CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 avril 2024

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margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   THIRD SECTION CASE OF NINA DIMITROVA v. BULGARIA (Application no. 40669/16)     JUDGMENT Art 1 P1 • Control of the use of property • Impossibility to halt the public sale of applicant’s flat as a result of the enforcement of an immediately enforceable payment order against her, pending a judicial examination of the substantive dispute with the bank • Statutory scheme in force at the relevant time, governing the issuing and challenging of immediately enforceable payment orders and the manner in which it was applied upset the fair balance between the competing rights • Disproportionate and excessive burden   Prepared by the Registry. Does not bind the Court.   STRASBOURG 16 April 2024   FINAL   23/09/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. TABLE OF CONTENTS INTRODUCTION THE FACTS I.   THE APPLICANT’S BANK LOAN II.   THE PAYMENT ORDER AGAINST THE APPLICANT III.   LEGAL CHALLENGES AGAINST THE PAYMENT ORDER A.   Examination of those legal challenges B.   Findings of the inspectorate attached to the Supreme Judicial Council in respect of the unfolding of the proceedings IV.   PUBLIC SALE OF THE APPLICANT’S FLAT V.   FURTHER COURSE OF THE ENFORCEMENT PROCEEDINGS VI.   JUDICIAL-DECLARATION PROCEEDINGS BROUGHT BY THE BANK AGAINST THE APPLICANT VII.   REVERSE WRITS OF EXECUTION SOUGHT BY THE APPLICANT’S MOTHER AND DAUGHTER VIII.   EVIDENCE ABOUT THE APPLICANT’S PLACE OF ABODE RELEVANT LEGAL FRAMEWORK I.   PAYMENT ORDERS A.   (Re)introduction of the procedure in Bulgaria B.   Payment orders and payment orders in favour of banks II.   LEGAL CHALLENGES AGAINST AN PAYMENT ORDER A.   Objection against the payment order B.   Stay of the enforcement of a payment order following an objection C.   Appeal against the direction of immediate enforceability D.   Possibility for the debtor to seek a judicial declaration that the debt to which the payment order relates is not due 1.   Under the general rules of civil procedure 2.   Under Article 424 of the Code of Civil Procedure if newly discovered facts or evidence emerge III.   COMPENSATION FOR DAMAGE CAUSED BY ENFORCING AN PAYMENT ORDER IV.   CONSTITUTIONAL CHALLENGE AGAINST THE PAYMENT-ORDER PROCEDURE AVAILABLE TO BANKS V.   JUDICIAL DECLARATIONS THAT UNFAIR TERMS ARE VOID VI.   INTERIM MEASURES IN CIVIL PROCEEDINGS VII.   REMEDIES IN RESPECT OF THE UNREASONABLE LENGTH OF CIVIL PROCEEDINGS A.   Acceleratory remedy B.   Compensatory remedies VIII.   LEGAL CHALLENGES IN ENFORCEMENT PROCEEDINGS IX.   ADDRESS REGISTRATION RELEVANT CASE-LAW OF THE CJEU ELEMENTS OF COMPARATIVE LAW THE LAW I.   ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 A.   Admissibility of the complaint 1.   Exhaustion of domestic remedies (a)   The parties’ submissions (i)   The Government (ii)   The applicant (b)   The Court’s assessment 2.   The Court’s conclusion regarding the admissibility of the complaint B.   Merits 1.   The parties’ submissions (a)   The applicant (b)   The Government 2.   The Court’s assessment (a)   Whether there has been interference with the applicant’s right to the peaceful enjoyment of her possessions (b)   Whether the interference was prescribed by law (c)   Whether the interference pursued a legitimate aim (d)   Whether the interference was proportionate to the legitimate aim pursued (i)   Scope and method of the Court’s assessment (ii)   General principles (iii)   Application of those principles (α)   Applicable legislative scheme and its application in the applicant’s case (β)   Additional steps allegedly capable of preventing the public sale of the flat ‒   Appeal against the Sofia District Court’s decision to refuse the applicant’s request for a stay of enforcement of the payment order ‒   Provision of security for the bank in support of the applicant’s request for a stay of enforcement of the payment order ‒   Informally advising the bank and the enforcement agent of the use of remedies against the payment order ‒   Judicial declaration that the applicant did not owe the sums under the payment order ‒   Judicial declaration under Article 424 of the Code of Civil Procedure ‒   Claim against the bank under the consumer-protection legislation ‒   Conclusion with respect to the preventive remedies cited by the Government (γ)   After-the-fact remedies (δ)   Conclusion II.   ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION Admissibility of the complaint 1.   Compatibility ratione materiae (a)   The parties’ submissions (i)   The Government (ii)   The applicant (b)   The Court’s assessment 2.   Exhaustion of domestic remedies III.   ALLEGED VIOLATIONS OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION IV.   APPLICATION OF ARTICLE 41 OF THE CONVENTION A.   Pecuniary damage 1.   The applicant’s claim and the Government’s comments on it 2.   The Court’s assessment B.   Non-pecuniary damage 1.   The applicant’s claim and the Government’s comments on it 2.   The Court’s assessment C.   Costs and expenses 1.   The applicant’s claim and the Government’s comments on it 2.   The Court’s assessment In the case of Nina Dimitrova v. Bulgaria, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Pere Pastor Vilanova, President ,   Jolien Schukking,   Yonko Grozev,   Georgios A. Serghides,   Peeter Roosma,   Andreas Zünd,   Oddný Mjöll Arnardóttir, judges , and Milan Blaško, Section Registrar , Having regard to: the application (no. 40669/16) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Nina Ivanova Dimitrova (“the applicant”), on 8 July 2016; the decision to give the Bulgarian Government (“the Government”) notice of the application; and the parties’ observations; Having deliberated in private on 26 March 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1 .     The main question in the case is whether the absence of a realistic possibility for the applicant to halt the sale of a flat owned by her as a result of the enforcement of an immediately enforceable order for payment ( заповед за плащане – “payment order”) obtained against her by a bank (on   the basis of a loan contract later found to contain certain terms which were unfair and therefore void under the consumer-protection legislation) upset the fair balance between the applicant’s right to the peaceful enjoyment of her possessions under Article 1 of Protocol No. 1 and the bank’s rights as a creditor. The impossibility of halting the enforcement of the payment order pending a proper judicial examination of the substantive dispute between the applicant and the bank is alleged to have stemmed both from the applicable statutory scheme (as it existed at the material time) and from the delay on the part of the court processing the applicant’s legal challenges against the payment order. THE FACTS 2.     The applicant was born in 1967 and now lives in Germany. She was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv, Bulgaria. 3.     The Government were represented by their Agents, Ms B. Simeonova and Ms M. Kotseva of the Ministry of Justice. THE APPLICANT’S BANK LOAN 4 .     In July 2005 the applicant took out a twenty-year loan of 40,000 euros (EUR) from Tsentralna Kooperativna Banka AD (“the bank”), which she secured with a mortgage on a flat that she bought with that sum; the contract specified that the sum lent to the applicant was to be used for purchasing the flat in issue. The annual interest rate on the loan was set at: the bank’s base rate, at that time 4%, plus 5.9% – together amounting to 9.9%. According to the terms of the loan contract, the bank could alter that rate when altering its base rate owing to “changes in market conditions” and its “interest-rate policy”. The loan, together with the interest on it, was to be repaid in uniform monthly instalments, which were at that time fixed at EUR 388.77 and were to start running in November 2005. According to the loan contract, penalty interest of 35% a year would be due in the event of any delay in the payment of those instalments. Under an acceleration clause, if the applicant failed to pay two instalments in a row or to perform other obligations under the contract, the bank could declare the whole outstanding balance of the loan due and enforce it against any security provided by the applicant. In such an event, penalty interest at 35% would run on the outstanding part of the principal and contractual interest. 5.     In October 2008 the bank increased its base rate to 5%, and as a result the rate on the loan increased from 9.9% to 10.9%, and the monthly instalments from EUR 388.77 to EUR 412.74. 6 .     In July 2010 the bank and the applicant drew up an annex amending the loan contract. They agreed, inter alia , that ( a ) the outstanding balance came to EUR 39,460.06, which included capitalised interest; ( b ) the applicant would have a nine-month grace period during which she would only pay 200   Bulgarian levs (BGN) a month; and ( c ) after that, the monthly instalments would go up to EUR 454.36. At the same time, the bank entered into surety contracts with the applicant’s mother and daughter (the latter born in 1992), who both stood surety in respect of the loan. The annex and the surety contracts specified that the flat which the applicant had purchased with the loan (see paragraph 4 above) was the “address for correspondence” for her and her mother and daughter. 7 .     It seems that in late 2012 the applicant stopped repaying her loan regularly. THE PAYMENT ORDER AGAINST THE APPLICANT 8 .     