CASE OF MIHAILOV v. BULGARIA
Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Christos Rozakis
8. In a decision of 27 November 1989 the LabourExpert Medical Commission (“the LEMC” – see paragraph 19 below) specialised in pulmonary diseases diagnosed the applicant as suffering from asbestosis and various other diseases and determined that he qualified for second-degree disability. From that point on the applicant was undergoing biannual medical examinations at the LEMC, and each time his diagnosis and degree of disability were confirmed. 9. Apparently due to a deterioration of the applicant's health, in a decision of 9 December 1997 the competent LEMC revised his disability to firstdegree, without the need for another person's assistance. Later, on 21 May 1998, another LEMC decided that the applicant qualified for firstdegree disability in need of another person's assistance. 10. The chief expert at the Central LabourExpert Medical Commission (“the CLEMC” – see paragraph 19 below) at the Ministry of Health appealed against the latter decision. On 18 June 1998 the CLEMC overturned the LEMC's decisions of 9 December 1997 and 21 May 1998 and the applicant's disability status was set back to seconddegree. 11. The applicant lodged an appeal against this decision with the Supreme Administrative Court. 12. On 6 October 1998 a threemember panel of the court declared the applicant's appeal inadmissible. It held that the appealed decision was not subject to judicial review, in accordance with section 23(c) of the Implementing Regulations of the Labour Code of 1951, section 29a of Regulation no. 36 of the Minister of Health, and section 11(2) of the Implementing Regulations of the Pensions Act (see paragraph 22 below). 13. The applicant appealed to a fivemember panel of the Supreme Administrative Court, arguing that the refusal of the three-member panel to examine the appeal was contrary to Article 120 § 2 of the Constitution and Article 6 of the Convention. He submitted that the CLEMC's determination directly affected the amount of disability pension that was allotted to him. 14. The fivemember panel upheld the three-member panel's decision in a final decision of 1 March 1999, holding that under section 23(c) of the Implementing Regulations of the Labour Code of 1951 the CLEMC's decisions were final and not subject to judicial review. 15. Under Bulgarian law, as it stood at the relevant time, there existed three degrees of disability, differentiated according to the character and the course of the disabling illness, the functional status of the ailing organ and of the organism as a whole, and the requirements of the disabled's profession (section 46(1) of Regulation no. 36 on the expert assessment of longlasting incapacity to work, issued by the Minister of Health in 1975 and superseded in July 2000 by a newer statutory instrument). The first degree of disability was reserved for persons who had, due to their state of health, lost all ability for work, or persons with durable, incurable, or worsening ailments set forth in a special list (section 52 of the Regulation); the second one covered persons who had lost the ability to perform theirs or any other work, but who could be accommodated for work under conditions suitable for their health, or persons with durable, incurable, or worsening ailments set forth in the above list (section 54 of the Regulation); and the third one covered persons who, as a result of their state of health, had to change their profession with one requiring lower qualifications, or who had to change their conditions of work within the same profession (section 55 of the Regulation). If a person was disabled on account of several illnesses, the decision determining his or her disability status had to set forth his or her degree of disability pursuant to each of the separate illnesses, as well as the overall degree of disability (section 50 of the Regulation). 16. Persons with a firstdegree disability were divided in two subcategories: those who needed another person's assistance, and those who did not. The determination who was in need of such assistance was made on the basis of the findings about that person's need of everyday care, help or supervision (section 53 of the Regulation). 17. Section 17 of the Pensions Act of 1957, as in force at the material time, provided that the amount of the professional disability pension was to be set pursuant to the degree of disability: those under the first degree were entitled to 70% of their average earnings, those under the second degree to 55%, and those under the third degree to 35%. The amount of the general disability pension was to be likewise set pursuant to the degree of disability: 55%, 40% and 25% respectively (section 20 of the Pensions Act of 1957). 18. Persons with a firstdegree disability in need of another person's assistance were entitled, in addition to the pension they received, to a further 75% of the amount of the social pension (section 46(2) of the Pensions Act of 1957). 19. The LEMCs and the CLEMC were established pursuant to the abovementioned Regulation no. 36 under the authority of the Minister of Health (sections 2 and 23 of the Regulation). The LEMCs were responsible for, inter alia, determining the degree of a person's disability (section 13 of the Regulation). The CLEMC heard appeals against decisions of the LEMCs (section 21 of the Regulation). 20. The presidents and the members of the commissions, who were exclusively medical professionals (section 7a(5) of the Regulation), were remunerated under employment contracts they entered into with the local mayors, the Minister of Health, or the medical directors of the local hospitals (section 7a(2) and (3) of the Regulation). 21. There were no written rules regulating the procedure before the commissions. Regulation no. 36 provided only that they had to proceed on the basis of an examination of the person concerned and of medical documents, making no provision for witness testimony or other evidence. No hearings were held. 22. By Article 120 § 2 of the Constitution, all “administrative acts” are subject to judicial review, unless otherwise provided by statute. Section 2 of the Administrative Procedure Act (“the APA”) defines “individual administrative acts” as “acts issued [by public authorities], which create rights or obligations for, or affect rights or legitimate interests of, individuals or legal entities, as well as the refusals to issue such acts”. By sections 33 and 34 of the APA, all “administrative acts”, save those relating to the security of the country or specifically enumerated by statute, are subject to judicial review. 23. Section 23(c) of the Implementing Regulations of the Labour Code of 1951 provided that the CLEMC's decisions pursuant to appeals by the disabled or the administration were final. So did section 29a of the abovementioned Regulation no. 36 and section 11(2) of the Implementing Regulations of the Pensions Act. 24. In contrast to the previous practice, in a series of decisions and judgments starting with a reported decision of 4 February 1999 in which it quashed a decision of the Sofia City Court declaring an appeal against the decision of a special medical commission inadmissible, the Supreme Administrative Court started allowing judicial appeals against the decisions of special medical commissions. It reasoned that the general rule under Article 120 § 2 of the Constitution was that administrative acts were subject to judicial review unless otherwise provided by statute. The commissions' decisions affected the individuals' rights and were thus administrative acts within the meaning of Article 120 § 2 of the Constitution and section 2 of the APA. Since the exclusion of judicial review of the commissions' decisions was set out in statutory instruments, it was invalid and their decisions were appealable before a court. In a number of those judgments and decisions the court also relied on Article 6 § 1 of the Convention and, in particular, its access-to-a-court requirement (опред. № 1580 от 4 февруари 1999 г. по адм. д. № 4869/1998 г., ВАС, І о.; опред. № 4491 от 6 август 1999 г. по адм. д. № 937/1999 г., ВАС, І о.; опред. № 446 от 1 февруари 2000 г. по адм. д. № 3513/1999 г., ВАС, І о.; опред. № 3450 от 30 май 2000 г. по адм. д. № 7347/1999 г, ВАС, І о.; реш. № 6475 от 3 юли 2002 г. по адм. д. № 2611/2002 г., ВАС, петчленен състав). 25. At present section 112(1)(4) of the Health Act of 2004 provides that the decisions of the National Expert Medical Commission (the successor body of the CLEMC) are reviewable by the Sofia City Court.