FOURTH SECTION

CASE OF YAGNINA v. BULGARIA

( Application no. 18238/06 )

JUDGMENT

STRASBOURG

27 January 2015

FINAL

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Yagnina v. Bulgaria ,

The European Court of Human Rights ( Fourth Section ), sitting as a Chamber composed of:

Guido Raimondi, President, Päivi Hirvelä,

George Nicolaou,

Ledi Bianku,

Zdravka Kalaydjieva,

Paul Mahoney ,

Krzysztof Wojtyczek , judges, and Françoise Elens-Passos , Section Registrar ,

Having deliberated in private on 6 January 2015 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 18238/06) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Denka Angelova Yagnina (“the applicant”), on 28 April 2006 .

2 . The applicant was represented by Mr Y. Grozev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) wer e represented by their Agent s , M s M. Kotseva and Ms V. Hristova, of the Ministry of Justice .

3 . On 19 February 2013 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1952 and lives in Voyvodinovo .

5 . The applicant worked as a driver of tractors and other heavy machines for a number of years before 1985. This work led to her developing dysfunctions of the nervous system. In 1985 she was declared to have a “third degree disability” and started receiving a disability pension.

6 . Between 1985 and 2000 the applicant underwent seven medical re ‑ examinations by the local Territorial Expert Medical Commission (“the TEMC”), the body competent to assess the level of disability. The medical examinations serve as a basis for the allocation of disability pensions. She was diagnosed with vegetative polyneuropathy of the upper extremities, coxarthrosis, cervical spondylosis and radiculopathy. On all occasions she was assessed to have a “third degree disability” ─ she had lost between 50% and 70% of her ability to work, which entitled her to receive a disability pension.

7 . On 14 November 2000 the applicant underwent a new regular re ‑ examination by the TEMC. This time she was diagnosed with vegetative polyneuropathy of the upper extremities and myotendinosis. No mention was made of the other diseases diagnosed earlier, namely coxarthrosis, cervical spondylosis and radiculopathy. On that basis the TEMC assessed the applicant ’ s loss of ability to work at 40%, which was not sufficient to entitle her to a disability pension.

8 . The applicant challenged this decision before the National Expert Medical Commission (“the NEMC”). After re-examining her, the NEMC declared the applicant fully fit to work in a decision of 14 February 2001. Its diagnosis was “spondylosis and related diseases”.

9 . The applicant applied to the Sofia City Court for judicial review of that decision.

10 . The Sofia City Court appointed a medical expert who examined the applicant and concluded that she suffered from the following conditions: cervical spondylarthrosis, vegetative polyneuropathy, myotendinosis of the upper limbs and coxarthrosis of the coxofemoral joint. The expert pointed out that these conditions had a chronic character and had permanently and negatively affected the applicant ’ s state of health. If anything, some of them had become worse after 1985. The expert pointed out that such conditions typically led to a significant reduction in the affected person ’ s ability to work.

11 . On the basis of that report, on 27 December 2002 the Sofia City Court quashed the NEMC ’ s decision of 14 February 2001 as unlawful. It found, on the basis of the expert ’ s conclusions corroborated by the remaining documents in the case file, that the applicant ’ s ability to work was reduced. The court concluded that the NEMC had erroneously assessed the applicant ’ s state of health by failing to consider all relevant elements to her actual state of health. The court remitted the case for a fresh examination, pointing out that it was the NEMC which had to fix the exact percentage of the applicant ’ s reduced ability to work. The judgment entered into force on 11 February 2003.

12 . The NEMC examined the applicant on 9 October 2003. In its decision of the same date it indicated as a leading diagnosis “spondylosis and related diseases”. It specified that the applicant suffered from cervical spondylarthrosis and cervical radiculopathy, which were occupational diseases, and from myotendinosis of the upper limbs and coxarthrosis, which were not. It considered that she did not suffer from vegetative polyneuropathy of the upper limbs. On that basis the NEMC assessed the applicant ’ s reduced ability to work at 30%. The decision stated that it was valid for three years.

13 . Once again, the applicant applied for judicial review of the NEMC ’ s decision. The Sofia City Court appointed a medical expert who concluded that the applicant suffered from the following diseases which he considered occupational: cervical spondylarthrosis, vegetative polyneuropathy, myotendinosis of the upper limbs and coxarthrosis of the two coxofemoral joints. The expert considered that these conditions had a permanent and chronic character and had led to irreversible degenerative changes to the applicant ’ s locomotor system.

14 . On that basis, on 6 January 2005 the Sofia City Court quashed the NEMC ’ s decision of 9 October 2003 and remitted the case to it for further examination in accordance with the conclusions of the medical expertise accepted by the court in the case proceedings. The court found that the administrative body had erred when assessing the applicant ’ s state of disability as it had not taken into account all the relevant circumstances. It considered the NEMC ’ s opinion that the applicant did not suffer from vegetative polyneuropathy unfounded and concluded that the NEMC ’ s decision was not based on the applicant ’ s actual state of health. The court held, like in its judgment of December 2002, that the NEMC was exclusively competent to assess the percentage of disability.

15 . Upon an appeal by the NEMC, the Supreme Administrative Court upheld the Sofia City Court ’ s judgment in a final judgment of 15 July 2005.

16 . Following that, in a decision of 28 October 2005 the NEMC assessed the applicant ’ s reduced ability to work at 40% which did not entitle her to a disability pension. In the decision ’ s entry “occupational deceases”, only vegetative polyneuropathy featured this time. The operative provision of the decision stated that the NEMC “Quashes and decides anew the question of percentage of disability. Confirms the rest of the elements.” The decision stated that it was valid for three years.

17 . The applicant did not apply for judicial review of the above decision.

18 . The payment of the applicant ’ s disability pension was discontinued as of 2 October 2000 and there is no information about what happened after the 28 October 2005 NEMC decision.

II. RELEVANT DOMESTIC LAW

A. Implementation of administrative court judgments before 2006

B. Implementation of administrative court judgments after 2006

C. State Responsibility for Damage

23 . Section 1(1) of the State and Municipalities Liability for Damage Act 1988 (SMRDA) provides that the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with administrative action. Under Article 204 § 1 of the Code of Administrative Procedure 2006, such a claim can only be brought if the administrative decision has been duly set aside.

D. Determining disability

24 . The establishing of temporary or permanent disability is done on the basis of a medical expert report (section 101 of the Health Act 2004). Disability is calculated in percentage terms of the estimated capacity of a healthy individual.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

25 . The applicant complained that the NEMC, acting in an arbitrary manner in its decisions of 9 October 2003 and 28 October 2005, failed duly to comply with the final court judgments given in the judicial review proceedings initiated by her, in breach of Article 6 § 1 of the Convention. Article 6 § 1 of the Convention reads as follows:

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

A. Admissibility

Exhaustion of domestic remedies

(a) The parties ’ submissions

26 . The Government submitted that the applicant had failed to exhaust domestic remedies. In particular, she had not sought compensation under section 1 of the SMRDA . The Government pointed out that the applicant ’ s situation corresponded to the admissibility requirements for a claim under the SMRDA. This was because the medical commission ’ s decisions of 14 February 2002 and 9 October 2003 were individual administrative acts which had been quashed as unlawful in court, and because the damage to the applicant brought about by the suspension of her disability pension had arisen directly from those unlawful acts. The Government referred to five domestic judicial decisions ( реш. № 3 / 05.08.2010 по адм. д. № 2 / 2010 на адм. съд Габрово, потвърдено с реш. № 8204 / 09.06.2011 на ВАС ; реш. № 2 / 16.07.2010 по адм. д. № 12 / 2009 на адм. съд Габрово ; реш. № 782/2 0. 12 .20 08 по адм. д. № 31/ 200 8 на адм. съд София област ; реш. № 1365/1 0. 05 .20 10 по адм. д. № 5676/ 200 9 на адм. съд София град ; реш. № 4529/3 0. 03 .20 11 на ВАС ) in which the courts had awarded damages under section 1 of the SMRDA as a result of the fact that the challenged administrative acts had been quashed in court as unlawful.

27 . The applicant contested the above argument pointing out that, at the time when she had submitted her application to the Court, there had been no effective domestic remedy in respect of her complaints. For a remedy to be effective, she claimed, it had to be capable of both acknowledging the violation and providing compensation for the damage suffered. In her case the first condition could have been met by a declaration to the effect that the medical commission had unlawfully refused to comply with the judgments, and no such remedy existed at the time of the facts.

28 . She further contested the Government ’ s submission that a claim for damages under the SMRDA could have been successful to remedy a situation of failure to comply with a judgment, stating that the Government had not referred to any case-law showing that. She pointed out that, in all five judgments to which the Government referred in this connection, damages had been awarded after the administrative body whose acts had been judicially challenged had fully implemented the judgments. Only because the medical commissions had recognised in those five cases the claimants ’ right to disability benefits under national law, had the courts awarded damages in subsequent proceedings brought under section 1 of the SMRDA. The legal basis for those awards had been the second decision of the medical commission. In the present case, the medical commission had made no such decision. Without it, the applicant submitted that she could not establish she had a right to a disability benefit under national law and thus could not claim damages under the SMRDA.

29 . The applicant lastly stated that, although a new procedure for forced compl i ance with administrative court judgments had been introduced in the Code of Administrative Procedure, this had happened after she had introduced her application to the Court and so she should not be expected to have attempted it before turning to the Court.

(b) The Court ’ s assessment

30 . The Court recalls that where the Government claims non-exhaustion of domestic remedies it bears the burden of proving that the applicant has not used a remedy that was both effective and available (see McFa rlane v. Ireland [GC] , no. 31333/06, § 107, 10 September 2010 ). The development and availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case-law (see Mikolajová v. Slovakia , no. 4479/03 , § 34, 18 January 2011 ). The Government ’ s arguments will clearly carry more weight if examples from national case-law are supplied (see Doran v. Ireland , no. 0389/99, ECHR 2003 ‑ X (extracts) ) and where examples prove to be relevant ( Sakhnovskiy v. Russia [GC], no. 21272/03 , §§ 43-44, 2 November 2010 ). Furthermore, the requirement for the applicant to exhaust domestic remedies is normally determined with reference to the date on which the application was lodged with the Court ( Baumann v. France , no. 33592/96, § 47, ECHR 2001 ‑ V (extracts) ).

31 . Turning to the present case, the Court first notes that the applicant was in possession of two final judgments in her favour which she claimed were not complied with . In the related court proceedings the applicant had claimed that the medical commission had assessed wrongly her level of disability. The judgments delivered during those proceedings concerned the same claim of the applicant, in response to which the courts had to ascertain whether the medical commission had lawfully assessed the applicant ’ s level of disability. That same claim was examined by the courts continually, during a judicial process in the context of which the applicant asserted that the medical commission had repeatedly failed to assess her actual state of health despite a first judgment instructing it to do so. The judicial review process ended with the final judgment of the Supreme Administrative Court of 15 July 2005.

32 . The Court observes that at the time of the facts there was no statutory provision clearly setting out a remedy in case of failure to comply with a final administrative court judgment. In that connection, the Court notes that the domestic courts were not competent to determine the percentage of disability in the place of the administrative body, the latter having the authority to carry out the assessment and rule in that respect. Also, the domestic court could not oblige the administrative body which was competent to act to comply in practice with the court ’ s instructions given in the first judgment and thus to implement that judgment.

33 . Furthermore, although the Government referred to a possible claim for damages under the SMRDA, they have not produced a ny domestic decision s in which damages have been awarded under that law as a result specifically of a failure to comply with a court judgment. In all five judicial decisions submitted by the Government to the Court, the ground for awarding damages had been the fact of quashing by the courts of the initial administrative decisions as unlawful, and not the fact of lack of implementation of the judgments quashing those administrative decisions (see further on this point Stoyanov and Tabakov v. Bulgaria , no. 34130/04, § 104, 26 November 2013). Therefore, the Government have not demonstrated that the remedy under the SMRDA would have been both available and effective in the applicant ’ s case. Their related objection is therefore dismissed.

34 . In addition, while a new acceleratory-type remedy for forced compliance with administrative court judgments was introduced with the adoption of the Code of Administrative Procedure in July 2006, repealing the Supreme Administrative Court Act as of 1 March 2007, that happened after this application had been brought before the Court. Consequently, the applicant was not required to have exhausted it before applying to the Court.

35 . Finally, the Government do not point to any other remedy which the applicant could have used, but omitted to do so. Therefore, the complaint cannot be said to be inadmissible for failure to exhaust domestic remedies.

36 . The Court notes accordingly that the complaint about the failure to comply with the final judgment ending the judicial review proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

37 . The applicant submitted that while the 15 July 2005 judgment in her favour had found that she suffered from a number of permanent medical conditions, the NEMC continued arbitrarily to exclude some of those conditions with the result of denying her a disability pension. The NEMC thus failed to comply with the final judgments in the applicant ’ s favour.

38 . The Government submitted that the NEMK had fully complied with the judgment. In particular they referred to a position of the Ministry of Justice according to which, in the period between 1985 and 2005 when the applicant appeared before the TEMC and NEMC, numerous amendments to the legal regulation of medical expertise had been made.

39 . The Court reiterates that 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 or tribunal. In this way Article 6 § 1 embodies the “right to a court” . This right would be illusory if a Contracting State ’ s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Implementation of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Burdov v. Russia , no. 59498/00, § 34, ECHR 2002-III; Hornsby v. Greece , judgment of 19 March 1 997, Reports 1997-II, p. 510, § 40).

40 . The Court then observes that, as recognised by the domestic courts (see in particular paragraph 14 above), it was within the exclusive remit of the specialised medical commission, the NEMC, to determine the percentage of disability to be accorded to the applicant. Therefore, the question before the Court is whether the NEMC ’ s acts, aimed at determining the disability percentage after the final judgment of 15 July 2005 with which the judicial review proceedings in the applicant ’ s case ended, amounted to implementation of that final judgment.

41 . The Court notes that, according to the applicable domestic legislation at the time (see paragraph 19 above), administrative courts ’ decisions had an obligatory fo rce in respect of the parties, had to be implemented without delay and the instructions given in the courts ’ decisions were mandatory for the administrative body responsible to act . In addition, the subsequently adopted Code of Administrative Procedure 2006, although not applicable at the time of the facts, also provides that where administrative courts quash an administrative act they are to return the case file to the responsible administrative body with mandatory instructions as to the interpretation and application of the law (see paragraph 22 above). The Court also notes that it has earlier held, in the context of complaints about failure to comply with administrative courts ’ judgments in a number of cases in respect of Bulgaria, that compliance with Article 6 § 1 of the Convention required administrative bodies to act in accordance with the findings and indications in the courts ’ final judgments (see Basarba OOD v. Bulgaria , no. 77660/01 , § 32, 7 January 2010; Popnikolov v. Bulgaria , no. 30388/02 , § 29, 2 5 March 2010; Stoyanov and Tabakov v. Bulgaria , no. 34130/04 , § 79, 26 November 2013) . Therefore, in the present case the NEMC had to act in application of the domestic court ’ s final judgment and had to do so complying with the latter ’ s indications which were mandatory. The Court observes in that connection that the domestic courts had unequivocally held that, in order to determine the percentage of disability, the NEMC needed to assess the actual state of health of the applicant (see paragraph 14 above). For that the NEMC had to take into account all conditions from which she chronically suffered as established by the medical reports accepted by the court . On the basis of that assessment the NEMC had to determine the applicant ’ s overall disability in percentage terms.

42 . Examining the NEMC decision of 28 October 2005, adopted following the final judgment of the Supreme Administrative Court of 15 July 2005, the Court observes that it only listed one medical condition in the entry “occupational diseases”, while four conditions were accepted by the courts in 2005 as describing the applicant ’ s actual state of health (see paragraphs 13-16 above). The Court then notes that the NEMC decision of October 2005 stated that it “confirms the rest of the elements” (see paragraph 16 above), presumably referring to the elements it had listed in its 9 October 2003 decision. However, the 2003 NEMC decision had been quashed by the court in its entirety and so the NEMC could not confirm parts of it. In its decision of 2005 the NEMC was called upon to determine the disability percentage assessing anew all relevant elements, on the basis of the four medical conditions accepted by the court in 2005. It is not apparent from the NEMC decision of 28 October 2005 that such a full new assessment was indeed carried out. The Court is therefore not convinced that the medical commission assessed the applicant ’ s actual state of health, as it should have, before determining the percentage of her disability. It finds that the specific and clear instructions, namely to take into account all four medical conditions of which the applicant had been found to suffer, which the domestic court had given to the administrative body , were not complied with by the NEMC. The Court reiterates in that connection that it remained in the NEMC ’ s exclusive competence to determine the percentage of disability.

43 . The foregoing considerations are sufficient to enable the Court to conclude that the NEMC failed to comply with the final judgment of the Supreme Administrative Court of 15 July 2005, in breach of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 6 § 1

44 . The applicant complained that she had no effective domestic remedy for implementing the final judgment in her favour. This complaint falls to be examined under Article 13 of the Convention which reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

45 . The Government contested that argument, pointing out to the possibility to seek damages under section 1 of the SMRDA.

46 . The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible .

47 . In view of the violation it found of Article 6 § 1 of the Convention, the Court considers that the applicant had an arguable claim for the purposes of Article 13. It then recalls that domestic remedies in cases of failure to implement domestic judgments can in principle be either of preventive or of compensatory nature (see Stoyanov and Tabakov v. Bulgaria , no. 34130/04 , § 91, 26 November 2013; Burdov v. Russia (no. 2) , no. 33509/04, § 98, ECHR 2009 ; Yuriy Nikolayevich Ivano v v. Ukraine , no 40450/04, § 65, CEDH 2009 ‑ ... (extraits)).).

48 . As far as acceleratory remedies are concerned, the Government did not point to any such remedy. In any event, the Court observes that, at the time of the events and before the application was submitted to the Court, the domestic legislation did not provide for a procedure of forced compliance with administrative court judgments. The Court notes that such a procedure was introduced with the adoption of the Code of Administrative Procedure in July 2006; however, that happened too late for the purposes of the applicant in this case.

49 . As to whether the applicant had an effective compensatory remedy at her disposal, the Court recalls its findings in respect of a possible claim for damages under the SMRDA in the context of exhaustion of domestic remedies (see paragraph 33 above).

50 . Accordingly, in view of the above, the Court considers that there has been a violation of Article 13 on account of the lack of a remedy under domestic law in respect of the applicant ’ s complaint related to the failure to comply with the final domestic judgment in her favour.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

52 . The applicant claimed that as a result of the violations of her Convention rights, she was prevented from receiving her disability pension for a period of eight years – between 1 October 2000 and 1 October 2008. As before 2000 the applicant ’ s disability pension amounted to about 42 euros (EUR) per month, she claimed a total amount of EUR 4,032 in respect of pecuniary damage for the lost pension payments during the above-mentioned period. She also claimed EUR 6,000 in respect of non ‑ pecuniary damage for the emotional pain and anguish she suffered as a result of the refusal by the medical commission to comply with the final judgment in her favour.

53 . The Government submitted that the claims were unsubstantiated and unjustified.

54 . In view of its findings above that the NEMC had the exclusive prerogative to determine the percentage of disability which in turn would have defined the amount of disability pension to be given to the applicant (see paragraph 40 above), the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

55 . The Court then notes that the 15 July 2005 judgment was not complied with and that the applicant claimed damage in respect of a period ending on 1 October 2008 (see paragraph 52 above). The Court finds that the failure to comply with the said judgment must have caused the applicant emotional anguish and distress for which it awards the applicant EUR 2,400 in respect of non-pecuniary damage.

B. Costs and expenses

56 . The applicant also claimed EUR 3,300 for the costs and expenses incurred before the Court. This amount corresponded to 33 hours of legal work at a rate of EUR 100 per hour, to be paid directly to the lawyers.

57 . The Government considered t hat the claim was excessive.

58 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the break down submitted in respect of the costs and expenses and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500.

C. Default interest

59 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY

1. Declares the complaints concerning the failure of an administrative body to comply with the indications in the final domestic judgment of July 2005 and the absence of an effective remedy to challenge that admissible;

2 . Holds that there h as been a violation of Article 6 § 1 of the Convention;

3 . Holds that there has been a violation of Article 13 of the Convention;

4 . Holds ,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 2,400 ( two thousand four hundred euros) , plus any tax that may be chargeable, in respect of non- pecuniary damage;

(ii ) EUR 1,500 ( one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses , to be paid directly into the legal representative ’ s bank account ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses , the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 27 January 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Françoise Elens-Passos Guido Raimondi Registrar President