Communicated on 14 January 2015

FOURTH SECTION

Application no. 59546/08 Dimitar Tsvyatkov ZAGORSKI against Bulgaria lodged on 19 November 2008

STATEMENT OF FACTS

The applicant, Mr Dimitar Tsvyatkov Zagorski , is a Bulgarian national, who was born in 1928 and lives in Plovdiv. He is represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva , 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.

On 18 December 2003 the applicant ’ s wife, Mrs Dona Zagorska , who was suffering from cancer, underwent an operation. She was prescribed a course of chemotherapy, which was to start several days after the operation. However, the first chemotherapy session could not start until 30 January 2004, due to the fact that the hospital where the treatment was to be carried out did not have in stock the necessary medicaments. The applicant had to search for those medicaments in the pharmacies.

Pursuant to the applicable domestic law, the Ministry of Health was obliged to supply the medicaments at issue, free of charge.

Mrs Zagorska ’ s next chemotherapy sessions were carried out as previewed, with medicaments supplied by the Ministry. Despite the treatment, on 19 July 2004 Mrs Zagorska deceased from the illness.

On 18 October 2005 the applicant brought an action against the Ministry of Health under the State and Municipalities Responsibility for Damage Act (SMRDA). He claimed, in pecuniary damage, 372.56 Bulgarian levs (BGN) the amount he had paid for the missing medicaments. In addition, he claimed that he had suffered non-pecuniary damage on two grounds: 1) the defendant ’ s failure to provide life-saving medicaments to his wife had provoked in him worries and panic in the days when he had been himself searching for the medicaments, and 2) the same failure had been the cause of his wife ’ s untimely death, which had led to additional suffering for him. The a pplicant claimed, in total, BGN 10,001 for non-pecuniary damage.

In a judgment of 12 December 2007 the Plovdiv Regional Court allowed partially the applicant ’ s claims. It accepted that the Ministry of Health had indeed failed in its obligations to provide in due time the medicaments. However, it was not satisfied that there was a causal link between that failure and Mrs Zagorska ’ s death. It thus awarded the applicant BGN 2,000 in non-pecuniary damage, accepting his first claim in that regard, namely that he had experienced worries and panic in the period when the medicaments had been missing. As regards pecuniary damage, the domestic court awarded the applicant BGN 73.71, accepting that only this part of the claim had been proven.

Upon appeal, in a judgment of 19 May 2008 the Plovdiv Court of Appeal found the applicant ’ s claims inadmissible and discontinued the proceedings. It considered, in particular, that the damage claimed concerned the Ministry of Health ’ s obligations vis-à-vis Mrs Zagorska and not the applicant, and that the applicant did not have standing to make his claims. In reaching this conclusion the Court of Appeal relied, in particular, on the provision of section 6 of the SMRDA (see below, Relevant domestic law and practice).

In a final decision of 6 August 2009 the Supreme Court of Cassation refused to accept for examination the applicant ’ s appeal on points of law.

B. Relevant domestic law and practice

The State and Municipalities Responsibility for Damage Act 1988 ( Закон за отговорността на държавата и общините за вреди – title amended in 2006) provides in section 1(1) that the State and the municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions, acts or omissions of their bodies or officials while discharging their administrative duties.

Section 6(1) of the Act provides that the right to compensation in respect of pecuniary damage is inheritable, but the right to compensation in respect of non-pecuniary damage survives the death of the individual concerned only if he or she has him- or herself brought a claim.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that he was unjustifiably refused access to a court to have his tort claim against the Ministry of Health examined by the courts. The applicant also relies on Articles 3 and 13 of the Convention and Article 1 of Protocol No. 1.

QUESTION TO THE PARTIES

Was the applicant unjustifiably denied access to a court to have his claim for damages against the Ministry of Health examined by the courts?