Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31806/96

by Bogdanka DIMOVA

against Bulgaria

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, 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

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 April 1996 by

Bodganka Dimova against Bulgaria and registered on 11 June 1996 under

file No. 31806/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

17 September 1997 and the observations in reply submitted by the

applicant on 17 November 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Bulgarian national residing in Plovdiv.

Before the Commission she is represented by Mr Ekimdjiev, a lawyer

practising in Plovdiv.

The facts of the case, as submitted by the parties, may be

summarised as follows.

A. Particular circumstances of the case

On 21 August 1992 the applicant complained to the District

Prosecutor's Office (Raionna prokuratura) that, inter alia, her husband

fraudulently induced her to sign, on 10 December 1991, 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.

On 28 September 1992 the Prosecutor's Office brought a civil

action before the Plovdiv District Court (Raionen sad) 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 (see below Relevant domestic

law). The prosecutor asked the Court to nullify the sale-purchase

contract as it was allegedly concluded fraudulently.

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.

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.

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.

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] ..."

On 21 January 1994 the Prosecutor's Office filed with the Court

an appeal (protest) against the judgment. However, this appeal was not

admitted for examination as it did not comply with certain procedural

requirements.

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 (Varhoven

sad) 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.

On 30 October 1995, after a hearing, the Court rejected the

applicant's petition as inadmissible.

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.

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 an omission 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.

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.

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

Section 27 of the Code of Civil Procedure (Grazhdansko-

protzesualen kodeks) 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.

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.

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 it for new

examination or to decide itself on the merits.

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.

COMPLAINTS

The applicant contends that there has been a breach of Article 6

para. 1 of the Convention. She complains inter alia of the restriction

on her access to the highest judicial authority, the Supreme Court.

She submits also that the Supreme Court applied wrongly the

relevant procedural law thus violating the principle of equality of

arms. Thus, a person in the applicant's position should be considered

to have become a party to the proceedings ex lege and should have been

treated equally with any other party to the proceedings.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 April 1996 and registered on

11 June 1996.

On 21 May 1997 the Commission decided to communicate the

application to the respondent Government.

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.

On 28 October 1997 the Commission granted the applicant legal

aid.

THE LAW

The applicant complains under Article 6 (Art. 6) of the

Convention of the restriction on her access to the Supreme Court.

Article 6 (Art. 6) of the Convention, insofar as relevant,

provides as follows:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair ... hearing

... by [a] ... tribunal established by law..."

a) The Government raise a preliminary objection that the application

is an abuse of the right to petition as it is "obviously ungrounded"

and misleads the Commission on the issue of the exhaustion of domestic

remedies.

The Government further submit that the applicant has not

exhausted all domestic remedies within the meaning of Article 26

(Art. 26) of the Convention because her petition for review (cassation)

was rejected by the Supreme Court on 30 October 1995 on procedural

grounds, as having been out of time.

The Government further maintain that the application is submitted

after the expiry of the six months' time-limit. In their view this

time-limit is to be counted as from 21 March 1994. The Government

submit that this is the date of expiration of the one month time-limit

for filing a petition for annulment under Section 233 para. 2 of the

Code of Civil Procedure against the District Court's judgment dated

7 January 1994 and served on 14 February 1994.

The applicant replies that the alleged violation of Article 6

(Art. 6) of the Convention occurred by virtue of the decision of the

Supreme Court of 30 October 1995 against which there exist no effective

domestic remedies. Therefore, the contentions of the Government in

respect of the exhaustion of domestic remedies and the six months'

time-limit are misplaced.

The Commission has first examined the arguments of the Government

in respect of the requirements of Articles 26 and 27 (Art. 26, 27) of

the Convention.

The Commission, like the applicant, notes that in the present

case the alleged violation of the Convention concerns precisely the

manner in which the Supreme Court in its judgment of 30 October 1995

decided on the relevant procedural issues. Furthermore, the Government

have not stated that against this judgment there existed a remedy which

has not been utilised (cf. Eur. Court HR, De Jong, Baljet and Van den

Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77,

p. 18, para. 36). Therefore, the Government's objection as regards the

exhaustion of domestic remedies must fail.

It also follows that the Government's position that the six

months' time-limit ran from 21 March 1994 cannot be accepted.

There having been no indication that the application was

knowingly based on untrue facts (cf. No. 28626/95, Dec. 3.7.97), the

Commission further rejects as unsubstantiated the assertion of the

Government that there has been an abuse of the right to petition within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

b) 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 further

state that the fact that the District Court did not make a formal

ruling thereby accepting the applicant as a plaintiff was an omission

on the part of the Court, but also note that the applicant did not

expressly ask the Court to make such a formal ruling. In any event,

the applicant was able fully to participate in the proceedings before

the District Court.

The Government further recall that the Supreme Court noted the

omission of the District Court. Thereafter the Supreme Court, in the

Government's submission, acted in a manner favourable to the applicant,

as the Court on its own initiative assumed that the applicant could

have filed a petition for annulment under Section 233 para. 2 of the

Code of Civil Procedure, and examined the applicant's petition for

review as a petition for annulment. However, the time-limit for the

submission of a petition for annulment had been exceeded, through the

applicant's fault.

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 (Art. 6) of the Convention is manifestly ill-

founded.

The applicant submits that under the Code of Civil Procedure, and

as explained in the writings of Professor Stalev, the leading authority

in 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.

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 have not taken

part in the proceedings, whereas she did.

The applicant concludes that by interpreting the law in this way

the Supreme Court deprived her of her right to access to the review

(cassation) stage of the proceedings in breach of Article 6 (Art. 6)

of the Convention.

Having examined the application, the Commission finds that it

raises serious questions of fact and law which are of such complexity

that their determination should depend on an examination of the merits.

The application cannot, therefore, be regarded as manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention, and no other grounds for declaring it inadmissible have

been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

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

Secretary President

to the Second Chamber of the Second Chamber

Menu

DIMOVA v. BULGARIA

DIMOVA v. BULGARIA

LEXI