CHAKALOVA-ILIEVA v. BULGARIA - 53071/08 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 830 (06 October 2016)

JUDGMENT STRASBOURG 6 October 2016 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Chakalova-Ilieva v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President, Khanlar Hajiyev, Erik Møse, Faris Vehabović, Yonko Grozev, Carlo Ranzoni, Mārtiņš Mits, judges, and Milan Bla š ko, Deputy Section Registrar, Having deliberated in private on 30 August 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 53071/08 ) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Veselina Ivanova Chakalova-Ilieva (“the applicant”), on 14 October 2008. 2. The applicant was represented by Mr M. Ekimdzhiev, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3. The applicant alleged that, by delivering two contradictory decisions concerning the proper defendant to an action which she had lodged against the authorities, the courts had prevented her from having the merits of her case adjudicated and had thus barred her from effectively asserting her claim. 4. On 29 June 2015 the application was communicated to the Government. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1951 and lives in Stara Zagora. A. First dismissal of the applicant . The applicant worked as head teacher in a secondary school in Stara Zagora. . On 19 July 2002 the head of the Regional Education Inspectorate (“the REI”) of the Ministry of Education dismissed the applicant on disciplinary grounds. . The applicant brought a claim against the REI, challenging the order for her dismissal and seeking reinstatement and compensation for lost earnings. 9. By a judgment of 2 April 2003 the Stara Zagora District Court ( Районен съд ) allowed the applicant’s claims. That judgment was upheld by the Stara Zagora Regional Court ( Окръжен съд ) and the Supreme Court of Cassation on 18 July 2003 and 24 November 2005 respectively. In the course of the proceedings, neither the opposing party nor any of the courts raised any doubts as to whether the REI was the correct defendant in the case. B. Second dismissal of the applicant . Following the entry into force of the judgment of 24 November 2005, the applicant applied to take up her duties on 6 December 2005. On the same day a new order for her dismissal was issued by the head of the REI. . On an unspecified date, at the latest in January 2006, the applicant lodged an appeal against the dismissal order with the Stara Zagora District Court, challenging its lawfulness, and seeking reinstatement to her previous post and compensation for loss of income. It appears from the case file that at the first court hearing, the date of which was not specified, the REI argued that it was not the proper defendant in the case and that the claims had to be addressed to the secondary school in which the applicant had been working prior to her dismissal. The REI submitted that Article 61 § 2 of the Labour Code and section 37( 4) of the Education Act provided that the applicant’s employer was the school. 12. During a court hearing on 12 April 2006 the District Court ruled in favour of the objection, and, reasoning that the proper defendant in the case was the school, discontinued the proceedings. 13. The applicant appealed against that decision before the Stara Zagora Regional Court. 14. On 26 May 2006 the Regional Court quashed the decision of the lower court, explicitly stating that the proper defendant in the applicant’s case was the REI. It remitted the case to the first-instance court for examination on the merits. 15. By a judgment of 8 December 2006 the District Court allowed the applicant’s claims. 16. Following an appeal lodged by the REI, on 27 April 2007 the Regional Court upheld the judgment. 17. The REI lodged an appeal on points of law. On 16 April 2008 the Plovdiv Appeal Court ( Апелативен съд ), sitting as a court of cassation according to a legislative amendment entered into force in July 2007, quashed the judgment of the lower court and dismissed the applicant’s claims. It found that the REI was not the applicant’s employer under the law and was not, therefore, the proper defendant in the case. Thus, the claims brought against it were unfounded. The court ruled that the applicant’s claims had to be brought against the school in which she had been working prior to her dismissal, as that school was her employer. II. RELEVANT DOMESTIC LAW AND PRACTICE A. Employment contracts with head teachers . Employment contracts with head teachers are regulated by the Labour Code of 1986 and the Education Act of 1991. . Paragraph 1 of the Additional Provisions to the Labour Code defines an employer as any physical or legal entity or its subsidiary, as well as any organisationally and economically independent body which hires employees. . By virtue of Article 61 § 2 of t he Labour Code and section 37(4) of the Education Act, the employment contracts of head teachers of State-run schools are to be concluded by the head of the REI, as the body superior to the employer. 21. Under Articles 344 and 358 § 1(2) of this Code, where an employee considers that he or she has been unfairly dismissed, he or she may bring an action to challenge the lawfulness of the dismissal before the civil courts within a period of two months. This provision is applicable also to the termination of civil servants’ employment contracts. B . Interpretative decisions of the Supreme Court of Cassation 22. In a decision dated 2 June 2010, the Supreme Court of Cassation found that a number of domestic courts had interpreted inconsistently certain provisions of the Labour Code, namely those concerning the proper defendant in employment disputes. The Supreme Court of Cassation referred to court decisions delivered between July 2007 and the date of the case on which it was deliberating at the time. In view of that finding, the court suspended the proceedings at hand and proposed that an interpretative decision be taken ( опред . № 269 от 2.06.2010 г. на ВКС по гр. д. № 187/2010 г., IV г. о., ГК ). Subsequently, in interpretative decision no. 1 of 30 March 2012, the Plenary of the Civil Chambers of the Supreme Court of Cassation , ( тълк. реш. № 1 от 30 март 2012 г. на ВКС по тълк.д. №1/ 2010 г., ОСГК ) resolved this contentious issue . In particular, it noted that under Article 344 § 1 of the Labour Code, an action brought by an employee challenging an unlawful dismissal and seeking reinstatement and compensation had to be directed against the employer, namely the physical or legal entity which hired the employee. In the case of head teachers, this was the school. It held that the same approach applied to situations in which the employment contract had been concluded by the institution superior to the employer. 23. Interpretative decision no. 1 of December 2013 by the Plenary of the Civil and Commercial Chambers of the Supreme Court of Cassation ( тълк. реш. № 1 от 9 декември 2013 г. на ВКС по тълк.д. №1/ 2013 г., ОСГТК) concerned contradictions in the statements of claim. The Plenary specified that when a court sitting as a cassation instance found discrepancies in the statement of claim as a result of a contradiction between, on one hand, the facts and allegations indicating that there was a legitimate interest in seeking protection against a particular person and, on the other hand, the claim brought against another person, the decision of the second-instance court should be declared inadmissible and be quashed. The case must be remitted for a new examination by another composition of the first-instance court and the proper defendant summoned. 24. Section 86(2) of the Judicial Power Act of 1994 („ Закон за съдебната власт “) provides that interpretative decisions are binding on the judiciary and the executive branch. C. Objections lodged by a defendant in civil court proceedings . Under Articles 109 and 110 of the 1952 Code of Civil Procedure, applicable at the relevant time, a defendant was under an obligation to lodge any objections related to the claims at the latest at the first court hearing. The claimant had the possibility of presenting new evidence with respect to those objections within a time frame to be determined by the court. D. Modification of the defendant in the course of civil proceedings 26. By virtue of Article 117 §§ 4 and 5 of the 1952 Code of Civil Procedure, the claimant can indicate another defendant, together with the first, at any stage of the first-instance proceedings and without the consent of the defendants. In that case, however, the claimant would not benefit from the date on which the initial claim was filed against the first defendant. The date on which the request to join the new defendant was lodged would be considered as the date on which the claim was filed with respect to that defendant. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 27. The applicant complained that she had been denied effective access to a court to have her second dismissal examined. She relied on Article 6 § 1 of the Convention, which reads, in so far as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” 28. The Government contested that argument. A. Admissibility 29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions 30. The applicant submitted that within a short period of time, and on the basis of the same legal framework, which she considered as unclear, the national courts had adopted completely opposite positions on the question of the proper defendant - the REI or the school - in her cases, which had concerned similar subject-matters and the same parties. She argued that she had not received any instructions from the national courts allowing her to modify the defendant in time. The courts’ contradictory rulings had put her in a situation in which she had been unable to bring a subsequent action against the school, as indicated in the judgment of the Plovdiv Court of Appeal dated 16 April 2008, as the statutory two-month time-limit for bringing the case has elapsed. Relying on the Court’s judgment in the case of Kostadin Mihaylov v. Bulgaria , the applicant considered that she had been deprived of her right to have the merits of her claims examined in relation to the lawfulness of her dismissal, reinstatement to her previous post and compensation for loss of income ( Kostadin Mihaylov v. Bulgaria , no. 17868/07 , 27 March 2008). 31. The Government submitted that the applicant’s claims against the REI in the second set of dismissal proceedings had been examined on the merits and dismissed by the Plovdiv Court of Appeal in its judgment of 16 April 2008. The question concerning the defendant was part of the examination of the substance of the claims and not a question of admissibility. In particular, the appeal court had pointed out that by law, the REI could not be considered as the applicant’s employer. It then adopted on the merits of the case a judgment that the claims were unfounded. Therefore, the applicant could not allege that her claims against the REI had not been adjudicated. The fact that no claims against the school were examined was entirely due to the applicant’s failure to designate it as a defendant in the proceedings, either together with the REI or by substituting the latter for the school. 2. The Court’s assessment 32. T he Court notes that there was a dispute over a right recognised under Bulgarian law - the right not to be unfairly dismissed from one’s employment. It further notes that the dispute was genuine and serious, and that the outcome of the proceedings before the domestic courts was directly decisive for the right concerned (see Fazliyski v. Bulgaria , no. 40908/05 , § 52, 16 April 2013). Under domestic law, disputes concerning the dismissal of civil servants, such as the applicant, are amenable to ordinary judicial review. The applicable procedure is the same as any other judicial procedure (see paragraph 21 above). It follows that Article 6 § 1 is applicable in the present case (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00 , § 62-63, ECHR 2007-II). 33. The Court also reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal; in this way it embodies the “right to a court”, of which the right of access constitutes one aspect (see Golder v. the United Kingdom , 21 February 1975, §§ 28-36, Series A no. 18, and Osman v. the United Kingdom , 28 October 1998, §§ 136 and 147, Reports of Judgments and Decisions 1998-VIII). This right is not absolute but may be subject to limitations; these are permitted by implication since the right of access “by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals”. The limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among other authorities, Stanev v. Bulgaria [GC], no. 36760/06 , § 230, ECHR 2012 ). 34. In the case at hand, the Court observes that the applicant is essentially arguing that the courts did not adjudicate on her dispute because in the second dismissal proceedings, they declared the case inadmissible, having found that the REI was not the correct defendant. In her opinion, that decision contradicted the findings in the first dismissal proceedings in such a way that she found herself in a situation where she was deprived of effective access to a court to contest the second dismissal (see paragraphs 27 and 30 above). 35. It is not for the Court to decide which authority is the proper defendant in actions brought under the Labour Code. This is a question of Bulgarian law which falls within the exclusive jurisdiction of the Bulgarian courts (see, mutatis mutandis , Kostadin Mihaylov , cited above, § 41). In any event, the salient issue in the instant case is not whether the domestic courts erred in applying national law, but whether the judgments and decisions delivered by the national courts pursuant to the two actions brought by the applicant interfered with her right under Article 6 § 1 to obtain a judicial examination of her claim with respect to the second dismissal. 36. The applicant is of the opinion that the present case is identical to the case of Kostadin Mihaylov , cited above. The Court observes that in the latter case, the applicant’s complaint concerned two different sets of proceedings in respect of identical factual circumstances and the same civil tort claim. More importantly, in both sets of proceedings the question of the proper defendant was explicitly raised by the defendants and examined by the domestic courts, which took two diametrically opposed positions on the latter point, to the effect that the merits of that applicant’s claims were not examined (see Kostadin Mihaylov , cited above, §§ 14-22). In the light of those circumstances, it appears to the Court that the present case is different from that of Kostadin Mihaylov , cited above, for at least two reasons. First, the dismissal proceedings in the present applicant’s case concerned different matters: the first set of proceedings concerned only the dismissal order dated 19 July 2002, whereas the second set of proceedings concerned the dismissal of 6 December 2005 (see paragraphs 7-9 and 11-17 above). Secondly, the question of the correct defendant was not addressed by the courts in the first set of dismissal proceedings, as the REI had not raised an objection in that sense (see paragraphs -9 above) . It is not for this Court to rule on the question whether the domestic courts were obliged to examine ex officio that point in the first set of proceedings. In any event, they examined a civil dispute as described by the applicant with respect to the circumstances of the first dismissal and, in the absence of an objection on the part of the REI that it was not the proper defendant, they ruled on the merits of the case. In the view of the Court, the REI was not prevented from raising an objection that it was not the proper defendant in subsequent proceedings against the same applicant, and the courts were not wrong to consider that they were not bound by the fact that the REI had acted as an opposing party in the previous set of proceedings instituted by the applicant. 37. Having said that, the Court considers that the present case raises other issues related to the question whether the applicant had effective access to a court. 38. It is significant for the Court that the dismissal order of 6 December 2005 against the applicant was issued by the head of the REI (see paragraph above). That entity was also the one which had just acted as a defendant in the first set of dismissal proceedings, where the applicant obtained successful results in a final court decision delivered only two weeks before being dismissed anew (see paragraphs -9 above). It also appears that at the time it was common practice for the domestic courts to adjudicate unfair dismissal claims with the REI as the defendant (see paragraph 22 above). The Court can therefore accept that the applicant cannot be reproached for having envisaged that the REI would again be the party called to answer her claims related to her new dismissal. The Court notes that the two-month statutory time-limit to complain against the applicant’s dismissal expired on 6 February 2006. That was also the ultimate deadline for bringing an action against the school either in separate proceedings, or in the course of the proceedings already instituted against the REI. This is indicated in the applicable legislation providing that only the date of the civil action against the school was binding on the latter, and not the date of the beginning of the dismissal proceedings (see paragraphs 21 and 26 above). It is true that the applicant has not explained why she did not designate the school as an opposing party in those proceedings, either together with the REI or by substituting the latter for the school, as suggested by the Government (see paragraph 31 above). However, it seems that the first hearing in which the REI raised its objection about the question of the defendant took place after 6 February 2006, by which time the action against the school was already time barred. Although this remains unclear from the case file, the Court observes that in any event, the first court decision indicating that the applicant should address her claims against the school was taken on 12 April 2006 (see paragraph 12 above), well beyond the two month statutory limit, within which the applicant could have joined the school as a defendant in accordance with the national law. 39. The Court further notes that the case-law of the domestic courts was inconsistent on the subject of the proper defendant in employment cases of that type, at least during the period from July 2007 to June 2010 (see paragraph 22 above). Although that inconsistency and some of the relevant procedures were later settled by two binding interpretative decisions taken by the Supreme Court of Cassation, confirming that schools were the proper defendants in cases of dismissal of head teachers, those rulings were mandatory only for subsequent court decisions and had no effect on the applicant’s situation (see paragraphs 22 and 23 above). Moreover, the Government have not submitted copies of relevant domestic court decisions delivered before the beginning of 2006. It appears, from the information available to the Court that this divergent practice of the national courts started after the applicant has submitted her claim in the beginning of 2006. The divergent practice in question was resolved by the Supreme Court of Cassation at the beginning of 2012, that is to say more than six years after the applicant’s second dismissal. Therefore, the information brought to the attention of the Court is not sufficient to establish that this inconsistency in the case-law already existed at the time of the applicant’s appeal against her second dismissal to such an extent that it could have been reasonably expected of her that she address her claims against both the school and the REI from the very beginning of the proceedings in order to be sure of obtaining judicial examination on the merits. 40. Thus, in the particular circumstances, the applicant was placed in a situation of being unable to obtain the judicial examination of her second dismissal through no fault of her own. The Court is not convinced that she could be held responsible for that situation on account of the fact that she did not address the school in the dismissal appeal proceedings. This was rather the result of a combination of factors, such as the divergent practice of the national courts, which started developing at the relevant time and the expiry of the statutory time-limits for bringing a case against the school before the latter was formally identified as the proper defendant by the first court decision on the REI objection of 12 April 2006. 41. No justification has been offered for this situation. In particular, neither the national courts nor the Government have sought to argue that this denial of access to a court pursued a legitimate aim and was proportionate in terms of the means employed and the aim sought to be achieved (see, mutatis mutandis , Kristiansen and Tyvik As v. Norway , no. 25498/08 , § 57, 2 May 2013) . 42. There has therefore been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 43. The applicant complained that she had lost the sum she would have obtained in compensation had her action been examined on the merits. She relied on Article 1 of Protocol No. 1, which provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 44. The applicant submitted that her claim for unlawful dismissal had amounted to a “possession” within the meaning of Article 1 of Protocol No. 1, in that she had had a legitimate expectation that she would obtain an award of compensation. She relied in particular on the fact that the first and second-instance courts, which had been competent to collect the evidence and establish the facts, had decided in her favour. 45. The Government did not express an opinion on the matter. 46. The Court considers that this complaint is closely linked to the one examined above and must likewise be declared admissible. 47. However, having regard to its conclusions under Article 6 § 1 of the Convention and its finding that the applicant was unduly prevented from obtaining a judicial determination of her alleged entitlement to compensation, the Court considers that it cannot speculate as to what the situation would have been had the applicant had effective access to a court. Consequently, it does not consider it necessary to rule on the question whether the applicant had a “possession” within the meaning of Article 1 of Protocol No. 1 and, accordingly, on the complaint based on that provision (see Glod v. Romania , no. 41134/98 , § 46, 16 September 2003; Albina v. Romania , no. 57808/00 , § 43, 28 April 2005; Lungoci v. Romania , no. 62710/00 , § 48, 26 January 2006; Yanakiev v. Bulgaria , no. 40476/98 , § 82, 10 August 2006; and Kostadin Mihaylov , § 49, cited above). III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 48. The applicant alleged that she had not had effective remedies at her disposal in respect of her complaints under Article 6 and Article 1 of Protocol No. 1. She relied on Article 13 of the Convention, which provides as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 49. In the applicant’s submission, she had used all available remedies to vindicate her right to compensation for alleged unlawful dismissal. 50. The Government did not express an opinion on the matter. 51. The Court considers that this complaint is closely linked to those examined above and must likewise be declared admissible. 52. However, the Court considers that it is not necessary to determine whether there has been a breach of Article 13, because, where - as here - the right claimed is a civil one, the requirements of this provision are less strict than, and are absorbed by, those of Article 6 § 1 (see, Związek Nauczycielstwa Polskiego v. Poland , no. 42049/98 , § 43, ECHR 2004-IX; Yanakiev , § 76; and Kostadin Mihaylov , § 54, both cited above ). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 53. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 54. The applicant claimed 8,000 euros (EUR) in respect of non-pecuniary damage sustained as a result of the fact that she had been unable to have her claims determined by a court. She further claimed 1,596 Bulgarian lev (BGN) (approximately EUR 790) in respect of pecuniary damage sustained as a result of alleged unlawful dismissal and costs in relation to the domestic proceedings in that regard. In particular, she had paid BGN 700 (approximately EUR 350) in legal costs and expenses in the second set of dismissal proceedings, and had suffered a loss of about BGN 896 (approximately EUR 466) as a result of the alleged unlawful dismissal. 55. The Government contested the applicant’s claim. 56. The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6 § 1 of the Convention. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court awards her EUR 4,000, plus any tax that may be chargeable. B. Costs and expenses 57. The applicant sought the reimbursement of EUR 2,400 in lawyers’ fees for the proceedings before the Court (twenty-four hours’ work at a rate of EUR 100 per hour), as well as EUR 125 for postage and clerical expenses. She requested that any amount awarded by the Court under this head be paid into the bank account of her representative, Mr M. Ekimdzhiev, except the sum of EUR 511 which she had paid to him in advance. 58. The Government contested the above claim. 59. According to the Court’s case-law, an applicant is entitled to the reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000, plus any tax that may be chargeable to the applicant, covering costs under all heads. Of that amount, EUR 511 is to be paid to the applicant and the remaining EUR 1,489 is to be paid into the bank account of the applicant’s representative, Mr M. Ekimdzhiev. C. Default interest 60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds that there is no need to examine the complaint under Article 1 of Protocol No. 1; 4. Holds that there is no need to examine the complaint under Article 13 of the Convention; 5. Holds (a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable on the date of settlement: (i) EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; EUR 511 (five hundred and eleven euros) of the said sum to be paid to the applicant and EUR 1,489 (one thousand four hundred and eighty-nine euros) to be paid into the bank account of the applicant’s representative, Mr M. Ekimdzhiev; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 6. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 6 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan Blaško Angelika Nußberger Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII