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FIFTH
SECTION
CASE OF KARAMITROV AND OTHERS v. BULGARIA
(Application
no. 53321/99)
JUDGMENT
STRASBOURG
10
January 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 Karamitrov and Others v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Snejana
Botoucharova,
Volodymyr Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait Maruste,
Javier Borrego
Borrego,
Renate Jaeger, judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 53321/99) 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 three Bulgarian nationals, who were members
of one family, on 7 September 1999. The first, Mr Victor Petrakiev
Karamitrov was born in 1965 and lives in Pazardzhik (the “first
applicant”). The second, Mrs Evgenia Radionova Karamitrova was
born in 1938 and lives in Pazardzhik (the “second applicant”).
The third, Mr Petraki Iordanov Karamitrov was born in 1928,
lived in Pazardzhik and died in 2000 (the
“third applicant”). In a letter of 2 June 2004 the first
applicant informed the Court that he wished to continue the
application in respect of his father’s complaints.
- The
applicants were represented by Mr V. Stoyanov, a
lawyer practising in Pazardzhik.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Kotzeva, of the Ministry of Justice.
- The
first applicant alleged that the length of the criminal proceedings
against him was excessive and that he lacked an effective remedy to
speed them up and to have the case brought before a court. The second
and third applicants complained that their car had been illegally
seized and impounded, that it had been held as evidence for the
duration of the criminal proceedings against the first applicant,
that they had been deprived of their possession during that period,
and that after the vehicle was returned to them they had not been
able to obtain adequate compensation for the damage caused as a
result of the aforesaid.
- In
a decision of 9 February 2006 the Court joined to the merits the
question of exhaustion of domestic remedies in respect of the
applicants’ respective complaints and declared the application
admissible.
- The
applicants and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings against the first applicant
- On
the night of 14 October 1991 a car was stolen from an unsecured car
park. Early in 1992 a preliminary investigation in respect of the
theft was opened against an unknown perpetrator.
- On
28 May 1992 the first applicant was stopped by
the police while driving the car of his parents – the
second and third applicants. The police established a
discrepancy between the numbers on the chassis of the vehicle and
those in the registration documents of the vehicle which had been
issued by the Pazardzhik Traffic Police on 17 July 1973. They seized
and impounded the car in order to check its registration documents
and ownership. The first applicant was
questioned regarding the discrepancy in the car’s registration
documents both on the above date and on 4 June 1992.
- The
investigating authorities commissioned a technical examination of the
seized vehicle. In a report of 14 April 1993 the
technical expert concluded that the number plate on the chassis of
the car was not the original, but had been changed.
- On
8 June 1993 the first applicant was charged with being an accessory
to the theft of the car on 14 October 1991. He was questioned on the
same day and then released. A restriction was imposed on the first
applicant, not to leave his place of residence without the consent of
the Prosecution Office.
- No
further investigative procedures were conducted in the course of the
preliminary investigation.
- On
3 April 1995 the first applicant complained to the Pazardzhik
District Prosecution Office about the length of the criminal
proceedings. He did not receive a response.
- Subsequently,
the first applicant lodged similar complaints with the Pazardzhik
District Prosecution Office, the Pazardzhik Regional Prosecution
Office, the Plovdiv Appellate Prosecution Office and the Chief
Prosecutor about the length of the criminal proceedings. He did not
receive a response to any of them.
- Sometime
in 1998 the investigator in charge of the preliminary investigation
died, while the assistant investigator retired. The first applicant’s
case was never reassigned to another investigator.
- Sometime
in September 1999 the first applicant lodged another complaint about
the length of the criminal proceedings with the Supreme Cassation
Prosecution Office. In response, the Plovdiv Appellate Prosecution
Office was instructed to investigate the first applicant’s
complaint.
- In
a decision of 20 October 1999 of the Pazardzhik District Prosecution
Office the preliminary investigation was discontinued in respect of
the first applicant as unproven. The restriction on the first
applicant not to leave his place of residence without the consent of
the Prosecution Office was removed.
- The
criminal proceedings continued, against an unknown perpetrator, until
27 September 2004 when the Pazardzhik District Prosecution Office
terminated them due to the expiry of the statute of limitations for
the offence. In its decision, the Prosecution Office expressly noted
that no investigative procedures had been conducted in the
proceedings after 8 June 1993, the date on which the first applicant
was arrested and charged.
B. The seizure, impounding and return of the car
- The
car was seized and impounded by the police on 28 May 1992 in order to
check its registration documents and ownership. No protocol of
seizure was prepared and the second and third applicants were not
given a receipt or any other document evidencing the impounding of
the vehicle.
- The
car remained impounded by the police for the duration of the
preliminary investigation against the first applicant as physical
evidence of the offence.
- On
9 November 1994 the person from whom the car had allegedly been
stolen on 14 October 1991 requested possession of the vehicle.
- The
question of returning the vehicle to the second and third applicants
was raised by the first applicant in his complaints regarding the
length of the criminal proceedings lodged with the Pazardzhik
District Prosecution Office on 3 April 1995, the Supreme Cassation
Prosecution Office on 19 October 1999 and the Chief Prosecutor
in September 1999. No action was taken in response to any of them.
- In
its decision of 20 October 1999 to terminate the criminal proceedings
against the first applicant the Pazardzhik District Prosecution
Office noted that no protocol or other document existed to show “who,
when, why and how” the vehicle of the second and third
applicants had been seized and impounded. Nevertheless, the
Prosecution Office ordered that the car be handed over to the person
from whom it had allegedly been stolen on 14 October 1991
because it considered that, inter alia, on the basis of the
investigative procedures performed during the preliminary
investigation she was the owner of the vehicle. The applicants
appealed against the decision in respect of the order to hand over
the car to another person.
- On
an unspecified date the police handed over the car of the second and
third applicants to the person from whom it had allegedly been
stolen.
- In
a decision of 10 November 1999 the Pazardzhik Regional Prosecution
Office upheld the decision of the Pazardzhik District Prosecution
Office on grounds similar to those contained in the latter’s
decision. The applicants appealed further.
- On
18 November 1999 the Plovdiv Appellate Prosecution Office quashed the
above decisions of the lower-level Prosecution Offices. It found,
inter alia, that it was not within their competencies to
determine the ownership of the vehicle and, in view of the
termination of the preliminary investigation against the first
applicant, the car had to be returned to the persons from whom it had
been seized. It further found that the seizure of the vehicle and the
resulting impounding had been unlawful because at the time the
seizure had been made no protocol to that effect had been executed.
The person to whom the car had been handed over appealed against the
decision.
- In
a decision of 10 March 2000 the Supreme Cassation Prosecution Office
upheld the decision of the Plovdiv Appellate Prosecution Office on
grounds similar to those contained in the latter’s decision.
- The
car was returned to the second and third applicants on 19 May 2000.
As a result of the period of impounding it had been damaged –
its paintwork had deteriorated and the radiator was cracked. Parts of
the car were also missing, such as two spark plugs and cables, the
left headlight, the spare tyre, the indicators, the cover of the
right back brake light, the door handles and other things. They
estimated the damage to be worth around 100 Bulgarian levs
(approximately 51 euros). The first applicant, who signed the
protocol of transfer, made a reservation that he would make a further
assessment of the damage caused to the vehicle and that a subsequent
claim might be filed against the District Prosecution Office in that
respect.
- The
second and third applicants did not initiate any action to seek
compensation for the alleged damage caused to the vehicle.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure (1974)
- Paragraphs
1, 2 and 4 of Article 107 of the Code of Criminal Procedure (1974)
provided as follows:
“(1) Physical evidence must be
carefully examined, described in detail in the respective record, and
photographed, if possible.
(2) Physical evidence shall be attached to
the case file while at the same time measures shall be taken not to
spoil or alter the evidence.
...
(4) Physical evidence which, because of its
size or other reasons, cannot be attached to the case file, must be
sealed, if possible, and deposited for safekeeping at the places
indicated by the respective authority.”
- Paragraphs
1 and 2 of Article 108 of the Code, as in force at the relevant time
and until 1 January 2000, provided as follows:
“(1) Physical evidence shall be held
until the termination of the criminal proceedings.
(2) Chattels which have been collected as
physical evidence can be returned to their owners before the
termination of criminal proceedings only as long as this will not
hinder the establishment of the facts in the case.”
- Article
108 paragraph 2 of the Code was amended on 1 January 2000 to clarify
that it was within the powers of the Prosecution Office to rule on
requests for the return of chattels held as physical evidence. In
addition, a right of appeal to a court was introduced against
refusals by the Prosecution Office to return such chattels (Article
108 paragraph 4 of the Code of Criminal Procedure as in force after 1
January 2000).
- If
a dispute over ownership requiring adjudication by the civil courts
arose in respect of items held as physical evidence, the authorities
were obliged to keep those items safe until the relevant judgment
became final (Article 110).
- The
Code of Criminal Procedure (1974) was replaced in 2006 by a new code
of the same name.
B. State and Municipalities’ Responsibility for
Damage Act (1988)
- Section
1 (1) of the State and Municipalities’ Responsibility for
Damage Act of 1988 (the “SMRDA”: title changed in 2006)
provided, as in force at the relevant time, as follows:
“The State shall be liable for damage caused to
[private persons] from unlawful acts, actions or inactions of its
apparatus and officials [in the exercise] of administrative duties.”
- Section
2 of the SMRDA provides as follows:
“The State shall be liable for damage caused to
[private] persons by the [apparatus] of ... the investigation
authorities, the prosecution authorities, the court ... for an
unlawful:
1. detention ... ;
2. charge for an offence, if the person has
been acquitted or the opened criminal proceedings have been
terminated because the act was not perpetrated by the person [in
question] or the act is not an offence ... ;
3. sentence ... ;
4. ... forced medical treatment ... ;
5. ... imposition of administrative sanctions
... ;
6. enforcement of an imposed sentence in
excess of the determined period ... ”
- Compensation
awarded under the Act comprises all pecuniary and non-pecuniary
damage which is the direct and proximate result of the illegal act of
omission (section 4). The person aggrieved has to lodge an “action
... against the [entity] ... whose illegal orders, actions, or
omissions have caused the alleged damage” (section 7).
Compensation for damage arising from instances falling under section
1 and 2 of the Act can only be sought under the Act and not under the
general rules of tort (section 8 § 1).
- The
practice of the Bulgarian courts in the application of the Act has
been very restrictive.
- In
particular, the domestic courts have ruled that liability for damage
stemming from instances within the scope of section 1 of the Act are
to be examined only under the Act and not under the general rules of
tort (решение
№ 55 от 14.III.1994 г. по гр.д.
№ 599/93 г., ВС, IV
г.о.).
- Similarly,
liability of the investigation and the prosecution authorities may
arise only in respect of the exhaustively listed instances under
section 2 (1) and (2) of the Act and not under the general rules of
tort (решение
№ 1370 от 16.XII.1992 г. по гр.д.
№ 1181/92 г., IV г.о. and Тълкувателно
решение № 3 от
22.04.2005 г. по т. гр. д.
№ 3/2004 г., ОСГК на
ВКС). No reported cases have been identified of
successful claims for damage stemming from actions by the
investigation or prosecution authorities which fall outside the list
in section 2 of the Act.
- Liability
under section 2 of the Act may arise only for unlawful actions, but
not for unlawful inactions by the investigation authorities, the
prosecution authorities and the courts (решение
№ 183 от 05.IV.2001 г. по гр. д.
№ 1362/2000 г.).
- Up
to 2005 there existed conflicting domestic case law as to whether
liability of the State arose under section 2 (2) of the Act in
instances, such as in the present case, when criminal proceedings
were discontinued as “unproven” (решение
от 04.02.2003 г. по въззивно
гр. д. № 1538/2002 г. на
ПАС and решение
№ 1085 от 26.07.2001 г. по гр.
д. № 2263/2000 г., IV г.о.). The issue
was clarified by the General Assembly of the Civil Chambers of the
Supreme Court of Cassation in Interpretative decision no. 3/2004
of 22 April 2005 (Тълкувателно
решение № 3 от
22.04.2005 г. по т. гр. д.
№ 3/2004 г., ОСГК на
ВКС) which found that section 2 (2) of the Act was
applicable in such instances.
- The
Government presented two hundred and one judgments under the SMRDA
where the domestic courts had found the State liable to pay damages
to claimants. Of these cases (a) thirty-seven judgments were based on
section 2 (2) of the Act and related to being unlawfully charged with
an offence; (b) forty-seven were based on section 1 of the Act
relating to unlawful acts by the administration; (c) a further one
hundred and one were also based on section 1 of the Act but stemmed
from unlawful actions or inactions by the administration; and (d)
sixteen cases related to more specific complaints falling under
Article 3 and 5 of the Convention.
- In
their submissions, the Government stressed the existence of a
judgment delivered by the Pazardzhik District Court on 14 December
2005. In that case the domestic court had ordered the Pazardzhik
District Police Authority to pay compensation for the pecuniary
damage suffered by a claimant as a result of the former’s
inactivity in keeping safe a vehicle seized as physical evidence in a
case. A related claim in respect of non-pecuniary damage had been
dismissed and the Prosecution Office had also been ordered to pay the
claimant compensation for the non-pecuniary damage suffered as a
result of being unlawfully charged with an offence.
- In
their submissions in reply, the applicants informed the Court of the
subsequent development of the above-mentioned case. The judgment
relied on by the Government had been appealed against both by the
Pazardzhik District Police Authority and the Prosecution Office. The
Pazardzhik Regional Court examined the appeal and delivered a final
judgment on 10 June 2006. It quashed the first-instance court’s
judgment in respect of the liability of the Pazardzhik District
Police Authority for the damage to the claimant’s vehicle as it
found that the police’s actions, or inactions, as they related
to the safekeeping of a vehicle as physical evidence, did not fall
within the definition of “administrative duties” under
section 1 nor under any of the instances under section 2 of the Act.
Thus, the police could not be held liable for their actions or
inactions in similar such instances. Separately, the Pazardzhik
Regional Court upheld the first-instance court’s judgment
against the Prosecution Office.
C. The Obligations and Contracts Act
- The
Obligations and Contracts Act provides in section 45 that a person
who has suffered damage can seek redress by bringing a civil action
against the person who has, through his fault, caused the damage.
Under section 110 the claim for damage is extinguished with the
expiry of a five year prescription period.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
first applicant complained of the excessive
length of the criminal proceedings against him and the lack of an
effective remedy relating thereto.
In
its admissibility decision of 9 February 2006 the Court considered
that these complaints fall to be examined under Articles 6 § 1
and 13 of the Convention, which provide, as relevant:
Article 6 (right to a fair hearing)
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
Article 13 (right to an effective remedy)
“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.”
A. The Government’s preliminary objection
- The
Government submitted that the first applicant had failed to exhaust
the available domestic remedies. They claimed that he should have
initiated an action under the SMRDA and should have sought
compensation for all pecuniary and non-pecuniary damage which was the
direct and proximate result of the alleged violation. The Government
referred to the practice of the domestic courts in similar cases (see
paragraphs 34-44 above).
- The
first applicant replied that the Government had failed to
substantiate their objection because they had failed to show that an
action under the SMRDA was an effective remedy for his complaint of
the excessive length of the criminal proceedings against him and,
therefore, that it was required of him to have exhausted it. He
submitted that the violations complained of could neither be
established nor compensated under the SMRDA.
- In
its admissibility decision of 9 February 2006 the Court found that
the question of exhaustion of domestic remedies was so closely
related to the merits of the first applicant’s complaint that
he lacked an effective remedy for the excessive length of the
criminal proceedings against him that it could not be detached from
it, and therefore joined the Government’s objection to the
merits (see paragraph 5 above).
Accordingly,
the Court will examine the Government’s objection in the
context of the merits of the first applicant’s complaint that
he lacked an effective remedy for the excessive length of the
criminal proceedings.
B. Period to be taken into consideration
- The
Court finds that the period to be taken into consideration lasted
from 8 June 1993 when the first applicant was arrested and charged
(see paragraph 10 above) to 20 October 1999 when the preliminary
investigation was discontinued in respect of him as unproven (see
paragraph 16 above).
- This
is a period of six years, four months and thirteen days during which
the criminal proceedings remained at the preliminary investigation
stage and no investigative procedures, whatsoever, had been performed
after the initial arrest (see paragraph 17 above).
C. The parties’ submissions
- The
Government simply reiterated their assertion that the first applicant
had failed to exhaust the available domestic remedies. They claimed
that he could have initiated an action against the State under
section 2 (2) of the SMRDA, which they considered to be an
effective remedy. The Government referred in this respect to the
alleged persistent practice of the domestic courts and the finding of
the Court in the inadmissibility decision in the case of Ekimdjiev
v. Bulgaria (no. 47092/99, 3 March 2005).
