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FIFTH
SECTION
CASE OF
MARIA IVANOVA v. BULGARIA
(Application
no. 10905/04)
JUDGMENT
STRASBOURG
18
March 2010
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 Maria Ivanova v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel Jungwiert,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 23 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 10905/04) 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, Ms Maria
Hristova Ivanova (“the applicant”), on 10 March 2004.
- The
applicant was represented by Mr M. Ekimdzhiev and Ms K. Boncheva,
lawyers practising in Plovdiv. The Bulgarian Government
(“the Government”) were represented by their Agents, Ms
N. Nikolova and Ms R. Nikolova, of the Ministry of Justice.
- On
9 July 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1940 and lives in Plovdiv.
- On
20 July 1997 she brought proceedings before the Madan District Court
against her five siblings for the division of a piece of real
property. Between January and April 1998 the court held three
hearings and admitted two expert reports in evidence. On 30 April
1998 it allowed the division of only part of the property.
- The applicant appealed to the Smolyan Regional Court,
claiming that the lower court should have allowed the division of the
whole property. A hearing listed for 30 June 1998 was adjourned owing
to improper summoning of one of the respondents. The court held two
hearings, in May and October 1998, and on 30 April 1999 upheld the
lower court's judgment.
- The applicant appealed on points of law. A hearing
listed for 28 February 2000 was adjourned owing to improper
summoning of four of the respondents. It was held on 25 September
2000. On 7 November 2000 the Supreme Court of Cassation, finding,
inter alia, that the Smolyan Regional Court had seriously
breached basic rules of procedure, quashed its judgment and remitted
the case back to that court.
- Between December 2000 and March 2002 eight hearings
were listed. Medical and financial expert reports were prepared. The
case was adjourned once because the applicant and some of the
respondents had not been summoned in due time. Another adjournment
was ordered because an expert report had not been filed in due time,
and another because an expert could not attend the hearing. Two
adjournments were ordered because the applicant requested additional
tasks to be assigned to the experts.
- On
28 March 2002 the Smolyan Regional Court partly reversed the Madan
District Court's judgment of 30 April 1998. The applicant appealed on
points of law. After hearing the appeal on 10 February 2003, on 4
March 2003 the Supreme Court of Cassation upheld the lower court's
judgment.
- After that the second phase of the proceedings, during
which the court was due to carry out the division of the property
(see paragraph 14 below), began before the Madan District Court. The
court held hearings on 14 April and on 2 June 2003. At the hearing on
2 June 2003 it ordered the case to be sent to the Smolyan Regional
Court for the correction of two obvious factual errors in the
operative provisions of the judgment of 28 March 2002. That
entailed the suspension of the proceedings before the Madan District
Court.
- On 21 July 2003 the Smolyan Regional Court agreed to
make one of the requested corrections but refused to make the other
one. One of the respondents appealed. After hearing the appeal on 13
April 2004, on 29 April 2004 the Supreme Court of Cassation
upheld the ruling of the Smolyan Regional Court.
- The
proceedings then resumed before the Madan District Court. The court
held two hearings at which it admitted in evidence a technical expert
report and a number of documents. On 1 December 2004 it allocated the
property to one of the respondents. None of the parties appealed
against that judgment and it became final.
- As the Madan District Court omitted to award costs, on
an unspecified date the parties lodged requests seeking a costs
order. In additional decisions of 10 and 14 January 2005 the court
ordered the respondents to reimburse part of the applicant's costs.
After that, there were appeal proceedings and proceedings for
correction of obvious factual errors in the two decisions. Those
proceedings ended on 5 July 2005.
II. RELEVANT DOMESTIC LAW
- The provisions of the 1952 Code of Civil Procedure
governing property division proceedings have been summarised in the
Court's judgment in the case of Hadjibakalov v. Bulgaria ( no.
58497/00, §§ 38 40, 8 June 2006).
- Article 217a of the Code, added in July 1999, created
a provision for a “complaint about delays”. In such a
complaint, a litigant aggrieved by the slow examination of a case,
delivery of a judgment, or transmitting of an appeal against a
judgment could request the chairperson of the higher court to give
mandatory instructions for faster processing of the case.
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, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
- The
period to be taken into consideration began on 20 July 1997 and ended
on 5 July 2005, when the issue of costs was determined with final
effect (see Robins v. the United Kingdom, 23 September 1997,
§§ 28 and 29, Reports of Judgments and Decisions
1997 V). It thus lasted almost eight years.
- 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 dispute (see, among many other authorities,
Hadjibakalov, cited above, § 48).
- The
parties presented arguments as to how the various criteria employed
by the Court in this context should be applied in the present case.
- The
Court observes that the distinctive feature of this case is that
property division proceedings in Bulgaria have two phases during
which the courts must, as a rule, deal with more issues than in an
ordinary civil action (see paragraph 14 above). It thus seems that
such proceedings are likely to consume more time than an average
civil case. However, that did not absolve the courts from their duty
to dispose of the case within a reasonable time, because States have
a general obligation to organise their legal systems so as to ensure
compliance with all the requirements of Article 6 § 1,
including that of trial within a reasonable time (ibid., § 50).
- The
Court considers that, although it required the submission of various
expert reports and involved certain side issues, the case was not
particularly complex.
- The
applicant seems partly responsible for certain adjournments (see
paragraph 8 above). However, the Court does not find that the
resulting delays contributed significantly to the overall length of
the proceedings.
- As
to the conduct of the authorities, the Court first notes that during
its first examination of the case on appeal the Smolyan Regional
Court apparently disregarded basic rules of procedure. This led to
the quashing of its judgment and the remittal of the case for a fresh
examination, which seriously prolonged the proceedings (see
paragraphs 6 and 7 above). Additional delays were caused by the
adjournment of several hearings owing to defective summoning of the
applicant or other parties, by the late presentation of an expert
report, and by the need to correct obvious factual errors in the
Smolyan Regional Court's judgment of 28 March 2002 (see paragraphs 7,
8 and 10 above). Lastly, the Madan District Court's omission to rule
on the issue of costs in its judgment caused a further prolongation
of the proceedings (see paragraph 13 above).
- In view of those delays, the Court finds that the
proceedings exceeded a “reasonable time”. There has
therefore been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF
ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the length of the proceedings had infringed
her right to the peaceful enjoyment of her possessions, as guaranteed
by Article 1 of Protocol No. 1.
- The
Government contested that claim.
- The
Court finds that this complaint is linked to the one examined above
and must thus likewise be declared admissible. However, having regard
to its finding under Article 6 § 1, it considers that it is not
necessary to examine whether there has been a violation of Article 1
of Protocol No. 1 (see Zanghì v. Italy, 19 February
1991, § 23, Series A no. 194 C).
III. ALLEGED
VIOLATION OF ARTICLE 13 THE CONVENTION
- Lastly,
the applicant complained under Article 13 of the Convention that she
did not have an effective remedy in respect of the excessive length
of the proceedings. Article 13 provides:
“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 submitted that the applicant could have lodged a
“complaint about delays”.
- The
applicant replied that that remedy was not effective and that
Bulgarian law did not provide for any other remedies.
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
- The
most recent case against Bulgaria in which the relevant principles
have been restated is Yankov and Manchev v. Bulgaria
(nos. 27207/04 and 15614/05, §
30, 22 October 2009).
- Having
regard to its conclusions in paragraph 25 above, the Court is
satisfied that the applicant's complaints were arguable.
- The
Court notes that the major delays stemmed from the erroneous manner
in which the Smolyan Regional Court examined the case the first time
on appeal, from the need to correct obvious factual errors in its
second judgment, and from the omission of the Madan District Court to
deal with the issue of costs. It does not seem that any of those
matters could have been addressed through a “complaint about
delays”, which was designed to prevent the slow examination of
a case or delays in delivery of a judgment or in transmitting of an
appeal (see paragraph 15 above). It is also questionable whether that
avenue of redress was available to the applicant when the case was
pending before the Supreme Court of Cassation, given that there was
no higher court, whereas a “complaint about delays” is to
be made to the president of the higher court. No other acceleratory
remedies seem to exist under Bulgarian law, nor remedies allowing
litigants to obtain compensation for excessively lengthy civil
proceedings (see, among other authorities, Hadjibakalov, cited
above, § 60).
- There
has therefore 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 17,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained certain
non pecuniary damage on account of the violations found. Ruling
on an equitable basis, it awards her under that head EUR 500, plus
any tax that may be chargeable.
B. Costs and expenses
- The
applicant sought the reimbursement of EUR 2,240 incurred in legal
fees for the proceedings before the Court and of EUR 43 for other
expenses. She requested that any amount awarded under this head be
made payable to her legal representatives.
- The
Government contested the claim.
- 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. In the present case, regard being had to the
information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 500, plus any tax
that may be chargeable to the applicant. That sum is to be paid into
the bank account of the applicant's representatives, Mr M. Ekimdzhiev
and Ms K. Boncheva.
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 is no need to examine
separately the complaint under Article 1 of Protocol No. 1;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
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
500 (five hundred euros) in respect of non pecuniary damage,
plus any tax that may be chargeable;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses, plus any
tax that may be chargeable to the applicant, to be paid into the bank
account of the applicant's legal representatives, Mr M. Ekimdzhiev
and Ms K. Boncheva, in Bulgaria;
(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 18 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
