FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 37346/05
by Maria Vasileva FINGER
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 23 February 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Mark Villiger,
Isabelle Berro‑Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 6 October 2005,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Maria Vasileva Finger, is a Bulgarian national born in 1946 and living in Sofia. She is represented before the Court by Mr M. Ekimdzhiev and Ms G. Chernicherska, 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.
Upon the death of her parents, the applicant, together with her brother, B.R., inherited a house and plot of land in Sofia, a plot of land in Dolni Pasarel, and two fields.
On 9 July 1996 B.R. brought a claim against the applicant, seeking the division of the house and of the two plots.
At the first hearing, held on 10 December 1996, the applicant requested that the two fields be included in the division as well. The court allowed the request and adjourned the case, instructing the parties to submit evidence, including plans of the two plots.
A hearing listed for 6 March 1997 was adjourned because the plans were not ready, and another hearing, scheduled for 6 May 1997, failed to take place because counsel for B.R. was absent.
On 23 September 1997 the court asked an expert to determine the value of the properties and say whether it was possible to divide them up. A hearing listed for 20 January 1998 did not take place because the expert report was not ready. The report was apparently never drawn up.
On 19 March 1998 the court, on a request by the parties, stayed the proceedings to allow them to settle the case. However, as they could not reach an agreement, the proceedings resumed on an unspecified later date.
Two hearings, fixed for 29 October 1998 and 2 February 1999, did not take place because the applicant was not duly summoned and was absent. A hearing was held despite the applicant's absence on 16 March 1999.
In a judgment of 15 April 1999 the Sofia District Court allowed the division of the properties into two equal shares. As neither party appealed, the judgment became final and the court proceeded with the second phase of the proceedings.
At a hearing held on 19 October 1999 the applicant requested that the house be allotted exclusively to her. B.R. requested the appointment of an expert to answer the same questions as the one appointed during the first phase of the proceedings.
A hearing listed for 18 November 1999 was adjourned because the expert report was not ready.
At a hearing held on 16 December 1999 the court admitted the report in evidence. Its conclusion was that none of the properties was divisible.
In a judgment of 10 January 2000 the Sofia District Court allotted the house and plot of land in Sofia to the applicant, and the plot in Dolni Pasarel and the two fields to B.R.
B.R. appealed, requesting, among other things, an expert report on the value of the properties and on the possibilities of their being divided up.
The first hearing before the Sofia City Court was held on 6 July 2000. The court rejected an objection lodged by the applicant to the report requested by B.R., and adjourned the case to allow the parties to call witnesses.
At the next hearing, held on 25 October 2000, the court heard two witnesses. It also ordered the expert report sought by B.R.
Two hearings, listed for 31 January and 3 May 2001, were adjourned because the report had not been drawn up.
The report, which concluded that the house was divisible, was ready on 23 October 2001. It was admitted in evidence at a hearing held on 31 October 2001. The applicant objected to the report's conclusions, and requested a second expert report. B.R. requested an expert report on the possibility of dividing up one of the fields.
At the next hearing, held on 20 March 2002, B.R. presented a blueprint, approved by the technical services of the municipality, for the division of the house. The court admitted in evidence the expert report on the divisibility of the field, and, on a request by the applicant, ordered an expert report on the current value of the plot in Dolni Pasarel.
A hearing listed for 6 November 2002 was adjourned because the expert reports were not ready. The court asked the expert assessing the value of the plot in Dolni Pasarel to determine the value of the two fields as well.
At a hearing held on 29 May 2003 the court admitted in evidence the additional expert report relating to the house, which concluded that it was divisible, and the expert report concerning the value of the plot in Dolni Pasarel and the two fields. The applicant disputed the conclusions of the former, and requested yet another expert report on the divisibility of the house. The court allowed her request.
At a hearing held on 12 February 2004 counsel for the applicant stated, without further explanation, that she wished to withdraw the request for an expert report on the divisibility of the house.
The last hearing was held on 29 April 2004. The court presented to the parties a draft division proposal. The applicant objected to it, arguing, among other things, that the house was indivisible. She requested a further expert report on that point. The court refused the request, observing that the applicant had earlier been allowed to seek such a report, but had failed to pay the required deposit. Evidentiary requests at such a late stage were possible only if truly indispensable for the proper determination of the case.
In a judgment of 10 May 2004 the Sofia City Court set the lower court's judgment aside. It decided, among other things, to disregard the initial expert reports on the divisibility of the house and to rely on the last one, observing that it was objective and that the three experts who had drawn it up were unanimous. It rejected the applicant's objections against that report, noting, among other things, that she had been allowed to request a further expert report but had failed to pursue that possibility. It found that the house was divisible, because there was a technical possibility to do so and a blueprint approved by the municipal administration. It further found that the division could be effected by drawing lots without great inconvenience. Accordingly, the court allocated the properties in two lots, the first comprising the first storey of the house in Sofia and the plot in Dolni Pasarel, and the second comprising the second storey of the house and the two fields.
On 20 July 2004 the applicant appealed on points of law. On 22 July 2004 the Sofia City Court instructed her to specify her grievances. She did so on 21 September 2004, arguing that the court had erred in finding that the house could be divided. The expert report on which it had relied had not taken into account the applicable construction rules. The court had also erred in refusing the applicant's request for a further expert report; she had failed to pay the required deposit because she had been out of the country at that time.
The Supreme Court of Cassation held a hearing on 21 February 2005, and in a final judgment of 7 April 2005 upheld the lower court's judgment. It noted that counsel for the applicant had withdrawn the request for a further expert report. The applicant could not therefore validly complain that she had been denied the opportunity to adduce evidence concerning the divisibility of the house. Her objections concerning the plan for the division had been discussed and rejected by the lower court. The court went on to observe that the experts and the municipal administration had found that the division could be effected without too much inconvenience and without infringing the applicable construction regulations. Therefore, the lower court's conclusion that the house was divisible was not contrary to the substantive law.
The proceedings then resumed before the Sofia District Court. At a hearing held on 21 June 2005 the applicant and B.R. drew lots to determine which of the divided properties should go to whom. B.R. received the first storey of the house in Sofia and the plot in Dolni Pasarel, and the applicant received the second storey of the house and the two fields. The court confirmed the division, ordered the applicant to pay B.R. a small sum to equalise their respective shares, and terminated the proceedings.
On 29 June 2005 the applicant appealed against the proposed division. On 4 July 2005 the Sofia District Court instructed her to specify her grievances and pay the requisite fee.
The last time any information was received from the applicant (5 December 2005), the proceedings were still pending.
B. Relevant domestic law
1. The Judicial Powers Act of 2007
Section 7(1) of the 2007 Judicial Powers Act provides that “[e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal”.
2. The Code of Civil Procedure of 1952
At the relevant time division‑of‑property proceedings were governed by Articles 278‑93a of the 1952 Code of Civil Procedure. They consisted of two phases.
During the first phase the court had to ascertain the number and the identity of the co‑owners and of the items of common property, as well as the share of each co‑owner (Article 282 § 1).
During the second phase the court carried out the division, which could be done either by specifying which item of property went to which co‑owner (Articles 287 and 289), or by auctioning an undividable item of property and distributing the proceeds among the co‑owners (Article 288 § 1). If one of the divided properties was a flat inhabited by a co‑owner who did not have another dwelling, he or she could request the flat to be allotted exclusively to him or her in return for reimbursing the other co‑owners their shares in it (Article 288 § 3).
In property division proceedings the court could also have cognisance of certain ancillary matters, such as determination of parentage and validity of wills (Article 281 § 1), reimbursement of expenses incurred in relation to the divided property (Article 286 § 1), use of the property during the proceedings and indemnity for such use (Article 282 § 2).
Article 217a of the Code was added in July 1999. It provided as follows:
“1. Each party may file a complaint about delays at every stage of the proceedings, including after oral argument, when the examination of the case, the delivery of judgment or the transmitting of an appeal against judgment is unduly delayed.
2. The complaint about delays shall be filed directly with the higher court. No copies shall be served on the other party, and no State fee shall be due. The filing of a complaint about delays shall not be limited in time.
3. The president of the court with which the complaint has been filed shall request the case file and shall immediately examine the complaint in private. His instructions as to the steps to be carried out by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately, together with the case file, to the court against which the complaint has been filed.
4. In case he determines that there has been [undue delay], the president of the higher court may propose to the disciplinary panel of the Supreme Judicial Council to take disciplinary action.”
3. The Code of Civil Procedure of 2007
The 2007 Code of Civil Procedure entered into force on 1 March 2008, superseding the 1952 Code of Civil Procedure.
Articles 255‑57 of the 2007 Code, which superseded Article 217a of the 1952 Code, were inspired by Austrian law (Иванова, Р., Пунев, Б., Чернев, С., Коментар на новия Граждански процесуален кодекс, София, 2008 г., стр. 375) and provide as follows:
Article 255 – Request for fixing of time‑limit in the event of delay
“1. Where the court does not take a procedural step in due time, a party may, at any stage of the proceedings, make a request for an appropriate time‑limit to be fixed for that procedural step to be taken.
2. The request shall be filed with that court for onward transmission to the higher court. The court examining the case shall immediately forward the request to the higher court together with its opinion.”
Article 256 – Satisfaction of request
“1. If the court immediately takes all steps mentioned in the request, and notifies the party accordingly, the request shall be considered as withdrawn.
2. If within one week of receiving the notification mentioned in the previous subparagraph the party states that it maintains its request, the request shall be forwarded to the higher court for examination.”
Article 257 – Examination and determination of request for fixing of time‑limit
“1. The request for fixing of a time‑limit shall be examined by a judge of the higher court within one week of its receipt.
2. If the court finds that there has been undue delay, it shall fix a time‑limit for the procedural step in question to be taken. Should the court find otherwise, it shall refuse the request. No appeal shall lie against its decision.”
These provisions seem to apply to the administrative courts as well, by virtue of Article 144 of the Code of Administrative Procedure of 2006, which provides that all matters not specifically dealt with are governed by the Code of Civil Procedure. In practice, the Supreme Administrative Court does examine requests for fixing of time‑limits (опр. № 6710 от 22 май 2009 г. по адм. д. № 4561/2009 г., ВАС, петчленен с‑в).
There are no reported examples of how that remedy operates in practice.
4. The State Responsibility for Damage Act of 1988
Section 1 of the 1988 State Responsibility for Damage Caused to Citizens Act (which was renamed “State and Municipalities Responsibility for Damage Act” on 12 July 2006), as in force since July 2006, provides as follows:
“The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.”
5. Legal doctrine
According to some legal commentators, the remedies under Article 217a of the 1952 Code and under Articles 255‑57 of the 2007 Code were/are not available in respect of proceedings before the Supreme Court of Cassation, because there is no “higher court” (Сталев, Ж., Българско гражданско процесуално право, София, 2006 г., стр. 106, Корнезов, Л., Гражданско съдопроизводство, Том първи, София, 2009 г., стр. 682). Others maintain that the remedy under Articles 255‑57 of the 2007 Code, could, in view of its specificities, be applied to cases pending before the Supreme Court of Cassation because its essential purpose is not to apprise the higher court of delays by the lower court but to prompt the latter to expedite the examination of the case (Иванова, Р., Пунев, Б., Чернев, С., Коментар на новия Граждански процесуален кодекс, София, 2008 г., стр. 379).
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that the proceedings were unreasonably long.
2. She further complains, under Article 13 of the Convention, that she did not have effective remedies in that respect.
3. She also complains under Article 6 § 1 of the Convention that the proceedings were unfair in that the Sofia City Court refused her request for an expert report on the divisibility of the house, and that the same court, whose judgment was upheld by the Supreme Court of Cassation, did not properly address her objections to the validity of the expert's conclusion that the house was divisible.
4. The applicant complains under Article 1 of Protocol No. 1 that the excessive length and the unfairness of the proceedings had a negative effect on the peaceful enjoyment and use of her possessions.
5. Lastly, the applicant complains under Article 13 of the Convention that she did not have effective remedies in respect of her complaint under Article 1 of Protocol No. 1.
THE LAW
1. In respect of her complaints about the length of the proceedings, the resultant interference with the peaceful enjoyment of her possessions, and the lack of effective remedies in that respect the applicant relied on Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1, which provide, in so far as relevant:
Article 6 § 1 (right to a fair hearing)
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
Article 13 (right to an effective remedy)
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1 (protection of property)
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.
2. As regards the other complaints raised by the applicant, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning the length of the proceedings, the resultant interference with the peaceful enjoyment of her possessions, and the lack of effective remedies in that respect;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy