FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39672/03 by Nikolay Milanov NIKOLOV against Bulgaria

The European Court of Human Rights ( Fifth Section), sitting on 28 September 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Rait Maruste , Mark Villiger , Isabelle Berro-Lefèvre , Zdravka Kalaydjieva , judges,

Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 27 November 2003 ,

Having regard to the observations submitted by the parties,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nikolay Milanov Nikolov, is a Bulgarian national who was born in 1963 and lives in Shumen . He is represented before the Court by M s N . Milanova , a lawyer practising in Shumen . The respondent Government are represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.

A. The circumstances of the case

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

On 7 April 2003 the applicant was attacked in his home in the village of Chernogor by two individuals who beat him with a baseball bat, took his money and ran away. He lost consciousness and suffered four fractured ribs and injuries to his chest and lungs.

The police were immediately called to the scene but failed to apprehend the attackers. A preliminary investigation was then opened and, on an unspecified date, two suspects were arrested.

On 14 April 2003 the applicant filed a request with the investigating authorities under Article 60 of the Code of Criminal Procedure of 1974 to join the criminal proceedings as a civil claimant and made a claim for compensation from the assailants in the amount of 50,000 Bulgarian levs (25,565 euros) .

On 16 May 2003 the assailants were charged with burglary and theft.

On 20 June 2003 the prosecuti ng authorities and the assailants concluded a plea-bargain agreement which was approved by the Tutrakan District Court on 25 June 2003. Under the terms of the agreement, the assailants pled guilty to burglary and theft and were sentenced to three years ' imprisonment, suspended for five years. The court did not examine the applicant ' s civil claim and failed to indicate whether any of the damage caused by the offence had been compensated in any way.

B. Relevant domestic law and practice

1. Civil claims in the context of criminal proceedings

At the relevant time, the victim of a ny tort which was also a publicly prosecutable offence could choose either to initiate a civil action against the alleged tortfeasor , which would then be stayed awaiting the outcome of the pending criminal proceedings (Article 182 § 1 (d) of the Code of Civil Procedure of 1952) , or to file a civil claim for damages in the context of the criminal proceedings instituted by the prose cuting authorities (Articles 60 ‑ 64 of the Code of Criminal Procedure of 1974). In the latter case, the civil claim was examined together with the offender ' s culpability but could not be a reason for delaying the criminal case as such (Article 64 §§ 1 and 2 of the Code of Criminal Procedure of 1974). If the criminal proceedings were terminated, the civil claim was not to be examined but could be submitted to the civil courts (Article 64 § 3 of the Code of Criminal Procedure of 1974 ).

Prior to 3 June 2003 a civil claim could be filed in the context of the criminal proceedings at any time after the criminal proceedings had been opened. Subsequently, it could only be filed once the case had been brought to trial. However, civil claims that had been filed before the amendment entered into force were to be examined und er the old procedure (paragraph 142 of the transitory provisions to the Act amending the Code of Criminal Procedure of 1974).

In a decision of 16 December 2004 ( реш. № 7 от 1 6 декември 200 4 г. по конституционно дело № 6 от 200 4 г., о бн., ДВ, бр. 112/ 200 4 г.) the Constitutional Court held that the amendment of 3 June 2003 struck a fair balance between victims ' rights and the public interest in more efficient, faster, and yet fair criminal proceedings. It noted that the joining of civil claims to criminal proceedings was an optional procedure aimed at assisting victims but that criminal courts were not obliged to admit such claims for examination if this could delay the criminal proceedings. It further emphasised that victims were entitled to bring an action before civil courts at any time.

2. Plea-bargain agreement s

At the relevant time, a plea-bargain agreement could be concluded after the preliminary investigation had been finished (Article 414g § 1 of the Code of Criminal Procedure of 1974).

If pecuniary damage had been caused by the offence, an agreement could be concluded only after the damage had been compensated or adequate security had been provided to the victim (Article 414g § 3 of the Code of Criminal Procedure of 1974).

A plea-bargain agreement was subject to approval by the domestic court, which would then conclude the criminal proceeding with a decision. The decision had the force of a final judgment and was not subject to appeal (Article 414i § 1 and Article 414h § 10 of the Code of Criminal Procedure of 1974).

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing because the punishments imposed on the offenders had been disproportionately lenient, that the domestic court had not been impartial and independent as it had approved the plea-bargain agreement with the offenders , and that, as a result, the domestic court had denied him a public hearing and examination of his civil claim.

2. The applicant complained under Article 13 of the Convention that he had not ha d an effective domestic remedy in respect of his complaints under Article 6 § 1 of the Convention.

THE LAW

1. The applicant complained that his civil claim against his assailants had not been examined by the domestic courts after the criminal proceedings had been terminated by a plea-bargain agreement and that he had had no effective remedy in this respect. He relied on Article s 6 and 13 of the Convention.

The relevant part of Article 6 reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...”

Article 13 reads:

“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.”

The Court reiterates that the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis , the requirements of Article 13 being absorbed by more stringent requirements of Article 6 § 1 (see, Kuznetsov and Others v. Russia , no. 184/02, § 87 , 11 January 2007 ; and Brualla Gómez de la Torre v. Spain , 19 December 1997, § 41 , Reports of Judgments and Decisions 1997 ‑ VIII ). Consequently, it is unnecessary to examine the complaint under Article 13 separately.

The Government noted that although the applicant had submitted a statement of claim to the pre-trial authorities, there was no information that the court had ever joined it to the criminal proceedings. They argued that even if it had been, after the conclusion of the criminal proceedings the applicant had had a real opportunity to bring an action against his assailants before the civil courts.

The applicant argued that he had submitted his civil action to the pre-trial authorities in compliance with Article 60 of the Code of Criminal Procedure of 1974, as in force at the relevant time, and had participated in the criminal proceedings in the capacity of a civil claimant. He contended that the domestic courts had therefore been obliged to examine his claim – even after the conclusion of the criminal proceedings.

The Court reiterates that the Convention does not confer any right, as such, to have third parties prosecuted or sentenced for a criminal offence. To fall within the scope of the Convention such right must be inseparable from the victim ' s exercise of the right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a “good reputation”. The import of this case-law is that Article 6 § 1 of the Convention applies to proceedings involving civil complaints from the moment the complainant is joined as a civil party, unless he or she has waived the right to reparation in an unequivocal manner (see Gorou v. Greece ( no. 2) [GC], no. 12686/03, §§ 24-25 , ECHR 2009 ‑ ... ; and Mihova v. Italy (dec.), no. 25000/07, 30 March 2010).

The Court observes that in the recent cases of Atanasova v. Bulgaria ( no. 72001/01, 2 October 2008 ) ; Dinchev v. Bulgaria ( no. 23057/03, 22 January 2009 ); and Tonchev v. Bulgaria ( no. 18527/02 , 19 November 2009 ), it examined situations where the applicants ' civil claims brought in the context of criminal proceedings had not been examined due to the discontinuance of those criminal proceedings following the expiration of the relevant statute of limitation. In those cases it found that where the domestic legal order provide d litigants with an av enue of redress, such as a civil ‑ party claim in the context of criminal proceedings, the State wa s under an obligation to ensure that they enjoy ed the fundamental guarantees laid down in Article 6 § 1 (see Tonchev , cited above, § 52). Taking into account the circumstances of these cases, and in particular the duration of the criminal proceedings, it found that the applicants had not enjoyed effective access to a court and that this could not be cured by the possibility of bringing fresh claims for the determination of their compensation claims in the civil courts.

In the instant case, the applicant joined the proceedings as a civil party during the pre-trial stage but the case then ended with a plea-bargain agreement before reaching trial. Therefore, the Bulgarian criminal courts were not competent to deal with his civil claim. Thus, although the applicant was able to refer it to the civil courts, his right to have his civil claim examined in the context of criminal proceedings proved effectively barred.

An issue therefore arises as to whether, in the circumstances of the present case, the inability of the criminal courts to examine the applicant ' s civil claim following the approval of the plea-bargain agreement deprived him of effective access to court.

The Court reiterates that the right of access to a court is not absolute but may be subject to limitations. In this respect, the Contracting States enjoy a certain margin of appreciation. However, the final decision as to the observance of the Convention requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, such a limitation of the right of access to a court will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999 ‑ I, and T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, § 98, ECHR 2001 ‑ V (extracts) ).

Turning to the present case, the Court considers that legislation which absolves criminal courts from the obligation to deal with victims ' civil claims in cases where the criminal charges are settled in a plea-bargain agreement serves, in principle, the aim of the proper administration of criminal justice and is not unreasonable. Against this background, the Court finds that the restriction of the applicant ' s access to the criminal courts had a legitimate aim.

As to the issue of proportionality, the Court observes that measures to expedite proceedings, such as plea-bargain agreements, have undeniable advantages for the accused, for the administration of justice and for the victim and do not in principle violate the Convention (see Deweer v. Belgium , 27 February 1980, § 49 , Series A no. 35 ). Such proceedings relieve domestic courts from minor and common offences – which cause delay in the administration of criminal justice – and therefore are recommended by the Committee of Ministers of the Council of Europe (see Recommendation of the Committee of Ministers concerning the simplification of criminal justice R (87) 18, 17 September 1987). Furthermore, they lead to a speedy determination of offenders ' guilt and criminal liability, which also simplifies the determination of their civil liability. Indeed, in the present case the criminal proceedings ended in less than three months and with a clear determination of the offenders ' guilt and criminal liability. After this outcome, the civil courts, if approached by the applicant, would have been competent to determine the applicant ' s compensation without undue delay. This also distinguishes this case from Atanasova , Dinchev , and Tonchev (all cited above), in which the applicants were totally dependent on the authorities conducting the criminal proceedings expediently and where, after many years during which their civil claims remained effectively dormant, the criminal cases were terminated as time-barred and without a determination of the offenders ' guilt. In the instant case nothing prevented the applicant from immediately referring his claim to the civil court, whic h, in view of the approved plea ‑ bargain agreement, would likely have dealt with his civil claim expediently. Therefore, considering the manner in which the criminal proceedings unfolded, the Court is satisfied that no serious prejudice occurred to the applicant ' s right to seek compensation.

In view of the above considerations, the Court finds that in restricting the applicant ' s access to a criminal court for his civil claim the respondent State did not exceed its margin of appreciation. Taking into account, in particular, the alternative remedy immediately available to the applicant, it cannot be said that the restriction impaired the essence of his “right to court” or was disproportionate for the purposes of Article 6 § 1 of the Convention.

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

2. The Court has examined the remainder of the applicant ' s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention and its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek P eer Lorenzen Registrar President