BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF KOSTOV AND YANKOV v. BULGARIA
(Application
no. 1509/05)
JUDGMENT
STRASBOURG
22
April 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 Kostov and Yankov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 23 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 1509/05) 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 the Bulgarian nationals Mr Asen Angelov Kostov and Mr Hristo
Yankov Yankov (“the applicants”) on 14 December
2004.
- The
applicants were represented by Mrs S. Stefanova and Mr A. Atanasov,
lawyers practising in Plovdiv. The Bulgarian Government
(“the Government”) were represented by their Agent, Mrs
R. Nikolova, of the Ministry of Justice.
- On
30 September 2008 the
Court decided to communicate to the Government the applicants'
complaints concerning the length of the criminal proceedings against
them and the lack of remedies in that respect. It decided also to
rule on the admissibility and merits of those complaints at the same
time (Article 29 § 3). The complaints of the remaining initial
applicants were dismissed as inadmissible.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1961 and 1966 respectively and live in the
village of Stryama.
- On
different dates in 1991 criminal proceedings were instituted against
the applicants and four other persons. The applicants were charged
with the theft of a car tyre. An indictment against them was
introduced at court on 29 June 1992.
- On
3 December 1992 the Plovdiv Regional Court remitted the case to the
investigation authorities finding that there had been procedural
violations.
- No
investigative measures were taken until September 1998 when one of
the accused was questioned. In the following months the remaining
accused were also questioned and other evidence was collected.
- On
several occasions during these months a prosecutor from the Plovdiv
regional prosecutor's office instructed the investigation authorities
to take further investigative measures and make up for certain
earlier breaches of the procedural rules.
- On
an unspecified date towards the end of 1999 the investigation was
completed. The prosecution filed an indictment with the Plovdiv
Regional Court and the applicants were brought to trial.
- In
a judgment of 24 June 2002 the Plovdiv Regional Court acquitted
the applicants. One of the remaining accused was also acquitted and
the others were convicted and received suspended sentences.
- Upon
appeal by the prosecution, on 8 October 2004 the Plovdiv Court of
Appeal upheld fully the Regional Court's judgment. In affirming the
suspended sentences of three of the accused, it referred, inter
alia, to the excessive length of the proceedings, finding that
“the criminal proceedings [had been] subject to
excessive delays without there having been an objective justification
for that delay ”.
- Upon
cassation appeal by the prosecution, on 1 November 2005 the Supreme
Court of Cassation upheld the lower courts' judgments and reiterated
the Court of Appeal's findings in respect of the excessive length of
the proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the length of the criminal proceedings
against them had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention,
which, in so far as relevant, 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 argued that the applicants had failed to exhaust the
available domestic remedies, as required by Article 35 § 1 of
the Convention, because they had failed to appeal against the
prosecution's decisions ordering the investigation authorities to
take further investigative actions or make up for procedural
violations (see paragraph 8 above) and thus bring about the speeding
up of the proceedings. Concerning the merits of the complaint, the
Government considered that the length of the proceedings had not been
unreasonable, given the complexity of the case and the fact that
there had been several accused.
- The
applicants contested these arguments.
A. Admissibility
- The
Court notes that the Government raised an objection for
non-exhaustion of domestic remedies (see paragraph 14 above). It
observes that indeed the applicants did not appeal against the
decisions of the prosecution referred to by the Government. However,
it does not consider that the applicants should have been required to
appeal against decisions which were, essentially, in their favour as
the prosecution authorities ordered that further investigative
actions be taken and certain earlier procedural violations be made up
for. Furthermore, those decisions, taken in the range of several
months (see paragraph 8 above), did not cause any significant delay
and their possible appeal on the part of the applicants would not
have led to any meaningful speeding up of the proceedings. For these
considerations, the Court dismisses the Government's objection based
on non-exhaustion of domestic remedies.
