ITEMID: 001-104698
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF FINGER v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Preliminary objection partially joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - award
JUDGES: Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 6. The applicant was born in 1946 and lives predominantly in Germany.
7. Upon the death of her parents, the applicant, together with her brother, B.R., inherited a house and plot of land in Sofia, a plot of land in the village of Dolni Pasarel, and two fields.
8. On 9 July 1996 B.R. brought a claim against the applicant with the Sofia District Court (Софийски районен съд), seeking the division of the house and of the two plots.
9. At the first hearing, held on 10 December 1996, the applicant requested that the two fields be included in the division as well. The court allowed the request and adjourned the case, instructing the parties to submit evidence, including plans of the two plots.
10. A hearing listed for 6 March 1997 was adjourned because the plans, which had to be provided by the municipal authorities, were not ready, and another hearing, scheduled for 6 May 1997, failed to take place because counsel for B.R. was absent.
11. On 23 September 1997 the court asked an expert to determine the value of the properties and say whether it was possible to divide them up. A hearing listed for 20 January 1998 did not take place because the expert report was not ready. The report was apparently never drawn up.
12. On 19 March 1998 the court, on a request by the parties, stayed the proceedings to allow them to settle the case. However, as they could not reach an agreement, the proceedings resumed on an unspecified later date in 1998.
13. Two hearings, fixed for 29 October 1998 and 2 February 1999, did not take place because the applicant was not duly summoned and was absent. A hearing was held despite the applicant’s absence on 16 March 1999.
14. In a judgment of 15 April 1999 the Sofia District Court allowed the division of the properties into two equal shares. As neither party appealed, the judgment became final and the court proceeded with the second phase of the proceedings.
15. At a hearing held on 19 October 1999 the applicant requested that the house be allotted exclusively to her. B.R. requested the appointment of an expert to answer the same questions as the one appointed during the first phase of the proceedings.
16. A hearing listed for 18 November 1999 was adjourned because the expert report was not ready.
17. At a hearing held on 16 December 1999 the court admitted the report in evidence. Its conclusion was that none of the properties was divisible. The parties did not contest that conclusion.
18. In a judgment of 10 January 2000 the Sofia District Court allotted the house and plot of land in Sofia to the applicant, and the plot in Dolni Pasarel and the two fields to B.R.
19. B.R. appealed, requesting, among other things, an expert report on the value of the properties and on the possibilities of their being divided up.
20. The first hearing before the Sofia City Court (Софийски градски съд) was held on 6 July 2000. The court refused to order the expert report requested by B.R., and adjourned the case to allow the parties to call witnesses and present additional evidence.
21. At the next hearing, held on 25 October 2000, the court heard two witnesses. It agreed to order the expert report sought by B.R.
22. Two hearings, listed for 31 January and 3 May 2001, were adjourned because the report had not been drawn up.
23. The report, which concluded that the house in Sofia was divisible but that the plot in Dolni Pasarel was indivisible, was ready on 23 October 2001. It was admitted in evidence at a hearing held on 31 October 2001. The applicant objected to the report’s conclusions, and requested a second expert report, to be drawn up by three experts. B.R. requested an expert report on the possibility of dividing up one of the fields.
24. At the next hearing, held on 20 March 2002, B.R. presented a blueprint, approved by the technical services of the municipality, for the division of the house. The court admitted in evidence the expert report on the divisibility of the field, and, on a request by the applicant, ordered an expert report on the current value of the plot in Dolni Pasarel.
25. A hearing listed for 6 November 2002 was adjourned because the expert reports were not ready. The court asked the expert assessing the value of the plot in Dolni Pasarel to determine the value of the two fields as well.
26. At a hearing held on 29 May 2003 the court admitted in evidence the additional expert report relating to the house, which also concluded that it was divisible, and the expert report concerning the value of the plot in Dolni Pasarel and the two fields. The applicant disputed the conclusions of the former, and requested a fresh expert report on the divisibility of the house. The court allowed her request, notwithstanding the objection of B.R.
27. At a hearing held on 12 February 2004 counsel for the applicant stated, without further explanation, that she wished to withdraw the request for an expert report on the divisibility of the house. It seems that the withdrawal was based on the fact that the applicant had failed to pay the required fees for the report to be drawn up.
28. The last hearing was held on 29 April 2004. The court presented to the parties a draft division proposal. The applicant objected to it, arguing, among other things, that the house was indivisible. She requested a further expert report on that point. The court refused the request, observing that the applicant had earlier been allowed to seek such a report, but had failed to pay the required deposit. Evidentiary requests at such a late stage were possible only if truly indispensable for the proper determination of the case.
29. In a judgment of 10 May 2004 the Sofia City Court set the lower court’s judgment aside. It decided, among other things, to disregard the initial expert reports on the divisibility of the house and to rely on the last one, observing that it was objective and that the three experts who had drawn it up were unanimous. It rejected the applicant’s objections against that report, noting, among other things, that she had been allowed to request a further expert report but had failed to pursue that possibility. It found that the house was divisible, because it was technically possible to do so and there was a blueprint approved by the municipal administration. It further found that the division could be effected by drawing lots without great inconvenience. Accordingly, the court divided the properties into two lots, the first comprising the first storey of the house in Sofia and the plot in Dolni Pasarel, and the second comprising the second storey of the house and the two fields.
30. On 20 July 2004 the applicant appealed on points of law. On 22 July 2004 the Sofia City Court instructed her to specify her grievances. She did so on 21 September 2004, arguing that the court had erred in finding that the house could be divided. The expert report on which it had relied had not taken into account the applicable construction rules. The court had also erred in refusing the applicant’s request for a further expert report; she had failed to pay the required deposit because she had been out of the country at the time.
31. The Supreme Court of Cassation (Върховен касационен съд) held a hearing on 21 February 2005, and in a final judgment of 7 April 2005 upheld the lower court’s judgment. It noted that counsel for the applicant had withdrawn the request for a further expert report. The applicant could not therefore validly complain that she had been denied the opportunity to adduce evidence concerning the divisibility of the house. Her objections concerning the plan for the division had been discussed and rejected by the lower court. The court went on to observe that the experts and the municipal administration had found that the division could be effected without too much inconvenience and without infringing the applicable construction regulations. Therefore, the lower court’s conclusion that the house was divisible was not contrary to the substantive law.
32. The proceedings then resumed before the Sofia District Court. At a hearing held on 21 June 2005 the applicant and B.R. drew lots to determine which of the divided properties should go to whom. B.R. received the first storey of the house in Sofia and the plot in Dolni Pasarel, and the applicant received the second storey of the house and the two fields. The court confirmed the division, ordered the applicant to pay B.R. a small sum to equalise their respective shares, and terminated the proceedings.
33. On 29 June 2005 the applicant appealed against the proposed division. On 4 July 2005 the Sofia District Court instructed her to specify her grievances and pay the requisite fee. The court’s instructions were served on the applicant’s counsel on 7 September 2005. On 14 September 2005 he requested an extension of time, citing the applicant’s being abroad. On 13 October 2005 the court granted an extension until 15 October 2005.
34. As the applicant did not comply with the court’s instructions, on 25 January 2006 the court refused to forward the appeal to the higher court for examination. Despite visits to the applicant’s home on 3, 8 and 17 February, 1 March, 16, 20 and 27 April, and 1 May 2006, the court’s process servers were not able to find the applicant to notify her of the court’s ruling. On 22 May 2006 they served notice of the ruling on the applicant’s counsel. As he did not seek to appeal against the ruling, it became final on 30 May 2006.
35. Under Article 130 of the Constitution, the Supreme Judicial Council is the principal body concerned with the administration of the judiciary (which, in Bulgaria, comprises the courts, the prosecutor’s offices and the investigation services). It has the power to, inter alia, appoint, promote, demote and dismiss judges, prosecutors and investigators (Article 129 § 1 and Article 130 § 6 (1)) and impose the harshest disciplinary punishments (Article 130 § 6 (2)).
36. A 2007 amendment to the Constitution added a new Article 132a, which envisaged the creation of an Inspectorate attached to the Supreme Judicial Council. The Inspectorate, which consists of a chief inspector and ten inspectors, is tasked with checking the work of the judiciary without infringing the independence of judges, prosecutors or investigators (Article 132a § 6). It can act either of its own motion or pursuant to reports by private individuals, legal persons or State authorities (Article 132a § 7). It has the power to refer matters to the appropriate authorities, or make suggestions or reports to them (Article 132a § 9).
37. Section 7(1) of the 2007 Judiciary Act provides that “[e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal”.
38. Sections 4060 of the Act govern the structure, powers and operations of the Inspectorate attached to the Supreme Judicial Council (see paragraph 36 above). One of the Inspectorate’s tasks is to check the processing of cases and their completion within the prescribed time-limits (section 54(1)(2)). It carries out planned annual checks or unplanned checks prompted by reports (section 56(1)). After carrying out a check of the work of an individual judge, prosecutor or investigator, the Inspectorate draws up a report containing its findings and recommendations, if any (section 58(2)). That report is presented to the judge, prosecutor or investigator concerned and to his or her hierarchical superior (section 58(3)). The hierarchical superior must then, within the time set in the report, inform the chief inspector about the implementation of the recommendations (section 58(4)).
39. At the relevant time divisionofproperty proceedings were governed by Articles 27893a of the 1952 Code of Civil Procedure. They consisted of two phases.
40. During the first phase the court had to ascertain the number and the identity of the coowners and of the items of common property, as well as the share to which each coowner was entitled (Article 282 § 1).
41. During the second phase the court carried out the division, which could be done either by specifying which item of property went to which coowner (Articles 287 and 289), or by auctioning an undividable item of property and distributing the proceeds among the coowners (Article 288 § 1). If one of the divided properties was a flat inhabited by a coowner who did not have another dwelling, he or she could request the flat to be allotted exclusively to him or her in return for reimbursing the other coowners their shares in it (Article 288 § 3).
42. In property division proceedings the court could also have cognisance of certain ancillary matters, such as determination of parentage and validity of wills (Article 281 § 1), reimbursement of expenses incurred in relation to the divided property and indemnity for improvements to the property by one of the coowners (Article 286 § 1), use of the property during the proceedings and indemnity for such use (Article 282 § 2).
43. Article 217a of the Code was added in July 1999. It provided as follows:
“1. Each party may file a complaint about delays at every stage of the proceedings, including after oral argument, when the examination of the case, the delivery of judgment or the transmitting of an appeal against judgment is unduly delayed.
2. The complaint about delays shall be filed directly with the higher court. No copies shall be served on the other party, and no State fee shall be due. The filing of a complaint about delays shall not be limited in time.
3. The president of the court with which the complaint has been filed shall request the case file and shall immediately examine the complaint in private. His instructions as to the steps to be carried out by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately, together with the case file, to the court against which the complaint has been filed.
4. Should he determine that there has been [undue delay], the president of the higher court may propose that the disciplinary panel of the Supreme Judicial Council take disciplinary action.”
44. The 2007 Code of Civil Procedure came into force on 1 March 2008, superseding the 1952 Code of Civil Procedure.
45. Article 13 of the new Code, entitled “Examination and disposal of cases within a reasonable time”, provides as follows:
“The court shall examine and decide cases within a reasonable time.”
46. The new Code contains more detailed provisions in relation to the admission of evidence. It provides that the claimant must set out his or her evidence in the statement of claim, and enclose the written evidence with it (Article 127 § 2). The defendant must do the same in his or her reply to the statement of claim (Article 131 § 3). He or she cannot do so at a later stage, unless his or her failure was due to special circumstances (Article 133). As a rule, the court should rule on the evidential requests when setting the case down for hearing (Article 140 § 1). At the first hearing, the parties may supplement their evidential requests if that has been made necessary by the other party’s assertions (Article 143 § 2). The court must provide them with guidance (Article 145 §§ 1 and 2 and Article 146 § 2). After that, fresh evidence may be admitted only if the party had no means of adducing it earlier, or if it relates to newly arisen circumstances (Article 147 §§ 1 and 2). Evidential requests in relation to facts which are irrelevant for the outcome of the case and untimely evidential requests are to be rejected (Article 159 § 1).
47. In their evidential requests, the parties must specify the facts that they are seeking to prove and the manner in which they intend to do so (Article 156 § 1). Thus, when calling a witness, a party must say in relation to which facts he or she will be heard (Article 156 § 2). If it calls several witnesses in relation to one fact, the court may admit only some of them, and hear the rest only if the initial ones fail to establish the fact in issue (Article 159 § 2). When requesting the ordering of an expert report, a party must specify the area in which the expert(s) should possess special knowledge, as well as the subject matter and the task of the expert report (Article 156 § 4).
48. In appeal proceedings, the parties may not rely on fresh facts or adduce evidence that they could have adduced during the firstinstance proceedings (Article 266 § 1). Again in appeal proceedings, fresh evidence may be admitted only if the party had no means of adducing it earlier (Article 266 § 2 (1)), if it relates to newly arisen circumstances (Article 266 § 2 (2)), or if it has not been admitted by the firstinstance court in breach of the rules of procedure (Article 266 § 3).
49. Articles 25557 of the new Code, which superseded Article 217a of the 1952 Code, were inspired by Austrian law (Иванова, Р., Пунев, Б., Чернев, С., Коментар на новия Граждански процесуален кодекс, София, 2008 г., стр. 375) and provide as follows:
“1. Where the court does not take a procedural step in due time, a party may, at any stage of the proceedings, make a request for an appropriate timelimit to be fixed for that procedural step to be taken.
2. The request shall be filed with that court for onward transmission to the higher court. The court examining the case shall immediately forward the request to the higher court together with its opinion.”
“1. If the court immediately takes all steps mentioned in the request, and notifies the party accordingly, the request shall be considered as withdrawn.
2. If within one week of receiving the notification mentioned in the previous subparagraph the party states that it maintains its request, the request shall be forwarded to the higher court for examination.”
“1. The request for fixing of a timelimit shall be examined by a judge of the higher court within one week of its receipt.
2. If that court finds that there has been undue delay, it shall fix a timelimit for the procedural step in question to be taken. Should the court find otherwise, it shall refuse the request. No appeal shall lie against its decision.”
50. These provisions seem to apply to the administrative courts as well, by virtue of Article 144 of the 2006 Code of Administrative Procedure, which provides that all matters not specifically dealt with are governed by the Code of Civil Procedure. In practice, the Supreme Administrative Court does examine requests to fix timelimits (опр. № 6710 от 22 май 2009 г. по адм. д. № 4561/2009 г., ВАС, петчленен св).
51. The Government provided eight decisions given by the Supreme Court of Cassation, the Supreme Administrative Court and the Veliko Tarnovo Court of Appeal in connection with such requests. Only two of those decisions fixed time-limits in which the lower courts were instructed to take certain procedural steps.
52. According to statistical information provided by the Government, in 2009 the regional courts received 145 requests to fix timelimits because of delays. All but ten of them were dealt with in less than three months. In 2009 the courts of appeal received 78 such requests. All of them were dealt with in less than three months (the statutory timelimit is one week – see paragraph 49 above). The Government did not provide information about the impact the examination of those requests had had on the speed of the proceedings in connection with which they had been made.
53. Section 1 of the 1988 State Responsibility for Damage Caused to Citizens Act (which was renamed “State and Municipalities Responsibility for Damage Act” on 12 July 2006 – “the 1988 Act”), as in force since July 2006, provides as follows:
“The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.”
54. Section 2(1) of the Act, as originally enacted, provided for liability of the investigating and the prosecuting authorities and the courts in six situations: unlawful detention; bringing of charges or conviction, if the proceedings were later abandoned or if the conviction was overturned; coercive medical treatment or coercive measures imposed by a court, if its decision was later quashed as being unlawful; and serving of a sentence over and above its prescribed duration. A new point, added in March 2009, provides that the State is liable for any damage the investigating and prosecuting authorities or the courts cause to individuals through the unlawful use of special surveillance means.
55. According to some legal commentators, the remedies under Article 217a of the 1952 Code and under Articles 25557 of the 2007 Code were/are not available in respect of proceedings before the Supreme Court of Cassation, because there is no “higher court” (Сталев, Ж., Българско гражданско процесуално право, София, 2006 г., стр. 106, Корнезов, Л., Гражданско съдопроизводство, Том първи, София, 2009 г., стр. 682). Other commentators maintain that the remedy under Articles 25557 of the 2007 Code, could, in view of its specificities, be applied to cases pending before the Supreme Court of Cassation because its essential purpose is not to apprise the higher court of delays by the lower court but to prompt the latter to expedite the examination of the case (Иванова, Р., Пунев, Б., Чернев, С., Коментар на новия Граждански процесуален кодекс, София, 2008 г., стр. 379).
56. On 2 December 2010, during its 1100th meeting, the Committee of Ministers of the Council of Europe adopted an Interim Resolution on the execution of the judgments of the European Court of Human Rights concerning the excessive length of judicial proceedings in eightyfour cases against Bulgaria (CM/ResDH (2010) 223). The resolution reads:
“The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”),
Having regard to the number of judgments of the European Court of Human Rights (“the Court”) finding Bulgaria in violation of Article 6, paragraph 1 and Article 13 of the Convention on account of the excessive length of judicial proceedings and the absence of an effective remedy in this regard (see Appendix III to this resolution);
Recalling that excessive delays in the administration of justice constitute a serious danger, in particular to respect for the rule of law and access to justice;
Recalling also its Recommendation Rec(2010)3 to member states on the need to improve the effectiveness of domestic remedies for excessive length of proceedings, and emphasising the importance of this question where judgments reveal structural problems likely to give rise to a large number of further similar violations of the Convention;
Having examined the information supplied by the Bulgarian authorities concerning the measures taken or envisaged in response to those judgments (see Appendix I), including the statistical data on the length of judicial procedures (see Appendix II);
Assessment of the Committee of Ministers
I. Individual measures
Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found (restitutio in integrum), in particular the acceleration, as far as possible, of proceedings which were still pending after the findings of violations by the Court;
Noting however with concern that the domestic proceedings in seven cases are still pending before the domestic courts and that the authorities have been unable to provide information about two other cases (see Appendix I);
CALLED UPON the Bulgarian authorities to provide for acceleration as much as possible of the proceedings pending in these cases, in order to bring them to an end as soon as possible, and to inform it of the progress of proceedings in the two afore-mentioned cases;
II. General measures
1) Measures aimed at reducing the length of judicial proceedings
Noting the numerous violations found by the Court on account of the excessive length of civil and criminal proceedings in Bulgaria, revealing certain structural problems in the administration of justice at the time of the relevant facts;
Welcoming the numerous legislative reforms adopted by the authorities in order to remedy these structural problems and in particular the adoption of the new codes of criminal and civil procedure (see Appendix I);
Welcoming likewise the other measures taken by the authorities to increase the efficiency of the judicial system, and in particular the establishment of assessment and monitoring mechanisms, including the collection and analysis of statistical data;
Noting that the 2009 statistics show a reduction in the backlog in the Bulgarian courts as a whole, and an increase in the number of cases dealt with in the space of 3 months (see Appendix II);
Noting however that, according to the statistics, the backlog in the district courts located in regional centres has increased slightly by reason of the substantial rise in the number of cases registered, and that those courts were responsible for examining half the cases pending in the country in 2009 (see Appendix II);
Noting also that the legislative reforms introduced between 2006 and 2010 have not yet produced their full impact on the length of proceedings and that a longer period of time is needed before the effectiveness of all the measures taken can be fully and completely assessed;
ENCOURAGED the Bulgarian authorities to pursue their efforts in following up the reforms introduced, in order to consolidate their positive effects, in particular as regards the situation in the district courts located in regional centres;
CALLED ON the authorities to continue to monitor the effects of these reforms as it proceeds, with a view to adopting, if appropriate, any further measure necessary to ensure its effectiveness, and to keep the Committee informed of the developments in this regard;
2) Measures relating to the effectiveness of remedies
Recalling that the Court has found numerous violations of the right to an effective remedy in contesting the excessive length of proceedings in Bulgaria, revealing certain structural problems in this field;
Recalling its Recommendation Rec(2010)3 encouraging states to introduce remedies making it possible both to expedite proceedings and to grant compensation to interested parties for damage suffered;
Noting with interest that Articles 255-57 of the Code of Civil Procedure provide that, if a court does not take a procedural step in due time, the parties may at any time apply to the superior court for a time-limit to be set for the taking of the procedural step in question, thus affording a remedy designed to speed up the civil proceedings (see Appendix I);
Noting also that there exist in criminal law certain forms of nonpecuniary redress, such as the possibility of reducing the sanction, where there is a finding of excessive length of proceedings;
Noting however that at the present time no domestic remedy is available for expediting excessively lengthy criminal proceedings or obtaining pecuniary compensation if appropriate (see Appendix I);
Welcoming in this context the reform undertaken by the authorities aimed at introducing into Bulgarian law a compensatory remedy where excessive length of judicial proceedings is alleged (see Appendix I);
INVITED the Bulgarian authorities to complete as soon as possible the reform undertaken in order to introduce a remedy whereby compensation may be granted for prejudice caused by excessive length of judicial proceedings, and to keep the Committee informed of its progress and of any other measure that may be envisaged in this field;
Having regard to the foregoing, the Committee of Ministers
DECIDED to resume its examination of progress made at the latest:
– by the end of 2011, with regard to the question of effective remedy;
– by mid2012, with regard to the question of the excessive length of judicial proceedings.”
57. An appendix to the resolution summarised the information provided by the Bulgarian Government on the measures taken by the Bulgarian authorities in that domain. It reads:
“I. Individual measures
The proceedings which were still pending before the domestic courts at the time when the Court gave its judgments have been terminated in most of the cases. At the present time, the proceedings have not yet been terminated in the Belchev, Hamanov, Nedyalkov, Valkov, Kamburov, Kavalovi and Merdzhanov cases. Information is still awaited also on the state of progress in the proceedings in the Kolev and Sidjimov cases.
II. General measures
1) Measures aimed at reducing the length of proceedings
– Legislative measures
In 2007 a new Code of Civil Procedure (“CCvP”) was adopted. The adoption of that code, which came into force on 1 March 2008, forms part of the overall reform of the civil justice system in Bulgaria designed in particular to speed up judicial proceedings. The new code seeks inter alia to concentrate decisions relating to the judicial investigation in the proceedings at first instance and to limit appeal and cassation proceedings.
The most important provisions of the new CCvP provide for:
– the express obligation on civil courts to examine cases within a reasonable time (Article 13);
– the “concentration principle” whereby evidence is brought together in the first instance proceedings; according to this principle, the parties may submit evidence or ask for evidence to be taken no later than the first hearing (Articles 127, 133, 143 and 146); after the first hearing, the parties may only request the taking of evidence which could not be adduced earlier; by way of comparison, the 1952 [C]ode allowed evidence to be submitted throughout the judicial investigation, including elements which could have been submitted earlier, subject to payment of procedural costs;
– the change of second instance from a “second first instance” to an appeal instance, examining only the points raised in the appeal (Article 269), at which the parties may no longer submit evidence and arguments which they could have raised in the court of first instance (Article 266);
– limitation of the grounds for lodging an appeal in cassation to the Supreme Court; henceforth, there are only three categories of judgments handed down by the second-instance courts which can be subject to appeal in cassation (those which are at variance with the caselaw of the Supreme Court of Cassation, those relating to a question on which courts deciding on the merits have handed down contradictory judgments, and those relating to a question considered important for the development of law or for the precise application of the law); under the previous cassation system, the Supreme Court of Cassation was competent to judge the lawfulness and validity of the great majority of judicial decisions taken at second instance;
– simplification of summons arrangements, with the possibility of serving a summons by delivering it to the letter-box of the person concerned or affixing it to his/her front door.
The authorities consider that a longer period of time will be needed for the real impact of the new CCvP on length of proceedings to be assessed.
...
– Administrative measures designed to improve the organisation and management of the courts
Among other reforms designed to improve the efficiency of the Bulgarian judicial system, should be mentioned the creation in 2007 of an electronic commercial register managed by an administrative agency (see the commercial register law in force since 1 July 2007). Thus the regional courts which were responsible for registering commercial companies in the past have been absolved of that responsibility.
Furthermore, following the adoption of the new Code of Administrative Procedure in 2006, 28 administrative courts were set up in 2007. These new administrative courts have powers previously exercised by the regional courts. In addition, as an ad hoc measure aimed at lightening the workload of the Supreme Court of Cassation, labour disputes pending before it when the 2007 CCvP came into force have been transferred to the appeal courts.
It should also be pointed out that the judicial authorities now have access to the national database containing the population register, which should overcome certain delays arising from requests for information needed to take judicial proceedings forward.
Finally, Bulgaria has achieved a high level of computerisation designed to assist both judges and other personnel (for further details, see the 2010 report of the European Commission for the Efficiency of Justice – CEPEJ). Moreover, the courts are continuing their efforts to improve their IT equipment in order to communicate with parties. Those efforts were recently rewarded by the award of the 2010 “Crystal Scales of Justice” prize to the Yambol administrative court for the work it has done to improve users’ understanding of judicial procedure.
– Mechanisms for periodic assessment and monitoring of the work of the courts
Two bodies – the Supreme Judicial Council Inspectorate and the Ministry of Justice Inspectorate – have the main responsibility for monitoring and assessing the work of the courts, prosecution services and investigating magistrates.
The Supreme Judicial Council Inspectorate, established in 2007, comprises an inspectorgeneral and ten inspectors elected by Parliament for terms of five and four years respectively (Article 132a of the Constitution). It oversees the administrative organisation of the courts, prosecution services and bodies in charge of preliminary investigations, together with the proper organisation of preliminary investigations and cases pending before prosecutors and courts. In particular, the inspectorate oversees compliance with the time-limits laid down by law for dealing with cases. It carries out its tasks (a) through planned regional inspections and (b) through inspections focussing on particular questions. It may also conduct inspections in response to reported irregularities ([sections] 54 and 56 of the [2007 Judiciary Act]).
Following inspections, it makes recommendations, particularly concerning compliance with the timelimits laid down by law for dealing with cases. Implementation of its recommendations is monitored in the course of followup inspections. The inspectorate may also make proposals to courts’ administrative authorities and to the Judicial Service Commission for the imposition of disciplinary penalties on judges, prosecutors and investigating magistrates (see “Disciplinary measures” below). The work of the inspectorate is covered in the progress report of the Supreme Judicial Council.
The Ministry of Justice Inspectorate oversees, among other things, the manner in which case registration and handling are managed, as well as closure of cases within the legal time-limits. This inspectorate organises thematic controls in accordance with a programme approved by the Ministry of Justice. It may make recommendations and supervises their implementation in the course of subsequent inspections.
The Ministry of Justice Inspectorate is also responsible for overseeing application of the new CCvP and CCrP. During inspections already carried out, it has observed some of the causes of procedural delays and made recommendations in this regard.
Furthermore, the presidents of the Supreme Court of Cassation and the Supreme Administrative Court are required to present annual reports on the functioning of trial and appeal courts, in addition to annual reports on their own activities ([sections 114(1) and (2) and 122(1) and (2)] of the [2007 Judiciary Act]). Lastly, each year the Supreme Judicial Council centralises and analyses the statistics on the work of all the country’s courts (cf. Appendix II).
– Disciplinary measures
Under the [2007 Judiciary Act], systematic failure to comply with the time-limits laid down in procedural laws, and action or inaction such as to delay proceedings in an unjustified manner, are disciplinary offences ([section] 307 § 4). The Judicial Service Commission has the power to impose disciplinary penalties (other than comment and reprimand, which are imposed by the hierarchical superior) on judges, prosecutors and investigating judges. The public bodies responsible for enforcing judicial decisions and the bodies responsible for entries in the land registry may be sanctioned by the Ministry of Justice ([section] 311).
The authorities have stated that during the period 20072009 the number of disciplinary proceedings before the Supreme Judicial Council rose steadily (13 in 2007, 28 in 2008 and 83 in 2009). By way of example, in 2009 seven judges and one head of administration were sanctioned, mainly for systematic failure to comply with the time-limits laid down by law. Among them, three judges were dismissed and three others had their salaries reduced by 10 to 25% for periods of up to a year.
– Longterm strategies
The Bulgarian authorities have adopted several strategies on judicial reforms. For example, a criminal policy strategy for the period 20102014 has been adopted, the principal objective being to further reduce the excessive formalism of criminal procedure. It should be noted that the amendments to the 2010 CCrP were decided on the basis of this strategy (see above).
Further, in 2009 the government adopted a plan to eradicate the causes of violations of the Convention found by the European Court in its judgments concerning Bulgaria. That plan was drawn up by a working party which included representatives of the Ministry of Justice as well as human rights activists. Among the tangible results obtained on the basis of this plan, should be mentioned the working party set up to introduce an application for compensation in cases of excessive length of judicial proceedings (see below). In June 2010 the government adopted the strategy on continued judicial reforms in Bulgaria following its accession to the European Union.
2) Measures relating to the effectiveness of remedies
– Remedy concerning speeding up of civil proceedings
A remedy allowing to question the length of civil proceedings was introduced into Bulgarian law as long ago as 1999 (Article 217a of the former CCvP). The provisions governing this remedy were maintained to a great extent in the new CCvP of 2007. Articles 255 to 257 thereof stipulate that, if a court fails to take a procedural step in time, the parties may at any time request the superior court to set a deadline for taking the procedural step in question. The request is lodged through the court seized of the case, which must send it to the superior court together with its own opinion. If the court seized of the case takes the requested steps immediately, the request is deemed to be withdrawn unless the party concerned states that it wishes to maintain the request. In cases where the request is transmitted to the superior court, it must be examined within one week by a judge of that court. If he finds that there has been unjustified delay, the superior court sets a deadline by which the procedural step must be taken. The order of the superior court is final.
According to the data supplied by the authorities, the regional courts examined 242 applications for speeding up of civil proceedings in 2007. 110 applications were examined in 2008 and 142 in 2009. Also in 2009, the appeal courts examined 78 applications for the speeding up of proceedings.
The European Court has accepted that the remedy provided for in Article 217a of the former CCvP is effective in principle (see Simizov against Bulgaria, No. 59523/00, § 56, 18 October 2007, Jeliazkov and others against Bulgaria, No. 9143/02, § 48, 3 April 2008, and Stefanova against Bulgaria, No. 58828/00, § 69, 11 January 2007). It has however stated that account must be taken of the circumstances of each case (Stefanova, cited above, § 69) and of the effect which such application might have on the overall length of the proceedings in question (Simizov, cited above, §§ 54-56). In several cases the Court has found that the application in question has not or could not have prevented certain delays by reason of their specific causes, such as for example inactivity on the part of the prosecution, inability of the domestic authorities to ensure that one party to the proceedings is properly summonsed, or errors in the application of the law (Stefanova, cited above, §§ 70 and 71, Mincheva against Bulgaria, No. 21558/03, § 105, 2 September 2010, Maria Ivanova against Bulgaria, No. 10905/04, § 35, 18 March 2010).
Furthermore, the European Court observed that it was unclear whether this remedy was available before the Supreme Court of Cassation, in so far as there was no higher court.
The authorities have indicated that these shortcomings will be taken into account when defining a new application for compensation in cases of excessive length of judicial proceedings (see below).
...
– Compensatory remedy
The European Court has consistently pointed to the absence in Bulgarian law of a remedy enabling compensation to be obtained for excessive length of judicial proceedings (see, for example, the Mincheva against Bulgaria judgment cited above, § 107).
In this connection the Government has indicated that, in the context of implementing a plan to eradicate the causes of the violations found by the European Court in judgments concerning Bulgaria, it has set up a working party to prepare a bill amending the law on the responsibility of the state and municipalities for prejudice caused to individuals. This bill envisages, in particular, the introduction of an application for compensation in cases of unjustified delay in the proceedings. This working party has drafted a bill providing that the state may be held responsible, in addition to the cases already settled, where unjustified delay in civil, criminal and administrative proceedings are attributable to the judicial authorities.
As regards criminal proceedings, it should also be noted that certain forms of nonpecuniary redress exist in cases of excessive length of proceedings, such as the possibility of reducing the penalties. This form of redress has been recognised by the European Court as an effective remedy in certain circumstances (Bochev against Bulgaria judgment of 13 November 2008, § 83).”
58. A second appendix to the resolution contained statistical data on the processing of cases in the Bulgarian courts. It reads (footnotes omitted):
“I. Statistics on length of judicial proceedings before the Bulgarian courts
1) Data for Bulgarian courts as a whole
The general trend which emerges from the data available shows that, despite a resurgence in the number of cases registered, the number of cases terminated for all courts is on the increase (in 2009 it was 4.59% higher than in 2007, and 15.46% higher than in 2008). Similarly, the backlog facing the courts as a whole decreased for the second year running. Thus the decrease in the number of cases pending at the end of 2009 is of 10.26% as compared with 2007 and of 2.35% as compared with 2008.
The number of judges, taking all courts together, was 2,162 in 2009, 1.45% more than in 2007 and 1.74% more than in 2008.
2) Supreme Court of Cassation
...
– Civil bench
Despite an increase in the number of new cases registered in 2009 (2,191 more than in 2008 and 513 more than in 2007), the backlog before the civil bench decreased at the end of the same year (4,706 cases pending at the end of 2009 as compared with 5,361 in 2008 and 8,555 in 2007).
– Commercial bench
The backlog before the commercial bench at the end of 2009 was on the increase (1,385 cases pending at the end of 2009 as compared with 634 at the end of 2008). That increase was the result of the higher number of cases registered (55.46% more than in 2008), notwithstanding the increase in the number of cases terminated in 2009 (21.31% more than in 2008).
3) Supreme Administrative Court
Despite a constant increase in the number of cases terminated by this court between 2007 and 2009 (13,777 cases in 2007, 15,095 cases in 2008 and 16,263 cases in 2009), its backlog slightly increased during that period due to the increase in the number of cases registered (13,659 cases in 2007, 16,402 cases in 2008 and 17,190 in 2009). In 2009, 7% of cases terminated were concluded within one month and 66% within three months, while 27% took over three months.
4) Appeal courts
The backlog in the appeal courts is constantly decreasing. The number of cases pending at the end of 2009 (1,713) decreased by 45.89% as compared with 2007 and by 22.28% as compared with 2008.
...
6) Regional courts and the Sofia City [C]ourt
The creation in 2007 of 28 administrative courts, as well as an agency responsible for entries in the commercial register, led to a significant decrease in the number of cases registered by regional courts in 2009 (42.73% fewer than in 2007 and 2.64% fewer than in 2008). Cases pending at the end of 2009 numbered 23,392, a figure 31.76% lower than in 2007 and 15.99% lower than in 2008.
7) District courts located in regional centres
The backlog in these courts at the end of 2009 had grown by 1.05% as compared with 2007 and by 7.03% as compared with 2008. This increase is due to the rise in the number of cases they had to deal with in 2009 (23.05% more than in 2007 and 18.29% more than in 2008), and despite a larger number of cases terminated during that year (28.36% more than in 2007 and 20.70% more than in 2008).
In 2009 the district courts located in regional centres registered 285,547 cases; 94,317 cases were registered by the Sofia district court, i.e. 33% of all cases newly registered with the courts in this category.
8) District courts located outside regional centres
The backlog in these courts at the end of 2009 had fallen (by 12.64% as compared with 2007 and by 7.54% as compared with 2008) notwithstanding an increase in the number of cases they had to deal with (11.30% more than in 2007 and 15% more than in 2008).
This trend was due to the increase in the number of cases terminated in 2009 (16.47% more than in 2007 and 19.72% more than in 2008). It is also to be noted that in 2009, 92,541 cases were concluded within three months, a figure 22.88% higher than for 2007 and 25.71% higher than for 2008.
9) Administrative courts
These courts began sitting in 2008. In 2009 they dealt with 45,164 cases, a figure 8.81% higher than in 2008. The number of cases terminated in 2009 was 10.09% higher than in 2008. Despite that increase, the number of cases pending at the end of 2009 was 4.23% higher than for 2008.
...”
59. In its Resolution 1787 (2011) on the implementation of the Court’s judgments, adopted on 26 January 2011, the Parliamentary Assembly of the Council of Europe noted “with grave concern” the continuing existence of “major systemic deficiencies which cause large numbers of repetitive findings of violations of the Convention and which seriously undermine the rule of law” in some Member States of the Council of Europe. One of those was the “excessive length of judicial proceedings” (paragraph 5.1). The Assembly, in particular, urged Bulgaria to, inter alia, “pursue its efforts to solve the problem of excessive length of court proceedings” (paragraph 7.1 in fine).
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-71642
LANGUAGEISOCODE: ENG
RESPONDENT: LTU
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: BATALOV v. LITHUANIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Bislan Batalov, is a Russian national of the Chechen ethnic origin, born in 1979. He is represented before the Court by Mr L. Biekša, a lawyer practising in Vilnius.
1. Proceedings determining the applicant’s status in Lithuania
The applicant entered Lithuania illegally on an unspecified date in 2001. He immediately claimed asylum on the ground that he had allegedly taken part in various hostilities against the Russian military forces and that he feared persecution if returned to Russia. He alleged that he had been previously detained by Russian military officers, that he had been beaten and tortured during that detention, and that he had only been released after his relatives had “paid a ransom”.
On 14 May 2004 the immigration authorities refused asylum and applied to a court for the applicant’s deportation to Russia. In reaching their conclusion, the immigration authorities referred to the “danger to national security” which the applicant represented. No factual elements were specified to support that statement, the immigration authorities having reached the conclusion on the basis of a letter sent to them by the State Security Department. The decision of 14 May 2004 mentioned that the applicant had the right of appeal to a court within seven days of the notification of the decision, pursuant to Article 138 of the Aliens Act.
The decision of 14 May 2004 was translated into Russian and given to the applicant on 14 June 2004, as confirmed by his signature on a copy of the decision submitted to the Court.
On 10 June 2004 the Vilnius Regional Administrative Court accepted the immigration authorities’ request to deport the applicant to Russia on the basis of his presenting a danger to national security.
On 16 June 2004 the applicant was accommodated at the Aliens Registration Centre (ARC) pending the final determination of his legal status in Lithuania.
On 23 June 2004 the applicant applied to a court, claiming asylum and alleging persecution in Russia.
On 30 June 2004 the Vilnius Regional Administrative Court dismissed the application on the ground that the applicant had missed the seven day time-limit for the submission of an appeal, laid down in Article 138 of the Aliens Act. In this regard it was noted that the applicant had sent his application by post only on 23 June 2004. The court also noted that the applicant had not specified whether his application was an appeal against the immigration authorities’ decision of 14 May 2004, or against the court decision of 10 June 2004. In either event, the applicant had submitted his appeal out of time. It was further noted that he had not requested an extension of the time-limit for appeal.
On 7 July 2004 the applicant received the court decision of 30 June 2004. On 8 July 2004 he consulted a lawyer, who helped him to draft a further appeal against the immigration authorities’ decision of 14 May 2004. In that appeal, dated 9 July 2004, the applicant stated that he had only taken cognisance of the impugned decision on 14 June 2004, and that he had appealed against it on 23 June 2004. Since he did not have a lawyer until 8 July 2004, the applicant requested the reinstatement of the time-limit for appealing against the decision of 14 May 2004. In his appeal, the applicant argued that the authorities’ conclusions on his alleged “danger to national security” were not supported by any evidence. He claimed that he would be subjected to persecution if returned to Russia.
On 14 July 2004 the Vilnius Regional Administrative Court dismissed the applicant’s request to reinstate the time-limit. The court held that the time-limit mentioned in Article 138 of the Aliens Act could only be reinstated in cases where it had been missed as a result of circumstances independent of the applicant’s will. However, the court observed that the applicant had not invoked any circumstances which could show that he was not in a position to submit his appeal before 23 June 2004.
On 27 July 2004 the applicant filed an appeal against the decision of 14 July 2004. The applicant stated that from 14 June 2004, after having taken cognisance of the decision of 14 May 2004, he had been unable to submit his appeal within the seven-day period since he did not know the Lithuanian language or legislation and, moreover, had no postage stamps or envelopes to send an appeal. According to the applicant, on 22 June 2004 he had given his appeal, which had been written in Russian, to a representative of the United Nations High Commissioner for Refugees (UNHCR), who in turn sent the appeal to the court. The applicant also stated that the UNHCR representative had promised the applicant that he would inform certain immigration lawyers about his situation. As a result, the applicant had been able to meet a lawyer for the first time on 8 July 2004, and to draft a properly motivated appeal on 9 July 2004.
On 9 September 2004 the Supreme Administrative Court dismissed the applicant’s appeal against the decision of 14 July 2004. The court reiterated that the applicant’s first appeal against the decision of 14 May 2004 had only been sent on 23 June 2004, i.e. more than seven days after the applicant had familiarised himself with the decision (of 14 June 2004). The court observed that the fact that the applicant had access to a lawyer for the first time only on 8 July 2004 did not constitute a circumstance absolving him from the obligation to comply with the time-limit. The court also stated that the other allegations relied on by the applicant (i.e. ignorance of language and laws, and no stationery) could not be reviewed on appeal as these facts had not been alleged before the first-instance court on 14 July 2004. That decision was final.
On 22 November 2004 the European Court of Human Rights communicated the applicant’s complaints about his imminent expulsion from Lithuania to Russia under Article 3 of the Convention.
On 17 December 2004 the Vilnius Regional Administrative Court suspended the execution of the expulsion order of 10 June 2004.
On 14 January 2005 the immigration authorities authorised the applicant’s stay in Lithuania on humanitarian grounds.
On 25 March 2005 the President of the Supreme Administrative Court petitioned the Supreme Administrative Court to resume the proceedings concerning the applicant’s expulsion. On 29 March 2005 the Supreme Administrative Court accepted the President’s petition. The case was transmitted for a fresh examination by the Vilnius Regional Administrative Court.
On 19 April 2005 the Vilnius Regional Administrative Court quashed the expulsion order of 10 June 2004 inter alia because of a risk of the applicant’s possible persecution if deported to Russia.
On 5 July 2005 the immigration authorities issued the applicant with a temporary residence permit on humanitarian grounds.
In his letter of 19 July 2005, the applicant stated that, in view of the regularisation of his stay in Lithuania, he no longer wished to pursue his complaints under Article 3 of the Convention.
2. The applicant’s detention
The applicant had not been arrested or detained upon his entry into Lithuania in 2001 or immediately thereafter. In early 2004 he lived at an address in Kaunas.
On 28 May 2004 the immigration authorities informed the Vilnius Regional Administrative Court that the applicant had not been found at his permanent place of residence, and that as a result he not been acquainted with the decision of 14 May 2004 refusing asylum.
On 13 June 2004 the applicant was arrested by the Kaunas police in view of the expulsion order of 10 June 2004.
On 14 June 2004 the applicant’s detention (sulaikymas) and placement (apgyvendinimas) at the ARC were authorised by the Kaunas City District Court to ensure the applicant’s eventual expulsion from Lithuania on the basis of Article 113 of the Aliens Act (see the “Relevant domestic law and practice” part below). Detention was authorised until 14 September 2004.
On the same date the applicant escaped from the police. A search for him was launched. On 16 June 2004 he was again arrested, brought to and accommodated at the ARC.
On 14 September, 14 October 2004 and 13 December 2004, the Švenčionys District Court extended the term of the applicant’s detention, by the latter decision until 15 March 2005.
On 3 January 2005 the Švenčionys District Court refused to order the applicant’s release.
On 31 January 2005 the Supreme Administrative Court dismissed his appeal against the decision of 3 January 2005. In this connection the appeal court noted that the decision on the applicant’s expulsion had not been quashed, although its execution had been suspended by the Vilnius Regional Administrative Court on 17 December 2004. It held that the applicant’s continuing detention was compatible with Article 113 §§ 5 and 7 of the Aliens Act (see the “Relevant domestic law and practice” part below).
On 14 February 2005 the Švenčionys District Court refused to order the applicant’s release. On 14 March 2005 the Švenčionys District Court further authorised the applicant’s detention at the ARC until 15 June 2005. The court noted that on 14 January 2005 the immigration authorities had decided to authorise the applicant’s stay in the country on humanitarian grounds, and that, as a result, the ground specified in Article 113 § 2 of the Aliens Act, namely the unlawfulness of his stay in the country, could no longer justify his detention. However, the court observed that the continuing validity of the expulsion order of 10 June 2004 warranted his detention in accordance with Article 113 §§ 5 and 7 of the Aliens Act.
On 18 March 2005 the Supreme Administrative Court rejected the applicant’s appeal against the decision of 14 February 2005.
On 19 April 2005 the Vilnius Regional Administrative Court quashed the expulsion order of 10 June 2004 inter alia because of a risk of the applicant’s possible persecution if deported to Russia.
In view of this decision, on 6 May 2005 the Supreme Administrative Court decided that there were no longer any grounds for the applicant’s detention under Article 113 of the Aliens Act. The decision of 14 March 2005 was accordingly quashed.
On 9 May 2005, upon the applicant’s request, his further stay at the ARC was authorised by the immigration authorities under a different regime, namely without any restrictions on his liberty of movement.
Following the decision of 5 July 2005 to issue the applicant with a temporary residence permit, he left his accommodation at the ARC on an unspecified date in July 2005. It appears that he now lives in a place of his own choice in Lithuania.
According to Article 267 of the Code of Administrative Offences and Article 114 of the Aliens Act of 30 April 2004, an alien can be arrested (sulaikytas) by the police and held for up to 48 hours, in order to determine the legality of his stay in the country. The alien can thereafter be deprived of his liberty only on the basis of a court order.
Pursuant to Article 113 of the Aliens Act, an alien may be detained (sulaikytas) if his stay in the country is illegal (Article 113 § 2 of the Act), where a decision has been taken to expel him (Article 113 § 5), or when he presents a danger to public safety and national security (Article 113 § 7).
According to Article 116 of the Act, the immigration authorities shall apply to a court for a detention order if one of the grounds specified in Article 113 exists.


ITEMID: 001-99026
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF KAMALIYEVY v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Art. 8;Violation of Art. 34;Just satisfaction reserved
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 7. The first applicant was born in 1958. He is currently serving a prison sentence in Uzbekistan. His representatives have had no contact with him since his expulsion. The second applicant was born in 1958 and lived in the Tyumen Region, Russia. She died in August 2008.
8. According to the first applicant, then named Tursinov, he arrived in Russia from Uzbekistan in 1997. The Government disputed the date of the first applicant's arrival in Russia, pointing to the absence of any documents in connection with it.
9. On 29 November 2000 he obtained Russian internal identity papers (“the passport” in question).
10. On 28 December 2000 the first applicant married the second applicant and took her surname, Kamaliyev. On 16 February 2001 he obtained a new passport, containing his new name.
11. In their submissions of September and December 2008 the Government stated that at the relevant time the first applicant had been in a valid marriage concluded in Uzbekistan in 1979, from which he had four children. They submitted a copy of the certificate of the first applicant's marriage, issued by the Namangan Department of the Ministry of Justice of Uzbekistan in April 2008.
12. On 10 January 2004 a new Russian internal passport was issued to the first applicant, who had reached the age of forty-five.
13. On 10 February 2006 the Federal Migration Service (FMS), following an internal investigation, established that the first applicant's passport had been issued in breach of the lawful procedure and declared it invalid. The FMS found that the first applicant had obtained a Russian identity document without having properly obtained Russian nationality and that his name had not been entered in the relevant registers. The first applicant had never applied for, or received Russian nationality and the identity document in question could not be held as proof to the contrary. The head of the police unit which had issued the passport had been subjected to disciplinary measures for breaching the relevant legislation.
14. In February 2006 the police, aided by the FMS, seized the applicant's internal passport. It appears that after that the first applicant remained in Russia without obtaining any other residence documents.
15. On 6 March 2006 the Prosecutor's Office of the Central District of Tyumen found that the archives of the passport service which had issued the first applicant's passport in 2000 had been destroyed in January 2005, in line with instructions issued at the time. It concluded that there were no reasons to open a criminal investigation into the actions of the officers of that department.
16. On 16 March 1999 the deputy prosecutor of the Namangan Region in Uzbekistan issued a decision to charge and detain the first applicant for attempted subversion of the constitutional regime. It appears that some time later an international search warrant was issued.
17. On 31 October 2005 the head of the police department of the Namangan Region in Uzbekistan informed his counterpart in the Tyumen Region that the first applicant was being sought in Uzbekistan for a breach of State security and asked him to locate the applicant. The same letter indicated the first applicant's address in Tyumen and stated that he had unlawfully obtained a Russian passport.
18. On 9 February 2006 the applicant was arrested with a view to extradition and placed in the Tyumen Region temporary detention centre no. IZ-72/1 (ФГУ ИЗ-72/1).
19. On 23 March 2006 the deputy Prosecutor General of Uzbekistan requested the applicant's extradition on the ground that he was charged with belonging to an extremist religious organisation, known as “Wahhabi”, incitement of religious hatred and attempted subversion of the constitutional regime. The crimes had been committed in 1990-1993.
20. On 5 May 2006 the Kalininskiy District Court examined a request by the Tyumen Regional Prosecutor to have the applicant placed in detention with a view to his extradition to Uzbekistan, where he was accused of inciting racial, national or religious hatred, attempted subversion of the constitutional regime, and the creation and leadership of extremist organisations of a religious, separatist, fundamentalist nature, or other prohibited organisations, crimes which were defined by Articles 156 § 2 (d), 159 § 3 (b) and 244 § 2 respectively of the Criminal Code of Uzbekistan.
21. The court, having noted that those acts were also punishable under Articles 282 § 2, 280 and 282-1 of the Criminal Code of the Russian Federation and that the applicant was an Uzbek citizen, ordered that the applicant be placed in detention pending extradition. The court noted that the applicant had unlawfully obtained a Russian passport.
22. On 20 December 2006 the Deputy General Prosecutor refused to extradite the first applicant because the acts with which he had been charged did not constitute a crime under Russian law and because the prescription period for other acts had expired.
23. On 26 December 2006 the Tyumen Regional Prosecutor ordered the applicant's release.
24. On 1 August 2006 the first applicant requested the Tyumen Regional Department of the FMS to grant him refugee status. In his application he indicated that he had Uzbek nationality, but that in 2000 he had received a Russian passport and had married the second applicant. The first applicant gave the unstable economic and political situation and absence of work as the reasons for his departure from Uzbekistan. He denied that he had ever committed a crime in Uzbekistan.
25. On 11 November 2006 he was questioned by officials of the FMS about the details of his claim. In the questionnaire the first applicant indicated his nationality as Uzbek and submitted details of his national identity papers. He also submitted that he had divorced his first wife in 1996 in Uzbekistan. As regards his Russian passport, the first applicant submitted that a relative of his wife had helped him to obtain the documents. That man, whose name he could not recall, had died in 2002. As to his fear of persecution in Uzbekistan, the first applicant explained that he had learned of the criminal proceedings pending against him there when he was detained in Russia in February 2006. He denied having any connection to the charges brought against him and stated that he did not believe that he would have a fair trial in Uzbekistan. The first applicant also stated that he feared for his safety in that country.
26. The outcome of this request is unclear. The first applicant did not refer to this application in the subsequent proceedings.
27. On 23 November 2007, during an identity check, the applicant was arrested in Tyumen as an unlawfully resident alien.
28. On the same day the Tsentralnyy District Court of Tyumen reviewed the applicant's administrative offence case. According to the transcript of the hearing, the first applicant stated that he had lived in Russia since 1997, had traded in fruit and then married. He stated that in 2006 his Russian passport had been taken away from him as part of the procedure for obtaining nationality, but that he did not know the outcome of that procedure. He denied having committed any violations of the Russian legislation. When asked by the judge whether he had been aware that a search warrant had been issued for him in Uzbekistan, the first applicant replied that he had not committed any crimes. He also stated that he had changed his family name because of his marriage. The District Court found the first applicant guilty of a violation of the residence rules for aliens, in that he had failed to take any steps to get a residence permit or to obtain nationality by legal means. It imposed a fine of 2,000 Russian roubles (RUB) and ordered that the first applicant be expelled from Russia.
29. On 30 November 2007 the applicant's lawyer lodged an appeal against the decision of 23 November, arguing that the extradition would sever the applicant's ties with his Russian family, in view of the ensuing five-year ban on re-entering the country. He therefore asked the Regional Court to alter the sentence and not to order the first applicant's deportation.
30. On 3 December 2007, on instructions from the first applicant, “Civil Assistance” (Комитет “Гражданское содействие”) an NGO which specialises in providing assistance to refugees from Central Asia, submitted to the European Court of Human Rights a request for suspension of the first applicant's extradition to Uzbekistan. They stated that the first applicant had been charged in Uzbekistan with crimes against the state security and membership of a religious organisation, that he would certainly be detained upon arrival and that the risk of torture for this category of persons was recognised by all available international sources. In that letter the representative indicated that the next flight from Tyumen to Uzbekistan was scheduled for 2 a.m. on 5 December 2007 (4 December 2007, 10 p.m. CET). There is a two-hour difference between Moscow and CET and another two-hour difference between Tyumen and Moscow.
31. On the same day, on 3 December 2007, the Court indicated to the Russian Government that, under Rule 39 of the Rules of Court, it was adopting an interim measure for suspension of the extradition. The letter to the Government, indicating the application of a preliminary measure, was received by the Office of the Representative at 7.50 p.m. CET. According to the Government, on 4 December 2007 the information about the application of the interim measure was forwarded to the Ministry of the Interior and the FMS.
32. The applicants' representative submitted that on 4 December 2007 she had forwarded a copy of the Court's letter of 3 December 2007 indicating the preliminary measure to the office of the Tyumen Prosecutor's Office and the Main Department of the Interior of the Tyumen Region.
33. On 4 December 2007 the Tyumen Regional Court held a hearing in the absence of the first applicant and his legal counsel. The court established that the applicant was a citizen of Uzbekistan, that the Russian passport had been issued in breach of the relevant provisions, that the applicant had not submitted a request for naturalisation to the competent police department and that, according to the consular register of the Ministry of Foreign Affairs, he had not obtained Russian nationality. Equally, between 10 February 2006, the date on which his passport had been confiscated, and 23 November 2007, the day on which his identity papers were checked, the applicant had been unlawfully present on the territory of Russia and had taken no steps to declare his residence. The court held that the argument with regard to the potentially lengthy separation of the applicant and his wife and that alleging the applicant's lack of fault in the issue of the Russian passport were incidental. The court upheld the decision of 23 November 2007.
34. The applicants' representative informed the Court of that decision on the same day. On 4 December 2007 the Court forwarded an additional letter to the Office of the Representative, alerting them to the decision of the Tyumen Regional Court and drawing their attention to the fact that the first applicant's expulsion from Tyumen had been scheduled for 5 December 2007, 2 a.m. local time. This letter reached the Office in Moscow at 10.30 p.m.
35. On 5 December 2007 at 2.25 a.m. local time the first applicant was deported to Uzbekistan.
36. According to the applicants, upon his arrival in Tashkent the first applicant was arrested and charged with the crimes for which his extradition had been sought from Russia earlier. The second applicant informed the Court in February 2008 that in January 2008 she had received a phone call from her husband's relatives in Uzbekistan. They claimed that he had been detained at the Namangan Detention Facility and that he had been subjected to torture. After that she was unable to reach the first applicant's relatives by phone.
37. In response to the Court's request, in December 2008 the Government submitted that they had obtained unofficial information that on 26 February 2008 the first applicant had been tried and found guilty in Namangan. He was sentenced to eleven years in prison for incitement to racial hatred, attempts to overthrow the constitutional regime and participation in prohibited religious organisations. The Government had no further information about the first applicant's whereabouts from the Uzbek authorities. They indicated that as the first applicant had been a national of Uzbekistan and did not have Russian nationality, there were no legal grounds for the Russian authorities to intervene on his behalf. The applicants' representatives had no way of contacting him in detention. It appears that in 2008 he was serving his sentence in the Tashkent Region.
38. On 20 August 2008 the second applicant died.
39. For a summary of the relevant Russian law and practice on issues of detention, extradition and expulsion of foreign nationals, see Muminov v. Russia (no. 42502/06, §§ 45-62, 11 December 2008).
40. For a review of the situation in Uzbekistan at the relevant time, see Muminov (cited above, §§ 67-72) and Ismoilov and Others v. Russia (no. 2947/06, §§ 74-79, 24 April 2008).
VIOLATED_ARTICLES: 34
NON_VIOLATED_ARTICLES: 8


ITEMID: 001-109550
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF NEFEDOV v. RUSSIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
TEXT: 5. The applicant was born in 1966 and lives in Irkutsk.
6. On 24 May 2002 the applicant, the head of the Anti-Drug Trafficking Department of the North-Eastern Customs Office at the time, was arrested on suspicion of abuse of position and drug trafficking. An investigator drew up an arrest record and, in detail, informed the applicant of his rights as an accused, including the right to have legal assistance and the right to remain silent. The applicant signed the record, noting that he clearly understood his rights, but he refused legal assistance and decided to make a statement.
7. According to the applicant, police officers beat him up and threatened him and his family. They also promised to release him in exchange for a confession. The applicant wrote a statement confessing to drug trafficking.
8. On the same date the investigator interrogated the applicant in the absence of counsel, whose assistance the applicant had refused. The refusal was recorded in a report duly dated and signed by the applicant.
9. The police searched the house of the applicant’s co-accused and found a parcel of heroin. The applicant claimed that a neighbour, Mr M., had seen a police officer putting the parcel into the closet.
10. On 27 December 2002 the applicant was released on a written undertaking not to leave the town.
11. On 10 March 2004 the Irkutsk Regional Court found the applicant guilty as charged and sentenced him to four years and six months’ imprisonment. In view of the applicant’s position, the trial hearings were closed to the press and public. The conviction was based on selfincriminating statements made during the pre-trial investigation, search records, expert examination reports and witness testimonies. According to the applicant, the trial court refused to hear Mr M. However, as noted in a statement of appeal lodged by the applicant’s co-accused, the trial court had heard Mr M. at least on two occasions: during the investigation phase of the trial, when he had testified and the parties had been allowed to ask questions, and when the trial court, having accepted the parties’ request, had again questioned Mr M. to clarify certain points.
12. The applicant alleged that the judgment of 10 March 2004 had not been pronounced publicly.
13. According to the Government, following the public pronouncement of the judgment, the Regional Court had notified the applicant of his right to appeal against conviction and had explained “procedural issues pertaining to lodging an appeal” to him. The Government provided the Court with typed notes signed by the applicant and his lawyer and certifying that they had been served with a copy of the judgment of 10 March 2004 and that the applicant had been informed of the ten-day time-limit for lodging an appeal. Another note submitted by the Government was handwritten by the applicant and showed that he had received a copy of the trial court’s records.
14. The applicant and his lawyer appealed against the conviction, having lodged lengthy appeal statements. They disputed the applicant’s involvement in the criminal offences he had been found guilty of and disagreed with the way the trial court had established the relevant facts, the distribution of roles between him and his co-defendant and the classification of his own acts. They submitted, in particular, that the trial court had disregarded the applicant’s testimony and statements by witnesses which supported it, in particular, regarding his submissions that he had committed the alleged act of drug trafficking whilst he had been undercover and acting within his official functions. In the appeal statement the applicant did not ask the Supreme Court to ensure his presence at the appeal hearing.
15. On 18 June 2004 the head of Detention Facility no. 1 in Irkutsk, where the applicant was detained at the time, received a telegram from the Supreme Court for the applicant informing him of an appeal hearing scheduled for 6 July. The Government also provided the Court with typed summonses not bearing any stamps or signatures. An official of the Supreme Court allegedly sent those summonses on 16 June 2004 to the Bar Association where the applicant’s counsel worked in order to confirm his ability to attend the appeal hearing on 6 July 2004.
16. On 6 July 2004 the Supreme Court of the Russian Federation upheld the judgment of 10 March 2004, having endorsed the Regional Court’s reasoning. The applicant was not brought to the appeal hearing. His counsel was also absent. The Supreme Court proceeded in their absence, heard a prosecutor who supported the conviction, and examined the applicant’s and his lawyer’s statements of appeal.
17. Article 51 of the CCrP provides as follows:
“1. Participation of legal counsel in criminal proceedings is mandatory if:
(1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code;
(2) the suspect or the accused is a minor;
(3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap;
(3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code;
(4) the suspect or the accused does not speak the language in which the proceedings are [to be] conducted;
(5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty;
(6) the criminal case falls to be examined by a jury trial;
(7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code;
2. ...
3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on the request, or with the consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure the participation of legal counsel in the proceedings.”
18. Article 52 of the Code provides that an accused can waive his right to legal assistance, but such waiver must be established in the written form. The waiver can be revoked at any moment.
19. Article 360 establishes the scope of the examination of the case by an appeal court. It provides that the appeal court shall examine the legality, validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal. The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law of a lesser offence, but shall have no power to impose a more severe penalty or apply a law of a more serious offence.
20. Article 375 § 2 provides that if a convicted person wishes to take part in the appeal hearing, he must indicate that in his statement of appeal.
21. Under Article 376 § 2 parties shall be notified of the date, time and place of an appeal hearing no later than fourteen days in advance. A court is to decide whether to summon a convicted person held in custody. Article 376 § 3 provides that a convicted person held in custody who expressed a wish to be present at the examination of his appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall take a decision with respect to the form of participation of the convicted person in the court session. A defendant who has appeared before the court shall be always entitled to take part in the hearing. Article 376 § 4 states that if persons who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude the examination of the case.
22. Article 377 describes the procedure for the examination of cases by the appeal court. It provides, among other things, that at the hearing the court shall hear the statement of the party who had lodged the appeal and the objections of the opposing party. The appeal court shall be empowered, at the party’s request, to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party.
23. Article 378 establishes which decisions the appeal court may take. It provides that the appeal court may decide to dismiss the appeal and uphold the judgment, to quash the judgment and terminate the criminal proceedings, to quash the judgment and remit the case for a fresh trial, or to amend the judgment.
24. Article 379 sets out the grounds for quashing or setting aside judgments on appeal. In particular, a judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court in the judgment and the facts established by that court. Violation of procedural law and wrongful application of criminal law, as well as unfairness of the judgment, also constitute grounds for reversing or changing the judgment.
25. Article 383 provides that the judgment shall be deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence, the personality of the convicted person, or if that sentence, although within the limits of the relevant Article of the Criminal Code, is unfair in its chosen type or extent, being either disproportionately lenient or disproportionately severe. A judgment may be reversed in connection with the necessity to impose a more severe penalty due to the fact that the penalty imposed by the trial court is deemed unfair as being disproportionately lenient, but only in instances when there is either a prosecution request or an application (as a private prosecution) by the victim or his representative to that effect.
26. Article 387 provides that where there has been a violation of the provisions of the Criminal Code, the appeal court may apply the law of a less serious offence and reduce the sentence, in accordance with legal reclassification of the acts committed. In doing so, the appeal court may not apply the law of a more serious offence or aggravate a sentence imposed. In cases where the trial court imposed a sentence more severe than that set forth by the relevant Article of the Criminal Code, the appeal court may reduce the sentence without changing the legal classification of the offence.
27. Examining the compatibility of Article 51 of the Code of Criminal Procedure with the Constitution, the Constitutional Court ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal Procedure, which describes the circumstances in which the participation of defence counsel is mandatory, does not contain any indication that its requirements are not applicable in appeal proceedings or that the convict’s right to legal assistance in such proceedings may be restricted.”
28. That position was subsequently confirmed and developed in seven decisions delivered by the Constitutional Court on 8 February 2007. It found that free legal assistance for the purpose of appellate proceedings should be provided in the same conditions as for earlier stages in the proceedings and that it was mandatory in the situations listed in Article 51. It further underlined the obligation of courts to secure the participation of defence counsel in appeal proceedings.
29. On 18 December 2003 the Constitutional Court of Russia dismissed a constitutional complaint by Mr R. as inadmissible. In its ruling (определение) the Constitutional Court held, inter alia, that Article 51 of the Code of Criminal Procedure, which defined the situations where participation of a defence lawyer in criminal proceedings was mandatory, also applied to proceedings before a court of appeal.
30. In a number of cases (decisions of 13 October 2004 and 26 January, 9 February, 6 April, 15 June and 21 December 2005, 24 May and 18 October 2006, 17 January 2007, 3 September and 15 October 2008) the Presidium of the Supreme Court of the Russian Federation quashed judgments of appeal courts and remitted cases for fresh consideration on the grounds that the courts had failed to secure the presence of defence counsel in the appeal proceedings, although it was obligatory for the accused to be legally represented. That approach was also confirmed by the Presidium of the Supreme Court in its report concerning cases adopted in the third quarter of 2005 (Decree of 23 November 2005) and by the Decree of the Plenary of the Supreme Court of 23 December 2008, as amended on 30 June 2009. In the latter document, the Supreme Court emphasised that an accused could only waive his right to a lawyer in writing, and that the court was not bound by that waiver.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
6-3
VIOLATED_BULLETPOINTS: 6-3-c