CASE OF BABICHKIN v. BULGARIA
Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Peer Lorenzen
6. The applicant was born in 1939 and lives in Asenovgrad. 7. On 29 May 1991 he entered into an employment agreement with a local company (the “company”) whereby he undertook to work for it abroad. Several months later, while working for the company in Germany, the applicant fell seriously ill, underwent an operation and was on sick leave for about two months. At the end of his sick leave on 18 October 1991, the applicant found that his employment agreement had been unilaterally terminated by the company. He returned to Bulgaria soon thereafter. 8. On 19 May 1992 the applicant initiated an action against the company. He sought damages in the amount of 13,170 German marks (DEM), or their equivalent of 184,389 Bulgarian levs (BGL), on account of the company’s failure to pay out sick leave entitlements, back pay for overtime work and a payment for an insurance policy. 9. The Plovdiv Regional Court conducted ten hearings between 2 September 1992 and 23 January 1995, scheduled two to five months apart. During this time it obtained two experts’ reports and questioned witnesses. Of the hearings conducted, one was adjourned from 5 March to 5 May 1993 due to the absence of the applicant, another was postponed from 12 May to 14 September 1994 at the request of the defendant and a third, was adjourned from 14 September to 28 November 1994 because the defendant was hindering an expert from completing his report. 10. In a judgment of 2 March 1995 the Plovdiv Regional Court found partly in favour of the applicant. It awarded him BGL 1,032 for sick leave entitlements and dismissed the remainder of his claims. On 22 March 1995 the applicant appealed against the judgment. 11. A hearing was held before the Supreme Court on 28 February 1996. 12. In a judgment of 16 July 1996 the Supreme Court declared the judgment of the Plovdiv Regional Court null and void and remitted the case to the lower court. It established that the lower court had been sitting in an unlawful composition of three judges rather than of one judge and two jurors. 13. At the retrial, the Plovdiv Regional Court conducted nine hearings between 28 October 1996 and 12 June 1998, scheduled one to four months apart. During this time it obtained an expert’s report and questioned witnesses. Of the hearings conducted, one was adjourned from 29 April to 2 May 1997 because the applicant could not be summoned at his address. In addition, between 3 September 1997 and 16 April 1998 three consecutive hearings were postponed because the applicant or his lawyer were ill and at the request of the defendant in order to acquaint himself with the expert’s report. 14. In a judgment of 22 December 1998 the Plovdiv Regional Court again found partly in favour of the applicant. It awarded him BGL 24,100 for sick leave entitlements and dismissed the remainder of his claims. On 25 February 1999 the applicant appealed against the judgment. 15. The Plovdiv Court of Appeals conducted four hearings between 10 September 1999 and 17 April 2000, scheduled one to four months apart. One of the hearings was adjourned from 10 September to 19 November 1999 because the applicant was ill. 16. In a judgment of 3 July 2000 the Plovdiv Court of Appeals quashed part of the judgment of the lower court in respect of the amount awarded to the applicant for sick leave entitlements in Bulgarian levs and rendered a judgment in the case whereby it re-calculated the award in German marks, specifying it to be DEM 1,679 plus interest as from 22 May 1992. It upheld the remainder of the judgment of the Plovdiv Regional Court in respect of the dismissal of the applicant’s other claims. On 13 September 2000 the applicant appealed against the judgment. 17. A hearing was held before the Supreme Court of Cassation on 5 June 2001. 18. In a judgment of 10 August 2001 the Supreme Court of Cassation quashed part of the judgment of 3 July 2000 of the Plovdiv Court of Appeals, in which the latter had upheld the dismissal of the applicant’s claims for back pay and overtime work, and remitted that part of the case to the lower court. It upheld the remainder of the judgment of the Plovdiv Court of Appeals in respect of the amounts awarded for sick leave entitlements. 19. The Plovdiv Court of Appeals conducted three hearings between 24 October 2001 and 23 January 2002, scheduled one to two months apart, during which time an expert’s opinion was obtained. 20. In a judgment of 22 February 2002 the Plovdiv Court of Appeals quashed the remaining part of the judgment of 22 December 1998 of the Plovdiv Regional Court and rendered a judgment in the case in which it ordered the company to pay the applicant DEM 2,220 for back pay and overtime work plus interest as from 22 May 1992. 21. On 25 March 2002 the applicant obtained a writ of execution against the company for the amounts awarded. It is unclear whether and if the applicant obtained execution of the same. 22. On 3 April 2002 the company appealed against the judgment of the Plovdiv Court of Appeals. 23. A hearing was held before the Supreme Court of Cassation on 25 February 2004. 24. In a final judgment of 5 March 2004 the Supreme Court of Cassation upheld the judgment of 22 February 2002 of the Plovdiv Court of Appeals.