CASE OF DIMITROV AND HAMANOV v. BULGARIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - award
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
6. The applicants were born in 1977 and 1963 respectively and live in Plovdiv. 7. On 21 September 1995 Mr Dimitrov was arrested by the police while trying to break into a car with two other individuals, M.M. and S.D. He was taken to a police station, where he made a written confession. M.M., who was apparently also taken into custody, made a confession as well and turned over to the police two radio cassette players stolen from two cars which he had broken into earlier. On the same day a police officer drew up a report on the incident. 8. On 1 November 1995 a police investigator interviewed S.D. who confessed that he had committed the offence in concert with Mr Dimitrov and M.M. 9. On an unspecified date in 1995 the case was given the number 1074/95. 10. On 19 February 2002 the investigator in charge of the case interviewed one of the police officers who had arrested Mr Dimitrov. On 21 February 2002 he interviewed the owner of one of the cars, and on the same day ordered an expert report on the value of the stolen goods. The report was ready the same day. On 1 March 2002 the investigator interviewed the owner of another car. 11. On 4 March 2002 Mr Dimitrov was formally charged with attempted theft committed in concert with M.M. and S.D. He was interviewed in the presence of his counsel and pleaded guilty. On the same day the investigator interviewed S.D. as a witness. It seems that neither M.M. nor S.D. were charged. 12. On 22 May 2002 the Plovdiv District Prosecutor’s Office, noting that in January 2000 M.M. had left Bulgaria and was in Spain, that it was impossible to establish the facts without interviewing him, and it was necessary to charge him as well, decided to stay the proceedings pending his return. On 11 April 2005, noting that on 28 March 2005 M.M. had come back from Spain, the same Public Prosecutor’s Office decided to resume the proceedings. 13. On 18 April 2005 M.M. was interviewed as a witness. He was interviewed again on 15 June 2005 in the presence of a judge. S.D. was also interviewed as a witness in the presence of the judge. It seems that neither M.M. nor S.D. were charged. 14. On 11 July 2005 Mr Dimitrov was allowed to acquaint himself with the case file. On 19 July 2005 the investigator recommended that he be brought for trial, and on 25 August 2005 the Plovdiv District Prosecutor’s Office indicted him. 15. The Plovdiv District Court (Пловдивски районен съд) heard the case on 18 May 2006. The prosecution and Mr Dimitrov stated that they had entered into a plea bargain. The court approved the bargain, sentenced the applicant to five months’ imprisonment, suspended, and terminated the proceedings. 16. On 11 March 1996 a criminal investigation was opened against Mr Hamanov, a bank branch manager, and several other individuals in connection with a number of financial transactions. After March 1996 the case went through a preliminary investigation, trial and appeal. Following a remittal to the preliminary investigation stage in June 2000, in April 2003 it was again pending before the prosecuting authorities. The detailed course of the proceedings up to April 2003 has been set out in paragraphs 1132 of the Court’s judgment in the case of Hamanov v. Bulgaria (no. 44062/98, 8 April 2004). 17. In September 2003 one of Mr Hamanov’s coaccused made a request under the new Article 239a of the 1974 Code of Criminal Procedure (see paragraphs 3840 below). On 31 October 2003 the Plovdiv District Court requested the Plovdiv District Prosecutor’s Office to send it the case file. On 6 November 2003 that Office forwarded the request to the Plovdiv Regional Prosecutor’s Office, which was dealing with the case. 18. Apparently as a result of the above, on 10 November 2003 the Plovdiv Regional Prosecutor’s Office submitted to the Plovdiv Regional Court (Пловдивски окръжен съд) an indictment against Mr Hamanov and seven other accused. Mr Hamanov was accused of breaching his duties as bank branch manager by making thirtyfive unauthorised bank transfers, in breach of the applicable financial regulations, and by guaranteeing nine promissory notes, in breach of a resolution of the bank’s management board prohibiting branch managers from issuing such guarantees, and thereby causing the bank a pecuniary loss. The offences were characterised by the prosecution as abuse of office under Article 282 of the Criminal Code. Mr Hamanov was additionally charged with unlawfully acquiring and possessing ammunition. 19. On 30 January 2004 the court set the case down for trial. 20. Two hearings, listed for 26 April and 15 June 2004, were adjourned, the first because the State had not been properly summoned as a civil party, and the second because Mr Hamanov was ill and could not attend. 21. A hearing was held from 25 to 28 October 2004. On the lastmentioned date the court adjourned the case, finding that this was necessary in order to obtain the testimony of certain witnesses and experts who had failed to show up, and to hear additional witnesses called by the prosecution and the defence. 22. Three hearings, fixed for 23 February, 14 April and 13 June 2005, failed to take place, the first because Mr Hamanov’s counsel was absent, the second because another accused’s counsel had to be replaced, and the third because another accused was ill and could not attend. 23. A hearing was held from 26 to 30 September 2005. On the lastmentioned date the court adjourned the case, finding that this was necessary in order to obtain the testimony of certain witnesses and experts who had failed to show up, to hear additional witnesses called by the prosecution and the defence, and to obtain certain documents. 24. Two hearings, listed for 19 December 2005 and 23 February 2006, were adjourned because other accused and their counsel were ill and could not attend. 25. Two hearings were held from 25 to 28 April and from 26 to 28 June 2006. 