KOTSEV AND ERMENKOVA v. BULGARIA - 33864/03 [2012] ECHR 822 (10 May 2012)

JUDGMENT STRASBOURG May 2012 This judgment is final but it may be subject to editorial revision. In the case of Kotsev and Ermenkova 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 17 April 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 33864/03) 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 two Bulgarian nationals, Mr Valentin Konstantinov Kotsev and Ms Yarmila Anguelova Ermenkova (“the applicants”), on 13 October 2003. On 20 November 2005 Mr Kotsev died. In a letter of 1 August 2006 his widow, Mrs Diana Yordanova Panova Kotseva, expressed her wish to pursue the proceedings on his behalf together with Mr Kotsev’s minor son, Mr Vladislav Valentinov Kotsev. The applicants were represented by Mr Y. M. Grozev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Dimova, of the Ministry of Justice. On 9 October 2008 the application was communicated to the Government. It was later transferred to the Fourth Section of the Court, following the re-composition of Court’s sections on 1 February 2011. In accordance with Protocol No. 14, the application was assigned to a Committee of three Judges. THE FACTS I. THE CIRCUMSTANCES OF THE CASE The applicants were born in 1965 and 1955 respectively. The second applicant is still living in Sofia. A. Relevant background information The applicants, together with the parents of a Mr B. I., were the co owners of a building in Sofia and the plot of land on which it stood. In 1992 B. I.’s parents sold him one quarter of the property. In 1993 B. I. began constructing a building adjoining the original one. On five subsequent occasions, in March and July 1996, March and June 1999, and June 2005, the authorities ordered the halting of the construction or demolition of the building. B. I. challenged all of these orders by way of judicial review. Two of the cases, which the applicants joined as interested parties, are still pending (see below). B. The proceedings brought in 1996 . On 21 March 1996 the mayor, noting that the building erected by B. I. could not be legalised, ordered its demolition. In April 1996 B. I. sought judicial review of this order by the Sofia City Court. . On 23 March 1999 it gave leave to the applicants, as well as to B. I.’s wife and brother, to join the proceedings. . A total of at least fifteen hearings were held between 8 June 1999 and 26 October 2007 in intervals ranging between four and eight months. Five hearings, listed for 8 June and 26 October 1999 and 25 February, 6 June and 21 November 2000, failed to take place because various parties had not been duly summoned. At least six hearings between January 2005 and October 2007 were adjourned on account of the need to summon a newly added party at her address in Toronto, Canada, by means of a letter rogatory. . The Sofia City Court rendered a judgment on an unspecified date in 2010. According to the latest correspondence received from the applicants in October 2010 the proceedings at that time were pending before the second level of court. C. The proceedings brought in 1999 On 16 June 1999 the building control authorities, alerted by the applicants, ordered B. I. to pull down the building which he had erected. . On 13 July 1999 B. I. and his wife sought judicial review of this order by the Sofia City Court. At the first hearing, held on 26 November 1999, the applicants intervened in the proceedings as interested parties. . Some twenty hearings were held until February 2006 scheduled at intervals ranging from two to nine months. At least four hearings were adjourned on account of improper summoning of the parties, including of B. I’s brother who lived in Canada. Following the latter’s death in 2002 at least six hearings were adjourned on account of a failure to summon his widow, who also lived in Canada, by a letter rogatory. . According to the latest correspondence received from the applicants in October 2010 the proceedings were still pending before the Sofia City Court. D. The complaints lodged by the applicants On three occasions – on 23 November 2000, on 18 December 2002 and on an unspecified date in 2007 the applicants lodged complaints with the Sofia City Court and the Supreme Judicial Council relating, inter alia , to the slow progress of the proceedings to which they were parties. In reply to their 2007 complaint the Ministry of Justice informed the applicants that there were no delays attributable to the authorities. . In 2002 the Ministry of Justice informed the local authorities which were a party to the proceedings involving the applicants that following an inspection carried out by a representative of the Inspectorate with the Supreme Judicial Council it had been established that a delay had indeed occurred and that it had been due to the abuse of process by B. I. and the high case-load of the Sofia City Court. The letter also stated that the Inspectorate had written to the Chairman of the Sofia City Court about the delays. II. RELEVANT DOMESTIC LAW The relevant statutory provisions concerning the “complaint about delays” are summarised in the Court’s judgment Finger v. Bulgaria (no. 37346/05, § 43, 10 May 2011). THE LAW I. PRELIMINARY OBSERVATION . The first applicant died on 20 November 2005, while the case was pending before the Court (see paragraph 1 above). His wife and son wish to pursue the application. It has not been disputed that they are entitled to do so on his behalf and the Court sees no reason to hold otherwise (see Toteva v. Bulgaria , no. 42027/98, § 45, 19 May 2004). For convenience this judgment will continue to refer to Mr Valentin Konstantinov Kotsev as the “first applicant” although his heirs are today to be regarded as having that status (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 1, 19 February 2009). II. ALLEGED VIOLATIONS OF THE CONVENTION The applicants complained that the length of the two sets of proceedings to which they had been parties had breached their rights protected under Articles 6 § 1 and 13 and Article 1 of Protocol No. 1 to the Convention. . The relevant parts of Article 6 § 1 read as follows: “ 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 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.” Article 1 of Protocol No. 1 reads as follows: “ Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Government stated that the applicants had failed to exhaust domestic remedies in that they had not filed a “complaint about delays” under Article 217a of the 1952 Code of Civil Procedure. Furthermore, the delays in the proceedings were not attributable to the authorities. A. Admissibility The Court considers that the question of exhaustion of domestic remedies is closely linked with the substance of the applicants’ complaint under Article 13 of the Convention (see paragraph 29 below). It should therefore be joined to the merits (see Finger , cited above, § 64). It further notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Nor are they inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 6 § 1 . The applicants complained that the length of the two sets of proceedings to which they had been parties had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. It is not disputed that although the applicants were neither plaintiffs nor defendants in the proceedings at issue, those proceedings were decisive for the determination of their civil rights in relation to their property. It follows that Article 6 § 1 applies. The period to be taken into consideration lasted thirteen years for two levels of jurisdiction in respect of the proceedings instituted in 1996 and twelve years and five months for one level of jurisdiction in respect of the proceedings instituted in 1999 (see paragraphs 8 and 12 above). . 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 applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; the above-cited Finger judgment, § 94). . 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 Frydlender , Finger , both cited above). . 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. While it is true that the authorities cannot be held responsible for the execution of letters rogatory in Canada, that fact alone cannot explain the overall length of the two sets of proceedings. The cases were not particularly complex and the authorities were responsible for a large part of the delays as a result of improper summoning of the parties and on account of the lengthy intervals between hearings (see paragraph 9 and 13 above). Having regard to its case-law on the subject, the Court considers that in the instant case the length of the two sets of proceedings to which the applicants were parties was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1. 2. Article 13 The applicants further complained under Article 13 that they did not have effective remedies in respect of the excessive length of proceedings. . 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 Finger, cited above, § 83). . It notes that the applicants lodged at least three complaints (see paragraph 15 above) which, albeit not referring to Article 217a of the 1952 Code of Civil Procedure, related, inter alia , to the delays in the two sets of proceedings at issue. However, having regard to the recently adopted pilot judgment against Bulgaria in the above-cited Finger case, it is not necessary to determine whether these complaints could be considered as such about delays. In Finger , the Court examined the availability of domestic remedies in respect of the length of civil proceedings in Bulgaria (ibid., §§ 82-91), including the effectiveness of the “complaint about delays” set out by the 1952 Code of Civil Procedure, 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. . The Court therefore dismisses the Government’s objection about exhaustion of domestic remedies and finds that there has been a violation of Article 13 of the Convention. 3. Article 1 of Protocol No. 1 The applicants further complained that by not enforcing within a reasonable time the decisions ordering B. I. to stop construction and demolish the erected building, the authorities failed in their duty to secure to them the peaceful enjoyment of their possessions. They relied on Article 1 of Protocol No. 1 to the Convention. The Government contested that argument. Having regard to its findings under Article 6 § 1 (see paragraph 28 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy , 19 February 1991, § 23, Series A no. 194-C; Kambourov v. Bulgaria , no. 55350/00, § 73, 14 February 2008; and Maria Ivanova v. Bulgaria , no. 10905/04, § 28, 18 March 2010). 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 first applicant claimed 14,000 euros (EUR) in respect of non pecuniary damage. The second applicant claimed 7,000 euros (EUR) in respect of non-pecuniary damage. The Government contested these claims. The Court considers that the applicants must have sustained non pecuniary damage. Considering what was at stake for the applicants and ruling in equity, it awards each of the applicants EUR 7,000. B. Costs and expenses The applicants also claimed EUR 1,900 for the costs and expenses incurred before the Court. In support of this claim they presented a contract for legal representation and a time sheet. They requested that any award the Court made under this head be transferred directly into the bank account of their lawyer. The Government contested the claim. Regard being had to the documents in its possession and to its case law, the Court considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court. That amount is to be paid directly to the applicants’ 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 Joins the Government’s objection of non-exhaustion of domestic remedies to the merits and declares the application admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Dismisses the Government’s objection of non-exhaustion of domestic remedies and holds that there has been a violation of Article 13 of the Convention; Holds that there is no need to examine separately the complaint under Article 1 of Protocol No. 1; Holds (a) that the respondent State is to pay, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable to the first applicant and 7,000 (seven thousand euros), plus any tax that may be chargeable to the second applicant, in respect of non-pecuniary damage; (ii) EUR 1,000 (one thousand euros) jointly to the applicants, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid directly into the bank account of the applicants’ 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 applicants’ claim for just satisfaction. Done in English, and notified in writing on 10 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş Aracı Päivi Hirvelä Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII