by Maria Petrova JELEVA and Others
The European Court of Human Rights (Fifth Section), sitting on 1 December 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
Pavlina Panova, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 3 December 2003,
Having regard to the partial decision of 1 April 2008,
Having regard to the Government’s request to strike the case out of the list of cases and the text of their unilateral declaration made with a view to resolving the application,
Having regard to the applicants’ comments on the Government’s unilateral declaration,
Having deliberated, decides as follows:
The applicants, Mrs Maria Petrova Jeleva, Mrs Zlatka Gospodinova Nikolova and Mrs Rositsa Gospodinova Krushovska, are Bulgarian nationals who were born in 1921, 1942 and 1946, respectively, and live in Burgas. They were represented before the Court by Mrs S. Margaritova Vuchkova, a lawyer practising in Sofia.
The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Dimova, of the Ministry of Justice.
Judge Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from sitting in the case. On 30 January 2009 the Government appointed in her stead Ms Pavlina Panova as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1 of the Rules of the Court).
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In December 1968 Mr G.N., husband of the first applicant and father of the second and third applicants, purchased from the Burgas municipality a three-room apartment which had become State property by virtue of the nationalisations carried out by the communist authorities after 1947.
In the beginning of 1993 Mrs I.M., heir of the former pre-nationalisation owner of the apartment, brought proceedings against Mr G.N. under section 7 of the Law on the Restitution of Ownership of Nationalised Real Property seeking the nullification of his title and the restoration of her own title. The first applicant, who was co-owner of the apartment and lived there with her husband, Mr G.N., was formally constituted as a co-defendant in 1997.
On 31 January and 16 March 1994 the Burgas District Court and the Burgas Regional Court found the claim to be inadmissible. On 6 July 1995 the Supreme Court (later Supreme Court of Cassation) quashed the lower courts’ decisions and remitted the case.
After a fresh examination of the case, on 24 April 1996 the District Court dismissed Mrs I.M.’s claim. On 25 November 1996 the Regional Court quashed that judgment and remitted the case.
After Mr G.N.’s death in March 1997, his daughters – the second and third applicants – also joined the proceedings.
In a judgment of 28 May 1997 the District Court dismissed once again Mrs I.M.’s claim. On 10 November 1997 the Regional Court upheld that judgment. On 25 May 1999 the Supreme Court of Cassation quashed the judgment of the Regional Court and remitted once again the case with instructions that further evidence be collected.
Following a new examination of the case, on 12 December 2000 the Regional Court dismissed the claim against the applicants.
On 30 April 2002 the Supreme Court of Cassation quashed the judgment of the Regional Court and decided to proceed with examining the merits of the case. In a final judgment of 17 July 2003 it found that the applicants’ title to the disputed apartment was null and void.
The applicants complained under Article 6 § 1 of the Convention that the length of the proceedings had been excessive.
The applicants complained of the length of the proceedings under Article 6 § 1 of the Convention which reads, in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
On 30 April 2009 the Court received a unilateral declaration from the Government made with a view to resolving the application. The Government requested the Court to strike out the application of its list of cases in accordance with Article 37 of the Convention.
The declaration, in particular, read:
“[...] The Government hereby wish to express [...] its acknowledgment of the unreasonable duration of the domestic proceedings in which the applicants were involved. At the same time, the Government admit that in the particular circumstances of the case the complaint about the length of the proceedings has not been redressed at the domestic level as required by Article 6 § 1 of the Convention.
Consequently, the Government are prepared to pay to the applicants the amount of [...] EUR 5,000 which they consider reasonable in the light of the Court’s case law. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into Bulgarian [levs] at the exchange rate applicable at the time of payment, and will be free of any taxes that may be chargeable to the applicants. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the [Convention]. [...]
The Government, therefore, request that this application be struck out of the Court’s list of cases pursuant to Article 37 § 1(c) of the Convention. [...]”
In their written reply dated 3 June 2009 the applicants requested the Court to continue examining the case as they considered that the sum offered by the Government was insufficient. Furthermore, they warned that in case the application was struck out of the list the Government would not take any general measures to prevent future similar violations.
The Court recalls that Article 37 § 1(c) of the Convention enables it to strike a case out of its list where:
“[...] for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Article 37 § 1 in fine includes the proviso that:
“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court also recalls that in certain circumstances it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
Having regard to the acknowledgements contained in the Government’s declaration, as well as to the amount of compensation proposed, which is compatible with the amounts awarded in similar cases, the Court considers that it is no longer justified to continue the examination of the present application, within the meaning of Article 37 § 1(c).
In view of its extensive and clear case law on length of civil proceedings, including in cases brought against Bulgaria (see, for example, Rachevi v. Bulgaria, no. 47877/99, 23 September 2004; Vatevi v. Bulgaria, no. 55956/00, 28 September 2006; Kambourov v. Bulgaria, no. 55350/00, 14 February 2008), the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine). Accordingly, the application should be struck out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia Westerdiek Peer Lorenzen