Nikolay Milanov NIKOLOV v Bulgaria - 2442/04 [2010] ECHR 1619 (28 September 2010)

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The European Court of Human Rights (Fifth Section), sitting on 28 September 2010 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Nikolay Milanov Nikolov, is a Bulgarian national who was born in 1963 and lives in Shumen. He was represented before the Court by Ms N. Milanova, a lawyer practising in Shumen. The Government were represented by their agent Mrs M. Dimova, from the Ministry of Justice.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 22 November 1995 the applicant, who is a practising lawyer, initiated before the Novi Pazar District Court private criminal proceedings for defamation and aggravated insult, against Mrs N.T., a former client of his. He alleged that because of certain statements of hers his reputation had been undermined and he had lost a large number of his clients. He joined a civil claim seeking 840,000 old Bulgarian levs in damages.

On an unspecified date in 1996 all the judges from the Novi Pazar District Court recused themselves and the case was transferred to the Razgrad District Court.

By a judgment of 5 May 1998 the Razgrad District Court found Mrs N.T. guilty of defamation and sentenced her to eight months' imprisonment, suspended for a period of three years. It also partly granted the applicant's civil claim.

On appeal, on 19 October 1998 the Razgrad Regional Court quashed the judgment and remitted the case for a fresh examination. It found that in violation of the relevant legislation the panel of the District Court had not included lay judges throughout the entire proceedings.

On 2 October 2000 the Razgrad District Court discontinued the proceedings as the statutory time limit for prosecuting the offence had expired.

On appeal by the applicant, by a decision of 5 January 2001 the Razgrad Regional Court upheld the discontinuation.

Upon the applicant's cassation appeal, on 28 May 2001 the Supreme Court of Cassation (SCC) upheld the discontinuation of the criminal proceedings and remitted the case for examination of the civil action.

By a judgment of 17 January 2003 the Razgrad Regional Court found that Mrs N.T. had defamed the applicant and partly granted the civil claim awarding him 500 new Bulgarian levs, the equivalent of 250 euros with interest. The judgment stated that it was subject to appeal before the SCC.

A notification that the judgment had been delivered was received by the applicant on 5 February 2003. On 10 February 2003 he appealed.

By a judgment of 23 October 2003 the SCC rejected the appeal as inadmissible, finding that the judgment of 17 January 2003 was not amenable to cassation appeal. This was so because under the relevant law judgments of the criminal courts in respect of privately prosecutable offences punishable with less than five years' imprisonment, as in the applicant's case, were not amenable to cassation appeal and, consequently, the civil part of such judgments was likewise not amenable to cassation appeal.

Article 349 of the Code of Criminal Procedure 1974 (the CCP), as in force at the relevant time, listed exhaustively the judgments and decisions that were subject to cassation appeal.

Decisions of second instance courts discontinuing criminal proceedings were amenable to cassation appeal before the SCC irrespectively of their subject mater.

On the other hand, certain second instance judgments, such as those concerning privately prosecutable offences punishable with less than five years' imprisonment, were not amenable to cassation appeal.

The SCC has held that where a case falls into one of the categories of cases where second instance judgments are not amenable to cassation appeal, this is also valid in respect of the civil part of the case, where a civil claim has been admitted for examination in the criminal proceedings. Owing to their subsidiary character, civil claims in criminal proceedings fell to be processed under criminal procedure rules (реш. № 358/2003 от 12 юни 2003 г. по н. д. № 145/2003 г., ВКС, I н. о., реш. № 445/2003 от 10 юли 2003 г. по н. д. № 227/2003 г, ВКС, III н. о.).

In a judgment of 19 February 1999 (реш. № 118 от 19 февруари 1999 г. по н. д. № 31/99 г., ВКС, II н. о.) the SCC held that where the law did not provide for cassation appeal, the fact that a second instance court may have erroneously indicated in the text of its judgment that an appeal was possible was irrelevant. Cassation appeals submitted in such circumstances were inadmissible as the second instance court judgment was final.

The applicant complained under Article 6 § 1 of the Convention that the length of the proceedings had been excessive.

The applicant complained under Article 6 § 1 of the length of the proceedings determining his civil claim for damages. Article 6 § 1, in so far as relevant, 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 raised an objection that the application had been lodged outside the six-month time limit laid down in Article 35 § 1 of the Convention. They contended that the judgment of the Razgrad Regional Court of 17 January 2003 was the final judgment in the applicant's case as it was not subject to cassation appeal, of which the applicant, being a lawyer should have been well aware. Accordingly, in the present case the six month period for introducing the application before the Court started to run on 5 February 2003, when the applicant received a notification that this judgment had been delivered.

The applicant replied that the application was timely as the six-month period started to run on 23 October 2003, when the SCC delivered its judgment. He argued in essence that the SCC erroneously decided that the judgment of 17 January 2003 was not amendable to cassation appeal. He contended that since the criminal proceedings against Mrs N.T. were discontinued as time-barred, the civil claim had to be examined under the rules of civil procedure and therefore should have been subject to cassation appeal. Furthermore, the Razgrad Regional Court's judgment of 17 January 2003 mentioned that it could be appealed before the SCC. If this was not so, the Regional Court should have returned the applicant's appeal, which action he could have appealed before the SCC. He further contended that since on 28 May 2001 the SCC examined his appeal against the Regional Court's decision of 5 January 2001 discontinuing the criminal proceedings, it was also competent to examine the appeal against the judgment of 17 January 2003.

The Court notes that in the present case the parties disagree as to the starting date to be taken into account for the purposes of the six-month time limit.

The Court observes that under the relevant domestic law and practice the judgment of 17 January 2003 was not amenable to cassation appeal. This is confirmed in a number of judgments of the SCC (see above, Relevant domestic law and practice). The applicant did not provide a single example of domestic case law in the opposite sense.

It is true that the Razgrad Regional Court indicated that the judgment of 17 January 2003 was amendable to appeal before the SCC. The Court notes, however, that this statement aimed at merely providing the applicant with legal information, had no relevance as to whether he had a right to appeal (see above, Relevant domestic law and practice) and was obviously erroneous as it had no basis in the law or in the practice of the domestic courts. While the Court accepts that such an error of the domestic courts may in principle be misleading for the appellants, it considers that in the present case the applicant cannot claim to have been misled by the Regional Court's error. This is so because having been legally represented in the domestic proceedings and being a lawyer himself, the applicant would be expected to possess sufficient experience and knowledge of the cassation appeal rules and the domestic courts' practice in that respect.

In so far as the applicant submits that in 2001 the SCC examined his cassation appeal, the Court observes that in 2001 he appealed against a decision discontinuing the criminal proceedings. Under the relevant law such decisions, unlike judgments, were amenable to cassation appeal in all cases. The comparison is therefore not relevant.

As regards the applicant's argument that in 2003 his cassation appeal should have been returned by the Regional Court rather than rejected later after a hearing, it is clear that even if this would have been possible, it does not affect the conclusion that the applicant had no right to appeal against the judgment of 17 January 2003.

Therefore, the judgment of 17 January 2003, notified on 5 February 2003, marked the end of the proceedings which determined the civil dispute. It follows that the six-month time limit for the submission of a complaint that those proceedings were excessively lengthy started running on 5 February 2003.

Noting that the application was lodged more than six months after that date, the Court finds that it was introduced out of time and must be rejected in accordance with Article 35 § 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Nikolay Milanov NIKOLOV v Bulgaria - 2442/04 [2010] ECHR 1619 (28 September 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1619.html Cite as: [2010] ECHR 1619