ITEMID: 001-58119
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1997
DOCNAME: CASE OF K.-F. v. GERMANY
IMPORTANCE: 3
CONCLUSION: Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
JUDGES: C. Russo;N. Valticos
TEXT: 7. Mr K.-F. was born in 1946 and is a German national. He was formerly a lawyer and lives with his wife in Karlsruhe.
8. In May 1991 the applicant and his wife rented a holiday flat at Ulmen at a daily rent of 40 or 50 German marks (DEM). They occupied the flat from 24 May 1991 and paid DEM 350 rent for their stay in May.
9. On 3 July 1991 the landlady of the flat, Mrs S., asked Mrs K.-F. for payment of rent arrears, including telephone calls, of approximately DEM 4,000.
10. On 4 July 1991, at about 7.50 p.m., Mrs. S. telephoned Cochem-Zell police station and reported that Mr and Mrs K.-F. had caused a car accident. She added that they had rented her flat without intending to perform their obligations as tenants and were about to make off without paying what they owed.
11. Following that call, two police officers went to the flat and took statements from the landlord and the landlady (Mr and Mrs S.) and the tenants. The owners admitted that, for fear that Mr and Mrs K.-F. would make off without paying the rent, they had attempted to stop the couple’s son from driving off; they emphasised, however, that he had been determined to force his way through at all costs. Mr and Mrs K.-F., on the other hand, said that the accident had been caused by Mr S.’s aggressive and incomprehensible behaviour towards their son.
12. After consulting the appropriate public prosecutor (Staatsanwalt), the police officers inquired into the address of the applicant and his wife at Bad Soden and discovered that it was merely a Post Office box. The Bad Soden police also informed them that the applicant had previously been under investigation for fraud.
13. At 9.45 p.m. on the same day Detective Sergeant Laux, accompanied by Constables Walther, Kugel and Reuter, arrested Mr and Mrs K.-F. and their son and took them to Cochem-Zell police station so that their identities could be checked. The son was released shortly afterwards but Mr and Mrs K.-F. were provisionally held in police custody. In a report drawn up at 11.30 p.m. the police stated that they strongly suspected Mr and Mrs K.-F. of rent fraud (Einmietbetrug) and that there was a risk that they would abscond. The questioning ended at 12.45 a.m.
14. Inquiries made during the night into the applicant’s various addresses revealed that he had been the subject of other criminal proceedings on suspicion of fraud and that the Hanau Public Prosecutor’s Office (Staatsanwaltschaft) had opened a preliminary investigation in respect of him for the same reason.
15. On the morning of 5 July 1991 (between 8.30 a.m. and 9.40 a.m.), Superintendent Blang of the Cochem-Zell police questioned the applicant further. His wife was interviewed at 9.05 a.m.
16. At about 9.25 a.m. the Hanau Public Prosecutor informed Superintendent Berg, likewise of the Cochem-Zell police, that he did not intend to issue a warrant for the applicant’s arrest.
17. At 10.30 a.m. Mr and Mrs K.-F. were released and taken back to Ulmen.
18. On 5 July 1991 Mrs S. lodged a complaint against Mr and Mrs K.-F. alleging attempted rent fraud.
19. On 13 September 1991 the Koblenz Public Prosecutor’s Office discontinued the criminal proceedings against the applicant and his wife on the ground that it had not been proved that Mr and Mrs K.-F. had not intended – or had not been able – to pay the rent owed, as they had paid most of the arrears in mid-July 1991 and there was a civil dispute over the balance. Furthermore, the incident that had occurred at Ulmen on 4 July 1991 did not justify concluding that Mr and Mrs K.-F. had not intended to pay their debts, as only their son had attempted to drive off and there was no concrete evidence to show that they had sought to make off surreptitiously.
20. On 7 October 1991 Mr K.-F. lodged a complaint with the Koblenz Public Prosecutor’s Office against the police officers and public prosecutors concerned in the events of 4 and 5 July 1991 alleging false imprisonment (Freiheitsberaubung), attempted coercion (versuchter Nötigung) and insulting behaviour (Beleidigung). He maintained that his arrest and detention at Cochem-Zell police station had been unlawful, since he had not committed any criminal offence as only the rent tribunal had jurisdiction to hear disputes over the amount of rent. The police officers had likewise acted unlawfully in recording his personal details.
21. On 2 January 1992 the Koblenz Public Prosecutor’s Office discontinued the proceedings against Detective Sergeant Laux and three other police officers who had taken part in the arrest, and against the two public prosecutors. The Office considered that in all the circumstances they had not acted unlawfully. In particular, the police officers who had gone to Ulmen during the evening of 4 July 1991 had had reasonable grounds for suspecting Mr and Mrs K.-F. of defrauding Mr and Mrs S. and intending to leave without paying the sums due.
22. The applicant appealed against that decision to the Koblenz Principal Public Prosecutor’s Office (Generalstaatsanwaltschaft), who confirmed the decision on 28 February 1992.
23. On 6 April 1992 the applicant applied to the Koblenz Court of Appeal (Oberlandesgericht) for an order that Detective Sergeant Laux and Constables Walther, Kugel and Reuter be prosecuted for attempted coercion and false imprisonment.
He described what had happened and said that it had been agreed between his wife and Mrs S. that the rent would be paid on 8 July 1991. That agreement had not been to the liking of Mr S., who had assaulted his son to prevent him driving off. His wife had even called the police for assistance. Furthermore, neither he nor his wife had intended to leave the rented flat; they had not started to pack any suitcases and their personal belongings were still in the cupboards and drawers. The police officers’ brutal searching of him, his wife and his son, the searching of their home, their arrest and their subsequent detention had accordingly been totally illegal for want of any basis in law, as they had not complied with the requirements of either Article 163 b or Article 127 § 2 taken together with Article 112 of the Code of Criminal Procedure (Strafprozeßordnung – see paragraph 35 below).
24. On 21 May 1992 the Court of Appeal dismissed Mr K.-F.’s application on the ground that there was insufficient cause to prosecute the police officers (kein hinreichender Tatverdacht).
It held, inter alia:
“There is sufficient cause to prosecute where, in the light of all the evidence and the prosecution’s assessment of the facts, it is to be expected that the potential defendants will be convicted (cf. Kleinknecht/Meyer, [Code of Criminal Procedure], 40th ed., § 170 no. 1). The findings of the investigation do not found such an expectation. There would have been sufficient cause to prosecute for false imprisonment (Article 239 of the Criminal Code) if the accused police officers had unlawfully taken the applicants to the police station and held them there. The investigation did not disclose any such unlawful act. The inquiries made at Ulmen gave the police officers on duty cause to suspect a fraud on Mr and Mrs [S.] (rent arrears and telephone bills amounting to approximately DEM 4,000), especially as the applicants had admitted that they were not then able to find that sum. Furthermore, according to the statements of the witnesses [J.] and [S.] (page 4 of file Js 25638/91) and the findings of the accused police officers (position of the wheels of the vehicle ... – page 4 of the above-mentioned file), the accused police officers had the impression that ‘[K.-F.] intended to drive off come what might’. The fact that the accused police officers, in the light of all these circumstances, consequently suspected the applicant of ‘attempted rent fraud’ cannot be criticised. The arrest was accordingly, on the facts, likewise justified. At the police station the alleged offenders, who had had the applicants’ address checked, learned that, according to inquiries made at Bad Orb, the address there was ‘fictitious’ and that, according to further inquiries made of the Hanau Public Prosecutor’s Office, several sets of proceedings were pending against the applicants for fraud. The applicants’ detention at the police station was therefore justified. The question whether it was necessary to hold them until the following morning can be left open in the instant case as, on grounds of intent at least, the potential defendants’ conviction on a charge of false imprisonment is unlikely.
Nor did the investigation disclose sufficient evidence of joint coercion (Article 240 and Article 25 § 2 of the Criminal Code). On the basis of the information obtained at Ulmen that has previously been referred to, the accused police officers could reasonably presume that an offence had been committed. It was accordingly lawful in the circumstances to carry out a search (Article 163 b § 1, third sentence, of the Code of Criminal Procedure). Besides, even if it were to be accepted that there had been coercion, the accused police officers’ behaviour could not be considered reprehensible within the meaning of Article 240 § 2 of the Criminal Code. For the purposes of that provision, reprehensible behaviour is behaviour which in all the circumstances is so manifestly objectionable that it calls for punishment under the criminal law as a gross interference with other people’s exercise of free will (see Criminal Decisions of the Federal Court of Justice 17, 328, 332).
Measured against these principles, the accused police officers’ behaviour cannot be said to have been reprehensible. The findings of the investigation at Ulmen – before the police officers entered the premises – and in particular the conduct of the applicants’ son, who, according to the [S.] family, sought to drive off aggressively in his car, could perfectly well have led the police officers to believe that the applicants might also make off without paying their relatively substantial rent arrears.
The Koblenz Public Prosecutor was therefore right to discontinue the proceedings, there being insufficient cause to bring a prosecution for false imprisonment and coercion.”
25. On 21 September 1992 the applicant complained to the Koblenz Principal Public Prosecutor’s Office that no official decision had been taken on the allegations against Superintendent Blang of the Cochem-Zell police.
26. On 28 December 1992 the Koblenz Public Prosecutor’s Office discontinued proceedings in that case also. It said that the offences of insulting behaviour were statute-barred. As to the offences of attempted coercion and false imprisonment, it pointed to the Koblenz Court of Appeal’s judgment of 21 May 1992 to justify discontinuing the proceedings.
27. The applicant appealed against that decision to the Koblenz Principal Public Prosecutor’s Office.
28. On 15 February 1993 the Public Prosecutor’s Office reopened the investigation in respect of Superintendent Blang and took several written statements, including one from Mr K.-F. and one from Superintendent Blang.
29. On 18 June 1993 the Koblenz Public Prosecutor’s Office discontinued the proceedings permanently.
30. The applicant appealed against that decision to the Koblenz Principal Public Prosecutor’s Office, which confirmed it on 3 September 1993.
31. On 7 October 1993 Mr K.-F., relying on the same arguments as before (see paragraph 23 above), made a further application to the Koblenz Court of Appeal for an order that Superintendent Blang be prosecuted for attempted coercion, false imprisonment and insulting behaviour.
32. On 30 November 1993 the Court of Appeal dismissed the application on the ground that there was not sufficient cause to bring a prosecution against the superintendent.
It held, inter alia:
“There would be sufficient cause to bring a prosecution for false imprisonment (Article 239 of the Criminal Code) if the accused police officer had unlawfully prevented the applicant from leaving the police station. According to the reasons set out on p. 3 of the Division’s judgment of 21 May 1992 (1 Ws 164/92), the applicant was held at the police station lawfully. In the aforementioned judgment the Division had already explained that the question whether it had been necessary to hold the applicant in detention until the following morning could be left open as, on grounds of intent at least, the potential defendants (Laux, Walther, Kugel and Reuter) were unlikely to be convicted of false imprisonment. In his report dated 4 July 1991 (pp. 23 et seq. of the file) Detective Sergeant Laux said (p. 24) that ‘Mr and Mrs [K.-F.] and their son were first taken to the police station so that their identity could be checked’ and Mr and Mrs [K.-F.] were held in police custody after consultation of Supt. Blang. The second sentence of Article 127 § 1 of the Code of Criminal Procedure provides that the checking of a person’s identity by police officers must be conducted in accordance with Article 163 b § 1 of that code. A person affected by a measure taken under Article 163 b for the purposes of checking his identity cannot be deprived of his liberty for more than twelve hours in all. The applicant was detained at 9.45 p.m. on 4 July 1991 (page 19) and released at 10.30 a.m. on 5 July 1991 (page 20). For this detention, which lasted for more than twelve hours, Superintendent Blang was responsible. On the basis of the evidence as it currently stands, however, it appears unlikely that he would be convicted of false imprisonment as ultimately it will not be possible to establish that he was aware that the maximum permitted period had been exceeded.
A conviction for coercion (Article 240 of the Criminal Code) appears equally unlikely.
As to the applicant’s allegation that he was ordered to leave the district (Verweisung), the decision to discontinue the proceedings rightly points out that it is far removed from reality. The ‘raised fist’ and the assertion that ‘sparks are going to fly’ are denied in the accused police officer’s statement. No other evidence, beyond the applicant’s statements, is to be found. On the basis of the evidence as it currently stands, the decision to discontinue the proceedings cannot be criticised. For these reasons, no offence of extorting a confession (Article 343 of the Criminal Code) has been made out either. Given the information to which the Division has already referred in its judgment of 21 May 1992, the checking of the applicant’s identity was justified. Nor, lastly, can the accused police officer be said to be guilty of coercive behaviour in having forbidden the applicant to enter the flat at Ulmen to collect personal belongings. In the police officer’s view, his behaviour cannot be shown to have been reprehensible since he had cause to believe that as the rent for the holiday flat had not been paid as agreed, the landlord was entitled to exercise a lien.
The application to the Court against the refusal to prosecute (Klageerzwingungsverfahren) was at first sight also admissible in respect of the accusation of insulting behaviour, because the reported criminal act within the meaning of Article 264 of the Code of Criminal Procedure also includes the offences of coercion and false imprisonment, which only the Public Prosecutor’s Office can prosecute (Offizialdelikte). As, however, there is insufficient cause to bring a prosecution for the offences which can be prosecuted only officially, the third sentence of Article 172 § 2 of the Code of Criminal Procedure again operates to bar (Sperrwirkung) the present proceedings to challenge the refusal to prosecute in respect of the alleged insulting behaviour, an offence that can be prosecuted privately (Privatklagedelikt), so that the Division is unable to consider the merits of the related accusation.”
33. On 2 January 1994 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) with the Federal Constitutional Court (Bundesverfassungsgericht) alleging a violation of his fundamental rights.
34. On 15 March 1994 the Federal Constitutional Court, sitting with three members, declined to accept the complaint for adjudication.
35. The relevant provisions of the Code of Criminal Procedure read as follows:
“To the extent that they are necessary for the conduct of a criminal investigation or for the purposes of the criminal identification department, a suspect’s photographs and fingerprints may be taken even against his will, his measurements may be recorded and other similar measures taken.”
“1. A suspect’s detention pending investigation may be ordered where it is strongly suspected that he has committed an offence and a ground for his detention exists. Detention shall not be ordered if it is disproportionate to the seriousness of the case and to the likely sentence or rehabilitative or security measure.
A ground for detention exists where, on the basis of definite facts:
(1) it is established that the suspect is on the run or in hiding;
(3) the suspect’s behaviour gives rise to a strong suspicion that he will
(a) destroy, alter, dispose of, suppress, or falsify evidence; or
(b) improperly influence other suspects, witnesses or experts; or
(c) incite third parties to do so;
and where as a result there is a danger that the discovery of the truth will be impeded (risk of suppression of evidence).
…”
“1. Anyone may provisionally arrest without a judicial warrant a person caught in the act of committing an offence or being pursued after committing one, if there is reason to believe that he is absconding or if his identity cannot be immediately established. Identity checks by the public prosecutor’s office or the police shall be carried out in accordance with Article 163 b § 1.
2. Members of the public prosecutor’s office and police officers shall have authority to effect a provisional arrest in cases where there is imminent danger, provided that the conditions for the issue of an arrest warrant or warrant of commitment are satisfied.
…”
“1. If not released, an arrested person must immediately – and in any event no later than the day after his arrest – be brought before a judge of the District Court (Amtsgericht) in whose area he was arrested …
…”
“The police and the public prosecutor’s office may take such measures as are necessary to establish the identity of a person suspected of an offence … They may arrest him if his identity cannot be otherwise established or can only be established with great difficulty. On the conditions laid down in the second sentence, the suspect may be searched, articles in his possession examined and measures taken to enable him to be identified.”
“1. A person affected by a measure provided for in Article 163 b shall under no circumstances be detained for longer than is necessary for his identity to be checked. A person so detained must immediately be brought before a judge of the District Court in whose area he was arrested for it to be decided whether the deprivation of liberty is lawful and whether it should be continued, unless it would foreseeably take longer to obtain a judicial decision than to check his identity.
…
3. Deprivation of liberty for the purpose of checking identity shall not exceed a total of twelve hours.”
36. Article 11 § 1, sub-paragraph 2, of the Rhineland-Palatinate Police Administration Act (Rheinland-Pfälzisches Polizeiverwaltungsgesetz) provides:
“The police may take measures to establish or record identity where … such measures are necessary for the prevention of criminal offences because the person concerned is suspected of having committed a punishable offence and the nature of the offence and the manner in which it was committed are such that there is a danger that it may be repeated.”
37. Article 98 §§ 1 and 2 of the Code of Criminal Procedure provide:
“1. Seizure can only be ordered by a judge or, in cases where there is imminent danger, by the public prosecutor or a police officer …
2. An official who seizes goods without a judicial warrant must, within three days, seek retrospective authority for the seizure from a judge if the seizure was carried out in the absence of the person concerned or a close adult relative, or if the person concerned or (in his absence) a close adult relative expressly objected to it. The person concerned may at any time apply to a judge for a decision …
…”
38. Under section 23 (1) of the Introductory Act to the Judicature Act (Einführungsgesetz zum Gerichtsverfassungsgesetz),
“The lawfulness of orders, injunctions or other measures issued by the judicial authorities in order to settle specific matters in the field of civil law (bürgerliches Recht) ... and the administration of criminal justice (Strafrechtspflege), shall, upon application, be determined by the ordinary courts ...”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-122236
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: BALAKCHIEV AND OTHERS v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The first applicant, Mr Anton Antonov Balakchiev, was born in 1978. The second applicant, Mr Bozhidar Antonov Balakchiev, was born in 1945. The third applicant, Mr Stefan Donchev Donchev, was born in 1925. The fourth applicant, Mr Lyubomir Dimitrov Balakchiev, was born in 1947. The fifth applicant, Ms Nedka Bozhkova Balakchieva, was born in 1951. The sixth applicant, Mr Borislav Antonov Balakchiev, was born in 1972. All applicants are Bulgarian nationals and live in Sofia.
2. The applicants were represented before the Court by Mr Y. Yordanov, a lawyer practising in Veliko Tarnovo.
3. The respondent Government (“the Government”) were represented by their Agent, Ms K. Radkova, of the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. All of the applicants are heirs of shareholders in a company which owned a chocolates factory in Sofia. In 1950 the factory was nationalised under a 1947 statute providing for the nationalisation of private enterprises. After that the property was used by a State enterprise, which in 1991 was transformed into a limited liability company fully owned by the State.
6. A statute providing for the restitution of certain nationalised immovable properties by operation of law came into force in February 1992. Finding that the property fell within the statute’s ambit, on 3 August 1993 the Mayor of Sofia decided to strike it out of the register of State properties and to surrender its possession to the applicants, with the exception of three storeys added to one of the preexisting buildings after nationalisation and of three other buildings that had also been erected after nationalisation.
7. In 1993 the applicants brought a claim against the State in relation to those buildings. It was rejected by the Sofia City Court in 1994.
8. On 2 September 1993 the company surrendered possession of the property to the applicants, with the exception of the three additional storeys and the three buildings.
9. On 22 April 1994 the applicants made an agreement with the company. The company agreed to transfer them possession of the three additional storeys and the three buildings in return for the applicants not claiming from the company compensation in respect of the period during which it had continued to use the rest of the property even though it had already been restituted to the applicants by operation of law. The agreement also said that from the date of transfer of possession the applicants were to be regarded as owners of the property. The parties stipulated that the amount of that compensation, which they put at thirteen and a half million old Bulgarian levs, was equal to the value of the three additional storeys and the three buildings. Lastly, the parties agreed to waive any claims that they might have against each other in connection with those matters. The agreement was to take effect following its approval by the Minister of Industry.
10. In June 1994 the State sold seventy per cent of the shares in the company to a foreign investor. On 21 October 1994 the company held a general meeting of shareholders. The meeting resolved to approve the April 1994 agreement and instructed the company’s director to transfer possession of the three additional storeys and the three buildings to the applicants and to execute the requisite conveyancing deeds.
11. However, the transaction was not carried out for several years, and in June 1998 the applicants brought a claim against the company, the Ministry of Industry and the Sofia Municipality. Considering that the April 1994 agreement, as confirmed on 21 October 1994, in effect amounted to a preliminary contract to convey the property, they sought a court order that the contract was to become definitive. The company and the municipality did not appear in court to defend the claim, and the Ministry argued that it was not a proper defendant to it because it was only a shareholder in the company.
12. Between 1999 and 2006 the proceedings in the case were suspended a number of times for various reasons.
13. In a judgment of 2 June 2007 that court dismissed their claim. It started by holding that only the company and the Ministry were proper defendants to the claim and that, in as much as directed against the municipality, the claim was inadmissible. The court went on to find that the April 1994 agreement did not constitute a preliminary contract for the conveyance of property because the parties to it had spoken only of possession and had not stipulated such conveyance in terms. Moreover, two essential elements of such a preliminary contract – a specific description of the property and a specific price – were missing from the agreement. It had not set out the property or the price in a sufficiently clear way. Nor had the applicants provided evidence that the purported seller – the company – was indeed the owner of the property in issue.
14. On 17 July 2007 the sixth applicant appealed, arguing that the Sofia City Court’s findings in relation to the terms of the April 1994 agreement were erroneous.
15. On 19 June 2009 the Sofia Court of Appeal upheld the lower court’s judgment. It held that the April 1994 agreement, when seen in its proper context, had amounted to a preliminary contract, and had set out the property and the price in a sufficiently clear way. However, it went on to find that the applicants had not put forward sufficient proof that the company was indeed the owner of the property. Their claim had therefore been rightly dismissed in relation to the company. As for the Ministry, it was only a shareholder in the company, and as such could not incur liability for agreements to which the company was party. The claim against it was ill-founded as well.
16. On 30 September 2009 the sixth applicant appealed on points of law, arguing that it was evident that the company, which had received title to the three additional storeys and the three buildings from the State, was their owner.
17. In a final decision of 11 May 2010 the Supreme Court of Cassation refused to take the appeal for examination, holding that the point raised in it had not been decisive for the determination of the applicants’ claim.
18. A 2007 amendment to the 1991 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). Both the Chief Inspector and the inspectors are elected by Parliament by a majority of two thirds; the term of office of the Chief Inspector is five years and that of the inspectors is four years (Article 132a §§ 2 and 3).
19. The manner of election and dismissal of the inspectors is laid down in sections 4253 of the Judiciary Act 2007 (“the 2007 Act”). They must be lawyers having high professional and moral qualities (section 42(1)). The Chief Inspector must have at least fifteen years of professional experience, and the inspectors at least twelve years of professional experience (section 42(2) and (3)). They cannot engage in a number of activities – such as business or being member of a political party – that might prejudice their independence (section 43 read in conjunction with section 18(1)). They may be dismissed before the expiry of their term of office only if they resign, are finally convicted of a criminal offence, are unable to carry out their duties for more than one year, are deprived of the right to exercise as a lawyer, heavily or systematically breach their duties or commit acts which tarnish the prestige of the judiciary, or do not cease activities that they are prohibited from pursuing while in office (section 48(1)). The proposal for dismissal must be made by at least onefifth of the members of Parliament (section 48(2)). The remuneration of the Chief Inspector is equal to that of a section president of the Supreme Court of Cassation, and the remuneration of the inspectors is equal to that of a judge of that court (section 51).
20. On 6 April 2012 the Government laid before Parliament a bill for the amendment of the 2007 Act. The explanatory notes to the bill said the following:
“Slow judicial proceedings lead to an enormous amount of judgments of the European Court of Human Rights against Bulgaria. In its judgments concerning the right to a fair trial within a reasonable time the European Court of Human Rights (‘the ECtHR’) emphasises the need for the introduction of an effective domestic remedy in respect of such breaches. With a view to securing the effective exercise of the right to a fair trial within a reasonable time, in its case-law the ECtHR points to the need to introduce a remedy capable of providing compensation for damage resulting from delays in proceedings (compensatory remedy).
The systemic problem found by the ECtHR in relation to the excessive duration of criminal and civil cases in the Republic of Bulgaria calls for urgent legislative measures to introduce the remedies suggested by the European Court.
With a view to the effective use of the available resources, it is expedient to give the power to find a breach and set compensation to an existing authority with similar competences. In view of the constitutional function of the Inspectorate attached to the Supreme Judicial Council to check the work of the judiciary (Article 132a § 6 of the Constitution) and more specifically its power under section 54(1)(2) of the Judiciary Act [2007] to check the processing of court, prosecutors’ and investigation cases and their completion within the prescribed time-limits, the bill envisages the creation of a special unit attached to the Inspectorate. That special unit will examine and decide complaints relating to breaches concerning the unreasonable length of completed civil, administrative and criminal cases, as well as discontinued pre-trial proceedings. An important premise for laying down the procedure in such a way is the Inspectorate’s constitutional obligation to carry out checks pursuant to reports by private individuals and legal persons (Article 132a § 7 of the Constitution).
The right to complain is open to all persons who may suffer damage as a result of delays in proceedings: parties to judicial proceedings (civil, administrative and criminal) or persons subjected to the pre-trial phase of criminal proceedings (accused, victims and wronged legal persons).
The envisaged procedure will be a light (simple) way of obtaining redress. The complainant will not have to produce evidence – it will be gathered by the checking panel of their own motion; no fees will be due; the proceedings will finish in six months with a settlement, which will ensure fast payment of the compensation.
Since the proposed procedure envisages a light and fast mode of redress, there is a cap on the maximum amount of compensation. This cap conforms with the ECtHR’s case-law on the amount of compensation awarded in past cases.
The transitional and concluding provisions allow the procedure to be applied in respect of complaints already lodged through the ECtHR.
The compensatory remedy has to have retrospective effect, so as to be available to persons who have become victim of excessive length of proceedings even before the coming of the Act into force, including those who have lodged applications with the ECtHR, if that court has not yet ruled on the admissibility of those applications.
The creation of an effective domestic remedy will ensure a drastic reduction of the number of applications to the ECtHR and will thus lead to less judgments finding a breach of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.”
21. The bill underwent its first reading on 10 May 2012, and its second reading on 7 June 2012, when it was adopted. The Act was published in the State Gazette on 3 July 2012. It inserted a new Chapter 3a in the 2007 Act. The Chapter is entitled “Examination of applications against breaches of the right to examination and determination of the case within a reasonable time” and consists of twelve sections. The newly introduced provisions, the bulk of which came into force on 1 October 2012, read as follows:
60a. (1) This chapter applies to applications by individuals and legal persons against decisions, actions or omissions of judicial authorities which infringe their right to have their cases examined and decided within a reasonable time.
(2) Applications under subsection 1 shall be lodged by individuals and legal persons who are:
1. parties to finished civil, administrative or criminal proceedings;
2. accused, victims or wronged legal persons in discontinued pretrial proceedings;
(3) This chapter set out the manner of determining and paying compensation in line with the case-law of the European Court of Human Rights not amounting to more than 10,000 levs.
(4) Applications under subsection 1 shall be lodged within six months after the conclusion of the proceedings at issue with a final decision, though the Inspectorate attached to the Supreme Judicial Council to the Minister of Justice.
(5) A special register shall be created for the applications, and it shall be published on the internet site of the Inspectorate attached to the Supreme Judicial Council.
(6) No fees shall be due for the examination of applications under this chapter.
60b. (1) The application must be written in Bulgarian and set out:
1. for Bulgarian nationals – their names as featuring in the identification documents; uniform citizen number and address; telephone, fax and electronic address, if any;
2. for foreigners – their names as featuring in the identification documents; uniform foreigner number and address; telephone, fax and electronic address, if any;
3. the commercial firm of the trader or the name of the legal person, written in Bulgarian; the seat and the latest registered address and electronic address;
4. the decision, action or omission alleged to amount to a breach by the respective authority;
5. the authority to which the application is addressed;
6. the request for relief;
7. the applicant’s signature.
(2) Applicants shall submit a declaration that they have not sought or obtained compensation in respect of the same breach in other proceedings.
60c. (1) Applications under section 60a(1) shall be examined by the Inspectorate attached to the Supreme Judicial Council, which shall set up a special unit for this purpose.
(2) The experts staffing the unit shall be lawyers who have at least five years of professional experience. Their remuneration shall be equal to that of a district court judge.
(3) The chief inspector shall allocate incoming applications to panels consisting of one inspector and two experts, randomly selected, and one of the experts shall be appointed as rapporteur.
(4) If the application does not meet the requirements of section 60b(1) or (2), the applicant shall be given notice to rectify the deficiencies within seven days of receiving the notice.
(5) If the applicant does not rectify the deficiencies, the application and the supporting documents shall be returned.
60d. (1) The results of the examination shall be noted down in a record of findings.
(2) That record shall be signed by the members of the panel and shall contain information about:
1. the time and place where and when it has been drawn up;
2. the applicant;
3. the panel which has examined the application;
4. the case in respect of which it is being drawn up;
5. the overall duration of the proceedings; the period of delay attributable to the competent authority; the period of delay attributable to actions or omissions of the complainant or his legal or procedural representative;
(3) The record of findings shall also set out the view of the panel as to whether the time-limit under section 60a(4) has been met.
60e. The record of findings under section 60d shall be drawn up within four months of receipt of the application or the rectification of its deficiencies, as the case may be. The record, along with the application and all supporting documents, shall be sent immediately to the Minister of Justice.
60f. (1) Based on the findings of the panel, the Minister of Justice or a person authorised by him or her shall reject the application as unfounded if
1. the length of the proceedings has not exceeded a reasonable time;
2. the delay is due to actions or omissions of the applicant or his legal or procedural representative.
(2) If the right of the applicant to have his or her case examined and decided within a reasonable time has been breached, the Minister of Justice or a person authorised by him or her shall fix the amount of compensation in line with the caselaw of the European Court of Human Rights and shall propose the conclusion of a settlement with the applicant.
60g. The underlying circumstances shall be examined and the application shall be determined within six months of the application’s receipt.
60h. Compensation shall be paid on the basis of the concluded settlement.
60i. The funds required for the payment of sums under concluded settlements shall be covered by the republican budget.
60j. (1) Compensation due under this chapter shall be paid out of the budget of the Ministry of Justice.
(2) Each quarter the Minister of Finance shall make available to the budget of the Ministry of Justice funds matching the compensations actually paid under subsection 1 during that quarter through a modification of the budgetary arrangements with the central State budget.
60k. Persons who have received compensation under this chapter may not seek compensation in respect of the same matter by way of civil proceedings.
60l. (1) Every quarter the chief inspector shall send to the Supreme Judicial Council information about breaches found, and Minister of Justice – about compensations paid out.
(2) Every six months the Supreme Judicial Council shall analyse the reasons for the breaches and shall take measures to eliminate them.
(3) The Supreme Judicial Council shall publish on its internet site the information under subsections 1 and 2.
22. Paragraphs 34 and 35 of the transitional and concluding provisions of the amending Act provide as follows:
34. (1) Within six months of the entry into force of Chapter 3a or of notification by the Registry of the European Court of Human Rights, persons who have lodged with the European Court of Human Rights applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under Chapter 3a, except in cases where the Court has already given judgment on the merits of the application or has rejected the application as inadmissible.
(2) Applications under subparagraph 1 shall be examined within eighteen months of their receipt.
35. To ensure the application of Chapter 3a in 2012 the Council of Ministers shall make available additional funds in the budgets of the Judiciary and the Ministry of Justice.
23. In a decision of 11 September 2012 that came into effect on 18 September 2012 (Постановление № 209 от 11 септември 2012 г. за одобряване на допълнителни бюджетни кредити по бюджета на съдебната власт и по бюджета на Министерството на правосъдието за 2012 г.), the Council of Ministers increased the budget of the judiciary with 300,000 Bulgarian levs earmarked for the creation, in the Inspectorate attached to the Supreme Judicial Council, of the special unit dealing with applications under Chapter 3a of the 2007 Act (point 1(1) of the decision).
24. In September 2012 the Inspectorate appointed a number of officials and assigned them to the special unit dealing with applications under Chapter 3a of the 2007 Act. On 1 October 2012 the Inspectorate published on its website an application form and a sample declaration under section 60b(2) of the 2007 Act (see paragraph 21 above). It later put on its website software allowing applicants to lodge applications electronically and track their progress online.
25. On 23 July 2012 the Government laid before Parliament a bill for the amendment of the State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”). The explanatory notes to the bill said the following:
“An analysis of the judgments in which the European Court of Human Rights has found violations in respect of Bulgaria shows that there are repetitive violations due to the lack of an effective domestic remedy allowing those concerned to obtain redress. More specifically, there is a need to create a domestic remedy allowing those concerned to obtain compensation for damage resulting from a breach of the [Convention] made by the State or its authorities or officials. The Court’s finding that the law of the Republic of Bulgaria does not make provision for such a remedy calls for its creation through an expansion of the ambit of the State and Municipalities Responsibility for Damage Act [1988]. This will overcome the prior approach – to provide for liability only in specific circumstances – which has led to many violation judgments of [the Court] against Bulgaria.
For that purpose, it is proposed to make the following amendments and additions to the Act:
...
2. The proposal to insert a new section 2b seeks to broaden the ambit of the Act, so that it embrace also cases of ‘delayed justice’. Under the pilot judgments of the European Court of Human Rights in the case of Finger [cited above] (which concerns civil cases) and the joined cases of Dimitrov and Hamanov [cited above] (which concern criminal cases), which find breaches of Article 6 § 1 of the Convention, the Bulgarian authorities must, within twelve months (until 10 August 2012) put in place a mechanism to resolve the systemic problem concerning the ‘reasonable time’ of proceedings. The envisaged amendments create a mechanism for the compensation of damage.
Individuals and legal persons whose right to have their cases examined and decided within a reasonable time been breached may bring claims under section 2b only if they have exhausted the administrative procedure for obtaining compensation under Chapter 3a of the Judiciary Act [2007] but have not reached a settlement.
At the same time, in cases of separate breaches occurring in one and the same proceedings, the fact that a person has brought a claim in respect of one breach does not prevent him or her from seeking compensation in respect of a breach of the right to a trial within a reasonable time in cases where the overall length of the proceedings has been excessive.
3. ... As regards claims for compensation in respect of breaches of the right to have one’s case examined and decided within a reasonable time, [the amendments] envisage that such claims, in view of their character and subject matter, shall be examined by the court having local jurisdiction in the place where the aggrieved person has his or her current address or its seat.
4. It is proposed to insert transitional provisions under which, within six months of the entry into force of the Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to [that Court] have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings are still pending before the national courts, may also bring claims for compensation under section 2b.
In respect of proceedings which have already ended at the national level, within six months of the entry into force of the Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to [that Court] have been rejected due to failure to exhaust the newly created domestic remedies may lodge applications for compensation under Chapter 3a of the Judiciary Act [2007].
Persons whose national pretrial or judicial proceedings have ended at the time when the Act comes into force, and less than six months have elapsed since the final decision, shall also have the right to lodge applications for compensation under Chapter 3a of the Judiciary Act [2007] within six months of the Act’s entry into force.
The bill reflects the proposals of nongovernmental organisations, the European Court of Human Rights’ caselaw, and the recommendations of the Council of Europe’s Committee of Ministers, and with it the Republic of Bulgaria shall fulfil its duties of State Party to the [Convention].”
26. The bill underwent its first reading on 26 September 2012 and its second reading on 28 November 2012, when it was adopted. The amending Act was published in the State Gazette on 11 December 2012 and came into force on 15 December 2012. It amended a number of provisions of the 1988 Act. In particular, it inserted a new section 2b, which is entitled “Liability of the judicial authorities for breaches of the right to have one’s case examined and decided within a reasonable time” and reads as follows:
“1. The State shall be liable for damage caused to individuals or legal persons by breaches of the right to have one’s case examined and decided within a reasonable time, in accordance with Article 6 § 1 of the Convention.
2. Claims under subsection 1 shall be examined in the manner provided by the Code of Civil Procedure [2007], and the court shall take into account the overall duration and the subject matter of the proceedings, their factual and legal complexity, the conduct of the parties and their procedural or legal representatives, the conduct of the other participants in the proceedings and of the competent authorities, as well as other facts which have a bearing on the proper determination of the dispute.
3. The bringing of a claim for damages in respect of pending proceedings shall not preclude the bringing of a fresh claim after the proceedings have come to end.”
27. A new section 7(2) provides that claims for compensation under section 2b are to be brought in the court in whose region the aggrieved person has his or her current address or seat.
28. A new section 8(2) provides that individuals or legal persons may bring claims under section 2b(1) in respect of proceedings which have ended only if they have already exhausted the administrative procedure under Chapter 3a of the 2007 Act (see paragraph 21 above) but that procedure has not resulted in a settlement.
29. Paragraphs 8 and 9 of the transitional and concluding provisions of the amending Act provide as follows:
“8. (1) Within six months of the entry into force of this Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to the European Court of Human Rights have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings are still pending before the national courts, may also bring claims for compensation under section 2b.
(2) Within six months of the entry into force of this Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to the European Court of Human Rights have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings at national level have already ended, may lodge applications for compensation under Chapter 3a of the [2007 Act].
9. Persons whose national pretrial or judicial proceedings have ended at the time when this Act comes into force, and less than six months have elapsed since the final decision, shall also have the right to lodge applications for compensation under Chapter 3a of the [2007 Act] within six months of this Act’s entry into force.”
30. Section 4 of the 1988 Act provides that the State is liable for all pecuniary and nonpecuniary damage which is a direct and proximate result of the impugned act, action or omission. However, the Supreme Court of Cassation and the Supreme Administrative Court have held that legal persons, such as commercial companies, cannot suffer nonpecuniary damage and are not entitled to compensation for such damage (see опр. № 271 от 19 март 2010 г. по гр. д. № 8/2010 г., ВКС, III г. о., and реш. № 7861 от 6 юни 2011 г. по адм. д. № 3689/2011 г., ВАС, III о.).
31. Section 9a(1) of the Act, which was inserted in April 2008 and came into force in May 2008, provides that the fee due in respect of cases under the Act is flat and is to be fixed in a tariff adopted by the Government. Under the Tariff of fees collected by the courts under the Code of Civil Procedure, as currently in force, the fee is BGN 10 in respect of firstinstance proceedings, BGN 5 in respect of appellate proceedings, and BGN 5 in respect of cassation proceedings. The fee is payable upfront (see опр. № 12420 от 4 октомври 2011 г. по адм. д. № 12302/2011 г., ВАС, III о.).
32. Section 10(2) of the Act, as worded after May 2008, provides that if the claim is rejected in full, the court must order the claimant to pay the costs of the proceedings. The claimant must also pay those costs if he or she withdraws the claim in its entirety.
33. Section 10(3) of the Act, which was also inserted in April 2008 and came into force in May 2008, provides that if a claim under the Act is allowed fully or in part, the court is to order the defendant to pay the costs of the proceedings and to reimburse the court fee paid by the claimant. The defendant must also pay the claimant the fee of one counsel, if the claimant had retained counsel, pro rata the allowed part of the claim.
34. In their caselaw under section 10(2) and (3), the Supreme Court of Cassation and the Supreme Administrative Court have held that it is a lex specialis in relation to the general rules on costs in the Code of Civil Procedure, and that in the case of a partly rejected claim the defendant authority is not entitled to costs (see опр. № 12023 от 18 октомври 2010 г. по адм. д. № 11620/2010 г., ВАС, I о.; реш. № 785 от 2 март 2011 г. по гр. д. № 556/2010 г. ВКС, III г. о.; and опр. № 525 от 13 октомври 2011 г. по ч. гр. д. № 531/2011 г., ВКС, III г. о.).
35. Article 172 § 2 of the Code of Civil Procedure 1952, superseded on 1 March 2008 by Article 216 § 2 of the Code of Civil Procedure 2007, which is couched in identical terms, provided that when on account of the character of the right in dispute the court’s ruling had to be the same in relation to all coclaimants or codefendants, they were regarded as mandatory coclaimants or codefendants (необходими другари) and the procedural steps taken by one of them produced effects in respect of all of them.
36. Article 519 of the Code of Civil Procedure 2007 provides as follows:
“1. The enforcement of money claims against State bodies and municipalities is not allowed.
2. Money claims against State bodies and municipalities shall be paid out of funds allotted for that purpose in their budgets. For this purpose, the writ of execution shall be presented to the financial department of the [State] body in issue. If no funds have been allocated, the higher [State] body shall take the necessary measures to provide such funds at the latest in the next budget.”
37. In March 2010 the Ombudsman of the Republic challenged that provision before the Constitutional Court. He argued, inter alia, that it fell foul of several Articles of the 1991 Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. On 22 April 2010 the Constitutional Court, noting that under Article 150 § 3 of the 1991 Constitution the Ombudsman was not entitled to seek from the Constitutional Court declarations that statutes are contrary to international treaties to which Bulgaria is party, declared the request admissible in so far as the allegations of unconstitutionality were concerned and inadmissible in so far as the allegations of lack of compliance with the Convention and its Protocol were concerned. In a judgment of 21 December 2010 (реш. № 15 от 21 декември 2010 г. по к. д. № 9/2010 г., обн. ДВ, бр. 5/2011 г.), the Constitutional Court refused to declare Article 519 unconstitutional in so far as it concerns State bodies, but declared it unconstitutional in so far as it concerns municipalities.
38. The Committee of Ministers examined the amendments to the 2007 and the 1988 Acts at its 1150th meeting, held on 2426 September 2012. Based on an information document drawn up by the Department for the Execution of Judgments of the European Court of Human Rights (CM/Inf/DH(2012)27), the Committee adopted the following decision:
“The Deputies
1. took note with interest of the revised action report submitted by the authorities on 30/07/2012 presenting the introduction of an administrative compensatory remedy in the field of excessive length of proceedings, as well as of a draft bill for the introduction of a judicial compensatory remedy in this field;
2. approved the assessment of the administrative remedy and of the draft judicial remedy contained in information document CM/Inf/DH(2012)27 and invited the Bulgarian authorities to provide clarifications as concerns outstanding questions identified in this information document;
3. invited the Bulgarian authorities to adopt rapidly the proposed judicial remedy and to amend the provision governing the retrospective effect of the administrative remedy in order to take into account the requirements of the Court in this respect;
4. decided to declassify information document CM/Inf/DH(2012)27;
5. decided to resume consideration of these cases, including the question of the measures aimed at reducing the length of the judicial proceedings, during one of their next Human Rights meetings and invited the authorities to provide additional information also on this question.”
39. The Committee of Ministers again examined the amendments at its 1157th meeting, held on 46 December 2012. Based on an information document drawn up by the Department for the Execution of Judgments of the European Court of Human Rights (CM/Inf/DH(2012)36), the Committee adopted the following decision:
“The Deputies
As regards the effective remedies required in this field:
1. recalled their decision adopted during their 1150th meeting (DH) (September 2012) according to which the administrative compensatory remedy recently adopted by the authorities and the judicial compensatory remedy proposed in the field of length of proceedings, taken together, seem capable of meeting the main requirements of the caselaw of the Court;
2. noted with satisfaction the adoption by the Bulgarian Parliament, on 28 November 2012, of the legislative amendments aimed at introducing the abovementioned judicial remedy; noted in this respect that according to the information submitted, the adopted provisions are identical to those already assessed by the Committee, except for those relating to the competent courts; invited the authorities to keep the Committee informed about the entry into force of the adopted provisions and to provide it with their translation;
3. noted with interest the explanations provided by the Bulgarian authorities in relation to some outstanding questions identified in Information document CM/Inf/DH(2012)27, in particular their intention to modify the provision governing the retrospective effect of the administrative remedy in order to ensure its compliance with the requirements of the Court in this respect; invited them to reply to the other outstanding questions contained in Information document CM/Inf/DH(2012)36, namely as concerns the functioning of the administrative compensatory remedy;
...
7. invited the authorities to reply to the other outstanding questions identified in Information document CM/Inf/DH(2012)36 and decided to declassify it.”
40. The information document forming the base for this decision (CM/Inf/DH(2012)36) was drawn up on 27 November 2012 and reads as follows:
“...
I. Compensatory remedies elaborated in response to the pilot judgments
A. Presentation of the adopted administrative compensatory remedy
1. Positive aspects of the administrative compensatory remedy
1. The [2007] Act provides that applications for compensation in respect of excessive length of proceedings are to be addressed to the Minister of Justice through the Supreme Judicial Council’s Inspectorate. When examining these claims, the Minister (or a person authorised by him or her) is assisted by a panel made up of an Inspector and two experts working in a special unit of that Inspectorate. The timelimit for the examination of applications is six months. The procedure is free of charge for the claimants.
2. The applications are to be directed ‘against acts, actions or omissions of judicial authorities’, breaching the right to have a case heard and decided within a reasonable time. The authorities have indicated that this wording would not preclude the examination of applications concerning delays that do not stem from omissions by individual judges or judicial officers but, for instance, from an overburdening of the judicial system as a whole.
3. The criteria which must be taken into account when examining applications are the overall length of the proceedings, the delays attributable to the authorities, as well as the delays attributable to the applicant and his representative ([s]ection 60d(2)(5)). The merits of the application and the amount of compensation are to be determined in light of the Court’s caselaw.
4. The compensation is to be paid out of the budget of the Ministry of Justice. The Ministry of Finance must then restore to the budget of the Ministry of Justice the funds paid as compensation each quarter.
Assessment:
5. The law governing the administrative remedy imposes on the authority competent to examine applications for compensation the obligation to take into account the overall length of the proceedings and the conduct of the parties and of the competent authorities, in line with the Court’s caselaw. The legal or factual complexity of the case and the stakes involved in the dispute are not mentioned explicitly, but the general reference to the Court’s case-law should be enough to cause them to be taken into account as well. The new provisions also seem to take into account the caselaw of the Court as to, inter alia, the promptness of the examination, the absence of charges for the introduction of a claim and the existence of specific budgetary provisions. In conclusion, this administrative remedy takes into account, to a very large extent, the criteria used by the Court for the assessment of the excessive length of proceedings.
2. Questions raised by the administrative compensatory remedy
6. The administrative remedy put in place raises a number of questions, namely: (a) the fact that it does not apply to proceedings which are pending, (b) the wording of the provision governing the retrospective effect of the remedy and (c) the compliance of the remedy with the institutional requirements of Article 13 of the Convention, (d) the compensation ceiling and (e) the payment of compensation. In this respect, it should be recalled that the Court has constantly indicated in its caselaw that even if a particular remedy does not fully satisfy the requirements of Article 13, the aggregate of remedies under domestic law may satisfy these requirements. Therefore, the questions raised by this remedy and its weaknesses may be examined also in the light of the judicial compensatory remedy adopted at first reading by the Bulgarian Parliament (for a detailed presentation of the judicial remedy, see paragraphs 2237 below).
(a) Inapplicability of the administrative remedy to proceedings which are still pending
7. The administrative remedy provides that only parties to completed judicial and pre-trial proceedings are entitled to introduce applications for compensation within six months of the end of the proceedings in question. If the proceedings are still pending, the parties have to wait for them to end in order to submit a claim to the Minister of Justice, whatever the delays already accumulated. In contrast, it appears from the information presented by the Bulgarian authorities that the proposed judicial remedy for length of proceedings would also be applicable to proceedings which are still pending.
Assessment:
8. It should be recalled that the Court has already held that the impossibility to use a remedy against the excessive length of proceedings which are still pending may render such a remedy ineffective. It should also be recalled that the pilot judgments require the introduction, within the timelimit set in the operative part of the judgments, of a remedy that fully complies with the Court’s caselaw. It thus appears that the introduction of just an administrative remedy with limited scope is not sufficient to ensure the full execution of the pilot judgments. This lacuna could, however, be overcome by the introduction, without delay, of a judicial remedy which fully complies with the requirements of the Court’s caselaw, as the Bulgarian authorities seem to have foreseen.
(b) Wording of the provision governing the retrospective effect of the remedy
9. Paragraph 34(1) of the transitional provisions of the [2007 Act], which concerns the retrospective effect of the new remedy, is worded as follows (emphasis added):
‘Within six months of the entry into force of Chapter 3a or notification by the Registry of the European Court of Human Rights, persons who have lodged with the European Court of Human Rights applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under Chapter 3a, except in cases where the Court has already given judgment on the merits of the application or has rejected the application as inadmissible.’
Assessment:
10. The current wording of paragraph 34 suggests that the new remedy will not be available to applicants whose applications are declared inadmissible by the Court, and this without making the distinction between the different grounds of inadmissibility. This provision should therefore be amended in order to indicate clearly that it will be available to persons whose applications, introduced before its adoption, are declared inadmissible for nonexhaustion of the domestic remedies. Thus, if the Court confirms the effectiveness of the new remedy or of the aggregate of new remedies, it will be able to declare inadmissible the applications pending before it for nonexhaustion of this remedy/these remedies and the applicants concerned will be able to introduce their applications for compensation at the domestic level. The authorities have indicated that this provision will be amended in the near future in order to ensure that applicants whose applications have been declared inadmissible for nonexhaustion of the domestic remedies will be able to use effectively this new remedy at the domestic level. Information is awaited on the timetable for the adoption of this amendment.
(c) Compliance of the remedy with the institutional requirements of Article 13 of the Convention
11. The new provisions of the [2007] Act describe in considerable detail the procedure for the examination of applications for compensation for excessive length of proceedings. The relevant facts for the examination of a complaint concerning excessive length of proceedings are to be established by a panel of one Inspector from the Supreme Judicial Council’s Inspectorate and two experts working in a special unit of this Inspectorate. This panel communicates its findings to the Minister or to the person whom he or she has authorised to act on his or her behalf.
12. If the Minister of Justice or the person designated by him or her finds that the reasonable-time requirement has not been breached, he or she has to reject the application. If the Minister or the person designated by him or her finds, on the contrary, that the reasonable-time requirement has been breached, he or she has to fix the amount of compensation in line with the Court’s case-law and propose a settlement to the claimant. Claimants who have accepted the settlement and have obtained compensation under that procedure cannot claim compensation in judicial proceedings.
13. The [2007] Act does not contain specific provisions concerning a possible judicial review of the decisions rejecting applications or proposing a settlement.
Assessment:
14. It should be recalled that the authority to which Article 13 refers does not need to be a judicial one for a remedy to be considered effective under the Court’s caselaw. However, the effectiveness of the remedy before that authority is assessed by reference to the guarantees that it affords (see, among other authorities, Leander [v.] Sweden, 26 March 1987, § 77, Series A No. 116). In particular, the decisionmaking body needs to have a ‘sufficiently independent standpoint’ (see, among other authorities, Silver and [O]thers [v.] the United Kingdom, 25 March 1983, § 116, Series A No. 61). It should also be noted that the Court requires in principle that the authority in charge of the implementation of a domestic remedy be able to come up with a ‘legally binding decision’, some element of enforceability being generally required (see, among other authorities, Leander, cited above, § 82). As said above, the caselaw also indicates that even if a single remedy does not fully satisfy the requirements of Article 13, the aggregate of remedies under domestic law may do so (see, among other authorities, Leander, cited above, § 77).
15. In the light of the information currently available, it is not clearly established whether the new administrative procedure under the [2007] Act can be regarded as providing alone the required ‘element of enforceability’ and sufficient ‘independence’. However, for the reasons set out below, if an effective judicial remedy is introduced without delay, the aggregate of remedies could in principle meet the institutional requirements of Article 13.
16. According to the authorities, the settlements proposed by the Minister of Justice should be considered as legally binding decisions, because under the [2007]Act, as amended, the Minister of Finance has to guarantee to the Ministry of Justice funds up to the amounts paid in compensation to claimants. However, a question remains whether the decision of the Minister of Justice taken on applications for compensation, whether positive or negative, can be considered to have itself a legally binding effect in cases in which no settlement has been concluded. In any event, according to the draft bill for the amendment of the [1988 Act] (aiming at the introduction of a judicial remedy), unsuccessful claimants in the procedure before the Minister of Justice and claimants who have refused to conclude a settlement, will have the right to request compensation in the context of judicial proceedings (see paragraphs 29 and 30 below).Thus, it seems that – if the foreseen judicial remedy is adopted – in the absence of a settlement the claim could be resolved by a final and legally binding decision in the context of judicial proceedings.
17. As to the issue of independence of the decisionmaking body, it should be recalled that, in a case against the Czech Republic, the Court accepted that an administrative remedy was effective because the persons who were not satisfied with the decision of the Ministry of Justice on their applications for compensation could seek compensation in the context of judicial proceedings (see Vokurka [v.] the Czech Republic (dec.), No. 40552/02, § 60, 16 October 2007). Thus, if only an administrative remedy is introduced, the availability of judicial review of the decisions of the Minister of Justice may prove crucial for the remedy to meet the institutional requirements of the Court’s caselaw. By contrast, if an effective judicial remedy is introduced without delay as foreseen by the Bulgarian authorities, the aggregate of the two remedies could in principle meet the institutional requirements of Article 13, even in the absence of judicial review of the minister’s decisions.
(d) Compensation ceiling
18. The [2007 Act] provides that compensation cannot exceed 10,000 Bulgarian levs (BGN) (5,112.92 euros (EUR)).
Assessment:
19. As concerns the abovementioned compensation ceiling, there may be situations in which that sum will fall short of the amounts awarded in compensation by the Court. That said sums of up to EUR 5 112.92 appear sufficient, in the light of the Court’s judgments against Bulgaria concerning length of proceedings, to compensate adequately the nonpecuniary damage arising in the majority of cases concerning excessive length of proceedings in Bulgaria. Moreover, if an effective judicial remedy is introduced without delay as foreseen by the Bulgarian authorities, the aggregate of newly introduced remedies would normally be sufficient to provide an adequate level of compensation in all situations, as the draft law concerning the introduction of judicial remedy does not provide for a compensation ceiling.
(e) Timelimit and procedure for payment of compensation
20. The [2007] Act makes provision for a specific funding mechanism for the payment of compensations for excessive length of procedure (see paragraph 4 above). It does not seem to contain any specific provisions concerning the procedure for payment of compensation. In their reply to the questions identified in the memorandum CM/Inf/DH(2012)27 (see DHDD(2012)977), the authorities indicated that budgetary funds and other measures have been foreseen in order to avoid delays in the payment of compensation.
Assessment:
21. The Court’s caselaw requires that payment should normally be made not later than six months after a judgment or a decision in that respect has become enforceable. Given the importance attached by the Court to this requirement, it seems useful to provide the Committee with detailed information on the payment procedure and on the timelimits in which the payments are made in practice.
B. Presentation of the proposed judicial remedy
22. The following presentation is based on the translation of the draft bill for the amendment of the 1988 Act presented by the Bulgarian authorities on 30/07/2012 (see DHDD(2012)732). The judicial remedy adopted at first reading by the Bulgarian Parliament seems to comply in principle with the main requirements of the Court’s case-law in the field of compensatory remedies for excessive length of proceedings. However, some clarifications still seem necessary.
(a) Scope of the remedy
23. Section 2b of the draft bill for the amendment of the [1988 Act] provides that the State is responsible for damages caused to persons and legal entities through breaches, by the judicial authorities, of the right enshrined in Article 6 § 1 of the Convention to have their cases examined and resolved within a reasonable time. The claims have to be examined under the rules of the Code of Civil Procedure. The court have to take into account the legal and factual complexity of the case, the conduct of the claimant, the conduct of the other parties and participants in the proceedings and the conduct of the competent authorities, the stakes involved in the dispute, as well as the overall length of the proceedings. The introduction of a claim for damages while the proceedings are still pending is not an obstacle to introducing a claim for damages after the end of these proceedings. The authorities have confirmed that the scope of the judicial remedy comprises the actions of the prosecutors and the investigating magistrates, as well as the actions of the police investigators (to which makes reference paragraph 9 of the transitional and final provisions of the draft bill for the amendment of the [1988 Act]).
24. As concerns the question of the applicability of the judicial remedy to the procedures concerning execution of court decisions, it should be noted that the majority of the execution proceedings in Bulgaria are conducted by private bailiffs whose civil responsibility can be engaged in a case of damage caused by their activity. As far as the public bailiffs are concerned, although their status is governed by the [2007] Act, they are not magistrates. Therefore, it is not clear whether their actions are covered or not by the scope of the proposed judicial remedy.
Assessment:
25. The scope of the proposed judicial remedy seems to comply with the relevant requirements of the Court’s caselaw. The draft Section 2b refers to breaches of the reasonable time requirement attributable to the judicial authorities. Although this provision does not mention explicitly the delays caused by the police investigators, the Bulgarian authorities have indicated that the delays which have occurred at the stage of the preliminary investigation and are attributable to the police investigators will fall within the scope of the judicial remedy. It would be useful to clarify whether this is so also in respect of the actions of the public bailiffs responsible for the execution of a court decision.
(b) Procedure according to which a claim should be examined: length and applicable court fees
26. The draft bill for the amendment of the [1988 Act] provides that claims will be examined under the rules of the Code of Civil Procedure [2007]. Under Bulgarian law, a civil dispute can be examined by three levels of jurisdiction.
27. Under the provisions of [s]ection 10 of the [1988 Act], a flatrate court fee is due to file a claim under the Act which is either BGN 10 for physical persons or BGN 25 for legal persons (EUR 5.12 or EUR 12.82). The claimants must pay all the costs incurred in the proceedings only if their claim has been entirely rejected or if they withdraw or waive their claim entirely. If the court decides in favour of the claim, in whole or in part, the defendant should be ordered to pay the costs relating to the proceedings, as well as the claimant’s court fees. If a claim is granted only in part, the claimant receives only partial reimbursement of the lawyer’s fees. The authorities have specified that according to domestic caselaw, if a claim is partially rejected, the claimant should not be required to pay the part of the lawyer’s fees incurred by the defendant.
Assessment:
28. One of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time. The Court suggested in this respect that ‘consideration may be given to subjecting the examination of such claims to special rules that differ from those governing ordinary claims for damages, to avert the risk that, if examined under the general rules of civil procedure, the remedy may not be sufficiently swift’. However, the introduction of such special rules was not set out as a requirement for the effectiveness of the future remedy or aggregate of remedies. Therefore, the absence of such special rules does not per se put into question the efficiency of the proposed judicial remedy. Moreover, the adopted administrative remedy, if correctly implemented, could provide swift redress to many potential claimants.
29. As concerns the requirement set out in the pilot judgments that the rules governing costs must not place an excessive burden on litigants where their claim is justified, it seems that, even if a claim has been partly rejected, successful claimants could not be required to pay costs relating to the proceedings and the part of the lawyer’s fees incurred by the defendant and that their court fees are to be reimbursed.
(c) Need to exhaust the administrative remedy in some situations
30. Parties to completed judicial proceedings will need to exhaust the administrative remedy before introducing a judicial claim. According to [s]ection 8(2) of the draft bill for the amendment of the 1988 Act, the judicial remedy is not available to claimants who have concluded a settlement in the administrative procedure.
Assessment:
31. As said above, one of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time. It seems that the requirement for a certain category of claimants to exhaust the administrative remedy before introducing a judicial remedy will not have a considerable impact on the promptness of the compensation process as a whole, because it seems that the administrative phase could be very short (cf. the sixmonth’ timelimit for the examination of applications, paragraph 1 above).
(d) Retrospective effect
32. Paragraph 8(2) of the transitional and final provisions of the draft bill for the amendment of the [1988 Act] provides that persons whose applications have been rejected by the Court on the ground of nonexhaustion of the newly introduced domestic remedies and who have been parties in completed judicial proceedings will be able to introduce administrative applications for compensation within six months of the entry into force of the amendments or within six months of the notification by the Registry of the Court. Under the same conditions, applicants to the Court who have seen their application rejected for nonexhaustion of the domestic remedies and who are parties in pending proceedings at the domestic level will be able to introduce judicial claims for compensation.
33. According to paragraph 9 of the transitional and final provisions of the draft bill for the amendment of the [1988 Act], parties to proceedings which have been completed less than six months before the entry into force of the draft bill will also have access to the judicial remedy.
Assessment:
34. The provisions concerning the scope of the retrospective effect of the proposed judicial remedy seem to comply with the recommendations given by the Court under Article 46 in the pilot judgments.
(e) Timelimit and procedure for payment of compensation
35. Unlike the [2007] Act, the draft bill for the amendment of the [1988 Act] does not seem to provide for specific budgetary provisions concerning the payment of compensations for excessive length of proceedings. In their response to the questions identified in the memorandum CM/Inf/DH(2012)27 (see DHDD(2012)977), the authorities indicated that it is foreseen that the amendments to the [1988 Act] will be accompanied by the provision of budgetary funds to the institutions concerned.
36. It seems that according to the relevant budgetary rules, the payment of compensation granted in the event of successful claim against a court/the prosecution should be made out of the budget of the court in question/of the prosecution. Likewise, Article 250 of the Code of Civil Procedure provides that persons who have financial claims against public institutions have to submit the writ of execution to the institution’s financial department in order to receive payment. Payments are made out of the funds earmarked for that purpose in the institution’s budget. If there are no funds available, a budgetary provision for this purpose should be made available the following year.
Assessment:
37. As said above in paragraph 21, the Court’s caselaw requires that payment should normally be made not later than six months after a judgment or a decision in that respect has become enforceable. Given the importance attached by the Court to this requirement, it seems useful to provide the Committee, in due time, with information on the exact content of the budgetary provisions taken by the authorities in order to ensure the funding of compensations for excessive length of proceedings and on any other measure aimed at avoiding late payment of compensation.
...
Conclusion
65. In the light of the information available, it seems that the administrative remedy which entered into force on [1 October 2012] represents a very positive step forward towards the execution of the pilot judgments of the Court. This remedy does not in itself comply with all the requirements of the Convention, but most of the outstanding questions could be addressed by the proposed judicial remedy in the field of excessive length of proceedings, if the latter is adopted without delay. Thus, it seems that the aggregate of these two remedies could in principle comply with the main requirements of the Court’s caselaw. Therefore, it seems useful to invite the Bulgarian authorities to adopt without delay the judicial remedy proposed and to encourage them to take the necessary measures in order to ensure for themselves that the new remedies will be applied in compliance with this case-law. Likewise, it seems useful to encourage the authorities to continue with their works regarding the introduction of a remedy which allows requesting the acceleration of the criminal proceedings. ...”