FOURTH SECTION

DECISION

Application no. 61717/16 R.G. and N.G. against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 21 September 2021 as a Chamber composed of:

Tim Eicke, President, Yonko Grozev, Faris Vehabović, Iulia Antoanella Motoc, Armen Harutyunyan, Pere Pastor Vilanova, Jolien Schukking, judges, and Andrea Tamietti, Section Registrar,

Having regard to the above application lodged on 18 October 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Ms R.G. (“the first applicant”) and Ms N.G. (“the second applicant”), are Bulgarian nationals. They are sisters who were born in 1986 and 1981 respectively and live in Sofia and Chepintsi respectively. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). They were represented before the Court by Mr M. Ekimdzhiev and Ms S. Stefanova , lawyers practising in Plovdiv.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Nedyalkova, of the Ministry of Justice.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 31 January 1998 seven armed individuals entered the applicants’ parents’ house in Sofia. They beat and robbed the applicants’ parents. During the incident, two of the intruders raped the applicants, who were 12 and 16 years old at that time.

5. The police immediately opened a criminal investigation in relation to the events.

6. On 11 February 2002, in the course of an identification parade, the first applicant identified I.R. as the person who had raped her. In the course of the investigation, on 8 August 2002 B.M. was accused of having acted as an accessory to the rape of the second applicant.

7. On 12 August 2002 I.R. was accused of the rape of the first applicant. The perpetrator of the rape of the second applicant was not identified.

8 . On 28 August 2003 the Sofia City Prosecutor’s Office filed an indictment with the Sofia City Court. Charges were brought against B.M., I.R. and five other individuals for aggravated robbery of the applicants’ parents, against I.R. for the rape of the first applicant and against B.M. for having been an accessory to the rape of the second applicant.

9 . The applicants joined the criminal proceedings as private prosecutors. The first applicant also brought a civil claim against I.R., seeking compensation for non-pecuniary damage in relation to her alleged rape, while the second applicant brought a civil claim against B.M., seeking compensation for non-pecuniary damage in relation to being an accessory to her alleged rape. On 18 June 2004 the Sofia City Court accepted the applicants’ civil claims for examination in the criminal proceedings. Between 12 February 2004 and 12 July 2005 that court held ten hearings.

10. Meanwhile, on 11 May 2005, I.R. was shot dead in Sofia.

11 . On 12 July 2005 the Sofia City Court discontinued the criminal proceedings against I.R. for the alleged rape of the first applicant, including the relevant part of the civil claim, on the ground that the defendant had died. The first applicant did not appeal against that decision. The Sofia City Court continued to examine the case in respect of the other defendants and charges. Between 12 July 2005 and 15 September 2006, seven hearings took place.

12. On 15 September 2006 the Sofia City Court terminated the proceedings before it and transferred the case to the Sofia Military Prosecutor’s Office, noting that one of the defendants had been a police officer at the time of the incident.

13. The Sofia Military Prosecutor’s Office carried out an additional investigation between 15 November 2006 and 29 June 2007.

14 . On 12 July 2007 the Sofia Military Prosecutor’s Office filed a new indictment with the Sofia Military Court. The charges concerned B.M. and five other individuals in relation to the alleged aggravated robbery of the applicants’ parents. B.M. was also indicted for having been an accessory to the rape of the second applicant by an unknown person. The reasoning of the indictment indicated the deceased I.R. as the only perpetrator of the rape of the first applicant.

15 . On 20 February 2008 the applicants brought civil claims against all the defendants, seeking compensation for non-pecuniary damage resulting from the violation of their sexual integrity.

16. Between 20 February 2008 and 7 March 2012 the Sofia Military Court held 19 hearings.

17. In a judgment dated 7 March 2012, the Sofia Military Court acquitted the defendants. Both the Sofia Military Prosecutor’s Office and the applicants appealed.

18. On 17 July 2012 the Sofia Military Court of Appeal upheld the judgment of the Military Court. The prosecutor and the applicants appealed on points of law.

19. On 21 March 2013 the Supreme Court of Cassation quashed the Military Court of Appeal’s judgment and remitted the case to it for a fresh examination.

20. Between 22 March and 5 June 2013 the Sofia Military Court of Appeal held three hearings. On 25 July 2013 that court again upheld the judgment acquitting the defendants. The prosecutor and the applicants again appealed on points of law.