In October 2014 the bank applied to the Sofia District Court for a payment order (see paragraphs 48 and 51 below) against both the applicant and her mother and daughter (who had stood surety in respect of her loan – see paragraph 6 above). As required by the rules of procedure then in force (see paragraph 53 below), the bank enclosed with its application excerpts from its accounting records attesting to the existence of the applicant’s debt. It also enclosed the loan contract, the 2010 annex to it (see paragraph 6 above), the two surety contracts with the applicant’s mother and daughter (see paragraph 6 in fine above), and notices (sent by post to the applicant and her mother and daughter in September 2014) for payment of the outstanding sums. In the application, the bank gave the address of another flat, where the applicant and her mother and daughter had their permanent address and whose ownership the applicant had transferred to her mother by way of a donation (see paragraphs 46 and 96 below). 9 .     Pursuant to the rules of procedure (see paragraph 51 below), the Sofia District Court examined the bank’s application on the papers and without notice to the applicant, and on 10 February 2015 issued the payment order sought by the bank in respect of the following sums (plus costs): ( a )     EUR 37,279.24 (the outstanding part of the principal of the loan), plus default interest at the statutory rate from 16 October 2014 until settlement; ( b )     EUR 7,059.68 in contractual interest for the period from 28 December 2013 until 15 October 2014; and ( c )     EUR 856.97 in penalty interest for the period from 21 January 2013 until   15 October 2014. 10 .     In accordance with the rules governing payment orders in favour of banks (see paragraph 53 below), at the bank’s request the court directed that the payment order be enforced immediately and issued a writ of execution on its basis. 11 .     Shortly after that, in March 2015, the bank brought enforcement proceedings against the applicant and her mother and daughter. It requested, in particular, that the payment order and the writ of execution issued on its basis be enforced against the flat which the applicant had bought with the bank loan and which she had mortgaged in favour of the bank (see paragraph   4 above). On 31 March 2015 the enforcement agent invited the applicant to pay the sums set out in the payment order and served her with copies of the order and the writ of execution; she also informed the applicant that she had attached the flat. The invitation specified that (a) the current and permanent address of the applicant, her mother and daughter (see paragraphs   95-97 below) was the above-mentioned other flat whose ownership the applicant had transferred to her mother by way of a donation (see paragraph 46 below), and (b) the flat that the applicant had purchased with the bank loan (see paragraph 4 above) was her “alternative address”. LEGAL CHALLENGES AGAINST THE PAYMENT ORDER Examination of those legal challenges 12 .     In objections (see paragraph 56 below) lodged with the Sofia District Court on 15 April 2015, the applicant and her mother and daughter contested the payment order, saying that the underlying debt had not yet fallen due. In the objections, the applicant gave an address different from that of the flat which she had purchased with the bank loan. 13 .     On the same day the applicant (together with her mother and daughter) appealed to the Sofia City Court against the Sofia District Court’s direction that the payment order be enforced immediately (see paragraph 10 above). The applicant argued that the excerpts from the bank’s accounting records enclosed with the bank’s application (see paragraph 8 above) were not, prima facie , valid, as that notion was understood in the relevant case-law, as they had not been signed by bank officers duly authorised to do so. Moreover, the excerpts did not specify how many instalments were in arrears, how many payments had been made (and when), and when the debt had fallen due. It was hence unclear how the bank had calculated the number of days of delay and the contractual and penalty interest that it was claiming. The applicant also argued that the bank had not enclosed with its application documents showing that the entire debt had indeed fallen due; in particular, there was no evidence that the payment notices sent by post in September 2014 (see paragraph 8 in fine above) had actually reached the applicant and her mother and daughter. According to the relevant case-law, only the due delivery of such notice could trigger the acceleration clause in a loan contract (see paragraph   4   in fine above). As required by the rules of procedure, the applicant and her mother and daughter lodged the appeal with the Sofia District Court, which had to forward it to the Sofia City Court (see paragraph   66 below). 14 .     At the same time that they lodged their appeal, the applicant and her mother and daughter requested the Sofia District Court to stay the enforcement of the payment order (see paragraph 60 below). Their request contained the same arguments as those advanced in the appeal. 15 .     On 16 April 2015 (the day after the appeal was lodged) the Sofia District Court instructed the applicant and her mother and daughter to rectify certain omissions. Having received the court’s instructions on 15 May 2015, they did so in an additional filing made on 22 May 2015. On 17 November 2015 the court sent the appeal to the bank, inviting it to make submissions in reply. No further steps were taken in respect of the objection, the appeal or the request for a stay of enforcement, and in December 2015 the applicant and her mother and daughter reiterated their request for a stay of enforcement. 16 .     The Sofia District Court did not react to the repeated request for a stay of enforcement either; so in March and November 2017 the applicant’s mother and daughter lodged two consecutive requests for the setting of a time-limit under Article 255 of the Code of Civil Procedure (the standard acceleratory remedy in respect of the length of civil proceedings in Bulgaria   – see paragraph 89 below) in relation to their request for a stay of enforcement. As required by the rules of procedure, they lodged those requests with the Sofia District Court. That court did not react to the requests – which under the rules of procedure were to be either satisfied by the court itself or forwarded immediately to the Sofia City Court (see paragraph 89 below) – until 5 October 2018, when it directed that the applicant’s mother and daughter be informed of the decisions that it gave on that date. 17 .     On 5 October 2018 the Sofia District Court: ( a )     directed that the bank be notified of the objections lodged by the applicant and her mother and daughter against the payment order (see paragraph 12 above), and invited the bank to apply for a judicial declaration that the applicant and her mother and daughter owed the sums set out in the payment order – failing which the payment order would be rescinded (see paragraph 57 below); ( b )     forwarded the appeal against its direction that the payment order be enforced immediately (see paragraph 13 above) to the Sofia City Court; and ( c )     refused the request for a stay of the enforcement of the payment order (see paragraph 14 above). It noted that the applicant and her mother and daughter had founded that request on arguments, based on the content of the bank’s application and its enclosures, that they did not owe the sum claimed by the bank rather than on “convincing written evidence”, as required by the relevant statutory provision (see paragraph 60 (b) below). The request could not therefore be allowed. Such arguments could only be taken into account by the higher court (the Sofia City Court) when it examined the appeal against the direction that the payment order be enforced immediately (see paragraph   13 above); 18 .     The appeal against the direction that the payment order be enforced immediately was received by the Sofia City Court at the end of January 2019. 19 .     In a final decision given on 25 February 2019 the Sofia City Court quashed that direction, on the basis that the September 2014 payment notices that the bank had sent to the applicant and her mother and daughter (see paragraph 8 in fine above) had not been duly delivered to them. The acceleration clause in the loan contract (see paragraph 4 in fine above) had therefore not been duly triggered, which meant that the debt that the bank had sought to enforce via the payment order had not yet fallen due before the bank had applied for that order. However, according to an interpretative decision given by the Supreme Court of Cassation in June 2014 that was an absolute prerequisite for the issuance of an immediately enforceable payment order and a writ of execution on its basis. Hence, the direction that the payment order was to be enforced immediately was to be quashed, the bank’s application for an immediately enforceable payment order was to be refused, and the writ of execution issued on the basis of the payment order was to be rescinded (see опр. № 4932 от 25.02.2019 г. по в. ч. гр. д. № 1285/2019 г., СГС ). Findings of the inspectorate attached to the Supreme Judicial Council in respect of the unfolding of the proceedings 20 .     Meanwhile, in September 2018 the applicant and her mother and daughter complained of Sofia District Court’s delay in processing their case (see paragraphs 15-17 above) to the inspectorate attached to the Supreme Judicial Council (for details about that authority, see Finger v. Bulgaria , no.   37346/05, §§ 36 and 38, 10 May 2011, and Balakchiev and Others v.   Bulgaria (dec.), no. 65187/10, §§ 18-19, 18 June 2013). They emphasised the serious harm that the delay had caused them (in the light of the unimpeded unfolding of the enforcement proceedings against them – see paragraphs 25 and 30 below), and asked that disciplinary measures be taken against the judge in charge of the case, and that she be directed to process it. 21 .     Having requested information from the Sofia District Court in September 2018, and having obtained that information in late October 2018, in November 2018 the inspectorate attached to the Supreme Judicial Council found the complaint well-founded. It noted, in particular, that the judge in charge of the case had failed for nearly three and a half years to rule on the request for a stay of enforcement of the payment order or to process any of the other filings. The inspectorate went on to note that disciplinary proceedings had already been opened against the judge in 2017 in respect of her failure to process other cases in due time. In July 2019 the judge resigned. PUBLIC SALE OF THE APPLICANT’S FLAT 22 .     Meanwhile, on 22 April 2015 the deputy of the enforcement agent in charge of the enforcement proceedings brought by the bank against the applicant (see paragraph 11 above) inspected the flat which the applicant had bought with the bank loan and had mortgaged in favour of the bank (see paragraph   4 above). In the record of that inspection, she noted, inter alia , that the electricity in the flat had been cut off, that the flat was in need of some repairs (in particular owing to a leak in the bathroom), and that no one was living there at the time of the inspection. Only the applicant’s daughter had been present at the time of the inspection, but she had informed the enforcement agent that she wished to be served with documents at the applicant’s permanent address, which was her permanent address as well (see paragraph 11 in fine above). 23.     An expert report obtained by the enforcement agent later in April 2015 stated that the flat’s market value was BGN 135,000 (EUR 69,024.40). [1] The report repeated the inspection record’s finding that no one lived in the flat at the time of the inspection and that the flat was in need of repairs. 24 .     In November 2015 another creditor of the applicant – a private person who had obtained a writ of execution against her in April 2012 – joined the enforcement proceedings. He had already attached the flat in May 2013 within the context of separate enforcement proceedings against the applicant. 25 .     In May-June and again in July-August 2015 the enforcement agent held two public sales of the flat. No bidders came forward. As a result, in September 2015 she reduced the asking price to BGN 99,200 (EUR   50,720.15), and held a third public sale in October-November 2015. Again, no bidders came forwards. The enforcement agent then reduced the asking price further, to BGN 79,360 (EUR 40,576.12), and held a fourth public sale between 7 December 2015 and 7 January 2016. This time, one bidder made an offer (on the last day of the sale), offering BGN 80,412.50 (EUR 41,114.26) – a bid that was accepted. The following day, 8 January 2016, the enforcement agent declared her the flat’s buyer. Having paid the entire price, on 11 January 2016 the buyer was declared the owner of the flat. 26 .     The applicant was informed of the sale on 14 January 2016; the notice sent by the enforcement agent referred to both the address of the flat and another address – the same that the applicant had given in her objection against the payment order (see paragraph 12 above). The enforcement agent’s decision to transfer title to the flat to its buyer became final on 23 January 2016. 27 .     On 29 January 2016 the enforcement agent distributed the proceeds from the sale. She noted that by that date the applicant owed the bank a total of BGN 102,057.31 (EUR 52,181.07), which broke down as follows: ( a )     BGN 72,911.86 (EUR 37,279.24) in respect of the outstanding part of the principal; ( b )     BGN 9,602.54 (EUR 4,909.70) in default interest on the outstanding part of the principal at the statutory rate for the period from 16 October 2014 until 29 January 2016; ( c )     BGN 13,807.53 (EUR 7,059.68) in contractual interest for the period from 28 December 2013 until 15 October 2014; ( d )     BGN 1,676.08 (EUR 856.97) in penalty interest (in accordance with the writ of execution) for the period from 21 January 2013 until 15 October 2014; and ( e )     outstanding costs incurred by the bank in securing the payment order (BGN 3,623.84) and enforcing it (BGN 435.46). 28 .     Having calculated how the proceeds from the sale of the flat were to be distributed among the bank and those of the applicant’s other creditors who had joined the enforcement proceedings, the enforcement agent found that the bank was to be paid in full the outstanding costs that it had incurred (see paragraph 27 (e) above), and BGN 74,086.36 (EUR 37,879.75) in respect of the outstanding part of the principal, plus interest on the loan (see paragraph 27 (a)-(d) above). The enforcement agent noted that those two sums – combined with the sum allocated for her own fees (BGN 3,614.71), the costs advanced by the other creditor who had joined the enforcement proceedings (BGN 108) and local tax on the flat, plus default interest on it (BGN 2,167.97) – depleted the proceeds from the sale. 29 .     In all the documents that she issued in 2015-16, the enforcement agent specified that the other flat whose ownership the applicant had transferred to her mother (see paragraph 46 below) was her permanent and current address (and the permanent and current address of her mother and daughter as well). In some of those documents, the enforcement agent gave the address of the flat that the applicant had purchased with the bank loan as the applicant’s “address for correspondence”. In practice, all correspondence between the applicant and the enforcement agent passed through the applicant’s lawyer throughout the time of the events in question. FURTHER COURSE OF THE ENFORCEMENT PROCEEDINGS 30 .     At the bank’s request, in November 2016 the enforcement proceedings were transferred to another enforcement agent. Between December 2016 and December 2018 he was engaged in enforcing the remainder of the sums due under the payment order against the salary of the applicant’s daughter and the pension of the applicant’s mother. 31 .     Having been notified of the decision of the Sofia City Court in February 2019 to rescind the writ of execution (see paragraph 19 above), in April 2019 the enforcement agent terminated the enforcement proceedings. JUDICIAL-DECLARATION PROCEEDINGS BROUGHT BY THE BANK AGAINST THE APPLICANT 32 .     Meanwhile, in November 2018 the bank, having been notified of the applicant’s and her mother’s and daughter’s objections to the payment order in October 2018 (see paragraphs 12 and 17 (a) above), applied for a judicial declaration (see paragraph 57 below) that they owed it the sums set out in the payment order (see paragraph 9 (a)-(c) above). 33 .     In reply to the bank’s application, the applicant argued, inter alia , that   (a) those sums had not yet fallen due because the bank had not duly invited her to pay them, and (b) the clauses in the loan and the 2010 annex thereto (see paragraphs 4 and 6 above) which set out the manner in which contractual and penalty interest were to be calculated were unfair terms that were void under the consumer-protection legislation. 34 .     In July 2020 the Sofia City Court made a judicial declaration that the applicant and her two sureties jointly owed the bank: ( a )     EUR 33,491.62 in respect of the unpaid part of the principal, plus default interest at the statutory rate running from 16 October 2014 until the date of settlement; ( b )     EUR 2,751.20 in contractual interest for the period from 28 December 2013 until 15 October 2014; and ( c )     EUR 793.33 in penalty interest for the period from 21 January 2013 until   15 October 2014. 35 .     The court dismissed the remainder of the bank’s claim: EUR 3,787.62 in respect of the unpaid part of the principal, EUR 4,308.48 in unpaid contractual interest, and EUR 63.64 in penalty interest. 36 .     The court noted that by January 2019 the enforcement proceedings against the applicant had yielded EUR 26,320.79. As in its February 2019 decision in respect of the applicant’s appeal against the direction that the payment order be enforced immediately (see paragraph 19 above), it found that the bank had not duly invited the applicant to pay her debt before it had applied for a payment order, and had thus not duly triggered the acceleration clause in the loan contract. Thus, only the serving of the application for a judicial declaration on the applicant in March 2019 could be seen as an invitation to pay activating that acceleration clause and rendering the entire debt to the bank due. The court also found that the clause in the loan contract allowing the bank unilaterally to alter the contractual interest rate (see paragraph 4 above) constituted an unfair term, which was accordingly void under the consumer-protection legislation, and that the loan’s outstanding balance was hence to be calculated in line with the initial contractual interest rate (9.9%). However, the court came to the opposite conclusion with respect to the penalty-interest clauses: although they provided for an interest rate of   35%, and interest on interest, those clauses were valid, since the rate could still be seen as fair and not excessive, and since the two types of interest (contractual and penalty) served different purposes. By contrast, the capitalisation clause in the 2010 annex (see paragraph 6 (a) above) was void, as the law did not permit the capitalisation of interest. The capitalised sum of EUR 3,204.32 was hence not to be included in the applicant’s debt. In the light of all those factors, and the evidence presented to the court, the outstanding debt of the applicant came to EUR 33,491.62 in respect of the unpaid part of the principal, EUR 2,751.20 in contractual interest, and EUR   793.33 in penalty interest (see реш. № 4461 от 22.07.2020 г. по гр.   д.   № 15707/2018 г., СГС ). 37 .     The applicant and her mother and daughter appealed. They challenged, inter alia , the court’s ruling on the penalty-interest clauses. 38 .     In April 2021 the Sofia Court of Appeal partly quashed the lower court’s judgment and declared that the applicant owed the bank (a)   EUR   21,118.47 in respect of the unpaid part of the principal, and (b)   EUR   231.30 in penalty interest. The court did not alter the lower court’s declaration regarding contractual interest (see paragraph 34 (b) above), with the result that the total sum of the applicant’s judicially-acknowledged debt came to EUR   24,100.97. 