FIFTH SECTION
DECISION
Application no. 60445/15
Hristo Stoychev DIMOV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 4 December 2018 as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lәtif Hüseynov, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 25 November 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Hristo Stoychev Dimov, is a Bulgarian national, who was born in 1972 and lives in Burgas. He was represented before the Court by Mr S. Tsonev, a lawyer practising in Burgas.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In a decision dated 21 September 2006 a local health-and-safety body fined the applicant 500 Bulgarian levs (BGN, the equivalent of 255 euros – EUR) for a breach of the relevant hygienic requirements in a restaurant he was working in.
5. As the decision was not immediately served on the applicant, he only applied for its judicial review in 2011. Before a court ruled on his application, on 8 September 2011 he paid the fine. The payment was in favour of the National Revenue Agency (hereinafter “the Agency”) – the body tasked with collecting public receivables.
6. In a judgment of 30 December 2011 the Nesebar District Court quashed the fine, finding that the administrative body having imposed it had not presented evidence that the applicant had been the manager of the restaurant at issue, and thus responsible for complying with the applicable requirements. That judgment entered into force on an unspecified date.
7. On 22 March 2012 the applicant made a request to the Agency to have the BGN 500 which had been unduly paid returned to him. He did not expressly rely on Articles 128 et seq. of the Code of Fiscal Procedure (see paragraphs 18-19 below). In a letter dated 3 April 2012 the Agency advised him to address the Ministry of Health of which the body having ordered the fine was part.
8. On 18 April 2012 the applicant brought a tort action against the Ministry of Health under the State and Municipalities Responsibility for Damage Act (see paragraph 15 below).
9. The action was allowed in a judgment of the Burgas Administrative Court of 8 November 2012 and the applicant was awarded BGN 500.
10. However, upon appeal, in a final judgment of 21 December 2013 the Supreme Administrative Court dismissed the action, reasoning that the State and Municipalities Responsibility for Damage Act was not applicable to damage stemming from decisions concerning administrative penalties such as fines.
11. On 26 June 2014 the applicant brought another action against the Ministry of Health, under the general law of tort.
12. In a judgment of 16 February 2015 the Burgas District Court allowed the action, awarding the applicant BGN 500.
13. However, upon appeal, in a final judgment of 5 October 2015 the Burgas Regional Court quashed the lower court’s judgment and discontinued the proceedings, finding the applicant’s claim inadmissible. Referring to Articles 128 et seq. of the Code of Fiscal Procedure (see paragraphs 18-19 below), it found that the existence of a special procedure to that aim excluded the possibility to claim back an unduly paid fine through a tort action. It noted in addition that, even though the applicant had once addressed the Agency with a request to return to him the money unduly paid by him, and the Agency had failed to take action, this did not mean that the procedure at issue was inapplicable. It remained open for the applicant to make a new request to the same end, and he could apply for the judicial review of any refusal.
14. In a decision of 15 July 2016, relying on Articles 128 and 129 of the Code of Fiscal Procedure, the Agency held that the sum of BGN 500 had been unduly paid by the applicant and that it would deduct it from other sums owed by him. It appears that this decision was taken of the Agency’s own motion, after it had been informed by the Government of the present application.
B. Relevant domestic law and practice
1. Liability of the State and municipalities for damage
15. The State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди) provides, in section 1(1), that the State and the municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties. Such claims are examined by the administrative courts.
16. Where, on the other hand, a tort claim concerns actions of the State or the municipalities which are not related to the exercise of public power, or which are not considered as falling within the scope of the State and Municipalities Responsibility for Damage Act, such claim can be brought before the civil courts, under the general law of tort.
17. Until 2015 the national courts had conflicting practice on the applicability of the State and Municipalities Responsibility for Damage Act to claims for damage stemming from unlawful administrative penalties. The matter was settled in a binding interpretative decision of 19 May 2015, adopted jointly by the Supreme Court of Cassation and the Supreme Administrative Court (Тълкувателно постановление 2/2014 г. на ОСГК на ВКС и I и II колегия на ВАС, 19 май 2015 г.), which stated that claims of the type described above did fall within the scope of the State and Municipalities Responsibility for Damage Act and were thus to be examined by the administrative courts.
2. The Code of Fiscal Procedure
18. Articles 128-32 of the Code of Fiscal Procedure (Данъчно-осигурителен процесуален кодекс), in force as of 1 January 2006, regulate the procedure whereby a person can recover money unduly paid to the State budget on different grounds enumerated in Article 128 § 1, which include “fines imposed by the fiscal bodies”. “Fiscal bodies”, as defined in section 7(1) of the National Revenue Agency Act (Закон за Националната агенция за приходите), are bodies of that Agency.
19. The procedure provided for under Articles 128-32 of the Code can be initiated by the interested person or of the Agency’s own motion (Article 129 § 1). The Agency can conduct checks and revisions (Article 129 § 2). Any sum which has been unduly paid is to be returned to the interested person or deducted from other sums due (Article 128 and Article 129 §§ 4 and 5). Any decision of the Agency in that regard is subject to judicial review (Article 129 § 7). Any tacit refusal is also subject to judicial review; where such review has not been sought, the interested person can instead of that make a new request to have the unduly paid money returned (Article 131).
20. The Supreme Administrative Court has expressly held that the procedure described above is applicable to fines imposed by all administrative bodies, even though they cannot be strictly considered “fiscal bodies”. The national court based its conclusion on the fact that all fines were collected by the Agency, pointing out that it was a “basic principle of law” that “public receivables collected through one procedural means should be refunded through the same procedural means” (Решение № 4166 от 22.03.2012 г. на ВАС по адм. д. № 15280/2011 г., I о.; see also Решение № 15959 от 13.12.2012 г. на ВАС по адм. д. № 15951/2011 г.,VIII о.).
COMPLAINTS
21. The applicant, relying on Article 6 § 1 and Article 13 of the Convention, complained that the domestic courts had refused to examine the merits of his tort claim against the Ministry of Health.
22. The applicant complained furthermore under Article 1 of Protocol No. 1 that he had been unable to recover the fine wrongly paid by him.
THE LAW
23. The applicant complained that the national courts had refused to examine his tort claim against the Ministry of Health. The Court is of the view that this complaint, raised under Article 6 § 1 and Article 13 of the Convention, is most appropriately examined under Article 6 § 1 alone, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
24. The applicant complained in addition under Article 1 of Protocol No. 1, which reads:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
25. The Government considered that the applicant had had at his disposal an effective avenue to seek redress, namely the procedure provided for in Articles 128 et seq. of the Code of Fiscal Procedure. This meant that he had had no interest in bringing and pursuing a tort action, and that any error on the part of the national courts in the examination of that action was irrelevant. The procedure under the Code of Fiscal Procedure was also indicated to the applicant by the Burgas Regional Court, in its judgment of 5 October 2015, and it was exactly through this means that in 2016 he obtained redress.
26. The applicant insisted that the procedure provided for under Articles 128 et seq. of the Code of Fiscal Procedure was inapplicable to his case, because the fine paid by him had not been “imposed by the fiscal bodies”, as required under Article 128 of that Code. Moreover, in 2012 he had tried to make use of the procedure, but to no avail. There was thus no alternative to a tort action to permit him to recover the unduly paid fine. However, the domestic courts gave controversial decisions and ultimately refused to examine the actions brought by him, thus depriving him of access to a court.
27. The Court reiterates that Article 6 § 1 embodies the “right to a court”, of which the right of access to a court constitutes one aspect (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18, and Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 85, ECHR 2016 (extracts)). The right of access also includes the right to obtain a determination of the dispute by a court (see Kutić v. Croatia, no. 48778/99, § 25, ECHR 2002‑II).
28. The applicant brought two sets of proceedings against the Ministry of Health, claiming in compensation the amount of the unduly paid fine. His first action was dismissed by the Supreme Administrative Court, on the ground that the State and Municipalities Responsibility for Damage Act was inapplicable, and the second action was declared inadmissible by the Burgas Regional Court (see paragraphs 10 and 13 above). Thus, indeed, the national courts refused to examine the merits of the applicant’s claim against the Ministry of Health.
29. The Court notes that the initial action of the applicant under the State and Municipalities Responsibility for Damage Act was dismissed on grounds that seem to run contrary to the interpretative decision of 19 May 2015 (see paragraphs 10 and 17 above). However, the Court does not have to examine whether the refusal of the national courts to hear the applicant’s action in tort was due, as claimed by him (see paragraph 26 above), to controversial domestic judicial practice, because such refusal alone does not mean that the applicant was deprived of access to a court to claim back the fine unduly paid by him. As noted by the Burgas Regional Court in its judgment of 5 October 2015 and by the Government in their observations to the Court (see paragraphs 13 and 25 above), it remained open to the applicant to resort to the procedure provided for under Articles 128 et seq. of the Code of Fiscal Procedure, which includes an administrative stage before the Agency and the possibility of judicial review (see paragraphs 18‑19 above).
30. The Court sees no reason to doubt that in the circumstances of the case the procedure at issue was capable of providing redress to the applicant, seeing that its expressly stated purpose is to permit to persons having made undue payments to the State to recover their money (see paragraph 18 above). Any decision in that procedure is to be taken by the Agency, the body specialised in collecting State receivables (see paragraphs 5 and 19 above). As already mentioned, the procedure at issue offers access to a court, as there is a possibility of judicial review (see paragraph 19 above). The applicant contested its applicability to his case on the basis of the wording of Article 128 § 1 of the Code of Fiscal Procedure, mentioning “fines imposed by the fiscal bodies” (see paragraphs 18 and 26 above). However, such doubts, even if they might have existed following the enactment of the Code of Fiscal Procedure in 2006, were dismissed by the Supreme Administrative Court already in 2012, in similar cases (see paragraph 20 above). Thus, any doubts that the applicant might have had on the basis of a strict reading of Article 128 § 1 of the Code of Fiscal Procedure and the Agency’s initial refusal to take a decision on his request (see paragraph 7 above), could not be seen as sufficiently justified after 2012. The Court does not discern any other factors that could have prevented the applicant from attempting to use the procedure, by reiterating his request to have the unduly paid sum returned to him or by seeking the judicial review of any tacit or express refusal, as entitled under the Code of Fiscal Procedure (see paragraph 19 above). It is finally noteworthy that it was exactly on the basis of this procedure that the Agency eventually provided the redress sought by the applicant (see paragraph 14 above).
31. Accordingly, the Court concludes that the complaint under Article 6 § 1 of the Convention concerning access to a court is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
32. Under Article 1 of Protocol No. 1, the applicant complained that he had been unable to recover the fine wrongly paid by him (see paragraph 21 above). However, the Court notes that in 2016 he did eventually recover the money, after the Agency acknowledged that it had been unduly paid (see paragraph 14 above). In light of the materials in the file and having regard to the particular circumstances of the case, the Court considers that the applicant can no longer claim to be a victim of the alleged violation.
33. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 January 2019.
Milan BlaškoGabriele Kucsko-Stadlmayer
Deputy RegistrarPresident
Full & Egal Universal Law Academy