26. The Plovdiv Regional Court gave its judgment on 29 June 2006, and handed down the reasons for it in March 2007. It convicted Mr Hamanov of guaranteeing the promissory notes, holding that this had amounted to wilful mismanagement contrary to Article 219 of the Criminal Code (see paragraph 51 below), not abuse of office contrary to Article 282 of the Code. It acquitted him of the charge relating to the making of the thirtyfive bank transfers. In addition, it found Mr Hamanov guilty of possession of ammunition, but not guilty of acquiring it. In connection with the mismanagement, the court sentenced Mr Hamanov to four years and four months’ imprisonment and barred him from acting as a director of a commercial bank for four years and six months. In connection with the possession of ammunition, it sentenced him to a fine of ten Bulgarian levs. In determining the quantum of the punishment to be imposed in relation to the mismanagement, the court noted the following: “Bearing in mind the legal characterisation of the [offence] committed by [Mr Hamanov] ..., [his] dangerousness, [his] personality, the long period during which [he] was criminally prosecuted, and the need to attain the aims of the punishment ..., the court considers that [he] should be sentenced in line with Article 54 of the [1968 Criminal Code – see paragraph 50 below], under predominantly mitigating circumstances. The court finds that those circumstances were [the applicant’s] clean criminal record, his good character, the fact that [he] is in employment at the time of delivery of this judgment, [his] stable family and social situation, [and] the partial confession that he made during the trial. The aggravating circumstances [consist in] the perseverance, determination and coordination displayed by [Mr Hamanov] in carrying out [his] criminal acts. ... In view of the established caselaw that, when accompanying a sentence of imprisonment, [occupational debarment] cannot be shorter than that imprisonment, and bearing in mind the significant amount of time which has elapsed since the commission of the offence ... the court considers that is must bar [Mr Hamanov] from acting as a director of a commercial bank for a period of four years and six months...” 27. Between 10 and 13 July 2006 Mr Hamanov and the other accused, as well as the prosecution, appealed against the judgment. 28. On 17 May 2007 the Plovdiv Court of Appeal (Пловдивски апелативен съд) set the appeals down for hearing on 28 June 2007. However, the hearing failed to take place on that date because another accused did not have legal representation. It was held on 27 September 2007. 29. The Plovdiv Court of Appeal gave its judgment on 23 October 2007, fully upholding the lower court’s judgment. 30. Mr Hamanov and the other accused appealed on points of law. 31. The hearing before the Supreme Court of Cassation (Върховен касационен съд) was fixed for 4 April 2008, but was adjourned because the civil party had not been properly summoned and because another accused who wished to be present was prevented from attending. It took place on 9 May 2008. 32. The Supreme Court of Cassation gave its judgment on 9 July 2008, upholding the part of the lower court’s judgment concerning Mr Hamanov in its entirety. 33. Article 31 § 1 of the 1991 Constitution provides as follows: “Anyone charged with an offence shall be brought before a court within the time established by law.” 34. Under Article 130 of the Constitution, the Supreme Judicial Council is the principal body concerned with the administration of the judiciary (which, in Bulgaria, comprises the courts, the prosecutor’s offices and the investigation services). It has the power to, inter alia, appoint, promote, demote and dismiss judges, prosecutors and investigators (Article 129 § 1 and Article 130 § 6 (1)) and impose the harshest disciplinary punishments (Article 130 § 6 (2)). 35. A 2007 amendment to the 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). 36. Section 7(1) of the 2007 Judiciary Act provides that “[e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal”. 37. Sections 4060 of the Act govern the structure, powers and operations of the Inspectorate attached to the Supreme Judicial Council (see paragraph 35 above). One of the Inspectorate’s tasks is to check the processing of cases and their completion within the prescribed time-limits (section 54(1)(2)). It carries out planned annual checks or unplanned checks prompted by reports (section 56(1)). After carrying out a check of the work of an individual judge, prosecutor or investigator, the Inspectorate draws up a report containing its findings and recommendations, if any (section 58(2)). That report is presented to the judge, prosecutor or investigator concerned and to his or her hierarchical superior (section 58(3)). The hierarchical superior must then, within the time set in the report, inform the chief inspector about the implementation of the recommendations (section 58(4)). 38. An amendment to the 1974 Code of Criminal Procedure that came into force in June 2003 introduced the possibility for accused persons to request that their case be brought for trial if the investigation had not been completed within two years in cases concerning serious offences and one year in all other cases (new Article 239a). Paragraph 140 of the amendment’s transitional provisions provided that that possibility applied with immediate effect in respect of investigations opened before June 2003. 39. The procedure under that Article was as follows. The accused person had to submit a request to the relevant court, which then had seven days to examine the file and rule on the request. It could refer the case back to the prosecuting authorities, giving them two months to submit an indictment against the accused or, alternatively, to drop the charges against him or her. If the prosecuting authorities failed to do so, the court was bound to discontinue the criminal proceedings against the person who had made the request. If the prosecuting authorities did submit an indictment, but the court found that the pretrial investigation had been tainted by serious breaches of the rules of procedure, the court had to refer the case back to the prosecuting authorities, which then had one month to rectify those breaches and resubmit the indictment. If they failed to re-submit the indictment or to rectify the breaches highlighted by the court, or committed fresh breaches of the rules of procedure, the court had to discontinue the criminal proceedings. 40. The 2003 amendment was put before Parliament with the reasoning that it was necessary in order to secure observance of the right to a hearing within a reasonable time guaranteed by the Convention. 41. In a judgment of 1 July 2010 (реш. № 340 от 1 юли 2010 г. по к. н. д. № 271/2010 г. ВКС, I н. о.), the Supreme Court of Cassation analysed in detail the manner in which Article 239a was to be applied and held that a failure to finalise the procedure under that provision did not automatically put in jeopardy the fairness of the ensuing trial. It was precisely during that trial – as opposed to the pretrial phase of the proceedings – that the accused would be able to obtain a determination of the criminal charges against him or her in fully adversarial proceedings conducted in line with the requirements of, inter alia, the Convention. 42. The 2005 Code of Criminal Procedure came into force on 29 April 2006, superseding the 1974 Code. Its Article 22 provides as follows: “1. The court shall examine and decide cases within a reasonable time. 2. The prosecutor and the investigating authorities must ensure that the pretrial proceedings are conducted within the timelimits laid down in this Code. 3. Cases in which the accused is remanded in custody shall be investigated, examined and disposed of as a matter of priority.” 43. Articles 368 and 369 of the 2005 Code, which superseded Article 239a of the 1974 Code, provided as follows: “1. If, in pretrial proceedings, more than two years have passed since a person has been charged with a serious offence, or one year in the case of other offences, the accused may request that his or her case be examined by the court. 2. In the cases envisaged in subparagraph 1 the accused shall file a request with the relevant firstinstance court, which shall request the case file immediately.” “1. The court, consisting of a single judge, shall rule on the request within seven days. If it finds that the requirements of Article 368 § 1 are in place, it shall return the case to the prosecutor and give him or her two months within which he or she must submit an indictment, a proposal for the imposition of an administrative punishment, or a plea agreement, or discontinue the criminal proceedings and inform the court accordingly. 2. If, within the abovementioned period of two months, the prosecutor does not carry out any of the measures referred to in subparagraph 1 or if the court does not approve the proposed plea bargain, the court, sitting as a single judge and in private, shall request the case file and shall discontinue the criminal proceedings by means of a decision. After the delivery of the decision the criminal proceedings shall continue with regard to the other accused as well as with regard to the other offences with which the accused has been charged. 3. If the prosecutor carries out [one of] the steps referred to in subparagraph 1, but the pre-trial proceedings have been tainted by substantive breaches of the rules of procedure, the court, sitting as a single judge and in private, shall discontinue the judicial proceedings and refer the case back to the prosecutor for rectification of the breaches and resubmission of the case to the court within one month. 4. If within the timelimit referred to in subparagraph 3 the prosecutor does not submit the case to the court or the substantive breaches of the rules of procedure have not been made good, or further ones have been committed, the court, sitting as a single judge and in private, shall discontinue the criminal proceedings by means of a decision. 5. The decisions referred to in subparagraphs 2 and 4 shall be final.” 44. On 25 March 2010 Parliament repealed Articles 368 and 369 with effect from 28 May 2010. 45. On 29 April 2010 the President of the Republic challenged the repeal, along with certain other amendments to the 2005 Code of Criminal Procedure, before the Constitutional Court. In a decision of 28 September 2010 (реш. № 10 от 28 септември 2010 г., по к. д. № 10/2010 г., обн., ДВ, бр. бр. 80 от 12 октомври 2010 г.) that court examined the repeal by reference to, inter alia, Article 13 of the Convention. It noted that, unlike Article 6 § 1 of the Convention, the Bulgarian Constitution did not explicitly lay down as a basic right the right of those charged with criminal offences to have the charges against them examined and to have the criminal proceedings against them finalised within a reasonable time. However, it analysed in detail the terms of Article 31 § 1 of the Constitution (see paragraph 33 above) and held that that provision was to be construed as containing a procedural obligation to comply with the statutory timelimits for conducting and finalising the pre-trial phase of criminal proceedings, with a view to bringing those charged with criminal offences to trial. It thus served the same purpose as Article 6 § 1 of the Convention, albeit only in relation to the first phase of criminal proceedings. The court continued: “As noted above, the [abolished remedy] was intended to serve as an effective remedy within the meaning of Article 13 of the Convention in order to ensure the right to have a criminal case examined within a ‘reasonable time’ during the pretrial phase of the proceedings. The Constitutional Court finds that the repeal of that remedy is not unconstitutional, because it does not remove the disciplining procedural timelimits envisaged under Article 31 § 1 of the Constitution. Statutory limitations on the duration of the two parts of the pretrial phase of criminal proceedings – ‘investigation’ and ‘steps to be taken by the prosecutor after the investigation has been completed’ – still exist and continue to be applied. ... The repealed ... Articles 368 and 369 of the Code contained the implicit assessment of the legislature that, in view of the need to complete criminal proceedings within a reasonable time, it was unacceptable for a person to remain charged in pretrial proceedings for more than two years in cases of serious offences and for more than one year in cases of lesser offences. In most cases those timelimits would be longer than the sum of the timelimits under Article 234 §§ 15 and Article 242 § 3 of the Code. An exception could occur only if the duration of the investigation was extended, exceptionally, to more than six months by the head of a regional or higher prosecutor’s office or a person designated by him or her (Article 234 § 3 of the Code). Only then would the repeal lead to a restriction of a procedural right and raise the question whether, in the light of Article 31 § 4 of the Constitution and Article 18 of the Convention, that restriction did not exceed what was required for the administration of justice. The Constitutional Court does not accept the argument that the legislative change destroys the right of the accused to have their cases examined within a ‘reasonable time’, as required under Article 6 § 1 of the Convention. The [2005] Code of Criminal Procedure laid down the basic principle that cases are to be examined and decided within a reasonable time, requiring the authorities in charge of pretrial investigations to comply with procedural timelimits (Article 22 of the Code). The constitutional amendments in 2006 and the new [Judiciary Act], adopted in 2007, put in place additional safeguards for the faster examination of cases and for avoiding their undue protraction. The repeal of [Articles 368 and 369 of the Code] does not affect that system of rules. Its aim was to improve the law in order to ensure good justice, which is [a legitimate aim]. The main weakness of the repealed procedure was that it used a formal, purely quantitative criterion to measure ‘reasonable time’ during the pretrial phase of the proceedings. It is true that in most cases such an approach would lead to a correct assessment – something fully logical in view of the fact that under the rules of procedure a person can be charged only if there already exists ‘enough evidence’ that he or she is guilty. However, in some complex cases that criterion might, contrary to the public interest that all offenders be brought to justice, give the accused an undue advantage – for instance in cases in which it proves