More on the Liability of the State and Municipalities for Damages in the Event of a State of Emergency
The issue of the liability of the State and the municipalities for the damage caused to citizens and natural persons is intrinsically connected with the idea of what the State should be and, accordingly, what are the relations between it and its citizens.
In the Age of Enlightenment, shortly before the French Revolution, Jean-Jacques Rousseau expressed his idea that the republic was the most perfect form of State based on a social treaty. The theory of social contract, upheld by Thomas Hobbes, John Locke and others, accepts that the State is established and exists on the basis of the will of free and equal individuals. It is this will that legitimates power, and the individuals voluntarily accept to obey.
The modern rule of law is based on the principle of separation of powers, formulated as early as 1748 by Charles de Montesquieu. According to him, the State power is divided into executive, legislative and judicial. They must be independent, but at the same time there must be a balance between them in order to prevent abuse of power.
The theories of the origin of State and power, of course, are many and undergo development along with the development of human society. The State rules through its bodies. In the rule of law of today, this rule must be based on law and within the scope of law. The basic principle is that the law itself must be legitimate. When an offense is committed, the State is responsible for its actions and inactions.
The theory of State responsibility is also evolving. An example of this in Bulgaria is the Act on the Liability of the State and the Municipalities for Damages (State Liability Act) and the practice of its implementation. In the first years after its entry into force, it was assumed that legal persons could not file claims against the State under this law. Afterwards, the law and practice changed in the right direction. It is now indisputable that such claims can be filed. Moreover, under the influence of judgments of the Court of Justice of the European Union, of the European Court of Human Rights in Strasbourg, as well as of the practice in other countries, the idea that legal persons may not only seek damages, but can also do so for both material and non-material injuries, has gained traction in the practice of Bulgarian courts.
The COVID-19 pandemic has divided countries all over the world, irrespective of their principles of government and affiliation with foreign political alliances and blocs, mainly into two groups – countries where the principle of collective immunity applies and countries where restrictive measures apply. In the Republic of Bulgaria, the second option was chosen.
The state of emergency declared on 13 March 2020 has put the institutions in our country under a serious test. The Constitution allows for the restriction of certain rights in the event of a state of emergency, and it does not guarantee that the restriction of rights will be tailored to the specific reasons that caused the state of emergency and that rights will be restricted no more than what is necessary – you can read more on this topic here.
According to the case-law of the European Court of Human Rights, national authorities have a margin of appreciation to decide whether a state of emergency is necessary and what measures should be imposed. However, this freedom is not unlimited. The measures to be taken must be specific to the situation and aim at overcoming it. The nature of the measures and the degree to which civil rights are affected must be appropriate and proportionate to the threat being counteracted. Restriction of rights should not last longer than is necessary to counteract the crisis. Another necessary prerequisite is that the legislation in force at the time of the crisis and the procedures envisioned therein should be insufficient to overcome it. The effect of the restrictive measures over time, their intensity and when they need to be repealed is assessed.
There are rights that can in no way be restricted – the right to life, the prohibition of torture, the prohibition of slavery, the prohibition of conviction for an act that has not been declared a crime, the prohibition of retrial for the same act, etc.
Against the background of current world events, the question arises as to how proportional and related to the restriction and delay of the pandemic are some of the restrictive measures applied in Bulgaria. The stated intention to derogate from the Convention on Human Rights and Fundamental Freedoms is also alarming. Derogating from the Convention or restricting some of the rights it protects does not make it impossible to file a complaint with the European Court of Human Rights.
There is a lack of clarity and predictability of the measures imposed. They have a high level of intensity. A fine in the amount of BGN 5000, unjustifiably high when compared to the income of the population, is imposed and cannot be changed without taking into account the specific circumstances of the offense. A number of administrative acts have been issued and numerous actions have been carried out in conditions of very limited access to court.
In this situation, the decisions of the Supreme Judicial Council were correct, stating that the assessment of consideration of cases other than those explicitly stated in the decisions of the Supreme Judicial Council – Judicial College was within the competence of the administrative heads of the courts and that the courts would also review cases initiated in connection with unjustified actions and inactions of the administration. The decision of the President of the Supreme Court of Cassation to open cases and to issue court acts was also correct. This partially corrected the breach of the requirement to provide real rather than formal access to a court.
Any action or inaction of the administration, even in a state of emergency, any administrative or judicial act, any legislative act adopted, including the Measures and Actions during the State of Emergency Act, and any measure taken, any restriction of rights, must be assessed in the light of European Union law, as well as in light of international treaties to which Bulgaria is a party.
Various actions may be brought under the State Liability Act. The legal basis for some of them is found in other normative acts – the basis for the claim for the liability of the State for damages caused by violations of European Union Law is found in Art. 4, para. 3 of the Treaty on European Union; the legal basis for other claims lies in the relevant provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 5, paras. 1-4 and Art. 6, para. 1), and Bulgarian law only regulates the manner in which these rights can be protected.
The State and the municipalities owe compensation for all material and non-material damages that are a direct and immediate consequence of the injury, whether caused in fault by the official, or not. It is necessary to prove the occurrence of the injuries and their extent. In case of death of the injured party, his right to compensation for material damages is inherited. The right to non-material damages is inherited only if it has been brought before a court by the injured party.
