FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39832/98 by Nikolai Petkov TODOROV against Bulgaria

The European Court of Human Rights (First Section), sitting on 6 November 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 11 September 1997 and registered on 13 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 14 March 2002,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nikolai Petkov Todorov, is a Bulgarian national who was born in 1968 and lives in Plovdiv. He is represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government are represented by Ms M. Pasheva, co ‑ agent, 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 impounding, confiscation and returning of the applicant’s car

On 14 August 1992 the applicant bought a car from a Mr I.G.

On 14 September 1992 the car was impounded by the police who explained to the applicant that it had been stolen. On 17 September 1992 the applicant requested the return of the car but received no reply.

On 30 September 1992 a criminal investigation was opened by the Plovdiv District Prosecutor’s Office against a Mr N.P. for forgery of customs’ declarations for the importation of cars, one of which was the applicant’s. The prosecutor in charge of the case ordered that the car be held as an exhibit.

In October and November 1992 the applicant four times requested from the prosecution authorities the return of his car but received no reply.

On 30 November 1992 the car was handed over to the Plovdiv Customs Administration by order of the Plovdiv District Prosecutor’s Office. On 29 January 1993 the head of the Plovdiv Customs Administration made a penal order whereby he confiscated the car on the ground that it had been illegally imported into the country.

The applicant appealed against the penal order to the Plovdiv District Court. In a judgment of 28 July 1993 that court quashed the order and on 18 August 1993 the car was returned to the applicant.

2. Proceedings against the Prosecutor’s Office and the Customs Administration

On 22 November 1993 the applicant brought an action for damages against the Plovdiv Customs Administration and the Chief Prosecutor’s Office, complaining that the impounding of his car and the unlawful order for its confiscation had prevented him from using it during a period of eleven months.

Noting that the applicant had failed to adduce written evidence in support of his allegations, the Plovdiv District Court instructed him to do so within seven days. The applicant complied with these instructions and the court set the case down for hearing.

The first hearing took place on 24 March 1994. The court noted the absence of a representative of one of the defendants (the Chief Prosecutor’s Office) and ordered that it be summoned for the next hearing. The applicant’s lawyer requested the court to subpoena as a witness the prosecutor who had ordered the car to be handed over to the Customs Administration . The court rejected the request by an order of 28 March 1994, holding that the prosecutor’s actions could be proved through the official documents he had made and that his testimony would therefore be superfluous.

The second hearing was held on 13 June 1994. No representative of the Chief Prosecutor’s Office appeared but a prosecutor was present in his capacity of “special party” to the proceedings. The “special party” prosecutor requested that the proceedings be stayed in order to take into account the pending criminal investigation against Mr N.P., as it related to the same car. In particular, there was information that the number on the engine and on the chassis of the car had been forged and that it had been illegally imported. The applicant’s lawyer agreed and requested that the actions against the Chief Prosecutor’s Office and against the Customs Administration be severed. The court refused to sever the actions and acceded to the request for staying the proceedings.

On 20 June 1994 the applicant appealed against the order for staying the proceedings to the Plovdiv Regional Court. He filed the appeal with the Plovdiv District Court. Noting that the applicant had not paid the requisite fee, the Plovdiv District Court refused to proceed with the appeal, instructing the applicant to pay the fee. The applicant did so and on 26 July 1994, after the Customs Administration had filed its defence, the Plovdiv District Court forwarded the appeal to the Plovdiv Regional Court. In a final order of 26 September 1994 the Plovdiv Regional Court dismissed the appeal.

On 21 December 1995 the applicant’s lawyer requested the Plovdiv District Court to resume the proceedings. In view of the request, on 27 December 1995 the court sent a letter to the Plovdiv Regional Investigation Service, asking whether the criminal investigation against Mr N.P. had been completed. The Investigation Service informed the court that the proceedings were still pending.

In the following years the Plovdiv District Court made several inquiries about the stage reached in the investigation against Mr N.P. By letters of 27 February 1996, 22 September 1997, 1 October 1998 and 27 November 2000 the Plovdiv Regional Investigation Service informed the court that the criminal proceedings were still pending without specifying whether it was undertaking any investigative actions.

Following a further inquiry by the court, the Plovdiv Regional Investigation Service notified it by a letter of 13 August 2001 that the case had been sent to the Plovdiv District Prosecutor’s Office on 6 July 2001. Taking into consideration that the investigation was still pending, by an order of 20 August 2001 the Plovdiv District Court refused to resume the proceedings. It seems that there was no activity during the period between 1995 ‑ 2001 in the criminal investigation against Mr N.P.

On 26 November 2001 the Plovdiv District Prosecutor’s Office discontinued the criminal proceedings against Mr N.P.

The Plovdiv District Court then resumed the proceedings and held a hearing on 28 March 2002. The applicant requested a change in the names of the defendants, as during the time when the proceedings had been stayed the Chief Prosecutor’s Office was renamed the Prosecutor’s Office of the Republic of Bulgaria and the Plovdiv Customs Administration had become the Customs Agency at the Ministry of Finance. The applicant also increased the amount of his claim for damages and requested leave to call one witness. The defendant Prosecutor’s Office requested the court to include the case-file of the investigation against Mr N.P. in the record. The court acceded to all of the parties’ requests and adjourned the case.

Three hearings listed for 7 and 21 May and 4 June 2002 did not take place because the Customs Agency had not been duly summoned.

A hearing listed for 2 July 2002 failed to take place because the Customs Agency, despite being duly summoned, did not send a representative. Its counsel requested the court in writing to adjourn the case because he was ill and could not attend.

The court held a hearing on 10 September 2002. The applicant and his lawyer did not appear. The court found that the case was ready for adjudication and reserved judgment.

On 13 September 2002 the applicant’s lawyer requested the court to reopen the oral proceedings, as he had been unable to organise his defence prior to the 10 September 2002 hearing because between 15 August and 10 September 2002 the case ‑ file had been sent to the Ministry of Justice in Sofia and he could not therefore prepare for the hearing. The court acceded to his request and scheduled a hearing for 22 October 2002.

The last hearing before the Plovdiv District Court was held on 22 October 2002. The court heard the applicant’s witness and the parties’ closing arguments.

In a judgment of 28 November 2002 the Plovdiv District Court partly allowed the applicant’s claim for damages against the Customs Agency, awarding him 1,000 Bulgarian levs, and dismissed his claim against the Prosecutor’s Office.

On 12 December 2002 the applicant appealed against the judgment to the Plovdiv Regional Court.

The Plovdiv Regional Court held a hearing on 3 June 2003. The applicant and the Customs Agency did not appear. The Prosecutor’s Office requested the court to include in the record the case ‑ file of the administrative case in which the Plovdiv District Court had quashed the penal order for the confiscation of the applicant’s car. The court granted the request and adjourned the case until 23 October 2003.

The proceedings are still pending.

B. Relevant domestic law

Staying of civil proceedings in view of concurrent criminal proceedings

The Code of Civil Procedure (“CCP”) provides, in Articles 182 § 1 (d) and 183, that a court examining a civil action:

“182. ... shall stay the proceedings:

(d) whenever criminal elements, the determination of which is decisive for the outcome of the civil dispute, are discovered in the course of the civil proceedings.

183. Proceedings which have been stayed shall be resumed ex officio or upon a party’s petition after the respective obstacles have been removed...”

COMPLAINTS

1. The applicant complained under Article 6 § 1 of the Convention about the excessive length of the proceedings against the Prosecutor’s Office and the Customs. He submitted that he was thus de facto denied access to a court.

2. The applicant complained under Article 13 of the Convention that he did not have an effective remedy in respect of the excessive length of the proceedings.

THE LAW

1. In respect of his complaint about the excessive length of the proceedings the applicant relied on Article 6 § 1 of the Convention, which provides, as relevant:

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

The Government submitted that, as the proceedings were still pending and the applicant could hence lodge appeals with higher courts, he had failed to exhaust domestic remedies.

The applicant did not comment.

The Court notes that according to the Convention organs’ constant case ‑ law complaints concerning length of procedure can be brought before it before the final termination of the proceedings in question (see Poiss v. Austria , no. 9816/82, Commission decision of 9 March 1984, Decisions and Reports 36, p. 170 and Kertész v. Hungary , no. 27131/95, Commission decision of 2 July 1997, unreported). The Court also reiterates that the only remedies that Article 35 § 1 of the Convention requires to be exhausted are those which relate to the particular breaches alleged (see, among many other authorities, Brozicek v. Italy , judgment of 19 December 1989, Series A no. 167, p. 16, § 32). The Court fails to see how the fact that the proceedings are pending and the ensuing possibility for the applicant to lodge an appeal against the eventual second ‑ instance judgment can remedy the alleged violation of Article 6 § 1 of the Convention stemming from the length of the proceedings.

Accordingly, the Government’s objection must be dismissed.

In respect of the substance of the complaint, the Government maintained that the proceedings had not exceeded a reasonable time. The staying of the proceedings had been necessary because of the concurrent criminal proceedings.

According to the Government, part of the delay was due to the applicant’s conduct. In particular, his statement of claim had not been supported by written evidence, he had not paid the fee for his appeal against the staying of the proceedings, and he had requested the court to reopen the oral proceedings because he had been unable to organise his defence for the hearing held on 10 September 2002.

The applicant submitted, concerning the conduct of the authorities, that the staying of the proceedings had been unjustified, as they had nothing to do with the criminal proceedings against Mr N.P. It could not be claimed that the outcome of the civil proceedings against the Customs and the Prosecutor’s Office would be dependent on the determination of criminal elements, as required by Article 182 § 1 (d) of the CCP. By delivering the car to the Customs, thus excluding it from the exhibits in the criminal case against Mr N.P., the Prosecutor’s Office had itself acknowledged that the car was not linked to the commission of a crime. Even assuming, however, that the civil proceedings were dependent on the criminal ones, there existed no justification for the inactivity of the investigation authorities for more than eight years. The fact that the court had repeatedly inquired about the conduct of the investigation did not mean that that there had been activity in the criminal proceedings. Later, after the resumption of the civil proceedings, three hearings had been adjourned due to the faulty summoning of the Customs Agency which was entirely attributable to the authorities. Finally, the adjourning of the hearing before the Plovdiv Regional Court on 3 June 2003 had not been warranted.

As regards his own conduct, the applicant maintained that his initial failure to submit written evidence had been rectified within seven days, which was a negligible amount of time compared with the overall length of the proceedings. He had not paid a fee for filing his appeal against the staying of the proceedings because proceedings in damages against State bodies were exempt from fees. Finally, he could not be held responsible for the reopening of the oral proceedings after the hearing on 10 September 2002, as his lawyer had been unable to prepare himself because the case ‑ file had been missing from the court during the twenty-five days preceding the hearing.

The Court considers, in the light of the criteria established by its case ‑ law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

2. In respect of his complaint about the lack of effective remedies against the allegedly unreasonable length of the proceedings the applicant relied on Article 13 of the Convention, which 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.”

The Government submitted that the very fact that the applicant was able to prosecute an action against the Customs and the Prosecutor’s Office was indicative of the existence of effective remedies. He could, within the context of these proceedings, vindicate his right to damages.

The applicant replied that apparently the Government had failed to understand the nature of the complaint. In his view, his averment that there had been a breach of Article 13 did not need additional arguments.

The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President