SECRETARIAT GENERAL SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRÉTARIAT DU COMITE DES MINISTRES

Contact: Simon Palmer Tel: 03.88.41.26.12

Date: 21/02/2012

DH - DD(2012)209 *

Item reference: Action plan / Action report

Please find enclosed a communication from concerning the case of Finger (Djangozov group) against Bulgaria (Application No. 45950/99).

* * *

Référence du point : Plan d'action / Bilan d'action

Veuillez trouver, ci-joint, une communication de la Bulgarie relative à l'affaire Finger (Groupe Djangozov) contre Bulgarie (requête n° 45950/99) (Anglais uniquement).

* In the application of Article 21.b of the rules of procedure of the Committee of Ministers, it is understood that distribution of documents at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers (CM/Del/Dec(2001)772/1.4). / Dans le cadre de l'application de l'article 21.b du Règlement intérieur du Comité des Ministres, il est entendu que la distribution de documents à la demande d'un représentant se fait sous la seule responsabilité dudit représentant, sans préjuger de la position juridique ou politique du Comité des Ministres CM/Del/Dec(2001)772/1.4). ACTION REPORT ON THE CASE FINGER 34346/05

1. The Facts For more than 10 years since 1996 the applicant Mrs. Finger leads civil cases for division of inherited property, which at 2005 have not been completed yet. The case is about excessive length of the civil procedure of the applicant (a violation of Art. 6 § 1) and absence of an effective domestic remedy (a violation of Art. 13).

2. General Information

The pilot judgments against Bulgaria entered into force on 10 August 2011. Within the short period since August, when the pilot judgments in the cases Dimitrov and Hamanov v. Bulgaria and Finger v. Bulgaria entered into force, and in the context of the commitments assumed, the Bulgarian State undertook, and is still working on, a series of measures for implementation of the instructions of the European Court of Human Rights for undertaking of general measures. Round table and to-the-point conversations were held in this respect with government officials during the visit of judge Costa to Bulgaria in 2011. As a result of this visit and at the invitation of the Minister of Justice, representatives of the Registrar of the European Court of Human Rights paid a working visit and discussed the possibility of accelerating the procedures and decreasing the caseload of the European Court of Human Rights. The Ministry of Justice has initiated several workgroups tasked with outlining the legislative amendments necessary for the development of national mechanisms. The good practices and the Manual of the good practices for the establishment of a compensatory remedy compiled for this purpose by the Council of Europe were translated and perused. An analysis was made of the legislation of Poland, Slovenia, the Czech Republic and Germany, where these relations are regulated by a separate statute. The analyses made and the consultations held with representatives of the judiciary, as well as of the academic community and within the workgroup, indicate that it is appropriate to adopt an integral approach to addressing the problems of the justice-administration system on which compliance with the reasonable time for a procedure depends. Courses were conducted and continue to be conducted within the National Institute of Justice for the training of judges, at which lectures covering the case-law of the European Court of Human Rights are read by government agents and the national judge Kalaidzhieva.

1. Instruments for avoidance of unreasonable length of procedures

The new Code of Civil Procedure of 2008 preserved a large number of the founding concepts regarding the time limits (as periods of time) in which a certain procedural activity should be completed. At the same time, several new legislative authorizations were introduced which are apparently directed on the one hand at achieving greater facilitation of the parties, and on the other hand stimulating the dynamics of the process with regard to the public expectation for the considering and adjudication of the cases in reasonable time (Article 7 of the Judicial System Act and Article 13 of the Code of Civil Procedure. The implementation of the new Code of Civil Procedure remarkably improved the functioning of the judicial system and reduced the cases of excessive duration of the civil proceedings.

In this context, the Government submits as evidence statistical data from the courts summarized in information about the activities of the courts of appeal, the district, regional, military and administrative courts for the first half of year 2011, prepared by the Supreme Judicial Council of Republic of Bulgaria.1

Appendix No.2 SUMMARIZED REPORT On the activity of the APPELLATE, DISTRICT, MILITARY, REGIONAL and ADMINISTRATIVE COURTS For the 1st half of 2011

I. Progress of cases

Completed cases By a Appealed Termi Total to judicial by Pending Received Within up to 3 nated Pending COURTS be act on defence 01.01. in the year months proce 30.06. heard Total the and edings merits prosecutio Number n Appellate courts 1,823 6,431 8,254 6,479 5,342 82% 6,043 436 1,775 1,698 Military courts 131 740 871 797 776 97% 693 104 74 61 District courts + City Court 23,052 47,357 70,409 47,380 37,679 80% 40,579 6,801 23,029 10,899 Regional courts in regional centres + 59,832 167,245 227,077 171,639 144,859 84% 147,661 23,97 55,438 22,883 Sofia Regional Court 8 Regional Courts 17,243 69,796 87,039 70,878 63,715 90% 59,562 11,31 16,161 6,958 6 Administrative Courts 10,765 22,381 33,146 21,543 16,754 73% 15,933 5,610 11,603 4,379 Total cases 102,081 313,950 426,796 318,716 269,125 84% 270,471 48,24 108,080 46,878 5

II. Number of judges, caseload and actual caseload of judges for the 1st half of 2011 Caseload Actual caseload Number of TOTAL Worked COURTS judges l man- To total TOTAL To total cases To total cases months To total cases cases to be heard completed to be heard completed Appellate courts 142 9.69 7,60 717.6 11.50 9.03 Military courts 27 5.38 4,92 152 5.73 5.24 District courts + Sofia City Court 751 15.63 10,51 3,768.81 18.68 12.57 Regional courts in regional capitals + Sofia 573 66.05 49,92 3,005.05 75.57 57.12 Regional Court Regional Courts 385 37.68 30,68 1,893.35 45.97 37.44 Administrative Courts 269 20.54 13.35 1,427 23.23 15.10 TOTAL 2,147 33.13 24.74 10,963.81 38.93 29.07

According to the statistics at our disposal, the institute of the “unreasonable delay complaint” under Art. 255 of the Code of Civil Procedure is an effective instrument for acceleration of the proceedings. The Court in Strasbourg also held in its judgment in the case that the

1 A report of the Supreme Judicial Council for 2010 is available on Internet - http://www.vss.justice.bg/bg/start.htm

protection ensured by the unreasonable delay complaint is generally effective, as it refers to judgments where it is assessed as an effective and accessible remedy. The case-law of the national courts indicates that it is a working instrument:

Competed cases Pending By a Pending Appeale in the Received total to Within up to 3 judicial by the Terminated d and Courts Year begginig in the be months act on end of procedures protested of the year heard Total the the against period Number % merits period

ɚ ɛ 1 2 3 4 ɚ ɛ 5 6 8 9 Appellate courts 0 48 48 46 46 100% 45 1 2 0

District 2010 courts + the Sofia City Court 4 124 128 124 122 98% 109 15 4 1 Total 4 172 176 170 168 99% 154 16 6 1 Apellate Courts 0 49 49 49 49 100% 49 0 0 1

District 2011 courts + the Sofia City Court 3 105 108 104 104 100% 93 11 4 0 Total 3 154 157 153 153 100% 142 11 4 1

"delay complaints" - completed including

e l

b

e i l Court Year l s a b t i s i s o s m T i d m a

d n a o

n ɚ ɛ 1 ɚ ɛ Apellate Courts 46 6 40

District 2010 courts + the Sofia City Court 124 30 94 Total 170 36 134

Apellate 2011 Courts 49 3 46 District courts + the Sofia City Court 104 20 84 Total 153 23 130

2. Structural, administrative and disciplinary measures:

1). The Inspectorate to the Supreme Judicial Council2 performs an effective role by seeing to compliance with the deadlines as provided. Delays are penalized by sanctions and they also have an impact on the appraisal of the magistrates in respect of their performance and proper hearing of the cases.

According to the analysis made by the Inspectorate on the disciplinary cases initiated against magistrates and the disciplinary punishments imposed under Art. 308, para. 1 of the Judicial System Act for the 1 January 2010 – 31 December 2010 period, the Disciplinary Commission at the Supreme Judicial Council heard and ruled on a total of 192 (one hundred and ninety- two) disciplinary case files initiated against magistrates. The Internet site of the Supreme Judicial Council maintains a register of the disciplinary proceedings initiated against magistrates.

In 2010 inspections were held in a total of three appellate districts: Varna, and Sofia.

The scheduled integral inspections on civil and commercial cases were carried out on the territory of the Sofia appellate district in 6 district courts and the Sofia City Court, in 27 regional courts and the Sofia Regional Court.

Positive trends and good practices

- In the , and Regional Courts and in the Blagoevgrad District Court, electronic case management systems ensure the tracking of the entire progress of the case. The judgments are entered in a public register which is quickly and easily accessible through the Internet site of the court. - Judges peruse the cases thoroughly before the court hearing. Therefore, the proceedings on the merits of the case are cancelled in isolated cases and the practice for repeated adjournments of the cases for taking evidence is being abandoned (exceptions: the District Court, the Pernik Regional Court, the Regional Court, the Regional Court). This largely contributes to an improvement of the celerity and quality in the administration of justice. - The provisions concerning the order for payment proceedings under the Code of Civil Procedure are complied with. A good practice has been introduced in the Sofia Regional Court – the order for payment proceedings are detached in a separate case management system, which has resulted in a considerable improvement of the administration thereof. - The provisions of the Code of Civil Procedure about the precautionary proceedings are also complied with, but problems have been identified in relation to the application of Art. 390, para. 3 of the Code of Civil Procedure (petition to grant an injunction securing a

2 A copy of their Report is enclosed future action by suspension of enforcement). There is a need to take measures for achievement of uniformity of the case-law as regards the initial point of the time limit for bringing the action and the ex officio dissolution of the injunction upon the expiry of the time limit. (Conflicting case-law has been identified in the Petrich Regional Court, the Montana District Court, the District Court). The procedural standard was strictly complied with in the Sofia Regional Court, as a deadline of up to 1 month used to be set, and frequently the panels of judges set even shorter deadlines – up to 20 days, considering the thorough evaluation of the legal and factual complexity of the future action. Upon failure to present evidence of the action brought, the court ex officio dissolved the admitted injunction. The date set as an initial date, from which the time limit for bringing the future action started to run was the date of obtaining of the injunctive order. - In the Regional Court and the Montana Regional Court, a good practice is established to keep track of the expiration of the procedural deadlines as the cases are immediately reported to the judges and their orders are executed on the day of rendering. In the Montana District Court, the Regional Court, the Kula Regional Court, the Slivnitsa Regional Court the number of suspended cases is small and they are regularly administrated. - A very good practice is established in the Slivnitsa Regional Court and the Regional Court in respect of cases initiated under the Protection from Domestic Violence Act (PDVA) and the Child Protection Act (CPA). - The considerable delay in the rendering of the judicial acts detected during previous inspections has been completely overcome, the judgments are drawn up within one to three months. Pronouncing past these deadlines is ever rarer and is due to the poor working arrangements of the respective magistrate. - General assemblies of the judges are regularly convened and held in some courts for the purpose of summarizing of the case-law of the court. - The President of the Sofia Regional Court has introduced a system for tracking the progress of summonses in order to ensure control over their serving and eliminating the reason for adjourning cases due to undue summoning. By orders of the President, summoning by fax and e-mail has been put in practice, which is provided for as a procedural option under the Code of Civil Procedure.

In 2010 the Inspectorate drew up and sent 6 alerts to the competent authorities. The positive result of the activity of the Inspectorate is inferred from the positive results of the work of the judicial authorities, which are shown not only in the acts of the Inspectorate to the Supreme Judicial Council but also in the overall analysis for 2009 made by the President of the Supreme Court of Cassation in his report to the National Assembly. The Report points out that for 2009 alone the share of completed cases increased by 15.46 % compared to 2008. The cases completed within 3 months (considered a reasonable period under the criteria of the European Convention) increased 2008 by 22.62 % from 2009. The number of the so called pending cases (remaining uncompleted at the end of the year) decreased by more than 2,500 or by 2.35%, and, compared to 2007, by more than 10%. The total number of sentenced persons increased. The positive trend in the work of the courts was evident in the first half of 2010 as well. The statistics cited in the Report of the Supreme Judicial Council on the activity of the appellate, district, administrative, regional and military courts for the first half of 2010 show the following, comparing the progress of the cases in the courts countrywide for the first half of 2008, 2009 and 2010: - Increase in the number of cases to be heard in the courts, as the growth was 13% (46,181) compared to the first half of 2009 and 19% (65,303) compared to the first half of 2008. - The number of completed cases also increased: 16% compared to 2009 and 27% compared to 2008. - The share of completed cases compared to the cases to be heard – given that it was 70% for 2008 and 72% for 2009 – increased to 75% for 2010 - The number of cases completed within 3 months also increased, by 22% compared to 2009 and by 44% compared to the same period of 2008. These good results are a benchmark of quality and promptness of the work of the courts, thanks to the intensive inspections carried out by the Inspectorate to the Supreme Judicial Council, the recommendations made and the action taken by the part of the administrative heads and the Supreme Judicial Council for their tangible implementation.

- the Professional Ethics and Prevention of Corruption Commission

By the latest amendments to the Judicial System Act, in effect from 4 January 2011 (State Gazette No.1/2011) the Professional Ethics and Prevention of Corruption Commission became the second legally regulated standing commission at the Supreme Judicial Council.

Examining and resolving complaints and alerts from citizens and legal persons received by mail, electronically or dropped in the anti-corruption boxes placed in the separate units of the judiciary remained a substantial and significant part of the Commission’s activity in 2011.

