FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52367/99 by Boris Kostov MIHAILOV against Bulgaria

The European Court of Human Rights ( First Section) , sitting on 9 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev, judges ,

and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 17 June 1999 ,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Boris Kostov Mihailov, wa s a Bulgarian national who was born in 1933 and live d in Sofia . He died on 16 April 2001 . On 21 October 2003 his son and daugther, Mr Kostik Borisov Mihailov and Ms Eleonora Borisova Mihailova , Bulgarian nationals born in 1957 and 1961 respectively and living in Sofia, expressed the wish to continue the proceedings before the Court on the applicant ’ s behalf. The applicant and his heirs we re represented before the Court by Mr P. Bogoev, a lawyer practising in Sofia . The respondent Government we re represented by Ms M. Pasheva , co ‑ agent, 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 .

1. The determination of the applicant ’ s degree of disability and the refusal of the Supreme Administrative Court to effect judicial review of that determination

In a decision of 27 November 1989 the Labour ‑ Expert Medical Commission (“LEMC”) specialised in pulmonary diseases diagnosed the applicant as suffering from asbestosis and various other diseases and determined that he was under a second degree disability. From that point on the applicant was undergoing biannual medical examinations at the LEMC, and each time his diagnosis and degree of disability were confirmed.

Apparently due to a deterioration of the applicant ’ s health, in a decision of 9 December 1997 the competent LEMC set his disability as first degree, without the need for another person ’ s assistance. Later, on 21 May 1998 , another LEMC decided that the applicant was under a first degree disability in need of another person ’ s assistance.

The chief expert at the Central Labour ‑ Expert Medical Commission (“CLEMC”) at the Ministry of Health appealed against the latter decision. On 18 June 1998 the CLEMC overturned the LEMC ’ s decisions of 9 December 1997 and 21 May 1998 and decided that the applicant was under a second degree disability.

The applicant lodged an appeal against th is decision with the Supreme Administrative Court .

On 6 October 1998 a three ‑ member panel of the court decided that the applicant ’ s appeal was inadmissible. It held that the decision appealed against was not subject to judicial review , in accordance with section 23(c) of the Implementing Regulations of the Labour Code of 1951, section 29a of Regulation no. 36 of the Minister of Health and section 11(2) of the Implementing Regulations of the Pensions Act.

The applicant appealed to a five ‑ member panel of the Supreme Administrative Court , arguing that the refusal of the three-member panel to examine the appeal was contrary to Article 120 § 2 of the Constitution and Article 6 of the Convention. He stated that the CLEMC ’ s decision was directly decisive for the amount of his pension .

T he five ‑ member panel upheld the three-member panel ’ s decision in a final decision of 1 March 1999 , holding that under section 23(c) of the Implementing Regulations of the Labour Code of 1951 the CLEMC ’ s decisions were final and not subject to judicial review.

2 . The proceedings against the CLEMC under the State Responsibility for Damage Act

In 1999 the applicant brought an action against the CLEMC under the State Responsibility for Damage Act. He alleged that the commission had improperly set his degree of disability, thus causing him damage, and sought compensation.

The applicant appeared at the first hearing, but thereafter failed to attend four hearings. When he died , the court examining the action stayed the proceedings, allowing the applicant ’ s heirs to continue the action on his behalf. However, o nly the applicant ’ s daughter took part in the proceedings, there apparently being certain problems with his son ’ s summoning.

In a judgment of 22 April 2003 the Sofia City Court dismissed the action. It held that no evidence had been gathered that by setting the applicant ’ s degree of disability the CLEMC had caused him damage . The State ’ s responsibility under the Act was engaged only if there had been an illegal decision, action or omission of an administrative body, which had caused damage . The burden was on the plaintiff to prove the existence of all these elements. The applicant and his heirs had failed to adduce evidence in this respect , despite the abundant opportunities they had had to do so.

B. Relevant domestic law and practice

1. Degrees of disability

Under Bulgarian law as it stood at the relevant time , there existed three degrees of disability, differentiated according to the character and the course of the disabling illness, the functional status of the ailing organ and of the organism as a whole, and the requirements of the disabled ’ s profession (section 46(1) of Regulation no. 36 of the Minister of Health on the expert assessment of long ‑ lasting incapacity to work). The first degree of disability wa s reserved for persons who ha d , due to their state of health, lost all ability for work, or persons with durable, i ncurable, or worsening ailments set forth in a special list (section 52); the second one cover ed persons who ha d lost the ability to perform theirs or any other work, but who could be accommodated for work under conditions suitable for their health, or persons with durable, i ncurable, or worsening ailments set forth in the above list (section 54); and the third one cover ed persons who, as a result of their state of health, had to change their profession with one requiring lower qualifications, or who had to change their conditions of work within the same profession (section 55). If a person was disabled on account of several illnesses, the decision determining his or her disability status had to set forth his or her degree of disability pursuant to each of the separate illnesses, as well as the overall degree of disability (section 50).

Persons under a first degree disability we re divided in two subcategories: those who need ed another person ’ s assistance, and those who did not. The determination who was in need of such assistance was made on the basis of the findings about that person ’ s need of everyday care, help or supervision (section 53).

2. Pension rights of the disabled

Section 17 of the Pensions Act, as in force at the relevant time, provided that the amount of the professional disability pension was to be set pursuant to the degree of disability: those under the first degree were entitled to 70% of their average salary, those under the second degree to 55%, and those under the third degree to 35%. The amount of the non-professional disability pension was to be likewise set pursuant to the degree of disability: 55%, 40% and 25% respectively (section 20 of the Pensions Act).

Moreover, persons under a first degree disability in need of another person ’ s assistance were entitled, in addition to the pension they received, to a further 75% of the amount of the social pension (section 46(2) of the Pensions Act).

3. The LEMCs and the CLEMC

The LEMCs and the CLEMC were established pursuant to the above ‑ mentioned Regulation no. 36 (now superseded by a newer statutory instrument) under the authority of the Minister of Health (section 2 of the Regulation). The LEMCs we re responsible for, inter alia , determining the degree of a person ’ s disability on the basis of certain medical criteria set out in the Regulation. The CLEMC hear d appeals against decisions of the LEMCs.

The members of the commissions , who were exclusively medical professionals , were remunerated under ordinary employment contracts they enter ed into with the local mayors, the Minister of Health or the medical directors of the local hospitals ( s ection 7a of the Regulation).

There were no written rules regulating the procedure before the commissions. Regulation no. 36 provided only that they had to proceed on the basis of an examination of the person concerned and of medical documents, making no provision for witness testimony or other evidence. No hearings we re held.

Section 23(c) of the Implementing Regulations of the Labour Code of 1951 provided that the CLEMC ’ s decisions pursuant to appeals by the disabled or the administration were final. So did section 29a of the above ‑ mentioned Regulation no. 36 and section 11(2) of the Implementing Regulations of the Pensions Act.

4. Judicial review of administrative action

(a) Relevant constitutional and statutory provisions

Article 120 of the Constitution provides:

“1. The courts shall review the lawfulness of the administration ’ s acts and decisions.

2. Physical and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save in the cases expressly specified by statute.”

The Administrative Procedure Act (“APA”) governs the procedure for issuing “administrative acts” and for judicial review of such acts. Section 2(1) of the Act defines “individual administrative acts” as “acts issued [by public authorities], which create rights or obligations for, or affect rights or legitimate interests of, individuals or legal entities, as well as the refusals to issue such acts”. By sections 33 and 34 of the Act, all “administrative acts”, save those relating to the security of the country or specifically enumerated by statute, are subject to judicial review.

(b) Judgment no. 21 of 1995 of the Constitutional Court

In its interpretative judgment no. 21 of 26 October 1995 in constitutional case no. 18/1995 (S tate G azette , issue 99 of 1995) the Constitutional Court gave a binding interpretation of Article 120 § 2 of the Constitution. It held, inter alia , that that Article ’ s provision encompassed all administrative acts regardless of their character or theoretical qualification. The exclusion of a given administrative act from judicial review could only be done by statute. “All administrative acts” meant “without exception”. Only internal acts which did not affect in any way physical or legal persons outside the respective administration were not covered by the constitutional provision.

(c) Case-law of the Supreme Court and of the Supreme Administrative Court

The former Supreme Court [1] ‘ s case-law was that the decisions of the special medical commissions were not “administrative acts” within the meaning of the APA, which could be appealed against before a court, but rulings of special bodies subject only to a hierarchical appeal within the respective administration ( опред. № 304 от 1 юли 1992 г., ВС, III г.о. ).

