CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 31806/96                       by Bogdanka DIMOVA                       against Bulgaria         The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 4 April 1996 by Bodganka Dimova against Bulgaria and registered on 11 June 1996 under file No. 31806/96;         Having regard to:   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       17 September 1997 and the observations in reply submitted by the       applicant on 17 November 1997;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Bulgarian national residing in Plovdiv. Before the Commission she is represented by Mr Ekimdjiev, a lawyer practising in Plovdiv.         The facts of the case, as submitted by the parties, may be summarised as follows.   A.     Particular circumstances of the case         On 21 August 1992 the applicant complained to the District Prosecutor's Office (Raionna prokuratura) that, inter alia, her husband fraudulently induced her to sign, on 10 December 1991, before a notary public, a contract by virtue of which the apartment jointly owned by her and by her husband was sold to her husband's father. The Prosecutor's Office conducted an inquiry on the matter, but apparently did not institute criminal proceedings.         On 28 September 1992 the Prosecutor's Office brought a civil action before the Plovdiv District Court (Raionen sad) against the applicant's husband and his father.   The Prosecutor's Office was acting under its authority to institute civil proceedings as a procedural substitute "in a third person's interest", according to Section 27 para. 1 of the Code of Civil Procedure (see below Relevant domestic law).   The prosecutor asked the Court to nullify the sale-purchase contract as it was allegedly concluded fraudulently.         As required under Section 31 of the Code of Civil Procedure, the Court summoned also the applicant, who had the right, if she so wished, to participate as a party to the proceedings.         The applicant and her lawyer appeared at the hearings held by the Court, presented evidence and made submissions.   In the minutes the applicant was referred to by the Court as a "plaintiff", the Prosecutor's Office being the other plaintiff.         At the hearing held on 24 March 1993 the applicant's lawyer requested an amendment of the civil action to include intimidation as an additional ground for nullification.   This request was granted by the Court, which stated that the action was to be considered so amended upon the plaintiff's request.         By a judgment of 7 January 1994, served on 14 February 1994, the District Court dismissed the action as the allegations about fraud or intimidation were unfounded.   The Court stated in the operative part of its decision that it dismissed "the action[s] brought by the Plovdiv District Prosecutor's Office as a procedural substitute of [the applicant] ..."         On 21 January 1994 the Prosecutor's Office filed with the Court an appeal (protest) against the judgment.   However, this appeal was not admitted for examination as it did not comply with certain procedural requirements.         On 11 April 1994, within the two months' time-limit provided for under the law for the submission of a petition for review (cassation), the applicant submitted such a petition to the Supreme Court (Varhoven sad) against the District Court's decision.   Stating that she was a party to the proceedings, a co-plaintiff, she asked the Court to find that the impugned judgment was contrary to the law and ill-founded. In her submissions to the Supreme Court she never complained about any irregularity in respect of her admission and participation as a party to the proceedings.         On 30 October 1995, after a hearing, the Court rejected the applicant's petition as inadmissible.         The Court noted at the outset that a judgment in a case brought by a procedural substitute was binding upon the person whose civil right had been at stake in the proceedings leading to this judgment. Therefore, the District Court's judgment of 7 January 1994 was binding on the applicant.         The Supreme Court further noted that the District Court had never delivered a formal ruling thereby legally admitting the applicant as a party to the proceedings.   This had been an omission on the part of the District Court.   It was true that the applicant had taken active part in these proceedings, but the District Court had been obliged by law to admit her formally as a party.         As this had not been done, under Section 233 para. 2 of the Code of Civil Procedure there arose the legal interest for the applicant, as a person who was bound by a judgment without having been a party to the proceedings leading to it, to seek its annulment.   As a result the Supreme Court considered that the petition for review submitted by the applicant was to be considered as a petition for annulment under Section 233 para. 2 of the Code of Civil Procedure.         However, the time-limit for submission of a petition for annulment under this provision was one month and it had been exceeded. On this ground the Supreme Court declared the applicant's petition inadmissible.   B.     Relevant domestic law         Section 27 of the Code of Civil Procedure (Grazhdansko- protzesualen kodeks) provides that the prosecutor may institute or join civil proceedings on behalf of a third person whenever, inter alia, this is necessary for the protection of State or public interests. According to the jurisprudence, under Section 27 the prosecutor acts as a State authority but assumes the role of a party to civil proceedings for the protection of the interests of the State or of the individual.         Under Sections 15 para. 3 and 31 of the Code the court is obliged ex officio to summon as a party to the proceedings the person in whose interest the prosecutor has brought an action.         Under Sections 225 and 226 of the Code a party to civil proceedings has a right to institute proceedings for review (cassation) within a two months' time-limit.   In these proceedings the Supreme Court can examine whether the lower court's judgment was contrary to the law or ill-founded and whether there has been a substantial breach of procedure. The Supreme Court in the review proceedings is competent to quash the lower court's judgment and to return it for new examination or to decide itself on the merits.         Section 233 para. 2 of the Code provides that "annulment ... may be requested by a [third] person who is bound by a judgment despite the fact that he has not been a party to the proceedings".   The time-limit for such petition for annulment to the Supreme Court is one month from the date when the third person has learnt of the existence of the judgment.   COMPLAINTS         The applicant contends that there has been   a breach of Article 6 para. 1 of the Convention.   She complains inter alia of the restriction on her access to the highest judicial authority, the Supreme Court.         