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FOURTH
SECTION
CASE OF HADZHINIKOLOV v. BULGARIA
(Application
no. 24720/04)
JUDGMENT
STRASBOURG
26 July 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Hadzhinikolov v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Lech Garlicki, President,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 5 July 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 24720/04) 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 Hristo Nikolov Hadzhinikolov (“the
applicant”), on 29 June 2004.
- The
applicant was represented by Mr M. Ekimdzhiev and Mrs K. Boncheva,
lawyers practising in Plovdiv. The Bulgarian Government
(“the Government”) were represented by their Agents,
Mrs S. Atanasova, Mr V. Obretenov and Mrs M. Dimova, of the
Ministry of Justice.
- On
9 July 2009 the
President of the Fifth Section decided to give notice of the
application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1943 and lives in Plovdiv.
A. The civil proceedings
- For
the period between 2 November 1993 and 11 August 1995 the applicant
worked for a consortium of four companies. As he did not receive the
full amount of his salaries and compensation for his unused paid
leave, on 27 October 1995 he initiated civil proceedings for these
amounts against one of the companies in the consortium.
- For
the period between 5 March 1996 and 4 June 1997 at least four
hearings appear to have been held and two expert opinions were
commissioned.
- On
4 June 1997, upon the applicant’s request, the other three
companies were constituted as defendants.
- For
the period between 4 June 1997 and 18 November 1998 at least five
hearings appear to have been held.
- In
a judgment of 5 January 1999 the Sofia City Court granted part of the
applicant’s claim. The judgment was not appealed against and
became final.
B. The enforcement proceedings
- On
an unspecified date after 5 January 1999 the applicant requested the
issue of a writ of execution, which was done on 26 February 1999. The
applicant submitted that he became aware of this fact on 22 July
1999. On the latter date he requested the opening of enforcement
proceedings.
- On
25 August 1999 the enforcement officer invited the debtors to
voluntarily pay the amounts under the writ of execution. On 27
January 2000 the applicant requested from the enforcement officer the
undertaking of certain actions for collecting the debt. On 28 January
2000 the enforcement officer requested an attachment on the bank
accounts of the debtors.
- On
2 December 2001 the applicant requested to be accepted as a creditor
under two other enforcement proceedings against the same debtors,
which was granted on 11 December. On 15 April 2002, a certain
distribution of payments to different creditors was proposed, as a
result of which the applicant agreed to receive payment in
instalments.
- On
16 April 2004 the applicant again requested the enforcement officer
to undertake actions for collecting his debt. On 19 April 2004 the
enforcement officer requested attachments on the bank accounts of the
debtors.
- It
does not appear that for the periods between 17 January 2000 and
2 December 2001, between 2 December 2001 and 15 April 2002 and
between 15 April 2002 and 16 April 2004 the applicant requested any
other actions to be undertaken or the enforcement officer undertook
any such actions.
- On
8 November 2004 the applicant requested his proceedings to be joined
with another set of enforcement proceedings against the same debtors.
On 9 November 2004 the enforcement officer requested the case files
in those proceedings. The parties have not informed the Court whether
the said proceedings were joined.
- On
12 August 2005 the applicant requested the calculation of the amounts
of the awarded interest. On 16 September 2005 an expert appointed by
the enforcement officer submitted the calculation. He concluded that
the due sums, plus interest amounted to 40,834.17 dollars (USD) and
55 Bulgarian levs (BGN).
- On
8 November 2005 the applicant concluded an out-of-court agreement
with the consortium, under which the former agreed to receive the
amount of 33,000 USD, the equivalent of BGN 54,484.96 and undertook
the obligation to request the termination of the enforcement
proceedings immediately after he had received this amount.
- On
an unspecified date shortly thereafter the applicant received the
above amount and the enforcement proceedings were terminated.
II. RELEVANT LAW AND PRACTICE
A. Complaint about delays
- After
an amendment of 16 July 1999 Article 217a of the Code of Civil
Procedure of 1952 (“the CCP”), in force until 2008,
provided for parties in civil proceedings to file a complaint before
the higher instance courts if the proceedings were being protracted
(“complaint about delays”). Those courts had the power to
issue binding instructions to the lower instance courts on how to
process the case. This procedure was not applicable to enforcement
proceedings.
B. Enforcement proceedings
- Article
323 of the CCP provided that the enforcement proceedings could be
opened upon the request of the creditor and after the latter had
submitted a valid writ of execution or other equivalent document. The
creditor was under the obligation to state against what possessions
(bank accounts, immovable property, etc.) of the debtor he or she
would like the enforcement to be directed (Article 323(3)).
Throughout the proceedings the creditor could request the enforcement
actions to be directed against different possessions of the debtor.
Had the creditor not requested enforcement actions to be undertaken
for a period of two years, the enforcement proceedings were to be
terminated (Article 330 § 1 д).
- Article
332 § 1 of the CCP provided that the parties to enforcement
proceedings could appeal against an action undertaken by the
enforcement officer or against failure of the latter to undertake an
action requested of him or her. Until November 2002 these complaints
were examined by the district courts, and after that – by the
regional courts (Article 333 § 1). A copy of the complaint was
served on the other party (Article 333 § 2), which had the
opportunity of replying in writing (Article 333 § 3). The court
examined the matter in private, unless it was necessary to hear
witnesses or experts (Article 334 § 1), and had to rule
within thirty days after receiving the complaint (Article 334 §
4). Until 12 November 2002 the district courts’ decisions on
such complaints were appealable before the regional courts (Article
335 § 2, as in force before 12 November 2002).
THE LAW
I. PRELIMINARY OBJECTION
- The
Government argued that the applicant has failed to exhaust the
available domestic remedies as he had not filed a complaint about
delays under Article 217a of the CCP and an appeal against the
actions or omissions of the enforcement officer under Article 332 of
the CCP.
- The
applicant argued that the complaint about delays could be used only
in respect of the court proceedings and did not constitute an
effective remedy to be exhausted because it could not prevent the
continuing of the violation, nor could it lead to the payment of
compensation about the delay.
- In
respect of the appeal under Article 332 of the CCP the applicant
contended that this remedy was not effective in his case because his
complaint concerned certain inactivity (inactions) on behalf of the
enforcement officer, while the wording of this provision and the
domestic courts’ practice suggested that only actions or
refusal to undertake requested actions but not plain inactivity could
be appealed against. In support of these contentions the applicant
submitted copies of eight decisions given by the Supreme Court of
Cassation or by Regional Courts, in four of which the courts had held
that only actions or refusal to undertake specific actions that were
considered as actions directly affecting the enforcement proceedings
could be appealed against.
A. Complaint about delays
- The
Court finds that, as the applicant argued, the complaint about delays
could be used only at the court phase of the proceedings in respect
of delays incurred before the Sofia City Court. It observes, however,
that this remedy was introduced in July 1999, while the court phase
of the proceedings ended on 5 January 1999. It follows that at the
material time the complaint about delays was not a remedy at the
applicant’s disposal and therefore, it did not represent an
effective remedy to be exhausted within the meaning of Article 35 §
1 of the Convention. The Government’s objection in that
respect is therefore dismissed.
B. Appeal under Article 332 of the CCP
- The
Court considers that the question about the use of the appeal under
Article 332 of the CCP is inextricably linked to the merits of the
applicant’s complaints under Articles 6 § 1 and Article 1
of Protocol No. 1 about the prolonged non-enforcement of the judgment
of 5 January 1999, and therefore, joins this objection to the merits
of the above complaints.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL No. 1 IN RESPECT OF THE PROLONGED NON-ENFORCEMENT
- The
applicant complained that the prolonged impossibility to receive
payment in accordance with the final judgment of 5 January 1999
infringed his rights under Article 1 of Protocol No. 1. The Court
considers that this complaint falls to be examined under Article 6 §
1 and Article 1 of Protocol No. 1.
Article
6 § 1 reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article
1 of Protocol No. 1 reads as follows:
“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.”
- The
Government did not submit observations on the merits of the
complaint.
29. The Court reiterates that the “right to a court”
embodied in Article 6 comprises the execution of a final binding
judicial decision (see Hornsby v. Greece, 19 March 1997,
§ 40, Reports of Judgments and Decisions 1997 II,
and Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III).
It further notes that State responsibility for enforcement of a
judgment against a private party extends no further than the
involvement of State bodies in the enforcement procedures (see Fuklev
v. Ukraine, no. 71186/01, § 67, 7 June 2005). A
possible failure to enforce a judgment because of the debtor’s
indigence cannot be held against the State unless and to the extent
that it is imputable to the domestic authorities, for example, to
their errors or delay in proceeding with the enforcement (see,
mutatis mutandis, Omasta v. Slovakia (dec.), no.
40221/98, 10 December 2002). However, the State has an obligation to
organise a system of enforcement of judgments that is effective both
in law and in practice and ensures enforcement without any undue
delay (see Fuklev, cited above, § 84). When the
authorities are obliged to act in order to enforce a judgment and
they fail to do so, their inactivity can engage the State’s
responsibility on the ground of Article 6 § 1 of
the Convention (see Scollo v. Italy, 28 September 1995, §
44, Series A no. 315 C).
- The
Court notes that in the present case the dispute was between two
private parties. It further notes that under the domestic legislation
creditors were under the obligation to show initiative throughout the
enforcement proceedings. Thus they are required not only to request
the opening of the enforcement proceedings, but also to state against
what possessions of the debtor the enforcement to be directed and to
periodically request specific enforcement actions to be carried out.
The lack of initiative and diligence on the part of the creditors
could lead to the termination of the proceedings, had no actions been
requested for a period of two years (see paragraph 20 above). The
Court reiterates that a successful litigant may be required to
undertake certain procedural steps and to act with a certain
diligence in order to recover a judgment debt (see Burdov v.
Russia (no. 2), no. 33509/04, § 69, ECHR 2009 ...;
Treial v. Estonia (dec.), no. 48129/99, 28 November 2000;
and Topciov v. Romania (dec.), no. 17369/02, 15 June 2006).
- In
the present case it appears that during lengthy periods of time the
applicant did not act diligently in pursuing the enforcement of the
1999 judgment. Thus it appears that for periods of about one year and
ten months between 17 January 2000 and 2 December 2001, two years
between 15 April 2002 and 16 April 2004, and seven months
between April 2004 and November 2004 (see paragraph 14 above) the
applicant did not request any actions to be undertaken. Neither did
he request information about the course of the proceedings, nor drew
the enforcement officer’s attention to the alleged inactivity
if he believed that such had occurred.
- In
addition, the Court notes that every time the applicant made a
request to the enforcement officer, the latter reacted immediately or
within a short time. Thus, the applicant’s requests to
undertake actions for the collection of his debt of 27 January 2000
and 16 April 2004 were examined on 28 January 2000 and 19 April 2004
respectively when the enforcement officer ordered attachments on bank
accounts of the debtors (see paragraphs 11 and 13 above) and the
requests to be accepted as a creditor under other enforcement
proceedings of 2 December 2001 and 8 November 2004 were examined on
11 December 2001 and 9 November 2004 respectively (see paragraphs 12
and 15 above). The applicant’s request for calculation of the
due interest of 12 August 2005 was also dealt with promptly (see
paragraph 16 above).
- In
view of the above, the Court considers that the applicant has not
acted diligently in order to ensure the enforcement of the judgment
and that the State has not failed to take adequate measures in that
respect (compare Ciprova v. The Czech Republic (dec.), no.
33273/03, 22 March 2005, Topciov, cited above, and
Osmanov v. Azerbaijan (dec.), no. 4582/06, 17 September
2009; see, by contrast, Ruianu v. Romania, no.
34647/97, §§ 72-73, 17 June 2003 and
Cebotari and Others v. Moldova, nos. 37763/04 et al., §
49, 27 January 2009).
- Having
regard to the above, the Court does not find it necessary to examine
whether the appeal under Article 332 of the CCP was an effective
remedy in the circumstances of the present case.
- It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. 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 did not comment.
- The Court reiterates that the court proceedings and
the enforcement proceedings are stages one and two in the total
course of proceedings (see Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 197, ECHR 2006 V). Therefore, the
enforcement of a final judgment should not be dissociated from the
judicial proceedings and the proceedings are to be examined in their
entirety (see, among many others, Estima Jorge v. Portugal,
21 April 1998, § 35, Reports of Judgments and Decisions
1998-II; Sika v. Slovakia, no. 2132/02, §§ 24 27,
13 June 2006; and Ivan Panchenko v. Ukraine,
no. 10911/05, § 55, 10 December 2009).
- The
Court notes that the consideration of the applicant’s case by
the domestic courts lasted from 27 October 1995 to 5 January 1999
(see paragraphs 5 and 9 above), when the Sofia City Court found in
the applicant’s favour. The length of the proceedings in the
judicial phase is therefore three years, two months and ten days for
one level of jurisdiction.
- The
enforcement proceedings continued from 22 July 1999 to 8 November
2005 when the applicant concluded an out-of-court agreement and the
enforcement proceedings were terminated (see paragraphs 10 and 17 and
18 above). This phase therefore lasted six years, three months and
nineteen days. The overall length of the proceedings was therefore
nine years, five months and twenty-nine days.
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 observes that the court phase of the proceedings continued for
three years and two months for one level of jurisdiction. Special
diligence was required as the proceedings concerned an employment
dispute and in particular, unpaid salaries (see Ruotolo v. Italy,
27 February 1992, § 17, Series A no. 230 D). The
applicant was not responsible for any significant delays. In view of
what was at stake in the proceedings their length appears excessive.
- As
to the enforcement phase, it lasted for about six years and three
months. The Court has already found above that certain delays could
be attributed to the applicant (see paragraphs 14 and 31 above).
Furthermore, the State cannot be held responsible for delays caused
by the debtors’ actions and their inability to pay. The length
of this period, therefore, does not appear excessive.
- In
view of the above and having regard to its case-law on the subject,
the delays attributable to the authorities at the court phase of the
proceedings and what was at stake for the applicant, 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.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention that he did
not have an effective domestic remedy for 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 express an opinion on the matter.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- 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 (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). A remedy is effective if it prevents the alleged violation
or its continuation or provides adequate redress for any breach that
has already occurred (ibid., § 158, and Mifsud v. France
(dec.) [GC], no. 57220/00, § 17, ECHR 2002 VIII).
- In
the instant case, the Court refers to its finding that in the present
case a “complaint about delays” did not represent a
remedy to be exhausted (see paragraph 25 above). It follows that it
cannot be considered as an effective remedy within the meaning of
Article 13 of the Convention. As regards compensatory remedies, the
Court has also not found it established that in Bulgarian law there
exists the possibility to obtain compensation or other redress for
excessively lengthy proceedings (see, for example, Rachevi v.
Bulgaria, no. 47877/99, §§ 96-104, 23 September 2004).
The Court sees no reason to reach a different conclusion in the
present case.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention.
V. 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 16,509.08 euros (EUR) in respect of pecuniary
damage for loss earnings sustained as a result of the delayed payment
and the inflation in the country. He also claimed EUR 16,000 in
non-pecuniary damage for the frustration and anguish experienced as a
result of the excessive length of the proceedings and the lack of
effective remedies in that respect and EUR 15,000 for the alleged
violations of Article 6 § 1 and Article 1 of Protocol No. 1 in
respect of the enforcement proceedings.
- The
Government contested these claims as excessive. In respect of the
pecuniary damage they argued that there was no causal link between it
and the alleged violations of the Convention.
- The
Court observes that in the present case, an award of just
satisfaction can be based only on the violations of Articles 6 §
1 and 13 of the Convention in respect of the length of the
proceedings. It does not discern any causal link between the
violations found and the pecuniary damage alleged and therefore
rejects this claim. On the other hand, the Court considers that the
applicant must have sustained non pecuniary damage as a result
of the breaches of his rights under the above mentioned
provisions. Ruling on an equitable basis, it awards award him EUR
1,600 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 2,672.38 for the costs and expenses
incurred before the Court. This amount included EUR 2,450 in legal
fees, EUR 30 in fees for the expert opinion on the claimed pecuniary
damage, EUR 162.38 in translation costs and EUR 30 in postal expenses
and office materials. The applicant submitted a contract with his
representatives and a time sheet for 35 hours at an hourly rate of
EUR 70. He also presented a contract with a translator. The applicant
requested the amount of EUR 300 for legal fees to be paid to him and
the amount of EUR 2,150 to be paid directly into the bank account of
his representatives. He also requested the amount of EUR 30 (fees for
the expert opinion) to be paid to him, EUR 30 to be paid directly
into the bank account of his representatives and EUR 162.38
(translation costs) to be paid in the bank of the latter’s’
law firm.
- The
Government contested these claims.
- Regard
being had to the documents in its possession and to its case-law, the
Court considers it reasonable to award the sum of EUR 600 covering
costs under all heads, EUR 330 of which to be paid to the applicant
and EUR 270 to be paid directly in the bank account of the
applicant’s legal representatives.
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 complaint concerning the excessive
length of the proceedings and the lack of effective remedies in that
respect admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the proceedings;
3. Holds that there has been a violation of Article
13 of the Convention in conjunction with Article 6 § 1 on
account of the excessive length of the proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months the
following amounts, to be converted into Bulgarian levs at the rate
applicable at the date of settlement:
(i) EUR
1,600 (one thousand six 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, EUR 270 of which to
be paid directly into the bank accounts of the applicant’s
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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 26 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech
Garlicki
Registrar President
