CASE OF PATRIKOVA v. BULGARIA
Violation of Art. 6;Violations of P1-1;Pecuniary damage and non-pecuniary damage - award
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
4. The applicant was born in 1967 and lives in Isperih. At the relevant time she was a sole trader, registered under the name ET GATZI-92 Galina Patrikova. Under Bulgarian law her business did not have a distinct legal personality. She traded in alcoholic beverages and tobacco, which are considered as excise duty products under Bulgarian tax law. 5. The applicant possessed a licence, issued in 1994, for wholesale trading in excise duty products. 6. On 6 June 2000 the Razgrad tax authority inspected one of the two storehouses where the applicant held her merchandise, seized all tobacco and alcoholic products found therein and by decision of 27 June 2000 fined the applicant. The decision was based on the tax authority's opinion that the relevant law required a separate license for storage of excise duty products whereas the applicant only had a trading license. 7. The authorities seized a significant quantity of tobacco products, 11,864 bottles of wine and 86,638 bottles of other alcoholic beverages with higher alcohol content (98,502 bottles in total). They were moved to a storage building used by the Razgrad tax authority. At the time of seizure, the total value of the merchandise was the equivalent of approximately 150,000 euros (EUR). The fine imposed on the applicant was in the amount of 221,139 Bulgarian levs (BGN), the equivalent of approximately EUR 115,000. 8. It appears that, during the seizure, part of the merchandise was damaged or destroyed due to improper handling. 9. The applicant lodged an appeal. On 20 July 2000 the Isperich District Court decided in her favour and quashed the Razgrad tax authority's decision. The court found that the relevant law did not require a storage license separate from the trading license. In the ensuing cassation proceedings, on 11 December 2000 the Razgrad Regional Court reversed the decision and upheld the seizure and fine. 10. In January 2001 the applicant filed a request for reopening on the basis of newly obtained information that storage licenses had never been issued in the practice of the relevant authorities. On 5 October 2001 the District Court agreed to reopen the proceedings and quashed the Razgrad tax authority's decision of 27 June 2000, stating, inter alia, that there was no support in the relevant law for the view that a separate storage license was required. On 18 January 2002 the Regional Court upheld the District Court's judgment. 11. On 7 June 2000 criminal proceedings were instituted against the applicant on suspicion of tax evasion, selling excise tax goods without the requisite tax labels and illicit trading in excise goods. 12. On 11 September 2000, the Isperih District Prosecutor's Office ordered the attachment as evidence of the merchandise that had already been seized by the Razgrad tax authority. 13. The applicant's ensuing appeals were dismissed on 16 October 2000 by the Razgrad Regional Prosecutor's Office and on 17 January 2001 by the Isperih District Court. 14. In January 2001 a prosecutor from the Razgrad Regional Prosecutor's Office, having inspected the file, noted that there was no evidence of a criminal offence, that the charges against the applicant were unclear and incoherent and that the investigation had not been conducted properly. Ensuing instructions were given to the Isperih District Prosecutor. 15. On 23 August 2001 the criminal proceedings were terminated by the Isperih District Prosecutor for lack of evidence. The decision stated that the attached merchandise remained at the disposal of the Razgrad tax authority. 16. On the same day, 23 August 2001, the same prosecutor in Isperih instituted a fresh inquiry on the suspicion that the applicant might have used counterfeit excise tax labels on the seized bottles of alcohol. 17. On 27 February 2002 a police investigating officer from Isperih visited the tax authority's storage building and inspected the alcoholic beverages seized from the applicant on 6 June 2000. He drew up minutes noting the presence of 52,118 bottles. The minutes further stated that, after the inspection, the bottles had been seized. The exact legal meaning of this statement is unclear, having regard to the fact that it did not concern attachment and that the bottles were not in fact seized but remained in the Razdrad Tax Authority's storage building. 18. On 22 April 2002, an expert appointed by the police filed her report stating that the labels found on a sample of more than 6,000 bottles (out of 52,118) had been forged. 19. On 13 March 2003 the Isperih District Prosecutor dropped the criminal charges against the applicant as there was no evidence that she had known that they were forged. 20. The prosecutor ordered that the proceedings should continue against an “unknown perpetrator” and that the seized bottles should be placed under the control of the local tax authority which was competent to decide on a possible confiscation of the bottles carrying counterfeit excise tax labels. 21. On 19 March 2003 the applicant appealed, arguing that there was no valid legal ground to withhold the bottles since the charges against her had been dropped. The appeal was not examined until December 2005. On 15 December 2005 the District Court quashed the prosecutor's order on grounds unrelated to the applicant's appeal. It noted that only a sample of the merchandise had been analysed for counterfeit labels and that, therefore, all bottles had to be attached in relation to the pending criminal proceedings for forgery by an unknown perpetrator. 22. The applicant has not been informed of any new developments since December 2005. 23. On 18 August 2000, shortly after the seizure, the applicant wrote to the Razgrad tax authority stating that the seized merchandise was perishable and should be sold to avoid loss of value. She requested permission to sell it and offered a bank guarantee for its value. The Razgrad tax authority did not grant the request. 24. On 7 August 2001 the Razgrad tax authority wrote to the District Prosecutor's Office in Isperich seeking their approval to sell the merchandise at an auction, having regard to the fact that it was perishable. The request was not followed up. 25. On 15 October 2001 the applicant wrote to the Razgrad tax authority insisting that the alcoholic beverages must be sold immediately since the validity of the excise tax labels on them expired on 31 October 2001 and also because new regulations on alcohol content would make it impossible to sell the bottles after 1 January 2002. The applicant did not receive a reply. 26. Between 2001 and 2005, the applicant also addressed to the Razgrad tax authority several unsuccessful requests for the appointment of experts to assess the damage caused during the seizure in June 2000 and any damage caused by inadequate storage conditions. 27. On 4 February 2002 the applicant wrote to the Razgrad tax authority seeking the restitution of the seized merchandise on the basis that the seizure of 6 June 2000 had been declared unlawful and the decision of 27 June 2000 had been repealed by final judgment of 18 January 2002. The tax authority agreed and on 2 March 2002 the applicant received back all tobacco products. She refused, however, to collect the bottles of wine and other alcoholic beverages as in her view a prior assessment of their condition was needed. 28. By letters of May, September and December 2002 the tax authority reiterated its invitation to the applicant to remove the remaining merchandise, indicating the dates on which this could be done, and warned her that the authority would not be responsible for any damage if she failed to collect the bottles. The applicant was also warned that in such case the bottles might be treated as abandoned and confiscated. The applicant replied, stating that the merchandise had lost its value and that experts should examine it to determine the damage it had sustained. She did not appear on the dates indicated by the tax authority. In her letter of 2 October 2002, addressed to the local tax authority, she explained that she had brought an action for damages against the authority and the relevant prosecutors and that there was “no reason [for her] to collect the merchandise which had become unfit for use”. In her letter of 14 December 2002 the applicant added that the tax authority should order an expert examination of the bottles. 29. The contacts on this issue continued. According to the applicant, in meetings with the tax authority's representatives she expressed willingness to hire an expert and organise the assessment of the merchandise. At a meeting held on 6 April 2004, the parties had allegedly been close to an agreement. 30. On 12 April 2004 the director of the Razgrad tax authority issued an order under section 106(5) of the Tax Proceedings Code, declaring the merchandise abandoned property acquired by the State. The text of the decision referred to all alcoholic beverages (98,502 bottles) as described in the seizure order of 6 June 2000 (see paragraphs 6 and 7 above) and mentioned that the merchandise was held in a storage house under the responsibility of the tax authority. The applicant appealed, stating that the goods had not been abandoned. 31. By judgment of 11 May 2006 the Varna Regional Court, noting that 52,118 bottles had been seized as evidence in criminal proceedings (see paragraph 17 above) and that the provisions on acquisition of abandoned property by the tax authorities were inapplicable in such situations, quashed the acquisition order in so far as it concerned those bottles. The Regional Court found that with regard to this part of the merchandise the question whether or not the applicant had undertaken the necessary steps to recover it from the tax authorities was irrelevant, since the tax authorities did not have the power to release goods seized as evidence in criminal proceedings. 32. As regards the remainder of the alcoholic beverages (46,384 bottles), the Regional Court upheld the order of 12 April 2004. It found, inter alia, that pursuant to an amendment to the Tax Procedure Code (see paragraph 58 below), the tax authorities automatically acquired as abandoned merchandise held by them in the event of its owner not having sought to recover it within nine months of 13 May 2003, the date of the amendment's entry into force. Noting that the applicant had not made requests to recover the bottles between 13 May 2003 and 13 February 2004 and considering that the events outside this nine-month period were irrelevant, the courts found that the tax authorities had lawfully acquired the merchandise. The court rejected the applicant's argument that all relevant events, before or after the statutory nine-month period, should be taken into consideration. 33. On 30 March 2007 the Supreme Administrative Court upheld the Regional Court's judgment. 34. On 17 May 2002 the applicant brought a claim for damages against the Razgrad tax authority, the police and the prosecuting authorities in respect of the unlawful seizure of her merchandise and the authorities' failure to allow the marketing of the alcoholic beverages before the expiry of their period of validity. She claimed the full value of the alcoholic beverages, stating that they had become improper for use, as well as compensation for loss of opportunity and moral damage. 35. Between June and November 2002, four adjournments were caused by failure to appear of one or more representatives of the defendant State organs. 36. At the hearing on 20 November 2002 the applicant requested the recusal of the presiding judge as he had participated in the administrative proceedings concerning the June 2000 seizure order against the applicant. The judge accepted the request and withdrew. 37. The next hearing was held on 4 December 2002. The applicant made requests for the collection of evidence. 38. A hearing was held on 12 March 2003. 39. The next hearing, listed for 14 May 2003, could not proceed as one of the defendant State organs had not been summoned. 40. On 11 June 2003 the court admitted documents in evidence, requested information about the pending criminal investigations and appointed an expert to report on the damage caused to the bottles still held by the tax authority and on the applicant's loss of profit resulting from the seizure of her merchandise. 41. In November 2003 the applicant submitted to the Varna Court of Appeal a complaint under Article 217a of the Code of Civil Procedure. In December 2003 the Varna Court of Appeal rejected the complaint. 42. Thereafter, the Regional Court held hearings on 24 September, 27 October and 26 November 2004 and on 25 March, 29 April, 20 May, 27 May, 30 September, 28 October and 25 November 2005. 43. It appears that most hearings were adjourned as the parties sought the production of additional documents and exchanged objections in respect of the admissibility of pieces of evidence. 44. At the hearing on 27 January 2006, the expert appointed to report on the damage to the merchandise and the applicant's loss of profit declared that she had become a member of the Bar and could no longer act as an expert. The court appointed three experts to present a report on the same subject. 45. At some of the hearings that followed, on 14 April, 31 May, 27 July, 10 November and 8 December 2006, the three newly appointed experts complained that the defendant State bodies had not given them access to the relevant documents. The court issued disclosure orders. 46. Hearings were held on 26 January, 9 March and 29 June 2007 and the examination of the case was again adjourned. The hearing held on 29 June 2007 was adjourned as one of the three experts had not been present. 47. On an unspecified date between June and September 2007 the experts appointed by the court submitted their report. The report only concerned analysis of financial documents concerning the activities of the applicant as a merchant and assessment of the loss of profit occasioned by the seizure of her merchandise. The experts did not provide information about missing and damaged bottles, stating that they would submit an additional report later. 48. On 26 October 2007 the court examined and refused the defendants' requests for the judge's recusal and for suspension of the proceedings. The court also dealt with the defendants' objections against the accuracy of the experts' report and adjourned the matter for further deliberation. 49. The hearings listed for 5 December 2007 and 20 February 2008 did not proceed as the experts had not submitted their additional report. 50. The hearing listed for 26 March 2008 was adjourned on unspecified grounds. 51. The next hearing was scheduled for 20 October 2008 but was adjourned as the applicant's lawyer had fallen ill. The court noted that two of the experts appointed to present a joint opinion refused to work together and invited the applicant to propose another expert. 52. In January 2009 the newly appointed experts presented a report, which was discussed at the hearing held on 25 February 2009. The experts gave contradictory answers to some of the parties' questions. Also, the defendants insisted on additional research by the experts. The court did not admit the report in evidence, instructed the experts to submit a new report clarifying their findings and adjourned the hearing until 15 April 2009. 53. On 15 April 2009 the hearing was adjourned as one of the experts had had an accident and was unable to attend. 54. On an unspecified date one of the experts was replaced. 55. On 18 June 2009 the experts submitted their report. 56. At the hearing held on 24 June 2009 the court noted that the report had been signed by one of the experts only and had not been submitted sufficiently in advance of the hearing. It adjourned the examination of the case and scheduled the next hearing for 16 September 2009. 57. As a result of the seizure of her merchandise the applicant became insolvent. She eventually discontinued her commercial activities. In 2006 her business was declared insolvent. 58. Pursuant to an amendment of 13 May 2003 to the Tax Procedure Code 1999, as in force at the relevant time, commodities that have not been collected by their owner for more than nine months following their seizure by the tax authorities should be deemed abandoned and become State property (Article 106(5) and additional provision 1(16), in force between 13 May 2003 and 31 December 2005). Pursuant to paragraph 50 of the final and transitory provisions to the May 2003 amendment, in cases of seizures predating the amendment, the nine-month period started to run from the date of the amendment's entry into force.