George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant in the first application (no. 6194/11), Ms Polyana Ivanova Valcheva, is a Bulgarian national who was born in 1945 and lives in Lovech. She is not legally represented.

The applicant in the second application (no. 34887/11), Mr Enyo Nikolov Abrashev, is a Bulgarian national who was born in 1957 and lives in Stara Zagora. He is represented before the Court by Mr M. Ekimdzhiev and Ms S. Stefanova, lawyers practising in Plovdiv.

The respondent Government (“the Government”) were represented by their Agent, Ms I. StanchevaChinova, of the Ministry of Justice.

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

On 11 February 2004 the Lovech District Prosecutor’s Office, having been tipped off by Ms Valcheva, a member of the Lovech Bar, that her former de facto spouse had committed documentary fraud, asked the Lovech police to inquire into the matter. On 1 March 2004 the police proposed that criminal proceedings be brought against Ms Valcheva’s de facto spouse.

On 30 March 2004 the Lovech District Prosecutor’s Office opened criminal proceedings against him. In the following days it gathered evidence, heard eleven witnesses, including Ms Valcheva, and obtained a graphological expert report.

As the evidence led the investigator in charge of the case to believe that Ms Valcheva had forged an employment certificate to enable her de facto spouse to obtain a retirement pension, on 30 June 2004 he brought charges of documentary fraud against her.

On 7 July 2004 Ms Valcheva was allowed to inspect the case file, and on 15 July 2004 the investigator proposed that she be brought to trial.

On 22 July 2004 the Lovech District Prosecutor’s Office indicted Ms Valcheva and her de facto spouse, alleging that he had committed documentary fraud by using the employment certificate to obtain a retirement pension, and that she had consciously enabled him to commit that fraud by forging that certificate.

The Lovech District Court held a hearing on 20 October 2004. Noting that the alleged victim of the offence – the social security authorities – had not appeared, it decided to adjourn the case.

The next hearing took place on 15 December 2004. The social security authorities brought a civil claim against Ms Valcheva and her de facto spouse, seeking repayment, plus interest, of the amounts that the latter had obtained by way of a retirement pension. The president of the panel hearing the case recused himself, citing the fact that Ms Valcheva was a member of the Lovech Bar. On 21, 27, 29 and 30 December 2004 all other judges of the Lovech District Court also declined to sit in the case, citing the same reason. Accordingly, on 4 January 2005 the court’s president sent the case to the Supreme Court of Cassation for a decision to which other district court the case was to be transferred, and on 2 February 2005 the Supreme Court of Cassation chose the Pleven District Court.

The trial before the Pleven District Court was due to start on 14 June 2005. However, on that date the court found that it could not proceed with the case because the prosecution had not appeared, and decided to adjourn it. On 28 November 2005 the case was again adjourned because Ms Valcheva’s de facto spouse was ill and could not attend.

The trial started on 3 April 2006. The Pleven District Court heard eight witnesses and an expert and admitted an expert report.

On an unspecified date in 2006 the social security authorities withdrew their civil claim against Ms Valcheva’s de facto spouse because he had repaid the amounts that he had obtained by way of a retirement pension. At the next hearing, held on 26 September 2005, he entered into a plea agreement with the prosecution. After approving the agreement, the panel hearing the case recused themselves by reference to a rule of criminal procedure barring judges and lay judges from sitting in a case in which they had approved a plea agreement.

The case was then assigned to another panel, which held hearings on 12 January, 26 March, 16 May, 21 September and 5 December 2007.

A hearing listed for 29 February 2008 had to be postponed because it coincided with the annual plenary meeting of the Pleven District Court, and took place on 31 March 2008. The Pleven District Prosecutor’s Office asked the court to discontinue the trial and refer the case back to the Lovech District Prosecutor’s Office with a view to clarifying the charges against Ms Valcheva. The court, observing that the indictment did not clearly spell out the time, the place or the manner of commission of the offence alleged against her, acceded to the request.

On 7 May 2008 the Lovech District Prosecutor’s Office lodged an amended indictment against Ms Valcheva with the Lovech District Court. On 21 May 2008 the judge to whom the case had been assigned again withdrew, citing his earlier decision to withdraw from the case in 2005. Noting that the Supreme Court of Cassation had already determined which court should deal with the case, on 17 November 2008 the president of the Lovech District Court sent it to the Pleven District Court.

On 12 January 2009 the Pleven District Court set the case down for trial. It was due to take place on 23 April 2009 but was adjourned due to Ms Valcheva’s failure to appear without showing cause. The court fined her for that failure. She appealed the fine.

The trial was held on 30 November 2009 and 12 February 2010. On the lastmentioned date the Pleven District Court acquitted Ms Valcheva, finding that the charges against her had not been made out to the required criminal standard of proof.

The prosecution appealed. The Pleven Regional Court heard the appeal on 1 and 29 June 2010. In a final judgment of 7 July 2010, it fully upheld Ms Valcheva’s acquittal.

On 6 March 2002 the Stara Zagora Regional Prosecutor’s Office opened criminal proceedings against Mr Abrashev on suspicion that he had committed aggravated documentary fraud.

On 10 May 2002 Mr Abrashev was charged with attempting, with the help of an accomplice, to obtain a large sum of money by using a false promissory note. Mr Abrashev’s alleged accomplice was likewise charged the same day.

Having interviewed the two accused and a number of witnesses, and having obtained other evidence, including a graphological expert report, on 15 October 2002 the investigator in charge of the case proposed that Mr Abrashev and his alleged accomplice be brought to trial.

On 29 October 2002 the Stara Zagora Regional Prosecutor’s Office referred the case back to the investigator, citing a number of omissions in the investigation. The investigator objected to the referral, but on 21 November 2002 the Stara Zagora Regional Prosecutor’s Office dismissed his objections.

On 27 January 2003 the investigator ordered a financial expert report. The report was ready on 6 February 2003. On 24 March 2003 the investigator again proposed that Mr Abrashev be brought to trial. By contrast, this time he proposed that the charges against Mr Abrashev’s alleged accomplice be dropped for lack of sufficient evidence.

On 18 April 2003 the Stara Zagora Regional Prosecutor’s Office decided that the charges against Mr Abrashev’s alleged accomplice should be dropped and that Mr Abrashev should not be prosecuted for documentary fraud but simple fraud. It went on to note that the prosecution of simple frauds fell within the competence of the Stara Zagora District Prosecutor’s Office, and referred the case to that office.

On 13 May 2003 the investigator laid the amended charges against Mr Abrashev, accusing him of aggravated simple fraud, and on 4 June 2003 proposed that he be brought to trial.

On 13 June 2003 the Stara Zagora District Prosecutor’s Office decided to discontinue the proceedings, considering that the charges against Mr Abrashev had not been made out and that the facts alleged against him did not constitute an offence. On an application by the victim of the alleged offence, on 11 July 2003 the Stara Zagora District Court set the discontinuance aside.

On 6 August 2003 the Stara Zagora District Prosecutor’s Office again discontinued the proceedings. The victim of the alleged offence again sought judicial review. On 24 October 2003 the Stara Zagora District Court found that it could not examine the application, because the lawyer who had lodged it had not enclosed with it a power of attorney. The victim then asked the Stara Zagora District Prosecutor’s Office to vary its decision to discontinue the proceedings – as possible when it had not been reviewed by a court on the merits –, and on 18 November 2003 that office acceded to her request. Mr Abrashev appealed to the Stara Zagora Regional Prosecutor’s Office, but on 23 January 2004 that office upheld the lower office’s decision. Mr Abrashev appealed further, but on 17 February 2004 the Plovdiv Appellate Prosecutor’s Office also upheld the lower offices’ decisions.

On 15 June 2004 the Stara Zagora District Prosecutor’s Office indicted Mr Abrashev, but on 9 November 2004 the Stara Zagora District Court referred the case back to it, citing defects in the indictment.

On 13 December 2004 the Stara Zagora District Prosecutor’s Office again indicted Mr Abrashev.

This time the case proceeded to trial, which took place on 7 June, 6 July and 8 November 2005, and on 20 February, 13 April and 25 May 2006. The Stara Zagora District Court heard a number of witnesses and obtained an expert report. One trial sitting was adjourned because Mr Abrashev was ill and could not attend, and another was adjourned due to the absence of witnesses. On 25 May 2006 the Stara Zagora District Court acquitted Mr Abrashev.