Pursuant to Art. 1, para. 1 of the State Liability Act, the State is responsible for the actions of the administrative bodies, including such actions that were carried out during the state of emergency. This is a direct, objective, strict liability for the actions of a third party. The right to claim damages arises from the moment when the unlawful acts, acts or inactions of administrative bodies are annulled administratively or judicially. Liability is also borne for illegal enforcement of an administrative act. These claims can be brought by individuals and legal entities.
Pursuant to Art. 2 of the State Responsibility Act, the State is liable for damages caused to citizens by investigative bodies, the prosecutor’s office or the court upon apprehension into custody, including as a measure of detention, house arrest, when the measures were cancelled, application by the court of compulsory placement and medical treatment or compulsory medical measures, when the measures are cancelled, as well as in all other cases of detention in violation of the right to liberty and security under Art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. This responsibility also extends to violations of the right to liberty and security in a state of emergency, and the extent of the measures and the nature of the rights affected should be assessed on a case-by-case basis in proportion to the severity and duration of the threat. It is necessary to consider whether the same results could be achieved without violating the right to liberty and security.
The state of emergency does not exclude the liability of the state under Art. 2a of State Liability Act for damages caused by unlawful acts, acts or omissions of the bodies and officials under the Anti-Corruption and Seizure of Illegally Acquired Property Act.
According to the provision of Art. 2b, para. 1 of the State Liability Act, the State is liable for the damages caused to citizens and legal entities by violation of the right to hear and resolve their case within a reasonable time according to Art. 6, para 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. During the state of emergency, the following have been suspended: consideration of most cases; opening new proceedings, except for those explicitly stated in the decisions of the Supreme Judicial Council; the announcement of enacted acts, service of summonses and court papers, etc. With its subsequent decisions, the Supreme Judicial Council has extended the scope of the cases under consideration and indicated that the administrative heads of the courts could, at their discretion, include other cases in the list of cases referred to by the Supreme Judicial Council. As a result, it could be argued that there could be a breach of the right to a fair hearing and a decision within a reasonable time. The procedure under Chapter IIIa of the Judiciary Act should also be borne in mind here.
Up until the state of emergency was declared, there was no actual impossibility and it was solely upon the State’s discretion to fulfill its obligation in relation to e-justice. There was no obstacle to making changes to the relevant legislation so that all documents could be sent electronically and that true e-justice could be created.
The State cannot rely on its own inaction when a situation arises in which access to a court is prevented in practice. It should be borne in mind that the obligation to resolve a case within a reasonable time is only one element of the right to a fair trial. Another element is the right to a real and effective access to a court that can hear and decide the merits of the case. Currently, access to court in most cases is not real and effective. In this way, damages could be caused for which the State could be held liable.
Pursuant to Art. 4, para. 3 of the Treaty on European Union, the State owes damages caused by a violation of EU law. Bulgarian courts have already had cases awarding damages for such violations – for example in this case. The procedure for consideration of the claims is regulated in Art. 2c of the State Liability Act.
In such circumstances, responsibility is derived from the principle of sincere cooperation, under which States are required to take any general or specific measures necessary to fulfill the obligations arising from the Treaties or the acts of the institutions of the Union. States must also undertake to assist the Union in the fulfillment of its tasks and to refrain from any measure which might jeopardize the attainment of the objectives of the Union.
If these obligations are not fulfilled, States bear responsibility. When an individual incurs injuries due to the State’s failure to comply with European Union law, he or she may bring an action for damages before the national court.
Court practice to this end was initiated in 1991 by the historic judgment of the Court of Justice in Andrea Francovich and Danila Bonifaci and others against the Italian Republic (Cases C-6/90 and C-9/90). In that judgment, the Court of Justice of the European Communities set out the principle that Member States are required to compensate the damage they have caused to individuals by violations of Community law. The Court also noted the conditions under which States are responsible. States are liable for damages where there is a European rule of law directly applicable or the period for transposition of which has expired, its conditions are sufficiently clear, it provides for the granting of rights to private entities, those entities have suffered injuries and there is a causal link between the injuries and violation of European Law by the State.
In subsequent rulings, the Court outlined the prerequisites for bringing an action against the State and affirms that Member States are responsible for breaches of European law committed by the judiciary. In its case-law, the Court explicitly states that Community law should be applied instead of national law, if the latter excludes the liability of the State for damages in breach of Community law by a decision of a court of last resort.
In the case of a state of emergency and considering current world events, it is necessary to make a very careful assessment of whether the restrictive measures applied by a particular country lead to violations of European Union law and its fundamental values. With regard to the measures taken in Hungary, the Committee on Civil Liberties, Justice and Home Affairs in the European Parliament has already expressed concerns whether they will lead to violations of fundamental rights, democratic principles and the rule of law.
It is particularly important to emphasize here that even measures set out in a law may not be legitimate and that the law itself may not be legitimate due to its contradiction with fundamental legal principles and violation of civil rights. The measures taken to curb the COVID-19 pandemic need to be in line with EU core values. When in breach of EU law, States are liable for damages and subject to sanctions imposed in the respective proceedings.
The basic values are stated in Art. 2 of the Treaty on European Union – human dignity, freedom, democracy, equality, the rule of law, respect for human rights. These values are common to the Member States in a society characterized by pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men.