FOURTH SECTION

DECISION

Application no. 24697/14 G I SERVICE OOD against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 25 January 2022 as a Committee composed of:

Armen Harutyunyan, President, Jolien Schukking, Ana Maria Guerra Martins, judges, and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 24697/14) against Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 21 March 2014 by a Bulgarian limited liability company, G I Service OOD, registered in 2006 and having its seat in Gotse Delchev (“the applicant”) who was represented by Mr H.K. Mitrovski, lawyer practising in Sofia;

the decision to give notice of the complaint concerning insufficient reasoning of the courts’ judgments to the Bulgarian Government (“the Government”), represented by their Agent, Mr V. Obretenov of the Ministry of Justice, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns a complaint under Article 6 § 1 of the Convention about the failure of the domestic courts, deciding on a challenge to an administrative punishment imposed on the applicant, to respond to an important argument.

2 . The applicant was fined 1,534 euros (EUR) in all, in two penal orders issued by the regional labour inspectorate against it. Each order, having established that a different individual was found working for the applicant on a given day without an employment contract, indicated that an offence under Article 63 § 2 of the Labour Code had been committed. That provision required employers to have handed to their employees before the latter started working the following documents: a copy of the written employment contract, signed by both parties, and a copy of the related notification, which the employer had sent to the territorial division of the National Revenue Agency, certified by that agency.

3 . The applicant brought judicial review proceedings in respect of the penal orders. It argued in particular that the offence for which it had been fined corresponded to a situation different from the one established by the authorities. Specifically, given that no employment contracts had been concluded at all, the offence should have been qualified as such under Article 62 § 1 of the Labour Code, which required that employment contracts be concluded in writing. In the absence of a written contract altogether, it had been impossible for the applicant to hand it to the individuals found to have been working for it; the same applied to the certified notification required under the law.

4 . In two separate sets of proceedings, the Gotse Delchev District Court, acting at first instance, and the Blagoevgrad Administrative Court, acting as appeal and last instance, rejected the applicant’s challenge.

5. The applicant complained about the failure of the domestic courts, deciding on its challenge to the two penal orders, to respond to its argument that the authorities had fined it for a different administrative offence to the one they had established. The company relied on Article 6 § 1 of the Convention.

THE COURT’S ASSESSMENT

6. The complaint is about the failure of the domestic courts to respond to an important argument of the applicant.

7. The general principles concerning the obligation for domestic courts to give reasons for their decisions have been summarised in Moreira Ferreira v. Portugal [GC], no. 19867/12, § 84, 11 July 2017).

8. The Government’s objection that the applicant had failed to exhaust domestic remedies cannot be accepted. The Court has repeatedly held that a request for the reopening of a case cannot usually be regarded as an effective remedy within the meaning of Article 35 § 1 of the Convention (see, among other authorities, Josseline Riedl-Riedenstein and Others v. Germany ((dec.), no. 48662/99, 22 January 2002), Vainio v. Finland ((dec.), no. 62123/09, 3 May 2011) and Šorgić v. Serbia (no. 34973/06, § 54, 3 November 2011). Crucially, the quashing of the final judgment in the present case cannot be said to have been the only means by which the respondent State could have put matters right through its own legal system (contrast with Dinchev v. Bulgaria (dec.), no. 17220/09, § 28, 21 November 2017), given that the applicant was able to raise its argument before both judicial instances in the regular judicial proceedings. Moreover, at the time of the facts, only the prosecutor was entitled to request reopening under the Administrative Offences and Punishments Act 1969 (“the 1969 Act”) applicable in this case.

9 . The applicant argued before both the Gotse Delchev District Court and the Blagoevrgad Administrative Court, in the two sets of proceedings (see paragraph 4 above), that the penal orders against the company had to be quashed as unlawful. In particular, the administrative body had wrongly applied the law by fining the applicant for an offence different from the one which itself had established. The applicant’s submissions were made in writing before both levels of jurisdiction in both sets of proceedings; they were also formulated in a clear and precise manner. In its appeal to the Blagoevgrad Administrative Court in one of the two sets of proceedings the applicant referred to relevant domestic case-law in which penal orders issued in respect of the same offence had been quashed by other courts as unlawful. The courts had found in those other cases that the absence of a written contract had made it impossible for the employer to hand it over to the employee, as required under Article 63 § 2 of the Labour Code; instead, the offence committed had been under Article 62 § 1 of the Labour Code for failure to conclude a written contract. Consequently, as the employer had been fined for an offence different from the one established by the administrative authorities, the penal orders had been quashed.

10 . The Court is not called to pronounce itself on the merits of the argument made by the applicant before the domestic courts. It finds however that the objection it raised (see paragraphs 3 and 9 above) was at least arguable, given that in its case no written contracts had been concluded at all (see paragraph 2 above and paragraph 12 below) and also in view of the examples of domestic case-law submitted by the applicant in support of its point (see paragraph 9 above). Furthermore, the argument in question was relevant, given that the courts could have quashed the penal orders as unlawful, as other courts had done in comparable cases when they had found a discrepancy between the legal qualification given to an offence and the established facts. The applicant’s argument therefore could have had an impact on the lawfulness of the penal orders. Consequently, the courts were under an obligation to give a specific and express reply to the argument at issue (see, mutatis mutandis , Hiro Balani v. Spain , 9 December 1994, § 28, Series A no. 303 ‑ B, and Nikolay Genov v. Bulgaria , no. 7202/09, § 31, 13 July 2017).

11. On the basis of all the material in the file the Court finds that the Gotse Delchev District Court dealt with the applicant’s argument sufficiently clearly. In both of its related judgments of 13 June 2013 it analysed whether the individuals found by the labour inspectorate at the applicant’s premises had been actually working there. Having established that that had been the case, that contracts should have been concluded in writing and that such contracts had not been handed to the individuals contrary to the relevant requirements under the law, it found that the offence under Article 63 § 2 of the Labour Code had been committed (see paragraph 2 above). The court specifically held that the penal orders had been issued in compliance with the procedural requirements and in correct application of the substantive law. In that way, while the court did not elaborate on why it considered that the different legal qualification, as advanced by the applicant, was inapplicable in the circumstances, by providing a developed and coherent reasoning on why the qualification adopted by the administrative body had been correct, it dealt with the core of the applicant’s argument. It cannot be said that the court forgot to reflect on and deal with the applicant’s submission (contrast with Hiro Balani , cited above, § 28).

12 . As to the related judgments by the Blagoevgrad Administrative Court, deciding as last instance, the notion of a fair trial required it to address the essential issues submitted to its jurisdiction and not merely to have endorsed the findings of the lower court (see Talmane v. Latvia , no. 47938/07, § 31, 13 October 2016; see also, more generally, Uche v. Switzerland , no. 12211/09, § 38, 17 April 2018). The Blagoevgrad Administrative Court, in its two final judgments of 25 September 2013 and 25 October 2013 respectively, confirmed the lower court’s rulings. In doing so it held that the conclusions reached by the first-instance court corresponded entirely to the established factual circumstances. Those conclusions had been based on and confirmed by the evidence collected. The lower court correctly had applied the law, including as regards the legal qualification given to the facts. Since the individuals in question had been found working without written contracts having been handed to them, that had fulfilled the requirements of the legal provision under which the offence had been qualified.

13. On the basis of the above, the Court finds that in both of its judgments the Blagoevgrad Administrative Court stated explicitly that the legal qualification given to the facts had been correct. While it did so in a somewhat summary manner, its reasoning was sufficiently clear. It cannot be concluded therefore that it had not engaged with the applicant’s argument that the facts as established by the labour inspectorate corresponded to a different offence. By concluding that the legal qualification corresponded to the established facts, the court dealt with the applicant’s argument and dismissed it. In sum, it cannot be said that the last-instance court did not address the essential issues submitted before it.

14. In view of the above, the Court finds that the application must be declared manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 24 February 2022.

Ilse Freiwirth Armen Harutyunyan Deputy Registrar President