FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43578/98 by I.D. against Bulgaria

The European Court of Human Rights ( First Section ) , sitting on 18 March 2004 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs N. Vajić , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner, judges , and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 15 May 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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, Ms I.D., is a Bulgarian national who was born in 1948 and lives in Rousse. She is represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government are represented by Ms M. Dimova, 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 applicant's employment

In 1976 the applicant started working for the Cargo Railway Station in Rousse and until 1989 she occupied the positions of dormitories supervisor, facilities and social activities co ‑ ordinator. In fact, throughout the applicant was working – under the instructions of her manager – as a typist at the local section of the Bulgarian Communist Party. This scheme had apparently been devised because the staff tables did not provide for a typist position.

Accordingly, the applicant's employment agreements and job descriptions did not mention her actual duties, which included mostly typewriting. This arrangement was apparently never called into question by the applicant or her employer.

Between 1989 and 1996 the applicant worked as an inspector at the human resources department of the Station.

In the end of December 1995 or in the beginning of January 1996 the applicant's employer, acting pursuant to a medical recommendation on her fitness for work, moved her to a different position – internal mail carrier.

2. The applicant's disease and her examinations by the special medical commissions

In 1979 the applicant started experiencing pain in her hands and arms. Initially she was loosing the sensitivity in her fingers and could not hold objects. With the passage of time the pain got stronger and her hands started to swell and tremble, especially after long periods of typing.

In December 1994 the applicant was examined by the Diagnostic Expert Commission (“DEC”) at the Rousse Regional Hospital. In a decision of 15 December 1994 the DEC found that the applicant was suffering from vegetative polyneuropathy of the upper limbs, a disease which features on the Schedule of Occupational Diseases. However, the DEC, relying solely on the applicant's job descriptions, concluded that the positions she had occupied (dormitories supervisor, facilities and social activities co ‑ ordinator) did not entail increased strain on her upper limbs. Accordingly, it qualified her disease as a non-occupational one, there being no causal link between the conditions of work and the disease. Apparently the DEC refused to examine evidence (including affidavits) submitted by the applicant to prove her actual duties.

The applicant appealed to the Central Diagnostic Expert Commission (“CDEC”), arguing that her de facto duties were different from the ones enumerated in her job descriptions. As no oral testimony was admissible, she again submitted affidavits from her managers to the effect that she had actually worked as a typist. On 15 March 1995 the CDEC dismissed the appeal, fully endorsing the reasons of the DEC. Apparently it refused to take into account any other evidence purporting to establish the actual duties of the applicant.

In October 1995 the applicant was admitted for treatment at the Medical Institute for Transport Workers in Sofia. On 19 December 1995 the DEC at the Institute examined the applicant and found that she suffered from osteohondrosis cervicalis. It also reached the conclusion that the disease was not an occupational one, being unrelated to the duties of the applicant as set out in her job descriptions.

The applicant appealed against this decision to the CDEC. By a decision of 13 February 1996 it upheld the ruling as to the non-occupational character of the applicant's disease and fully endorsed the DEC's reasons.

3. Action for damages against the applicant's employer

On 19 March 1996 the applicant brought an action against her employer under Article 200 of the Labour Code of 1986. She alleged that the disease of her hands had developed as a result of her work. In fact, between 1976 and 1989 she had worked as a typist, even though her job descriptions did not reflect that. The rulings of the DEC and the CDEC that her disease was not work ‑ related were based solely on these job descriptions; the commissions had not inquired into the reality of the situation. She requested the court to summon witnesses to testify about her real duties and to appoint an expert to establish the occupational character of her disease.

Two witnesses – former managers of the applicant – testified during the trial. They stated that the applicant had in fact worked as a typist, in accordance with the orders of her employer, and provided details about her workload.

Two expert witnesses were appointed by the court to give conclusions about the applicant's state of health and about the occupational or non ‑ occupational character of her disease. The first expert concluded that the applicant was suffering from vegetative neuropathy of the hands. The second expert submitted a report in which she stated that the cause for the applicant's disease could be her conditions of work, as described by her managers. Both experts confirmed their conclusions at a public hearing on 23 October 1996.

The Rousse District Court gave judgment on 30 October 1996, dismissing the applicant's action. It stated, inter alia :

“... the court considers the action to be ill ‑ founded. The prerequisites for finding the employer liable under Article 200 of the Labour Code ... are a valid employment agreement and a categorically established occupational disease. The occupational character of the disease is determined by the special medical commissions ... The existence of a finding [made by the DEC and ascertaining the occupational character of the disease] is an absolute precondition for holding the employer liable under Article 200 of the Labour Code. The specific character of the [subject-matter of the inquiry] has led the legislature to establish specialised medical bodies to give a conclusion as to the type [of the disease] and as to the causal link between the conditions of work and the disease. In the case at hand the [DEC and the CDEC] have concluded that the [applicant's] disease was not occupational and was not related to her conditions of work ... [T]he court examining the dispute under Article 200 of the Labour Code may rule as to the occupational character of the disease only if no medical documents have been issued by the [DEC].”

The applicant appealed to the Rousse Regional Court. On 27 December 1996 that court upheld the lower court's judgment in the following terms:

“The [District Court's] judgment is well-founded. After assessing the collected and relevant evidence, the District Court correctly concluded that the occupational character of the [applicant's] disease, ... which is one of the prerequisites for holding her employer liable under Article 200 of the Labour Code, has not been categorically established. The first ‑ instance court has correctly decided that the occupational character of the disease may be established by the court only if no documents have been issued by the specialised medical bodies ... The District Court has taken into account that in the case at hand these bodies have reached the categorical conclusion ... that the disease of the [applicant] was not related to her working conditions and was not occupational.”

The applicant lodged a petition for review with the Supreme Court. That court dismissed the petition in a final judgment of 18 November 1997. It held:

“The acts issued by the specialised medical bodies indicate that [the applicant's] disease was not occupational, i.e. no causal link was found between the disease and the working conditions. The expert witnesses' conclusions do not alter this finding. The [first expert] concluded that the disease “vegetative polyneuropathy of the hands” features on the schedule of occupational diseases. This fact is not at issue, but the [employer's] liability under Article 200 of the Labour Code presupposes not only the existence of the respective disease, but also the establishment of a causal link between the disease and the conditions of work. This causal link has not been established by the [second] expert either. In her report she found that activities related to type-writing are a prerequisite for the development of vegetative polyneuropathy. However, the fact that type-writing is in general a prerequisite for this disease does not prove the existence of a causal link between the [applicant's] conditions of work and [her] disease.

... The specialised medical bodies are the administrative organs empowered by law to ascertain the existence of an occupational disease and the causal link between the disease and the [conditions of] work. The [lower] courts correctly held that the circumstances that [these organs] are authorised to examine may be examined by the court having cognisance of the action under Article 200 of the Labour Code only in the absence of findings made by these organs. The [applicant] has not established before the specialised medical bodies the existence of a causal link between [her] disease and the conditions of work as a typist ... Therefore the conclusions of the [lower] courts that her action is unfounded are correct.”

B. Relevant domestic law and practice

1. Liability of employers for damage to employees resulting from occupational diseases

Article 200 of the Labour Code of 1986, which regulates the liability of the employer toward the employee for damage which has occurred as a result of an occupational accident or disease, reads as follows:

Article 200 Liability of the employer in cases of death or injury of the health of the employee

“1. The employer shall be liable for damage [resulting from] an occupational accident or disease which has caused a temporary or permanent disability or death of the employee, irrespective of whether it has been brought about through fault [of the employer] or of another employee.

...

3. The employer shall owe compensation amounting to the difference between the quantum of the damage – pecuniary and non ‑ pecuniary, including lost profits, – and the [amount of the] benefits and/or pension [provided to the employee] by the social security.”

2. Occupational diseases

At the relevant time occupational diseases were defined by Regulation No. 23 of the Minister of Health (State Gazette (“SG”), issue 5 of 1985, amended, SG, issues 34 and 87 of 1994) and by the Schedule of Occupational Diseases (SG, issue 5 of 1958, amended, SG, issue 18 of 1964 and issue 61 of 1974). The Regulation defined occupational diseases as “impairments of the health arising exclusively or predominantly out of the negative factors of the conditions of work or of the work process and which have been listed in the Schedule of Occupational Diseases” (section 1(1)). The Schedule listed the diseases, the conditions of work causing them, and the types of work in the performance of which they could occur. For a disease to be regarded as occupational, it had to (a) be listed in the Schedule; (b) arise out of the exposure to certain dangerous conditions of work (e.g. noise, vibrations, radiation), exhaustively enumerated in the Schedule; and (c) the types of work (e.g. typist, miner, driver) involving exposure to these conditions had to be enumerated in the Schedule, the enumeration not being exhaustive.

3. The DECs and the CDEC

The DECs and the CDEC were established by the above-mentioned Regulation No. 23 under the authority of the Minister of Health. The DECs were responsible for deciding on the occupational character of a disease (section 9(1) of the Regulation). Their members were appointed by the medical directors of the respective hospitals (section 9(5)).

The CDEC heard appeals against decisions of the DECs; its members were appointed by the Minister of Health (section 13a(2)). The findings of the CDEC in respect of the occupational character of the disease were binding on other medical bodies dealing with occupational expertise issues (section 14(3)), but the Regulation did not provide that they were binding on the courts.

The members of the commissions – who were exclusively medical specialists – were remunerated under private-law service contracts they entered into with the Minister of Health (sections 9(3), 13a(1 ) and (4)).

There were no written rules regulating the procedure before the commissions. The Regulation 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 were held.

4. Judicial review of administrative acts

(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 this interpretative judgment no. 21 of 26 October 1995 in constitutional case no. 18/1995 (SG, 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 Supreme Court'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 1999 the Supreme Administrative Court [In the end of 1996 the Supreme Court was split into a Supreme Court of Cassation and a Supreme Administrative Court, the latter having original and appellate jurisdiction over most administrative cases] 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).

COMPLAINT

The applicant complained under Article 6 of the Convention that the courts of all levels refused to consider her claim for damages on its merits. She submitted that by accepting the findings of the medical commissions as binding on them, the courts had not considered the other evidence adduced by her. She alleged that this was inconsistent with Bulgarian law and that as a result she had been denied effective access to a court.

THE LAW

In respect of her complaint that in the proceedings against her employer the courts of all levels refused to consider her claim for damages on its merits the applicant relied on Article 6 § 1 of the Convention, which provides, as relevant:

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

A. The Government's objection of non-exhaustion of domestic remedies

The Government submitted that the applicant had failed to exhaust domestic remedies. In particular, they stated that she had not appealed to a court against CDEC's decision of 13 February 1996. That decision had been an “individual administrative act” within the meaning of section 2(1) of the APA and had been, therefore, appealable to a court. Moreover, by Article 120 § 2 of the Constitution private persons could appeal to a court against all administrative acts which affected their rights, save those expressly excluded from such appeal by statute. When interpreting this constitutional provision in 1995, the Constitutional Court had held that it encompassed all administrative acts regardless of their character or theoretical qualification. That court's ruling was binding on all State authorities, including the Supreme (Administrative) Court. The Government referred to a number of decisions of the Supreme Administrative Court from the period 1999 ‑ 2002 which confirmed the position that the decisions of the CDEC were “individual administrative acts” subject to appeal before the courts. They submitted that by contrast the Supreme Court's decision of 1 July 1992 relied upon by the applicant had been an isolated occurrence and had no jurisprudential value.

The applicant replied that she had in fact exhausted domestic remedies. She submitted that at the outset she could choose between appealing against the CDEC's decision or directly filing an action for damages against her employer. However, in 1996, when she had to make that choice, none of the alternatives seemed more promising. Had she chosen to appeal, she would have had to rely on Article 120 of the Constitution or Article 6 of the Convention to persuade the domestic courts to change their then established case ‑ law. Had she chosen to directly file an action for damages, as she had in fact done, she could try to adduce evidence to directly prove the occupational character of her disease. The advantage of this approach was that it saved her one set of proceedings, while in the same time presenting the same chances for success: the courts examining the action for damages could have relied on the principles underlying Article 120 of the Constitution and Article 6 of the Convention and could have examined all factual issues relevant to her claim. Having chosen one set of judicial proceedings over another, the applicant was not required to embark on a second attempt.

The Court finds that the question of exhaustion of domestic remedies relates to the merits of the applicant's complaint. Hence, to avoid prejudging the latter, both questions should be examined together. Accordingly, it holds that the question of exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.

B. Substance of the complaint

The Government submitted that the occupational character of the applicant's disease could be proved in proceedings for damages under Article 200 of the Labour Code. Indeed, when the applicant had brought such proceedings the courts had examined the merits of her action and had based their decisions on all evidence gathered during the trial.

In the Government's view, the applicant's construction of the Rousse District Court's reasoning was erroneous. In fact, that court had not stated that the existence of a finding by the special medical commissions that the applicant's disease was an occupational one was an absolute prerequisite for finding her employer liable under Article 200 of the Labour Code. Neither had it treated the decisions of the special medical commissions as binding. On the contrary, the court had considered these decisions as mere pieces of evidence. On the other had, the applicant had had the opportunity to prove the work-related character of her disease: the court had admitted all evidence – including expert reports – requested by her. However, this evidence, including the medical expert reports requested by the applicant, had been insufficient for the court to conclude that her disease had been an occupational one. The court had thus not refused to examine the merits of the applicant's action; it had, however, found that it had not been sufficiently substantiated. The applicant had failed to use all available options to corroborate her allegations. For instance, she had not contested the findings of the special medical commissions. Also, since the expert reports requested by her had not categorically established the existence of a causal link between her conditions of work and her disease, she could have challenged the accuracy of the reports, asked the experts additional questions, requested a new expert report, or called additional witnesses.

The applicant considered that the Government's averment that the courts had examined her action on the merits was unsupported by the facts of the case. The courts' decisions to reject her action had in fact been based on their holding that they were bound by the findings of the special medical commissions.

In the view of the applicant, she had been denied access to a court having full jurisdiction over all issues of fact and law relevant to the determination of her claim. She added that neither the trial court, nor the appellate court or the Supreme Court had given adequate reasons for rejecting her action. In particular, the trial court, whose reasoning had been fully endorsed by the appellate instances, had not explained in detail why it had considered that the existence of a causal link between the applicant's conditions of work and her disease had not been established. However, this was the central issue of the case. The courts' attitude could only be explained by their view that they were bound by the findings of the special medical commissions.

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

Decides to join to the merits the question of the exhaustion of domestic remedies;

Declares the application admissible, without prejudging the merits of the case.

Santiago Quesada Christos Rozakis              Deputy Registrar President