- The
first applicant disagreed with the Government and noted that the
Pazardzhik District Prosecution Office, in its decision of 27
September 2004, had established that that no investigative procedures
had been conducted in the course of the preliminary investigation
after 8 June 1993, the date on which he was arrested and charged (see
paragraph 17 above). Subsequently, for the next six and half years
nothing had been done, but the restriction on his movements had been
maintained and he remained concerned and anxious as to the possible
outcome of the proceedings. In respect of the Government’s
assertion that section 2 (2) of the SMRDA was a remedy that should
have been exhausted, the first applicant claimed that at the relevant
time there was no possibility of claiming damages in instances when
the criminal proceedings were terminated as unproven (see paragraph
41 above) and, moreover, that this would not have remedied his
complaint in respect of the excessive length of the proceedings.
Thus, he considered the aforesaid provision not to have been an
available effective remedy which he should have exhausted.
D. Compliance with Article 6 § 1 of the Convention
regarding the length of the criminal proceedings
- 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).
- Having
examined all the material before it and noting the Government’s
failure to submit observations on the merits of the complaint, the
Court finds that no facts or arguments capable of persuading it that
the length of the criminal proceedings in the present case was
reasonable have been put forward. In particular, the criminal
proceedings against the first applicant lasted six years, four months
and thirteen days, remained at the preliminary investigation stage
for the whole of that period (see paragraph 16 above) and, most
notably, no investigative procedures whatsoever had been undertaken
(see paragraph 17 above).
- Thus,
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 of the
Convention.
E. Compliance with Article 13 in conjunction with
Article 6 § 1 of the Convention regarding the availability of an
effective remedy
- The
Court reiterates that Article 13 of the Convention guarantees an
effective remedy before a national authority for an alleged breach of
the requirement under Article 6 § 1 of the Convention to hear a
case within a reasonable time (see Kudła v. Poland [GC],
no. 30210/96, § 156, ECHR 2000-XI).
- The
Court notes that in similar cases against Bulgaria it has found that
at the relevant time there was no formal remedy under Bulgarian law
that could have expedited the determination of the criminal charges
against the first applicant (see Osmanov and Yuseinov v.
Bulgaria, nos. 54178/00 and 59901/00, §§ 38-42, 23
September 2004; and Sidjimov v. Bulgaria, no. 55057/00, §
41, 27 January 2005). The Court sees no reason to reach a different
conclusion in the present case.
- As
regards compensatory remedies and the Government’s preliminary
objection, the Court observes that they submitted that the applicant
had failed to exhaust an available domestic remedy under section 2
(2) of the SMRDA and referred to the existing possibility therein to
obtain redress for having been unlawfully charged with an offence.
They did not, however, indicate how that would have remedied the
complaint currently before this Court in respect of the alleged
excessive length of the criminal proceedings. Moreover, the
Government failed to present copies of domestic court judgments where
awards had been made under the SMRDA providing redress for excessive
length of criminal proceedings. Likewise, the Court’s findings
in the case of Ekimdjiev (cited above) did not relate to the
possibility of obtaining redress for excessive length of criminal
proceedings.
- In
view of the aforesaid, the Court does not find it proven by the
Government that in the circumstances of the present case an action
under the SMRDA would have provided for an enforceable right to
compensation which could be considered an effective, sufficient and
accessible remedy in respect of the applicant’s complaint in
respect of the alleged excessive length of the criminal proceedings
(see, likewise, Osmanov and Yuseinov, cited above, §41;
Sidjimov, cited above, § 42, and Nalbantova v.
Bulgaria, no. 38106/02, § 36, 27 September 2007).
- Accordingly,
there has been a violation of Article 13 of the Convention in that
the applicant had no effective domestic remedy for his complaint
under Article 6 of the Convention that the length of the criminal
proceedings against him was excessive.
It
follows that the Government’s preliminary objection (see
paragraphs 47-49 above) must be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION AND ARTICLE 13 OF THE CONVENTION
- The
second and third applicants complained under several provisions of
the Convention regarding the unlawful seizure and prolonged
impounding of their vehicle and the lack of effective remedies
relating thereto.
In
its admissibility decision of 9 February 2006 the Court considered
that these complaints fall to be examined under Article 1 of Protocol
No. 1 to the Convention and Article 13 of the Convention. In respect
of the latter, the Court found that the second and third applicants
complained of the lack of a substantive right of action under
domestic law rather than of the existence of procedural bars
preventing or limiting the possibilities of bringing potential claims
to court. Thus, it considered that their complaint should be examined
under Article 13 of the Convention in respect of the alleged lack of
effective domestic remedies against the interference with their right
to peaceful enjoyment of their possession, rather than under Article
6 of the Convention as an access to court issue (see, mutatis
mutandis, Fayed v. the United Kingdom,
judgment of 21 September 1994, Series A no. 294 B, p. 49, § 65).
Article
1 of Protocol No. 1 to the Convention and Article 13 of the
Convention provide as follows:
Article 1 of Protocol No. 1 (protection of property)
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
Article 13 (right to an effective remedy)
“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.”
A. The Government’s preliminary objection
- The
Government submitted that the second and third applicants had failed
to exhaust the available domestic remedies. They claimed that they
should have initiated an action under the SMRDA and should have
sought compensation for all pecuniary and non-pecuniary damage which
was the direct and proximate result of the alleged violations. The
Government referred to the practice of the domestic courts in similar
cases (see paragraphs 34-44 above).
- The
Government also considered that they could have initiated a tort
action and could have sought compensation for damage from the persons
responsible for the alleged violations (see paragraph 45 above). They
referred to the rebuttable presumption of guilt of the respondent in
such actions and that claimants need only prove the size of the
pecuniary and non-pecuniary damage suffered, such as, for example,
for loss of value, loss of income and amortisation of a vehicle.
- The
second and third applicants replied that the Government had failed to
substantiate their objection because they had failed to show that the
suggested remedies were effective and, therefore, that it was
required of them to have exhausted them. They submitted that the
violations they complained of could not be compensated under the
SMRDA and referred to the restrictive interpretation of the domestic
courts in respect of the liability of the investigation authorities,
the prosecution authorities and the courts (see paragraph 37-40
above).
- In
respect of the Government’s assertion that they could have
initiated a tort action against the persons responsible, the second
and third applicants responded that that was not an effective remedy
either. In particular, they referred to the fact that no protocol or
other document had been executed for the seizure and impounding of
their vehicle. Neither had they received any responses to the
numerous complaints they had lodged with the Prosecution Office.
Accordingly, they could never have designated a respondent party in
such a tort action. They also noted that the investigator in charge
of the preliminary investigation had died in 1998 and, in addition,
that the investigation and prosecution authorities enjoyed immunity
from civil prosecution stemming from their official activities.
- In
its admissibility decision of 9 February 2006 the Court found that
the question of exhaustion of domestic remedies was so closely
related to the merits of the second and third applicants’
complaint that they lacked effective remedies in respect of the
alleged interference with their right to peaceful enjoyment of their
possession that it could not be detached from it, and therefore
joined the Government’s objection to the merits (see paragraph
5 above).
Accordingly,
the Court will examine the Government’s objection in the
context of the merits of the second and third applicants’
complaint that they lacked effective remedies in respect of the
alleged interference with their right to peaceful enjoyment of their
possession.
B. The parties’ submissions
- The
Government simply reiterated their assertion that the second and
third applicants had failed to exhaust the available domestic
remedies. They claimed that they could have initiated an action
against the State under the SMRDA, which they considered to be an
effective domestic remedy. In particular, the Government referred to
the judgment of the Pazardzhik District Court of 14 December 2005
which found the Pazardzhik District Police Authority liable for
damage suffered by a claimant as a result of the former’s
inactivity in keeping safe a vehicle seized as evidence in a case
(see paragraph 43 above).
- In
their reply, the second and third applicants observed that the
Government had not challenged their assertion that the authorities
had seized and held their vehicle for a considerable length of time
in violation of the applicable legislation. Thus, they argued that
the interference with their right to peaceful enjoyment of their
possession had been unlawful and, therefore, in contravention of
Article 1 of Protocol No. 1 to the Convention.
- In
respect of the availability of an action against the State under the
SMRDA and the domestic case law presented by the Government, the
second and third applicants noted that the presented judgments dated
from 2005-2006 or related to cases which were factually different
from theirs. They also observed that the judgment of the Pazardzhik
District Court of 14 December 2005, on which the Government
relied so heavily, had been quashed on appeal in respect of the
liability of the Pazardzhik District Police Authority. Moreover, the
second and third applicants noted that in the final judgment of 10
June 2006 the Pazardzhik Regional Court had essentially found that
the police could not be held liable under the SMRDA for actions or
inactions relating to damaged items seized as physical evidence (see
paragraph 44 above).
