DINCHEV v. BULGARIA
Inadmissible
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Veselin Angelov Dinchev, is a Bulgarian national, who was born in 1952 and lives in Sofia. He was represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimitrova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant brought civil proceedings against his former employer, claiming that he had been dismissed unlawfully. He asked to be reinstated and sought damages of over 11,000 Bulgarian levs (BGN corresponding to about EUR 5,500). His claim was rejected at first instance by the Sofia District Court, but granted almost in its entirety on appeal by the Sofia City Court on 17 March 2005. 5. The other party, his former employer, a company, appealed in cassation in May 2005. The applicant submitted a written response to the cassation appeal. His response was dated 21 July 2005; it was received at the Sofia City Court on 25 July 2005. The file was then sent by the Sofia City Court to the Supreme Court of Cassation (“the SCC”) for examination. The SCC gave the file a number in September 2005 and scheduled a hearing for 9 December 2008. 6. In the meantime, a new Code of Civil Procedure was adopted in July 2007, a major part of which was to enter into force on 1 March 2008. According to paragraph 2 (4) of the Code’s Transitional and Concluding Provisions, all labour disputes pending before the SCC and in which a hearing had been scheduled for later than 30 June 2008 had to be transferred to “the appropriate court of appeal”. 7. On 7 August 2007 the SCC terminated the proceedings before it and sent the case to the Sofia Court of Appeal (“SCA”) for information and action. The applicant was not informed of the transfer of the case to the SCA and the applicant’s written response to the cassation appeal of his former employer was not transmitted to the SCA. 8. On 6 and 19 February 2008 the SCA sent two letters to the other party, the applicant’s former employer, informing the company that the proceedings in the case it had brought would be terminated if it failed to pay the requisite court fee. The company replied on 5 March 2008 that it had paid the fee. 9. The SCA scheduled a hearing for 27 May 2008. It notified the parties of the hearing via publication in the State Gazette, in accordance with the applicable legal provision (see paragraph 13 below). The record of the hearing showed that the SCA had noted that the parties had been regularly notified and had not sent representatives, and also that the case was ready for decision. 10. The SCA examined the company’s cassation appeal on the merits. It delivered a final judgment on 23 July 2008, quashing the decision of the Sofia City Court which had upheld the applicant’s claim. The SCA noted in its judgment that the applicant had made no submissions in respect of the arguments and claims put forward in the cassation appeal. The court then observed that, taking into account the submissions of the company and the available information in the case file, the company’s counterclaims against the applicant were justified. The SCA found in favour of the applicant’s former employer. 11. The applicant only learned about this decision in November 2008 when he inquired at the SCC’s registry about the date of the hearing in his case before the SCC, as he had repeatedly done on previous occasions in 2006 and 2007. Until then he believed the hearing was going to take place on 9 December 2008 as scheduled and as the SCC’s website continued to indicate at the time. 12. A new Code of Civil Procedure (“the 2007 Code”) was adopted in July 2007 and the larger part of it entered in force on 1 March 2008. According to paragraph 2 (5) of the Code’s Transitional and Concluding Provisions, cassation appeals in labour disputes concerning unlawful dismissals, which were pending before the SCC and in which a hearing had been scheduled for a date subsequent to 30 June 2008, had to be transferred to “the competent court of appeal”. 13. Article 218d of the Code of Civil Procedure 1952 (“the 1952 Code”), in force until 1 March 2008, provided that before the end of each month the SCC should publish in the State Gazette the dates on which it would hold hearings and the cases to be heard during the following month. The second sentence in that provision stated that “when the circumstances so required, the parties received notice of the hearing”. This was reproduced in Article 289 of the 2007 Code. 14. The general rules for summoning to court hearings can be found in Article 41 to Article 52 of the 1952 Code and in Article 37 to Article 55 of the 2007 Code. Those stipulate, inter alia, that a court notice or a summons has to be delivered in person or via an intermediary, by a court clerk or by registered mail, at the address given in the case. 15. Article 303 of the 2007 Code provides that an interested party can request the reopening of civil proceedings which have ended with a decision which has acquired res judicata. Requests for reopening are examined by the SCC (Article 234, the 2007 Code). Reopening can be requested within three months as from the moment in which a party became aware of the facts that would serve as a ground for the reopening (Article 305, the 2007 Code). Reopening in such cases can be requested on the basis of specific grounds, which are exhaustively listed in the 2007 Code. 16. Article 303 § 1(5) of the 2007 Code (and before that Article 231 § 1e of the 1952 Code) stipulates in particular that a party to a case can seek reopening when in breach of the relevant rules the party has been deprived of the opportunity to take part in the proceedings and has not been adequately represented, or when the party could not appear in person or be represented before the court for reasons beyond that party’s control. 17. In an interpretative decision, delivered by a plenary of the court and binding all courts, the SCC clarified in 2004 the type of circumstances necessitating a departure from the special procedure for summoning to a cassation hearing (тълк. реш. № 2 от 2.07.2004 г. по тълк. гр. д. № 2/2004). It held that failure in such cases to summon the parties in accordance with the general rules for summoning (see paragraph 14 above for those rules) could be a ground for allowing reopening of the proceedings. Such circumstances include the rescheduling of a hearing for a new date, despite the initial summoning to a different date having been fully in compliance with the legal requirements. In another interpretative decision of 2017 the SCC further clarified that the party seeking reopening of the proceedings is allowed to submit evidence before the SCC in support of his or her claim that the circumstances justified reopening (тълк. реш. № 7 от 31.07.2017 г. по т. д. № 7/2014, ОСГТК). 18. The SCC has allowed requests for reopening on the above-indicated grounds in a number of decisions (see, among many others, реш. № 10 от 9.02.2010 на ВКС по гр. д. № 973/2009 г., ГК; реш. № 689 от 30.12.2010 на ВКС по гр. д. № 1731/2009 г., ГК; реш. № 329 от 10.10.2012 на ВКС по гр. д. № 289/2012 г., ГК; реш. № 338 от 27.12.2013 на ВКС по гр. д. № 5550/2013 г., ГК), including in comparable circumstances to those of the applicant in the present case (реш. № 480 от 1.10.2009 на ВКС по гр. д. № 2194/2008 г.). In two other decisions in cases with similar circumstances to those of the applicant, different formations of the SCC found that there were no grounds for reopening in the specific circumstances of these cases and did not allow it (see реш. № 500 от 7.10.2009 по гр. д. № 4318/2008, II ГК; реш. № 798 от 28.10.2009 по гр. д. № 3714/2008, IV ГК).