FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43232/98 by Miroslav Georgiev MARINTCHEV 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 G. Bonello , Mrs F. Tulkens , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , 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 6 May 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 13 December 2001,

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 Miroslav Georgiev Marintchev, is a Bulgarian national who was born in 1954 and lives in Plovdiv. He was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by Ms M. Dimova, co-agent, of the Ministry of Justice.

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

On 31 January 1990 the applicant’s former wife took proceedings against him in the Plovdiv Distinct Court, seeking the annulment of a donation of an amount of money made during their marriage. She claimed the return of 1,000 convertible levs („ валутни лева “), a special currency unit used in Bulgaria at the time.

The first hearing was held on 1 March 1990. The applicant disputed the claim and counter-claimed for five items of jewellery, allegedly costing 17,000 Bulgarian levs (“BGL”), which he had donated to his former wife. The court ordered an expert report on the value of the jewellery and requested from the applicant’s and his former wife’s bank all documents relating to the banking transactions effected during their marriage.

The second hearing took place on 3 April 1990. The court heard two witnesses whose testimony related to the jewellery claimed by the applicant. Noting that the banking documents requested at the previous hearing had not been produced, the court reiterated its request to the bank.

The third hearing was held on 25 April 1990. The court admitted in evidence the expert report on the value of the jewellery. It noted that the banking information had not yet been produced and adjourned the case until 5 June 1990.

On 1 June 1990 the applicant’s lawyer asked the court to reschedule the hearing listed for 5 June 1990 because he intended to be on leave between 3 and 9 June 1990. The court granted the request and listed a hearing for 13 November 1990.

At the hearing held on 13 November 1990 the applicant’s former wife increased her claim to 4,657 convertible levs and returned part of the jewellery claimed by the applicant. The court ordered an additional expert report on the value of the jewellery.

The next hearing took place on 5 December 1990. The court heard two witnesses and admitted in evidence the expert report on the value of the jewellery. The applicant’s former wife’s lawyer disputed the expert’s conclusion and the court ordered a new expert report to be drawn up by three experts.

The last hearing before the Plovdiv District Court was held on 25 March 1991. The court admitted in evidence the report of the three experts ordered at the previous hearing. The applicant’s former wife presented certain documents as evidence. The court also heard the parties’ arguments.

By judgment of 25 February 1992 the Plovdiv District Court annulled the donation made by the applicant’s former wife and ordered the applicant to pay the amount back. The court also disposed of the applicant’s counter-claim, ordering his former wife to return certain items of jewellery.

On 2 April 1992 the applicant appealed against the judgment to the Plovdiv Regional Court. Having noted that he had not paid the requisite fee for filing an appeal, on 10 April 1992 the court instructed him to rectify this omission. The applicant paid the fee and on 7 May 1992 the court listed a hearing for 30 June 1992.

The hearing before the Plovdiv Regional Court was held on 30 June 1992. The court refused the applicant’s former wife’s request to adjourn the hearing, admitted in evidence certain documents filed by the applicant and heard argument.

By judgment of 6 July 1992 the Plovdiv Regional Court partially vacated the first-instance judgment, holding that in view of the amount claimed by the applicant’s former wife (4,657 convertible levs, equal to BGL 65,896.55 at the relevant time), the district court had lacked jurisdiction over the matter, the competent court for claims above BGL 10,000 being the regional court. It upheld the judgment as regards the applicant’s counter-claim in respect of the jewellery.

The proceedings then resumed at first instance before the Plovdiv Regional Court, but only in respect of the initial claim of the applicant’s former wife.

The first hearing before the Plovdiv Regional Court was held on 20 October 1992. The applicant’s former wife was represented by a new lawyer. The court ordered an accounting expert report to be prepared on the banking transactions of the applicant and his former wife.

The second hearing took place on 3 December 1992. The court admitted in evidence the accounting expert report. Finding that the report was not complete as the bank had not allowed the expert access to all relevant documents, the court ordered the expert to supplement the conclusions and ordered the bank to allow access to all documents. The court also heard two witnesses.

The last hearing took place on 12 February 1993. The applicant’s lawyer  asked the court to adjourn the case, as the Bar Association of which he was a member had ordered a strike and he could therefore not appear before the court on that date. The court rejected the request, admitted the supplementary expert report in evidence and heard argument.

On 19 February 1993 the Plovdiv Regional Court decided in favour of the applicant’s former wife.

On 23 March 1993 the applicant appealed. Noting that the requisite court fee had not been paid, the court instructed the applicant to pay it. The applicant did so on 13 April 1993, and the case was forwarded to the Supreme Court.

A hearing due to take place before the Supreme Court on 8 December 1993 was adjourned because the summons for the applicant’s former wife had been served on her previous lawyer and not on her current lawyer.

The hearing was held on 6 April 1994. The applicant presented one document as evidence and his written observations.

By judgment of 25 April 1994 the Supreme Court quashed the Plovdiv Regional Court’s judgment and remitted the case. It held that the lower court had erred by proceeding at its last hearing in the absence of the applicant’s lawyer. It also held that the lower court’s conclusion on the origin of part of the money claimed by the applicant’s former wife had not been supported by the evidence and instructed that court to gather evidence in that respect. It also instructed the lower court to gather evidence about the applicant’s former wife’s animus donandi .

The first hearing in the proceedings on remittal before the Plovdiv Regional Court was held on 19 September 1994. On the motion of the applicant’s lawyer the court ordered an accounting expert report. It also invited the parties to present additional evidence.

The next hearing, which was due to take place on 25 October 1994, was adjourned because the expert report was not ready. Since a witness for the applicant’s former wife was going to be out of the country for more than two months, the court decided to schedule the next hearing for a date not earlier than March 1995.

The hearing listed for 6 March 1995 did not take place because the applicant’s former wife, who was out of the country at that time, had not been correctly summoned.

A hearing was held on 12 April 1995. The court admitted in evidence the expert report ordered on 19 September 1994, and heard two witnesses called by the applicant and one witness for the applicant’s former wife.

By judgment of 4 July 1995 the Plovdiv Regional Court found in favour of the applicant’s former wife. It held that the amount in issue was the personal property of the applicant’s former wife, that she had donated it to him during the marriage and that the applicant was obliged to return it.

On 29 September 1995 the applicant filed an appeal. Finding that the applicant had specified the amount in convertible levs and not in Bulgarian levs, as required under the relevant rules of civil procedure, on 4 October 1995 the court instructed him to rectify this shortcoming. The applicant did so on 3 November 1995. Based on the amount specified by the applicant, the court calculated the requisite fee for filing an appeal, and on 6 November 1995 invited the applicant to pay it. The applicant paid and on 16 January 1996 the case file was forwarded to the Supreme Court of Cassation.

The first hearing before the Supreme Court of Cassation was due to take place on 5 September 1996, but was adjourned because the applicant’s lawyer refused to accept the summons as he was no longer in contact with the applicant.

The hearing took place on 10 December 1996. The applicant was represented by a new lawyer. The court heard argument.

On 2 July 1997 the Supreme Court of Cassation, acting as a court of appeal, reversed the lower court’s judgment as regards the additional amount claimed by the applicant’s former wife and decided that her action was well-founded only in respect of the amount initially claimed.

On 1 September 1997 the applicant’s former wife’s lawyer lodged a petition for review with a five-member panel of the Supreme Court of Cassation.

At a hearing held on 11 March 1998 the court found that the petition for review, which had been lodged by a lawyer, was not accompanied by a power of attorney. It instructed the applicant’s former wife’s lawyer to rectify this omission. On 5 May 1998 the court, noting that the omission had not been rectified after notification, discontinued the proceedings. As of that date its judgment of 2 July 1997 became final.

COMPLAINT

The applicant complained under Article 6 of the Convention about the length of the civil proceedings brought against him.

THE LAW

In respect of his complaint about the 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 the case had been very complex in fact and in law. Apart from its main subject-matter there had also been the counter-claim made by the applicant which required the gathering of numerous additional pieces of evidence. The complicated relations between the parties during their marriage and the need to collect vast amounts of evidence (bank, accounting, customs and taxation documents, expert reports, witness testimony) relating to their dealings throughout an eight-year period were all factors which rendered the case complex.

The Government maintained that the conduct of the applicant had been the sole reason for the delays. He, as well as the other party to the proceedings, had produced numerous irrelevant pieces of evidence, had not formulated with sufficient precision the questions which the experts had had to elucidate, had made belated requests for the admission of new evidence and had caused various hearings to be adjourned. Finally, the applicant had invariably failed to pay on time the requisite fees for filing appeals.

As regards the conduct of the authorities, the Government argued that they had acted diligently throughout all stages of the case. They had listed hearings within short time-spans and had delivered their judgments promptly. The authorities had at all times shown due respect for the parties’ rights, allowing all of their motions and requests for evidence.

The applicant disputed the Government’s assertion that the case had been complex. On the contrary, he submitted that it only involved the questioning of two or three witnesses and the consideration of a few expert reports. The case was considerably less complex than a typical distribution-of-property litigation or certain divorce cases.

He stated that, apart from fifty-four days of delay due to his belated payment of the requisite court fees, he could not be held responsible for any other gaps in the proceedings.

As regards the conduct of the authorities, the applicant averred that the proceedings before the Plovdiv District Court had been rendered nugatory because of that court’s error as to its jurisdiction. This had necessitated the resumption of the trial ab initio before the Plovdiv Regional Court. Moreover, when the case was remitted to it the Plovdiv Regional Court failed to comply with the Supreme Court’s instructions, and this later led to its judgment being partly quashed. Finally, according to the applicant, the Government’s blanket averment that the authorities had acted diligently could not disguise the fact that the major part of the delay was due to their inactivity and poor organisation.

The Court observes that the period to be taken into consideration did not begin to run on 31 January 1990, the date on which the applicant’s former wife took proceedings against him, but on 7 September 1992, the date on which the Convention entered into force in respect of Bulgaria. However, in order to determine whether the time which elapsed following the latter date is reasonable, it is necessary to take account of the stage which the proceedings had reached at that point (see Proszak v. Poland , judgment of 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, p. 2772, § 31) .

As to the end of the period at issue, it must also be ascertained whether the relevant date was 2 July 1997, the date on which the three-member panel of the Supreme Court of Cassation gave judgment, or 5 May 1998, the date on which the five-member panel of that court discontinued the ensuing review proceedings. The Court notes that under the law then in force the review proceedings were in substance no different from cassation proceedings. The Supreme Court was entitled to quash or uphold the lower courts’ judgments, thus determining rights and obligations within the meaning of Article 6 § 1. A litigant had the right to petition directly that court for review. This exercise of this right did not depend on the discretion of a public authority. The review proceedings were not therefore extraordinary proceedings but a part of the normal three-instance proceedings (see Petrov v. Bulgaria , no. 24140/94, Commission decision of 22 February 1995, unreported). It follows that the period to be taken into consideration ended on 5 May 1998.

The Court concludes therefore that the period to be taken into consideration lasted five years, seven months and twenty-eight days for five levels of court.

In order to assess whether this length was reasonable the Court must have regard to the circumstances of the case and the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and that of the relevant authorities. Account must also be taken of the importance of what was at stake for the applicant in the litigation (see Phocas v. France , judgment of 23 April 1996, Reports 1996 ‑ II, p. 546, § 71).

The Court notes at the outset that the total length of the period under consideration – a little less than five years and eight months – does not appear excessive in itself. It is true that certain delays – most notably the period of delay which resulted from the Plovdiv District Court’s error as to its jurisdiction – had occurred prior to the date of entry into force of the Convention in respect of Bulgaria. However, these delays have only a limited significance for the Court’s appreciation.

It also notes that what was at stake for the applicant in the litigation – the annulment of a donation he had received during his marriage – cannot be considered particularly significant.

The Court considers that the case was not legally complex. However, the facts were somewhat complex, given that the courts had to gather evidence about the financial transactions of the applicant and of his former wife throughout their marriage in order to establish the amounts received by the applicant and to ascertain whether his former wife had intended to transfer some of these amounts to him by way of gift.

Concerning the conduct of the applicant, the Court notes that some minor delays, totalling approximately one month and a half, stemmed from his belated payment of court fees. Moreover, a hearing listed for 5 September 1996 had to be adjourned until 10 December 1996 because the applicant had lost contact with his previous lawyer and had not notified the court that he had engaged a new lawyer.

As to the conduct of the authorities, the Court considers that they were responsible for certain delays. In particular, almost one year elapsed between the forwarding of the applicant’s appeal to the Supreme Court on 13 April 1993 and the hearing before that court on 6 April 1994. Part of that delay was apparently due to the Supreme Court’s workload – the hearing had been initially listed for 8 December 1993. The remainder of the delay was due to the defect in the summoning of the applicant’s former wife through her former lawyer. The error in summoning was attributable to the authorities: the applicant’s former wife had changed her lawyer not later than 20 October 1992 – i.e. more than a year earlier – and her new lawyer had appeared at three hearings before the lower court. However, and given that the Supreme Court delivered judgment on 25 April 1994, the Court finds that a period of approximately one year does not appear excessive for the examination of a case by one level of court.

Similarly, although the interval between the hearings before the Plovdiv Regional Court on 19 September 1994 and 6 March 1995 is not negligible, part of this delay cannot be attributed to the authorities: the 6 March 1995 hearing could not be listed for an earlier date because a witness for the applicant’s former wife was out of the country.

The Court does not consider that the seven and a half months which elapsed between the forwarding of the applicant’s appeal to the Supreme Court on 16 January 1996 and the hearing listed before that court for 5 September 1996 were excessive. Furthermore, the period between 10 December 1996, when the Supreme Court held a hearing, and 2 July 1997, when it delivered judgment, cannot be said to have had a major impact on the overall length of the proceedings.

Finally, while the immediate identification of the lack of a power of attorney in the proceedings before the five-member panel of the Supreme Court would have been desirable, the fact that the court noted this omission only on 11 March 1998 does not reveal any serious lack of diligence on its part. Moreover, it should be noted that the proceedings before the five-member panel of the Supreme Court took less than a year, which does not appear inordinate.

To sum up, the Court considers that there were some regrettable lapses of time attributable to the authorities. However, in the light of all the circumstances, and in particular taking into account the overall length of the period to be taken into consideration, the Court considers that the “reasonable time” requirement of Article 6 § 1 was met in the present case.

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

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President