Information Note on the Court’s case-law No. 87
June 2006
Zlínsat, spol. s r.o. v. Bulgaria - 57785/00
Judgment 15.6.2006 [Section V]
Article 6
Civil proceedings
Article 6-1
Impartial tribunal
Independent tribunal
Decision taken by the prosecution authorities to suspend a privatisation, not appealable to a tribunal :violation
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Decision taken by the prosecuting authorities to suspend a privatisation, not appealable to a tribunal:violation
Facts: In May 1997 the applicant, a Czech company, took over from another company a contract to buy a hotel privatised by the municipality of Sofia in 1995. In July 1997 the Sofia City Prosecutor’s Office ordered the suspension of the privatisation contract, which was considered unduly to favour the purchaser; later a criminal investigation was opened against a public official for apparent abuse of office. The applicant company was unaware of these developments until evicted in October 1997. The municipality of Sofia brought civil proceedings to contest the decision of the City Prosecutor’s Department; eventually the Supreme Court of Cassation confirmed judgments of the lower courts that the contract was not unlawful. The applicant company also brought proceedings, only to be met – in 1999 – with a refusal of the prosecuting authorities to reopen the case, on the ground that the judgment given by the Supreme Court of Cassation on the municipality’s appeal was binding on all parties to the case. In October 1999 the Sofia City Prosecutor’s Office notified the police that in view of the judgment of the Supreme Court of Cassation the decisions of July and October 1997 were no longer enforceable.
Law: Article 6(1) – This provision applies under its civil head, the applicant company itself never having been the object of a criminal investigation or prosecution. The Prosecutor’s Office is independent of the executive and prosecutors enjoy the same tenure and immunities as do judges. However, that cannot be seen as dispositive, as an independent and impartial tribunal within the meaning of Article 6(1) exhibits other essential characteristics such as the guarantees of judicial. The Sofia City Prosecutor’s Office made the impugned decisions of its own motion, whereas a tribunal would normally become competent to deal with a matter if it is referred to it by another person or entity. Moreover, it appears that the making of the decisions did not have to be – and was, in fact, not – attended by any sort of proceedings involving the participation of the entity concerned, i.e. the applicant company. The law made no provision for the holding of hearings, and did not lay down any rules on such matters as the admissibility of evidence or the manner in which the proceedings were to be conducted. Finally, it appears from the wording of the relevant legal provisions that the Sofia City Prosecutor’s Office enjoyed considerable latitude in determining what course of action to pursue, which appears hardly compatible with the notions of the rule of law and legal certainty inherent in judicial proceedings. It is true that appeals could be made against these decisions to the higher levels of the Prosecutor’s Office. However, they were the hierarchical superiors of the Sofia City Prosecutor’s Office and part and parcel of the same centralised system under the overall authority of the Chief Prosecutor. Moreover, it appears that the appeals procedure was not attended by due procedural safeguards. The Court further notes that in its judgment in the case of Assenov and Others v. Bulgaria it found that Bulgarian prosecutors could not be considered as officers authorised by law to exercise judicial power, within the meaning of Article 5(3), as they could subsequently act in criminal proceedings against the person whose detention they had confirmed. A similar rationale should apply in the present case. The decisions ordering the suspension of the performance of the privatisation contract and the applicant company’s eviction from the hotel were made by the Sofia City Prosecutor’s Office of its own motion. It then brought, in exercise of its powers, a civil action against the company, seeking the annulment of that same privatisation contract. It could thus hardly be deemed as sufficiently impartial for the purposes of Article 6(1). The same goes for the higher levels of the Prosecutor’s Office, which upheld these decisions and subsequently acted against the applicant company in the proceedings before the Sofia Court of Appeals and the Supreme Court of Cassation. The mere fact that the prosecutors acted as guardians of the public interest cannot be regarded as conferring on them a judicial status or the status of independent and impartial actors. The Court therefore concluded that the various prosecutor’s offices involved could not, in the circumstances, be regarded as independent and impartial tribunals providing the guarantees required by Article 6(1). In order for the obtaining situation to be in compliance with that provision, the prosecutors’ decisions should have been subject to review by a judicial body having full jurisdiction. However, domestic law excludes judicial review of prosecutors’ decisions made in exercise of their powers under the provisions on which they relied in the instant case. The requisite degree of judicial scrutiny was not afforded through the civil action brought by the Sofia City Prosecutor’s Office against the applicant company: the issue to be decided therein – whether the privatisation contract with the applicant company had been made under manifestly disadvantageous conditions – was entirely different from that of the lawfulness of the impugned prosecutors’ decisions. It is true that after their completion the Sofia City Prosecutor’s Office eventually stated that its decisions were no longer operative; however, this was by no means a direct result of a binding decision of the courts in these proceedings. Nor had it been established that judicial review was available in the form of an appeal against the prosecutors’ decisions to a criminal court if and when the criminal proceedings would reach the judicial stage. The decisions in issue were not made in that context, but prior to the institution of any criminal proceedings. The prosecutors’ decisions in the case at hand – which were decisive for the applicant company’s use and possession of the hotel at least until the end of the civil action against it – were not subject to judicial scrutiny, as required by Article 6(1). The respondent Government did not advance any reasons justifying the lack of access to a court. The rationale applied by the Supreme Administrative Court in rejecting as inadmissible applications for judicial review of prosecutors’ decisions was confined to arguments relating to the status of the Prosecutor’s Office. However, as the Court had already found, that Office cannot be seen as being an independent and impartial tribunal within the meaning of Article 6(1). In these circumstances, the Court found no justifiable reasons for excluding judicial review of decisions interfering, as in the present case, with civil rights and obligations.
Conclusion: – violation (unanimously).
Article 1 of Protocol No. 1 – The interference with the applicant company’s rights under this Article is in the nature of a “control of the use of property”; the second paragraph of the Article is applicable. As regards the requirement of “lawfulness”, the statutory provisions on which the interference was based used particularly vague terms, which made it almost impossible to foresee under what conditions the competent prosecutors would choose to act and what measures they would take in the event they considered, without independent control, that an offence might be committed. It is true that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. However, there is no reported case‑law interpreting and clarifying the exact import of the provisions at issue, in all probability on account of the impossibility of judicial review of prosecutors’ decisions as the ones at hand. As a result, these rules, which appear to be of general application, serve as a catchall, giving the Prosecutor’s Office unfettered discretion to act in any manner it sees fit, which may in some cases have serious and far‑reaching consequences for the rights of private individuals and entities. This discretion and the concomitant lack of adequate procedural safeguards, such as elemental rules of procedure and, as already found by the Court, review by an independent body, and the resulting obscurity and uncertainty surrounding the powers of the Prosecutor’s Office in this domain, lead the Court to conclude that the minimum degree of legal protection to which individuals and legal entities are entitled under the rule of law in a democratic society was lacking. It follows that the interference with the applicant company’s possessions was not “lawful”, within the meaning of Article 1 of Protocol No. 1.
Conclusion: violation (unanimously).
Article 41 – Damage: question reserved; costs and expenses: financial award, except in so far as related to expert reports, to which extent the question was likewise reserved.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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