Cassation in Bulgaria as Selective Third Court Instance Process

Introduction

Cassation proceedings are an integral part of the judicial system in Bulgaria, functioning as a mechanism for reviewing judicial decisions made by lower courts. These proceedings are handled by the Supreme Court of Cassation, the highest court in the country. Worth noting, such court was instituted in 1878 right after the liberation of Bulgaria from Ottoman rule and the re-establishment of the Bulgarian state.

Today, 85 judges with over 15 years of legal experience work in the Supreme Court of Cassation, distributed in three chambers: civil, criminal and commercial.  The Court sits in a composition of: i) three judges when hearing appeals; ii) General Meeting of either the criminal, civil or commercial chamber – when considering a request for the adoption of an interpretative decision respectively in criminal, civil or commercial justice; iii) General Meeting of both civil and commercial chambers – when considering a request for the adoption of an interpretative decision on general issues of civil and commercial justice. The decisions of the Supreme Court of Cassation are final and not subject to appeal, ensuring closure and certainty for the parties involved. If a question of constitutionality arises, the Court may refer the matter to the Constitutional Court.

Purpose and Significance of Cassation Proceedings

The primary aim of cassation proceedings is to ensure the uniform application of laws and to correct judicial errors. While these proceedings do not serve as a re-trial, they play a crucial role in safeguarding the legal principles established by the higher court. The Supreme Court of Cassation primarily focuses on assessing whether the lower court applied the law correctly and whether the judicial decisions align with established legal standards.  Cassation proceedings in Bulgaria are essential for several reasons:

• Consistency in the Legal System: By reviewing lower court decisions, the Supreme Court of Cassation helps maintain uniformity across judicial rulings, which is vital for the rule of law;
• Legal Precedents: The court’s decisions contribute to the development of jurisprudence, guiding lower courts in future cases and providing clarity on ambiguous legal issues;
• Protection of Rights: By offering a pathway to challenge potentially unjust decisions, cassation proceedings serve as a mechanism for protecting individual rights and ensuring fair judicial processes.

Process of Filing and Review of Cassation Appeals

A cassation appeal can only be filed against decisions made by a district court (acting as second instance) or an appellate court. An appeal cannot be lodged for interim or non-final rulings. The appeal must be filed by the agrieved party within a specified time frame—one month from the date the contested decision has been officially served to the party by the court. The cassation appeal must be signed by an attorney-at-law (advokat) meeting certain formal requirements, including the submission of a separate written statement that succinctly outlines the grounds for the appeal and any relevant legal arguments.  The cassation proceedings have two stages – admissibility stage and revision stage:

A. Admissibility Stage: The Supreme Court of Cassation will review the statement of the appeal grounds and will admit the appeal for revision only if the second instance court decision is:

1. decided in contradiction with the mandatory practice of the Supreme Court of Cassation and the Supreme Court in interpretative decisions and rulings, as well as in contradiction with the practice of the Supreme Court of Cassation; or 
2. decided in contradiction with acts of the Constitutional Court of the Republic of Bulgaria or the Court of the European Union; or
3. important for the correct application of the law, as well as for the development of the law; or
4. in case of probable nullity or inadmissibility, as well as in case of obvious incorrectness.

Since 2018 obvious incorrectness has been a new special case of incorrectness as a defect of the judicial decision, which is of such a degree that it is completely incompatible with the legal peace and can be established by the court at “first glance” without a thorough examination of the case and the evidence presented.  For example, the second instance court based itself on a repealed or non-existent legal norm; the second instance court did not apply a mandatory legal norm in view of the facts of the case; in the event of an unfounded conclusion regarding the legal significance of a fact, contrary to the rules of formal logic, experience and scientific rules, when this unfoundedness is ascertainable from the reasoning, in accordance with the content of the fact reproduced by the court, outside its real content and characteristics, outlined by the evidence; or the second instance court broke procedural rules fundamental to the legal proceedings outside the formation of the internal conviction, guaranteeing an objective, impartial and consistent with the objective truth while respecting the equality of the parties in resolving the legal dispute.

To summarize, a cassation appeal in Bulgaria is admissible if it pertains to a second instance court decision, adheres to specific legal grounds, demonstrates a legitimate legal interest, is filed within the designated time frame, meets procedural requirements, and is not excluded by law. Understanding these conditions is crucial for parties seeking to challenge lower court decisions effectively. Evident from the annual reports of the Supreme Court of Cassation for the last 10 years approximately 20% of cases have been admitted to the cassation revision stage.

B.   Revision Stage: Only if the cassation appeal is admitted by the Supreme Court of Cassation as a result of the first stage, the case will be reviewed on its merits considering three specific grounds:

1. Violation of Substantive Law: If the lower court made an error in interpreting or applying the law;
2. Substantial Procedural Violations: Instances where due process was not followed, leading to unjust decisions;
3. Unfoundedness of Decisions: When the incomprehensibility and contradiction in the reasons are the result of formally invalid conclusions that cannot be logical consequences of given conditions, contradict experience and/or scientific knowledge, then decisions are unfounded.

The court may reject the appeal and uphold the contested decision. If the court sustains the appeal and quashes the lower court’s decision, the case may either be remitted back to the second instance court for reconsideration in case of procedural violations requiring evidence collection, or the Supreme Court will resolve the matter itself, providing a binding interpretation of the law.

Conclusion

Cassation proceedings are a fundamental component of Bulgaria’s judicial system, ensuring the proper application of law and rectifying judicial errors. Through these proceedings, the Supreme Court of Cassation plays a pivotal role in promoting legal consistency, defining legal precedents, and protecting the rights of individuals, thereby reinforcing the integrity of the legal framework in Bulgaria. As such, cassation proceedings not only serve the interests of the parties involved but also uphold the principles of justice within the broader context of the judiciary.

The high percentage of cases not admitted to the revision stage (approximately 80%) may be explained by the active interpretative activity of the Supreme Court of Cassation, as well as by court decisions issued on the admitted cases, in which answers are given to legal questions of a substantive and procedural nature, the subject of the cases in which the cassation appeal was admitted. As a result, the acts of the appellate courts are increasingly in line with both the mandatory and the established case law of the cassation instance.

Finally, it should be noted that the respectively newly created provision regarding obvious incorrectness as a ground for appeals’ admittance expands the right to judicial protection before the highest third judicial instance in line with the Bulgarian Constitution. This is a positive development of the regulation of cassation proceedings as it concerns decisions made in gross violation of legality, so their correction by the Supreme Court of Cassation shall be also in public interest. In addition, it facilitates access to cassation appeal beyond the regular prerequisites for selection of cassation appeals.

We, Law Firm Mikov & Attorneys, have diligently represented a good number of clients in civil and commercial cassation proceedings for more than 8 years now, with 100% success rate at the admissibility stage when favourable for our clients.