CASE OF MANCHEVA v. BULGARIA
Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Christos Rozakis
8. The applicant is a Bulgarian national, who was born in 1968 and at the relevant time lived in Svoboda, the region of Haskovo. 9. The applicant used to work in the village of Svoboda, with the Home Patronage branch of the Chirpan District Social Care Centre (Домашен социален патронаж, Общински център за социални грижи). At the relevant time, Social Care Centres were State administrative bodies funded by the State and municipal budgets. 10. On 3 December 1992 the applicant suffered an accident at work. Subsequently she underwent surgical operations. She was unfit for work for at least six months and continued experiencing health problems for several years thereafter. 11. On 20 July 1993 the applicant instituted civil proceedings against her former employer, the local Home Patronage, claiming pecuniary and nonpecuniary damages. A representative for Home Patronage took part in the proceedings apparently maintaining that the applicant was responsible for the accident and that the claims were excessive. 12. On 31 March 1995 the Chirpan District Court partially granted the applicant’s claim and awarded her 15,000 Bulgarian levs (“BGL”) in nonpecuniary damages and BGL 4,500 in costs, plus statutory interest. 13. On 20 April 1995 the defendant, the Home Patronage, lodged an appeal with the Stara Zagora Regional Court. 14. According to the Government, on 17 July 1995 the Social Care Centre sent to the applicant a registered letter inviting her “to collect BGL 15,000” but the applicant refused receipt of the letter. 15. According to the applicant, as of 30 September 1995 the proceedings before the Regional Court were still pending. 16. On an unspecified date these proceedings ended and the District Court’s judgment became final and enforceable. 17. Following a conversation between the applicant and employees of the Social Care Centre, on 5 May 1996 the Social Care Centre sent to the applicant a letter inviting her “to collect BGL 15,000”. 18. On 9 May 1996 the applicant submitted a written request to the District Social Care Centre insisting on payment in compliance with the District Court’s judgment, including all interest and costs. She offered her calculation of the interest that had accrued since the relevant starting date, 20 July 1993, and stated that the amount due was BGL 40,620. 19. The applicant, who at that time lived in another town, authorised another person to receive the money. 20. According to “minutes”, drawn up by the accountant and two other employees of the Social Care Centre, on 15 May 1996 they withdrew BGL 15,000 from the Centre’s bank account but the applicant’s representative refused to accept the money. 21. On 3 June 1996 the Social Care Centre wrote to the applicant stating that they “wished to pay the damage sustained, in the amount of BGL 15,000”, and invited her to visit the Centre for that purpose on 7 June 1996. The letter also stated that the Centre was “free from any obligation to pay interest on the amount since the date of the conversation with [the applicant] held in the presence of [the Centre’s] employees”. 22. On 6 June 1996, upon the applicant’s request, the Chirpan District Court issued a writ of execution ordering the Home Patronage to pay to the applicant BGL 15,000 principal, BGL 4,500 in costs, and interest as from 20 July 1993. 23. On 6 June 1996 the applicant submitted a request to the competent enforcement judge seeking the institution of enforcement proceedings. That was refused and the applicant was informed, upon her complaints to the enforcement judge, the Regional Court and the Ministry of Justice, that under Article 399 of the Code of Civil Procedure execution of judgments against state bodies was only possible through submission of the writ of execution directly to the state organ concerned. Enforcement proceedings were not provided for. An attachment of the defendant’s bank account was not possible. 24. The applicant was also informed that the refusal to execute a final judgment could be a punishable criminal offence. 25. On an unspecified date the applicant complained to the Ministry of Labour and Social Care, which invited the mayor of the Chirpan municipality to comment. 26. On 15 October 1996 the mayor wrote the following to the Ministry and to the applicant: “Having studied the [applicant’s] request and having discussed the matter with the management of the municipal Social Care Centre, we reached the conclusion that the problem is under the jurisdiction of the judicial authorities. The municipal Social Care Centre considers that the civil proceedings had been handled wrongly: the [defendant] had been Home Patronage, which has no legal personality and does not have its own bank account. For this reason, the Social Care Centre sees no legal grounds, for purposes of the financial authorities, to effect the payment. Apparently the matter should be examined additionally by the courts. The municipal administration cannot interfere in this matter.” 27. In 1996 the applicant submitted a complaint to the prosecution authorities requesting the punishment of those responsible for the failure to enforce the judicial award. 28. In April or May 1997 she complained of the inactivity of the prosecution authorities. 29. On 19 May 1998 a prosecutor requested information from the Social Care Centre. On 29 May 1998 the Centre replied to the prosecutor, with a copy to the mayor of Chirpan. It stated that Home Patronage was not a separate legal person but formed a part of the Social Care Centre which, in turn, was under the administration and budgetary control of the municipality. Therefore, the applicant could obtain payment by submitting her documents to the municipality of Chirpan. The date on which that information was transmitted to the applicant is unclear. 30. On 6 April 1999 the applicant was heard by a prosecutor. 31. On 17 March 2000 the prosecutor terminated the inquiry noting that the applicant had been informed that she had to submit her writ of execution and a copy of the judgment to the municipality of Chirpan. 32. During the relevant period inflation in Bulgaria was running high and the national currency was depreciating. In particular, on 31 March 1995, the date on which the District Court’s judgment was delivered, BGL 66 were necessary to buy one United States dollar (USD), in May 1996, at the time of the applicant’s attempts to obtain payment, that figure was BGL 92, on 15 October 1996, the date on which the mayor refused to execute the judgment, it was BGL 216 and in May 1998 the exchange rate was BGL 1,782 for USD 1. 33. As of 1 July 1999, BGL 1,000 became 1 new Bulgarian lev (BGN). On 17 March 2000, the date on which the applicant was invited to renew her request for payment before the Chirpan municipality, USD 1 was exchangeable for BGN 1.62 (i.e., for BGL 1,620). 34. For the period May 1996 – March 2000 the statutory interest rate in Bulgaria varied significantly, reaching during a period of several months in the end of 1996 and the beginning of 1997 an average of approximately 200% per annum. That was however insufficient to compensate for the loss of value of the Bulgarian lev during that period. 35. Following the admissibility decision in the present case, on 21 February 2003 the municipality of Chirpan paid BGN 68.69 into a bank account opened by them in the applicant’s name. The amount included BGN 15 in principal, BGN 49.19 in interest for the period 20 July 1993 – 20 February 2003 and BGN 4.50 in costs. The applicant was informed by letter. 36. In accordance with paragraph 2 of Article 399, a person who has an enforceable pecuniary claim against the State or a state body shall receive payment out of funds allocated for that purpose under the institution’s budget. 37. The writ of execution shall be submitted to the financial department of the institution. If there are no funds available under the budget of the state body concerned, the higher administrative organ should undertake the necessary steps to ensure that funds become available under the budget for the following year. 38. Enforcement proceedings and judicial review of the execution of a judgment are not possible where the debtor is a state institution. Until December 1997 paragraph 1 of Article 399 of the Code of Civil Procedure expressly prohibited enforcement proceedings against state institution. Although that provision was repealed in December 1997, the legal regime remained unchanged, as paragraph 2 of Article 399 was not amended. 39. According to Articles 246 and 248 of the Code of Civil Procedure, a writ of execution is issued in a single copy which must be produced for execution. Where the original has been lost, a duplicata may be issued in special proceedings which require summoning the debtor at an oral hearing. 40. According to section 66 of the Obligations and Contracts Act, a creditor is entitled to refuse partial payment. 41. According to section 97 of the Obligations and Contracts Act, if the creditor fails to undertake the measures necessary to receive payment, the debtor may discharge a pecuniary debt by depositing the money in a bank account.