FOURTH SECTION
DECISION
Application no. 34098/06
Samuil Robertov HADZHOLOV
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 28 January 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 11 August 2006,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Samuil Robertov Hadzholov, is a Bulgarian national, who was born in 1954 and lives in Zlatograd. He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. Until 1987 the applicant worked as a coal miner for Gorubso – Second Mining Department Zlatograd (a State enterprise, transformed into a State-owned company in the early 1990s and later, apparently in 2002, privatised following the opening of winding-up proceedings; currently a joint-stock company Gorubso Zlatograd AD). In 1988 the applicant brought proceedings against the mining company seeking payment of compensation for the occupational disease he had developed as a result of exposure to hazardous conditions in the mine. On 26 November 1988 the Regional Court granted the claim. The company was ordered to pay a sum of 3,566 old Bulgarian levs (BGL) (the equivalent of around USD 1,800) as compensation, as well as monthly payments for a period of 26 years, from October 1988 to March 2014, the amounts varying between BGL 197 and BGL 80, depending on the period.
4. In 1989 the applicant requested that the enforcement judge institute enforcement proceedings against the debtor. It appears that in May 1989 the enforcement judge attached the company’s bank accounts. There is no information in the case file about the development of the enforcement proceedings between May 1989 and February 2003. In particular, there is no evidence about requests made by the applicant for enforcement measures, claims lodged in the winding-up proceedings relating to the mining company’s assets, or information sought by the applicant on the payment of the debt.
5. On 17 February 2003 the enforcement judge discontinued the enforcement proceedings on the basis of Article 330 § 1 (д) of the Code of Civil Procedure 1952, as the applicant had not requested enforcement actions for more than two years.
6. On 19 October 2005 the applicant and his lawyer consulted the file of the enforcement proceedings. The applicant submits that only then did he find out that the proceedings had been discontinued in 2003, and that he was shown a document – the enforcement judge’s register of 1989 for the incoming and outgoing amounts – which indicated that in 1989 the mining company had paid the applicant an amount of BGL 5,234 by means of bank transfer. The applicant sent a letter of 21 October 2005 to the enforcement judge, in which he maintained that he had never received the aforementioned amount and that he was unable to obtain a copy of the payment order as the case file had been destroyed.
7. By a letter of 27 October 2005, the enforcement judge informed the applicant that, as was clear from the information in the file, on 13 April 1989 the applicant had received payment from the mining company in the amount of BGL 5,234 (representing the initial compensation of BGL 3,566 plus several monthly payments). In a letter of 3 November 2005, the bank which had effected the payment on 13 April 1989 informed the applicant that the documents concerning the money transfer had already been destroyed as the ten-year time-limit for keeping them had expired.
8. In November 2005 the applicant submitted a complaint to the prosecution authorities requesting an investigation into the circumstances surrounding the payment of 13 April 1989. In a letter of 11 November 2005, the enforcement judge informed the investigation authorities that, as could be seen from the enforcement judge’s register of 1989, on 13 April 1989 the applicant had received payment from the mining company in the amount of BGL 5,234. As to the payment orders of that date, the enforcement judge noted that they had been destroyed as the ten-year time-limit for keeping payment documents under the Accounting Act had expired.
9. On 24 November 2005 the public prosecutor refused to open criminal proceedings, noting that a long period of time had elapsed since the alleged offence had been committed, and that the time-limits for keeping the relevant documents at the respective institutions had already expired. The applicant appealed against that decision on 2 December 2005. On 7 December 2005 the hierarchically superior prosecutor upheld those conclusions.
10. In December 2006 the applicant requested that the Zlatograd District Court issue a document certifying that the case file of the enforcement proceedings had been destroyed. In a letter of 13 December 2006 the President of the District Court informed him that the file had not been destroyed and that he and his lawyer had consulted it.
11. In the period between 1990 and 1999 inflation in Bulgaria was running high and the national currency was depreciating. As of the entry into force of a law on 5 July 1999, BGL 1,000 became 1 new Bulgarian lev (BGN). The applicant submitted that due to the enforcement judge’s inactivity over the years and the inflation and the devaluation of the national currency, the total amount of monthly payments he was entitled to receive for the period from May 1989 to 5 July 1999 had devalued to BGN 21.71 (approximately 11 euros (EUR)). He claimed that the amount he was entitled to receive from 5 July 1999 to March 2014 had devalued to BGN 18.17 (approximately EUR 9).
B. Relevant domestic law
12. In accordance with Article 400 et seq. of the Code of Civil Procedure 1952 (“the 1952 Code”), in force at the material time, enforcement proceedings against State enterprises were to be directed firstly towards their bank accounts in State banks. When payment upon a writ of execution against the State enterprise could not be received because of lack of such bank accounts or of available funds in them, enforcement was to be carried out by an enforcement judge. Certain articles of property belonging to the State enterprises could not be subject to enforcement, other than in winding-up proceedings. These provisions were repealed in December 1997.
13. Article 323 of the 1952 Code provided that enforcement proceedings against private parties were to be instituted upon the request of the creditor. The creditors were under the obligation to state against which debtor’s possessions (bank accounts, immovable property, and so forth) they would like the enforcement to be directed (Article 323 § 3). Throughout the proceedings the creditors could request the enforcement actions to be directed against different possessions of the debtor. If the creditors did not request enforcement actions to be undertaken for a period of two years, the enforcement proceedings had to be terminated (Article 330 § 1 (д)). The new Code of Civil Procedure 2007 (“the 2007 Code”), which came into force on 1 March 2008, contained similar provisions.
14. Section 45 of the Accounting Act 1991 stipulated that the accounting registers and reports were to be kept for ten years. This provision was superseded in January 2002 by section 42 of the Accounting Act 2002.
15. By virtue of Section 91 of the Organisation of the Judiciary Act 1976, the enforcement judges were part of the district courts system. Under the Regulations on the Organisation and Work of the District, Regional and Military Courts 1977, the general statutory time-limit for keeping the case files of archived cases in the district courts was five years. The Judiciary Act 1994, which superseded the Organisation of the Judiciary Act 1976 and which was in force until August 2007, as well as the regulations adopted on its implementation contained similar provisions.
COMPLAINTS
16. The applicant complained under Article 1 of Protocol No. 1 that he had been deprived of his possessions because he could not obtain enforcement of the judgment of 26 November 1988, allegedly on account of the enforcement judge’s inactivity over the years and the partial destruction of the case file of the enforcement proceedings by the authorities. In particular, he complained that he was unable to establish that he had not received payment of BGL 5,234 (representing the initial compensation and several monthly payments from October 1988 to April 1989), as the authorities had destroyed the payment orders in the case file. He further complained that, owing to the inflation and the devaluation of the national currency, the monthly payments he was entitled to had devalued to an amount which was less than the statutory monthly minimum wage in the country, as there was no possibility under Bulgarian law to compensate for the effects of inflation and devaluation. Lastly, the applicant complained under Article 13 in conjunction with Article 1 of Protocol No. 1 of the lack of effective remedies to obtain a recalculation of the compensation awarded.
THE LAW
17. The applicant complained under Article 1 of Protocol No. 1 and Article 13 that he was unable to receive payment in relation to the judgment of 26 November 1988 because the enforcement had been unduly prolonged by the enforcement judge and the authorities had destroyed the payment orders in the case file. He also complained that he could not obtain compensation for the inflation and devaluation of the national currency or a recalculation of the compensation awarded. The Court considers that these complaints fall to be examined solely under Article 1 of Protocol No. 1, which, in its relevant parts, reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.”
18. The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable. The non-execution of a final court decision providing the applicant with an enforceable claim constitutes an interference with the right to peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III).
19. A successful litigant may however be required to undertake certain procedural steps and to act with diligence in order to recover a judgment debt (see Burdov v. Russia (no. 2), no. 33509/04, § 69, ECHR 2009).
20. The Court will first examine the applicant’s complaint concerning the impossibility to receive payment due to the enforcement judge’s alleged inactivity and destruction of payment orders from the case file of the enforcement proceedings. The Court notes that the enforcement judge discontinued the enforcement proceedings on 17 February 2003, and on 19 October 2005, at the latest (see paragraph 6 above), the applicant found out about this, and about the destruction of payment orders, from the case file. Therefore, the events complained of ended more than six months before the introduction of the present application.
21. Even assuming compliance with the six-month time-limit, the Court has not been presented with sufficient evidence that could establish that the events complained of are imputable to the authorities. It observes, in this respect, that there is no information in the case file on the manner in which the enforcement proceedings had progressed for about 14 years, until 17 February 2003, when the enforcement judge discontinued them (see paragraph 5 above). Neither is there information showing that the applicant had demonstrated any interest in relation to the collection of the debt for about 16 years, until 19 October 2005 when he consulted the case file on the enforcement (see paragraph 6 above). In particular, he did not clarify whether, after the initiation of the enforcement proceedings in 1989, he had approached the enforcement judge and had requested any further enforcement measures, as he could have done under the law. Equally, he does not specify whether he had been able to lodge his claims in the winding-up proceedings relating to the mining company’s assets, whether he had sought any information on the payment of the debt, or whether, and how, the State authorities had contributed to, or had been responsible for, the delay. Therefore, the applicant’s allegations about the enforcement judge’s inactivity remain unsubstantiated by any relevant documents or information. In this connection, the Court also notes that the mere fact that the payment orders for BGL 5,234 were destroyed after the expiry of the statutory time-limit for keeping accounting documents cannot be regarded as convincing in order to engage the State’s responsibility. The Court cannot overlook, in this respect, the existence of a document in the case file indicating that the amount at issue had, in fact, been paid to the applicant on 13 April 1989 (see paragraph 7 above). It follows that this complaint is in any event manifestly ill‑founded within the meaning of Article 35 § 3 (a) and must be rejected under Article 35 § 4 of the Convention.
22. As to the applicant’s complaint about his inability to obtain a revalued amount after 1 July 1999, the Court observes that in the 1990s the monthly payments to which the applicant was entitled lost their value, owing to inflation and the depreciation of the Bulgarian currency. The depreciation was reflected in a law in force as of 5 July 1999, under which BGL 1,000 became BGN 1. The Court has, however, already held that Article 1 of Protocol No. 1 cannot be interpreted as conferring upon States a positive obligation to maintain the value of claims or any other assets in the face of inflation (see Todorov v. Bulgaria (dec.), no. 65850/01, 13 May 2008; Maslenkovi v. Bulgaria, no. 50954/99, § 37, 8 November 2007; and O.N. v. Bulgaria (dec.), no. 35221/97, 6 April 2000). The Convention cannot be seen as imposing on the State obligations concerning their economic policy in dealing with the effects of inflation and other economic phenomena, or requiring them to remedy such situations through legislation or judicial decision (see O.N. v. Bulgaria, cited above). Moreover, as noted above, the Court does not find any indication that the authorities contributed to the loss of value of the applicant’s claim. Therefore, it does not consider that the applicant’s right to peaceful enjoyment of possessions was affected. It follows that this part of the complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy