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FIFTH
SECTION
CASE OF GEORGIEV AND OTHERS v. BULGARIA
(Application
no. 4551/05)
JUDGMENT
STRASBOURG
24 February 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Georgiev and Others v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a
Committee composed of:
Mirjana Lazarova Trajkovska,
President,
Zdravka Kalaydjieva,
Julia Laffranque,
judges,
and Stephen Phillips,
Deputy Section Registrar,
Having
deliberated in private on 31 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 4551/05) 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 Georgi Ivanov Georgiev, Mr Lyubcho Petrov Tsochev, and
Mr Kiril Kostadinov Studenkov (“the applicants”), on 21
January 2005.
- The
applicants were represented by Ms S. Stefanova and Mr A. Atanasov,
lawyers practising in Plovdiv. The Bulgarian Government
(“the Government”) were represented by their Agent, Ms M.
Dimova, of the Ministry of Justice.
- On
15 June 2009 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol no.
14, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1961, 1950 and 1971 respectively. The first
applicant lives in Lisets and the second and the third applicants
live in Plovdiv.
- On
29 August 1995 the applicants were questioned by the police and gave
written statements admitting their involvement in a theft of car
spare parts and boxes of beer from a warehouse. On the next day the
investigator opened criminal proceedings against them. A witness was
questioned on 14 September 1995, after which the case remained
dormant until February 2002, when seven other witnesses were
questioned.
- Theft
charges were brought against the applicants on 17 July, 26 June and
14 October 2002 respectively. In the period from March to October
2003 the investigator questioned the applicants and several
witnesses. In December 2003 the public prosecutor filed an indictment
against the applicants.
- On
25 May and 2 December 2004 the Plovdiv District Court held two
hearings and on the latter date approved a plea bargain agreement
between the applicants and the public prosecutor and discontinued the
proceedings. The first and the second applicants were punished by six
months’ imprisonment, and the third applicant by three months’
imprisonment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants 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 ... any criminal charge
against him everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal ...”
- The
Government argued that for the purposes of Article 6 of the
Convention the criminal proceedings against the applicants commenced
on 17 July, 26 June and 14 October 2002 respectively, when the
applicants were charged. Thus, the Government contended that the
proceedings had lasted for about two years and a half. Accordingly,
they considered that the applicants’ complaints should be
rejected as being manifestly ill-founded.
A. Period to be taken into consideration
- The
Court reiterates that in criminal matters, Article 6 of the
Convention comes into play as soon as a person is “charged”.
According to the Court’s case-law, the word “charge”
in Article 6 § 1 must be interpreted as having an autonomous
meaning in the context of the Convention and not on the basis of its
meaning in domestic law. Thus, whilst “charge”, for the
purposes of Article 6 § 1 may in general be defined as “the
official notification given to an individual by the competent
authority of an allegation that he has committed a criminal offence”,
it may in some instances take the form of other measures which carry
the implication of such an allegation and which likewise
substantially affect the situation of the suspect (see among many
others, Deweer v. Belgium, 27 February 1980, § 46,
Series A no. 35; Eckle v. Germany, 15 July 1982, § 73,
Series A no. 51; and Corigliano v. Italy, 10 December
1982, § 34, Series A no. 57).
- In
the present case the applicants were questioned in connection with a
theft and confessed to taking part in its commission on 29 August
1995. Criminal proceedings were opened against them on the following
day (see paragraph 5 above).
- Having
regard to these facts and applying the principles set out above, the
Court finds that in the present case the applicants’ situation
was “substantially affected” and they could be considered
as subject to a “charge” from the moment when they were
questioned by the police and confessed to the theft (see, with
further reference, Yankov and Manchev v. Bulgaria, nos.
27207/04 and 15614/05, §§ 17-18 and §§ 23-24,
22 October 2009). Accordingly, the beginning of the period to be
taken into consideration is 29 August 1995.
- The
period ended on 2 December 2004, when the applicants concluded a plea
bargain agreement. It thus lasted nine years three months and three
days for a preliminary investigation and one level of jurisdiction.
B. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
C. 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 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, among many others, Osmanov and Yuseinov v. Bulgaria,
nos. 54178/00 and 59901/00, § 30, 23 September 2004 and
Yankov and Manchev v. Bulgaira, cited above §§
17-26). Having examined all the material submitted to it, the Court
considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case. In particular, the Court notes that the major
source of delay in the present case was the lack of sufficient
activity from September 1995 to February 2002 when the case was
effectively dormant (see paragraph 5 above).
- In
view of the above and having regard to its case-law on the subject
and the global length of the proceedings, 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.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants further complained of the lack of an effective remedy in
respect the excessive length of the proceedings against them. They
relied on Article 13 of the Convention, which reads as follows:
“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.
- 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). It notes that it has frequently found
violations of Article 13 of the Convention in cases raising issues
similar to the one in the present case (see, with further references,
Myashev v. Bulgaria, no. 43428/02, §§ 22 and 23, 8
January 2009, and Yankov and Manchev, cited above, §§
32-34). It sees no reason to reach a different conclusion in the
present case.
- There
has therefore been a violation of Article 13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
applicants claimed a total of 39,000 euros (EUR), EUR 13,000 per
person, in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court observes that the applicants must have sustained non-pecuniary
damage. Ruling on an equitable basis and taking into account all the
circumstances of the case, it awards EUR 2,000 to each applicant
under this head.
B. Costs and expenses
- The
applicants also claimed EUR 3,150 in lawyer’s fees for the
proceedings before the Court, EUR 45 for postage and EUR 30 for
office materials. In support of this claim they presented an
agreement with their lawyers and a time sheet for forty five hours at
the hourly rate of EUR 70. The applicants requested that the amount
awarded for costs and expenses under this head be paid directly to
their lawyers, Mrs S. Stefanova and Mr A. Atanasov.
- The
Government contested these claims as 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 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, payable directly into the bank account of the
applicants’ 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the proceedings;
- Holds that there has been a violation of Article
13, in conjunction with Article 6 § 1 of the Convention, on
account of the lack of an effective remedy for the excessive length
of the proceedings;
- Holds
(a) that
the respondent State is to pay the applicants, within three months,
the following amounts, to be converted into Bulgarian levs at the
rate applicable at the date of settlement:
(i) to
Mr Georgiev, EUR 2,000 (two thousand euros), plus any tax that may be
chargeable, in respect of non pecuniary damage;
(ii) to
Mr Tsochev, EUR 2,000 (two thousand euros), plus any tax that may be
chargeable, in respect of non pecuniary damage;
(iii) to
Mr Studenkov, EUR 2,000 (two thousand euros), plus any tax that may
be chargeable, in respect of non pecuniary damage;
(iv) jointly
to the applicants, EUR 600 (six hundred euros), plus any tax that may
be chargeable, in respect of costs and expenses, to be paid into the
bank account of their legal representatives, Ms S. Stefanova
and Mr A. Atanasov;
(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 24 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mirjana Lazarova Trajkovska
Deputy
Registrar President
