various authorities, such as the
President of the Republic, the Supreme Cassation Prosecutor's Office,
the Ministry of Finance and the Supreme Judicial Council. In a letter
of 8 June 2000 the chief secretary of the Supreme Judicial Council
informed the applicant that the processing of the payment had been
delayed because the amount due was not a usual line item in the
judiciary's budget and had to be specifically allotted to the Pleven
Military Court.
- In
a further letter of 7 December 2000 the administration of the Supreme
Judicial Council informed the applicant that on 29 November 2000 the
chairperson of the Pleven Military Court had apprised the Council
that the court lacked funding to pay the remainder of the debt
towards the applicant and had requested an increase of its budget
appropriation for 2001.
- On
24 September 2003 the accountant of the Pleven Military Court paid
the applicant the remainder of the judgment debt (BGN 5,262.01) and
the applicant signed a declaration that he had received the amount
and had no further claims against the court or the Supreme Judicial
Council.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Compensation for unlawful imprisonment
- Section
2 of the State Responsibility for Damage Act of 1988 (formerly „Закон
за отговорността
на държавата
за вреди, причинени
на граждани“,
presently „Закон
за отговорността
на държавата
и общините за
вреди“), which sets out
causes of action for tort claims against the investigation and
prosecution authorities and the courts, provides, as relevant:
“The State shall be liable for damage caused to
[private persons] by the organs of ... the investigation, the
prosecution, the courts ... for unlawful:
...
6. execution of a sentence above and beyond
the specified period.”
B. Enforcement of judgment debts against state
authorities
- By
paragraph 2 of Article 399 of the Code of Civil Procedure of 1952, a
person who has an enforceable pecuniary claim (e.g. a judgment debt)
against a state authority receives payment out of the funds earmarked
for that purpose in the authority's budget.
- The
writ of execution evidencing the claim must be submitted to the
authority's financial department. If there are no funds available in
the authority's budget, the higher administrative authority has to
ensure that funds become available in the budget for the following
year.
- Enforcement
proceedings are not possible where the judgment debtor is a state
authority. Until December 1997 paragraph 1 of Article 399 of the Code
contained an express prohibition to that effect. Although this
provision was repealed in December 1997, the legal framework remained
unchanged, as paragraph 2 of Article 399 was not amended.
C. Partial payment and imputation of payment
- Section
66 of the Obligations and Contracts Act of 1950 („Закон
за задълженията
и договорите“)
provides that the creditor is not bound to accept partial payment
even if the obligation is severable. Section 76(2) of that Act
provides that when a payment by the debtor is not sufficient to
extinguish the interest, the expenses and the principal of the debt,
the money paid is imputed first to the expenses, then to the
interest, and at the end to the principal. This rule is in the
interest of the creditor (реш. №
748 от 24 април
2001 г. по
гр.д. №
2504/2000 г., V
г.о. на ВКС) and
reflects the idea that he or she should not be deprived of an
interest bearing debt and remain only with the claim in respect
of the interest (реш. № 6
от 6 януари 1956 г.
по гр.д. № 7963/1955 г., I
г.о. на ВС).
THE LAW
I. ADMISSIBILITY
- The
Government submitted that the applicant had ceased to be a victim of
a violation, within the meaning of Article 34 of the Convention, as
on 24 September 2003 he had received the entire amount which had been
due to him under the judgment of the Pleven Regional Court. Unlike
the situation obtaining in the case of Burdov v. Russia (no.
59498/00, ECHR 2002 III), this payment had taken place
before notice of the application had been given to the Government.
Moreover, the applicant had signed a declaration to the effect that
he had no further claims in respect of the amount due to him.
- The
applicant did not express an opinion on the matter.
- Article
34 of the Convention provides, as relevant:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto...”
- According
to the Court's case law, a measure favourable to the applicant
is not in principle sufficient to deprive him of his status as a
“victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Burdov, cited
above, § 31; Timofeyev v. Russia, no. 58263/00, §
36, 23 October 2003; and Romashov v. Ukraine, no.
67534/01, § 26, 27 July 2004).
- It
is true that on 24 September 2003 the applicant received the entirety
of the judgment debt due to him by the authorities (see paragraph 15
above). However, this payment, while putting an end to the situation
complained of, did not involve any acknowledgment of the violations
alleged. In particular, the declaration signed by the applicant did
not constitute such an acknowledgment, since it did not relate to the
delay in the payment of the debt, but solely to the fact that no
further amounts were due to him under the judgment of the Pleven
Regional Court of 7 June 1999. No mention was made in the declaration
of the grievances raised by the applicant before this Court. Nor did
the payment afford the applicant adequate redress, as it did not
remedy the failure of the authorities to comply with the final
judgment in the applicant's favour for more than four years (see
Burdov, § 31; Timofeyev, § 37; and Romashov,
§ 27, all cited above).
- The applicant may therefore still claim to be a victim
of a violation and his application is not inadmissible on that
ground.
- The Court further considers that the application is
not manifestly ill founded within the meaning of Article 35 §
3 of the Convention, nor inadmissible on any other grounds. It must
therefore be declared admissible.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the authorities had failed to comply with
the judgment in his favour. The Court considers that this complaint
falls to be examined under Article 6 § 1 of the Convention,
which provides, as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law.”
- The
applicant submitted that the amount which he had been awarded for his
unlawful detention had not only been unjust and very low, but had
also remained unpaid for a considerable time.
- The
Government submitted that the applicant had failed to present the
writ of execution to the appropriate authority – the Supreme
Judicial Council – until mid 2000, and had instead
addressed himself to various other bodies which had no competence in
the matter. However, under Bulgarian law, the writ had to be
presented to the financial department of the debtor authority. In
view of the applicant's failure to do so in good time, it was not
surprising that no funds had been made available as early as November
2000. Finally, it had to be taken into account that the period in
issue had been a time of reform in the judicial system and in the
Supreme Judicial Council. Moreover, this period had not been one of
high inflation.
- The
Court reiterates that the right of access to a court, enshrined in
Article 6 § 1 of the Convention, would be illusory if a
Contracting State's domestic legal system allowed a final, binding
judicial decision to remain inoperative to the detriment of one
party. The execution of a final judgment given by any court must
therefore be regarded as an integral part of the “trial”
for the purposes of Article 6 § 1. The rule of law, one of the
fundamental principles of a democratic society, is inherent in all
Articles of the Convention and entails a duty on the part of the
State and any public authority to comply with judicial orders or
decisions against it (see Burdov, § 34; Timofeyev,
§ 40, and Romashov, § 42, all cited above; as well
as Prodan v. Moldova, no. 49806/99, § 52, ECHR 2004 III
(extracts)).
- The
Court notes that the Pleven Regional Court's judgment of 7 June 1999,
which became final on 17 June 1999, remained unenforced until
24 September 2003, that is, for more than four years (see
paragraphs 8 and 15 above). The Government stated that part of this
delay – the period until November 2000 – was due to the
fact that the applicant had not presented his writ of execution to
the Supreme Judicial Council (see paragraph 30 above). However, the
Court notes that under Article 399 § 2 of the Code of Civil
Procedure of 1952, a judgment creditor claiming the payment of a
judgment debt from a state authority has to present the writ of
execution to the financial department of that authority, not its
superior (see paragraph 18 above). In the case at hand the applicant
addressed his claim to the Pleven Military Court on the day when he
obtained the writ of execution – 17 June 1999. That court was
the debtor authority and accordingly took steps to comply with its
obligation, including informing the Supreme Judicial Council about
the lack of funds in its budget (see paragraphs 8, 10, 12 and 14
above). The Court sees no reason why the applicant would have in
addition been required to present his writ of execution to the
Supreme Judicial Council to obtain the payment of the sum due. It
follows that the delay between 17 June 1999 and November 2000 cannot
be imputed to the applicant's behaviour. Nor does it seem that the
issuing of a duplicate of the writ of execution (see paragraph 11
above) prevented the authorities from complying with their obligation
to pay.
- The
Court further notes that while a part of the judgment debt towards
the applicant – BGN 1,000 – was paid on 1 June 2000, i.e.
less than a year after the judgment, the remainder was not settled
until 24 September 2003, for no apparent reason other than the lack
of funds in the Pleven Military Court's budget (see paragraphs 12 15
above). However, it is not open to a State authority to cite lack of
funds as an excuse for not honouring a judgment debt (see Burdov,
§ 35; and Prodan, § 53, both cited above).
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant further complained that the failure to execute the judgment
in his favour had prevented him from using the sum due. The Court
considers that this complaint falls to be examined under Article 1 of
Protocol No. 1, which reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
parties relied on their submissions under Article 6 § 1 of the
Convention.
- According
to the Court's case law, a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 to the Convention if it is sufficiently established to be
enforceable (see Burdov, § 40; and Prodan, §
59, both cited above).
- The
Pleven Regional Court's judgment of 7 June 1999, which became final
on 17 June 1999, provided the applicant with an enforceable claim
against the State. It follows that the applicant's impossibility to
obtain the execution of this judgment in full before 24 September
2003 constituted an interference with his right to the peaceful
enjoyment of his possessions, enshrined by the first sentence of the
first paragraph of Article 1 of Protocol No. 1 (ibid.). By
failing to comply for more than four years with the final judgment of
the Pleven Regional Court, the national authorities prevented the
applicant from receiving the money he could reasonably have expected
to receive. The Government have not advanced any good reason for this
and the Court considers that a lack of funds cannot justify such an
omission.
- There
has therefore been a violation of Article 1 of Protocol No. 1.
IV. 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 14,130 euros (EUR) for the non-pecuniary damage
suffered as a result of the failure of the authorities to comply with
the judgment in his favour. He submitted that this omission had
caused him anguish and distress.
- The
Government did not express an opinion on the matter.
- The
Court considers that the applicant must have been caused a certain
amount of frustration as a result of the prolonged non enforcement
of the final judgment in his favour. It therefore awards him the
amount of EUR 700, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant did not seek the reimbursement of any costs and expenses.
- The
Court sees no reason to make an award under this head of its own
motion.
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
1 of Protocol No. 1;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 700
(seven hundred euros) in respect of non pecuniary damage, plus
any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
