Communicated on 26 April 2017

FIFTH SECTION

Application no. 54991/10 Krastyo Chonov CHORBADZHIYSKI and Desislava Krasteva KRASTEVA against Bulgaria lodged on 3 September 2010

STATEMENT OF FACTS

The applicants, Mr Krast yo Chonov Chorbadzhiyski and Ms Desislava Krasteva Krasteva , are Bulgarian nationals, who were born in 1914 and 1972 respectively and lived in Plovdiv. They were represented before the Court by Mr M. Ekimdzhiev and Mrs S. Stefanova , lawyers practising in Plovdiv.

On 27 May 2012 Mr Krastyo Chonov Chorbadzhiyski died. His d aughter, who is his legal heir – Ms Desislava Krasteva Krasteva , the second applicant in the case, expressed the wish to pursue the proceedings also in his stead.

A. The circumstances of the case

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

On 29 August 1998, Mrs M.C., the first applicant ’ s wife and mother of the second applicant died as a result of a falling branch during a summer storm.

On 6 August 2003 the applicants brought a civil claim under the State Liability for Damage Caused to Citizens Act 1988 (“the 1988 Act”) jointly against the State, the Plovdiv Municipality and two individuals who had allegedly been responsible for the accident. The applicants sought 2,000,000 Bulgarian levs (BG N) (approximately equivalent to 1,022,584 euros (EUR)) in non-pecuniary damage and BGN 200,000 (approximately equivalent to EUR 102,258) in pecuniary damage suffered as a result of the loss of their wife and mother.

In a judgment of 5 November 2004 the Plovdiv Regional Court dismissed the applicants ’ claim and ordered them to pay BGN 88,000 (approximately equivalent to EUR 44,994) in court fees, amounting to four per cent of the total sum of the claims. The court turned down the action against the State noting that under the 1988 Act the State did not have a standing per se, but could be held liable only through its agents and bodies. In the case at hand those were the municipal authorities. It however concluded that the Plovdiv Municipality could not be held responsible as Mrs M.C. ’ s death had been accidental. It likewise dismissed the claim against the two individuals.

The applicants appealed against that judgment. On 21 March 2006 the Plovdiv Court of Appeal partly upheld and partly quashed the lower court ’ s judgment. It discontinued the proceedings against the State, finding the claim inadmissible. The court re - characterised the action against the Plovdiv Municipality as one under section 49 of the 1951 Obligations and Contracts Act, and remitted the case to the Plovdiv Regional Court for a fresh examination. It also quashed the part of the judgment ordering the applicants to pay court fees.

The applicants lodged an appeal on points of law. In a judgment of 10 January 2007 the Supreme Court of Cassation set aside the lower court ’ s judgment and referred the case back to the Plovdiv Court of Appeal.

In a judgment of 24 July 2008 the Plovdiv Court of Appeal awarded each of the applicants BGN 50,000 ( approximately equivalent to EUR 25,565) in non-pecuniary damage, plus interest. In accordance with the applicable provisions of domestic law, it also ordered th e applicants to pay jointly BGN 126,000 (approximately equivalent to EUR 64,423) in court fees, calculated as a pro rata percentage of the dismissed part of their claims.

On 10 March 2010 the Supreme Court of Cassation entirely upheld that judgment.

On 13 April 2010, relying on the judgment Stankov v. Bulgaria (no. 68490/01, 12 July 2007), the applicants asked the Supreme Court of Cassation to vary its ruling in relation to court fees. In a final decision of 14 January 2011 the Supreme Court of Cassation dismissed that request finding that the procedure for supplementing a judgment was applicable only in respect of costs of proceedings, but did not cover court fees which were fixed by virtue of the statutory provisions.

On 25 March 2010 the Plovdiv Regional Court issued a writ of execution against the applicants for the amount of BGN 126,000, plus additional BGN 5 for the issuance of the writ of execution.

On 2 March 2011 the Plovdiv Municipality paid to each of the applicant the amount of BGN 133,934.43 (approximately equivalent to EUR 68,480) covering the awarded compensation, plus interest.

On 11 April 2011 the second applicant transferred to a bank account of the Plovdiv Directorate of the National Revenue Agency the amount of BGN 73,292.09 (approximately equivalent to EUR 37,474) due for the court fees, plus interest.

On 28 April 2011, the first applicant also transferred to the Plovdiv Directorate of the National Revenue Agency the amount of BGN 73,451.13 (approximately equivalent to EUR 37,555) due for the court fees, plus interest.

B. Relevant domestic law and practice

1. State liability for damage

Section 1 of the Act originally called the State Responsibility for Damage Caused to Citizens Act 1988, re named on 12 July 2006 the State and Municipalities Responsib ility for Damage Act 1988 (“the 1 988 Act”), provides that the State is liable for damage suffered by individuals as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties.

Section 8(1) of the 1988 Act provides that those seeking redress for damage occasioned in circumstances falling within the scope of this Act have no claim under the general law of tort. The courts have said that this Act is a lex specialis and excludes the application of the general regime ( реш . № 1370 от 16 декември 1992 г. по гр . д. № 1181/1992 г., ВС, ІV г.о .; реш . от 29 юли 2002 г. по гр . д. № 169/2002 г., СГС, ГК, ІV б о.). The Supreme Court of Cassation has said that liability under section 1 of the 1988 Act is a special case of vi carious liability under section 49 of the Obligations and Contracts Act 1951, which provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job ( реш . № 738 от 21 ноември 2006 г. по т. д. № 348/06 г., ВКС, I т. о.). The Bulgarian courts have on occasion examined damages claims agains t the authorities under section 49 ( реш . № 335 от 31 май 2010 г. по гр . д. № 840/2009 г., ВКС, III г. О).

According to the established practice in civil proceedings, the courts examine and determine the legal characterisation of claims submitted to them, without regard to the legal characterisation proposed by the plaintiff. The plaintiff must identify the disputed issue by clarifying the facts and the claim made but is under no duty to specify its characterisation in law. Even if the plaintiff indicates a legal characterisation of the claim, the courts are not bound thereby. They must make their own independent assessment ( реш . № 1208 от 19 юни 1998 г. по гр.д . № 915/98 г., V г.о ВКС, реш . № 75 от 15.VIII.1988 г., ОСГК 75-88- ОСГК на ВС.).

In 2005, the Supreme Court of Cassation issued an interpretative decision on certain aspects of the implementation of the 1988 Act, noting the existence of disputes and divergent practice. One of the issues dealt with was the identity of the State administrative bodies having locus standi to answer claims under this Act. The Supreme Court of Cassation clarified that the action must be brought against the State body employing the relevant agent or, where that State body did not have separate legal personality, against the superior State organ meeting that condition.

2. Court fees

The relevant provisions concerning court fees have been summarised in the cases of Stankov v. Bulgaria (no. 68490/01, §§ 19-21, 12 July 2007) and more recently in Zaharieva v. Bulgaria ( dec. ) (no. 6194/06, (§§ 43-48, 20 November 2012).

COMPLAINTS

Invoking Article 6 § 1 and Article 1 of Protocol No. 1, alone and together with Article 13 of the Convention, the applicants complain of the excessive amount of court fees that they were ordered to pay in the proceedings for damages against the State.

QUESTIONS TO THE PARTIES

1. Was the applicants ’ right to access to court under Article 6 § 1 of the Convention unreasonably restricted in view of the amount they were ordered to pay by the national courts in court fees (see Stankov v. Bulgaria , no. 68490/01, §§ 49-67, 12 July 2007)?

2. Was there an interference with the applicants ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 in view of the amount of the court fees they were ordered to pay?

If so, did that interference impose an excessive individual burden on the applicants?

3. Did the applicants have at their disposal an effective domestic remedy for the complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?