21 . On 2 January 2014 the Supreme Court of Cassation quashed the Military Court of Appeal’s judgment for the second time and remitted the case to it for a fresh examination. The Supreme Court of Cassation expressly held, inter alia , that in its judgment of 25 July 2013 the Military Court of Appeal had failed to take account of the expiry of the absolute limitation period in respect of the charge against B.M. of being an accessory to the rape of the second applicant. Relying on Articles 80 and 81 of the Criminal Code of 1968 (see paragraph 27 below), the Supreme Court of Cassation pointed out that the absolute limitation period for prosecution of the offence of rape was fifteen years from the date on which the crime had been committed. Therefore, in the case at hand, that period had expired on 31 January 2013. Consequently, the Supreme Court of Cassation provided instructions to the Military Court of Appeal that, upon its re-examination of the case, it had to give B.M. the opportunity to express his wishes as to whether the criminal proceedings in respect of the charge against him for being an accessory to the rape of the second applicant should be discontinued.

22 . Between 6 January and 4 July 2014 the Sofia Military Court of Appeal held four hearings. In a hearing held on 26 May 2014, B.M. and his counsel requested that the criminal proceedings for being an accessory to the rape of the second applicant be discontinued. On 24 November 2014 the Military Court of Appeal discontinued the criminal proceedings against B.M. in that part because the limitation period for criminal liability had expired. The Military Court of Appeal upheld the acquittal of the defendants in respect of the charges of aggravated robbery of the applicants’ parents.

23 . The prosecutor and the applicants appealed on points of law against the part of the judgment relating to the defendants’ acquittal of aggravated robbery. As a consequence, the part of the judgment in which the Military Court of Appeal had discontinued the criminal proceedings against B.M. for being an accessory to the rape of the second applicant became final on 21 December 2014.

24 . Between 19 March 2015 and 18 April 2016 the Supreme Court of Cassation held six hearings. In a final judgment of 18 April 2016, it found all the defendants guilty of the aggravated robbery of the applicants’ parents and sentenced each of them to ten years’ imprisonment. The court allowed the civil claims of the applicants’ parents in respect of pecuniary and non-pecuniary damage and dismissed the applicants’ civil claims against five of the defendants in respect of non-pecuniary damage as time-barred, noting that they were brought out of time before the courts, only on 20 February 2008 (see paragraph 15 above). As regards the second applicant’s civil claim against B.M., the court dismissed it, finding that there was no evidence to conclude that he had acted as an accessory to the rape.

25. On 20 October 2016 the applicants applied for compensation, alleging that the proceedings regarding their rape had been excessively lengthy. On 26 and 27 September 2019 agreements for a friendly settlement were concluded with the applicants. The sums under those agreements were paid within the time-limits stipulated therein.

26 . The substantive criminal law in Bulgaria relating to rape has been set out in detail in M.C. v. Bulgaria (no. 39272/98, §§ 74-86, ECHR 2003-XII) and Z v. Bulgaria (no. 39257/17, §§ 38-40, 28 May 2020).

27 . The limitation period for criminal liability is provided for in Articles 80 and 81 of the 1968 Criminal Code. Under Article 80 § 1, criminal prosecution is to be excluded on account of the expiry of the limitation period where it has not been instigated, among other conditions, within ten years with respect to acts, like rape, for which a sentence of more than three years’ imprisonment is provided. Pursuant to Article 80 § 3, the limitation period for criminal liability runs from the date of the commission of the crime. Article 81 § 3 provides that, notwithstanding the termination or interruption of the limitation period, criminal prosecution is to be excluded where a period exceeding by one half the relevant period as determined under Article 80 has expired.

28 . Pursuant to Article 24 § 1(3), Article 289 § 1 and Article 317 of the 2006 Code of Criminal Procedure, criminal proceedings cannot be opened and criminal proceedings that have already been opened must be discontinued when criminal liability is extinguished on account of the expiry of the limitation period as determined by law.

COMPLAINTS

29. Relying on Articles 3 and 8 of the Convention, the applicants complained that the authorities had failed to conduct an effective investigation leading to the punishment of those responsible for their rape. They also alleged that they had not had an effective domestic remedy under Article 13 of the Convention allowing those complaints to be examined and remedied.

THE LAW

30. The applicants complained about the lack of an effective investigation into their alleged rape and about the lack of an effective domestic remedy in this respect.

They invoke Articles 3, 8 and 13 of the Convention, which read as follows in their relevant parts:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8

“1. Everyone has the right to respect for his private and family life (...).”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

31. The Government submitted that the applicants’ complaints were inadmissible as they had not been submitted to the Court within the six ‑ month time-limit. They argued that the relevant time-limit had started to run from the date on which the applicants ought to have realised that the investigation into their rape would not be effective.

32. Thus, as regards the first applicant, the Government submitted that the relevant date was 12 July 2005, when the domestic court had discontinued the criminal proceedings against I.R. for her rape because of the defendant’s death (see paragraph 11 above). Alternatively, the six months could be considered to have started on 12 July 2007, when it had become clear that the new indictment before the Sofia Military Court had not contained any charges against any of the other defendants in connection with her rape (see paragraph 14 above). As a subsidiary consideration, the Government suggested that the first applicant ought to have realised that the investigation into her rape would not be effective on 24 November 2014 at the latest, when the Sofia Military Court of Appeal had terminated the criminal proceedings against B.M. for being an accessory to the rape of the second applicant as a result of the expiry of the absolute limitation period (see paragraph 22 above).

33. As regards the second applicant, the Government submitted that she ought to have realised that the investigation into her alleged rape would not be effective on 24 November 2014, when, as a result of the expiry of the absolute limitation period, the Sofia Military Court of Appeal had terminated the criminal proceedings against B.M. for being an accessory to her alleged rape, or, alternatively, on 21 December 2014 at the latest, when its judgment had become final (see paragraphs 22-23 above).

34 . The applicants contested the Government’s arguments. They submitted that their position in relation to all the issues raised in the criminal case had been finally settled at national level with the judgment of the Supreme Court of Cassation of 18 April 2016 (see paragraph 24 above), and that until that date, they had stood a chance of obtaining justice for the assaults committed against them. Therefore, that judgment should be regarded as the final decision from which the six-month time-limit should be counted.

35. They argued that sexual violence had been used as a form of coercion to facilitate the perpetration of the robbery for which the proceedings had continued after 2014, and on that ground the domestic courts could have held that the sexual assaults against them should not be regarded as stand-alone rapes but as a form of coercion, which was an element of the crime of robbery.

36 . The applicants further explained that, even after the proceedings against I.R. and B.M. had been discontinued, in the course of the ongoing criminal proceedings for robbery, new facts could have been found and new evidence gathered which could have opened the opportunity for the prosecution to bring more serious charges or to identify the person who had raped the second applicant. Those reasons justified the applicants’ decision to wait for the Supreme Court of Cassation’s final judgment of 18 April 2016.

37. The Court reiterates that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter where it has been raised within six months from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the time-limit expires six months after the date of the act or measure complained of, or after the date of knowledge of that act or its effect on or prejudice to the applicant. (see Danov v. Bulgaria , no. 56796/00, § 56, 26 October 2006, and the authorities cited therein).

38 . The only remedies that must be exhausted are those which are available and sufficient to afford redress in respect of the breaches alleged, but not those which are inadequate or ineffective (see Aksoy v. Turkey , 18 December 1996, § 52, Reports of Judgments and Decisions 1996-VI). Furthermore, in a case where an applicant avails himself of a domestic remedy and it becomes clear, at a later stage, that that remedy was not effective, the six-month period provided for in Article 35 § 1 of the Convention should in principle be calculated from the time when the applicant became aware, or should have become aware, of the ineffectiveness of the remedy (see, among other authorities, Bulut and Yavuz v. Turkey (dec.), no. 73065/01, 28 May 2002; Danov, cited above, § 58; and Chitayev and Chitayev v. Russia , no. 59334/00, § 117, 18 January 2007).

39 . The Court reiterates in this connection that, when an investigation is terminated as time-barred as a result of the inactivity of the competent authorities, it could hardly be regarded as having been effective and capable of leading to the proper punishment of those responsible (see P.M. v. Bulgaria , no. 49669/07, § 66, 24 January 2012, and Beganović v. Croatia , no. 46423/06, § 85, 25 June 2009). Thus, the Court is of the view that, in cases of allegations relating to the inefficiency of investigations and the lack of any domestic redress in that respect, where those investigations are terminated on account of the expiry of the limitation period for criminal liability, the six-month time-limit for bringing a complaint before the Court starts running from the date of the decision discontinuing the proceedings at the latest.

40 . Having regard to the nature and the substance of the applicants’ complaints in this particular case, the Court considers that the domestic criminal law provided a remedy for victims of alleged sexual abuse committed by private individuals (see paragraph 26 above). It further notes that the applicants availed themselves of that remedy by participating actively in the criminal proceedings in their capacity as victims and private prosecutors, and by seeking compensation for non-pecuniary damage (see paragraphs 9 and 15 above). The salient question in the present case is which date should be considered to be the starting-point for the calculation of the six-month period in respect of both applicants.

41. Concerning the first applicant, the Court notes that charges in connection with her alleged rape were brought only against I.R., and he was the only person indicted for that crime (see paragraph 8 above). Subsequently, on 12 July 2005, the Sofia City Court discontinued the criminal proceedings in that part, also including the relevant civil claim, because of I.R.’s death; the first applicant did not appeal against that decision (see paragraph 11 above). When on 12 July 2007 the criminal case was once again brought by the prosecution in the Sofia Military Court, no charges were brought against any other person for the alleged rape of the first applicant (see paragraph 14 above). Therefore, taking into account that the first applicant had never alleged that any other person except I.R. had raped her, the Court considers that by 12 July 2005, or at the latest by 12 July 2007, she ought to have realised that, from then on, the criminal proceedings would not concern her alleged rape directly and would not lead to the punishment of the person responsible for it. It can thus be considered that at that later date, at the latest, that remedy was no longer available to the first applicant. This leads the Court to the conclusion that the starting ‑ point for the purpose of the calculation of the six-month period in respect of the first applicant is 12 July 2007.

42 . As to the second applicant, in the Court’s view, she should have realised that the criminal proceedings were no longer capable of leading to the punishment of the person responsible as soon as she was notified of the judgments of the Supreme Court of Cassation of 2 January 2014 and of the Sofia Military Court of Appeal of 24 November 2014, which became final on 21 December 2014 (see paragraph 23 above). In those judgments the domestic courts held that the absolute limitation period for the criminal prosecution of B.M., the only person who remained charged in relation to the alleged sexual assault, and specifically for being an accessory to the alleged rape of the second applicant, had expired (see paragraphs 21 and 22 above). Both judgments contained an express and detailed explanation of the notion of absolute limitation, which precluded any possibility of criminal prosecution for the crime in question, and they pointed out that the duration of the absolute limitation period for rape amounted to fifteen years from the date on which the offence was committed (see also paragraph 27 above). In the light of that finding, it appears that the victim was affected by the expiry of the limitation period for criminal liability with regard to the alleged rape, in so far as, as a matter of law, no further criminal prosecution could be conducted regardless of the individual who had committed it.

43. The Court notes the second applicant’s argument that the final judgment of the Supreme Court of Cassation on 18 April 2016 was, in her view, the final domestic judgment which should be considered to be the starting-point for the purpose of the calculation of the six-month period (see paragraphs 34-36 above). The Court, however, observes that on 12 July 2007, when the criminal case was brought by the prosecution in the Sofia Military Court, the only charge relating to the applicants’ complaints of sexual abuse was that against B.M for being an accessory to the alleged rape of the second applicant (see paragraph 14 above). In addition, the discontinuation of that part of the proceedings as time-barred (see paragraph 22 above) should have been a very clear sign to the second applicant that criminal liability for the alleged rape had already been extinguished because of the expiry of the absolute limitation period provided for by law for such crimes, and that any possibility of punishing the perpetrators of her alleged rape had been lost forever (see paragraphs 39 and 42 above). The Court also notes that, in view of the clear-cut domestic legislation on the statutory absolute limitation period for criminal liability (see paragraphs 27 and 28 above), it does not appear that the continuation of the criminal proceedings after 24 November 2014 solely for the aggravated robbery of the applicants’ parents would have offered any prospect of a different outcome with respect to the alleged rape. Therefore, after that date the domestic courts were competent to deal only with the charges of aggravated robbery, and they could not have imposed on the defendants any punishment for the second applicant’s alleged rape. Thus, the final judgment of the Supreme Court of Cassation on 18 April 2016, in which the defendants were found guilty of the aggravated robbery of the applicants’ parents (see paragraph 24 above), cannot be taken into account for the purpose of calculation of the six-month period, contrary to what the second applicant contended.

44. In view of all the above considerations, the Court concludes that the date of 21 December 2014, when the judgment of the Sofia Military Court of Appeal of 24 November 2014 became final (see paragraph 23 in fine above), was the last date when all the issues relating to the second applicant’s complaints were ultimately settled domestically. At that moment, she should have realised that the pending criminal proceedings for the aggravated robbery of her parents could not lead to the punishment of those responsible for her alleged rape, as the limitation period for that crime had expired. Therefore, the Court regards that date as the starting-point for the purpose of the calculation of the six-month period in respect of the second applicant.

45. As a result, the Court finds that the applicants, who lodged their application on 18 October 2016, which was more than nine years and three months, for the first applicant, and almost one year and ten months, for the second applicant, after the relevant dates, failed to comply with the six ‑ month time-limit.

46 . In the light of the foregoing, the Court concludes that the application has been lodged out of time and should be declared inadmissible as a whole under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 October 2021.

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Andrea Tamietti Tim Eicke Section Registrar President