AS TO THE ADMISSIBILITY OF
by Todorka Kostadinova SLAVCHEVA
The European Court of Human Rights (Fifth Section), sitting on 8 December 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 4 April 2009,
Having deliberated, decides as follows:
The applicant, Mrs Todorka Kostadinova Slavcheva, is a Bulgarian national who was born in 1957 and lives in Haskovo.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant’s father owned a plot of land of 13,000 square metres in the area around Burgas, which was expropriated after 1945.
In 1992, following the adoption of legislation providing for the restoration of titles to certain types of expropriated property, the applicant sought the restitution of the land. In 2002 her claim was only allowed in respect of 3,200 square metres of the plot as the authorities found that in respect of the remaining 9,800 square metres the applicant’s father had soon after the expropriation been compensated with other land.
On an unspecified date in 2006 the applicant brought a rei vindicatio action against the Burgas municipality, claiming that the latter was unlawfully in possession of the 9,800 square metres of land in respect of which restitution had been refused. The applicant alleged that her rights to the property at issue had been restored ex lege by virtue of the denationalisation legislation.
In a judgment of 3 January 2008 the Burgas District Court dismissed the claim, finding that the applicant’s rights had not been restored ex lege as her father had, at the relevant time, received compensation for the lands at issue. On 26 June 2008 the Burgas Regional Court upheld that judgment.
On 31 July 2008 the applicant appealed in cassation. As she had failed to justify her appeal in view of the requirements of Article 280 § 1 of the Code of Civil Procedure 2007 (see Relevant domestic law below), she was instructed to do so by a judge of the Burgas Regional Court.
Within the time-limit given, the applicant submitted a written statement concerning the grounds for cassation under Article 281 of the Code of Civil Procedure, and not the admissibility criteria under Article 280 § 1. Finding that she had failed to comply with the aforementioned instructions, on 17 September 2008 the Burgas Regional Court discontinued the proceedings. On an appeal by the applicant, on 24 November 2008 that decision was upheld by the Supreme Court of Cassation, which confirmed the lower court’s conclusion that she had failed to comply with the relevant procedural requirements.
B. Relevant domestic law and practice
The Code of Civil Procedure, adopted in July 2007 and in force since 1 March 2008, introduced new requirements for the admissibility of cassation appeals.
Pursuant to Article 280 § 1 of the Code, as worded initially, the Supreme Court of Cassation was competent to examine cases where the court of appeal has ruled upon “a material question of law or procedure”, and where, in addition, one of the following three situations has occurred: (a) the question has been decided not in conformity with the practice of the Supreme Court of Cassation; (b) there have been conflicting decisions of the national courts; and (c) the question is of importance for the accurate application of the relevant law or for the development of the law.
In a decision of 16 June 2009 the Bulgarian Constitutional Court found that these new requirements for the admissibility of cassation appeals did not, in principle, run contrary to the right to access to a court, as guaranteed in Article 122 § 1 of the Constitution. Their exact content and meaning would be clarified in judicial practice. However, the Constitutional Court found that the requirement of Article 280 § 1 of the Code that the court of appeal must have ruled on “a material question of law or procedure” (see above) unnecessarily restricted the access to cassation and, accordingly, struck down as being anti-constitutional the word “material” (see Decision of the Constitutional Court no. 4 of 16 June 2009, constitutional case no. 4/2009).
The Code of Civil Procedure 2007 further provides that it is incumbent on the party seeking cassation to justify, in view of the requirements of Article 280 § 1, that the cassation appeal merits examination. Failure to put forward arguments in that regard will result in the discontinuation of the proceedings (Articles 284 § 3 and 286 of the Code).
Under the new Code, the grounds for seeking cassation remained the same as those under the Code of Civil Procedure 1952, namely material breaches of law and procedure, nullity and ill-founded conclusions (Article 281 of the new Code).
The applicant complained, relying on Article 1 of Protocol No. 1 to the Convention, that the domestic courts had wrongly found that she was not the owner of the disputed property and had thus wrongly dismissed her rei vindicatio action.
The Court observes that the applicant’s cassation appeal was dismissed as inadmissible because of her failure to comply with the relevant procedural requirements. The Court must examine, therefore, whether she has exhausted all domestic remedies as required by Article 35 § 1 of the Convention.
It reiterates that under the terms of Article 35 § 1 of the Convention it can only deal with a matter after all domestic remedies have been exhausted. The purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Estrikh v. Latvia, no. 73819/01, § 92, 18 January 2007). Article 35 § 1 normally requires also that the complaints intended to be made subsequently at Strasbourg should have been raised before the domestic authorities, in compliance with the formal requirements laid down in domestic law (see Cardot v. France, 19 March 1991, § 34, Series A no. 200).
The Court reiterates that it has always considered that the cassation appeal in Bulgarian civil proceedings, as regulated by the Code of Civil Procedure after 1998, is a remedy which must in principle be used where applicable (see, for example, Vladimirova and Others v. Bulgaria, no. 42617/02, § 24, 26 February 2009). The same was valid in respect of the petition for review (cassation) which existed in Bulgarian law before 1998 (see Raichinov v. Bulgaria (dec.), no. 47579/99, 1 February 2005).
The Court sees no reason to hold otherwise in respect of cassation appeals under the new Code of Civil Procedure of 2007. It notes that despite the more stringent admissibility requirements under Article 280 § 1 of the Code, these appeals remain an accessible remedy, a view also shared by the Bulgarian Constitutional Court (see above, Relevant domestic law and practice). Therefore, in the absence of case-law of the Supreme Court of Cassation indicative of an overly restrictive application of the new requirements the Court considers that cassation under Bulgarian civil law remains capable of remedying alleged violations of the Convention, such as those at issue in the present case. In particular, the cassation court has the power to quash the lower courts’ judgments in all cases of material breach of law or procedure or nullity, or where the lower courts’ conclusions are ill-founded. Cassation under the new Code of Civil Procedure is thus an effective remedy which prospective applicants need to exhaust before referring to the Court.
It follows that the applicant, who alleges that the judgments of the domestic courts disallowing her claim were wrong and arbitrary, had a chance of remedying that situation, had she duly appealed in cassation. However, her cassation appeal did not comply with the formal requirements, namely she failed to substantiate it in view of the admissibility criteria formulated in Article 280 § 1 of the Code of Civil Procedure 2007. The applicant does not dispute the fact that her written statement in reply to the instructions to substantiate her appeal in view of those criteria dealt with the grounds for cassation under Article 281 of the Code only. Therefore, the Court concludes that she failed to duly make use of an effective remedy which was available to her.
It follows that 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
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen