CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 15 mai 2003

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Rozakis , President ,   Mr   P. Lorenzen ,   Mr   G. Bonello ,   Mrs   F. Tulkens ,   Mr   E. Levits ,   Mrs   S. Botoucharova ,   Mr   A. Kovler, judges , and Mr S. Nielsen , Deputy Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 3 September 1998, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Petar Ivanov Djongozov, is a Bulgarian national who was born in 1946 and lives in Plovdiv. He was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by Ms G. Samaras, co-agent, of the Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 9 December 1994 a newspaper in the town of Parvomay, “Parvomay dnes”, published an article on the problems of the liquidation of State cooperative farms and the restitution of the agricultural land in the region. The article contained offensive allegations against the applicant who was a former chairman of the local commission in charge of the liquidation of the cooperatives. The title of the article, quoting the applicant, read “Do not hassle me, I have a yellow card” („Не ме закачайте, аз съм с жълта карта“). The latter expression means that the person in question is registered as mentally ill. The article’s author commented on the poor results of the commission’s audit, stating that they could be expected since its chairman was a “person of unsound mind” („невменяем човек“). The applicant was also referred to as a “wretch” („нещастник“). In February 1995 the applicant lodged with the Parvomay District Prosecutor’s Office a request for the opening of proceedings for criminal libel against the newspaper’s editor. On 6 March 1995 the competent prosecutor opened a preliminary inquiry with a view to the opening of criminal proceedings against the editor. On 2 March 1995 the applicant filed a civil action against the newspaper’s editor and publisher, alleging that the article had defamed him. He claimed non-pecuniary damages for injury to his reputation. The Parvomay District Court held its first hearing in the case on 13 April 1995. Counsel for the defendants moved the court to stay the proceedings, presenting a certificate from the Prosecutor’s Office to the effect that a preliminary inquiry had been opened. The court stayed the proceedings in accordance with Article 182 § 1 (d) of the Code of Civil Procedure (“CCP”), pending the outcome of the preliminary inquiry. The applicant appealed, arguing, inter alia , that the pending preliminary inquiry could not serve as grounds for the staying of the civil proceedings, the only such grounds being pending criminal proceedings. On 13 July 1995 the Plovdiv Regional Court upheld the lower court’s ruling, holding that the facts alleged in the civil action constituted criminal elements within the meaning of Article 182 §   1 (d) of the CCP. The only bodies competent to decide whether a criminal offence had or had not been committed were the prosecutor and the criminal courts. The eventual ruling of the criminal court would be res judicata for the civil court, as provided by Article 222 of the CCP. Therefore, the proceedings had been properly stayed. On 5 September 1995 the Parvomay District Prosecutor’s Office opened criminal proceedings against the journalist who had written the article against the applicant. The Parvomay District Court sent numerous letters to the District Prosecutor’s Office and to the District Investigation Service, inquiring about the status of the criminal proceedings. Such letters were sent on 22 April, 9   September and 15 November 1996, 4 February and 5 and 11 December 1997, 12 May, 15 July and 18 December 1998, 12 April 1999, 25 January and 13 September 2000, and 28 February 2001. On 23 March 1998 the applicant’s lawyer requested the Parvomay District Prosecutor’s Office to do the necessary for the speedy conclusion of the criminal proceedings. On 4 May 1998 he filed a complaint with the Plovdiv Regional Prosecutor’s Office, complaining that the criminal proceedings had lasted unreasonably long, thus preventing the resumption of the civil proceedings. By letter of 12 May 1998 the Parvomay District Prosecutor’s Office informed the applicant that the investigation would be completed within thirty days. On 21 May 1998 the Plovdiv Regional Prosecutor’s Office instructed the Parvomay District Prosecutor’s Office to finalise the investigation within fourteen days. On 1 July 1998 the Parvomay District Prosecutor’s Office replaced the investigator in charge of the case, noting that he had failed to perform the necessary investigative steps in time. On 7 November 2000 the Parvomay District Prosecutor’s Office discontinued the criminal proceedings because the relevant limitation period had expired. By decision of 22 November 2000 the Parvomay District Court affirmed the discontinuation. On 1 March 2001 the Parvomay District Prosecutor’s Office sent the case to the Parvomay District Court, which thereupon resumed the stayed civil proceedings. A hearing listed for 3 May 2001 was adjourned because the defendants had not been properly summoned. The next hearing was scheduled for 5 July 2001. The court noted that the defendants had again not been properly summoned and adjourned the case. As the summons sent to one of the defendants, the cooperative which had published the newspaper containing the allegedly defamatory article, was returned with a note that that cooperative had apparently been liquidated two years before that, the court instructed the applicant to produce a certificate of the cooperative’s current status. [1] On 21 August 2001 the court discontinued the proceedings, holding that the applicant had failed to comply with its instructions. The applicant appealed and on 8 January 2002 the Plovdiv Regional Court quashed the discontinuation and remitted the case. On 21 January 2002 the Parvomay District Court again requested the applicant to provide a certificate of current status of the defendant cooperative. As of the time of the latest information from the parties the proceedings were still pending before the first-instance court. B.     