European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2010/1220.html
Cite as: [2010] ECHR 1220

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FIFTH SECTION

DECISION

Application no. 26560/05
by Konstantin Konstantinov and Irinka Hristova YAKIMOVI
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 6 July 2010 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Rait Maruste,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna Yudkivska, judges,
Pavlina Panova, ad hoc judge,

and Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 12 July 2005,

Having regard to the partial decision of 3 February 2009,

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 applicant's comments on the Government's unilateral declaration,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Konstantin Konstantinov Yakimov and Ms Irinka Hristova Yakimova, are Bulgarian nationals who were born in 1931 and 1930 respectively and live in Varna. 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 S. Atanasova, 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 as in force at the time).

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1969 the applicants, who are spouses, bought from the Varna municipality an apartment, which had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria after 1947.

On 16 November 1992 the heirs of the former owner of the property brought proceedings against the applicants under section 7 of the Law on the Restitution of Ownership of Nationalised Real Property (“the Restitution Law”). They also sought a rei vindicatio order.

On 13 August 1995 the Varna District Court allowed the rei vindicatio action and held that it was not necessary to examine the action under section 7 of the Restitution Law. On 9 May 1997 the Varna Regional Court set aside that judgment and remitted the case to the Varna District Court with instructions that the action under section 7 be examined.

On 5 June 2000 the Varna District Court gave a new judgment and allowed the claimants' actions, finding, inter alia, that the applicants' title was null and void. The Varna Regional Court upheld this judgment on 7 July 2001.

Upon appeal by the applicants, on 6 January 2003 the Supreme Court of Cassation quashed the judgment of the Regional Court finding that the latter had committed procedural violations and had applied wrongly the law.

Following a fresh exanimation of the case, on 18 June 2003 the Varna Regional Court allowed the claimants' actions. By a final judgment of 8 March 2005 the Supreme Court of Cassation dismissed the applicants' appeal.

COMPLAINT

The applicants complained under Article 6 § 1 of the Convention that the civil proceedings in their case had been excessively lengthy.

THE LAW

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 29 October 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 5,800 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 23 November 2009 the applicants requested the Court to continue examining the case.

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.

Stephen Phillips Peer Lorenzen
Deputy Registrar President