CEDH · CASELAW;REPORTS;ENG — 28 octobre 1997

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LIDDY, President     MM   M.P. PELLONPÄÄ       E. BUSUTTIL       A. WEITZEL       C.L. ROZAKIS       L. LOUCAIDES       B. MARXER       B. CONFORTI       N. BRATZA       I. BÉKÉS       G. RESS       A. PERENI?       C. BÎRSAN       K. HERNDL       M. VILA AMIGÓ     Mrs   M. HION     MM   R. NICOLINI       A. ARABADJIEV   12.   The text of this Report was adopted on 28 October 1997 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.   The particular circumstances of the case   16.   Since 1989, due to serious health problems, the applicant has been disabled and in receipt of a social pension as a physically handicapped person under the Pension Law (Zakon za pensiite).   He was also in receipt of a monthly income allowance under the Social Assistance Regulation (SAR-1991 and SAR-1992) (Pravilnik za sotzialno podpomagane) (see below para. 23), and of other welfare payments.   17. On an unspecified date the applicant submitted to the Kovachevzi municipal Social Care Centre (Obshtinski tzentar za sotzialni grizhi) applications for an increase in his monthly allowance and for certain additional social payments provided for under SAR-1991 or SAR-1992, such as, inter alia, allowances for medicaments, and for travelling to and from a rehabilitation centre.   The applicant considered that the conditions laid down in the relevant provisions, such as receipt of a lump sum income below a certain threshold, were met and that therefore he was entitled to the amounts claimed.   On unspecified dates the municipal Social Care Centre refused the applicant's requests.   18.   The applicant submitted an appeal to the mayor of Kovachevzi against this decision.   On 1 June 1993 the mayor dismissed his claims.   In a letter sent to the applicant he gave detailed explanations with calculations of the amounts received by the applicant and concluded that the conditions for the additional welfare benefits claimed were not met, the applicant having received all that he was entitled to.   19.   As the applicant was not satisfied, in January 1994 he lodged with the Radomir District Court (Raionen sad) a civil action against the municipal Social Care Centre claiming 58,128 leva in unpaid social benefits due for a two year period, between 1 January 1992 and 1 January 1994.   The applicant claimed, inter alia, that under SAR-1992 he was entitled to a larger monthly income allowance under Section 5, a supplementary rent allowance under Section 8, an allowance for medical expenditures under Section 10a, and annual allowances for heating and rehabilitation expenditures under Sections 12 para. 1 and 16 para. 1.      20.   On 8 June 1994 the District Court rejected the action stating that under Sections 19 - 22 of the SAR the examination of claims for social benefits was within the competence of the local Social Care Centre.   Its decisions concerning particular one-time benefits could be challenged before the mayor and, as regards claims for regular monthly benefits, before the National Social Care Centre (Natzionalen tzentar za sotzialni grizhi).   Therefore the court was not competent to examine the applicant's claims.   21.   On 7 September 1994, upon the applicant's appeal, this decision was confirmed on the same grounds by the Pernik Regional Court (??????? ???).   The applicant's ensuing petition for review was dismissed by the Supreme Court (Varhoven sad) on 20 March 1995.     B.   Relevant domestic law (translations and summaries)   22.   Section 51 of the Bulgarian Constitution provides, insofar as relevant:   "Citizens shall have the right to social security and welfare assistance..."   23.   The Social Assistance Regulations (SAR).     The applicant's claims for social payments concerned a period of time during which two different pieces of legislation were in force.     The first was the Social Assistance Regulation adopted in March 1991 ("SAR-1991"), in force until 24 July 1992 (D.V. br. 26/1991, ism. i dop. br. 68 i 105 ot 1991 i br. 6 ot 1992). Section 4(1) provides for a monthly income allowance payable to those who met the conditions listed therein.   Sections 9, 10 and 11 provide that handicapped persons under certain conditions "have a right" to other social benefits such as, inter alia, a free pass for the public transport.   Sections 15 - 17 provide that all social benefits are granted by decision of the district social care centres, which are subject to appeal to a commission appointed by the mayor.     Another Social Assistance Regulation ("SAR-1992") (D.V. br. 59/1992, ism. br. 24, 26, 68 i 98 ot 1993 i br. 14, 63 i 96 ot 1994) has been in force between 25 July 1992 and 31 December 1996.     Section 5 of SAR-1992 provides that everyone whose income is below a certain, individually determined, minimum amount "[s]hall have the right to a monthly welfare pecuniary or in-kind allowance ...".   The provision contains detailed rules for the determination of the minimum amount, based on age and family situation.   The monthly allowance is the difference between the minimum amount and the income of the family.   Sections 6 and 7 contain other detailed conditions as regards the assessment of property and income for purposes of determining the entitlement to the allowance.        Section 8 provides for a "right" to a supplementary rent allowance and defines the conditions for its payment.       Section 10a stipulates, inter alia, that persons meeting certain conditions have the "right" to receive medicaments free of charge or with a price reduction.     Section 12 provides that ad hoc payments "can be made" in cases of difficulties caused, inter alia, by illness, or the purchase of expensive medicaments or heating supplies.     Section 16 provides, inter alia, that certain categories of handicapped persons "shall have the right" to free rehabilitation once per year.     Section 19 para. 1 provides as follows:   "(1) The local social care organs shall be obliged to ensure, under the rules of this Regulation, the right of the citizens to the monthly allowance and shall, in addition, assess the legal possibility for other types of assistance."       According to Sections 19 and 20 appeals concerning particular ad hoc benefits are examined by the mayor and appeals as regards monthly benefits, by the National Social Care Centre.     Another Social Assistance Regulation (SAR-1996) (D.V. br. 51/1996) entered into force on 1 January 1997.   By referring expressly to the Administrative Procedure Act in its Section 30 para. 3 it provides for a possibility to appeal to a court against a decision concerning social assistance payments.   24.   The Administrative Procedure Act (Zakon za administrativnoto proizvodstvo)     According to Section 33 of the Act all administrative decisions, as a general rule, are subject to appeal to a court.   Section 34 of the Act enlists certain exceptions.   In particular under paragraph 4 of this provision no judicial appeal lies against an administrative decision where, inter alia, a law provides for another avenue of appeal, such as to a specialised body of adjudication.     In cases concerning administrative decisions under certain laws and regulations the Supreme Court has found that judicial appeal against an administrative act is inadmissible where the applicable law provides for another avenue of appeal (opr. No. 207 ot 16.2.1993 po gr.d. 1526/92 na VS III g.o.; opr. No. 404 ot 11.4.1994 po adm. d. 1819/94 na VS III g.o.).   III.   OPINION OF THE COMMISSION   A.   Complaint declared admissible   25.   The Commission has declared admissible the applicant's complaint that contrary to Article 6 para. 1 (Art. 6-1) of the Convention his alleged civil rights to certain social welfare benefits could not be put before an impartial and independent tribunal.   B.   Point at issue   26.   The point at issue in the present case is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.   As regards Article 6 para. 1 (Art. 6-1) of the Convention   27.   The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention of the refusal of the courts to examine on the merits his claims for the payment of social benefits.   He alleges that as a result he could not have a hearing before an impartial and independent tribunal in the determination of his civil right to certain social benefits.   28.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows.     "1.   In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an independent and impartial tribunal ..."   29.   The applicant states that Bulgarian law provides for a right to certain social welfare payments.   This right is enshrined in Section 51 of the Bulgarian Constitution and is elaborated in the Social Assistance Regulations, whose provisions clearly delimit the circle of entitled persons and the types and the amounts of the various allowances.   There is no room for discretion left to the local administrative authority to decide whether or not to grant a particular allowance.     30.   Furthermore, based on the criteria established in the Court's case-law (Eur. Court HR, Feldbrugge v. Netherlands judgment of 29 May 1986, Series A no. 99; Deumeland v. Germany judgment of 29 May 1986, Series A no. 100; and Salesi v. Italy judgment of 26 February 1993, Series A no. 257-E), this right is of a civil character as it is personal and economic in its nature.   31.   In the applicant's view the bodies which at the relevant time were competent to determine the civil right at issue, i.e. the mayor and the National Social Care Centre, cannot be considered as independent tribunals.   32.   In response to the Government's assertion that his claims for additional payments were completely unreasonable the applicant replies inter alia that he genuinely believes that he is entitled to the sums which he claimed before the national authorities.   Thus, the applicant considers that the monthly income allowance under Section 4(1) of SAR-1991 and Section 5 of SAR-1992 is intended to provide a "safety net" for persons whose income is insufficient to ensure a living.   Therefore, the in-kind assistance received from the local Social Care Centre should not have been taken into account when determining his monthly income for purposes of the SAR.   This is so because the in-kind assistance is not provided on a regular basis and is discretionary.   Furthermore, 270 leva per month were withheld from the applicant's pension between September and December 1993, to cover payments under a judicial decision.   His income was thus brought well below the guaranteed minimum.   Also, the applicant was denied some other benefits and sought compensation for this.       33.   The Government state that the entitlements under Sections 9, 10 and 11 of the SAR-1991 and those under Sections 5, 8, 10a and 19 of the SAR-1992 are "rights", as the competent administrative authority has no discretion whether to grant them or not.   As regards the remaining benefits claimed by the applicant, the Government maintain that they were discretionary.   The Government further admit that the National Social Care Centre cannot be considered an independent tribunal within the meaning of Article 6 (Art. 6) of the Convention and that the applicant could not have a hearing on the merits before a court.     34.   However, the Government also make a detailed analysis of the sums received by the applicant between 1 January 1992 and 1 January 1994.   On this basis they find that the applicant's lump monthly income exceeded at all times the minimum amount and conclude that his claim for additional monthly allowance under Section 5 of the SAR-1992 was unfounded and was, therefore, rightly dismissed.   The Government maintain that the applicant's remaining claims for other social benefits were also unfounded.   They were, moreover, completely unreasonable as he did not submit any evidence to support them.   35.   The Commission recalls that Article 6 para. 1 (Art. 6-1) extends only to "contestations" (disputes) over civil rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law; it does not in itself guarantee any particular content for civil rights and obligations in the substantive law of the Contracting States (Eur. Court HR, H. v. Belgium judgment of 30 November 1987, Series A no. 127, p. 31, para. 40).   36.   Therefore, and in accordance with the Convention organs' case-law, the applicability of Article 6 (Art. 6) in the present case depends in the first place on whether it may be said, at least on arguable grounds, that Bulgarian law provided at the pertinent time for a "right" to receive, under certain conditions, the social assistance payments claimed by the applicant.   37.   The Commission notes that it is undisputed between the parties that the entitlement to welfare payments under Sections 9, 10 and 11 of the SAR-1991 and those under Sections 5, 8, 10a and 19 of the SAR-1992 are "rights" (see paras. 29 and 33).   The Commission also notes that the relevant law provides for conditions, such as monthly income below a certain threshold, and for other similar requirements which, if fulfilled, entitle the person concerned to a particular social assistance payment (see para. 23).   The competent administrative authority has no discretion whether to grant these payments or not, its role being to examine whether the relevant conditions are met.     38.   In view of its finding above (see para. 37) the Commission considers it unnecessary to examine whether the remaining social assistance payments claimed by the applicant were also "rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   39.   Insofar as the Government may be understood as arguing that the applicant's claims were so unreasonable and vexatious as leading to the conclusion that there was no genuine "contestation" (dispute), the Commission notes that the applicant made very specific claims, based inter alia on calculations of his income.   He disputed the finding of the social care administration that he did not meet the conditions for certain welfare benefits and persisted in his endeavours to obtain satisfaction by appealing to the mayor and then by bringing an action in court (see paras. 17, 19 and 21).   40.   The rights claimed by the applicant are welfare allowances (see para. 17).   Therefore, in accordance with the Court's established case-law, they are "civil" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court HR, Salesi v. Italy judgment, loc. cit., para. 19).   41.   The Commission finds, therefore, that under Article 6 para. 1 (Art. 6-1) of the Convention the applicant was entitled to a hearing before a "tribunal" in the determination of the dispute concerning the claimed welfare payments.   42.   The Commission notes that the applicant did not attempt to submit a judicial appeal under the general rule of Section 33 of the Administrative Procedure Act against the mayor's decision of 1 June 1993.   He submitted instead an action claiming certain amounts in unpaid social benefits (see para. 19).   However, noting the parties agreement that there was no possibility for a judicial examination of the applicant's case (see paras. 31 and 33 in fine), the Commission sees no reason to reach a different finding.   The Commission notes in particular that Section 34 para. 4 of the Administrative Procedure Act excluded the possibility of a judicial appeal in certain cases, such as where a non- judicial avenue of appeal was specifically provided for (see para. 24), and that it has not been shown that the applicant's case would for some reason not fall under paragraph 4 of Section 34.   43.   Furthermore, it is accepted that neither the mayor, who examined the applicant's appeal, nor the National Social Care Centre, before which the applicant could have appealed in respect of his claim for an increased monthly allowance, can be considered "tribunal[s]" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.   Also, the courts, when seised by the applicant action, did not examine his claims on the merits.     CONCLUSION   44.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.          M.F. BUQUICCHIO           J. LIDDY           Secretary             President     to the First Chamber       of the First Chamber