In April 1999 the Supreme Administrative Court started allowing appeals against decisions of special medical commissions. In contrast with the prior case-law of the Supreme Court, it held that the commissions ’ decisions were affecting the rights of the persons examined and were therefore “administrative acts” within the meaning of the APA. The general rule under Article 120 § 2 of the Constitution being that administrative acts were subject to judicial review unless otherwise provided by statute, the commissions ’ decisions were appealable before a court. A number of decisions of the Supreme Administrative Court also relied on Article 6 of the Convention and, in particular, its “access to a court” requirement ( опред. № 1580 от 2 април 1999 г. по адм. д. № 4869/1998 г., ВАС, І о.; опред. № 4491 от 6 август 1999 г. по адм. д. № 937/1999 г., ВАС, І о.; опред. № 446 от 1 февруари 2000 г. по адм. д. № 3513/1999 г., ВАС, І о.; реш. № 351 от 25 януари 2001 г. по адм. д. № 5358/2000 г., ВАС, І о.; реш. № 6475 от 3 юли 2002 г. по адм. д. № 2611/2002 г., ВАС, петчленен състав ).

5. The State Responsibility for Damage Act of 1988 („ Закон за отговорността на държавата за вреди, причинени на граждани “)

Section 1 of the Act provides:

“ 1. The State shall be liable for damage caused to private persons by the illegal decisions , actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties.

2. Compensation for damage for unlawful decisions under the preceding subsection shall be due [only if] they have been overturned [in prior proceedings]. If the damage is the result of a decision which is null and vo id, the nullity of the decision ... may be established by the court trying the action for compensation.”

The action for compensation must be filed “ against the bodies ... whose illegal orders, actions, or omissions have caused the alleged damage” (section 7).

COMPLAINT

The applicant complain ed under Article 6 of the Convention that the Supreme Administrative Court had refused to examine his appeal against the CLEMC ’ s decision to deny him the status of a first degree disabled.

THE LAW

In respect of his complaint about the Supreme Administrative Court ’ s refusal to examine his appeal against the medical commission ’ s decision the applicant relied on Article 6 of the Convention, which provides, as relevant:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

1. The Government requested that the application be struck out of the list of cases in accordance with Article 37 § 1 (a) and (c) of the Convention, since the applicant or his heirs had no intention to pursue it and since it was no longer justified to continue its examination .

In particular, they submitted that the applicant ’ s lawyer had not written to the Court after the introduction of the application, which made it plausible that after a certain point the applicant had no longer intended to pursue the application . This conclusion was further supported by the fact that the applicant ’ s heirs had shown no interest in prosecuting the action under the State Responsibility for Damage Act and had hence lost the case.

The Government further argued that in April 1999 the Supreme Administrative Court ’ s case ‑ law had evolved and that since that time that court had constantly examined appeals against the decisions of special medical commissions. To achieve this result that court had expressly relied on Article 6 of the Convention. Therefore, the problem had been resolved.

The applicant ’ s heirs submitted that there had been no indication that the applicant had not intended to pursue his application. They further argued that the fact that proceedings had been instituted under the State Responsibility for Damage Act was completely irrelevant to the applicant ’ s complaint. Moreover, the applicant ’ s action could not have been successful, because the Act required that the CLEMC ’ s decision be overturned as unlawful in prior proceedings before the competent administrative court. However, that was exactly what the Supreme Administrative Court had refused to do.

As regards the change of the Supreme Administrative Court ’ s case ‑ law, the applicant submitted that the decisions cited by the Government were the practice of individual sections of that court and that, in the absence of a binding interpretative decision , it could hardly be argued that the problem had been resolved.

Article 37 § 1 of the Convention provides , as relevant :

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

...

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application. ... ”

The Court notes that the applicant introduced his application on 17 June 1999 and that he died on 16 April 2001 . It further notes that on 21 October 2003 his heirs expressed the wish to continue the proceedings before the Court on his behalf. As a rule, when an applicant dies in the course of the proceedings , the Court take s into account the statements of his or her heirs or close family members expressing the wish to pursue the proceedings before the Court (see, with further references, Karner v. Austria , no. 40016/98, § 22, ECHR 2003 ‑ IX). It sees no reason to depart from its established case ‑ law .

As regards the arguments advanced by the Government, the Court notes that the applicant has not failed to reply to a letter or to a request for information sent by the Court and has done nothing to overtly or tacitly show that he has lost interest in the proceedings. Further more , even assuming that the applicant ’ s heirs had shown no interest in the proceedings under the State Responsibility for Damage Act, that has no bearing on their wish to pursue the proceedings before the Court .

Turning to the second limb of the Government ’ s strike ‑ out request, namely that it was no longer justified to continue the examination of the application , the Court notes that indeed in April 1999 the Supreme Administrative Court changed its case-law and started examining appeals against decisions of the special medical commissions , relying, inter alia , on Article 6 of the Convention. However, the Court ’ s task in the present proceedings is not to assess in the abstract the present conformity of the respondent State ’ s laws and practice with the Convention, but to examine the actual circum stan ces of the applicant ’ s case, which concerns the Supreme Administrative Court ’ s refusal to examine his appeal against the decision of the CLEMC in October 1998 and March 1999. In these circumstances, the Court finds no reason making it no longer justified to continue the examination of the application.

In view of the foregoing considerations, the Court rejects the Government ’ s request that the application be struck out of its list of cases .

2. Concerning the admissibility of the application, the Government confined their comments to stating that the application was manifestly ill ‑ founded.

The applican t ’ s heir s submitted t hat the CLEMC ’ s decision was decisive for the applicant ’ s right to a pension , the amount of which was directly dependent on his degree of disability, and for his right to a supplement to his pension , which was also dependent on the CLEMC ’ s determination whether he was in need of another person ’ s assistance. Referring to the cases of Feldbrugge v. the Netherlands ( judgment of 29 May 1986 , Series A no. 99 ) , Deumeland v. Germany (judgment of 29 May 1986 , Series A no. 100 ) and Francesco Lombardo v. Italy ( judgment of 26 November 1992 , Series A no. 249 ‑ A) , the applicant ’ s heirs submitted that social security rights which were not the result of a discretionary decision by a state authority but were determined on the basis of criteria contained in the law, such as those in issue in the present case, were “ civil rights ” within the meaning of Article 6 of the Convention .

The applicant ’ s heirs further argued that the medical commissions could not be deemed a “tribunal” within the meaning of Article 6 , because they were regulated by a statutory instrument – Regulation no. 36 of the Minister of Health and were part of the executive branch . T he presidents of the LEMC s were appointed by the mayors or by the Minister of Health and t he members of the LEMCs were appointed by the medical directors of the respective hospitals . The CLEMC was under the authority of the Minister of Health and was presided by a director appointed by the Minister of Health.

Furthermore, the proceedings before the commissions were not attended by the guarantees of judicial procedure. In particular, they could gather evidence of their own motion . The CLEMC could decide solely on the basis of medical documents , without even examining the person whose degree of disability was being determined. Also, the commissions did not hold hearings . They carried out a medical examination of the person and allowed him or her to present medical documents , but did not allow him or her to adduce arguments with a view to influencing their decision. Therefore, the only possible way for a person examined by the commissions to obtain the benefit of the guarantees of Article 6 was to appeal against the commissions ’ decisions to a court. However, the Supreme Administrative Court had expressly refused to examine the appeal against the CLEMC ’ s decision , thus depriving the applicant of access to a proper judicial procedure . This refusal had not only been contrary to the Convention, but also to domestic law, because Article 120 § 2 of the Constitution allowed limitations of the right to seek judicial review of administrative action only if these h ad been provided for by statute, whereas in the case at hand the Supreme Administrative Court had grounded its refusal on two statutory instruments – the Implementing Regulations of the Labour Code of 1951 and Regulation no. 36 of the Minister of Health .

Finally, the applicant ’ s heirs submitted that the Supreme Administrative Court ’ s refusal to examine his appeal had also been contrary to another international treaty to which Bulgaria was a party – the Inte rnational Labour Organisation ’ s Invalidity Insurance (Industry, etc.) Convention ( No. 37 ) , to which Bulgaria ha s been a party since 1950.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Rejects the Government ’ s request that the application be struck out of the list of cases ;

Declares the application admissible, without prejud g ing the merits of the case.

Søren Nielsen Christos Rozakis Registrar President

[1] . Before 1997 there existed a single Supreme Court, which in that year was split into a Supreme Court of Cassation and a Supreme Administrative Court .