Type of act
16-06-2009 year
To the case

Decision №4

София, 16 юни 2009г.

Конституционният съд в състав:


Румен Янков


Васил Гоцев
Благовест Пунев
Емилия Друмева
Пламен Киров
Владислав Славов
Красен Стойчев
Евгени Танчев
Снежана Начева
Димитър Токушев
Георги Петканов


The case was filed on 24 April 2009 as the Ombudsman of the Republic of Bulgaria challenged the constitutionality of three groups of existing CCP (Code of Civil Procedure) provisions that are discussed below.

1. The Ombudsman claims that Art. 47 and the related provisions – Art. 43, para 2, the last sentence, Art. 50, para 4 and Art. 51, para 2 of the CCP are in contravention to Art. 6, para 2, Art. 56, Art. 121, para 1 and Art. 122, para 1 of the Constitution.

Art. 47, para 1 of the CCP reads: If the defendant cannot be found at the stated for the lawsuit address and a person who agrees to receive the notification is not found, the serving clerk shall post a notification on the door or on the mail box, and where access to them is not provided – on the entrance door or at a visible spot around it. Where access to the mail box exists, the serving clerk shall put notification into it. The text is applied respectively to the serving notifications to a supporting party and to serving an order for execution. The same holds good for serving notifications to a witness, an expert and non-participating in the lawsuit person, and the notification shall be put into the mail box, but where access to it is not provided – by posting a notification ( Art. 47, paras 7 and 8 of the CCP) . The question is: does this affect the equality of the parties and the right of the counsel for the defense to participate in the lawsuit?

Art. 47, para 1 of the CCP is intended to cope with difficulties when the writ of summons and the supplements to it are originally served. The text shows that notification by posting is a special method to parry a defendant who seeks to postpone the start of proceedings. The problem escalates into a deadlock for the claimant whenever the defendant has a registered permanent or present address – in that case the execution of serving by publication in Durzhaven Vestnik (the State Gazette), as per Art. 48, para 1 of the CCP is barred. Law is based on the presumption of the equality of people before the state and the law. Though equal people are different. There is a limit to equal treatment. Hence the technical meaning of equality. When it is stretched to its logical extreme, if the cases differ, the results will differ accordingly. It is this difference that the challenged text recognizes for the procedural status of a claimant and of a defendant differ substantially.

The CCP's Art. 43, para 2, last sentence provides that t he court may rule serving to be done by enclosing the notification to the file or by posting a notification. That modus operandi relates to what Art. 47 provides for and is not dissonant with the principle of the equality of parties in a lawsuit as it is applied to the defendant but also to the claimant and to the supporting party of either party whenever the serving is executed by an attorney-at-law as a representative by power of attorney, additionally entered and included into the lawsuit parties, witnesses, experts and non-participating in the lawsuit persons.

As regards the serving to an attorney by posting the notification (Art. 51, para 2 of the CCP), he is a representative of the parties by power of attorney. The law postulates that the attorney cannot refuse to receive the notification to his client, except after withdrawal of the power of attorney or waiver of powers. If in the attorney's office cannot be found a person who shall accept the notification, the serving clerk shall post a notification under of Art. 47, para 1. What is described is different from serving the first notification to the defendant as the assumption is that there has been no power of attorney so far. From that perspective the provision does not make any difference between an attorney of the claimant and an attorney of the defendant. Art. 50, para 4 of the CCP reads that i n event the serving person does not find access to the office of the trader or of the corporate entity or does not find anybody, who agrees to accept the notification, he shall post the notification under Art. 47, para 1. A second notification shall not be posted. Serving by posting a notification match up the hypothesis of Art. 47, para 1, which, as already said, is not anticonstitutional.

The stated judgments that the serving by posting a notification does not affect the parties' equality before the law justify the conclusion that the group of challenged texts does not disagree with Art. 6, para 2 and Art. 121, para 1 of the Constitution. As to whether the texts in question disagree with Art. 122, para 1 of the Constitution, it must be borne in mind that it is early to claim that the defendant's right to counsel for the defense is ignored at the phase of the initial exchange of documents.

2. The Ombudsman claims that Art. 133 of the CCP conflicts with the Constitution as it contradicts its Art. 121, para 2. The text referred to is a stumbling block on the way to truth about the concrete case even before the court takes up to clarify the factual aspects of the dispute inasmuch as the text reads: ,, If within the established term the defender does not submit a written rejoinder, does not state an opinion, does not make objections, does not dispute the truthfulness of a submitted document, does not state evidence, does not present written evidence or does not exercise his rights under Art. 211, para 1, Arts. 212 and 219, he loses the possibility to do this later, except the omission is a result of special unforeseen circumstances.”

The CCP offers a system of rules that make up integral proceedings. It is correct to view Art. 133 of the CCP as part of proceedings and possibly to draw conclusions about its noncompliance with the Constitution. Art. 121, para 2 of the Constitution reads: ,, Judicial proceedings shall ensure the establishment of truth. ” Therefore the question of truth is not a problem of a text per se but a problem of proceedings, i.e. of a system of a sequence of actions .

On the other hand in the Constitutional Court's view preclusion of rights under Art. 133 of the CCP is not absolute, as the Ombudsman alleges. The text reads that rights referred to are not precluded if the omission is a result of special unforeseen circumstances. A general formulation is let to preclude the legal consequences that the text provides for. Evidently it will be up to practices to define special unforeseen circumstances, yet the text takes into account the fact that it will be up to the court to establish the truth. Therefore the provision was not intended to be a stumbling block on the way to truth.

Next, the allegation that proceedings do not help establish the truth is objectionable for it is in these very proceedings that a party may ask, if it fears it risks to omit a detail in the response to the claim, for a p rolongation of the term under Art. 63, para 1 of the CCP. Third, if the party does not do that, it may ask for a restoration of term under Art. 64, para 1 of the CCP again for the sake of the establishment of truth. And finally, again for the sake of the establishment of truth, the defendant may require an additional period of time to state an opinion on the required at this session evidence (Art . 144 of the CCP) .

There is no reason for a text that seeks to enforce harsher procedural discipline to be blamed as an alleged stumbling block on the way to truth. Each procedural legal system knows of the preclusion of rights. What matters is not the logic that preclusion per se is a stumbling block on the way to the establishment of truth, what matters is whether the timing of the preclusion is the stumbling block on the way to truth. The CCP is flexible to the maximum extent with the rules of prolongation and restoration. In that way it will depend entirely on how much the party wishes the revelation of the truth. The law must provide opportunities for protection rather than leave problems to be resolved, possibly, as time goes.

No doubt Art. 133 of the CCP is an exponent of the so-called concentration principle in civil proceedings. The postulate that a certain text which stands for the concentration principle conflicts with the principle of the establishment of truth in fact seeks to bring the two principles of proceedings into a clash. It turns out that legislations that have adopted the concentration principle shun the truth or, to put it milder, make an allowance for covering up the truth in the course of proceedings. Evidently it is not a matter of clash or of antagonism but of civil proceedings principles between which there exists a complicated correlation and an internal balance that must be explained rather than attribute everything to their incompatibility or to the rejection of the one by the other.

3. In the view of the Ombudsman Art. 280, para 1, Art. 284, para 3, subpara 1 and Art. 288 of the CCP contravene Art. 56, Art . 119 and Art . 124 of the Constitution as they limit the cassation appeal.

While Art . 119 of the Constitution lists the types of courts that administer justice it does not invite the conclusion of a mandatory three-instance hearing. The Constitutional Court has already noted that the notion ,,instance” is an element of ,,the organization and activities of the courts”. Hence the conclusion that the decision for the CCP to provide for a selection of the appealed cases with an optional access to appeal with the SCC is not discordant with the Constitution. This is so as the existing procedure code sets no limit to access to two court instances.

According to the CCP's Art. 280 ,, Subject to appeal before the Supreme Court of Cassation shall be the appellate decisions, where the court pronounced on a substantial material legal matter or procedural legal matter, which is: 1. decided in contradiction to the practice of the Supreme Court of Cassation; 2. is contradictory decided by the courts; 3. is of importance for the precise application of the law, as well as for the development of the law.”

The general postulation of the three separate hypotheses of the challenged Art. 280, para 1 of the CCP that allow cassation appeal refers to the case where the court pronounced a decision on a substantial material legal or a procedural legal matter. The notions , ,,substantial”, material legal matter or procedural legal matter” need to be clarified as does the ,,SCC practices” as a landmark for the court in the admission to hear a cassation appeal on its merits.

The view that a substantial material legal matter or a procedural legal matter in the sense of Art. 280, para 1 of the CCP is the matter whose resolution will determine only the outcome of the concrete lawsuit is unacceptable. In the context of Art. 280, para 1 of the CCP for a matter contained in a substantive or a procedural law to be substantial, that matter must be of fundamental and underlying importance for law and not just for the concrete dispute. This conclusion derives from the nature of the cassation instance as a court basically on the justice and not on the merits of the suit and from the function of the cassation instance to adjust enforcement on matters of principle to the nondiscriminatory treatment of analogical civil law cases.

As regards the SCC practice, it includes: 1. each SCC act that interprets a piece of legislation concerning a specific lawsuit ; 2. a corpus of judicial acts that contain identical interpretation of one and the same legal text (durable and recurrent judicial practices) ; 3. interpretative decisions of the Supreme Court of Cassation. Element 1 and Element 2 of the above-mentioned judicial practices are casual interpretation and Element 3 is normative interpretation. At any rate, with the two forms of interpretation the SCC meets its obligation to give uniformity to court practices. Thus, though it is only interpretative decisions that the law makes binding on judicial and administrative bodies, upon the application of an act that the decisions interpret, the durable and uncontroversial court practices on many judicial acts on specific cases, though devoid of the binding force of interpretative decisions impresses on the minds of justices the conviction of due diligence of the recurrent interpretative decision that the practice contains.

It is the context of understanding Art. 280, para 1, subpara 1 of the CCP that defines the first of the criteria that allow the cassation appeal of an appellate decision: the appellate court must have decided on a substantial material legal or a procedural legal matter in contradiction to the Supreme Court of Cassation practice which is determined by the Court's interpretative decisions but also by their uniform application to specific lawsuits. In that sense the SCC uniform practices are the orientation point in a judgment of the correctness of the appealed appellate decision.

Hence the conclusion that the attribute ,,substantial” to a material legal matter or to a procedural matter resolved by the appellate decision limits access to cassation appeal. Therefore the provision of Art. 280, para 1 of the CCP in that part alone is in contravention to Art. 122, para 1 of the Constitution.

Art. 284, para 3, subpara 1 reads that t o the complaint shall be attached a ,,statement of the grounds to admit cassation appeal…” The Ombudsman thinks that part of the provision requires that the appellant should explore and quote SCC practices and the controversial practices of the appellate courts throughout the country. However, that is difficult to do.

The Court judged that while the non-availability of a database about existing practices of the appellate courts deserves censure whose target should be the ones who voted the law, it cannot justify alleged anticonstitutionality – a database can be established. Moreover, the revocation of the provision will thwart even the ephemeral possibility of appeal on such grounds as of a current date. While the text is a procedural burden, it is not in contravention to the Constitution.

Art. 288 reads that the Supreme Court of Cassation shall pronounce on admission of the cassation appeal by a ruling at a closed session in a body of three judges. The text is seen as inconsistent with Art. 119, para 1, Art. 124 and Art. 56 of the Constitution.

In this particular case it should be borne in mind that a body of three judges does not rule on the merits and whenever such a body rules on the admissibility of a cassation appeal, it does not do interpretative work. The judges verify whether the court of second instance has complied with the SCC practices and whether the matter has been resolved by the courts in contradictory ways. Regarding the hypothesis in Art. 280, para 1, subpara 3 ( which is of significance for the precise application of the law and for the development of law) and which the three-member body confronts, it leads to the conclusion that in the long run the matter boils down to decisions on procedural and material legal matters that are of importance for the application of the law so as to have uniform practices in the future and to develop projects. No doubt, while the resolution on that matter will go down into the court practices records, it will not have the consequences of an interpretative act. Therefore, the text is not discordant with the Constitution.

Председател: Румен Янков

Dissenting opinion on a decision: