Communicated on 4 October 2016
FIFTH SECTION
Application no. 17220/09
Veselin Angelov DINCHEV
against Bulgaria
lodged on 22 January 2009
STATEMENT OF FACTS
The applicant, Mr Veselin Angelov Dinchev, is a Bulgarian national who was born in 1952 and lives in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant brought civil proceedings against his former employer, claiming that he had been dismissed unlawfully. He asked to be reinstated and sought damages of over 11,000 Bulgarian levs (BGN – about EUR 5,500). His claim was rejected at first instance by the Sofia District Court, but granted almost in its entirety on appeal by the Sofia City Court on 17 March 2005.
The other party, his former employer, a company, appealed in cassation in May 2005. The applicant submitted a written response to the cassation appeal. His response was dated 21 July 2005; it was received at the Sofia City Court on 25 July 2005. The file was then sent by the Sofia City Court to the Supreme Court of Cassation (“the SCC”) for examination. The SCC gave the file a number in September 2005 and scheduled a hearing for 9 December 2008.
During 2006 and 2007 the applicant repeatedly checked, both in the SCC’s Registry and on its website, for the date of the hearing. He consistently received confirmation that it was 9 December 2008. He submitted to the Court a print-out from the SCC’s website dated 22 January 2009, which indicated that the case was scheduled for 9 December 2008.
In the meantime, a new Code of Civil Procedure was adopted in July 2007, a majority of which was to enter into force on 1 March 2008. According to paragraph 2 (4) of the Code’s Transitional and Concluding Provisions, all labour disputes pending before the SCC and in which a hearing had been scheduled for later than 30 June 2008 had to be transferred to “the appropriate court of appeal”.
On 7 August 2007 the SCC terminated the case before it and sent it to the Sofia Court of Appeal (SCA) for information and action. The applicant was not informed of the transfer of the case to the SCA. It would appear that the applicant’s written response to the cassation appeal of his former employer was not transmitted to the SCA.
On 6 and 19 February 2008 the SCA sent two letters to the other party, the applicant’s former employer, informing the company that the proceedings in the case it had brought would be terminated if it failed to pay the requisite court fee. The company replied on 5 March 2008 that it had paid the fee.
The SCA scheduled a hearing for 27 May 2008. It notified the parties of the hearing via publication in the State Gazette, in accordance with the applicable legal provisions. In a report drafted during the hearing in May 2008 the SCA noted that the parties had been regularly notified and had not sent representatives, and also that the case was ready for decision.
The SCA examined the company’s cassation appeal on the merits. It delivered a final judgment on 23 July 2008, quashing the decision of the Sofia City Court which had upheld the applicant’s claim. The SCA noted in its judgment that the applicant had made no submissions in respect of the arguments and claims put forward in the cassation appeal. The court then observed that, taking into account the submissions of the company and the available information in the case file, the company’s counterclaims against the applicant were justified. The SCA thus found in favour of the applicant’s former employer.
The applicant only learned about this decision in November 2008 when he again inquired at the SCC’s registry about the date of the hearing in his case before the SCC. At the time he believed the hearing was going to take place on 9 December 2008 as scheduled.
B. Relevant domestic law and practice
1. Examination of labour law disputes on cassation
A new Code of Civil Procedure (“the 2007 CCP”) was adopted in July 2007 and the larger part of it entered in force on 1 March 2008. According to paragraph 2 (5) of the Code’s Transitional and Concluding Provisions, cassation appeals in labour disputes concerning unlawful dismissals, which were pending before the SCC and in which a hearing had been scheduled for a date subsequent to 30 June 2008, had to be transferred to “the competent court of appeal”.
2. Notification of cassation hearings
Article 218 d of the old CCP of 1952, in force until 1 March 2008, provided that before the end of each month the Supreme Court of Cassation should publish in the State Gazette the dates on which it would hold hearings and the cases to be heard during the following month. The provision also indicated that when the circumstances so required the parties could be personally notified of the hearing.
3. Reopening of court proceedings
Article 303 of the 2007 CCP provides that an interested party can request the reopening of civil proceedings which have ended with a decision which has acquired res judicata. Reopening in such cases can be requested on the basis of specific grounds, which are exhaustively listed in the CCP. Article 303 § 5 of the 2007 CCP stipulates in particular that a party to a case could seek reopening when, in breach of the relevant rules, the party has been deprived of the opportunity to take part in the proceedings, has not been adequately represented, or could not appear in person or be represented before the court, for reasons beyond that party’s control. The Supreme Court of Cassation (SCC) has allowed requests for reopening on the above‑indicated grounds in a number of decisions (реш. № 10 от 9.02.2010 на ВКС по гр. д. № 973/2009 г., ГК; реш. № 689 от 30.12.2010 на ВКС по гр. д. № 1731/2009 г., ГК; реш. № 329 от 10.10.2012 на ВКС по гр. д. № 289/2012 г., ГК; реш. № 338 от 27.12.2013 на ВКС по гр. д. № 5550/2013 г., ГК;).
Reopening can be requested within three months as of the moment in which a party became aware of the facts that would serve as a ground for the reopening (Article 305, 2007 CCP). Requests for reopening are examined by the SCC (Article 234, 2007 CCP).
COMPLAINT
The applicant complained under Article 6 § 1 that he had not had a fair trial because he could not participate, either orally or in writing, in the cassation hearing in the proceedings he had brought against his former employer.
QUESTIONS TO THE PARTIES
1. Did the applicant exhaust the available effective domestic remedies before applying to the Court? In particular, was an application for reopening of proceedings under Article 303 § 5 of the 2007 Code of Civil Procedure such a remedy in the present case?
2. Did the applicant have a fair hearing in the proceedings which ended with the final judgment of the Sofia Appellate Court on 23 July 2008? In particular:
(a) did he have an effective access to a court, as required by Article 6 § 1 of the Convention, considering that he was notified of the hearing via a publication in the State Gazette, that he did not participate in the hearing and that his written comments on the cassation appeal of the other party were not examined by the Sofia Court of Appeal;
(b) was the principle of equality of arms respected in the proceedings before the Sofia Court of Appeal (see, for example, Kress v. France [GC], no. 39594/98, § 72, ECHR 2001-VI)? Were the applicant’s interests adversely affected by the fact that his written submissions in response to the cassation appeal had not been transmitted nor examined by the court which decided in the case?
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