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FIFTH
SECTION
CASE OF DINUCCI v. BULGARIA
(Application
no. 11486/04)
JUDGMENT
STRASBOURG
24
February 2011
This
judgment is final but it may be subject to editorial revision
In the case of Dinucci v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mirjana Lazarova Trajkovska,
President,
Mark Villiger,
Zdravka Kalaydjieva,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 31 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 11486/04) 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 an
Italian national, Mr Paolo Dinucci (“the applicant”), on
22 March 2004.
- The
applicant was represented by Mr C. Defilippi, a lawyer practising in
Milan. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs M. Dimova, of
the Ministry of Justice.
- On
12 February 2008 the
Court declared the application partly inadmissible and decided to
communicate the complaint concerning the length of the proceedings.
In accordance with Protocol no. 14 to the Convention, the application
was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Sofia.
- In 1992 the applicant and three other individuals
entered into a contract with a company engaged in cigarette
production.
- On 6 July 1993 the applicant was remanded in custody.
Shortly after that charges were raised against him and the other
three individuals for documentary fraud and aggravated fraud
committed in respect of the cigarette company as well as for making
false declarations. They were accused, in particular, of organising a
fictitious export of cigarettes in order to avoid paying excise tax.
- On 26 July 1993 the applicant was released on bail.
- On 5 December 1994 the prosecutor discontinued the
proceedings in respect of some of the charges. On 4 April 1995 the
prosecutor filed an indictment against the applicant with the Plovdiv
Regional Court for aggravated documentary fraud.
- In a judgment of 16 November 1998 the Plovdiv Regional
Court convicted the applicant and sentenced him to seven years of
imprisonment.
- On an unspecified date, apparently following the
applicant’s appeal, the Plovdiv Appellate Court quashed the
judgment of the Regional Court and remitted the case to the
prosecutor for further investigation.
11. On 27 October 1999 the prosecutor filed a fresh indictment
with the Plovdiv District Court for aggravated fraud. The applicant
and his alleged accomplices were accused, in particular, of causing
significant material damage to the company as the stipulated export
of cigarettes never took place and the company had to pay the excise
tax.
- On an unspecified date the company brought a civil
claim against the applicant which was accepted by the court for
examination. On 16 December 1999 and 26 January 2000 the
District Court held hearings which were adjourned as the applicant
failed to appear.
13. On 3 March 2000 the applicant was remanded in custody.
14. On 30 June 2000 the District Court acquitted the applicant and
his alleged accomplices and dismissed the civil claim against them.
The court found that there had been no casual link between the
behaviour of the accused and the damage sustained by the company as
in any event the latter had been bound by law to pay the excise tax.
- Upon the prosecutor’s appeal, on 20 February
2001 the Plovdiv Regional Court upheld the judgment.
- Upon the prosecutor’s appeal, on 12 February
2002 the Supreme Court of Cassation quashed the acquittal and
remitted the case to the Regional Court for new examination.
17. In a judgment of 20 May 2004 the Plovdiv Regional Court
convicted the applicant and sentenced him to three years of
imprisonment.
- Upon the applicant’s appeal, in a judgment of 4
April 2005 the Supreme Court of Cassation quashed the judgment for
procedural breaches and remitted the case to the Regional Court for
new examination.
- In a judgment of 1 March 2006 the Plovdiv Regional
Court upheld the judgment of 30 June 2000 (see paragraph 14 above).
- Upon the prosecutor’s appeal, on 17 April 2007
the Supreme Court of Cassation quashed the judgment of the Plovdiv
Regional Court, stating, inter alia, that the lower court had
failed to examine the case thoroughly, and remitted the case to the
Regional Court for new examination.
- In a decision of 12 February 2008 the court
discontinued the proceedings in its criminal part as time barred. The
decision became final on an unspecified date, not later than May
2008.
- Following the decision of 12 February 2008, the
proceedings on the merits continued only in respect of the civil
claim against the applicant and his alleged accomplices.
- In a judgment of 17 March 2008 the Plovdiv Regional
Court upheld the judgment of 30 June 2000 in its civil part.
- In a decision of 5 June 2008 the Supreme Court of
Cassation discontinued the examination of an appeal by the plaintiff
stating that the judgment of 17 March 2008 was not subject to
judicial review.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him 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
Government did not comment.
- The
period to be taken into consideration began on 6 July 1993 when the
applicant was remanded in custody and ended on an unspecified date
between February 2008 and May 2008 when the domestic court’s
decision to discontinue the criminal proceedings against the
applicant and thus to finally determine the charges against him
became final. It thus lasted more than fourteen years and seven
months for preliminary investigation and three levels of
jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
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 applicant 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, Yankov and Manchev v. Bulgaria,
nos. 27207/04 and 15614/05, §§ 17-26, 22 October 2009;
Stefanov and Yurukov v. Bulgaria, no. 25382/04, §
17, 1 April 2010). The instant case was relatively complex as it
involved charges against several persons and examination of
voluminous material. With the exception of several months at the end
of 1999 and the beginning of 2000 (see paragraph 12) there appear to
be no significant delays attributable to the applicant. The main
reason why the charges against him were not determined for such a
long time was the fact that the case was remitted three times by the
Supreme Court of Cassation to the lower court for new examination
(see paragraphs 16, 18 and 20).
-
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.
There
has accordingly been a breach of Article 6 § 1.
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 pecuniary and non-pecuniary damage, submitting that
the unreasonable length of the criminal proceedings against him had
unfavourable repercussions on his professional career, his private
and family life. He did not specify the exact amount of his claim.
- The
Government left the matter to the Court’s discretion.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. Ruling on an equitable basis, it awards him EUR 6,800 under
that head.
B. Costs and expenses
- The
applicant claimed reimbursement of costs and expenses incurred before
the domestic courts and before the Court to be determined in
accordance with the Court’s case-law in this respect. No
supporting documents were presented.
- The
Government contended these claims to be unsubstantiated.
- 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 were actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes that
the applicant’s claim is not supported by any evidence, such as
a legal fee agreement, timesheet or receipts. It must therefore be
rejected as unsubstantiated.
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 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 applicant, within three months EUR
6,800 (six thousand and eight hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into Bulgarian levs at the rate applicable at the date of settlement;
(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 24 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mirjana Lazarova Trajkovska
Deputy
Registrar President
