TSVETKOV v. BULGARIA
Inadmissible
Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
The applicant, Mr Ivan Krastev Tsvetkov, is a Bulgarian national who was born in 1939 and lives in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs R. Nikolova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 15 November 1997 the applicant entered into a preliminary contract under which a Mr K.N. undertook to sell to the applicant a plot of land. Shortly afterwards, K.N. died. On 17 November 1998 the applicant brought an action against K.N.’s heirs before the Sofia District Court, requesting the court to declare the contract final. In these proceedings the applicant argued that K.N. could have sold the land as he had obtained it through adverse possession. The defendants contested the claim, stating that the land had belonged to their father, a son of K.N., who had died before K.N. and who had purchased the plot in 1969. The court held a number of hearings in which the applicant participated without counsel. By a judgment of 19 May 2000 the District Court dismissed the action, finding that the preliminary contract had been null and void ab initio as it had not determined with sufficient precision the boundaries of the disputed plot of land. On an unspecified date the applicant filed an appeal with the Sofia Regional Court. The court held several hearings. At the hearing of 7 February 2002 the applicant failed to appear. According to the record from the hearing, the court accepted a request, filed by the applicant’s representative, for additional evidence to be obtained. By a judgment of 9 July 2002 the Regional Court upheld the lower court’s judgment. On 5 December 2002 the applicant filed a cassation appeal, presenting once again his arguments, namely that the preliminary contract had been valid as the plot had been identifiable and that K.N. had acquired it through adverse possession. The defendants made submissions in reply, which were accessible to the applicant. The hearing before the Supreme Court of Cassation was listed for 18 February 2004. On 16 February 2004 the applicant requested the adjournment of the hearing on the ground of ongoing health problems. In support he presented a medical certificate. At the hearing on 18 February 2004 the defendants objected to the applicant’s request for adjournment. They stated that the applicant had counsel who could represent him. Following deliberations, the court found that the applicant: “... had had counsel in the proceedings before the second-instance court as evident from the legal representation contract [between him and] P.V. [The latter] was authorised to represent the [applicant] at all levels of the court proceedings ...” The court therefore found that the conditions for adjournment set out in Article 107 § 2 of the Code of Civil Procedure had not been met and proceeded with the hearing. At the hearing the defendants requested that the cassation appeal be dismissed on the grounds already set out in their written submissions in reply to the cassation appeal. By a judgment of 27 February 2004 the Supreme Court of Cassation dismissed the appeal. The court examined the arguments of the parties and agreed with the applicant that the preliminary contract had been valid. It found, however, that K.N. had never obtained title to the plot. The applicant has submitted a declaration by P.V. to the effect that he never acted as counsel for the applicant in the proceedings at issue. At the material time the relevant court was under a duty to adjourn a hearing in the event that a party and his representative were not able to attend due to an impediment which the party could not have removed (Article 107 § 2 of the Code of Civil Procedure 1952). This provision was reproduced verbatim in the new Code of Civil Procedure 2007 (Article 142 § 2). At the material time the cassation appeal was to be submitted to the relevant Court of Appeal which was under a duty to send a copy to the other party. The other party was then entitled to submit, within fourteen days, submissions in reply to the cassation appeal. On expiration of this period, the Court of Appeal was duty-bound to send both the cassation appeal and the reply to the Supreme Court of Cassation, which would then examine the case in an open hearing (Article 218в § 1 in relation to Articles 218г and 218e of the Code of Civil Procedure 1952). The Code of Civil Procedure 2007 introduced new requirements and procedure for the admissibility of cassation appeals.