SARBYANOVA AND PASHALIYSKA v. BULGARIA - 3524/14 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2017] ECHR 31 (12 January 2017)

In the case of Sarbyanova and Pashaliyska v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Erik Møse,
          Khanlar Hajiyev,
          André Potocki,
          Yonko Grozev,
          Síofra O’Leary,
          Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 29 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 3524/14) 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”), on 30 December 2013, by two Bulgarian nationals, Ms Niya Ivanova Sarbyanova-Pashaliyska and Ms Maria Ivanova Pashaliyska, who are mother and daughter and who were born in 1960 and 1999 respectively, and live in Sofia.

2. The applicants were represented by Mr S. Terziyski, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.

3. The applicants alleged, in particular, that the investigation into the murder of their relative was ineffective as it lasted too long and that they did not have an effective domestic remedy in that connection.

4. On 24 September 2015 the above-mentioned complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background

5. The applicants are the wife and daughter of Mr Ivan Mirchev Pashaliysky, who was killed on 2 June 2000 in an office situated in a hotel in Sofia. He died as a result of suffering severe trauma to his brain, chest, torso and limbs, which led to irreversible damage to several of his vital organs. The trauma was caused by a number of kicks and punches and blows inflicted with different objects.

6. On the day of the incident a private security guard was called to the office premises where Mr Pashaliysky was later found dead in order to investigate a brawl reportedly happening there. The security guard knocked on the office entrance door and an individual, S.V., opened it. The security guard caught a brief glimpse of Mr Pashaliysky lying helpless on the floor with blood on his face. S.V. was holding a long oval-shaped object. Having been told by S.V. that there was no problem, the security guard left.

7. It would appear that earlier that day, using the telephone of the office in question, S.V. had called Ch.M., a friend and business partner of Mr Pashaliysky, threatening to kill them both if Ch.M. failed to deliver an undisclosed sum of money to S.V. without delay.

B. Criminal proceedings against the perpetrator

1. Pre-trial stage

8. The incident was reported to the police by an investigator, who had been tipped off earlier the same day. The police arrested S.V. that night. Traces of the crime having been discovered on S.V.’s hands and clothes, an investigator charged him on 3 June 2000 with murder. On 5 June 2000 a prosecutor indicted S.V. for the murder of Ivan Mirchev Pashaliysky, which had been committed three days earlier.

9. A prosecutor from the Sofia city public prosecutor’s office found on 20 April 2001 that there were reasons for amending the indictment by applying a law providing for a heavier penalty. She also found that not all available evidence had been collected. In particular, no expert DNA analysis had been carried out on the material found under the victim’s nails; several key witnesses had not been questioned about the reasons for their presence in the office in which the victim had been killed on the day in question and about the reason for the return to the office of one of them during the evening of the same day; no confrontation had been held between two of those witnesses, despite several discrepancies between their respective statements; and no information had been collected about the state in which the police officers had found the accused at the time of his arrest. On 20 April 2001 the prosecutor returned the case to the investigating authorities for further investigative measures, giving specific instructions aimed at the remedying of the deficiencies in the investigation.

10. The case was returned on three other occasions (on 17 July 2001, 18 July 2003 and on 2 October 2003) for further investigative steps, which the prosecutor listed specifically.

2. Trial stage

11. The case file was sent to the Sofia City Court on an unspecified date in November 2003. Both applicants were named as private prosecutors and the second applicant, at her request, also as a civil party seeking non-pecuniary damages.

12. At the start of the trial the defendant’s lawyer claimed that the indictment was defective because it did not contain a clear description of the offence with which the defendant had been charged; the lawyer sought, without success, the return of the case for further investigation. A number of hearings took place during the trial. The proceedings before the Sofia City Court ended on 11 June 2007, when the court sentenced S.V. to fifteen years’ imprisonment and ordered him to pay damages to the second applicant.

13. Both S.V. and the applicants lodged appeals with the Sofia Court of Appeal. S.V. submitted in particular that the sentence had been based entirely on guesswork as to who the perpetrator had been. Most importantly, S.V. claimed that the indictment had been entirely silent about the manner in which he was considered to have killed the victim, there being no description of the circumstances in which the victim was killed. Referring to interpretative decision no. 2 of 2002 of the Supreme Court of Cassation (see paragraph 21 below), he claimed that these procedural flaws were fundamental and that the court should have returned the case to the investigation stage.

