FIFTH SECTION
 
 
 
 
 
 
CASE OF GYULEVA v. BULGARIA
 
(Application no. 38840/08)
 
 
 
 
 
JUDGMENT
 
 
 
 
 
 
 
 
 
STRASBOURG
 
9 June 2016
 
FINAL
 
17/10/2016
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Gyuleva v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Khanlar Hajiyev,
 Erik Møse,
 André Potocki,
 Yonko Grozev,
 Síofra O’Leary,
 Carlo Ranzoni, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 10 May 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 38840/08) 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 Valentina Atanasova Gyuleva (“the applicant”), on 6 August 2008. 2. The applicant was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice
3. The applicant alleged, in particular, that her rights under Article 6 § 1 of the Convention had been breached because she had not been notified of a set of civil proceedings instituted against her and had not been able to defend herself in the context of those proceedings. 4. On 16 March 2015 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1947 and lives in Plovdiv. 6. Between 1992 and 2000 the applicant was involved in proceedings regarding the restitution of a flat which she and her family had been occupying. The flat, purchased from the State by the applicant’s parents in 1968, had become State property after having been nationalised in the period following 1947, and denationalisation legislation adopted in the beginning of the 1990s provided that under certain circumstances even properties which had in the meantime been sold to private parties could be subject to restitution. At the end of the proceedings at issue the courts found that the pre-nationalisation owners were the true owners of the flat by virtue of restitution. Those proceedings were the subject of the applicant’s first application before the Court, in which the Court found a violation of Article 1 of Protocol No. 1, and also a violation of Article 6 § 1 of the Convention due to the length of the court proceedings (see Gyuleva and Others v. Bulgaria, no. 76963/01, 25 June 2009). 7. On 1 February 2002 the persons recognised as owners of the flat at issue (the pre-nationalisation owners) sold it to a Mr and Mrs P. Soon after that, Mr and Mrs P. brought rei vindicatio proceedings against the applicant, who was still living in the property. Their claim was allowed at first instance by the Plovdiv District Court on 24 October 2002. Even though the rei vindicatio proceedings after that remained the subject of appeals, the applicant vacated the property on 10 January 2003. She moved to a house she owned in the village of Hrabrino, where she registered her address on 4 February 2003. 8. On 4 May 2005 Mr and Mrs P. brought another action against the applicant, for unjust enrichment, alleging that she had had no valid legal grounds to live in their flat between 1 February 2002 and 10 January 2003, and seeking compensation. 9. On 16 May 2005 the Plovdiv District Court issued a summons, notifying the applicant of the action brought against her and the date of the first court hearing. The summons was sent to the mayor of Hrabrino for delivery to the applicant. However, in a letter to the District Court dated 16 June 2005, the mayor sent the summons back, stating that “no such person has been registered” as living in the village. 10. On 8 July 2005, upon a request by Mr and Mrs P., the Plovdiv Regional Directorate of the Interior issued a certificate confirming that the applicant’s last declared address was in the village of Hrabrino. 11. Without making any further attempts to find the applicant, on 26 August 2005 the Plovdiv District Court, after concluding that the applicant was of “unknown address”, published a notification concerning the unjust enrichment proceedings in the State Gazette (Article 50 § 1 of the 1952 Code of Civil Procedure, see paragraph 18 below in fine). 12. The District Court appointed ex officio a lawyer to represent the applicant, to whom all subsequent papers and notifications were served. According to the applicant, the lawyer did not adequately defend her interests in the proceedings, because she failed to seek to contact the applicant, to appeal against the Plovdiv District Court’s judgment, which would have been standard practice, to make any evidentiary requests, or to contest in any meaningful manner the claimants’ arguments, including by raising what the applicant considered a valid objection that the claims against her were partially time-barred. 13. On 6 April 2006 the Plovdiv District Court gave judgment, allowing the claim against the applicant and ordering her to pay 3,573 Bulgarian levs (BGN), plus interest, to Mr and Mrs P. 14. Upon an appeal by Mr and Mrs P., in a judgment of 10 July 2006 which was final, the Plovdiv Regional Court ordered the applicant to pay the claimants an additional BGN 1,006.21. 15. The applicant became aware of the proceedings and the judgments against her on 22 February 2008, when she received a notice from a bailiff to pay the sums due. 16. The applicant points to several additional facts. In 2004, she was appointed as a juror at the Plovdiv District Court for the period between 2005 and 2009 and she received notifications of the court hearings she needed to attend at another address she had provided to the authorities (the address of her brother in Plovdiv). At that same address, in 2007 and 2008, she received two summonses related to other unspecified proceedings brought against her by Mr and Mrs P. At that same address, in February 2008, she received the bailiff’s notice mentioned in the previous paragraph. The applicant is a well-known piano teacher at the Academy of Music, Dance and Fine Arts in Plovdiv whose place of work could have been known to the authorities. 17. In the months after February 2008 the applicant paid the sums owed by her in full. The overall amount paid, comprising the damages awarded to Mr and Mrs P., accrued interest and the relevant fees and expenses, totalled BGN 8,767.07 (equivalent to approximately 4,473 euros (EUR)). II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Service of summons
18. At the relevant time, service of a summons was regulated by Articles 41 to 52 of the 1952 Code of Civil Procedure, in force until 1 March 2008. Summonses were as a rule to be delivered by court officials or, where appropriate, through the competent municipality or by a village mayor (Article 41 §§ 1 and 2). It was also possible to send them by registered mail (Article 41 § 3). Summonses could also be served on individuals at their place of work (Article 49). As a last resort, in cases where, inter alia, the party’s address was unknown, that party could be summoned through a notification published in the State Gazette, under Article 50 § 1 of the Code, which provided:
“Where, at the time the proceedings are initiated, the defendant’s address is unknown, or the summons cannot be served at his registered address during a month and his absence has been certified on the summons with the signature of at least one witness, with the person serving the summons indicating [the witness’] three names and address, the defendant shall be summoned through a publication in the unofficial section of the State Gazette, made at least a month before the court hearing. The court shall resort to such means of summoning after having satisfied itself, through a check at the respective address service or otherwise, that the defendant’s address is indeed unknown.”
B. Re-opening of civil cases and relevant time-limits
19. Article 231 § 1 of the 1952 Code of Civil Procedure provided that parties could seek the setting aside of a final judgment and the re-opening of their case in situations, inter alia, where they had been deprived of the possibility to participate in the proceedings, in breach of the respective rules, or where a court-appointed representative had been assigned to represent them, even though their address had not been unknown. Similar provisions are contained in Article 303 § 1 (5) and (6) of the new Code of Civil Procedure, adopted in 2007 and in force since 1 March 2008. 20. Pursuant to Article 232 § 1 of the 1952 Code, any interested party intending to seek a re-opening of their case on the grounds mentioned above, could do so within three months of becoming aware of the contested judgment, but no later than a year following its entry into force. An identical provision was initially contained in Article 305 of the 2007 Code of Civil Procedure. 21. On 30 May 2008 an amendment to Article 305 of the 2007 Code was published in the State Gazette. The rule that the re-opening of a case could only be sought within a year of the impugned judgment’s entry into force was repealed, and the only requirement which remained was that the interested party should apply for a re-opening of their case within three months of becoming aware of that judgment. 22. Following that amendment, when dealing with requests for re‑opening in respect of judgments which had entered into force under the rules of the 1952 Code, in situations where the absolute time-limit of one‑year following the judgment’s entry into force had expired but the three-month time-limit from the moment the interested party had become aware of it had not, the Supreme Court of Cassation held in some cases that the parties were no longer entitled to seek re-opening (Определение № 8 от 21.01.2011 г. по гр. д. № 1418/10 г. на І г. о., Определение № 171 от 27.06.2013 г. по гр. д. № 3668/13 г. на ІV г. о.), and in others that they could still do so, despite the expiry of more than one year (Решение № 374 от 03.10.2011 г. по гр. д. № 1356/10 г. на ІV г. о., Решение № 114 от 10.04.2012 г. по гр. д. № 598/11 г. на ІV г. о.). Due to the divergent case‑law, the matter was brought up before the Plenary of the Supreme Court of Cassation, for interpretative decision. 23. Article 303 § 1 (7) of the 2007 Code of Civil Procedure provides that an interested party may also request the re-opening of civil proceedings in a case where a “judgment of the European Court of Human Rights has found a violation of the [Convention]” and “a new examination of the case is required in order to repair the consequences of the violation”. C. Liability of the authorities for damage caused to individuals
24. Section 1 of the State and Municipalities Responsibility for Damage Act (“the SMRDA”) provides that the State and the municipalities are liable for damage suffered by private individuals as a result of unlawful decisions, acts or omissions by public officials committed in the course of or in connection with the performance of their duties. Section 2 of the same Act provides for liability of the courts in specific situations, which are mostly in the context of criminal proceedings and which do not include defective service of a summons. THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
25. The applicant complained under Article 6 § 1 and Article 13 of the Convention that she had not been duly notified of the proceedings against her and had not been able to participate in them. In addition, after becoming aware of the judgments against her she had been unable to seek the re‑opening of the proceedings because of the operation of the time-limit. She also complained under Article 1 of Protocol No. 1 of the obligation to pay a substantial sum of money as a result of proceedings in which she had been unable to participate. 26. The Court is of the view that it is sufficient to examine the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which, in so far as relevant, read:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“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.”
A. Admissibility
1. Exhaustion of domestic remedies
27. The Government argued that the applicant had failed to exhaust the available domestic remedies, because she had not brought an action in tort under section 1 of the SMRDA (see paragraph 24 above) against the mayor of Hrabrino, who had wrongly informed the Plovdiv District Court that she was not registered as living in the village. 28. The applicant pointed out that the Government had not presented any decisions or judgments of the national courts which showed that the remedy suggested by them could have succeeded. She argued that it had not been the mayor, but the Plovdiv District Court which had been responsible for the service of the summons, and that the mayor could not be held directly liable for the failure to notify her in person of the claims against her. Lastly, the applicant pointed out that courts could not be held liable under the SMRDA for defective service of a summons. 29. The Court observes that it was indeed the Plovdiv District Court which was responsible for summoning the applicant and notifying her of the proceedings against her. In particular, it was that body which assessed the situation after having received the letter from the mayor of Hrabrino stating that the applicant did not live in the village, and judged it necessary to resort to summoning the applicant through the State Gazette (see paragraphs 9 and 11 above). The Court is thus not convinced that the Hrabrino mayor, who was involved in only one stage of the service of summons, bore such direct responsibility for the failure to summon the applicant in person as to make him liable under the SMRDA. It also notes that the Government have not put forward any particular arguments in that regard, whereas it is in principle incumbent on them to satisfy the Court that the remedy referred to by them was available and effective (see, for example, Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V). 30. The Court thus concludes that the applicant did not fail to use a remedy which the Government has shown to be effective and adequate in the circumstances. On that ground it dismisses the Government’s objection regarding the non-exhaustion of domestic remedies. 2. Conclusion as to admissibility
31. The Court notes that the application 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. Article 6 § 1
(a)  Arguments of the parties
32. The Government argued that the Plovdiv District Court had done all that was necessary to summon the applicant in person. Without much elaboration and referring to the provisions of Articles 303 and 305 of the 2007 Code of Civil Procedure (see paragraphs 19-21 above), they also argued that it had been possible for the applicant to seek the re-opening of the proceedings. 33. The applicant disagreed. She argued, in particular, that she had been unable to seek a re-opening of the case. She had learned of the proceedings against her on 22 February 2008, well over a year after the date of the final judgment in those proceedings – 10 July 2006 – and thus had not been able to apply for a re-opening of the case under the 1952 Code of Civil Procedure. As to the new Code, in force since 1 March 2008, it had also required initially that any request for a re-opening of a case be made within a year of the final judgment. By the time that requirement had been repealed, on 30 May 2008, the three-month period, running from the date when the applicant had become aware of the judgment of 10 July 2006, had expired as well. (b)  The Court’s assessment
34. The Court observes at the outset that there is no dispute about the fact that the applicant never learnt of the unjust enrichment proceedings against her while they were pending, and only became aware of them on 22 February 2008 when she was contacted by a bailiff. 35. The Court reiterates that the possibility for parties to take part in proceedings flows from the objectives and purpose of Article 6 of the Convention, taken as a whole. Article 6 § 1 does not provide for a specific form of service of documents (see Bogonos v. Russia (dec.), no. 68798/01, 5 February 2004). However, the general concept of a fair trial, encompassing also the fundamental principle that proceedings should be adversarial (see Ruiz-Mateos v. Spain, 23 June 1993, § 63, Series A no. 262), requires that all parties to civil proceedings should have the opportunity to have knowledge of and comment on the observations filed or evidence adduced with a view to influencing the court’s decision (see Lobo Machado v. Portugal, 20 February 1996, § 31, Reports 1996‑I). Above all, that presupposes that the person against whom proceedings have been initiated should be informed of that fact (see Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 77, 4 March 2014). If court documents, including summonses to hearings, are not served in person, then an applicant might be prevented from defending himself in the proceedings (see Aždajić v. Slovenia, no. 71872/12, § 48, 8 October 2015). 36. Neither the letter nor the spirit of Article 6 of the Convention prevent a person from waiving, of his or her own free will, the safeguards of a fair trial. However, such a waiver must be established in an unequivocal manner and be attended by the minimum safeguards commensurate with its importance (see, among others, Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006‑XII). 37. In numerous cases concerning complaints about the fairness of criminal proceedings, the Court has held that although proceedings which took place in the accused’s absence are not in themselves incompatible with Article 6 of the Convention, a denial of justice nevertheless occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him or her a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he or she waived his or her right to appear and to defend him- or herself (see, for example, Colozza v. Italy, 12 February 1985, § 29, Series A no. 89; Sejdovic v. Italy [GC], no. 56581/00, § 82, ECHR 2006‑II; and Kounov v. Bulgaria, no. 24379/02, § 42, 23 May 2006). 38. In two recent cases, Dilipak and Karakaya and Aždajić (both cited above), the Court applied the same approach to complaints concerning civil proceedings. It held that, in cases such as the present one where civil proceedings had been conducted without the applicants ever having been informed of them, it would verify: (i) whether the authorities had been diligent in informing the applicants of the proceedings, and whether the applicants could be considered to have waived their right to appear before the courts and to defend themselves; and (ii) whether domestic law provided the applicants with the appropriate means to secure a fresh adversarial hearing, once they had learnt of the default judgments against them (see Dilipak and Karakaya, § 80, and Aždajić, § 53). 39. Even if the parties to proceedings demonstrate a certain lack of diligence, the Court has held that the consequences attributed to their behaviour by the domestic courts must be commensurate to the gravity of their failings and take heed of the overarching principle of fair hearing (see Aždajić, cited above, § 71). 40. In the present case, the Plovdiv District Court attempted to summon the applicant through the mayor of the village where she lived, a possibility expressly provided for by the applicable provisions of the 1952 Code of Civil Procedure (see paragraphs 9 and 18 above). However, the mayor failed to serve the summons on the applicant, wrongly stating that she was not registered as living in that village (see paragraphs 9 and 29 above). After the police confirmed that the applicant had not declared before them another address (see paragraph 10 above), the Plovdiv District Court concluded that her actual address was unknown and proceeded with publishing a notification of the proceedings in the State Gazette (see paragraph 11 above). 41. The Court is not satisfied that before proceeding to a publication in the State Gazette the Plovdiv District Court acted with the necessary diligence to inform the applicant of the proceedings against her. Firstly, the domestic court could have attempted to serve the summons on the applicant at her place of work, an address which could have been known to it, which is a possibility provided for under domestic law (see paragraphs 16 and 18 above), or at her brother’s address, which had been used to serve other documents on the applicant and was known to it since at least 2004 (see paragraph 16 above). It did neither. Nor did it attempt to resolve the contradiction between the mayor’s statement and the information provided by the police as to the applicant’s registered address, by requesting the mayor to explicitly address this apparent contradiction. Secondly, the applicant claims that the appointment of an ex officio lawyer was not effective in the circumstances of the case (see paragraph 12 above); criticism which the Government have not contested. Lastly, as regards publication in the State Gazette, the Court has already drawn attention to the fact that such notifications may, in certain circumstances, have negative consequences for the addressees (see Dilipak and Karakaya, cited above, § 83). The authorities should have pursued the other avenues provided by the Code of Civil Procedure before resorting to this method of notification. 42. In addition, the Court cannot conclude that the applicant waived her right to participate in the proceedings and to a fair trial, because the main precondition for that would have been that she was aware of the existence of the right in question and therefore also aware of the related proceedings (see Dilipak and Karakaya, §§ 87 and 106, and Aždajić, § 58, both cited above). 43. Thus, the Court has to examine whether the applicant was afforded an opportunity by domestic law to have her case re-examined once she had learnt of the judgment against her (see paragraph 38 above). 44. The Court observes in that regard that Article 231 § 1 of the 1952 Code of Civil Procedure, in force until 1 March 2008, provided that parties who had been unduly deprived of the possibility to participate in proceedings, or where a court-appointed representative had been assigned to represent them despite their address not being unknown, could seek the setting aside of the impugned judgment and the re-opening of proceedings. Similar possibilities are provided for by Article 303 § 1 of the new Code of Civil Procedure, in force since 1 March 2008 (see paragraph 19 above). 45. However, even though those provisions could, in principle, have offered adequate redress to a person against whom a default judgment had been handed down, they could not do so for the applicant herself. When the applicant became aware on 22 February 2008 of the final judgment in her case, given on 10 July 2006 (see paragraphs 14-15 above), more than a year had already passed. At that time, the applicable domestic law provided that re-opening could only be sought within a year following the contested judgment’s entry into force (see paragraph 20 above). In addition, Article 232 § 1 of the 1952 Code of Civil Procedure and Article 305 of the 2007 Code, as phrased initially, required that any interested party seeking the re-opening of proceedings had to do so within three months of becoming aware of the judgment to be contested (ibid.). The Court notes the divergent case-law of the Supreme Court of Cassation as to whether an interested party could still seek re-opening under the 2007 Code where, as in the present case, a judgment had entered into force under the rules of the 1952 Code and one year had expired since its entry into force (see paragraph 22 above). 46. In any event, even though the one-year limitation was repealed on 30 May 2008 (see paragraph 21 above), more than three months had already passed by that time since the applicant had learned of the judgment of 10 July 2006. The Court thus accepts that the applicant had no possibility to seek a re-opening of her case. The Government, while referring generally to Articles 303 and 305 of the 2007 Code of Civil Procedure (see paragraph 32 above), did not explain why they considered it possible for the applicant to resort to the re-opening procedure provided for therein, in view of the time‑limits outlined above. Lastly, the Government have not shown that any other possibility for the applicant to obtain a fresh examination of her case existed. 47. The Court concludes accordingly that no appropriate means to secure a fresh adversarial hearing were available to the applicant once she learnt of the judgment against her.
48.

Article of the Convention at issue: Article 6
Outcome: violation