Communicated on 29 June 2015

FOURTH SECTION

Application no. 53071/08 Veselina Ivanova CHAKALOVA-ILIEVA against Bulgaria lodged on 14 October 2008

STATEMENT OF FACTS

The applicant, Ms Veselina Ivanova Chakalova-Ilieva , is a Bulgarian national who was born in 1951 and lives in Stara Zagora. She is represented before the Court by Ms K. Boncheva and Mr M. Ekimdzhiev , lawyers practising in Plovdiv.

A. The circumstances of the case

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

1. The first dismissal of the applicant

The applicant worked as head teacher in a secondary school in Stara Zagora.

On 19 July 2002 with an order of the Head of the Regional Education Inspectorate (REI) to the Ministry of Education she was dismissed on disciplinary grounds.

The applicant brought a claim against the REI, seeking the annulment of the order of her dismissal, reinstatement and lost wages.

With a judgment of 2 April 2003 the Stara Zagora District Court ( Районен съд ) allowed the applicant ’ s claims. That judgment was upheld by the Stara Zagora Regional Court ( Окръжен съд ) and the Supreme Court of Cassation with their judgments of 18 July 2003 and 24 November 2005 respectively. Neither the opposing party nor any of the courts raised throughout the proceedings any doubts as to the proper defendant in the case being the REI.

2. The second dismissal of the applicant

Following the entry into force of the judgment of 24 November 2005 the applicant applied to take up her duties on 6 December 2005. On the same day a new order for dismissal was issued by the Head of the REI.

The applicant filed an appeal against the order with the Stara Zagora District Court challenging the lawfulness of the dismissal, seeking reinstatement to her previous post and compensation for the loss of income. In the course of the proceedings the REI argued that they were not the proper defendant in the case and that the claims had to be addressed to the secondary school in which the applicant had worked prior to the dismissal. The REI submitted that Section 61 § 2 of the Labour Code and Section 37 § 4 of the Education Act provided that the employer of the applicant was the school.

During the court hearing of 12 April 2006 the District Court ruled in favour of the objection, and, reasoning that the proper defendant in the case was the school, discontinued the proceedings.

That decision was appealed against by the applicant before the Regional Court.

With its decision of 26 May 2006 the Regional Court quashed the decision of the lower instance explicitly stating that the proper defendant in the applicant ’ s case was the REI. That court remitted the case to the first instance court for examination on the merits.

With a judgment of 8 December 2006 the District Court allowed the applicant ’ s claims.

Upon appeal by the REI, the Regional Court upheld the judgment with its own judgment of 27 April 2007.

The REI filed a cassation appeal. With a judgment of 16 April 2008 the Plovdiv Appellate Court ( Апелативен съд ), sitting as a cassation instance, quashed the judgment of the lower court and dismissed the claims, finding that the REI was not the proper defendant in the case. The court ruled that the applicant ’ s claims had to be brought against the school in which she had worked prior to the dismissal in question, as that school was her employer.

B. Relevant domestic law and practice

1. Conclusion of employment contracts with head teachers

The conclusion of those types of contracts is regulated by the Labour Code of 1986 and the Education Act of 1991.

According to the definition provided in § 1 of the Additional Provisions to the Labour Code an employer is any physical or legal entity or its subsidiary, as well as any organisationally and economically separate formation which hires employees.

By virtue of Section 61 § 2 of the Labour Code and Section 37 § 4 of the Education Act the employment contracts of head teachers of Municipality ‑ run schools are to be concluded by the Head of the RE I , being the body superior to the employer.

2. Interpretative decision No. 1 of 2012 of the Plenary Meeting of the Civil Chambers of the Supreme Court of Cassation

In that interpretative decision ( тълк . реш . № 1 от 30 март 2012 г. на ВКС по тълк . д. № 1/2010 г., ОСГК), made on 30 March 2012 pursuant to the proposal of the President of the Supreme Court of Cassation, the Plenary Meeting of the Civil Chambers of that court resolved a contentious issue relating to the interpretation of certain provisions of the Labour Code, namely those concerning the proper defendant to labour disputes. In particular, it noted that by Section 344 § 1 of the Labour Code the actions of the employee for annulment of an unlawful dismissal, reinstatement and compensation had to be directed against the employer, being the physical or legal entity which hires employees – with respect of head teachers – the school. It held that the same approach applied as well to situations in which the employment contract was concluded by the superior to the employer.

By Section 86 § 2 of the Judicial Power Act of 1994 („ Закон за съдебната власт “), interpretative decisions are binding on the judiciary and the executive branch.

COMPLAINTS

1. The applicant complains, under Article 6 § 1 of the Convention, that by delivering two contradictory rulings on who was the proper defendant to her action the courts prevented her from having the merits of her case adjudicated.

2. She also complains under Article 1 of Protocol No. 1 that this lack of access to a court impeded her from recovering her claim for lost wages.

3. Invoking Article 13 of the Convention the applicant submits that she did not have effective remedies against the violations alleged above.

QUESTIONS TO THE PARTIES

1. Did the applicant have access to a court, as required by Article 6 § 1 of the Convention (see Kostadin Mihaylov v. Bulgaria , no. 17868/07, 27 March 2008)? In particular, was she able to obtain a determination of the merits of her claims for annulment of the dismissal, reinstatement and compensation for loss of income?

2. Did the alleged lack of access to a court amount to an interference with the applicant ’ s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? If so, was this interference lawful and necessary?

3. Did the applicant have at her disposal effective domestic remedies for her complaints under Article 6 § 1 of the Conve ntion and Article 1 of Protocol No. 1, as required by Article 13 of the Convention?