FOURTH SECTION

Application no. 6987/07 Lyubov Viktorovna GUSEVA against Bulgaria lodged on 18 January 2007

STATEMENT OF FACTS

The applicant, Ms Lyubov Viktorovna Gus eva , is a Bulgarian national, who was born in 1951 and lives in Vidin . She is represented before the Court by Mr N. Runevski , a lawyer practising in Sofia .

A. The circumstances of the case

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

The applicant is a member of the Board of Directors of the Animal Protection Society in Vidin . Apparently, on 16 September 2002, she was authorised to represent the organisation before any and all institutions in Bulgaria in relation to its activities.

1. First request for information

On 11 April 2002, the applicant asked the mayor of Vidin for access to information about an agreement, concluded between the municipality and the municipal company “Cleanliness” EOOD, for the collecting of stray animals on the territory of Vidin municipality.

The mayor sought the explicit consent to that effect of the head of “Cleanliness” EOOD, considering that that was a statutory condition under section 31 (2) of the Access to Public Information Act 2000.

In a letter of 28 May 2005, the head of “Cleanliness” EOOD refused to give consent.

In a decision of 4 June 2006, the mayor refused to provide the applicant with access to the information she sought. The mayor referred to section 37 (1) (2) of the Access to Public Information Act 2000, which at the time listed the absence of a third interested party ’ s explicit written consent for the provision of information among the grounds for refusal to grant access to information.

The applicant brought proceedings against the decision of the mayor refusing access to the information. In a decision of 27 June 2003, the Vidin Regional Court allowed the applicant ’ s claim. That court found that the information sought did not affect the rights of “Cleanliness” EOOD and therefore section 37 (1) (2) was not applicable.

Following a cassation appeal by the mayor, in a decision of 25 May 2004 the Supreme Administrative Court upheld the lower court ’ s decision. It held that the information was of high public interest, the rights of third parties were not concerned and that the mayor ’ s decision denying access to information to the applicant was not reasoned.

2 . Second request for information

On 20 January 2003, the applicant again asked the mayor of Vidin for information. This time, the information she sought concerned the annual statistics for 2001 and 2002 about animals held in an animal shelter called “Municipal Care”. In particular she asked how many animals were placed there, how many of them died or were put to death, and how much their care had cost the municipal budget.

The mayor sought the explicit consent to that effect of the head of the public utilities company concerned, “Titan Sever” OOD, considering once again that that was a statutory condition under section 31 (2) of the Access to Public Infor mation Act 2000.

In a letter of 10 February 2003, the head of “Titan Sever” OOD refused to give consent.

On 14 February 2003 the mayor refused to provide the applicant with access to the information, referring to section 37 (1) (2) of the Access to Public Information Act 2000.

The applicant brought proceedings against the decision of the mayor refusing access to the information. In a decision of 27 June 2003, the Vidin Regional Court allowed the applicant ’ s claim. It found that, if third parties objected to the provision of information concerning them, section 31 (4) of the Access to Public Information Act 2000 obliged the mayor to grant access to that information in a manner not disclosing the parts related to the third party. It then sent the case back to the municipality ordering it to provide the information to the applicant.

Following a cassation appeal by the mayor, in a decision of 25 May 2004 the Supreme Administrative Court upheld the lower court ’ s decision. It held that the information was of high public interest, the rights of third parties were not concerned and that, even if they were, the information could be provided without disclosing the parts concerning the third parties. Finally, that court found that the mayor ’ s decision denying access to information to the applicant was not reasoned.

3. Third request for information

On 17 June 2003, the applicant once again asked the mayor for information. The information concerned a public procurement procedure, organised by the mayor and aimed at reducing the number of stray dogs in Vidin . The applicant wanted to know the number of the organisations which had tendered for a contract with the municipality, which ones had passed the pre-selection stage, and - in respect of those who have - the following information: the type and number of qualified staff they employed; the infrastructure and facilities they had for humane catching and transportation of dogs; the proof they had presented for their capacity to deliver quality services; and, the price they asked for providing the services.

On 1 July 2003 the mayor refused to provide that information in a reasoned decision. The explanation given was that the information requested: concerned solely the participating candidates in that procurement procedure and their bids in accordance with the Public Procurement Act 2004; was of an economic nature; was related to the preparation of the mayor ’ s administrative actions in relation to the procurement procedure; and, had no significance of its own.

The applicant brought proceedings against the decision of the mayor refusing access to the information . In a decision of 10 December 2003 the Vidin Regional Court allowed the applicant ’ s claim and overturned the mayor ’ s refusal to provide the information sought. That court found that the information in question had not been classified, that the mayor ’ s decision was not issued within the statutory time-limit and that its content was not in conformity with the requirements of section 38 of the Access to Public Information Act 2000. The court sent the case back to the mayor specifically ordering him to provide information to the applicant about the organisation which had won the municipal contract at the end of the public procurement procedure, and the conditions of that contract.

Following a cassation appeal by the mayor, in a decision of 20 October 2004 the Supreme Administrative Court partly upheld the lower court ’ s decision. It quashed the decision ’ s part which ordered the mayor to provide the applicant with information about the organisation which had won the municipal contract and the conditions of that contract. It held that the mayor had to provide the rest of the requested information.

4. Attempts to secure compliance with the judicial decisions

On 10 June 2004, referring to the two decisions of the Supreme Administrative Court of 25 May 2004 which concluded the proceedings in her first two requests for information, the applicant asked the mayor of Vidin to provide her with the information requested.

On 10 December 2004, referring to the decision of the Supreme Administrative Court of 20 October 2004 which concluded the proceedings in her third request for information, the applicant asked the mayor to provide her with the information requested.

On 27 December 2004, the mayor refused in a written decision to provide the information sought by the applicant following the Supreme Administrative Court ’ s judgment of 20 October 2004. It would appear that the mayor did not react to the applicant ’ s request for information following the two Supreme Administrative Court ’ s judgments of 25 May 2004.

In a letter of 15 September 2010, the applicant informed the Court that there were no further developments and the information she sought had not been provided to her.

B. Rel eva nt domestic law and practice

1. Access to information

Access to public information was regulated at the time in the Access to Public Information Act 2000, which is currently still in force. That Act defines “public information” as any information related to public life in Bulgaria and allowing people to form a personal opinion about the acts of State or municipal bodies. Every Bulgarian citizen has the right of access to public information under the conditions and procedure of this Act, unless a legis specialis provides for a special procedure for the seeking, receiving and disseminating of such information.

2. Enforcement of final administrative court judgments

Enforcement of administrative court judgments was regulated at the time by the Administrative Procedure Act 1979, as in force until July 2006, and – as regards judgments of the Supreme Administrative Court – by the Supreme Administrative Court Act 1997, as in force until 1 March 2007. The latter ’ s section 30 provided that the decisions of that court had an obligatory force vis-à-vis the parties. Its section 32 provided that a decision of that court was subject to an immediate enforcement by the administrative body concerned. Its Chapter IV contained administrative-penal provisions which envisaged the imposition of a pecuniary sanction of between 100 Bulgarian l eva (BGN) and BGN 500 in cases in which administrative bodies did not enforce the court ’ s decisions.

The Supreme Administrative Court held in a decision of 2001 (see decision no. 2572 of 17 April 2001, case no. 4047/2000) that the applicable legislation at the time (Administrative Procedure Act 1979 and Supreme Administrative Court Act 1997) did not provide for time-limits within which the administrative body had to comply with judicial decisions. The decision as to when the judgment should be enforced was entirely in the hands of the administrative body concerned. The only procedure for the enforcement of administrative court decisions was an administrative pecuniary sanction (in accordance with section 53 and following of the Administrative Procedure Act 1979, and section 51 and following of the Supreme Administrative Court Act 1997). The party aiming at obtaining enforcement did not need to appeal against a tacit or explicit refusal to enforce a judgment, but instead had to bring a separate complaint before the courts asking for the imposition of a pecuniary sanction on the administrative body which had not complied with the court ’ s judgment.

The Code of Administrative Procedure, which is currently in force, was adopted in 2006 and, with effect as from 1 March 2007, it repealed the Supreme Administrative Court Act 1997. It also repealed the Administrative Procedure Act 1979. Article 290 of the Code of Administrative Procedure 2006 regulates the enforcement of administrative court judgments vis-à-vis an administrative body obliged in a court judgment to deliver a non ‑ substitutable action. If the responsible official fails to act, the bailiff imposes on them weekly pecuniary sanctions, in the amount of between BGN 50 and BGN 1200, for so long as the act remains uncompleted.

COMPLAINTS

The applicant complains under Article 10 of the Convention about a breach of her right to receive and impart information, or do so within a reasonable time.

The applicant complains under Article 6 § 1 of the Convention that the three judgments of the Supreme Administrative Court in her favour were not enforced and about the absence of a system in Bulgarian law for the enforcement of that court ’ s judgments.

The applicant also complains under Article 13 of the Convention, in conjunction with Article 6 § 1 of the Convention, about the absence of an effective remedy by which she could have had the judgments of the Supreme Administrative Court enforced.

Finally, the applicant complains under Article 13 of the Convention, in conjunction with Article 10 of the Convention, about the absence of an effective remedy for the breach of her right to receive and impart information.

QUESTIONS TO THE PARTIES

1. Was A rticle 6 § 1 of the Convention under its civil head applicable to the p roceedings in the present case?

2. Were the three judgments of the Supreme Administrative Court, respectively of 25 May 2004 and 20 October 2004, enforced in kind in accordance with Article 6 § 1 and, if yes, when and how?

3. If the above-mentioned three judgments were not enforced, did the failure of the authorities to implement those judgments constitute a breach, within the meaning of Article 6 of the Convention, of the applicant ’ s right to an effective protection of her civil rights stemming from the said court judgments ( Basarba OOD v. Bulgaria , no. 77660/01 , § 33, 7 January 2010 ; Hornsby v. Greece , 19 March 1997, § 45 , Reports of Judgments and Decisions 1997 ‑ II )?

4 . Was there an effective remedy, as required by Article 13 of the Convention, at the applicant ’ s disposal by which she could have had the judgments enforced by obtaining the information she sought?