European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2007/885.html
Cite as: [2007] ECHR 885

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FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28583/03
by Biser Ivanov BRATOVANOV
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 2 October 2007 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
Mrs R. Jaeger, substitute judge,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 12 August 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr. Biser Ivanov Bratovanov, is a Bulgarian national who was born in 1969 and lives in Kovachevets. He is represented before the Court by Mr. E. Chervenobrejki, a lawyer practising in Sofia.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The factual background of the applicant’s claim against the customs authorities

In 1995 the applicant entered into contracts under which he undertook to export wheat to foreign companies. The stipulated time of delivery was in August and September 1995. In August the applicant started loading wheat onto cargo ships. On 11 August 1995 the Council of Ministers of Bulgaria adopted Regulation No. 160/1995 whereby the export tax for wheat was increased from USD 35 to USD 55. The new rate became effective on 25 August 1995.

On 24 August 1995 the applicant had already loaded on a cargo ship 6,333 metric tons of wheat. At 11.30 p.m. on the same day he submitted to the customs authorities in the Port of Varna–West the necessary customs documents (an export licence, certificate for paid export tax, bill of lading etc.). However, the applicant was not granted authorisation to export the shipment. Thereafter, he continued loading the ship and later paid the export tax under the newly introduced higher rate whereupon authorisation to export was granted.

2. Proceedings for damages

(a) The first proceedings (the applicant’s partial claim)

On 8 October 1996 the applicant brought an action for damages against the Central Customs Office (Главно управление „Митници”) and the State Fund “Agriculture” (Държавен фонд „Земеделие”) under sections 45 and 55 of the Contracts and Obligations Act of 1951. He brought a partial claim, as was customary in legal practice.

In a judgment of 10 July 1998 the Sofia City Court dismissed the claim. The court found that the customs officers had not acted unlawfully and that in any event the applicant had not sustained any damage.

The applicant appealed.

In a judgment of 25 June 1999 the Sofia Appellate Court quashed the Sofia City Court’s judgment and referred the case for a fresh examination, indicating that the applicable law was the State Responsibility for Damage Act.

The Central Customs Office appealed against the Sofia Appellate Court’s judgment. By decision of 19 April 2000, the Supreme Court of Cassation terminated the proceedings as the lower court’s decision to refer the case back to the court of first instance was not amenable to cassation appeal.

In a judgment of 23 December 2003 the Sofia City Court established that the applicant had sustained damage and granted his claim. The court established that the applicant had loaded 6,333 metric tons of wheat and that at 11.30 p.m. on 24 August 1995 he had submitted all the necessary documents. In these circumstances, the decisive issue was whether the period between the submission of the documents and the new rates’ entry into force at midnight was sufficient for the processing of the documents and granting the authorisation. The court found that the customs officers had in fact processed the documents before midnight but had nevertheless refused authorisation on the ground that the State Maritime Inspection (Държавна инспекция по корабоплаването) had not given permission for departure. The court reasoned that under the legislation in force at the relevant time the authorisation for export preceded the permission for departure and the lack of the latter had not been a valid reason for the customs authorities to refuse the former. The proceedings continued on appeal before the Sofia Appellate Court and the Supreme Court of Cassation at least until April 2007.

(b) Proceedings for the remainder of the damage sustained by the applicant

On an unspecified date in 2000, the applicant brought a second set of proceedings for damages whereby he sought full compensation for the remainder of the loss sustained (the proceedings brought in 1996 having been for partial compensation only). By a judgment of 21 October 2002 the Supreme Court of Cassation stayed the proceedings pending the first set of proceedings.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length of two sets of civil proceedings for damages against the State.

The applicant also complained under Article 1 of Protocol No. 1 that as a result of the customs authorities’ failure to process his documents in good time he was rendered liable to pay a higher export tax than he would have if the authorities had processed his documents expeditiously and with diligence.

THE LAW

The applicant complained under Article 6 § 1 that the length of the civil proceedings had been excessive. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The applicant further complained under Article 1 of Protocol No. 1 of the Convention that as a result of the customs authorities’ failure to process his documents in good time he had paid a higher export tax. Article 1 of Protocol No. 1 reads of follows:

“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.”

The Court notes that the applicant has instituted civil proceedings which concern the alleged infringement of his property rights. Those proceedings, which are pending, may result in the applicant obtaining compensation. The complaint under Article 1 of Protocol No. 1 to the Convention is therefore premature.

It follows that the remainder of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the two sets of civil proceedings;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President