Last Updated on May 3, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 30211/09
Ganelin Kostov TASHEVSKI
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 11 December 2018 as a Committee composed of:
Síofra O’Leary, President,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 24 March 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ganelin Kostov Tashevski, is a Bulgarian national who was born in 1957 and lives in Debelets. He was represented before the Court by Ms V. Koeva, a lawyer practising in Veliko Tarnovo.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. In 2005 the applicant bought a plot of 53,187 square metres of forestry land near Veliko Tarnovo.
5. In May 2007 Veliko Tarnovo’s mayor, having consulted the regional ecological inspectorate, approved a zoning plan enabling the construction of a residential complex comprising a number of houses not taller than ten metres each on the plot. In December 2007 the National Forests Agency excluded the plot from the forestry territories with a view to the future construction on it.
6. At the applicant’s request, in March 2008 Veliko Tarnovo’s mayor amended the zoning plan by dividing the plot into thirty smaller ones. In April 2008 the local forest authority granted the applicant thirty-one permits for tree felling in the newly formed plots.
7. None of those decisions was challenged by way of judicial review or otherwise within the relevant time-limits, and they all became final.
8. In June 2008 the Veliko Tarnovo regional prosecutor’s office urged Veliko Tarnovo’s mayor to reopen the proceedings in which he had approved and amended the zoning plan, and the local forest authority to reopen the proceedings relating to the tree-felling permits, on grounds that the development envisaged by the applicant would affect two areas protected under Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”). The mayor and the local forest authority rejected the proposals.
9. The Veliko Tarnovo regional prosecutor’s office sought judicial review of those decisions, reiterating its arguments based on the Habitats Directive, and the Veliko Tarnovo Administrative Court opened three separate cases. The applicant took part in those proceedings as an interested third party. He was represented by counsel who charged him a total of BGN 1,800 Bulgarian levs (BGN) (920 euros (EUR)) in legal fees for the three sets of proceedings.
10. The Veliko Tarnovo Administrative Court dismissed the prosecutor’s office’s claims, but nevertheless did not award costs to the applicant.
11. The Veliko Tarnovo regional prosecutor’s office appealed against the dismissal of two of its claims. For his part, the applicant appealed against the refusals to award him costs in all three cases.
12. In three decisions handed down on 28 October 2008, 15 December 2008 and 6 January 2009 (опр. № 11305 от 28.10.2008 г. по адм. д. № 12879/2008 г., ВАС, II о.; опр. № 13920 от 15.12.2008 г. по адм. д. №12879/2008 г., ВАС, II о.; and опр. № 140 от 06.01.2009 г. по адм. д. № 14477/2008 г., ВАС, V о.) the Supreme Administrative Court dismissed the appeals of the prosecutor’s office relating to the merits of the cases and the applicant’s appeals against the refusals to award him costs. It held that the prosecutor’s office was not a regular party to the proceedings but played a special role in them as a guarantor of legality and the public interest, which meant that the general rule of Article 143 of the Code of Administrative Procedure that the unsuccessful party had to bear the successful party’s costs (see paragraph 14 below) did not apply. The rule which governed costs in such cases was that in Article 83 § 1 (3) of the Code of Civil Procedure, which by virtue of Article 144 of the Code of Administrative Procedure also applied in judicial review proceedings. According to that rule, the prosecutor’s office was exempt from costs (see paragraph 17 below).
B. Relevant domestic law and practice
1. Participation of public prosecutors in administrative and judicial review proceedings
13. By virtue of Article 16 § 1 of the Code of Administrative Procedure, public prosecutors ensure legality in administrative proceedings by: (a) seeking the annulment of unlawful administrative decisions, settlements, contracts or judicial decisions; (b) taking part in judicial proceedings in cases envisaged by the Code or other statutes; or (c) bringing proceedings under the Code or stepping into already pending proceedings when they consider that an important State or public interest so requires.
2. Costs in judicial review proceedings and in civil proceedings in which public prosecutors have taken part
14. Article 143 of the Code of Administrative Procedure lays down the general cost-shifting rule in judicial review proceedings: that costs follow the event. According to its first paragraph, if a court quashes an administrative decision or a public authority’s refusal to issue one, the costs of the litigation – court fees, the fees of one counsel, and other expenses – must be borne by that authority. If, on the other hand, the court dismisses the claim for judicial review or the party which has brought it withdraws it, that party must bear all costs incurred in relation to the proceedings, including those incurred by the other party for one counsel (paragraph 4). In that latter case, the party for which the administrative decision is favourable is also entitled to costs (paragraph 3).
15. In March 2009 the Chief Prosecutor asked the Supreme Administrative Court’s plenary session to give an interpretative decision on, among other issues, whether a prosecutor’s office had to bear the costs of the other parties when a public prosecutor’s claim for judicial review was dismissed. He noted that in two decisions given in March and May 2008 panels of the court had held that the prosecutor’s office should bear those costs, whereas in two decisions given later in 2008 (one of which was that of 15 December 2008 in the applicant’s case – see paragraph 12 above) other panels had held the opposite. He argued that the latter solution was the correct one, in view of the public prosecutors’ mission to uphold legality and the public interest.
16. In an interpretative decision of 16 July 2009 (тълк. реш.№ 4 от 16.07.2009 г. по тълк. д. №2/2009 г., ВАС, ОСК) the Supreme Administrative Court’s plenary session held that Article 143 of the Code had to be interpreted as meaning that if a public prosecutor’s legal challenge to an administrative decision is dismissed by the courts, the prosecutor’s office must bear the other parties’ costs. The court chiefly based that conclusion on the provision’s textual and contextual interpretation, but also said that it would be contrary to the constitutional principle of equality of arms for a public prosecutor taking part in judicial review proceedings to be subject to more favourable procedural rules, including with respect to costs.
17. By Article 144 of the Code of Administrative Procedure, all matters not specifically dealt with in the part of the Code governing judicial review are governed by the Code of Civil Procedure. By Article 83 § 1 (3) of that latter Code, public prosecutors are exempt from costs when bringing civil claims. In an interpretative decision of 16 November 2015 the plenary session of the Supreme Court of Cassation’s Civil Sections held, among other things, that this rule applied regardless of whether the prosecutor’s office was claimant or defendant (see тълк. реш. № 7 от16.11.2015 г. по тълк. д. №7/2014 г., ВКС, ОСГК). By Article 78 § 11 of the same Code, in proceedings to which a public prosecutor is party, the costs of the opposing side, if it wins, are borne by the State.
COMPLAINTS
18. The applicant complained under Article 6 § 1 of the Convention that the administrative courts had refused to order the Veliko Tarnovo regional prosecutor’s office to bear the costs that he had incurred in relation to the judicial review proceedings brought by that office.
19. He further alleged that the impossibility to recoup those costs had infringed his right to the peaceful enjoyment of his possessions, in breach of Article 1 of Protocol No. 1.
20. Lastly, he complained under Article 13 of the Convention that he had not had an effective remedy in that respect.
THE LAW
21. In respect of his complaint that he had been unable to obtain reimbursement of the legal fees that he had incurred in relation to the judicial review proceedings in which he had taken part, the applicant relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. In respect of his complaint that he had not had an effective remedy in that respect, he relied on Article 13 of the Convention.
22. The parties made submissions in relation to the applicability of Article 6 § 1 of the Convention; the question whether the applicant could claim to be a victim of a breach of that provision in spite of the favourable outcome of the judicial review proceedings; the question whether the impossibility to recoup his legal fees had upset the fairness of the proceedings and in particular the principle of equality of arms; the question whether this impossibility had been in breach also of Article 1 of Protocol No. 1; and the question whether the applicant had had an effective remedy in that respect.
23. The Court notes, however, that pursuant to Article 35 § 3 (b) of the Convention it shall declare inadmissible any individual application if it considers that the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.
24. By Article 20 § 2 of Protocol No. 14, that inadmissibility criterion applies to applications – such as the one at hand – not declared admissible before the Protocol’s entry into force on 1 June 2010 (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010; Borg and Vella v. Malta (dec.), no. 14501/12, § 38, 3 February 2015; and El Kaada v. Germany, no. 2130/10, § 38, 12 November 2015).
