Communicated on 16 March 2015
FOURTH SECTION
Application no. 38840/08
Valentina Atanasova GYULEVA
against Bulgaria
lodged on 6 August 2008
STATEMENT OF FACTS
The applicant, Ms Valentina Atanasova Gyuleva, is a Bulgarian national, who was born in 1947 and lives in the village of Hrabrino. She is represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, 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.
Between 1992 and 2000 the applicant was involved in judicial proceedings at the end of which the courts found that the other party were the owners of the flat the applicant had been living in. Those proceedings have been the subject of the applicant’s first application with the Court, decided with a judgment (see Gyuleva and Others v. Bulgaria, no. 76963/01, 25 June 2009).
On 1 February 2002 the persons recognised as owners of the flat transferred it to Mr and Mrs P. Soon after that Mr and Mrs P. brought against the applicant, who was still living in the property, rei vindicatio proceedings. Their claim was allowed at first instance by the Plovdiv District Court on 24 October 2002. Even though the proceedings after that remained pending, on 10 January 2003 the applicant vacated the property. She moved to a house she owned in the village of Hrabrino, where she registered her address on 4 February 2003.
On 4 May 2005 Mr and Mrs P. brought against the applicant an action for unlawful enrichment, considering that she had lived on no valid legal ground in their flat between 1 February 2002 and 10 January 2003.
On 16 May 2005 the Plovdiv District Court issued a summons for the applicant, notifying her of the action brought against her and the date of the first court hearing. The summons was brought to the village of Hrabrino and served on the mayor who, in a letter to the District Court dated 16 June 2005, stated that “no such person has been registered” to live in the village.
On 8 July 2005, upon a request by Mr and Mrs P., the Plovdiv Regional Directorate of the Interior issued a certificate confirming that the applicant’s last declared address was in the village of Hrabrino.
Without making any further attempt to serve a summons on the applicant, on 26 August 2005 the Plovdiv District Court published a notification concerning the proceedings in the State Gazette. After appointing ex officio a lawyer to represent the applicant, to whom all subsequent papers and notifications were sent, the court proceeded with examining the case. On 6 April 2006 it gave a judgment, allowing the claim against the applicant and ordering her to pay to Mr and Mrs P. 3,573 Bulgarian levs (BGN), plus interest.
Upon an appeal by Mr and Mrs P., in a judgment of 10 July 2006 which was final, the Plovdiv Regional Court ordered the applicant to pay the claimants an additional BGN 1,006.21.
The applicant became aware of the proceedings and the judgments against her on 22 February 2008, when she received an invitation by an enforcement judge to pay the sums due.
At that time the applicant could no longer seek the re-opening of the proceedings, due to the expiry of the relevant time-limits.
According to the calculations of an expert appointed by the enforcement judge, as of September 2008 the total amount due by the applicant, including the sums awarded to Mr and Mrs P., the interest accrued on them, and the relevant fees and expenses, amounted to BGN 8,588.55 (the equivalent to approximately 4,380 euros (EUR)).
B. Relevant domestic law
1. Summons procedure
At the time, summons procedure was regulated by Articles 41 to 52 of the Code of Civil Procedure of 1952, in force at the time. Article 50(1) provided in particular that defendants to civil cases could be summoned through a notification published in the State Gazette in cases where their address was unknown or they had not been found on their declared address for at least a month. If, despite the publication in the State Gazette, the defendant failed to show up, the respective court was to appoint for him or her a legal representative.
2. Re-opening
Article 231(1) of the Code of Civil Procedure provided that parties could seek the setting aside of a final judgment and a re-opening of their case in situations, inter alia, where they had been deprived of the possibility to participate in the proceedings in breach of the respective rules, or where a court-appointed representative had been assigned to represent them even though their address had not been unknown. However, by Article 232(1) of the Code re-opening in such situations could only be sought within a year following the respective judgment’s entry into force.
COMPLAINTS
1. The applicant complains under Article 6 § 1 and Article 13 of the Convention that, in breach of the domestic law, she was not notified of the proceedings against her, and that after learning about them she could not seek their re-opening.
2. She also complains that the ensuing obligation to pay a substantial sum of money amounted to a violation of Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
1. Did the failure to inform the applicant of the civil proceedings against her, resulting in the impossibility for her to participate and present her case, amount to a violation to her right to a fair hearing guaranteed by Article 6 § 1 of the Convention? Should in such a situation the applicant have had the possibility to have the proceedings re-opened, and was the unavailability of such procedure to her justified?
2. Did the circumstances above also entail a violation of Article 1 of Protocol No. 1, seeing that as a result of the proceedings at issue the applicant was ordered to pay in a substantial sum of money?
Full & Egal Universal Law Academy