CASE OF NESHEV v. BULGARIA
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award
Georg Ress
8. The applicant was born in 1953 and lives in Plovdiv. He used to work as a shunter at the Bulgarian State Railways. On 15 August 1995 he was dismissed from his work for having breached disciplinary regulations. 9. On 5 February 1996 the applicant filed with the Plovdiv District Court an action for wrongful dismissal against his former employer. 10. On 12 March 1996 the District Court heard the applicant and his lawyer and rejected the case, ruling that the applicant’s dismissal was not amenable to judicial review. It based its decision on section 9(3) of the Decree No. 9 of 6 January 1981 and the Supreme Court’s practice, according to which employees of the State Railways dismissed for breach of disciplinary regulations could only appeal to a higher administrative body, not to a court. 11. On 18 March 1996 the applicant appealed to the Plovdiv Regional Court against the District Court’s decision. He argued that Decree No. 9 was contrary to Article 6 of the Convention. He also relied on an amendment to the Labour Code of 1993, stating that it vested with the courts power to examine all appeals for wrongful dismissal, despite the provisions of Decree No. 9. 12. By decision bearing the date 8 April 1996 the Regional Court, sitting in private, dismissed the applicant’s appeal, holding that in accordance with Decree No. 9 a judicial appeal against the applicant’s dismissal was not possible. 13. The Regional Court’s decision was not pronounced publicly and was not served. 14. On 4 June 1996 the case file was transmitted by the judge-rapporteur to the Regional Court’s clerical staff which made an entry in the court’s register. 15. On 5 June 1996 the case file was transmitted to the District Court and an entry was made in its register. 16. On 13 June 1996 the applicant submitted a petition for review (преглед по реда на надзора) to the Supreme Administrative Court. 17. The parties were summoned for a hearing but none of them appeared. 18. On 18 July 1997, sitting in private, the Supreme Administrative Court rejected the petition for review as time barred. It held that the Regional Court’s decision had entered into force on 8 April 1996 and that the two months’ time-limit for submission of a petition for review had expired on 8 June 1996 whereas the petition had been submitted on 13 June 1996. 19. At the relevant time, in accordance with Decree No. 9 of 6 January 1981, employees of the State Railways were subject to a special legal regime. They had ranks, wore uniforms and were subject to strict hierarchy and discipline, under the control of the Ministry of Transport. Decree No. 9 set out the special rules governing service in the State Railways. The Labour Code had subsidiary application. 20. Section 9 of the Decree, as in force at the relevant time and until February 1997, provided, inter alia, that disputes about wrongful dismissal of employees of the State Railways were amenable to review by the higher administrative authority only. As a result, until August 1996 the courts’ practice was to reject actions for wrongful dismissal of railways’ employees. 21. In a judgment of 19 August 1996 the Supreme Administrative Court, departing from earlier practice, held that the prohibition of judicial review under Decree No. 9 was to be considered abandoned since 1 March 1993, the date on which an amendment to the Labour Code had entered into force (опр. no. 641 от 19.8.1996 г., Бюлетин на ВС, кн. 10-1996 г., стр. 17). 22. The relevant part of section 9 of Decree No. 9 was eventually repealed by the Constitutional Court by decision of 18 February 1997 as unconstitutional and contrary to Article 6 of the Convention. The Constitutional Court held that dismissal from work could not be excluded from the jurisdiction of the courts, regard being had to the fact that the right to work is one of the fundamental constitutional rights (реш. no. 5 от 18.2.1997 по конст. дело no. 25/96 г. на КС на РБ, Държавен вестник, бр. 20/97). 23. In November 2000 the remainder of Decree No. 9 was repealed and the special legal regime of State Railways employees abandoned. 24. Under the Code of Civil Procedure as in force at the relevant time, service was required only in respect of judgments and certain types of procedural decisions issued by a first level of jurisdiction. 25. Judgments or decisions delivered by a court acting as a second level jurisdiction were not served despite the fact that most of them were amenable to review (преглед по реда на надзора), within particular time limits, before the Supreme Court (which was later reconstituted into the Supreme Administrative Court and the Supreme Court of Cassation). 26. As a result, whenever second instance cases were decided in private (which was the rule in appeals against procedural decisions), the parties could only learn whether or not their case had been decided by visiting the respective court and checking its register periodically. 27. Article 226 of the Code of Civil Procedure, as in force at the relevant time, provided that a petition for review could be submitted within two months from the impugned decision’s entry into force. At that time judgments and decisions issued by a second level of jurisdiction entered into force on the date on which they were made (opr. 3022-95-III). 28. According to the applicant, the courts nevertheless would normally count the two-month time-limit from the date on which the second instance judgment or decision was entered in the respective register. No relevant case-law has been cited by the parties.