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FIFTH
SECTION
CASE OF KOTSEVA-DENCHEVA v. BULGARIA
(Application
no. 12499/05)
JUDGMENT
STRASBOURG
10
June 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 Kotseva-Dencheva v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 11 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 12499/05) 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 a Bulgarian national, Ms Margarita
Ilieva Kotseva Dencheva (“the applicant”), on 22
March 2005.
- The
applicant was represented by Ms S. Stefanova, a lawyer practising in
Plovdiv. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Dimova, of
the Ministry of Justice.
- On
19 January 2009 the
President of the Fifth Section communicated 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 § 3 of
the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Veliko Tarnovo.
- The
applicant worked as the medical director of a psychiatric hospital.
In 1996 she was laid off. On 17 February 1997 she brought an action
for unfair dismissal against the Ministry of Health.
- On
7 July 1999 the Sofia District Court found that the applicant’s
dismissal had been unlawful and restored her to her position. The
Ministry of Health filed an appeal.
- The
Sofia City Court, which examined the appeal, held hearings on
18 February, 10 March and 2 June 2000, with the next
hearing being scheduled for 8 November 2000. On
13 June 2000 the applicant filed a complaint about delays (see
paragraph 15 below). On 23 June 2000 the President of the Sofia
Court of Appeal found that the complaint was well-founded and
instructed the lower court to schedule the hearing earlier.
- The
Sofia City Court held a hearing on 20 July 2000. On 15 September
2000 it gave a judgment, finding that the applicant’s action
against the Ministry of Health was inadmissible.
- On
an appeal by the applicant, on 30 May 2002 the Supreme Court of
Cassation quashed the Sofia City Court’s judgment and remitted
the case. The Sofia City Court gave a new
judgment on 9 August 2004, upholding the Sofia District Court’s
judgment of 7 July 1999.
- On
23 December 2004 the Ministry of Health filed an appeal on points of
law.
- On
20 June 2006, 4 July 2007 and 1 February 2008 the applicant filed
requests with the Supreme Court of Cassation that the case be
examined more expeditiously.
- The
Supreme Court of Cassation held a hearing on 15 February 2008. In a
judgment of 4 March 2008 it quashed the Sofia City Court’s
judgment of 9 August 2004 and remitted the case for new
consideration.
- The
Sofia City Court examined the case once again and in a judgment of 12
January 2009 upheld the Sofia District Court’s judgment of 7
July 1999, finding the applicant’s dismissal to be unlawful and
reinstating her to her position.
- On
20 February 2009 the Ministry of Health lodged a new appeal on points
of law. On 19 August 2009 the Supreme Court of Cassation declared it
admissible. A hearing on the merits is scheduled for 17 November
2010.
II. RELEVANT DOMESTIC LAW
- Complaints
about delays were provided for in Article 217a of the Code of Civil
Procedure of 1952, in force until 1 March 2008. The provision was
introduced in July 1999. A complaint about delays was to be examined
by the president of the higher court, who might order specific
measures to be taken to speed up the proceedings.
- Pursuant
to Articles 255-257 of the Code of Civil Procedure of 2007, in force
since 1 March 2008, parties to civil proceedings can file a request
for setting a time-limit for carrying out certain procedural actions.
The request is examined by a judge in the respective higher court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings in her case
was unreasonable. She relied on Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1. The Court is of the view that the
complaint falls to be examined solely under Article 6 § 1 of the
Convention, which, in so far as relevant, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government acknowledged that the length of the proceedings was
unreasonable.
A. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
period to be taken into consideration began on 17 February 1997, when
the applicant brought an action for unfair dismissal (see paragraph 5
above) and has not yet ended, as a hearing before the Supreme Court
of Cassation is scheduled for 17 November 2010 (see paragraph 14
above). The period has thus, up to the present, lasted more than
thirteen years for three levels of jurisdiction.
- 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). In examining cases concerning
employment disputes States are under an obligation to proceed with
special diligence (see Ruotolo v.
Italy, 27 February 1992, §
17, Series A no. 230 D).
- In
the present case, the Government acknowledged that the length of the
proceedings was unreasonable (see paragraph 18 above) and the Court
sees no reason to reach a different conclusion. It notes that the
proceedings have already lasted for more than thirteen years and are
still pending (see paragraph 20 above), and that they concern an
employment dispute, which obliges the authorities to act with special
diligence (see paragraph 21 above). The delays in the proceedings
appear to have been attributable to the domestic courts, who remitted
the case on several occasions and delayed its examination. There
appear, on the other hand, to be no substantive delays attributable
to the applicant.
- The
Court concludes therefore 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 13 OF THE CONVENTION
- The
applicant further complained under Article 13 of the Convention that
she 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 on this complaint.
A. Admissibility
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
B. Merits
- Article 13 of the Convention 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 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, although the applicant made use of a remedy
available under domestic law, namely a complaint about delays, she
only obtained the speeding up of the proceedings by three and a half
months, as a hearing before the Sofia City Court, scheduled initially
for 8 November 2000, was rescheduled for 20 July 2000 (see
paragraphs 7 and 8 above). However, the Court is not persuaded that
the remedy was capable of having a significant impact on the duration
of the proceedings as a whole (see Kuncheva v. Bulgaria,
no. 9161/02, § 40, 3 July 2008), given that it became
available only after July 1999, whereas the proceedings started in
February 1997 (see paragraphs 5 and 15 above), that the applicant
could not resort to it in respect of the delays occurring while the
case was pending before the Supreme Court of Cassation (see Pavlova
v. Bulgaria,
no. 39855/03, § 31, 14 January 2010), and that it could
not have prevented the delays flowing from the numerous remittals of
the case.
- The
Court does not find it necessary to examine whether the remedy
provided for in the new Code of Civil Procedure, namely a request for
setting a time-limit for carrying out certain procedural actions (see
paragraph 16 above), could have effectively sped up the proceedings,
because they had already been excessively protracted before its
introduction in March 2008.
- The
Court has not been informed of the existence of any other remedy
capable of speeding up the proceedings in the case, or of any remedy
capable of providing adequate redress for their excessive length.
- Therefore,
there has been a violation of Article 13 in the case.
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
- Under
the head of pecuniary damage, the applicant claimed 49,937 euros
(EUR) for lost income for the period from 1996 to 2009. Furthermore,
she claimed EUR 25,000 in respect of non-pecuniary damage, contending
that she had suffered frustration and distress for a period of many
years.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged (see Vilho Eskelinen and Others
v. Finland [GC], no. 63235/00, § 102, ECHR 2007 IV).
Consequently, there is no justification for making any award under
this head. On the other hand, the Court considers that the applicant
must have sustained non-pecuniary damage. Ruling on an equitable
basis, it awards award her EUR 7,300 under that head, plus any tax
that might be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 3,220 for the costs and expenses incurred
before the Court. In support of this claim she presented a time-sheet
for the work performed by her legal representative, Ms Stefanova. She
requested that any amount awarded under this head be transferred
directly into the bank account of Ms Stefanova.
- The
Government contested this claim.
- 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 are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 600 covering costs
under all heads, plus any tax that may be chargeable to the
applicant, to be paid directly into Ms Stefanova’s bank
account.
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;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, 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) EUR
7,300 (seven thousand three hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
600 (six hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, to be transferred
directly into the bank accounts of the applicant’s legal
representative;
(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 applicant’s
claims for just satisfaction.
Done in English, and notified in writing on 10 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