The 767 general alerts again accounted for the bulk, containing complaints about and dissatisfaction with acts rendered by judges and prosecutors and petitions for review and resolution of specific cases. Next come 34 alerts containing complaints about the initiation, progress and observance of deadlines under case files and cases. These alerts were sent to the Inspectorate to the Supreme Judicial Council or to the competent administrative head for a check, and compliance with the deadline within which the ordered checks had to be performed was followed up. This resulted in a quick sending of answers to the whistle blowers. Alerts containing data of conflicting case-law, which numbered as few as 5 for 2011, were forwarded to the presidents of the Supreme Administrative Court or the Supreme Court of Cassation accompanied by a brief opinion. In some of the cases of alerts about breaches of ethical rules, which were 16 for 2011, the Commission carried out inspections in person and heard the parties.

For the 1 January – 31 December 2011 period, the Professional Ethics and Prevention of Corruption Commission considered 1,346 complaints out of a total of 1,390 received. The difference between the number of newly registered complaints and the total number of considered complaints is due to the fact that some of them were scheduled for consideration after 31 December 2011. The new complaints were 940, and those related to numbers from past years were 450. Twenty complaints were received through the anti-corruption boxes. A total of 103 of the resolved complaints and alerts were sent to administrative heads of judicial authorities for a check and a response, 34 were referred to the Inspectorate to the Supreme Judicial Council as the authority competent to deal with them, 10 were sent to the Inspectorate under the Minister of Justice as the authority competent to deal with them, 21 were sent to other commissions of the Supreme Judicial Council as the authorities competent to deal with them, and notices were sent to 575 complainants that their requests were beyond the competence of the Commission. At the 45 sessions held, the Professional Ethics and Prevention of Corruption Commission sent to the relevant judicial authorities 138 complaints falling within their respective competence and 10 of the complaints and alerts received for examination and opinion by the respective professional ethics commissions.

2). The Ministry of justice is working on some amendments of the JSA, which will carry structural changes to the system that will also facilitate the acceleration of proceedings and bring relieve to the judiciary system. An administrative mechanism for compensations is also envisaged in this context.

3) The electronic summoning of the parties also leads to a considerable acceleration of procedures in court proceedings.

4). The Sofia Regional Court has been given special credit by Europe for the creation of the first Settlement Centre in Bulgaria operating under the Mediation Act. More than 40 judges and mediators have been working on a voluntary basis for the Settlement Programme for nearly 2 years now. In a Resolution of the European Parliament of 13 September 2011 on the implementation in the Member States of the Directive on Mediation, Bulgaria won exceptional acknowledgment as an example of successful practices encouraging the use of mediation. The Centre made a tangible contribution to the decrease of pending court cases and acceleration of the deadlines for resolution of the disputes. Mediation proves to be exceptionally productive for judicial disputes concerning property partition, torts, labour disputes, family and commercial cases.

5) In the 2010-2011 period the National Institute of Justice organized 12 trainings dedicated to the implementation of the European Convention on Human Rights. A total of 383 participants were trained in them:,306 judges, 45 prosecutors, 19 investigating magistrates, 6 representatives of the Ministry of Interior, 3 experts of the Ministry of Justice and 4 inspectors from the Inspectorate to the Supreme Judicial Council. Considering the rendered pilot judgments, the focus in the trainings in 2011 was on the provisions of Art. 6 and Art. 8 of the Convention, as well as on the issues related to the creation and implementation of effective domestic remedies for indemnification of damages in case of slow justice. With the assistance of the Council of Europe, the participation of judges from the European Court of Human Rights was arranged for these trainings. Compliance with and application of the standards of the Convention is a separate part of the curriculum of the compulsory initial training of junior judges and junior prosecutors. This curriculum provides for 9 hours dedicated to the European Convention on Human Rights, divided into three modules, which are presented by Bulgarian judges who have amassed professional experience and specialization in this field.

3. Measures for effective indemnification of damages

1) A workgroup is set up in the Ministry of Justice to prepare a draft act amending the Liability of the State and the Municipalities for Damages Act, which is one of the possible options for indemnification of material and non-material damages, but through a court procedure. The rights and interests of citizens will have maximum protection in this way.

2) The Ministry of Justice is preparing a project under the Norwegian Financial Mechanism. The introduction of effective domestic remedies serves the rule of law and to ensure public trust in the administration of justice. It is particularly important to protect the rights of the Bulgarian citizens with regard to the access of justice. This will support the judicial reform in Bulgaria for establishing of an effective, sufficient and accessible remedy in respect of the excessive length of judicial proceedings and as a long-term objective will result in the improvement of the Bulgarian legal system by creating effective provisions in that domain. This project will be in favour not only to the potential applicants but will increase the effectiveness of the judicial system in Bulgaria by resulting in a more efficient and well- organized court proceedings and court system in general.

Conclusion: This broad range of measures will result in accomplishment of Bulgaria’s commitments within the deadlines set in the pilot judgments.