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FOURTH
SECTION
CASE OF DIMITAR IVANOV v. BULGARIA
(Application
no. 19418/07)
JUDGMENT
STRASBOURG
14
February 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Dimitar Ivanov v.
Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a
committee composed of:
Päivi Hirvelä,
President,
Ledi Bianku,
Zdravka Kalaydjieva,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 24 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19418/07) 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 Dimitar Vasilev Ivanov
(“the applicant”), on 5 April 2007.
- The
applicant was represented by Mr V. Stoyanov, a lawyer practising in
Pazardzhik. The Bulgarian Government (“the Government”)
were represented by their Agents, Mrs M. Dimova and Mr V. Obretenov,
of the Ministry of Justice.
3. The
applicant alleged that the criminal charges against him had not been
determined within a reasonable time, that he had not had effective
remedies in that respect, and that the prohibition on his leaving
Bulgaria had been unlawful and unjustified.
- On
20 September 2010 the application was communicated to the Government.
5. The
application was later transferred to the Fourth Section of the Court,
following the re-composition of Court’s sections on 1 February
2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in Dinkata.
A. The criminal proceedings against the applicant
- On
6 October 1994 the applicant confessed before the police to
committing robbery together with two other individuals earlier that
day. The stolen goods were confiscated by the police that same day.
- On
4 October 1995 criminal proceedings against the applicant were
formally instituted.
- It
appears that thereafter the case remained dormant until
5 October 2004 when witnesses were questioned.
- In
the period between 2001 and 2004 the applicant left the country on a
number of occasions and returned each time.
- On
6 October 2004 the applicant, who was abroad at the time, was
appointed an ex officio lawyer and was charged in absentia
with robbery.
- The
first hearing of the case was held on 14 January 2005 in the
applicant’s presence.
- In
a judgment of 12 April 2006 the Pazardzhik District Court found the
applicant guilty and sentenced him to one year’s imprisonment,
suspended for three years.
- Following
an appeal lodged by the applicant’s co-defendant, in a final
judgment of 12 October 2006 the Pazardzhik Regional Court upheld the
lower court’s judgment including the applicant’s
conviction and sentence.
B. Prohibition to leave the country
- On
9 March 2007 the Pazardzhik Regional Police Directorate ordered the
imposition of a ban on the applicant leaving the country on account
of his conviction and pending his rehabilitation. It relied on
section 76(2) of the 1998 Bulgarian Identity Papers Act.
- The
applicant contested the order arguing that he was unable to provide
for his family in Bulgaria and that he had employment opportunities
in Serbia.
- On
25 May 2007 the applicant was refused passage by a border police
official while attempting to leave Bulgaria in spite of the imposed
prohibition.
- By
a final judgment of 10 October 2007 the Supreme Administrative Court
upheld the prohibition. The court reasoned that it was within the
administrative authority’s discretion to impose such a ban and
that its assessment was not subject to judicial control. At the same
time, it held that the law had been complied with in that such
restriction could be imposed in cases where a conviction was in place
and prior to the rehabilitation of the convicted person and that
other factors, such as the impossibility to find employment in
Bulgaria, were irrelevant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning travel bans on
convicted individuals pending their rehabilitation is set out in the
Court’s judgment in the case of Nalbantski v. Bulgaria,
no. 30943/04, §§ 25-29, 10 February
2011.
- The
relevant statutory provisions concerning the rehabilitation of
persons convicted with a suspended sentence are summarised in the
above cited Nalbantski judgment, §
30.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention and
that he did not have effective remedies in that respect as provided
by Article 13.
The
relevant part of Article 6 § 1 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 ...”
Article
13 of the Convention provides:
“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 left it to the Court to decide whether,
in the particular case, there had been a breach of the Convention.
- The
period to be taken into consideration began on 6 October 1994 when
the applicant confessed to committing the offence in a statement
before the police (see Dimitrov and Hamanov v. Bulgaria,
nos. 48059/06 and 2708/09, § 74, 10 May 2011,
with further reference). It ended on 12 October 2006, the
day of delivery of the Regional Court’s final judgment. The
proceedings thus lasted twelve years for a preliminary investigation
and two levels of jurisdiction.
A. Admissibility
- The
Court finds that the complaints are not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
1. Alleged violation of Article 6 § 1
- 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 other authorities, Dimitrov and Hamanov,
cited above; Makedonski v. Bulgaria, no. 36036/04,
20 January 2011).
- 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 case was not particularly complex and the authorities
were responsible for a large part of the delay as a result of their
being inactive for a period of nine years when the case remained
dormant at the pre-trial stage (see paragraph 9 above). Having regard
to its case-law on the subject, 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.
2. Alleged violation of Article 13
- The
Court reiterates that Article 13 of the Convention guarantees the
availability at national level of a remedy to enforce the substance
of the Convention rights and freedoms in whatever form they may
happen to be secured in the domestic legal order (see Dimitrov and
Hamanov, cited above, § 90).
- It
observes further that it recently adopted a pilot judgment in the
case Dimitrov and Hamanov, cited above where it examined the
availability of domestic remedies in respect of the length of
criminal proceedings in Bulgaria (ibid., §§ 86-99) and
concluded that Article 13 had been violated in that respect. 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 on account of the lack of
domestic remedies in respect of the applicant’s complaint about
the length of the criminal proceedings against him.
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO
THE CONVENTION
- The
applicant complained about the travel ban which had been imposed on
him pending his rehabilitation. He relied on Article 2 of Protocol
No. 4, which reads, in so far as relevant, as follows:
“... 2. Everyone shall be free to leave
any country, including his own.
3. No restrictions shall be placed on the
exercise of [that right] other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.
...”
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
1. The parties’ submissions
- The
applicant argued that the interference with his right under that
Convention provision was disproportionate as the domestic provisions
did not strike a fair balance between the general interest and that
of the individual. In addition, the domestic courts, despite being
under an obligation to do so, had excluded the police authority’s
assessment of the necessity to impose a prohibition on leaving the
country from the scope of their judicial control.
- The
Government disagreed. They submitted that the travel ban had been
lawful and its duration had not been unlimited. Further, the
applicant had not substantiated his submissions before the domestic
authorities and was free to appeal again in case of changes of
circumstances.
2. The Court’s assessment
- The
Court notes at the outset that the present case is very similar to
Nalbantski, cited above where the Court found a violation of
Article 2 of Protocol No. 4.
- In
the instant case, like in Nalbantski, the authorities referred
but to the applicant’s conviction and lack of rehabilitation in
deciding to impose the travel ban while failing to take his
individual situation into consideration or to assess the
proportionality of the measure (see Nalbantski, cited above, §
66, with further reference). As in Nalbantski, that situation
could not have been remedied in the judicial review proceedings
(ibid.) seeing that the Supreme Administrative Court exercised only
limited judicial review over the formal lawfulness of the ban while
holding that the manner in which the police authorities exercised
their discretion to assess the necessity of imposing the restriction
was not subject to judicial review (see paragraph 18 above). Such
rigid and automatic approach cannot be reconciled with the obligation
imposed by Article 2 of Protocol No. 4 on the Bulgarian authorities
to ensure that any interference with an individual’s right to
leave his or her country is, from the outset and throughout its
duration, justified and proportionate in the light of the
circumstances (see Gochev v. Bulgaria, no. 34383/03, §
50, 26 November 2009).
- There
has accordingly been a violation of Article 2 of Protocol No. 4 of
the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained that he had not had any effective domestic
remedies in respect of his complaint under Article 2 of Protocol No.
4 and that the prohibition on his leaving the country interfered with
his private life. He relied on Articles 8 and 13 of the Convention.
- In
view of its findings above under Article 2 of Protocol No. 4, the
Court finds that the above complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention and
are not inadmissible on any other grounds. They must therefore be
declared admissible.
- However,
having regard to the finding relating to Article 2 of Protocol No. 4
(see paragraph 38 above), the Court considers that it is not
necessary to examine whether the facts examined under that provisions
also gave rise to a violation of Articles 8 and 13 (see, in respect
of Article 8, Riener v. Bulgaria, no. 46343/99, §
134, 23 May 2006).
IV. 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 15,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered that the claim was exorbitant.
- The
Court considers that the applicant must have sustained non pecuniary
damage as a result of the above established violations. Ruling on an
equitable basis and taking into account all the circumstances of the
case, it awards the applicant EUR 3,600 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant also sought reimbursement of EUR 3,500 for the costs and
expenses incurred before the Court. In support of his claim he
presented a time-sheet and a contract for legal representation. He
requested that the amount awarded under this head be transferred
directly into the bank account of his lawyer.
- 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 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 1,000 covering costs
under all heads. The amount is payable directly to the applicant’s
legal representative.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 applicant;
- 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 criminal proceedings against the applicant;
- Holds that there has been a violation of Article
2 of Protocol No. 4 of the Convention;
- Holds that that there is no need to examine the
complaints under Articles 8 and 13 of the Convention relating to
the travel ban imposed on the applicant;
- 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
3,600 (three thousand six hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, payable into the
bank account 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
claim for just satisfaction.
Done in English, and notified in writing on 14 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Päivi Hirvelä Deputy
Registrar President
