FOURTH SECTION

CASE OF SVETLOZAR PETROV v. BULGARIA

(Application no. 23236/04)

JUDGMENT

STRASBOURG

7 June 2011

This judgment is final but it may be subject to editorial revision.

In the case of Svetlozar Petrov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Ljiljana Mijović, President,
	Lech Garlicki,
	Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 17 May 2011,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 23236/04) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Svetlozar Petrov (“the applicant”), on 10 June 2004.
2.  The applicant was represented by Ms S. Lyubenova - Neykova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent Mrs R. Nikolova, of the Ministry of Justice.
3.  On 11 December 2008 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1945 and lives in Pleven.
5.  On 3 April 1992 the applicant was appointed general manager of the state-owned company Republika EOOD (“the company”) under a contract executed between him and the Ministry of Industry (“the Ministry”).
6.  On 30 June 1995 the applicant signed a new contract with the Ministry pursuant to which he was to remain the general manger of the company until 1998.
7.  On 25 July 1995 the Ministry rescinded the latter contract and the applicant had to leave the position of a general manager.
8.  Believing the rescission to have been unlawful, on 16 August 1995 the applicant brought an action before the Sofia City Court, seeking remuneration under the contract of 1995. The action was directed against the company as a main defendant and the Ministry of Industry (“the Ministry”) as an additional defendant in the event of dismissal of the action against the company.
9.  The number of hearings held between August 1995 and October 1996 is not clear. It appears that a hearing was held in February 1996.
10.  For the period between October 1996 and March 2001 the Sofia City Court held hearings on 15 October 1996, 4 February 1997, 28 March 1997, 4 November 1997, 21 April 1998, 30 October 1998, 20 April 1999, 5 October 1999, 15 February 2000, 23 May 2000, 7 November 2000 and 27 March 2001. Four of these hearings were adjourned upon requests of the defendants or because of the absence of experts.
11.  In examining the case the court heard the parties and several experts who had to give an estimate of the amount of the applicant’s remuneration.
12.  By a judgment of 19 July 2001 the Sofia City Court dismissed the applicant’s action against the company and partially granted it against the Ministry. The court held that a party under the contract of 1995 and the proper defendant in the case before it was the Ministry which had been responsible for rescinding the contract. The Ministry was liable to pay the full amount of the agreed remuneration, which was established to be 5,631.28 Bulgarian levs (BGN), the equivalent of 2,879.23 euros (EUR). The court ordered the Ministry to pay this amount, plus interest and BGN 230 (EUR 117.57) in costs.
13.  The applicant and the company did not appeal.
14.  The Ministry appealed, contending, inter alia, that it had acted on behalf of the company as a representative of the owner of its capital and that therefore the company was the proper defendant in the proceedings. Moreover, the contract explicitly stipulated that the applicant’s remuneration was to be paid by the company.
15.  By a judgment of 30 June 2002 the Sofia Court of Appeal quashed the Sofia City Court’s judgment in so far as it granted the claim against the Ministry. It held that although the contract had been signed by the Minister, the company was a party to it because the Minister had not acted as a head of the Ministry but as a representative of the owner of the capital, appointing the general manager of the company. Therefore, it was the company’s responsibility that had to be engaged. The court, however, was barred from examining the action against the company because neither the applicant, nor any of the other parties had appealed against the dismissal by the Sofia City Court of the action against the company. The judgment of the Sofia City Court had thus become final in respect of the company.
16.  The applicant filed a cassation appeal.
17.  By a final judgment of 13 January 2004 the Supreme Court of Cassation dismissed the appeal and upheld the judgment of 30 June 2002, finding that the company, not the Ministry, had been party to the 1995 contract. As to the applicant’s argument that the merits of his action against the company had not been examined, the court held that the Sofia City Court had examined and dismissed that action. As the applicant had not appealed, despite the interest to do so, the Sofia Court of Appeal and the Supreme Court of Cassation were barred from examining the issue again.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS
18.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
19.  The Government argued that the applicant’s case was examined within a reasonable time. The case was complex because it included several defendants and required two expert opinions. The Sofia City Court held hearings on a regular basis in so far as this was possible in view of its workload. Furthermore, the applicant was responsible for some of the delays as he put additional questions to the experts and requested adjournments.
20.  The applicant argued that no delays were imputable to him as all his actions had been aimed at the establishment of the true facts and the proper presentation of his case.
21.  The period to be taken into consideration began on 16 August 1995 when the applicant initiated the proceedings (see paragraph 8 above). It ended on 13 January 2004, when the Supreme Court of Cassation gave a final judgment in the case (see paragraph 17 above). It thus lasted eight years, four months and twenty-eight days for three levels of jurisdiction.
A.  Admissibility
22.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
23.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
24.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above and Rachevi v. Bulgaria, no. 47877/99, 23 September 2004). Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, the Court notes that the proceedings remained pending before the Sofia City Court for a period of about six years, which is excessive in itself in the absence of concrete justification. No such justification was advanced by the Government. The Court also finds that no unwarranted delays could be attributed to the applicant.
25.  In view of the above, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
26.  There has accordingly been a breach of Article 6 § 1.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE FAIRNESS OF THE PROCEEDINGS
27.  The applicant also complained under Article 6 § 1 that his right to a fair trial had been violated in that his claim against the company had not been examined on the merits.
