FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28591/03 by Tseno Hristov TSENOV against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 30 March 2010 as a Chamber composed of:

Peer Lorenzen , President, Renate Jaeger , Karel Jungwiert , Rait Maruste , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 11 August 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tseno Hristov Tsenov, is a Bulgarian national who was born in 1941 and lives in Sofia . He was represented before the Court by Mr K. Mihalkov, a lawyer practising in Sofia . The Bulgarian Government (“the Government”) were represented by their Agent, Mr s M. Dimova , of the Ministry of Justice .

A. The circumstances of the case

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

On 12 June 2002 the applicant brought an action against his brother before the Botevgrad District Court. He contended that he and his brother were co-owners of a plot of land and a house in Botevgrad. As his brother possessed the land and the house, the applicant sought the division of the property and compensation.

On 12 June 2002 Judge T. of the Botevgrad District Court instructed the applicant to indicate the manner in which he had acquired ownership of the property at issue and to present a plan of it and a tax valuation report.

On 28 June 2002 the Botevgrad District Court issued a certificate authorising the applicant to receive a certified copy of the plan of the property from the local municipality.

In reply to Judge T. ’ s instructions of 12 June 2002, on 8 July 2002 the applicant explained in writing that he and his brother had inherited the property from their parents. His father had died in 1963. In 1969 his mother had transferred the title of the property to his brother but in the applicant ’ s view this contract had been null and void because his mother had not been the sole owner. In 2001 the applicant ’ s brother had conveyed the title of the property to his son, the applicant ’ s nephew.

In addition to his initial claims for division and for compensation, the applicant requested that the 2001 contract whereby the property at issue had been acquired by his nephew be declared null and void.

The applicant enclosed with the statement of 8 July 2002 a photocopy of a plan of the property issued on 1 April 2002, and a photocopy of a tax valuation report.

In another statement, also dated 8 July 2002, the applicant requested the Botevgrad District Court to provide him with a certificate authorising him to obtain a certified copy of the plan and the original tax valuation report of the property from the local municipality.

On 8 July 2002 Judge T. issued new instructions to the applicant to further clarify his claims. She decided not to issue any decision in respect of the applicant ’ s request for a court certificate until those clarifications were provided.

In written statements of 19 and 25 July 2002 the applicant made the necessary clarifications in respect of his claims. In an additional statement of 29 July 2002 he requested that the District Court examine solely his claim concerning the nullity of the 2001 donation contract and withdrew the remaining claims. He urged the court to examine that claim, pointing out that the documents he had submitted contained all the relevant information.

On 2 September 2002 Judge T. made a handwritten note on the applicant ’ s statement of 25 July 2002 with instructions to the Botevgrad District Court ’ s registry to issue a certificate in respect of the plan of the property. At the same time, she instructed the applicant to provide a certified original copy of the plan and an original tax valuation report.

The applicant failed to comply with those instructions.

On 16 October 2002 Judge T. adopted a decision whereby the proceedings were discontinued since the applicant ’ s statement of claim had not been completed with the necessary documents.

The applicant appealed. He argued that he had been unable to obtain a certified copy of the plan and an original tax valuation report of the property.

On 19 December 2002 the Sofia Regional Court upheld the decision to discontinue the proceedings. Following a further appeal by the applicant, in a final decision of 19 May 2003 the Supreme Court of Cassation upheld the lower courts ’ decisions. It pointed out that the plan had been necessary in order to identify the property exactly, and the tax valuation report in order to calculate the court fee due. Since the applicant had failed to provide these documents, the proceedings had rightly been discontinued.

B. Rele vant domestic law and practice

1. Relevant provisions of the Code of Civil Procedure

Articles 98 and 99 of the Bulgarian Code of Civil Procedure 1952, in force at the relevant time, set out the procedural requirements for the validity of statements of claim. In particular, Article 98 § 2 specified that all relevant written evidence had to be submitted with the statement of claim.

Article 100 §§ 1 and 2 of the Code provided that where a statement of claim did not comply with the said requirements, the plaintiff was to be instructed to rectify the deficiencies, including to submit any relevant documents. In the event of failure to do so, by a decision of the respective court the statement of claim and the documents submitted were to be returned to the plaintiff and the proceedings discontinued. That decision was subject to appeal.

By Article 148 of the Code, the courts could issue certificates to be used by the parties to obtain documents from other state institutions.

For certain types of civil claims, such as claims for division of property or claims for the nullification of contracts concerning real property, court fees are determined as a percentage of the value of the property at issue, calculated on the basis of its tax valuation.

2. Other issues

Property plans and tax valuation reports are official documents issued by local municipalities.

There is no statutory limitation in time for seeking that a contract be declared null and void.

COMPLAINTS

The applicant complained , relying on Articles 6, 8, 9, 10 and 14 of the Convention and Article 1 of Protocol No. 1, that he had been denied access to a court because he had been required to provide documents that he could not, in his view, obtain, in order to have his civil action examined.

THE LAW

The Court finds that the complaint falls to be examined under Article 6 § 1 , which , in so far as relevant, reads:

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

The Government argued that the applicant could have submitted a formal request to be issued the documents sought and, in the event of a refusal by the local municipality, could have appealed . The Government also considered that the courts had provided to the applicant the assistance necessary for obtaining the documents at issue.

The applicant disputed these arguments. He pointed out that he had never been aware of the existence of the court certificate dated 28 June 2002 and expressed doubts as to the authenticity of that document, pointing out that Judge T. had only ordered that such a certificate be issued on 2 September 2002.

The Court notes that after some amendments to his initial claims, the applicant sought that the contract whereby his nephew had acquired ownership of his parents ’ house and land be declared null and void. The claim was not examined because the applicant ’ s statement of claim did not comply with the statutory requirement to be accompanied by a certain set of documents, namely, a certified copy of the plan of and an original tax valuation report concerning the disputed property.

Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court (see Golder v. the United Kingdom , 21 February 1975, §§ 28-36, Series A no. 18 ). This right is not absolute and may be subject to limitations. However, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 59, ECHR 1999-I).

The Court considers that in the case at hand the requirement that the applicant ’ s statement of claim be supported by all relevant documents in order to be examined by the courts pursued the legitimate aim of fair administration of justice (see, mutatis mutandis , Stone Court Shipping Company , S.A. v. Spain , no. 55524/00, § 34 , 28 October 2003 ) . Furthermore, it is of the view that this requirement did not restrict or reduce the applicant ’ s access to a court to an extent that the very essence of the right was impaired.

The Court does not see a reason to question the domestic courts ’ position expressed, in particular, by the Supreme Court of Cassation, that the documents missing in the case were indeed relevant, most notably because the plan had been necessary in order to identify the property and the tax valuation report in order to calculate the court fee due. However, the applicant failed to establish convincingly that he made the necessary efforts to obtain those documents directly from the municipality or, seeing that he was not the officially recognised owner of the property, through the assistance of the domestic courts.

The Court cannot accept the applicant ’ s allegation that the Botevgrad District Court failed to provide him with the necessary assistance. It notes that on 28 June 2002, soon after the lodging of the applicant ’ s claim, that court issued a certificate authorising him to obtain from the local municipality the required certified copy of the plan of the property. Seeing that the applicant disputes the authenticity of this certificate, the Court, which considers that it is not its task to examine whether the document was genuine, also notes that on 2 September 2002 Judge T. of the Botevgrad District Court instructed that court ’ s registry to issue, once again, such a certificate. The applicant does not dispute the authenticity of judge T. ’ s instructions but does not provide any explanation as to why subsequent to them he failed to receive from the Botevgrad District Court and present to the municipality the certificate at issue. The Court thus concludes that it was through his own failure to duly act that the applicant failed to obtain and present to the Botevgrad District Court the required certified copy of the plan of the property in support of his claim.

In view of this finding, the Court does not consider it necessary to deal with the question whether the domestic courts duly assisted the applicant, by issuing another certificate, in obtaining the other missing document, namely, an original tax valuation report. For the Court, it suffices that the applicant failed, through his own fault, to present a certified copy of the plan, because failure to present that document alone was a lawful ground for the discontinuation of the proceedings in the case (see “Relevant domestic law and practice” above).

In view of that, the Court concludes that the discontinuation of the proceedings brought by the applicant was a measure proportionate to the legitimate aim pursued.

Furthermore, the Court notes that the applicant remains free to bring a new action seeking that his nephew ’ s title to the disputed property be declared null and void, as under domestic law such actions are not limited in time (see “Relevant domestic law and practice” above).

In the light of the above considerations, the Court concludes that the present application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President