FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 39855/03
by Galya Ivanova PAVLOVA
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 14 October 2008 as a Chamber composed of:
Rait Maruste, President,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 29 November 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mrs Galya Ivanova Pavlova, is a Bulgarian national who was born in 1963 and lives in Yambol.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Labour proceedings
At the material time the applicant was employed as a human resources specialist at a steel production company.
(a) The proceedings instituted in September 1998
On 16 February 1998 the applicant was given a one‑month notice of termination of employment due to a reduction of the payroll, and was offered a less well paid job with the same company.
On 17 September 1998 she issued proceedings against her employer in the Sofia District Court, complaining about the loss of income resulting from her re‑assignment to a less well paid job.
In a judgment of 29 June 1999 the Sofia District Court, in a single-judge formation consisting of judge R.Y., dismissed the claim. The court found that the applicant had actually not been re‑assigned, but that her previous employment had been terminated and she had been re‑hired, with the result that she could not claim compensation for re‑assignment.
The applicant appealed to the Sofia City Court.
At a hearing held by that court on 23 November 2000 the applicant asked the proceedings to be stayed pending the outcome of the proceedings instituted in May 1999 (see below). On 4 June 2001 the court turned down her request.
The applicant lodged an interlocutory appeal against this ruling. On 22 November 2001 the Supreme Court of Cassation found that it could not examine the appeal as it had no access to the case file of the May 1999 proceedings. It therefore sent the case back to the Sofia City Court, instructing it to enclose this case file and return all the materials to the Supreme Court of Cassation for an examination of the appeal on its merits.
On 6 August 2002 the Supreme Court of Cassation upheld the Sofia City Court's ruling of 4 June 2001, holding that the resolution of the case was not dependent on the outcome of the 1999 proceedings.
The proceedings on the merits then resumed before the Sofia City Court. After holding an unknown number of hearings, in a judgment of 27 October 2004 it upheld the Sofia District Court's judgment. The text of the court's judgment indicated that it was appealable on points of law.
The applicant lodged such an appeal, but in a decision of 14 March 2007 the Supreme Court of Cassation declared it inadmissible, observing that the Sofia City Court's judgment was not subject to appeal on points of law.
(b) The proceedings instituted in May 1999
On 10 February 1999 the applicant was dismissed from her employment on account of alleged unsatisfactory performance of her duties.
On 25 May 1999 she brought an action, seeking a declaration that the dismissal had been unfair, reinstatement and compensation for six months of lost wages. She alleged that her dismissal had been the result of her employer's negative bias.
In a judgment of 17 July 2000 the Sofia District Court dismissed the action, finding, inter alia, that the applicant's allegations of bias were disproved by the facts.
The applicant appealed to the Sofia City Court. The formation examining the appeal comprised judge R.Y., who earlier, as a judge in the Sofia District Court, had examined the applicant's claim against her re‑classification (see above). The applicant requested her to withdraw from the case, but the request was turned down.
During one of the hearings, held on 24 April 2001, the applicant's employer was represented by Mr V., legal counsel.
At a hearing held on 17 May 2003 the Sofia City Court examined the case in a formation comprising judges R.Y. and R.D. and junior judge P.G. The applicant submitted that at the outset of the hearing the formation had comprised Mr V. as a junior judge, but that he had been replaced by Mr P.G. without this fact being noted down in the minutes. There is no indication that the applicant later requested correction of the minutes under Article 126 § 2 of the 1952 Code of Civil Procedure.
After holding an unknown number of hearings, in a judgment of 29 April 2004 the Sofia City Court, sitting in a formation composed of judges R.Y., R.D. and K.D., upheld the lower court's judgment. It found that the applicant's dismissal had been due to her inability to perform her duties satisfactorily.
On 29 November 2004 the applicant appealed on points of law. After holding a hearing on 8 February 2008, in a final judgment of 1 July 2008 the Supreme Court of Cassation upheld the lower court's judgment.
2. Other facts relevant to the applicant's complaints
On 5 December 1997 an accident occurred at the factory where the applicant worked. She was inured and treated in hospital.
Between 1991 and 1998 applicant was involved in proceedings with her employer concerning her company-allotted flat.
In 1998 a disciplinary penalty – a reprimand – was imposed on the applicant. She challenged it before the Sofia District Court. The court dismissed her claim in a judgment of 23 April 1999.
The applicant submitted that she had often expressed her opinion freely at her workplace, but had been warned by her employer that such behaviour was unacceptable and could have negative consequences for her.
The applicant is currently unemployed and her efforts to find a job are apparently unfruitful.
B. Relevant domestic law
Article 217a of the 1952 Code of Civil Procedure, added in July 1999, created a “complaint about delays”. In such a complaint a litigant aggrieved by the slow examination of the case, delivery of judgment or processing of an appeal against a judgment could request the chairperson of the higher court to give mandatory instructions for faster processing of the case. On 1 March 2008 the 1952 Code of Civil Procedure was superseded by the 2007 Code of Civil Procedure. A similar procedure is laid down in Articles 255‑57 of the new Code.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention about the length of the two sets of civil proceedings which started respectively on 17 September 1998 and 25 May 1999.
2. The applicant complained under Article 13 about the lack of effective remedies in respect of allegedly excessive length of the proceedings.
3. The applicant complained under Article 2 that the authorities had failed to conduct an effective investigation into the accident of 5 December 1997, which had allegedly been an attempt on her life.
4. The applicant complained under Article 6 § 1 about the length of the proceedings concerning her company-allotted flat.
5. The applicant complained under Article 14 that the disciplinary penalty to which she had been subjected in 1998 had amounted to discrimination.
6. The applicant complained under Article 3 of the Convention that her dismissal from work had amounted to inhuman treatment.
7. The applicant complained under Article 6 § 1 that judge R.Y., who as a judge in the Sofia District Court had dismissed her complaint against her re‑classification, had later as a judge in the Sofia City Court taken part in the examination of the case concerning the applicant's allegedly unfair dismissal. The applicant also alleged that a counsel for her employer, who had taken part in a hearing held on 24 April 2001, had later been appointed as a judge at the Sofia City Court and had participated in the examination of the case.
8. The applicant complained under Article 10 that she had been often threatened by her employer on account of opinions which she expressed at work.
9. The applicant complained that she had remained unemployed for a long time. She relied on Article 7 of the Convention.
THE LAW
1. In respect of her complaints that the length of the proceedings which she had issued in September 1998 and May 1999 had been excessive (complaint no. 1) and that she had had no effective remedies in this respect (complaint no. 2) the applicant relied on Articles 6 § 1 and 13 of the Convention. These provisions read, in so far as relevant:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13
“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.”
The Court considers that it cannot determine the admissibility of these complaints on the basis of the case file. It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. In respect of her complaints that the same judge had taken part in the decision of both cases brought by the applicant against her employer and that counsel for her employer, who had participated in the proceedings, had allegedly later acted as a judge in the case (complaint no. 7) the applicant relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal...”
As regards the first point, the Court notes that according to its and the former Commission's case‑law, the fact that a judge has been involved in other proceedings concerning the same parties is not in itself reasonably capable of giving rise to legitimate doubts as to his or her impartiality (see Gillow v. the United Kingdom, judgment of 24 November 1986, Series A no. 109, p. 28, § 73; Schmid v. Austria, no. 11831/85, Commission decision of 9 December 1987, Decisions and Reports 54, p. 144; Krone‑Verlag GmbH and Mediaprint Anzeigen GmbH & Co KG v. Austria, no. 28977/95, Commission decision of 21 May 1997, unreported; and Anguelov v. Bulgaria (dec.), no. 45963/99, 14 December 2004).
Concerning the second point, the Court observes that the fact that a judge has acted in another capacity in the same proceedings may compromise the tribunal's impartiality (see Mežnarić v. Croatia, no. 71615/01, §§ 33‑36, 15 July 2005, with further references). However, in the instant case it does not find support for this allegation in the case file. At the hearing before the Sofia City Court on 24 April 2001 the applicant's employer was represented by Mr V., whereas the case was later decided by judges R.Y., R.D. and K.D. The applicant alleged that Mr V. had appeared as a junior judge at the outset of the hearing before the same court on 17 May 2003 and had been replaced by another junior judge. However, this allegation finds no corroboration in the minutes of that hearing. While the applicant submitted that these minutes were incomplete, there is no indication that she requested their correction as she was entitled to.
It follows that these complaints are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. As regards the remainder of the applicant's complaints (nos. 3, 4, 5, 6, 8 and 9), in the light of all the material in its possession, and insofar 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 these complaints must be declared inadmissible as being manifestly ill‑founded, pursuant to 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 instituted in September 1998 and May 1999 (complaint no. 1) and the alleged lack of effective remedies in that respect (complaint no. 2);
Declares the remainder of the application inadmissible.
Claudia WesterdiekRait Maruste
RegistrarPresident
Full & Egal Universal Law Academy