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FIFTH
SECTION
CASE OF DOINOV v. BULGARIA
(Application
no. 68356/01)
JUDGMENT
STRASBOURG
27
September 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 Doinov 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 4 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 68356/01) 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 a Bulgarian national, Mr Ognian Nakov Doinov (“the
applicant”) who was born in 1935 and lived in Vienna, on 29
December 1999. He passed away on 13 February 2000. In a letter of 26
March 2001 his wife, Mrs Elena Petkova Doinova, and his son, Mr Rosen
Ognianov Doinov (the “heirs”), informed the Court that
they wished to continue the present application.
- The
applicant and his heirs were represented by Mrs
Y. Vandova, a lawyer practising in Sofia.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Kotzeva, of the Ministry of Justice.
- On
3 November 2005 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the criminal
proceedings 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background
- The
applicant was formerly a member of the Bulgarian Communist Party
(“BCP”), in which he held the position of Secretary of
the Central Committee of the BCP (1976-1986) and was a Member of the
Politburo of the Central Committee of the BCP (1977-1988). He was
also a Member of the National Assembly (1974-1990), the Minister for
Industry and a Member of the Council of Ministers (1984-1986) and the
Bulgarian Ambassador to Norway (1989-1990).
- The
applicant contended that following the democratic changes of 1989 the
authorities started to systematically intimidate and harass both him
and his family. In particular, despite continuing to have immunity as
a Member of the National Assembly, his family residence had been
searched, an inventory of all their possessions had been made and
several restrictions had been placed on their real property. Fearing
further intimidation, reprisals and possible unjustified prosecution
by the authorities the applicant left the country on 14 April 1990.
Thereafter he resided in Vienna, Austria.
B. The criminal proceedings
- Preliminary
investigation No. 3/92 was opened on 9 July 1992 by the Chief
Prosecutor's Office against all the members of the Bureau of the
Council of Ministers and the Secretariat of the Central Committee of
the BCP for the period between 1981 and 1989. A total of twenty-two
persons were charged, on an unspecified date, that during the said
period they had participated in the adoption of decisions to provide
financial assistance or extend loans, totalling 243,537,000 old
Bulgarian levs (BGL), to (a) foreign countries, in respect of the
Government, and (b) foreign political parties, in respect of the BCP.
The decisions in question had been adopted by the Bureau of the
Council of Ministers, the Secretariat or the Politburo of the Central
Committee of the BCP. These persons, including the applicant, were
charged under Article 203, in conjunction with Articles 201, 202 and
282, of the Criminal Code for having misappropriated, in concert, the
aforementioned funds. It was contented that, in breach of their
official duties, they had facilitated the misappropriation with the
aim of obtaining an advantage for a third party, thereby causing
considerable economic damage to the country's economy. In view of the
very large sums involved, the offence was qualified as being very
serious.
- In
respect of the applicant, the initial charges against him were also
under the above quoted provisions of the Criminal Code. It was
contended that between 1981 and 1986 in his capacity of an official,
Political Secretary of the BCP, and in concert with another ten
officials, members of the Secretariat of the Central Committee of the
BCP, he had misappropriated public funds and property (BGL 8,171,347;
200,000 convertible Bulgarian levs; 2,175,500 United States dollars;
8,000 tonnes of wheat; the value of organising a summit; sixty
airplane tickets; 20,000 tonnes of oil; properties given to Ethiopia;
training of fifty officials from Mozambique, thirty officers and
thirty cadets from Ghana; and, training, accommodation and employment
for thirty Turkish nationals), which had been entrusted to him for
safekeeping and management and which represented a very serious
offence and for a very large amount. In addition, it was claimed that
in order to facilitate the aforesaid offence the applicant had
perpetrated another offence – that in his capacity as an
official, Secretary of the Central Committee of the BCP, he had
violated his obligations as such and had exceeded his authority with
the aim of obtaining advantage for himself and for a third party and
had caused severe damages, which was qualified as being a very
serious offence.
- The
criminal proceedings continued in the absence of the applicant due to
the fact that he was residing in Austria at the time. On an
unspecified date, he retained a lawyer to represent him before the
investigating authorities.
- On
23 July 1992 the Chief Prosecutor's Office ordered that the applicant
be detained on remand, but the order was not enforced due his absence
from the country. On an unspecified date the applicant was placed on
the list of persons being sought by the police.
- In
a decision of 7 January 1993 the charges against the applicant were
amended and the order for his detention was maintained.
- On
1 October 1993 the Chief Prosecutor's Office sent a letter to the
Chief Prosecutor's Office of Austria requesting it to detain and
extradite the applicant to Bulgaria. The applicant was detained by
the Austrian authorities on 9 December 1993.
- On
8 December 1993 the applicant requested political asylum in Austria.
- He
was released by the Austrian authorities on 15 December 1993.
- On
6 January 1994 the Chief Prosecutor's Office sent an official request
to the Republic of Austria seeking the applicant's extradition to
Bulgaria.
- In
a decision of 5 May 1994 the Vienna Court of Appeal refused the
extradition request. It found that the actions of the applicant were
in conformity with the Bulgarian Constitution and the laws at the
time in question and that the payments from the State budget to third
countries and organisations were approved by decisions of the Council
of Ministers and acts on the State budget. Moreover, the applicant's
actions were deemed not to contravene the principles of international
law and human rights. In addition, the Vienna Court of Appeal found
that the applicant had been acting in conformity with his rights and
obligations as an official who could decide on the allocation of
State funds, which he did not undertake on his own, but as a member
of a collective body, for which he was not individually culpable.
- The
criminal proceedings against the applicant continued. He contended
that no further investigative procedures were conducted thereafter
and that on at least four occasions the criminal proceedings had been
stayed for undetermined periods of time. The last such occasion had
been on 28 May 1995 when the Chief Prosecutor's Office stayed the
proceedings because two of the defendants had become members of the
National Assembly and had obtained immunity from prosecution.
- On
3 June 1999 the applicant's lawyer filed a request with the Chief
Prosecutor's Office demanding that the criminal proceedings be
terminated. She referred to the findings of the Court in the case of
Lukanov v. Bulgaria (judgment of 20 March 1997, Reports of
Judgments and Decisions 1997 II, pp. 529-547) which had
examined the same criminal proceedings and had found them to be
deficient because the actions of the defendant had not constituted an
offence under domestic legislation. In addition, the applicant's
lawyer referred to the Government's undertaking before the Council of
Europe to avoid similar such violations in the future (Resolution DH
(98) 203 adopted by the Committee of Ministers on 10 July 1998 at the
637th meeting of the Ministers' Deputies).
- On
15 June 1999 the criminal proceedings against the applicant were
reopened by the Supreme Cassation Prosecutor's Office and the case
was remitted for further investigation to the Specialised
Investigation Division.
- On
24 August 1999 the applicant's lawyer filed a second request with the
Chief Prosecutor's Office demanding that it rule on her previous
request of 3 June 1999.
- On
17 September 1999 the Sofia City Prosecutor's Office rejected the
request of 3 June 1999 as it considered that it could not rule on its
merits before the criminal proceedings had been completed.
- In
a decision of the Sofia City Prosecutor's Office of 28 January 2000
the criminal proceedings against the defendants in case No. 3/92 were
terminated and, inter alia, the order for the applicant's
detention was rescinded. It found that the actions of the defendants,
including the applicant, did not constitute an offence under domestic
criminal legislation at the time of the events. In particular, the
funds in question had always been included as expenditures in the
State budget, the decisions were adopted without exceeding the powers
granted thereto under the existing legislation and the provisions of
such aid was in harmony with the State's international obligations.
Reference was made to the decision of 5 May 1994 of the Vienna Court
of Appeal to refuse the applicant's extradition and the Lukanov
judgment (cited above) where the Court had found in respect of
the same proceedings that:
“...no evidence has been adduced to show that
[the] decisions [for grating aid] were unlawful, that is to say
contrary to Bulgaria's Constitution or legislation, or more
specifically that the decisions were taken in excess of [their]
powers...” (ibid. § 43).
- On
27 March 2000 the Sofia Court of Appeals confirmed the decision
of the Sofia City Prosecutor's Office to terminate the criminal
proceedings against, inter alia, the applicant and the said
decision became final.
C. Relevant domestic law and practice
- The
relevant part of the State and Municipalities Responsibility for
Damage Act of 1988 (the “SMRDA” : title changed in 2006)
provided, as in force at the relevant time, that the State was liable
for damage caused to private persons by the organs of the
investigation, the prosecution and the courts for having unlawfully
charged a private person with an offence if (a) he/she was found
to be innocent or (b) the initiated criminal proceedings were
terminated because (i) the deed was not perpetrated by the said
person or (ii) the perpetrated deed was not an offence or
because (c) the criminal proceedings were initiated (i) after the
expiration of the statute of limitations for the offence or (ii)
after the deed had been amnestied (section 2 (2)).
- The
right to compensation for pecuniary damage was fully inheritable,
while that for non-pecuniary damage was inheritable only if the
victim had initiated an action to that effect prior to his death
(section 6 (1)).
- Persons
seeking redress for damage occasioned by decisions of the
investigating and prosecuting authorities or the courts in
circumstances falling within the scope of the SMRDA have no claim
under general tort law as the Act is a lex specialis and
excludes the application of the general regime (section 8(1) of the
Act; решение
№ 1370 от 16.XII.1992 г. по
гр.д. № 1181/92 г., IV г.о.
and Тълкувателно
решение № 3 от
22.04.2005 г. по т. гр. д.
№ 3/2004 г., ОСГК на
ВКС).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention. He contended that the
authorities, even though they had allegedly been aware that his
actions did not constitute an offence under domestic criminal
legislation, had kept the criminal proceedings open for almost eight
years. Moreover, this had continued well after the Lukanov
judgment of 1997 (cited above) in the context of which the Court
had examined the same criminal proceedings and had found them to be
deficient because the actions of the applicant in that case had not
constituted an offence under domestic criminal legislation at the
time.
The
relevant part of Article 6 § 1 of the Convention provides as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Period to be taken into consideration
- The
Court observes that the period to be taken into consideration did not
begin to run on 9 July 1992 when the criminal proceedings were
opened against the applicant (see paragraph 7 above), but 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
1997 VIII, p. 2772, § 31). The Court notes that on
7 September 1992 the proceedings had been pending before the
investigating authorities for just two months.
- The
criminal proceedings were terminated on 27 March 2000 (see paragraph
23 above).
- Accordingly,
the criminal proceedings against the applicant lasted for seven
years, eight months and nineteen days of which a period of seven
years, six months and twenty days falls within the Court's competence
ratione temporis. During this period the criminal proceedings
remained at the stage of the preliminary investigation.
B. Admissibility
1. The parties' submissions
- The
Government submitted that the applicant and his heirs failed to
exhaust the available domestic remedies because they did not initiate
an action for damages under the SMRDA. They noted that the criminal
proceedings had been terminated on 27 March 2000 because the actions
of the defendants, including the applicant, did not constitute an
offence under domestic criminal legislation at the time of the events
(see paragraphs 22 and 23 above). The Government claimed, therefore,
that the applicant, and subsequently his heirs, had had a right of
action under the SMRDA to seek redress from the authorities for the
former having been unlawfully charged with an offence.
- The
heirs of the applicant disagreed. They noted that the applicant had
passed away a month and a half before the criminal proceedings had
been terminated against him (see paragraphs 1 and 23 above). Thus, he
could not have initiated any such proceedings under the SMRDA prior
to his death. Subsequently, they, as heirs of the applicant, could
only initiate an action under the SMRDA seeking pecuniary damage in
view of the restriction contained therein (see paragraph 25 above).
In
any event, they noted that under the SMRDA damage could only have
been sought for the applicant having been unlawfully charged with an
offence and not in respect of the length of the criminal proceedings
as such. Thus, they argued that the SMRDA did not provide a remedy
that they or the applicant had to exhaust in respect of the complaint
currently before the Court.
2. The Court's assessment
- The
Court reiterates that, according to Article 35 § 1 of the
Convention, it may only deal with an issue after all domestic
remedies have been exhausted. The purpose of Article 35 is to afford
the Contracting States the opportunity of preventing or putting right
the violations alleged against them before those allegations are
submitted to the Court (see, for example, Hentrich v. France,
judgment of 22 September 1994, Series A no. 296-A, p. 18, §
33 and Remli v. France, judgment of 23 April 1996, Reports
1996-II, p. 571, § 33). Thus, the complaint submitted to the
Court must first have been made to the appropriate national courts,
at least in substance, in accordance with the formal requirements of
domestic law and within the prescribed time-limits. Nevertheless, the
obligation to exhaust domestic remedies only requires that an
applicant make normal use of remedies which are effective, sufficient
and accessible in respect of his Convention grievances (see Balogh
v. Hungary, no. 47940/99, § 30, 20 July 2004).
- The
Court observes that in the present case, the applicant's complaint
relates to the length of the criminal proceedings against him and
falls to be examined under Article 6 § 1 of the Convention. It
further observes that the said proceedings were terminated on 27
March 2000, while the applicant passed away on 13 February 2000 (see
paragraphs 1 and 23 above).
- The
Court further notes that the Government submitted that the applicant
and his heirs failed to exhaust an available domestic remedy under
the SMRDA and referred to the existing possibility therein to obtain
redress in the event of criminal proceedings having been terminated
against an individual if his actions were found not to have
constituted an offence. They did not, however, indicate how that
would have remedied the complaint currently before this Court in
respect of the alleged excessive length of the criminal proceedings.
Moreover, the Government failed to present any copies of domestic
court judgments where awards had been made under the SMRDA providing
for redress for excessive length of criminal proceedings.
- In
view of the aforesaid, the Court does not find it proven by the
Government that in the circumstances of the present case an action
under the SMRDA would have provided for an enforceable right to
compensation which could be considered an effective, sufficient and
accessible remedy in respect of the applicant's complaint in respect
of the alleged excessive length of the criminal proceedings.
Furthermore, it does not appear that such a right is secured under
any other provision of Bulgarian law (see paragraph 26 above).
- Considering
the above, the Court rejects the Government's objection of failure to
exhaust the available domestic remedies.
- It
further finds that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and is
not inadmissible on any other grounds. It must therefore be declared
admissible.
C. Merits
- The
Government did not submit observations on the merits of the
applicant's complaint. The applicant's heirs reiterated the
complaint.
- 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 applicants and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- Having
examined all the material before it and noting the Government's
failure to submit observations on the merits of the complaint, the
Court finds that no facts or arguments capable of persuading it that
the length of the criminal proceedings in the present case was
reasonable have been put forward. Thus, having regard to its case-law
on the subject, the Court considers that in the instant case the
length of the proceedings was excessive and failed to meet the
“reasonable time” requirement. In particular, the
criminal proceedings against the applicant lasted over
seven-and-a-half years, remained at the stage of the preliminary
investigation for the whole duration, were stayed on three occasions
for undisclosed reasons and lengths of time, were stayed for a period
of more than four years between 1995 and 1999 and remained open well
after the Lukanov judgment (cited above) which found, in
respect of one of the other defendants in the same proceedings who
had been charged for actions almost identical to those of the
applicant, that the said actions did not constitute an offence under
domestic criminal legislation. Moreover, it does not appear that the
applicant's absence from the country had any direct affect on its
duration.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. 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's heirs claimed 150,000 euros (EUR) as compensation for the
non pecuniary damage arising out of the alleged violation of the
applicant's and their rights under the Convention. They claimed that
the applicant had felt frustration, anguish and despair as a result
of the length of the criminal proceedings which had been unjustified
and politically motivated. The applicant's heirs also claimed that
his standing in the country and abroad had been tarnished as a result
of the protracted proceedings, that he had in effect been denied the
opportunity to return to his native country for their duration in
fear of being wrongfully persecuted and had been forced to sever
various family and other relationships as a result. Due to his death
prior to the termination of the proceedings he had also been denied
the opportunity to return to his country.
- The
Government did not express an opinion on the matter.
- The
Court considers that the applicant had undoubtedly suffered
non pecuniary damage as a result of the protraction of the
criminal proceedings against him for over seven years. Having regard
to the circumstances of the present case, its case-law in similar
cases and deciding on an equitable basis, the Court awards EUR 3,200
under this head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant's heirs claimed 15,000 Bulgarian levs (approximately
EUR 7,692) for the legal work by their lawyer on the proceedings
before the Court. In support, a legal fees agreement was submitted
between the lawyer and the applicant's heirs.
- The
Government did not express an opinion on the matter.
- The
Court reiterates that according to its 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,
taking into account that a violation was found only of Article 6 §
1 of the Convention on account of the excessive length of the
criminal proceedings (see paragraph 41 above) and that no timesheet
was presented for the work performed by the lawyer, the Court
considers that the amount claimed is excessive and that a significant
reduction is necessary in that respect. Accordingly, having regard to
all relevant factors, the Court considers it reasonable to award the
sum of EUR 500 in respect of costs and expenses, 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
- Dismisses the Government's preliminary objection
based on non exhaustion of domestic remedies;
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the criminal proceedings against the applicant;
- Holds
(a) that the respondent State is to pay the heirs of the
applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 3,700 (three thousand seven hundred euros) in respect
of non-pecuniary damage and costs and expenses, 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 27 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
