CASE OF STANKOV v. BULGARIA
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings
Peer Lorenzen
5. The applicant was born in 1952 and lives in Sofia. 6. On 15 September 1994 the applicant, who had several convictions and had served a number of prison terms, was charged with the theft of construction material from a warehouse. It was alleged that he had been one of the members of a group that had committed thefts. 7. The applicant did not appear when summoned for questioning and on 26 July 1995 he was arrested and remanded in custody, by order of an investigator or a prosecutor. He remained in detention throughout the investigation proceedings and the trial. 8. On 10 March 1997 the Sofia City Court acquitted the applicant. He was released on 17 March 1997. 9. Upon the prosecutor's appeal, the acquittal was upheld by the Supreme Court of Cassation on 11 December 1997. The Supreme Court of Cassation found, inter alia, that at the outset there had been clearly insufficient proof of the applicant's involvement in the thefts. In particular, a police officer had testified that the only reason for suspecting the applicant had been the presence of his name on an internal police list of nicknames as the person behind the nickname “Kolio Transki”. 10. On an unspecified date in 1998 the applicant brought an action against the Chief Public Prosecutor's Office, seeking damages in respect of his pre-trial detention. He relied on section 2 (1) and (2) of the State Responsibility for Damage Act (see paragraphs 22-25 below). 11. The applicant sought non-pecuniary damages for the suffering caused by his pre-trial detention, which had lasted one year, seven months and twenty-one days. In his initial claim he sought 11,000,000 “old” Bulgarian levs (“BGL”). In the course of the proceedings he increased the claim to BGL 47,000,000 (the equivalent of approximately EUR 23,600), including interest, which in his view was to be calculated as from 26 July 1995, the date of his arrest. 12. The Sofia City Court delivered its judgment on 9 February 1999. It held that the State was liable to pay all damage suffered by the applicant as a result of his “unlawful pre-trial detention” and the “unlawful bringing of charges” against him. 13. The court stated, inter alia: “[The Chief Prosecutor's Office] has not exercised the necessary supervision over the Sofia City prosecutors and the investigation authorities which, during a period of [more than two years], mounted an unjustified criminal prosecution against [the applicant] on charges of theft ...They remanded him in custody, imposing the harshest measure of judicial control, which resulted in [the applicant] spending nineteen months and fifteen [sic] days in detention...[The applicant] has undoubtedly suffered non-pecuniary damage... ” 14. As to the amount, the court considered that the length of the detention should be taken into consideration and rejected as unproven the applicant's contention that his health had deteriorated as a consequence of his detention. Deciding on an equitable basis, the court awarded to the applicant BGL 2,000,000 in non-pecuniary damages (the equivalent of approximately EUR 1,050) plus interest from the date on which the applicant had been acquitted with final effect, 11 December 1997. The court dismissed the remainder of the applicant's claim for damages. 15. The court further applied section 10 § 2 of the State Responsibility for Damage Act (see paragraphs 20 and 21 below) and ordered the applicant to pay BGL 1,800,000 (the equivalent of approximately EUR 940) in court fees. That amount represented 4% of the dismissed part of the applicant's claims. 16. The applicant appealed to the Sofia Appellate Court. He averred, inter alia, that the sum awarded in damages was too low and that it was unlawful to order him to pay court fees in an amount almost equal to the compensation award. 17. On 13 December 1999 the Sofia Appellate Court dismissed the appeal. As regards the court fees, it stated that section 10 § 2 of the State Responsibility for Damage Act was unambiguous and required the payment of court fees proportionately to the dismissed part of the claim. In the applicant's case, he had indicated an excessive amount in his claim and had thus himself brought about the situation complained of. 18. The applicant submitted a cassation appeal to the Supreme Court of Cassation which was dismissed by judgment of 16 August 2000. As regards the costs, the Supreme Court of Cassation reiterated the position taken by the Sofia Appellate Court. It stated that although no initial payment of court fees was required when bringing proceedings under the State Responsibility for Damage Act, in accordance with its section 10 § 2 the plaintiff was liable for fees in an amount proportionate to the dismissed part of the claim. By setting his claims at an excessive level, the applicant himself had caused his liability for a substantial amount in court fees. 19. In civil proceedings in Bulgaria, the general rule is that court fees are payable by the plaintiff in advance, upon the submission of the claim (Article 55 of the Code of Civil Procedure and sections 1-4 of the State Fees Act). A court fee at the flat rate of 4% is payable in respect of pecuniary claims (Fees Schedule 1 to the State Fees Act). Where the plaintiff succeeds fully or partly, the defendant is ordered to pay him his costs, including court fees, proportionately to the successful part of the claim. 20. By section 10 § 2 of the State Responsibility for Damage Act, in proceedings under the Act, no court fees or costs are payable by the plaintiff upon the submission of the claim. However, in circumstances where the claim is eventually wholly or partly dismissed, the court is to order the plaintiff to pay “the court fees and costs due”. The courts have interpreted the above provision as meaning that the plaintiff should pay court fees calculated as a pro rata percentage of the dismissed part of his claims. Article 63 § 1(b) of the Code of Civil Procedure provides for waiver of the fees in cases of indigence but concerns fees due upon the submission of the claim (argument from Supreme Court judgment no. 707 of 30.10.1995 in case no. 549/95). 21. As a result of section 10 § 2, where a court holds that a claim against the State is well-founded but excessive in quantum, it orders the State body concerned to pay damages to the plaintiff and at the same time orders the plaintiff to pay court fees to the State budget. Where the plaintiff indicated too high an amount in the claim form, the court fees may exceed the sum awarded in damages, the overall financial award being in favour of the State despite the finding that the plaintiff suffered damage which called for compensation under the Act (see, for example, the following judgments of the Supreme Court of Cassation: judgment no. 1095 of 25.07.2000 in case no. 139/2000 and judgment no. 805/05 of 1.08.2005 in case no. 56/2004). There is no provision for judicial discretion and considerations of equity play no role in fixing the court fees' amount. The court fees are fixed with reference to the amount indicated in the claim form, even if in the course of the proceedings the plaintiff makes a binding declaration waiving part of the claim (Interpretative Decision no. 3 of 22 April 2005, Supreme Court of Cassation). 22. Section 2 of the State Responsibility for Damage Act of 1988 provides, as relevant: “The State shall be liable for damage caused ... by the organs of ... the investigation, the prosecution, the courts ... for: unlawful pre-trial detention ..., if [the detention order] has been set aside for lack of lawful grounds... unlawful bringing of criminal charges, if the person concerned has been acquitted or the proceedings discontinued on the following grounds:...” 23. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the State Responsibility for Damage Act have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.). 24. The following paragraphs – which draw on a summary report prepared by the research division of the Court's registry – describe relevant aspects of the system of court fees and costs in several member States representing different legal traditions, with emphasis on court fees in proceedings for damages against the State in cases where the respective domestic law provides for compensation for pre-trial detention. 25. The general rule with regard to compensation claims lodged with an administrative court (section 56 (11) of the State Fees Act) is that a state fee of 3 % of the amount claimed - but not less than 80 kroons (EUR 5) and no more than in civil court proceedings concerning an equivalent amount – is charged when the claim is brought. In case non-pecuniary damages are claimed but the amount of the compensation is left to the discretion of the court, a simple fee of 1,000 kroons (EUR 64) is due (section 56(12)). 26. The Unjust Deprivation of Liberty (Compensation) Act (Riigi poolt isikule alusetult vabaduse võtmisega tekitatud kahju hüvitamise seadus), which concerns, inter alia, criminal proceedings that ended in acquittal or were discontinued, provides that the individual concerned can lodge a compensation request with the Ministry of Finance. No fees are involved. The amount of compensation is fixed by the Act: it is 7/30 of the national monthly minimum salary (enacted by the Government) per day of detention. There is a presumption that this compensation covers non-pecuniary damage and loss of profit. 27. Compensation for pecuniary damage is regulated by the State Liability Act. In accordance with section 22 (1)(3) of the State Fees Act (which came into force on 1 January 2007), no fee is payable on a claim lodged with an administrative court for pecuniary damage caused by deprivation of liberty. 28. A claim for damages against the State can be brought under the Tort Liability Act. The court fee is approximately EUR 100-150, depending on the procedural actions undertaken by the court, regardless of the amount claimed. 29. Two avenues of redress are open in such cases: an administrative claim to the State Treasury in accordance with the Act on Compensation out of State Funds to Detainees or Convicts Found to Have Been Innocent (no. 422/1974 as amended) or a civil action for damages under the aforementioned Tort Liability Act. In either case no court fees are due in cases of detainees or acquitted persons. 30. Since 1993 the State has been responsible for paying court costs in respect of criminal proceedings. Article 149 of the Code of Criminal Procedure provides for a right to be compensated for all pecuniary and non-pecuniary damage sustained as a result of pre-trial detention in cases of acquittal or discontinuation of the proceedings. The claim is filed with the President of the Court of Appeal in whose area the criminal case was decided. All fees and costs in these proceedings are borne by the State. 31. Actions for damages for unlawful detention are adjudicated by the civil courts. Proceedings for damages against the State may also be instituted before the administrative tribunals, where the wrongful conduct was imputable to the public administration. 32. Court fees are in fixed amounts, irrespective of the sum claimed. The fees are different for first instance and appellate courts and modest in quantum: none of them exceeds EUR 30, according to the Decree no. 285 of 13 November 2002. 33. Actions for damages for unlawful detention are exempt from court fees (Article 15(g) of the Court Fees Act (no. 146/1997). In proceedings involving compensation claims against the State, the maximum fee is the equivalent of approximately EUR 10 (Article 3(m) of the Act). As to costs and expenses, at the conclusion of the proceedings, the losing party has to reimburse the other party's costs and expenses. 34. Claims for damages for unlawful detention are examined by ordinary courts in civil proceedings. Plaintiffs are exempt from court fees (Article 333.36, Sections 1(10) and 3 of the Tax Code) and the court cannot order the plaintiff to pay such fees at the end of the proceedings, even if the claim was partially or fully dismissed. 35. The successful party is entitled to the reimbursement of its costs. If an action succeeds only partly, the costs are divided proportionately between the parties (Article 98(1) of the Code of Civil Procedure). The defendant is required to pay into the federal budget a fee, from which the plaintiff is exempt, in proportion to the allowed part of the claim (Article 103(1) of the Code of Civil Procedure). 36. There are two possibilities for seeking damages for unlawful detention in Sweden. The first is an administrative quasi-judicial procedure before the Chancellor of Justice, who can award compensation in fixed amounts. There is no fee for the claimant. The second possibility is a civil action for damages before the civil courts, for which a modest fixed court fee is payable regardless of the amount of the claim. Also, the claimant who loses the case must pay the other party's costs 37. An action for damages against the state for unlawful detention is called a “claim for false imprisonment” which is treated as an action in trespass to the person (i.e. a personal injury claim) and is brought in the civil courts. Taking into account the money value of the claim and the complexity of the case, the court will allocate the case to one of three tracks: the “small claims” track, the “fast-track” or the “multi-track.” An action for false imprisonment is likely to be allocated to the multi-track. 38. There are several types of court fees that the claimant has to pay in proceedings for false imprisonment. The first one is the “issue fee”, charged for filing the claim. It depends on the amount of money claimed in accordance with a decreasing table. For example, the issue fee for claims of up to 300 British pounds (GBP) is GBP 30, for claims between GBP 5,000 and 15,000 it is GBP 250 and for claims between GBP 50,000 and 100,000 it is GBP 700. The higher issue fee, charged for claims of GBP 300,000 and higher, is GBP 1,700. 39. When a defence is filed, the court allocates the case to a track and orders the claimant pay an “allocation fee” in the amount of £100 (except for claims not exceeding GBP 1,500 for which no allocation fee is due). Finally, for matters that go to trial, a “trial fee” is payable as follows: in multi-track cases – GBP 500 and in fast-track cases – GBP 275, no fee being due for small claims track cases. 40. In respect of all fees, the court may decide that the claimant does not have to pay a court fee (exemption), or that he/she may pay a smaller fee (remission). That is usually done in cases involving indigent claimants. 41. When deciding on the award to be granted to the claimant, the courts enjoy a wide power to limit the amount that a party may recover with regard to the trial costs. According to the Civil Procedure Rules, the court is “to have regard to all the circumstances” in determining what costs are payable (r.44.5(1)). Those circumstances specifically include those set out in r.44.5(3), namely: (a) the procedural conduct of all the parties, including in particular, the efforts made, if any, before and during the proceedings in order to try to resolve the dispute; (b) the amount involved; (c) the importance of the matter to all the parties; (d) the particular complexity of the matter or the difficulty or novelty of the questions raised; (e) the skill, effort, specialised knowledge and responsibility involved and (f) the time spent on the case;. 42. There is a constitutional presumption that unreasonable charges would not be imposed in the court proceedings (Murphy v. the Minister for Justice and others, Supreme Court judgment of 9 March 2001, [2001] IESC 29).