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FOURTH
SECTION
CASE OF
SVETLOZAR PETROV v. BULGARIA
(Application
no. 23236/04)
JUDGMENT
STRASBOURG
7 June
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Svetlozar Petrov v.
Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ljiljana Mijović,
President,
Lech Garlicki,
Zdravka Kalaydjieva,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 17 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23236/04) 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 Svetlozar Petrov (“the
applicant”), on 10 June 2004.
- The
applicant was represented by Ms S. Lyubenova - Neykova, a lawyer
practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent Mrs R. Nikolova,
of the Ministry of Justice.
- On
11 December 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1945 and lives in Pleven.
- On
3 April 1992 the applicant was appointed general manager of the
state-owned company Republika EOOD (“the company”) under
a contract executed between him and the Ministry of Industry (“the
Ministry”).
- On
30 June 1995 the applicant signed a new contract with the Ministry
pursuant to which he was to remain the general manger of the company
until 1998.
- On
25 July 1995 the Ministry rescinded the latter contract and the
applicant had to leave the position of a general manager.
- Believing
the rescission to have been unlawful, on 16 August 1995 the applicant
brought an action before the Sofia City Court, seeking remuneration
under the contract of 1995. The action was directed against the
company as a main defendant and the Ministry of Industry (“the
Ministry”) as an additional defendant in the event of dismissal
of the action against the company.
- The
number of hearings held between August 1995 and October 1996 is not
clear. It appears that a hearing was held in February 1996.
- For
the period between October 1996 and March 2001 the Sofia City Court
held hearings on 15 October 1996, 4 February 1997, 28 March 1997,
4 November 1997, 21 April 1998, 30 October 1998, 20 April 1999,
5 October 1999, 15 February 2000, 23 May 2000, 7 November 2000
and 27 March 2001. Four of these hearings were adjourned upon
requests of the defendants or because of the absence of experts.
- In
examining the case the court heard the parties and several experts
who had to give an estimate of the amount of the applicant’s
remuneration.
- By
a judgment of 19 July 2001 the Sofia City Court dismissed the
applicant’s action against the company and partially granted it
against the Ministry. The court held that a party under the contract
of 1995 and the proper defendant in the case before it was the
Ministry which had been responsible for rescinding the contract. The
Ministry was liable to pay the full amount of the agreed
remuneration, which was established to be 5,631.28 Bulgarian levs
(BGN), the equivalent of 2,879.23 euros (EUR). The court ordered the
Ministry to pay this amount, plus interest and BGN 230 (EUR
117.57) in costs.
- The
applicant and the company did not appeal.
- The
Ministry appealed, contending, inter alia, that it had acted
on behalf of the company as a representative of the owner of its
capital and that therefore the company was the proper defendant in
the proceedings. Moreover, the contract explicitly stipulated that
the applicant’s remuneration was to be paid by the company.
- By
a judgment of 30 June 2002 the Sofia Court of Appeal quashed the
Sofia City Court’s judgment in so far as it granted the claim
against the Ministry. It held that although the contract had been
signed by the Minister, the company was a party to it because the
Minister had not acted as a head of the Ministry but as a
representative of the owner of the capital, appointing the general
manager of the company. Therefore, it was the company’s
responsibility that had to be engaged. The court, however, was barred
from examining the action against the company because neither the
applicant, nor any of the other parties had appealed against the
dismissal by the Sofia City Court of the action against the company.
The judgment of the Sofia City Court had thus become final in respect
of the company.
- The
applicant filed a cassation appeal.
- By
a final judgment of 13 January 2004 the Supreme Court of Cassation
dismissed the appeal and upheld the judgment of 30 June 2002, finding
that the company, not the Ministry, had been party to the 1995
contract. As to the applicant’s argument that the merits of his
action against the company had not been examined, the court held that
the Sofia City Court had examined and dismissed that action. As the
applicant had not appealed, despite the interest to do so, the Sofia
Court of Appeal and the Supreme Court of Cassation were barred from
examining the issue again.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS
- 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
Government argued that the applicant’s case was examined within
a reasonable time. The case was complex because it included several
defendants and required two expert opinions. The Sofia City Court
held hearings on a regular basis in so far as this was possible in
view of its workload. Furthermore, the applicant was responsible for
some of the delays as he put additional questions to the experts and
requested adjournments.
- The
applicant argued that no delays were imputable to him as all his
actions had been aimed at the establishment of the true facts and the
proper presentation of his case.
- The
period to be taken into consideration began on 16 August 1995 when
the applicant initiated the proceedings (see paragraph 8 above). It
ended on 13 January 2004, when the Supreme Court of Cassation gave a
final judgment in the case (see paragraph 17 above). It thus lasted
eight years, four months and twenty-eight days for three levels of
jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 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 and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- 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 Frydlender, cited above and Rachevi v. Bulgaria,
no. 47877/99, 23 September 2004). 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 proceedings remained pending before the Sofia
City Court for a period of about six years, which is excessive in
itself in the absence of concrete justification. No such
justification was advanced by the Government. The Court also finds
that no unwarranted delays could be attributed to the applicant.
- In
view of the above, 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE FAIRNESS OF THE PROCEEDINGS
- The
applicant also complained under Article 6 § 1 that his right to
a fair trial had been violated in that his claim against the company
had not been examined on the merits.
- The
Government argued that the applicant had been given the opportunity
to present his case and to challenge the arguments of the other
parties. The outcome of the proceedings and, in particular, the
impossibility for the second and final instance courts to examine
again the action against the company had been caused by the
applicant’s failure to appeal against the judgment of 19 July
2001 in so far as it dismissed that action. The Court of Appeal and
the Supreme Court of Cassation had been barred from examining the
action because the parties had delimited the subject-matter of the
proceedings. In a separate set of proceedings against the company, in
a judgment of 16 December 1998, the applicant had been awarded
amounts for unpaid remuneration.
- The
applicant replied that the Sofia Court of Appeal and the Supreme
Court of Cassation had erred in finding that the Ministry was not
liable under the 1995 contract. This resulted in a denial of a fair
trial. The applicant explained that he had not appealed against the
dismissal of the action against the company, believing that the
Ministry was the proper defendant. The applicant also submitted that
he had not received the remuneration sought in the 1995-2004
proceedings and that his financial losses had not been recovered.
- The
Court notes at the outset that it is unclear whether it can be said,
as the applicant suggested, that his action against the company was
never examined in substance. It reiterates that the mere fact that a
legal action was held to be inadmissible does not mean that the
applicant was denied access to a court, provided that the dispute
which he submitted for adjudication was the subject of a genuine
examination (see Velikovi and Others v. Bulgaria, nos.
43278/98 et al., § 260, 15 March 2007; Yanakiev v. Bulgaria,
no. 40476/98, § 69, 10 August 2006; and, mutatis mutandis,
Obermeier v. Austria, 28 June 1990, § 68, Series A no.
179). It is true that the Sofia City Court declared the applicant’s
claim against the company inadmissible but it did so apparently on
the basis of its view that the company was not liable as claimed by
the applicant and solely the Ministry was liable in the
circumstances.
- The
Court need not decide on this point, however. It finds that even if
it is accepted that the Sofia City Court did not provide a genuine
examination of the claim against the company, it was open to the
applicant to obtain such examination by appealing to the higher
courts.
- In
so far as the applicant alleges that he was misled in not doing so by
the Sofia City Court’s judgment, the Court notes that the
applicant, who was legally represented, directed his action against
two defendants alleging their liability for the rescission of the
1995 contract. It was clear that despite certain overlap, the facts
and legal issues relevant to the alleged liability of each defendant
were not identical. Had the applicant wished to pursue his claim that
not only the Ministry, but also the company, was liable to pay him
remuneration under the 1995 contact, he was free to appeal against
the judgment of the Sofia City Court. As he failed to do so, he
cannot claim that the State was responsible for the fact that his
claim against the company was not examined further. This clearly
distinguishes the present case from the case of Kostadin Mihaylov
v. Bulgaria, no. 17868/07, 27 March 2008, where the applicant was
denied access to a court because of lack of clear provisions and
conflicting positions of the domestic courts as to which State body
was liable for damages resulting from unlawful decisions of the
social security authorities (see paragraphs 40-43 of the judgment).
- In
these circumstances, the Court does not find any indication that the
authorities deprived the applicant of access to a court for the
determination of his claim against the company or that the 1995-2004
proceedings were otherwise tainted by arbitrariness or unfairness. In
so far as the applicant claims that there had been errors, the Court
reiterates that it is not a court of appeal from the decisions of
domestic courts and that, as a general rule, it is for those courts
to interpret domestic law and assess the evidence before them. The
Court’s role is confined to ascertaining whether the
proceedings considered as a whole were fair (see García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I and
Kern v. Austria, no. 4206/02, § 61, 4 February 2000).
- It
follows that the above complaint is manifestly ill-founded and must
be dismissed 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.”
A. Damage
- The
applicant claimed BGN 5,631.28 or EUR 2,888 euros (EUR) in respect of
pecuniary damage which was equal to the amount of the compensation
granted to him by virtue of the judgment of 19 July 2001, plus
interest as of 16 August 1995. He further claimed non-pecuniary
damage for the anguish he sustained as a result of the length of the
proceedings, leaving the determination of the exact amount to the
Court’s discretion.
- The
Government contested the claims as unfounded. In respect of the
non-pecuniary damage, the Government submitted that the finding of a
violation would constitute sufficient just satisfaction.
- The Court notes that the sole basis on which the
applicant can be granted just satisfaction is the breach of the
"reasonable time" requirement under Article 6 § 1. It
does not consider that this violation had a sufficient causal link
with the pecuniary damage alleged by the applicant. It therefore
rejects this claim. On the other hand, the Court considers that the
applicant must have sustained non-pecuniary damage. Ruling on an
equitable basis, it awards award him EUR 1,600 under that head.
B. Costs and expenses
- The
applicant claimed BGN 230 or EUR 118 in costs and expenses, without
specifying their type. In additional submissions he clarified that
they concerned the proceedings before the Court. He also claimed
costs and expenses in the event of a hearing before the Court.
- The
Government contested that the applicant had not specified the nature
of the claimed costs and had not presented any evidence that these
costs had been actually incurred.
- 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 fact that the applicant failed to produce any documents showing
that the costs and expenses claimed had actually been incurred, the
Court rejects the claim for costs and expenses (see Zakharov v.
Russia, no. 14881/03, § 38, 5 October 2006 and Grzelak v.
Poland, no. 7710/02, § 115, 15 June 2010).
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
1. Declares the complaint concerning the
length of the proceedings admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention in respect of the
excessive length of the proceedings;
3. Holds
(a) that
the respondent State is to pay the applicant, within three months,
EUR 1,600 (one thousand six hundred euros) in respect of
non-pecuniary damage, to be converted into Bulgarian levs at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(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;
4. Dismisses the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 7 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ljiljana Mijović
Deputy
Registrar President
