AS TO THE ADMISSIBILITY OF
by Liliana Veselinova TOSHEVA
The European Court of Human Rights (Fifth Section), sitting on 15 January 2008 as a Chamber composed of:
Having regard to the above application lodged on 9 September 2003,
Having deliberated, decides as follows:
The applicant, Ms Liliana Veselinova Tosheva, is a Bulgarian national who was born in 1943 and lives in Lesidren.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1989 the applicant’s husband entered into a contract with his father undertaking to provide care and financial support in exchange of title to his father’s apartment. The father died in April 1990.
On 20 August 1990 the sister of the applicant’s husband brought an action against him for a declaration that the contract and the ensuing transfer of title was null and void. The applicant joined the proceedings not later than 1991. On 23 December 1991 the Sofia District Court rescinded the contract in respect of half of the real estate.
The applicant appealed. In a judgment of 3 January 1994 the Sofia City Court quashed the lower court’s judgment and referred the case back to the Sofia District Court.
It appears that between May 1994 and April 2000 twenty-six hearings were held and at least two expert reports were prepared. Several witnesses were questioned in order to establish whether the applicant’s husband lived with his father during a certain period relevant for the case.
On ten occasions the reason for the adjournment was that the parties were not duly summoned.
In a judgment of 14 April 2000 the Sofia District Court rescinded the contract.
The applicant and her husband appealed. In a judgment of 12 November 2001 the Sofia City Court quashed the lower court’s judgment in respect of half of the real estate.
The applicant’s husband appealed before the Supreme Court of Cassation. According to the applicant, she was unable to attend the hearing held on 29 January 2003 as shortly before that she was attacked and suffered injuries.
In a judgment of 10 March 2003 the Supreme Court of Cassation annulled the lower court’s judgment and terminated the proceedings holding that the plaintiff had no standing. In that judgment the Supreme Court of Cassation mentioned that the applicant had not submitted observations.
On an unspecified date the court clerk responsible for serving summonses allegedly battered the applicant, her husband and daughter. The police and prosecution authorities allegedly did not reply to the applicant’s complaints.
Also, the applicant was allegedly systematically attacked and received numerous threats to her life. Apparently, she failed to file complaints in that regard.
On an unspecified date a search and seizure were allegedly conducted in the applicant’s home, without a warrant.
B. Relevant domestic law
In principle, in cases where an action was brought by several plaintiffs or against several defendants concerning disputes about their common rights or obligations or rights and obligations arising out of the same facts, each party to the proceedings acts independently of the others and motions by one of the parties does not affect the others (Articles 171 and 172 § 1 of the Code of Civil Procedure). However, in certain cases, where a party whose interest in a lawsuit is such that a judgment cannot be issued without affecting that interest (“necessary party”), the final judgment determines that party’s rights whether or not it took part in the proceedings. In such cases procedural motions by one of the necessary parties have effect for the other necessary parties too (Article 172 § 2 of the Code). A necessary party which did not join the proceedings may request the annulment of the final judgment (Article 233 § 2 of Code of Civil Procedure).
The Supreme Court has clarified that spouses are necessary parties to disputes concerning common marital property, which includes items acquired during the marriage (Постановление № 2 от 29.09.1977 г. по гр. д. №1/1977, Пленум на ВС; Решение по гр. д. № 420/2000 г., V отд. на ВКС). The courts are under an obligation to summon ex officio the necessary parties in proceedings concerning common marital property (see Решение № 969 от 24.11.1982 г. по гр. д. № 861/1982 г., III г.о. ВС).
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
In the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that the abovementioned complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
It follows that the remainder of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of the civil proceedings;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer