FOURTH SECTION
DECISION
Applications nos. 47450/11, 26659/12 and 53966/12
Atanas Vasilev VALCHEV against Bulgaria,
Iva Savova DZHANFEZOVA, Sava Ivanov DZHANFEZOV and Tsaneta Ivanova DZHANFEZOVA against Bulgaria,
and Tihomir Borisov TODOROV against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 21 January 2014 as a Chamber composed of:
Ineta Ziemele, President,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney,
Robert Spano, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above applications lodged on 21 July 2011, 24 April 2012 and 14 August 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
A. The circumstances of the case
1. The case of Mr Valchev
1. On 29 November 2005 the applicant in application no. 47450/11, Mr Valchev, bought a flat that had been put up for public sale in the framework of enforcement proceedings against Mr S. However, before Mr Valchev could take possession of the flat, on 23 January 2006 another person, Mr P., brought a claim against him, seeking a judicial declaration that he was the true owner of the flat because he had bought it from Mr S. in September 2005, and that the public sale had been invalid because by time when the sale had been carried out Mr S. had already paid off the sums in relation to which the enforcement proceedings had been brought.
2. On 2 June 2007 Mr P.’s claim was dismissed by the Plovdiv District Court. Mr P. appealed, and on 24 October 2007 the Plovdiv Regional Court upheld the lower court’s judgment. Mr P. appealed on points of law, and in a judgment of 22 June 2009 (реш. № 578 от 22 юни 2009 г. по гр. д. № 504/2008 г., ВКС, І г. о.) the Supreme Court of Cassation quashed the Plovdiv Regional Court’s judgment and remitted the case.
3. Following a fresh examination, on 6 January 2010 the Plovdiv Regional Court allowed Mr P.’s claim, finding that at the time when Mr Valchev had bought the flat it had in fact been property of Mr P., not Mr S. This was so because by that time Mr S. had already paid off the sums in relation to which the enforcement proceedings had been brought, which meant that those proceedings had had to be discontinued and that there had been no grounds to carry out the public sale.
4. On 11 February 2010 Mr Valchev appealed on points of law. The Plovdiv Regional Court instructed him to enclose with the appeal a brief explaining why the appeal should be admitted for examination by reference to the criteria set out in Article 280 § 1 of the Code of Civil Procedure 2007 (see paragraphs 27 and 34-36 below). Counsel for Mr Valchev filed such a brief on 4 March 2010, arguing that the appeal should be admitted for examination under Article 280 § 1 (3), because there did not exist any case‑law on the point raised by the case, which meant that a ruling by the Supreme Court of Cassation would be of importance for the correct application and development of the law.
5. On 23 April 2010 counsel for Mr P. filed written submissions in reply. She argued that the appeal should not be admitted for examination because, contrary to what counsel for Mr Valchev was asserting, there existed well‑established case-law on the point raised by the case. The Plovdiv Regional Court had relied on that case-law in its judgment. Moreover, Mr Valchev’s brief mixed the pre-selection criteria set out in Article 280 § 1 of the Code with the grounds of appeal, and in effect contained mostly arguments relating to the merits of the appeal. She then went on to discuss the merits of the appeal.
6. Those submissions were not sent to Mr Valchev or his counsel.
7. Having considered the case on the papers, in a final decision of 21 January 2011 (опр. № 46 от 21 януари 2011 г. по гр. д. № 667/2010 г., ВКС, І г. о.) the Supreme Court of Cassation refused to admit Mr Valchev’s appeal for examination. It held that Mr Valchev had failed to formulate the concrete question of law determined by the Plovdiv Regional Court, and had instead put forward arguments concerning the establishment of the facts. Moreover, there existed case-law, including a binding interpretative decision of the former Supreme Court, on the point raised by the case. There was no reason to regard that case-law as obsolete and in need of updating.
8. On an unspecified late date Mr Valchev sought re-opening of the case. Having heard his request at a public hearing held on 5 December 2012, in a decision of 12 September 2009 (реш. № 494 от 12 септември 2012 г. по гр. д. № 992/2011 г., ВКС, І г. о.) a three-member panel of the Supreme Court of Cassation turned it down.
2. The case of the Dzhanfezovi family
9. On 13 May 2010 the applicants in application no. 26659/12, Ms Iva Dzhanfezova, Mr Sava Dzhanfezov and Ms Tsaneta Dzhanfezova (“the Dzhanfezovi family”), brought an actio negatoria against their neighbours, the S. family, with whom they co-owned a plot of land. The Dzhanfezovi family claimed that the S. family, who had built a house on the plot, were trespassing on their property, because the house was bigger than the size to which the Dzhanfezovi family had consented and which had been set out in the building permit.
10. On 8 November 2010 the Gabrovo District Court allowed the claim, ordering the S. family to cease the trespass. The S. family appealed, and on 3 May 2011 the Gabrovo Regional Court reversed the lower court’s judgment and dismissed the claim. It found, in particular, that even though the house was indeed slightly bigger than permitted, the Dzhanfezovi family had not established that that prevented them from effectively exercising their property rights. At the same time, the court dismissed an additional claim by the Dzhanfezovi family to invalidate a document in which the municipality certified that the S. family’s house conformed to the legal requirements and noted, inter alia, that any deviations from the building permit could be regarded as minor.
11. On 1 June 2011 the Dzhanfezovi family appealed on points of law. Their counsel enclosed with the appeal a four-page brief in which he argued that the appeal should be admitted for examination by reference to Article 280 § 1 (1), (2) and (3) of the Code of Civil Procedure 2007 (see paragraphs 27 and 34-36 below). He argued, in relation to the first and second ground, that the Gabrovo Regional Court had determined several points in a way which was inconsistent with decisions of the Supreme Court of Cassation and the former Supreme Court. In relation to the third ground, the counsel formulated five questions of law which in his view needed to be answered by the Supreme Court of Cassation.
12. On 6 July 2011 the S. family made written submissions in reply. In those submissions they made a number of points relating to the merits of the appeal. On an unspecified late date one of the members of the S. family made additional submissions in reply, in which he likewise made a number of points relating to the merits of the appeal.
13. Those submissions were not sent to the Dzhanfezovi family or their counsel.
14. Having considered the case on the papers, in a final decision of 24 October 2011 (опр. № 939 от 24 октомври 2011 г. по гр. д. № 751/2011 г., ВКС, ІІ г. о.) the Supreme Court of Cassation refused to admit the Dzhanfezovi family’s appeal for examination. It examined in detail the case-law presented by their counsel in support of his contention that the appeal should be admitted for examination under Article 280 § 1 (1) of the Code, and found that it was inapposite. It went on to consider whether the appeal should be admitted for examination under Article 280 § 1 (2) of the Code, and found that the judgments relied on by counsel for the Dzhanfezovi family were in effect not conflicting, and that the Gabrovo Regional Court’s judgment was not inconsistent with them. Lastly, the court found that the questions of law formulated by counsel for the Dzhanfezovi family in relation to Article 280 § 1 (3) of the Code had not been properly framed, and that most of them had not been decisive for the disposition of the case by the Gabrovo Regional Court.
3. The case of Mr Todorov
15. In 2000 and 2002 the applicant in application no. 53966/12, Mr Todorov, took loans from the credit cooperative V. that he secured with a mortgage on his flat. However, he failed fully to repay the loans within the stipulated time. On 2 August 2006 he agreed, as an additional guarantee, to sign a promissory note in favour of V., promising to pay it 19,354 Bulgarian levs (BGN), which was said by V. to correspond to the then outstanding part of the loan plus the accrued interest.
16. In 2007 V. brought two separate enforcement proceedings against Mr Todorov, seeking (a) the outstanding part of the loan, plus the accrued interest, and (b) the sum due under the promissory note.
17. On 11 January 2008 Mr Todorov brought a claim against V., seeking a judicial declaration that he did not owe the sum due under the promissory note. In the course of the proceedings V. conceded that the promissory note had been drawn up as a guarantee for the loan, and not with any intention on the part of Mr Todorov to assume additional liability.
18. On 15 January 2010 the Plovdiv Regional Court partly allowed Mr Todorov’s claim. It held that the promissory note, although in principle an instrument whose validity did not require an underlying transaction, could not in the case at hand be divorced from the loan that it had been intended to secure. The court went on to discuss the interplay between the loan and the promissory note, and examined Mr Todorov’s objection that part of the sums were not due because of the expiry of the applicable limitation period. The court concluded that Mr Todorov did not owe the full BGN 19,354 featuring in the promissory note, but still owed BGN 3,430.57, plus interest, that V. could claim on the basis of that note.
19. Mr Todorov and V. both appealed to the Plovdiv Court of Appeal. Having heard the appeals on 4 October 2010, on 26 January 2011 the Plovdiv Court of Appeal upheld the lower court’s judgment.
20. On 2 March 2011 Mr Todorov appealed on points of law. On 10 March 2011 the Plovdiv Court of Appeal instructed him to, inter alia, enclose with the appeal a brief explaining why the appeal should be admitted for examination by reference to the criteria set out in Article 280 § 1 of the Code of Civil Procedure 2007 (see paragraphs 27 and 34-36 below). On 25 March 2011 Mr Todorov filed such a brief, in which he argued that his appeal should be admitted for examination because a ruling by the Supreme Court of Cassation on the points raised by the case would be important for the correct application of the law.
21. On 14 April 2011 V. made written submissions in reply. In those submissions it argued, inter alia, that in his brief Mr Todorov had failed to formulate a concrete question of law, as required under Article 280 § 1 of the Code, and that the brief in effect contained arguments relating to the merits of the appeal and failed to explain properly why the appeal should be admitted for examination under points 1, 2 or 3 of Article 280 § 1.
22. Those submissions were not sent to Mr Todorov or his counsel.
23. Having considered the case on the papers, in a final decision of 14 February 2012 (опр. № 83 от 14 февруари 2012 г. по т. д. № 391/2012 г., ВКС, ІІ т. о.) the Supreme Court of Cassation refused to admit Mr Todorov’s appeal for examination. It held that Mr Todorov had failed to formulate clearly the question of law determined by the Plovdiv Court of Appeal, and had mixed up the grounds for admitting the appeal under Article 280 § 1 of the Code with the grounds of appeal. Moreover, he had not specified under which of the three points of Article 280 § 1 his appeal should be admitted. Even if he was to be taken to argue that the appeal should be admitted under Article 280 § 1 (3), his case did not meet the requirements of that provision.
B. Relevant domestic law
24. Under Article 124 of the Constitution of 1991, the task of the Supreme Court of Cassation is to ensure the accurate and uniform application of the law by all courts.
25. On 6 July 2007 Parliament enacted a new Code of Civil Procedure. It came into force on 1 March 2008, replacing the Code of Civil Procedure 1952.
1. Grounds for admitting appeals on points of law to the Supreme Court of Cassation under the 2007 Code
26. Among many other changes to the rules of civil procedure, the 2007 Code brought about a serious modification of the role of the Supreme Court of Cassation. Under the 2007 Code, the main task of that court is to unify the application of the law (see тълк. реш. № 1 от 19 февруари 2010 г. по т. д. № 1 от 2009 г., ВКС, ОСГТК). For that reason, that court does not merely decide the individual cases that come before it. When one of its panels dealing with an individual case finds that there exists conflicting case-law in relation to a point of law or procedure raised by the case, it must explain which of the rulings it considers to be the correct one; if none of those rulings is correct, the panel must point that out and give an authoritative ruling itself (Article 291 §§ 1 and 2 of the 2007 Code). If the panel finds that other panels of the Supreme Court of Cassation have, in proceedings under the 2007 Code, determined a point of law or procedure raised by the case in a conflicting manner, it must stay the proceedings and propose to the plenary of the respective section to resolve the point by giving a binding interpretative decision (Article 292 of the 2007 Code, as well as тълк. реш. № 2 от 28 септември 2011 г. по т. д. № 2/2010 г., ВКС, ОСГК и ОСТК). As a corollary of that new role of the Supreme Court of Cassation in civil cases, under the 2007 Code appeals on points of law to that court do not lie as of right, as used to be the case under the 1952 Code, but are subject to a pre-selection, based on criteria set out in Article 280 § 1 of the Code.
27. Article 280 § 1, as originally enacted, provided:
“Appellate judgments are subject to appeal before the Supreme Court of Cassation if the appellate court has determined an important question of substantive or procedural law which:
1. has been decided in a way that conflicts with the case-law of the Supreme Court of Cassation;
2. has been subject to conflicting rulings by the courts;
3. is of importance for the correct application of the law, as well as for the development of the law.”
28. Following a constitutional challenge by the Ombudsman of the Republic, in a judgment of 16 June 2009 (реш. № 4 от 16 юни 2009 г. по к. д. № 4 от 2009 г., обн., ДВ, бр. 47 от 23 юни 2009 г.) the Constitutional Court held that, although somewhat vague, Article 280 § 1 was as a whole not unconstitutional, and that the manner of its application would be a question of case-law and judicial practice. However, the court went on to say that the word “important” in the text of the Article was capable of unduly restricting access to the Supreme Court of Cassation because it implied that only questions of law that had a wider bearing – as opposed to questions of law that could be relevant only for the particular case or for a very limited category of cases – amounted to grounds to admit an appeal on points of law for examination. The court accordingly decided that that word was unconstitutional. As a result, the text of Article 280 § 1 is now read without it.
29. On 19 February 2010 the Plenary of the Civil and the Commercial Sections of the Supreme Court of Cassation issued a binding interpretative decision (тълк. реш. № 1 от 19 февруари 2010 г. по т. д. № 1 от 2009 г., ВКС, ОСГТК) that set out in detail the manner in which the panels of the court should apply Article 280 § 1, as modified by the Constitutional Court’s decision. In particular, the court held that: (a) the phrase “question of law”, as used in the first sentence of that Article, means a question which has been determined by the appellate court’s judgment in the particular case, and that it is incumbent on the appellant to formulate it clearly and concisely; (b) the ground under point 1 of Article 280 § 1 concerns an arguable inconsistency of the appellate court’s judgment with binding interpretative decisions of the Supreme Court of Cassation or the former Supreme Court, or with judgments of the Supreme Court of Cassation given under the 2007 Code; (c) the ground under point 2 of Article 280 § 1 concerns an arguable inconsistency of the appellate court’s judgment with a final judgment given by a first- or second-instance civil court (but not an administrative court or an arbitral tribunal), or a judgment given by the Supreme Court of Cassation under the 1952 Code; (d) the ground under point 3 of Article 280 § 1 concerns questions decided by the appellate court on the basis of wrong or outdated case-law or an unclear point of law.
30. In its annual report for 2010, the Civil Section of the Supreme Court of Cassation said that it had admitted for examination 1,233 appeals on points of law and refused to admit 3,822 such appeals. The court’s Commercial Section said that it had admitted for examination 334 appeals and refused to admit 1,369 appeals.
31. The figures for 2011 were 1,338 appeals admitted for examination and 4,128 appeals not admitted by the Civil Section, and 316 appeals admitted for examination and 1,360 appeals not admitted by the Commercial Section.
32. The figures for 2012 were 1,042 appeals admitted for examination and 3,402 appeals not admitted by the Civil Section, and 333 appeals admitted for examination and 1,495 appeals not admitted by the Commercial Section.
2. Admissibility proceedings before the Supreme Court of Cassation
33. Proceedings pursuant to appeals on points of law to the Supreme Court of Cassation unfold in two stages. In the first, the court determines whether the appeal meets the requirements of Article 280 §§ 1 and 2 (see paragraph 27 above). If the court decides that the appeal does not meet those criteria, it refuses to admit it for examination by means of a reasoned decision which is not subject to appeal. If, conversely, the court decides that the appeal meets those criteria, it issues a decision admitting it for examination, and goes on to examine its merits at a public hearing and to rule on it by means of a judgment (Articles 283-93 of the 2007 Code).
34. Appeals on points of law have to be filed with the appellate court against whose judgment they are directed (Article 283). That court checks whether the appeal is timely, whether it meets the requirements of Article 280 § 2 (which provides for financial thresholds for appeals on points of law to the Supreme Court of Cassation in civil and commercial cases), and whether it has been properly drafted and is accompanied by all required enclosures (Articles 285 § 1 and 286 § 1).
35. One of those enclosures is a brief explaining why the appellant considers that the appeal meets the admissibility requirements of Article 280 § 1 (Article 284 § 3 (1)). Failure to enclose such a brief amounts to grounds for the appellate court to refuse to accept the appeal (see, for instance, опр. № 808 от 27 ноември 2012 г. по ч. гр. д. № 667/2012 г., ВКС, IV г. о.), or grounds for the Supreme Court of Cassation to discontinue the proceedings and refer the case back to the appellate court with instructions to request the appellant to enclose such a brief (see, for instance, опр. № 49 от 8 февруари 2011 г. по ч. гр. д. № 27/2011 г., ВКС, І г. о., and опр. № 389 от 4 декември 2012 г. по гр. д. № 875/2012 г., ВКС, I г. о.). The brief may, however, be incorporated in the appeal itself (see, for instance, опр. № 246 от 14 февруари 2011 г. по гр. д. № 1276/2010 г., ВКС, ІV г. о.). In that brief, the appellant must explain in some detail why he or she considers that the case falls within one of the three situations set out in Article 280 § 1 (see, for instance, опр. 598 от 10 юни 2010 г. по гр. д. 444/2010 г., ВКС, ІІІ г. о.; опр. № 662 от 25 октомври 2010 г. по т. д. № 252/2010 г., ВКС, ІІ т. о.; and опр. № 96 от 4 февруари 2011 г. по ч. т. д. № 71/2011 г., ВКС, І т. о.). The brief should not mix up the grounds for admitting an appeal under Article 280 § 1 with the grounds of appeal (see, for instance, опр. № 772 от 23 ноември 2012 г. по т. д. № 266/2012 г., ВКС, І т. о., and опр. № 894 от 28 ноември 2012 г. по т. д. № 187/2012 г., ВКС, II т. о.). It is not the appellate court but the Supreme Court of Cassation that checks whether the brief complies with those requirements (see опр. № 52 от 1 февруари 2011 г. по гр. д. № 33/2011 г., ВКС, ІІІ г. о.).
36. It the appellate court finds that the appeal is not formally valid or that some of the enclosures are missing, it must specifically indicate those defects to the appellant and give him or her one week to rectify them (Article 285 § 1; see also, for instance, опр. № 294 от 17 май 2011 г. по ч. гр. д. № 272/2011 г., ВКС, IV г. о.).
37. After it accepts the appeal, the appellate court sends a copy of it to the respondent, who may, within one month, make submissions in reply (Article 287 § 1). A failure on the part of the appellate court to send the appeal to the respondent amounts to grounds for the Supreme Court of Cassation to refer the case back to the appellate court with instructions to do so (see, for instance, опр. № 56 от 21 март 2011 г. по гр. д. № 49/2011 г., ВКС, ІІ г. о.).
38. The Code makes no provision for the respondent’s submissions to be in turn sent to the appellant and does not say whether the appellant may or may not reply to them.
39. The leading treatise on Bulgarian civil procedure (Живко Сталев, Българско гражданско процесуално право, девето издание, София, 2012 г.) says, on p. 593, that in their submissions respondents should lay special emphasis on the question whether or not the appeal meets the requirements of Article 280 § 1. Another treatise (Любен Корнезов, Гражданско съдопроизводство, Том първи – Исков процес, София, 2009 г.) says, on pp. 847-48, that in their submissions respondents should express their position on the admissibility and well-foundedness of the appeal. A Practical Commentary of the 2007 Code, published in 2012 (Граждански процесуален кодекс, Приложен коментар, София, 2012 г.) says, on p. 648, that the practice showed that in their submissions respondents often challenged the admissibility of appeals on points of law, raising arguments relating to both their formal validity – whether they had been lodged in good time, in due form, etc. – and the existence or lack of grounds under Article 280 § 1 to admit them for examination.
40. After that the appellate court forwards the appeal, its enclosures, the respondent’s submissions, and the entire case file of the earlier proceedings to the Supreme Court of Cassation (Article 285 § 2).
41. Article 288 provides that the Supreme Court of Cassation, sitting in a panel of three judges, rules on the admissibility of the appeal on the papers, by means of a decision. Decisions which refuse to admit the appeal for examination are invariably fully reasoned. If the court refuses to admit the appeal because it considers that it does not meet the pre-selection criteria set out in Article 280 § 1, its decision is not subject to appeal (see опр. № 304 от 7 юли 2010 г. по ч. гр. д. № 220/2010 г., ВКС, II г. о.; опр. № 55 от 8 март 2011 г. по гр. д. № 1058/2010 г., ВКС, IV г. о.; опр. № 174 от 29 април 2011 г. по ч. гр. д. № 143/2011 г., ВКС, I г. о.; опр. № 144 от 22 февруари 2012 г. по ч. гр. д. № 49/2012 г., ВКС, IV г. о.; опр. № 229 от 2 май 2012 г. по ч. гр. д. № 203/2012 г., ВКС, I г. о.; and опр. № 784 от 16 ноември 2012 г. по ч. гр. д. № 669/2012 г., ВКС, IV г. о.). If the court declares the appeal inadmissible on other grounds – for instance because it falls below the financial thresholds set out in Article 280 § 2 (see paragraph 34 above), is out of time, or is not formally valid – its decision is subject to appeal before another three-member panel of the Supreme Court of Cassation (see опр. № 661 от 1 декември 2009 г. по ч. гр. д. № 674/2009 г., ВКС, III г. о.; опр. № 120 от 9 март 2011 г. по ч. гр. д. № 115/2011 г., ВКС, III г. о.; опр. № 441 от 7 юни 2011 г. по ч. т. д. № 329/2011 г., ВКС, I т. о.; опр. № 336 от 20 юли 2012 г. по ч. гр. д. № 322/2012 г., ВКС, II г. о.; and опр. № 176 от 18 март 2013 г. по ч. гр. д. № 1315/2013 г., ВКС, IV г. о.).
42. In his above-mentioned constitutional challenge (see paragraph 28 in limine above), the Ombudsman of the Republic took issue with Article 288 as well. The Constitutional Court found that that Article did not run counter to any constitutional provision.
43. However, several constitutional judges dissented on that point. One of them was of the view that Article 288 was unconstitutional, because in the absence of an oral hearing at a key stage of the proceedings the parties did not have an opportunity to put before the cassation court their arguments and reply to those of the opposing party. That was especially important in relation to Article 280 § 1 (3) (see paragraph 27 above), whose application could give rise to vexed theoretical questions. Four other dissenting judges were likewise of the view that the lack of an oral hearing mandated by Article 288 was unconstitutional, because purely written proceedings that entailed the examination of questions concerning the correct application of the law and its development and that could lead to a final decision barring access to cassation review did not provide enough by way of safeguards. The holding of an oral hearing in such proceedings would help overcome the perception that admissibility proceedings before the Supreme Court of Cassation were intended solely as an instrument ensuring the smooth functioning of the judicial system as a whole rather than protecting the interests of the individual litigant.
COMPLAINTS
44. All applicants complained under Article 6 § 1 of the Convention that the failure of the national courts to send them the respondents’ submissions in reply to their appeals on points of law and give them an opportunity to reply to those submissions in writing or orally before the Supreme Court of Cassation determined whether or not to admit the appeals for examination had put them at a net disadvantage vis-à-vis their opponents, in breach of the principles of adversarial proceedings and equality of arms. The applicant in application no. 47450/11, Mr Valchev, in addition complained that the appeal on points of law lodged by his opponent earlier, before the entry into force of the Code of Civil Procedure 2007, had, unlike his appeal, been examined at a public hearing at which his opponent had been able to put forward all his arguments.
45. All applicants further complained under Article 6 § 1 of the Convention that they had unjustifiably been denied access to the Supreme Court of Cassation because that court had refused to accept their appeals on points of law for examination. In their view, the law governing the admissibility of those appeals was too vague: the wording of Article 280 § 1 of the Code of Civil Procedure 2007 in effect gave the Supreme Court of Cassation unfettered discretion whether or not to admit an appeal on points of law for examination. The applicant in application no. 47450/11, Mr Valchev, in addition complained that the appeal on points of law lodged by his opponent earlier, before the entry into force of the Code of Civil Procedure 2007, had, unlike his appeal, been as of right and therefore not subjected to a pre-selection.
46. The applicant in application no. 47450/11, Mr Valchev, further complained under Article 6 § 1 of the Convention that he had not received a fair trial because the substantive law on the basis of which the national courts had decided his case had been too vague. Alternatively, he submitted that the courts’ decisions in his case had been arbitrary. The applicants in application no. 26659/12, the Dzhanfezovi family, complained, for their part, that the second-instance court had failed to give proper reasons for its decision, had refused to apply properly the clear substantive law applicable to their case, and had refused to scrutinise the document issued by the municipality. The applicant in application no. 53966/12, Mr Todorov, complained that the national courts had refused to verify whether the promissory note that he had signed had really been justified by the underlying transaction.
47. The applicant in application no. 47450/11, Mr Valchev, also complained under Article 6 § 1 of the Convention that the length of the proceedings in his case had been unreasonable.
48. All applicants complained under Article 1 of Protocol No. 1 that the adverse decisions of the national courts in their cases had in effect amounted to an unjustified deprivation of property.
49. Lastly, all applicants complained under Article 13 of the Convention that they had not had an effective domestic remedy in respect of the alleged breaches of the Convention in their cases.
THE LAW
A. Preliminary point
50. In view of the similarity of some of the issues raised by the three applications, the Court considers it appropriate to join them under Rule 42 § 1 of its Rules.
B. The Government’s preliminary objections
1. In relation to the six-month time-limit
51. The Government submitted that none of the three applications had been lodged within the six-month time-limit under Article 35 § 1 of the Convention. They pointed out that, as evident from the date-stamps affixed by the Court’s Registry, the applications had been received at the Court on 27 July 2011, 3 May 2012 and 21 August 2012 respectively, whereas the final domestic decisions in the applicants’ cases had been given more than six months before that, on 21 January 2011, 24 October 2011 and 14 February 2012 respectively.
52. The applicants replied that the application of Mr Valchev had been dispatched by fax and registered post on 21 July 2011, the application of the Dzhanfezovi family had been dispatched by fax and registered post on 24 April 2012, and the application of Mr Todorov had been dispatched by fax and registered post on 14 August 2012, within six months of the final domestic decisions in each of their respective cases.
53. Article 35 § 1 of the Convention, in so far as relevant, reads:
“The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”
54. Under Rule 47 § 5 of the Rules of Court, as worded at the material time and until 31 December 2013, the date of introduction of the application for the purposes of Article 35 § 1 of the Convention was as a rule the date of the first communication from the applicant setting out, even summarily, the subject matter of the application – provided that a duly completed application form had then been submitted within the time-limit laid down by the Court –, but the Court could for good cause decide that a different date was to be considered to be the date of introduction.
55. According to the Court’s well-established case-law under that provision in relation to first communications dispatched by post, as a rule the date of introduction was the date on which the first communication from the applicant had been posted, not the date on which it had been received at the Court (see Korkmaz v. Turkey (dec.), no. 42589/98, 5 September 2002; Kipritçi v. Turkey, no. 14294/04, § 18, 3 June 2008; Peruško v. Croatia, no. 36998/09, § 35, 15 January 2013; and Brežec v. Croatia, no. 7177/10, § 29, 18 July 2013). Only special circumstances – such as an impossibility to establish when the communication has been posted – could justify a different approach (see Florică v. Romania (dec.), no. 49781/99, 29 June 2004, and Bulinwar OOD and Hrusanov v. Bulgaria, no. 66455/01, §§ 30-32, 12 April 2007).
56. In the case of first communications sent by fax – which was at the material time authorised under point 5 of the Practice Direction on the Institution of Proceedings issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 1 November 2003 and amended on 22 September 2008 and on 24 June 2009 – the date of the first communication was regarded as date of introduction of the application only if the applicant then dispatched by post the completed and signed application form within eight weeks from the date of the Registry’s letter requesting him or her to complete and return that form (see Kemevuako v. the Netherlands (dec.), no. 65938/09, §§ 22-23, 1 June 2010).
57. In the present case, the first communications from the applicants were posted and faxed – as evidenced by the postmarks affixed on the envelopes containing them and the dates recorded on the faxes received at the Court – on 21 July 2011, 24 April 2012 and 14 August 2012 respectively. The first communications from the applicants in applications nos. 47450/11 and 53966/12, Mr Valchev and Mr Todorov, consisted of duly completed and signed application forms. The first communication from the applicants in application no. 26659/12, the Dzhanfezovi family, consisted of a letter setting out in summary the subject matter of their application.
58. In view of that and in the absence of any special circumstances, the Court finds no reason to take different dates, such as the dates of receipt of the first communications suggested by the Government, as dates of introduction of the applications.
59. It follows that the applications have been introduced within the six‑month time-limit laid down in Article 35 § 1 of the Convention, and that the Government’s objection must be rejected.
2. In relation to the disadvantage suffered by the applicants
60. The Government submitted that none of the three applicants had suffered a significant disadvantage because their cases had been duly heard in fair proceedings.
61. The applicants replied that the outcome of each of the three cases in which the Supreme Court of Cassation had declared the appeal on points of law inadmissible had been important to them. It was significant in that connection that that court had not declared the appeals inadmissible for failure to reach the financial threshold for appealing on points of law. In the case of Mr Valchev, the proceedings had concerned title to a flat that he had bought at a public auction. In the case of the Dzhanfezovi family, the proceedings had concerned the peaceful and unimpeded use of their possessions. In the case of Mr Todorov, the proceedings had concerned a significant sum that he had been ordered to pay. It could not therefore be said that they had not suffered a significant disadvantage as a result of the proceedings before the Supreme Court of Cassation.
62. The Court does not consider that it must examine whether the applications must be rejected by reference to Article 35 § 3 (b) of the Convention, because it finds that they are in any event inadmissible, for the reasons that follow.
C. The alleged unfairness of the admissibility proceedings before the Supreme Court of Cassation
63. In respect of their complaint of the failure of the national courts to send them the submissions of the respondents to their appeals on points of law and give them an opportunity to reply to those submissions (see paragraph 44 above), the applicants 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...”
1. The parties’ submissions
(a) The Government
64. The Government submitted that there had been no breach of the applicants’ rights under the Convention. They described in detail the manner in which the three sets of proceedings to which the applicants had been party had unfolded before the first- and second-instance courts, asserting that in the course of those proceedings the applicants and their opponents had already put forward all factual and legal arguments that could have a bearing on their cases, and had accordingly become acquainted with the other party’s arguments. The Government submitted that the proceedings had to be looked at as a whole, and that the Code of Civil Procedure 2007 envisaged a different role for the Supreme Court of Cassation in civil cases, laying more emphasis on its task of unifying the application of the law. They described in detail the way in which that court determined whether or not to admit an appeal on points of law for examination, and once more noted that the applicants had become aware of their opponents’ arguments in relation to the case at an earlier stage of the proceedings. The applicants had therefore not been put at a disadvantage vis-à-vis their opponents. Each of the parties to the proceedings at issue had had an equal opportunity to put forward its arguments and to reply to the arguments of the other party. There had therefore been no breach of the principles of equality of arms and adversarial proceedings. In their appeals on points of law, the applicants had not raised fresh arguments prompting the Supreme Court of Cassation to admit them for examination. The submissions of their opponents in reply to those appeals had not contained fresh arguments either. In support of their assertion, the Government made a detailed analysis of the content of the applicants’ appeals and of the submissions of the respondents in reply to those appeals.
(b) The applicants
65. The applicants submitted that the proceedings in which the Supreme Court of Cassation decided whether or not to admit an appeal on points of law for examination were in effect the first phase of cassation proceedings, and therefore engaged Article 6 § 1 of the Convention. The applicants drew attention to the facts that under Bulgarian law, those proceedings were not regarded as an extraordinary remedy; that in such proceedings the Supreme Court of Cassation did not focus on the formal validity of the appeal on points of law but on whether it was to be admitted for examination; that that court’s decisions in such proceedings, if adverse to the appellant, had the effect of rendering the appellate court’s judgment final; and that the inquiry carried out by the Supreme Court of Cassation in such proceedings was judicial in nature. The fact that that court had some latitude on whether or not to accept an appeal for examination did not a priori exclude the application of Article 6 § 1 of the Convention.
66. For the applicants, the failure of the national courts to send to appellants like them the respondents’ submissions in reply to their appeals, and to give them an opportunity to reply to those submissions in writing or orally, rendered those proceedings unfair and in breach of that Article. The applicants drew a parallel with the case of Ilijkov v. Bulgaria (no. 33977/96, §§ 102-04, 26 July 2001), where the Court found, in relation to proceedings in which the applicant had appealed to the former Supreme Court against the dismissal of his legal challenge to the lawfulness of his pre-trial detention, that the possibility for the prosecution to address the court with arguments which had not been communicated to the applicant and to which the applicant had not had an opportunity to reply had been in breach of Article 5 § 4 of the Convention because they had not been adversarial and in line with the principle of equality of arms. In the applicants’ view, since the requirements of Article 6 § 1 of the Convention were stricter than those of Article 5 § 4, that conclusion was more than fully transposable to their case. They also drew attention to cases, such as Vermeulen v. Belgium (20 February 1996, § 33, Reports of Judgments and Decisions 1996-I), in which the Court found that the lack of a possibility to reply to submissions made by an advocate general was in breach of the right to adversarial proceedings. The applicants in addition relied on the dissenting opinions of some of the Bulgarian Constitutional Court judges who had dealt with the constitutional challenge to Article 288 of the Code of Civil Procedure 2007 (see paragraph 43 above), and asserted that they had clearly been placed at a net disadvantage vis-à-vis their opponents. Mr Valchev had in particular been placed at a very substantial disadvantage vis-à-vis his opponent, whose earlier appeal on points of law had been examined under a different procedure entailing full adversariness and a public hearing. It was true that Mr Valchev’s appeal had been lodged after the entry into force of the Code of Civil Procedure 2007, but that had not been reason enough for the different treatment to which he had been subjected in the context of the same civil proceedings.
67. The applicants went on to submit that the fact that they and their opponents had made their views on the merits of the case known in the course of the proceedings before the lower courts had been irrelevant for the proceedings before the Supreme Court of Cassation. In those proceedings, that court was solely concerned with the question whether the applicants’ appeals on points of law met the criteria of Article 280 § 1 of the Code of Civil Procedure 2007, and that question was completely different from the merits of the cases. The applicants went on to dispute the assertion of the Government that they had been fully aware of their opponents’ position. In their view, the submissions made by the respondents in reply to their appeals on points of law had contained a number of arguments concerning the question whether the appeals should be admitted for examination, and those arguments had called for an answer on their part. In support of their assertion the applicants made a detailed analysis of the content of the respondents’ submissions in each of the three cases, and on that basis claimed that the lack of a possibility to reply to those arguments had caused them actual prejudice.
2. The Court’s assessment
(a) Applicability of Article 6 § 1 of the Convention
68. The first question that arises in relation to this complaint is whether Article 6 § 1 of the Convention applies to proceedings in which the Bulgarian Supreme Court of Cassation decides, by reference to the criteria set out in Article 280 § 1 of the Code of Civil Procedure 2007 (see paragraph 27 above), whether or not to admit an appeal on points of law in a civil case for examination. The Court’s case-law in relation to cassation or similar proceedings, that is, proceedings in which a higher court examines the merits of an appeal on points of law, is settled, and invariably accepts that such proceedings engage Article 6 § 1 of the Convention (see Delcourt v. Belgium, 17 January 1970, §§ 23-26, Series A no. 11; Pakelli v. Germany, 25 April 1983, §§ 31, 33-34 and 36-40, Series A no. 64; Pham Hoang v. France, 25 September 1992, §§ 39-41, Series A no. 243; Lobo Machado v. Portugal, 20 February 1996, § 30, Reports 1996-I; Vermeulen v. Belgium, 20 February 1996, § 32, Reports 1996-I; Van Orshoven v. Belgium, 25 June 1997, § 40, Reports 1997-III; and Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 40 in fine, ECHR 2002-VII). However, the same cannot be said in relation to proceedings – commonly referred to as leave-to-appeal or permission‑to‑appeal proceedings – in which the courts concerned enjoy some latitude on whether or not to accept an appeal for examination.
69. Thus, in Monnell and Morris v. the United Kingdom (2 March 1987, § 54, Series A no. 115), which concerned the fairness of leave-to-appeal proceedings before the England and Wales Court of Appeal in a criminal case, the Court said the following: “No one contested that the consideration of the applications for leave to appeal lodged by [the applicants] constituted part of the ‘determination’ of the ‘criminal charges’ brought against them. Moreover, it is in accordance with the case-law of the Court that Article 6 is applicable in the present case.”
70. Likewise, in De Ponte Nascimento v. the United Kingdom ((dec.), no. 55331/00, 31 January 2002), which concerned proceedings for permission to appeal to the England and Wales Court of Appeal in a civil case, the Court said the following: “The Court must first decide whether the decision of the Court of Appeal to refuse permission to appeal was a determination of the applicant’s civil rights and obligations. The Court observes that the Court of Appeal, when considering whether to grant permission, spent two days hearing oral argument, including argument on the merits of the case, and two of the three judges engaged in a detailed analysis of the merits of the application in their judgments. Further, the Court observes that the effect of the decision of the Court of Appeal was to end the greater part of the applicant’s claim. The Court concludes that such a detailed consideration of the case was a determination of the applicant’s ‘civil rights and obligations’ within the meaning of the Article 6 § 1.”
71. In addition, in many cases the former Commission and the Court have reviewed various aspects of permission-to-appeal or similar proceedings under that provision (see Webb v. the United Kingdom, no. 33186/96, Commission decision of 2 July 1997, unreported; ITC (Isle of Man), P.S.W.H. and A.G.S. v. the United Kingdom (dec.), no. 45619/99, 29 February 2000; Nerva and Others v. the United Kingdom (dec.), no. 42295/98, 11 July 2000; Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR 2001-VI; Walczak v. Poland (dec.), no. 77395/01, 7 May 2002; Stepinska v. France, no. 1814/02, §§ 15-19, 15 June 2004; Guz v. Poland (dec.), no. 29293/02, 19 May 2005; Martinie v. France [GC], no. 58675/00, §§ 53-55, ECHR 2006-VI; Stepenska v. Ukraine (dec.), no. 24079/02, 12 June 2006; Jaczkó v. Hungary, no. 40109/03, § 29, 18 July 2006; Marini v. Albania, no. 3738/02, § 106, 18 December 2007; Mrúz v. Hungary, no. 3261/05, § 20, 14 October 2008; Lajos Németh v. Hungary, no. 3840/05, § 20, 21 October 2008; Makuszewski v. Poland, no. 35556/05, § 53, 13 January 2009; Grori v. Albania, no. 25336/04, § 199, 7 July 2009; Wnuk v. Poland (dec.), no. 38308/05, 1 September 2009; Jakupi v. Albania (dec.), no. 11186/03, 1 December 2009; Nersesyan v. Armenia (dec.), no. 15371/07, §§ 23-25, 19 January 2010; Bachowski v. Poland (dec.), no. 32463/06, 2 November 2010; and Dunn v. the United Kingdom (dec.), no. 62793/10, §§ 27-40, 23 October 2012).
72. In a number of cases the former Commission and the Court have, however, held that Article 6 § 1 of the Convention does not apply to permission-to-appeal proceedings before a supreme court, on the basis that when such a court determines whether or not the conditions required for giving permission to appeal have been fulfilled, it is not making a decision relating to “civil rights and obligations” (see M. v. Sweden, no. 10515/83, Commission decision of 2 October 1984, Decisions and Reports (DR) 40, p. 258, at p. 259; E. v. Sweden, no. 11453/85, Commission decision of 7 July 1986, unreported; Håkansson and Sturesson v. Sweden, no. 11855/85, Commission decision of 15 July 1987, DR 53, p. 190, at pp. 199-200; Porter v. the United Kingdom, no. 12972/87, Commission decision of 9 November 1987, DR 54, p. 207, at p. 208; T. and S.H. v. Finland, no. 19823/92, Commission decision of 9 February 1993, unreported; Kangasniemi v. Finland (dec.), no. 43828/98, 1 June 1999; Blom v. Sweden (dec.), no. 28338/95, 4 March 2000; Jääskeläinen and Others v. Finland (dec), no. 32051/96, 4 May 2000; Suslo v. Ukraine (dec.), no. 30605/02, 5 November 2002; Kukkonen v. Finland (dec.), no. 57793/00, 4 May 2004; Hautakangas v. Finland (dec.), no. 61560/00, 4 May 2004; Ilvesviita‑Sallinen v. Finland (dec.), no. 59578/00, 22 June 2004; and Shykyta v. Ukraine (dec.), no. 67092/01, 11 October 2005).
73. The Court does not consider that it has to engage in a detailed analysis of the above case-law with a view to determining whether Article 6 § 1 of the Convention applies to proceedings in which the Bulgarian Supreme Court of Cassation decides whether or not to admit an appeal on points of law in a civil case for examination. It considers that, even assuming that that Article does apply, in its fairness aspect, to those proceedings, the applicants’ complaint is manifestly ill-founded, for the reasons that follow.
(b) Application of Article 6 § 1 of the Convention
74. The principle of equality of arms is part of the wider concept of a fair hearing within the meaning of Article 6 § 1 of the Convention (see, among many other authorities, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 56, ECHR 2004-III). In relation to litigation involving opposing private interests, that principle implies that each party must be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274). For its part, the right to an adversarial trial, which is also part of the wider concept of a fair hearing, means the opportunity for a parties to have knowledge of and comment on the observations filed or evidence adduced by the other party (see Ruiz-Mateos v. Spain, 23 June 1993, § 63, Series A no. 262).
75. The specific point at issue in the present case is whether the practice of the Bulgarian courts, in the absence of an explicit rule requiring them to do so, not to send to the applicants the respondents’ submissions in reply to their appeals on points of law or to give the applicants an opportunity to respond to those submissions is in breach of those two principles.
76. In determining that point, the Court must bear in mind that according to its settled case-law, the way in which Article 6 of the Convention applies to courts of cassation depends on the special features of the proceedings before those courts. Account must also be taken of the entirety of the proceedings conducted in the domestic legal order and the cassation court’s role therein (see, among other authorities, Delcourt, cited above, § 26; Pretto and Others v. Italy, 8 December 1983, § 26, Series A no. 71; Levages Prestations Services v. France, 23 October 1996, § 45, Reports 1996-V; Brualla Gómez de la Torre v. Spain, 19 December 1997, § 37, Reports 1997-VIII; and Meftah and Others, cited above, § 41). The Court has applied the same reasoning to permission-to-appeal proceedings in those cases in which it has held that such proceedings engage Article 6 of the Convention (see Monnell and Morris, cited above, § 56).
77. In the present case, the Court notes that the Bulgarian Code of Civil Procedure 2007 envisaged a new role for the Supreme Court of Cassation in civil cases. Under that Code, the main task of that court is to unify the application of the law by giving judgments of principle. For that reason, appeals on points of law to it do not lie as of right, as used to be the case under the Code of Civil Procedure 1952, but are subject to a pre-selection (see paragraph 26 above). The proceedings in which the Supreme Court of Cassation decides whether or not to admit an appeal on points of law for examination are a very particular stage of civil proceedings (see, mutatis mutandis, Stepinska, cited above, § 17). In such proceedings, that court does not deal with the merits of the case or even with the merits of the appeal on points of law, but merely decides, by reference to the criteria set out in Article 280 § 1 of the Code of Civil Procedure 2007 (see paragraph 27 above), whether or not the appeal should be admitted for examination. It does so on the basis of a brief – mandatorily accompanying the appeal – which must address that point clearly and in some detail (see paragraph 35 above), and on the basis of the respondent’s submissions in reply, if any, on that issue (see paragraphs 37 and 39 above). The burden of framing the issues clearly and convincing the Supreme Court of Cassation that the appeal should be admitted for examination plainly rests on the appellant (see paragraphs 29 and 35 above). In the instant case, each of the applicants filed such a brief (see paragraphs 4, 11 and 20 above). They therefore had an opportunity to put before the Supreme Court of Cassation all of their arguments why their appeals should be admitted for examination by reference to Article 280 § 1 of the 2007 Code. The non-communication of the respondents’ submissions in reply and the lack of an additional opportunity to revisit the point in reaction to those submissions did not therefore – in view of the special nature of the proceedings – place the applicants at a substantial disadvantage vis-à-vis their opponents or impermissibly impinge on the adversariness of the proceedings.
78. Moreover, it cannot be overlooked that before reaching the Supreme Court of Cassation the applicants’ cases were subjected to a full and adversarial examination by two levels of court with full jurisdiction (see Levages Prestations Services, § 48 in fine, and Brualla Gómez de la Torre, § 38, both cited above).
79. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
80. The Court considers that the additional grievance raised by the applicant in application no. 47450/11, Mr Valchev, that, unlike his appeal on points of law, the appeal on points of law lodged by his opponent earlier was examined in the manner laid down by the Code of Civil Procedure 1952, which did not provide for separate pre-selection proceedings for appeals on points of law to the Supreme Court of Cassation, falls to be examined under Article 14 of the Convention read in conjunction with Article 6 § 1 (see, mutatis mutandis, Yordanova and Toshev v. Bulgaria, no. 5126/05, § 62, 2 October 2012, where the Court dealt with a very similar complaint). However, only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14. The difference in treatment to which Mr Valchev was subjected – his appeal on points of law being examined under the rules of procedure laid down in the 2007 Code rather than those laid down in the 1952 Code, in contrast to the one lodged by his opponent about two and half years earlier – was not based on an identifiable personal characteristic of his. It was exclusively due to the intervening change in the rules governing the admissibility of appeals on points of law in civil cases. It could not therefore be regarded as discriminatory (ibid.).
81. It follows that this complaint is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
D. Access to the Supreme Court of Cassation
82. In respect of their complaint that the Supreme Court of Cassation had refused to admit their appeals on points for examination (see paragraph 45 above), the applicants 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 established by law.”
83. The general principles laid down in the Court’s case-law in this domain are that the right of access to a court is not absolute but may be subject to limitations in the form of regulation by the State, and that the State enjoys a certain margin of appreciation in relation to that. However, those limitations must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 of the Convention if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, among many other authorities, De Ponte Nascimento, cited above; Wells v. the United Kingdom (dec.) no. 37794/05, 16 January 2007; Borisenko and Yerevanyan Bazalt Ltd v. Armenia (dec.), no. 18297/08, 14 April 2009; and Sierpiński v. Poland, no. 38016/07, § 98, 3 November 2009).
84. In relation, more specifically, to access to appellate courts, the Court has held that although Article 6 § 1 of the Convention does not guarantee a right of appeal, a Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before the courts of appeal the fundamental guarantees of that Article. However, the manner of its application to the proceedings before those courts depends on the special features of those proceedings. Account must also be taken of the entirety of the proceedings in the domestic legal order, and of the role of the appellate court concerned therein. That is why the conditions for the admissibility of appeals on points of law or of appeals to a superior appeal court – such as a supreme court – may be more rigorous than those for ordinary appeals (see De Ponte Nascimento; Wells; Wnuk; and Sierpiński, § 99, all cited above). It should in addition be noted that, in this as in other domains, the Contracting States have a greater latitude in relation to cases concerning “civil rights and obligations” than to criminal cases (see De Ponte Nascimento, cited above).
85. In Bulgaria, in 2007 Parliament enacted a new Code of Civil Procedure which, along with a host of other changes to the rules of civil procedure, brought forth a serious modification of the role of the Supreme Court of Cassation in civil cases. Under the 2007 Code, appeals on points of law to that court do not lie as of right – as used to be the case under the Code of Civil Procedure 1952 – but subject to a pre-selection, based on criteria set out in Article 280 § 1 of the new Code (see paragraphs 26-29 above). As a result, in the period 2010-12 only about twenty-one to twenty‑three per cent of the appeals on points of law to the Supreme Court of Cassation in civil and commercial cases were admitted for examination (see paragraphs 30-32 above), relieving that court of the task of dealing with the merits of a considerable number of cases with a view to allowing it to concentrate on its core task of giving judgments that elucidate and make uniform the application of the law.
86. As evidenced by the cases cited in paragraphs 71, 72, 83 and 84 above, similar rules governing access to the highest appeal courts exist in other Contracting States, such as Albania, Armenia, Finland, France, Hungary, Poland, Sweden, Ukraine and the United Kingdom.
87. In those circumstances, the Court is satisfied that the limitation on the admissibility of appeals on points of law in civil cases to the Bulgarian Supreme Court of Cassation – in the form of broadly formulated criteria that must in the opinion of that court be met before an appeal is admitted for examination – pursues a legitimate aim. The Court further accepts that the manner in which that limitation is set out in Article 280 § 1 of the 2007 Code (see paragraph 27 above) is within the Bulgarian State’s margin of appreciation.
88. As regards in particular the applicants’ argument that the criteria set out in that Article are too vague, the Court notes that many laws are inevitably couched in terms which, to a greater or lesser extent, are general, and that the interpretation and application of those laws is a question of practice (see Borisenko and Yerevanyan Bazalt Ltd, cited above). That is particularly true of provisions governing the pre-selection of appeals to the highest appeal courts. Such provisions must of necessity be framed in a way that gives those courts enough latitude to determine whether or not to accept a case for examination, and thus allow them to concentrate on their core task of unifying the application of the law throughout the judicial system at whose pinnacle they stand.
89. It cannot be overlooked in that connection that Article 280 § 1 of the 2007 Code was challenged before the Constitutional Court, which held that, although somewhat vague, it was as a whole – with the exception of one word – not unconstitutional, and that the manner of its application would be a question of case-law and judicial practice (see paragraph 28 above). In an apparent response to that ruling, soon after that the General Meeting of the Civil and the Commercial Sections of the Supreme Court of Cassation issued a binding interpretative decision in which it sought to clarify, as much as possible, the intended manner of application of that Article (see paragraph 29 above).
90. In sum, the Court, bearing in mind the special role of the Supreme Court of Cassation envisaged in the 2007 Code, finds that the above regulatory setup cannot in itself be regarded as being in breach of Article 6 § 1 of the Convention.
91. In the cases of each of the applicants, the respective panels of the Supreme Court of Cassation found, in fully reasoned decisions, that the appeals on points of law lodged by the applicants did not meet the criteria set out in Article 280 § 1 of the 2007 Code (see paragraphs 7, 14 and 23 above). Not being a court of appeal from the national courts (see, as a recent authority, Fazliyski v. Bulgaria, no. 40908/05, § 56, 16 April 2013), the Court does not consider that it must assess the correctness of those rulings (see De Ponte Nascimento, cited above).
92. In those circumstances, and noting that before reaching the Supreme Court of Cassation the applicants’ cases were examined by two levels of court with full jurisdiction, the Court concludes that the restriction on the applicants’ right of access to a court was not disproportionate, and that it did not impair the very essence of that right.
93. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
94. The Court considers that the additional grievance raised by the applicant in application no. 47450/11, Mr Valchev, that the appeal on points of law lodged by his opponent earlier, before the entry into force of the Code of Civil Procedure 2007, had been as of right and therefore not subjected to a pre-selection, falls to be examined under Article 14 of the Convention read in conjunction with Article 6 § 1 (see, mutatis mutandis, Yordanova and Toshev, cited above, § 62, where the Court dealt with an almost identical complaint). However, as already noted in paragraph 80 above, only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14. The difference in treatment to which Mr Valchev was subjected – his appeal on points of law being subjected to a pre-selection and as a result not being examined, in contrast with the one lodged by his opponent about two and a half years earlier – was not based on an identifiable personal characteristic of his. It was exclusively due to the intervening change in the rules governing the admissibility of appeals on points of law in civil cases. It could not therefore be regarded as discriminatory (ibid.).
95. It follows that this complaint is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
E. Other alleged violations of the Convention
96. As regards the remainder of the applicants’ complaints (see paragraphs 46-49 above), in the light of all the material in its possession, and in so far 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.
97. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy