AS TO THE ADMISSIBILITY OF
Application No. 31806/96
by Bogdanka DIMOVA
against Bulgaria
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 4 April 1996 by
Bodganka Dimova against Bulgaria and registered on 11 June 1996 under
file No. 31806/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
17 September 1997 and the observations in reply submitted by the
applicant on 17 November 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Bulgarian national residing in Plovdiv.
Before the Commission she is represented by Mr Ekimdjiev, a lawyer
practising in Plovdiv.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. Particular circumstances of the case
On 21 August 1992 the applicant complained to the District
Prosecutor's Office (Raionna prokuratura) that, inter alia, her husband
fraudulently induced her to sign, on 10 December 1991, before a notary
public, a contract by virtue of which the apartment jointly owned by
her and by her husband was sold to her husband's father. The
Prosecutor's Office conducted an inquiry on the matter, but apparently
did not institute criminal proceedings.
On 28 September 1992 the Prosecutor's Office brought a civil
action before the Plovdiv District Court (Raionen sad) against the
applicant's husband and his father. The Prosecutor's Office was acting
under its authority to institute civil proceedings as a procedural
substitute "in a third person's interest", according to Section 27
para. 1 of the Code of Civil Procedure (see below Relevant domestic
law). The prosecutor asked the Court to nullify the sale-purchase
contract as it was allegedly concluded fraudulently.
As required under Section 31 of the Code of Civil Procedure, the
Court summoned also the applicant, who had the right, if she so wished,
to participate as a party to the proceedings.
The applicant and her lawyer appeared at the hearings held by the
Court, presented evidence and made submissions. In the minutes the
applicant was referred to by the Court as a "plaintiff", the
Prosecutor's Office being the other plaintiff.
At the hearing held on 24 March 1993 the applicant's lawyer
requested an amendment of the civil action to include intimidation as
an additional ground for nullification. This request was granted by
the Court, which stated that the action was to be considered so amended
upon the plaintiff's request.
By a judgment of 7 January 1994, served on 14 February 1994, the
District Court dismissed the action as the allegations about fraud or
intimidation were unfounded. The Court stated in the operative part
of its decision that it dismissed "the action[s] brought by the Plovdiv
District Prosecutor's Office as a procedural substitute of [the
applicant] ..."
On 21 January 1994 the Prosecutor's Office filed with the Court
an appeal (protest) against the judgment. However, this appeal was not
admitted for examination as it did not comply with certain procedural
requirements.
On 11 April 1994, within the two months' time-limit provided for
under the law for the submission of a petition for review (cassation),
the applicant submitted such a petition to the Supreme Court (Varhoven
sad) against the District Court's decision. Stating that she was a
party to the proceedings, a co-plaintiff, she asked the Court to find
that the impugned judgment was contrary to the law and ill-founded.
In her submissions to the Supreme Court she never complained about any
irregularity in respect of her admission and participation as a party
to the proceedings.
On 30 October 1995, after a hearing, the Court rejected the
applicant's petition as inadmissible.
The Court noted at the outset that a judgment in a case brought
by a procedural substitute was binding upon the person whose civil
right had been at stake in the proceedings leading to this judgment.
Therefore, the District Court's judgment of 7 January 1994 was binding
on the applicant.
The Supreme Court further noted that the District Court had never
delivered a formal ruling thereby legally admitting the applicant as
a party to the proceedings. This had been an omission on the part of
the District Court. It was true that the applicant had taken active
part in these proceedings, but the District Court had been obliged by
law to admit her formally as a party.
As this had not been done, under Section 233 para. 2 of the Code
of Civil Procedure there arose the legal interest for the applicant,
as a person who was bound by a judgment without having been a party to
the proceedings leading to it, to seek its annulment. As a result the
Supreme Court considered that the petition for review submitted by the
applicant was to be considered as a petition for annulment under
Section 233 para. 2 of the Code of Civil Procedure.
However, the time-limit for submission of a petition for
annulment under this provision was one month and it had been exceeded.
On this ground the Supreme Court declared the applicant's petition
inadmissible.
B. Relevant domestic law
Section 27 of the Code of Civil Procedure (Grazhdansko-
protzesualen kodeks) provides that the prosecutor may institute or join
civil proceedings on behalf of a third person whenever, inter alia,
this is necessary for the protection of State or public interests.
According to the jurisprudence, under Section 27 the prosecutor acts
as a State authority but assumes the role of a party to civil
proceedings for the protection of the interests of the State or of the
individual.
Under Sections 15 para. 3 and 31 of the Code the court is obliged
ex officio to summon as a party to the proceedings the person in whose
interest the prosecutor has brought an action.
Under Sections 225 and 226 of the Code a party to civil
proceedings has a right to institute proceedings for review (cassation)
within a two months' time-limit. In these proceedings the Supreme
Court can examine whether the lower court's judgment was contrary to
the law or ill-founded and whether there has been a substantial breach
of procedure. The Supreme Court in the review proceedings is competent
to quash the lower court's judgment and to return it for new
examination or to decide itself on the merits.
Section 233 para. 2 of the Code provides that "annulment ... may
be requested by a [third] person who is bound by a judgment despite the
fact that he has not been a party to the proceedings". The time-limit
for such petition for annulment to the Supreme Court is one month from
the date when the third person has learnt of the existence of the
judgment.
COMPLAINTS
The applicant contends that there has been a breach of Article 6
para. 1 of the Convention. She complains inter alia of the restriction
on her access to the highest judicial authority, the Supreme Court.
She submits also that the Supreme Court applied wrongly the
relevant procedural law thus violating the principle of equality of
arms. Thus, a person in the applicant's position should be considered
to have become a party to the proceedings ex lege and should have been
treated equally with any other party to the proceedings.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 April 1996 and registered on
11 June 1996.
On 21 May 1997 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
17 September 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 17 November 1997, also after an
extension of the time-limit.
On 28 October 1997 the Commission granted the applicant legal
aid.
THE LAW
The applicant complains under Article 6 (Art. 6) of the
Convention of the restriction on her access to the Supreme Court.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides as follows:
"1. In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing
... by [a] ... tribunal established by law..."
a) The Government raise a preliminary objection that the application
is an abuse of the right to petition as it is "obviously ungrounded"
and misleads the Commission on the issue of the exhaustion of domestic
remedies.
The Government further submit that the applicant has not
exhausted all domestic remedies within the meaning of Article 26
(Art. 26) of the Convention because her petition for review (cassation)
was rejected by the Supreme Court on 30 October 1995 on procedural
grounds, as having been out of time.
The Government further maintain that the application is submitted
after the expiry of the six months' time-limit. In their view this
time-limit is to be counted as from 21 March 1994. The Government
submit that this is the date of expiration of the one month time-limit
for filing a petition for annulment under Section 233 para. 2 of the
Code of Civil Procedure against the District Court's judgment dated
7 January 1994 and served on 14 February 1994.
The applicant replies that the alleged violation of Article 6
(Art. 6) of the Convention occurred by virtue of the decision of the
Supreme Court of 30 October 1995 against which there exist no effective
domestic remedies. Therefore, the contentions of the Government in
respect of the exhaustion of domestic remedies and the six months'
time-limit are misplaced.
The Commission has first examined the arguments of the Government
in respect of the requirements of Articles 26 and 27 (Art. 26, 27) of
the Convention.
The Commission, like the applicant, notes that in the present
case the alleged violation of the Convention concerns precisely the
manner in which the Supreme Court in its judgment of 30 October 1995
decided on the relevant procedural issues. Furthermore, the Government
have not stated that against this judgment there existed a remedy which
has not been utilised (cf. Eur. Court HR, De Jong, Baljet and Van den
Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77,
p. 18, para. 36). Therefore, the Government's objection as regards the
exhaustion of domestic remedies must fail.
It also follows that the Government's position that the six
months' time-limit ran from 21 March 1994 cannot be accepted.
There having been no indication that the application was
knowingly based on untrue facts (cf. No. 28626/95, Dec. 3.7.97), the
Commission further rejects as unsubstantiated the assertion of the
Government that there has been an abuse of the right to petition within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
b) The Government submit that the applicant was summoned by the
District Court as a co-plaintiff, as required by the relevant
provisions of the Code of Civil Procedure. The Government further
state that the fact that the District Court did not make a formal
ruling thereby accepting the applicant as a plaintiff was an omission
on the part of the Court, but also note that the applicant did not
expressly ask the Court to make such a formal ruling. In any event,
the applicant was able fully to participate in the proceedings before
the District Court.
The Government further recall that the Supreme Court noted the
omission of the District Court. Thereafter the Supreme Court, in the
Government's submission, acted in a manner favourable to the applicant,
as the Court on its own initiative assumed that the applicant could
have filed a petition for annulment under Section 233 para. 2 of the
Code of Civil Procedure, and examined the applicant's petition for
review as a petition for annulment. However, the time-limit for the
submission of a petition for annulment had been exceeded, through the
applicant's fault.
The Government conclude that there has been no inappropriate
restriction placed on the applicant's access to the Supreme Court, that
she had an opportunity to participate in the examination of her case
before the District Court, and that the allegation that there has been
a violation of Article 6 (Art. 6) of the Convention is manifestly ill-
founded.
The applicant submits that under the Code of Civil Procedure, and
as explained in the writings of Professor Stalev, the leading authority
in civil procedure in Bulgaria, when an action has been brought by a
procedural substitute in a third persons's interest, the latter
becomes, ex lege, a party to the proceedings. Therefore the applicant
was a party to the proceedings regardless of the fact that there was
no formal ruling of the District Court in this respect. Furthermore,
she was repeatedly treated by the District Court as a party to the
proceedings.
As a result, in the applicant's view, the finding of the Supreme
Court that she was not a party to the proceedings and that she thus had
no standing to submit a petition for review was wrong. Moreover, it
was completely inappropriate and logically inconsistent to treat her
petition for review as a petition for annulment under Section 233
para. 2 of the Code of Civil Procedure. A petition for annulment under
this provision could be submitted by third persons who have not taken
part in the proceedings, whereas she did.
The applicant concludes that by interpreting the law in this way
the Supreme Court deprived her of her right to access to the review
(cassation) stage of the proceedings in breach of Article 6 (Art. 6)
of the Convention.
Having examined the application, the Commission finds that it
raises serious questions of fact and law which are of such complexity
that their determination should depend on an examination of the merits.
The application cannot, therefore, be regarded as manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and no other grounds for declaring it inadmissible have
been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy