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PANAYOTOVA v. BULGARIA - 27636/04 [2009] ECHR 1027 (2 July 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1027.html
Cite as:
[2009] ECHR 1027
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FIFTH
SECTION
CASE OF PANAYOTOVA v. BULGARIA
(Application
no. 27636/04)
JUDGMENT
STRASBOURG
2 July 2009
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 Panayotova v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
Mirjana Lazarova Trajkovska, judges,
Pavlina
Panova, ad hoc judge,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 9 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27636/04) 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 Egalina Simeonova
Panayotova (“the applicant”), on 23 July 2004.
The
applicant was represented by Ms S. Margaritova-Vuchkova, a lawyer
practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs S. Atanasova
of the Ministry of Justice.
The
applicant alleged that she had been deprived of her property in
violation of Article 1 of Protocol No. 1 and Articles 8 and 14 of the
Convention.
On
3 March 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
Zdravka
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case. On 30 January 2009 the Government appointed in
her stead Pavlina Panova as an ad hoc judge (Article 27 § 2 of
the Convention and Rule 29 § 1 of the Rules of the Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1952 and lives in Sofia.
In
1967 her parents purchased from the Sofia municipality a two-room
apartment of 69 square metres in the centre of the city. The
apartment had become State property by virtue of the nationalisations
carried out by the communist regime in Bulgaria after 1947.
After
the deaths of her parents the applicant inherited from them.
On
23 February 1993 the former pre-nationalisation owners of the
apartment brought proceedings against the applicant under section 7
of the Restitution Law, seeking nullification of her title and
restoration of their property. The proceedings ended by a final
judgment of the Supreme Court of Cassation of 5 March 2004. The
courts declared the 1967 contract null and void and restored the
plaintiffs' title to the apartment on two grounds: 1) the initial
decision to sell the apartment had not been affirmed by the Minister
of Architecture and Public Works but by his deputy; and 2) the sale
contract had been signed not by the mayor but by one of his deputies.
Although the mayor had been entitled to authorise another person to
sign such contracts, he had made no written and explicit
authorisation.
After
the final judgment in her case, it became possible for the applicant
to seek compensation from the State in the form of bonds, which could
be used in privatisation tenders or sold to brokers. The
applicant did not immediately apply for bonds.
She
requested bonds in November 2006, following the amendments to the
Restitution Law of June 2006. The regional governor dismissed the
request and the applicant appealed against the refusal; the appeal
was dismissed in a final judgment of the Supreme Administrative Court
of 6 April 2009. The domestic courts found that persons who had
not applied for compensation bonds within the relevant time-limit, in
force since 2000, could not seek such bonds after the adoption in
June 2006 of new paragraphs 2 and 3 of section 7 of the Restitution
Law as the amendment at issue did not give rise to a new entitlement
to compensation bonds and therefore did not affect the relevant
time-limit.
In
February 2007 the applicant vacated the apartment.
II. RELEVANT BACKGROUND FACTS, DOMESTIC LAW AND PRACTICE
The
relevant background facts and domestic law and practice have been
summarised in the Court's judgment in the case of Velikovi and
Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99,
48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15
March 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
The
applicant complained that she had been deprived of her property
arbitrarily, through no fault of her own and without adequate
compensation. She relied on Article 1 of Protocol No. 1, which reads
as follows:
“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.”
The
Government did not submit observations.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
applicant contended that she had been the victim of an arbitrary and
unlawful deprivation of property and had not received adequate
compensation.
The
Court notes that the present complaint concerns the same legislation
and issues as in Velikovi and Others, cited above.
The
events complained of constituted an interference with the applicant's
property rights.
The
interference was based on the relevant law and pursued an important
aim in the public interest, namely to restore justice and respect for
the rule of law. As in Velikovi and Others (cited above, §§
162-176), the Court considers that in the particular circumstances
the question whether the relevant law was sufficiently clear and
foreseeable cannot be separated from the issue of proportionality.
Applying
the criteria set out in Velikovi and
Others (cited above, §§ 183-192),
the Court notes that the applicant's title was
declared null and void and she was deprived of her property on the
ground that relevant documents in 1967 had been signed by the
deputies to the officials in whom the relevant power had been vested
(see paragraph 9 above). These deficiencies were clearly
attributable to omissions on the part of the administration, not to
the applicant's parents.
The
Court considers therefore that the present case is similar to those
of Bogdanovi and Tzilevi, examined in Velikovi and
Others (see §§ 220 and 224 of the judgment, cited
above), where it held that in such cases the fair balance required by
Article 1 of Protocol No. 1 could not be achieved without adequate
compensation.
The
question thus arises whether adequate compensation was provided to
the applicant.
In
2004, following the final judgment in her case, she could apply for
compensation bonds but failed to do so. However, as the Court found
in Velikovi and Others cited above, § 226, and in a
number of subsequent cases (see Koprinarovi v. Bulgaria, no.
57176/00, § 31, 15 January 2009; Dimitar and Anka Dimitrovi
v. Bulgaria, no. 56753/00, § 31, 12 February 2009; and
Vladimirova and Others v. Bulgaria, no. 42617/02, § 40,
26 February 2009), owing to the instability of bond prices and
the frequent changes in the relevant rules, it could not be
considered that at the time the bond scheme secured adequate
compensation. Therefore, the applicant's failure to use the bond
compensation scheme must be taken into consideration under Article
41, but cannot decisively affect the outcome of the Article 1
Protocol No. 1 complaint.
Furthermore,
the applicant's request for bonds submitted in November 2006 was
dismissed (see paragraph 11 above).
In
these circumstances the Court finds that no clear, timely and
foreseeable opportunity to obtain adequate compensation was available
to the applicant.
It
follows that a fair balance between the public interest and the need
to protect the applicant's rights was not achieved. There has
therefore been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE
CONVENTION
The
applicant complained under Article 8 of the Convention that she had
been deprived of her home and under Article 14 that she had been
discriminated against in that the Restitution Law favoured
pre-nationalisation owners and the State to the detriment of
post-nationalisation owners.
A. Admissibility
The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
Having
regard to its conclusions under Article 1 of Protocol No. 1 and the
approach in its Velikovi and Others judgment, the Court is of
the view that no separate issues arise under Articles 8 and 14 (see,
mutatis mutandis, Velikovi and Others, cited above, §
252).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“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.”
A. Damage
The
applicant submitted a valuation report of September 2008, by an
expert commissioned by her, assessing the value of the apartment she
had lost at 118,200 euros (EUR), and claimed this sum in respect of
pecuniary damage. In respect of non-pecuniary damage, she claimed EUR
8,000.
The
Government considered these claims to be excessive. They referred to
the fact that the applicant had remained in the disputed apartment
until 2007 and to her failure to make use of the bond compensation
scheme.
Applying
the approach set out in similar cases and in view of the nature of
the violation found, the Court finds it appropriate to fix a lump sum
in respect of pecuniary and non-pecuniary damage with reference to
the value of the property taken away from the applicant and all other
relevant circumstances (see Todorova
and Others v. Bulgaria (just
satisfaction), nos. 48380/99,
51362/99, 60036/00 and 73465/01, §§ 10 and 47, 24 April
2008). The Court will also take into account the applicant's failure
to use the bond compensation scheme (see paragraph 26 above and
Todorova and Others,
cited above, §§ 44-46).
Having
regard to the above, to all the circumstances of the case and to
information at its disposal about real property prices in Sofia, the
Court awards the applicant EUR 64,000 in respect of pecuniary and
non-pecuniary damage.
B. Costs and expenses
The
applicant claimed EUR 1,680 for twenty-eight hours of legal work by
her lawyer, Mrs S. Margaritova-Vuchkova, at an hourly rate of EUR 60,
after the communication of the application. In support of this claim
she presented a contract for legal representation and a time sheet.
She requested that any sum awarded under this head be paid directly
to Mrs Margaritova-Vuchkova.
The
applicant claimed another 300 Bulgarian levs (BGN), the equivalent of
EUR 150, already paid by her, for legal work by
Mrs Margaritova-Vuchkova. She also claimed BGN 800 (the
equivalent of EUR 410) for legal fees charged by the lawyer who
had prepared her initial application, BGN 314 (the equivalent of EUR
160) for postage and translation for the proceedings before the Court
and BGN 432 (the equivalent of EUR 220) for the cost of the valuation
report she submitted. In support of these claims she presented the
relevant receipts.
Separately,
the applicant claimed BGN 500 (the equivalent of EUR 255) for
work by her lawyer in the domestic proceedings for compensation bonds
(see paragraph 11 above). She submitted the relevant receipt.
The
Government considered these claims to be excessive.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
In
respect of the sum to be paid to Mrs Margaritova-Vuchkova, the Court
considers that the number of hours of work claimed is excessive. In
view thereof, and also considering that she was not involved in the
initial stage of the proceedings and has represented other applicants
in identical cases (see Velikovi and Others, cited above, §§
19, 53, 72 and 95), the Court awards EUR 700 under this head, to be
transferred directly to the bank account of Mrs Margaritova-Vuchkova.
In
respect of the remaining costs and expenses for the proceedings
before the Court, the Court, having regard to the information in its
possession, finds that they were actually and
necessarily incurred and reasonable as to quantum. It thus awards the
whole sum of EUR 940.
In
respect of the expenses for legal fees incurred in the domestic
proceedings for compensation bonds, the Court notes that in 2006 when
the proceedings started the authorities' approach to such requests
for compensation was not yet clear. Only later did it transpire that
such requests had no prospects of success (see paragraph 11 above).
As the proceedings the applicant brought were directly related to the
violation of Article 1 of Protocol No. 1 found in the present case,
in that the applicant attempted to obtain at least partial
compensation, the Court considers that the expenses in question were
necessarily incurred (see, mutatis
mutandis, Krushev
v. Bulgaria, no. 66535/01, §§
63-65, 3 July 2008, and Simova and
Georgiev v. Bulgaria, no.
55722/00, § 49, 12 February 2009).
The Court also considers that they are reasonable as to quantum and
awards the applicant the full amount (EUR 255) claimed under this
head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
Holds that no separate issues arise under
Articles 8 and 14 of the Convention;
Holds
(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 at the date of
settlement:
i. EUR
64,000 (sixty-four thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
ii. EUR
1,895 (one thousand eight hundred and ninety-five euros), plus any
tax that may be chargeable to the applicant, in respect of costs and
expenses, EUR 700 (seven hundred euros) of which is to be paid
directly into the bank account of the applicant's legal
representative;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 2 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President