FOURTH SECTION

Application no. 47450 / 11 Atanas Vasilev V ALCHEV against Bulgaria lodged on 21 July 2011 and 2 other applications

STATEMENT OF FACTS

Application no. 47450/11 was lodged on 21 July 2011 by Mr Atanas Vasilev Valchev , born in 1964 and living in Karlovo . Application no. 26659/12 was lodged on 24 April 2012 by Mr Sava Ivanov Dzhanfezov , Ms Tsaneta Ivanova Dzhanfezova and Ms Iva Savova Dzhanfezova , born in 1977, 1984 and 1955 respectively and living in Gabrovo . Application no. 52966/12 was lodged on 14 August 2012 by Mr Tihomir Borisov Todorov , born in 1950 and living in Plovdiv .

The applicants are Bulgarian nationals. In the three cases they are represented by Mr M. Ekimdzhiev and Ms G. Chernicherska , lawyers practising in Plovdiv .

A. The circumstances of the case

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

1. Application no . 47450/11

On 29 November 2005 the applicant bought a flat, which had been put up for public sale in the framework of enforcement proceedings against Mr S. However, before the applicant could assume possession of the flat, on 23 January 2006 another person, Mr P., brought an action against him, arguing that he had acquired the property from Mr S. in September 2005.

On 2 June 2007 the action was dismissed by the Plovdiv District Court; its judgment was upheld by the Plovdiv Regional Court on 24 October 2007. However, upon an appeal by Mr P., on 22 June 2009 the Supreme Court of Cassation quashed the Regional Court ’ s judgment and remitted the case.

Following a fresh examination, in a judgment of 6 January 2010 the Regional Court allowed the action against the applicant, finding that it was not Mr S., but Mr P., who had been the flat ’ s owner when the applicant had bought it. This was so because by the time the applicant had bought the property, Mr S. had already paid off the judgment debt, which meant that the enforcement proceedings had had to be discontinued; there had been no legal ground to carry out the public sale and the applicant ’ s purchase of the flat had been defective.

On 9 February 2010 the applicant lodged a cassation appeal, contesting the Regional Court ’ s findings of fact and law. In an additional statement he argued that the admissibility requirements of Article 280 of the Code of Civil Procedure 2007 (see below) had been met.

On an unspecified date Mr P. submitted a response to the cassation appeal, considering that the requirements of Article 280 had not been satisfied. That document was not transmitted to the applicant.

Following a closed hearing, on 21 January 2011 the Supreme Court of Cassation found the applicant ’ s appeal inadmissible because, in particular, it did not raise, as argued by the applicant, a question o f importance for the accurate application of the law .

2. Application no . 26659 /1 2

On an unspecified date the applicants brought an actio negatoria against their neighbours, the S. family, who co-owned with the applicants a plot of land in Gabrovo . The applicants claimed that the S. family, who had constructed a house on the co-owned plot, were trespassing on their property rights, because the house had been bigger than the size to which the applicants had consented and which had been indicated in the construction permit.

In a judgment of 8 November 2010 the Gabrovo District Court allowed the claim, ordering the S. family to cease the trespass. However, upon an appeal, on 3 May 2011 the Gabrovo Regional Court reversed and dismissed the action. It found, in particular, that even though the house had indeed been slightly bigger than permitted, the applicants had not established that this effectively prevented them from exercising their co-ownership rights. At the same time, the Regional Court dismissed an additional claim by the applicants to invalidate a document issued by the local municipality and certifying that the S. family ’ s building conformed to the requirements, noting, inter alia, that the deviations from the construction permit could have been considered minor.

On an unspecified date the applicants lodged a cassation appeal. They argued that their case met the admissibility criteria provided for under Article 280 § 1 of the Code of Civil Procedure 2007 (see below), in particular that it concerned a matter in which there were conflicting decisions, and that it raised questions of importance for the accurate application of the la w.

On an unspecified date the S. family submitted a response to the cassation appeal, finding it ill-founded. This document was not transmitted to the applicants.

Following a closed hearing, on 24 October 2011 the Supreme Court of Cassation declared the cassation appeal inadmissible.

3. Application no. 53966/12

In 2002 the applicant took a loan from a credit institution called V. However, he failed to pay back the entire sum in the time-limit agreed upon. Although he had already mortgaged real property, in 2006 he agreed, as an additional guarantee, to sign a promissory note in favour to V., promising to pay a sum of 19,354 Bulgarian levs (BGN), which, at the time, amounted to the unpaid part of the loan, plus the respective interest.

In 2007 V. initiated two sets of enforcement proceedings against the applicant, seeking from him 1) the unpaid part of the 2002 loan, plus the interest accrued by that time, in the total amount of BGN 20,565, and 2) the amount indicated in the 2006 promissory note.

Considering that he was required to pay twice for the same thing, on 11 January 2008 the applicant brought an action against V., seeking a declaration that he did not owe it the sum of BGN 19,354 indicated in the promissory note. In the course of the proceedings V. admitted that the promissory note had been issued as a guarantee for the loan, and not with the intention on the part of the applicant to assume an additional liability.

The Plovdiv Regional Court , in a judgment of 15 January 2010, and the Plovdiv Court of Appeal, in a judgment of 26 January 2011, allowed partially the applicant ’ s claim. The domestic courts found, in particular, that in February 2008 the applicant had paid back to V. the larger part of the sums he owed, including the whole amount due in the enforcement proceedings described under 1) above. However, he still owed V. the amount of BGN 3,430, plus interest, which V. could claim on the basis of the promissory note.

On 2 March 2011 the applicant lodged a cassation appeal, contending that the lower courts had misapplied the law. On 25 March 2011 he made additional observations, arguing that the admissibility criteria under Article 280 of the Code of Civil Procedure had been met.

On an unspecified date V. submitted a response to the cassation appeal, finding it inadmissible and ill-founded. This document was not transmitted to the applicant.

Following a closed hearing, on 14 February 2012 the Supreme Court of Cassation declared the cassation appeal inadmissible, finding, in particular, that the applicant had not duly shown that the appeal met the admissibility criteria under Article 280 of the Code of Civil Procedure, as the bulk of his arguments dealt with the grounds for cassation under Article 281 of the Code.

B. Relevant domestic law and practice

The Code of Civil Procedure, adopted in July 2007 and in force since 1 March 2008, introduced new requirements for the admissibility of cassation appeals.

Pursuant to Article 280 § 1 of the Code , the Supreme Court of Cassation i s competent to examine cases where the court of appeal has ruled upon “a question of law or procedure”, and where, in addition, one of the following three situations has occurred: (a) the question has been decided not in conformity with the practice of the Supreme Court of Cassation; (b) there have been conflicting decisions of the national courts; and (c) the question is of importance for the accurate application of the relevant law or for the development of the law.

Under the new Code (Article 281), the grounds for seeking cassation remained the same as those under the Code of Civil Procedure 1952, namely material breaches of law and procedure, nullity and ill-founded conclusions.

Article 287 § 1 of the Code provides that upon receipt of an appeal on points of law the second-instance court shall serve a copy of it on the respondent party, which can file comments. However, the provision does not require these comments to be, in turn, served on the appellant party.

Pursuant to Article 288 of the Code, the Supreme Court of Cassation rules on the admissibility of appeals on points of law in private.

In a decision of 16 June 2009 (see Decision of the Constitutional Court no. 4, constitutional case no. 4/2009) the Bulgarian Constitutional Court found that the above new requirements for the admissibility of cassation appeals were not, in principle, contrary to the right to access to a court, as guaranteed in Arti cle 122 § 1 of the Constitution, as t heir exact content and meaning would be clarified in judicial pr a ctice.

The Constitutional Court found also that the procedural rules applicable to cassation appeals were not contrary to the Constitution. However, several of the judges dissented on this point.

In his dissenting opinion Judge Gotsev noted the following:

“[Article 288 of the Code of Civil Procedure] creates an insurmountable obstacle to [the realisation] of basic procedural principles. It grossly breaches Article 121 § 1 of the Constitution [providing for equality in the trial and adversarial proceedings]. The parties cannot present their arguments to the judges and oppose, in an adversarial manner, the other party ’ s arguments. The parties ’ presence in an open hearing would allow them to present, in a confrontational manner, a number of considerations, which can only be developed in adversarial proceedings.”

In a joint partly dissenting opinion Judges Tokushev , Petkanov , Tanchev and Stoychev also noted that

“Administration of justice, including cassation, needs to be just and the parties have the right to informed participation in the proceedings. In the case, the holding of a closed hearing does not offer sufficient guarantees in that regard. This is even more important in the case, because the party faces the possibility to have the examination on the merits in the framework of the cassation proceedings refused and that refusal is not amenable to appeal.”

Judge Kirov also considered the provision of Article 288 of the Code contrary to the Constitution.

On 19 February 2010 the Supreme Court of Cassation issued an Interpretative Decision aimed at clarifying its approach on the new admissibility criteria.

COMPLAINTS

1. All applicants complain under Article 6 § 1 of the Convention that in the proceedings concerning their cassation appeals they were not given an opportunity to comment on the other party ’ s reply to their own appeal.

2. In addition, they raise the following complaints:

( a ) The applicant in application no. 47450/11, Mr Atanas Vasilev Valchev , complains under Article 6 § 1 of the Convention that the courts in his case decided in an arbitrary fashion and on the basis of provisions which were not sufficiently clear. He complains that the rules for cassation introduced with the Code of Civil Procedure 2007 breached his right to access to a court and that the other party to the proceedings was placed in an unduly advantageous position, because his cassation appeal, lodged prior to the new Code ’ s entry into force, had not been subject to the new admissibility criteria.

The applicant complains under Articles 6 § 1 and 13 of the Convention that the civil proceedings in his case were excessively lengthy and that he had no effective remedies in that regard.

Lastly, he complains under Article 1 of Protocol No. 1 that he was deprived of a legitimate expectation to acquire the disputed property.

(b) The applicants in application no. 26659/12, Mr Sava Ivanov Dzhanfezov , Ms Tsaneta Ivanova Dzhanfezova and Ms Iva Savova Dzhanfezova , complain under Article 6 § 1 of the Convention that the Gabrovo Regional Court misapplied the law and decided wrongly. They consider that the Regional Court ’ s judgment was not sufficiently motivated. They complain in addition that the rules for cassation introduced with the Code of Civil Procedure 2007 breached their right to access to a court .

The applicants complain under Article 1 of Protocol No. 1 that the authorities deprived them of their property to the benefit of the S. family. Lastly, without raising any specific arguments, they rely on Article 13 of the Convention.

(c) The applicant in application no. 52966/12, Mr Tihomir Borisov Todorov , complains under Article 6 § 1 of the Convention that the Plovdiv Regional Court and the Plovdiv Court of Appeal failed to duly examine his arguments and that he was denied access to cassation, in particular because the rules for cassation introduced with the Code of Civil Procedure 2007 were unclear.

He complains under Article 1 of Protocol No. 1 that the domestic courts ’ rulings led to unjustified interference with his property rights. Lastly, without raising any specific arguments, he relies on Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Was Article 6 § 1 of the Convention applicable, under its civil head, to the proceedings concerning the admissibility of the applicants ’ cassation appeals? If so, did the applicants have a fair hearing? In particular, did they have an opportunity to comment on the other party ’ s position regarding the admissibility of their appeal? If not, was the principle of equality of arms respected and were the proceedings adversarial (see, for example, Vermeulen v. Belgium , 20 February 1996, § 33 , Reports of Judgments and Decisions 1996 ‑ I ) ?

2. What was the content of the other parties ’ observations on the applicants ’ cassation appeals and did they raise new arguments ? Were the applicants ’ interests adversely affected by the impossibility to comment on them?