14. On 18 July 2008 the Sofia Court of Appeal accepted that the indictment had not contained a description of how the accused had killed the victim and that this had been a fundamental procedural defect which had prevented the defendant from effectively exercising his rights. The court then quashed the first-instance court sentence and returned the case to the pre-trial stage so that the procedural flaw in question could be redressed.

15. On 16 August 2008 the prosecution indicted S.V. anew for the murder of Mr. Pashaliysky and the first-instance court, the Sofia City Court, opened fresh proceedings against him. The first two scheduled hearings were postponed because the defendant’s lawyer failed to appear. On 11 February 2009 the court recognised the second applicant as a civil party seeking non-pecuniary damages but refused to name both applicants as private prosecutors. After an appeal by the applicants that refusal was quashed on 13 March 2009 by the Sofia Court of Appeal. The witnesses were then heard again in the course of the trial so that the applicants could exercise their rights as private prosecutors.

16. Sixteen hearings took place thereafter, at which the applicants made numerous requests for evidence to be gathered and witnesses to be heard. Subsequently, the presiding judge was elected President of the Supreme Administrative Court as a result of which the trial stage was started anew. A new presiding judge was appointed, yet no further hearing was scheduled for about a year. The applicants complained about the delay to the Inspectorate of the Supreme Judicial Council, asking that disciplinary sanctions be imposed on the new presiding judge. The Inspectorate replied on 21 February 2012. It acknowledged that the criminal proceedings in the case had lasted eleven years and recognised that this was incompatible with the requirement of a reasonable length of proceedings. It nonetheless held that the judge in question could not be sanctioned, given that the duration of the other cases that she had heard had not exceeded an acceptable length.

17. On an unspecified later date the new presiding judge was sent back to the court from which she had been transferred and the case had to begin anew once again.

18. On 9 December 2013 the proceedings before the first-instance court ended. The Sofia City Court found S.V. guilty of murder and sentenced him to twelve years’ imprisonment. The first-instance court also ruled that S.V. had to pay some 50,000 euros (EUR) in damages to the second applicant as a civil party. After an appeal by S.V. the Sofia Court of Appeal carried out a thorough analysis of the witness statements given at first instance, of the record of the examination of the murder scene conducted on the day after the killing, of the search and seizure measures, and of the conclusions of the numerous expert reports, the autopsy, etc. Following this, on 22 December 2014 the appellate court upheld the guilty verdict and sentence, but lowered the amount in damages to be paid to the second applicant to around EUR 8,000. Following a cassation appeal by S.V. the Supreme Court of Cassation upheld the appellate court’s judgment in its entirety in a final judgment of 2 November 2015.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Offences against life and duty to investigate death

19. Article 115 of the 1968 Criminal Code (hereinafter “the 1968 Code”) provides that murder is punishable by ten to twenty years’ imprisonment.

20. Under Article 124 § 1 of the 1968 Code, where death occurs as a result of wilfully inflicted grievous bodily harm, the punishment is three to twelve years’ imprisonment. Those offences are liable to public prosecution.

B. Indictment

21. Under Article 235 § 2 of the 1974 Code of Criminal Procedure (the 1974 Code) and Article 246 § 2 of the new Criminal Procedural Code (the 2006 Code), an act of indictment has to specify, among other things, the crime of which the indicted individual is accused, as well as the place, time and manner of its commission. In a 2002 interpretative decision (тълкувателно решение № 2 от 7.10.2002 г. на ВКС по т. н. д. № 2/ 2002 г., ОСНК) the Supreme Court of Cassation held that failure to specify in an indictment the exact manner in which a murder was committed constituted grounds for returning the case to an earlier procedural stage only if it concerned an element of the corpus delicti of the offence.

C. Permanence of the court hearing a criminal case

22. Article 257 of the 1974 Code provided that a case must be heard by the same bench from the beginning until the end of the trial. In the event that a member of a bench had to discontinue his or her participation, the respective trial had to start anew. This provision was replicated in Article 258 of the 2006 Code.

D. Rights of the next of kin

23. A victim’s heirs could take part in the criminal proceedings against a perpetrator as a civil party (граждански ищец) or as a private prosecutor (частен обвинител). Once they had been named as either a civil party or a private prosecutor they had the right to access the documents in the case file and to receive copies of those, as well as to present evidence and to ask that specific investigative measures be carried out or to object to measures which they considered to impinge on their rights (Articles 52 and 60 of the 1974 Code and Articles 76 and 84 of the 2006 Code).

E. Parties in criminal proceedings

24. Article 253 of the 2006 Code specified who the parties to the court proceedings are, namely (1) the prosecutor; (2) the defendant and the defence counsel; (3) the private complainant and private prosecutor; (4) the civil claimant and civil respondent.

F. Remedies for excessive length of proceedings

25. Two compensatory remedies exist in Bulgarian law in respect of excessive length of judicial proceedings: an administrative one, governed by sections 60a et seq. of the Judiciary Act 2007, and a judicial one, governed by section 2b of the State and Municipalities Responsibility for Damage Act 1988 (the SMRDA). The administrative remedy under the 2007 Act covers civil, administrative and criminal proceedings, including pre-trial proceedings (section 60a(2)). It is open to persons who are aggrieved by the length of proceedings which have come to an end. The judicial remedy under the SMRDA appears to cover all sorts of judicial proceedings (section 2b). It is open to persons who are aggrieved by the length of proceedings which are still pending (section 2b(3)), as well as to persons who are aggrieved by the length of proceedings which have come to an end but who have not obtained adequate redress through the administrative remedy under the 2007 Act (section 8(2)). In its decision in Valcheva and Abrashev v. Bulgaria ((dec.), nos. 6194/11 and 34887/11, § 98, 18 June 2013) the Court found that, taken together, an application for compensation under sections 60a et seq. of the Judiciary Act 2007 and a claim for damages under section 2b of the SMRDA could be regarded as effective domestic remedies in respect of allegedly unreasonable length of proceedings before the civil, criminal and administrative courts in Bulgaria.

26. Sections 60a et seq. of the Judiciary Act 2007, read as follows:

Subchapter I - General Provisions

“60a. (1) This chapter applies to applications by individuals and legal persons against decisions, actions or omissions of judicial authorities which infringe their right to have their cases examined and decided within a reasonable time.

(2) Applications under subsection 1 shall be lodged by individuals and legal persons who are:

1. parties to finished civil, administrative or criminal proceedings;

2. accused, victims or wronged legal persons in discontinued pre-trial proceedings;

(3) This chapter sets out the manner of determining and paying compensation in line with the case-law of the European Court of Human Rights not amounting to more than 10,000 levs.

(4) Applications under subsection 1 shall be lodged within six months after the conclusion of the proceedings at issue with a final decision, though the Inspectorate attached to the Supreme Judicial Council to the Minister of Justice.

(5) A special register shall be created for the applications, and it shall be published on the internet site of the Inspectorate attached to the Supreme Judicial Council.

(6) No fees shall be due for the examination of applications under this chapter.

...”

Subchapter II - Contents and Verification of the Application

“60b. (1) The application must be written in Bulgarian and set out:

1. for Bulgarian nationals - their names as featuring in the identification documents; uniform citizen number and address; telephone, fax and electronic address, if any;

2. for foreigners - their names as featuring in the identification documents; uniform foreigner number and address; telephone, fax and electronic address, if any;

3. the commercial firm of the trader or the name of the legal person, written in Bulgarian; the seat and the latest registered address and electronic address;

4. the decision, action or omission alleged to amount to a breach by the respective authority;

5. the authority to which the application is addressed;

6. the request for relief;

7. the applicant’s signature.

(2) Applicants shall submit a declaration that they have not sought or obtained compensation in respect of the same breach in other proceedings.”

Subchapter III - Manner of Examination of the Applications

“60c. (1) Applications under section 60a(1) shall be examined by the Inspectorate attached to the Supreme Judicial Council, which shall set up a special unit for this purpose.

(2) The experts staffing the unit shall be lawyers who have at least five years of professional experience. Their remuneration shall be equal to that of a district court judge.

(3) The chief inspector shall allocate incoming applications to panels consisting of one inspector and two experts, randomly selected, and one of the experts shall be appointed as rapporteur.

(4) If the application does not meet the requirements of section 60b(1) or (2), the applicant shall be given notice to rectify the deficiencies within seven days of receiving the notice.

(5) If the applicant does not rectify the deficiencies, the application and the supporting documents shall be returned.

60d. (1) The results of the examination shall be noted down in a record of findings.

(2) That record shall be signed by the members of the panel and shall contain information about:

1. the time and place where and when it has been drawn up;

2. the applicant;

3. the panel which has examined the application;

4. the case in respect of which it is being drawn up;

5. the overall duration of the proceedings; the period of delay attributable to the competent authority; the period of delay attributable to actions or omissions of the complainant or his legal or procedural representative;

(3) The record of findings shall also set out the view of the panel as to whether the time-limit under section 60a(4) has been met.

60e. The record of findings under section 60d shall be drawn up within four months of receipt of the application or the rectification of its deficiencies, as the case may be. The record, along with the application and all supporting documents, shall be sent immediately to the Minister of Justice.

60f. (1) Based on the findings of the panel, the Minister of Justice or a person authorised by him or her shall reject the application as unfounded if

1. the length of the proceedings has not exceeded a reasonable time;

2. the delay is due to actions or omissions of the applicant or his legal or procedural representative.

(2) If the right of the applicant to have his or her case examined and decided within a reasonable time has been breached, the Minister of Justice or a person authorised by him or her shall fix the amount of compensation in line with the case-law of the European Court of Human Rights and shall propose the conclusion of a settlement with the applicant.

60g. The underlying circumstances shall be examined and the application shall be determined within six months of the application’s receipt.”

Subchapter IV - Payment of Compensation

“60h. Compensation shall be paid on the basis of the concluded settlement.

60i. The funds required for the payment of sums under concluded settlements shall be covered by the republican budget.

60j. (1) Compensation due under this chapter shall be paid out of the budget of the Ministry of Justice.

(2) Each quarter the Minister of Finance shall make available to the budget of the Ministry of Justice funds matching the compensations actually paid under subsection 1 during that quarter through a modification of the budgetary arrangements with the central State budget.

60k. Persons who have received compensation under this chapter may not seek compensation in respect of the same matter by way of civil proceedings.”

27. Section 2b of the SMRDA, which is entitled “Liability of the judicial authorities for breaches of the right to have one’s case examined and decided within a reasonable time” reads as follows:

“1. The State shall be liable for damage caused to individuals or legal persons by breaches of the right to have one’s case examined and decided within a reasonable time, in accordance with Article 6 § 1 of the Convention.

2. Claims under subsection 1 shall be examined in the manner provided by the Code of Civil Procedure [2007], and the court shall take into account the overall duration and the subject matter of the proceedings, their factual and legal complexity, the conduct of the parties and their procedural or legal representatives, the conduct of the other participants in the proceedings and of the competent authorities, as well as other facts which have a bearing on the proper determination of the dispute.

3. The bringing of a claim for damages in respect of pending proceedings shall not preclude the bringing of a fresh claim after the proceedings have come to end.”

28. Section 8(2) provides that individuals or legal persons may bring claims under section 2b(1) in respect of proceedings which have ended only if they have already exhausted the administrative procedure under Chapter 3a of the 2007 Act but that procedure has not resulted in a settlement.

29. In a final judgment (решение № 55 от 23.02.2016 г. на ОС Хасково по гр. д. № 21/2016) the Haskovo Regional Court upheld the lower court’s judgment awarding damages - for excessive length of criminal proceedings against an unknown perpetrator - to the applicant who had voluntarily surrendered his vehicle to the investigating authorities in the context of an investigation. The court held that not only the accused or the victim of the crime were entitled to claim such damages, but also any other person who claimed s/he has suffered damage as a result of excessive length. In another decision of 2015 (решение № 210 от 15.06.2015 г. по гр. д. № 3053/2014 г. на ВКС), the Supreme Court of Cassation also found that the person whose items of property have been seized in the context of criminal proceedings is also entitled to claim damages under section 2b of the SMRDA for excessive length of proceedings.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

30. The applicants complained under Article 2 of the excessive length of the investigation carried out into their relative’s murder, both at the pre-trial and trial stages. The relevant part of Article 2 reads as follows:

“1. Everyone’s right to life shall be protected by law.”

31. The Government contested that argument.

A. Admissibility

32. 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

33. The Government submitted that there had been no breach of their obligation under Article 2 to effectively investigate the death of the applicants’ relative. In particular, the time it took to complete the investigation did not in any way lead to deterioration of the evidence, nor did it impede the establishment of the circumstances of the case. There had been no periods of inactivity and the authorities had made every effort to comply with their duties under the Convention. Following a thorough analysis of the gathered pieces of evidence they had determined the perpetrator and how he had caused the victim’s death, had sentenced him to a period of imprisonment and had awarded damages to the applicants.

34. The applicants considered that the authorities’ obligation under Article 2 to investigate effectively concerned both the pre-trial and trial stages. They emphasised that the requirement of expeditiousness was of particular importance. Thus any unjustified delay in the investigation brought about the impression that the authorities lacked the will to complete it promptly and to punish the offender with the full force of the law. Such delays created the impression of tolerance towards perpetrators of serious crimes and such an impression was incompatible with Article 2 § 1 of the Convention.

2. The Court’s assessment

35. The Court acknowledges that, by safeguarding the right to life, Article 2 ranks as one of the most fundamental provisions in the Convention, enshrining a basic value of the democratic societies making up the Council of Europe. It must therefore subject allegations of breach of this provision to the most careful scrutiny (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 93, ECHR 2005-VII).

36. The Court next notes that the relevant general principles governing the obligations of the State in cases where an individual’s life has been taken not by a State agent but by a third party have been summarised in the cases, inter alia, of Paul and Audrey Edwards v. United Kingdom (no. 46477/99, § 86, ECH 2002-II), Mulini v. Bulgaria (no. 2092/08, §§ 40-43, 20 October 2015), and Angelova and Iliev v. Bulgaria (no. 55523/00, §§ 93-97, 26 July 2007). The essence of these obligations lies in the authorities’ duty to carry out an effective investigation into the circumstances of the incident, that is to say an investigation which is capable of establishing the cause of death and the person responsible for it.

37. The Court has further specified in the recent Grand Chamber judgment in the case of Mustafa Tunç and Fecire Tunç v. Turkey (no. 24014/05, § 225, 14 April 2015) that compliance with the procedural requirements of Article 2 is assessed on the basis of several essential parameters: the adequacy of the investigative measures; the promptness of the investigation; the involvement of the deceased person’s family; and, the independence of the investigation. These elements are inter-related and each of them, taken separately, does not amount to an end in itself. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed.

38. The Court emphasises also that, in so far as an investigation leads to charges being brought before the national courts, it considers that the procedural obligations under Article 2, like those under Article 3, extend to the trial stage of the proceedings. In such cases the proceedings as a whole, including the trial stage, must satisfy the requirements of this provision of the Convention (see, in the context of the prohibition of ill-treatment, Çelik v. Turkey (no. 2), no. 39326/02, § 34, 27 May 2010; W. v. Slovenia, no. 24125/06, § 65, 23 January 2014; and, S.Z. v. Bulgaria, no. 29263/12, § 44, 3 March 2015).

39. In view of the above, the Court considers that while the applicants’ complaint principally concerned the allegedly excessive length of the investigation, which they claimed jeopardised the ability to establish the facts and amplified the possibility of impunity for the perpetrator, the central question to be answered in the instant case is whether the investigation conducted into the death of the applicants’ relative was as a whole effective, according to the requirements under Article 2 listed above.

40. The Court next notes that the authorities arrested a suspect on the night of the victim’s murder and opened criminal proceedings against him on the following day, 3 June 2000. The arrested suspect was indicted two days later, on 5 June 2000. In the course of the investigation the higher prosecutors returned the case several times for a number of shortcomings to be redressed (see paragraphs 9-10 above). This resulted in the investigation lasting for over three years before the case was brought to court (contrast with Mulini, cited above, § 48, with S.Z. v. Bulgaria, cited above, § 49, and with Antonov v. Ukraine, no. 28096/04, § 50, 3 November 2011 - the investigations examined in these cases lasted respectively for over five years, for eight years and for over twelve years). The perpetrator was convicted by the court of first instance in June 2007. When, subsequently, a procedural defect led to the appellate court sending the case back to the investigation stage, this was remedied in less than a month (see paragraphs 14-15 above). The ensuing delay concerned the trial stage and was the result partly of changes in the composition of the bench, which could not be dealt with other means than by restarting the trial (see paragraph 22 above).

