Published on 27 March 2023
THIRD SECTION
Application no. 17402/18
Lyubomir Viktorov MARINOV
against Bulgaria
lodged on 31 March 2018
communicated on 10 March 2023
SUBJECT MATTER OF THE CASE
The application concerns the right to access to court in summary civil proceedings (заповедно производство).
Such proceedings, provided for under Articles 410 et seq. of the Code of Civil Procedure, are in principle intended to ensure the quick disposal of cases where the debtor does not contest his or her debt. The creditor can thus apply for a payment order which, once issued, is to be served on the debtor. If the debtor objects to the order, the creditor has to resort to standard adversarial proceedings. If the debtor does not object within the time-limit provided, the court issues a writ of execution which is, in principle, final and binding. The payment order can nevertheless be quashed, in certain situations enumerated in Article 423 § 1 of the Code of Civil Procedure, in particular where it is established that the order has not been duly served on the debtor.
In the case, on 21 February 2017 another person, claiming that the applicant owed her money, obtained a payment order against him for 24,000 Bulgarian levs (BGN), equivalent to about 12,300 euros (EUR), plus interest and costs. The subsequent attempts to serve the order on the applicant failed because he was not found on his registered address. As a matter of fact, he had sold his flat and moved out in April 2016, but only declared to the authorities his new registered address in June 2017. Nevertheless, the payment order was considered to have entered into force, and a writ of execution was issued on 23 August 2017. It was served on the applicant on 13 November 2017 by a bailiff.
The applicant applied for the quashing of the writ, under Article 423 § 1 of the Code of Civil Procedure. In a final decision of 5 February 2018 the Sofia City Court dismissed his application, considering that the attempts to serve the payment order on the applicant’s registered address had sufficed, and that it was “irrelevant” whether at the time he had in fact lived there.
The applicant complains, relying on Article 6 § 1 and Article 13 of the Convention, that he was unfairly denied access to court to contest the payment order and thus oppose the issuance of the writ of execution against him.
QUESTION TO THE PARTIES
Did the applicant have access to a court for the determination of his civil rights and obligations, as required under Article 6 § 1 of the Convention, in particular seeing that he was not notified of the payment order against him and could not participate in the proceedings and oppose the issuance of a writ of execution (see, among others, Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, 4 March 2014, Gyuleva v. Bulgaria, no. 38840/08, 9 June 2016; Schmidt v. Latvia, no. 22493/05, 27 April 2017; Berestov v. Russia, no.17342/13, 18 May 2021)?