CASE OF YANAKIEV v. BULGARIA
(Application no. 40476/98)
10 August 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Yanakiev v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 10 July 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“According to section 111 of the [State Property Regulations of 1975 („Наредба за държавните имоти“ – see paragraphs 33 36 below)], the sale of State-entity owned [„ведомствени“] housing units is effected by the municipal councils under the conditions laid down in section 111(4) of the [Regulations], that is, pursuant to a proposal by the respective State entity, indicating the buyer. In such case, under section 120 of the [Regulations], the municipal council effects the sale on the basis of an order issued by it.
The text of section 120 of the [Regulations] is categorical on the point that, provided all conditions for execution of the transaction have been met, the municipal council has no discretion whether or not to do so, but must issue the respective order. Such an order undoubtedly constitutes an individual administrative decision and is, like the tacit refusal to issue it, subject to review under the [Administrative Procedure Act of 1979 („Закон за административното производство“ – “the APA” – see paragraph 41 below)].
The facts of the case indicate beyond doubt that the applicant was a tenant in the flat [in issue] on the basis of a[n] ... order ... of 13 October 1983. As such, he has the right to buy it according to the procedure laid down in the [Regulations].
It is also beyond doubt that this flat is the property of [the applicant’s employer].
In a decision of [28 December 1992] the board of directors of the [applicant’s employer] allowed the applicant to purchase the State-entity-owned housing unit he was living in.
In execution of this decision [the applicant’s employer] addressed a request to the chairperson of the Executive Committee of the Varna Municipal Council [i.e. the mayor – see paragraph 35 below], in which it had also indicated the buyer. Thus, all requirements of section 111 of the [Regulations] were complied with.
In view of this state of affairs the Municipal Council should have discharged its duty under section 120 of the [Regulations], finalising in due form the consent already achieved between the parties and issuing the respective order.
The Municipal Council is in effect not a party to the sale agreement. The parties are the State entity owner [of the flat] and the tenant. The Municipal Council acts as an administrative authority which only approves the already concluded contract.
The tacit refusal to do so was unlawful.”
“... The petition for review is well-founded.
In the judgment under review the Varna Regional Court quashed the tacit refusal of the mayor ... of Varna to enter into a contract for the sale of a State entity owned housing unit ... to its tenant...
The mayor’s decisions to enter into contracts for the sale of State owned housing units under the State Property Regulations [of 1975] or the refusals to do so, including where the housing units have been given, for management, to ministries, other State entities, State commercial enterprises and institutions, are not administrative decisions within the meaning of section 2 of the [APA]. These decisions precede the execution of the bilateral transaction for transferring title to the respective property from the State to the individual purchaser and denote the assent of the mayor ... to the future execution of such a deal. [The mayor] does not, however, act as an administrative authority; he is placed on equal footing with the private individual contracting with him. For this reason his acts in such cases fall out of the ambit of the [APA] and are not subject to review under it. ...
Moreover, in view of the terms of section 117 of the State Property Regulations [of 1975], it could not be accepted that the municipalities are bound to sell State entity owned housing units to the tenants settled therein. This provision sets out only the manner in which these housing units are sold and the persons who are entitled to purchase them in the event of a decision to that effect by the competent body. There is no legal obligation for the mayor to approve the sale of a State entity owned flat. This lack of a legal duty excludes administrative or judicial review under the [APA].
In examining the application [for judicial review] the [Varna] Regional Court overstepped its jurisdiction. Its judgment therefore is to be quashed, the application is to be left without examination, and the proceedings are to be discontinued. ...”
“The three member panel’s judgment is well founded. The proceedings before the Varna Regional Court related to the refusal of the mayor of Varna to enter into a contract for the sale of a State entity owned housing unit. The holding that the decisions to enter into a contract for the sale of State-owned housing units in the manner prescribed in the State Property Regulations [of 1975] or the refusals to do so, including where [such housing units] have been assigned to State entities, as in the case at hand, are not individual administrative decisions within the meaning of section 2 of the APA is correct. [These decisions] precede the execution of a bilateral transaction transferring title to the property from the State to the [individual], and denote the assent of the mayor ... to the future execution of this transaction. [The mayor] does not act as an administrative authority; he is placed on an equal footing vis-à-vis the private person. Therefore, his acts in such cases are not encompassed by the [APA]. Acts which relate to civil law relations, where the administrative authority and the [person concerned] are on an equal footing, are not individual administrative decisions within the meaning of the APA.
The three member panel correctly found that in view of section 117 et seq. of the State Property Regulations [of 1975] it could not be accepted that the municipalities are bound to sell State entity owned housing units to their occupants. This provision sets forth only the manner of selling such units, which could be purchased in the event of a decision to this effect by the competent body. There is however no legal duty for the mayor ... to assent to the sale of a State entity owned housing unit, and in the absence of such a legal obligation administrative or judicial review under the APA is inadmissible.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Housing Act of 1991
“State entities which own residential buildings may sell existing housing units to their employees ... provided the persons willing to purchase them meet the requirements of section 2(1).”
“1. State entities ... shall, by decisions adopted by their managements after 4 March 1991 and not later than six moths after the entry into force of this amendment of the Act, sell the existing housing units to their employees under the following terms:
(1) employees who have applied to purchase State-entity owned housing units not later than 4 March 1991 or were tenants therein before that date and who meet the requirements of section 2(1)(1), (3) and (4) of the Act may purchase the units at prices set in accordance with [previous, more favourable pricing rules].
(2) employees who were settled as tenants after 4 March 1991, but before the entry of this amendment of the Act into force, and, as of the date of issuing of the settlement order, met the requirements of section 2(1)(1), (3) and (4) of the Act, may purchase the housing units at prices set in accordance with [the then current pricing rules].
2. The difference between the price at which the housing units are acquired under subparagraph 1 and their real value shall be borne by the [respective State entity].”
B. Regulations for the implementation of the Housing Act of 1991
“The persons eligible within the meaning of the Act are:
(3) tenants in housing units owned by [State entities] whose tenancies commenced before 3 August 1992; ...”
C. The State Property Regulations of 1975
D. Legal regime of the assets of State enterprises
E. Judicial review of administrative action
1. Relevant constitutional and statutory provisions
“1. The courts shall review the lawfulness of the administrative authorities’ acts and decisions.
2. Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them, save as expressly specified by statute.”
2. Judgment no. 21 of 1995 of the Constitutional Court
F. Review proceedings before the former Supreme Court
G. The possibility to reopen civil proceedings as a result of a judgment of the European Court of Human Rights
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...”
A. The parties’ submissions
1. The applicant
2. The Government
B. The Court’s assessment
1. Applicability of Article 6 § 1
2. Compliance with Article 6 § 1
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable on the date of settlement:
(i) EUR 3,000 (three thousand euros) in respect of pecuniary and non pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 10 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen