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FOURTH
SECTION
CASE OF PETROVA v. BULGARIA
(Application
no. 19532/05)
JUDGMENT
STRASBOURG
24
April 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Petrova 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 3 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 19532/05) 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 Lozinka Yordanova Petrova (“the
applicant”), on 10 May 2005.
- The
applicant was represented by Mr M. Ekimdzhiev and Ms K. Boncheva,
lawyers practising in Plovdiv. The Bulgarian Government
(“the Government”) were represented by their Agent, Ms M.
Dimova, of the Ministry of Justice.
- On
7 July 2009 the
application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s civil proceedings
- The
applicant was born in 1948 and lives in Dobrich.
- On
21 January 1996 the applicant brought an action against a
construction company, claiming that it had damaged her property by
building a construction next to it. In February 2002 she modified her
compensation claim.
- In
the period between 21 January 1996 and 13 January 2003 the Dobrich
Regional Court conducted at least nineteen hearings. Between
September 1999 and February 2001 the proceedings were stayed,
awaiting the outcome of administrative proceedings in respect of the
status of the construction. Two hearings were adjourned at the
applicant’s request, one for correction of certain flaws in her
modified claim, one due to improper summoning, and five due to the
absence of the experts or a failure to submit their reports. Two
hearings were rescheduled upon the expert’s request. Several
hearings were postponed because the parties posed additional
questions to the experts or requested gathering of further evidence.
- The
applicant’s claim was partly granted by the Regional Court on
13 January 2003, and upon appeal, by the Varna Court of Appeal
on 22 May 2003. The courts ordered the defendant company to
repair the damage caused to her property or to pay her BGN 11,960
(approximately EUR 5,980) plus interest and court fees.
- In
a final judgment of 18 November 2004 the Supreme Court of Cassation
upheld the Court of Appeal’s judgment.
B. Injunction and enforcement proceedings
- While
the proceedings were pending before the Regional Court, the applicant
requested that property of the defendant company be attached as a
security of her claim. On 18 January 2000 the Regional Court imposed
an injunction forbidding the defendant company to perform
transactions with two of its real estates and one lorry. On 19 May
2000 the Varna Administrative Court annulled the injunction in
respect of one of the real estates, reasoning that the other
injunctions guaranteed the applicant’s claim to a sufficient
extent.
- After
the judgment of the Court of Appeal of 22 May 2003 the applicant
initiated enforcement proceedings. At the defendant company’s
request, on 8 October 2003 the Supreme Court of Cassation stayed the
enforcement proceedings pending the outcome of the review on points
of law, because the defendant company had deposited the amount of
BGN 11,960, equal to the damages awarded to the applicant.
- After
the final judgment of the Supreme Court of Cassation, on 29 February
and again on 28 March 2005 the applicant requested from the
enforcement judge the resuming of the enforcement proceedings, the
transfer of the deposited amount to her bank account and the
scheduling of other actions for gathering the awarded interest.
However, she was informed that the deposited guarantee had been
returned to the defendant company on 16 December 2004.
- On
28 July 2005 the applicant and the defendant company signed an
out-of-court agreement, under which she received the amount of
BGN 22,000 (about EUR 11,000) which, according to her
submissions, was less than the entire amount of the debt. On 17
September 2005 the enforcement proceedings were discontinued at the
applicant’s request.
- In
2007 the defendant company requested the lifting of the injunction in
respect of the second real estate, stating that it had settled its
debt. The applicant did not comment. On 28 November 2007 the Regional
Court granted the request, reasoning that the injunction was no
longer necessary. As the parties did not appeal against the decision,
it became final on 7 December 2007.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law concerning the complaint about delays under
Article 217a of the 1952 Code of Civil Procedure is set out in the
Court’s judgment in the case of Finger v. Bulgaria,
no. 37346/05, § 43,
10 May 2011.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention that the length of the proceedings had been incompatible
with the “reasonable time” requirement and that she had
not had any effective domestic remedies in that respect.
Article
6 § 1 reads, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”.
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
period to be taken into consideration began on 21 January 1996 and
ended on 18 November 2004. The proceedings thus lasted eight years
and ten months less three days for three levels of jurisdiction.
A. Admissibility
- The
Government stated that the applicant had failed to exhaust the
available domestic remedies because she had not made a complaint
about delays.
- The
Court considers that the question of exhaustion of domestic remedies
is closely linked with the substance of the applicant’s
complaint under Article 13 of the Convention. It should therefore be
joined to the merits.
- The
Court considers furthermore that the present complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
- The
Government stated that the length of the proceedings had not been
unreasonable in view of the complexity of the case. They further
maintained that the applicant had been responsible for some of the
delays because she had requested postponement of hearings and had
modified her claim. Furthermore, the parties had posed numerous
additional questions to the experts, which had further delayed the
proceedings.
- The
applicant disagreed.
- 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 has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Finger, cited above, §§
102-103, and Kiurkchian v. Bulgaria, no. 44626/98, §§
61 and 72, 24 March 2005).
- 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 does not appear to have been particularly
complex, although it involved several expert reports. Furthermore,
although the applicant was responsible for several adjournments (see
paragraph 6 above), the Court considers that the bulk of the delay
occurred as a result of the manner in which the Regional Court
handled the case. In particular, that court held no fewer than
nineteen hearings, acceding to numerous belated evidentiary requests
of the parties. Thus, it appointed several experts and adjourned the
hearings on a number of occasions in order to enable those experts to
answer last minute additional questions or in order to give the
parties an opportunity to submit further evidence, which, in turn,
caused additional delays due to absence of experts or their failure
to submit their reports on time, or irregular summoning. As a result,
the proceedings before that court lasted almost seven years (see
paragraphs 5-7 above). It is true that the proceedings were stayed
for more than a year pending the outcome of another set of
proceedings. However, the Court notes that much of the delays could
have been avoided if the Regional Court had, from the outset, tried
to identify the controversial points and gather evidence in relation
to them in a more efficient manner (see Finger,
cited above, § 102, with
further references). Therefore, although no extraordinary delays
occurred in the subsequent proceedings before the Court of Appeal and
the Supreme Court of Cassation, the Court considers that the overall
length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
- As
regards the existence of effective remedies capable of preventing the
violation of Article 6 § 1 or its continuation, or providing
adequate redress, the Court notes that the proceedings had already
lasted three and a half years at the time when the complaint about
delays was introduced (see paragraphs 5 and 14 above).
Furthermore, it has already held that a complaint about delays is not
an effective remedy in cases where the major source of delay is not
the courts’ failure to schedule hearings at reasonable
intervals, but rather the fact that they did not organise the
examination of the case properly, dealt with it over a considerable
number of hearings, and failed to gather evidence in a more efficient
manner (see Finger, cited above, § 88). The Court
considers that in the instant case the reasons for unjustified delays
disclose no material difference from those examined in Finger (see
paragraph 24 above). Therefore the Court is not persuaded that a
“complaint about delays” would have been an effective
remedy. It is not disputed furthermore that Bulgarian law does not
provide any other remedies, whether acceleratory or compensatory, in
respect of the excessive length of civil proceedings (Finger,
cited above, § 89). The Government’s
objection that the applicant failed to exhaust domestic remedies
should therefore be dismissed. Accordingly, the Court considers that
the applicant did not have effective remedies under domestic law in
respect of the excessive length of the proceedings.
- It
follows that there has been a violation of Articles 6 § 1 and 13
of the Convention.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained, relying on Articles 6 § 1 and 13 and
Article 1 of Protocol No. 1 to the Convention, that due to the
allegedly unlawful actions of the authorities in the course of the
injunction and the enforcement proceedings, notably the decision of
the Supreme Court of Cassation to return the guarantee to the
defendant company (see paragraph 11 above), she had been
deprived of the full amount of the damages and interest awarded to
her in the domestic proceedings and that she had not had effective
remedies in that respect.
- The
Government stated that the authorities’ decisions had been in
compliance with the national law.
- The
Court notes that even after the release of the guarantee of
BGN 11,960 a real estate of the debtor remained attached in
favour of the applicant (see paragraphs 11-13 above). However, she
preferred to sign an out-of-court agreement, receiving a much larger
amount than the one covered by that guarantee and waiving any further
claims to the debtor (see paragraph 12 above). She obtained
payment of that amount shortly after the determination of her claim
and expressly requested the discontinuance of the enforcement
proceedings. Therefore, on the facts of the case, the Court is not
persuaded that the return of the guarantee prevented or delayed the
enforcement of the judgment in her favour.
- It
follows that this part of the application must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 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
1. Pecuniary damage
- The
applicant claimed 10,685.07 euros (EUR) in respect of pecuniary
damage, representing the difference between the compensation awarded
by the domestic courts and the real damage sustained by her as a
result of the unlawful construction.
- The
Government contested the claim as unsubstantiated.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim.
2. Non-pecuniary damage
- The
applicant claimed EUR 16,000 in respect of non-pecuniary damage
stemming from the unreasonable length of the proceedings and the lack
of effective remedies in that respect.
- The
Government contested this claim as excessive.
- The
Court considers that the applicant must have sustained non pecuniary
damage as a result of the breaches of her rights found in the case.
Taking into account all the circumstances of the case, and
deciding on an equitable basis, it awards her EUR 1,000 under this
head.
B. Costs and expenses
- The
applicant sought reimbursement of EUR 2,170 incurred in lawyers’
fees for thirty one hours of work on the proceedings before the
Court, billed at EUR 70 per hour. She further claimed EUR 314.28 for
other expenses, such as translation, postage and office expenses. She
submitted a fees agreement between her and her legal representatives,
a time sheet, and a contract for translation services, the latter
signed on behalf of Lawyers Association Ekimdzhiev, Boncheva and
Chernicherska. She requested that EUR 358 of any award made under
this head be paid directly to her (since she had already paid that
sum to her lawyers), the award for translation expenses – to
Lawyers Association Ekimdzhiev, Boncheva and Chernicherska, and the
remainder to her lawyers, Mr M. Ekimdzhiev and Ms K. Boncheva.
- The
Government contested these claims.
- According
to the Court’s case-law, costs and expenses claimed under
Article 41 must have been actually and necessarily incurred and
reasonable as to quantum. In the present case, having regard to the
information in its possession and the above criteria, and noting that
part of the application was declared inadmissible, the Court
considers it reasonable to award the applicant the sum of EUR 700 in
respect of lawyers’ fees, plus any tax that may be chargeable
to her. EUR 358 of that amount is to be paid to the applicant
herself, and the remainder to her legal representatives,
Mr M. Ekimdzhiev and Ms K. Boncheva.
- As
for the claim for other expenses, the Court observes that the
applicant has provided supporting documents only for the sum paid for
translation services (EUR 126.82). It therefore awards her that
amount, plus any tax that may be chargeable to her. It is to be paid
to Lawyers Association Ekimdzhiev, Boncheva and Chernicherska.
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 complaints concerning the excessive
length of the proceedings and the alleged 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;
- 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,
the following amounts, to be converted into Bulgarian levs at the
rate applicable at the date of settlement:
(i) EUR
1,000 (one thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
826.82 (eight hundred and twenty-six euros and eighty-two cents),
plus any tax that may be chargeable to the applicant, in respect of
costs and expenses, EUR 358 of which is to be paid to the applicant
herself, EUR 126.82 to Lawyers Association Ekimdzhiev, Boncheva and
Chernicherska, and the remainder to be paid to the applicant’s
legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva;
(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 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Päivi Hirvelä
Deputy
Registrar President
