CASE OF KAMENOVA v. BULGARIA
No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1942 and lives in Montana. 6. On 20 August 1997 the applicant’s daughter was killed in a traffic accident. Several other people were killed or injured as well. The accident was the fault of H.H., a lorry driver. 7. Criminal proceedings were opened against H.H. and in 1998 he was indicted and brought to court. At the first court hearing the relatives of the other victims brought civil claims against H.H. and his employer. The applicant did not bring such a claim. 8. In a judgment of 30 June 1999 the Vidin Regional Court (hereinafter “the Regional Court”) convicted H.H. of negligently causing the deaths of several people, including the applicant’s daughter, and injuring others, and sentenced him to a term of imprisonment. It allowed the civil claims, finding H.H. and his employer jointly liable to pay damages to the civil parties. 9. Upon appeal, the Regional Court’s judgment was quashed on 19 April 2000 by the Sofia Court of Appeal (hereinafter “the Court of Appeal”). Finding serious breaches of the procedural rules, it remitted the case to the prosecuting authorities, so that it could be restarted from the stage of the preliminary investigation. 10. On an unspecified date in 2000 or 2001 the prosecution prepared a new indictment against H.H. and he was once again brought to court. 11. The first court hearing was held on 30 March 2001. The Regional Court accepted for examination a civil claim against H.H. and his employer brought by the applicant, and recognised her as civil party to the proceedings. 12. In a judgment of 18 September 2002 the Regional Court convicted H.H. of causing the deaths of several people and injuring others, and sentenced him to a term of imprisonment. In addition, it awarded damages to the remaining civil claimants – damages due jointly from H.H. and his employer – but it did not make any decision in respect of the applicant’s claim. 13. On 12 March 2003 the Court of Appeal upheld H.H.’s conviction, reducing his sentence. That part of the judgment became final on 8 October 2003 when it was upheld by the Supreme Court of Cassation. However, as concerns the civil claims, the Court of Appeal quashed the lower court’s judgment and remitted the case for fresh examination. It reasoned that the Regional Court had committed serious procedural breaches by, among other things, not taking a decision on the applicant’s claim. 14. The Regional Court examined the case for a third time, only in relation to the part concerning the civil claims, and on 6 April 2004 gave a judgment. It ordered H.H. and his employer to pay damages to the civil parties, including 10,000 Bulgarian levs (BGN – the equivalent of 5,100 euros (EUR)), plus default interest, to the applicant. 15. Upon an appeal by H.H. and his employer, on 8 March 2006 the Court of Appeal quashed the lower court’s judgment in so far as it concerned the award made to the applicant, and discontinued the examination of her claim. It found that that claim was inadmissible, on the grounds that it had been submitted outside the time-limit provided for in Article 61 § 4 of the 1974 Code of Criminal Procedure (see paragraph 22 below). It pointed out that the requirement under that provision that a claim should be brought before the commencement of the examination of a case by a court had to be interpreted as referring to the initial examination by a court of first instance. The applicant had brought her claim during the subsequent examination of the case, after its remittal. 16. Upon an appeal by the applicant, that conclusion was upheld by the Supreme Court of Cassation on 4 March 2007. 17. On 22 August 2007 the applicant brought a tort action against H.H. and his employer before the civil courts. She claimed BGN 10,000 in respect of non-pecuniary damage, plus default interest as of 20 August 1997. 18. In a judgment of 17 July 2008 the Sofia District Court dismissed the claim. It held that the applicant’s inadmissible civil claim brought in the context of the criminal proceedings could not have interrupted the running of the relevant limitation period, which was five years. Only a claim brought in accordance with the relevant procedural requirements and subsequently found to be well-founded could have had such an effect. In addition, even if the running of the limitation period could be considered to have been interrupted by the applicant’s bringing her claim in the context of the criminal proceedings, that interruption had been retroactively invalidated by the Court of Appeal’s decision of 8 March 2006 finding that the claim was inadmissible and discontinuing the proceedings. Accordingly, the running of the limitation period – which had started in 1997 because the perpetrator’s identity had been known immediately after the accident in which the applicant’s daughter had died – had never been validly interrupted. The applicant’s claim for damages, brought ten years later, was time-barred. The applicant had brought her claim before a tribunal, namely the criminal court, which had been barred from examining it; this meant that this tribunal had had to transfer the claim to the civil courts with jurisdiction, but this had not been done. 19. The applicant filed an appeal, which was dismissed by a judgment of the Sofia City Court of 13 March 2009. While it considered the applicant’s claim well-founded in principle, since the tort resulting in the liability of H.H. and his employer had been proven, that court agreed that the claim was time-barred. It pointed out that the applicant’s bringing her claim in the context of the criminal proceedings could only have interrupted the running of the relevant time-limit if the claim had been allowed. However, after the proceedings had been discontinued, in the absence of recognition of the applicant’s right to receive damages, the time-limit had to be considered to have never been interrupted. The applicant had to bear the adverse consequences of having brought her claim in the context of the criminal proceedings in breach of the rules, and this was so notwithstanding the fact that the claim had been, erroneously, initially accepted for examination by the Regional Court. 20. The applicant lodged an appeal on points of law. In a final decision of 9 July 2009 the Supreme Court of Cassation refused to accept the appeal for a cassation review.