41. The Court considers that, in and of itself, the period of fifteen years for the conduct of the investigation and the trial at three levels of jurisdiction was clearly excessive according to the Court’s standards under Article 6. However, the purpose of its analysis under Article 2 is different. As pointed out in Mustafa Tunç and Fecire Tunç, cited above, § 225, the requirement of promptness under Article 2 should not be examined in isolation and irrespective of the other parameters, the combination of which makes an investigation effective (see paragraph 31 above).

42. The Court observes that at the end of the proceedings in the instant case the authorities had achieved the essential purpose pursued with the investigation, given that it had established both the cause of the victim’s death and the person responsible for the murder. The latter had been convicted and sentenced to a term of imprisonment in a final judgment and damages which the second applicant had sought had been awarded to her (see paragraph 18 above). The situation, therefore, has to be contrasted with that observed in a number of other applications before the Court. In those cases, for example Mulini, §§ 44-46, and Antonov, § 51, both cited above, the numerous flaws of each investigation had made it impossible to establish the perpetrator or to shed sufficient light on the facts surrounding the death of the applicants’ relative. Likewise, in the case of Anna Todorova v. Bulgaria (no. 23302/03, §§ 76-78, 24 May 2011), the violation of the procedural limb of Article 2 found by the Court had been the result of excessive length of the criminal proceedings coupled with the fact the authorities had not deployed reasonable efforts to gather the evidence and establish the facts and had thus failed to establish the perpetrator. Similarly, in the case of Aslakhanova and Others v. Russia (nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, §§ 123-125, 18 December 2012), a conclusion of a violation of the procedural aspect of Article 2 was reached by the Court because the criminal proceedings had been plagued by a combination of defects, which included various delays and periods of inactivity along with a failure to take vital investigative steps, belated granting of victim status to the relatives, failure to involve relevant authorities in the proceedings, all of which had led to the inability to establish the perpetrators. Also, in Byrzykowski v. Poland (no. 11562/05, §§ 114 and 116, 27 June 2006) the proceedings had not reached any conclusive decision and the applicant had remained in a protracted state of uncertainty about the proceedings’ outcome; similarly, in Dvořáček and Dvořáčková v. Slovakia (no. 30754/04, § 66 and § 68 last sentence, 28 July 2009), the proceedings aimed at establishing the circumstances and attributing responsibility for conduct which had led to the death of the applicant’s daughter had remained pending for more than twenty-one years, and no decision had been reached. Further, in Angelova and Iliev, cited above, § 101, as a result of deficiencies and delays in the investigation spreading over eleven years, no one had been brought to trial and the proceedings had been terminated as a result of expiry of the limitation period, despite the fact that, early on, the authorities had identified the perpetrator with some degree of certainty. Lastly, the situation in the instant case is to be distinguished from that in S.Z. v. Bulgaria, cited above, where, in addition to an excessive delay in investigating, there had been important omissions on the part of the investigating authorities (ibid., § 50) and considerable psychological stress placed on the applicant as she had been repeatedly made to recall her own ordeal during the proceedings (ibid., § 52) and had had to endure prolonged uncertainty about whether her aggressors would be punished or not.

43. In view of all the above, the Court finds it difficult to call into question the overall adequacy of the investigative steps carried out by the authorities in the present case. It cannot be said either that the lengthy duration of the proceedings caused evidence to deteriorate or perish, to the detriment of the quality of the results of the criminal proceedings. Furthermore, it notes that the applicants have been involved in the proceedings to an extent satisfying the requirement regarding the participation of next of kin under Article 2 (see paragraphs 11, 15 and 16 above), and the independence of the bodies conducting the investigation has not been called into question by the applicants at any point. Therefore, the delay incurred in the investigation and trial, while undeniable and regrettable, cannot be said in and of itself to have interfered with the investigation to an extent impeding its effectiveness.

44. The foregoing considerations are sufficient to enable the Court to conclude that there has accordingly been no violation of Article 2 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 2

45. The applicants complained that they did not have an effective remedy in connection with their complaint about excessive duration of the criminal proceedings into the murder of their relative. They relied on Article 13 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.”

A. Admissibility

46. 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

47. The Government submitted that the requirement of Article 13 for there to be an effective domestic remedy in cases of excessive length of proceedings had been met by the possibility available in Bulgarian law for the applicants to seek related damages, in particular under the Judicial Act and the SMRDA (see paragraphs 25-27 above). They further emphasised that as the Supreme Court of Cassation had awarded compensation which the second applicant had sought for the non-pecuniary damage she suffered as a result of her father’s murder (see paragraph 18 above), this could also be considered relevant and corresponding to the authorities’ obligation to provide redress for the damage caused by the murder.

48. The applicants disagreed that the award of compensation for the non-pecuniary damage suffered by the second applicant was relevant to their complaint. They claimed more specifically that the remedy for excessive length of the criminal proceedings, referred to by the Government in the preceding paragraph, was ineffective, as the right to seek damages under it only belonged to the accused, but not to the private prosecutor or the civil claimant in such proceedings. Furthermore, that remedy concerned complaints under Article 6 § 1.

2. The Court’s assessment

49. The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although the contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95, and Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103).

50. Notwithstanding the terms of Article 13 read literally, the existence of an actual breach of another “substantive” provision of the Convention is not a prerequisite for the application of the Article (see the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 29, § 64; see also the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52). As the Court has held in previous cases, that [the finding of no violation of Article 2] does not preclude the complaint in relation to Article 2 from being an “arguable” one for the purposes of Article 13 (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 118, ECHR 1999-IV). Article 13 guarantees the availability of a remedy at national level to enforce - and hence to allege non-compliance with - the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order (see the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 74, § 205, and the authorities cited there).

51. The Court observes that in the present case the essence of the applicants’ complaint is about the absence of a remedy in relation to their complaint about the excessively long criminal proceedings. The Court already found that the excessive length of the criminal proceedings in the present case did not affect the overall effectiveness of the investigation under the procedural aspect of Article 2 (see paragraph 43 above). It is in this light that the remedy under the SMRDA, suggested by the Government as an effective remedy, will have to be assessed. The applicants, for their part, submitted that the remedy under the SMRDA was one only with respect to Article 6 § 1 of the Convention (see paragraph 48 above, last sentence). It is true that the Court tends to examine claims about length of proceedings under Article 6 § 1 of the Convention. However, considering that the duration of the criminal proceedings into the murder of the applicants’ relative is covered by the procedural obligations of the State under Article 2 to carry out effective investigations in good time, the Court finds that the applicants may be considered as having an arguable complaint under Article 2. They are entitled to have access to a remedy domestically in connection with this complaint. It remains to be seen whether the remedy under the SMRDA is an effective one.

52. In the instant case, the applicants contended that the remedy was ineffective as it was inapplicable to their situation, given that, in the criminal proceedings in question, they had been constituted not as accused but in the different procedural quality of a private prosecutor and a civil claimant. The Court finds that, as follows from the text of the relevant legal provisions (see paragraphs 26-28 above), not only the accused but all parties to finished criminal proceedings, including private prosecutors and civil claimants, were entitled to seek related damages. This has been confirmed by the domestic courts (see paragraph 29 above). In addition, claims for damages for excessive length of proceedings can be introduced pursuant to those provisions either directly before the courts while the proceedings are pending, or first before the administrative authorities and, if not satisfied, before the courts after the proceedings have come to an end. Therefore, these remedies cover situations related to excessive length of both pending and finished proceedings, and the Court has already accepted that the combination of these two remedies could be regarded as effective in that context (see paragraph 25 above). Consequently, the Court finds that it cannot be said that an effective domestic remedy did not exist and was not available to the applicants in relation to their complaint about the length of the criminal proceedings into the murder of their relative.

53. There has accordingly been no violation of Article 13 in conjunction with the procedural limb of Article 2.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been no violation of Article 2 of the Convention;

3. Holds that there has been no violation of Article 13 in conjunction with Article 2 of the Convention.

Done in English, and notified in writing on 12 January 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Angelika Nußberger
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> SARBYANOVA AND PASHALIYSKA v. BULGARIA - 3524/14 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2017] ECHR 31 (12 January 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/31.html Cite as: [2017] ECHR 31, CE:ECHR:2017:0112JUD000352414, ECLI:CE:ECHR:2017:0112JUD000352414