FOURTH SECTION

DECISION

Application no . 1116/03 Gancho Stanev DELEV against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 19 November 2013 as a Chamber composed of:

Ineta Ziemele, President , George Nicolaou, Mirjana Lazarova Trajkovska, Ledi Bianku, Vincent A. De Gaetano, Paul Mahoney, Robert Spano, judges , and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 19 December 2002,

Having regard to the decision of Zdravka Kalaydjieva, the judge elected in respect of Bulgaria, to withdraw from the case (Rule 28 of the Rules of Court) and the decision of the Bulgarian Government to designate the judge elected in respect of “the former Yugoslav Republic of Macedonia”, Mirjana Lazarova Trajkovska, as ad hoc judge in the case (Rule 29 of the Rules of Court),

Having regard to the decision of 16 December 2008 to strike the application out of the Court ’ s list due to the failure of the applicant ’ s legal representative to submit observations in reply to those of the Government and to reply to the Court ’ s letters, and the decision of 12 January 2010 to restore the application to the Court ’ s list in view of the representative ’ s explanations in relation to that,

Having regard to the observations submitted by the respondent Government,

Having regard to the additional observations submitted by the parties at the Court ’ s request of 9 July 2013,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Gancho Stanev Delev, is a Bulgarian national who was born in 1947 and lives in the village of Krushare. He was represented before the Court by Mr N. Runevski, a lawyer practising in Sofia.

2 . The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Dimova and Mr V. Obretenov, of the Ministry of Justice.

A. The circumstances of the case

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

4 . On 26 November 1993 , following a preliminary inquiry, the Sliven District Prosecutor ’ s Office decided to open criminal proceedings against the applicant in connection with alleged offences committed by him while carrying out of his duties as chairman of an agricultural cooperative.

5 . On 15 December 1993 an investigator of the Sliven Regional Investigation Service carried out a search in the premises of the cooperative. He seized a number of items, including two tractors, an electric motor , a harvester, a bus, trailers and other agricultural machinery and spare parts for them, as well as documents. The applicant stated that most of those items belonged to the cooperative and that the rest were personal and company property that had been left with him for safekeeping.

6. On 16 December 1993 the applicant was charged.

7 . On 17 December 1993 the investigator carried out a search in the applicant ’ s country house and seized a number of items : a fax machine, a radio station, a writing machine, one hundred and ten bed sheets, nine bed covers, thirty-four pillow covers, cutlery, sixty bags of cement, two iron shelves and a ladder. The applicant stated that he had purchased the cutlery and the iron shelves from the cooperative, that the writing machine belonged to the cooperative, that he had purchased the cement from a company, that the ladder was his, and that all other items belonged to a limited liability company which had left them in his house for safekeeping.

8 . On 23 December 1993 all items seized on 17 December 1993 were given to representatives of the cooperative ’ s liquidation council.

9. In the following years the authorities carried out a number of investigative steps and brought a number of additional charges against the applicant. In June 2000 the investigator finished his work on the case and sent it to the Sliven Regional Prosecutor ’ s Office. On 21 June 2000 that Office referred the case back for additional investigation.

10. On various dates in 2000-01 the prosecuting authorities dropped some of the charges against the applicant. Following an additional investigation, in June 2003 the investigator sent the case to the Sliven Regional Prosecutor ’ s Office with a proposal that the applicant be brought to trial. On 1 July 2003 that Office decided to drop some of the charges against the applicant and to indict him in relation to others.

11 . On 25 June 2003 the applicant requested that the items seized on 15 and 17 December 1993 be returned to him. On 1 July 2003 the Sliven Regional Prosecuto r ’ s Office dismissed the request . It said that the items seized on 15 December 1993 belonged to the cooperative and had been left in its custody after the seizure. As for the items seized from the applicant ’ s county house on 17 December 1993, they had likewise been given to the cooperative because there was no evidence that they belonged to the applicant.

12. In 2003-04 the applicant was tried before the Sliven Regional Court. Following a number of hearings and adjournments, on 19 January 2005 he was found guilty of embezzlement and abuse of office . He appealed , and on 21 April 2005 the Burgas Court of Appeal quashed his conviction and remitted the case. As a result, on 11 May 2005 the Sliven Regional Court referred the case back to the prosecuting authorities for the rectification of procedural errors.

13. On 28 May 2005 the applicant was indicted again. On 13 July 2005 the Sliven Regional Court discontinued the criminal proceedings against him, citing the lapse of the applicable limitation period.

14. On 16 September 2005 the applicant requested the Sliven Regional Court to order that the items seized on 15 December 1993 be returned to him. In a final decision of 20 September 2005 the Sliven Regional Court dismissed the request, noting that those items had never been presented to it as evidence in the case, and that it could not therefore give a decision in relation to them.

B. Relevant domestic law

1. Concerning the length of criminal proceedings

15 . The constitutional and statutory provisions and case-law concerning the length of criminal proceedings have been set out in detail in paragraphs 33- 45 of the Court ’ s pilot judgment in the case of Dimitrov and Hamanov v. Bulgaria (nos. 48059/06 and 2708/09 , 10 May 2011).

16 . The ensuing legislative developments, in particular the enactment of new sections 60a et seq. of the Judiciary Act 2007 and new section 2b of the State and Municipalities Liability for Damage Act 1988, which allow persons who have become victim of unreasonably lengthy criminal proceedings to seek compensation, have been set out in detail in paragraphs 47-63 of the Court ’ s decision in the case of Valcheva and Abrashev v. Bulgaria ((dec.), nos. 6194/11 and 34887/11, 18 June 2013 ).

2 . Concerning items seized as evidence in the context of criminal proceedings

17 . Article 108 § 1 of the Code of Criminal Procedure 1974 provided that real evidence had to be retained until the end of the criminal proceedings. It could be returned to its owner earlier if that would not hinder the establishment of the facts (Article 108 § 2). If a dispute over ownership requiring adjudication by the civil courts arose in respect of items retained as real evidence, they had to be retained until the relevant judgment became final (Article 110). In 2006 those provisions were superseded by Article 111 §§ 1 and 2 and Article 113 of the Code of Criminal Procedure 2005, which are almost identical. One difference is that Article 111 § 2 of the 2005 Code speaks of the possibility of returning the evidence to “those entitled”, instead of “their owners”, the expression used in Article 108 § 2 of the 1974 Code.

18 . There is no reported case-law under Article 110 of the 1974 Code. However, there is reported case-law under Article 113 of the 2005 Code, whose wording is almost identical. The courts appear to have applied that provision only in relation to competing claims by private persons to items retained as real evidence (see реш. от 31 юли 2009 г. по н. д. № 175/ 2009 г. на Благоевградски окръжен съд, and опр. № 1211 от 25 септември 2009 г. по н. д. № 1213/2009 г. на Великотърновски районен съд, II с-в). They sometimes insist that such items may be retained by the authorities pending the determination of such claims only if third parties have actually issued civil proceedings against the person seeking the return of the items (see опр. № 24 от 7 май 2008 г. по в. ч. н. д. № 108/ 2008 г. на Великотърновски апелативен съд, НО; опр. № 27 от 21 май 2008 г. по в. ч. н. д. № 126/2008 г. на Великотърновски апелативен съд, НО; опр. от 18 декември 2009 г. по н. д. № 1364/2009 г. на Пернишки районен съд, IV с-в; опр. № 211 от 30 април 2010 г. по н. д. № 704/ 2010 г. на Старозагорски районен съд, VI с-в; опр. № 828 от 7 октомври 2010 г. по н. д. № 1382/2010 г. на Врачански районен съд, VI с-в; опр. № 68 от 5 януари 2011 г. по н. д. № 2067/2010 г. на Старозагорски районен съд, VIII с-в; опр. № 621 от 21 септември 2011 г. по н. д. № 1413/2011 г. на Врачански районен съд, VI с-в; опр. от 6 октомври 2011 г. по н. д. № 244/2011 г. на Разградски окръжен съд; опр. № 737 от 11 октомври 2011 г. по н. д. № 1493/2011 г. на Варненски окръжен съд; опр. о д. № 280/2011 г. на Разградски окръжен съд; реш. № 44 от 26 март 2012 г. по н. д. № 74/2012 г. на Добрички окръжен съд, I с-в; and опр. от 10 април 2012 г. по в. ч. н. д. № 60/2012 г. на Габровски окръжен съд). On other occasions, they rule that it is sufficient for the ownership of the items to be contested in some way between two private persons (see опр. № 163 от 10 юни 2009 г. по в. ч. н. д. № 395/2009 г. на Софийски апелативен съд, НО, ІІ с-в; опр. от 8 март 2010 г. по н. д. № 61/2010 г. Оряховски районен съд; опр. № 138 от 28 февруари 2011 г. по н. д. № 366/2011 г. на Старозагорски районен съд, VI с-в; опр. от 3 май 2011 г. по н. д. № 491/2011 г. на Кърджалийски районен съд, V с-в; опр. от 28 ноември 2011 г. по ч. н. д. № 1557/2011 г. на Хасковски районен съд; опр. № 864 от 23 декември 2011 г. по н. д. № 2302/2011 г. на Пазарджишки районен съд, V с-в; опр. № 61 от 9 май 2012 г. по н. д. № 128/2012 г. на Балчишки районен съд; опр. № 290 от 23 юли 2012 г. по н. д. № 833/2012 г. на Хасковски районен съд, IX с-в; and опр. от 13 август 2012 г. по н. д. № 50168/2012 г. на Монтански районен съд, V с-в). The courts have refused to apply Article 113 in cases where no third party is contesting the rights of the person seeking the return of items retained as real evidence in a criminal case (see реш. от 5 ноември 2012 г. по н. д. № 493/2012 г. на Благоевградски окръжен съд).

COMPLAINTS

19 . The applicant complained under Article 6 § 1 of the Convention of the allegedly unreasonable length of the criminal proceedings against him and under Article 13 of the Convention of the alleged lack of an effective remedy in that respect.

20 . The applicant in addition complained under Article 3 of the Convention that the allegedly excessive duration of the criminal proceedings against him had caused him mental suffering.

21 . Lastly, the applicant complained under Article 1 of Protocol No. 1 that the authorities had unlawfully seized a number of items and had wrongfully refused to restore them to him.

THE LAW

A. Complaints under Article 6 § 1 and 13 of the Convention concerning the length of the criminal proceedings against the applicant and the alleged lack of an effective domestic remedy in that respect

22. In respect of his complaints concerning the length of the criminal proceedings against him and the alleged lack of an effective remedy in that respect the applicant relied on Articles 6 § 1 and 13 of the Convention, which provide, in so far as relevant:

Article 6 (right to a fair hearing)

“ 1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Article 13 (right to an effective remedy)

“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.”

23. The Government submitted that following a pilot-judgment procedure Bulgaria had put in place two remedies – an administrative one and a judicial one – allowing persons who have become victim s of unreasonably lengthy proceedings to obtain compensation. Those remedies operated retrospectively and applied specifically to persons who had applications pending before the Court. In such circumstances, the rule that the availability of effective domestic remedies was to be assessed by reference to the time of lodging of the application was subject to an exception.

24. The applicant submitted that the complaint concerning the unreasonable length of the proceedings could not be divorced from the alleged breaches of Article 3 of the Convention and Article 1 of Protocol No. 1. The excessive duration of the proceedings had been in breach of the procedural aspect of the former and had resulted in the protracted retention of the seized items.

25 . The Court notes that i n its recent decision in the case of Valcheva and Abrashev (cited above , §§ 88-124 ) it found that: (a) the newly enacted sections 60a et seq. of the Judiciary Act 2007 and section 2b of the State and Municipalities Liability Act 1988 (see paragraph 16 above) provide an effective remedy in respect of the unreasonable length of criminal proceedings; and that (b) applicants who have lodged their applications with the Court before the introduction of those remedies are also required to have recourse to them to comply with the requirement to have exhausted domestic remedies. There is nothing in the present case to suggest that those remedies will not be able to provide the applicant adequate redress.

26 . It follows that the applicant ’ s complaint under Article 6 § 1 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies, and that his complaint under Article 13 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint under Article 3 of the Convention

27 . In respect of his complaint that the length of the criminal proceedings against him had caused him anguish, the applicant relied on Article 3 of the Convention, which provides as follows:

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

28 . The Court observes that any criminal proceedings are liable to cause those subject to a criminal charge mental suffering. Indeed, this is implicit in the requirement of Article 6 § 1 of the Convention that criminal charges must be determined within a reasonable time , so that the person concerned does not remain too long in a state of uncertainty about his or her fate (see Stögmüller v. Austria , 10 November 1969, p. 40, § 5, Series A no. 9 , and, more recently, Dimitrov and Hamanov , cited above, § 70). However, it does not appear that the applicant has suffered any anguish beyond that which is ordinary in cases of criminal proceedings of allegedly excessive duration , and the Court does not consider that such suffering reache s a sufficient level of severity to be characterised as inhuman or degrading treatment falling within the scope of Article 3 of the Convention (see Howarth v. the United Kingdom , no. 38081/97, § 31, 21 September 2000, and Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003).

29 . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Complaint under Article 1 of Protocol No. 1 concerning the seized items

30 . In respect of his complaint concerning the seizure and retention of the items seized by the authorities on 15 and 17 December 1993 the applicant relied on Article 1 of Protocol No. 1, which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

32. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

33. As for the items seized on 17 December 1993 from the applicant ’ s country house (see paragraph 7 above), the Court does not find it necessary to determine whether the applicant has shown that he has a legal interest in them and on that basis claim that there has been an interference with his possessions, because it considers that the complaint is in any event inadmissible for the following reasons.

34. In as much as the applicant complains of the alleged unlawfulness of the seizure itself, the Court finds that it was an instantaneous act (see, to that effect, Karamitrov and Others v. Bulgaria , no. 53321/99 , § 71, 10 January 2008 , and Zlatev v. Bulgaria (dec.), no. 39964/03 , 28 September 2010 ). In the absence of an effective remedy under Bulgarian law in respect of that seizure (see Iliya Stefanov v. Bulgaria , no. 65755/01 , § 59, 22 May 2008 ), the six-month time-limit under Article 35 § 1 of the Convention started to run on the date when it was carried out – 17 December 1993 – and expired long before the lodging of the application on 19 December 2002 . Even if the seizure is regarded as giving rise to a continuing situation which persisted while the authorities were retaining the items (see Vasilescu v. Romania , 22 May 1998 , § § 48-49 , Reports of Judgments and Decisions 1998-III , and Zlatev , cited above), that is, until 23 December 1993, when they gave all of them to the cooperative (see paragraph 8 above), the complaint is still out of time.

35 . In as much as the applicant alleges that the authorities wrongfully gave the seized items to the cooperative instead of returning them to him, t he Court finds no indication that the applicant tried to bring proceedings in which to establish that he was t he ir rightful owner and request that the items be retained by the prosecuting authorities under Article 110 of the Code of Criminal Procedure 1974 pending the outcome of such litigation (see paragraph s 17 and 18 above , as well as Georgiev and Others v. Bulgaria (dec.), no. 37714/03 , 5 October 2010 ).

36 . It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies and failure to comply with the six-month time-limit.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Françoise Elens-Passos Ineta Ziemele Registrar President