European Court of Human Rights

 

 

 

 

FOURTH SECTION

CASE OF SHIYANKOVA-KASAPSKA v. BULGARIA

(Application no. 10108/16)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

21 December 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Shiyankova-Kasapska v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          Iulia Antoanella Motoc, President,
          Gabriele Kucsko-Stadlmayer,
          Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 10108/16) 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 12 February 2016 by a Bulgarian national, Ms Stefanka Sotirova Shiyankova-Kasapska, born in 1942 and living in Sofia (“the applicant”) represented by Ms R. Stoeva-Siderova, a lawyer practising in Sofia;

the decision to give the Bulgarian Government (“the Government”), represented by their Agent, Ms I. Stancheva-Chinova of the Ministry of Justice, notice of the complaint concerning the length of the criminal proceedings against the applicant’s late husband, and declare the remainder of the application inadmissible;

the parties’ observations;

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 30 November 2021,

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

SUBJECT-MATTER OF THE CASE

1.  Between 1994 and 2007 criminal proceedings were conducted against the applicant’s husband. In a 2007 application to the Court (no. 34441/07), he complained of their length. Following the introduction of special remedies with respect to the length of proceedings in 2012, in September 2013 the Court declared the complaint inadmissible for non-exhaustion of domestic remedies. In October 2013 the applicant informed the Court that her husband had died in late 2012 and that she was his only heir, and stated that she wished to pursue his application. She was advised that this was impossible as the case was no longer pending before the Court. In November 2013 she requested compensation for the length of the proceedings against her late husband under the new domestic administrative remedy. In August 2015 her request was refused on the ground that she had not been party to those proceedings, or an applicant before the Court, which was a prerequisite for standing to seek such compensation. She did not apply for judicial review of that decision.

2.  She complained under Article 6 § 1 of the Convention of the length of the criminal proceedings against her late husband.

THE COURT’S ASSESSMENT

I.        ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

A.    Admissibility

1.     Victim status

3.  The usual position is that the next-of-kin cannot complain to the Court of the length of proceedings to which the deceased was party (see Makri and Others v. Greece (dec.), no. 5977/03, 24 March 2005; Biç and Others v. Turkey, no. 55955/00, § 22, 2 February 2006; and Bezzina Wettinger and Others v. Malta, no. 15091/06, § 68, 8 April 2008). But if the direct victim of an alleged breach of the reasonable-time requirement of Article 6 § 1 of the Convention has applied to the Court before dying, and the next-of-kin simply wish to pursue that application, they can do so (see, among other authorities, X v. France, 31 March 1992, § 26, Series A no. 234-C; Ernestina Zullo v. Italy [GC], no. 64897/01, §§ 36-37, 29 March 2006; and Vasil Angelov v. Bulgaria, no. 61662/00, § 15, 12 April 2007). This applies in particular to surviving spouses (see Beljanski v. France (dec.), no. 44070/98, 5 July 2001).

4.  It is true that the applicant complained to the Court about the length of the criminal proceedings against her husband after his death. But she did not unexpectedly raise the matter herself. Her husband had already made such a complaint, and it was rejected solely because, following pilot judgments (see Finger v. Bulgaria, no. 37346/05, 10 May 2011, and Dimitrov and Hamanov v. Bulgaria, nos. 48059/06 and 2708/09, 10 May 2011), Bulgaria put in place special remedies in respect of the length of proceedings, open also to persons who had already applied to the Court, and because the Court found those remedies effective, including with respect to such persons (see Balakchiev and Others v. Bulgaria (dec.), no. 65187/10, §§ 53-83, 18 June 2013, and Valcheva and Abrashev v. Bulgaria (dec.), nos. 6194/11 and 34887/11, §§ 92-122, 18 June 2013). For such persons, those remedies thus amounted, as it were, to a continuation of the proceedings before the Court. This is reflected even in the way in which such situations are described in the Court’s case-law: that the cases are “repatriated” to the respondent State (see Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al, § 163, ECHR 2017 (extracts)). It matters little, then, that the applicant did not attempt to pursue her late husband’s application in his stead while it was still pending before the Court. Even if she had done so, the complaint about the length of the proceedings against him would have still been rejected for non-exhaustion of domestic remedies and thus “repatriated” to Bulgaria, on the assumption that the applicant, as next-of-kin, would be able successfully to use the new remedies. Her attempt to use the administrative remedy (a compensation request under sections 60a et seq. of the Judiciary Act 2007, read in conjunction with the relevant transitional provisions) was met with a refusal, and she then applied to the Court. In reality, therefore, her application is not a fresh one, but a continuation of her husband’s original application - part of the same set of interconnected proceedings.

5.  The applicant is thus in effect in a similar position as a next-of-kin wishing to pursue an already pending application, and it can be accepted that, in this unusual situation, she has standing under Article 34 of the Convention to complain of the length of the proceedings against her late husband. The Government’s objection that she cannot claim to be a victim of a violation must therefore be rejected.

2.     “Substantially the same”

6.  After the rejection of her husband’s application in 2013, the applicant attempted the newly introduced remedy with respect to length of proceedings. This is “relevant new information” within the meaning of Article 35 § 2 (b) of the Convention (see Tsonev v. Bulgaria (dec.), no. 9662/13, § 67, 30 May 2017, with further references). The Government’s objection that her complaint is “substantially the same” as the one raised by her husband must therefore be rejected.

3.     Exhaustion of domestic remedies

7.  It is true that when the applicant’s compensation request was refused based on her lack of standing, she could have sought judicial review. But in the light of two decisions by the Supreme Administrative Court, given in March and June 2017, that the heirs of a party to the impugned proceedings have no standing to seek compensation under the 2007 Act (see опр. № 3762 от 28.03.2017 г. по адм. д. № 2322/2017 г., ВАС, VI о., and опр. № 7849 от 21.06.2017 г. по адм. д. № 6040/2017 г., ВАС, VI о.), it is plain that such a claim would have failed. The Government’s objection of non-exhaustion of domestic remedies must therefore be rejected.

4.     Compliance with the six-month time-limit

8.  When the applicant requested compensation under the 2007 Act in late 2013, the question whether a next-of-kin of the direct victim could do so was still unsettled. It was finally elucidated in 2017 with the above-mentioned rulings of the Supreme Administrative Court. The applicant cannot be faulted for attempting what seemed at the time a remedy capable of redressing the grievance which she has brought before the Court (see, mutatis mutandis, Yordan Ivanov and Others v. Bulgaria, no. 70502/13, § 31, 11 January 2018). She applied to the Court five months and twenty-nine days after her compensation request was refused. The Government’s objection that her application was lodged out of the six-month time-limit under Article 35 § 1 of the Convention must therefore be rejected.

5.     Conclusion about admissibility

9.  The complaint is not manifestly ill-founded or inadmissible on other grounds. It must hence be declared admissible.

B.    Merits

10.  The applicant’s husband was charged in February 1994 and finally convicted in March 2007. The relevant period is hence thirteen years and about a month, for a preliminary investigation and three levels of court.

11.  The relevant principles for assessing the length of proceedings are settled (see, among many other authorities, Finger, §§ 93-96, and Dimitrov and Hamanov, §§ 70-73, both cited above).

12.  In 1994-97 the prosecuting authorities referred the case against the applicant’s husband back to the investigator ten times. Then, in May 1998, the first-instance court referred the case back to the prosecuting authorities owing to defects in the charging sheet. It took the prosecuting authorities more than nine months, until February-March 1999, to correct that. The subsequent conviction, handed down in September 1999, was quashed on appeal because the applicant’s husband had not been duly summoned for his trial and had been wrongly tried in his absence. The ensuing re-trial ended in September 2001 with yet another remittal to the prosecuting authorities with instructions to correct procedural mistakes. After a second re-trial in 2002-03 and appeal proceedings in 2003-04, a further appeal (on points of law) was allowed by the Supreme Court of Cassation in late 2005 on the ground that the appellate court’s judgment convicting the applicant’s husband had been tainted by formal irregularities, and the appeal proceedings had to be fully repeated in 2006. Although throughout all that time some hearings had to be adjourned owing to the accused’s or their counsel’s impossibility to appear, the above account shows that the overall length of the proceedings was largely attributable to failures by the investigating and prosecuting authorities and the courts to organise them properly rather than to the complexity of the case or to the conduct of the applicant’s husband or his co-accused.

13.  There has therefore been a breach of Article 6 § 1 of the Convention.

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  The applicant claimed 4,900 euros (EUR) in respect of non-pecuniary damage. The Government contested the claim.

15.  The Court, ruling in equity, awards the applicant EUR 2,100, plus any tax that may be chargeable.

16.  It considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank plus three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint about the length of the criminal proceedings against the applicant’s late husband admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention in that respect;

3.      Holds

(a)  that the respondent State is to pay the applicant within three months, EUR 2,100 (two thousand one hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, this sum to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on that sum at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

             Ilse Freiwirth                                              Iulia Antoanella Motoc
          Deputy Registrar                                                      President