39 .     The court held, inter alia , that the penalty-interest clauses (see paragraphs 4 and 36 above) constituted unfair terms that were void under the consumer-protection legislation, as they provided for an excessive interest rate, and that only the portion of the debt that had already fallen due by the conclusion of the oral arguments presented before it was to be included in the judicial declaration sought by the bank (see реш. № 351 от 09.04.2021 г. по гр. д. № 4234/2020 г., САС ). 40 .     The bank appealed on points of law, but on 3 February 2022 the Supreme Court of Cassation refused to admit its appeal for examination (see опр. № 75 от 03.02.2022 г. по гр. д. № 2929/2021 г., ВКС, III г. о. ). REVERSE WRITS OF EXECUTION SOUGHT BY THE APPLICANT’S MOTHER AND DAUGHTER 41 .     In June 2022, about four months after the conclusion of the judicial ‑ declaration proceedings in February 2022 (see paragraph 40 above), the applicant’s mother and daughter applied to the Sofia District Court for reverse writs of execution – see paragraphs 58 and 78 below) against the bank in respect of the sums that it had allegedly obtained unduly as a result of the enforcement of the payment order against them (see paragraph 30 above). 42 .     In October 2022 the Sofia District Court allowed the application, ordering the bank to repay the applicant’s daughter BGN 6,503.79 (EUR   3,325.34) and the applicant’s mother BGN 614.63 (EUR 314.26). The court noted that the enforcement proceedings had yielded a total of BGN   102,844.70 (EUR 52,583.66). BGN 91,185.65 (EUR 46,622.48) of that sum had gone to the bank. The juxtaposition of that sum with the judicially ‑ acknowledged debt payable to the bank by the applicant and (as her sureties) her mother and daughter showed that the latter had overpaid, respectively, BGN 6,503.79 and BGN 614.63. They were hence entitled to reverse writs of execution in respect of those sums (see разп. № 20061673 от 12.10.2022 г. по гр. д. № 56122/2022 г., СРС ). 43 .     The bank appealed, arguing, inter alia , that (a) the Sofia District Court had not had the authority to issue the reverse writs of execution, and (b) such a writ could only be issued if the sum whose repayment was being sought by the debtor was not at all due rather than just simply judicially recognised as having not yet fallen due. 44 .     In May 2023 the Sofia City Court allowed the appeal on ground (a) and rescinded the reverse writs of execution. It noted that the only court with jurisdiction to issue those writs was the court that had dismissed, either wholly or in part, the creditor’s application for a judicial declaration rather than the court that had issued the initial payment order. The application for reverse writs of execution was therefore to be sent for examination to the appropriate formation of the Sofia City Court (see опр. № 5667 от   09.05.2023 г. по в. ч. гр. д. № 2011/2023 г., СГС ). 45 .     According to the latest information received from the parties on the point (on 10 October 2023), those proceedings before the Sofia City Court are still pending. EVIDENCE ABOUT THE APPLICANT’S PLACE OF ABODE 46 .     The applicant’s permanent address (see paragraphs 95-97 below) is that of another flat, which she fully owned until 2005, when she transferred half of its ownership to her mother by way of a donation. In April 2012 the applicant transferred to her mother the second half of that flat as well. In the application for a loan (see paragraph 4 above), that she submitted to the bank in June 2005, the applicant specified that she had lived in that other flat since 1996. 47 .     The applicant submitted to the Court email correspondence with owners of property in unspecified locations relating to reservations that she had made via Airbnb for 8-15 and 24-26 April 2016 and the extension of the second of those reservations for a few more days. RELEVANT LEGAL FRAMEWORK PAYMENT ORDERS (Re-)introduction of the procedure in Bulgaria 48 .     The payment-order procedure ( заповедно производство ), which had existed in Bulgarian law between 1898 and 1951, was reintroduced with the enactment of the 2007 Code of Civil Procedure, which came into force in March 2008. It is governed by Articles 410-25 of that Code. [2] 49 .     The explanatory notes to the 2006 government bill (no. 602-01-38) that led to the enactment of the Code stated, inter alia , that the payment-order procedure would guarantee the equal protection of the interests of debtors and creditors. It does not appear that the specific parameters of the procedure – in particular as regards immediately enforceable payment orders issued in favour of banks – were touched upon during the deliberations on the bill by Parliament’s Legal Affairs Committee, which were held before the first plenary reading. The Committee’s report did not dwell on the point either. During the bill’s first plenary reading in August 2006, several members of parliament made remarks about the usefulness a