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FIFTH
SECTION
CASE OF MIRCHEV AND OTHERS v. BULGARIA
(Application
no. 71605/01)
JUDGMENT
STRASBOURG
27
November 2008
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 Mirchev and Others v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Karel
Jungwiert,
Volodymyr
Butkevych,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 4 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 71605/01) 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 nine Bulgarian nationals: Mr Stoyan Mihaylov
Mirchev, Mr Stanish Bonev Panayotov, Mr Emil Yordanov Hristov,
Mr Milko Kalev Balev, Mr Yordan Nikolov Yotov, Mr Grigor
Georgiev Stoichkov, Mr Ivan Stoyanov Iliev, Mr Georgi Mitev
Karamanev and Mr Georgi Yordanov Momchev (“the
applicants”). The application was lodged by nine introductory
letters sent between 13 January and 10 April 2000.
2. The
applicants were represented by Mrs I. Loulcheva,
Mrs Y. Vandova, Mr I. Minkov, Mr E. Komitov, Mr D.
Chavdarov and Mr Tz.
Georgiev, lawyers practising
in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs M. Dimova, of
the Ministry of Justice.
- On
21 February 2007 the
President of the Fifth Section decided to give notice to the
Government of the complaint about the length of proceedings. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
- Judge
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case (Rule 28 of the Rules of Court). On 1 October
2008, the Government, pursuant to Rule 29 § 1 (a), informed the
Court that they had appointed in her stead another elected judge,
namely Judge Lazarova Trajkovska.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1930, 1925, 1920, 1920,
1926, 1931, 1934, 1931 and 1924 respectively. On
8 October 2002 the fourth applicant, Mr Milko Kalev Balev, passed
away. By a letter of 10 April 2006 his wife, Mrs Maria Vasileva
Baleva and his sons, Mr Vladimir Milkov Balev and Mr Kalin Milkov
Balev, informed the Court that they wished to continue the present
application in his stead. The remaining applicants live in
Sofia.
- Prior
to 1989 all nine applicants occupied leading positions in the Council
of Ministers (the government) and the Bulgarian Communist Party (“the
BCP”).
- On
9 July 1992 the Chief Public Prosecutor's Office opened preliminary
investigation against twenty-two former members of the Bureau of the
Council of Ministers and the Secretariat of the Central Committee of
the BCP, including the nine applicants and Mr A. Lukanov and
Mr O. Doinov, whose applications relating to the same
criminal proceedings were decided by the European Court of Human
Rights in 1997 and 2007 (Lukanov v. Bulgaria, judgment of 20
March 1997, Reports of Judgments and Decisions 1997 II,
and Doinov v. Bulgaria, no.68356/01, 27 September 2007). On an
unspecified date the applicants were charged with abuse of office and
misappropriation on the ground that between 1981 and 1989 they had
participated in the adoption of decisions to provide financial
assistance or extend loans, totalling 243,537,000 old Bulgarian levs,
to foreign countries and political parties.
- Between
July 1992 and February 1993 the prosecution authorities carried out a
number of investigations.
- After
February 1993 the criminal proceedings were stayed for undetermined
periods of time on at least four occasions. The
last such occasion was on 28 May 1995. The proceedings were resumed
on 15 June 1999.
- By
a decision of the Sofia city public prosecutor's office of 28 January
2000 the criminal proceedings against the applicants were terminated.
The prosecution found that the actions of the accused, including the
nine applicants, had not been punishable under domestic criminal
legislation at the time: the funds in question had been included as
expenditure in the State budget, the decisions had been adopted
without exceeding the powers granted to the accused under the
existing legislation and the provision of such aid was in conformity
with the State's international obligations.
Reference was made to this Court's judgment in the case of Lukanov
v. Bulgaria (cited above) where it
had been concluded in respect of the same domestic proceedings that:
“... no evidence has been adduced to show that
such decisions were unlawful, that is to say contrary to Bulgaria's
Constitution or legislation, or more specifically that the decisions
were taken in excess of powers or were contrary to the law on the
national budget” (§ 43).
- On
16 February and 27 March 2000 the decision of the Sofia city public
prosecutor's office to terminate the proceedings was upheld by the
Sofia appellate public prosecutor's office and the Sofia Court of
Appeal, respectively.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Under
the State and Municipalities Responsibility for Damage Act of 1988
(“the SMRDA”) individuals can in certain circumstances
seek damages for unlawful acts of the authorities. The Act does not
mention excessive length of proceedings as a ground for an action for
damages. Nor is there any practice in the domestic courts of awarding
damages for excessive length of proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
period to be taken into consideration began on 7 September 1992, when
the Convention entered into force for Bulgaria. At that point the
proceedings had been pending before the investigating authorities for
two months.
- The
period in question ended on 27 March 2000. Accordingly, the criminal
proceedings 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
that time the criminal proceedings remained at the preliminary
investigation stage.
A. Admissibility
- The
Government submitted that the applicants had failed to exhaust the
available domestic remedies because they had not initiated actions
for damages under the SMRDA.
- The
Court notes that a similar objection has been
rejected in an earlier case (Doinov v. Bulgaria, cited
above, §§ 35-36) because the SMRDA
does not provide for damages in respect of length of proceedings (see
paragraph 12 above). The Court sees no reason to reach a different
conclusion in the present case.
- The
Court therefore rejects the Government's objection. 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.
B. Merits
- The
Government did not comment on the merits of 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)
- The
Court has already examined the reasonableness of the same proceedings
in its judgment in the case of Doinov v. Bulgaria (cited
above, § 41) where it found a breach of Article 6 § 1. It
sees no reason to reach a different conclusion as there are no
specific circumstances regarding any of the applicants in the present
case.
- There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
Admissibility
- The
applicants complained under Article 7 of the Convention that the
authorities had initiated criminal proceedings against them for
actions which had not constituted offences under domestic criminal
legislation at the time.
- The
Court considers that the applicants cannot claim to have been
“victims”, within the meaning of Article 34 of the
Convention, of a violation under Article 7 § 1 of the Convention
by the mere opening of criminal proceedings against them. The
proceedings remained at the stage of the preliminary investigation
and never resulted in actual convictions and punishment. In addition,
they were terminated because the authorities themselves concluded
that the actions of the applicants had not constituted offences.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 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.”
- The
applicants did not submit claims for just satisfaction. Accordingly,
the Court considers that there is no call to award them any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 27 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait
Maruste
Deputy Registrar President
