The article focuses on the current legal framework and court practice regarding the topic in Bulgaria.

In Part I of the present article, the damages claim against a foreign state, brought before the Bulgarian court, was considered mainly from a procedural legal point of view—regarding its admissibility.

Insofar as the foreign state is a legal person and always acts through natural persons (its officials), the substantive legal basis for bringing the claim under consideration is Art. 49 of the Obligations and Contracts Act /OCA/, which regulates the liability for unlawful actions of others caused in the course of or in connection with the performance of work assigned by the subject of liability. From a substantive legal point of view, in order for a claim brought under Art. 18, para. 1, item 3 of the Civil Procedure Code /CPC/ to be well-founded, all the elements of the factual composition of the delictual liability under Art. 49 of the OCA must be present: assigned work, in the course of or in connection with the performance of which the tort has occurred; unlawful conduct of the performer of the work; damage; and a causal link between the unlawful conduct and the damage. There is a theoretical view that an element of the factual composition of the liability for unlawful actions of others is also the fault, expressed in the culpable omission of the assignor of the work, which is assumed and considered to be present with the very fact that damage has been caused^[1], but I believe that when the liability of a state is put in issue, the fault is not subject to examination in the proceedings, in the sense of which the provision of Art. 4, para. 1 in fine of the Liability of the State and the Municipalities for Damages Act /LSMDA/ is. Therefore, it can be concluded that the liability of a foreign state for damages, established on the basis of Art. 18, para. 1, item 3 of the CPC in conjunction with Art. 49 of the OCA, is a special delictual objective no-fault liability.

In the proceedings under consideration, an assigned work, in the course of or in connection with the performance of which the alleged damages have occurred, is always present, since the foreign state fulfills its official functions through its officials (natural persons), who possess certain powers. It is irrelevant for the establishment of the liability of the foreign state which specific official has caused the damages, and even if this official can be identified, the claim for compensation shall not be brought against him, but against the state, since they have acted (failed to act) in the course of or in connection with the fulfillment of the official functions assigned to them by it, and the state, in turn, has not fulfilled its general obligation for good and fair governance, guaranteeing the protection of the rights and interests of all citizens and legal persons on its territory. The establishment of the liability of the foreign state also ensures the collectability of the claimed receivable, insofar as the financial resources of the state are unlimited, unlike the property of a particular natural person. However, in the Bulgarian judicial practice, a final judgement can be found, by which certain officials of a foreign state (and not the state itself in its capacity as a legal person) have been sentenced to pay a Bulgarian citizen compensation for material and non-material damages caused by unlawful conduct towards them, expressed in isolation, traumatic injuries, torture, humiliating and inhuman treatment, and causing suffering, committed on the territory of the foreign state[2].

The unlawful conduct of the assignee on the occasion under consideration is expressed in a violation of the general prohibition to culpably harm other persons (neminem laedere)^[3]. In the proceedings under Art. 18, para. 1, item 3 of the CPC, it is irrelevant whether the normative acts of the domestic legislation of the foreign state have been violated, resp. observed, insofar as they have no effect and are not applied on the territory of the Republic of Bulgaria. However, the unlawfulness may be expressed in a violation of rights proclaimed in the European Convention on Human Rights /ECHR/, since according to Art. 35 of the Convention, the European Court of Human Rights may be referred to only after the exhaustion of all domestic legal remedies, of which the claim under consideration is also part. The unlawfulness may also be expressed in a violation of the Charter of Fundamental Rights of the EU /CFREU/, which according to Art. 5, para. 4 of the Constitution of the Republic of Bulgaria /CRB/ is also part of the domestic law and is directly applicable by the Bulgarian courts. The unlawful conduct may be active (action) or passive (omission). It may be carried out by a specific official or a sole body of the state, as well as by a collective body, including the legislative body of the foreign state (the parliament)—if, for example, the latter has adopted a law as a result of which the private legal entity has incurred damages or has not adopted a law that would have prevented their occurrence. For example, Bulgarian citizens who own real estate on the territory of the Kingdom of Spain incur damages from the Spanish Urban Rents Act (Ley de Arrendamientos Urbanos), in force since 01.01.1995, which gives the right to persons who have settled on their own and reside without legal basis in another person’s property to remain in it until the conclusion of court proceedings for their eviction from the property with a final judgement, during which time the owner is obliged to pay all the overhead costs induced by them. It shall be noted, however, that the unlawful conduct of the foreign state cannot be expressed in the issuance of individual administrative acts that are subject to appeal, since in this case the judicial control of their legality is within the exclusive competence of the courts in the relevant state. For the same reasons, the unlawful conduct cannot be expressed in the issuance of judicial acts, since the Bulgarian courts do not have the competence to assess the validity, admissibility, and regularity of the acts of foreign jurisdictions. However, if the damages arise from an individual administrative act that cannot be appealed, the proceedings under Art. 18, para. 1, item 3 of the CPC could be applied, since the very deprivation of a private entity of the right to appeal an act affecting their legal rights and interests is unlawful (Art. 13 of the ECHR; Art. 47 of the CFREU; Art. 56 of the CRB).

As the topic of the present article is broad and interdisciplinary (concerning different areas of law, in both the domestic and the international field), the two other elements of the factual composition of the delictual liability under Art. 49 of the OCA that must be present in order for a claim brought under Art. 18, para. 1, item 3 of the CPC to be well-founded—damage and causal link between the unlawful conduct of the performer of the work and the damage—will be examined in the third part of the article. It will also examine one more element, explicitly mentioned in Art. 2c of the LSMDA with regard to the liability of the Bulgarian State for damages resulting from a violation of the EU law—that the violation must be sufficiently substantial. In the third and final part of the article, some important conclusions regarding the practical aspects and significance of the damages claim against a foreign state, brought before the Bulgarian court, will also be made.

[1] Kozhuharov, Al. Law of obligations. Separated categories of obligation relationships. New edition and additions P. Popov. Sofia: Jurispress, 2002, p. 377.

[2] Judgement № 8148 of 28.12.2018 on civil case № 10339/2012 of the Sofia District Court, confirmed in its condemnatory part by Judgement № 852 of 21.04.2020 on civil appeal case № 1025/2019 of the Sofia Appellate Court, whose cassation appeal is not admitted by Order № 9 of 13.01.2021 on civil case № 2455/2020 of the Supreme Court of Cassation, Civil Chamber, III civil department. 

[3] Goleva, P. Delictual law. Tort. Fourth revised and supplemented edition. Sofia: Nova zvezda, 2018, 20-26.