Published on 27 March 2023

THIRD SECTION

Application no. 28854/17 Kalina Ivanova DIMITROVA against Bulgaria lodged on 7 April 2017 communicated on 10 March 2023

SUBJECT MATTER OF THE CASE

The application concerns the right to access to court in summary civil proceedings ( заповедно производство ).

Such proceedings, provided for under Articles 410 et seq. of the Code of Civil Procedure, are intended to ensure the quick disposal of cases where the debtor does not contest his or her debt. In certain situations, such as where the creditor is a bank and relies on written evidence, the respective court can apply an even more accelerated procedure of “immediate enforcement” and issue at the same time a payment order and a writ of execution. The payment order is then to be served on the debtor, who can contest it in certain circumstances. If the debtor does not object within the time-limit provided, the order enters into force. It can nevertheless be quashed, in certain situations enumerated in Article 423 § 1 of the Code of Civil Procedure, in particular where the debtor lives abroad and has not received the order in person.

In the case at hand, a bank brought proceedings against the applicant. The Burgas District Court, after allowing its request for “immediate enforcement”, issued a payment order and a writ of execution on 4 January 2016, for the total amount of 11,126 Bulgarian levs (BGN), equivalent to 5,690 euros (EUR). Service of the order was attempted in the weeks that followed, but the applicant, living abroad, was not found on her address in Bulgaria. The payment order was nevertheless considered to have entered into force. The applicant found out about it in September 2016. She applied for it to be quashed under Article 423 § 1 of the Code of Civil Procedure. However, her application was rejected. In a final decision of 25 October 2016 the Burgas Regional Court found that even though the applicant had proven that she had been living abroad at the time when service of the relevant documents had been attempted (February-March 2016), she had not shown that this had been so at the time when bank loan taken by her had become executable (November 2015), and after March 2016.

The applicant complains under Article 6 § 1 of the Convention (relying in addition on Article 13) that she was unfairly denied access to court to oppose the issuance of the writ of execution.

QUESTION TO THE PARTIES

Did the applicant have access to a court for the determination of her civil rights and obligations, as required under Article 6 § 1 of the Convention, in particular seeing that she was not notified of the proceedings against her and could not participate and contest the payment order (see, among others, Dilipak and Karakaya v. Turkey , nos. 7942/05 and 24838/05, 4 March 2014, Gyuleva v. Bulgaria , no. 38840/08, 9 June 2016; Schmidt v. Latvia , no. 22493/05, 27 April 2017; Berestov v. Russia , no.17342/13, 18 May 2021)?