CASE OF YAGNINA v. BULGARIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
4. The applicant was born in 1952 and lives in Voyvodinovo. 5. The applicant worked as a driver of tractors and other heavy machines for a number of years before 1985. This work led to her developing dysfunctions of the nervous system. In 1985 she was declared to have a “third degree disability” and started receiving a disability pension. 6. Between 1985 and 2000 the applicant underwent seven medical reexaminations by the local Territorial Expert Medical Commission (“the TEMC”), the body competent to assess the level of disability. The medical examinations serve as a basis for the allocation of disability pensions. She was diagnosed with vegetative polyneuropathy of the upper extremities, coxarthrosis, cervical spondylosis and radiculopathy. On all occasions she was assessed to have a “third degree disability” ─ she had lost between 50% and 70% of her ability to work, which entitled her to receive a disability pension. 7. On 14 November 2000 the applicant underwent a new regular reexamination by the TEMC. This time she was diagnosed with vegetative polyneuropathy of the upper extremities and myotendinosis. No mention was made of the other diseases diagnosed earlier, namely coxarthrosis, cervical spondylosis and radiculopathy. On that basis the TEMC assessed the applicant’s loss of ability to work at 40%, which was not sufficient to entitle her to a disability pension. 8. The applicant challenged this decision before the National Expert Medical Commission (“the NEMC”). After re-examining her, the NEMC declared the applicant fully fit to work in a decision of 14 February 2001. Its diagnosis was “spondylosis and related diseases”. 9. The applicant applied to the Sofia City Court for judicial review of that decision. 10. The Sofia City Court appointed a medical expert who examined the applicant and concluded that she suffered from the following conditions: cervical spondylarthrosis, vegetative polyneuropathy, myotendinosis of the upper limbs and coxarthrosis of the coxofemoral joint. The expert pointed out that these conditions had a chronic character and had permanently and negatively affected the applicant’s state of health. If anything, some of them had become worse after 1985. The expert pointed out that such conditions typically led to a significant reduction in the affected person’s ability to work. 11. On the basis of that report, on 27 December 2002 the Sofia City Court quashed the NEMC’s decision of 14 February 2001 as unlawful. It found, on the basis of the expert’s conclusions corroborated by the remaining documents in the case file, that the applicant’s ability to work was reduced. The court concluded that the NEMC had erroneously assessed the applicant’s state of health by failing to consider all relevant elements to her actual state of health. The court remitted the case for a fresh examination, pointing out that it was the NEMC which had to fix the exact percentage of the applicant’s reduced ability to work. The judgment entered into force on 11 February 2003. 12. The NEMC examined the applicant on 9 October 2003. In its decision of the same date it indicated as a leading diagnosis “spondylosis and related diseases”. It specified that the applicant suffered from cervical spondylarthrosis and cervical radiculopathy, which were occupational diseases, and from myotendinosis of the upper limbs and coxarthrosis, which were not. It considered that she did not suffer from vegetative polyneuropathy of the upper limbs. On that basis the NEMC assessed the applicant’s reduced ability to work at 30%. The decision stated that it was valid for three years. 13. Once again, the applicant applied for judicial review of the NEMC’s decision. The Sofia City Court appointed a medical expert who concluded that the applicant suffered from the following diseases which he considered occupational: cervical spondylarthrosis, vegetative polyneuropathy, myotendinosis of the upper limbs and coxarthrosis of the two coxofemoral joints. The expert considered that these conditions had a permanent and chronic character and had led to irreversible degenerative changes to the applicant’s locomotor system. 14. On that basis, on 6 January 2005 the Sofia City Court quashed the NEMC’s decision of 9 October 2003 and remitted the case to it for further examination in accordance with the conclusions of the medical expertise accepted by the court in the case proceedings. The court found that the administrative body had erred when assessing the applicant’s state of disability as it had not taken into account all the relevant circumstances. It considered the NEMC’s opinion that the applicant did not suffer from vegetative polyneuropathy unfounded and concluded that the NEMC’s decision was not based on the applicant’s actual state of health. The court held, like in its judgment of December 2002, that the NEMC was exclusively competent to assess the percentage of disability. 15. Upon an appeal by the NEMC, the Supreme Administrative Court upheld the Sofia City Court’s judgment in a final judgment of 15 July 2005. 16. Following that, in a decision of 28 October 2005 the NEMC assessed the applicant’s reduced ability to work at 40% which did not entitle her to a disability pension. In the decision’s entry “occupational deceases”, only vegetative polyneuropathy featured this time. The operative provision of the decision stated that the NEMC “Quashes and decides anew the question of percentage of disability. Confirms the rest of the elements.” The decision stated that it was valid for three years. 17. The applicant did not apply for judicial review of the above decision. 18. The payment of the applicant’s disability pension was discontinued as of 2 October 2000 and there is no information about what happened after the 28 October 2005 NEMC decision.