Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29303/95

by Sekul KOVACHEV

against Bulgaria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 April 1997, 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

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, 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 11 September 1995

by Sekul KOVACHEV against Bulgaria and registered on 17 November 1995

under file No. 29303/95;

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

31 July 1996 and the observations in reply submitted by the

applicant on 15 October 1996;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is a Bulgarian national born in 1930 and residing

in the village of Svetlia, municipality Kovachevzi, the region of

Sofia. Before the Commission he is represented by Mr. Ionko Grozev,

a lawyer practising in Sofia.

A. Particular circumstances of the case

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.

On an unspecified date the applicant submitted to the Kovachevzi

municipal Social Care Centre (Obshtinski tzentar za sotzialni grizhi)

applications for certain additional social payments provided for under

the Social Assistance Regulation ("SAR") (Pravilnik za sotzialno

podpomagane). He claimed that the provisions of the SAR entitled him

to a monthly income allowance and to other social payments, such as,

inter alia, allowances for medicaments, and for travelling to and back

from a rehabilitation centre. On unspecified dates the municipal

Social Care Centre refused the applicant's requests.

The applicant then appealed before the mayor of Kovachevzi. On

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

applicant he gave detailed explanations and stated, inter alia, that

the applicant was in receipt of a certain amount in monthly income

allowance under Section 5 of the SAR, and that the Regulation did not

entitle him to any additional sums.

As the applicant was not satisfied, in January 1994 he submitted

to the Radomir District Court (Rayonen 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 that 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 of the SAR.

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.

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

was confirmed on the same grounds by the Pernik Regional Court

(Okrazhen sad). 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)

1. Section 51 of the Bulgarian Constitution provides, insofar as

relevant:

"Citizens shall have the right to social security and welfare

assistance..."

2. The Social Assistance Regulations.

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. Its Section 4(1)

provided for a monthly income allowance payable to those who met the

conditions listed therein. Sections 9, 10 and 11 provided that

handicapped persons under certain conditions "[had] a right" to other

social benefits such as, inter alia, a free pass for the public

transport. Sections 15 - 17 provided that all social benefits were

granted by decision of the district social care centres, which were

subject to appeal to a commission appointed by the mayor.

A new Social Assistance Regulation ("SAR-1992") is in force since

25 July 1992.

Its Section 5 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.

COMPLAINTS

The applicant complains under Article 6 para. 1 of the Convention

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

the payment of social benefits. This allegedly amounted to a breach

of the applicant's right to a hearing before an impartial and

independent tribunal in the determination of his civil right to certain

social benefits.

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 Regulation, 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.

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.

In the applicant's view the bodies which are competent to

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

Social Care Centre, cannot be considered as independent tribunals.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 September 1995 and

registered on 17 November 1995.

On 12 April 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on 22 July

1996, after an extension of the time-limit fixed for that purpose. The

applicant replied on 15 October 1996.

On 10 September 1996 the Commission granted the applicant legal

aid.

THE LAW

1. 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.

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 ..."

2. 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.

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 also

state that the applicant's remaining claims for other social benefits

were unfounded.

Furthermore, his claims before the domestic authorities were

allegedly completely unreasonable as he did not submit any evidence to

support them. Moreover, the applicant attempted to mislead the

Commission as he did not clarify that on 10 January 1992 his handicap

had been assessed of a lower category, and that as a result he was not

entitled to certain social benefits which he claimed. Therefore, the

application is an abuse of the right to petition to the Commission.

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 bellow the guaranteed minimum. Also, the

applicant was denied some other benefits and sought compensation for

this.

3. The Commission considers that the Government's assertion 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 could only be accepted

if it were clear that the application was based on untrue facts.

However, most of the facts on which the application is based even

appear to be undisputed between the parties (No. 8317/78, Dec. 15.5.80,

D.R. 20, p. 44; No. 21987/93, Dec. 19.10.94, D.R. 79, p. 60).

Having examined the applicant's complaint under Article 6 para. 1

(Art. 6-1) of the Convention, 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.

This part of 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 has been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

KOVACHEV v. BULGARIA

KOVACHEV v. BULGARIA

LEXI