ECHR Article 6
Civil proceedings
Article 6-1
Fair hearing
Adversarial trial
Equality of arms
Failure to send respondents’ submissions to applicants for either information or comment in leave-to-appeal proceedings before the Supreme Court of Cassation: inadmissible
Facts – The applicants were parties to different sets of civil proceedings. In 2010-11 they appealed on points of law. However, the Supreme Court of Cassation refused to admit their appeals for examination for failure to meet the criteria set out in the Code of Civil Procedure 2007. Before the European Court, the applicants complained under Article 6 – 1 that the failure of the domestic courts to send them the respondents’ submissions in reply to their appeals on points of law and give them an opportunity to reply to those submissions in writing or orally before the Supreme Court of Cassation determined whether or not to admit the appeals for examination had put them at a net disadvantage vis-a-vis their opponents, in breach of the principles of adversarial proceedings and equality of arms. They further complained that they had unjustifiably been denied access to the Supreme Court of Cassation.
The Bulgarian Code of Civil Procedure 2007 envisaged a new role for the Supreme Court of Cassation in civil cases. Under that Code, the main task of that court is to unify the application of the law by giving judgments of principle. For that reason, appeals on points of law to it do not lie as of right, as used to be the case under the Code of Civil Procedure 1952, but are subject to a pre-selection. In the pre-selection proceedings, the Supreme Court of Cassation does not deal with the merits of the case or even with the merits of the appeal on points of law, but merely decides, by reference to the criteria set out in the Code, whether or not the appeal should be admitted for examination. It does so on the basis of a brief by the appellant addressing the question of the admissibility of the appeal and of any submissions by the respondent in reply. The Code makes no provision for the respondent’s submissions to be sent to the appellant and does not say whether the appellant may or may not reply to them. In addition, it provides for a closed hearing of the admissibility point. The burden of framing the issues clearly and convincing the Supreme Court of Cassation that the appeal should be admitted for examination plainly rests on the appellant.
Law – Article 6 – 1
(a) Equality of arms and adversarial trial – Having noted that there was no uniform approach in its case-law as to the applicability of Article 6 to leave-to-appeal or similar proceedings before a supreme court, the Court left that question open.
The specific point at issue was whether the practice of the Bulgarian courts, in the absence of any explicit rule, not to send respondents’ submissions in reply to appeals on points of law to appellants or to give appellants an opportunity to reply was in breach of the principles of equality of arms and adversarial trial. In the instant case, each of the applicants had had an opportunity to put before the Supreme Court of Cassation all of their arguments as to why their appeals should be admitted for examination by reference to the relevant provisions of the 2007 Code. The non-communication of the respondents’ submissions in reply and the lack of an additional opportunity to revisit the point in reaction to those submissions had not therefore – in view of the special nature of the proceedings – placed the applicants at a substantial disadvantage vis-a-vis their opponents or impermissibly impinged on the adversarial character of the proceedings. Moreover, it could not be overlooked that before reaching the Supreme Court of Cassation the applicants’ cases had been subjected to a full and adversarial examination by two levels of court with full jurisdiction.
Conclusion: inadmissible (manifestly ill-founded).
(b) Access to court – As a result of the pre-selection procedure introduced by the 2007 Code, in the period 2010-12 only some 20% of appeals on points of law to the Supreme Court of Cassation in civil and commercial cases had been admitted for examination, relieving that court of the task of dealing with the merits of a considerable number of cases with a view to allowing it to concentrate on its core task of giving judgments elucidating and making uniform the application of the law. Similar rules governing access to the highest appeal courts existed in other Contracting States such as Albania, Armenia, Finland, France, Hungary, Poland, Sweden, Ukraine and the United Kingdom. In those circumstances, the Court was satisfied that the limitation on the admissibility of appeals on points of law in civil cases to the Bulgarian Supreme Court of Cassation had pursued a legitimate aim. The manner in which that limitation was set out in the 2007 Code was within the State’s margin of appreciation. As regards the alleged vagueness of the provisions governing the pre-selection of appeals, such provisions had to be framed in a way that gave the highest courts of appeal enough latitude to determine whether or not to accept a case for examination, and thus allowed them to concentrate on their core task of unifying the application of the law throughout the judicial system at whose pinnacle they stood. In that connection, the relevant provision of the Bulgarian 2007 Code had been challenged before the Constitutional Court, which had held that, although somewhat vague, it was as a whole not unconstitutional, and that the manner of its application would be a question of case-law and judicial practice. In an apparent response to that ruling, the Supreme Court of Cassation had issued a binding interpretative decision in which it had sought to clarify, as much as possible, the intended manner of application of that provision. In sum, bearing in mind the special role of the Supreme Court of Cassation envisaged in the 2007 Code, the Court found that the above regulatory setup could not in itself be regarded as being in breach of Article 6 – 1.
In the cases of each of the applicants, the respective panels of the Supreme Court of Cassation had found, in fully reasoned decisions, that the appeals on points of law had not met the criteria set out in the 2007 Code. Not being a court of appeal from the national courts, the Court did not consider that it had to assess the correctness of those rulings. In those circumstances, and given that before reaching the Supreme Court of Cassation the applicants’ cases had been examined by two levels of court with full jurisdiction, the restriction on the applicants’ right of access to a court had not been disproportionate and had not impaired the very essence of that right.
47450/11 – Legal Summary, [2014] ECHR 343
Bailii
European Convention on Human Rights
Human Rights
Updated: 02 December 2021; Ref: scu.523401