28.  The Government argued that the applicant had been given the opportunity to present his case and to challenge the arguments of the other parties. The outcome of the proceedings and, in particular, the impossibility for the second and final instance courts to examine again the action against the company had been caused by the applicant’s failure to appeal against the judgment of 19 July 2001 in so far as it dismissed that action. The Court of Appeal and the Supreme Court of Cassation had been barred from examining the action because the parties had delimited the subject-matter of the proceedings. In a separate set of proceedings against the company, in a judgment of 16 December 1998, the applicant had been awarded amounts for unpaid remuneration.
29.  The applicant replied that the Sofia Court of Appeal and the Supreme Court of Cassation had erred in finding that the Ministry was not liable under the 1995 contract. This resulted in a denial of a fair trial. The applicant explained that he had not appealed against the dismissal of the action against the company, believing that the Ministry was the proper defendant. The applicant also submitted that he had not received the remuneration sought in the 1995-2004 proceedings and that his financial losses had not been recovered.
30.  The Court notes at the outset that it is unclear whether it can be said, as the applicant suggested, that his action against the company was never examined in substance. It reiterates that the mere fact that a legal action was held to be inadmissible does not mean that the applicant was denied access to a court, provided that the dispute which he submitted for adjudication was the subject of a genuine examination (see Velikovi and Others v. Bulgaria, nos. 43278/98 et al., § 260, 15 March 2007; Yanakiev v. Bulgaria, no. 40476/98, § 69, 10 August 2006; and, mutatis mutandis, Obermeier v. Austria, 28 June 1990, § 68, Series A no. 179). It is true that the Sofia City Court declared the applicant’s claim against the company inadmissible but it did so apparently on the basis of its view that the company was not liable as claimed by the applicant and solely the Ministry was liable in the circumstances.
31.  The Court need not decide on this point, however. It finds that even if it is accepted that the Sofia City Court did not provide a genuine examination of the claim against the company, it was open to the applicant to obtain such examination by appealing to the higher courts.
32.  In so far as the applicant alleges that he was misled in not doing so by the Sofia City Court’s judgment, the Court notes that the applicant, who was legally represented, directed his action against two defendants alleging their liability for the rescission of the 1995 contract. It was clear that despite certain overlap, the facts and legal issues relevant to the alleged liability of each defendant were not identical. Had the applicant wished to pursue his claim that not only the Ministry, but also the company, was liable to pay him remuneration under the 1995 contact, he was free to appeal against the judgment of the Sofia City Court. As he failed to do so, he cannot claim that the State was responsible for the fact that his claim against the company was not examined further. This clearly distinguishes the present case from the case of Kostadin Mihaylov v. Bulgaria, no. 17868/07, 27 March 2008, where the applicant was denied access to a court because of lack of clear provisions and conflicting positions of the domestic courts as to which State body was liable for damages resulting from unlawful decisions of the social security authorities (see paragraphs 40-43 of the judgment).
33.  In these circumstances, the Court does not find any indication that the authorities deprived the applicant of access to a court for the determination of his claim against the company or that the 1995-2004 proceedings were otherwise tainted by arbitrariness or unfairness. In so far as the applicant claims that there had been errors, the Court reiterates that it is not a court of appeal from the decisions of domestic courts and that, as a general rule, it is for those courts to interpret domestic law and assess the evidence before them. The Court’s role is confined to ascertaining whether the proceedings considered as a whole were fair (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I and Kern v. Austria, no. 4206/02, § 61, 4 February 2000).
34.  It follows that the above complaint is manifestly ill-founded and must be dismissed in accordance with Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
35.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
36.  The applicant claimed BGN 5,631.28 or EUR 2,888 euros (EUR) in respect of pecuniary damage which was equal to the amount of the compensation granted to him by virtue of the judgment of 19 July 2001, plus interest as of 16 August 1995. He further claimed non-pecuniary damage for the anguish he sustained as a result of the length of the proceedings, leaving the determination of the exact amount to the Court’s discretion.
37.  The Government contested the claims as unfounded. In respect of the non-pecuniary damage, the Government submitted that the finding of a violation would constitute sufficient just satisfaction.
38.  The Court notes that the sole basis on which the applicant can be granted just satisfaction is the breach of the "reasonable time" requirement under Article 6 § 1. It does not consider that this violation had a sufficient causal link with the pecuniary damage alleged by the applicant. It therefore rejects this claim. On the other hand, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards award him EUR 1,600 under that head.
B.  Costs and expenses
39.  The applicant claimed BGN 230 or EUR 118 in costs and expenses, without specifying their type. In additional submissions he clarified that they concerned the proceedings before the Court. He also claimed costs and expenses in the event of a hearing before the Court.
40.  The Government contested that the applicant had not specified the nature of the claimed costs and had not presented any evidence that these costs had been actually incurred.
41.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the fact that the applicant failed to produce any documents showing that the costs and expenses claimed had actually been incurred, the Court rejects the claim for costs and expenses (see Zakharov v. Russia, no. 14881/03, § 38, 5 October 2006 and Grzelak v. Poland, no. 7710/02, § 115, 15 June 2010).
C.  Default interest
42.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the excessive length of the proceedings;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 1,600 (one thousand six hundred euros) in respect of non-pecuniary damage, to be converted into Bulgarian levs at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 7 June 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Ljiljana Mijović
	Deputy Registrar	President