PARTLY DISSENTING OPINION OF JUDGE MARUSTE

1. In this case the majority found a violation of Article 6 § 1 of the Convention and decided that it was not necessary to rule on the allegation of a violation of Article 13 thereof. It found that there had been a violation of Article 1 of Protocol No 1. I disagreed with the majority in respect of Article 13 because, to my mind, the main problem of the case was not the fairness of the trial, but the lack of effective remedies against the impugned Prosecutor ’ s Office ’ s decisions and the fact that there was no possibility of obtaining compensation for the damage caused by its actions.

2. The first thing which needs to be pointed out is the somewhat confused nature of the actions of the Prosecutor ’ s Office. Initially it relied on Article 185 § 1 of the Code of Criminal Procedure of 1974, which gives the impression that criminal proceedings were initiated. Later it became clear that a criminal investigation had indeed been opened; however, not against the applicant company, but against an official of the Sofia Municipality . Serious allegations of infringing important public interests and public order were also levelled against the Sofia Municipality . The first tangible procedural steps against the applicant company were taken on 6 October 1997 , when the police sealed off the hotel. At that stage the steps taken were investigative actions by the prosecution (principally against the municipality) of a type which prosecution authorities everywhere are generally entitled to take. It has to be noted clearly that at that point these amounted only to an investigation, not to a trial or a judicial final determination of someone ’ s civil rights. It was rather a criminal investigation which had direct implications for the applicant company ’ s property rights. Such steps could, in principle, be viewed as a legitimate control of the use of property. The direct determination of the applicant company ’ s civil rights started when the Prosecutor ’ s Office, exercising its legal powers, brought a civil action against the Sofia Municipality and the applicant company, seeking the annulment of the privatisation contract. Full ‑ scale judicial proceedings commenced, whose conformity with the requirements of Article 6 § 1 has never been challenged by the applicant company. The final decision in these proceedings was favourable to the company.

3. It transpires from the facts of the case that the applicant company never challenged the Prosecutor ’ s Office ’ s actions before the domestic courts. The facts as set out in the judgment do not indicate that they ever argued about access to a court either. The legality of the Prosecutor ’ s Office ’ s actions was challenged on 9 December 1997 by the Sofia Municipality , which argued that they did not have a sufficient legal basis and were ultra vires . The applicant company appealed several times, but only to the higher prosecutor ’ s offices, complaining, inter alia , of a breach of its rights under Article 1 of Protocol No. 1 on account of the prohibition on the use of its property (the hotel) for nearly two years, which infringed its right to peacefully enjoy its possessions.

4. In any event, several things seem to be clear: ( i ) As a direct consequence of the Prosecutor ’ s Office ’ s actions (it has not been established whether they were lawful or not, but it may be presumed that they were lawful) the applicant company suffered pecuniary damage; (ii) Under the existing legislation and legal practice at the material time, juristic persons were not considered as victims of criminal proceedings initiated against them and were not entitled to any compensation for the pecuniary damage caused by such proceedings; (iii) The domestic court (the Sofia City Court) ruled on 11 February 1998 that it had no jurisdiction to examine the lawfulness of the prosecutors ’ decisions and actions in civil proceedings. Consequently, the main problem for the applicant company was the lack of an effective remedy to protect their Convention rights. It follows that there has also been a violation of Article 13 of the Convention.