On 31 May 2006 the victim of the alleged offence, who had taken part in the trial as a private prosecutor, appealed. The public prosecutor likewise appealed on 9 June 2006. Having heard the appeals on 8 November 2006, on 8 December 2006 the Stara Zagora Regional Court decided to quash the lower court’s judgment and to remit the case.

On 17 January 2007 the Stara Zagora District Court in turn decided to refer the case back to the prosecuting authorities, citing, inter alia, defects in the indictment.

On 26 March 2007 the Stara Zagora District Prosecutor’s Office presented the amended charges to Mr Abrashev. On 30 May 2007 it indicted him.

On 31 July 2007 the Stara Zagora District Court, considering that the facts of which Mr Abrashev stood accused did not constitute an offence, decided to discontinue the proceedings against him. The public prosecutor and the private prosecutor both appealed. On 12 December 2007 the Stara Zagora Regional Court quashed the discontinuance, holding that it had been improper for the lower court to proceed in that manner, and remitted the case to a different formation.

On 4 March 2008 the Stara Zagora District Court once more referred the case back to the prosecution, citing defects in the indictment.

On 29 April 2008 the Stara Zagora District Prosecutor’s Office again indicted Mr Abrashev.

The case proceeded to trial, which took place on 26 September, 12 November and 11 December 2008, and on 18 February, 19 March and 23 April 2009. One trial sitting was adjourned because Mr Abrashev’s counsel was busy elsewhere and could not attend. On 23 April 2009 the Stara Zagora District Court acquitted Mr Abrashev.

The public prosecutor and the private prosecutor both appealed. The first hearing before the Stara Zagora Regional Court, initially fixed for 14 October 2009, had to be postponed because counsel for Mr Abrashev was busy elsewhere. It took place on 28 October 2009. The second hearing was held on 2 December 2009. On 7 January 2010 the Stara Zagora Regional Court quashed the lower court’s judgment and referred the case back to the prosecuting authorities, citing their failure to specify the charges against Mr Abrashev.

In February 2010 the Stara Zagora District Prosecutor’s Office again indicted Mr Abrashev.

On 11 August 2010 the Stara Zagora District Court, considering that the facts of which Mr Abrashev stood accused did not constitute an offence, decided to discontinue the proceedings against him. The public prosecutor and the private prosecutor both appealed. Having heard the appeals on 20 October 2010, in a final decision of 6 January 2011 the Stara Zagora Regional Court upheld the lower court’s decision.

On 16 February 2011 the victim of the alleged offence asked the Chief Prosecutor to seek reopening of the proceedings. On 18 April 2011 the Chief Prosecutor requested the Supreme Court of Cassation to reopen the proceedings, citing flagrant breaches of the rules of procedure and the substantive law in the making of the Stara Zagora District Court’s ruling of 11 August 2010 and the Stara Zagora Regional Court’s ruling of 6 January 2011. The Supreme Court of Cassation heard the request on 18 May 2011. On 28 June 2011 it decided to reopen the case and refer it back to the Stara Zagora District Court for trial.

The Stara Zagora District Court held five hearings: on 17 October and 15 December 2011, and on 13 February, 2 April and 21 May 2012. At the last of those hearings it found Mr Abrashev not guilty.

The public prosecutor and the private prosecutor both appealed. A number of judges at the Stara Zagora Regional Court withdrew from sitting in the case because they had previously sat in it. The court heard the appeal on 14 November 2012 and, in a judgment of the same date, quashed Mr Abrashev’s acquittal, convicted him and sentenced him to nine months’ imprisonment, suspended.

Both Mr Abrashev and the private prosecutor appealed on points of law. The hearing before the Supreme Court of Cassation was initially listed for 28 January 2013, but was adjourned at the request of counsel for Mr Abrashev, and took place on 22 February 2013. In a final judgment of 4 March 2013, the Supreme Court of Cassation quashed the lower court’s judgment and acquitted Mr Abrashev.

A 2007 amendment to the 1991 Constitution added a new Article 132a, which envisaged the creation of an Inspectorate attached to the Supreme Judicial Council. The Inspectorate, which consists of a Chief Inspector and ten inspectors, is tasked with checking the work of the judiciary without infringing the independence of judges, prosecutors or investigators (Article 132a § 6). It can act either of its own motion or pursuant to reports by private individuals, legal persons or State authorities (Article 132a § 7). It has the power to refer matters to the appropriate authorities, or make suggestions or reports to them (Article 132a § 9). Both the Chief Inspector and the inspectors are elected by Parliament by a majority of two thirds; the term of office of the Chief Inspector is five years and that of the inspectors is four years (Article 132a §§ 2 and 3).

The manner of election and dismissal of the inspectors is laid down in sections 4253 of the Judiciary Act 2007 (“the 2007 Act”). They must be lawyers having high professional and moral qualities (section 42(1)). The Chief Inspector must have at least fifteen years of professional experience, and the inspectors at least twelve years of professional experience (section 42(2) and (3)). They cannot engage in a number of activities – such as business or being member of a political party – that might prejudice their independence (section 43 read in conjunction with section 18(1)). They may be dismissed before the expiry of their term of office only if they resign, are finally convicted of a criminal offence, are unable to carry out their duties for more than one year, are deprived of the right to exercise as a lawyer, heavily or systematically breach their duties or commit acts which tarnish the prestige of the judiciary, or do not cease activities that they are prohibited from pursuing while in office (section 48(1)). The proposal for dismissal must be made by at least onefifth of the members of Parliament (section 48(2)). The remuneration of the Chief Inspector is equal to that of a section president of the Supreme Court of Cassation, and the remuneration of the inspectors is equal to that of a judge of that court (section 51).

On 6 April 2012 the Government laid before Parliament a bill for the amendment of the 2007 Act. The explanatory notes to the bill said the following:

“Slow judicial proceedings lead to an enormous amount of judgments of the European Court of Human Rights against Bulgaria. In its judgments concerning the right to a fair trial within a reasonable time the European Court of Human Rights (‘the ECtHR’) emphasises the need for the introduction of an effective domestic remedy in respect of such breaches. With a view to securing the effective exercise of the right to a fair trial within a reasonable time, in its case-law the ECtHR points to the need to introduce a remedy capable of providing compensation for damage resulting from delays in proceedings (compensatory remedy).

The systemic problem found by the ECtHR in relation to the excessive duration of criminal and civil cases in the Republic of Bulgaria calls for urgent legislative measures to introduce the remedies suggested by the European Court.

With a view to the effective use of the available resources, it is expedient to give the power to find a breach and set compensation to an existing authority with similar competences. In view of the constitutional function of the Inspectorate attached to the Supreme Judicial Council to check the work of the judiciary (Article 132a § 6 of the Constitution) and more specifically its power under section 54(1)(2) of the Judiciary Act [2007] to check the processing of court, prosecutors’ and investigation cases and their completion within the prescribed time-limits, the bill envisages the creation of a special unit attached to the Inspectorate. That special unit will examine and decide complaints relating to breaches concerning the unreasonable length of completed civil, administrative and criminal cases, as well as discontinued pre-trial proceedings. An important premise for laying down the procedure in such a way is the Inspectorate’s constitutional obligation to carry out checks pursuant to reports by private individuals and legal persons (Article 132a § 7 of the Constitution).

The right to complain is open to all persons who may suffer damage as a result of delays in proceedings: parties to judicial proceedings (civil, administrative and criminal) or persons subjected to the pre-trial phase of criminal proceedings (accused, victims and wronged legal persons).

The envisaged procedure will be a light (simple) way of obtaining redress. The complainant will not have to produce evidence – it will be gathered by the checking panel of their own motion; no fees will be due; the proceedings will finish in six months with a settlement, which will ensure fast payment of the compensation.

Since the proposed procedure envisages a light and fast mode of redress, there is a cap on the maximum amount of compensation. This cap conforms with the ECtHR’s case-law on the amount of compensation awarded in past cases.

The transitional and concluding provisions allow the procedure to be applied in respect of complaints already lodged through the ECtHR.

The compensatory remedy has to have retrospective effect, so as to be available to persons who have become victim of excessive length of proceedings even before the coming of the Act into force, including those who have lodged applications with the ECtHR, if that court has not yet ruled on the admissibility of those applications.

The creation of an effective domestic remedy will ensure a drastic reduction of the number of applications to the ECtHR and will thus lead to less judgments finding a breach of Article 6 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.”

The bill underwent its first reading on 10 May 2012, and its second reading on 7 June 2012, when it was adopted. The Act was published in the State Gazette on 3 July 2012. It inserted a new Chapter 3a in the 2007 Act. The Chapter is entitled “Examination of applications against breaches of the right to examination and determination of the case within a reasonable time” and consists of twelve sections. The newly introduced provisions, the bulk of which came into force on 1 October 2012, read as follows:

60a. (1) This chapter applies to applications by individuals and legal persons against decisions, actions or omissions of judicial authorities which infringe their right to have their cases examined and decided within a reasonable time.

(2) Applications under subsection 1 shall be lodged by individuals and legal persons who are:

parties to finished civil, administrative or criminal proceedings;

accused, victims or wronged legal persons in discontinued pretrial proceedings;

(3) This chapter set out the manner of determining and paying compensation in line with the case-law of the European Court of Human Rights not amounting to more than 10,000 levs.

(4) Applications under subsection 1 shall be lodged within six months after the conclusion of the proceedings at issue with a final decision, though the Inspectorate attached to the Supreme Judicial Council to the Minister of Justice.

(5) A special register shall be created for the applications, and it shall be published on the internet site of the Inspectorate attached to the Supreme Judicial Council.

(6) No fees shall be due for the examination of applications under this chapter.

60b. (1) The application must be written in Bulgarian and set out:

for Bulgarian nationals – their names as featuring in the identification documents; uniform citizen number and address; telephone, fax and electronic address, if any;

for foreigners – their names as featuring in the identification documents; uniform foreigner number and address; telephone, fax and electronic address, if any;

the commercial firm of the trader or the name of the legal person, written in Bulgarian; the seat and the latest registered address and electronic address;

the decision, action or omission alleged to amount to a breach by the respective authority;

the authority to which the application is addressed;

the request for relief;

the applicant’s signature.

(2) Applicants shall submit a declaration that they have not sought or obtained compensation in respect of the same breach in other proceedings.

60c. (1) Applications under section 60a(1) shall be examined by the Inspectorate attached to the Supreme Judicial Council, which shall set up a special unit for this purpose.

(2) The experts staffing the unit shall be lawyers who have at least five years of professional experience. Their remuneration shall be equal to that of a district court judge.

(3) The chief inspector shall allocate incoming applications to panels consisting of one inspector and two experts, randomly selected, and one of the experts shall be appointed as rapporteur.

(4) If the application does not meet the requirements of section 60b(1) or (2), the applicant shall be given notice to rectify the deficiencies within seven days of receiving the notice.

(5) If the applicant does not rectify the deficiencies, the application and the supporting documents shall be returned.

60d. (1) The results of the examination shall be noted down in a record of findings.

(2) That record shall be signed by the members of the panel and shall contain information about:

the time and place where and when it has been drawn up;

the applicant;

the panel which has examined the application;

the case in respect of which it is being drawn up;

the overall duration of the proceedings; the period of delay attributable to the competent authority; the period of delay attributable to actions or omissions of the complainant or his legal or procedural representative;

(3) The record of findings shall also set out the view of the panel as to whether the time-limit under section 60a(4) has been met.

60e. The record of findings under section 60d shall be drawn up within four months of receipt of the application or the rectification of its deficiencies, as the case may be. The record, along with the application and all supporting documents, shall be sent immediately to the Minister of Justice.

60f. (1) Based on the findings of the panel, the Minister of Justice or a person authorised by him or her shall reject the application as unfounded if

the length of the proceedings has not exceeded a reasonable time;

the delay is due to actions or omissions of the applicant or his legal or procedural representative.

(2) If the right of the applicant to have his or her case examined and decided within a reasonable time has been breached, the Minister of Justice or a person authorised by him or her shall fix the amount of compensation in line with the caselaw of the European Court of Human Rights and shall propose the conclusion of a settlement with the applicant.

60g. The underlying circumstances shall be examined and the application shall be determined within six months of the application’s receipt.

60h. Compensation shall be paid on the basis of the concluded settlement.

60i. The funds required for the payment of sums under concluded settlements shall be covered by the republican budget.

60j. (1) Compensation due under this chapter shall be paid out of the budget of the Ministry of Justice.

(2) Each quarter the Minister of Finance shall make available to the budget of the Ministry of Justice funds matching the compensations actually paid under subsection 1 during that quarter through a modification of the budgetary arrangements with the central State budget.

60k. Persons who have received compensation under this chapter may not seek compensation in respect of the same matter by way of civil proceedings.

60l. (1) Every quarter the chief inspector shall send to the Supreme Judicial Council information about breaches found, and Minister of Justice – about compensations paid out.

(2) Every six months the Supreme Judicial Council shall analyse the reasons for the breaches and shall take measures to eliminate them.

(3) The Supreme Judicial Council shall publish on its internet site the information under subsections 1 and 2.

Paragraphs 34 and 35 of the transitional and concluding provisions of the amending Act provide as follows:

(1) Within six months of the entry into force of Chapter 3a or of notification by the Registry of the European Court of Human Rights, persons who have lodged with the European Court of Human Rights applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under Chapter 3a, except in cases where the Court has already given judgment on the merits of the application or has rejected the application as inadmissible.

(2) Applications under subparagraph 1 shall be examined within eighteen months of their receipt.

To ensure the application of Chapter 3a in 2012 the Council of Ministers shall make available additional funds in the budgets of the Judiciary and the Ministry of Justice.

In a decision of 11 September 2012 that came into effect on 18 September 2012 (Постановление № 209 от 11 септември 2012 г. за одобряване на допълнителни бюджетни кредити по бюджета на съдебната власт и по бюджета на Министерството на правосъдието за 2012 г.), the Council of Ministers increased the budget of the judiciary with 300,000 Bulgarian levs earmarked for the creation, in the Inspectorate attached to the Supreme Judicial Council, of the special unit dealing with applications under Chapter 3a of the 2007 Act (point 1(1) of the decision).

In September 2012 the Inspectorate appointed a number of officials and assigned them to the special unit dealing with applications under Chapter 3a of the 2007 Act. On 1 October 2012 the Inspectorate published on its website an application form and a sample declaration under section 60b(2) of the 2007 Act (see paragraph 50 above). It later put on its website software allowing applicants to lodge applications electronically and track their progress online.

On 23 July 2012 the Government laid before Parliament a bill for the amendment of the State and Municipalities Liability for Damage Act 1988 (“the 1988 Act”). The explanatory notes to the bill said the following:

“An analysis of the judgments in which the European Court of Human Rights has found violations in respect of Bulgaria shows that there are repetitive violations due to the lack of an effective domestic remedy allowing those concerned to obtain redress. More specifically, there is a need to create a domestic remedy allowing those concerned to obtain compensation for damage resulting from a breach of the [Convention] made by the State or its authorities or officials. The Court’s finding that the law of the Republic of Bulgaria does not make provision for such a remedy calls for its creation through an expansion of the ambit of the State and Municipalities Responsibility for Damage Act [1988]. This will overcome the prior approach – to provide for liability only in specific circumstances – which has led to many violation judgments of [the Court] against Bulgaria.

For that purpose, it is proposed to make the following amendments and additions to the Act:

The proposal to insert a new section 2b seeks to broaden the ambit of the Act, so that it embrace also cases of ‘delayed justice’. Under the pilot judgments of the European Court of Human Rights in the case of Finger [cited above] (which concerns civil cases) and the joined cases of Dimitrov and Hamanov [cited above] (which concern criminal cases), which find breaches of Article 6 § 1 of the Convention, the Bulgarian authorities must, within twelve months (until 10 August 2012) put in place a mechanism to resolve the systemic problem concerning the ‘reasonable time’ of proceedings. The envisaged amendments create a mechanism for the compensation of damage.

Individuals and legal persons whose right to have their cases examined and decided within a reasonable time been breached may bring claims under section 2b only if they have exhausted the administrative procedure for obtaining compensation under Chapter 3a of the Judiciary Act [2007] but have not reached a settlement.

At the same time, in cases of separate breaches occurring in one and the same proceedings, the fact that a person has brought a claim in respect of one breach does not prevent him or her from seeking compensation in respect of a breach of the right to a trial within a reasonable time in cases where the overall length of the proceedings has been excessive.

... As regards claims for compensation in respect of breaches of the right to have one’s case examined and decided within a reasonable time, [the amendments] envisage that such claims, in view of their character and subject matter, shall be examined by the court having local jurisdiction in the place where the aggrieved person has his or her current address or its seat.

It is proposed to insert transitional provisions under which, within six months of the entry into force of the Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to [that Court] have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings are still pending before the national courts, may also bring claims for compensation under section 2b.

In respect of proceedings which have already ended at the national level, within six months of the entry into force of the Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to [that Court] have been rejected due to failure to exhaust the newly created domestic remedies may lodge applications for compensation under Chapter 3a of the Judiciary Act [2007].

Persons whose national pretrial or judicial proceedings have ended at the time when the Act comes into force, and less than six months have elapsed since the final decision, shall also have the right to lodge applications for compensation under Chapter 3a of the Judiciary Act [2007] within six months of the Act’s entry into force.

The bill reflects the proposals of nongovernmental organisations, the European Court of Human Rights’ caselaw, and the recommendations of the Council of Europe’s Committee of Ministers, and with it the Republic of Bulgaria shall fulfil its duties of State Party to the [Convention].”

The bill underwent its first reading on 26 September 2012 and its second reading on 28 November 2012, when it was adopted. The amending Act was published in the State Gazette on 11 December 2012 and came into force on 15 December 2012. It amended a number of provisions of the 1988 Act. In particular, it inserted a new section 2b, which is entitled “Liability of the judicial authorities for breaches of the right to have one’s case examined and decided within a reasonable time” and reads as follows:

“1. The State shall be liable for damage caused to individuals or legal persons by breaches of the right to have one’s case examined and decided within a reasonable time, in accordance with Article 6 § 1 of the Convention.

Claims under subsection 1 shall be examined in the manner provided by the Code of Civil Procedure [2007], and the court shall take into account the overall duration and the subject matter of the proceedings, their factual and legal complexity, the conduct of the parties and their procedural or legal representatives, the conduct of the other participants in the proceedings and of the competent authorities, as well as other facts which have a bearing on the proper determination of the dispute.

The bringing of a claim for damages in respect of pending proceedings shall not preclude the bringing of a fresh claim after the proceedings have come to end.”

A new section 7(2) provides that claims for compensation under section 2b are to be brought in the court in whose region the aggrieved person has his or her current address or seat.

A new section 8(2) provides that individuals or legal persons may bring claims under section 2b(1) in respect of proceedings which have ended only if they have already exhausted the administrative procedure under Chapter 3a of the 2007 Act (see paragraph 50 above) but that procedure has not resulted in a settlement.

Paragraphs 8 and 9 of the transitional and concluding provisions of the amending Act provide as follows:

“8. (1) Within six months of the entry into force of this Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to the European Court of Human Rights have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings are still pending before the national courts, may also bring claims for compensation under section 2b.

(2) Within six months of the entry into force of this Act or of notification by the Registry of the European Court of Human Rights, persons whose applications to the European Court of Human Rights have been rejected due to failure to exhaust the newly created domestic remedies, and whose proceedings at national level have already ended, may lodge applications for compensation under Chapter 3a of the [2007 Act].

Persons whose national pretrial or judicial proceedings have ended at the time when this Act comes into force, and less than six months have elapsed since the final decision, shall also have the right to lodge applications for compensation under Chapter 3a of the [2007 Act] within six months of this Act’s entry into force.”

Section 4 of the 1988 Act provides that the State is liable for all pecuniary and nonpecuniary damage which is a direct and proximate result of the impugned act, action or omission. However, the Supreme Court of Cassation and the Supreme Administrative Court have held that legal persons, such as commercial companies, cannot suffer nonpecuniary damage and are not entitled to compensation for such damage (see опр. № 271 от 19 март 2010 г. по гр. д. № 8/2010 г., ВКС, III г. о., and реш. № 7861 от 6 юни 2011 г. по адм. д. № 3689/2011 г., ВАС, III о.).

Section 9a(1) of the Act, which was inserted in April 2008 and came into force in May 2008, provides that the fee due in respect of cases under the Act is flat and is to be fixed in a tariff adopted by the Government. Under the Tariff of fees collected by the courts under the Code of Civil Procedure, as currently in force, the fee is BGN 10 in respect of firstinstance proceedings, BGN 5 in respect of appellate proceedings, and BGN 5 in respect of cassation proceedings. The fee is payable upfront (see опр. № 12420 от 4 октомври 2011 г. по адм. д. № 12302/2011 г., ВАС, III о.).

Section 10(2) of the Act, as worded after May 2008, provides that if the claim is rejected in full, the court must order the claimant to pay the costs of the proceedings. The claimant must also pay those costs if he or she withdraws the claim in its entirety.

Section 10(3) of the Act, which was also inserted in April 2008 and came into force in May 2008, provides that if a claim under the Act is allowed fully or in part, the court is to order the defendant to pay the costs of the proceedings and to reimburse the court fee paid by the claimant. The defendant must also pay the claimant the fee of one counsel, if the claimant had retained counsel, pro rata the allowed part of the claim.

In their caselaw under section 10(2) and (3), the Supreme Court of Cassation and the Supreme Administrative Court have held that it is a lex specialis in relation to the general rules on costs in the Code of Civil Procedure, and that in the case of a partly rejected claim the defendant authority is not entitled to costs (see опр. № 12023 от 18 октомври 2010 г. по адм. д. № 11620/2010 г., ВАС, I о.; реш. № 785 от 2 март 2011 г. по гр. д. № 556/2010 г. ВКС, III г. о.; and опр. № 525 от 13 октомври 2011 г. по ч. гр. д. № 531/2011 г., ВКС, III г. о.).

Article 172 § 2 of the Code of Civil Procedure 1952, superseded on 1 March 2008 by Article 216 § 2 of the Code of Civil Procedure 2007, which is couched in identical terms, provided that when on account of the character of the right in dispute the court’s ruling had to be the same in relation to all coclaimants or codefendants, they were regarded as mandatory coclaimants or codefendants (необходими другари) and the procedural steps taken by one of them produced effects in respect of all of them.

Article 519 of the Code of Civil Procedure 2007 provides as follows:

“1. The enforcement of money claims against State bodies and municipalities is not allowed.

Money claims against State bodies and municipalities shall be paid out of funds allotted for that purpose in their budgets. For this purpose, the writ of execution shall be presented to the financial department of the [State] body in issue. If no funds have been allocated, the higher [State] body shall take the necessary measures to provide such funds at the latest in the next budget.”

In March 2010 the Ombudsman of the Republic challenged that provision before the Constitutional Court. He argued, inter alia, that it fell foul of several Articles of the 1991 Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. On 22 April 2010 the Constitutional Court, noting that under Article 150 § 3 of the 1991 Constitution the Ombudsman was not entitled to seek from the Constitutional Court declarations that statutes are contrary to international treaties to which Bulgaria is party, declared the request admissible in so far as the allegations of unconstitutionality were concerned and inadmissible in so far as the allegations of lack of compliance with the Convention and its Protocol were concerned. In a judgment of 21 December 2010 (реш. № 15 от 21 декември 2010 г. по к. д. № 9/2010 г., обн. ДВ, бр. 5/2011 г.), the Constitutional Court refused to declare Article 519 unconstitutional in so far as it concerns State bodies, but declared it unconstitutional in so far as it concerns municipalities.

The Committee of Ministers examined the amendments to the 2007 and the 1988 Acts at its 1150th meeting, held on 2426 September 2012. Based on an information document drawn up by the Department for the Execution of Judgments of the European Court of Human Rights (CM/Inf/DH(2012)27), the Committee adopted the following decision:

“The Deputies

took note with interest of the revised action report submitted by the authorities on 30/07/2012 presenting the introduction of an administrative compensatory remedy in the field of excessive length of proceedings, as well as of a draft bill for the introduction of a judicial compensatory remedy in this field;

approved the assessment of the administrative remedy and of the draft judicial remedy contained in information document CM/Inf/DH(2012)27 and invited the Bulgarian authorities to provide clarifications as concerns outstanding questions identified in this information document;

invited the Bulgarian authorities to adopt rapidly the proposed judicial remedy and to amend the provision governing the retrospective effect of the administrative remedy in order to take into account the requirements of the Court in this respect;

decided to declassify information document CM/Inf/DH(2012)27;

decided to resume consideration of these cases, including the question of the measures aimed at reducing the length of the judicial proceedings, during one of their next Human Rights meetings and invited the authorities to provide additional information also on this question.”

The Committee of Ministers again examined the amendments at its 1157th meeting, held on 46 December 2012. Based on an information document drawn up by the Department for the Execution of Judgments of the European Court of Human Rights (CM/Inf/DH(2012)36), the Committee adopted the following decision:

“The Deputies

As regards the effective remedies required in this field:

recalled their decision adopted during their 1150th meeting (DH) (September 2012) according to which the administrative compensatory remedy recently adopted by the authorities and the judicial compensatory remedy proposed in the field of length of proceedings, taken together, seem capable of meeting the main requirements of the caselaw of the Court;

noted with satisfaction the adoption by the Bulgarian Parliament, on 28 November 2012, of the legislative amendments aimed at introducing the abovementioned judicial remedy; noted in this respect that according to the information submitted, the adopted provisions are identical to those already assessed by the Committee, except for those relating to the competent courts; invited the authorities to keep the Committee informed about the entry into force of the adopted provisions and to provide it with their translation;

noted with interest the explanations provided by the Bulgarian authorities in relation to some outstanding questions identified in Information document CM/Inf/DH(2012)27, in particular their intention to modify the provision governing the retrospective effect of the administrative remedy in order to ensure its compliance with the requirements of the Court in this respect; invited them to reply to the other outstanding questions contained in Information document CM/Inf/DH(2012)36, namely as concerns the functioning of the administrative compensatory remedy;

invited the authorities to reply to the other outstanding questions identified in Information document CM/Inf/DH(2012)36 and decided to declassify it.”

The information document forming the base for this decision (CM/Inf/DH(2012)36) was drawn up on 27 November 2012 and reads as follows:

I. Compensatory remedies elaborated in response to the pilot judgments

A. Presentation of the adopted administrative compensatory remedy

Positive aspects of the administrative compensatory remedy

The [2007] Act provides that applications for compensation in respect of excessive length of proceedings are to be addressed to the Minister of Justice through the Supreme Judicial Council’s Inspectorate. When examining these claims, the Minister (or a person authorised by him or her) is assisted by a panel made up of an Inspector and two experts working in a special unit of that Inspectorate. The timelimit for the examination of applications is six months. The procedure is free of charge for the claimants.

The applications are to be directed ‘against acts, actions or omissions of judicial authorities’, breaching the right to have a case heard and decided within a reasonable time. The authorities have indicated that this wording would not preclude the examination of applications concerning delays that do not stem from omissions by individual judges or judicial officers but, for instance, from an overburdening of the judicial system as a whole.

The criteria which must be taken into account when examining applications are the overall length of the proceedings, the delays attributable to the authorities, as well as the delays attributable to the applicant and his representative ([s]ection 60d(2)(5)). The merits of the application and the amount of compensation are to be determined in light of the Court’s caselaw.

The compensation is to be paid out of the budget of the Ministry of Justice. The Ministry of Finance must then restore to the budget of the Ministry of Justice the funds paid as compensation each quarter.

Assessment:

The law governing the administrative remedy imposes on the authority competent to examine applications for compensation the obligation to take into account the overall length of the proceedings and the conduct of the parties and of the competent authorities, in line with the Court’s caselaw. The legal or factual complexity of the case and the stakes involved in the dispute are not mentioned explicitly, but the general reference to the Court’s case-law should be enough to cause them to be taken into account as well. The new provisions also seem to take into account the caselaw of the Court as to, inter alia, the promptness of the examination, the absence of charges for the introduction of a claim and the existence of specific budgetary provisions. In conclusion, this administrative remedy takes into account, to a very large extent, the criteria used by the Court for the assessment of the excessive length of proceedings.

Questions raised by the administrative compensatory remedy

The administrative remedy put in place raises a number of questions, namely: (a) the fact that it does not apply to proceedings which are pending, (b) the wording of the provision governing the retrospective effect of the remedy and (c) the compliance of the remedy with the institutional requirements of Article 13 of the Convention, (d) the compensation ceiling and (e) the payment of compensation. In this respect, it should be recalled that the Court has constantly indicated in its caselaw that even if a particular remedy does not fully satisfy the requirements of Article 13, the aggregate of remedies under domestic law may satisfy these requirements. Therefore, the questions raised by this remedy and its weaknesses may be examined also in the light of the judicial compensatory remedy adopted at first reading by the Bulgarian Parliament (for a detailed presentation of the judicial remedy, see paragraphs 2237 below).

(a) Inapplicability of the administrative remedy to proceedings which are still pending

The administrative remedy provides that only parties to completed judicial and pre-trial proceedings are entitled to introduce applications for compensation within six months of the end of the proceedings in question. If the proceedings are still pending, the parties have to wait for them to end in order to submit a claim to the Minister of Justice, whatever the delays already accumulated. In contrast, it appears from the information presented by the Bulgarian authorities that the proposed judicial remedy for length of proceedings would also be applicable to proceedings which are still pending.

Assessment:

It should be recalled that the Court has already held that the impossibility to use a remedy against the excessive length of proceedings which are still pending may render such a remedy ineffective. It should also be recalled that the pilot judgments require the introduction, within the timelimit set in the operative part of the judgments, of a remedy that fully complies with the Court’s caselaw. It thus appears that the introduction of just an administrative remedy with limited scope is not sufficient to ensure the full execution of the pilot judgments. This lacuna could, however, be overcome by the introduction, without delay, of a judicial remedy which fully complies with the requirements of the Court’s caselaw, as the Bulgarian authorities seem to have foreseen.

(b) Wording of the provision governing the retrospective effect of the remedy

Paragraph 34(1) of the transitional provisions of the [2007 Act], which concerns the retrospective effect of the new remedy, is worded as follows (emphasis added):

‘Within six months of the entry into force of Chapter 3a or notification by the Registry of the European Court of Human Rights, persons who have lodged with the European Court of Human Rights applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under Chapter 3a, except in cases where the Court has already given judgment on the merits of the application or has rejected the application as inadmissible.’

Assessment:

The current wording of paragraph 34 suggests that the new remedy will not be available to applicants whose applications are declared inadmissible by the Court, and this without making the distinction between the different grounds of inadmissibility. This provision should therefore be amended in order to indicate clearly that it will be available to persons whose applications, introduced before its adoption, are declared inadmissible for nonexhaustion of the domestic remedies. Thus, if the Court confirms the effectiveness of the new remedy or of the aggregate of new remedies, it will be able to declare inadmissible the applications pending before it for non-exhaustion of this remedy/these remedies and the applicants concerned will be able to introduce their applications for compensation at the domestic level. The authorities have indicated that this provision will be amended in the near future in order to ensure that applicants whose applications have been declared inadmissible for nonexhaustion of the domestic remedies will be able to use effectively this new remedy at the domestic level. Information is awaited on the timetable for the adoption of this amendment.

(c) Compliance of the remedy with the institutional requirements of Article 13 of the Convention

The new provisions of the [2007] Act describe in considerable detail the procedure for the examination of applications for compensation for excessive length of proceedings. The relevant facts for the examination of a complaint concerning excessive length of proceedings are to be established by a panel of one Inspector from the Supreme Judicial Council’s Inspectorate and two experts working in a special unit of this Inspectorate. This panel communicates its findings to the Minister or to the person whom he or she has authorised to act on his or her behalf.

If the Minister of Justice or the person designated by him or her finds that the reasonable-time requirement has not been breached, he or she has to reject the application. If the Minister or the person designated by him or her finds, on the contrary, that the reasonable-time requirement has been breached, he or she has to fix the amount of compensation in line with the Court’s case-law and propose a settlement to the claimant. Claimants who have accepted the settlement and have obtained compensation under that procedure cannot claim compensation in judicial proceedings.

The [2007] Act does not contain specific provisions concerning a possible judicial review of the decisions rejecting applications or proposing a settlement.

Assessment:

It should be recalled that the authority to which Article 13 refers does not need to be a judicial one for a remedy to be considered effective under the Court’s caselaw. However, the effectiveness of the remedy before that authority is assessed by reference to the guarantees that it affords (see, among other authorities, Leander [v.] Sweden, 26 March 1987, § 77, Series A No. 116). In particular, the decisionmaking body needs to have a ‘sufficiently independent standpoint’ (see, among other authorities, Silver and [O]thers [v.] the United Kingdom, 25 March 1983, § 116, Series A No. 61). It should also be noted that the Court requires in principle that the authority in charge of the implementation of a domestic remedy be able to come up with a ‘legally binding decision’, some element of enforceability being generally required (see, among other authorities, Leander, cited above, § 82). As said above, the caselaw also indicates that even if a single remedy does not fully satisfy the requirements of Article 13, the aggregate of remedies under domestic law may do so (see, among other authorities, Leander, cited above, § 77).

In the light of the information currently available, it is not clearly established whether the new administrative procedure under the [2007] Act can be regarded as providing alone the required ‘element of enforceability’ and sufficient ‘independence’. However, for the reasons set out below, if an effective judicial remedy is introduced without delay, the aggregate of remedies could in principle meet the institutional requirements of Article 13.

According to the authorities, the settlements proposed by the Minister of Justice should be considered as legally binding decisions, because under the [2007]Act, as amended, the Minister of Finance has to guarantee to the Ministry of Justice funds up to the amounts paid in compensation to claimants. However, a question remains whether the decision of the Minister of Justice taken on applications for compensation, whether positive or negative, can be considered to have itself a legally binding effect in cases in which no settlement has been concluded. In any event, according to the draft bill for the amendment of the [1988 Act] (aiming at the introduction of a judicial remedy), unsuccessful claimants in the procedure before the Minister of Justice and claimants who have refused to conclude a settlement, will have the right to request compensation in the context of judicial proceedings (see paragraphs 29 and 30 below).Thus, it seems that – if the foreseen judicial remedy is adopted – in the absence of a settlement the claim could be resolved by a final and legally binding decision in the context of judicial proceedings.

As to the issue of independence of the decisionmaking body, it should be recalled that, in a case against the Czech Republic, the Court accepted that an administrative remedy was effective because the persons who were not satisfied with the decision of the Ministry of Justice on their applications for compensation could seek compensation in the context of judicial proceedings (see Vokurka [v.] the Czech Republic (dec.), No. 40552/02, § 60, 16 October 2007). Thus, if only an administrative remedy is introduced, the availability of judicial review of the decisions of the Minister of Justice may prove crucial for the remedy to meet the institutional requirements of the Court’s caselaw. By contrast, if an effective judicial remedy is introduced without delay as foreseen by the Bulgarian authorities, the aggregate of the two remedies could in principle meet the institutional requirements of Article 13, even in the absence of judicial review of the minister’s decisions.

(d) Compensation ceiling

The [2007 Act] provides that compensation cannot exceed 10,000 Bulgarian levs (BGN) (5,112.92 euros (EUR)).

Assessment:

As concerns the abovementioned compensation ceiling, there may be situations in which that sum will fall short of the amounts awarded in compensation by the Court. That said sums of up to EUR 5 112.92 appear sufficient, in the light of the Court’s judgments against Bulgaria concerning length of proceedings, to compensate adequately the nonpecuniary damage arising in the majority of cases concerning excessive length of proceedings in Bulgaria. Moreover, if an effective judicial remedy is introduced without delay as foreseen by the Bulgarian authorities, the aggregate of newly introduced remedies would normally be sufficient to provide an adequate level of compensation in all situations, as the draft law concerning the introduction of judicial remedy does not provide for a compensation ceiling.

(e) Timelimit and procedure for payment of compensation

The [2007] Act makes provision for a specific funding mechanism for the payment of compensations for excessive length of procedure (see paragraph 4 above). It does not seem to contain any specific provisions concerning the procedure for payment of compensation. In their reply to the questions identified in the memorandum CM/Inf/DH(2012)27 (see DHDD(2012)977), the authorities indicated that budgetary funds and other measures have been foreseen in order to avoid delays in the payment of compensation.

Assessment:

The Court’s caselaw requires that payment should normally be made not later than six months after a judgment or a decision in that respect has become enforceable. Given the importance attached by the Court to this requirement, it seems useful to provide the Committee with detailed information on the payment procedure and on the timelimits in which the payments are made in practice.

B. Presentation of the proposed judicial remedy

The following presentation is based on the translation of the draft bill for the amendment of the 1988 Act presented by the Bulgarian authorities on 30/07/2012 (see DHDD(2012)732). The judicial remedy adopted at first reading by the Bulgarian Parliament seems to comply in principle with the main requirements of the Court’s case-law in the field of compensatory remedies for excessive length of proceedings. However, some clarifications still seem necessary.

(a) Scope of the remedy

Section 2b of the draft bill for the amendment of the [1988 Act] provides that the State is responsible for damages caused to persons and legal entities through breaches, by the judicial authorities, of the right enshrined in Article 6 § 1 of the Convention to have their cases examined and resolved within a reasonable time. The claims have to be examined under the rules of the Code of Civil Procedure. The court have to take into account the legal and factual complexity of the case, the conduct of the claimant, the conduct of the other parties and participants in the proceedings and the conduct of the competent authorities, the stakes involved in the dispute, as well as the overall length of the proceedings. The introduction of a claim for damages while the proceedings are still pending is not an obstacle to introducing a claim for damages after the end of these proceedings. The authorities have confirmed that the scope of the judicial remedy comprises the actions of the prosecutors and the investigating magistrates, as well as the actions of the police investigators (to which makes reference paragraph 9 of the transitional and final provisions of the draft bill for the amendment of the [1988 Act]).

As concerns the question of the applicability of the judicial remedy to the procedures concerning execution of court decisions, it should be noted that the majority of the execution proceedings in Bulgaria are conducted by private bailiffs whose civil responsibility can be engaged in a case of damage caused by their activity. As far as the public bailiffs are concerned, although their status is governed by the [2007] Act, they are not magistrates. Therefore, it is not clear whether their actions are covered or not by the scope of the proposed judicial remedy.

Assessment:

The scope of the proposed judicial remedy seems to comply with the relevant requirements of the Court’s caselaw. The draft Section 2b refers to breaches of the reasonable time requirement attributable to the judicial authorities. Although this provision does not mention explicitly the delays caused by the police investigators, the Bulgarian authorities have indicated that the delays which have occurred at the stage of the preliminary investigation and are attributable to the police investigators will fall within the scope of the judicial remedy. It would be useful to clarify whether this is so also in respect of the actions of the public bailiffs responsible for the execution of a court decision.

(b) Procedure according to which a claim should be examined: length and applicable court fees

The draft bill for the amendment of the [1988 Act] provides that claims will be examined under the rules of the Code of Civil Procedure [2007]. Under Bulgarian law, a civil dispute can be examined by three levels of jurisdiction.

Under the provisions of [s]ection 10 of the [1988 Act], a flatrate court fee is due to file a claim under the Act which is either BGN 10 for physical persons or BGN 25 for legal persons (EUR 5.12 or EUR 12.82). The claimants must pay all the costs incurred in the proceedings only if their claim has been entirely rejected or if they withdraw or waive their claim entirely. If the court decides in favour of the claim, in whole or in part, the defendant should be ordered to pay the costs relating to the proceedings, as well as the claimant’s court fees. If a claim is granted only in part, the claimant receives only partial reimbursement of the lawyer’s fees. The authorities have specified that according to domestic caselaw, if a claim is partially rejected, the claimant should not be required to pay the part of the lawyer’s fees incurred by the defendant.

Assessment:

One of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time. The Court suggested in this respect that ‘consideration may be given to subjecting the examination of such claims to special rules that differ from those governing ordinary claims for damages, to avert the risk that, if examined under the general rules of civil procedure, the remedy may not be sufficiently swift’. However, the introduction of such special rules was not set out as a requirement for the effectiveness of the future remedy or aggregate of remedies. Therefore, the absence of such special rules does not per se put into question the efficiency of the proposed judicial remedy. Moreover, the adopted administrative remedy, if correctly implemented, could provide swift redress to many potential claimants.

As concerns the requirement set out in the pilot judgments that the rules governing costs must not place an excessive burden on litigants where their claim is justified, it seems that, even if a claim has been partly rejected, successful claimants could not be required to pay costs relating to the proceedings and the part of the lawyer’s fees incurred by the defendant and that their court fees are to be reimbursed.

(c) Need to exhaust the administrative remedy in some situations

Parties to completed judicial proceedings will need to exhaust the administrative remedy before introducing a judicial claim. According to [s]ection 8(2) of the draft bill for the amendment of the 1988 Act, the judicial remedy is not available to claimants who have concluded a settlement in the administrative procedure.

Assessment:

As said above, one of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time. It seems that the requirement for a certain category of claimants to exhaust the administrative remedy before introducing a judicial remedy will not have a considerable impact on the promptness of the compensation process as a whole, because it seems that the administrative phase could be very short (cf. the sixmonth’ timelimit for the examination of applications, paragraph 1 above).

(d) Retrospective effect

Paragraph 8(2) of the transitional and final provisions of the draft bill for the amendment of the [1988 Act] provides that persons whose applications have been rejected by the Court on the ground of nonexhaustion of the newly introduced domestic remedies and who have been parties in completed judicial proceedings will be able to introduce administrative applications for compensation within six months of the entry into force of the amendments or within six months of the notification by the Registry of the Court. Under the same conditions, applicants to the Court who have seen their application rejected for nonexhaustion of the domestic remedies and who are parties in pending proceedings at the domestic level will be able to introduce judicial claims for compensation.

According to paragraph 9 of the transitional and final provisions of the draft bill for the amendment of the [1988 Act], parties to proceedings which have been completed less than six months before the entry into force of the draft bill will also have access to the judicial remedy.

Assessment:

The provisions concerning the scope of the retrospective effect of the proposed judicial remedy seem to comply with the recommendations given by the Court under Article 46 in the pilot judgments.

(e) Timelimit and procedure for payment of compensation

Unlike the [2007] Act, the draft bill for the amendment of the [1988 Act] does not seem to provide for specific budgetary provisions concerning the payment of compensations for excessive length of proceedings. In their response to the questions identified in the memorandum CM/Inf/DH(2012)27 (see DHDD(2012)977), the authorities indicated that it is foreseen that the amendments to the [1988 Act] will be accompanied by the provision of budgetary funds to the institutions concerned.

It seems that according to the relevant budgetary rules, the payment of compensation granted in the event of successful claim against a court/the prosecution should be made out of the budget of the court in question/of the prosecution. Likewise, Article 250 of the Code of Civil Procedure provides that persons who have financial claims against public institutions have to submit the writ of execution to the institution’s financial department in order to receive payment. Payments are made out of the funds earmarked for that purpose in the institution’s budget. If there are no funds available, a budgetary provision for this purpose should be made available the following year.

Assessment:

As said above in paragraph 21, the Court’s caselaw requires that payment should normally be made not later than six months after a judgment or a decision in that respect has become enforceable. Given the importance attached by the Court to this requirement, it seems useful to provide the Committee, in due time, with information on the exact content of the budgetary provisions taken by the authorities in order to ensure the funding of compensations for excessive length of proceedings and on any other measure aimed at avoiding late payment of compensation.

Conclusion

In the light of the information available, it seems that the administrative remedy which entered into force on [1 October 2012] represents a very positive step forward towards the execution of the pilot judgments of the Court. This remedy does not in itself comply with all the requirements of the Convention, but most of the outstanding questions could be addressed by the proposed judicial remedy in the field of excessive length of proceedings, if the latter is adopted without delay. Thus, it seems that the aggregate of these two remedies could in principle comply with the main requirements of the Court’s caselaw. Therefore, it seems useful to invite the Bulgarian authorities to adopt without delay the judicial remedy proposed and to encourage them to take the necessary measures in order to ensure for themselves that the new remedies will be applied in compliance with this case-law. Likewise, it seems useful to encourage the authorities to continue with their works regarding the introduction of a remedy which allows requesting the acceleration of the criminal proceedings. ...”


Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection not necessary to examine (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1985 and lives in Gorlivka in the Donetsk region.

On 7 May 2003 the applicant was found fit for mandatory military service and was drafted into the army. He was willing to perform his military service and had no psychiatric or psychological concerns. Nor had he previously experienced any mental disorders.

After a brief period in a training camp, the applicant was assigned to Military Unit А0246, subsequently renamed Т0120 (hereinafter referred to as MU1). According to the applicant, he was regularly subjected to bullying and ill-treatment by senior officers in that unit. One such incident allegedly took place in February 2004 (see paragraph 23 below).

On 23 February 2004 the applicant was transferred to Military Unit А0730, subsequently renamed Т0310 (hereinafter referred to as MU2). He immediately attracted the attention of the commanding officers and medical staff by what they perceived as inadequate behaviour. That is, he appeared very sensitive, was not willing to communicate with fellow servicemen and expressed thoughts that could be interpreted as indicating suicidal tendencies. As a result, on the day of his arrival, the applicant was placed in the medical station, where he was kept for ten days. According to the authorities, the purpose of that measure was to monitor the applicant’s behaviour to see whether it gave rise to doubts about his fitness for continuing with his military service. The military officials also referred to the necessity to isolate the applicant from other soldiers on account of his psychological condition. According to the applicant, who did not deny the above account of his mental state, the real purpose of his placement in the medical station was to allow time for some bruises which he had to fade.

The case file does not contain the applicant’s medical file for the period from 23 February to 2 March 2004. According to the Government, those documents were probably destroyed or lost during the reorganisation of the military unit in September 2004 (see paragraph 15 below).

On 2 March 2004 the applicant was taken to the psychiatric department of the hospital of Military Unit A4615 (hereinafter referred to as MU3) for an examination and treatment.

On 1 April 2004 a medical panel at MU3 examined the applicant with a view to establishing whether he was fit for further military service. It noted in its report that the applicant complained of irritability, mood swings and headaches, the intolerable nature of the army atmosphere, and being homesick. The panel further noted that he had initially been willing to serve in the army and had had no prior psychiatric problems. However, during military service his health had gradually deteriorated. The applicant had been characterised by his fellow servicemen as unsociable, slow, untidy, short-tempered and suicidal. During his conversation with the doctors he appeared sad and emotionally fragile, sometimes tearful. The panel diagnosed him with moderate neuroticism expressed over a protracted period of time following situational triggers. It stated that his illness was related to his military service. The panel reached the conclusion that the applicant was not fit for further military service in peacetime and partially fit for service in wartime. He was also found to require a carer.

On 19 April 2004 the applicant was discharged from the military hospital and from the army.

In September 2004, as part of the reorganisation of the Armed Forces of Ukraine, the control of MU2 was transferred from the Ministry of the Defence to the Ministry of Public Transport.

On 7 July 2005 the Donetsk Regional Psychiatric Expert Commission of the Public Health Ministry (“the Psychiatric Commission”) registered the applicant as “Category 2” disabled on account of his mental condition, finding that he had lost eighty per cent of his capacity to work.

The applicant was granted a disability pension in the amount of 310 Ukrainian hryvnias (UAH) per month (then the equivalent of about fifty euros).

On 21 February 2007 the Gorlivka Psychoneurological Hospital issued a note, at the applicant’s request, detailing his medication needs and their costs. It specified that he required, on a regular basis, antipsychotic drugs, antidepressants and nootropics amounting to UAH 580 per month, as well as some treatment which cost UAH 3,530 per year.

By decisions of 22 August 2007, 26 August 2008 and 7 September 2010, the Psychiatric Commission confirmed that the applicant was “Category 2” disabled on account of “an illness related to his performance of military service”. On the last-mentioned date it decided that his disability was permanent and that no future reassessments were required.

In February 2006 the applicant’s mother complained to the President of Ukraine, and apparently to some other authorities, that the applicant had been subjected to bullying and beatings during his military service at MU2 (she probably meant MU1 – see paragraph 22 below).

On 17 March 2006 the Military Prosecutor of the Dnipropetrovsk Garrison (hereafter referred to as “the Dnipropetrovsk Military Prosecutor”), to whom the aforementioned complaint had been forwarded, refused to institute criminal proceedings. He relied on the statements by the Chiefs of Staff of MU1 and MU2 and the squadron commanders in those two units, who denied that the applicant had been ill-treated or bullied, or that they had received any complaints from him in that regard. The prosecutor also questioned the chief of the medical station in MU2, who stated that the applicant had displayed “inadequate” behaviour, but had had no injuries and had not complained of any ill-treatment. After ten days of monitoring by the medical station’s doctors, it had been decided to transfer the applicant to MU3 for further examination, as that unit had a specialised psychiatric department in its hospital. Lastly, the prosecutor relied on the findings of the medical report of 1 April 2004, according to which the applicant had not raised any allegations of ill-treatment or bullying at that stage. Nor had his medical examination discovered any injuries. In sum, the prosecutor concluded that there was no case to answer.

On an unspecified date, the Southern Region Military Prosecutor quashed the aforementioned decision and ordered an additional investigation.

On 8 April 2006 the applicant gave a written statement to the Military Prosecutor of the Donetsk Garrison (near his place of residence) in respect of his alleged ill-treatment in the army. He submitted that from the autumn of 2003 he had been bullied by senior soldiers in MU1, who had extorted his military allowance and had used every possible pretext for beating him – such as allegedly inadequate cleaning or failure to accomplish a task. The applicant noted that there had been only one other junior soldier in the military unit, apart from himself, S. According to the applicant, they had often discussed their impressions of military service and had discussed the bullying incidents. The applicant admitted that he had not complained to his commanding officers, fearing that it would be considered ‘squealing’ and would trigger reprisals. Nor had he mentioned the matter to his parents, not wanting to upset them. The applicant stated that the last time he had been beaten up was by two officers, V. and another one whose name he did not know, in February 2004. On the following day he had not felt well and had sought medical assistance, explaining to the doctor what had happened. According to the applicant, the actual purpose of his placement in the medical station was to allow time for his bruises to fade. At the same time, he specified that he had not been ill-treated in MU2, where he was transferred shortly before his discharge from the army.

In response to a question about the delay of two years in raising the complaint of ill-treatment, the applicant submitted that he had been ashamed of his discharge from the army and that he had hoped to stay strong and to still be able to complete his military service. He stated that he had not realised how serious his condition was. The constant deterioration of his health had prompted him to complain to the prosecuting authorities.

As to the denial by the doctors of any injuries on the applicant at the material time, he contended that they had lied.

The applicant further noted in his statement to the prosecutor that his memory had seriously deteriorated. He could not remember the date of the beginning of his military service. Nor was he able to give details as to his alleged bullying prior to the last incident in February 2004. The applicant explained that he remembered clearly only the said incident, because it had been the last one and because he had been hospitalised thereafter.

On 28 February 2007 the applicant sent a letter to the Dnipropetrovsk Military Prosecutor, by registered post, requesting a copy of the decision refusing to open a criminal case into his alleged ill-treatment in the army (which appears to be that of 17 March 2006 – see paragraph 21 above). According to him, he received no reply.

On 21 March 2007 the applicant challenged the Dnipropetrovsk Military Prosecutor’s decision of 17 March 2006 before the Southern Region Military Prosecutor. He complained, in particular, that certain important witnesses had not been examined, namely S. and V. (see paragraph 23 above).

On 20 April 2007 the Southern Region Military Prosecutor informed the applicant by a letter that the contested decision had already been quashed in the meantime. The applicant confirmed in his submissions to the Court that he had received the letter.

On 4 June 2007 the Dnipropetrovsk Military Prosecutor again refused to institute criminal proceedings against officials of MU1 and MU2, having discerned no corpus delicti in their actions. In addition to the reasoning given in the decision of 17 March 2006, the prosecutor referred to the applicant’s statements of 8 April 2006 (see paragraph 23 above). Further, the investigation had established that S., whom the applicant had mentioned in his submissions, had only served at MU1 until 31 October 2003, after which he had been transferred to another unit. S. was questioned and refuted the applicant’s allegations, as did officer V., whom the applicant had accused of ill-treating him. The prosecutor also took note of the fact that the applicant had never complained during his medical examinations of any ill-treatment or bullying. Nor had those examinations revealed any injuries on him.

According to the Government, on 5 June 2007 the above-mentioned decision was sent to the applicant’s mother. According to the applicant and his mother, they became aware of the decision only from the Government’s observations on the case in the proceedings before the Court.

On 15 February 2011 the Dnipropetrovsk Military Prosecutor destroyed 205 investigation files which had been opened in connection with various complaints dating from 2006 and 2007, as the time-limits for their storage had expired. The applicant’s case was among them.

On an unspecified date in 2006 the applicant’s mother enquired with the Ministry of Defence as to whether the applicant could use its medical facilities free of charge, given that he had become disabled during his mandatory military service.

On 28 March 2006 the Armed Forces Deputy Chief of General Staff replied in the negative. He explained that while the legislation provided for such privileges as free use of Ministry of Defence medical establishments, the applicant was not eligible because “[his] disability did not result from a wound, a contusion, maiming, or a disease related to the discharge of military service duties, but was caused by a disease related to the performance of his military service.”

On 28 February 2007 the applicant lodged an administrative claim against MU2 with the Kalyninskyy District Court of Gorlivka (“the Kalyninskyy Court”), seeking compensation for damage caused by his disability, which he claimed had resulted from his ill-treatment in the army. He claimed a lump sum of UAH 9,249 in compensation for lost income, a monthly disability allowance of UAH 320, and an additional monthly allowance of UAH 874 for his medical expenses.

On 20 February 2008 the Kalyninskyy Court rejected the applicant’s claim, finding that he had already received all payments he was entitled to.

On 24 April 2008 the Donetsk Administrative Court of Appeal upheld that judgment. It noted that the applicant was receiving a disability pension and that he had already received an insurance payment due to him (UAH 6,800).

On 14 July 2011 the Higher Administrative Court upheld the lower courts’ decisions.

The relevant provisions of the Constitution read as follows:

“The human being, his or her life and health, honour and dignity, inviolability and security are recognised in Ukraine as having the highest social value. ...”

“Everyone has the right to respect for his or her dignity.

No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...”

According to section 11 of the Armed Forces Act 1991, the activities of the armed forces shall be based, in particular, on the principles of the rule of law, lawfulness, respect for humanity, and respect for the individual and his or her constitutional rights and freedoms.

In her Report 2004, the Parliament of Ukraine’s Commissioner for Human Rights dedicated a separate chapter to the issues of “respect for human rights in the armed forces of Ukraine and other military establishments”, in which she condemned the widespread phenomena of bullying and ill-treatment in the army.


Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant, Mr Resul Taşdemir, is a Turkish national who was born in 1979. He was serving a sentence in the Erzurum Prison when the application was lodged.

On 6 September 2005, to celebrate World Peace day, the applicant participated in a demonstration in the district of Doğubeyazıt in the Ağrı Province, outside the building that housed the DEHAP (the Democratic People's Party). During the demonstration someone read out a press statement and the crowd, including the applicant, shouted slogans.

Subsequently, criminal proceedings were initiated against the applicant and five other accused persons, pursuant to Article 215 of the Criminal Code, for praising a criminal and a crime. In the indictment, the prosecution stated that the applicant had shouted “Biji Serok Apo, HPG cepheye misillemeye” (Long live Apo! HPG (the armed wing of the PKK) to the front line in retaliation!).

During the proceedings, the court took into consideration the defence statements of the accused, as well as CD recordings and photographs taken during the demonstration. Before the court, the applicant accepted that he was the person in the CD recording and the photograph. He further stated he had shouted slogans in support of peace.

In a final decision dated 13 April 2007, the Erzurum Assize Court convicted the applicant as charged and sentenced him to twenty-five days' imprisonment. The court then commuted the prison sentence to a fine of 500 Turkish liras (TRY) (equivalent to 270 euros). As the applicant failed to pay the fine, he served his sentence of imprisonment.