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To sue the state

Hristo Hristov
Hristo Hristov
Petar Stoichkov
Petar Stoichkov

Or when to request a state’s compensation for caused damages

Competent to hear the cases, relating to claims of citizens against the state is the court at the place of the damage or the current address or registered office of the damaged.

One of the basic principles of the public law is that the state as power is not responsible, because the sovereign cannot be held responsible for their actions. However, the administrative authorities’ actions appear in a number of cases to be reason for damages, caused to citizens. Under administrative authorities’ actions we should understand acts and omissions of individuals, occupying a post in the public administration. Therefore, of particular importance are the selection and the appointment of these persons.

Regulatory framework

The responsibility of the state and the municipalities for damages, caused to citizens and legal entities by unlawful acts, deeds or omissions of state or municipal authorities and officials during performance of administrative work, occupies a central place in the public life and the legal order. Therefore, this is one of the questions, set by the constituent power in the Constitution of the Republic of Bulgaria. Its principle position is enshrined in art.7 of the basic law and is further developed in the Act on liability for damages incurred by the state and the municipalities.

A ground for imposing this kind of liability will be there always, when the damages are caused to individuals and legal entities by unlawful acts, deeds or omissions of their authorities or officials upon or on the occasion of implementation of their administrative activity.

The nature of the responsibility consists in the possibility of the victim to receive a compensation for all material and moral damages, which are a direct and immediate consequence of the damage, independently whether caused by fault of the official. This is the main difference between this type of liability and the civil liability, where the presence of fault is a mandatory prerequisite for its realization.

For holding the state responsible, it is not necessary to establish the damage’s causer, for example the particular official. In case the damage is caused due to the exclusive fault of the victim, any compensation is not due, and under a contributory negligence on the part of the victim, the compensation is reduced proportionately.

Procedural order for realization of liability

The responsibility is realized under administrative procedure order. The claims for compensation are considered under a special procedure, regulated by the Administrative Procedure Code.

A prerequisite for a claim for compensation is the cancellation of the unlawful administrative act. This is because the establishment of unlawfulness or invalidity of the administrative act, accordingly unlawfulness of the deed or the omission, constitutes a preliminary question in resolving the legal dispute under the claim for compensation. Unlawful is the act, which significantly violates any of the legal requirements – to be issued by a competent authority, to be formulated in the form prescribed by the law, the administrative procedure rules in issuing it to be met, to conform to the substantive provisions of the law and to be consistent with the objective of the law.

In order to be unlawful the omission of the administrative authority, the latter shall be obliged to perform a particular action, and in a certain way, but not when the authority has discretion whether to act or to refrain from acting.

Legitimated to file a claim is any individual or legal entity, who has suffered damages by an unlawful act, deed or omission. Upon death of the damaged their right for compensation for property damages is inherited and therefore their inheritances acquire active legitimacy. As for the moral damages, the claim has to be filed before the court by the damaged and the successors are inheritances to continue the process.

The claim for damaged has to be filed against the entity, represented by the authority, from whose unlawful act, deed or omission the damages are caused, as the participation of a prosecutor is required.

Jurisdiction, fees and costs

Competent to hear cases under claims of citizens against the state is the court at the place of the damage or the current address or registered address of the damaged against the authorities, from whose unlawful acts, deeds or omissions the damages are caused.

If the claim is denied entirely, the court judges the claimant to pay the costs under the proceedings. The costs are paid by the claimant upon withdrawal of the claim in whole or upon denial of the claim entirely. If the claim is accepted in whole or in part, the court judges the defendant to pay the costs under the proceedings, as well as to pay the claimant the paid state fee. The court judges the defendant to pay the claimant for a lawyer, if there was such, in proportion to the accepted part of the claim.

Separation of the claim for compensation

The claim for compensation can be separated at the request of a party or after the discretion of the court, if its hearing makes more difficult the contestation of the administrative act. The examination of the separated claim continues in the same court after the entry into force of the declaration of invalidity or cancellation of the act, as this rule is imperative.

Termination of the proceedings under the claim for compensation

When the proceedings upon the contesting of the administrative act is terminated, the proceedings upon the compound with it claim for compensation is terminated also, unless it is for a compensation for damages under an invalid administrative act or the proceedings upon the contesting has been terminated because of the withdrawal of the administrative act.

The proceedings under the claim are terminated if the contestation of the administrative act has been rejected. Upon termination of the proceedings, there can be achieved an agreement between the parties to the amount of the compensation.

The principle of state liability for damages, caused to citizens, is an expression of the generally accepted human values, enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms, namely any legal entity to have reliable “internal” remedies against the state.

The institute of state liability is a kind of proof for the achieved legal order in modern societies. On the one hand, the citizens are responsible for their actions before the state, but on the other, it could also suffer adverse consequences for their damaging actions. This legal balance, however, is not a guarantee for the advancement of society, since a crucial role for it plays the civil consciousness of moral society.

Or, as Margaret Thatcher said: “We are society, where people are free to make choice, to make mistakes, to be generous and compassionate. This is what we mean by moral society, not that one, where the state is responsible for everything and no one is responsible for the state.”

The article has been published in Bulgarian, in Capital Daily.