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FIFTH
SECTION
CASE OF KANCHEV v. BULGARIA
(Application
no. 16850/04)
JUDGMENT
STRASBOURG
24
February 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kanchev 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. 16850/04) 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 Ivan Iliev Kanchev (“the applicant”),
on 28 April 2004.
- The
applicant was represented by Mrs S. Stefanova and Mr K. Bakov,
lawyers practising in Plovdiv. The Bulgarian Government
(“the Government”) were represented by their Agent, Mrs
M. Kotzeva, of the Ministry of Justice.
- On
8 October 2008 the
President of the Fifth Section decided to give notice of the
application to the Government. In accordance with Protocol no.
14 to the Convention, the application was allocated to a Committee of
three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Plovdiv.
A. The first set of criminal proceedings against the
applicant
- On
4 October 1990 the applicant and his alleged accomplice D.E. were
charged with attempt to theft of two boxes of ham. On the same day
the investigator questioned them and interviewed one witness. Two
more witnesses were interviewed on 22 May 1992.
- On
6 July 1992 the preliminary investigation was concluded and the file
was sent to the prosecutor. On 14 August 1992 the proceedings were
stayed because the investigating authorities could not find and
question D.E.
- From
14 August 1992 until December 1999 the case remained dormant.
- In
December 1999 the investigation authorities started working on the
case. On 7 November 2001 the investigator ordered a fresh expert
report to assess the value of the stolen goods. On 6 February and 4
June 2002 the applicant was charged again with the same offence. In
the meantime the investigator questioned the applicant and
interviewed witnesses.
- On
23 August 2002 the investigation was concluded. On 22 November
2002 an indictment was filed with the Plovdiv District Court.
Between November 2002 and February 2006 the court held six hearings.
One of them was adjourned on the ground of the absence of a member of
the panel and three of them on the ground of the absence of
witnesses. Two hearings were adjourned because either the applicant
or his lawyer did not appear.
- Upon
the prosecutor’s request, on 21 December 2005 the court
discontinued the criminal proceedings against the applicant on the
ground that the statute of limitations had expired.
B. The second set of criminal proceedings against the
applicant
- On
8 June 1992 the applicant was questioned by the police in relation to
an attempted aggravated theft of various domestic equipment items
perpetrated the previous day. He confessed to the offence. The
investigating authorities heard witnesses and seized some of the
stolen items.
- On
17 July 1992 criminal proceedings were opened against the applicant
and his alleged accomplice A.M.
- From
17 July 1992 until 7 February 2002 the case remained dormant.
- On
7 February 2002 the investigation authorities questioned a witness.
Between February and April 2002 the investigating authorities
questioned several witnesses and ordered an expert report to assess
the value of the stolen domestic equipment. On 2 April 2002 the
applicant was charged and questioned. The investigation was concluded
on 28 May 2003.
- On
8 July 2003 an indictment was filed with
the Plovdiv District Court. The first hearing, listed for 2 March
2004, was adjourned because of the applicant’s absence.
Following a court’s decision ordering the applicant’s
detention, on 17 March 2004 the applicant was remanded in custody.
- The
court held another hearing on 13 October 2004. On 11 January 2005 the
court approved a plea bargain agreement between the applicant and the
prosecuting authorities where the applicant confessed to the offence
and was sentenced to three months of imprisonment.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the two sets of criminal
proceedings against him 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 did not comment.
A. 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.
B. Merits
- The period to be taken into consideration did not
begin to run in October 1990 with regard to the first set and in June
1992 with regard to the second set of proceedings but only on 7
September 1992, when the Convention entered into force in respect of
Bulgaria. However, to determine whether the time which has elapsed
following this date is reasonable, it is necessary to take account of
the stage which the proceedings had reached at that point. On this
date both sets of criminal proceedings were pending at the
preliminary investigation.
- The
period ended on 21 December 2005 in respect of the first set and on
11 January 2005 in respect of the second set of proceedings. It thus
lasted approximately thirteen years and three months for the first
set and approximately twelve years and four months for the second set
of proceedings, for preliminary investigation and one level of court.
- 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 (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, Yankov and Manchev v. Bulgaria,
nos. 27207/04 and 15614/05, §§ 17-26, 22 October 2009;
Stefanov and Yurukov v. Bulgaria, no. 25382/04, § 17, 1
April 2010). The instant cases were not complex and, with the
exception of several months in the second set of proceedings (see
paragraphs 15 and 16 above), there appear to be no significant delays
attributable to the applicant. The main reason why the charges
against him were not determined for such a long time was the fact
that between September 1992 and December 1999 and between September
1992 and February 2002 the proceedings remained dormant (see
paragraphs 7 and 13 above). The Government have not provided any
explanation for these gaps.
- Having
regard to the above considerations and its case-law on the subject,
the Court considers that in the instant case the length of each of
the two sets of 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 of the lack of an effective remedy in
respect of the excessive length of the two sets of criminal
proceedings against him. He relied on Article 13 of the Convention.
- 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). Referring to its reasoning in other cases against Bulgaria
where it found that at the material time and in similar circumstances
Bulgarian law did not provide for an effective remedy (see, for
example, Myashev v. Bulgaria, no. 43428/02, § 22, 8
January 2009), the Court sees no reason to reach a different
conclusion in the present case.
- Accordingly,
the Court considers that there has been a violation of Article 13 of
the Convention.
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
applicant claimed 30,000 euros (EUR) in respect of non pecuniary
damage sustained as a result of the unreasonable length of the two
sets of proceedings against him and the lack of effective domestic
remedies in that respect.
- The
Government contested this claim.
- The
Court considers that the applicant must have sustained certain
non-pecuniary damage as a result of the excessive length of the two
sets of proceedings against him and the lack of effective remedies in
this respect. Taking into account the particular circumstances and
the awards made in similar cases, and ruling on an equitable basis,
as required under Article 41, the Court awards the applicant EUR
4,000, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 4,130 for legal fees for the proceedings
before the Court and EUR 190 for other costs, including translation
of the observations, postage and office materials. In support of this
claim the applicant presented an agreement with his lawyers and a
time sheet for fifty-nine hours at a rate of EUR 70 per hour.
The applicant requested that the amount awarded for costs and
expenses under this head be paid directly to their lawyers, Mrs S.
Stefanova and Mr K. Bakov.
- The
Government contested these claims as excessive.
- According
to the Court’s case-law, applicants are 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 information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 600, covering costs
and expenses under all heads. This sum is to be paid into the bank
account of the applicant’s legal representatives,
Mrs S. Stefanova and Mr K. Bakov.
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 two sets of criminal
proceedings against the applicant;
- 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 both sets of
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
4,000 (four thousand 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, payable directly into
the bank account 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 24 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mirjana Lazarova Trajkovska
Deputy
Registrar President
