AS TO THE ADMISSIBILITY OF
Application No. 29303/95
by Sekul KOVACHEV
against Bulgaria
The European Commission of Human Rights (First Chamber) sitting
in private on 10 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 11 September 1995
by Sekul KOVACHEV against Bulgaria and registered on 17 November 1995
under file No. 29303/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
31 July 1996 and the observations in reply submitted by the
applicant on 15 October 1996;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows.
The applicant is a Bulgarian national born in 1930 and residing
in the village of Svetlia, municipality Kovachevzi, the region of
Sofia. Before the Commission he is represented by Mr. Ionko Grozev,
a lawyer practising in Sofia.
A. Particular circumstances of the case
Since 1989, due to serious health problems, the applicant has
been disabled and in receipt of a social pension as a physically
handicapped person under the Pension Law.
On an unspecified date the applicant submitted to the Kovachevzi
municipal Social Care Centre (Obshtinski tzentar za sotzialni grizhi)
applications for certain additional social payments provided for under
the Social Assistance Regulation ("SAR") (Pravilnik za sotzialno
podpomagane). He claimed that the provisions of the SAR entitled him
to a monthly income allowance and to other social payments, such as,
inter alia, allowances for medicaments, and for travelling to and back
from a rehabilitation centre. On unspecified dates the municipal
Social Care Centre refused the applicant's requests.
The applicant then appealed before the mayor of Kovachevzi. On
1 June 1993 the mayor dismissed his claims. In a letter sent to the
applicant he gave detailed explanations and stated, inter alia, that
the applicant was in receipt of a certain amount in monthly income
allowance under Section 5 of the SAR, and that the Regulation did not
entitle him to any additional sums.
As the applicant was not satisfied, in January 1994 he submitted
to the Radomir District Court (Rayonen sad) a civil action against the
municipal Social Care Centre claiming 58,128 leva in unpaid social
benefits due for a two year period, between 1 January 1992 and
1 January 1994. The applicant claimed that he was entitled to a larger
monthly income allowance under Section 5, a supplementary rent
allowance under Section 8, an allowance for medical expenditures under
Section 10a, and annual allowances for heating and rehabilitation
expenditures under Sections 12 para. 1 and 16 para. 1 of the SAR.
On 8 June 1994 the District Court rejected the action stating
that under Sections 19 - 22 of the SAR the examination of claims for
social benefits was within the competence of the local Social Care
Centre. Its decisions concerning particular one-time benefits could
be challenged before the mayor and, as regards claims for regular
monthly benefits, before the National Social Care Centre (Natzionalen
tzentar za sotzialni grizhi). Therefore the court was not competent
to examine the applicant's claims.
On 7 September 1994, upon the applicant's appeal, this decision
was confirmed on the same grounds by the Pernik Regional Court
(Okrazhen sad). The applicant's ensuing petition for review was
dismissed by the Supreme Court (Varhoven sad) on 20 March 1995.
B. Relevant domestic law (translations and summaries)
1. Section 51 of the Bulgarian Constitution provides, insofar as
relevant:
"Citizens shall have the right to social security and welfare
assistance..."
2. The Social Assistance Regulations.
The applicant's claims for social payments concerned a period of
time during which two different pieces of legislation were in force.
The first was the Social Assistance Regulation adopted in March
1991 ("SAR-1991"), in force until 24 July 1992. Its Section 4(1)
provided for a monthly income allowance payable to those who met the
conditions listed therein. Sections 9, 10 and 11 provided that
handicapped persons under certain conditions "[had] a right" to other
social benefits such as, inter alia, a free pass for the public
transport. Sections 15 - 17 provided that all social benefits were
granted by decision of the district social care centres, which were
subject to appeal to a commission appointed by the mayor.
A new Social Assistance Regulation ("SAR-1992") is in force since
25 July 1992.
Its Section 5 provides that everyone whose income is below a
certain, individually determined, minimum amount "[s]hall have the
right to a monthly welfare pecuniary or in-kind allowance ...". The
provision contains detailed rules for the determination of the minimum
amount, based on age and family situation. The monthly allowance is
the difference between the minimum amount and the income of the family.
Sections 6 and 7 contain other detailed conditions as regards the
assessment of property and income for purposes of determining the
entitlement to the allowance.
Section 8 provides for a "right" to a supplementary rent
allowance and defines the conditions for its payment.
Section 10a stipulates, inter alia, that persons meeting certain
conditions have the "right" to receive medicaments free of charge or
with a price reduction.
Section 12 provides that ad hoc payments "can be made" in cases
of difficulties caused, inter alia, by illness, or the purchase of
expensive medicaments or heating supplies.
Section 16 provides, inter alia, that certain categories of
handicapped persons "shall have the right" to free rehabilitation once
per year.
Section 19 para. 1 provides as follows.
"(1) The local social care organs shall be obliged to ensure,
under the rules of this Regulation, the right of the citizens to
the monthly allowance and shall, in addition, assess the legal
possibility for other types of assistance."
According to Sections 19 and 20 appeals concerning particular ad
hoc benefits are examined by the mayor and appeals as regards monthly
benefits, by the National Social Care Centre.
COMPLAINTS
The applicant complains under Article 6 para. 1 of the Convention
of the refusal of the courts to examine on the merits his claims for
the payment of social benefits. This allegedly amounted to a breach
of the applicant's right to a hearing before an impartial and
independent tribunal in the determination of his civil right to certain
social benefits.
The applicant states that Bulgarian law provides for a right to
certain social welfare payments. This right is enshrined in Section
51 of the Bulgarian Constitution and is elaborated in the Social
Assistance Regulation, whose provisions clearly delimit the circle of
entitled persons and the types and the amounts of the various
allowances. There is no room for discretion left to the local
administrative authority to decide whether or not to grant a particular
allowance.
Furthermore, based on the criteria established in the Court's
case-law (Eur. Court HR, Feldbrugge v. Netherlands judgment of 29 May
1986, Series A no. 99; Deumeland v. Germany judgment of 29 May 1986,
Series A no. 100; and Salesi v. Italy judgment of 26 February 1993,
Series A no. 257-E), this right is of a civil character as it is
personal and economic in its nature.
In the applicant's view the bodies which are competent to
determine the civil right at issue, i.e. the mayor and the National
Social Care Centre, cannot be considered as independent tribunals.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 September 1995 and
registered on 17 November 1995.
On 12 April 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on 22 July
1996, after an extension of the time-limit fixed for that purpose. The
applicant replied on 15 October 1996.
On 10 September 1996 the Commission granted the applicant legal
aid.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention of the refusal of the courts to examine on the merits his
claims for the payment of social benefits. He alleges that as a result
he could not have a hearing before an impartial and independent
tribunal in the determination of his civil right to certain social
benefits.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows.
"1. In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing ... by an independent
and impartial tribunal ..."
2. The Government state that the entitlements under Sections 9, 10
and 11 of the SAR-1991 and those under Sections 5, 8, 10a and 19 of the
SAR-1992 are "rights", as the competent administrative authority has
no discretion whether to grant them or not. As regards the remaining
benefits claimed by the applicant, the Government maintain that they
were discretionary. The Government further admit that the National
Social Care Centre cannot be considered an independent tribunal within
the meaning of Article 6 (Art. 6) of the Convention and that the
applicant could not have a hearing on the merits before a court.
However, the Government also make a detailed analysis of the sums
received by the applicant between 1 January 1992 and 1 January 1994.
On this basis they find that the applicant's lump monthly income
exceeded at all times the minimum amount and conclude that his claim
for additional monthly allowance under Section 5 of the SAR-1992 was
unfounded and was, therefore, rightly dismissed. The Government also
state that the applicant's remaining claims for other social benefits
were unfounded.
Furthermore, his claims before the domestic authorities were
allegedly completely unreasonable as he did not submit any evidence to
support them. Moreover, the applicant attempted to mislead the
Commission as he did not clarify that on 10 January 1992 his handicap
had been assessed of a lower category, and that as a result he was not
entitled to certain social benefits which he claimed. Therefore, the
application is an abuse of the right to petition to the Commission.
The applicant replies inter alia that he genuinely believes that
he is entitled to the sums which he claimed before the national
authorities. Thus, the applicant considers that the monthly income
allowance under Section 4(1) of SAR-1991 and Section 5 of SAR-1992 is
intended to provide a "safety net" for persons whose income is
insufficient to ensure a living. Therefore, the in-kind assistance
received from the local Social Care Centre should not have been taken
into account when determining his monthly income for purposes of the
SAR. This is so because the in-kind assistance is not provided on a
regular basis and is discretionary. Furthermore, 270 leva per month
were withheld from the applicant's pension between September and
December 1993, to cover payments under a judicial decision. His income
was thus brought well bellow the guaranteed minimum. Also, the
applicant was denied some other benefits and sought compensation for
this.
3. The Commission considers that the Government's assertion that
there has been an abuse of the right to petition within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention could only be accepted
if it were clear that the application was based on untrue facts.
However, most of the facts on which the application is based even
appear to be undisputed between the parties (No. 8317/78, Dec. 15.5.80,
D.R. 20, p. 44; No. 21987/93, Dec. 19.10.94, D.R. 79, p. 60).
Having examined the applicant's complaint under Article 6 para. 1
(Art. 6-1) of the Convention, the Commission finds that it raises
serious questions of fact and law which are of such complexity that
their determination should depend on an examination of the merits.
This part of the application cannot, therefore, be regarded as
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention, and no other grounds for declaring it
inadmissible has been established.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy