FIFTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53329/99 
by Lalka Raichova TOEVA 
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 9 May 2006 as a Chamber composed of:

Mr P. Lorenzen, President
 Mrs S. Botoucharova
 Mr K. Jungwiert
 Mrs M. Tsatsa-Nikolovska
 Mr R. Maruste
 Mr J. Borrego Borrego, 
 Mrs R. Jaeger, judges
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 22 June 1999,

Having regard to the partial decision of 9 September 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

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, Mrs Lalka Raichova Toeva, is a Bulgarian national who was born in 1961 and lives in the village of Lozno. On 22 March 2005 the President of the Chamber granted the applicant leave, under Rule 36 § 2 in fine of the Rules of Court, to present her own case in the proceedings before the Court.

The respondent Government were represented by their Agent, Ms M. Karadjova, 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.

1.  The applicant’s accusations against Mr B.

On 25 or 26 May 1993 the applicant filed a complaint with the Kyustendil District Prosecutor’s Office accusing Mr B. that he raped her at the beginning of January 1993, that she had conceived as a result and that she subsequently had to have an abortion.

In response to the applicant’s accusations, the Kyustendil District Prosecutor’s Office opened an inquiry on 27 May 1993 and instructed the Kyustendil Police to investigate the applicant’s accusations against Mr B.

Subsequently, the Kyustendil Police conducted a search of Mr B.’s home, questioned all the persons involved and issued official reprimands to Mr B. and the applicant’s husband. In the applicant’s written testimony of 17 June 1993 she sustained her accusations of rape against Mr B.

On 12 July 1993 the Kyustendil District Prosecutor’s Office decided not to open a preliminary investigation against Mr B. due to lack of evidence to corroborate the applicant’s accusations. On appeal by the applicant, the decision was upheld by the Kyustendil Regional Prosecutor’s Office on 8 October 1993.

2.  The private criminal prosecution against the applicant

On 16 July 1993 Mr B. initiated a private criminal prosecution against the applicant for libel stemming from the accusations she had made against him.

On 10 May 1994 the Kyustendil District Court terminated the proceedings and referred the case to the Kyustendil District Prosecutor’s Office for possible criminal prosecution of the applicant for falsely incriminating Mr B.

3.  The criminal proceedings against the applicant

On 3 August 1994 the Kyustendil District Prosecutor’s Office opened a preliminary investigation against the applicant for falsely incriminating Mr B.

The applicant was charged on 28 March 1995 with falsely incriminating, before a competent authority, another person of having committed the offence of rape. The applicant was questioned on the same day.

The Government contended, which the applicant did not challenge, that between 28 March and 25 May 1995 another twelve witnesses were questioned by the investigating authorities.

On 25 May 1995 the applicant was questioned in the presence of her lawyer.

The results of the preliminary investigation were presented to the applicant’s lawyer on 5 June 1995, who then requested the recusal of the investigator in charge of the preliminary investigation. In a decision of 7 June 1995 the Kyustendil District Prosecutor’s Office dismissed the said request.

The charges against the applicant were amended on 14 June 1995. She was also questioned on the same day and, once again, on 15 June 1995. In a decision of the latter day the investigator in charge of the investigation refused to call and question certain witnesses the applicant wanted questioned as he found that they were not in a position to add any new relevant evidence to the proceedings. The applicant filed an appeal against that decision on 19 June 1995, which was dismissed by the Kyustendil District Prosecutor’s Office on 31 July 1995.

The results of the preliminary investigation were presented to Mr B. on 4 August 1995 and to the applicant on 11 September 1995. On the latter day, the investigator in charge of the preliminary investigation forwarded the applicant’s case file to the Kyustendil District Prosecutor’s Office with the opinion that an indictment for false incrimination should be entered against her.

On 20 September 1995 the charges against the applicant were amended by the Kyustendil District Prosecutor’s Office.

On 21 September 1995 the Kyustendil District Prosecutor’s Office filed an indictment against the applicant with the Kyustendil District Court for falsely incriminating Mr B., before a competent authority, of having committed the offence of rape.

The Kyustendil District Court conducted nine hearings between 30 January 1996 and 9 March 1998, which were held two to six months apart. The first hearing was postponed by one day due to an error in the summoning of the applicant and her lawyer. The second hearing was postponed by two months and sixteen days due to the absence of the applicant’s lawyer and some of the witnesses. The third hearing was postponed by five months and twenty-eight days due to the absence of the applicant’s lawyer. The fourth hearing was postponed by three months and sixteen days at the request of the applicant’s lawyer in order to have all witnesses questioned at the same hearing. The fifth hearing was postponed by three months and fourteen days due to the absence of the prosecutor. At the sixth hearing the applicant filed a motion challenging the president of the trial court for bias, which motion was dismissed and several witnesses were questioned. The next hearing was scheduled five months later. The seventh and eighth hearings were postponed at the request of all the parties due to the absence of most of the witnesses, which resulted in a delay of four months and twenty-five days. At the ninth hearing, several more witnesses and the parties were questioned and the court delivered its judgment.

Mr B. joined the proceedings as a civil claimant on 17 April 1995, but withdrew his claim on 9 March 1998. He continued to participate in the proceedings as a private prosecuting party.

In a judgment of 9 March 1998 the Kyustendil District Court found the applicant guilty as charged. The court found, inter alia, that in view of the medical evidence that the applicant had conceived sometime between 17 February and 10 March 1993, it was impossible that Mr B. had raped her in early January 1993 and that she had conceived as a result thereof. The accusations against Mr B. could not therefore be true and the applicant had evidently been aware of this at the time she had made them on 26 May 1993 before the Kyustendil District Prosecutor’s Office. The applicant received a suspended sentence of two years’ imprisonment and a public reprimand.

On 12 March 1998 the applicant appealed on points of fact and law and claimed that the Kyustendil District Court had failed to collect all the relevant evidence, that its judgment was unreasoned and contrary to the applicable law.

A hearing was held before the Kyustendil Regional Court on 14 October 1998.

In a judgment of 18 November 1998 the Kyustendil Regional Court dismissed the applicant’s appeal and upheld the lower court’s judgment on grounds similar to those of the first-instance court.

On 1 December 1998 an appeal on points of fact and law was filed by the applicant’s lawyer. The applicant did not appeal on points of procedure. The appeal was apparently wrongly addressed to the Sofia Appellate Court, but was forwarded to the Supreme Court of Cassation which received it on 22 December 1998.

Two hearings were held before the Supreme Court of Cassation on 1 February and 15 March 1999, the first of which was postponed due to the defective summoning of Mr B.

In a final judgment of 22 March 1999 the Supreme Court of Cassation dismissed the applicant’s appeal and upheld the lower court’s judgment. The court noted that at this stage of the proceedings no new evidence could be presented and that it could not therefore address the complaints relating to the facts of the case. It also found that there was sufficient evidence that the applicant had committed the offence for which she had been convicted.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that she was not tried within a reasonable time and contended that the criminal proceedings had lasted from 3 August 1994 until 22 March 1999, a period of almost five years.

THE LAW

The applicant complained under Article 6 § 1 of the Convention of the allegedly excessive length of the criminal proceedings against her.

Article 6 § 1 of the Convention provides, as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

1.  The parties’ submissions

The Government submitted that the case against the applicant was complex and that there were no unreasonable delays attributable to the authorities. In addition, the Government contended that the applicant had contributed to the overall length of the criminal proceedings by, for example, insisting that all the witnesses be questioned at the same hearing; filing unfounded motions for recusal; requesting or supporting the postponement of several hearings before the first-instance court; her lawyer failing to appear before the said court on two occasions; and, filing her cassation appeal with the Sofia Appellate Court instead of with the Supreme Court of Cassation.

The applicant rejected the Government’s arguments and sustained her complaint that the length of the criminal proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

2.  The Court’s decision on admissibility

The Court notes that the applicant’s complaint relates to the length of the criminal proceedings which began on 3 August 1994 with the Kyustendil District Prosecutor’s Office opening a preliminary investigation against her and ended on 22 March 1999 with the final judgment of the Supreme Court of Cassation. They therefore lasted four years, seven months and nineteen days for three levels of jurisdiction.

The Court reiterates that it must assess the reasonableness of the length of the proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, what is at stake for the applicant has also to be taken into account (see Philis v. Greece (no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, p. 1083, § 35). The Court further reiterates that only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see H. v. France, judgment of 24 October 1989, Series A no. 162-A, pp. 21-22, § 55).

The Court notes at the outset that what was at stake for the applicant was significant as she risked imprisonment.

The Court considers, however, that the case was not particularly complex.

As to the conduct of the applicant, the Court finds that she and her lawyer contributed to the overall length of the proceedings. For example, the applicant’s lawyer failed to appear at two hearings before the Kyustendil District Court, which delayed the proceedings by eight months and fourteen days; the fourth hearing before the same court was postponed by three months and sixteen days at the request of the applicant’s lawyer in order to have all witnesses questioned at the same time; and, the applicant requested or supported the postponement of the seventh and eighth hearings before the said court which resulted in a further delay of four months and twenty-five days. Accordingly, the applicant contributed with one year, four months and twenty-five days to the overall length of the proceedings. In addition, the applicant filed two apparently unfounded motions challenging the investigator and the presiding judge of the first-instance court for bias, which further prolonged the proceedings. She also wrongly addressed her cassation appeal to the Sofia Appellate Court instead of the Supreme Court of Cassation.

As to the conduct of the authorities, the Court notes that the preliminary investigation was completed within one year, one month and eighteen days, which period does not seem excessively long even though there appears to have been a certain lack of activity between August 1994 and March 1995. In respect of the proceedings before the Kyustendil District Court, the Court considers that they were rather long, having taken almost two years and six months to conclude. However, during this time nine hearings were held at regular intervals of between two to six months and, as noted above, the applicant contributed to their overall length. Moreover, the delays at the level of the first-instance court were offset by the expedient nature of the proceedings before the second and third instance courts, which were concluded within eight and three-and-a-half months respectively. In view of the above and the contributions to the length of the proceedings by the applicant, the Court finds that the length for which the authorities were responsible amounts to three years, two months and twenty-four days for three levels of jurisdiction.

Considering the above and taking note that only delays attributable to the authorities may justify a finding of a failure to comply with the “reasonable time” requirement, the Court finds that in the circumstances of the present case the overall length of the criminal proceedings against the applicant of four years, seven months and nineteen days for three levels of jurisdiction did not violate the said requirement of Article 6 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. It is appropriate, therefore, to discontinue the application of Article 29 § 3 of the Convention in the present case.

For these reasons, the Court unanimously

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

TOEVA v. BULGARIA DECISION


TOEVA v. BULGARIA DECISION