EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 29303/95

Sekul Kovachev

against

Bulgaria

REPORT OF THE COMMISSION

(adopted on 28 October 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-24) 3

A. The particular circumstances of the case

(paras. 16-21) 3

B. Relevant domestic law

(paras. 22-24) 4

III. OPINION OF THE COMMISSION

(paras. 25-44) 6

A. Complaint declared admissible

(para. 25) 6

B. Point at issue

(para. 26) 6

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

(paras. 27-43) 6

CONCLUSION

(para. 44) 8

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION 9

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, born in 1930 and resident in the

village of Svetlya, municipality Kovachevzi, the region of Sofia.  He was

represented before the Commission by Mr. Yonko Grozev, a lawyer practising in

Sofia.

3. The application is directed against Bulgaria.  The respondent Government

were represented by their Agent, Mrs. Guenka Beleva.

4. The case concerns the applicant's complaint that contrary to Article 6

para. 1 of the Convention his alleged civil rights to certain social welfare

benefits could not be determined by an impartial and independent tribunal

because the domestic law provided, at the relevant time, for an administrative

procedure for their determination.

B. The proceedings

5. The application was introduced on 11 September 1995 and registered on 17

November 1995.

6. On 12 April 1996 the Commission (First 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 observations were submitted on 22 July 1996, after an

extension of the time-limit fixed for this purpose.  The applicant replied on 15

October 1996.  On 10 September 1996, the Commission granted the applicant legal

aid for the representation of his case.

8. On 10 April 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the

parties on 24 April 1997 and they were invited to submit such further

information or observations on the merits as they wished.

10. 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

11. The present Report has been drawn up by the Commission (First Chamber) in

pursuance of Article 31 of the Convention and after deliberations and votes, the

following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENI?

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12. The text of this Report was adopted on 28 October 1997 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.

13. 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.

14. The Commission's decision on the admissibility of the application is

annexed hereto.

15. 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

16. Since 1989, due to serious health problems, the applicant has been

disabled and in receipt of a social pension as a physically handicapped person

under the Pension Law (Zakon za pensiite).  He was also in receipt of a monthly

income allowance under the Social Assistance Regulation (SAR-1991 and SAR-1992)

(Pravilnik za sotzialno podpomagane) (see below para. 23), and of other welfare

payments.

17. On an unspecified date the applicant submitted to the Kovachevzi municipal

Social Care Centre (Obshtinski tzentar za sotzialni grizhi) applications for an

increase in his monthly allowance and for certain additional social payments

provided for under SAR-1991 or SAR-1992, such as, inter alia, allowances for

medicaments, and for travelling to and from a rehabilitation centre.  The

applicant considered that the conditions laid down in the relevant provisions,

such as receipt of a lump sum income below a certain threshold, were met and

that therefore he was entitled to the amounts claimed.  On unspecified dates the

municipal Social Care Centre refused the applicant's requests.

18. The applicant submitted an appeal to the mayor of Kovachevzi against this

decision.  On 1 June 1993 the mayor dismissed his claims.  In a letter sent to

the applicant he gave detailed explanations with calculations of the amounts

received by the applicant and concluded that the conditions for the additional

welfare benefits claimed were not met, the applicant having received all that he

was entitled to.

19. As the applicant was not satisfied, in January 1994 he lodged with the

Radomir District Court (Raionen sad) a civil action against the municipal Social

Care Centre claiming 58,128 leva in unpaid social benefits due for a two year

period, between 1 January 1992 and 1 January 1994.  The applicant claimed, inter

alia, that under SAR-1992 he was entitled to a larger monthly income allowance

under Section 5, a supplementary rent allowance under Section 8, an allowance

for medical expenditures under Section 10a, and annual allowances for heating

and rehabilitation expenditures under Sections 12 para. 1 and 16 para. 1. 

20. On 8 June 1994 the District Court rejected the action stating that under

Sections 19 - 22 of the SAR the examination of claims for social benefits was

within the competence of the local Social Care Centre.  Its decisions concerning

particular one-time benefits could be challenged before the mayor and, as

regards claims for regular monthly benefits, before the National Social Care

Centre (Natzionalen tzentar za sotzialni grizhi).  Therefore the court was not

competent to examine the applicant's claims.

21. On 7 September 1994, upon the applicant's appeal, this decision was

confirmed on the same grounds by the Pernik Regional Court (??????? ???).  The

applicant's ensuing petition for review was dismissed by the Supreme Court

(Varhoven sad) on 20 March 1995.

B. Relevant domestic law (translations and summaries)

22. Section 51 of the Bulgarian Constitution provides, insofar as relevant:

"Citizens shall have the right to social security and welfare assistance..."

23. The Social Assistance Regulations (SAR).

The applicant's claims for social payments concerned a period of time

during which two different pieces of legislation were in force.

The first was the Social Assistance Regulation adopted in March 1991

("SAR-1991"), in force until 24 July 1992 (D.V. br. 26/1991, ism. i dop. br. 68

i 105 ot 1991 i br. 6 ot 1992). Section 4(1) provides for a monthly income

allowance payable to those who met the conditions listed therein.  Sections 9,

10 and 11 provide that handicapped persons under certain conditions "have a

right" to other social benefits such as, inter alia, a free pass for the public

transport.  Sections 15 - 17 provide that all social benefits are granted by

decision of the district social care centres, which are subject to appeal to a

commission appointed by the mayor.

Another Social Assistance Regulation ("SAR-1992") (D.V. br. 59/1992, ism.

br. 24, 26, 68 i 98 ot 1993 i br. 14, 63 i 96 ot 1994) has been in force between

25 July 1992 and 31 December 1996.

Section 5 of SAR-1992 provides that everyone whose income is below a

certain, individually determined, minimum amount "[s]hall have the right to a

monthly welfare pecuniary or in-kind allowance ...".  The provision contains

detailed rules for the determination of the minimum amount, based on age and

family situation.  The monthly allowance is the difference between the minimum

amount and the income of the family.  Sections 6 and 7 contain other detailed

conditions as regards the assessment of property and income for purposes of

determining the entitlement to the allowance. 

Section 8 provides for a "right" to a supplementary rent allowance and

defines the conditions for its payment.

Section 10a stipulates, inter alia, that persons meeting certain

conditions have the "right" to receive medicaments free of charge or with a

price reduction.

Section 12 provides that ad hoc payments "can be made" in cases of

difficulties caused, inter alia, by illness, or the purchase of expensive

medicaments or heating supplies.

Section 16 provides, inter alia, that certain categories of handicapped

persons "shall have the right" to free rehabilitation once per year.

Section 19 para. 1 provides as follows:

"(1) The local social care organs shall be obliged to ensure, under the rules of

this Regulation, the right of the citizens to the monthly allowance and shall,

in addition, assess the legal possibility for other types of assistance."

According to Sections 19 and 20 appeals concerning particular ad hoc

benefits are examined by the mayor and appeals as regards monthly benefits, by

the National Social Care Centre.

Another Social Assistance Regulation (SAR-1996) (D.V. br. 51/1996) entered

into force on 1 January 1997.  By referring expressly to the Administrative

Procedure Act in its Section 30 para. 3 it provides for a possibility to appeal

to a court against a decision concerning social assistance payments.

24. The Administrative Procedure Act (Zakon za administrativnoto proizvodstvo)

According to Section 33 of the Act all administrative decisions, as a

general rule, are subject to appeal to a court.  Section 34 of the Act enlists

certain exceptions.  In particular under paragraph 4 of this provision no

judicial appeal lies against an administrative decision where, inter alia, a law

provides for another avenue of appeal, such as to a specialised body of

adjudication.

In cases concerning administrative decisions under certain laws and

regulations the Supreme Court has found that judicial appeal against an

administrative act is inadmissible where the applicable law provides for another

avenue of appeal (opr. No. 207 ot 16.2.1993 po gr.d. 1526/92 na VS III g.o.;

opr. No. 404 ot 11.4.1994 po adm. d. 1819/94 na VS III g.o.).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

25. The Commission has declared admissible the applicant's complaint that

contrary to Article 6 para. 1 (Art. 6-1) of the Convention his alleged civil

rights to certain social welfare benefits could not be put before an impartial

and independent tribunal.

B. Point at issue

26. The point at issue in the present case is whether there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

27. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention of the refusal of the courts to examine on the merits his claims for

the payment of social benefits.  He alleges that as a result he could not have a

hearing before an impartial and independent tribunal in the determination of his

civil right to certain social benefits.

28. Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant,

provides as follows.

"1. In the determination of his civil rights and obligations ...,

everyone is entitled to a ... hearing ... by an independent and impartial

tribunal ..."

29. The applicant states that Bulgarian law provides for a right to certain

social welfare payments.  This right is enshrined in Section 51 of the Bulgarian

Constitution and is elaborated in the Social Assistance Regulations, whose

provisions clearly delimit the circle of entitled persons and the types and the

amounts of the various allowances.  There is no room for discretion left to the

local administrative authority to decide whether or not to grant a particular

allowance.

30. Furthermore, based on the criteria established in the Court's case-law

(Eur. Court HR, Feldbrugge v. Netherlands judgment of 29 May 1986, Series A no.

99; Deumeland v. Germany judgment of 29 May 1986, Series A no. 100; and Salesi

v. Italy judgment of 26 February 1993, Series A no. 257-E), this right is of a

civil character as it is personal and economic in its nature.

31. In the applicant's view the bodies which at the relevant time were

competent to determine the civil right at issue, i.e. the mayor and the National

Social Care Centre, cannot be considered as independent tribunals.

32. In response to the Government's assertion that his claims for additional

payments were completely unreasonable the applicant replies inter alia that he

genuinely believes that he is entitled to the sums which he claimed before the

national authorities.  Thus, the applicant considers that the monthly income

allowance under Section 4(1) of SAR-1991 and Section 5 of SAR-1992 is intended

to provide a "safety net" for persons whose income is insufficient to ensure a

living.  Therefore, the in-kind assistance received from the local Social Care

Centre should not have been taken into account when determining his monthly

income for purposes of the SAR.  This is so because the in-kind assistance is

not provided on a regular basis and is discretionary.  Furthermore, 270 leva per

month were withheld from the applicant's pension between September and December

1993, to cover payments under a judicial decision.  His income was thus brought

well below the guaranteed minimum.  Also, the applicant was denied some other

benefits and sought compensation for this.  

33. The Government state that the entitlements under Sections 9, 10 and 11 of

the SAR-1991 and those under Sections 5, 8, 10a and 19 of the SAR-1992 are

"rights", as the competent administrative authority has no discretion whether to

grant them or not.  As regards the remaining benefits claimed by the applicant,

the Government maintain that they were discretionary.  The Government further

admit that the National Social Care Centre cannot be considered an independent

tribunal within the meaning of Article 6 (Art. 6) of the Convention and that the

applicant could not have a hearing on the merits before a court.

34. However, the Government also make a detailed analysis of the sums received

by the applicant between 1 January 1992 and 1 January 1994.  On this basis they

find that the applicant's lump monthly income exceeded at all times the minimum

amount and conclude that his claim for additional monthly allowance under

Section 5 of the SAR-1992 was unfounded and was, therefore, rightly dismissed.

The Government maintain that the applicant's remaining claims for other social

benefits were also unfounded.  They were, moreover, completely unreasonable as

he did not submit any evidence to support them.

35. The Commission recalls that Article 6 para. 1 (Art. 6-1) extends only to

"contestations" (disputes) over civil rights and obligations which can be said,

at least on arguable grounds, to be recognised under domestic law; it does not

in itself guarantee any particular content for civil rights and obligations in

the substantive law of the Contracting States (Eur. Court HR, H. v. Belgium

judgment of 30 November 1987, Series A no. 127, p. 31, para. 40).

36. Therefore, and in accordance with the Convention organs' case-law, the

applicability of Article 6 (Art. 6) in the present case depends in the first

place on whether it may be said, at least on arguable grounds, that Bulgarian

law provided at the pertinent time for a "right" to receive, under certain

conditions, the social assistance payments claimed by the applicant.

37. The Commission notes that it is undisputed between the parties that the

entitlement to welfare payments under Sections 9, 10 and 11 of the SAR-1991 and

those under Sections 5, 8, 10a and 19 of the SAR-1992 are "rights" (see paras.

29 and 33).  The Commission also notes that the relevant law provides for

conditions, such as monthly income below a certain threshold, and for other

similar requirements which, if fulfilled, entitle the person concerned to a

particular social assistance payment (see para. 23).  The competent

administrative authority has no discretion whether to grant these payments or

not, its role being to examine whether the relevant conditions are met.

38. In view of its finding above (see para. 37) the Commission considers it

unnecessary to examine whether the remaining social assistance payments claimed

by the applicant were also "rights" within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

39. Insofar as the Government may be understood as arguing that the

applicant's claims were so unreasonable and vexatious as leading to the

conclusion that there was no genuine "contestation" (dispute), the Commission

notes that the applicant made very specific claims, based inter alia on

calculations of his income.  He disputed the finding of the social care

administration that he did not meet the conditions for certain welfare benefits

and persisted in his endeavours to obtain satisfaction by appealing to the mayor

and then by bringing an action in court (see paras. 17, 19 and 21).

40. The rights claimed by the applicant are welfare allowances (see para. 17).

Therefore, in accordance with the Court's established case-law, they are "civil"

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur.

Court HR, Salesi v. Italy judgment, loc. cit., para. 19).

41. The Commission finds, therefore, that under Article 6 para. 1 (Art. 6-1)

of the Convention the applicant was entitled to a hearing before a "tribunal" in

the determination of the dispute concerning the claimed welfare payments.

42. The Commission notes that the applicant did not attempt to submit a

judicial appeal under the general rule of Section 33 of the Administrative

Procedure Act against the mayor's decision of 1 June 1993.  He submitted instead

an action claiming certain amounts in unpaid social benefits (see para. 19).

However, noting the parties agreement that there was no possibility for a

judicial examination of the applicant's case (see paras. 31 and 33 in fine), the

Commission sees no reason to reach a different finding.  The Commission notes in

particular that Section 34 para. 4 of the Administrative Procedure Act excluded

the possibility of a judicial appeal in certain cases, such as where a non-

judicial avenue of appeal was specifically provided for (see para. 24), and that

it has not been shown that the applicant's case would for some reason not fall

under paragraph 4 of Section 34.

43. Furthermore, it is accepted that neither the mayor, who examined the

applicant's appeal, nor the National Social Care Centre, before which the

applicant could have appealed in respect of his claim for an increased monthly

allowance, can be considered "tribunal[s]" within the meaning of Article 6 para.

1 (Art. 6-1) of the Convention.  Also, the courts, when seised by the applicant

action, did not examine his claims on the merits.

CONCLUSION

44. The Commission concludes, unanimously, that in the present case there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

       M.F. BUQUICCHIO     J. LIDDY

          Secretary     President

    to the First Chamber of the First Chamber