FOURTH SECTION

DECISION

Application no. 66319/11 EM INZHENERING EOOD against Bulgaria

The European Court of Human Rights (F ourth Section), sitting on 15 September 2020 as a Committee composed of:

Branko Lubarda, President, Carlo Ranzoni, Péter Paczolay, judges, and Ilse Freiwirth , Deputy Section Registrar ,

Having regard to the above application lodged on 15 September 2011,

Having regard to the observations submitted by the Bulgarian Government and the observations in reply submitted by the applicant company,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant company, Em Inzhenering EOOD, is a Bulgarian single-member limited liability company operating in the construction sector whose registered office is in Varna. It was represented before the Court by Mr G.D. Gaydarov, a lawyer practising in Sofia.

2 . The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.

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

4 . On 6 December 2010, as an entity tasked with supervising building projects ( лице, упражняващо строителен надзор ) , the applicant company was fined 5,000 Bulgarian levs (BGN) (2,556 euros (EUR)) by the deputy head of the National Building Control Directorate for having failed to comply with construction safety rules. The decision stated that it was not amenable to judicial review.

5 . Nevertheless, the applicant company sought a judicial review of the pecuniary sanction. On 13 January 2011 the Varna District Court, noting that section 239(4) of the Territorial Organisation Act 2001 (“the 2001 Act”) excluded any judicial review of decisions imposing financial penalties of up to BGN 5,000 on legal entities (see paragraph 21 below), discontinued the proceedings.

6 . The applicant company lodged an appeal before the higher court. Relying on Article 6 § 1 of the Convention, the Court ’ s case-law and Article 120 of the Bulgarian Constitution (see paragraph 14 below), it argued that the bar on judicial review of pecuniary sanctions breached its right of access to a court. It submitted that the lower court ’ s refusal to examine its complaint on the merits prevented it from challenging an administrative decision which amounted to a criminal charge within the meaning of the Convention. It further maintained that the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) had priority over any conflicting provisions of domestic law and that the national court therefore had to examine its appeal by directly applying Article 6 of the Convention.

7 . On 15 March 2011 the Varna Administrative Court upheld the ruling of the district court. Referring to the “ Engel criteria” (see Engel and Others v. the Netherlands , 8 June 1976, § 82, Series A no. 22), the court noted that, under domestic law, infringements of the 2001 Act fell within the domain of administrative law and were not crimes under criminal law. In relation to the second and third Engel criteria, the court stated that the sanction of BGN 5,000 was provided for less serious violations. It further observed that the amount of the fine imposed on the applicant company could not be regarded as particularly severe in comparison with the amount of other sanctions laid down in the 2001 Act, which varied between BGN 30,000 (EUR 15,339) and BGN 150,000 (EUR 76,694). In the court ’ s view, even assuming that Article 6 was applicable, the Convention allowed States to limit the possibility of judicial review of certain administrative decisions by way of legislation when that was necessary to achieve a relevant legal aim.

8 . On 20 January 2011, as an entity tasked with supervising building projects, the applicant company was fined BGN 3,000 (EUR 1,534) by the deputy head of the National Building Control Directorate for having allowed construction work to be carried out which deviated substantially from the construction plan as originally approved. The decision stated that it was not amenable to judicial review.

9 . The applicant company challenged the pecuniary sanction before the courts, arguing that under Article 6 of the Convention the sanction had to be subject to judicial review.

10 . On 28 March 2011 the Varna District Court noted that section 59(3) of the Administrative Offences and Penalties Act 1969 (“the 1969 Act”) (see paragraphs 23 - 24 below) provided that the minimum level under which pecuniary sanctions could not be challenged before the courts was set at BGN 10, save where a statute provided otherwise. The 2001 Act under which the applicant company had been sanctioned amounted to such legislation which, in its section 239(4), expressly excluded judicial review of pecuniary sanctions of up to BGN 5,000 imposed on legal entities (see paragraph 21 below). The applicant company ’ s legal challenge was therefore inadmissible.

11 . Relying once again on Article 6 of the Convention and the Court ’ s case-law, the applicant company appealed before the Varna Administrative Court. It submitted that the impugned pecuniary sanction was a criminal charge within the meaning of the Convention and that given the quantum of the fine, the lack of judicial review amounted to an unjustified limitation of the applicant company ’ s right of access to a court.

12 . On 19 May 2011 the Varna Administrative Court upheld the lower court ’ s decision. The court held that the ban on judicial review of administrative penalties was governed by the 2001 Act and that only the Constitutional Court had jurisdiction to assess whether the legislature ’ s discretion had been exercised within the limits laid down in the Constitution. That was in line with the case-law of the Court in Strasbourg, which accepted that the right of access to a court was not absolute and could be subject to limitations, provided that this was necessary for the achievement of the aim provided in the legislation. Administrative penalties were imposed to prevent offences, to encourage offenders to comply with the law and to deter society at large . In the court ’ s opinion, the absence of judicial review thus ensured that the sanction took immediate effect and that the sums imposed as penalties could be collected promptly by the tax authorities.

13 . Article 56 of the Constitution enshrines the right to a remedy:

“Every citizen shall have the right to a remedy if his or her rights or legitimate interests have been infringed or threatened. ...”

14 . Article 120 of the 1991 Constitution provides:

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

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

15 . In an interpretative judgment of 26 October 1995 ( реш. № 21 от 26 октомври 1995 по конст. дело № 18/1995, обн. ДВ, бр. № 99/1995) , the Constitutional Court held that the wording in Article 120 § 2 of the Constitution covered all administrative decisions regardless of their nature or formal classification. Exempting an administrative decision from judicial review was possible only through legislation.

16 . In a judgment of 14 November 1997 (реш. № 18 от 14 ноември 1997 г. по конст . дело № 12 от 1997 г., обн., ДВ , бр . № 110 / 1997 г.), the Constitutional Court held, inter alia :

“In view of the wording of Article 120 § 2 in fine of the Constitution, the [Constitutional Court] may not come up with an interpretation providing for exceptions to the exception. Only the legislature has the power, by statute, to exclude certain administrative decisions from judicial review. [Article 120 § 2] does not lay down any criteria limiting the legislature ’ s powers in this respect. This is a question falling within the legislature ’ s competence ...

... [T]he legislature ’ s right to exclude certain categories of administrative decisions from judicial review is not absolute. In exercising that right the National Assembly must have regard to the main constitutional principles relating to the rule of law and the protection of fundamental human rights. The power granted to the National Assembly by Article 120 § 2 in fine is an exception and has to be construed and applied restrictively. The character of this exception requires the National Assembly to use its powers in this respect only when it has good and compelling reasons to do so. To hold otherwise would render the principle of judicial review meaningless. For this reason [the Constitutional Court] has jurisdiction to assess in each specific case whether the legislature ’ s discretion has been exercised within the limits laid down in the Constitution.”

17 . On 1 March 2012, in proceedings examining the conformity of section 189(13) of the Road Traffic Act 1999, which provided that decisions imposing a fine of less than 50 BGN (approximately 25 EUR) could not be subject to judicial review, the Constitutional Court held that the imposition of fines in relation to administrative offences amounted to a criminal charge within the meaning of Article 6 § 1 of the Convention . It further stated that the right to a remedy provided for in Article 56 of the Constitution, interpreted in the light of Article 6 of the Convention, included mandatory access to a court in all cases where administrative fines had been imposed on citizens. In the Constitutional Court ’ s view, the quantum of the fine had no bearing on access to judicial review ( реш. № 1 от 1 март 2012 по конст. дело №10/2011, обн. ДВ, бр. № 20/2012; see also Varadinov v . Bulgaria , no . 15347/08 , § 18, 5 October 2017).

18 . At the material time, the 2001 Act provided that an individual or an entity in charge of supervising a building project had the status of consultant on the project. The consultant had to be a registered trader ( търговец ) under the Commerce Act 1991. Its operations were subject to a licence (sections 166 and 167 of the 2001 Act), which was issued by the Minister of Regional Development and Public Works for a term of five years and entered in a public register. In 2012 the licence system was replaced with certificates granted by the National Building Control Directorate. The certificate-holder ’ s name was likewise entered in a public register managed by the Directorate (section 166(2) of the 2001 Act).

19 . Under section 168 of the 2001 Act, which was in force between September 2005 and November 2012, an individual or an entity supervising a building project was responsible for a number of tasks, namely: commencing the construction work; drafting documents and records at different stages of the construction; executing the construction work in compliance with the approved construction plan; observing and complying with safety regulations; preventing any damage to third parties and properties arising from the construction work; carrying out assessments to check the building was fit for purpose and accessible to persons with disabilities; and assessing the building ’ s energy efficiency.

20 . In the event of a violation of the provisions of the 2001 Act, the head of the National Building Control Directorate, or another authorised official, had to impose a pecuniary sanction ranging from BGN 1,000 (approximately EUR 500) to BGN 10,000 (approximately EUR 5,000) (section 237(1), subparagraph 2 of the 2001 Act as applicable at the material time).

21 . Section 239(4) of the 2001 Act provided that pecuniary sanctions of up to and including BGN 5,000 (approximately EUR 2,500) imposed on legal entities and sole traders were not subject to judicial review.

22 . Following the Constitutional Court ’ s judgment of 1 March 2012 (see paragraph 17 above), Parliament repealed the provisions in various statutes which excluded the judicial review of administrative decisions imposing pecuniary sanctions below a certain financial threshold. Section 239(4) of the 2001 Act was likewise repealed. These amendments came into effect on 9 October 2012.

23 . The 1969 Act governs administrative offences and penalties and lays down the procedure for punishing such offences. Section 6 of the 1969 Act defines administrative offences as acts or omissions which run counter to the established order, have been committed wilfully and are punishable by administrative penalties. Section 11 provides that in the absence of express provisions in the 1969 Act, the 1968 Criminal Code will regulate all questions concerning mens rea , capacity, exculpatory circumstances, complicity, preparation of such offences and attempts to commit them. Section 12 of the 1969 Act provides that administrative penalties are imposed with the aim of preventing offences, encouraging offenders to comply with the law and deterring society at large.

24 . Administrative decisions imposing administrative penalties are subject to judicial review by the relevant district court (section 59(1) of the 1969 Act), whose decision may in turn be appealed against on points of law before the relevant administrative court (section 63). Until October 2012 section 59(3) provided for an exception in respect of decisions imposing fines of up to BGN 10 (approximately EUR 5), which were not amenable to judicial scrutiny save where a statute provided otherwise. Following the Constitutional Court ’ s judgment of 1 March 2012 (see paragraph 17 above), the latter provision was repealed in October 2012.

25 . In the absence of express provisions in the 1969 Act, the Code of Criminal Procedure 2005 applies in proceedings concerning administrative offences (section 84 of the 1969 Act).

COMPLAINTS

26 . The applicant company complained under Articles 6 and 13 of the Convention that the domestic courts had refused to examine its legal challenge against the two penalties imposed on it owing to the statutory bar on judicial review of pecuniary sanctions of up to BGN 5,000 imposed on legal entities.

THE LAW

27 . The Government raised several objections with respect to the admissibility of the application. Firstly, in their view, the application had been lodged outside the six-month time-limit. They pointed out that, as evident from the date-stamps affixed by the Court ’ s Registry, the application had been received at the Court on 20 September 2011, whereas the final decision in the applicant ’ s case had been given on 15 March 2011 – more than six months previously. Secondly, they submitted that the applicant company had not suffered a significant disadvantage and had failed to show that it had actually paid the imposed pecuniary sanctions. This, in the Government ’ s opinion, amounted to an abuse of the right of individual application.

28 . The applicant company contested the above arguments. It submitted that its application had been lodged within six months of the final judgment in the proceedings. It further pointed out that whether it had actually paid the pecuniary sanctions or not had no bearing on the violation of the right of access to a court. In its opinion the damage had occurred when the fines had been imposed. It lastly stated that it had nevertheless paid the fines in full, including interest, for which it had also submitted relevant documentation.

29 . With regard to the Government ’ s first objection, the Court notes that under Rule 47 § 5 of the Rules of Court, as worded at the material time and until 31 December 2013, the date of introduction of the application for the purposes of Article 35 § 1 of the Convention was, as a rule, the date of the first communication from the applicant setting out, even summarily, the subject matter of the application – provided that a duly completed application form had then been submitted within the time-limit laid down by the Court – but the Court could for good cause decide that a different date was to be considered to be the date of introduction.

30 . According to the Court ’ s well-established case-law under that provision in relation to first communications dispatched by post, as a rule the date of introduction was the date on which the first communication from the applicant had been posted, not the date on which it had been received at the Court. Only special circumstances – such as the impossibility of establishing when the communication had been posted – could justify a different approach (see Valchev and Others v. Bulgaria (dec.), nos. 47450/11, 26659/12 and 53966/12, § 55, 21 January 2014 and the cases cited therein).

31 . In the instant case, the Court notes that the first communications from the applicant company consisted of two duly completed and signed application forms. As evidenced by the postmarks affixed on the envelopes containing them, the applicant company ’ s first letter, concerning the first set of proceedings (see paragraphs 4 - 7 above), was posted on 15 September 2011. The final judgment in those proceedings was given on 15 March 2011 (see paragraph 7 above). The second letter, in relation to the second set of proceedings (see paragraphs 8 - 12 above), was posted on 7 November 2011. The final judgment in those proceedings was delivered on 19 May 2011 (see paragraph 12 above).

32 . In view of the above, the Court finds that the applicant company ’ s complaints have been lodged within the six-month time-limit laid down in Article 35 § 1 of the Convention, and that the Government ’ s objection must therefore be dismissed.

33 . In relation to the Government ’ s other objections – namely that the applicant company had not suffered a significant disadvantage and had abused the right of individual application – the Court considers that it is not necessary to examine these matters, because the application is in any event inadmissible for the following reasons.

34 . The applicant company complained under Article 6 § 1 and Article 13 of the Convention that as a result of the statutory financial threshold, the domestic courts had refused to carry out a judicial review of the penalties imposed on it.

35 . The Court is of the view that the complaints fall to be examined under Article 6 § 1 of the Convention alone, the relevant parts of which read:

“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 ...”

36 . The Government submitted that Article 6 was not applicable. They argued that the present case did not concern a “criminal charge” within the meaning of that provision of the Convention. They maintained that in line with the Engel criteria (citing Engel and Others v. the Netherlands , 8 June 1976, § 82, Series A no. 22), the offences for which the applicant company had been punished were not criminal, nor could they fall within the “decriminalisation” process of certain offences, as had been the case in Öztürk v. Germany (21 February 1984, § 51, Series A no. 73). They further pointed out that violations relating to a failure to comply with safety requirements at construction sites were addressed specifically to individuals or entities supervising building projects and did not have general application. In their view, the sanctions imposed on the applicant company were not significant and could not be substituted by deprivation of liberty. In addition, the Government submitted that Article 6 was not applicable under its civil head either. They argued that owing to the statutory bar at the material time, the applicant company had had no right to judicial review of the imposed sanction provided for in domestic law. Moreover, the mere fact that a dispute was pecuniary in nature was not in itself sufficient to attract the applicability of Article 6 under its civil head.

37 . The applicant company disputed the Government ’ s submissions. In its opinion, Article 6 was applicable to the present case since the administrative proceedings in which the company had been fined bore similarities with criminal proceedings and the applicant company had been deprived of its right of access to a court. Given the average income in Bulgaria, it further disagreed with the Government ’ s position that the amount of the sanctions was insignificant.

38 . The Court refers to its established case-law to the effect that in ascertaining whether there was a “criminal charge”, regard must be had to three criteria commonly known as the “ Engel criteria” – the legal classification of the offence under national law, the very nature of the offence, and the nature and degree of severity of the penalty that the person concerned risks incurring (see Engel and Others , cited above, § 82; Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006 ‑ XIV; and Kurdov and Ivanov v. Bulgaria , no. 16137/04, § 37, 31 May 2011).

39 . Turning to the facts of the present case, the Court notes that the applicant company was fined for breaching the provisions of the 2001 Act concerning the rules on construction safety and those relating to the performance of construction work deviating substantially from the originally approved construction plan. Under national law, these matters belonged to the area of administrative law covering administrative offences. They did not fall within the domain of criminal law, even if the provisions of the Criminal Code and the Code of Criminal Procedure applied in proceedings concerning administrative offences in the absence of express provisions of administrative law (see paragraphs 23 - 25 above). However, the fact that the provisions of criminal law applied on a subsidiary basis alone is not decisive (see also Inoc ê ncio v. Portugal (dec.), no. 43862/98, ECHR 2001 ‑ I, and Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 124, 6 November 2018).

40 . As to the nature of the offence committed by the applicant company, the Court observes that section 237(1) of the 2001 Act applied to individuals or entities supervising building projects (see paragraph 20 above; see also Karov v. Bulgaria (dec.), no. 56777/11 , § 22, 13 February 2018, and contrast Varadinov v. Bulgaria , no. 15347/08 , § 39, 5 October 2017). It further notes that the offences imputed to the applicant company concerned the rules specifically governing the duties of persons supervising building projects (see paragraphs 4 , 8 and 19 above) and did not have general application (see Galina Kostova v. Bulgaria , no. 36181/05, § 52, 12 November 2013 and the cases cited therein) . Furthermore, the rules enabling the building control authorities to punish breaches of those rules were designed to ensure compliance with the applicable building regulations and construction safety rules by this specific category of professionals – namely consultants supervising building projects. From this point of view, the sanction imposed by the building control authorities on the applicant company for offences amounted more to the exercise of disciplinary powers in relation to professional misconduct than to the imposition of a punishment for the commission of a criminal offence (see Karov , cited above, § 22).

41 . With regard to the third criterion – the degree of severity of the penalty that the person concerned risks incurring – the Court notes that the maximum fine that the applicant company risked incurring amounted to BGN 10,000 (approximately EUR 5,000 – see paragraph 20 above). The actual sanctions imposed on the applicant company were BGN 3,000 (approximately EUR 1,500) and BGN 5,000 (approximately EUR 2,500) respectively . While the purpose of the fines was punitive and deterrent in nature (see paragraph 23 above), the Court notes that their amounts, both potential and actual, could not be considered excessive for a commercial company (see S.C. IMH Suceava S.R.L. v. Romania , no. 24935/04, § 51, 29 October 2013, where the applicant company was fined EUR 798, the maximum penalty for the respective offence; and S.C. Chaw Chaw Impex S.R.L. v. Romania (dec.), no. 47163/09, § § 16 and 29, 13 September 2016, where the maximum penalty that the applicant company risked incurring was approximately EUR 1,600 – although the sanction actually imposed was closer to EUR 800).

42 . In this connection the Court considers that the present case should be distinguished from cases in which far higher fines were imposed on companies, and were found by the Court to amount to a “criminal penalty” (see and compare Özmurat Ä°nÅŸaat Elektrik Nakliyat Temizlik San. ve Tic. Ltd. Åžti. v. Turkey , no. 48657/06, § § 7 and 25, 28 November 2017, where the fine actually imposed on the applicant company amounted to EUR 82,000; Valico S.r.l. v. Italy (dec.), no. 70074/01, ECHR 2006 ‑ III, where the fine actually imposed was approximately EUR 1,385,260; and Grande Stevens and Others v. Italy , nos. 18640/10 and 4 others , § § 25, 30 and 97 ‑ 98, 4 March 2014, in which the applicant companies risked incurring fines of up to EUR 5,000,000 but where the penalties actually imposed varied between EUR 600,000 and EUR 1,000,000).

43 . Finally, the fines imposed on the applicant company could not in any circumstances be substituted by a custodial sentence in the event of non ‑ payment. Therefore, in the Court ’ s view, the severity of the penalty in the present case does not in itself bring the offences for which the applicant company was punished into the criminal sphere (see Brown v. the United Kingdom (dec.), no. 38644/97, 24 November 1998, and Müller-Hartburg v. Austria , no. 47195/06, §§ 47, 19 February 2013).

44 . In conclusion, taking all the above aspects into consideration, the Court considers that the proceedings in which the applicant company received pecuniary sanctions did not concern the determination of a criminal charge within the meaning of Article 6 § 1 of the Convention. Accordingly, that Article is not applicable under its criminal head.

45 . The Court furthermore finds that Article 6 was not applicable under its civil head either. In this regard, it has accepted that disciplinary proceedings in which the right to continue to practise a profession is at stake (see, for example, König v. Germany , 28 June 1978, §§ 87-95, Series A no. 27), or proceedings concerning the withdrawal of a company ’ s licence to carry on a commercial activity (see Tre Traktörer AB v. Sweden , 7 July 1989, § 43, Series A no. 159), may give rise to a dispute over “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention. However, in the instant case, the applicant company ’ s right to carry on its activity was never at stake. Moreover, the mere fact that the imposed sanctions had pecuniary repercussions is not in itself sufficient to attract the applicability of Article 6 § 1 under its civil head (see Ferrazzini v. Italy [GC], no. 44759/98, § 25, ECHR 2001 ‑ VII, and the case-law cited therein). What is more, the applicant company was fined for breach of the construction safety rules and the applicable building regulations which related to the regulatory powers of the State and thus could be regarded as pertaining to the sphere of public law (see, mutatis mutandis , Porter v. the United Kingdom (dec.), no. 15814/02, 8 April 2003). Accordingly, the imposed fines did not concern the applicant company ’ s “civil rights and obligations”.

46 . In view of the above considerations, the Court concludes that the present application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention, and must therefore be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 October 2020 .

Ilse Freiwirth Branko Lubarda Deputy Registrar President