- Furthermore,
the Court notes that the present complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes that the criminal proceedings against the applicants
started in 1991 (see paragraph 5 above). However, the period to be
taken into consideration began only on 7 September 1992 when the
Convention entered into force in respect of Bulgaria. At this moment
the criminal proceedings were pending at the pre-trial stage. The
period in question ended on 1 November 2005 when the Supreme Court of
Cassation gave a final judgment (see paragraph 12 above). It thus
lasted thirteen years, one month and twenty-four days for pre-trial
proceedings and three levels of jurisdiction.
- 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)
- 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 Pélissier and Sassi, cited above). In the
present case, it notes that it was acknowledged even by the domestic
courts that the criminal proceedings had lasted an unreasonably long
period of time (see paragraphs 11-12 above). Having examined all the
material submitted to it, the Court does not see a reason to reach a
different conclusion. In particular, it notes that the proceedings
lasted for more than thirteen years (see paragraph 18 above) and that
there appear to be no significant delays attributable to the
applicants. On the other hand, the authorities' inaction for a period
of almost six years, from the end of 1992 to September 1998 (see
paragraphs 6-7 above), caused a major delay.
- In
view of the above, the Court concludes that there has been a breach
of Article 6 § 1 of the Convention in the case.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants further complained under Article 13 of the Convention that
they had no effective remedies in respect of the length of the
proceedings. Article 13 reads:
“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 did not comment.
A. Admissibility
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
B. Merits
- The Court reiterates that Article 13 guarantees an
effective remedy before a national authority for an alleged breach of
the requirement under Article 6 § 1 to hear a case within a
reasonable time. Remedies available to a
litigant at domestic level for raising a complaint about the length
of proceedings are “effective”, within the meaning of
Article 13, if they prevent the alleged violation or its
continuation, or provide adequate
redress for any violation
that has already
occurred (see Kudła
v. Poland [GC], no. 30210/96, § 156-7, ECHR 2000-XI).
- In
the present case, the Court refers to its finding above (see
paragraph 16) that an appeal against the decisions of the prosecution
authorities ordering that further investigative actions be taken or
that certain procedural violations be made up for did not represent
an effective remedy. Nor has the Court been informed of any other
remedy that could have prevented the violation of Article 6 § 1
or its continuation, or provided adequate redress.
- Accordingly,
the Court concludes that in the present case there has been a
violation of Article 13 of the Convention on account of the lack of
effective remedies under domestic law in respect of the length of the
criminal proceedings.
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 claimed 15,000 euros (EUR) for each of them in respect of
non-pecuniary damage.
- The
Government argued that those claims were excessive.
- The
Court considers that the applicants must have suffered anguish and
distress as a result of the violations of their rights found in the
case. Ruling on an equitable basis, it awards award each of them EUR
3,500 under that head.
B. Costs and expenses
- The
applicants also claimed EUR 3,235 for the costs and expenses incurred
before the Court. In support of this claim they presented a time
sheet for the work performed by their representatives, Mrs Stefanova
and Mr Atanasov. Furthermore, they requested that any sum awarded
under this head be transferred directly into the bank accounts of Mrs
Stefanova and Mr Atanasov.
- The
Government considered this claim to be excessive.
- 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 circumstances of the case and the above criteria, the Court
considers it reasonable to award the sum of EUR 600 covering costs
under all heads.
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 on account of the excessive length of
the criminal proceedings against the applicants;
- Holds that there has been a violation of Article
13 of the Convention on account of the lack of effective remedies in
respect of the length of the proceedings;
- Holds
(a) that
the respondent State is to pay, within three months from 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) to
each applicant, EUR 3,500 (three thousand five hundred euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) jointly
to the two applicants, EUR 600 (six hundred euros), plus any tax that
may be chargeable to the applicants, in respect of costs and
expenses, to be transferred directly into the bank accounts of the
applicants' legal representatives;
(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'
claims for just satisfaction.
Done in English, and notified in writing on 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
