I incorrectly predicted that there's no violation of human rights in SHIYANKOVA-KASAPSKA v. BULGARIA.

Information

• Judgment date: 2021-12-21
• Communication date: 2020-10-02
• Application number(s): 10108/16
• Country:   BGR
• Relevant ECHR article(s): 6, 6-1, 35
• Conclusion:
  Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings
  Article 6-1 - Reasonable time)
• Result: Violation
SEE FINAL JUDGMENT

JURI Prediction

• Probability: 0.540501
• Prediction: No violation

• Inconsistent

Communication text used for prediction

1.
The applicant, Ms Stefanka Sotirova Shiyankova-Kasapska, is a Bulgarian national who was born in 1942 and lives in Sofia.
2.
The facts of the case, as submitted by the applicant and as appearing from the documents in the possession of the Court, may be summarised as follows.
3.
On 19 February 1994 the applicant’s husband was charged with a criminal offence.
After the case went through three levels of jurisdiction, he was finally convicted on 12 March 2007.
4.
In July 2007 the applicant’s husband applied to the Court, complaining, inter alia, under Article 6 § 1 of the Convention of the length of those criminal proceedings (application no.
34441/07).
5.
In 2012, following a pilot judgment of the Court (see Dimitrov and Hamanov v. Bulgaria, nos.
48059/06 and 2708/09, 10 May 2011) and ensuing amendments to the Judiciary Act 2007 and the State and Municipalities Liability for Damage Act 1988, new compensatory remedies were put in place in Bulgaria with respect to the length of, inter alia, criminal proceedings (see paragraph 10 below).
6.
In the light of those new remedies, and in application of the principles set out in Valcheva and Abrashev v. Bulgaria (nos.
6194/11 and 34887/11, §§ 88-124, 18 June 2013), on 19 September 2013 the complaint of the applicant’s husband of the length of the criminal proceedings against him was rejected by a single judge under Article 35 § 1 and 4 of the Convention for non-exhaustion of domestic remedies.
7.
Having received the Court’s letter notifying her husband of the single judge’s decision, in a letter of 7 October 2013 the applicant informed the Court that her husband had died on 29 September 2012 and that she was his sole heir, and stated that she wished to pursue the application in his stead.
In a letter of 21 October 2013 the Court’s Registry advised the applicant that this was impossible, since her husband’s application had already been declared inadmissible and the case was no longer pending before the Court.
8.
On 15 November 2013 the applicant, as sole heir of her late husband, applied for compensation in respect of non-pecuniary damage under the new sections 60a et seq.
the 2007 Act (see paragraph 10 below).
In its report, drawn up in March 2015, the Inspectorate to the Supreme Judicial Council reviewed the unfolding of the criminal proceedings against the applicant’s late husband in detail, and found that their length had been unreasonable.
In the Inspectorate’s view, the applicant’s husband had been responsible for more than a year of delay, but the investigating and prosecuting authorities and the courts had, for their part, caused a total delay of nine years and nine months.
However, the Inspectorate went on to note that under the terms of section 60a(2) of the 2007 Act, an heir of the direct victim of unreasonably lengthy proceedings could not seek compensation, and that there was a statutory lacuna as to how to deal with such situations.
In a letter of 14 August 2015, the Deputy Minister of Justice told the applicant that her compensation request could not be examined, as she had not been party to the proceedings or an applicant before the Court, which in her case was a prerequisite for standing to seek compensation under sections 60a et seq.
of the 2007 Act read in conjunction with the relevant transitional provisions.
9.
The applicant did not seek judicial review of that letter.
Relevant LEGAL FRAMEWORK 10.
The new dedicated compensatory remedies with respect to the length of proceedings in Bulgaria – governed by the new sections 60a et seq.
of the Judiciary Act 2007 and the new sections 2b, 7(2) and 8(2) of the State and Municipalities Liability for Damage Act 1988 – have been described in detail in Valcheva and Abrashev (cited above, §§ 49-58).
11.
According to the case-law of the Supreme Administrative Court and the Supreme Court of Cassation under those provisions, the proper avenue of redress for someone whose compensation request under sections 60a et seq.
of the 2007 Act has been rejected as inadmissible by the Minister of Justice (or by an the official authorised by the Minister) is to seek judicial review of that decision by the administrative courts.
A claim for damages under section 2b of the 1988 Act before the civil courts is the proper avenue if the Minister (or the official authorised by the Minister) has examined the compensation request on the merits but has refused it, or if the person concerned has then declined to accept the settlement offer (see опр.
No 2665 от 25.02.2014 г. по адм.
д.
No 2489/2014 г., ВАС, VI о.; опр.
No 3992 от 24.03.2014 г. по адм.
д.
No 3558/2014 г., ВАС, VI о.; and опр.
No 10 от 05.01.2018 г. по гр.
д.
No 2643/2017 г., ВКС, III г.
о.).
12.
When reviewing a decision by the Deputy Minister of Justice to reject as inadmissible a request for compensation under sections 60a et seq.
of the 2007 Act by the daughter of someone who had been party to civil proceedings and had died after their end, the Supreme Administrative Court held that the right to seek compensation under those provisions belongs solely to the parties to the proceedings alleged to have lasted too long, that it cannot be inherited, and that their heirs thus have no standing to seek such compensation (see опр.
No 3762 от 28.03.2017 г. по адм.
д.
No 2322/2017 г., ВАС, VI о.).
COMPLAINT 13.
The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against her late husband were not completed within a “reasonable time”.