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FIFTH
SECTION
CASE OF
STOYANOVA TSAKOVA v. BULGARIA
(Application
no. 17967/03)
JUDGMENT
STRASBOURG
25
June 2009
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 Stoyanova Tsakova
v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Renate
Jaeger,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 2 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17967/03) 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 Margarita Viktorova
Stoyanova Tsakova (“the applicant”), on 19 May 2003.
- The
applicant was represented by Ms N. Kostova, a lawyer practising in
Sofia. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
- The
applicant alleged, in particular, that the proceedings in which she
had disputed the use of a flat with her former husband had been
unfair on account of the Supreme Court of Cassation's failure to
acquaint itself with a memorial filed by her counsel.
- On
27 September 2007 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Sofia.
- Following
a petition from her former husband, on 29 October 1998 the Sofia
District Court dissolved their marriage. It gave the applicant
custody of the couple's only child, and also gave her the use of the
former matrimonial home. It found that this home was a flat acquired
jointly by the former spouses during their marriage, situated in the
“Strelbishte” neighbourhood of Sofia, and intended by
them to fulfil the family's housing needs (the applicant had moved
into that flat in 1997 although it had not been fully finished). The
fact that the applicant's former husband had never lived there was of
no relevance, as this had been the result of his disregarding his
duty to co habit with his spouse. As the applicant had been
given custody of their only child, the court held that she was
entitled to use the flat.
- The
applicant's former husband appealed against the court order relating
to the former matrimonial home. He averred that this home was in fact
another flat – situated in the “Borovo”
neighbourhood of Sofia and co owned by him and his mother and
sister – where the spouses had lived before their de facto
separation in 1995.
- On
16 June 2000 the Sofia City Court upheld the order. It agreed with
the Sofia District Court that the former matrimonial home was the
flat in “Strelbishte”, as it had been acquired, by means
of a preliminary contract with the builder, during the marriage, for
the family's housing needs, as at that time the spouses had not owned
another home, and as the applicant and her child had been living
there at the time when the marriage was dissolved. The flat in
“Borovo” was not the former matrimonial home, because it
was co-owned by the applicant's former husband and third parties and
both spouses had left it in 1995.
- The
applicant's former husband appealed on points of law.
- In
a judgment of 29 March 2001 the Supreme Court of Cassation quashed
the lower court's judgment and remitted the case. It held that the
former matrimonial home was the flat in “Borovo”, not the
one newly built in “Strelbishte”. According to its
settled case law, the former matrimonial home was the one which
had been used before the dissolution of the marriage and, in case of
a de facto separation preceding the dissolution, the one used
before the separation.
- On remittal, the Sofia City Court, in a judgment of 20
March 2002, again upheld the order of the Sofia District Court. It
relied on interpretative decision no. 12/1971 of the Plenary Meeting
of the Supreme Court (see paragraph 18 below), according to whose
point 2 (b), in the event of a de facto separation, the former
matrimonial home is the one acquired during the separation with funds
accumulated during the marriage. On this basis, it found that the
former matrimonial home was the flat in “Strelbishte”.
Given the unambiguous rule set out in the interpretative decision,
the fact that the spouses had not lived in that flat together was
immaterial.
- The
applicant's former husband appealed on points of law.
- The Supreme Court of Cassation held a hearing on 9
October 2002. The applicant was represented by counsel, who asked the
court to dismiss the appeal and said that he had developed his
arguments in a memorial which he filed during the hearing.
- In the memorial, which ran to four pages, the
applicant's counsel argued that the Sofia City Court had not erred by
taking into account interpretative decision no. 12/1971 instead of
the guidelines of the Supreme Court of Cassation given in the
judgment of 29 March 2001, since where there was conflict between the
instructions given in a specific case and the solution envisaged by a
binding interpretative decision the latter prevailed. He further
presented a number of arguments why the flat in “Strelbishte”
was the former matrimonial home and why its use should be given to
the applicant. He asserted that this flat had been acquired by the
spouses with a view to fulfilling the family's housing needs, that
the applicant had contributed financially to its acquisition and that
the only reason why she did not have title to it was her former
husband's protracting the conclusion of the final contract for its
acquisition from the builder. The applicant had brought a separate
suit, seeking a court order declaring the preliminary contract with
the builder final. However, that suit was still pending. The spouses
had lived in the flat since 1997, but even assuming that the
applicant's former husband had not done so throughout the entire
period, this had been due to his dereliction of the duty to co habit
with his wife. The applicant and her child could not live in the flat
in “Borovo”, because this was not the former matrimonial
home, and this would mean co habiting with their former in laws,
with whom they did not have good relations.
- On 21 November 2002 the Supreme Court of Cassation
quashed the Sofia City Court's judgment. In the beginning of its
two and a half page opinion it observed that the
applicant had not made submissions in the proceedings before it. It
found no indication that the spouses had obtained title and thus
acquired the flat in “Strelbishte” during the marriage;
there was merely a preliminary contract in respect of it. The date of
delivery of the flat was irrelevant. Therefore, point 2 (b) of
interpretative decision no. 12/1971 (see paragraph 18 below) was
not applicable. However, even if the spouses had acquired the flat
during the marriage, it would not have become the matrimonial home,
because it had not been acquired in order to fulfil the family's
housing needs. Where a home had not been acquired for such purpose,
point 2 (b) was inapposite on account of the repeal in 1991 of a
communist-era statute restricting the number of properties which an
individual was allowed to own. Thereafter, the contribution of funds
by both spouses could be of importance solely for the existence or
otherwise of a joint title to a home acquired during the marriage,
not for its designation as the matrimonial home. The former
matrimonial home was the flat in “Borovo”, as the spouses
had lived there before their de facto separation in 1995.
Since the couple's child was already an adult and since the applicant
shared some of the responsibility for the breakdown of the marriage,
the use of the former matrimonial home was to be given to her former
husband.
- On 29 November 2002 the applicant's counsel asked the
Supreme Court of Cassation to rectify the statement in its judgment
that he had not made any submissions in the cassation proceedings. He
considered that statement to be an obvious mistake, because, as noted
in the minutes of the hearing, he had filed a memorial, which
featured after page 10 in the case file. On 6 December 2002 the court
refused, saying that only errors in the operative provisions of a
judgment could be rectified.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article 107 § 1 of the 1985 Family Code provides
that when a court allows a divorce petition, it must give the use of
the former matrimonial home to one of the spouses if it cannot be
used separately by both of them. In reaching its decision, the court
must have regard to the interests of the children, the fault for the
breakdown of the marriage, the health of the spouses and all other
relevant circumstances.
- Interpretative decision no. 12/1971 of the Plenary
Meeting of the Supreme Court (постановление
№ 12 от 28 ноември
1971 г., Пленум на
ВС) was adopted on 28 November 1971 under the 1968
Family Code (which was superseded by the 1985 Family Code). It deals
with all issues relating to the use of the former matrimonial home.
Point 2 (b) of its operative provisions defines the former
matrimonial home as the one acquired while the spouses were separated
de facto, but with funds accumulated during the marriage.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the Supreme Court of Cassation had erroneously found that she had not
expressed an opinion in the proceedings before it and had not
examined her submissions and objections to her former husband's
appeal on points of law.
- Article
6 § 1 provides, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing...”
A. The parties' submissions
- The
Government analysed in detail the reasoning given by the Supreme
Court of Cassation, and concluded that the judges who had examined
the case had fully assessed the evidence adduced by the parties and
the well-foundedness of their arguments. It was thus clear that the
panel deciding the case had been acquainted in detail with the
parties' memorials and arguments, and that the note in its judgment
that the applicant had not expressed an opinion was an inadvertent
clerical mistake.
- The
applicant argued that the text of the judgment clearly showed that
the Supreme Court of Cassation had not taken into account the
memorial filed by her counsel. In her view, the Government's
speculations about this fact – which in any event could not be
established directly – were fully disproved by the judgment.
The only way for outsiders to scrutinise the courts' decision making
process was to examine the written reasons given by them. These were
official documents which objectivised the courts' ratio decidendi.
There was nothing in the case file to show that the Supreme Court of
Cassation had – contrary to its own statement –
acquainted itself with the memorial submitted to it.
B. The Court's assessment
- The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention, nor inadmissible on any other grounds. It must
therefore be declared admissible.
- Concerning
the merits of the complaint, the Court observes that the right to a
fair trial as guaranteed by Article 6 § 1 includes the right of
the parties to the trial to submit any observations that they
consider relevant to their case. The purpose of the Convention being
to guarantee not rights that are theoretical or illusory but rights
that are practical and effective, this right can only be seen to be
effective if the observations are actually “heard”, that
is duly considered by the court. In other words, the effect of
Article 6 is, among others, to place the “tribunal” under
a duty to conduct a proper examination of the submissions, arguments
and evidence adduced by the parties, without prejudice to its
assessment of whether they are relevant to its decision (see
Quadrelli v. Italy, no. 28168/95, § 34, 11 January
2000; and Dulaurans v. France, no. 34553/97, § 33, 21
March 2000, with further references). In this context, the Court has
stressed the importance of appearances in the administration of
justice, but it has at the same time made clear that the standpoint
of the persons concerned is not in itself decisive. The misgivings of
the litigants with regard to the fairness of the proceedings must be
capable of being found objectively justified (see Kraska v.
Switzerland, 19 April 1993, § 32, Series A no. 254 B).
- In
the instant case, the Court firstly notes that the Government did not
dispute that, following her former husband's appeal on points of law,
the applicant's counsel actually filed a memorial with the Supreme
Court of Cassation (see, as an example to the contrary, Quadrelli,
cited above, § 33).
- It
must therefore be established – in so far as possible on the
basis of the material in the case – whether the Supreme Court
of Cassation actually took into account this memorial when deciding
the case. On this point, it should be observed that in the beginning
of its judgment this court mentioned that the applicant had not made
any submissions, thus implying that it had not had regard to the
memorial. However, its reasoning makes it clear that it dealt with
all substantial issues in the case and addressed the main arguments
raised in the memorial filed by the applicant's counsel, namely, the
applicability of interpretative decision no. 12/1971, the question
whether or not the spouses had acquired the flat in “Strelbishte”
during the marriage, and the question whether or not the applicant's
financial contribution was relevant in this context (see paragraphs 14
and 15 above). It is not the Court's task to verify whether these
rulings were correct in terms of Bulgarian law, because, not being a
court of appeal from the national courts, it cannot deal with errors
of fact or law allegedly made by them (see, among many other
authorities, García Ruiz v. Spain [GC], no. 30544/96,
§ 28, ECHR 1999 I; and Cornelis v. the Netherlands
(dec.), no. 994/03, ECHR 2004 V (extracts)). It is
sufficient to note that the reasoning of the Supreme Court of
Cassation shows that it was aware of the arguments raised in the
memorial. It is moreover clear that the memorial actually featured in
the court's case file (see, as an example to the contrary, Quadrelli,
cited above, § 34) and that the applicant's counsel was aware of
this fact (see paragraph 16 above).
- The
Court additionally notes that, after acquainting himself with the
Supreme Court of Cassation's judgment, the applicant's counsel did
not voice any doubts as to whether his arguments had in fact been
examined by the court; he merely requested a rectification of the
paragraph of the judgment where it was mentioned, erroneously, that
he had not made any submissions (see paragraph 16 above).
- In
view of the foregoing, the Court finds no evidence to suggest that
the Supreme Court of Cassation failed to examine the memorial filed
by the applicant's counsel with due care before deciding the case.
The applicant's misgivings on this point, not shared by her counsel
and based entirely on what appears to be a mere clerical mistake in
the court's judgment, cannot be considered to be objectively
justified.
- There
has therefore been no violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention that no
remedy existed against the violation of her fair trial rights
committed by the Supreme Court of Cassation.
- Article
13 provides:
“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 does not find it necessary to examine whether the applicant's
complaint is arguable. It observes that where a violation of the
Convention is alleged to have been committed by the highest court or
authority, the application of Article 13 is subject to an implied
limitation since it cannot be construed as requiring that special
bodies be set up for the purpose of examining complaints against
decisions by the highest courts (see Crociani and Others v. Italy,
nos. 8603/79, 8722/79, 8723/79 and 8729/79, Commission decision of 18
December 1980, Decisions and Reports 22, p. 147, at pp. 223 24;
Myrman v. Sweden, no. 13538/88, Commission decision of 7 May
1990, unreported; R.A. and L.A. v. Sweden, no. 21524/93,
Commission decision of 9 July 1993, unreported; and Amihalachioaie
v. Moldova (dec.), no. 60115/00, 23 April 2002).
- It
follows that this complaint is manifestly ill founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
unfairness of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 25 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
