British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[
Home]
[
Databases]
[
World Law]
[
Multidatabase Search]
[
Help]
[
Feedback]
European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
MITEVA v. BULGARIA - 60805/00 [2009] ECHR 263 (12 February 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/263.html
Cite as:
[2009] ECHR 263
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIFTH
SECTION
CASE OF MITEVA v. BULGARIA
(Application
no. 60805/00)
JUDGMENT
STRASBOURG
12 February 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 Miteva 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,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 20 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 60805/00) 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, Mrs Elena Todorova Miteva
(“the applicant”), on 4 February 2000.
The
applicant was represented by Mr D. Petrov, a lawyer practising in
Varna. The Bulgarian Government (“the Government”) were
represented by their Agent, Mrs M. Dimova.
The
applicant alleged, in particular, that they had been deprived of
their property in violation of Article 1 of Protocol No. 1.
On
9 October 2007 the Court declared the application partly inadmissible
and decided to communicate the complaint concerning the alleged
deprivation of property to the Government. It also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
Judge
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case (Rule 28 of the Rules of Court). On 1 October
2008, the Government, pursuant to Rule 29 § 1 (a), informed the
Court that they had appointed in her stead another elected judge,
namely Judge Lazarova Trajkovska.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1925 and lives in Varna.
In 1968 the applicant and her
husband purchased from the State a three-room flat of approximately
76 sq. m in Varna. The flat had become State-owned by virtue of the
nationalisations carried out by the communist regime in Bulgaria in
1947 and the following years.
In 1993, shortly after the
Restitution Law (ЗВСОНИ)
was passed, the former pre-nationalisation owners brought proceedings
under section 7 of that law against the applicant and her husband,
seeking the nullification of their title and the restoration of the
property.
The applicant's husband passed
away in June 1996. She was his sole heir and the proceedings
continued against her.
On 29 June 1996 the Varna
District Court found that the 1968 transaction had been null and void
and allowed the claim. On appeal, on 25 July 1997 the Varna
Regional Court upheld the lower court's judgment. The courts found
that the 1968 contract had been signed by a deputy to the mayor
instead of the mayor (председател
на изпълнителния
комитет на
районния народен
съвет)
and that the file did not contain
the requisite approval by the Minister of Architecture and Building
Planning. The courts also found that the price of the flat, 5,352
levs, had not been determined correctly by the administration (the
judicial expert ordered by the court in the 1996 proceedings
estimated the price in 1968 at 5,725 levs).
In 1999 the applicant requested
the reopening of the proceedings, stating that she had not been duly
summoned for the Regional Court's hearing held on 2 July 1997. In a
judgment of 22 July 1999 the Supreme Court of Cassation rejected the
request for reopening.
In 2000 it became possible for persons in the
applicant's situation to obtain compensation from the State, in the
form of bonds which could be used in privatisation tenders or sold to
brokers. The applicant did not avail herself of that opportunity
within the relevant three-month time-limit. She applied for bonds in
June 2007 but was informed by a letter of 5 July 2007 from the Varna
Regional Governor that she was not entitled to compensation in the
form of bonds.
The applicant did not leave the
property voluntarily. In 1998 the restored owners instituted
enforcement proceedings. The applicant was evicted on 16 August 2006.
On
15 November 2006 the applicant was granted the tenancy of a two-room
municipal flat in Varna.
II. RELEVANT 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).
After
January 2000, section 9 of the Compensation Law (ЗОСОИ)
provided that persons who had lost their dwellings pursuant to
section 7 of the Restitution Law, as well as pre-nationalisation
owners whose claims under that provision were dismissed after 22
November 1998, could apply for compensation bonds within three months
of January 2000 or within two months of the final judgment in their
case. In June 2006 an amendment of section 7(3) of the Restitution
Law enabled persons currently in possession of compensation bonds to
obtain payment at face value from the Ministry of Finance. On 8 May
2007 the Government published regulations implementing that
provision.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
The
applicant complained that she had been deprived of her property in
violation of 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 contested that argument.
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 stated that she and her husband had bought their flat in
good faith and had not been responsible for the administrative
omissions that had led to the nullification of their title. She
maintained that no adequate compensation had been available to her
for the deprivation of her property.
The
Government stated that the restitution laws
passed after the fall of communism were aimed at restoring justice.
In the applicant's case, the courts had applied the relevant law
correctly and declared the applicant's title null and void on account
of serious violations of the law, in particular the fact that the
price of the flat had not been properly determined, and argued that
the applicant and her husband had in all probability been aware of
these irregularities. The requisite fair balance had been struck as
the applicant had been entitled to compensation in the form of bonds
but had failed to submit a request in due time. Moreover, after her
eviction from her flat she had been provided with a municipal
dwelling.
The
Court notes that the present case concerns the same legislation and
issues as Velikovi and Others
(cited above).
The
facts complained of undoubtedly constituted an interference
with the applicant's property rights and fall
to be examined under the second sentence of the first paragraph of
Article 1 of Protocol No. 1 as a deprivation of property.
The
Court must examine, therefore, whether the deprivation of property at
issue was lawful, was in the public interest and struck a fair
balance between the demands of the general interest of the community
and the requirements of the protection of the individual's
fundamental rights.
The Court notes that the
interference was based on the relevant law and pursued an important
aim in the public interest: to restore justice and respect for the
rule of law. As in Velikovi
and Others (cited above, §§ 162 176), it
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.
26. 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 in 1968
a relevant document had been signed by the deputy of the official in
whom the relevant power had been vested, a required administrative
approval was not found in the file and the administration had wrongly
determined the price of the flat. The irregularities were clearly
imputable to the State administration; moreover, it does not appear
that the applicant and her husband had any possibility of interfering
with the administrative formalities. As regards the price of the
flat, the Court does not consider that a slight difference between
the estimates made in 1968 and in 1996 (see paragraph 10 above) could
be seen as a substantive unlawfulness (see, by contrast, the case of
Wulpe
in the Velikovi and Others
judgment, cited above, § 204). Moreover, the Court sees no
indication that the flat was obtained or the price determined through
abuse.
In
view of the nature of the irregularities that led to the
nullification of the applicant's title, the present case is similar
to those of Bogdanovi
and Tzilevi,
examined in its Velikovi and Others
judgment (cited above, §§ 220 and 224), where the Court
held that in such cases the fair balance required by Article 1 of
Protocol No. 1 could not be achieved without adequate compensation.
The applicant has not received any compensation. The
Court notes, however, that she was not evicted from the property
until August 2006 and that she was granted the tenancy of a municipal
flat only a few months later, in November 2006.
Concerning the available compensation, the Court
observes that in accordance with the relevant domestic law and
practice (see paragraph 16 above), she was entitled to compensation
in the form of bonds after January 2000. The applicant did not apply
for bonds in due time and, as a result, she forwent the opportunity
to obtain at least between 15% and 25% of the value of the flat, as
that was the rate at which bonds were traded until the end of 2004
(see Velikovi and Others, cited above, §§ 226-228).
The fact that bond prices rose at the end of 2004 or that the
applicable law was amended in 2006 and provided for payment of the
bonds at face value cannot lead to the conclusion that the
authorities would have secured adequate compensation for the
applicant. Indeed, the applicant could not have foreseen bond prices
or legislative amendments and the Court cannot speculate whether she
would have waited four or more years before cashing her bonds.
Furthermore, the legislation on compensation changed frequently and
was not foreseeable (ibid., §§ 191 and 226).
In
these circumstances, the Court finds that no clear and foreseeable
possibility of obtaining compensation was secured to the applicant.
Her failure to use the bonds compensation scheme will have to be
taken in consideration under Article 41, but cannot affect decisively
the outcome of her complaint under Article 1 of Protocol No. 1.
In
view of the above considerations, there has been a violation 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
The
applicant claimed 120,000 euros (EUR) in respect of the current
market value of the flat. However, she did not submit an expert
report or any other document on the basis of which this estimate had
been made.
The
Government did not comment.
To
determine the amount to be awarded, the Court observes that it stated
above that the applicant's failure to use the bonds compensation
scheme would have to be taken into consideration under Article 41 of
the Convention. It notes that had the applicant made use of that
scheme, she could have obtained between 15% and 25% of the value of
the flat. The Court considers therefore that it must apply an
appropriate reduction of the just satisfaction award on account of
the applicant's failure to make use of the possibility to obtain
partial compensation. It accepts that the reduction must be modest,
having regard to the fact that the relevant legislation on
compensation was subject to frequent amendments in contradictory
directions and was thus unpredictable and generated legal uncertainty
(see paragraph 29 above and Todorova and Others, cited above,
§ 46).
Having
regard to the above considerations, all the circumstances of the case
and the information at its disposal about the real-estate market in
Varna, the Court awards the applicant EUR 48,000 in respect of
pecuniary damage.
B. Costs and expenses
The
applicant did not submit a claim for cost and expenses. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
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 remainder of the application
admissible;
Holds that there has been a violation of Article
1 of Protocol No. 1;
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, EUR 48,000 (forty-eight
thousand euros), plus any tax that may be chargeable, in respect of
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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President