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ANTONOVI v. BULGARIA - 20827/02 [2009] ECHR 1423 (1 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1423.html
Cite as:
[2009] ECHR 1423
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FIFTH
SECTION
CASE OF ANTONOVI v. BULGARIA
(Application
no. 20827/02)
JUDGMENT
STRASBOURG
1
October 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 Antonovi v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 20827/02) 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 two Bulgarian nationals, Mrs Stefka Kancheva
Antonova and Mr Kostadin Stoilov Antonov (“the applicants”),
on 7 May 2002.
The
applicants were represented by Mr R. Kyosev, a lawyer practising in
Popovo. The Bulgarian Government (“the Government”) were
represented by their Agent, Mrs M. Dimova of the Ministry of Justice.
On
4 September 2007 the Court declared the application partly
inadmissible and decided to communicate to the Government the
applicants' complaint concerning the continued failure of the
authorities to provide the applicants with an apartment in
compensation for their expropriated property. It also decided to rule
on the admissibility and merits of the remainder of the application
at the same time (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1944 and 1935 respectively and live in
Popovo.
By
a mayor's order of 9 May 1988 the applicants' house in Popovo was
expropriated with a view to developing the land as a residential
area. The order was based on sections 95 and 98(1) of the Territorial
and Urban Planning Act of 1973 (“the TUPA”) and provided
that the applicants were to be compensated with a two-room flat in a
building which the municipality intended to construct.
In
1989 the house expropriated from the applicants was demolished.
By
an order of 19 April 1991, under section 103 of the TUPA, the mayor
indicated the exact future flat with which the applicants were to be
compensated. Its surface was to be 73 square metres.
On
an unspecified date in 1991 the municipal authorities opened with the
State Savings Bank a blocked housing bank account in the name of the
applicants and deposited an amount corresponding to the value of
their expropriated real property.
The
construction of the building where the applicants' apartment was to
be located started in 1994.
For
an unspecified period the applicants lived in their son's flat (their
son was allotted a municipal flat). Later they rented other
accommodation and in 1996 were housed in a makeshift dwelling
provided by the municipality.
On
an unspecified date in 2000 the applicants brought an action for
damages against the Popovo municipality for wrongful failure to
fulfil its obligations to build and provide them with a flat.
On
8 January 2001 they complained to the President of the National
Assembly about the failure of the municipality to provide them with a
flat. On 27 March 2001 they filed a complaint with the President of
the Republic.
In
a final judgment of 27 May 2003 the courts awarded the applicants
6,750 new Bulgarian levs (BGN), the equivalent of approximately 3,500
euros (EUR), in respect of non-pecuniary damage. The
indemnification covered the period 1991-2000. The courts held that
the municipality's failure to provide the applicants with a flat was
unlawful and that the situation of uncertainty had caused them to
suffer mental anguish.
In
another judgment - of 31 August 2005 - the applicants' claim for
pecuniary damages (loss of rent which they would have received had
they let the flat) was dismissed as the courts found that this was
speculative.
In
January 2006 the applicants accepted an offer by the municipality to
be compensated with an apartment in a different building. The new
flat which had a surface area of 64 square metres, was delivered to
the applicants in August 2007.
In
September 2007 the applicants brought an action against the Popovo
municipality. They claimed BGN 7,940, which represented the
difference between the value of the flat allotted to them originally
and the flat they received eventually. It appears that these
proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice have been summarised in the
Court's judgments in the cases of Kirilova and Others v. Bulgaria,
nos. 42908/98, 44038/98, 44816/98 and 7319/02, §§
72-83, 9 June 2005, and Lazarov v. Bulgaria, no. 21352/02, §
19, 22 May 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
The
applicants complained under Article 1 of Protocol No. 1 that for many
years the authorities had failed to deliver the apartment to which
they had been entitled as compensation for their expropriated
property.
Article
1 of Protocol No. 1 provides:
“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 argued that the applicants had ceased to be victims of the
alleged violation because they had been awarded damages by the
domestic courts. Further, the Government drew attention to the fact
that the authorities had eventually delivered an apartment.
The
applicants contested these arguments.
A. The Court's competence ratione temporis
The Court notes that the expropriation of the
applicants' property was effected in 1988, that is before 7 September
1992 when the Convention entered into force in respect of Bulgaria.
The Court therefore lacks competence ratione temporis to
examine questions related to the deprivation of property. However,
the alleged interference in the instant case does not concern the
1988 expropriation but the failure of the authorities to deliver an
apartment to the applicants for many years. The Court finds that it
has temporal jurisdiction to examine the issues pertaining to
this failure (see Kirilova and Others v. Bulgaria, cited
above, § 86).
B. Admissibility
The
Court finds that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and not
inadmissible on any other grounds. In particular, it does not accept
the Government's argument that the applicants ceased to be victims of
the alleged violation. For this to hold true, the authorities must
have acknowledged and afforded adequate redress for the alleged
breach of the Convention (see, mutatis
mutandis, Morby
v. Luxemburg (dec.), no. 27156/02,
13 December 2003). In the instant case, the domestic courts
acknowledged that the authorities' failure to deliver an apartment
had been unlawful and awarded the applicants non-pecuniary damages
(see paragraph 13 above). However, their judgments only concerned the
period before 2000 whereas the present complaint covers the period up
to 2007 when the applicants received an apartment. Furthermore, the
applicants did not receive any pecuniary damages. The Court thus
considers that the applicants did not lose their status of victims of
the alleged breach of Article 1 of
Protocol No. 1.
In
so far as the Government contend that the applicants failed to
exhaust domestic remedies because they could have sought compensation
for the period after 2000, the Court points out that in Kirilova
and Others, cited above, § 116,
it found that an action for damages could not directly compel the
authorities to build and deliver the apartment due. Furthermore, as
the applicants could not have predicted when the authorities would
fulfil their obligation to build and deliver the apartment, they
would have been periodically forced to lodge new actions and seek
further compensation. The Court does not consider that they should
have been expected to do this. It thus concludes that further actions
for damages did not represent an effective remedy which the
applicants should have exhausted.
The
Court also notes that the proceedings in which the applicants sought
compensation from the municipality for the difference in value
between the apartment due to them and the apartment they eventually
received are still pending (see paragraph 16 above). However, these
proceedings do not concern redress for the authorities' failure, for
many years, to deliver the apartment, which is at the heart of the
present complaint.
The
complaint must therefore be declared admissible.
C. Merits
The
Court notes at the outset that the present case is very similar to
Kirilova and Others and Lazarov, cited above.
In
the instant case, as in those two cases, the applicants had a vested
right to the flat due to them as compensation for their expropriated
property, and were the victims of interference with their right to
peaceful enjoyment of the possessions on account of the authorities'
failure, over a long period of time, to deliver the real property.
As
in Kirilova and Others and Lazarov, the Court considers
that the situation in the present case comes within the scope of the
first sentence of the first paragraph of Article 1 of Protocol No. 1,
which lays down in general terms the principle of peaceful enjoyment
of property (see Kirilova and Others, cited above, §
105, and Lazarov, cited above, § 28).
In
order to ascertain whether a fair balance has been struck between the
demands of the general interest and the need to protect the
individual's fundamental rights, the Court must examine whether by
reason of the authorities' inaction the applicants had to bear a
disproportionate and excessive burden. In Kirilova and Others
and in Lazarov the Court found that the fair balance required
under Article 1 of Protocol No. 1 had not been achieved due to the
long delays in providing the apartments, the authorities' passive
attitude, and the long period of uncertainty endured by the
applicants. Therefore, the applicants had to bear a special and
excessive burden (see Kirilova and Others, cited above, §
123, and Lazarov, cited above, § 32). As the
circumstances of the present case are identical, the Court sees no
reason to reach a different conclusion. In particular, it does not
consider that the eventual delivery of an apartment to the
applicants, after a delay of more than sixteen years, and the partial
compensation awarded in respect of the period up to 2000, could be
seen as sufficient and timely steps capable of restoring the fair
balance under Article 1 of Protocol No. 1 (see Lazarov,
cited above, § 32).
It
follows that there has been a breach of Article 1 of Protocol No. 1.
II. 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
In
respect of damage, the Court finds it appropriate to adopt the same
approach as in Kirilova and Others v. Bulgaria (just
satisfaction), nos. 42908/98, 44038/98, 44816/98 and 7319/02, 14
June 2007, and Lazarov, cited above, §§ 37-45.
1. Pecuniary damage
The
applicants claimed the following amounts: 1) 24,840 Bulgarian levs
(BGN) in respect of rent which they would have received had they
rented out the apartment between 1991 and 2007; 2) BGN 16,637.40 for
losses allegedly resulting from the fact that they could not use the
sums deposited in their State Savings Bank account (see paragraph 8
above); and 3) BGN 5,780 representing the difference in value between
the apartment the applicants were entitled to and the one they
received in 2007.
The
Government did not express an opinion on the matter.
In
respect of the alleged loss of rent, the Court observes that the
applicants have not shown that they had had alternative housing and,
consequently, that they would have let out the apartment.
Furthermore, the applicants, who lived in their son's apartment and
were later provided with temporary municipal housing, did not claim
that they had incurred expenses in order to find accommodation while
awaiting delivery of the flat. Their claims in respect of alleged
loss of rent are thus unproven. Indeed, this was also the conclusion
of the domestic courts (see paragraph 14 above).
As
regards the alleged loss of earnings resulting from the fact that the
money deposited in the applicants' housing savings account remained
inoperative, the Court does not find a causal link between any such
loss and the violation found in the present case. In particular, it
is obvious that, had the municipality delivered on time the property
due to the applicants, the amount in question would have been paid as
early as 1991 or 1992 to cover the price of the flat (see Lazarov,
cited above, § 42).
Nor
does the Court find it necessary to award the applicants separate
damages on account of the fact that they received a smaller flat, as
the proceedings they brought to obtain damages in this respect are
still pending (see paragraphs 15-16 above).
The
Court nevertheless considers that the applicants have suffered a
certain loss of opportunity on account of not having been able to use
and enjoy the flat for a long period of time (see Kirilova and
Others v. Bulgaria (just satisfaction), cited above, § 33).
Ruling in equity, it awards the two applicants jointly EUR 3,000
under this head.
2. Non-pecuniary damage
In
respect of non-pecuniary damage, the applicants claimed BGN 180,000.
They submitted that they had suffered frustration and anxiety over a
period of many years.
The
Government did not comment.
The
Court considers that the breach of Article 1 of Protocol No. 1 caused
the applicants non-pecuniary damage arising out of the frustration
suffered as a result, firstly, of the prolonged failure of the
authorities to deliver the property to which they were entitled and,
secondly, of the authorities' inability and reluctance to solve their
problem for a long period of time (see Kirilova and Others v.
Bulgaria (just satisfaction), cited above, § 37, and
Lazarov, cited above, § 45). The applicants were further
distressed by the need to live in worse conditions in a makeshift
dwelling (see paragraph 10 above). The Court, ruling in equity, and
also taking into account the fact that the applicants have already
received EUR 3,500 in non-pecuniary damages (see paragraph 13 above),
awards them jointly EUR 3,000.
B. Costs and expenses
The
applicants did not submit claims for costs and expenses. Accordingly,
the Court considers that there is no call to award them any sum under
that 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
1. Declares
admissible the complaint under Article 1 of Protocol No. 1 to the
Convention concerning the prolonged failure of the authorities to
provide the applicants with an apartment in compensation for their
expropriated property;
Holds that there has been a violation of Article
1 of Protocol No.1 to the Convention;
Holds
(a) that
the respondent State is to pay the two applicants jointly, within
three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 6,000 (six thousand euros), plus any tax that may be chargeable,
in respect of pecuniary and non-pecuniary damage, to be converted
into Bulgarian levs at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 1 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President