In the case of the practice, our client was announced as a buyer of an attractive property in a large regional city by the bailiff public sale. The creditor is a Bulgarian bank, and debtorA local businessman. Although he has already paid the full amount representing the highest bid price in the auction, the buyer has been unable to get close to his property for almost two years as a result of the debtor's unscrupulous procedural behaviour. The latter, through a series of blanket complaints and other expressly prohibited but unfounded primates, prevented the formal conclusion of the procedure, by which it seeks to extend its de facto power over the property and thereby continue to collect unregulated income therefrom. A rare but not unprecedented abuse of procedural rights.
After we were soughtfrom the buyer to deal with the problem, in our study we also came across other cases of practice in which participants in legal cases, exercising their procedural rights contrary to their social purpose and legal principles, chicaned the process in order to derive some unjustified benefit for themselves or to harm another. Thus, for example, an abuse of rights occurs when a report of an infringement is filed not in order to take the necessary measures on the part of a state body, but when the whistleblower knows that the circumstances are false, but submits his claim in order to harm another.
Another example is that in which a party to the case systematically requests the release of judges from the courts to which his case was received or later sent for consideration; uses expressions expressing disrespect for the court as an institution and for specific judges in particular, as well as allegations of dependence or other type of interest of the court, in as a result of which all the judges of the district courts falling within the judicial districts of the district courts falling within the judicial district of a particular Court of Appeal were dismissed from the consideration of the case*
Indeed, laws cannot precisely regulate all possible variations of human behavior. In the absence of an explicit rule of conduct, the court should apply the common sense of the law. When there is no law at all, the basic principles of law, custom and morality apply — /art. 5 GPC/. The fact that the legislator has not introduced a limit on the number of private complaints that can be filed against an act of the court to return a complaint filed after failure to comply with instructions given to the party does not mean that this can be done indefinitely. The common sense of the law precludes providing a party with the opportunity to file an unlimited number of irregular private complaints, and its purpose is for disputes to find their solution. In addition to the latter comes the legal principle adopted in Bulgarian legislation by the European Convention on Human Rights**, according to which every person has the right to have his or her case heard within a reasonable time. The competent authorities are obliged to organise the proceedings in such a way that they meet the requirement that the case be dealt with within a reasonable time, including when a party fails to show the necessary procedural discipline or even chicanery and tries to impede the progress of the proceeding***. Otherwise, the state is liable for damages to the injured party. ****
As a normative shield against the reversible exercise of procedural rights is the guarantee of compliance with the principle of legality in the process, proclaimed in art. 3 GPC “Persons participating in legal proceedings and their representatives, fearing liability for damages, are obliged to exercise the procedural rights granted to them in good faith and in accordance with good manners. They are only required to bring the truth to justice.” According to the legal doctrine, the case law of the Supreme Court of Cassation and the European Court of Human Rights, the court before which the case is heard is in all cases obliged to assess whether the procedural actions of the parties comply with Article 3 of the GDPR — exercised in good faith and in accordance with good morals, and if this is not the case, it is obliged to to take measures to adequately organize the timely consideration of the case. In the event of a retroactive exercise of rights, the injured party can and should obtain cessation of the harmful abuse, as well as compensation.
As has already become clear, the court is obliged ex officio to monitor whether the procedural actions carried out before it comply with the rule of good faith, which the parties owe to each other under Article 3 of the GPC, and in case of finding conduct that does not comply with this rule, the court should not respect the baseless requests of the parties, but discipline them with the means of the GPC. PC, as well as to discontinue actions constituting abuse of rights. ****** The opposite would mean that the court would be an impartial witness to a gross violation of fundamental principles of law played out before it. However, due to the uneven workload of the courts and the excessive workload of judges, it can often take a long time before the court addresses the misconduct. Therefore, it is good to draw his attention to the injured party through petitions — objections within the same proceedings, even if the latter is not a party to it (as is the case with a buyer of a property sold to the public by way of an executive deed). Another means of protection, where the court does not provide the necessary assistance to the injured party in the same proceedings, is for the latter to file an independent appeal against the last judgment and subject to subsequent appeal, by which an appeal seeks the cessation of the injurious abuse by issuing a final judicial act t. In two of two similar cases from the case-law examined, the courts ruled in favour of the injured parties, awarding them costs.
* Decision №52/24.01.2017 in case №222/2017 of the Supreme Court of the Supreme Court, GK, IV y.o.
**art. 6, para. 1 ECPC
*** C. v Italy, No 9381/81, 25 June 1987, Series A No 119; Schurmeli v Germany, No 75529/01, 8 June 2006; M. c/u Bulgaria, No 21558/03, 2 September 2010, B. s/u L., No 44978/98, 15 July 2003, Kirkkian c/u Bulgaria, № 44626/98, March 24, 2005
**** Art. 2b of the Code; Art. 60a ZSW
***** /Decision No 222 of 21.03.2014 of the Supreme Court of Justice of the Republic of Italy, No 19753/92, 4 December 1995, Series A No 337-A/, III, OJ III, CC, Chiricosta and V. v. Italy.
****** cf. Chiricosta and V. v Italy, No 19753/92, 4 December 1995, Series A No 337-A; Decision No 222 of 21.03.2014 of the Supreme Court of Justice of the Republic of Italy, No 1076/2014, III, OJ, GK).
******* Decision No. 636 of the Plovdiv Court of Appeal of 25.11.2015 in case No 596/2015; Decision №222/21.03.2014 in case №1076/2014 of the Supreme Court of Appeal, CC, III y.o.
7 of the Supreme Court of Justice, GC, IV year
**Article 6, para. 1 ECHR
*** K. v. Italy, no. 9381/81, 25 June 1987, Series A no. 119; Schürmeli v. Germany, no. 75529/01, 8 June 2006; M. v. Bulgaria, no. 21558/03, 2 September 2010; B. v. L., no. 44978/98, 15 July 2003; Kyurkchyan v. Bulgaria, no. 44626/98, 24 March 2005.
**** Art. 2b ZODOV; Art. 60a ZJV
***** /Decision No. 222 of 21.03.2014 of the Supreme Court of Cassation in case No. 1076/2014, III rd. o., GC, Chiricosta and V. v. Italy, No. 19753/92, 4 Desember 1995, Serie A No. 337-A/.
****** cf. Chiricosta and V. v. Italy, No. 19753/92, 4 December 1995, Serie A No. 337-A; Decision No. 222 of 21.03.2014 of the Supreme Court of Cassation in case No. 1076/2014, III y. o., GC).
******* Ruling No. 636 of the Plovdiv Court of Appeal of 25.11.2015 in civil case No. 596/2015; Ruling No. 222/21.03.2014 in case No 1076/2014 of the Supreme Court of Cassation, GC, III y.o.
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