ZAHARIEVA v. BULGARIA
Inadmissible
David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicant, Ms Teodora Dimitrova Zaharieva, is a Bulgarian national, who was born in 1965 and lives in Sofia. She was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3. In 1998 the applicant was diagnosed with breast cancer and underwent surgical removal of her right breast. In the following years she also underwent chemotherapy. 4. In November 2002 the applicant developed a tumour in her left breast, which was also removed, and underwent another course of chemotherapy. 5. This medical treatment was provided to the applicant free of charge by the public health system. 6. In November 2002 the applicant was prescribed a course of hormonal therapy which required the administration, once every twentyeight days, of a medicine whose active component was goserelin. 7. At the relevant time goserelin was on the list of medicines provided by the Ministry of Health free of charge. Between November 2002 and February 2004 the applicant received it regularly free of charge. 8. In March 2004 the applicant was informed that there was a problem with the supply of goserelin. Having received medical advice that interrupting the intake of the product for longer than a month could be dangerous for her health, the applicant had no choice but to purchase it from a pharmacy. She did so in March and April 2004. The price of goserelin for each dose was 480 Bulgarian levs (BGN). 9. Being unable to keep on paying for goserelin each month, in July 2004 the applicant, on the advice of her doctor, underwent an alternative treatment in the form of radiocastration, which resulted in the definitive cessation of her ovarian function. 10. After that the applicant was prescribed another medicine whose active substance was letrozole, to be taken daily for twentyfour months. Letrozole was also on the list of medicines provided free of charge by the Ministry of Health. However, the applicant did not receive the medicine free of charge and had to pay for it. Being unable to afford to pay for a full course of treatment with letrozole – the cost of one package containing forty pills was BGN 360 –, the applicant took it irregularly and in smaller doses than prescribed. 11. In March 2005 metastases in the applicant’s liver were discovered, and she underwent a third course of chemotherapy. 12. In May 2005 the applicant was not provided free of charge with docetaxel, another expensive medicine, although it was necessary for the chemotherapy and also featured on the list of medicines provided by the Ministry of Health free of charge. 13. The applicant repeatedly protested, in letters and complaints addressed to the Ministry of Health and other institutions, about the recurring problems with the supply of medicines for persons suffering from cancer. 14. It appears that in 2006 the applicant continued to experience irregular supplies of free medicines. 15. On 2 February 2005 the applicant brought a claim for damages against the Ministry of Health. She sought BGN 1,280 that she had paid for the medicines that should have been provided to her free of charge and BGN 50,000 in respect of the non-pecuniary damage resulting from the worsening of her health due to the Ministry’s failure to provide those medicines. The statement of claim did not clarify the legal provision on which the claim was based. 16. Between February and April 2005 the Sofia City Court returned the statement of claim to the applicant four times, pointing to various deficiencies in it. In particular, the applicant was requested to describe the specific actions and omissions which had given rise to the alleged damage and to provide more particulars about the damage that she had suffered. 17. The first hearing was held on 23 June 2005. The court dealt with a number of evidential requests by the parties, allowed an increase of the applicant’s claim in respect of nonpecuniary damage, and gave leave to the applicant to specify her claim in respect of pecuniary damage. It also ordered a medical expert report requested by counsel for the applicant, and adjourned the case until 15 December 2005. 18. On 28 June 2005 the applicant specified that she was claiming BGN 1,500 in respect of pecuniary damage and BGN 398,500 in respect of nonpecuniary damage. She also asked the court to bring forward the date of its next hearing. 19. On 15 July 2005 counsel for the Ministry requested the court to put additional questions to the expert. 20. On 19 September 2005 the court admitted the increase of the applicant’s claims, but said that in view of its case load and the amount of evidence that needed to be gathered the date of the next hearing could not be brought forward. 21. The expert filed her report on 9 December 2005. 22. At the hearing on 15 December 2005 the court admitted the report and heard the expert. It went on to admit a number of documents presented by the parties and to hear one witness called by the applicant. The case was adjourned until 9 February 2006. 23. On 18 January 2006 the applicant made written submissions clarifying that her claim was based on section 1 of the State Responsibility for Damage Act 1988 (“the 1988 Act” – see paragraph 40 below). 24. At the hearing on 9 February 2006 the parties made submissions on the evidence. The court also dealt with the applicant’s submissions of 18 January 2006 and instructed her to provide further clarifications. 25. Having received the applicant’s clarifications, on 23 April 2006 the court, sitting in private, noted that the applicant had based her claim on section 1 of the 1988 Act and that therefore its examination had to start afresh because the procedure applicable to claims under that Act, unlike the one applicable to claims under the general law of tort, required the participation of a public prosecutor. 26. At the next hearing, held on 25 May 2006, the examination of the case started afresh. The court took note of the applicant’s earlier submissions concerning the quantum of her claims, instructed the applicant to provide duly certified copies of certain documents that she wanted to adduce, and ordered a medical expert report. It also heard a witness called by the applicant, and adjourned the case until 20 October 2006 to allow further evidence to be gathered. 27. The expert report was ready on 19 May 2006. 28. The last hearing took place on 20 October 2006. 29. The Sofia City Court gave its judgment on 6 November 2006. It awarded the applicant BGN 1,500 in respect of pecuniary damage (the cost of the medicines that she had had to buy herself) and BGN 80,000 in respect of nonpecuniary damage. Applying section 10(2) of the 1988 Act, as worded at that time (see paragraph 44 below), the court ordered the applicant to pay BGN 12,740 (four per cent of BGN 318,500 – the rejected part of her claim in respect of nonpecuniary damage) in court fees. 30. Both parties appealed. The Ministry requested two additional expert reports. 31. On 14 March 2007 the Sofia Court of Appeal admitted certain documents enclosed by the parties with their appeals. It also partly acceded to the Ministry’s request and ordered an additional medical expert report. The report was filed on 24 April 2007. 32. The first hearing before the Sofia Court of Appeal took place on 7 May 2007. The court admitted the medical expert report and heard the experts. Counsel for the Ministry contested parts of the report and requested a fresh report. The court did not accede to that request, but ordered the experts to recheck some of their conclusions in the light of the objections raised by counsel for the Ministry. 33. The experts filed their amended report on 13 June 2007. The court held a hearing on 2 July 2007, at which it admitted the amended report and reheard the experts. It also dealt with some other evidential requests and heard the parties’ closing arguments. 34. The Sofia Court of Appeal gave its judgment on 1 August 2007. It increased the award of nonpecuniary damages to BGN 100,000, plus interest at the legal rate (see paragraph 42 below) running from 2 February 2005, and upheld the remainder of the lower court’s judgment. It noted that as a result of the increase of the quantum of the award, the applicant owed only BGN 11,940 (four per cent of BGN 298,500 – the rejected part of her claim in respect of nonpecuniary damage) in court fees in respect of the firstinstance proceedings. However, the court did not order the applicant to pay any fees in respect of the appellate proceedings. 35. The Sofia City Court and the Sofia Court of Appeal both concluded that the Ministry of Health was liable for the cost of the medicines that the applicant had been forced to buy on the open market and for the nonpecuniary damage suffered by the applicant as a result of the breakdown in the supply of those medicines. The courts found that the Ministry had, in breach of its duties under the applicable statutes and regulations, failed to organise certain public procurement tenders in a timely manner and had, moreover, bought insufficient quantities of certain medicinal products, which had not covered the needs of all cancer patients in Bulgaria. Also, the system of distribution of those products had not been organised efficiently. The courts found that those omissions had been in breach of section 1 of the 1988 Act (see paragraph 40 below), and had resulted in interruptions in the applicant’s treatment requiring recourse to radiocastration, which had had the effect of irreversibly terminating her ovarian function and had, moreover, exposed her to harmful radiation possibly causing tumours. The courts also found that as a result of the Ministry’s omissions the applicant’s chances of overcoming her illness had decreased, that she had suffered lasting feelings of pain and distress, and that she had been negatively affected for the rest of her life. The only difference between their conclusions was that in the view of the Sofia Court of Appeal the extent of the nonpecuniary damage suffered by the applicant was greater. 36. Both parties appealed on points of law. The Supreme Court of Cassation heard the appeals on 14 February 2008. 37. In a final judgment of 20 May 2008 (реш. № 211 от 20 май 2008 г. по гр. д. № 6087/2007 г., ВКС, V г. о.), the Supreme Court of Cassation fully upheld the Sofia Court of Appeal’s judgment. Relying on section 10(2) of the 1988 Act, as worded at that time (see paragraph 44 below), it ordered the applicant to pay BGN 11,940 (four percent of BGN 298,500) in court fees in respect of the cassation proceedings. It did not award any costs to the applicant. The court fully agreed with the Sofia Court of Appeal’s assessment of the failure of the responsible Ministry of Health officials to organise in time the procurement of the medicinal products required for treating the applicant. It also shared the court of appeal’s assessment of the extent of the damage suffered by the applicant. It noted that the court of appeal had omitted to order the applicant to pay fees in respect of the appellate proceedings, but went on to say that this was not an error that could be rectified in cassation proceedings. 38. On 10 and 11 June 2008 the applicant asked the Supreme Court of Cassation to vary its ruling in relation to court fees in the cassation proceedings and to award her costs in respect of those proceedings. In an additional judgment of 12 December 2008 (реш. № 1471 от 12 декември 2008 г. по гр. д. № 6087/2007 г., ВКС, V г. о.), the court, noting that the newly added section 9a(1) of the 1988 Act (see paragraph 45 below) had already taken effect when the applicant had made her request, decided to reduce the fee that the applicant had been ordered to pay in respect of the cassation proceedings from BGN 11,940 to BGN 5. The court turned down the applicant’s request for the award of costs, noting that she had not been legally represented in the cassation proceedings and had not proved that she had incurred any costs. 39. In August 2009 the applicant gave a press interview in which she said, inter alia, that her health had improved. 40. Section 1 of the Act originally called the State Responsibility for Damage Caused to Citizens Act 1988, renamed on 12 July 2006 the State and Municipalities Responsibility for Damage Act 1988 (“the 1988 Act”), provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. 41. Section 8(1) of the Act provides that those seeking redress for damage occasioned in circumstances falling within the scope of the Act have no claim under the general law of tort. The courts have said that the Act is a lex specialis and excludes the application of the general regime (реш. № 1370 от 16 декември 1992 г. по гр. д. № 1181/1992 г., ВС, ІV г. о.; реш. от 29 юли 2002 г. по гр. д. № 169/2002 г., СГС, ГК, ІVб о.). The Supreme Court of Cassation has said (реш. № 738 от 21 ноември 2006 г. по т. д. № 348/06 г., ВКС, I т. о.) that liability under section 1 of the Act is a special case of vicarious liability under section 49 of the Obligations and Contracts Act 1951, which provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. The Bulgarian courts have on occasion examined damages claims against the authorities under section 49 (see the domestic case cited in First Sofia Commodities EOOD and Paragh v. Bulgaria (dec.), no. 14397/04, § 17, 25 January 2011). 42. The legal rate of interest is set by the Council of Ministers (section 86(2) of the Obligations and Contracts Act 1951). In a decree of April 1994 (Постановление № 72 от 8 април 1994 г. за определяне на законната лихва по просрочени задължения в левове и във валута) the Council of Ministers decided that the legal rate of interest for overdue debts in Bulgarian levs would be the base interest rate fixed by the Bulgarian National Bank plus ten percentage points. The same position was maintained, with certain technical modifications, in a new decree that came into force on 1 July 2012 and superseded the 1994 one (Постановление № 100 от 29 май 2012 г. за определяне размера на законната лихва по просрочени задължения в левове и във валута). 43. The general rule in civil proceedings in Bulgaria is that the court fee is payable by the claimant upfront, upon submission of the claim (Article 55 of the Code of Civil Procedure 1952, superseded on 1 March 2008 by Article 73 § 3 of the Code of Civil Procedure 2007, and sections 14 of the State Fees Act 1951). The fee in respect of money claims is four per cent of the amount claimed (point 1 of Tariff No. 1 to the State Fees Act, superseded on 1 March 2008 by section 1 of the Tariff of fees collected by the courts under the Code of Civil Procedure). If the claim succeeds fully or partly, the defendant is ordered to reimburse the claimant’s costs, including court fees, in direct proportion to the successful part of the claim. 44. Under section 10(2) of the 1988 Act, as originally enacted, in proceedings under the Act, no court fees or costs were payable by the claimant upfront, upon submission of the claim. However, if the claim was eventually wholly or partly dismissed, the court was to order the claimant to pay “the court fees and costs due”. The courts construed that provision as meaning that the claimant should pay fees calculated pro rata the dismissed part of the claim. As a result, where a court held that a claim for damages against the State was wellfounded but excessive as to quantum, it ordered the defendant State authority to pay damages to the claimant and at the same time ordered the claimant to pay court fees to the State budget. Where the claimant indicated too high an amount in the statement of claim, the fee could exceed the sum awarded in damages, the overall financial award being in favour of the State despite the finding that the claimant had suffered damage that called for compensation under the Act (реш. № 1095 от 25 юли 2000 г. по гр. д. № 139/2000 г., ВКС, реш. № 805 от 1 август 2005 г. по гр. д. № 56/2004 г., ВКС). There was no provision for judicial discretion and considerations of equity played no role in fixing the fees’ amount; those fees were fixed by reference to the sums indicated in the statement of claim, even if in the course of the proceedings the claimant withdrew part of the claim (тълк. реш. № 3 от 22 април 2004 г. по тълк. гр. д. № 3/2004 г., ВКС, ОСГК, точка 12). 45. Following this Court’s judgment in the case of Stankov v. Bulgaria (no. 68490/01, 12 July 2007), which found that the setup outlined above had, on the facts of the case, resulted in a breach of Article 6 § 1 of the Convention (see a summary of the Court’s findings in paragraph 90 below), the Bulgarian Government laid before Parliament a bill for the amendment of the 1988 Act. Parliament enacted the bill on 17 April 2008 and the amending Act came into force on 30 May 2008. Section 10(2) was changed and now deals solely with costs. Court fees are presently governed by a newly added section 9a(1), which provides that the fee due in respect of cases under the Act is flat and is to be fixed in a tariff adopted by the Government. Under the Tariff of fees collected by the courts under the Code of Civil Procedure, as currently in force, the fee is BGN 10 in respect of firstinstance proceedings, BGN 5 in respect of appellate proceedings, and BGN 5 in respect of cassation proceedings. Unlike the previous arrangement, the fee is payable upfront (опр. № 12420 от 4 октомври 2011 г. по адм. д. № 12302/2011 г., ВАС, III о.). 46. Paragraph 9 of the transitional and concluding provisions of the amending Act provides that the new rule on court fees applies to proceedings which have not been concluded at the time when the new section 9a(1) came into force, and that the fee is charged at the close of the proceedings in each instance. 47. In its caselaw under that paragraph, the Supreme Court of Cassation in some cases held that the new rule on court fees applied not only in respect of fees charged by the cassation court after the rule had come into effect, but also in respect of fees charged by the lower courts before that, as long as the proceedings as a whole were pending at the time when the rule had come into effect (реш. № 974 от 7 ноември 2008 г. по гр. д. № 2980/2007 г., ВКС, I г. о.; опр. № 201 от 28 декември 2009 г. по гр. д. № 3270/2008 г., ВКС, I г. о.; реш. № 54 от 22 февруари 2010 г. по гр. д. № 5217/2007 г., ВКС, I г. о.). In one case the court went as far as to set aside a writ of execution issued in respect of a court fee charged before the new rule had come into force (опр. № 28 от 10 януари 2012 г. по ч. гр. д. № 700/2011 г., ВКС, IV г. о.). 