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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Galya Ivanova PAVLOVA v Bulgaria - 39855/03 [2008] ECHR 1361 (14 October 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1361.html Cite as: [2008] ECHR 1361

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FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39855/03
by Galya Ivanova PAVLOVA
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 14 October 2008 as a Chamber composed of:

Rait Maruste, President,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 29 November 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Galya Ivanova Pavlova, is a Bulgarian national who was born in 1963 and lives in Yambol.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

At the material time the applicant was employed as a human resources specialist at a steel production company.

(a)  The proceedings instituted in September 1998

On 16 February 1998 the applicant was given a one month notice of termination of employment due to a reduction of the payroll, and was offered a less well paid job with the same company.

On 17 September 1998 she issued proceedings against her employer in the Sofia District Court, complaining about the loss of income resulting from her re assignment to a less well paid job.

In a judgment of 29 June 1999 the Sofia District Court, in a single-judge formation consisting of judge R.Y., dismissed the claim. The court found that the applicant had actually not been re assigned, but that her previous employment had been terminated and she had been re hired, with the result that she could not claim compensation for re assignment.

The applicant appealed to the Sofia City Court.

At a hearing held by that court on 23 November 2000 the applicant asked the proceedings to be stayed pending the outcome of the proceedings instituted in May 1999 (see below). On 4 June 2001 the court turned down her request.

The applicant lodged an interlocutory appeal against this ruling. On 22 November 2001 the Supreme Court of Cassation found that it could not examine the appeal as it had no access to the case file of the May 1999 proceedings. It therefore sent the case back to the Sofia City Court, instructing it to enclose this case file and return all the materials to the Supreme Court of Cassation for an examination of the appeal on its merits.

On 6 August 2002 the Supreme Court of Cassation upheld the Sofia City Court's ruling of 4 June 2001, holding that the resolution of the case was not dependent on the outcome of the 1999 proceedings.

The proceedings on the merits then resumed before the Sofia City Court. After holding an unknown number of hearings, in a judgment of 27 October 2004 it upheld the Sofia District Court's judgment. The text of the court's judgment indicated that it was appealable on points of law.

The applicant lodged such an appeal, but in a decision of 14 March 2007 the Supreme Court of Cassation declared it inadmissible, observing that the Sofia City Court's judgment was not subject to appeal on points of law.

(b)  The proceedings instituted in May 1999

On 10 February 1999 the applicant was dismissed from her employment on account of alleged unsatisfactory performance of her duties.

On 25 May 1999 she brought an action, seeking a declaration that the dismissal had been unfair, reinstatement and compensation for six months of lost wages. She alleged that her dismissal had been the result of her employer's negative bias.

In a judgment of 17 July 2000 the Sofia District Court dismissed the action, finding, inter alia, that the applicant's allegations of bias were disproved by the facts.

The applicant appealed to the Sofia City Court. The formation examining the appeal comprised judge R.Y., who earlier, as a judge in the Sofia District Court, had examined the applicant's claim against her re classification (see above). The applicant requested her to withdraw from the case, but the request was turned down.

During one of the hearings, held on 24 April 2001, the applicant's employer was represented by Mr V., legal counsel.

At a hearing held on 17 May 2003 the Sofia City Court examined the case in a formation comprising judges R.Y. and R.D. and junior judge P.G. The applicant submitted that at the outset of the hearing the formation had comprised Mr V. as a junior judge, but that he had been replaced by Mr P.G. without this fact being noted down in the minutes. There is no indication that the applicant later requested correction of the minutes under Article 126 § 2 of the 1952 Code of Civil Procedure.

After holding an unknown number of hearings, in a judgment of 29 April 2004 the Sofia City Court, sitting in a formation composed of judges R.Y., R.D. and K.D., upheld the lower court's judgment. It found that the applicant's dismissal had been due to her inability to perform her duties satisfactorily.

On 29 November 2004 the applicant appealed on points of law. After holding a hearing on 8 February 2008, in a final judgment of 1 July 2008 the Supreme Court of Cassation upheld the lower court's judgment.

2.  Other facts relevant to the applicant's complaints

On 5 December 1997 an accident occurred at the factory where the applicant worked. She was inured and treated in hospital.

Between 1991 and 1998 applicant was involved in proceedings with her employer concerning her company-allotted flat.

In 1998 a disciplinary penalty – a reprimand – was imposed on the applicant. She challenged it before the Sofia District Court. The court dismissed her claim in a judgment of 23 April 1999.

The applicant submitted that she had often expressed her opinion freely at her workplace, but had been warned by her employer that such behaviour was unacceptable and could have negative consequences for her.

The applicant is currently unemployed and her efforts to find a job are apparently unfruitful.

B.  Relevant domestic law

Article 217a of the 1952 Code of Civil Procedure, added in July 1999, created a “complaint about delays”. In such a complaint a litigant aggrieved by the slow examination of the case, delivery of judgment or processing of an appeal against a judgment could request the chairperson of the higher court to give mandatory instructions for faster processing of the case. On 1 March 2008 the 1952 Code of Civil Procedure was superseded by the 2007 Code of Civil Procedure. A similar procedure is laid down in Articles 255 57 of the new Code.

COMPLAINTS

THE LAW

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Article 13

“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.”

The Court considers that it cannot determine the admissibility of these complaints on the basis of the case file. It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal...”

As regards the first point, the Court notes that according to its and the former Commission's case law, the fact that a judge has been involved in other proceedings concerning the same parties is not in itself reasonably capable of giving rise to legitimate doubts as to his or her impartiality (see Gillow v. the United Kingdom, judgment of 24 November 1986, Series A no. 109, p. 28, § 73; Schmid v. Austria, no. 11831/85, Commission decision of 9 December 1987, Decisions and Reports 54, p. 144; Krone Verlag GmbH and Mediaprint Anzeigen GmbH & Co KG v. Austria, no. 28977/95, Commission decision of 21 May 1997, unreported; and Anguelov v. Bulgaria (dec.), no. 45963/99, 14 December 2004).

Concerning the second point, the Court observes that the fact that a judge has acted in another capacity in the same proceedings may compromise the tribunal's impartiality (see MeZnarić v. Croatia, no. 71615/01, §§ 33 36, 15 July 2005, with further references). However, in the instant case it does not find support for this allegation in the case file. At the hearing before the Sofia City Court on 24 April 2001 the applicant's employer was represented by Mr V., whereas the case was later decided by judges R.Y., R.D. and K.D. The applicant alleged that Mr V. had appeared as a junior judge at the outset of the hearing before the same court on 17 May 2003 and had been replaced by another junior judge. However, this allegation finds no corroboration in the minutes of that hearing. While the applicant submitted that these minutes were incomplete, there is no indication that she requested their correction as she was entitled to.

It follows that these complaints are manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

It follows that these complaints must be declared inadmissible as being manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning the length of the proceedings instituted in September 1998 and May 1999 (complaint no. 1) and the alleged lack of effective remedies in that respect (complaint no. 2);

Declares the remainder of the application inadmissible.

Claudia Westerdiek Rait Maruste
Registrar President