EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 31806/96

Bogdanka Dimova

against

Bulgaria

REPORT OF THE COMMISSION

(adopted on 21 October 1998)

31806/96 - i -

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-11) 1

C. The present Report

(paras. 12-16)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-35)              3

A. The particular circumstances of the case

(paras. 17-29)              3

B. Relevant domestic law

(paras. 30-35)              4

III. OPINION OF THE COMMISSION

(paras. 36-60)              6

A. Complaint declared admissible

(para. 36) 6

B. Point at issue

(para. 37) 6

C. As regards Article 6 para. 1 of the Convention

(paras. 38-59)              6

CONCLUSION

(para. 60) 9

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 10

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Bulgarian citizen resident in Plovdiv . She was  represented before the Commission by Mr Mihail Ekimdjiev , a lawyer practising in Plovdiv .

3. The application is directed against Bulgaria.  The respondent Government were represented by Ms Violina Djidjeva and Ms Galina Samaras, co-Agents.

4. The case concerns the rejection on procedural grounds of the applicant's petition for review ( cassation ) to the Supreme Court in a civil case.  The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 4 April 1996 and registered on 11 June 1996.

6. On 21 May 1997 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's written observations were submitted on 17 September 1997, after an extension of the time-limit fixed for that purpose.  The applicant replied on 17 November 1997, also after an extension of the time-limit.

8. On 28 October 1997 the Commission granted the applicant legal aid for the representation of her case.

9. On 16 April 1998 the Commission declared the application admissible.

10. The text of the Commission's decision on admissibility was sent to the parties on 30 April 1998 and they were invited to submit such further information or observations on the merits as they wished.  The Government submitted observations on 3 August 1998.  In their additional observations of 3 August 1998 and in their letter of 31 August 1998 the Government submitted that the application should be declared inadmissible as the applicant had not in fact exhausted all domestic remedies.  The Commission found no basis for applying Article 29 of the Convention.

11. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

13. The text of this Report was adopted on 21 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is annexed hereto.

16. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17. On 21 August 1992 the applicant complained to the District Prosecutor's Office ( Районна прокуратура ) that, inter alia , her husband had fraudulently induced her to sign before a notary public a contract by virtue of which the apartment jointly owned by her and by her husband was sold to her husband's father.  The Prosecutor's Office conducted an inquiry on the matter, but apparently did not institute criminal proceedings.

18. On 28 September 1992 the Prosecutor's Office brought a civil action before the Plovdiv District Court ( Районен съд ) against the applicant's husband and his father.  The Prosecutor's Office was acting under its authority to institute civil proceedings as a procedural substitute "in a third person's interest", according to Section 27 para. 1 of the Code of Civil Procedure.  The prosecutor asked the Court to nullify the sale-purchase contract as it had allegedly been concluded fraudulently.

19. As required under Section 31 of the Code of Civil Procedure, the Court summoned also the applicant, who had the right, if she so wished, to participate as a party to the proceedings.

20. The applicant and her lawyer appeared at the hearings held by the Court, presented evidence and made submissions.  In the minutes the applicant was referred to by the Court as a "plaintiff", the Prosecutor's Office being the other plaintiff.

21. At the hearing held on 24 March 1993 the applicant's lawyer requested an amendment of the civil action to include intimidation as an additional ground for nullification.  This request was granted by the Court, which stated that the action was to be considered so amended upon the plaintiff's request.

22. By a judgment of 7 January 1994, served on 14 February 1994, the District Court dismissed the action as the allegations about fraud or intimidation were unfounded.  The Court stated in the operative part of its decision that it dismissed "the action[s] brought by the Plovdiv District Prosecutor's Office as a procedural substitute of [the applicant] ..."

23. On 21 January 1994 the Prosecutor's Office filed with the Court an appeal ( протест ) against the judgment.  However, this appeal was not admitted for examination as it did not comply with certain procedural requirements.

24. On 11 April 1994, within the two months' time-limit provided for under the law for the submission of a petition for review ( cassation ), the applicant submitted such a petition to the Supreme Court ( Βърховен съд ) against the District Court's decision.  Stating that she was a party to the proceedings, a co-plaintiff, she asked the Court to find that the impugned judgment was contrary to the law and ill-founded.  In her submissions to the Supreme Court she never complained about any irregularity in respect of her admission and participation as a party to the proceedings.

25. On 30 October 1995, after a hearing, the Court rejected the applicant's petition as inadmissible.

26. The Court noted at the outset that a judgment in a case brought by a procedural substitute was binding upon the person whose civil right had been at stake in the proceedings leading to this judgment.  Therefore, the District Court's judgment of 7 January 1994 was binding on the applicant.

27. The Supreme Court further noted that the District Court had never delivered a formal ruling thereby legally admitting the applicant as a party to the proceedings.  This had been a failure on the part of the District Court.  It was true that the applicant had taken active part in these proceedings, but the District Court had been obliged by law to admit her formally as a party.

28. As this had not been done, under Section 233 para. 2 of the Code of Civil Procedure there arose the legal interest for the applicant, as a person who was bound by a judgment without having been a party to the proceedings leading to it, to seek its annulment.  As a result the Supreme Court considered that the petition for review submitted by the applicant was to be considered as a petition for annulment under Section 233 para. 2 of the Code of Civil Procedure.

29. However, the time-limit for submission of a petition for annulment under this provision was one month and it had been exceeded.  On this ground the Supreme Court declared the applicant's petition inadmissible.

B. Relevant domestic law (as in force at the relevant time)

30. Section 27 of the Code of Civil Procedure ( Гражданско-процесуален кодекс ) provides that the prosecutor may institute or join civil proceedings on behalf of a third person whenever, inter alia , this is necessary for the protection of State or public interests.  According to the jurisprudence, under Section 27 the prosecutor acts as a State authority but assumes the role of a party to civil proceedings for the protection of the interests of the State or of the individual.

31. Under Sections 15 para. 3 and 31 of the Code the court is obliged ex officio to summon as a party to the proceedings the person in whose interest the prosecutor has brought an action.

32. Under Sections 225 and 226 of the Code a party to civil proceedings has a right to institute proceedings for review ( cassation ) within a two months' time-limit.  In these proceedings the Supreme Court can examine whether the lower court's judgment was contrary to the law or ill-founded and whether there has been a substantial breach of procedure. The Supreme Court in the review proceedings is competent to quash the lower court's judgment and to return the case for new examination or to decide on the merits.

33. Section 233 para. 2 of the Code provides that "annulment ... may be requested by a [third] person who is bound by a judgment despite the fact that he has not been a party to the proceedings".  The time-limit for such petition for annulment to the Supreme Court is one month from the date when the third person has learnt of the existence of the judgment.

34. Review ( cassation ) proceedings in a civil case may also be instituted by the Chief Public Prosecutor ex officio, within a one year's time-limit following the date of the impugned judgment.  In practice an interested party submits a petition to the Chief Public Prosecutor who decides, on the basis of the case-file, whether or not to exercise his power to intervene by instituting review proceedings (Sections 225 and 226 of the Code of Civil Procedure).

35. Similarly, annulment proceedings under Section 233 of the Code may be instituted by the Chief Public Prosecutor or by the President of the Supreme Court within a three-years' time-limit after the date on which the grounds for annulment occurred.  An interested party may petition the Chief Public Prosecutor or the President of the Supreme Court asking them to exercise their powers in this respect.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

36. The Commission has declared admissible the applicant's complaint that the rejection on procedural grounds of her petition to the Supreme Court for review ( cassation ) was in violation of Article 6 para. 1 of the Convention.

B. Point at issue

37. Accordingly, the point at issue in the present case is whether there has been a violation of Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

38.  Article 6 para. 1 of the Convention, insofar as relevant, provides as follows:

"In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal ..."

39. The applicant states that she was arbitrarily deprived of her right to access to the review ( cassation ) stage of the civil proceedings in breach of Article 6 of the Convention.

40. The applicant submits that under the Code of Civil Procedure, and as explained in the writings of Professor Stalev , the leading authority on civil procedure in Bulgaria, when an action has been brought by a procedural substitute in a third persons's interest, the latter becomes ex lege a party to the proceedings.  Therefore the applicant was a party to the proceedings regardless of the fact that there was no formal ruling of the District Court in this respect.  Furthermore, she was repeatedly treated by the District Court as a party to the proceedings.

41. As a result, in the applicant's view, the finding of the Supreme Court that she was not a party to the proceedings and that she thus had no standing to submit a petition for review was wrong.  Moreover, it was completely inappropriate and logically inconsistent to treat her petition for review as a petition for annulment under Section 233 para. 2 of the Code of Civil Procedure.  A petition for annulment under this provision could be submitted by third persons who had not taken part in the proceedings, whereas she had done so.

42. The Government submit that the applicant was summoned by the District Court as a co-plaintiff, as required by the relevant provisions of the Code of Civil Procedure.  The Government admit that the District Court's failure to make a formal ruling thereby accepting the applicant as a plaintiff was an omission and a breach of procedure, but also note that the applicant did not expressly ask the Court to make such a formal ruling.

43. The Government further state that the Supreme Court, having noted the omission of the District Court, was not competent to accept the petition for review as it originated from a person who had not been admitted as a party to the proceedings.  The only existing legal possibility to rectify the consequences of the District Court's omission was the institution of review proceedings by the Chief Public Prosecutor.  However, the applicant did not address the Prosecutor with such a request.

44. The Government also state that in the circumstances the Supreme Court acted in a manner favourable to the applicant.  The Court went further than the letter of the applicant's petition and examined, on its own motion, whether the latter would qualify to be examined as a petition for annulment under Section 233 para. 2 of the Code of Civil Procedure.  However, the one month's time-limit for the submission of a petition for annulment had been exceeded, through the applicant's fault.

45. The Government conclude that there has been no inappropriate restriction placed on the applicant's access to the Supreme Court, that she had an opportunity to participate in the examination of her case before the District Court, and that the allegation that there has been a violation of Article 6 of the Convention is manifestly ill-founded.

46. The Government also state that the applicant did not appeal against the judgment of the Plovdiv District Court of 7 January 1994 and that she could have petitioned the Chief Public Prosecutor or the President of the Supreme Court asking them to exercise their power to institute review proceedings and proceedings for annulment.

47. The Commission notes that the applicant complains of the alleged denial of access to the review ( cassation ) proceedings in a case which concerned the determination of her civil rights and obligations (see paras. 18 and 26).  The matter therefore falls to be examined under Article 6 para. 1 of the Convention.  Indeed, this has not been disputed by the Government.

48. The Commission must first establish whether the applicant was actually barred from access to the review ( cassation ) proceedings as alleged by her.

49. The Commission notes in this respect that the applicant's petition for review ( cassation ) was rejected.  However, the Government contend that the applicant could have gained access to the review ( cassation ) proceedings through the Chief Public Prosecutor.  The Commission notes that under the relevant law and practice the Chief Public Prosecutor enjoyed discretion as to whether or not to institute review proceedings (see para. 34).  It follows that a petition to the Chief Public Prosecutor cannot be regarded as a procedural instrument securing the applicant's right to access to the review proceedings.

50. Likewise, the Government's argument that the applicant should have petitioned the Chief Public Prosecutor or the President of the Supreme Court asking them to institute annulment proceedings under Section 233 of the Code of Civil Procedure is no answer to her grievance (see para. 35).  The applicant did not claim that she had not participated in the proceedings before the District Court but that its judgment was wrong in law.  Accordingly, she sought to make use of the appropriate remedy and to institute review ( cassation ) proceedings (see para. 24).

51. The Commission finds, therefore, that the Supreme Court by rejecting the applicant's petition on 30 October 1995 effectively barred her access to the review ( cassation ) proceedings.  Therefore, it must be established whether or not this was in conformity with Article 6 para. 1 of the Convention.

52. The Commission recalls that Article 6 para. 1 does not debar States from laying down regulations governing the access of litigants to an appellate or a cassation court, provided that the purpose of such regulations is to ensure the proper administration of justice (No. 12275/86, Dec. 2.7.91, D.R. 70, p. 47; No. 16598/90, Dec. 11.12.90, D.R. 66, p. 260).

53. There is no violation of Article 6 para. 1 of the Convention where an applicant is refused access to a cassation court due to his own procedural mistake (cf. Eur. Court HR, Levages Prestations Services v. France judgment of 23 October 1996, Reports of Judgments and Decisions 1996-V no. 19, p. 1530; Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports of Judgments and Decisions 1997-VIII no. 61, p. 2945; Edificaciones March Galego S.A. v. Spain judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I no. 64, p. 279).

54. In the present case the Commission observes that the applicant participated in the proceedings before the Plovdiv District Court as a co-plaintiff.  She was summoned by the Court as a party to the proceedings and took active part in the examination of the case (see paras. 19 and 20).  The Court even admitted an amendment of the claim requested by her (see para. 21).  It is apparent that a person who is not a plaintiff cannot amend the claim.

55. In these circumstances the Commission considers that it is not necessary to engage in the theoretical dispute whether the applicant was considered ex lege a party to the proceedings or whether she could not formally be considered a party without a formal ruling of the District Court in this respect.  It suffices to note that the lack of such a formal ruling was expressly recognised to have been due to a failure on the part of the District Court (see paras. 27 and 42).

56. The Commission further notes that when the applicant sought to institute proceedings for review ( cassation ) this proved impossible due to the procedural failure on the part of the District Court to make a formal order admitting her as a party (see paras. 25-29).  Insofar as the Government mention that the applicant did not expressly request such a formal ruling the Commission notes that under Section 15 para. 3 and Section 31 of the Code of Criminal Procedure it was the District Court's duty to summon the applicant "as a party" (see para. 31).  Moreover, the Supreme Court and, indeed, the Government admitted that the District Court was responsible for the failure (see paras. 27 and 42).

57. The Commission also notes that the applicant's petition for review ( cassation ) was submitted within the relevant two months' time-limit and was apparently in due form (see para. 24).  It has not been alleged that the petition was procedurally flawed.

58. In these circumstances the Commission finds that the rejection of the applicant's petition for review ( cassation ) was not based on any procedural mistake on her part but was the result of an omission imputable to the District Court.  It appears, therefore, that by refusing access to the review ( cassation ) proceedings the Supreme Court applied the procedural law in a manner which penalised the applicant for a formal error committed by the District Court.

59. Such a restriction on the access to a cassation court does not appear to serve the proper administration of justice.

CONCLUSION

60. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention.

   M.-T. SCHOEPFER                               J.-C. GEUS

      Secretary                                   President

to the Second Chamber                      of the Second Chamber