Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28554/95

by K.G.

against Bulgaria

The European Commission of Human Rights (First Chamber) sitting

in private on 15 May 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 May 1995 by

K.G. against Bulgaria and registered on 18 September 1995 under file

No. 28554/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Bulgarian national born in 1953 and residing

in Zlatograd. He works as a legal adviser.

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

summarised as follows.

Under the Law on Tax Proceedings (Zakon za danachnoto

proizvodstvo) ("the Tax Law") the applicant was under the obligation

to register with the local fiscal authority (danachna sluzhba).

Initially the time-limit for such registration was 16 September 1993.

It was afterwards extended to 15 October 1993.

On 7 October 1993 the applicant fell ill and was admitted in

hospital, where he stayed until 23 October 1993.

The applicant registered with the local fiscal authority in

Zlatograd on 10 March 1994.

On 11 April 1994 the Zlatograd fiscal authority opened

proceedings against the applicant for his failure to register within

the time-limit. The applicant submitted written objections and proof

of his stay in hospital. On 9 May 1994 the Regional fiscal authority

in Smolian (Teritorialno danachno upravlenie) imposed on the applicant

a fine of 4,000 leva for having committed an administrative offence.

The applicant appealed against this decision to the Zlatograd

District Court (Raionen sad). He submitted inter alia that he could

not be held responsible for missing the time-limit as he was in

hospital during its last days. He also stated that registration forms

had not been available at the office of the fiscal authority.

On 22 July 1994, after a hearing during which witnesses testified

about the availability of registration forms, the Court delivered its

judgment. The Court noted that under Section 5 para. 2 of the Tax Law

the applicant had been obliged to register within a certain time-limit

but had failed to do so; that it was established that no special

registration forms had been necessary; that the initial time-limit,

16 September 1993, had been extended for another month by an order

dated 17 September 1993; and that the applicant had registered on

10 March 1994. The Court concluded that the applicant had neglected

his obligation to register and, accordingly, dismissed the appeal.

Nevertheless, the Court reduced the fine to 600 leva as its initial

amount had been excessive.

Upon the applicant's petition, on 7 October 1994 the Smolian

Regional Prosecutor (Okrazhen prokuror) exercised his discretionary

power to submit to the Smolian Regional Court (Okrazhen sad) a request

for review (predlozhenie za pregled po reda na nadzora) of the District

Court's judgment. In the review proceedings the Regional Court was

competent to quash the impugned judgment and to decide the matter on

the merits.

On 23 November 1994, after a hearing, the Regional Court

dismissed the request. The Court found that the applicant could have

registered before 7 October 1993, the date of his admission in

hospital. As he failed to do so, the applicant had not fulfilled his

obligation to register and had committed an administrative offence.

Following this decision the applicant paid the 600 leva fine.

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 to the

Convention that he was deprived of 600 leva unlawfully. Thus, the

courts held that he should have registered before 7 October 1993. As

he did not do so, the courts found that he had missed the time-limit.

However, the time-limit was 15 October 1993. It is absurd to accept

that a time-limit can be missed before it has actually expired. In the

applicant's view the decisions of the courts were clearly contrary to

the law.

Moreover, the applicant was convicted of an administrative

offence despite the fact that it had been impossible for him to

register on time. As a result he was convicted without having been

guilty. This was contrary to Bulgarian law, under which there is no

administrative offence without guilt, and also to "international law".

THE LAW

The applicant complains under Article 1 of Protocol No. 1 (P1-1)

to the Convention that he had to pay a fine which was imposed by the

fiscal authorities and confirmed by the courts allegedly on the basis

of a wrong interpretation of the law, arbitrarily and therefore

unlawfully.

Article 1 of Protocol No. 1 (P1-1) to the Convention 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."

The Commission recalls that the second paragraph of Article 1 of

Protocol No. 1 (P1-1) to the Convention justifies an interference with

property rights "to secure the payment of taxes or ... penalties" (cf.

Appl. No. 6753/74, Dec. 19.12.74, D.R. 2, p. 118).

In accordance with the Convention organs' case-law, such

interference has to be lawful. The notion of lawfulness, as contained

in other provisions of the Convention, requires that the impugned

measure should have a basis in domestic law and that this basis should

have sufficient precision, thus allowing to foresee, to a reasonable

degree, the consequences of a given action. It is primarily for the

national courts to interpret and apply domestic law. Problems as

regards the lawfulness of a particular interference with property

rights may arise, inter alia, when it is exercised in a discretionary

manner and in the same time the procedure is not fair (Eur. Court H.R.,

Chorherr judgment of 25 August 1993, Series A, No. 266-B, pp. 35 - 36,

para. 25; Hentrich judgment of 22 September 1994, Series A, No. 296-A,

p. 19, paras. 40 - 42; Air Canada judgment of 5 May 1995, Series A.,

No. 316, para. 36; mutatis mutandis Tolstoy Miloslavsky judgment of

13 July 1995, Series A, No. 316-B, para. 37).

The Commission notes that in the present case the fiscal

authorities and the courts applied the relevant provisions of Bulgarian

law, examined all objections of the applicant and delivered reasoned

decisions in which they concluded that the applicant had neglected his

obligation to register. It does not appear that the interpretation and

the application of the relevant legal provisions by the Bulgarian

courts was unreasonable or arbitrary. Moreover, no complaints have

been raised by the applicant as regards the fairness of the proceedings

at issue.

It is true that the impugned judicial decisions, in their

reasoning part, observed that the applicant could have performed his

obligation to register before the expiry of the relevant time-limit.

However, it is implicit in the decisions that the applicant was

punished mainly because he had not complied with his obligation until

considerable time after his impediments to do so had ceased to exist.

It does not appear, therefore, that the fine imposed on the applicant

was arbitrary and that the interference with his rights under Article

1 of Protocol No. 1 (P1-1) to the Convention was unlawful.

It follows that the application is manifestly ill-founded and

has to be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

K.G. v. BULGARIA

K.G. v. BULGARIA

LEXI