to be genuinely difficult to trace and charge accomplices, cases in which the need arises to gather additional evidence, including through letters rogatory, cases in which the accused has slowed down the proceedings, etc. It is no wonder that the caselaw of the European Court of Human Rights under Article 6 § 1 of the Convention is quite flexible. That Court uses three criteria to assess the relevant period: the factual and legal complexity of the case, the conduct of any authorities involved and the conduct of the person concerned [(see Eckle v. Germany, 15 July 1982, Series A no. 51; Zimmermann and Steiner v. Switzerland, 13 July 1983, Series A no. 66; Kreps v. Poland, no. 34097/96, 26 July 2001; and S.H.K. v. Bulgaria, no. 37355/97, 23 October 2003)]. It is equally possible to exceed a reasonable time while formally complying with the applicable timelimits and to comply with the ‘reasonable time’ requirement while exceeding the applicable timelimits. The European Court of Human Rights finds breaches of the ‘reasonable time’ requirement only on the basis of delays attributable to the authorities. In view of that, the Constitutional Court considers that by repealing [Articles 368 and 369] of the [2005] Code of Criminal Procedure the legislature sought to achieve a constitutionally legitimate aim – to ensure the interests of justice while taking into account the right to ‘a hearing within a reasonable time’, as construed by the European Court of Human Rights. In so far as in exceptional cases the new legal framework could restrict the rights of the accused, one should take into account that there exists a balancing mechanism, namely the requirement under Article 234 §§ 8 and 9 of the [Code] for all preventive measures [such as pretrial detention or house arrest] to be set aside after the expiry of timelimits that are identical to those under the repealed provisions. It is also important to examine whether the repeal of the possibility for accused persons to request that their case be brought for trial does not create a lacuna in the law, in breach of the requirement of Article 13 of the Convention for effective remedies in respect of the rights and freedoms enshrined in the Convention and in particular the right of those charged with criminal offences to have their cases examined within a reasonable time. In its caselaw the European Court of Human Rights has held that remedies are effective if they can prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred [(see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR 2000XI)]. In a number of judgments, that Court has noted that before the introduction of Article 239a of the [1974] Code of Criminal Procedure our State did not make available a remedy complying with the requirements of Article 13, read in conjunction with Article 6 § 1 of the Convention and capable of ensuring that the pretrial phase of criminal proceedings does not exceed a reasonable time [(see Osmanov and Yuseinov v. Bulgaria, nos. 54178/00 and 59901/00, 23 September 2004; Mitev v. Bulgaria, no. 40063/98, 22 December 2004; and Sidjimov v. Bulgaria, no. 55057/00, 27 January 2005)]. In those circumstances, the answer to the above question depends on whether, from the creation of that remedy in 2003 until its abolition in 2010, the State has created alternative mechanisms ensuring the availability of effective remedies in respect of the right to have charges examined within a reasonable time during the pretrial phase of criminal proceedings. In [our] view, that has been done, as far as rules are concerned. An amendment to the Constitution [which came into force in February 2007] created a new independent body, the Inspectorate attached to the Supreme Judicial Council, which may act pursuant to requests by the persons concerned, a category which includes those charged with a criminal offence. That Inspectorate checks the work of the judicial authorities and has the power to report and make proposals to all State authorities, including the competent judicial authorities (Article 132a §§ 6 and 9 of the Constitution). The Inspectorate’s powers have been laid down in more detail in the new [Judiciary Act]. It may now check ‘the way in which judicial, prosecutorial and investigation case files are being opened and processed, as well as their completion within the prescribed timelimits’ (section 54(1)(2) of the Act). Under section 58(3) of the Act, the results of such checks have to be made available not only to the judge, prosecutor or investigator concerned, but also to the head of the relevant department of the judiciary. That head must then inform the chief inspector whether any recommendations given have been complied with within the timelimit set in the Inspectorate’s report (section 58(4) of the Act). If it is necessary to prevent or overcome an undue delay during the pretrial phase of criminal proceedings, the authority in charge of ensuring compliance with the Inspectorate’s directions is the head of the relevant department of the prosecuting authorities. He or she has the power to take various measures: organisational (under section 136(4) of the Act), disciplinary (to impose certain light sanctions under section 311(1) of the Act or to initiate disciplinary proceedings before the Supreme Judicial Council) and procedural (to set aside or vary the decisions of the lower prosecutors, to give mandatory directions or personally to take the necessary procedural steps, as possible under Article 46 § 3 of the [2005] Code of Criminal Procedure, [or] to exercise control over the activities of the investigating authorities in line with Articles 196 and 197 of the [same Code]). It can therefore be accepted that the repeal of [Articles 368 and 369 of the Code] does not lead to a legal vacuum incompatible with Article 13 of the Convention. Naturally, the mere existence of rules does not preclude the risk of future judgments in which the European Court of Human Rights will find violations in respect of Bulgaria. All State authorities must take into account the general statement made in Kudła, cited above, namely that the remedy required by Article 13 must be effective in practice as well as in law.” 46. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (“the 1988 Act”), as in force since July 2006, provides as follows: “The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.” 47. Section 2(1)(2) of the Act provides as follows: “The State shall be liable for damage caused to individuals by organs of [the investigation], the prosecution and the courts through unlawful: ... 2. bringing of criminal charges, if the person concerned has been acquitted or if the criminal proceedings are discontinued because the offence was not committed by the person concerned, or [that person’s] act does not constitute a criminal offence...” 