48. However, in other cases the Supreme Court of Cassation held that, since it referred to the close of the proceedings “in each instance”, the new rule could not serve as a basis for reducing the fees charged by the lower courts before it had come into effect (реш. № 158 от 15 април 2009 г. по гр. д. № 6217/2007 г., ВКС, I г. о., реш. № 1410 от 24 април 2009 г. по гр. д. № 4946/2007 г., ВКС, I г. о.). In some cases the court held that the rule did not apply to the fees charged by the lower courts before it had come into effect because it did not have retrospective effect (опр. № 34 от 6 март 2009 г. по гр. д. № 4149/2007 г., ВКС, ІІІ г. о., опр. № 92 от 26 ноември 2008 г. по гр. д. № 4603/2008 г., ВКС, IV г. о.). 49. The text of the provision governing the “complaint about delays” – Article 217a of the Code of Civil Procedure 1952 – has, along with the provisions of the Code of Civil Procedure 2007 that superseded it in March 2008, been set out in paragraphs 43 and 4952 of the Court’s judgment in the case of Finger v. Bulgaria (no. 37346/05, 10 May 2011). 50. Under Article 257 of the Code of Administrative Procedure 2006, which came into force on 12 July 2006, a person may bring proceedings to enjoin an administrative authority to carry out an action that it has the duty to carry out under a legal provision. If the court allows the claim, it enjoins the authority to carry out the action and fixes a timelimit. 51. In late 2007 a cancer patient who had, due to a breakdown of supplies, not been provided with iodine131 for postoperative radiotherapy free of charge, as required under the applicable regulations, brought proceedings under Article 257 to enjoin the Minister of Health to make the product available to the hospital that was treating her. 52. On 28 December 2007 the Sofia City Administrative Court dismissed the claim. On an appeal by the patient, in a decision of 19 May 2008 (опр. № 5756 от 19 май 2008 г. по адм. д. № 2425/2008, ВАС, ІІІ о.) a threemember panel of the Supreme Administrative Court quashed the lower court’s decision, holding that the claim fell within its competence and that it should not have been examined by the lower court. 53. On 18 May 2009 a threemember panel of the Supreme Administrative Court dismissed the claim (реш. № 6428 от 18 май 2009 г. по адм. д. № 12746/2008 г., ВАС, VІ о.). On an appeal by the patient, in a judgment of 8 February 2010 (реш. № 1609 от 8 февруари 2010 г. по адм. д. № 9282/2009 г., ВАС, петчленен състав) a fivemember panel of the Supreme Administrative Court quashed the threemember panel’s judgment and remitted the case. 54. In a judgment of 6 July 2010 (реш. № 9411 от 6 юли 2010 г. по адм. д. № 2062/2010 г., ВАС, VІ о.) the threemember panel to which the case had been remitted allowed the claim and enjoined the Minister to complete within one month the relevant procurement procedures. Having reviewed in considerable detail the applicable constitutional and statutory provisions and regulations, and having examined the Minister’s actions in relation to the procurement of the relevant anticancer products, it found that the patient was entitled to receive iodine131 for her medical treatment and that the Minister was under a legal duty – which he had failed to discharge – to provide it to the hospitals which were treating her. It also noted that, in as much as the claimant was seeking redress in respect of the damage that she had already suffered as a result of the Minister’s omission, she could seek reparation by way of a claim under section 1 of the 1988 Act (see paragraph 40 above). 55. On an appeal by the Minister, in a final judgment of 8 January 2011 (реш. № 859 от 8 януари 2011 г. по адм. д. № 12090/2010 г., ВАС, петчленен състав) a fivemember panel of the Supreme Administrative Court upheld that judgment, fully agreeing with its reasoning. 56. Parallel to those proceedings, the patient also brought a claim for damages under section 1 of the 1988 Act (see paragraph 40 above), and in a judgment of 12 April 2010 (реш. № 885 от 12 април 2010 г. по адм. д. № 4149/2007 г., АССГ, ІІ о., 26 състав), the Sofia Administrative Court awarded her BGN 100,000 in nonpecuniary damages. On an appeal by the Minister of Health, on 11 January 2011 the Supreme Administrative Court upheld that judgment (реш. № 348 от 11 януари 2011 г. по адм. д. № 8399/2010 г., ВАС, ІІІ о.).