SLAVCHEVA v. BULGARIA
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mrs Todorka Kostadinova Slavcheva, is a Bulgarian national who was born in 1957 and lives in Haskovo. The applicant’s father owned a plot of land of 13,000 square metres in the area around Burgas, which was expropriated after 1945. In 1992, following the adoption of legislation providing for the restoration of titles to certain types of expropriated property, the applicant sought the restitution of the land. In 2002 her claim was only allowed in respect of 3,200 square metres of the plot as the authorities found that in respect of the remaining 9,800 square metres the applicant’s father had soon after the expropriation been compensated with other land. On an unspecified date in 2006 the applicant brought a rei vindicatio action against the Burgas municipality, claiming that the latter was unlawfully in possession of the 9,800 square metres of land in respect of which restitution had been refused. The applicant alleged that her rights to the property at issue had been restored ex lege by virtue of the denationalisation legislation. In a judgment of 3 January 2008 the Burgas District Court dismissed the claim, finding that the applicant’s rights had not been restored ex lege as her father had, at the relevant time, received compensation for the lands at issue. On 26 June 2008 the Burgas Regional Court upheld that judgment. On 31 July 2008 the applicant appealed in cassation. As she had failed to justify her appeal in view of the requirements of Article 280 § 1 of the Code of Civil Procedure 2007 (see Relevant domestic law below), she was instructed to do so by a judge of the Burgas Regional Court. Within the time-limit given, the applicant submitted a written statement concerning the grounds for cassation under Article 281 of the Code of Civil Procedure, and not the admissibility criteria under Article 280 § 1. Finding that she had failed to comply with the aforementioned instructions, on 17 September 2008 the Burgas Regional Court discontinued the proceedings. On an appeal by the applicant, on 24 November 2008 that decision was upheld by the Supreme Court of Cassation, which confirmed the lower court’s conclusion that she had failed to comply with the relevant procedural requirements. The Code of Civil Procedure, adopted in July 2007 and in force since 1 March 2008, introduced new requirements for the admissibility of cassation appeals. Pursuant to Article 280 § 1 of the Code, as worded initially, the Supreme Court of Cassation was competent to examine cases where the court of appeal has ruled upon “a material question of law or procedure”, and where, in addition, one of the following three situations has occurred: (a) the question has been decided not in conformity with the practice of the Supreme Court of Cassation; (b) there have been conflicting decisions of the national courts; and (c) the question is of importance for the accurate application of the relevant law or for the development of the law. In a decision of 16 June 2009 the Bulgarian Constitutional Court found that these new requirements for the admissibility of cassation appeals did not, in principle, run contrary to the right to access to a court, as guaranteed in Article 122 § 1 of the Constitution. Their exact content and meaning would be clarified in judicial practice. However, the Constitutional Court found that the requirement of Article 280 § 1 of the Code that the court of appeal must have ruled on “a material question of law or procedure” (see above) unnecessarily restricted the access to cassation and, accordingly, struck down as being anti-constitutional the word “material” (see Decision of the Constitutional Court no. 4 of 16 June 2009, constitutional case no. 4/2009). The Code of Civil Procedure 2007 further provides that it is incumbent on the party seeking cassation to justify, in view of the requirements of Article 280 § 1, that the cassation appeal merits examination. Failure to put forward arguments in that regard will result in the discontinuation of the proceedings (Articles 284 § 3 and 286 of the Code). Under the new Code, the grounds for seeking cassation remained the same as those under the Code of Civil Procedure 1952, namely material breaches of law and procedure, nullity and ill-founded conclusions (Article 281 of the new Code).