C. Compliance with Article 1 of Protocol No. 1 to the
Convention
- The
Court notes at the outset that the second and third applicants’
possession was seized by the authorities on 28 May 1992 while the
Convention entered into force for Bulgaria more than three months
later, on 7 September 1992. Thus, the act of the seizure itself falls
outside the Court’s jurisdiction ratione temporis.
However, the Court notes that the second and third applicants also
complained that the authorities had held their vehicle unlawfully and
that they were unable to retrieve and use it for a considerable
length of time after the Convention entered into force for Bulgaria,
which amounted to a continuing situation ending on 19 May 2000 (see,
mutatis mutandis, Loizidou v. Turkey, judgment of 18
December 1996, Reports of Judgments and Decisions 1996 VI,
pp. 2231-32, §§ 46 and 47, and Vasilescu v. Romania,
judgment of 22 May 1998, Reports 1998 III, § 49).
The
total period, therefore, during which they were denied use of the
vehicle was seven years, eleven months and twenty-three days, of
which seven years, eight months and twelve days was within the
Court’s competence ratione temporis (see, mutatis
mutandis, T.H. and S.H. v. Finland, no. 19823/92,
Commission decision of 9 February 1993, unreported).
- In
reiterating its case-law that the seizure of property for legal
proceedings relates to the control of the use of property, the Court
finds that this complaint falls within the ambit of the second
paragraph of Article 1 of Protocol No. 1 to the Convention (see
Raimondo v. Italy, judgment of 22 February 1994, Series A
no. 281 A, § 27). Moreover, the seizure of the vehicle did
not deprive the second and third applicants of their possession, but
only prevented them from using it, because it was held as physical
evidence in the course of the pending investigation into the theft of
the car (ibid.) and, more importantly, it was not within the powers
of the Prosecution Office to determine the ownership of the vehicle,
something which only the courts could do. In such case, it would be
necessary to assess the lawfulness and purpose of the interference,
as well as its proportionality.
- The
Court observes that in the present case the Plovdiv Appellate
Prosecution Office on 18 November 1999 (see paragraph 25 above) and
the Supreme Cassation Prosecution Office on 10 March 2000 (see
paragraph 26 above) established that the interference with the second
and third applicants’ right to peaceful enjoyment of their
possession was both unlawful and arbitrary because both the seizure,
which falls outside the Court’s competence ratione temporis,
and the resulting prolonged impounding, which does not, were in
violation of the applicable national law.
- Thus,
in view of the principle of subsidiarity inherent in the machinery of
the Convention, the Court finds that the interference in question was
incompatible with the second and third applicants’ right to
peaceful enjoyment of their possession under Article 1 of Protocol
No. 1 to the Convention. There has,
accordingly, been a violation of that provision.
This
conclusion makes it unnecessary to ascertain whether a fair balance
has been struck between the demands of the general interest of the
community and the requirements of the protection of the individual’s
fundamental rights (see Iatridis v. Greece [GC], no. 31107/96,
§§ 58 and 62, ECHR 1999 II).
D. Compliance with Article 13 in conjunction with
Article 1 of Protocol No. 1 to the Convention regarding the
availability of an effective remedy
- The
Court notes that the complaint under Article 13 of the Convention
arises out of the same facts as those to be examined when dealing
with the Government’s objection of non-exhaustion and the
complaints under Article 1 of Protocol No. 1 to the Convention.
However, there is a difference in the nature of the interests
protected by Article 13 of the Convention and Article 1 of Protocol
No. 1 to the Convention: the former affords a procedural safeguard,
namely the “right to an effective remedy”, whereas the
procedural requirement inherent in the latter is ancillary to the
wider purpose of ensuring respect for the right to the peaceful
enjoyment of possessions. Having regard to the difference in purpose
of the safeguards afforded by the two Articles, the Court judges it
appropriate in the instant case to examine the same set of facts
under both Articles (see Iatridis, cited above, § 65).
- In
the present case, the Court finds that at the relevant time national
law did not provide for recourse to the domestic courts to challenge
a decision by the Prosecution Office to continue to hold chattels
seized as physical evidence in criminal proceedings (see paragraph 31
above). In so far as the second and third applicants were not aware
that their vehicle had been unlawfully seized and believed that it
was being legally held as physical evidence in the criminal
proceedings against the first applicant, it would be unreasonable to
expect them to have initiated any other type of proceedings, such as
rei vindicatio proceedings. The only possibility for them in
such a case would have been to complain to the higher-level
Prosecution Office, which the second and third applicants attempted
on several occasions, but received no responses. It is true that the
Prosecution Office eventually did find that the vehicle of the second
and third applicants had been unlawfully seized and returned it to
them, but that resulted from its decision to terminate the criminal
proceedings against the first applicant rather than as a response to
one of the many requests to return the car (see paragraphs 22-26
above).
- In
respect of the lack of compensation for the interference under
Article 1 of Protocol No. 1 to the Convention, the Court notes that
such a right is not inherent in the second paragraph of that
provision regarding the control of the use of property (see Banér
v. Sweden, no. 11763/85, Commission decision of 9 March 1989, DR
60, p. 128, at p. 142). Nor does Article 13 require that compensation
be paid under all circumstances. However, the Court considers that in
circumstances such as in the present case when the authorities seize
and hold chattels as physical evidence the possibility should exist
in domestic legislation to initiate proceedings against the State and
to seek compensation for any damage resulting from the authorities’
failure to keep safe the said chattels in reasonably good condition.
This is especially true in instances when the interference itself is
found to have been unlawful.
- In
the present case, the Court finds it unproven that at the relevant
time domestic law provided the second and third applicants with the
possibility to seek compensation for the damage to their vehicle as a
result of the prolonged interference with their right to peaceful
enjoyment of their possession. In particular, the Government failed
to prove that at the relevant time an action under the SMRDA, or any
other type of action for that matter, could be considered to be have
been an effective remedy that should have been exhausted. Most
notably even the much later judgment of the Pazardzhik District Court
of 14 December 2005 was quashed in the relevant part on appeal and
the Pazardzhik Regional Court found that the police could not be held
liable under the SMRDA for actions or inactions relating to damaged
items seized as physical evidence (see paragraph 44 above).
- Accordingly,
there has been a violation of Article 13 of the Convention in that at
the relevant time the second and third applicants had no effective
domestic remedy for their complaint under Article 1 of Protocol No.
1 to the Convention.
It
follows that the Government’s preliminary objection (see
paragraph 63-67 above) must be dismissed.
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
applicants did not submit a claim in respect of damage. Accordingly,
the Court considers that there is no call to award them any sum on
that account.
B. Costs and expenses
- The
applicants initially claimed 9,000 euros (EUR) for 180 hours of legal
work by their lawyer before the Court, at an hourly rate of EUR 50.
Subsequently, they claimed a further EUR 2,500 for 24 hours of legal
work by their lawyer before the Court and for three hours of
translation and technical work by their lawyer, at an hourly rate of
EUR 100. The applicants submitted timesheets in support of their
claims. They also requested that the costs and expenses incurred
should be paid directly to their lawyer, Mr V. Stoyanov.
- The
Government did not submit comments on the applicants’ claims
for costs and expenses.
- The
Court reiterates that according to its case-law, an applicant is
entitled to reimbursement of his or her 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. Noting all
the relevant factors, the Court considers it reasonable to award the
sum of EUR 2,000 in respect of costs and expenses, plus any tax that
may be chargeable to the applicants on that amount.
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
- Holds that in respect of the first applicant
there has been a violation of Article 6 of the Convention;
- Holds that in respect of the first applicant
there has been a violation of Article 13 in conjunction with Article
6 of the Convention and, accordingly, dismisses the
Government’s preliminary objection based on non-exhaustion of
domestic remedies;
- Holds that in respect of the second and third
applicants there has been a violation of Article 1 of Protocol No. 1
to the Convention;
- Holds that in respect of the second and third
applicants there has been a violation of Article 13 in conjunction
with Article 1 of Protocol No. 1 to the Convention and, accordingly,
dismisses the Government’s preliminary objection based
on non-exhaustion of domestic remedies;
- Holds
(a) that
the respondent State is to pay to the applicants, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following
amounts, to be converted into Bulgarian levs at the rate applicable
on the date of settlement :
(i) EUR
2,000 (two thousand euros) in respect of costs and expenses, payable
into the bank account of the applicants’ lawyer in Bulgaria, Mr
V. Stoyanov;
(ii) any
tax that may be chargeable to the applicants on the above amount;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
