FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53321/99 by Victor Petrakiev, Evgenia Radionova and Petraki Iordanov K ARA MITROVI against Bulgaria

The European Court of Human Rights (First Section), sitting on 9 February 2006 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 7 September 1999 ,

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

Two of the applicants, Mr Victor Petrakiev Karamitrov (the “first applicant”) and Mrs Evgenia Radionova Karamitrova (the “second applicant”), are Bulgarian nationals who were born in 1965 and 1938, respectively, and live in Pazardzhik. They are represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik.

The remaining applicant, Mr Petraki Iordanov Karamitrov (the “third applicant”), was a Bulgarian national who was born in 1928, lived in Pazardzhik and passed away in 2000. He was represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik. By letter of 2 June 2004 the first applicant informed the Court that he wished to continue the application in respect of his father ’ s complaints.

The respondent Government are re presented by their agent, Ms M. Kotzeva, 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.

1. The criminal proceedings

On the night of 14 October 1991 a car was stolen from an unsecured parking lot. Sometime at the beginning of 1992 a preliminary investigation in respect of the theft was opened against an unknown perpetrator.

On 28 May 1992 the first applicant was stopped by the police while driving the car of his parents – the second and third applicants. The police established a discrepancy between the numbers on the chassis of the vehicle and those in the registration documents of the vehicle. They seized and impounded the car in order to check its registration documents and ownership. The first applicant was questioned regarding the discrepancy in the car ’ s registration documents both on the above date and on 4 June 1992 .

The investigating authorities commissioned a technical expertise to be performed on the seized vehicle . By report of 14 April 1993 the technical expert concluded that the registration plate on the chassis of the car was not the original, but had been changed.

On 8 June 1993 the first applicant was charged as an accomplice to the theft of the car on 14 October 1991 . He was questioned on the same day and then released. A restriction was imposed on the first applicant not to leave his place of residence without the consent of the Prosecutor ’ s Office.

No further investigative procedures were conducted in the course of the preliminary investigation.

On 3 April 1995 the first applicant complained to the Pazardzhik District Prosecutor ’ s Office regarding the protraction of the criminal proceedings. He did not receive a response.

Subsequently, the first applicant filed similar complaints with the Pazardzhik District Prosecutor ’ s Office, the Pazardzhik Regional Prosecutor ’ s Office, the Plovdiv Appellate Prosecutor ’ s Office and the Chief Public Prosecutor ’ s Office regarding the protraction of the criminal proceedings. He did not receive a response to any of them.

Sometime in 1998 the investigator in charge of the preliminary investigation passed away, while the assistant investigator retired. The first applicant ’ s case was never reassigned to another investigator.

Sometime in September 1999 the first applicant filed another complaint regarding the protraction of the criminal proceedings with the Supreme Cassation Prosecutor ’ s Office. In response, the Plovdiv Appellate Prosecutor ’ s Office was instructed to verify the first applicant ’ s complaint.

By decision of 20 October 1999 of the Pazardzhik District Prosecutor ’ s Office the preliminary investigation was discontinued in respect of the first applicant as unproven. The restriction on the first applicant not to leave his place of residence without the consent of the Prosecutor ’ s Office was removed.

The criminal proceedings continued, against an unknown perpetrator, until 27 September 2004 when the Pazardzhik District Prosecutor ’ s Office terminated them due to expiration of the statute of limitations for the offence. In its decision, the Prosecutor ’ s Office expressly noted that no investigative procedures had been conducted in the proceedings after 8 June 1993 , the date on which the first applicant was arrested and charged.

2. The seizing, impounding and returning of the car

The car of the second and third applicants was seized and impounded by the police on 28 May 1992 in order to check its registration documents and ownership. No protocol of seizure was prepared and the second and third applicants were not given a receipt or any other document evidencing the impounding of the car.

The car remained impounded with the police for the duration of the preliminary investigation against the first applicant as physical evidence of the offence.

On 9 November 1994 the person from whom the car was allegedly stolen on 14 October 1991 requested to be given custody of the vehicle.

The question of returning the vehicle to the second and third applicants was raised by the first applicant in his complaints regarding the protraction of the criminal proceedings filed with the Pazardzhik District Prosecutor ’ s Office on 3 April 1995 , the Supreme Cassation Prosecutor ’ s Office on 19 October 1999 and the Chief Public Prosecutor ’ s Office in September 1999. No action was taken in response to any of them.

In its decision of 20 October 1999 to terminate the criminal proceedings against the first applicant the Pazardzhik District Prosecutor ’ s Office noted that no protocol or other document existed to show “who, when, why and how” the car of the second and third applicants had been seized and impounded. However, by said decision the Prosecutor ’ s Office ordered that the vehicle be delivered to the person from whom it had allegedly been stolen on 14 October 1991 . It reasoned, inter alia , that on the basis of the investigative procedures performed during the preliminary investigation she was the owner of the vehicle. The applicants appealed against the decision but only in respect of the order to deliver the car to another person.

On an unspecified date the police delivered the car of the second and third applicants to the person from whom it had allegedly been stolen.

By decision of 10 November 1999 the Pazardzhik Regional Prosecutor ’ s Office upheld the decision of the Pazardzhik District Prosecutor ’ s Office on grounds similar to those contained in the latter ’ s decision. The applicants appealed further.

On 18 November 1999 the Plovdiv Appellate Prosecutor ’ s Office quashed the above decisions of the lower-standing Prosecutors ’ Offices. It found, inter alia , that it was not within their competencies to determine the ownership of the vehicle and, in view of the termination of the preliminary investigation against the first applicant, the car was to be returned to the persons from whom it had been seized. It further found that the seizure of the vehicle and its impounding had been unlawful at the time it was made, because no protocol to th at effect had been executed. The person to whom the car had been delivered appealed against the decision.

By decision of 10 March 2000 the Supreme Cassation Prosecutor ’ s Office upheld the decision of the Plovdiv Appellate Prosecutor ’ s Office on grounds similar to those contained in the latter ’ s decision.

The car was returned to the second and third applicants on 19 May 2000 . As a result of the period of impounding it had been damaged – its coat of paint had deteriorated and the radiator was cracked. Parts of the car were also missing, such as two spark plugs and cables, the left headlight, the spare tire, the turning signals, the cover of the right back stop signal lamp, the door handles, etc. The damage caused was estimated at 100 Bulgarian Levs (approximately 51 Euros). The first applicant, who signed the protocol of transfer, made a reservation that he would make a further assessment of the damages caused to the vehicle and that a subsequent claim may be filed against the District Prosecutor ’ s Office in that respect.

Thereafter, the second and third applicants did not initiate any type of action to seek compensation for the alleged damages caused to the vehicle.

B. Relevant domestic law and practice

1. Code of Criminal Procedure

Paragraphs 1, 2 and 4 of section 107 of the Code of Criminal Procedure, as in force at the relevant time and until 1 January 2000 , provided as follows:

“(1) The physical evidence must be carefully examined, described in detail in the respective record, and photographed, if possible.

(2) The physical evidence shall be attached to the case file while at the same time measures shall be taken not to spoil or change the evidence.

...

(4) Physical evidence which, because of its size or other reasons, cannot be attached to the case file, must be sealed, if possible, and left for safekeeping at the places indicated by the respective authority.”

Paragraphs 1 and 2 of section 108 of the Code of Criminal Procedure, provided at the relevant time as follows:

“(1) Physical evidence shall be held till the termination of criminal proceedings.

(2) Objects, which have been collected as physical evidence, can be returned to their owners before the termination of criminal proceedings only as long as this will not hinder the establishment of the facts in the case.”

2. The State Responsibility for Damage Act

Article 1 § 1 of the State Responsibility for Damage Act of 1988 (the “SRDA”) provides that:

“The State shall be liable for damage caused to [private persons] from unlawful acts, actions or inactions of its [divisions] and officials [in exercise] of administrative duties.”

Article 2 of the SRDA provides that:

“The State shall be liable for damage caused to [private persons] by [divisions] of ... the investigation, the prosecution, the court ... for an unlawful:

1. detention ... ;

2. indictment ...;

3. sentence ... ;

4. ... forced medical treatment ... ;

5. ... imposition of administrative sanctions ... ;

6. enforcement of an imposed sentence in excess of the determined period ... ”

Compensation awarded under the Act comprises all pecuniary and non ‑ pecuniary damages which are the direct and proximate result of the illegal act of omission (Article 4). The person aggrieved has to file an “action ... against the bodies ... whose illegal orders, actions, or omissions have caused the alleged damage” (Article 7). Compensation for damages, caused from instances falling under Articles 1 and 2 of the Act can only be sought under the Act and not under the general rules of tort (Article 8 § 1).

The practice of the Bulgarian courts in the application of the Act has been very restrictive. In particular, the courts have ruled that liability for damages stemming from instances within the scope of Article 1 of the Act are to be examined only under the Act and not under the general rules of tort ( р ешение № 55 от 14.III.1994 г. по гр.д. № 599/93 г., ВС, IV г.о.). Similarly, liability of the investigation and the prosecution may arise only for the exhaustively listed instances under Article 2, items 1 and 2 of the Act and not under the general rules of tort ( р ешение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Т ълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). No reported cases have been identified of successful claims for damages stemming from actions by the investigation or prosecution which fall outside the list in Article 2 of the Act, such as for length of proceedings.

In their submissions to the Court, the second and third applicants cited case-law by the domestic courts, copies of which they failed to provide. In particular, they claimed that the domestic courts have previously ruled that the actions of the investigation, the prosecution and the courts in connection with the investigating of offences do not fall under Article 1 of the Act because they do not constitute “administrative” activities (решение № 615 от 10.VII.2001 г. по гр. д. № 1814/2000 г. and решение № 183 от 05.IV.2001 г. по гр. д. № 1362/2000 г.). In addition, they referred to the prevailing practice of the domestic courts that Article 2 of the SRDA exhaustively lists the instances when liability may arise for one of the aforesaid authorities (решение № 165 от 11.II.1998 г. по гр. д. № 707/1996 г. and решение № 157 от 08.III.2001 г. по гр. д. № 1277/2000 г.). The applicants also referred to the findings of the domestic courts that liability under Article 2 of the Act may arise only for unlawful actions, but not for unlawful inactions of the investigation, the prosecution and the courts (решение № 183 от 05.IV.2001 г. по гр. д. № 1362/2000 г.).

3. The Obligations and Contracts Act

The Obligations and Contracts Act provides in Article 45 that a person who has suffered damage can seek redress by bringing a civil action against the person who has, through his fault, caused the damage. According to Article 110 the claim for damages is extinguished with the expiry of a five year prescription period.

COMPLAINTS

1. The first applicant complained , relying on Articles 3, 6 and 13 of the Convention, that the length of the criminal proceedings against him was excessive and that he lacked an effective remedy to speed them up and to have the case brought before a court.

2. The second and third applicants complained, relyi ng on Article 1 of Protocol No. 1 to the Convention and Articles 3, 6 and 13 of the Convention, that their car was illegally seized and impounded, that it was held as evidence for the duration of the criminal proceedings against the first applicant, that they were deprived of their possession during that period, and that after the vehicle was returned to them they could not obtain adequate compensation for the damages caused as a result of the aforesaid. They argued that they did not have at their disposal an effective remedy for their complaints under Article 1 of Protocol No. 1 and were de facto denied access to a court, because (1) they could not challenge the seizure and prolonged impounding before a court, and (2) they lacked a right of action for damages against the State for the unlawful seizure and prolonged interference with their right to peaceful enjoyment of their possession.

THE LAW

A. Complaints by the first applicant concerning the excessive length of the criminal proceedings and the lack of an effective remedy relating thereto

The first applicant complained of the excessive length of the criminal proceedings against him and the lack of an effective remedy relating thereto. The Court finds that his complaints fall to be examined under Articles 6 § 1 and 13 of the Convention.

Article 6 § 1 of the Convention provides, as relevant:

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

Article 13 of the Convention provides:

“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.”

1. The Government ’ s objection of non-exhaustion of domestic remedies

The Government submitted that the first applicant had failed to exhaust the available domestic remedies. They claimed that he could have initiated an action under the SRDA (see, above, Relevant domestic law and practice) and sought compensation for all pecuniary and non-pecuniary damages which were the direct and proximate result of the alleged violation. The Government averred to the persistent practice of the domestic courts in similar cases, but did not put forward any successful examples of the application of the above Act in such cases.

The first applicant replied that the Government had failed to substantiate their objection because they had failed to show that an action under the SRDA was an effective remedy and, therefore, that it was required of him to have exhausted it. He submitted that the violations complained of could neither be established nor compensated under the SRDA.

The Court finds that the question of exhaustion of domestic remedies relates to the merits of the first applicant ’ s complaint that he lacked an effective remedy for the excessive length of the criminal proceedings against him. Hence, to avoid prejudging this issue, the Court considers that these questions should be examined together. Accordingly, it holds that the question of exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.

2. The parties ’ arguments

The Government did not submit separate observations on the admissibility and merits of the first applicant ’ s complaints other than in the context of their objection of non-exhaustion of domestic remedies with which the first applicant disagreed.

In his reply, the first applicant reiterated his complaints and noted that the Pazardzhik District Prosecutor ’ s Office, in its decision of 27 September 2004, had established that that no investigative procedures had been conducted in the course of the preliminary investigation after 8 June 1993, the date on which he was arrested and charged. Subsequently, for the next six and half years nothing was performed, but the restriction on his movement was maintained and he remained concerned and anxious as to the possible outcome of the proceedings.

3. The Court ’ s decision on admissibility

The Court considers, in the light of the parties ’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

B. Complaints by the second and third applicants concerning the unlawful seizure and prolonged impounding of their car and the lack of effective remed ies relating thereto

The Court observes that the second and third applicants complained under several provisions of the Convention regarding the unlawful seizure and prolonged impounding of their car and the lack of effective remedies relating thereto . It considers, however, that their complaint s fall to be examined only under Article 1 of Protocol No. 1 to the Convention in respect of their right to peaceful enjoyment of their possession and Article 13 of the Convention regarding the alleged lack of effective remedies relating thereto .

Article 1 of Protocol No. 1 to the Convention provides:

“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.”

Article 1 3 of the Convention provides:

“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.”

1. The Government ’ s objection of non-exhaustion of domestic remedies

The Government submitted that the second and third applicants had failed to exhaust the available domestic remedies. They claimed that they could have initiated an action under the SRDA (see, above, Relevant domestic law and practice) and sought compensation for all pecuniary and non-pecuniary damages which were the direct and proximate result of the alleged violations. The Government averred to the persistent practice of the domestic courts in similar cases, but did not put forward any successful examples of the application of the above Act in such cases.

The Government also argued that they could have initiated a tort action (see, above, Relevant domestic law and practice) and sought compensation for damages from the persons responsible for the alleged violations. They referred to the rebuttable presumption of guilt of the respondent in such actions and that claimants need only prove the size of the pecuniary and non-pecuniary damages they suffered, such as, for example, for loss of value, loss of income and amortisation of the vehicle.

The second and third applicants replied that the Government had failed to substantiate their objection because they had failed to show that the suggested remedies were effective and, therefore, that it was required of them to have exhausted them.

They submitted that the violations they complained of could not be compensated under the SRDA and referred to the restrictive interpretation of the domestic courts in respect of the liability of the investigation, the prosecution and the courts (see, above, Relevant domestic law and practice).

In respect of the Government ’ s assertion that they could have initiated a tort action against the persons responsible, the second and third applicants responded that that too was not an effective remedy. In particular, they referred to the fact that no protocol or other document had been executed for the seizure and impounding of their vehicle. Neither had they received any responses to the numerous complaints they had filed with the Prosecutor ’ s Office. Accordingly, they could never have designated a respondent party in such a tort action. They also noted that the investigator in charge of the preliminary investigation had passed away in 1998 and, in addition, that the investigation and the prosecution enjoyed immunity from civil prosecution stemming from their official activities.

The Court finds that the question of exhaustion of domestic remedies relates to the merits of the second and third applicants ’ complaint that they lacked effective remedies in respect of the alleged interference with their right to peaceful enjoyment of their possession. Hence, to avoid prejudging these issues, the Court considers that these questions should be examined together. Accordingly, it holds that the question of exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.

2. The parties ’ arguments

The Government did not submit separate observations on the admissibility and merits of these complaint s other than in the context of their objection of non-exhaustion of domestic remedies with which the second and third applicants disagreed.

In their reply, the second and third applicants reiterated their complaint and observed that the Government had not challenged their assertion that the authorities had seized and impounded their vehicle in violation of the applicable legislation. Thus, they considered that the interference with their right to peaceful enjoyment of their possession had been unlawful and, therefore, in contravention with Article 1 of Protocol No. 1 to the Convention.

3. The Court ’ s decision on admissibility

The Court considers, in the light of the parties ’ submissions, that the complaint s raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that these complaint s are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Decides to join to the merits the question of exhaustion of domestic remedies in respect of the applicants ’ respective complaints;

Declares admissible, without prejudging the merits:

- the first applicant ’ s complaints that the length of the criminal proceedings against him was excessive (Article 6 § 1) and that he lacked an effective remedy relating thereto (Article 1 3);

- the second and third applicants ’ complaint s concerning the interference with their right to peaceful enjoyment of their possession (Article 1 of Protocol No. 1) and that they lacked effective remedies relating thereto (Article 13).

Søren Nielsen Christos Rozakis Registrar President