CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 12 novembre 2013

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text-indent:-17pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s31E56244 { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .s487141BA { width:30.36pt; display:inline-block } .s3B74DF8C { width:124.26pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .s5A070004 { width:213.96pt; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic }       FOURTH SECTION             CASE OF GALINA KOSTOVA v. BULGARIA   (Application no. 36181/05)                 JUDGMENT       STRASBOURG   12 November 2013     FINAL   24/03/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Galina Kostova v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ineta Ziemele, President ,   David Thór Björgvinsson,   Päivi Hirvelä,   George Nicolaou,   Zdravka Kalaydjieva,   Vincent A. De Gaetano,   Krzysztof Wojtyczek, judges , and Françoise Elens-Passos, Section Registrar , Having deliberated in private on 15 October 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 36181/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Galina Georgieva Kostova (“the applicant”), on 27 September 2005. 2.     The applicant was represented by Mr E. Markov, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice. 3.     The applicant complained, in particular, of the refusal of the Supreme Administrative Court to examine whether it had been proportionate for the Minister of Justice to strike her off the list of persons qualified to act as liquidators of insolvent companies. 4.     On 12 October 2009 the Government were given notice of the application. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1970 and lives in Sofia. She practices as a lawyer and is a member of the Sofia Bar Association. 6 .     By a decision of the Minister of Justice of 29 December 2001, the applicant was included on the list of persons qualified to act as liquidators of insolvent companies (see paragraphs 24-27 below). 7.     On 23 December 2003 the Sliven Regional Court decided to appoint the applicant liquidator of the State-owned company T., in respect of which that court had decided to open winding-up proceedings. The company’s management disapproved of the applicant’s performance and several times tried unsuccessfully to have her replaced by the insolvency court. 8 .     On 31 March 2004 the company’s management complained to the Minister of Justice about the applicant’s performance as liquidator. Accordingly, in a letter dated 8 April 2004 the Deputy Minister of Justice informed the applicant that proceedings under section 655(3) of the Commerce Act 1991 (see paragraph 25 below) had been opened against her in connection with the complaints, and invited her to make written representations. The applicant made such representations on 11 May 2004, enclosing a number of documents. However, in the meantime, on 15 and 30   April and 5 and 11 May 2004 further complaints were made about the applicant’s performance and on 22 May 2004 the Deputy Minister invited her to make additional representations. The applicant did so on 16 June 2004. On 2 July 2004 the Deputy Minister again invited the applicant to make further representations in relation to an allegation that she had failed to draw up lists of the claims of the company’s creditors within the statutory time-limit. On 12 July 2004 the applicant made such representations. She submitted that she had not breached her duties because, even though she had failed to observe the time-limit, this had not been through her fault but due to the case file that contained the relevant documents having been sent to another town at the relevant time. 9 .     On 28 July 2004 an inspector at the Ministry of Justice, having reviewed the materials, concluded that the applicant had failed in her duty as liquidator to ascertain the company’s creditors within the statutory time ‑ limit, and proposed to the Minister to strike the applicant off the list of persons qualified to act as liquidators of insolvent companies. She pointed out that the Supreme Administrative Court had already found that such a breach of a liquidator’s duties could in itself amount to grounds for removal from the list under section 655(3) of the 1991 Act (see paragraph 31 in fine below). 10.     On 2 August 2004 the Minister of Justice decided, by reference to section 655(3) of the 1991 Act, to strike the applicant off the list of persons qualified to act as liquidators of insolvent companies. In the reasons for his decision he pointed out that the applicant had failed to submit the above ‑ mentioned lists of claims against company T. within the statutory time-limit. The time-limit had expired on 8 May 2004, whereas the applicant had presented the lists at issue to the insolvency court on 18 June 2004. 11 .     The decision was published in the State Gazette on 20 August 2004. 12 .     The applicant sought judicial review of the decision. She reiterated her arguments that she had been prevented from submitting the documents in due time, and alleged that the Minister had failed to respect the rules of procedure and take into account her objections and explanations. 13 .     The applicant in addition argued that the sanction imposed on her – removal from the list of persons qualified to act as liquidators of insolvent companies – did not correspond to the seriousness of the breach imputed to her. She pointed out that any delay on her part had not had adverse effects on the rights of company T. or its creditors. She submitted that the sanction envisaged by section 655(3) of the 1991 Act was very harsh and was reserved for situations of serious or numerous breaches on the part of a liquidator, which was clearly not her case. 14 .     A three-member panel of the Supreme Administrative Court heard the case on 7 October 2004. It admitted a number of documents presented by the applicant. 15 .     In a judgment of 18 October 2004 (реш. № 8374 от 18 октомври 2004 г. по адм. д. № 6849/2004 г., ВАС, ІV о.) the three-member panel dismissed the applicant’s legal challenge. It examined in considerable detail the applicant’s actions in relation to the preparation of the lists of claims against company T., and concluded that she had indeed, through her fault, failed to complete that task within the statutory time-limit. On that basis, the court concluded that the Minister’s decision was not in breach of the substantive law. 16 .     The court dismissed the applicant’s argument that the sanction was disproportionate in the following terms: “By failing to meet the time-limit for drawing up and submitting the lists and the reports to the insolvency court, the applicant has committed the breaches alleged by the Minister of Justice in relation to her activity as a liquidator. The conditions laid down in section 655(3) of the [1991 Act] have been met and the administrative authority has lawfully exercised its power to strike the applicant off the list of persons qualified to act as liquidators. The decision to impose the heaviest sanction was within its competence and a matter of expediency, and the court is not competent to examine whether the severity of the sanction corresponds to the seriousness of the breaches committed. It should however be noted that the arguments in the application that the delay did not extinguish any creditors’ rights and that the breach was not therefore serious are unfounded. First, the statutory provision does not lay down a requirement that the breach should be ‘serious’. Secondly, the presentation of claims and their assessment first by the liquidator and then by the insolvency court is a key stage in insolvency proceedings and the starting point of all other stages in such proceedings.   ... That is why the legislature has provided for strict time-limits.” 17 .     The court went on to dismiss the applicant’s allegation that the Minister of Justice had failed to deal with her objections and comply with the applicable rules of procedure. 18 .     The applicant appealed on points of law. She challenged the finding of the three-member panel that she had, through her fault, failed to meet the time-limit. She also argued that the three-member panel had erred in holding that the court was not competent to review the proportionality of the sanction imposed on her. When reviewing administrative decisions the courts were bound to quash them if they found that they were inconsistent with the object and purpose of the law, which was exactly her case: the Minister’s decision was inconsistent with the purpose of section 655(3) of the 1991 Act, which was to protect the public interest by disqualifying liquidators who, through a failure to abide by their duties, had imperilled or directly harmed the interests of the participants in insolvency proceedings. The 1991 Act made provision for lighter sanctions in its section 663 (see paragraph   27 below). The sanction envisaged in section 655(3) was the harshest among those capable of being imposed on a liquidator, because its effect was to deprive the person concerned of the capacity to serve as a liquidator of any company, which was clearly disproportionate to the seriousness of the breach imputed to the applicant. It was impermissible to resort to the most severe measure in relation to a mere failure to comply with a non-decisive time-limit that had not harmed anyone’s rights. 19 .     A five-member panel of the Supreme Administrative Court heard the appeal on 28 January 2005. It admitted a document presented by the applicant. 20 .     In a final judgment of 28 March 2005 (реш. № 2866 от 28 март 2005 г. по адм. д. № 10328/2004 г., ВАС, петчл. с-в), the five-member panel upheld the three-member panel’s judgment. It acknowledged that the applicant had been prevented from submitting the lists of claims of company T.’s creditors by the date indicated by the Minister of Justice, 8   May 2004, but considered that she could have done so by 14 June 2004. Thus, in submitting the list on 18 June 2004, she had still failed to comply with the statutory time-limit. 21 .     The five-member panel went on to hold, in relation to the applicant’s argument concerning the proportionality of the sanction: “It is the [Minister’s] right to determine what measures, in so far as they remain within what is provided for by law, he should take where the liquidator has breached his obligations. The allegations that the decision under challenge was inconsistent with the object and purpose of the law because section 655(3) of the [1991 Act] has a heavy punitive character, and that the lower court failed to take into account whether the decision was consistent with the object and purpose of the law, are therefore ill ‑ founded. The three-member panel gave detailed reasons on that point that this court shares and that it is unnecessary to repeat. It is well-established case-law that the question whether the severity of the sanction corresponds to the seriousness of the breach is not reviewable, not only in proceedings for judicial review of administrative action, but also in disciplinary proceedings under the Labour Code.” 22.     Lastly, the five-member panel found that the Minister of Justice had not breached the rules of procedure. In particular, he had apprised the applicant of the proceedings and had given her an opportunity to make representations. II.     RELEVANT DOMESTIC LAW A.     Relevant constitutional provisions 23 .     Article 120 of the Constitution of 1991 provides: “1.     The courts shall review the lawfulness of the decisions and actions of the administrative authorities. 2.     Natural and legal persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.” B.     Liquidators of insolvent companies 24 .     The status of liquidators of insolvent companies is governed by sections 655-65 of the Commerce Act 1991. Liquidators have to meet a number of requirements. In particular, they must: have a degree in law or economics and at least three years of relevant professional experience; have successfully sat an examination and as a result been included on the list of persons qualified to act as liquidators kept by the Minister of Justice; have never been relieved of their duties by the insolvency court in a particular case for failing to carry out their duties or imperilling the interests of the creditors or the insolvent debtor (section 655(2)(6)-(8)). At the relevant time and until May 2006 there existed the additional requirement that the persons concerned had never before been struck off the list kept by the Minister, save at their own request (section 655(2)(9), as worded until May 2006). 25 .     Section 655(3) provides as follows: “The Minister of Justice strikes persons in respect of whom it has been established that they commit breaches in connection with their activity as liquidators, regardless of whether that fact has been established by the insolvency court, off the list [of persons qualified to act as liquidators of insolvent companies]. Those changes [to the list] are published in the State Gazette.” 26 .     Under section 656(1), in each case the liquidator is appointed by the insolvency court, following a resolution to that effect by the general meeting of the insolvent company’s creditors, provided that the person selected meets the statutory requirements and has agreed in writing to take up the position. The court cannot inquire whether the person selected is the most suitable, and only verifies whether he or she meets the legal requirements (see опр. № 499 от 10 октомври 2000 г. по ч. гр. д. № 478/2001 г., ВКС, V г. о.). The liquidator’s remuneration is fixed by the general meeting of creditors. If the creditors fail to agree on the person to be appointed liquidator or on his or her remuneration, those decisions are taken by the insolvency court (section 661). 27 .     Liquidators represent the insolvent company, manage its daily affairs, accept payments on its behalf, identify its creditors and assets, and dispose of those assets (section 658(1)). They must report regularly to the general meeting of the insolvent company’s creditors and the insolvency court (section 659(2)), and carry out their duties with due care (section   660(1)). Liquidators are liable in damages for any loss that they cause through their fault to the insolvent company or its creditors (section   663(3)), and must take up professional liability insurance (section   663a). If a liquidator fails to carry out his duties, or if his or her actions threaten the interests of the insolvent company or its creditors, the insolvency court may release him or her from that position (section 657(2)). In other cases, where the liquidator fails properly to carry out his or her duties, the insolvency court may fine him or her (section 663(1)). 28.     On 27 June 2005 the Ministers of Justice, Economy and Finance issued joint regulations setting out, inter alia , the manner of obtaining registration on the list of persons qualified to act as liquidators of insolvent companies and the manner in which the Minister of Justice was to exercise his or her powers in relation to persons featuring on that list ( Наредба № 3 от 27 юни 2005 г. за реда за подбор, квалификация и контрол върху синдиците ). Regulation 23(1) provides that the Minister checks the actions of a liquidator in relation to an insolvent company at the request of an interested party or of his or her own motion. A copy of the request, with enclosures, must be sent to the liquidator, who can file a reply and put forward evidence (regulation 23(2)). Regulation 23(3) reproduces the text of section 655(3) of the 1991 Act (see paragraph 25 above). Regulation 23(4) expressly says that the Minister’s decision to strike a person off the list is subject to review by the Supreme Administrative Court. When it becomes final, the Minister’s decision is to be published in the State Gazette (regulation 23(5)). C.     Legal challenges to decisions under section 655(3) of the 1991 Act 29 .     The Supreme Administrative Court has dealt with a number of legal challenges to decisions by the Minister of Justice under section 655(3) of the 1991 Act (see paragraph 25 above) to strike persons off the list of persons qualified to act as liquidators. 30 .     It has insisted that before issuing such decisions the Minister has to comply with the requirements of the general rules of administrative procedure to give notice to the person concerned and allow him or her to make representations, and to elucidate the circumstances of the case and give reasons describing with specificity the breach triggering the exercise of his or her power under section 655(3) (see реш. № 3471 от 31 май 2000 г. по адм. д. № 5518/1999 г., ВАС, ІІІ о., as well as реш. № 3926 от 19   юни   2000 г. по адм. д. № 6743/1999 г., ВАС, ІІІ о., upheld by реш.   №   2710 от 23 април 2001 г. по адм. д. № 5902/2000 г., петчл. с-в). 31 .     The Supreme Administrative Court has also verified – sometimes examining the evidence in considerable detail – whether the acts or omissions imputed to the person concerned had in fact taken place and could indeed be characterised as a breach of duty (ibid., as well as реш.   №   6446 от 7 юли 2005 г. по адм. д. № 10621/2004 г., ВАС, V о.; реш. № 11590 от 22 ноември 2006 г. по адм. д. № 200/2006 г., ВАС, V   о., upheld by реш. № 8226 от 11 септември 2007 г. по адм.   д.   №   1172/ 2007   г., ВАС, петчл. с-в; реш. № 1374 от 11 декември 2006 г. по адм.   д.   № 9082/2006 г., ВАС, V о., upheld by реш. № 3354 от 3 април 2006 г. по адм. д. № 759/2007 г., ВАС, петчл. с-в; and реш. № 438 от 15   януари 2007 г. по адм. д. № 9083/ 2006 г., ВАС, V о., upheld by реш. № 6040 от 13 юни 2007 г. по адм. д. № 3211/2007 г., ВАС, петчл. с-в). In one case the court found that even a single failure on the part of a liquidator to comply with a time-limit relating to the lists of claims against an insolvent company could amount to a breach justifying removal from the list of persons qualified to act as liquidators, because under section 660(1) of the 1991 Act (see paragraph 27 above) liquidators were bound to carry out their duties with due care (see реш. № 3285 от 4 април 2003 г. по адм.   д. № 9426/2002 г., ВАС, V о., upheld by реш. № 6758 от 14 юли 2004 г. по адм. д. № 7490/2003 г., ВАС, петчл. с-в). 32 .     In one case the Supreme Administrative Court found that the exercise of the Minister’s powers under section 655(3) was not discretionary in the sense that the Minister’s decision to strike a person off the list of qualified to act as liquidators could not be taken in the absence of a triggering breach on the part of that person (see № 3471 от 31 май 2000 г. по адм. д. № 5518/1999 г., ВАС, ІІІ о.). However, in another case the court held that the Minister had a “right” to exercise its powers under section   655(3) (see реш. № 6446 от 7 юли 2005 г. по адм. д. № 10621/ 2004 г., ВАС, V о.). In another case the court specifically said that the decision whether or not to resort to that measure was within the Minister’s discretion, which could not be reviewed by the courts, and that such a decision could not be regarded as being inconsistent with the object and purpose of the law because the law sought to ensure that the professional conduct of liquidators in insolvency proceedings, which were complex and affected considerable pecuniary interests, would be effectively controlled (see реш. № 3285 от 4 април 2003 г. по адм. д. № 9426/2002 г., ВАС, V   о., upheld by реш. № 6758 от 14 юли 2004 г. по адм. д. № 7490/ 2003   г., ВАС, петчл. с-в). The court has also held that the Minister cannot be compelled to exercise his or her powers under section 655(3) and that the matter lay within the Minister’s judgment (see опр. № 10630 от 16   октомври 2008 г. по адм. д. № 9789/2008 г., ВАС, VІІ о., upheld by опр. № 881 от 21 януари 2009 г. по адм. д. № 14539/2008 г., ВАС, петчл. с-в). D.     General rules governing the exercise of administrative discretion and its review by the courts 1.     Under the Administrative Procedure Acts 1970 and 1979 and the Supreme Administrative Court Act 1997 33 .     Section 5(2) of the Administrative Procedure Act 1970 provided that in cases where the applicable statute or statutory instrument gave the administrative authority discretion, the administrative decision had to be within the authority’s competence and consistent with the purpose for which that competence had been granted. The former Supreme Court was relying on that provision to review the exercise of discretion by the authorities (see реш. № 181 от 21 юни 1976 г. по адм. д. № 146/1976 г., ВС, III г. о.) 34 .     In an interpretative decision of 22 November 1976 (see пост. № 4 от 22 ноември 1976 г. по гр. д. № 3/1976 г., ВС, Пленум) the Plenary of the former Supreme Court held that discretionary administrative decisions were also subject to judicial review, because the exercise of discretion was not random but subject to certain requirements, such as the requirement laid down in section 5(2) of the Administrative Procedure Act 1970 for administrative decisions to be consistent with the object and purpose of the law. Even where an administrative authority could choose between two or more viable and equally lawful alternatives, its choice had to be consistent with the object and purpose of the law. The corollary of that was that the use of powers for an ulterior purpose would amount to a misuse of powers. Compliance with those requirements was part of the lawfulness of the administrative decision, and that matter was therefore amenable to judicial scrutiny. 35 .     The Administrative Procedure Act 1979, which superseded the Administrative Procedure Act 1970, did not contain a provision similar to section 5(2) of the 1970 Act. Its section 4 provided that if an administrative decision interfered with the rights of individuals or organisations, the authorities had to apply the measures that were more favourable to those individuals or organisations, if that was also consistent with the object and purpose of the law. 36 .     Section 41(3) of the Administrative Procedure Act 1979 provided that in reviewing an administrative decision the courts had to verify whether it was lawful: whether it had been issued by a competent authority in due form and in line with the applicable rules of substantive and procedural law, and whether it was consistent with the object and purpose of the law. 37 .     Section 12 of the Supreme Administrative Court Act 1997 provided that an administrative decision could be challenged on grounds of being:   (a)     issued by an incompetent authority; (b)     not in due form; (c)     in serious breach of the rules of administrative procedure; (d)     in breach of the rules of substantive law; or (e)     inconsistent with the object and purpose of the law. 38 .     Section 42(1) of the Administrative Procedure Act 1979 dealt with the powers of the court in judicial review proceedings: it could quash the administrative decision fully or partly, vary it or dismiss the application for judicial review. Section 42(2) provided that where the matter had not been left to the discretion of the administrative authority, the court could decide the case on the merits. Where that was not the case, or where the nature of the administrative decision made it impossible for the court to proceed in that way, the court 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 (section 42(3)). 2.     Under the Code of Administrative Procedure 2006 39 .     The Code of Administrative Procedure was enacted by Parliament on 29 March 2006 and came into force for the most part on 12 July 2006. It governs, inter alia , the manner of issuing and challenging individual administrative decisions (Article 1 § 1). 40 .     Article 6 § 1 of the Code, entitled “Proportionality”, provides that the administrative authorities must exercise their powers in a reasonable way, in good faith and fairly. Article 6 § 2 provides that an administrative decision or its execution must not interfere with rights and legal interests more than absolutely necessary for the achievement of the aim sought to be attained. Article 6 § 3 provides that if an administrative decision interferes with the rights of individuals or legal persons, the authorities must apply the measures that are more favourable to those individuals or legal persons, if that is also consistent with the object and purpose of the law. Article 6 § 5 provides that the administrative authorities must refrain from actions and decisions capable of causing damage that is clearly disproportionate to the aim sought to be attained. The Supreme Administrative Court has held that Article 6 sets out the principle of proportionality, which is mandatory for administrative authorities when issuing their decisions (see реш. № 8491 от   23 юни 2010 г. по адм. д. № 3952/2010 г., ВАС, I о.), that the rules laid down in that Article govern the way in which those authorities can exercise their discretion and that, if an authority has acted in breach of those rules, its decision must be regarded as inconsistent with the object and purpose of the law within the meaning of Article 146, point 5 of the Code (see paragraph   42 below, as well as реш. № 4128 от 29 март 2010 г. по адм.   д.   №   1255/2010 г., ВАС, петчл. с-в; реш. № 3748 от 16 март 2011 г. по адм. д. № 15309/2010 г., ВАС, V о.; реш. № 4410 от 29 март 2011 г. по адм. д. № 9308/2010 г., ВАС, V о.). 41 .     Article 13 of the Code, entitled “Consistency and predictability”, provides that the administrative authorities must duly make public the criteria, internal rules or established practices which guide the exercise of their discretion. In one case the Pazardzhik Administrative Court held that the purpose of such publication was to ensure transparency in the proceedings leading to the making of a discretionary administrative decision (see реш. № 57 от 29 юни 2007 г. по адм. д. № 10/2007 г., АдмС – Пазарджик, III с-в). In a series of recent cases concerning the dismissal of customs officers, the Supreme Administrative Court held that Article 13 required the authorities to follow the internal rules issued by them (see реш.   № 4701 от 4 април 2011 г. по адм. д. № 435/2011 г., ВАС, V о.; реш. № 4733 от 5 април 2011 г. по адм. д. № 10355/2010 г., ВАС, V о.; and реш. № 6438 от 10 май 2011 г. по адм. д. № 2345/2011 г., ВАС, V   о.). However, in one case the Supreme Administrative Court rejected a legal challenge to a decision of the Minister of Justice under section 655(3) of the 1991 Act (see paragraph 25 above), holding, inter alia , that since that Act laid down rules on the manner in which liquidators had to carry out their duties, there was no need for additional criteria setting out the manner in which the Minister would control that (see реш. № 10898 от 7 ноември 2007 г. по адм. д. № 7451/2007 г., ВАС, петчл. с-в). 42 .     Article 146 of the Code, which superseded section 41(3) of the Administrative Procedure Act 1979 (see paragraph 36 above) and section 12 of the Supreme Administrative Court Act 1997 (see paragraph 37 above), provides that an administrative decision may be challenged on grounds of being: (a)     issued by an incompetent authority; (b)     not in due form; (c)     in serious breach of the rules of administrative procedure; (d)     in breach of the rules of substantive law; or (e)     inconsistent with the object and purpose of the law. Article 168 § 1 of the Code enjoins the courts to examine all those points, regardless of whether or not they have been raised by the claimant. 43 .     Article 169 of the Code, entitled “Judicial review and discretion”, provides that when reviewing a discretionary administrative decision, the courts must check whether the administrative authority had discretion and whether it complied with the requirement that administrative decisions have to be lawful. In a number of cases the Supreme Administrative Court has construed that provision to mean that the courts should review the way in which the authorities have exercised their discretion (see реш. № 8647 от   29 юни 2009 г. по адм. д. № 3037/2009 г., ВАС, II о., upheld by реш.   № 14745 от 4 декември 2009 г. по адм. д. № 11507/2009 г., ВАС, петчл. с-в; реш. № 4128 от 29 март 2010 г. по адм. д. № 1255/2010 г., ВАС, петчл. с-в; реш. № 4701 от 4 април 2011 г. по адм. д. № 435/ 2011   г., ВАС, V о.; реш. № 4733 от 5 април 2011 г. по адм.   д.   №   10355/2010 г., ВАС, V о.; реш. № 6438 от 10 май 2011 г. по адм. д. № 2345/2011 г., ВАС, V о.; реш. № 11743 от 21 септември 2011   г. по адм. д. № 8123/2011 г., ВАС, IV о.; реш. № 616 от 12 януари 2012 г. по адм. д. № 10442/2011 г., ВАС, VI о.; реш. № 1769 от 6   февруари 2012 г. по адм. д. № 13626/2011 г., ВАС, II о.; and реш.   №   9057 от 25 юни 2012 г. по адм. д. № 5600/2012 г., ВАС, II о.), but in others it has relied on it to say that administrative discretion is unreviewable by the courts (see реш. № 14751 от 14 ноември 2011 г. по адм. д. № 9472/ 2011 г., ВАС, петчл. с-в). On one case the court held that it followed from Article 169 that the administrative authorities had to give reasons why they had opted for one rather than another solution (see реш.   № 13349 от 25 октомври 2012 г. по адм. д. № 7518/2012 г., ВАС, петчл. с-в). 44 .     Articles 172 § 2 and 173 of the Code superseded section 42 of the Administrative Procedure Act 1979 (see paragraph 38 above). Article 172 §   2 provides that the court may declare an administrative decision null and void, quash it fully or partly, vary it or dismiss the application for judicial review. Article 173 § 1 provides that where the matter has not been left to the discretion of the administrative authority, the court, having declared the administrative decision null and void or quashed it, may decide the case on the merits. In all other cases, or where the administrative decision is null and void due to the lack of competence of the administrative authority or where the nature of the decision makes it impossible for the court to decide the merits of the matter, the court has to refer the case back to the administrative authority with instructions on the interpretation and application of the law (Article 173 § 2). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION IN RESPECT OF THE SCOPE OF JUDICIAL REVIEW 45.     The applicant complained under Article 6 § 1 of the Convention that the Supreme Administrative Court had refused fully to review the decision of the Minister of Justice to strike her off the list of persons qualified to act as liquidators of insolvent companies and had instead held that it was not competent to examine the proportionality of that decision. 46.     Article 6 § 1 of the Convention provides, in so far as relevant: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ...” A.     The parties’ submissions 47.     The Government submitted that the Supreme Administrative Court had 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. In other cases, in which that court had found that the relevant breaches had not been established on the facts, it had quashed the decisions of the Minister of Justice to strike the persons concerned off the list of persons qualified to act as liquidators of insolvent companies. 48.     The Supreme Administrative Court’s refusal to examine the proportionality of the decision to remove the applicant from that list had not breached her right to a fair trial because the law did not provide for a range of sanctions. Under section 655(3) of the 1991 Act, the Minister of Justice did not have discretion and was bound to remove a person’s name from the list if it was established that the person had committed a breach. The expediency of that regulatory setup was a matter of legislative policy. Indeed, the three-member and five-member panels of the Supreme Administrative Court had made similar points. It was also important to emphasise that before resorting to that measure, the Minister had to establish the facts and allow the person concerned to make representations and put forward evidence. Unlike the situation obtaining in cases such as Koskinas v. Greece (no. 47760/99, 20 June 2002) and Capital Bank AD v.   Bulgaria (no. 49429/99, § 99, 24 November 2005), in the present case the Supreme Administrative Court had not considered itself bound by the Minister’s findings of fact or law and had fully reviewed them. 49.     The applicant submitted that the right of effective access to a court meant access to a court capable of examining all aspects of the case put before it. According to her, Bulgarian law did not contain any provisions restricting the courts’ jurisdiction in cases such as hers. Nor did the law lay down clear criteria for removing a person from the list of persons qualified to act as liquidators of insolvent companies. The applicant went on to note the discrepancy between the Supreme Administrative Court’s ruling that the Minister of Justice enjoyed discretion whether to strike her off that list and the Government’s submission that he had no such discretion. She was of the view that even where an administrative authority had discretion, the courts should have jurisdiction to review all aspects of its decision. This was especially important in her case, in which the Supreme Administrative Court, although making findings of fact which differed from those of the Minister of Justice and were more favourable to the applicant, had decided not to disturb the Minister’s assessment that she should be struck off the list. It was impermissible to interfere with the right to practice a profession without providing due procedural safeguards, such as those available to persons subjected to criminal or administrative-penal charges. B.     The Court’s assessment 1.     Admissibility 50.     The Court finds that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits (a)     Applicability of Article 6 § 1 of the Convention 51.     The first point that needs to be examined is whether Article 6 § 1 of the Convention applied to the proceedings for judicial review of the decision of the Minister of Justice to strike the applicant off the list of persons qualified to act as liquidators of insolvent companies. 52.     The Court does not find that that Article was engaged under its criminal limb: under Bulgarian law, the matter is regarded as purely regulatory (see, mutatis mutandis , Ravnsborg v. Sweden , 23 March 1994, §§   31-33, Series A no. 283-B); the breaches imputed to the applicant were of rules governing specifically the duties of liquidators of insolvent companies, not of rules of general application (see Wickramsinghe v.   the   United Kingdom , no. 31503/96, Commission decision of 9 December 1997, unreported; Brown v. the United Kingdom (dec.), no. 38644/97, 24   November 1998; and Müller-Hartburg v. Austria , no. 47195/06, § 44, 19   February 2013); and the most serious sanction that the applicant risked was that which was in fact imposed: removal of her name from the list of persons qualified to act as liquidators of insolvent companies (see Wickramsinghe , cited above). 53 .     On the other hand, having regard to the terms of section 655(3) of the 1991 Act (see paragraph 25 above), the applicant could arguably maintain that in Bulgarian law she had a right to remain on the above ‑ mentioned list unless the Minister of Justice established that she had committed breaches in relation to her activity as a liquidator. This is true even though the Minister had some discretion in deciding whether to do so (see paragraph 32 above and Desmots v. France (dec.), no. 41358/98, ECHR 2001-XI). In support of her legal challenge against the Minister’s decision the applicant raised matters of law and fact susceptible of judicial assessment, and the Supreme Administrative Court had to determine a “ contestation ” (dispute) concerning a right asserted by the applicant (see, mutatis mutandis , H. v. Belgium , 30 November 1987, §§ 41-43, Series A no.   127-B; De Moor v. Belgium , 23 June 1994, §§ 42-47, Series A no.   292 ‑ A; W.R. v. Austria , no. 26602/95, §§ 28-30, 21 December 1999; and Goriany v. Austria , no. 31356/04, § 21, 10 December 2009). That right can, in view of its potential pecuniary implications, be regarded as a “civil” one (see, mutatis mutandis , H. v. Belgium , cited above, §§ 45-48, and Ginikanwa v. the United Kingdom , no. 12502/86, Commission decision of 9   March 1988, Decisions and Reports (DR) 55, p. 251, at p. 258, in relation to lawyers in private practice). Article 6 § 1 of the Convention is therefore applicable under its civil limb. (b)     Compliance with Article 6 § 1 of the Convention 54.     It should be pointed out at the outset that, according to Article 19 of the Convention, the Court’s duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. The Court is not a court of appeal from the national courts (see, as recent authorities, Yordanova and Toshev v. Bulgaria , no. 5126/05, § 65, 2   October 2012, and Fazliyski v. Bulgaria , no. 40908/05, § 56, 16 April 2013), and it is not its function to deal with errors of fact or law allegedly committed by those courts unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, Csősz v. Hungary , no. 34418/04, § 33, 29 January 2008, and Fazliyski , cited above, § 56). It follows that the Court cannot, in the context of Article 6 § 1 of the Convention, determine whether the decision of the Minister of Justice to strike the applicant off the list of persons qualified to act as liquidators of insolvent companies was lawful or justified, or whether the Supreme Administrative Court’s rulings in relation to that decision were correct in terms of Bulgarian law. The Court’s task is confined to examining whether the proceedings before the Supreme Administrative Court were fair and otherwise in compliance with the requirements of Article 6 § 1. 55.     More specifically, the Court has to assess whether the scope of the Supreme Administrative Court’s jurisdiction, as exercised in the case at hand, was sufficient for the purposes of that Article. In this connection, the Court notes that the Supreme Administrative Court was – as apparent from the reasoning of its three-member and five-member panels (see paragraphs   15 and 20 above) – competent to, and did in fact, examine in detail whether the applicant had committed the breach imputed to her by the Minister of Justice. That was in line with that court’s established case-law in that domain, according to which it was competent to verify whether the acts or omissions imputed to the liquidator had in fact taken place and could indeed be characterised as breaches of duty (see paragraph 31 above). It is also clear that that court could have quashed the Minister’s decision on a number of grounds, including if the decision had been reached on the basis of a misconception of fact or law, there had been no proper enquiry or a lack of due reasoning, or on procedural grounds (see paragraphs 30 and 31 above). 56.     The situation at hand is therefore different from those obtaining in cases in which the national courts were unable or unwilling to scrutinise findings of fact or law made by administrative authorities (see Obermeier   v.   Austria , 28 June 1990, §§ 69-70, Series A no. 179; Beaumartin v. France , 24 November 1994, §§ 38-39, Series A no. 296-B; Terra Woningen B.V. v. the Netherlands , 17 December 1996, § 53, Reports of Judgments and Decisions 1996-VI; Tinnelly & Sons Ltd and Others and   McElduff and Others v. the United Kingdom , 10 July 1998, § 74, Reports 1998-IV; Koskinas , cited above, § 30; Chevrol v. France , no.   49636/99, § 78, ECHR 2003-III; I.D. v. Bulgaria , no. 43578/98, § 46, 28   April 2005; Capital Bank AD , cited above, § 99; Tsfayo v.   the   United   Kingdom , no. 60860/00, §§ 46-48, 14 November 2006; Družstevní záložna Pria and Others v. the Czech Republic , no. 72034/01, §§   112-13, 31 July 2008; Putter v. Bulgaria , no. 38780/02, §§ 48-56, 2   December 2010; and Fazliyski , cited above, § 59). For instance, most recently in Fazliyski (cited above, §§ 56-63) the Court found a breach of Article 6 § 1 of the Convention on account of a refusal on the part of the Bulgarian Supreme Administrative Court to review an assessment, carried out by an expert administrative body and triggering automatic dismissal from work, that a major at the National Security Directorate of the Ministry of Internal Affairs was mentally unfit for work at the Ministry. The Court, noting that under Bulgarian law the decision of the Minister of Internal Affairs to dismiss the applicant from his post had not been a discretionary one, specifically said that the case was not concerned with the intensity with which the domestic courts should scrutinise the exercise of administrative discretion (ibid., § 58). 57.     The issue in the present case is different and far narrower: whether, by declaring themselves incapable of examining whether the measure taken in relation to the applicant was too harsh in view of the breach imputed to her, the three-member and five-member panels of the Supreme Administrative Court did not sufficiently review the discretionary decision of the Minister of Justice in respect of the applicant. The applicant pleaded the point before both of those panels, raising a number of arguments in that regard (see paragraphs 13 and 18 above). Even though the three-member panel replied to some of those arguments, mo