FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47877/99 by Irina Vasileva RACHEVA and Nadezhda Teodosieva RACHEVA against Bulgaria

The European Court of Human Rights (First Section), sitting on 8 July 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , 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 30 July 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 observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Irina Vasileva Racheva and her daughter Ms Nadezhda Teodosieva Racheva, are Bulgarian nationals who were born in 1955 and 1979 respectively and live in Sofia. They are represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government are represented by Mrs G. Samaras, 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. Events giving rise to the applicants’ tort action

On 1 July 1988 the applicants were hit by a taxi driven by a Mr V.G. The first applicant’s injuries, although serious, were not life-threatening, whereas the second applicant, who was at the time nine-years old, sustained life-threatening injuries. Subsequently her spleen had to be surgically removed. Apparently her health is still affected by the aftermath of the accident.

Criminal proceedings were brought against Mr V.G . By judgment of the competent criminal court of 8 December 1988 he was found guilty of negligently causing serious bodily injury to the second applicant and sentenced to one year’s imprisonment, suspended. The first applicant took part in these criminal proceedings, but only as a private prosecutor on behalf of the second applicant and not as a civil claimant, which would have been possible under the applicable law.

2. Proceedings before the Sofia City Court

On 17 June 1991 the first applicant filed with the Sofia City Court a tort action against Mr V.G. and the taxi enterprise where the latter had been employed at the time of the accident. She was acting on her own behalf and on behalf of the second applicant who was at the time still a minor. Both applicants claimed pecuniary and non-pecuniary damage.

On 12 August 1991 Mr V.G. filed third-party claims against another person involved in the accident, Ms V.B., as well as against the State Insurance Company. These claims were based on Mr V.G.’s assertions that Ms V.B.’s improper crossing of the street had been the cause of the accident and that the State Insurance Company was liable to indemnify the damage under his road accident insurance.

The first hearing was held on 4 October 1991. Finding that the applicants had not paid the requisite fee for filing the action, the court directed them to do so or to make a request to be exempted from payment of the fee. It also instructed Mr V.G. to provide the exact names and addresses of the third-party defendants. The court suspended the proceedings pending compliance with its instructions.

The proceedings resumed on 21 October 1991 after the applicants had successfully filed a request for exemption from fees and Mr V.G. had provided the names and addresses of the third-party defendants. A hearing was listed for 10 December 1991.

On 10 December 1991 the case had to be adjourned until 28 February 1992 as the taxi enterprise employing Mr V.G. at the time of the accident, had in the meantime been reorganised into a commercial company [1] and had not received a copy of the applicants’ complaint. The applicants were instructed by the court to produce evidence that the taxi company listed as a defendant – Taxi Express – was the successor of the taxi enterprise, and to provide an additional copy of the complaint for it.

At the hearing on 28 February 1992 the court noted that there was no evidence as to identify of the successor of the taxi enterprise. It requested Taxi Express to provide information on whether it was the successor. At that hearing also the State Insurance Company intervened in the initial action on behalf of Mr V.G.

At the next hearing, held on 21 April 1992, the court ruled on the successor of the taxi enterprise. It found that the successor was not the company listed as a defendant, Taxi Express, but another company, Softaxi. Accordingly, the court excluded the first defendant from the proceedings and constituted the second as a defendant, ordering that a copy of the applicants’ complaint be served on Softaxi. The case was adjourned.

At the next hearing, which took place on 12 June 1992, the court agreed to examine Mr V.G.’s third-party claims together with the original tort action and admitted certain documents in evidence. It also ordered a medical expert report to be drawn up on the injuries sustained by the applicants and a technical expert report to be prepared on the cause of the accident. Both reports were to be drafted by court-appointed experts. Finally, the court directed Mr V.G. to pay the requisite fee for his third-party claims, instructed the applicants to provide a breakdown of the pecuniary damage claimed, and gave the parties leave to call witnesses.

The next hearing was held on 27 October 1992. The court noted that the medical expert report submitted had not been dated, with the result that it was impossible to establish whether it had been brought to the attention of Softaxi, which defendant had not appeared at the hearing. The court also noted that the technical expert who had been commissioned to draw up the report on the cause of the accident was absent. Accordingly, the court adjourned the case. It gave Mr V.G. leave to call one witness.

On 5 February 1993 the court admitted in evidence the newly submitted medical expert report and questioned the medical expert who had prepared it. The court requested the applicants to specify and itemise, in the light of the medical expert’s report, the amount of compensation for pecuniary damage sought. The technical expert, Softaxi and Mr V.G.’s witness did not appear at the hearing, although they had been duly summoned. The court adjourned the case and fined the witness but not the technical expert.

At the hearing held on 30 March 1993 the court questioned Mr V.G.’s witness. It then adjourned the case as Softaxi, despite having been duly summoned, did not appear and as the technical expert arrived at the hearing too late to be questioned.

At the next hearing, which took place on 28 September 1993, the applicants increased their claim for non-pecuniary damage in order to take account of inflation. Softaxi and the technical expert did not appear, although they had been duly summoned. On the motion of Mr V.G.’s lawyer the court ordered the technical expert to answer an additional question regarding the causal link between Ms V.B.’s conduct and the accident. It adjourned the case with a view to receiving the technical expert’s report.

A hearing listed for 10 December 1993 was adjourned as the technical expert, although having been duly subpoenaed, did not show up.

On 25 February 1994 the technical expert finally showed up and was questioned. His report was admitted in evidence. As the expert had apparently not provided an answer to the additional question put to him on 28 September 1993, the court ordered him to supplement his report. The court also authorised Mr V.G. to increase his third-party claims against Ms V.B. and the State Insurance Company.

A hearing listed for 20 May 1994 was adjourned as Softaxi had not been duly summoned and did not appear. The technical expert was also absent.

A hearing fixed for 7 October 1994 was adjourned because the applicants’ lawyer, having had a road accident on 25 September, was ill and could not attend.

At the hearing which took place on 20 December 1994 the court again gave the applicants leave to increase their claim for non-pecuniary damage, ordering that a copy of their request be served on Softaxi, which had failed to appear at the hearing. It noted that the supplementary technical expert report, ordered on 25 February 1994, had not yet been drawn up and adjourned the case.

The next hearing was held on 17 March 1995. Despite having been duly summoned, the applicants, Softaxi, Ms V.B. and the State Insurance Company failed to appear. The technical expert was also absent. The court gave Mr V.G. leave to increase his third-party claims for a second time. The court adjourned the case. It ordered that the subpoena to be served on the technical expert should expressly mention that the case had had to be adjourned many times and that the court’s request for the presentation of his supplementary report had been made a long time ago.

The next hearing took place on 19 June 1995. Softaxi and the State Insurance Company, despite having been duly summoned, did not appear. The technical expert was also absent. Ms V.B.’s lawyer submitted that Mr V.G.’s third-party claims had been made after the first hearing and for that reason should not have been examined jointly with the applicants’ tort action. Mr V.G.’s lawyer objected, stating that the claim had been presented prior to the first hearing. The court ruled that it would determine the point later in private. It adjourned the case, holding that this was necessary because of the technical expert’s absence and his failure to draw up his supplementary report, which was essential for the determination of the facts of the case. It fined the expert.

The next hearing was held on 5 November 1995. Softaxi did not appear and the technical expert was also absent. Ms V.B.’s , Mr V.G.’s and the State Insurance Company’s lawyers all insisted that the technical expert report was needed so as to enable the facts of the case to be established properly. The court agreed. Noting that the technical expert had repeatedly failed to show up, the court replaced him with another expert.

The new expert’s report on the cause of the accident was ready on 10 January 1996.

The next hearing was held on 26 January 1996. Softaxi and Ms V.B. did not appear. The newly-appointed technical expert presented his report and was questioned. The applicants increased their claim for non-pecuniary damage for a third time. Mr V.G. also increased his third-party claims. The court ordered that copies of the requests to increase the claims be served on the absent parties and adjourned the case.

The next hearing took place on 27 September 1996. Softaxi and Ms V.B. did not appear. The applicants increased their claim for non-pecuniary damage for a fourth time. As a result, Mr V.G. increased his third-party claims as well. The court adjourned the case, ordering that copies of the requests for leave to increase the claims be served on the absent parties. It also requested that a copy of Softaxi’s certificate of company registration be produced by the parties.

The next hearing was held on 11 February 1997. The applicants’ lawyer informed the court that Softaxi had been transformed into a joint-stock company under the name of Softaxi EAD. The court listed Softaxi EAD as a defendant in the place of Softaxi but requested the applicants to produce certified copies of its registration documents. It also instructed them to provide a detailed breakdown of their claim for pecuniary damage and adjourned the case.

The hearing listed for 11 March 1997 failed to take place. Despite having been duly summoned, the second applicant and Softaxi EAD did not appear. The court adjourned the case to allow the second applicant to countersign the complaint, since she had already turned eighteen and had thus obtained the capacity to sue on her own behalf.

At the hearing which took place on 11 April 1997 the second applicant countersigned the complaint. The applicants tried to increase their claim for non-pecuniary damage for a fifth time. The court rejected their request, holding that they had not paid the requisite fee for increasing the claim. It instructed them to pay the fee or to request an exemption. The court also found that the applicants had failed to provide a detailed breakdown of their claim for pecuniary damage. It directed them to do so within seven days, warning them that non-compliance could result in the dismissal of the claim.

The next hearing took place on 31 October 1997. Softaxi EAD, Ms V.B. and the State Insurance Company, despite having been duly summoned, did not appear. Finding that the applicants had not complied with its instructions to provide a detailed breakdown of their claim for pecuniary damage, the court dismissed the claim. It gave the applicants leave to increase their claim for non-pecuniary damage and acceded to Mr V.G.’s follow-up request to increase his third-party claims. The court ordered that copies of the requests be served on the absent parties. The applicants’ request for a new medical expert report was rejected. The court issued the applicants a certificate enabling them to obtain a copy of Softaxi EAD’s registration documents. The case was adjourned.

The last hearing was held on 31 March 1998. Although duly summoned, Softaxi EAD and the State Insurance Company did not appear. The court rejected the applicants’ request to be allowed once again to increase their claim for non-pecuniary damage, holding that this would further complicate the examination of the case. The court heard the parties’ closing arguments.

The Sofia City Court gave judgment on 15 April 1998. It allowed in part the applicants’ claim for non-pecuniary damage against Mr V.G. and Softaxi EAD, holding them jointly and severally liable. The court also found that Ms V.B. had contributed to the accident and ordered her to pay Mr V.G. one third of the amount he had to pay the applicants. Finally, it held that Mr V.G.’s third-party claim against the State Insurance Company was statute-barred and, in any event, ill-founded because only the owner of the insured vehicle – Mr V.G.’s employer – could make such a claim.

3. Proceedings before the Sofia Court of Appeals

The second applicant was notified of the Sofia City Court’s judgment on 28 June 1999 and on 5 July 1999 she appealed against it to the Sofia Court of Appeals. She demanded that her claim for non-pecuniary damage be granted in full. She requested a new expert report on her medical condition.

The first applicant was notified of the Sofia City Court’s judgment on 26 July 1999 and appealed against it the same day. She demanded that her claim for non-pecuniary damage be granted in full. She requested that a new expert report be prepared on her medical condition and sought leave to be allowed to call two witnesses.

On 26 November 1999 the Sofia Court of Appeals, sitting in private, declared the appeals admissible. Finding the applicants’ requests for the gathering of additional evidence well-founded, it ordered a new medical expert report to determine the applicants’ present state of health, whether their health had deteriorated since the accident and what their health prospects were. The court also gave the first applicant leave to call the requested witnesses. It listed a hearing for 3 February 2000.

The first hearing took place on 3 February 2000. Despite having been duly summoned, Mr V.G. and the State Insurance Company did not appear. The medical expert appointed by the court on 26 November 1999 was also absent. The applicants’ lawyer stated that she had spoken to the expert and had found that his field of expertise was different from the one needed for the preparation of an opinion on the applicants’ injuries. The court agreed and replaced the expert. It also questioned the two witnesses called by the applicants. It adjourned the case.

The hearing listed for 23 March 2000 could not take place because the State Insurance Company had not been duly summoned.

The next hearing was held on 18 May 2000. The court questioned the medical expert and admitted his report in evidence. Softaxi EAD’s lawyer presented a document purporting to prove that the taxi enterprise where Mr V.G. had been employed at the time of the accident had been split into two commercial companies following its reorganisation in 1991, and that Softaxi was only one of the two companies. The court adjourned the case to allow Softaxi EAD to produce the court decision on the reorganisation of its predecessor.

The last hearing was held on 20 September 2000. The court admitted in evidence documents presented by Softaxi EAD on the strength of which it tried to prove that it was not the successor of the taxi enterprise where Mr V.G. had been employed at the time of the accident. The court heard the parties’ closing arguments. The parties presented written observations. In its observations Softaxi EAD argued that the applicants’ increased claim for non-pecuniary damage was time-barred because the increases had been made at various times during the proceedings but more than five years (the relevant limitation period) after the accident.

The Sofia Court of Appeals gave judgment on 29 September 2000. It held that Softaxi EAD was indeed the successor of Mr V.G.’s employer at the time of the accident. It also held that the applicants’ increased claim for non-pecuniary damage was not time-barred. It found that the pain and suffering sustained by the first and especially by the second applicant warranted a higher amount of compensation for non-pecuniary damage and, accordingly, awarded them such, but not the full amount claimed by the applicants. Finally, the court ordered Ms V.B. to pay Mr V.G. one third of the increased amount of compensation he had to pay the applicants.

4. Proceedings before the Supreme Court of Cassation

The applicants, Ms V.B. and Softaxi EAD filed appeals on points of law with the Supreme Court of Cassation.

The Supreme Court of Cassation held a hearing on 4 December 2001, at which it heard oral argument.

The Supreme Court of Cassation gave judgment on 2 January 2002. It found that the applicants’ appeals were time-barred. It proceeded to examine Softaxi EAD’s and Ms V.B.’s appeals on the merits. It dismissed Ms V.B.’s appeal but held, pursuant to Softaxi EAD’s appeal, that the Sofia Court of Appeals had erred in holding that the applicants’ increased claim for non-pecuniary damage was not time-barred. In fact, any increase in a claim was tantamount to the bringing of a new claim representing the difference between the original claim and the increased one. Accordingly, it remitted the case to a different panel of the Sofia Court of Appeals with instructions to analyse the dates of the increases in the applicants’ claim for non-pecuniary damage and to determine which had been made in good time and which had not.

5. Proceedings on remittal before the Sofia Court of Appeals

The Sofia Court of Appeals listed a hearing for 7 June 2002.

Apparently the proceedings are still pending.

B. Relevant domestic law

Code of Civil Procedure (“CCP”):

Article 71

“If a witness or an expert who has been duly subpoenaed fails to show up without good cause, the court shall fine him or her ... and shall order that he or she be brought to the next hearing by force.”

Article 116

“1. The plaintiff may ... increase ... his claim [at any point of the proceedings before the first-instance court]...

2. If the plaintiff amends his claim in the absence of the defendant, he must do so through a written request, a copy of which shall be served on the defendant.”

Article 175 § 2

“A party which wants to make a third-party claim to be examined together with the original action may do so not later than the first hearing.”

Article 217A (adopted in July 1999)

“1. Each party may file a complaint about delays at every stage of the case, including after oral argument, when the examination of the case, the delivery of judgment, or the transmitting of an appeal against judgment is unduly delayed.

2. The complaint about delays shall be filed directly with the higher court, no copies shall be served on the other party, and no fee shall be due. The filing of a complaint about delays shall not be limited by time.

3. The chairperson of the court with which the complaint has been filed shall request the case file and shall immediately examine the complaint in private. His instructions as to the acts to be performed by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been filed.

4. In case he finds that there has been [undue delay], the chairperson of the higher court may make a proposal to the disciplinary panel of the Supreme Judicial Council for the taking of disciplinary action.”

Article 222

“The findings contained in a final judgment of a criminal court and concerning the issue whether the act in question has been committed, its unlawfulness and the perpetrator’s guilt are binding on the civil court when it examines the civil consequences of the criminal act.”

COMPLAINTS

1. The applicants complained under Article 6 § 1 of the Convention about the length of the proceedings concerning their claim for damages.

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

THE LAW

A. Complaint under Article 6 of the Convention about the length of the proceedings

In respect of their complaint about the excessive length of the proceedings the applicants 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...”

1. The Government raised a objection, claiming that the applicants had not exhausted domestic remedies in respect of their complaint. The Government firstly submitted that the applicants could have tried to accelerate the proceedings by relying on the relevant provisions of the Convention, which was incorporated in domestic law. Secondly, they argued that following the introduction of Article 217A CCP in July 1999 the applicants could have filed a “complaint about delays”, thus obtaining an acceleration of the proceedings.

The applicants replied that the “complaint about delays” was not an effective remedy. They considered, firstly, that it was not effective in principle: the Government had not provided any example or statistical information in support of their contention that it could in practice serve to reduce delays. Secondly, even if it could be considered an effective remedy in principle, it had been introduced too late to serve any useful purpose: most of the delays in the case had occurred before July 1999.

The Court finds that the question of exhaustion of domestic remedies in respect of the complaint about the length of the proceedings is closely related to the merits of the applicants’ complaint under Article 13 of the Convention about the lack of effective remedies in this respect. Hence, to avoid prejudging the latter issue, both 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 (see Radoš and Others v. Croatia (dec.), no. 45435/99, 23 October 2001, unreported, Doran v. Ireland (dec.), no. 50389/99, 28 February 2002, unreported, and Kangasluoma v. Finland (dec.), no. 48339/99, 21 May 2002, unreported).

2. As to the substance of the complaint, the Government maintained that the proceedings had not exceeded a reasonable time.

While agreeing that the applicants’ tort action was not complex, the Government argued that the proceedings had been complicated by Mr V.G.’s third party-claims, which had brought to five the number of parties to the proceedings. A further complicating factor had been the numerous reorganisations which the taxi enterprise where Mr V.G. had been employed at the time of the accident had undergone. Inflation had been another such factor, given that the applicants had had to increase continuously their claim for non-pecuniary damage in order to keep the claim in line with inflation. This in turn had prompted Mr V.G. to increase his third-party claims.

As regards the conduct of the applicants, the Government submitted that the delays had been mainly due to the applicants’ inactivity and lack of diligence. After the reform of the CCP in 1997 civil proceedings were governed by the principle that the parties had responsibility for the conduct of their litigation, and the courts were under no obligation to assist them in performing their procedural actions. Moreover, the applicants had not made a civil claim against Mr V.G. in the framework of the 1988 criminal proceedings, which would in all likelihood have been dealt with expeditiously. They waited until 1991 to do so in separate proceedings. Upon the filing of their action in 1991 the applicants had failed to pay the requisite fee. They had also repeatedly failed to comply with the Sofia City Court’s instructions to provide a breakdown of their claim for pecuniary damage, which had eventually led the court to dismiss the claim. The applicants had also been responsible for the adjournment of the hearings on 7 October 1994, 17 March 1995 and 11 March 1997. Finally, the applicants had made many requests to be allowed to increase their claim for non-pecuniary damage. Copies of these requests had to be served on the parties which had not appeared at the hearings at which the requests had been made. This resulted in delays.

Concerning the conduct of the authorities, the Government were of the view that they had acted diligently at all times. The courts had held twenty-nine hearings, all scheduled at reasonable intervals. Furthermore, the courts had ruled in good time on all of the various requests filed by the parties. Any request which could have resulted in undue delay had been rejected. The proceedings before the Sofia Court of Appeals had been concluded in less than a year.

The applicants argued that their tort action was not complex, as almost all relevant facts had been established during the prior criminal proceedings against Mr V.G. Thus, the civil courts had only had to gather evidence about the nature and extent of their injuries and to assess the amount of compensation to be awarded. Admittedly, Mr V.G.’s third-party claims had introduced a degree of complexity into the proceedings in view of the need to question additional witnesses and to consider a technical expert report. However, these difficulties were no more than average. Moreover, the courts could have severed the third-party claims from the applicants’ action.

Concerning their own conduct, the applicants protested against the allegation that they had substantially contributed to the length of the proceedings. The fact that they chose to file a separate tort action instead of lodging a civil claim within the framework of the 1988 criminal proceedings had not been unreasonable. There was no indication that criminal proceedings were in principle faster than civil ones, and the civil courts were better equipped to assess their claim for damages. The applicants conceded that they had failed to pay the fee for filing their tort action in 1991 and had caused the adjournment of the hearings on 7 October 1994 and 11 March 1997. However, they argued that this had given rise to only minor delay. They maintained that they had had to increase their claim for non-pecuniary damage because of the inflation in the country (between 30% and 70% per annum during the period 1991 ‑ 96 and approximately 300% per annum in the early months of 1997). The statutory rate of default interest which the court could award on top of their original claim had always been lagging behind inflation. They had thus been forced to increase the nominal amount of their claim so as to preserve its value. The applicants also disputed the Government’s assertion that the need to serve the requests for leave to increase their claim on the absent parties had led to delays. In fact, it had been the courts’ choice to have Mr V.G.’s third-party claims examined together with their tort action, thus increasing to five the number of parties to the case. The joint examination of all claims had also resulted in delays occasioned by the third-party defendants.

As regards the conduct of the authorities, the applicants submitted that a number of hearings had been scheduled at long intervals, apparently due to the courts’ heavy workload. Moreover, substantial delays had occurred in the proceedings before the Sofia City Court on account of that court’s failure to ensure the timely preparation of the technical expert report.

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.

B. Complaint under Article 13 of the Convention about the lack of effective remedies against the allegedly unreasonable length of the proceedings

In respect of their complaint about the lack of effective remedies against the allegedly unreasonable length of the proceedings the applicants 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 maintained that since 1999 the applicants had had at their disposal an effective remedy against the alleged infringement of their right to a speedy trial. In July 1999 the CCP had been amended to provide for a “complaint against delays” whose very purpose was to protect the right of litigants to a determination of their civil disputes within a reasonable time.

The applicants disputed the Government’s assertion. They considered that during the greater part of the proceedings they had not had an effective remedy. Furthermore, there was no remedy which could offer them compensation for the excessive length of the proceedings, which, in the applicants’ view, was in itself a violation of Article 13 of the Convention.

The Court considers, in the light of the parties’ submissions, 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

Decides to join to the merits the question of the exhaustion of domestic remedies in respect of the applicants’ complaint about the allegedly unreasonable length of the proceedings;

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

Søren Nielsen Christos Rozakis              Deputy Registrar President

[1] . During the early 1990s all State enterprises were reorganised into commercial companies.