FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39609/98 by Minka Slavcheva MANCHEVA against Bulgaria

The European Court of Human Rights (First Section), sitting on 19 December 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 13 November 1997,

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 Minka Slavcheva Mancheva , is a Bulgarian national, who was born in 1968 and at the relevant time lived in Svoboda , the region of Haskovo and later in Kardjali . Initially she was not legally represented and later authorised Mrs E. Nedeva , a lawyer practising in Plovdiv . The respondent Government were represented by Mrs G. Samaras, co-agent, Ministry of Justice.

A. The circumstances of the case

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

The applicant used to work in the village of Svoboda , with the Home Patronage branch of the Chirpan District Social Care Centre ( Домашен социален патронаж , Общински център за социални грижи ). Social Care Centres in Bulgaria are State administrative bodies which examine applications for welfare payments and handle distributions of food and other aid. The expenses of the Social Care Centres are covered by the State budget.

On 3 December 1992 the applicant suffered an accident at work. Subsequently she underwent surgical operations. She was unfit for work for at least six months and continued experiencing health problems for several years thereafter.

On 20 July 1993 the applicant instituted civil proceedings against her former employer, the local Home Patronage, claiming pecuniary and non-pecuniary damages. A representative for Home Patronage took part in the proceedings apparently maintaining that the applicant was responsible for the accident and that the claims were excessive.

On 31 March 1995 the Chirpan District Court partially granted the applicant’s claim and awarded her 15,000 Bulgarian levs (“BGL”) in non ‑ pecuniary damages plus BGL 4,500 in costs and interest.

On 20 April 1995 the defendant, the Home Patronage, lodged an appeal with the Stara Zagora Regional Court.

According to the Government, on 17 July 1995 the Social Care Centre sent to the applicant a registered letter inviting her “to collect BGL 15,000” but the applicant refused receipt of the letter.

According to the applicant, as of 30 September 1995 the proceedings before the Regional Court were still pending.

On an unspecified date these proceedings ended and the District Court’s judgment became final and enforceable.

Following a conversation between the applicant and employees of the Social Care Centre, on 5 May 1996 the Social Care Centre sent to the applicant a letter inviting her “to collect BGL 15,000”.

On 9 May 1996 the applicant submitted a written request to the District Social Care Centre insisting on payment in compliance with the District Court’s judgment , including all interest and costs. She offered her calculation of the interest that had accrued since the relevant starting date, 20 July 1993, and stated that the amount due was BGL 40,620.

The applicant, who at that time lived in another town, authorised another person to receive the money.

According to “minutes”, drawn up by the accountant and two other employees of the Social Care Centre, on 15 May 1996 they withdrew BGL 15,000 from the Centre’ bank account but the applicant’s representative refused to accept the money.

On 3 June 1996 the Social Care Centre wrote to the applicant stating that they “wished to pay the damage sustained, in the amount of BGL 15,000”, and invited her to visit the Centre for that purpose on 7 June 1996. The letter also stated that the Centre was “free from any obligation to pay interest on the amount since the date of the conversation with [the applicant] held in the presence of [the Centre’s] employees”.

On 6 June 1996, upon the applicant’s request, the Chirpan District Court issued a writ of execution ordering the Home Patronage to pay to the applicant BGL 15,000 principal, BGL 4,500 in costs, and interest as from 20 July 1993.

On 6 June 1996 the applicant submitted a request to the competent enforcement judge seeking the institution of enforcement proceedings. That was refused and the applicant was informed, upon her complaints to the enforcement judge, the Regional Court and the Ministry of Justice, that under Article 399 of the Code of Civil Procedure execution of judgments against state bodies was only possible through submission of the writ of execution directly to the state organ concerned. Enforcement proceedings were not provided for. An attachment of the defendant’s bank account was not possible.

The applicant was also informed that the refusal to execute a final judgment could be a punishable criminal offence.

On an unspecified date the applicant complained to the Ministry of Labour and Social Care, which invited the mayor of the Chirpan municipality to comment.

On 15 October 1996 the mayor wrote the following to the Ministry and to the applicant:

“Having studied the [applicant’s] request and having discussed the matter with the management of the municipal Social Care Centre, we reached the conclusion that the problem is under the jurisdiction of the judicial authorities. The municipal Social Care Centre considers that the civil proceedings had been handled wrongly: the [defendant] had been Home Patronage, which has no legal personality and does not have its own bank account. For this reason, the Social Care Centre sees no legal grounds, for purposes of the financial authorities, to effect the payment. Apparently the matter should be examined additionally by the courts. The municipal administration cannot interfere in this matter.”

In 1996 the applicant submitted a complaint to the prosecution authorities requesting the punishment of those responsible for the failure to enforce the judicial award.

In April or May 1997 she complained of the inactivity of the prosecution authorities.

On 19 May 1998 a prosecutor requested information from the Social Care Centre. The Centre replied, on 29 May 1998, that Home Patronage was not a separate legal person but formed a part of the Social Care Centre which, in turn, was under the administration and budgetary control of the municipality. Therefore, the applicant should submit her documents for payment with the municipality of Chirpan .

On 6 April 1999 the applicant was heard by a prosecutor.

On 17 March 2000 the prosecutor terminated the inquiry as the applicant had been informed that she had to submit her writ of execution and a copy of the judgment to the municipality of Chirpan .

During the relevant period inflation in Bulgaria was running high and the national currency was depreciating. In particular, on 31 March 1995, the date on which the District Court’s judgment was delivered, BGL 66 were necessary to buy one United States dollar, on 1 May 1996, at the time of the applicant’s first attempt to obtain payment, that figure was BGL 92, on 15 October 1996, the date on which the mayor refused to execute the judgment , it was BGL 216 and on 29 May 1998, the date on which the applicant was told to request payment from the municipality, the exchange rate was BGL 1,782 for one US dollar. For the period March 1995 - May 1998 the statutory interest rate varied significantly, reaching during a period of several months in the end of 1996 and the beginning of 1997 an average of approximately 200% per annum. That was however insufficient to compensate for the loss of value of the Bulgarian lev .

B. Relevant domestic law

1. Enforcement against state institutions under the Code of Civil Procedure

In accordance with paragraph 2 of Article 399, a person who has an enforceable pecuniary claim against the State or a state body shall receive payment out of funds allocated for that purpose under the institution’s budget.

The writ of execution shall be submitted to the financial department of the institution. If there are no funds available under the budget of the state body concerned, the higher administrative organ should undertake the necessary steps to ensure that funds become available under the budget for the following year.

Enforcement proceedings and judicial review of the execution of a judgment are not possible where the debtor is a state institution. Until December 1997 paragraph 1 of Article 399 of the Code of Civil Procedure expressly prohibited enforcement proceedings against state institution. Although that provision was repealed in December 1997, the legal regime remained unchanged, as paragraph 2 of Article 399 was not amended.

2. Other relevant law

According to Articles 246 and 248 of the Code of Civil Procedure, a writ of execution is issued in a single copy which must be produced for execution. Where the original has been lost, a duplicata may be issued in special proceedings which require summoning the debtor at an oral hearing.

According to section 66 of the Obligations and Contracts Act, a creditor is entitled to refuse partial payment.

According to section 97 of the Obligations and Contracts Act, if the creditor fails to undertake the measures necessary to receive payment, the debtor may discharge a pecuniary debt by depositing the money in a bank account.

COMPLAINTS

The applicant complained, relying on Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention, that she was unable to obtain payment of the sums awarded to her in respect of non-pecuniary damages despite the fact that she had an enforceable claim under a final judicial decision and despite her efforts and complaints.

Furthermore, the violation of her rights continued up to the present moment as she has not received any payment.

The applicant also stated that Bulgarian law did not secure efficient mechanism for the collection of debts owed by state institutions.

THE LAW

1. The Government’s objections as to the alleged abuse of the right of petition and non-exhaustion of domestic remedies

The Government submitted that the applicant had omitted to produce before the Court copies of the letters of 1996 inviting her to collect her money. Furthermore, her statement that she had deposited her writ of execution with the Social Care Centre in Chirpan had proved untrue. There had been therefore an attempt to mislead the Court. The application was abusive. In any event, the applicant had not exhausted the available domestic remedies as she had not deposited her writ of execution with the debtor.

The Government also stated that under domestic law any refusal of the Social Care Centre or the mayor to comply with the District Court’s judgment , even a tacit one, could be characterised as an “administrative act” and was therefore amenable to appeal under the Administrative Procedure Act. However, the applicant did not make use of these remedies.

The applicant replied that she had presented the facts accurately and that in her view the question whether or not the writ of execution had been deposited was irrelevant. Furthermore, it was unthinkable in a State governed by the rule of law that a refusal by a state official to comply with a binding judicial decision might be an “administrative act”. In reality, such refusal is a criminal offence under Bulgarian law. Therefore, the Government’s argument that it was possible to appeal in accordance with the Administrative Procedure Act was flawed.

The Court notes that the applicant submitted the initial application without a legal representative and that some of the facts and their relevance are disputed. The Court finds no indication that the application was deliberately based on untrue facts. It follows that it cannot be rejected as abusive.

The Court also rejects the Government’s objection that the applicant should have appealed under the Administrative Procedure Act, that procedure clearly having been inapplicable.

As to the fact that the applicant never deposited her original copy of the writ of execution with the Social Care Centre or the municipal authorities in Chirpan , the Court considers that it concerns the substantive issues of the case and, in particular, the question whether the applicant’s own error or obstruction on the part of the local authorities were at the heart of the events.

The Government’s objection as regards the exhaustion of domestic remedies is therefore dismissed.

2. Complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention of the alleged failure of the authorities to abide by a final judgment and the resulting interference with possessions

The provisions relied upon by the applicant, insofar as relevant, provide:

Article 6 § 1

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

Article 1 of Protocol No. 1

“Every ... person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

(a) The Government’s submissions

The Government stated that the applicant alone was responsible for the events she complained of. In particular, she had been invited at least three times to receive a partial payment but had refused. Had she accepted, she would have diminished the damage caused by the inflation. In the Government’s view, Bulgarian law did not oblige state institutions to pay immediately and in one instalment. That was the consequence of the specific role of state institutions. In particular, health care, education and welfare aid depended on municipalities’ budgets. To safeguard their proper operation, the law provided that state institutions lacking the funds necessary to pay a debt immediately should secure resources through the following year’s budget. Thus, the applicant had been offered an amount corresponding to the budgetary availability. She would not have forfeited her right to receive the remainder by accepting partial payment.

Further, the applicant had not submitted the original copy of her writ of execution to the Social Care Centre or the financial department of the municipality of Chirpan . Had she done so, she would have received payment. The applicable procedure was repeatedly explained to her but she did not make use of it. As of March 2001 the applicant had still not presented her writ of execution and the municipal employees were even unaware of her claims. By contrast, when presented with a writ of execution in another case in January 2000, Chirpan municipality had paid without delay.

The Government also stated that the provisions of the Obligations and Contracts Act according to which a debtor may discharge a debt without the creditor’s consent by depositing the money in a bank account were inapplicable: the pertinent legal regime was that under Article 399 of the Code of Civil Procedure.

(b) The applicant’s submissions

The applicant replied that the events complained of had been the result solely of the unwillingness of Home Patronage and the Social Care Centre to pay. In 1996 the Centre had proposed to pay BGL 15,000, barely one third of the amount due at that time, and had even stated that it would not pay interest in view of the applicant’s refusal to accept that offer. Under Bulgarian law, the applicant was not obliged to accept partial payment. The Government’s arguments that she should bear the consequences of having failed to do so were therefore unacceptable.

Further, the applicant rejected the Government’s statement that the partial payment offer had been motivated by budgetary constraints and insufficient resources. In reality, there had been a clear attempt on the part of the municipal authorities to avoid full payment. That was illustrated by the correspondence of May and June 1996.

Moreover, in flagrant disregard of the rule of law, in his letter of 15 October 1996 the mayor had expressly stated his refusal to enforce a final and binding judicial decision. The applicant’s ensuing attempts to secure compliance by seeking criminal proceedings against the officials obstructing the execution of the judgment had remained fruitless.

In the light of these facts, it was obvious that the applicant’s failure to produce the original copy of the writ of execution had been immaterial. She had submitted written claims asking to be paid in compliance with the final judgment and had been faced with obstruction. The production of the writ was a mere formality: it was clear that in law and in practice the municipality could have paid without it or requested its production.

The applicant also submitted that the municipality could have discharged their debt by depositing the money in a bank account, as provided for under the Obligations and Contracts Act.

Further, the applicant considered that Article 399 of the Code of Civil Procedure was a remnant from the totalitarian principle of supremacy of state interests over individual rights. It was contrary to the new Bulgarian Constitution and the Convention, as it violated the principle of equality of the parties to civil proceedings and left the execution of final judgments against state institutions to the debtor’s discretion. In the applicant’s view, there has therefore been a violation of the State’s positive obligations to enact such procedure for the collection of debts owed by state institutions so as to ensure respect for the individual’s rights of enforcement of final judgments and peaceful enjoyment of possessions.

(c) The Court’s decision on admissibility

The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the applicant’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

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

Søren Nielsen Christos Rozakis              Deputy Registrar President