FIRST SECTION

PARTIAL 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 14 March 2002 composed of

Mr C.L. Rozakis , President ,

Mrs F. Tulkens , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , judges, and Mr E. Fribergh , 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 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, Bulgaria. He is represented before the Court by Mr Mihail Ekimdjiev, a lawyer practising in Plovdiv.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , 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 private person, I. G.

On 14 September 1992 the car was impounded by officers of the Third Regional Police Department in Plovdiv . They explained to the applicant that the car had been stolen. However, at this point no criminal investigation was pending in relation to the car, nor was there a formal order for its impounding.

On 17 September 1992 the applicant requested from the Head of the Police Department the return of his car but received no reply.

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

On 5 October, 16 November, and 25 November 1992 the applicant requested from the prosecution authorities that his car be returned but did not receive any reply.

On 30 November 1992 the car was handed over to the Plovdiv Customs Administration by order of the Plovdiv District Prosecutor. On 29 January 1993 the Head of the Plovdiv Customs Administration issued a penal order whereby he confiscated the car on grounds that it had been illegally imported in the country.

The applicant appealed against the penal order to the Plovdiv District Court. By judgment of 8 August 1993 the 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 filed an action for damages under the State Responsibility for Damage Act , naming as defendants the Plovdiv Customs Administration and the Prosecutor’s Office . He alleged that the unlawful impounding of his car and the unlawful order for its confiscation had prevented him from using it during a period of eleven months.

The first hearing before the Plovdiv District Court took place on 24 March 1994. A prosecutor participated in the proceedings, not as representative of the defendant but as a “special party” to the proceedings (see Relevant domestic law and practice below). The court noted the absence of a representative of the defendant (the Prosecutor’s Office) and ordered that it be summoned for the next hearing.

Counsel for the applicant moved the court to subpoena as witness the District Prosecutor who had ordered the handing of the car over to the Customs Administration . The District Court denied the motion by order made in chambers on 28 March 1994. The court held that the prosecutor’s actions could be proved through the official documents he had issued and that in consequence his testimony would be superfluous.

The second hearing was listed for 13 June 1994. No representative of the Prosecutor’s Office appeared for the hearing 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 N. P., as it related to the same car. In particular, there was information available that the number-plates on the engine and on the chassis of the car had been forged and that it had been illegally imported. Counsel for the applicant agreed and requested that the actions against the Prosecutor’s Office and against the Customs Administration be severed. The court refused to sever the proceedings and granted the request for staying the proceedings.

The applicant filed with the Plovdiv Regional Court an interlocutory appeal against the order staying the proceedings. On 26 September 1994 the court, sitting in chambers, issued a final order dismissing the appeal.

On an unspecified date in 1995 counsel for the applicant moved the Plovdiv District Court to resume the proceedings. In view of the motion the court sent letters to the Plovdiv Regional Investigation Service, asking whether the criminal investigation against N. P. had been finished. On 22 September 1997 the Investigation Service informed the court that the criminal case was still pending.

By letter of 13 August 2001 the Investigation Service notified the court that the case file had been sent to the Plovdiv District Prosecutor’s Office on 6 July 2001. Taking into consideration that the criminal investigation was still pending, by order of 20 August 2001 the District Court refused to resume the proceedings. The applicant submits that no investigative steps whatsoever were undertaken during the period 1995-2001 in the criminal investigation against N. P.

B. Relevant domestic law and practice

1. Staying of civil proceedings in view of concurrent criminal proceedings

The Code of Civil Procedure provides, in Article 182(d), that a court examining a civil action “shall suspend the proceedings ... 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”. It further provides, in Article 183, that “[p] roceedings which have been suspended shall be resumed ex officio or upon a party’s motion after the respective obstacles have been removed”.

2. Participation of the prosecutor in certain types of civil proceedings

Article 27 of the Code of Civil Procedure provides that the prosecutor may join civil proceedings whenever this is expressly provided for in the law. Section 10 of the State Responsibility for Damage Act of 1988 ( Закон за отговорността на държавата за вреди, причинени на граждани ) provides expressly for the prosecutor’s participation in proceedings commenced under the Act.

According to the doctrine and the practice of the courts, under Article 27 the prosecutor acts as a State authority in defence of the rule of law but assumes the role of a party to civil proceedings. Thus, the prosecutor has the same rights (and, in some cases not relevant here, less rights) and has to abide by the same procedural rules as a party to the case. In particular, he or she may adduce evidence, participate in oral argument, file appeals, etc.

COMPLAINTS

The applicant complains under Article 6 of the Convention about the excessive length of the proceedings against the Prosecutor’s Office and the Customs Administration. In particular, his civil case was stayed on 13 June 1994 to take into account the outcome of the criminal proceedings against N. P. and since that time the prosecuting authorities have not carried out any procedural steps whatsoever to bring these proceedings to completion. The applicant argues that he was thus de facto denied access to a court.

The applicant complains under Article 6 of the Convention about the participation of a prosecutor in the proceedings as a “special party”. He submits that this, coupled with the fact that the Prosecutor’s Office is a defendant in those same proceedings, falls foul of the “equality of arms” requirement of Article 6. The applicant further argues that the participation of the “special party” prosecutor casts doubt on the impartiality and independence of the court. In particular, he asserts that the refusal of the court to summon a prosecutor as a witness and the staying of the proceedings indicate its bias in favour of the Prosecutor’s Office.

The applicant complains under Article 6 of the Convention that his appeal against the staying of the proceedings was dismissed by the Plovdiv Regional Court in chambers and that the 26 September 1994 order of that court was not pronounced publicly.

The applicant also complains under Article 1 of Protocol No. 1 to the Convention that his car was illegally impounded and confiscated and that he cannot obtain reparation of the damages he suffered because of that.

In addition, the applicant invokes Article 13 of the Convention in respect of the alleged violations of the substantive guarantees of Article 6 of the Convention and of Article 1 of Protocol No. 1.

THE LAW

1. The applicant complains under Articles 6 and 13 of the Convention about the excessive length of the proceedings and about the alleged lack of effective remedies in that regard. He considers that this amounts to a de facto denial of access to a court.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains under Article 6 of the Convention about the participation of the prosecutor as a “special party” in the proceedings against the Prosecutor’s Office. His complaint has two limbs: firstly, that the participation of the prosecutor infringes the “equality of arms” principle, and, secondly, that it infringes the independence and impartiality of the court.

Article 6 of the Convention, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ... .”

As regards the first limb of the complaint, the Court recalls that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present its case under conditions that do not place it at a disadvantage vis-à-vis its opponent (see the Dombo Beheer B.V. v. the Netherlands judgment of 27 October 1993, Series A no. 274, p. 19, § 33).

In this connection, the Court considers that the mere fact that the “special party” prosecutor was a representative of the prosecuting authorities, which were also one of the defendants, cannot as such give rise to an issue under Article 6.

The Court must analyse the role actually played in the proceedings by the “special party” prosecutor (see Kress v. France [GC], no. 39594/98, § 71 in fine , ECHR 2001-VI).

The Court recalls that in a number of cases concerning the role of “special” participants in proceedings, such as Advocate-General, Government Commissioner or similar officers, it held that there had been a violation of Article 6 § 1 of the Convention on account of the failure to disclose in advance the submissions of the officer concerned and the impossibility of replying to them, and on account of the participation of such officers in the deliberations of the courts, which had infringed the principle of equality of arms (see the Kress judgment cited above, §§ 64-65 and 87, and the judgments referred to there).

The Court notes that in the present case the prosecutor participating in civil proceedings as a “special party” does not have any rights not afforded to the other parties. In particular, he or she does not have the right to attend the deliberations of the court, give legally binding opinions, or present his or her point of view after the other parties, in writing or orally (see Relevant domestic law and practice above). The Court does not find, therefore, any indication that there has been a violation of the principle of equality of arms as a result of the prosecutor’s participation.

As regards the alleged partiality of the Plovdiv District Court, the Court observes that there are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first (subjective) consists in seeking to determine the personal conviction of a particular judge in a given case and the second (objective) in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, among other authorities, Morel v. France , no. 34130/96, § 40, ECHR 2000 ‑ VI).

As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary.

As to the objective test, it means determining whether there are ascertainable facts which may raise doubts as to the court’s impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a court lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see, mutatis mutandis , the Morel judgment cited above, § 42).

Insofar as the applicant contends that the refusal to summon a prosecutor as witness showed bias in favour of the Prosecutor’s Office, the Court notes that the District Court found that the testimony of the prosecutor would be superfluous as the same facts could be proved through other available evidence.

As regards the staying of the proceedings, there is no indication that the order of the District Court was influenced by improper motives; it was based on existing procedural rules and duly reasoned. It is not for the Court to examine whether the domestic court made an error of law or fact in issuing it.

Having examined the facts of the case, the Court finds nothing that could cast doubt on the impartiality and independence of the domestic court.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant further complains under Article 6 of the Convention that the order of the Plovdiv Regional Court of 26 September 1994 was issued in chambers and was not pronounced publicly.

Article 6 provides in its pertinent part:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a ... public hearing... Judgment shall be pronounced publicly... ”

However, as regards the proceedings before the Plovdiv Regional Court, the Court notes that that court merely ruled on an interlocutory appeal of the applicant concerning the staying of his action. It did not make any decision as to the merits of the applicant’s case and its order was not decisive for his civil right to damages. Thus, Article 6 § 1 did not apply to that decision (see, mutatis mutandis , Petersen v. Germany (dec.), no. 31178/96, to be published in the Court’s official reports).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

4. The applicant complains under Article 1 of Protocol No. 1 to the Convention that his car was illegally impounded and confiscated and that he cannot obtain reparation of the damages he suffered because of that. In addition, he invokes Article 13.

The Court observes that the applicant obtained a decision declaring the confiscation unlawful, that the car was returned, and that he instituted proceedings against the Prosecutor’s Office and the Customs Administration seeking damages for the unlawful deprivation of the use of his car. These proceedings are, in principle, capable of providing redress against the alleged violation of Article 1 of Protocol No. 1. Notwithstanding the fact that they were protracted over an extended period of time, they are still pending before the trial court.

This part of the application is therefore premature and must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the proceedings against the Prosecutor’s Office and the Customs Administration and the alleged lack of an effective remedy in this regard;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President