25. The assessment of the first requirement of Article 35 § 3 (b) is, in the nature of things, relative and depends on all the circumstances of the case. The factors to be considered are, in particular, the nature of the right at issue, the extent to which the alleged breach affected its exercise, and the effects of the alleged breach on the applicant’s situation (see, among other authorities, Gagliano Giorgi v. Italy, no. 23563/07, §§ 55-56, ECHR 2012 (extracts), and El Kaada, cited above, §§ 40-41).
26. In the instant case, the alleged breaches have their origin in a failure to give proper effect to the requirement of a fair trial laid down in Article 6 § 1 of the Convention. But the sole way in which the national authorities are alleged to have failed to give full effect to that right in the case at hand is that after the end of the proceedings they barred the applicant from recouping from the opposing party the sum that he had expended on legal fees. Nothing suggests that this somehow affected his ability to participate effectively in the proceedings themselves (see, mutatis mutandis, Liga Portuguesa de Futebol Professional v. Portugal (dec.), no. 49639/09, § 39, 3 April 2012, and contrast Joos v. Switzerland, no. 43245/07, § 20, 15 November 2012, and Schmidt v. Latvia, no. 22493/05, § 73, 27 April 2017). Indeed, he benefited from adequate legal representation throughout their course, and they ended in his favour. The impact of the courts’ refusal to order the prosecutor’s office to bear the applicant’s costs was thus purely financial (see, mutatis mutandis, Georgiev v. Bulgaria (dec.), no. 15644/06, § 40, 5 November 2013).
27. In the circumstances, there is no indication that the loss suffered by the applicant – BGN 1,800 (EUR 920) – had a substantial effect on his situation. Although at first sight this sum might look considerable, the impact of a pecuniary loss cannot be measured in the abstract. Its significance must always be gauged by reference to the applicant’s personal circumstances (see, among other authorities, Kiousi v. Greece (dec.), no. 52036/09, 20 September 2011; Burov v. Moldova (dec.), no. 38875/03, § 29, 14 June 2011; and Georgiev, cited above, § 39). Given that shortly before the proceedings at issue he had bought a sizeable tract of land and was in the process of developing it for commercial purposes (see paragraphs 4-6 above), it cannot be said that the inability to recoup a sum equivalent to EUR 920 amounted to a significant disadvantage for him (see, mutatis mutandis, Georgiev, cited above, § 39).
28. Respect for human rights does not require examination of the case, for two reasons. First, the Court has already had the opportunity to address the impossibility for a private party to recoup its costs in civil proceedings pitting it against a public prosecutor’s office (see Stankiewicz v. Poland, no. 46917/99, §§ 59-76, ECHR 2006-VI). Secondly, the domestic-law setup which gave rise to the applicant’s grievance is no longer in place. In a July 2009 interpretative decision the Bulgarian Supreme Administrative Court held that if a public prosecutor’s legal challenge to an administrative decision is dismissed by the courts, the prosecutor’s office must bear the costs of the other parties (see paragraph 16 above).Respect for human rights does not require the examination of an application if the relevant domestic law has changed and the case is of historical interest only (see Ionescu v. Romania (dec.), no. 36659/04, §§ 38-39, 1 June 2010; Uhl v. the Czech Republic (dec.), no. 1848/12, §§ 26-27, 25 September 2012; and Kiril Zlatkov Nikolov v. France, nos. 70474/11 and 68038/12, § 65, 10November 2016).
29. Lastly, in accordance with the requirements of Article 35 § 3 (b) of the Convention, the applicant’s case was duly considered by a domestic tribunal. The Supreme Administrative Court examined his appeals against the lower court’s refusals to award his costs and found against him, reasoning that the general rule on costs did not apply due to the role of the prosecutor’s office as guarantor of legality and the public interest (see paragraph 12 above).
30. Since all three requirements of the inadmissibility criterion under Article 35 § 3 (b) of the Convention have been satisfied, the application must be declared inadmissible as whole under Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 17 January 2019.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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