Přehled
Rozhodnutí
FOURTH SECTION
DECISION
Application no. 47687/07
Dimitar Borisov GORANOV
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 2 July 2013 as a Committee composed of:
David Thór Björgvinsson, President,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 30 July 2007,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Dimitar Borisov Goranov, is a Bulgarian national, who was born in 1960 and lived in Velingrad. In May 2008 the applicant passed away. He was represented before the Court by Mr V. Stoyanov, a lawyer practising in Pazardzhik.
The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In February 2005 the Pazardzhik Regional Court convicted the applicant of fraud, committed together with two accomplices, and sentenced him to a prison term of four years and five months. In May 2005, referring to the applicant’s conviction and section 76 (2) of the Bulgarian Identity Papers Act 1998, the Pazardzhik Regional Directorate of Internal Affairs issued an order prohibiting the applicant to leave the country and taking away his passport. The applicant unsuccessfully challenged the order before the national police service and then he appealed against it in court. In a final decision of 2 May 2008, the Supreme Administrative Court rejected his appeal, finding that the legal conditions for the imposition of the ban on leaving the country had been met.
The applicant complained under Article 2 § 2 of Protocol No. 4 to the Convention that the ban on his leaving the country, imposed by the Pazardzhik Regional Directorate of Internal Affairs in May 2005, breached his right to freedom of movement as it was not justified. He also complained under Article 13 of the Convention that he did not have an effective remedy in that respect. He further complained under Article 8 of the Convention that the ban prevented him from undergoing medical treatment and from finding work and, under Article 6, that he did not have access to a court in connection with his complaint against the ban on his leaving the country. Finally, relying on Article 14, the applicant complained of discrimination as compared to his accomplices, as only he was banned from leaving the country but not the others.
On 19 April 2013 the Court decided to give notice to the Government of the applicant’s complaints detailed above.
By letter of 20 May 2013 the applicant’s legal representative informed the Registry that the applicant had died and that the applicant’s parents, being his only heirs, had expressed a wish to pursue the application in his stead.
THE LAW
The Court observes that the applicant died in May 2008, having lodged his application under Article 34 of the Convention. It also notes that, once the applicant’s lawyer was informed by the Court that the Government had been put on notice of the applicant’s complaints, the applicant’s parents expressed their wish to pursue the application.
In the circumstances, the Court considers it necessary to examine the issue of locus standi of the applicant’s parents in detail of its own motion.
Article 37 § 1 of the Convention reads in the relevant part as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires...”
The Court reiterates that in various cases, in which an applicant died in the course of the Convention proceedings, it took into account the statements of the applicant’s heirs or of close members of his or her family expressing their wish to pursue the application (see, amongst other authorities, Kalló v. Hungary, no. 30081/02, § 24, 11 April 2006, and Novinskiy v. Russia, no. 11982/02, § 92, 10 February 2009, § 92).
The Court has previously accepted that the late applicants’ close relatives could maintain applications with complaints concerning various aspects of Article 6 of the Convention (see in that connection Deweer v. Belgium (dec.), no. 6903/75, 27 February 1980; Malhous v. the Czech Republic [GC] (dec.), no. 33071/96, ECHR 2000-XII; Andreyeva v. Russia (dec.), no. 76737/01, 16 October 2003; Shiryayeva v. Russia, no. 21417/04, § 8, 13 July 2006; Horváthová v. Slovakia, no. 74456/01, § 26, 17 May 2005). The Court has also found in a number of cases relating to claims under Article 1 of Protocol No. 1 that the applications concerning property rights are, in principle, transferable to the heirs (see Nerva and Others v. the United Kingdom, no. 42295/98, § 33, ECHR 2002-VIII; Sobelin and Others v. Russia, nos. 30672/03 et seq., §§ 43-45, 3 May 2007).
On the other hand, heirs of deceased applicants cannot claim a general right to pursue the proceedings on their own behalf (see Gorodnichev v. Russia (dec.), no. 32275/03, 15 November 2007). Where the issue of standing is to be determined, the Court must examine each application in the light of its particular facts and from the standpoint of whether the applicant’s interest at stake is of such a nature that it can be transferred to the heir, and, further, whether considerations relating to the general interest require the continued examination of the application (see Gorodnichev v. Russia (dec.), no. 32275/03, 15 November 2007; S. v. the United Kingdom, no. 9502/81, Commission decision of 13 July 1983, DR 34, p. 103; and Veit v. Germany, no. 10474/83, Commission decision of 6 May 1986, Decisions and Reports (DR) 47, p. 116, with further references).
In assessing the transferability of the complaints, the former Commission and the Court have examined in particular: (a) whether the link between the complaints at stake and the deceased applicant was exclusive or not (see Matviyenko v. Russia ((dec.), no. 53664/08, ECHR 25 November 2010); (b) whether the late applicant’s next-to-kin personally suffered the consequences (see Funke v. France, no. 10828/84, Commission decision of 6 October 1988, D.R. No. 57, p. 18); (c) whether the applicant’s heirs had an interest of their own (see Armonienė v. Lithuania, no. 36919/02, § 29, 25 November 2008); or (d) whether the domestic proceedings concerned the late applicant’s pecuniary rights (see Jeruzal v. Poland, no. 65888/01, § 25, 10 October 2006).
The Court has also established that it is for the heir who wishes to pursue the proceedings before the Court to substantiate his or her standing to do so (see Belskiy v. Russia (dec.), no. 23593/03, 26 November 2009).
Turning to the present case, the Court observes that the applicant raised a number of complaints related to the ban on his travel abroad, as detailed above. In that connection, the Court notes that the link between those complaints and the deceased applicant was exclusive, given that the restriction on his travel abroad was made vis-à-vis him personally and as a result of his criminal conviction and lack of rehabilitation. It has not been submitted that the applicant’s parents were in any way affected by the restriction on his travel abroad. It cannot be said, therefore, that they had personally suffered the consequences of the restrictions on their son’s travel. In addition, they only informed the Court of the applicant’s death about five years after it had occurred, and that, only once they were apprised of the fact that the Government had been put on notice of the complaints. Also, the travel ban did not concern the late applicant’s pecuniary rights. Finally, the applicant’s parents have not submitted any reasons to substantiate their claim that they have standing to continue the proceedings before the Court.
In view of the above, the Court observes that it has not been demonstrated that the complaints were not personal to the applicant, or that his parents could claim to have a sufficient legal interest to justify the continued examination of the case (see, mutatis mutandis, S. v the United Kingdom, no. 9502/81, Commission decision of 13 July 1983, DR 34, p. 103; Gorodnichev (dec.), cited above; Matviyenko (dec.), cited above). Accordingly, the Court is not convinced that the applicant’s parents have a legitimate interest to pursue the proceedings before the Court in his stead.
Furthermore, the Court does not consider that “respect for human rights as defined in the Convention and the Protocols thereto” (Article 37 of the Convention) requires the examination of the application, despite the applicant’s death. The Court reiterates in this respect that the problem of the general and almost automatic restrictions on travel abroad, imposed on convicted individuals on the basis of national law, has been already examined by the Court in a number of cases against Bulgaria (see, among others, Nalbantski v. Bulgaria, no. 30943/04, § 66, 10 February 2011). It also notes that, as a result of a 2009 change in the law, no further travel bans on those grounds are possible. Furthermore, as regards bans of this nature previously imposed on individuals, as of July 2010 all those bans have been lifted as a result of the adoption of paragraph 5 of the transitional and concluding provisions of an Act for the Amendment of the 1998 Bulgarian Identity Papers Act. Finally, in their supervision of the execution of the Court’s judgments, the Council of Europe Committee of Ministers stated, in its Final Resolution CM/RESDH(2012)156 of 6 December 2012 in the Nalbantski case, that all general measures for the prevention of similar future violations had been adopted.
In these circumstances the Court considers that it is no longer justified to continue the examination of the application and concludes pursuant to Article 37 § 1 (c) of the Convention that the application should be struck out of its list of cases.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş Aracı David Thór Björgvinsson
Deputy Registrar President