JOINT DISSENTING OPINION OF JUDGE S KALAYDJIEVA AND DE GAETANO

1. This case concerns the essential function of the courts in exercising judicial review over acts of the executive, a function which lies at the heart of the system of checks and balances between the separated powers of government which is inherent in a democratic society governed by the rule of law. In principle, judicial review is a procedure, usually within the administrative law set-up, for the purposes of the courts ’ supervision over the potentially arbitrary exercise of public power. A person who feels that the exercise of such power in a given case by a government authority such as a minister, a local council or a statutory tribunal is unlawful and negatively affects his or her rights, may apply to the administrative courts for the judicial review of such a decision in order to have it set aside (quashed) and, possibly, obtain damages or mandatory orders to compel the authority to do its duty or to stop it from acting illegally.

2. It appears that in reaching his decision to withdraw the applicant ’ s name from the list of persons competent to act as liquidators, the Minister of Justice neither found her no longer competent or fit to exercise such functions, nor did he seek to justify this decision by the necessity to protect any interests adversely affected by the applicant ’ s delay or to demonstrate that his decision pursued any of the purposes of the law. Instead, he relied on the advice that the applicant ’ s failure to submit the list of creditors to the insolvency court within the time-limits prescribed by the law sufficed in itself as a ground for her removal (paragraph 9 of the judgment).

3. Before the Court the applicant complained that, in violation of Article 6 of the Convention, the Supreme Administrative Court had “refused fully to review the decision of the Minister of Justice ... and had instead held that it was not competent to examine the proportionality of that decision” ( paragraph 45 of the judgment ).

4. We agree with the majority that this decision concerned a “civil” right within the meaning of Article 6 of the Convention and that in appealing to the Supreme Administrative Court, which was competent, the applicant sought the determination of a “ contestation ” (dispute) concerning this right. Indeed, “[t]he [respondent] Government submitted that [that court] ... enjoyed jurisdiction to examine all relevant questions of fact and law that the applicant had put before it, including whether she had indeed committed the breach imputed to her” (paragraph 47 of the judgment).

5. In our understanding the gist of this case is not whether the domestic courts were or were not competent to exercise full jurisdiction, but whether in actually exercising it, at two instances of proceedings, they functioned for the purposes of determining the merits of the applicant ’ s complaints as required by Article 6 of the Convention, or whether these proceedings amounted in reality to a situation of formal and meaningless access to a court, which did not result in any such determination.

6. The applicant appealed to the domestic courts, indicating that the Minister had failed to take into account that her delay in submitting the list of creditors within the non-decisive time-limits laid down in the law was not entirely imputable to her (paragraph 12 of the judgment). In this regard, having admitted and examined further evidence in two instances of proceedings, the courts agreed that this delay did not amount to forty days – as concluded by the Minister – but to four days (paragraph 20 of the judgment). However, it is not clear whether and how these new findings as to the facts had any effect on the determination of the dispute over the applicant ’ s civil right.

7. The remaining part of the applicant ’ s complaints before the national courts concerned the alleged absence of lawful purpose and necessity to impose the most severe sanction for an offence of an allegedly insignificant nature. In our understanding the essence of those complaints concerns the lawfulness of the impugned decision and not the proportionality of the imposed harsh sanction . Even if the courts were formally competent to quash the decision or to return it to the Minister for further clarification or appropriate amendment (paragraph 38 of the judgment), in examining her submissions that any delay (whether of four or of forty days) had no adverse effects on the interests of the parties involved in the insolvency proceedings and that for this reason the Minister ’ s decision could not be seen as consistent with any lawful purpose of protecting public or private interests and/or with the gravity of the applicant ’ s offence, the domestic courts declared themselves incompetent to review the decision of the Minister in so far as it “was not in breach of the substantive law” (paragraph 15 of the judgment) and that in their view “it [was] the Minister ’ s right to determine what measures, in so far as they remain[ed] within what [was] provided by law, he should take” (paragraph 21 of the judgment).

8. We fail to agree with the findings of the majority that “[f]or the Supreme Administrative Court, the Minister ’ s decision was in line with the object and purpose of the law” (paragraph 61 of the judgment). We cannot but note that in issuing his decision the Minister did not indicate any such purpose or object. In fact, he was reacting to a request of the management of the State-owned company T., whereas to our best knowledge the duty of a liquidator to present the list in question to the insolvency court pursues as a matter of principle the protection of the interests of the other parties to the insolvency proceedings – that is to say, the creditors of that company. In the present case it has not been submitted that the creditors complained of the applicant ’ s delay or that it resulted in any harm for the public or private interests or for the proper conduct of the insolvency proceedings. Quite to the contrary, the company management ’ s attempts before the insolvency courts to have the applicant removed were unsuccessful (paragraph 7 of the judgment). While it is true that the domestic courts indicated in abstracto that the legislature pursued legitimate aims in setting certain time-limits, neither the Minister nor the courts examined the extent to which the decision could be seen to pursue any such aims in casu .

9. We are furthermore far from convinced of the correctness of the majority ’ s argument that “at the relevant time Bulgarian law [did not] clearly spell... out a general principle that all administrative decisions have to be strictly proportionate to the aim sought to be attained by their issuing” (paragraph 61 of the judgment). No such objection was raised by the respondent Government and it appears from the domestic law and practice as well as from the binding decisions of the Supreme Court that in reviewing administrative decisions the courts were bound to verify whether they were lawful and consistent with the object and purpose of the law. Where that was not the case, or where the nature of the administrative decision made it impossible for the courts to decide the case on the merits, the courts had to quash the administrative decision and refer the case back to the administrative authority with instructions on the interpretation and application of the law (paragraphs 33 to 38 of the judgment). Even if the argument that no such general principle was explicitly spelled out in the national law were correct (and we believe that it is not), such an argument seems irrelevant for the purposes of examining the compliance of the domestic proceedings with the requirements of Article 6 regarding access to a court for the purpose of the determination of a dispute over the applicant ’ s civil right.

10. We also disagree with the majority that in the present case the issue before the domestic courts concerned the regulation of a profession which could legitimately be regarded as particularly sensitive (paragraph 62 of the judgment) and for this reason fell within the exclusive discretion of the executive power. While indeed the decisions of the Minister to authorise persons qualified to act as liquidators of insolvent companies may be seen as requiring special knowledge and involving a certain sensitivity, the decision to withdraw the applicant ’ s name from this list was not based on any findings that she was no longer fit or appropriate to exercise this profession. Moreover, the national law subjected the applicant ’ s proper conduct as a liquidator to the parallel scrutiny of the insolvency courts (paragraph 27 of the judgment), which were equally competent to sanction or dismiss her in the event of failure to perform her functions, depending on the gravity of such failures. In these circumstances we fail to agree that in the present case the issue of the lawfulness of the Minister ’ s decision was not amenable to judicial review, or that “the scope of the control exercised by the courts over the exercise of such administrative discretion may vary according to the subject-matter of the decision under challenge” (paragraph 62 in fine of the judgment). As already indicated, in our understanding the subject matter of the court proceedings was the extent to which the decision in question could be seen as reasonably pursuing any lawful purpose. We fail to see how the executive body can be more competent than the courts established precisely for the purpose of examining this matter.

11. The legislation of the respondent State is certainly not without importance in this regard. However, once this legislation defines the applicant ’ s right as a civil one within the meaning of Article 6 of the Convention and provides for judicial review over acts of the executive which affect it, this legislation cannot in itself be seen as sufficient to limit the applicant ’ s right to a tribunal for the purposes of determination of the merits of the complaints in examining the dispute over that civil right. If the scope of essential jurisdiction can be whittled down by domestic legislation, or by the choice of the national courts to limit their own competence to a mere and pointless re-examination of the facts of a case, the guarantees provided by Article 6 become worthless.

In our view the merits of the applicant ’ s complaints lie at the heart of the role of the courts in examining and determining the extent to which an act of the executive was shown, or could be seen, to pursue the legitimate aims of the law in a manner which was reasonable and not capricious or irrational. While we agree that the applicant had formal access to two instances of court proceedings for the examination of questions of fact, we fail to see how this resulted in a determination of the dispute over the questions of lawfulness raised in the applicant ’ s appeals. In our understanding the clear failure of the domestic courts to determine these essential issues, despite their formal competence to do so, rendered the proceedings before the domestic courts meaningless and incompatible with the essential purposes of Article 6 of the Convention.