48. Individuals who have been acquitted or had the proceedings against them discontinued on one of the grounds set forth in section 2(1)(2) – which, according to an interpretative decision of the Supreme Court of Cassation (тълк. реш. № 3 от 22 април 2005 г. по тълк. гр. д. № 3/2004 г., ОСГК на ВКС), include discontinuance because the charges have not been made out – can obtain compensation for the mere fact that criminal proceedings have been instituted against them. According to the same decision, compensation is due in respect of the proceedings themselves and in respect of any incidental measures, such as pretrial detention. The decision also says that compensation is due in cases of partial acquittal, where there is an established causal link between the charges in respect of which a person has been acquitted and the damage sustained. 49. In several judgments given between 2005 and 2008 the Supreme Court of Cassation, when fixing the amount of damages it awarded pursuant to such claims, had regard to, among other factors, the length of the proceedings (реш. № 1599 от 22 юни 2005 г. по гр. д. № 876/2004 г., ВКС, IV г. о.; реш. № 1017 от 15 декември 2005 г. по гр. д. № 524/2004 г., ВКС, IV г. о.; реш. № 2851 от 23 януари 2006 г. по гр. д. № 2252/2004 г., ВКС, IV г. о.; реш. № 429 от 30 март 2006 г. на гр. д. № 3163/2004 г., ВКС, IV г. о.; реш. № 156 от 10 май 2006 г. по гр. д. № 2633/2004 г., ВКС, IV г. о.; реш. № 1557 от 27 декември 2006 г. по гр. д. № 2800/2005 г., ВКС, IV г. о.; реш. № 1323 от 27 ноември 2007 г. по гр. д. № 1400/2006 г., ВКС, I г. о.; реш. № 148 от 11 февруари 2008 г. по гр. д. № 1518/2007 г., ВКС, V г. о.; реш. № 692 от 12 май 2008 г. по гр. д. № 2394/2007 г., ВКС, IV г. о.). The examination of those claims lasted between three and seven years in total. 50. Under Article 54 § 1 of the 1968 Criminal Code, when sentencing a convicted offender the court has to fix the punishment within the limits set by law, by reference to the Code’s general rules and taking into account the dangerousness of the offence and of the offender, the motives, as well as all other aggravating and mitigating circumstances. 51. Article 219 § 1 of the Code makes it an offence for officials or managers to fail to take due care in managing or keeping secure the assets entrusted to them, where such failure results in substantial losses, destruction or dissipation of such assets, or other substantial damage to the undertaking or the economy. The punishment can be up to three years’ imprisonment. Article 219 § 3 provides that if the offence has been committed wilfully, it is punishable by up to eight years’ imprisonment. Article 219 § 4 provides that if the offence is particularly serious, the punishment ranges between one and five years if the offence has been committed negligently, and one and ten years if it has been committed wilfully. 52. On 2 December 2010, during its 1100th meeting, the Committee of Ministers of the Council of Europe adopted an Interim Resolution on the execution of the judgments of the European Court of Human Rights concerning the excessive length of judicial proceedings in eightyfour cases against Bulgaria (CM/ResDH(2010)223). The resolution reads: “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”), Having regard to the number of judgments of the European Court of Human Rights (“the Court”) finding Bulgaria in violation of Article 6, paragraph 1 and Article 13 of the Convention on account of the excessive length of judicial proceedings and the absence of an effective remedy in this regard (see Appendix III to this resolution); Recalling that excessive delays in the administration of justice constitute a serious danger, in particular to respect for the rule of law and access to justice; Recalling also its Recommendation Rec(2010)3 to member states on the need to improve the effectiveness of domestic remedies for excessive length of proceedings, and emphasising the importance of this question where judgments reveal structural problems likely to give rise to a large number of further similar violations of the Convention; Having examined the information supplied by the Bulgarian authorities concerning the measures taken or envisaged in response to those judgments (see Appendix I), including the statistical data on the length of judicial procedures (see Appendix II); Assessment of the Committee of Ministers I. Individual measures Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found (restitutio in integrum), in particular the acceleration, as far as possible, of proceedings which were still pending after the findings of violations by the Court; Noting however with concern that the domestic proceedings in seven cases are still pending before the domestic courts and that the authorities have been unable to provide information about two other cases (see Appendix I); CALLED UPON the Bulgarian authorities to provide for acceleration as much as possible of the proceedings pending in these cases, in order to bring them to an end as soon as possible, and to inform it of the progress of proceedings in the two afore-mentioned cases; II. General measures 1) Measures aimed at reducing the length of judicial proceedings Noting the numerous violations found by the Court on account of the excessive length of civil and criminal proceedings in Bulgaria, revealing certain structural problems in the administration of justice at the time of the relevant facts; Welcoming the numerous legislative reforms adopted by the authorities in order to remedy these structural problems and in particular the adoption of the new codes of criminal and civil procedure (see Appendix I); Welcoming likewise the other measures taken by the authorities to increase the efficiency of the judicial system, and in particular the establishment of assessment and monitoring mechanisms, including the collection and analysis of statistical data; Noting that the 2009 statistics show a reduction in the backlog in the Bulgarian courts as a whole, and an increase in the number of cases dealt with in the space of 3 months (see Appendix II); Noting however that, according to the statistics, the backlog in the district courts located in regional centres has increased slightly by reason of the substantial rise in the number of cases registered, and that those courts were responsible for examining half the cases pending in the country in 2009 (see Appendix II); Noting also that the legislative reforms introduced between 2006 and 2010 have not yet produced their full impact on the length of proceedings and that a longer period of time is needed before the effectiveness of all the measures taken can be fully and completely assessed; ENCOURAGED the Bulgarian authorities to pursue their efforts in following up the reforms introduced, in order to consolidate their positive effects, in particular as regards the situation in the district courts located in regional centres; CALLED ON the authorities to continue to monitor the effects of these reforms as it proceeds, with a view to adopting, if appropriate, any further measure necessary to ensure its effectiveness, and to keep the Committee informed of the developments in this regard; 2) Measures relating to the effectiveness of remedies Recalling that the Court has found numerous violations of the right to an effective remedy in contesting the excessive length of proceedings in Bulgaria, revealing certain structural problems in this field; Recalling its Recommendation Rec(2010)3 encouraging states to introduce remedies making it possible both to expedite proceedings and to grant compensation to interested parties for damage suffered; Noting with interest that Articles 25557 of the Code of Civil Procedure provide that, if a court does not take a procedural step in due time, the parties may at any time apply to the superior court for a time-limit to be set for the taking of the procedural step in question, thus affording a remedy designed to speed up the civil proceedings (see Appendix I); Noting also that there exist in criminal law certain forms of nonpecuniary redress, such as the possibility of reducing the sanction, where there is a finding of excessive length of proceedings; Noting however that at the present time no domestic remedy is available for expediting excessively lengthy criminal proceedings or obtaining pecuniary compensation if appropriate (see Appendix I); Welcoming in this context the reform undertaken by the authorities aimed at introducing into Bulgarian law a compensatory remedy where excessive length of judicial proceedings is alleged (see Appendix I); INVITED the Bulgarian authorities to complete as soon as possible the reform undertaken in order to introduce a remedy whereby compensation may be granted for prejudice caused by excessive length of judicial proceedings, and to keep the Committee informed of its progress and of any other measure that may be envisaged in this field; Having regard to the foregoing, the Committee of Ministers DECIDED to resume its examination of progress made at the latest: – by the end of 2011, with regard to the question of effective remedy; – by mid2012, with regard to the question of the excessive length of judicial proceedings.” 53. An appendix to the resolution summarised the information provided by the Bulgarian Government on the measures taken by the Bulgarian authorities in that domain. It reads: “I. Individual measures The proceedings which were still pending before the domestic courts at the time when the Court gave its judgments have been terminated in most of the cases. At the present time, the proceedings have not yet been terminated in the Belchev, Hamanov, Nedyalkov, Valkov, Kamburov, Kavalovi and Merdzhanov cases. Information is still awaited also on the state of progress in the proceedings in the Kolev and Sidjimov cases. II. General measures 1) Measures aimed at reducing the length of proceedings – Legislative measures ... A new Code of Criminal Procedure (“CCrP”), adopted in 2005, came into force on 29 April 2006. Like the new CCvP, it aims in particular to speed up criminal proceedings. For example, it prescribes short time-limits for the examination of a case and for postponement of its examination (Articles 252, 271 and 345) and the more widespread use of simplified procedures (Articles 356361, 362367 and 370374). According to the 2009 report of the president of the Supreme Court of Cassation on the work of the courts, the simplified judicial procedures most often used in 2009 in the field of criminal justice related to summary judicial investigation and plea bargaining between the accused and the prosecution (an agreement enabling the prosecution to be terminated provided the court approves). The other important provisions of the CCrP provide for: – the obligation on the courts and bodies responsible for the preliminary investigation to examine criminal cases within a reasonable time; in addition, cases in which the accused is held in detention must be given priority over other cases by the courts examining and judging them (Article 22); – time-limits for termination of the preliminary investigation and prohibition on the use in court of any evidence obtained outside the time-limit (Article 234); – the introduction of summary judicial investigation in courts of first instance; this procedure makes it possible for the accused to obtain a reduction of sentence if he admits the offence and relinquishes the production of evidence, provided he is assisted by counsel (where necessary appointed by the court); – broader applicability of the simplified procedure whereby the accused may be absolved of his criminal responsibility and an administrative penalty imposed instead. Furthermore, the 2005 CCrP was amended in 2010 for the purpose, in particular, of avoiding (a) unjustified referrals at the preliminary investigation stage (Article 249 § 3) and (b) postponement of the hearing where the representative of the accused fails to appear without good reason (Article 94). In addition, it is to be noted that now the possibility for the prosecution to bring further charges during the judicial investigation has been widened, even if those charges relate to different facts or an offence carrying a more severe penalty (Article 287 § 1). Some other changes are aimed at reducing the excessive formalism of criminal procedure in Bulgaria (for example, the abrogation of the requirement that the investigator draws up a formal document setting out his conclusions – Articles 231235). – Administrative measures designed to improve the organisation and management of the courts Among other reforms designed to improve the efficiency of the Bulgarian judicial system, should be mentioned the creation in 2007 of an electronic commercial register managed by an administrative agency (see the commercial register law in force since 1 July 2007). Thus the regional courts which were responsible for registering commercial companies in the past have been absolved of that responsibility. Furthermore, following the adoption of the new Code of Administrative Procedure in 2006, 28 administrative courts were set up in 2007. These new administrative courts have powers previously exercised by the regional courts. In addition, as an ad hoc measure aimed at lightening the workload of the Supreme Court of Cassation, labour disputes pending before it when the 2007 CCvP came into force have been transferred to the appeal courts. It should also be pointed out that the judicial authorities now have access to the national database containing the population register, which should overcome certain delays arising from requests for information needed to take judicial proceedings forward. Finally, Bulgaria has achieved a high level of computerisation designed to assist both judges and other personnel (for further details, see the 2010 report of the European Commission for the Efficiency of Justice – CEPEJ). Moreover, the courts are continuing their efforts to improve their IT equipment in order to communicate with parties. Those efforts were recently rewarded by the award of the 2010 “Crystal Scales of Justice” prize to the Yambol administrative court for the work it has done to improve users’ understanding of judicial procedure. – Mechanisms for periodic assessment and monitoring of the work of the courts Two bodies – the Supreme Judicial Council Inspectorate and the Ministry of Justice Inspectorate – have the main responsibility for monitoring and assessing the work of the courts, prosecution services and investigating magistrates. The Supreme Judicial Council Inspectorate, established in 2007, comprises an inspectorgeneral and ten inspectors elected by Parliament for terms of five and four years respectively (Article 132a of the Constitution). It oversees the administrative organisation of the courts, prosecution services and bodies in charge of preliminary investigations, together with the proper organisation of preliminary investigations and cases pending before prosecutors and courts. In particular, the inspectorate oversees compliance with the time-limits laid down by law for dealing with cases. It carries out its tasks (a) through planned regional inspections and (b) through inspections focussing on particular questions. It may also conduct inspections in response to reported irregularities ([sections] 54 and 56 of the [2007 Judiciary Act]). Following inspections, it makes recommendations, particularly concerning compliance with the timelimits laid down by law for dealing with cases. Implementation of its recommendations is monitored in the course of followup inspections. The inspectorate may also make proposals to courts’ administrative authorities and to the Judicial Service Commission for the imposition of disciplinary penalties on judges, prosecutors and investigating magistrates (see “Disciplinary measures” below). The work of the inspectorate is covered in the progress report of the Supreme Judicial Council. The Ministry of Justice Inspectorate oversees, among other things, the manner in which case registration and handling are managed, as well as closure of cases within the legal time-limits. This inspectorate organises thematic controls in accordance with a programme approved by the Ministry of Justice. It may make recommendations and supervises their implementation in the course of subsequent inspections. The Ministry of Justice Inspectorate is also responsible for overseeing application of the new CCvP and CCrP. During inspections already carried out, it has observed some of the causes of procedural delays and made recommendations in this regard. Furthermore, the presidents of the Supreme Court of Cassation and the Supreme Administrative Court are required to present annual reports on the functioning of trial and appeal courts, in addition to annual reports on their own activities ([sections 114(1) and (2) and 122(1) and (2)] of the [2007 Judiciary Act]). Lastly, each year the Supreme Judicial Council centralises and analyses the statistics on the work of all the country’s courts (cf. Appendix II). – Disciplinary measures Under the [2007 Judiciary Act], systematic failure to comply with the time-limits laid down in procedural laws, and action or inaction such as to delay proceedings in an unjustified manner, are disciplinary offences ([section] 307 § 4). The Judicial Service Commission has the power to impose disciplinary penalties (other than comment and reprimand, which are imposed by the hierarchical superior) on judges, prosecutors and investigating judges. The public bodies responsible for enforcing judicial decisions and the bodies responsible for entries in the land registry may be sanctioned by the Ministry of Justice ([section] 311). The authorities have stated that during the period 20072009 the number of disciplinary proceedings before the Supreme Judicial Council rose steadily (13 in 2007, 28 in 2008 and 83 in 2009). By way of example, in 2009 seven judges and one head of administration were sanctioned, mainly for systematic failure to comply with the time-limits laid down by law. Among them, three judges were dismissed and three others had their salaries reduced by 10 to 25% for periods of up to a year. – Longterm strategies The Bulgarian authorities have adopted several strategies on judicial reforms. For example, a criminal policy strategy for the period 20102014 has been adopted, the principal objective being to further reduce the excessive formalism of criminal procedure. It should be noted that the amendments to the 2010 CCrP were decided on the basis of this strategy (see above). Further, in 2009 the government adopted a plan to eradicate the causes of violations of the Convention found by the European Court in its judgments concerning Bulgaria. That plan was drawn up by a working party which included representatives of the Ministry of Justice as well as human rights activists. Among the tangible results obtained on the basis of this plan, should be mentioned the working party set up to introduce an application for compensation in cases of excessive length of judicial proceedings (see below). In June 2010 the government adopted the strategy on continued judicial reforms in Bulgaria following its accession to the European Union. 2) Measures relating to the effectiveness of remedies ... – Remedy concerning speeding up of criminal proceedings The provisions of Articles 368 and 369 of the new CCrP, which incorporated Article 239a of the 1974 CCrP, envisaged the possibility for the accused to request referral of his case to the competent court once a period of 1 to 2 years, depending on the gravity of the charges, had elapsed since the start of the preliminary inquiry. The court to which that request was submitted could order the prosecuting authority to complete the preliminary inquiry within a period of two months or else bring the criminal proceedings to an end. In the Ganchev judgment (No. 57855, §§ 26-34, 12 July 2007), the European Court declared the complaint based on Article 6 § 1 inadmissible for failure to exhaust the domestic remedies, because the applicant had not availed himself of the remedy provided for in Article 239a of the 1974 CCrP. However, it should be noted that in another case examined by the European Court (Shishkovi against Bulgaria, No. 17322/04, 25 March 2010), the application of Article 239a of the 1974 CCrP was the cause of the closure of a criminal inquiry into illtreatment. In that case the European Court found a violation of Article 3 of the Convention. Articles 368 and 369 were abrogated as from 28 May 2010. The authorities indicated in this connection that the abrogated provisions had mainly served as a reason for terminating the criminal proceedings, without guaranteeing a full inquiry. They consider that new provisions relating to the possibility of imposing disciplinary penalties for systematic failure to comply with timelimits or for unjustified delays could be seen as a guarantee of expeditious criminal proceedings (for more details, see the Government’s reply to one NGO’s observations on this point on the Committee of Ministers website: DHDD(2010)335). – Compensatory remedy The European Court has consistently pointed to the absence in Bulgarian law of a remedy enabling compensation to be obtained for excessive length of judicial proceedings (see, for example, the Mincheva against Bulgaria judgment cited above, § 107). In this connection the Government has indicated that, in the context of implementing a plan to eradicate the causes of the violations found by the European Court in judgments concerning Bulgaria, it has set up a working party to prepare a bill amending the law on the responsibility of the state and municipalities for prejudice caused to individuals. This bill envisages, in particular, the introduction of an application for compensation in cases of unjustified delay in the proceedings. This working party has drafted a bill providing that the state may be held responsible, in addition to the cases already settled, where unjustified delay in civil, criminal and administrative proceedings are attributable to the judicial authorities. As regards criminal proceedings, it should also be noted that certain forms of nonpecuniary redress exist in cases of excessive length of proceedings, such as the possibility of reducing the penalties. This form of redress has been recognised by the European Court as an effective remedy in certain circumstances (Bochev against Bulgaria judgment of 13 November 2008, § 83).” 54. A second appendix to the resolution contained statistical data on the processing of cases in the Bulgarian courts. It reads (footnotes omitted): “I. Statistics on length of judicial proceedings before the Bulgarian courts 1) Data for Bulgarian courts as a whole The general trend which emerges from the data available shows that, despite a resurgence in the number of cases registered, the number of cases terminated for all courts is on the increase (in 2009 it was 4.59% higher than in 2007, and 15.46% higher than in 2008). Similarly, the backlog facing the courts as a whole decreased for the second year running. Thus the decrease in the number of cases pending at the end of 2009 is of 10.26% as compared with 2007 and of 2.35% as compared with 2008. The number of judges, taking all courts together, was 2,162 in 2009, 1.45% more than in 2007 and 1.74% more than in 2008. 2) Supreme Court of Cassation – Criminal bench One consequence of the entry into force of the 2005 CCrP was a fall in the number of cases registered, since judgments delivered on appeal upholding the judgments delivered at first instance are now not subject to review by the Supreme Court of Cassation. Thus, while the criminal bench had examined 3,950 cases at public hearings in 2006, the corresponding figures for 2008 and 2009 were 2,081 and 1,955 cases respectively. In 2009 the criminal bench registered 131 cases more than in 2008, and its backlog also increased (from 279 cases at the end of 2008 to 383 cases at the end of 2009). However, that increase in the backlog had no major effect on the length of proceedings before the criminal bench. Indeed, in 2009, the proceedings following appeals in cassation and applications for reopening of procedures took between 3 and 4 months, as in 2008. ... 4) Appeal courts The backlog in the appeal courts is constantly decreasing. The number of cases pending at the end of 2009 (1,713) decreased by 45.89% as compared with 2007 and by 22.28% as compared with 2008. 5) Military [courts] The same trend is observed in military [courts]. In 2009, the backlog decreased by 52.07% as compared with 2007 and by 35.20% as compared with 2008. 6) Regional courts and the Sofia City [C]ourt The creation in 2007 of 28 administrative courts, as well as an agency responsible for entries in the commercial register, led to a significant decrease in the number of cases registered by regional courts in 2009 (42.73% fewer than in 2007 and 2.64% fewer than in 2008). Cases pending at the end of 2009 numbered 23,392, a figure 31.76% lower than in 2007 and 15.99% lower than in 2008. 7) District courts located in regional centres The backlog in these courts at the end of 2009 had grown by 1.05% as compared with 2007 and by 7.03% as compared with 2008. This increase is due to the rise in the number of cases they had to deal with in 2009 (23.05% more than in 2007 and 18.29% more than in 2008), and despite a larger number of cases terminated during that year (28.36% more than in 2007 and 20.70% more than in 2008). In 2009 the district courts located in regional centres registered 285,547 cases; 94,317 cases were registered by the Sofia district court, i.e. 33% of all cases newly registered with the courts in this category. 8) District courts located outside regional centres The backlog in these courts at the end of 2009 had fallen (by 12.64% as compared with 2007 and by 7.54% as compared with 2008) notwithstanding an increase in the number of cases they had to deal with (11.30% more than in 2007 and 15% more than in 2008). This trend was due to the increase in the number of cases terminated in 2009 (16.47% more than in 2007 and 19.72% more than in 2008). It is also to be noted that in 2009, 92,541 cases were concluded within three months, a figure 22.88% higher than for 2007 and 25.71% higher than for 2008. ... II. Statistics for the length of preliminary investigations In 2009, cases in which the preliminary investigation was under way numbered 213,151, a figure 4% higher than for 2008. Investigations started during 2009 numbered 139,894, 6% more than for 2008. Investigations initiated during the year represented 66% of investigations under way in 2009. The backlog at the start of 2009 consisted of 73,257 cases being investigated. The backlog at the end of 2009 consisted of 52,511 cases being investigated (as against 59,048 in 2007). As regards cases in which the investigation was suspended, their number fell from 961,713 in January 2007 to 654,334 at the end of 2009. In 98% of these cases, the reason for suspension is the impossibility of identifying the perpetrator of the criminal offence.” 55. In Resolution 1787 (2011) on the implementation of the Court’s judgments, adopted on 26 January 2011, the Parliamentary Assembly of the Council of Europe noted “with grave concern” the continuing existence of “major systemic deficiencies which cause large numbers of repetitive findings of violations of the Convention and which seriously undermine the rule of law” in some Member States of the Council of Europe. One of those was the “excessive length of judicial proceedings” (paragraph 5.1). The Assembly, in particular, urged Bulgaria to, inter alia, “pursue its efforts to solve the problem of excessive length of court proceedings” (paragraph 7.1 in fine).