She submits also that the Supreme Court applied wrongly the relevant procedural law thus violating the principle of equality of arms.   Thus, a person in the applicant's position should be considered to have become a party to the proceedings ex lege and should have been treated equally with any other party to the proceedings.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 April 1996 and registered on 11 June 1996.         On 21 May 1997 the Commission decided to communicate the application to the respondent Government.         The Government's written observations were submitted on 17 September 1997, after an extension of the time-limit fixed for that purpose.   The applicant replied on 17 November 1997, also after an extension of the time-limit.         On 28 October 1997 the Commission granted the applicant legal aid.     THE LAW         The applicant complains under Article 6 (Art. 6) of the Convention of the restriction on her access to the Supreme Court.         Article 6 (Art. 6) of the Convention, insofar as relevant, provides as follows:              "1.    In the determination of his civil rights and       obligations ..., everyone is entitled to a fair ... hearing       ... by [a] ... tribunal established by law..."   a)     The Government raise a preliminary objection that the application is an abuse of the right to petition as it is "obviously ungrounded" and misleads the Commission on the issue of the exhaustion of domestic remedies.         The Government further submit that the applicant has not exhausted all domestic remedies within the meaning of Article 26 (Art. 26) of the Convention because her petition for review (cassation) was rejected by the Supreme Court on 30 October 1995 on procedural grounds, as having been out of time.         The Government further maintain that the application is submitted after the expiry of the six months' time-limit.   In their view this time-limit is to be counted as from 21 March 1994.   The Government submit that this is the date of expiration of the one month time-limit for filing a petition for annulment under Section 233 para. 2 of the Code of Civil Procedure against the District Court's judgment dated 7 January 1994 and served on 14 February 1994.         The applicant replies that the alleged violation of Article 6 (Art. 6) of the Convention occurred by virtue of the decision of the Supreme Court of 30 October 1995 against which there exist no effective domestic remedies.   Therefore, the contentions of the Government in respect of the exhaustion of domestic remedies and the six months' time-limit are misplaced.         The Commission has first examined the arguments of the Government in respect of the requirements of Articles 26 and 27 (Art. 26, 27) of the Convention.         The Commission, like the applicant, notes that in the present case the alleged violation of the Convention concerns precisely the manner in which the Supreme Court in its judgment of 30 October 1995 decided on the relevant procedural issues.   Furthermore, the Government have not stated that against this judgment there existed a remedy which has not been utilised (cf. Eur. Court HR, De Jong, Baljet and Van den Brink   v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 18, para. 36).   Therefore, the Government's objection as regards the exhaustion of domestic remedies must fail.         It also follows that the Government's position that the six months' time-limit ran from 21 March 1994 cannot be accepted.         There having been no indication that the application was knowingly based on untrue facts (cf. No. 28626/95, Dec. 3.7.97), the Commission further rejects as unsubstantiated the assertion of the Government that there has been an abuse of the right to petition within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   b)     The Government submit that the applicant was summoned by the District Court as a co-plaintiff, as required by the relevant provisions of the Code of Civil Procedure.   The Government further state that the fact that the District Court did not make a formal ruling thereby accepting the applicant as a plaintiff was an omission on the part of the Court, but also note that the applicant did not expressly ask the Court to make such a formal ruling.   In any event, the applicant was able fully to participate in the proceedings before the District Court.         The Government further recall that the Supreme Court noted the omission of the District Court.   Thereafter the Supreme Court, in the Government's submission, acted in a manner favourable to the applicant, as the Court on its own initiative assumed that the applicant could have filed a petition for annulment under Section 233 para. 2 of the Code of Civil Procedure, and examined the applicant's petition for review as a petition for annulment.   However, the time-limit for the submission of a petition for annulment had been exceeded, through the applicant's fault.         The Government conclude that there has been no inappropriate restriction placed on the applicant's access to the Supreme Court, that she had an opportunity to participate in the examination of her case before the District Court, and that the allegation that there has been a violation of   Article 6 (Art. 6) of the Convention is manifestly ill- founded.         The applicant submits that under the Code of Civil Procedure, and as explained in the writings of Professor Stalev, the leading authority in civil procedure in Bulgaria, when an action has been brought by a procedural substitute in a third persons's interest, the latter becomes, ex lege, a party to the proceedings.   Therefore the applicant was a party to the proceedings regardless of the fact that there was no formal ruling of the District Court in this respect.   Furthermore, she was repeatedly treated by the District Court as a party to the proceedings.         As a result, in the applicant's view, the finding of the Supreme Court that she was not a party to the proceedings and that she thus had no standing to submit a petition for review was wrong.   Moreover, it was completely inappropriate and logically inconsistent to treat her petition for review as a petition for annulment under Section 233 para. 2 of the Code of Civil Procedure.   A petition for annulment under this provision could be submitted by third persons who have not taken part in the proceedings, whereas she did.         The applicant concludes that by interpreting the law in this way the Supreme Court deprived her of her right to access to the review (cassation) stage of the proceedings in breach of Article 6 (Art. 6) of the Convention.         Having examined the application, the Commission finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. The application cannot, therefore, be regarded as manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other grounds for declaring it inadmissible have been established.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber