ZAHARIEVA v. BULGARIA

FOURTH SECTION

DECISION

Application no. 6194/06
Teodora Dimitrova ZAHARIEVA
against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 20 November 2012 as a Chamber composed of:

Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 27 January 2006,

Having regard to the partial decision of 13 October 2009,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Teodora Dimitrova Zaharieva, is a Bulgarian national, who was born in 1965 and lives in Sofia. She was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

A. The circumstances of the case

1. The applicant’s illness and medical treatment

3. In 1998 the applicant was diagnosed with breast cancer and underwent surgical removal of her right breast. In the following years she also underwent chemotherapy.

4. In November 2002 the applicant developed a tumour in her left breast, which was also removed, and underwent another course of chemotherapy.

5. This medical treatment was provided to the applicant free of charge by the public health system.

6. In November 2002 the applicant was prescribed a course of hormonal therapy which required the administration, once every twenty‑eight days, of a medicine whose active component was goserelin.

7. At the relevant time goserelin was on the list of medicines provided by the Ministry of Health free of charge. Between November 2002 and February 2004 the applicant received it regularly free of charge.

8. In March 2004 the applicant was informed that there was a problem with the supply of goserelin. Having received medical advice that interrupting the intake of the product for longer than a month could be dangerous for her health, the applicant had no choice but to purchase it from a pharmacy. She did so in March and April 2004. The price of goserelin for each dose was 480 Bulgarian levs (BGN).[1]

9. Being unable to keep on paying for goserelin each month, in July 2004 the applicant, on the advice of her doctor, underwent an alternative treatment in the form of radiocastration, which resulted in the definitive cessation of her ovarian function.

10. After that the applicant was prescribed another medicine whose active substance was letrozole, to be taken daily for twenty‑four months. Letrozole was also on the list of medicines provided free of charge by the Ministry of Health. However, the applicant did not receive the medicine free of charge and had to pay for it. Being unable to afford to pay for a full course of treatment with letrozole – the cost of one package containing forty pills was BGN 360 –, the applicant took it irregularly and in smaller doses than prescribed.

11. In March 2005 metastases in the applicant’s liver were discovered, and she underwent a third course of chemotherapy.

12. In May 2005 the applicant was not provided free of charge with docetaxel, another expensive medicine, although it was necessary for the chemotherapy and also featured on the list of medicines provided by the Ministry of Health free of charge.

13. The applicant repeatedly protested, in letters and complaints addressed to the Ministry of Health and other institutions, about the recurring problems with the supply of medicines for persons suffering from cancer.

14. It appears that in 2006 the applicant continued to experience irregular supplies of free medicines.

2. The claim for damages against the Ministry of Health

15. On 2 February 2005 the applicant brought a claim for damages against the Ministry of Health. She sought BGN 1,280 that she had paid for the medicines that should have been provided to her free of charge and BGN 50,000 in respect of the non-pecuniary damage resulting from the worsening of her health due to the Ministry’s failure to provide those medicines. The statement of claim did not clarify the legal provision on which the claim was based.

16. Between February and April 2005 the Sofia City Court returned the statement of claim to the applicant four times, pointing to various deficiencies in it. In particular, the applicant was requested to describe the specific actions and omissions which had given rise to the alleged damage and to provide more particulars about the damage that she had suffered.

17. The first hearing was held on 23 June 2005. The court dealt with a number of evidential requests by the parties, allowed an increase of the applicant’s claim in respect of non‑pecuniary damage, and gave leave to the applicant to specify her claim in respect of pecuniary damage. It also ordered a medical expert report requested by counsel for the applicant, and adjourned the case until 15 December 2005.

18. On 28 June 2005 the applicant specified that she was claiming BGN 1,500 in respect of pecuniary damage and BGN 398,500 in respect of non‑pecuniary damage. She also asked the court to bring forward the date of its next hearing.

19. On 15 July 2005 counsel for the Ministry requested the court to put additional questions to the expert.

20. On 19 September 2005 the court admitted the increase of the applicant’s claims, but said that in view of its case load and the amount of evidence that needed to be gathered the date of the next hearing could not be brought forward.

21. The expert filed her report on 9 December 2005.

22. At the hearing on 15 December 2005 the court admitted the report and heard the expert. It went on to admit a number of documents presented by the parties and to hear one witness called by the applicant. The case was adjourned until 9 February 2006.

23. On 18 January 2006 the applicant made written submissions clarifying that her claim was based on section 1 of the State Responsibility for Damage Act 1988 (“the 1988 Act” – see paragraph 40 below).

24. At the hearing on 9 February 2006 the parties made submissions on the evidence. The court also dealt with the applicant’s submissions of 18 January 2006 and instructed her to provide further clarifications.

25. Having received the applicant’s clarifications, on 23 April 2006 the court, sitting in private, noted that the applicant had based her claim on section 1 of the 1988 Act and that therefore its examination had to start afresh because the procedure applicable to claims under that Act, unlike the one applicable to claims under the general law of tort, required the participation of a public prosecutor.

26. At the next hearing, held on 25 May 2006, the examination of the case started afresh. The court took note of the applicant’s earlier submissions concerning the quantum of her claims, instructed the applicant to provide duly certified copies of certain documents that she wanted to adduce, and ordered a medical expert report. It also heard a witness called by the applicant, and adjourned the case until 20 October 2006 to allow further evidence to be gathered.

27. The expert report was ready on 19 May 2006.

28. The last hearing took place on 20 October 2006.

29. The Sofia City Court gave its judgment on 6 November 2006. It awarded the applicant BGN 1,500 in respect of pecuniary damage (the cost of the medicines that she had had to buy herself) and BGN 80,000 in respect of non‑pecuniary damage. Applying section 10(2) of the 1988 Act, as worded at that time (see paragraph 44 below), the court ordered the applicant to pay BGN 12,740 (four per cent of BGN 318,500 – the rejected part of her claim in respect of non‑pecuniary damage) in court fees.

30. Both parties appealed. The Ministry requested two additional expert reports.

31. On 14 March 2007 the Sofia Court of Appeal admitted certain documents enclosed by the parties with their appeals. It also partly acceded to the Ministry’s request and ordered an additional medical expert report. The report was filed on 24 April 2007.

32. The first hearing before the Sofia Court of Appeal took place on 7 May 2007. The court admitted the medical expert report and heard the experts. Counsel for the Ministry contested parts of the report and requested a fresh report. The court did not accede to that request, but ordered the experts to re‑check some of their conclusions in the light of the objections raised by counsel for the Ministry.

33. The experts filed their amended report on 13 June 2007. The court held a hearing on 2 July 2007, at which it admitted the amended report and re‑heard the experts. It also dealt with some other evidential requests and heard the parties’ closing arguments.

34. The Sofia Court of Appeal gave its judgment on 1 August 2007. It increased the award of non‑pecuniary damages to BGN 100,000, plus interest at the legal rate (see paragraph 42 below) running from 2 February 2005, and upheld the remainder of the lower court’s judgment. It noted that as a result of the increase of the quantum of the award, the applicant owed only BGN 11,940 (four per cent of BGN 298,500 – the rejected part of her claim in respect of non‑pecuniary damage) in court fees in respect of the first‑instance proceedings. However, the court did not order the applicant to pay any fees in respect of the appellate proceedings.

35. The Sofia City Court and the Sofia Court of Appeal both concluded that the Ministry of Health was liable for the cost of the medicines that the applicant had been forced to buy on the open market and for the non‑pecuniary damage suffered by the applicant as a result of the breakdown in the supply of those medicines. The courts found that the Ministry had, in breach of its duties under the applicable statutes and regulations, failed to organise certain public procurement tenders in a timely manner and had, moreover, bought insufficient quantities of certain medicinal products, which had not covered the needs of all cancer patients in Bulgaria. Also, the system of distribution of those products had not been organised efficiently. The courts found that those omissions had been in breach of section 1 of the 1988 Act (see paragraph 40 below), and had resulted in interruptions in the applicant’s treatment requiring recourse to radiocastration, which had had the effect of irreversibly terminating her ovarian function and had, moreover, exposed her to harmful radiation possibly causing tumours. The courts also found that as a result of the Ministry’s omissions the applicant’s chances of overcoming her illness had decreased, that she had suffered lasting feelings of pain and distress, and that she had been negatively affected for the rest of her life. The only difference between their conclusions was that in the view of the Sofia Court of Appeal the extent of the non‑pecuniary damage suffered by the applicant was greater.

36. Both parties appealed on points of law. The Supreme Court of Cassation heard the appeals on 14 February 2008.

37. In a final judgment of 20 May 2008 (реш. № 211 от 20 май 2008 г. по гр. д. № 6087/2007 г., ВКС, V г. о.), the Supreme Court of Cassation fully upheld the Sofia Court of Appeal’s judgment. Relying on section 10(2) of the 1988 Act, as worded at that time (see paragraph 44 below), it ordered the applicant to pay BGN 11,940 (four percent of BGN 298,500) in court fees in respect of the cassation proceedings. It did not award any costs to the applicant. The court fully agreed with the Sofia Court of Appeal’s assessment of the failure of the responsible Ministry of Health officials to organise in time the procurement of the medicinal products required for treating the applicant. It also shared the court of appeal’s assessment of the extent of the damage suffered by the applicant. It noted that the court of appeal had omitted to order the applicant to pay fees in respect of the appellate proceedings, but went on to say that this was not an error that could be rectified in cassation proceedings.

38. On 10 and 11 June 2008 the applicant asked the Supreme Court of Cassation to vary its ruling in relation to court fees in the cassation proceedings and to award her costs in respect of those proceedings. In an additional judgment of 12 December 2008 (реш. № 1471 от 12 декември 2008 г. по гр. д. № 6087/2007 г., ВКС, V г. о.), the court, noting that the newly added section 9a(1) of the 1988 Act (see paragraph 45 below) had already taken effect when the applicant had made her request, decided to reduce the fee that the applicant had been ordered to pay in respect of the cassation proceedings from BGN 11,940 to BGN 5. The court turned down the applicant’s request for the award of costs, noting that she had not been legally represented in the cassation proceedings and had not proved that she had incurred any costs.

3. Other developments

39. In August 2009 the applicant gave a press interview in which she said, inter alia, that her health had improved.

B. Relevant domestic law

1. State liability for damage

40. Section 1 of the Act originally called the State Responsibility for Damage Caused to Citizens Act 1988, renamed on 12 July 2006 the State and Municipalities Responsibility for Damage Act 1988 (“the 1988 Act”), provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties.

41. Section 8(1) of the Act provides that those seeking redress for damage occasioned in circumstances falling within the scope of the Act have no claim under the general law of tort. The courts have said that the Act is a lex specialis and excludes the application of the general regime (реш. № 1370 от 16 декември 1992 г. по гр. д. № 1181/1992 г., ВС, ІV г. о.; реш. от 29 юли 2002 г. по гр. д. № 169/2002 г., СГС, ГК, ІVб о.). The Supreme Court of Cassation has said (реш. № 738 от 21 ноември 2006 г. по т. д. № 348/06 г., ВКС, I т. о.) that liability under section 1 of the Act is a special case of vicarious liability under section 49 of the Obligations and Contracts Act 1951, which provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. The Bulgarian courts have on occasion examined damages claims against the authorities under section 49 (see the domestic case cited in First Sofia Commodities EOOD and Paragh v. Bulgaria (dec.), no. 14397/04, § 17, 25 January 2011).

2. The legal rate of interest

42. The legal rate of interest is set by the Council of Ministers (section 86(2) of the Obligations and Contracts Act 1951). In a decree of April 1994 (Постановление № 72 от 8 април 1994 г. за определяне на законната лихва по просрочени задължения в левове и във валута) the Council of Ministers decided that the legal rate of interest for overdue debts in Bulgarian levs would be the base interest rate fixed by the Bulgarian National Bank plus ten percentage points. The same position was maintained, with certain technical modifications, in a new decree that came into force on 1 July 2012 and superseded the 1994 one (Постановление № 100 от 29 май 2012 г. за определяне размера на законната лихва по просрочени задължения в левове и във валута).

2. Court fees under the 1988 Act

43. The general rule in civil proceedings in Bulgaria is that the court fee is payable by the claimant up‑front, upon submission of the claim (Article 55 of the Code of Civil Procedure 1952, superseded on 1 March 2008 by Article 73 § 3 of the Code of Civil Procedure 2007, and sections 1‑4 of the State Fees Act 1951). The fee in respect of money claims is four per cent of the amount claimed (point 1 of Tariff No. 1 to the State Fees Act, superseded on 1 March 2008 by section 1 of the Tariff of fees collected by the courts under the Code of Civil Procedure). If the claim succeeds fully or partly, the defendant is ordered to reimburse the claimant’s costs, including court fees, in direct proportion to the successful part of the claim.

44. Under section 10(2) of the 1988 Act, as originally enacted, in proceedings under the Act, no court fees or costs were payable by the claimant up‑front, upon submission of the claim. However, if the claim was eventually wholly or partly dismissed, the court was to order the claimant to pay “the court fees and costs due”. The courts construed that provision as meaning that the claimant should pay fees calculated pro rata the dismissed part of the claim. As a result, where a court held that a claim for damages against the State was well‑founded but excessive as to quantum, it ordered the defendant State authority to pay damages to the claimant and at the same time ordered the claimant to pay court fees to the State budget. Where the claimant indicated too high an amount in the statement of claim, the fee could exceed the sum awarded in damages, the overall financial award being in favour of the State despite the finding that the claimant had suffered damage that called for compensation under the Act (реш. № 1095 от 25 юли 2000 г. по гр. д. № 139/2000 г., ВКС, реш. № 805 от 1 август 2005 г. по гр. д. № 56/2004 г., ВКС). There was no provision for judicial discretion and considerations of equity played no role in fixing the fees’ amount; those fees were fixed by reference to the sums indicated in the statement of claim, even if in the course of the proceedings the claimant withdrew part of the claim (тълк. реш. № 3 от 22 април 2004 г. по тълк. гр. д. № 3/2004 г., ВКС, ОСГК, точка 12).

45. Following this Court’s judgment in the case of Stankov v. Bulgaria (no. 68490/01, 12 July 2007), which found that the setup outlined above had, on the facts of the case, resulted in a breach of Article 6 § 1 of the Convention (see a summary of the Court’s findings in paragraph 90 below), the Bulgarian Government laid before Parliament a bill for the amendment of the 1988 Act. Parliament enacted the bill on 17 April 2008 and the amending Act came into force on 30 May 2008. Section 10(2) was changed and now deals solely with costs. Court fees are presently governed by a newly added section 9a(1), which provides that the fee due in respect of cases under the Act is flat and is to be fixed in a tariff adopted by the Government. Under the Tariff of fees collected by the courts under the Code of Civil Procedure, as currently in force, the fee is BGN 10 in respect of first‑instance proceedings, BGN 5 in respect of appellate proceedings, and BGN 5 in respect of cassation proceedings. Unlike the previous arrangement, the fee is payable up‑front (опр. № 12420 от 4 октомври 2011 г. по адм. д. № 12302/2011 г., ВАС, III о.).

46. Paragraph 9 of the transitional and concluding provisions of the amending Act provides that the new rule on court fees applies to proceedings which have not been concluded at the time when the new section 9a(1) came into force, and that the fee is charged at the close of the proceedings in each instance.

47. In its case‑law under that paragraph, the Supreme Court of Cassation in some cases held that the new rule on court fees applied not only in respect of fees charged by the cassation court after the rule had come into effect, but also in respect of fees charged by the lower courts before that, as long as the proceedings as a whole were pending at the time when the rule had come into effect (реш. № 974 от 7 ноември 2008 г. по гр. д. № 2980/2007 г., ВКС, I г. о.; опр. № 201 от 28 декември 2009 г. по гр. д. № 3270/2008 г., ВКС, I г. о.; реш. № 54 от 22 февруари 2010 г. по гр. д. № 5217/2007 г., ВКС, I г. о.). In one case the court went as far as to set aside a writ of execution issued in respect of a court fee charged before the new rule had come into force (опр. № 28 от 10 януари 2012 г. по ч. гр. д. № 700/2011 г., ВКС, IV г. о.).

48. However, in other cases the Supreme Court of Cassation held that, since it referred to the close of the proceedings “in each instance”, the new rule could not serve as a basis for reducing the fees charged by the lower courts before it had come into effect (реш. № 158 от 15 април 2009 г. по гр. д. № 6217/2007 г., ВКС, I г. о., реш. № 1410 от 24 април 2009 г. по гр. д. № 4946/2007 г., ВКС, I г. о.). In some cases the court held that the rule did not apply to the fees charged by the lower courts before it had come into effect because it did not have retrospective effect (опр. № 34 от 6 март 2009 г. по гр. д. № 4149/2007 г., ВКС, ІІІ г. о., опр. № 92 от 26 ноември 2008 г. по гр. д. № 4603/2008 г., ВКС, IV г. о.).

3. Complaint about delays

49. The text of the provision governing the “complaint about delays” – Article 217a of the Code of Civil Procedure 1952 – has, along with the provisions of the Code of Civil Procedure 2007 that superseded it in March 2008, been set out in paragraphs 43 and 49‑52 of the Court’s judgment in the case of Finger v. Bulgaria (no. 37346/05, 10 May 2011).

4. Injunction proceedings against the authorities under Article 257 of the Code of Administrative Procedure 2006

50. Under Article 257 of the Code of Administrative Procedure 2006, which came into force on 12 July 2006, a person may bring proceedings to enjoin an administrative authority to carry out an action that it has the duty to carry out under a legal provision. If the court allows the claim, it enjoins the authority to carry out the action and fixes a time‑limit.

51. In late 2007 a cancer patient who had, due to a breakdown of supplies, not been provided with iodine‑131 for post‑operative radiotherapy free of charge, as required under the applicable regulations, brought proceedings under Article 257 to enjoin the Minister of Health to make the product available to the hospital that was treating her.

52. On 28 December 2007 the Sofia City Administrative Court dismissed the claim. On an appeal by the patient, in a decision of 19 May 2008 (опр. № 5756 от 19 май 2008 г. по адм. д. № 2425/2008, ВАС, ІІІ о.) a three‑member panel of the Supreme Administrative Court quashed the lower court’s decision, holding that the claim fell within its competence and that it should not have been examined by the lower court.

53. On 18 May 2009 a three‑member panel of the Supreme Administrative Court dismissed the claim (реш. № 6428 от 18 май 2009 г. по адм. д. № 12746/2008 г., ВАС, VІ о.). On an appeal by the patient, in a judgment of 8 February 2010 (реш. № 1609 от 8 февруари 2010 г. по адм. д. № 9282/2009 г., ВАС, петчленен състав) a five‑member panel of the Supreme Administrative Court quashed the three‑member panel’s judgment and remitted the case.

54. In a judgment of 6 July 2010 (реш. № 9411 от 6 юли 2010 г. по адм. д. № 2062/2010 г., ВАС, VІ о.) the three‑member panel to which the case had been remitted allowed the claim and enjoined the Minister to complete within one month the relevant procurement procedures. Having reviewed in considerable detail the applicable constitutional and statutory provisions and regulations, and having examined the Minister’s actions in relation to the procurement of the relevant anti‑cancer products, it found that the patient was entitled to receive iodine‑131 for her medical treatment and that the Minister was under a legal duty – which he had failed to discharge – to provide it to the hospitals which were treating her. It also noted that, in as much as the claimant was seeking redress in respect of the damage that she had already suffered as a result of the Minister’s omission, she could seek reparation by way of a claim under section 1 of the 1988 Act (see paragraph 40 above).

55. On an appeal by the Minister, in a final judgment of 8 January 2011 (реш. № 859 от 8 януари 2011 г. по адм. д. № 12090/2010 г., ВАС, петчленен състав) a five‑member panel of the Supreme Administrative Court upheld that judgment, fully agreeing with its reasoning.

56. Parallel to those proceedings, the patient also brought a claim for damages under section 1 of the 1988 Act (see paragraph 40 above), and in a judgment of 12 April 2010 (реш. № 885 от 12 април 2010 г. по адм. д. № 4149/2007 г., АССГ, ІІ о., 26 състав), the Sofia Administrative Court awarded her BGN 100,000 in non‑pecuniary damages. On an appeal by the Minister of Health, on 11 January 2011 the Supreme Administrative Court upheld that judgment (реш. № 348 от 11 януари 2011 г. по адм. д. № 8399/2010 г., ВАС, ІІІ о.).

COMPLAINTS

57. The applicant complained under Article 2 § 1 of the Convention that the State had failed to discharge its positive obligation to protect her life since it had not secured an uninterrupted supply of free life‑saving medicines. She also alleged violations of Articles 3 and 8 of the Convention, arguing that the lack of understanding on the part of the State authorities for her problem and their attitude in general had amounted to inhuman and degrading treatment and had disclosed a failure to secure respect for her private life.

58. The applicant also complained under Articles 2 and 6 § 1 of the Convention of the excessive length of the proceedings for damages, and under Article 13 of the Convention of the lack of effective remedies in that respect.

59. Lastly, the applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 of the excessive amount of court fees that she had been ordered to pay.

THE LAW

A. Complaints concerning the failure to provide medicines

60. In respect of her complaint about the failure of the authorities to provide the medicines needed for the treatment of her medical condition the applicant relied on Articles 2, 3 and 8 of the Convention. They provide, in so far as relevant:

Article 2 § 1 (right to life)

“Everyone’s right to life shall be protected by law... “

Article 3 (prohibition of torture)

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 (right to respect for private and family life)

“1. Everyone has the right to respect for his private ... life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

1. The parties’ submissions

61. The Government submitted that the applicant could no longer be regarded as a victim of a violation because the courts had allowed her claim concerning the failure of the Ministry of Health to ensure the supply of medicines and had awarded her adequate compensation in respect of the pecuniary and non‑pecuniary damage that she had suffered on that account.

62. The applicant submitted that the domestic judgments in her favour had not stripped her of her victim status, for several reasons. First, she had been ordered to pay a substantial amount of court fees, which had dented the award of damages in her favour. Secondly, the proceedings leading to that award had lasted too long. Thirdly, the underlying systemic problem with the timely provision of free medicines to cancer patients in Bulgaria continued to exist. Fourthly, the damage to the applicant’s health was irreversible and could not be made good solely through the payment of compensation. As a result of the breakdown in the supply of free medicines, the applicant’s medical condition had irretrievably worsened. Lastly, no officials had been prosecuted in relation to the breakdown in the supply of free anti‑cancer medicines. In previous cases the Court had ruled that a claim under the 1988 Act, in as much as it could lead only to an award of compensation, was not an effective remedy in respect of alleged breaches of Article 3 of the Convention.

2. The Court’s assessment

(a) General principles

63. The Court summarised the principles governing the assessment of an applicant’s victim status in paragraphs 178‑92 of its judgment in the case of Scordino v. Italy (no. 1) ([GC], no. 36813/97, ECHR 2006‑V). In so far as relevant to the case under consideration, they are:

(a) Under the principle of subsidiarity, it falls first to the national authorities to redress any alleged violation of the Convention. In this connection, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention;

(b) A decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of his or her status as a victim unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention;

(c) The applicant’s victim status will depend on the redress which the domestic remedy will have given him or her;

(d) The principle of subsidiarity does not mean renouncing all supervision of the result obtained from using domestic remedies; otherwise the rights guaranteed by the Convention would be devoid of any substance.

64. It follows from the foregoing principles that the Court must verify whether the authorities have acknowledged, at least in substance, that there has been a violation of a right protected by the Convention and whether the redress can be regarded as appropriate and sufficient (see Scordino (no. 1), cited above, § 193).

(b) Acknowledgement of the violation

65. The Court considers that the judgments finding the Ministry of Health liable in damages to the applicant (see paragraphs 29, 34, 35 and 37 above) may be regarded as an acknowledgment in substance of the alleged breaches of Articles 2, 3 and 8 of the Convention (see, mutatis mutandis, Floarea Pop v. Romania, no. 63101/00, §§ 40‑41, 6 April 2010).

(c) Characteristics of the redress

66. The Court must also determine, in the circumstances of this case (see paragraphs 70 and 83 below), whether the compensation awarded to the applicant amounted to sufficient redress in respect of the alleged breach of those Articles.

67. Two questions arise in relation to that. First, whether an award of compensation may be regarded as an appropriate form of redress in the circumstances of the case. Secondly, whether the quantum of the award could be regarded as sufficiently compensating the damage suffered by the applicant.

(i) Appropriateness of the redress

68. In relation to the first question, the Court observes that it has in the past held that if the infringement of the right to life or to personal integrity is not caused intentionally, the obligations under the relevant Articles of the Convention may be satisfied if the domestic legal system affords the victim a remedy enabling any liability of the persons concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained (as regards Article 2, see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I, and Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII; and as regards Articles 3 and 8, see R.R. v. Poland, no. 27617/04, §§ 97 and 104‑09, ECHR 2011‑... (extracts)). Different considerations may apply in respect of cases where the alleged breach of the Convention stems from the intentional curtailment of medical treatment resulting in suffering or death (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 55‑56, 20 December 2007). However, there is no suggestion that this was so in the instant case – the applicant alleged, and the national courts found, that the breakdown in the supply of the anti‑cancer medicines that she needed for her treatment had been due to negligence on the part of officials of the Ministry of Health (see, mutatis mutandis, Floarea Pop, cited above, §§ 37‑39). In those circumstances, the award of damages to the applicant may be regarded as an appropriate form of redress in respect of the alleged breaches of Articles 2, 3 and 8 of the Convention in her case (see, mutatis mutandis, Krivova v. Ukraine, no. 25732/05, § 50, 9 November 2010).

69. In as much as the applicant alleged that the proceedings did not resolve the wider problems relating to the supply of anti‑cancer medicines in Bulgaria, the Court, while by no means wishing to minimise the importance of that issue, does not consider that it falls to be examined by reference to the applicant’s rights under Articles 2, 3 and 8 of the Convention (see, mutatis mutandis, Banks and Others v. the United Kingdom (dec.), no. 21387/05, 6 February 2007). The Court must confine its attention, as far as possible, to the particular circumstances of the case before it (see, among other authorities, Wettstein v. Switzerland, no. 33958/96, § 41, ECHR 2000‑XII, and Sommerfeld v. Germany [GC], no. 31871/96, § 86, ECHR 2003‑VIII). It is not its role in the context of an individual application under Article 34 of the Convention to give guidance to the national authorities as to how to organise their systems of supply of life‑saving medicines. It also notes in this connection that in 2011 another cancer patient obtained damages and an injunction against the Minister of Health relating to the supply of anti‑cancer products (see paragraphs 50‑56 above).

70. Nor is the Court persuaded that the length of the proceedings against the Ministry of Health was such as to detract from their capacity to provide the applicant effective redress in respect of her grievance. The Court refers on this point to its conclusion in paragraph 83 below in respect of the applicant’s complaint under Article 6 § 1 of the Convention.

(ii) Sufficiency of the redress

71. As for the question whether the amount of compensation was sufficient, the Court observes that the applicant has not alleged that the award failed to make good the whole damage that she suffered as a result of the alleged breaches of the Convention. Nor is there is any allegation that after the end of the domestic proceedings the applicant has been denied medical treatment which was rendered necessary by the breakdown in the supply of medicines (contrast, mutatis mutandis, Oyal v. Turkey, no. 4864/05, § 71, 23 March 2010).

72. It is true that the applicant’s claim was allowed only in part, and that she was not awarded the full amount of non‑pecuniary damages that she was seeking. However, it cannot be overlooked that the Sofia City Court ordered the Ministry of Health to reimburse the expenses that the applicant had had to incur to buy the medicines that the Ministry had been bound to provide her free of charge, and awarded the applicant BGN 80,000 (40,903.35 euros (EUR)) to make good the non‑pecuniary damage that she had suffered on account of the Ministry’s failure to provide those medicines (see paragraph 29 above). Later the Sofia Court of Appeal, whose judgment was fully upheld by the Supreme Court of Cassation, increased the award of non‑pecuniary damages to BGN 100,000 (EUR 51,129.19), plus interest at the legal rate running from 2 February 2005 (see paragraphs 34 and 37 above). Based on the manner in which the legal rate of interest is set in Bulgarian law (see paragraph 42 above) and information from the Bulgarian National Bank on its base rate of interest for the relevant period, it appears that at the time when the Sofia Court of Appeal’s judgment became final – 20 May 2008 – the award of non‑pecuniary damages payable to the applicant was just above BGN 143,800 (EUR 73,523.77). That sum, even though somewhat reduced by the court fees that the applicant was ultimately ordered to pay – BGN 11,945 (EUR 6,107.38) (see paragraphs 37 and 38 above), can by no means be regarded as too low in comparison to the awards made by the Court in similar cases (compare, mutatis mutandis, with Oyal, cited above, § 107).

(d) Conclusion

73. It follows that the applicant can no longer claim to be a victim of a violation of Articles 2, 3 or 8 of the Convention in relation to the interrupted supply of medicines, and that her complaint in that regard is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

B. Complaints concerning the length of the proceedings and the lack of an effective remedy in that respect

74. The Court considers that the complaint concerning the length of the proceedings for damages falls to be examined solely under Article 6 § 1 of the Convention and that the complaint concerning the alleged lack of an effective remedy in that respect falls to be examined under Article 13 of the Convention. These Articles read, in so far as relevant:

Article 6 § 1 (right to a fair hearing)

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Article 13 (right to an effective remedy)

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

1. The parties’ submissions

75. The Government submitted that the applicant had failed to exhaust domestic remedies because she had not brought a complaint about delays under Article 217a of the Code of Civil Procedure 1952 (see paragraph 49 above) to prevent specific instances of delay in the proceedings.

76. They went on to argue that the case had been complex, requiring the gathering of a considerable amount of written and expert evidence. There was no indication that the authorities had been responsible for any delays. The courts had ruled in due time and had not allowed large gaps between hearings.

77. The applicant submitted that a complaint about delays under Article 217a of the Code of Civil Procedure 1952 would not have been an effective remedy because it could have only led to a disciplinary sanction of the judge concerned – a very remote possibility – and would not have in practice speeded up the proceedings. She had had no other remedies, in particular a remedy allowing her to obtain compensation in respect of the allegedly unreasonable length of the proceedings.

78. The applicant submitted that her case had not been particularly complex: it had required solely a determination on whether the authorities had failed to ensure the availability of medicines and an assessment of the extent to which that failure had affected her health and well‑being. The case had not required the calling of many witnesses or given rise to other evidentiary difficulties or procedural complexities. At the same time, the stakes involved for the applicant had been very high, because of her medical condition – any delay had been liable to render the proceedings devoid of object. The courts had been responsible for a number of delays: those caused by the four requests for rectification of the statement of claim, and by the interval of about six months between the two hearings held in June and December 2005. The applicant, for her part, had not caused any delays.

2. The Court’s assessment

(a) Article 6 § 1 of the Convention

79. The Court does not find it necessary to determine whether the applicant has exhausted domestic remedies in respect of this complaint, because it considers that it is in any event manifestly ill‑founded.

80. The period to be taken into consideration began on 2 February 2005, when the applicant brought her claim (see paragraph 15 above). It ended on 12 December 2008, when the Supreme Court of Cassation gave its follow‑up judgment pursuant to the applicant’s request for variation of its rulings in relation to court fees and costs (see paragraph 38 above, as well as Belošević v. Slovenia, no. 7877/02, § 19, 6 April 2006, and Repas v. Slovenia, no. 10288/02, § 21, 6 April 2006). The period under consideration therefore lasted in total three years and just over ten months, for three levels of court. Three years and about three months of that time was devoted to the substantive litigation, and the last seven months were taken up by the re‑examination of the costs and court fees issues.

81. The reasonableness of that period is to be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court’s case‑law: the complexity of the case, the conduct of the applicant and the conduct of the relevant authorities. What was at stake for the applicant in the litigation must also be taken into account in certain cases (see, among many other authorities, X v. France, 31 March 1992, § 32, Series A no. 234‑C). In particular, in cases where the claimants have a reduced life expectancy due to their being in the ultimate stages of an incurable disease the authorities must act with exceptional diligence (ibid., § 47, as well as Vallée v. France, 26 April 1994, § 47, Series A no. 289‑A; Karakaya v. France, 26 August 1994, § 43, Series A no. 289‑B; A. and Others v. Denmark, 8 February 1996, § 78, Reports of Judgments and Decisions 1996‑I; and Janssen v. Germany, no. 23959/94, § 47, 20 December 2001).

82. The Court considers that the case was of some factual complexity and that the courts needed to obtain written and expert evidence to be able to determine the Ministry of Health’s liability, its precise link with the damage suffered by the applicant, and the extent of that damage. Although the legal issues raised by the case do not seem overly complex, it cannot be overlooked that the case appears to have broken new ground in relation to State liability for omissions in the health sphere. To that extent, the Court accepts that it was marked by a certain degree of legal complexity.

83. The Court does not agree with the applicant that the delays caused by the need to have her statement of claim rectified were entirely attributable to the Sofia City Court. It is true that that court could have dealt with the issue in a more economical way instead of giving instructions on this point on several consecutive occasions. However, it cannot be overlooked that those instructions were made necessary in the first place by the failure of the applicant to formulate properly her pleadings. It is also true that some hearings before the Sofia City Court were scheduled at substantial intervals (see paragraphs 17, 22, 24, 26 and 28 above), and that after the end of the substantive litigation the Supreme Court of Cassation took about six months to deal with the relatively straightforward issues of costs and court fees (see paragraph 38 above). Nonetheless, the Court does not consider that those gaps, although regrettable in the context of the present case, rendered the overall length of the proceedings excessive. This conclusion is based on four reasons. First, at least part of the delay in the proceedings before the Sofia City Court was due to the lack of clarity on the question whether the applicant’s claim was based on section 1 of the 1988 Act or the general law of tort (see paragraphs 23 and 25 above); blame for that may be regarded as shared between the court, which should have made efforts to clarify the point at the outset of the proceedings, and the applicant, who should have done the same. Secondly, in the appellate stages of the substantive litigation the Sofia Court of Appeal and the Supreme Court of Cassation disposed of the case quite quickly, taking about ten months and seven months respectively (see paragraphs 29‑37 above). Thirdly, in spite of some avoidable delays, the courts dealt with the case in less than four years (contrast Vallée, § 33; Karakaya, § 29; A. and Others v. Denmark, § 66; and Janssen, § 42, all cited above). Fourthly, it cannot be said that this case is fully comparable to the cases cited in paragraph 81 above, in which the Court held that exceptional diligence was required in view of the claimants’ substantially reduced life expectancy. Although the applicant in the present case likewise suffered from a serious life‑threatening disease, it does not appear that at the time of the proceedings she was in the terminal stages of that disease and that, consequently, there was an appreciable risk that any delay might render the proceedings devoid of object. The Court is mindful of the fact that the stakes in the present case, which concerned compensation for damage to the applicant’s health, were higher than normal. However, this is a question of degree. The situation under consideration cannot be compared with those obtaining in cases where the courts are faced with a very high probability that, unless the case is examined in a very speedy fashion, the litigant may not live to see the result. Nor does it appear that the object of the proceedings was to enable the applicant to receive better medical treatment; they concerned solely post hoc questions of tortious liability (contrast the injunction proceedings outlined in paragraphs 51‑55 above and, mutatis mutandis, R.P.D. v. Poland, no. 77681/01, § 36, 19 October 2004).

84. 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.

(b) Article 13 of the Convention

85. According to the Court’s settled case‑law, Article 13 of the Convention requires the provision of a domestic remedy to deal with the substance of an arguable complaint under the Convention and to grant appropriate relief (see, among many other authorities, Hadjikostova v. Bulgaria (no. 2), no. 44987/98, § 49, 22 July 2004, and Gavril Yosifov v. Bulgaria, no. 74012/01, § 67, 6 November 2008). Having regard to its findings under Article 6 § 1, the Court considers that the applicant had no arguable complaint under Article 13 in respect of the length of proceedings.

86. It follows that this complaint is also manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Complaint concerning the court fees

87. The Court considers that the complaint concerning the court fees that the applicant was ordered to pay falls to be examined under 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 within a reasonable time by an independent and impartial tribunal ...”

1. The parties’ submissions

88. The Government submitted that this case was very different from Stankov (cited above), because the Supreme Court of Cassation had reduced the court fee payable by the applicant in respect of the cassation proceedings and because the ratio between the amount of damages awarded to the applicant and the court fees payable by her was not such as to cause the applicant to bear a disproportionate burden.

89. The applicant submitted that her case was similar to Stankov (cited above) in that she had been ordered to pay a substantial amount of court fees in application of section 10(2) of the 1988 Act, as worded before 30 May 2008.

2. The Court’s assessment

90. In Stankov (cited above, §§ 50‑67), the Court was concerned with the compatibility of the pre‑2008 court fees system under the 1988 Act (see paragraphs 43 and 44 above), as applied to a claimant who was seeking damages in respect of his pre‑trial detention, with Article 6 § 1 of the Convention. The Court started by noting that the applicant had been ordered to pay court fees amounting to about ninety per cent of the compensation that the State had been ordered to pay him. He had thus lost most of his award in court fees even though the courts had accepted unequivocally that he was entitled to compensation for the non‑pecuniary damage caused by his detention. It was true that those fees had been payable at the close of the proceedings, which meant that the applicant had had access to all of their stages. However, in practical terms the imposition of a considerable financial burden after the conclusion of the proceedings could also operate as a restriction on the right to a court. In as much as the amount of court fees had been dependent on the quantum of the applicant’s claim – which the Government had criticised as excessive – the Court, noting the lack of clear domestic case‑law on the level of non‑pecuniary damages in respect of unjustified pre‑trial detention, as well as the monetary fluctuations, inflation, legal reforms and changes in legal practice in Bulgaria at the relevant time, found that it was unclear how anyone, even a lawyer, could have determined what would have been a reasonable claim in the applicant’s case. The Court went on to observe that the applicant’s financial burden had been particularly significant because the legislation which had brought it about imposed a flat four per cent rate with no upper limit and left no room for judicial discretion. Based on that, the Court concluded that the practical difficulties in assessing a likely award under the 1988 Act, taken together with the relatively high and wholly inflexible rate of court fees, had amounted to a disproportionate restriction on the applicant’s right to a court, and had given rise to a breach of Article 6 § 1 of the Convention.

91. The present case likewise concerns a claim for non‑pecuniary damages under the 1988 Act that the domestic courts found well‑founded but excessive as to quantum. As in Stankov (cited above, §§ 62‑63), the Court accepts that the quantum of the applicant’s claim – BGN 398,500, after she increased it – could not be criticised, regard being had in particular to the claim’s novelty and the lack of established precedents. However, there are several features which distinguish this case from Stankov (cited above).

92. First, in its additional judgment of 12 December 2008, given following a legislative amendment that was prompted by Stankov and that significantly altered the manner of calculation of court fees under the 1988 Act, the Supreme Court of Cassation drastically reduced the amount of fees that the applicant had been ordered to pay in respect of the cassation proceedings – from BGN 11,940 to BGN 5 (see paragraphs 38 and 45 above).

93. Secondly, the Sofia Court of Appeal – by inadvertence or perhaps even deliberately – did not order the applicant to pay any fees in respect of the appellate proceedings, and the Supreme Court of Cassation, while noting that omission, held that it was not bound to rectify it (see paragraphs 34 and 37 above).

94. Thirdly, it is at least arguable that, although the Supreme Court of Cassation’s case‑law in relation to court fees charged before the 2008 reform of the 1988 Act was not settled (see paragraphs 47‑48 above), it was open to the applicant to try to avoid payment of the fees charged in respect of the first‑instance proceedings.

95. Fourthly, the total sum that the applicant remained liable to pay in court fees did not reduce the amount of compensation that she was awarded to an extent that effectively rendered it nugatory. By contrast, in Stankov the fee payable by the applicant amounted to approximately ninety per cent of the compensation the State was ordered to pay him (see Stankov, cited above, § 51). In a case which followed Stankov and in which the Court likewise found a breach of Article 6 § 1 of the Convention, Mihalkov v. Bulgaria (no. 67719/01, §§ 60‑65, 10 April 2008), the fee was higher than the award itself. In another follow‑up case where the Court found a breach of Article 6 § 1 of the Convention, Tzvyatkov v. Bulgaria (no. 20594/02, §§ 25‑27, 12 June 2008), the fee amounted to seventy‑two per cent of the award. Here, the sum that the applicant was awarded in respect of non‑pecuniary damage was BGN 100,000, plus interest at the legal rate running from 2 February 2005. Based on the manner in which the legal rate of interest is set in Bulgarian law (see paragraph 42 above) and information from the Bulgarian National Bank on its base rate of interest for the relevant period, it appears that at the time when the Sofia Court of Appeal’s judgment became final – 20 May 2008 – the award of non‑pecuniary damages payable to the applicant was just above BGN 143,800 (EUR 73,523.77). At the same time the applicant was liable to pay BGN 11,945 (EUR 6,107.38) in court fees. The fees thus amounted to about 8,3% of the award. In these circumstances, it can hardly be maintained that they constituted a disproportionate financial burden unduly restricting the applicant’s right to a court.

96. It is true that in Stankov (cited above, §§ 57, 64, 65 and 67) the Court expressed a general criticism of the manner in which court fees were being calculated in proceedings under the 1988 Act at the relevant time. However, in reaching its conclusion that there had been a breach of Article 6 § 1 of the Convention the Court also had regard to the particular circumstances of the case (ibid., §§ 51 and 58). The Court’s task in cases arising from individual applications is not to review domestic law in the abstract, but to examine the manner in which that law has been applied to the applicants (see, among other authorities, McCann and Others v. the United Kingdom, 27 September 1995, § 153, Series A no. 324; Pham Hoang v. France, 25 September 1992, § 33, Series A no. 243; Sommerfeld, cited above, § 86; and S.H. and Others v. Austria [GC], no. 57813/00, § 92, ECHR 2011‑...).

97. 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.

For these reasons, the Court

Declares by a majority the complaints concerning the failure to provide the applicant medicines for the treatment of her medical condition inadmissible;

Declares unanimously the remainder of the application inadmissible.

Lawrence EarlyIneta Ziemele
RegistrarPresident

[1]. By comparison, in 2004 the average monthly salary in Bulgaria was BGN 301.50 (according to information published by the National Statistics Institute (Национален Статистически Институт, Статистически справочник, София, 2005 г., стр. 72), the average annual salary for 2004 was BGN 3,618), and the minimum monthly salary, set by decree of the Council of Ministers (Постановление № 7 от 16 януари 2004 г. за определяне на нов размер на минималната работна заплата за страната), was BGN 120.

Full & Egal Universal Law Academy