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FIFTH
SECTION
CASE OF
MERDZHANOV v. BULGARIA
(Application
no. 69316/01)
JUDGMENT
STRASBOURG
22
May 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 Merdzhanov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Volodymyr
Butkevych,
Rait
Maruste,
Renate
Jaeger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 29 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 69316/01) 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 Stoyan
Hristov Merdzhanov, born in 1943 and living in Sofia
(“the applicant”), on 3
April 2001.
- The
applicant was represented by Ms I. Loulcheva and Ms Z. Stefanova,
lawyers practising in Sofia. The Bulgarian Government
(“the Government”) were represented by their Agent, Ms M.
Karadzhova, of the Ministry of Justice.
- On
8 December 2005 the
Court decided to give notice of 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- In
the 1970s and early 1980s the applicant worked as a journalist and
senior inspector at the propaganda department of the Ministry of
Internal Affairs.
A. The applicant's conviction and sentence
- In
1982 the applicant left Bulgaria and settled first in Switzerland and
then in the United States of America.
- In 1983 the Sofia Military Court, whose judgment was
upheld the same year by the Military Chamber of the Supreme Court,
tried the applicant in his absence and convicted him of treason and
espionage. He was sentenced to nineteen years' imprisonment and
forfeiture of all his assets, and was stripped of his Sofia
residence.
- In 1987, following the applicant's return to Bulgaria
in 1986, the General Assembly of the Criminal Chambers of the Supreme
Court set these judgments aside and the remitted the case for a fresh
examination. In 1988 the Sofia Military Court, whose judgment was
upheld the same year by the Military Chamber of the Supreme Court,
re convicted the applicant of treason and espionage, and
sentenced him to sixteen years' imprisonment. It also deprived him of
the right to reside in Sofia and forfeited all his assets. The
applicant was kept in custody between April 1986 and December 1989.
- In April 1990 the General Assembly of the Criminal
Chambers of the Supreme Court set the above judgments aside and
acquitted the applicant.
B. The proceedings under the 1988 State Responsibility
for Damage Act
1. The proceedings before the Sofia City Court
- On 14 May 1990 the applicant filed an action under the
1988 State Responsibility for Damage Act (see paragraph 28 below). He
named as defendants the Ministry of Internal Affairs, the General
Investigation Service, the Sofia Regional Military Prosecutor's
Office, the Supreme Military Prosecutor's Office, the Sofia Military
Court, the Supreme Court, the Sofia Prison and the Sredetz Municipal
Council, all of which had allegedly participated in various ways in
the repression against him. He claimed compensation for the pecuniary
(including lost pay, lawyers' fees, the value of the confiscated
chattels and flat, and the loss of enjoyment of these properties) and
the non pecuniary damage suffered as a result of the criminal
proceedings against him, the confiscation of his property and his
detention.
- The Sofia City Court examined the case in twenty one
hearings, held between September 1990 and March 1994 at one to
three month intervals. Thirteen of them took place before 7
September 1992 – the date on which the Convention entered into
force in respect of Bulgaria.
- In examining the case the court heard a number of
witnesses and several experts who drew up reports on the value of the
flat and the chattels confiscated from the applicant. At the request
of the applicant, some of the reports were updated to take account of
the increase of the price of the flat and of the chattels due to the
high inflation in the country between 1990 and 1994. The applicant
removed or added defendants on five occasions. At the close of the
proceedings the defendants were the Supreme Court, the Chief
Prosecutor's Office, and the Ministries of Justice, Finance and
Defence. He also twice increased the value of his claims. On two
occasions the court instructed him to itemise and specify his claims
with regard to each defendant.
- Nine hearings (five before 7 September 1992 and four
after that date) were adjourned owing to various problems
attributable to the authorities, such as the failure to properly
summon or serve documents on defendants, or to obtain expert reports
in time.
- One hearing, listed for 15 February 1993, was
adjourned because the applicant's lawyer was on strike. On two
occasions in March 1992 and May 1993 the case was also adjourned to
allow the drawing up of additional expert reports requested by the
applicant.
- In a judgment of 23 January 1995 the Sofia City Court
partly allowed the applicant's claims against the Supreme Court and
the Chief Prosecutor's Office, holding, inter alia, that they
were liable, both directly and in lieu of their subordinate entities
(the Sofia Military Court and the Sofia Regional Military
Prosecutor's Office), for the damage suffered by the applicant. The
court dismissed the claims against the other defendants, holding that
they were not the properly answerable State entities. The judgment
was not appealed against and entered into force.
2. The review proceedings before the Supreme Court
- On 28 May 1996 the Chief Prosecutor petitioned the
Supreme Court to review the Sofia City Court's judgment.
- On 2 December 1996 the Supreme Court set the judgment
aside and remitted the case for a fresh examination. It held that the
Sofia City Court had failed to identify the proper defendants to the
applicant's action. In the court's view, the State entity answerable
for the damage stemming from the actions of the Sofia Regional
Military Prosecutor's Office, the Sofia Military Court and the
Military Chamber of the Supreme Court was the Ministry of Defence,
from whose budget they were being financed.
3. The second examination of the case by the Sofia City
Court
- During the second examination of the case, which began
in November 1997 and ended in February 2003, the Sofia City Court
held eighteen hearings. The intervals between them ranged between
three and seven months. The court admitted in evidence three expert
reports. At the start of the proceedings the defendants were the
Supreme Court, the Chief Prosecutor's Office and the Ministries of
Justice and Defence.
- Eleven hearings were adjourned because of various
problems attributable to the authorities, such as the failure to
properly summon or serve documents on defendants, or to obtain expert
reports in time.
- The applicant was responsible for the adjournment of
three hearings: one because he was in hospital and could not attend,
and two others because he requested expert reports. On four occasions
he changed defendants, as some of them had ceased to exist and had
been succeeded by other entities, and as apparently he decided that
the two Ministries were not liable.
- In a judgment of 14 April 2003 the Sofia City Court
partly allowed and partly dismissed the applicant's claims against
the Supreme Court of Cassation, the Sofia Military Court, the Special
Investigation Service and the Prosecutor's Office. It also noted,
inter alia, that the Supreme Court's earlier holding
concerning the Ministry of Defence's liability for the actions of the
military courts and prosecution offices (see paragraph 16 above) was
no longer apposite, as following legislative amendments these
entities were presently financed from the judiciary budget.
4. The proceedings before the Sofia Court of Appeals
- Both the applicant and the Sofia City Prosecutor's
Office appealed. The applicant requested four expert reports on the
value of his confiscated properties and another report on the amount
of interest due.
- The Sofia Court of Appeals examined the case in six
hearings, which took place between April 2004 and January 2006 at
approximately four to five month intervals. One of them
was adjourned as one of the defendants had not been duly summoned.
- After allowing an increase of the applicant's claims
and, despite its initial reluctance, ordering four expert reports
requested by the applicant, in January 2005 the court annulled these
actions and decided to start the proceedings anew, as it noted that
it had mistakenly summoned as a defendant the Special
Investigation Service instead of the National Investigation
Service, which had succeeded it in 2002.
- In a judgment of 28 March 2006 the Sofia Court of
Appeals quashed the Sofia City Court's judgment, and partly allowed
the applicant's claims against the Prosecutor's Office, the National
Investigation Service, the Sofia Military Court and the Supreme Court
of Cassation. It also held that the entity liable for the damage
arising from the confiscation of the applicant's property was the
State and not any of the above authorities, and accordingly ordered
it to pay the applicant compensation.
5. The proceedings before the Supreme Court of
Cassation
- The applicant, the Prosecutor's Office and the State,
represented by the Ministry of Finance, appealed on points of law.
- After holding a hearing on 4 June 2007, on 20 July
2007 the Supreme Court of Cassation partly upheld the Sofia Court of
Appeals' judgment, partly reversed it, increasing the amount of
non pecuniary damages awarded to the applicant, and partly
quashed it, remitting the part of the case relating to the quashed
part of the judgment to the Sofia City Court. It held, inter alia,
that by ordering the State to pay damages to the applicant the lower
court had ruled on a claim which had not been properly brought before
it. The State had not been named as a defendant and had not been
party to the proceedings. The court further held that the applicant
had erred by claiming compensation for the damage arising from the
confiscation from the National Investigation Service, the
Prosecutor's Office, the Sofia Military Court and the Supreme Court
of Cassation. They were not liable, the proper defendant to such
claims being the State itself. The court also criticised the lower
courts for not clearly identifying the different claims in the
operative provisions of their judgments and for failing to clarify
the procedural position of the Ministry of Finance.
6. The third examination of the case by the Sofia City
Court
- At the time of the latest information from the
parties, 4 September 2007, the proceedings were once more pending
before the Sofia City Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The statute regulating tort claims against the State
is the 1988 State Responsibility for Damage Caused to Citizens Act
(„Закон за
отговорността
на държавата
за вреди, причинени
на граждани“
– this was the original title; on 12 July 2006 it was changed
to the State and Municipalities Responsibility for Damage Act, „Закон
за отговорността
на държавата
и общините за
вреди“). Its section 1
regulates the liability of the administrative authorities and section
2 regulates the liability of the courts and of the investigation and
the prosecution authorities. Section 7 provides that an action for
compensation has to be brought against the authorities whose unlawful
decisions, actions or omissions have caused the damage. In a binding
interpretative decision (тълк.
реш. № 3 от 22 април
2004 г. на ВКС по
тълк.д. № 3/2004 г., ОСГК)
made on 22 April 2004 the Plenary Meeting
of the Civil Chambers of the Supreme Court of Cassation resolved a
number of contentious issues relating to the construction of various
provisions of the Act and in particular clarified the proper
defendants to tort actions for various forms of official misconduct.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant alleged that the length of the proceedings under the 1988
State Responsibility for Damage Act was in breach of Article 6 §
1 of the Convention, which reads, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Court considers that this complaint 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.
B. Merits
- The
period to be taken into consideration did not begin to run on 14 May
1990, when the applicant filed his action (see paragraph 9 above),
but on 7 September 1992, when the Convention entered into force in
respect of Bulgaria. However, to determine whether the time which has
elapsed following this date is reasonable, it is necessary to take
account of the stage which the proceedings had reached at that point
(see, among other authorities, Rachevi v. Bulgaria, no.
47877/99, § 70, 23 September 2004). On 7 September 1992 the
proceedings had been pending for about two years and five months and
the case was being examined by the first instance court.
- At
the time of the latest information from the parties, 4 September
2007, the case was pending for a third time before Sofia City Court
(see paragraph 27 above). The time which has elapsed since the filing
of the applicant's action has thus been more than seventeen years, of
which at least fifteen years after 7 September 1992. However, in
determining the duration of the period to be taken into consideration
the Court must discount the time between January 1995, when the Sofia
City Court gave its first judgment in the case, and December 1996,
when the Supreme Court decided to set this judgment aside and reopen
the proceedings (see paragraphs 14 and 16 above). This is because in
length of proceedings cases the Court takes into account
only periods when the litigation was actually pending before the
courts, that is, when there was no effective judgment determining the
merits of the dispute and when the courts were under an obligation to
pass such a judgment. These do not include periods when a judgment
has been in force before being set aside in review proceedings, or
periods when the domestic courts decide whether or not to reopen a
case (see, among others, Yaroslavtsev v. Russia, no. 42138/02,
§ 22, 2 December 2004; Pavlyulynets v. Ukraine, no.
70767/01, § 41, 6 September 2005; and Aliuţă v.
Romania, no. 73502/01, § 16, 11 July 2006). The period to be
taken into account is therefore a little over thirteen years for
three levels of court.
- 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 litigation (see, among many other authorities,
Rachevi, cited above, § 73).
- The
parties presented detailed arguments as to the way in which these
criteria should apply in the instant case.
- The
Court considers that the litigation was not particularly complex
legally, but had a certain degree of factual and procedural
complexity, as the applicant sought damages from several entities,
most of which had been re organised following the political and
administrative changes in Bulgaria after 1989, and his claims
concerned various heads of damage, some of which required expert
evidence. However, these features cannot in themselves account for
the length of the proceedings.
- While
the case did not concern the applicant's livelihood or another
extremely pressing matter, its subject matter – obtaining
compensation for sweeping repressions endured during the communist
regime – seems to have been of some importance to him.
- The
Court observes that the applicant contributed, at least to a certain
extent, to the length of the proceedings. His and his lawyer's
absence caused the adjournment of two hearings (see paragraphs 13 and
19 above). He also changed defendants nine times, increased his
claims on four occasions and requested additional expert reports (see
paragraphs 11, 13, 19 and 23 above). These inevitably rendered the
proceedings more complicated and caused further adjournments.
- However, the Court is not persuaded that the
responsibility for the ensuing delays rested entirely with the
applicant. As regards the changes of defendants, it appears that from
the outset of the litigation there was some uncertainty as to which
State entities were the proper defendants to the applicant's action.
Indeed, this was a matter on which all levels of court parted opinion
(see paragraphs 14, 16, 20, 24 and 26 above). It seems that this
confusion was due, on the one hand, to the changes in the State's
administrative structure after 1989, which was an objective factor,
and, on the other, to the persistently unclear regulation of the
issue which entities were liable for various forms of alleged
official misconduct (see paragraph 28 above). In a legal system
governed by the rule of law, the identity of the State entities
responsible for different sectors of activity and designated to
answer civil claims must be transparent and easily accessible (see
Dodov v. Bulgaria, no. 59548/00, § 113 in fine,
ECHR 2008 ...).
- Nor
can the applicant be blamed for increasing his claims and requesting
updated expert reports, even though by so doing he may have prolonged
the proceedings. These were procedural devices whereby he tried to
prevent the erosion of the value of his claims as a result of the
high inflation (see Rachevi, cited above, § 81 in
fine, with further references).
- Concerning
the delays brought about by the authorities, the Court observes that
the main reasons – all attributable to them – for the
duration of the proceedings are three: (i) the inability of various
levels of court to identify clearly the entities liable for the
different heads of damage sustained by the applicant (see paragraphs
14, 16, 20, 24 and 26 above), (ii) the high number of hearings
held by the Sofia City Court during both its initial and its second
examination of the case, and by the Sofia Court of Appeals (see
paragraphs 10, 17 and 22 above), and (iii) the numerous adjournments,
most often due to the Sofia City Court's failure to duly summon
defendants and obtain expert reports in time (see paragraphs 12 and 18
above).
- As
regards the first of these factors, the Court refers to its findings
in paragraph 38 above. Concerning the second, it finds that, while
the multiplicity of the applicant's claims may have prompted more
hearings than a run of the mill civil action, it
appears that the number of hearings was for the most part due to the
courts' failure to properly manage the processing of the case. For
instance, in January 2005 the proceedings before the Sofia Court of
Appeals had to be started anew due to a simple procedural mistake
which could have been spotted from the outset (see paragraph 23
above). The number of adjournments due to failures to summon
defendants is also striking, seeing that all of them were State
entities whose addresses should have been readily available to the
courts and on whom it should not have been problematic to serve
process (see, mutatis mutandis, Dodov, cited above, §
113 in limine). The responsibility for the late production of
expert reports may also be considered to lie with the authorities
(see Rachevi, cited above, § 90, with further
references).
- To
the delays identified above should be added those flowing from the
increasingly lengthy intervals between the hearings scheduled by the
Sofia City Court; while at first these intervals were ranging from
one to three months, later they were stretching from three to seven
months (see paragraphs 10 and 17 above). It is also noteworthy that
when first examining the applicant's action, this court gave judgment
some nine months after the case had been ready for decision. Finally,
the Court observes that the Sofia City Court started examining the
case for a second time some eleven months after its first judgment
had been set aside by the Supreme Court, and the Sofia Court of
Appeals started examining the case about a year after the second
judgment of the Sofia City Court (see paragraphs 16, 17, 20 and 22
above).
- Having
regard to the foregoing, the Court finds that the applicant's case
was not determined within a “reasonable time”, in 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 claimed 30,000 euros (EUR) in respect of the non pecuniary
damage sustained on account of the excessive length of the
proceedings.
- The
Government did not express an opinion on the matter.
- The
Court considers that the applicant must have sustained distress and
frustration as a result of the breach of Article 6 § 1. Ruling
on an equitable basis, as required under Article 41, it awards him
EUR 7,000, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant sought the reimbursement of EUR 2,400 incurred in lawyers'
fees in the domestic proceedings and EUR 7,800 in fees for the
proceedings before the Court. He further claimed EUR 180 in
translation and office expenses and postage. He submitted a fees'
agreement with his lawyer, translation contracts, payment documents
and invoices.
- The
Government did not express an opinion on the matter.
- According
to the Court's case law, applicants are entitled to the
reimbursement of their costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. The lawyers' fees claimed in respect of
the domestic proceedings concern the applicant's representation in
these proceedings. They do not therefore constitute expenses
necessarily incurred in seeking redress for the violation of the
Convention found in the present case (see Kiurkchian v. Bulgaria,
no. 44626/98, § 81, 24 March 2005, with further references). As
regards the amounts claimed in respect of the Strasbourg proceedings,
having regard to the information in its possession and the above
criteria, the Court considers it reasonable to award the sum of EUR
1,200, plus any tax that may be chargeable to the applicant.
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
(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, the following amounts, to be
converted into Bulgarian levs at the rate applicable at the date of
settlement:
(i) EUR
7,000 (seven thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR
1,200 (one thousand two hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(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 22 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
