CASE OF MICROINTELECT OOD v. BULGARIA
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed
George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
6. On 31 July 2000 the applicant company entered into a contract with a sole trader, Ms T.Z., to jointly operate a billiards club. The contract stipulated, in particular, that the sole trader would operate the club against an undertaking on the part of the applicant company to supply the club with alcohol. The contract also made provision for the manner in which profits would be shared between the parties, and set out penalties in case of breach. 7. On 7 August 2000 the applicant company obtained a licence to sell alcoholic beverages in the billiards club. 8. On 18 January 2001 the applicant company entered into a similar contract with another sole trader, Ms V.G., for the joint operation of an electronic games club. At that time the applicant company had already obtained a licence to sell alcoholic beverages in that club. 9. Both the billiards club and the electronic games club were operated in premises leased by the applicant company. 10. On 3 July 2002 the tax authorities carried out an inspection at the billiards club. They found that the sole trader, Ms T.Z., was selling alcohol without the requisite licence. The next day, 4 July 2002, the authorities drew up a report accusing her of trading in excise goods without the requisite licence, contrary to section 17a(2) of the Excise Act 1994 (see paragraph 23 below), and impounded the alcohol (eighteen bottles) that they had found in the club. The applicant company was not notified of those events. 11. On 8 July 2002 Ms T.Z. objected to the report, saying she had been selling the alcohol on behalf of the applicant company, which had a licence to do so. She further claimed that the impounding had been unlawful. 12. On 16 July 2002 the regional tax director dismissed the objection, observing that the impounding could not be challenged separately as it had been ancillary to the opening of administrative-penal proceedings and had amounted to a measure intended to prevent tampering with evidence. On an appeal by Ms T.Z., on 25 October 2002 the Dobrich District Court upheld that decision, finding that the impounding could not be challenged in separate judicial review proceedings; only the penal order which would conclude the administrativepenal proceedings was capable of being challenged by way of judicial review. 13. In the meantime, on 17 July 2002 the regional tax director issued a penal order against Ms T.Z. The penalties imposed thereby were a fine and forfeiture of the impounded alcohol. The applicant company was not served with a copy of the order. 14. Ms T.Z. sought judicial review of the order. On 29 January 2003 the applicant company applied to intervene in the proceedings as a third party, arguing that it was the owner of the forfeited alcohol. The next day, 30 January 2003, the Dobrich District Court discontinued the judicial review proceedings, finding that Ms T.Z.’s application was out of time. 15. A subsequent appeal by the applicant company against the discontinuance was rejected by the Dobrich District Court on 17 February 2003 on the grounds that, not being a party to the proceedings, the company did not have standing to appeal against their discontinuance. On an appeal by the applicant company, in a final decision of 22 April 2003 the Dobrich Regional Court upheld that decision, holding that the company did not have standing to intervene in the proceedings. The court found it irrelevant to now discuss whether or not the company could have claimed to be a victim of the administrative offence. Ensuing attempts by the company to obtain reopening of the proceedings were unsuccessful. 16. On 3 July 2002 the tax authorities carried out an inspection at the electronic games club jointly operated by the applicant company and Ms V.G. They found that Ms V.G. was selling alcohol without the requisite licence. The next day, 4 July 2002, they drew up a report accusing her of trading in excise goods without the requisite licence, contrary to section 17a(2) of the Excise Act 1994 (see paragraph 23 below). They impounded the alcohol (fortysix bottles) that they had found in the club. The applicant company was not notified of those events. 17. Ms V.G. sought judicial review of the impounding, arguing that she had been selling the alcohol on behalf of the applicant company, which had a licence to do so. On 23 October 2002 the Dobrich District Court rejected her application as inadmissible, holding that the impounding could not be challenged in separate judicial review proceedings; only the penal order which would conclude the administrativepenal proceedings was capable of being challenged by way of judicial review. 18. In the meantime, on 19 August 2002 the regional tax director issued a penal order against Ms V.G. The penalties imposed thereby were a fine and forfeiture of the impounded alcohol. The applicant company was not served with a copy of the order. 19. The sole trader sought judicial review of the order. 20. At a hearing held on 4 November 2003 the applicant company applied to intervene in the proceedings as a third party, arguing that it was the owner of the forfeited alcohol. However, the Dobrich District Court turned its application down, finding that it had not been party to the administrative-penal proceedings. It held that the business relations between the applicant company and Ms V.G. were irrelevant for the proceedings. It also instructed the applicant company to bring separate proceedings in the civil courts. 21. On 10 February 2004 the Dobrich District Court upheld the penal order. It found that the alcohol had been properly forfeited. It reiterated that considerations concerning the business relations between Ms V.G. and the applicant company were irrelevant for the administrativepenal proceedings. The Dobrich Regional Court upheld that judgment in a final judgment of 7 June 2004.