Communicated on 14 April 2014
FOURTH SECTION
Application no. 30211/09
Ganelin Kostov TASHEVSKI
against Bulgaria
lodged on 24 March 2009
STATEMENT OF FACTS
1. The applicant, Mr Ganelin Kostov Tashevski, is a Bulgarian national who was born in 1957 and lives in Debelets. He is represented before the Court by Ms V. Koeva, a lawyer practising in Veliko Tarnovo.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In December 2005 the applicant bought from private persons a plot of forestry land measuring around 53,000 square metres. He paid 8,000 Bulgarian levs (BGN) (the equivalent of 4,090.34 euros (EUR)) for the plot.
4. By order of 2 May 2007, the mayor of Veliko Tarnovo, having carried out the required consultations with other authorities, approved a development plan that envisaged the construction of residential buildings on the applicant’s plot. By order of 11 December 2007, the National Forests Agency excluded the applicant’s plot from the forestry territories in view of the future construction of buildings on it. The applicant paid the National Forest Agency a fee of BGN 276,622 (equivalent to EUR 141,434.58) in respect of that.
5. At the applicant’s request, on 24 March 2008 the mayor of Veliko Tarnovo issued an additional order amending the development plan by dividing the plot into thirty separate plots. On 21 April 2008 the local forest authorities granted the applicant thirty-one permits for tree felling in the newly formed plots.
6. None of those administrative decisions was legally challenged and they all became final.
7. Later, on 27 June 2008 a public prosecutor at the Veliko Tarnovo Regional Public Prosecutor’s Office submitted a proposal under Articles 99 § 2 and 100 of the Code of Administrative Procedure 2006 (see paragraph 15 below) to the mayor of Veliko Tarnovo. She sought re‑opening of the administrative proceedings concerning the approval and amendment of the development plan. On 30 June 2008 the same prosecutor submitted a similar proposal to the local forest authorities, seeking re‑opening of the proceedings concerning the granting of the tree felling permits. She relied on a May 2008 opinion of the Botanical Institute at the Bulgarian Academy of Sciences that said that tree felling and construction on the applicant’s plot would have a negative effect on two protected habitats situated nearby and the preservation of nature in them. The prosecutor claimed that the Botanical Institute’s opinion constituted a newly discovered fact that warranted re-opening of the administrative proceedings.
8. The applicant was apparently informed of the public prosecutor’s proposals. He retained counsel, who made representations to the administrative authorities in relation to the proposals.
9. In July 2008 the mayor and the forest authorities rejected the public prosecutor’s proposals. It appears that they based their decisions on the fact the competent authority – the regional inspectorate for environment and water – had been consulted in the course of the earlier administrative proceedings, and that the Botanical Institute’s opinion could not be regarded as a newly discovered fact calling for re-opening of the administrative proceedings.
10. On 21 and 23 July 2008 the public prosecutor sought judicial review of the rejection of her proposals by reference to Article 103 § 3 of the Code of Administrative Procedure 2006 (see paragraph 15 below). Her legal challenges concerned the two mayor’s orders of 2 May 2007 and 24 March 2008 and the thirty-one tree felling permits. The courts opened three separate sets of judicial review proceedings.
11. The applicant joined those judicial review proceedings as an interested party. He was represented by counsel, who charged him a total of BGN 1,800 (the equivalent of EUR 920.33) in fees for the three sets of proceedings.
12. In three final decisions of 28 October and 15 December 2008 and 1 June 2009, the Supreme Administrative Court, sitting in three different formations, dismissed the public prosecutor’s legal challenges. It held that the proximity of the two protected habitats to the plot was not a newly discovered fact, but a fact that had been well-known at the time when the administrative decisions at issue had been made. The assertion, made in the Botanical Institute’s opinion, that the proposed development would have a negative effect on those habitats had not been made out in the course of the proceedings. The court also noted, in relation to the public prosecutor’s arguments concerning the alleged unlawfulness of the impugned decisions, that that was not an issue that could be examined in proceedings dealing with the existence or otherwise of grounds to re-open the administrative proceedings.
13. With the same decisions the Supreme Administrative Court dismissed the applicant’s claims for reimbursement of the counsel’s fees that he had incurred in the judicial review proceedings. It held that in such proceedings the public prosecutor played a special role as guarantor of legality. The prosecutor was not a typical party to those proceedings, which meant that the general rule of Article 143 of the Code of Administrative Procedure 2006 that the unsuccessful party was to bear the successful party’s costs (see paragraph 16 below) could not be applied in the case at hand. The rule that governed the point at issue was that laid down in Article 83 § 1 (3) of the Code of Civil Procedure 2008, under which public prosecutors were not obliged to bear any litigation costs when taking part in civil proceedings. In the decision of 1 June 2009 the Supreme Administrative Court went on to say that the applicant could seek reimbursement of his counsel’s fees by way of a claim for damages under the State and Municipalities Liability for Damage Act of 1988.
B. Relevant domestic law
14. Under Article 121 § 1 of the Constitution of 1991, the courts must ensure observance of equality of arms in judicial proceedings.
15. Article 99 of the Code of Administrative Procedure 2006 sets out the grounds for re-opening of proceedings for the adoption of individual administrative decisions. Those grounds concern administrative decisions which have become final without having been subjected to judicial review. Under the second paragraph of that Article, such administrative decisions can be revoked by the issuing or the supervising administrative authority if new facts or new written evidence comes to light. Article 100 provides that re-opening can be sought by, among others, a public prosecutor. The persons affected by the administrative decision have to be joined as parties to the proceedings for re-opening (Article 100 § 1). The administrative authority’s refusal to re-open the proceedings can be challenged by way of judicial review (Article 100 § 3).
16. Article 143 of the Code of Administrative Procedure 2006 provides that where an administrative decision has been quashed by a court, the costs of the litigation – court fees, fees of one counsel, and other expenses – must be borne by the administrative authority that has issued the decision. If the legal challenge against the administrative decision is dismissed by the court, the party that has brought the judicial review proceedings must bear the other party’s costs. In that latter case, the party for which the administrative decision is favourable is in addition entitled to the reimbursement of its costs. Article 144 provides that all issues not specifically addressed in the Code of Administrative Procedure 2006 are governed by the Code of Civil Procedure 2008.
17. Under Article 83 § 1 (3) of the Code of Civil Procedure 2008, public prosecutors do not have to bear any litigation costs in connection with civil proceedings in which they take part.
18. In a binding interpretative decision of 16 July 2009 (тълк. реш. № 4 от 16 юли 2009 г. по тълк. д. № 2/2009 г., ВАС, ОСК) the Supreme Administrative Court dealt with the question whether in the case of an unsuccessful legal challenge to an administrative decision by a public prosecutor that prosecutor has to bear the other party’s costs. The court made it plain that the general rule concerning the award of costs under Article 143 of the Code of Administrative Procedure 2006 was equally applicable to a public prosecutor as party to proceedings for judicial review of an administrative decision. The court held that this was consistent with the principle of equality of arms enshrined in Article 121 § 1 of the Constitution (see paragraph 14 above); to put a public prosecutor in a privileged position vis-à-vis other litigants in relation to costs would be in breach of that Article.
19. Section 1(1) of the State and Municipalities Liability for Damage Act 1988 provides that the State is liable for damage suffered by individuals or legal persons as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with administrative action. Section 2(1) and (2), as amended, provides for liability of the investigating and the prosecuting authorities and the courts in several enumerated situations: unlawful detention or deprivation of liberty in breach of Article 5 § 1 of the Convention or Article 5 §§ 2-4 of the Convention; the bringing of criminal charges, if the proceedings are later discontinued on certain grounds or if the accused is acquitted; conviction or imposition of an administrative penalty if the conviction or penalty are later set aside; compulsory medical treatment or compulsory measures imposed by a court, if its decision in that respect is quashed; serving of a sentence over and above its prescribed duration; unlawful use of special surveillance means; and damage caused to individuals by judicial decisions under the Forfeiture of Unlawfully Acquired Assets Act 2012. Section 2b, added in December 2012, provides for liability of the State in respect of unreasonably lengthy judicial proceedings.
COMPLAINTS
20. The applicant complains under Article 6 § 1 of the Convention that the proceedings were unfair and in breach of the requirement of equality of arms and that the judges were not independent and impartial because they refused to order reimbursement of the counsel’s fees incurred by him.
21. The applicant further complains under Article 1 of Protocol No. 1 that he was deprived of the costs he had reasonably expected to recoup, without that measure being provided for by law, and that the courts’ decisions to favour the public prosecutor in relation to the costs was not justified.
22. Lastly, the applicant complains under Article 13 of the Convention that he did not have an effective domestic remedy in respect of the above matters as the State and Municipalities Liability for Damage Act of 1988 was not applicable to his case.
QUESTIONS TO THE PARTIES
1. Can the applicant be regard a victim of an alleged violation of Article 6 § 1 of the Convention, given that he was able to retain counsel in the proceedings, that that counsel charged him fees which were not excessive, and the applicant benefited from adequate representation and was eventually successful in the proceedings (see, mutatis mutandis, Schrieder v. Denmark (dec.), no. 32085/96, 6 April 2000; Dmitrijevs v. Latvia (dec.), no. 62390/00, 7 November 2002; and Ognyan Asenov v. Bulgaria, no. 38157/04, § 44, 17 February 2011)?
2. Is Article 6 § 1 of the Convention applicable to the proceedings in the case in view of the fact that both the proceedings before the administrative authorities and those for judicial review of their decisions concerned the question whether the initial proceedings for the issuing of the impugned administrative decisions should be re-opened?
3. If so, did the applicant have a fair hearing in the determination of his civil rights and obligations, as required under that Article? In particular, was the requirement of equality of arms respected in view of the inability for the applicant to recoup the counsel’s fees that he had incurred in the proceedings (see Stankiewicz v. Poland, no. 46917/99, ECHR 2006-VI)?
4. Was there an interference with the applicant’s peaceful enjoyment of his possessions, within the meaning of Article 1 of Protocol No. 1? If so, was the domestic courts’ refusal to order the public prosecutor to bear the counsel’s fees incurred by the applicant provided for by law? What was the legitimate aim pursued? Did the interference impose an excessive individual burden on the applicant?
5. Did the applicant have at his disposal an effective domestic remedy in respect of the alleged violation of his rights under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?
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