Relevant domestic law The CCP provides, in Articles 182 § 1 (d) and 183, that a court examining a civil action: “182.     ... shall suspend the proceedings: (d)     whenever criminal elements, the determination of which is decisive for the outcome of the civil dispute, are discovered in the course of the civil proceedings. 183.     Proceedings which have been suspended shall be resumed ex officio or upon a party’s petition after the respective obstacles have been removed...” Article 222 of the CCP provides: “The findings contained in a final judgment of a criminal court and concerning the issue whether the act in question has been committed, its unlawfulness and the perpetrator’s guilt, are binding on the civil court when it examines the civil consequences of the criminal act.” The new Article 217A of the CCP, adopted in July 1999, provides: “1.     Each party may file a complaint about delays at every stage of the case, including after oral argument, when the examination of the case, the delivery of judgment, or the transmitting of an appeal against judgment is unduly delayed. 2.     The complaint about delays shall be filed directly with the higher court, no copies shall be served on the other party, and no State fee shall be due. The filing of a complaint about delays shall not be limited by time. 3.     The chairperson of the court with which the complaint has been filed shall request the case file and shall immediately examine the complaint in private. His instructions as to the acts to be performed by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been filed. 4.     In case he determines that there has been [undue delay], the chairperson of the higher court may make a proposal to the disciplinary panel of the Supreme Judicial Council for the taking of disciplinary action.” COMPLAINTS 1.     The applicant complained under Article 6 of the Convention that the civil proceedings brought by him against the newspaper lasted unreasonably long mostly because of the excessive length of the concurrent criminal proceedings. 2.     The applicant complained under Article 8 of the Convention that the excessive length of the proceedings prevented him from effectively protecting his reputation. 3.     The applicant also complained under Article 13 of the Convention that he did not have an effective remedy against the alleged violation of Article 6 of the Convention. THE LAW 1.     In respect of his complaint about the length of the proceedings the applicant relied on Article 6 of the Convention, which provides, as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” The applicant also alleged that the excessive length of the proceedings resulted in a breach of Article 8 of the Convention, which provides, as relevant: “1.     Everyone has the right to respect for his private ... life ...” The Government conceded that the complaint was admissible. The applicant advanced several arguments for the admissibility of the complaint. He submitted that the Parvomay District Court had erroneously stayed the civil proceedings, as no criminal elements had been found to exist at the time of the staying. He also stated that the preliminary inquiry opened by the Parvomay District Prosecutor’s Office had dragged on for an unreasonable amount of time. As to the ensuing criminal proceedings, the only acts performed by the prosecution were their opening and subsequent discontinuation, within a timeframe of almost six years, and that despite the numerous letters sent by the court and the complaints of the applicant. Moreover, the authorities had continued to hold up the civil proceedings even after the discontinuation of the concurrent criminal proceedings. Given that during the pendency of the case one of the defendants had ceased to exist, the applicant had been indeed prevented from vindicating his reputation by obtaining damages for the alleged libel. The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required. 2.     The applicant also alleged a violation of Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The Government did not comment on this complaint. The applicant submitted that at the relevant time under Bulgarian law there were no effective remedies against unreasonably lengthy civil proceedings. Only in 1999 did the legislature adopt an amendment to the CCP, which created the institute of the “complaint about delays”. However, as of that time the proceedings had already lasted more than five years. Therefore, the remedy could not retroactively expedite them. Moreover, as the civil proceedings had been stayed to take into account the concurrent criminal proceedings, such a “complaint about delays” would have been futile. The Court considers that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares the application admissible, without prejudging the merits of the case.   Søren Nielsen   Christos Rozakis Deputy Registrar   President [1] .     Certificates of current status are issued by the register of companies kept at the Regional Courts.