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FIFTH
SECTION
CASE OF RUMEN GEORGIEV v. BULGARIA
(Application
no. 27240/04)
JUDGMENT
STRASBOURG
14 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Rumen Georgiev v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Rait Maruste, President,
Mark
Villiger,
Zdravka Kalaydjieva, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 21 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 27240/04) 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 Rumen Dimitrov Georgiev (“the
applicant”), on 14 July 2004.
- The
applicant was represented by Mrs S. Stefanova and Mr A. Atanasov,
lawyers practising in Plovdiv. The Bulgarian Government (“the
Government”) were represented by their agents, Mrs N. Nikolova
and Mr V. Obretenov from the Ministry of Justice.
- On
14 January 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol No.
14, the application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Plovdiv.
- On
11 September 1993 criminal proceedings were opened against an unknown
perpetrator for a theft of objects of considerable value from a
private apartment, committed the same day.
- On
22 September 1993 the applicant was questioned in connection to the
theft and admitted to having taken part in its commission.
- On
20 October 1993 a police report in connection to the theft was
prepared. The applicant was mentioned as one of the perpetrators. On
26 October 1993 the case was sent to the Plovdiv regional public
prosecutor’s office.
- Apparently
thereafter the case remained dormant.
- On
11 December 1998 the preliminary investigation (предварително
производство)
was transformed into a police investigation (дознание).
Thereafter, until January 2002 the case again remained dormant.
- A
number of investigative actions were carried out between January and
August 2002.
- On
6 August 2002 the applicant was charged with the theft and was
questioned.
- A
number of investigative actions were carried out between August 2002
and February 2003.
- In
March 2003 the applicant’s case was brought before the Plovdiv
District Court. The first hearing was held on 8 October 2003 and was
adjourned upon the applicant’s request.
- On
7 April 2004 the District Court approved a plea bargain agreement and
the applicant was sentenced to three years’ imprisonment.
II. RELEVANT DOMESTIC LAW
- With
an amendment of June 2003 the new Article 239a of the Code of
Criminal Procedure (CCP) of 1974 was introduced which provided for
the possibility for an accused person to have his case examined by a
trial court if the investigation had not been completed within the
statutory time-limit (two years in investigations concerning serious
offences and one year in all other investigations).
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
- The
Government argued that the applicant failed to exhaust all remedies
available to him as he did not complain of the excessive length of
the proceedings before the domestic authorities and did not initiate
the procedure under Article 239a of the CCP (see paragraph 15 above).
- In
a number of cases against Bulgaria raising issues similar to those in
the present case the Court has dismissed the objection for
non-exhaustion of domestic remedies, finding that until June 2003
Bulgarian law did not provide remedies allowing those accused in
criminal proceedings to expedite the determination of the charges
against them (see, among others, Osmanov and Yuseinov v. Bulgaria,
nos. 54178/00 and 59901/00, §§ 38-40, 23 September 2004;
Sidjimov v. Bulgaria, no. 55057/00, § 41, 27 January
2005; Nalbantova v. Bulgaria, no. 38106/02, § 34, 27
September 2007) and that after this date any acceleration of the
proceedings could not have possibly made up for the delays which had
already accumulated by June 2003 (see, with further reference, Yankov
and Manchev v. Bulgaria, nos. 27207/04
and 15614/05, §32, 22 October 2009). It sees no reason to
depart from this conclusion in the present case. In addition, the
Government have not indicated any other domestic procedure whereby
the applicant could complain of the length of the proceedings.
- The
Government’s objection of failure to exhaust the available
domestic remedies is therefore dismissed.
- The
Court further finds that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and not 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 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...”
A. Period to be taken into consideration
- The
Government argued that for the purposes of Article 6 of the
Convention the criminal proceedings commenced only on 6 August 2002
when the applicant was charged. Thus, the Government contended that
the proceedings had lasted for about one year and eight months.
Accordingly, they considered that the applicant’s complaints
should be rejected as being manifestly ill-founded.
- The
Court reiterates that in criminal matters, Article 6 of the
Convention comes into play as soon as a person is “charged”.
According to the Court’s case-law, the word “charge”
in Article 6 § 1 must be interpreted as having an
autonomous meaning in the context of the Convention and not on the
basis of its meaning in domestic law. Thus, whilst "charge",
for the purposes of Article 6 § 1 may in general be defined as
"the official notification given to an individual by the
competent authority of an allegation that he has committed a criminal
offence", it may in some instances take the form of other
measures which carry the implication of such an allegation and which
likewise substantially affect the situation of the suspect (see,
among many others, Deweer v. Belgium, 27 February 1980, §
46, Series A no. 35, Eckle v. Germany, 15 July 1982, §
73, Series A no. 51 and Corigliano v. Italy, 10 December 1982,
§ 34, Series A no. 57).
- In
the present case the criminal proceedings in connection to the theft
were opened against an unknown perpetrator on 11 September 1993 and
the applicant was questioned and confessed to taking part in the
commission of the theft on 22 September 1993 (see paragraphs 5 and 6
above). In the police report for the theft he was mentioned as one of
the perpetrators (see paragraph 7 above).
- Having
regard to these facts and applying the principles set out above, the
Court finds that in the present case the applicant’s situation
was “substantially affected” and he could be considered
as subject to a “charge” from the moment when he was
questioned by the police and confessed to the theft (see, with
further reference, Yankov and Manchev, cited above,
§§ 17-18 and §§ 23-24). Accordingly,
the beginning of the period to be taken into consideration is 22
September 1993.
- The
period ended on 7 April 2004 when the applicant concluded a plea
bargain agreement. It thus lasted ten years, six months and fifteen
days for a preliminary investigation and one level of jurisdiction.
B. 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 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 frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see, among many others, Osmanov and Yuseinov, cited
above, § 30, and Yankov and Manchev, cited
above, §§ 17-26). Having examined all the material
submitted to it, the Court considers that the Government have not put
forward any fact or argument capable of persuading it to reach a
different conclusion in the present case. In particular, the Court
notes that the major source of delay in the present case was the lack
of sufficient activity from October 1993 to December 1998 and from
December 1998 to January 2002, when the case was effectively dormant
(see paragraphs 8, 9 and 10 above).
- In
view of the above and having regard to its case-law on the subject
and the global length of the proceedings, the Court considers that in
the instant case the length of the proceedings was excessive and
failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained of the lack of an effective remedy in
respect the excessive length of the proceedings against him. 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 comment.
- 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). It notes that it has frequently found violations of Article
13 of the Convention in cases raising issues similar to the one in
the present case (see, with further references, Myashev, §§
22 and 23 and Yankov and Manchev, §§ 32-34, both
cited above). It sees no reason to reach a different conclusion in
the present case.
- Accordingly,
there has been a violation of Article 13 of the Convention.
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 13,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim as excessive.
- The
Court observes that the applicant has sustained non-pecuniary damage.
Ruling on an equitable basis and taking into account all the
circumstances of the case, it awards him EUR 3,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 3,150 in lawyer’s fees for the
proceedings before the Court and EUR 150 for other costs, among which
postage and office materials. In support of
this claim the applicant presented an agreement with his
lawyers and a time sheet for forty five hours at the hourly rate of
EUR 70. The applicant requested that the amount
awarded for costs and expenses under this head be paid directly to
his lawyers, Mrs S. Stefanova and Mr A. Atanasov.
-
The Government contested these claims as excessive.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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 present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 600, covering costs
under all heads, payable directly into the bank account of the
applicant’s legal representatives.
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 on account of the excessive length of
the criminal proceedings;
3. Holds that there has been a violation of Article
13, in conjunction with Article 6 § 1 of the Convention,
on account of the lack of an effective remedy for the excessive
length of the criminal proceedings;
- 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
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
600 (six hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, payable directly into
the bank account of the applicant’s legal representatives;
(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 14 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Rait Maruste Deputy Registrar President
