CASE OF KARAMITROV AND OTHERS v. BULGARIA
Violation of Art. 6;Violation of Art. 13+6;Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Violation of Art. 13+P1-1
Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
7. On the night of 14 October 1991 a car was stolen from an unsecured car park. Early in 1992 a preliminary investigation in respect of the theft was opened against an unknown perpetrator. 8. On 28 May 1992 the first applicant was stopped by the police while driving the car of his parents – the second and third applicants. The police established a discrepancy between the numbers on the chassis of the vehicle and those in the registration documents of the vehicle which had been issued by the Pazardzhik Traffic Police on 17 July 1973. They seized and impounded the car in order to check its registration documents and ownership. The first applicant was questioned regarding the discrepancy in the car’s registration documents both on the above date and on 4 June 1992. 9. The investigating authorities commissioned a technical examination of the seized vehicle. In a report of 14 April 1993 the technical expert concluded that the number plate on the chassis of the car was not the original, but had been changed. 10. On 8 June 1993 the first applicant was charged with being an accessory to the theft of the car on 14 October 1991. He was questioned on the same day and then released. A restriction was imposed on the first applicant, not to leave his place of residence without the consent of the Prosecution Office. 11. No further investigative procedures were conducted in the course of the preliminary investigation. 12. On 3 April 1995 the first applicant complained to the Pazardzhik District Prosecution Office about the length of the criminal proceedings. He did not receive a response. 13. Subsequently, the first applicant lodged similar complaints with the Pazardzhik District Prosecution Office, the Pazardzhik Regional Prosecution Office, the Plovdiv Appellate Prosecution Office and the Chief Prosecutor about the length of the criminal proceedings. He did not receive a response to any of them. 14. Sometime in 1998 the investigator in charge of the preliminary investigation died, while the assistant investigator retired. The first applicant’s case was never reassigned to another investigator. 15. Sometime in September 1999 the first applicant lodged another complaint about the length of the criminal proceedings with the Supreme Cassation Prosecution Office. In response, the Plovdiv Appellate Prosecution Office was instructed to investigate the first applicant’s complaint. 16. In a decision of 20 October 1999 of the Pazardzhik District Prosecution Office the preliminary investigation was discontinued in respect of the first applicant as unproven. The restriction on the first applicant not to leave his place of residence without the consent of the Prosecution Office was removed. 17. The criminal proceedings continued, against an unknown perpetrator, until 27 September 2004 when the Pazardzhik District Prosecution Office terminated them due to the expiry of the statute of limitations for the offence. In its decision, the Prosecution Office expressly noted that no investigative procedures had been conducted in the proceedings after 8 June 1993, the date on which the first applicant was arrested and charged. 18. The car was seized and impounded by the police on 28 May 1992 in order to check its registration documents and ownership. No protocol of seizure was prepared and the second and third applicants were not given a receipt or any other document evidencing the impounding of the vehicle. 19. The car remained impounded by the police for the duration of the preliminary investigation against the first applicant as physical evidence of the offence. 20. On 9 November 1994 the person from whom the car had allegedly been stolen on 14 October 1991 requested possession of the vehicle. 21. The question of returning the vehicle to the second and third applicants was raised by the first applicant in his complaints regarding the length of the criminal proceedings lodged with the Pazardzhik District Prosecution Office on 3 April 1995, the Supreme Cassation Prosecution Office on 19 October 1999 and the Chief Prosecutor in September 1999. No action was taken in response to any of them. 22. In its decision of 20 October 1999 to terminate the criminal proceedings against the first applicant the Pazardzhik District Prosecution Office noted that no protocol or other document existed to show “who, when, why and how” the vehicle of the second and third applicants had been seized and impounded. Nevertheless, the Prosecution Office ordered that the car be handed over to the person from whom it had allegedly been stolen on 14 October 1991 because it considered that, inter alia, on the basis of the investigative procedures performed during the preliminary investigation she was the owner of the vehicle. The applicants appealed against the decision in respect of the order to hand over the car to another person. 23. On an unspecified date the police handed over the car of the second and third applicants to the person from whom it had allegedly been stolen. 24. In a decision of 10 November 1999 the Pazardzhik Regional Prosecution Office upheld the decision of the Pazardzhik District Prosecution Office on grounds similar to those contained in the latter’s decision. The applicants appealed further. 25. On 18 November 1999 the Plovdiv Appellate Prosecution Office quashed the above decisions of the lower-level Prosecution Offices. It found, inter alia, that it was not within their competencies to determine the ownership of the vehicle and, in view of the termination of the preliminary investigation against the first applicant, the car had to be returned to the persons from whom it had been seized. It further found that the seizure of the vehicle and the resulting impounding had been unlawful because at the time the seizure had been made no protocol to that effect had been executed. The person to whom the car had been handed over appealed against the decision. 26. In a decision of 10 March 2000 the Supreme Cassation Prosecution Office upheld the decision of the Plovdiv Appellate Prosecution Office on grounds similar to those contained in the latter’s decision. 27. The car was returned to the second and third applicants on 19 May 2000. As a result of the period of impounding it had been damaged – its paintwork had deteriorated and the radiator was cracked. Parts of the car were also missing, such as two spark plugs and cables, the left headlight, the spare tyre, the indicators, the cover of the right back brake light, the door handles and other things. They estimated the damage to be worth around 100 Bulgarian levs (approximately 51 euros). The first applicant, who signed the protocol of transfer, made a reservation that he would make a further assessment of the damage caused to the vehicle and that a subsequent claim might be filed against the District Prosecution Office in that respect. 28. The second and third applicants did not initiate any action to seek compensation for the alleged damage caused to the vehicle. 29. Paragraphs 1, 2 and 4 of Article 107 of the Code of Criminal Procedure (1974) provided as follows: “(1) Physical evidence must be carefully examined, described in detail in the respective record, and photographed, if possible. (2) Physical evidence shall be attached to the case file while at the same time measures shall be taken not to spoil or alter the evidence. ... (4) Physical evidence which, because of its size or other reasons, cannot be attached to the case file, must be sealed, if possible, and deposited for safekeeping at the places indicated by the respective authority.” 30. Paragraphs 1 and 2 of Article 108 of the Code, as in force at the relevant time and until 1 January 2000, provided as follows: “(1) Physical evidence shall be held until the termination of the criminal proceedings. (2) Chattels which have been collected as physical evidence can be returned to their owners before the termination of criminal proceedings only as long as this will not hinder the establishment of the facts in the case.” 31. Article 108 paragraph 2 of the Code was amended on 1 January 2000 to clarify that it was within the powers of the Prosecution Office to rule on requests for the return of chattels held as physical evidence. In addition, a right of appeal to a court was introduced against refusals by the Prosecution Office to return such chattels (Article 108 paragraph 4 of the Code of Criminal Procedure as in force after 1 January 2000). 32. If a dispute over ownership requiring adjudication by the civil courts arose in respect of items held as physical evidence, the authorities were obliged to keep those items safe until the relevant judgment became final (Article 110). 33. The Code of Criminal Procedure (1974) was replaced in 2006 by a new code of the same name. 34. Section 1 (1) of the State and Municipalities’ Responsibility for Damage Act of 1988 (the “SMRDA”: title changed in 2006) provided, as in force at the relevant time, as follows: “The State shall be liable for damage caused to [private persons] from unlawful acts, actions or inactions of its apparatus and officials [in the exercise] of administrative duties.” 35. Section 2 of the SMRDA provides as follows: “The State shall be liable for damage caused to [private] persons by the [apparatus] of ... the investigation authorities, the prosecution authorities, the court ... for an unlawful: 1. detention ... ; 2. charge for an offence, if the person has been acquitted or the opened criminal proceedings have been terminated because the act was not perpetrated by the person [in question] or the act is not an offence ... ; 3. sentence ... ; 4. ... forced medical treatment ... ; 5. ... imposition of administrative sanctions ... ; 6. enforcement of an imposed sentence in excess of the determined period ... ” 36. Compensation awarded under the Act comprises all pecuniary and non-pecuniary damage which is the direct and proximate result of the illegal act of omission (section 4). The person aggrieved has to lodge an “action ... against the [entity] ... whose illegal orders, actions, or omissions have caused the alleged damage” (section 7). Compensation for damage arising from instances falling under section 1 and 2 of the Act can only be sought under the Act and not under the general rules of tort (section 8 § 1). 37. The practice of the Bulgarian courts in the application of the Act has been very restrictive. 38. In particular, the domestic courts have ruled that liability for damage stemming from instances within the scope of section 1 of the Act are to be examined only under the Act and not under the general rules of tort (решение № 55 от 14.III.1994 г. по гр.д. № 599/93 г., ВС, IV г.о.). 39. Similarly, liability of the investigation and the prosecution authorities may arise only in respect of the exhaustively listed instances under section 2 (1) and (2) of the Act and not under the general rules of tort (решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС). No reported cases have been identified of successful claims for damage stemming from actions by the investigation or prosecution authorities which fall outside the list in section 2 of the Act. 40. Liability under section 2 of the Act may arise only for unlawful actions, but not for unlawful inactions by the investigation authorities, the prosecution authorities and the courts (решение № 183 от 05.IV.2001 г. по гр. д. № 1362/2000 г.). 41. Up to 2005 there existed conflicting domestic case law as to whether liability of the State arose under section 2 (2) of the Act in instances, such as in the present case, when criminal proceedings were discontinued as “unproven” (решение от 04.02.2003 г. по въззивно гр. д. № 1538/2002 г. на ПАС and решение № 1085 от 26.07.2001 г. по гр. д. № 2263/2000 г., IV г.о.). The issue was clarified by the General Assembly of the Civil Chambers of the Supreme Court of Cassation in Interpretative decision no. 3/2004 of 22 April 2005 (Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС) which found that section 2 (2) of the Act was applicable in such instances. 42. The Government presented two hundred and one judgments under the SMRDA where the domestic courts had found the State liable to pay damages to claimants. Of these cases (a) thirty-seven judgments were based on section 2 (2) of the Act and related to being unlawfully charged with an offence; (b) forty-seven were based on section 1 of the Act relating to unlawful acts by the administration; (c) a further one hundred and one were also based on section 1 of the Act but stemmed from unlawful actions or inactions by the administration; and (d) sixteen cases related to more specific complaints falling under Article 3 and 5 of the Convention. 43. In their submissions, the Government stressed the existence of a judgment delivered by the Pazardzhik District Court on 14 December 2005. In that case the domestic court had ordered the Pazardzhik District Police Authority to pay compensation for the pecuniary damage suffered by a claimant as a result of the former’s inactivity in keeping safe a vehicle seized as physical evidence in a case. A related claim in respect of non-pecuniary damage had been dismissed and the Prosecution Office had also been ordered to pay the claimant compensation for the non-pecuniary damage suffered as a result of being unlawfully charged with an offence. 44. In their submissions in reply, the applicants informed the Court of the subsequent development of the above-mentioned case. The judgment relied on by the Government had been appealed against both by the Pazardzhik District Police Authority and the Prosecution Office. The Pazardzhik Regional Court examined the appeal and delivered a final judgment on 10 June 2006. It quashed the first-instance court’s judgment in respect of the liability of the Pazardzhik District Police Authority for the damage to the claimant’s vehicle as it found that the police’s actions, or inactions, as they related to the safekeeping of a vehicle as physical evidence, did not fall within the definition of “administrative duties” under section 1 nor under any of the instances under section 2 of the Act. Thus, the police could not be held liable for their actions or inactions in similar such instances. Separately, the Pazardzhik Regional Court upheld the first-instance court’s judgment against the Prosecution Office. 45. The Obligations and Contracts Act provides in section 45 that a person who has suffered damage can seek redress by bringing a civil action against the person who has, through his fault, caused the damage. Under section 110 the claim for damage is extinguished with the expiry of a five year prescription period.