As we pointed out in the previous issue of our Legal Digest, these legislative changes introduced mandatory mediation (a voluntary out-of-court dispute resolution procedure with an impartial third party mediator) in certain civil and commercial cases. As a result, the parties would have been obliged to have a first meeting with a mediator within a time limit set by the court. If a party refused to participate in the procedure, it had to bear all the costs of the case, regardless of its outcome.
The Supreme Bar Council referred the case to the CC for a ruling on whether the mandatory mediation provided for was in line with the Constitution, in particular the right to defence, and the principles of free access to justice and effective judicial protection.
In its judgment, the CC held the position that the legislation in question was unconstitutional on more than one ground. Firstly, although it does not deprive the parties of access to court (after the first meeting with the mediator the case may continue in the usual way if no agreement is reached), the mediation impedes (delays) the full realisation of the right to a defence. The two-month term introduced by the legislator for the first mediation meeting may call into question the timely provision of the requested court remedy, and such a delay may render meaningless the remedy itself. The term in question is relative because it starts to run from the moment when all parties to the case are served with the relevant court papers.
The above argument must also be analyzed in the context of the normal length of cases, which, particularly in the city of Sofia may exceed 3-4 years in total for the three instances. Such delays are often detrimental to the economic interests of the litigants even in the event of a positive final decision.
The envisaged additional financial burden for persons who refuse to mediate also affects the full exercise of the right to a judicial remedy, and would also violate the principle that the losing party should bear the costs of the case. The European recommendations that mediation should be conducted in accordance with fair cost criteria and that the parties should not be forced to incur unrecoverable costs, especially under threat of financial penalties, are also not respected.
The CC points out that the amendments are also internally contradictory, since a procedure which by its nature should be voluntary is in fact provided for as a compulsory part of the civil procedure for certain categories of claims - under the supervision of the court and envisaging penalties if the parties refuse to participate. In this way, according to the CC, freedom as a common human value is affected.
The CC upholds that the proposed legislative changes restrict the exercise of citizens' fundamental rights. Such a restriction is permissible only for a legitimate purpose - in a case where it is necessary in order to protect higher constitutional values as a matter of priority. Considering the legislator's reasons in this case, namely - to reduce and evenly distribute the workload of the courts, the constitutional judges find that the objectives of the regulation do not meet the above criteria. It is therefore also not legitimate to restrict the constitutional rights of citizens. Moreover, according to the CC, there are no guarantees that even the above-mentioned objective will be achieved - all courts, regardless of their caseload, are equally bound by the law, and it is therefore unclear how mediation in pending cases is able to contribute to overcoming the uneven caseload of the courts. This would only be achieved if the busier courts were to be more successful in compelling the parties to participate in mediation than the other courts, for which there is no reasonable guarantee.
As a consequence of the decision of the CC declaring the mandatory mediation regime unconstitutional, it ceases to be applicable and the parties in civil and commercial cases are neither obliged nor can be obliged to participate in a mediation procedure.
