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FOURTH SECTION

CASE OF GALINA KOSTOVA v. BULGARIA

(Application no. 36181/05)

JUDGMENT

STRASBOURG

12 November 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Galina Kostova v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          David Thór Björgvinsson,
          Päivi Hirvelä,
          George Nicolaou,
          Zdravka Kalaydjieva,
          Vincent A. De Gaetano,
          Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 15 October 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 36181/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Galina Georgieva Kostova (“the applicant”), on 27 September 2005.

The applicant was represented by Mr E. Markov, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.

The applicant complained, in particular, of the refusal of the Supreme Administrative Court to examine whether it had been proportionate for the Minister of Justice to strike her off the list of persons qualified to act as liquidators of insolvent companies.

On 12 October 2009 the Government were given notice of the application. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1970 and lives in Sofia. She practices as a lawyer and is a member of the Sofia Bar Association.

By a decision of the Minister of Justice of 29 December 2001, the applicant was included on the list of persons qualified to act as liquidators of insolvent companies (see paragraphs 24-27 below).

On 23 December 2003 the Sliven Regional Court decided to appoint the applicant liquidator of the State-owned company T., in respect of which that court had decided to open winding-up proceedings. The company’s management disapproved of the applicant’s performance and several times tried unsuccessfully to have her replaced by the insolvency court.

On 31 March 2004 the company’s management complained to the Minister of Justice about the applicant’s performance as liquidator. Accordingly, in a letter dated 8 April 2004 the Deputy Minister of Justice informed the applicant that proceedings under section 655(3) of the Commerce Act 1991 (see paragraph 25 below) had been opened against her in connection with the complaints, and invited her to make written representations. The applicant made such representations on 11 May 2004, enclosing a number of documents. However, in the meantime, on 15 and 30 April and 5 and 11 May 2004 further complaints were made about the applicant’s performance and on 22 May 2004 the Deputy Minister invited her to make additional representations. The applicant did so on 16 June 2004. On 2 July 2004 the Deputy Minister again invited the applicant to make further representations in relation to an allegation that she had failed to draw up lists of the claims of the company’s creditors within the statutory time-limit. On 12 July 2004 the applicant made such representations. She submitted that she had not breached her duties because, even though she had failed to observe the time-limit, this had not been through her fault but due to the case file that contained the relevant documents having been sent to another town at the relevant time.

9. On 28 July 2004 an inspector at the Ministry of Justice, having reviewed the materials, concluded that the applicant had failed in her duty as liquidator to ascertain the company’s creditors within the statutory time-limit, and proposed to the Minister to strike the applicant off the list of persons qualified to act as liquidators of insolvent companies. She pointed out that the Supreme Administrative Court had already found that such a breach of a liquidator’s duties could in itself amount to grounds for removal from the list under section 655(3) of the 1991 Act (see paragraph 31 in fine below).

On 2 August 2004 the Minister of Justice decided, by reference to section 655(3) of the 1991 Act, to strike the applicant off the list of persons qualified to act as liquidators of insolvent companies. In the reasons for his decision he pointed out that the applicant had failed to submit the above-mentioned lists of claims against company T. within the statutory time-limit. The time-limit had expired on 8 May 2004, whereas the applicant had presented the lists at issue to the insolvency court on 18 June 2004.

The decision was published in the State Gazette on 20 August 2004.

The applicant sought judicial review of the decision. She reiterated her arguments that she had been prevented from submitting the documents in due time, and alleged that the Minister had failed to respect the rules of procedure and take into account her objections and explanations.

The applicant in addition argued that the sanction imposed on her - removal from the list of persons qualified to act as liquidators of insolvent companies - did not correspond to the seriousness of the breach imputed to her. She pointed out that any delay on her part had not had adverse effects on the rights of company T. or its creditors. She submitted that the sanction envisaged by section 655(3) of the 1991 Act was very harsh and was reserved for situations of serious or numerous breaches on the part of a liquidator, which was clearly not her case.

A three-member panel of the Supreme Administrative Court heard the case on 7 October 2004. It admitted a number of documents presented by the applicant.

In a judgment of 18 October 2004 (реш. № 8374 от 18 октомври 2004 г. по адм. д. № 6849/2004 г., ВАС, ІV о.) the three-member panel dismissed the applicant’s legal challenge. It examined in considerable detail the applicant’s actions in relation to the preparation of the lists of claims against company T., and concluded that she had indeed, through her fault, failed to complete that task within the statutory time-limit. On that basis, the court concluded that the Minister’s decision was not in breach of the substantive law.

The court dismissed the applicant’s argument that the sanction was disproportionate in the following terms:

“By failing to meet the time-limit for drawing up and submitting the lists and the reports to the insolvency court, the applicant has committed the breaches alleged by the Minister of Justice in relation to her activity as a liquidator. The conditions laid down in section 655(3) of the [1991 Act] have been met and the administrative authority has lawfully exercised its power to strike the applicant off the list of persons qualified to act as liquidators. The decision to impose the heaviest sanction was within its competence and a matter of expediency, and the court is not competent to examine whether the severity of the sanction corresponds to the seriousness of the breaches committed. It should however be noted that the arguments in the application that the delay did not extinguish any creditors’ rights and that the breach was not therefore serious are unfounded. First, the statutory provision does not lay down a requirement that the breach should be ‘serious’. Secondly, the presentation of claims and their assessment first by the liquidator and then by the insolvency court is a key stage in insolvency proceedings and the starting point of all other stages in such proceedings. ... That is why the legislature has provided for strict time-limits.”

The court went on to dismiss the applicant’s allegation that the Minister of Justice had failed to deal with her objections and comply with the applicable rules of procedure.

The applicant appealed on points of law. She challenged the finding of the three-member panel that she had, through her fault, failed to meet the time-limit. She also argued that the three-member panel had erred in holding that the court was not competent to review the proportionality of the sanction imposed on her. When reviewing administrative decisions the courts were bound to quash them if they found that they were inconsistent with the object and purpose of the law, which was exactly her case: the Minister’s decision was inconsistent with the purpose of section 655(3) of the 1991 Act, which was to protect the public interest by disqualifying liquidators who, through a failure to abide by their duties, had imperilled or directly harmed the interests of the participants in insolvency proceedings. The 1991 Act made provision for lighter sanctions in its section 663 (see paragraph 27 below). The sanction envisaged in section 655(3) was the harshest among those capable of being imposed on a liquidator, because its effect was to deprive the person concerned of the capacity to serve as a liquidator of any company, which was clearly disproportionate to the seriousness of the breach imputed to the applicant. It was impermissible to resort to the most severe measure in relation to a mere failure to comply with a non-decisive time-limit that had not harmed anyone’s rights.

A five-member panel of the Supreme Administrative Court heard the appeal on 28 January 2005. It admitted a document presented by the applicant.

In a final judgment of 28 March 2005 (реш. № 2866 от 28 март 2005 г. по адм. д. № 10328/2004 г., ВАС, петчл. с-в), the five-member panel upheld the three-member panel’s judgment. It acknowledged that the applicant had been prevented from submitting the lists of claims of company T.’s creditors by the date indicated by the Minister of Justice, 8 May 2004, but considered that she could have done so by 14 June 2004. Thus, in submitting the list on 18 June 2004, she had still failed to comply with the statutory time-limit.

The five-member panel went on to hold, in relation to the applicant’s argument concerning the proportionality of the sanction:

“It is the [Minister’s] right to determine what measures, in so far as they remain within what is provided for by law, he should take where the liquidator has breached his obligations. The allegations that the decision under challenge was inconsistent with the object and purpose of the law because section 655(3) of the [1991 Act] has a heavy punitive character, and that the lower court failed to take into account whether the decision was consistent with the object and purpose of the law, are therefore ill-founded. The three-member panel gave detailed reasons on that point that this court shares and that it is unnecessary to repeat. It is well-established case-law that the question whether the severity of the sanction corresponds to the seriousness of the breach is not reviewable, not only in proceedings for judicial review of administrative action, but also in disciplinary proceedings under the Labour Code.”

Lastly, the five-member panel found that the Minister of Justice had not breached the rules of procedure. In particular, he had apprised the applicant of the proceedings and had given her an opportunity to make representations.

II. RELEVANT DOMESTIC LAW

A. Relevant constitutional provisions

Article 120 of the Constitution of 1991 provides:

“1. The courts shall review the lawfulness of the decisions and actions of the administrative authorities.

2. Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.”

B. Liquidators of insolvent companies

The status of liquidators of insolvent companies is governed by sections 655-65 of the Commerce Act 1991. Liquidators have to meet a number of requirements. In particular, they must: have a degree in law or economics and at least three years of relevant professional experience; have successfully sat an examination and as a result been included on the list of persons qualified to act as liquidators kept by the Minister of Justice; have never been relieved of their duties by the insolvency court in a particular case for failing to carry out their duties or imperilling the interests of the creditors or the insolvent debtor (section 655(2)(6)-(8)). At the relevant time and until May 2006 there existed the additional requirement that the persons concerned had never before been struck off the list kept by the Minister, save at their own request (section 655(2)(9), as worded until May 2006).

Section 655(3) provides as follows:

“The Minister of Justice strikes persons in respect of whom it has been established that they commit breaches in connection with their activity as liquidators, regardless of whether that fact has been established by the insolvency court, off the list [of persons qualified to act as liquidators of insolvent companies]. Those changes [to the list] are published in the State Gazette.”

Under section 656(1), in each case the liquidator is appointed by the insolvency court, following a resolution to that effect by the general meeting of the insolvent company’s creditors, provided that the person selected meets the statutory requirements and has agreed in writing to take up the position. The court cannot inquire whether the person selected is the most suitable, and only verifies whether he or she meets the legal requirements (see опр. № 499 от 10 октомври 2000 г. по ч. гр. д. № 478/2001 г., ВКС, V г. о.). The liquidator’s remuneration is fixed by the general meeting of creditors. If the creditors fail to agree on the person to be appointed liquidator or on his or her remuneration, those decisions are taken by the insolvency court (section 661).

Liquidators represent the insolvent company, manage its daily affairs, accept payments on its behalf, identify its creditors and assets, and dispose of those assets (section 658(1)). They must report regularly to the general meeting of the insolvent company’s creditors and the insolvency court (section 659(2)), and carry out their duties with due care (section 660(1)). Liquidators are liable in damages for any loss that they cause through their fault to the insolvent company or its creditors (section 663(3)), and must take up professional liability insurance (section 663a). If a liquidator fails to carry out his duties, or if his or her actions threaten the interests of the insolvent company or its creditors, the insolvency court may release him or her from that position (section 657(2)). In other cases, where the liquidator fails properly to carry out his or her duties, the insolvency court may fine him or her (section 663(1)).

On 27 June 2005 the Ministers of Justice, Economy and Finance issued joint regulations setting out, inter alia, the manner of obtaining registration on the list of persons qualified to act as liquidators of insolvent companies and the manner in which the Minister of Justice was to exercise his or her powers in relation to persons featuring on that list (Наредба № 3 от 27 юни 2005 г. за реда за подбор, квалификация и контрол върху синдиците). Regulation 23(1) provides that the Minister checks the actions of a liquidator in relation to an insolvent company at the request of an interested party or of his or her own motion. A copy of the request, with enclosures, must be sent to the liquidator, who can file a reply and put forward evidence (regulation 23(2)). Regulation 23(3) reproduces the text of section 655(3) of the 1991 Act (see paragraph 25 above). Regulation 23(4) expressly says that the Minister’s decision to strike a person off the list is subject to review by the Supreme Administrative Court. When it becomes final, the Minister’s decision is to be published in the State Gazette (regulation 23(5)).

C. Legal challenges to decisions under section 655(3) of the 1991 Act

The Supreme Administrative Court has dealt with a number of legal challenges to decisions by the Minister of Justice under section 655(3) of the 1991 Act (see paragraph 25 above) to strike persons off the list of persons qualified to act as liquidators.

It has insisted that before issuing such decisions the Minister has to comply with the requirements of the general rules of administrative procedure to give notice to the person concerned and allow him or her to make representations, and to elucidate the circumstances of the case and give reasons describing with specificity the breach triggering the exercise of his or her power under section 655(3) (see реш. № 3471 от 31 май 2000 г. по адм. д. № 5518/1999 г., ВАС, ІІІ о., as well as реш. № 3926 от 19 юни 2000 г. по адм. д. № 6743/1999 г., ВАС, ІІІ о., upheld by реш. № 2710 от 23 април 2001 г. по адм. д. № 5902/2000 г., петчл. с-в).

In one case the Supreme Administrative Court found that the exercise of the Minister’s powers under section 655(3) was not discretionary in the sense that the Minister’s decision to strike a person off the list of qualified to act as liquidators could not be taken in the absence of a triggering breach on the part of that person (see № 3471 от 31 май 2000 г. по адм. д. № 5518/1999 г., ВАС, ІІІ о.). However, in another case the court held that the Minister had a “right” to exercise its powers under section 655(3) (see реш. № 6446 от 7 юли 2005 г. по адм. д. № 10621/ 2004 г., ВАС, V о.). In another case the court specifically said that the decision whether or not to resort to that measure was within the Minister’s discretion, which could not be reviewed by the courts, and that such a decision could not be regarded as being inconsistent with the object and purpose of the law because the law sought to ensure that the professional conduct of liquidators in insolvency proceedings, which were complex and affected considerable pecuniary interests, would be effectively controlled (see реш. № 3285 от 4 април 2003 г. по адм. д. № 9426/2002 г., ВАС, V о., upheld by реш. № 6758 от 14 юли 2004 г. по адм. д. № 7490/ 2003 г., ВАС, петчл. с-в). The court has also held that the Minister cannot be compelled to exercise his or her powers under section 655(3) and that the matter lay within the Minister’s judgment (see опр. № 10630 от 16 октомври 2008 г. по адм. д. № 9789/2008 г., ВАС, VІІ о., upheld by опр. № 881 от 21 януари 2009 г. по адм. д. № 14539/2008 г., ВАС, петчл. с-в).

D. General rules governing the exercise of administrative discretion and its review by the courts

1. Under the Administrative Procedure Acts 1970 and 1979 and the Supreme Administrative Court Act 1997

Section 5(2) of the Administrative Procedure Act 1970 provided that in cases where the applicable statute or statutory instrument gave the administrative authority discretion, the administrative decision had to be within the authority’s competence and consistent with the purpose for which that competence had been granted. The former Supreme Court was relying on that provision to review the exercise of discretion by the authorities (see реш. № 181 от 21 юни 1976 г. по адм. д. № 146/1976 г., ВС, III г. о.)

In an interpretative decision of 22 November 1976 (see пост. № 4 от 22 ноември 1976 г. по гр. д. № 3/1976 г., ВС, Пленум) the Plenary of the former Supreme Court held that discretionary administrative decisions were also subject to judicial review, because the exercise of discretion was not random but subject to certain requirements, such as the requirement laid down in section 5(2) of the Administrative Procedure Act 1970 for administrative decisions to be consistent with the object and purpose of the law. Even where an administrative authority could choose between two or more viable and equally lawful alternatives, its choice had to be consistent with the object and purpose of the law. The corollary of that was that the use of powers for an ulterior purpose would amount to a misuse of powers. Compliance with those requirements was part of the lawfulness of the administrative decision, and that matter was therefore amenable to judicial scrutiny.

The Administrative Procedure Act 1979, which superseded the Administrative Procedure Act 1970, did not contain a provision similar to section 5(2) of the 1970 Act. Its section 4 provided that if an administrative decision interfered with the rights of individuals or organisations, the authorities had to apply the measures that were more favourable to those individuals or organisations, if that was also consistent with the object and purpose of the law.

Section 41(3) of the Administrative Procedure Act 1979 provided that in reviewing an administrative decision the courts had to verify whether it was lawful: whether it had been issued by a competent authority in due form and in line with the applicable rules of substantive and procedural law, and whether it was consistent with the object and purpose of the law.

Section 12 of the Supreme Administrative Court Act 1997 provided that an administrative decision could be challenged on grounds of being: (a) issued by an incompetent authority; (b) not in due form; (c) in serious breach of the rules of administrative procedure; (d) in breach of the rules of substantive law; or (e) inconsistent with the object and purpose of the law.

Section 42(1) of the Administrative Procedure Act 1979 dealt with the powers of the court in judicial review proceedings: it could quash the administrative decision fully or partly, vary it or dismiss the application for judicial review. Section 42(2) provided that where the matter had not been left to the discretion of the administrative authority, the court could decide the case on the merits. Where that was not the case, or where the nature of the administrative decision made it impossible for the court to proceed in that way, the court had to quash the administrative decision and refer the case back to the administrative authority with instructions on the interpretation and application of the law (section 42(3)).

2. Under the Code of Administrative Procedure 2006

The Code of Administrative Procedure was enacted by Parliament on 29 March 2006 and came into force for the most part on 12 July 2006. It governs, inter alia, the manner of issuing and challenging individual administrative decisions (Article 1 § 1).

Article 6 § 1 of the Code, entitled “Proportionality”, provides that the administrative authorities must exercise their powers in a reasonable way, in good faith and fairly. Article 6 § 2 provides that an administrative decision or its execution must not interfere with rights and legal interests more than absolutely necessary for the achievement of the aim sought to be attained. Article 6 § 3 provides that if an administrative decision interferes with the rights of individuals or legal persons, the authorities must apply the measures that are more favourable to those individuals or legal persons, if that is also consistent with the object and purpose of the law. Article 6 § 5 provides that the administrative authorities must refrain from actions and decisions capable of causing damage that is clearly disproportionate to the aim sought to be attained. The Supreme Administrative Court has held that Article 6 sets out the principle of proportionality, which is mandatory for administrative authorities when issuing their decisions (see реш. № 8491 от 23 юни 2010 г. по адм. д. № 3952/2010 г., ВАС, I о.), that the rules laid down in that Article govern the way in which those authorities can exercise their discretion and that, if an authority has acted in breach of those rules, its decision must be regarded as inconsistent with the object and purpose of the law within the meaning of Article 146, point 5 of the Code (see paragraph 42 below, as well as реш. № 4128 от 29 март 2010 г. по адм. д. № 1255/2010 г., ВАС, петчл. с-в; реш. № 3748 от 16 март 2011 г. по адм. д. № 15309/2010 г., ВАС, V о.; реш. № 4410 от 29 март 2011 г. по адм. д. № 9308/2010 г., ВАС, V о.).

Article 13 of the Code, entitled “Consistency and predictability”, provides that the administrative authorities must duly make public the criteria, internal rules or established practices which guide the exercise of their discretion. In one case the Pazardzhik Administrative Court held that the purpose of such publication was to ensure transparency in the proceedings leading to the making of a discretionary administrative decision (see реш. № 57 от 29 юни 2007 г. по адм. д. № 10/2007 г., АдмС - Пазарджик, III с-в). In a series of recent cases concerning the dismissal of customs officers, the Supreme Administrative Court held that Article 13 required the authorities to follow the internal rules issued by them (see реш. № 4701 от 4 април 2011 г. по адм. д. № 435/2011 г., ВАС, V о.; реш. № 4733 от 5 април 2011 г. по адм. д. № 10355/2010 г., ВАС, V о.; and реш. № 6438 от 10 май 2011 г. по адм. д. № 2345/2011 г., ВАС, V о.). However, in one case the Supreme Administrative Court rejected a legal challenge to a decision of the Minister of Justice under section 655(3) of the 1991 Act (see paragraph 25 above), holding, inter alia, that since that Act laid down rules on the manner in which liquidators had to carry out their duties, there was no need for additional criteria setting out the manner in which the Minister would control that (see реш. № 10898 от 7 ноември 2007 г. по адм. д. № 7451/2007 г., ВАС, петчл. с-в).

Article 146 of the Code, which superseded section 41(3) of the Administrative Procedure Act 1979 (see paragraph 36 above) and section 12 of the Supreme Administrative Court Act 1997 (see paragraph 37 above), provides that an administrative decision may be challenged on grounds of being: (a) issued by an incompetent authority; (b) not in due form; (c) in serious breach of the rules of administrative procedure; (d) in breach of the rules of substantive law; or (e) inconsistent with the object and purpose of the law. Article 168 § 1 of the Code enjoins the courts to examine all those points, regardless of whether or not they have been raised by the claimant.

43. Article 169 of the Code, entitled “Judicial review and discretion”, provides that when reviewing a discretionary administrative decision, the courts must check whether the administrative authority had discretion and whether it complied with the requirement that administrative decisions have to be lawful. In a number of cases the Supreme Administrative Court has construed that provision to mean that the courts should review the way in which the authorities have exercised their discretion (see реш. № 8647 от 29 юни 2009 г. по адм. д. № 3037/2009 г., ВАС, II о., upheld by реш. № 14745 от 4 декември 2009 г. по адм. д. № 11507/2009 г., ВАС, петчл. с-в; реш. № 4128 от 29 март 2010 г. по адм. д. № 1255/2010 г., ВАС, петчл. с-в; реш. № 4701 от 4 април 2011 г. по адм. д. № 435/ 2011 г., ВАС, V о.; реш. № 4733 от 5 април 2011 г. по адм. д. № 10355/2010 г., ВАС, V о.; реш. № 6438 от 10 май 2011 г. по адм. д. № 2345/2011 г., ВАС, V о.; реш. № 11743 от 21 септември 2011 г. по адм. д. № 8123/2011 г., ВАС, IV о.; реш. № 616 от 12 януари 2012 г. по адм. д. № 10442/2011 г., ВАС, VI о.; реш. № 1769 от 6 февруари 2012 г. по адм. д. № 13626/2011 г., ВАС, II о.; and реш. № 9057 от 25 юни 2012 г. по адм. д. № 5600/2012 г., ВАС, II о.), but in others it has relied on it to say that administrative discretion is unreviewable by the courts (see реш. № 14751 от 14 ноември 2011 г. по адм. д. № 9472/ 2011 г., ВАС, петчл. с-в). On one case the court held that it followed from Article 169 that the administrative authorities had to give reasons why they had opted for one rather than another solution (see реш. № 13349 от 25 октомври 2012 г. по адм. д. № 7518/2012 г., ВАС, петчл. с-в).

Articles 172 § 2 and 173 of the Code superseded section 42 of the Administrative Procedure Act 1979 (see paragraph 38 above). Article 172 § 2 provides that the court may declare an administrative decision null and void, quash it fully or partly, vary it or dismiss the application for judicial review. Article 173 § 1 provides that where the matter has not been left to the discretion of the administrative authority, the court, having declared the administrative decision null and void or quashed it, may decide the case on the merits. In all other cases, or where the administrative decision is null and void due to the lack of competence of the administrative authority or where the nature of the decision makes it impossible for the court to decide the merits of the matter, the court has to refer the case back to the administrative authority with instructions on the interpretation and application of the law (Article 173 § 2).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE SCOPE OF JUDICIAL REVIEW

The applicant complained under Article 6 § 1 of the Convention that the Supreme Administrative Court had refused fully to review the decision of the Minister of Justice to strike her off the list of persons qualified to act as liquidators of insolvent companies and had instead held that it was not competent to examine the proportionality of that decision.

Article 6 § 1 of the Convention provides, in so far as relevant:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ...”

A. The parties’ submissions

The Government submitted that the Supreme Administrative Court had enjoyed jurisdiction to examine all relevant questions of fact and law that the applicant had put before it, including whether she had indeed committed the breach imputed to her. In other cases, in which that court had found that the relevant breaches had not been established on the facts, it had quashed the decisions of the Minister of Justice to strike the persons concerned off the list of persons qualified to act as liquidators of insolvent companies.

The Supreme Administrative Court’s refusal to examine the proportionality of the decision to remove the applicant from that list had not breached her right to a fair trial because the law did not provide for a range of sanctions. Under section 655(3) of the 1991 Act, the Minister of Justice did not have discretion and was bound to remove a person’s name from the list if it was established that the person had committed a breach. The expediency of that regulatory setup was a matter of legislative policy. Indeed, the three-member and five-member panels of the Supreme Administrative Court had made similar points. It was also important to emphasise that before resorting to that measure, the Minister had to establish the facts and allow the person concerned to make representations and put forward evidence. Unlike the situation obtaining in cases such as Koskinas v. Greece (no. 47760/99, 20 June 2002) and Capital Bank AD v. Bulgaria (no. 49429/99, § 99, 24 November 2005), in the present case the Supreme Administrative Court had not considered itself bound by the Minister’s findings of fact or law and had fully reviewed them.

The applicant submitted that the right of effective access to a court meant access to a court capable of examining all aspects of the case put before it. According to her, Bulgarian law did not contain any provisions restricting the courts’ jurisdiction in cases such as hers. Nor did the law lay down clear criteria for removing a person from the list of persons qualified to act as liquidators of insolvent companies. The applicant went on to note the discrepancy between the Supreme Administrative Court’s ruling that the Minister of Justice enjoyed discretion whether to strike her off that list and the Government’s submission that he had no such discretion. She was of the view that even where an administrative authority had discretion, the courts should have jurisdiction to review all aspects of its decision. This was especially important in her case, in which the Supreme Administrative Court, although making findings of fact which differed from those of the Minister of Justice and were more favourable to the applicant, had decided not to disturb the Minister’s assessment that she should be struck off the list. It was impermissible to interfere with the right to practice a profession without providing due procedural safeguards, such as those available to persons subjected to criminal or administrative-penal charges.

B. The Court’s assessment

1. Admissibility

The Court finds that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

(a) Applicability of Article 6 § 1 of the Convention

The first point that needs to be examined is whether Article 6 § 1 of the Convention applied to the proceedings for judicial review of the decision of the Minister of Justice to strike the applicant off the list of persons qualified to act as liquidators of insolvent companies.

The Court does not find that that Article was engaged under its criminal limb: under Bulgarian law, the matter is regarded as purely regulatory (see, mutatis mutandis, Ravnsborg v. Sweden, 23 March 1994, §§ 31-33, Series A no. 283-B); the breaches imputed to the applicant were of rules governing specifically the duties of liquidators of insolvent companies, not of rules of general application (see Wickramsinghe v. the United Kingdom, no. 31503/96, Commission decision of 9 December 1997, unreported; Brown v. the United Kingdom (dec.), no. 38644/97, 24 November 1998; and Müller-Hartburg v. Austria, no. 47195/06, § 44, 19 February 2013); and the most serious sanction that the applicant risked was that which was in fact imposed: removal of her name from the list of persons qualified to act as liquidators of insolvent companies (see Wickramsinghe, cited above).

On the other hand, having regard to the terms of section 655(3) of the 1991 Act (see paragraph 25 above), the applicant could arguably maintain that in Bulgarian law she had a right to remain on the above-mentioned list unless the Minister of Justice established that she had committed breaches in relation to her activity as a liquidator. This is true even though the Minister had some discretion in deciding whether to do so (see paragraph 32 above and Desmots v. France (dec.), no. 41358/98, ECHR 2001-XI). In support of her legal challenge against the Minister’s decision the applicant raised matters of law and fact susceptible of judicial assessment, and the Supreme Administrative Court had to determine a “contestation” (dispute) concerning a right asserted by the applicant (see, mutatis mutandis, H. v. Belgium, 30 November 1987, §§ 41-43, Series A no. 127-B; De Moor v. Belgium, 23 June 1994, §§ 42-47, Series A no. 292-A; W.R. v. Austria, no. 26602/95, §§ 28-30, 21 December 1999; and Goriany v. Austria, no. 31356/04, § 21, 10 December 2009). That right can, in view of its potential pecuniary implications, be regarded as a “civil” one (see, mutatis mutandis, H. v. Belgium, cited above, §§ 45-48, and Ginikanwa v. the United Kingdom, no. 12502/86, Commission decision of 9 March 1988, Decisions and Reports (DR) 55, p. 251, at p. 258, in relation to lawyers in private practice). Article 6 § 1 of the Convention is therefore applicable under its civil limb.

(b) Compliance with Article 6 § 1 of the Convention

It should be pointed out at the outset that, according to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. The Court is not a court of appeal from the national courts (see, as recent authorities, Yordanova and Toshev v. Bulgaria, no. 5126/05, § 65, 2 October 2012, and Fazliyski v. Bulgaria, no. 40908/05, § 56, 16 April 2013), and it is not its function to deal with errors of fact or law allegedly committed by those courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, Csősz v. Hungary, no. 34418/04, § 33, 29 January 2008, and Fazliyski, cited above, § 56). It follows that the Court cannot, in the context of Article 6 § 1 of the Convention, determine whether the decision of the Minister of Justice to strike the applicant off the list of persons qualified to act as liquidators of insolvent companies was lawful or justified, or whether the Supreme Administrative Court’s rulings in relation to that decision were correct in terms of Bulgarian law. The Court’s task is confined to examining whether the proceedings before the Supreme Administrative Court were fair and otherwise in compliance with the requirements of Article 6 § 1.

More specifically, the Court has to assess whether the scope of the Supreme Administrative Court’s jurisdiction, as exercised in the case at hand, was sufficient for the purposes of that Article. In this connection, the Court notes that the Supreme Administrative Court was - as apparent from the reasoning of its three-member and five-member panels (see paragraphs 15 and 20 above) - competent to, and did in fact, examine in detail whether the applicant had committed the breach imputed to her by the Minister of Justice. That was in line with that court’s established case-law in that domain, according to which it was competent to verify whether the acts or omissions imputed to the liquidator had in fact taken place and could indeed be characterised as breaches of duty (see paragraph 31 above). It is also clear that that court could have quashed the Minister’s decision on a number of grounds, including if the decision had been reached on the basis of a misconception of fact or law, there had been no proper enquiry or a lack of due reasoning, or on procedural grounds (see paragraphs 30 and 31 above).

The situation at hand is therefore different from those obtaining in cases in which the national courts were unable or unwilling to scrutinise findings of fact or law made by administrative authorities (see Obermeier v. Austria, 28 June 1990, §§ 69-70, Series A no. 179; Beaumartin v. France, 24 November 1994, §§ 38-39, Series A no. 296-B; Terra Woningen B.V. v. the Netherlands, 17 December 1996, § 53, Reports of Judgments and Decisions 1996-VI; Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, 10 July 1998, § 74, Reports 1998-IV; Koskinas, cited above, § 30; Chevrol v. France, no. 49636/99, § 78, ECHR 2003-III; I.D. v. Bulgaria, no. 43578/98, § 46, 28 April 2005; Capital Bank AD, cited above, § 99; Tsfayo v. the United Kingdom, no. 60860/00, §§ 46-48, 14 November 2006; Družstevní záložna Pria and Others v. the Czech Republic, no. 72034/01, §§ 112-13, 31 July 2008; Putter v. Bulgaria, no. 38780/02, §§ 48-56, 2 December 2010; and Fazliyski, cited above, § 59). For instance, most recently in Fazliyski (cited above, §§ 56-63) the Court found a breach of Article 6 § 1 of the Convention on account of a refusal on the part of the Bulgarian Supreme Administrative Court to review an assessment, carried out by an expert administrative body and triggering automatic dismissal from work, that a major at the National Security Directorate of the Ministry of Internal Affairs was mentally unfit for work at the Ministry. The Court, noting that under Bulgarian law the decision of the Minister of Internal Affairs to dismiss the applicant from his post had not been a discretionary one, specifically said that the case was not concerned with the intensity with which the domestic courts should scrutinise the exercise of administrative discretion (ibid., § 58).

The issue in the present case is different and far narrower: whether, by declaring themselves incapable of examining whether the measure taken in relation to the applicant was too harsh in view of the breach imputed to her, the three-member and five-member panels of the Supreme Administrative Court did not sufficiently review the discretionary decision of the Minister of Justice in respect of the applicant. The applicant pleaded the point before both of those panels, raising a number of arguments in that regard (see paragraphs 13 and 18 above). Even though the three-member panel replied to some of those arguments, most notably to the one that any delay on the applicant’s part had not adversely affected the interests of the participants in the insolvency proceedings (see paragraph 16 above), ultimately both the three-member and the five-member panels found themselves unable to review the proportionality of the measure taken against the applicant (see paragraphs 16, 20 and 21 above).

The case is therefore solely concerned with the intensity with which the domestic courts should scrutinise the exercise of administrative discretion (see Kaplan v. the United Kingdom, no. 7598/76, Commission’s report of 17 July 1980, DR 21, p. 5, at pp. 31-34, §§ 158-66; Zumtobel v. Austria, 21 September 1993, §§ 31-32, Series A no. 268-A; ISKCON and Others v. the United Kingdom, no. 20490/92, Commission decision of 8 March 1994, DR 76-A, p. 90; Ortenberg v. Austria, 25 November 1994, §§ 33-34, Series A no. 295-B; Fischer v. Austria, 26 April 1995, § 33-34, Series A no. 312; Bryan v. the United Kingdom, 22 November 1995, §§ 44-47, Series A no. 335-A; Potocka and Others v. Poland, no. 33776/96, §§ 54-58, ECHR 2001-X; Crompton v. the United Kingdom, no. 42509/05, §§ 77-78, 27 October 2009; and Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, §§ 151-69, 21 July 2011).

Both the former Commission and the Court have acknowledged in their case-law that the requirement that a “tribunal” should have “full jurisdiction” will be satisfied where it is found that the judicial body in question has exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before it (see Sigma Radio Television Ltd, cited above, § 152, with further references). It can be derived from the relevant case-law that it is not the role of Article 6 § 1 of the Convention to give access to a “tribunal” which can substitute its opinion for that of the administrative authorities. In this regard, particular emphasis has been placed on the respect which must be accorded to decisions taken by those authorities on grounds of expediency, which often involve specialised areas of law (ibid., § 153, with further references). In assessing the sufficiency of the judicial review available to an applicant, the Court will have regard to the powers of the “tribunal” in question, and to such factors as: (a) the subject-matter of the decision under challenge, in particular, whether or not it concerned a specialised issue requiring professional knowledge or experience or whether it involved the exercise of administrative discretion, and if so, to what extent; (b) the manner in which that decision was arrived at, in particular, the procedural guarantees available in the proceedings before the administrative body; and (c) the content of the dispute, including the desired and actual grounds of appeal (ibid., § 154, with further references).

It is important to emphasise in this connection that whether the review carried out was sufficient for the purposes of Article 6 § 1 of the Convention will very much depend on the circumstances of the case at hand: the Court will confine itself as far as possible to examining the question raised in the case before it and to determining whether the scope of the review was adequate in that particular case (ibid., § 155).

In the instant case, the Supreme Administrative Court, while verifying whether the breach imputed to the applicant had indeed taken place, so as to trigger the possibility for the Minister of Justice to exercise his or her powers under section 655(3) of the 1991 Act (see paragraphs 15, 16, 20, 21 and 25 above), did not agree with the applicant’s submission that, due to its alleged harshness, the Minister’s decision to strike her off the list of persons qualified to act as liquidators of insolvent companies was liable to be set aside. However, it cannot be overlooked in that connection that section 655(3) did not envisage a range of gradated sanctions - under its terms the Minister could either strike a person off that list or refrain from taking any action in relation to that person. For the Supreme Administrative Court, the Minister’s decision was in line with the object and purpose of the law. That court also found that the applicable law did not require that the Minister should act only where the breach was “serious” (see paragraphs 16 and 21 above). Nor does it appear that at the relevant time Bulgarian law clearly spelled out a general principle that all administrative decisions have to be strictly proportionate to the aim sought to be attained by their issuing. That principle was expressly and comprehensively enshrined in Article 6 of the Code of Administrative Procedure 2006, but that provision came into force on 12 July 2006 (see paragraphs 39 and 40 above), after the end of the judicial review proceedings in the applicant’s case. The Supreme Administrative Court was therefore, in the circumstances, entitled to defer to the Minister’s assessment of the expediency of striking the applicant off the list of persons qualified to act as liquidators.

Moreover, sight should not be lost of the fact that the Minister’s decision concerned the regulation of a profession - liquidators of insolvent companies - that the authorities of the respondent State could legitimately regard as particularly sensitive, in view of its fiduciary nature and the high professional qualities and accuracy expected of the persons exercising it, and thus calling for heightened supervision. Indeed, the overall regulatory setup shows that the legislature had charged the Minister with ensuring that only appropriate persons would be eligible to be appointed as liquidators of insolvent companies (see, mutatis mutandis, X v. the United Kingdom, no. 28530/95, Commission decision of 19 January 1998, unreported). As already noted, the scope of the control exercised by the courts over the exercise of such administrative discretion may vary according to the subject-matter of the decision under challenge.

It should in addition be noted that the Minister took his decision after giving the applicant an opportunity to make representations and adduce evidence with a view to influencing his assessment (see paragraph 8 above), and after receiving advice that under the Supreme Administrative Court’s case-law even a single failure on the part of a liquidator to comply with a time-limit relating to the lists of claims against an insolvent company could amount to a breach justifying removal from the list of persons qualified to act as liquidators because liquidators were bound to carry out their duties with due care (see paragraph 9 above).

In as much as the applicant is to be understood as arguing that the Supreme Administrative Court should have interpreted the law as requiring the Minister fully to abide by the principle of proportionality in exercising his discretion under section 655(3) of the 1991 Act or that that section should have provided for a scale of sanctions, the Court notes that, apart from removal from the list of persons qualified to act as liquidators, Bulgarian law does envisage lighter sanctions - fine and removal from a particular case - which can be imposed on a liquidator by the insolvency court within the framework of a particular insolvency case (see paragraph 27 above). However, under the 1991 Act the power to impose those sanctions is not given to the Minister of Justice, and Article 6 § 1 of the Convention does not in itself guarantee any particular content for civil “rights and obligations” in the substantive law of the Contracting States (see James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98), although other Articles such as those protecting the right to respect for private and family life (Article 8 of the Convention) and the right to property (Article 1 of Protocol No. 1) may do so (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 98, ECHR 2001-V, and Nedyalkov and Others v. Bulgaria (dec.), no. 663/11, § 111, 10 September 2013). It is not for this Court, in the examination of complaints under Article 6 § 1 of the Convention, to substitute its own views as to the proper interpretation and content of domestic law.

For the Court, the above suffices to conclude that in the circumstances of the present case the scope of review of the Supreme Administrative Court was sufficient to comply with Article 6 § 1 of the Convention.

There has therefore been no breach of that provision.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

The applicant complained under Article 1 of Protocol No. 1 that her removal from the list of persons qualified to act as liquidators of insolvent companies had deprived her of her capacity to practice as a liquidator and of the future income that she would have obtained through such practice.

Article 1 of Protocol No. 1 provides as 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.”

A. The parties’ submissions

The Government submitted that the applicant was a lawyer by profession, and had only additionally qualified as a liquidator of insolvent companies. However, her placement on the list of persons qualified to act as liquidators did not mean that she would necessarily be appointed liquidator of a particular company. The possibility of being appointed liquidator in a particular case did not qualify as a “possession” within the meaning of Article 1 of Protocol No. 1. Nor could the applicant be regarded as having built up a clientele as regards her services as a liquidator. She had not stopped practising as a lawyer, and had not put forward any evidence that she had had previous appointments as a liquidator and had had regular income as a result, even though she had been included on the list as early as 2001.

The Government went on to argue that even if the removal of the applicant from the above-mentioned list could be regarded as an interference with her “possessions”, it had been lawful and justified in the public interest. The measure taken against the applicant had been based on section 655(3) of the 1991 Act. The removal had not been automatic, but based on an inquiry into the relevant facts, and preceded by an opportunity to make representations. The aim of the interference had been to ensure the professional integrity of a class of persons whose activities were extremely important for the economy. Nor had the interference caused the applicant to bear a disproportionate burden, because it had not deprived her of her main professional capacity and clientele as a practising lawyer, and had not had a negative effect on those.

The applicant submitted that the profession of liquidator of insolvent companies was distinct from, and not auxiliary to, the profession of practising lawyer. Although the decision to deprive her of the possibility to exercise that profession had not deprived her of a constant stream of income, it had deprived her of a clientele, which, in so far as regulated professions were concerned, was dependent on an official authorisation to practise. The decision to withdraw someone’s authorisation to practise thus amounted to an interference with that person’s “possessions”, in the form of legitimate expectations. The applicant had had the legitimate expectation that she would be able successfully to develop her practice as a liquidator. That expectation was based on the fact that in the very beginning of her career she had been able to earn higher than the average income. In support of that assertion the applicant presented a note detailing the remuneration that she had obtained between December 2003 and August 2004 for her services in relation to company T. The fact that she had been able to continue to practise as a lawyer was immaterial in that regard.

B. The Court’s assessment

The Court begins by noting that, in so far as it concerns the loss of future income, the applicant’s complaint falls outside the scope of Article 1 of Protocol No. 1, because future income is only a “possession” once it has been earned, or an enforceable claim to it exists (see, as a recent authority, Malik v. the United Kingdom, no. 23780/08, § 93, 13 March 2012).

As regards the effects of the strike-off on the applicant’s capacity to practice as a liquidator, the Court notes that it has previously considered that rights akin to property rights existed in cases concerning professional practices where by dint of their own work, the applicants concerned had built up a clientele. Such clientele has, in many respects, the nature of a private right and constitutes an asset and hence a possession within the meaning of the first sentence of Article 1 of Protocol No. 1. This applies for instance to law and other professional practices and their clientele. In cases involving such practices, a restriction on the applicant’s right to practise the profession concerned - such as a refusal to register an applicant on a professional list - significantly affects the conditions of his or her professional activities and reduces the scope of those activities. Where, as a consequence of the restrictions, the applicant’s income and the value of his or her clientele and, more generally, his or her business, fall, this gives rise to an interference with the right to peaceful enjoyment of possessions (ibid., §§ 89-90, with further references). Goodwill may also be an element in the valuation of a professional practice, but where an applicant refers to the value of his or her business based upon the profits generated by the business, or the means of earning an income from the business, as “goodwill”, this reference is to be understood as a complaint in substance of loss of future income (ibid., § 93).

In the light of those principles, the Court does not find that the applicant’s inclusion in the list of persons qualified to act as liquidators of insolvent companies constituted in itself a “possession” for the purposes of Article 1 of Protocol No. 1. In order for that Article to apply, it must be established that there was an underlying professional practice of a certain worth that had, in many respects, the nature of a private right and thus constituted an asset. The Court does not consider that this was the case, for two reasons. Firstly, the applicant has not shown that she had built up a clientele or developed a goodwill in relation to her services as a liquidator (contrast Buzescu v. Romania, no. 61302/00, § 82, 24 May 2005, and Malik, cited above, §§ 97 and 99). The only evidence that she submitted in that regard was a note detailing the remuneration that she had received for her services in relation to company T., and there is no indication that she has ever served as the liquidator of another company. Secondly, it is open to question whether a liquidator, whose appointment in relation to a particular insolvent company is in each case dependent on a judicial decision (see paragraph 26 above), can at all be regarded as having a clientele in the same way as, for instance, a lawyer in private practice. Indeed, it is hardly surprising in this connection that the applicant, apart from practising as a liquidator, had not given up her concurrent practice as a private lawyer. Therefore, although she could validly argue that the Minister’s decision to strike her off the list of persons qualified to act as liquidators of insolvent companies affected her “civil rights” within the meaning of Article 6 § 1 of the Convention (see paragraph 53 above), it does not automatically follow that she can be regarded as having had a “possession” within the meaning of Article 1 of Protocol No. 1. While it is in the interests of the coherence that those two concepts should be interpreted in a consistent way (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 49, ECHR 2005-X), they cannot necessarily be regarded as identical in all situations.

Accordingly, the Court concludes that the applicant cannot claim to have had a “possession” within the meaning of Article 1 of Protocol No. 1, and that that provision is therefore not applicable.

It follows that the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

The applicant complained under Article 13 of the Convention that by refusing to examine the proportionality of the sanction imposed on her, the Supreme Administrative Court had deprived her of an effective remedy, and that Bulgarian law did not lay down any criteria governing the manner in which the Minister of Justice was to exercise his powers in relation to the striking of persons off the list of persons qualified to act as liquidators.

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

That Article only applies to claims which fall within the scope of one of the substantive provisions of the Convention or its Protocols (see, as a recent authority, Dzhidzheva-Trendafilova v. Bulgaria (dec.), no. 12628/09, § 38, 9 October 2012). However, the Convention does not enshrine, as such, the right to practice as a liquidator of insolvent companies. Nor can it be said that this right enjoys indirect protection under Article 3 (see, mutatis mutandis, Albert and Le Compte v. Belgium, 10 February 1983, § 22, Series A no. 58), Article 8 (see, mutatis mutandis, Karov v. Bulgaria, no. 45964/99, § 88, 16 November 2006, and D.M.T. and D.K.I. v. Bulgaria, no. 29476/06, § 102, 24 July 2012), or any other Article of the Convention or its Protocols. Nor did the decision to strike the applicant off the list of persons qualified to act as liquidators amount to an interference with her “possessions” within the meaning of Article 1 of Protocol No. 1 (see paragraphs 72-75 above). Article 13 of the Convention is therefore not applicable to her case.

It follows that the complaints under that Article are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant raised a number of other complaints under Article 6 § 1 of the Convention: (a) that she had been sanctioned for actions which had not formed part of her duties as a liquidator (in this respect the applicant also relied on Article 7 of the Convention); (b) that the Supreme Administrative Court had upheld the decision of the Minister of Justice to strike the applicant off the list of persons qualified to act as liquidators on grounds differing from those given by the Minister; and (c) that the Supreme Administrative Court had erred in the interpretation and application of the law governing judicial review of administrative decisions such as the one issued by the Minister of Justice.

The applicant also complained, relying on Article 5 of the Convention, of a breach of “her liberty and security to exercise a profession”.

Lastly, the applicant complained under Article 8 of the Convention that the Minister’s decision to strike her off the list of persons qualified to act as liquidators had been published in the State Gazette before becoming final.

In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT

1. Declares unanimously the complaint under Article 6 § 1 of the Convention concerning the scope of judicial review admissible and the remainder of the application inadmissible;

2. Holds, by five votes to two, that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 12 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Ineta Ziemele
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate joint opinion of Judges Kalaydjieva and De Gaetano is annexed to this judgment.

I.Z.
F.E.P.

JOINT DISSENTING OPINION OF JUDGES KALAYDJIEVA AND DE GAETANO

1. This case concerns the essential function of the courts in exercising judicial review over acts of the executive, a function which lies at the heart of the system of checks and balances between the separated powers of government which is inherent in a democratic society governed by the rule of law. In principle, judicial review is a procedure, usually within the administrative law set-up, for the purposes of the courts’ supervision over the potentially arbitrary exercise of public power. A person who feels that the exercise of such power in a given case by a government authority such as a minister, a local council or a statutory tribunal is unlawful and negatively affects his or her rights, may apply to the administrative courts for the judicial review of such a decision in order to have it set aside (quashed) and, possibly, obtain damages or mandatory orders to compel the authority to do its duty or to stop it from acting illegally.

2. It appears that in reaching his decision to withdraw the applicant’s name from the list of persons competent to act as liquidators, the Minister of Justice neither found her no longer competent or fit to exercise such functions, nor did he seek to justify this decision by the necessity to protect any interests adversely affected by the applicant’s delay or to demonstrate that his decision pursued any of the purposes of the law. Instead, he relied on the advice that the applicant’s failure to submit the list of creditors to the insolvency court within the time-limits prescribed by the law sufficed in itself as a ground for her removal (paragraph 9 of the judgment).

3. Before the Court the applicant complained that, in violation of Article 6 of the Convention, the Supreme Administrative Court had “refused fully to review the decision of the Minister of Justice ... and had instead held that it was not competent to examine the proportionality of that decision” (paragraph 45 of the judgment).

4. We agree with the majority that this decision concerned a “civil” right within the meaning of Article 6 of the Convention and that in appealing to the Supreme Administrative Court, which was competent, the applicant sought the determination of a “contestation” (dispute) concerning this right. Indeed, “[t]he [respondent] Government submitted that [that court] ... enjoyed jurisdiction to examine all relevant questions of fact and law that the applicant had put before it, including whether she had indeed committed the breach imputed to her” (paragraph 47 of the judgment).

5. In our understanding the gist of this case is not whether the domestic courts were or were not competent to exercise full jurisdiction, but whether in actually exercising it, at two instances of proceedings, they functioned for the purposes of determining the merits of the applicant’s complaints as required by Article 6 of the Convention, or whether these proceedings amounted in reality to a situation of formal and meaningless access to a court, which did not result in any such determination.

6. The applicant appealed to the domestic courts, indicating that the Minister had failed to take into account that her delay in submitting the list of creditors within the non-decisive time-limits laid down in the law was not entirely imputable to her (paragraph 12 of the judgment). In this regard, having admitted and examined further evidence in two instances of proceedings, the courts agreed that this delay did not amount to forty days - as concluded by the Minister - but to four days (paragraph 20 of the judgment). However, it is not clear whether and how these new findings as to the facts had any effect on the determination of the dispute over the applicant’s civil right.

7. The remaining part of the applicant’s complaints before the national courts concerned the alleged absence of lawful purpose and necessity to impose the most severe sanction for an offence of an allegedly insignificant nature. In our understanding the essence of those complaints concerns the lawfulness of the impugned decision and not the proportionality of the imposed harsh sanction. Even if the courts were formally competent to quash the decision or to return it to the Minister for further clarification or appropriate amendment (paragraph 38 of the judgment), in examining her submissions that any delay (whether of four or of forty days) had no adverse effects on the interests of the parties involved in the insolvency proceedings and that for this reason the Minister’s decision could not be seen as consistent with any lawful purpose of protecting public or private interests and/or with the gravity of the applicant’s offence, the domestic courts declared themselves incompetent to review the decision of the Minister in so far as it “was not in breach of the substantive law” (paragraph 15 of the judgment) and that in their view “it [was] the Minister’s right to determine what measures, in so far as they remain[ed] within what [was] provided by law, he should take” (paragraph 21 of the judgment).

8. We fail to agree with the findings of the majority that “[f]or the Supreme Administrative Court, the Minister’s decision was in line with the object and purpose of the law” (paragraph 61 of the judgment). We cannot but note that in issuing his decision the Minister did not indicate any such purpose or object. In fact, he was reacting to a request of the management of the State-owned company T., whereas to our best knowledge the duty of a liquidator to present the list in question to the insolvency court pursues as a matter of principle the protection of the interests of the other parties to the insolvency proceedings - that is to say, the creditors of that company. In the present case it has not been submitted that the creditors complained of the applicant’s delay or that it resulted in any harm for the public or private interests or for the proper conduct of the insolvency proceedings. Quite to the contrary, the company management’s attempts before the insolvency courts to have the applicant removed were unsuccessful (paragraph 7 of the judgment). While it is true that the domestic courts indicated in abstracto that the legislature pursued legitimate aims in setting certain time-limits, neither the Minister nor the courts examined the extent to which the decision could be seen to pursue any such aims in casu.

9. We are furthermore far from convinced of the correctness of the majority’s argument that “at the relevant time Bulgarian law [did not] clearly spell... out a general principle that all administrative decisions have to be strictly proportionate to the aim sought to be attained by their issuing” (paragraph 61 of the judgment). No such objection was raised by the respondent Government and it appears from the domestic law and practice as well as from the binding decisions of the Supreme Court that in reviewing administrative decisions the courts were bound to verify whether they were lawful and consistent with the object and purpose of the law. Where that was not the case, or where the nature of the administrative decision made it impossible for the courts to decide the case on the merits, the courts had to quash the administrative decision and refer the case back to the administrative authority with instructions on the interpretation and application of the law (paragraphs 33 to 38 of the judgment). Even if the argument that no such general principle was explicitly spelled out in the national law were correct (and we believe that it is not), such an argument seems irrelevant for the purposes of examining the compliance of the domestic proceedings with the requirements of Article 6 regarding access to a court for the purpose of the determination of a dispute over the applicant’s civil right.

10. We also disagree with the majority that in the present case the issue before the domestic courts concerned the regulation of a profession which could legitimately be regarded as particularly sensitive (paragraph 62 of the judgment) and for this reason fell within the exclusive discretion of the executive power. While indeed the decisions of the Minister to authorise persons qualified to act as liquidators of insolvent companies may be seen as requiring special knowledge and involving a certain sensitivity, the decision to withdraw the applicant’s name from this list was not based on any findings that she was no longer fit or appropriate to exercise this profession. Moreover, the national law subjected the applicant’s proper conduct as a liquidator to the parallel scrutiny of the insolvency courts (paragraph 27 of the judgment), which were equally competent to sanction or dismiss her in the event of failure to perform her functions, depending on the gravity of such failures. In these circumstances we fail to agree that in the present case the issue of the lawfulness of the Minister’s decision was not amenable to judicial review, or that “the scope of the control exercised by the courts over the exercise of such administrative discretion may vary according to the subject-matter of the decision under challenge” (paragraph 62 in fine of the judgment). As already indicated, in our understanding the subject matter of the court proceedings was the extent to which the decision in question could be seen as reasonably pursuing any lawful purpose. We fail to see how the executive body can be more competent than the courts established precisely for the purpose of examining this matter.

11. The legislation of the respondent State is certainly not without importance in this regard. However, once this legislation defines the applicant’s right as a civil one within the meaning of Article 6 of the Convention and provides for judicial review over acts of the executive which affect it, this legislation cannot in itself be seen as sufficient to limit the applicant’s right to a tribunal for the purposes of determination of the merits of the complaints in examining the dispute over that civil right. If the scope of essential jurisdiction can be whittled down by domestic legislation, or by the choice of the national courts to limit their own competence to a mere and pointless re-examination of the facts of a case, the guarantees provided by Article 6 become worthless.

In our view the merits of the applicant’s complaints lie at the heart of the role of the courts in examining and determining the extent to which an act of the executive was shown, or could be seen, to pursue the legitimate aims of the law in a manner which was reasonable and not capricious or irrational. While we agree that the applicant had formal access to two instances of court proceedings for the examination of questions of fact, we fail to see how this resulted in a determination of the dispute over the questions of lawfulness raised in the applicant’s appeals. In our understanding the clear failure of the domestic courts to determine these essential issues, despite their formal competence to do so, rendered the proceedings before the domestic courts meaningless and incompatible with the essential purposes of Article 6 of the Convention.