Judgment of the ECHR of 21 July 2020 in the case "Vanyo Todorov v. Bulgaria" (aplication No. 31434/15).
In 2015, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Bulgaria.
The case successfully considered an aplication about the ineffective judicial system in connection with the lack of the brother of the murder victim to claim compensation for non-pecuniary damage. The case violated the requirements of article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The Bulgarian courts refused the applicant to enter as a civil plaintiff into a criminal case on the fact of the murder of his brother by a third party and to receive compensation for material damage and non-pecuniary damage.
Regarding compliance with article 2 of the Convention (procedural and legal aspect). During the period related to the circumstances of the case, according to the binding case law of the former Supreme Court of Bulgaria, only persons who were considered close relatives (parents, children and spouses), excluding such family members as brothers and sisters, could claim compensation for non-pecuniary damage in connection with the death of a relative. Given that, under the Bulgarian Code of Criminal Procedure, only persons entitled to compensation for damage caused by a crime could enter the case as a third party, the Bulgarian courts rejected the applicant's application for recognition as a civil plaintiff in criminal proceedings.
The material damage referred to by the applicant in the context of the Bulgarian courts ' examination of his case concerned items that were allegedly stolen from the applicant's brother's house, and thus the damage was not the result of the death of the applicant's brother. Consequently, the possibility of obtaining compensation for this damage did not fall within the procedural obligation of the Bulgarian authorities under article 2 of the Convention.
With regard to non-pecuniary damage, in the absence of the authorities ' guilt in the death of the applicant's brother and, accordingly, in the absence of a "provable" case for a violation of article 2 of the Convention, article 13 of the Convention could not be applied to the case. However, in cases where the authorities were not responsible for the death of a person, the Court assessed the possibility of obtaining compensation for the death of a close relative in terms of the positive obligations provided for in article 2 of the Convention.
It follows from the comparative legal materials that all the Contracting States included in the comparison grant the right to compensation to persons who have suffered non-pecuniary damage as a result of the death of a close relative, and in almost all of these States this possibility exists if the perpetrator of the crime is a natural person. However, the conditions and mechanisms for granting compensation and establishing the circle of persons entitled to this compensation vary from State to State. In the vast majority of States, there is no pre-determined list of persons entitled to compensation, and such a person is identified in each specific case on the basis of such criteria as family ties with the deceased, the validity of emotional relationships or support between the persons concerned, cohabitation, the status of a potential plaintiff as the heir of the deceased person. With regard to the manner in which these criteria were applied, only a few countries regulated the possibility of obtaining compensation as strictly as the Bulgarian legislation provided for at the time.
Directive 2012/29/EU of the European Parliament and of the Council on the establishment of minimum standards for the rights, support and protection of victims of crime (hereinafter referred to as Directive 2012/29/EU) includes the siblings of a deceased person in the concept of a "victim" of a crime, and as such they have the opportunity to enjoy the rights granted by it. Although Directive 2012/29/EU allows States to establish a procedure for limiting the number of family members of the deceased who can exercise the above rights, it provides for situations where there are several "family members", and not situations where, as in the present case, one person requires recognition in this capacity. In addition, according to Directive 2012/29 / EU, such a restriction is permissible only if "all the individual circumstances of each case are taken into account", but the Bulgarian legislation applicable at the time absolutely excluded the possibility for some family members to claim compensation, without assessing the special circumstances of each case.
In the period since the events in question, the relevant Bulgarian legislation has been amended, and now the Supreme Court of Cassation of Bulgaria has recognized that other persons, other than those listed in the closed list in the explanatory decisions of the former Supreme Court of Bulgaria, can claim compensation if they can prove that, as a result of their relationship with the deceased person, they suffered moral suffering comparable to that of a close family member. Although this change in Bulgarian legislation does not in itself justify the conclusion that previous situations were contrary to the Convention, this change, adopted inter alia to bring Bulgarian legislation into line with Directive 2012/29/EU, should have been taken into account when observing trends in the development of legislation in the Contracting States.
Thus, there is a consensus among the Contracting States that close family members should be able to claim monetary compensation for non-pecuniary damage caused by the death of a relative, if in each particular case an assessment is made of the strength of the relationship between the plaintiff and his deceased relative and the actual damage caused.
If, as in the present case, the applicant is the only family member and heir of the deceased brother with whom he had close family ties, the Bulgarian authorities may be considered to have breached their obligation to establish a judicial system capable of providing "adequate compensation" for the purposes of article 2 of the Convention, since they did not provide the applicant with any remedy that would enable him to claim monetary compensation for non-pecuniary damage that may have been caused to him.
As a result, despite the effectiveness of the criminal proceedings conducted in this case, which established the facts and resulted in the punishment of the perpetrator, the fact that the applicant did not have any opportunity to receive compensation for non-pecuniary damage violated the obligation of the Bulgarian authorities to establish an effective judicial system that would ensure an appropriate response to the claims of the close relatives of the deceased victim of the crime.
The case involved a violation of the requirements of article 2 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The Court awarded the applicant EUR 12,000 in respect of non-pecuniary damage, but the claim for pecuniary damage was rejected.