TSENOV v. BULGARIA
Inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Tseno Hristov Tsenov, is a Bulgarian national who was born in 1941 and lives in Sofia. He was represented before the Court by Mr K. Mihalkov, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Dimova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 June 2002 the applicant brought an action against his brother before the Botevgrad District Court. He contended that he and his brother were co-owners of a plot of land and a house in Botevgrad. As his brother possessed the land and the house, the applicant sought the division of the property and compensation. On 12 June 2002 Judge T. of the Botevgrad District Court instructed the applicant to indicate the manner in which he had acquired ownership of the property at issue and to present a plan of it and a tax valuation report. On 28 June 2002 the Botevgrad District Court issued a certificate authorising the applicant to receive a certified copy of the plan of the property from the local municipality. In reply to Judge T.’s instructions of 12 June 2002, on 8 July 2002 the applicant explained in writing that he and his brother had inherited the property from their parents. His father had died in 1963. In 1969 his mother had transferred the title of the property to his brother but in the applicant’s view this contract had been null and void because his mother had not been the sole owner. In 2001 the applicant’s brother had conveyed the title of the property to his son, the applicant’s nephew. In addition to his initial claims for division and for compensation, the applicant requested that the 2001 contract whereby the property at issue had been acquired by his nephew be declared null and void. The applicant enclosed with the statement of 8 July 2002 a photocopy of a plan of the property issued on 1 April 2002, and a photocopy of a tax valuation report. In another statement, also dated 8 July 2002, the applicant requested the Botevgrad District Court to provide him with a certificate authorising him to obtain a certified copy of the plan and the original tax valuation report of the property from the local municipality. On 8 July 2002 Judge T. issued new instructions to the applicant to further clarify his claims. She decided not to issue any decision in respect of the applicant’s request for a court certificate until those clarifications were provided. In written statements of 19 and 25 July 2002 the applicant made the necessary clarifications in respect of his claims. In an additional statement of 29 July 2002 he requested that the District Court examine solely his claim concerning the nullity of the 2001 donation contract and withdrew the remaining claims. He urged the court to examine that claim, pointing out that the documents he had submitted contained all the relevant information. On 2 September 2002 Judge T. made a handwritten note on the applicant’s statement of 25 July 2002 with instructions to the Botevgrad District Court’s registry to issue a certificate in respect of the plan of the property. At the same time, she instructed the applicant to provide a certified original copy of the plan and an original tax valuation report. The applicant failed to comply with those instructions. On 16 October 2002 Judge T. adopted a decision whereby the proceedings were discontinued since the applicant’s statement of claim had not been completed with the necessary documents. The applicant appealed. He argued that he had been unable to obtain a certified copy of the plan and an original tax valuation report of the property. On 19 December 2002 the Sofia Regional Court upheld the decision to discontinue the proceedings. Following a further appeal by the applicant, in a final decision of 19 May 2003 the Supreme Court of Cassation upheld the lower courts’ decisions. It pointed out that the plan had been necessary in order to identify the property exactly, and the tax valuation report in order to calculate the court fee due. Since the applicant had failed to provide these documents, the proceedings had rightly been discontinued. Articles 98 and 99 of the Bulgarian Code of Civil Procedure 1952, in force at the relevant time, set out the procedural requirements for the validity of statements of claim. In particular, Article 98 § 2 specified that all relevant written evidence had to be submitted with the statement of claim. Article 100 §§ 1 and 2 of the Code provided that where a statement of claim did not comply with the said requirements, the plaintiff was to be instructed to rectify the deficiencies, including to submit any relevant documents. In the event of failure to do so, by a decision of the respective court the statement of claim and the documents submitted were to be returned to the plaintiff and the proceedings discontinued. That decision was subject to appeal. By Article 148 of the Code, the courts could issue certificates to be used by the parties to obtain documents from other state institutions. For certain types of civil claims, such as claims for division of property or claims for the nullification of contracts concerning real property, court fees are determined as a percentage of the value of the property at issue, calculated on the basis of its tax valuation. Property plans and tax valuation reports are official documents issued by local municipalities. There is no statutory limitation in time for seeking that a contract be declared null and void.