In the case of Georgieva and Mukareva 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,
Isabelle Berro-Lefèvre, judges,
Pavlina Panova, ad hoc judge,
and Stephen Phillips, Deputy Section
Registrar,
Having deliberated in private on 6 July 2010,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (no.
3413/05) 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, Ms Dimka Nedelcheva
Georgieva and Ms Krasimira Nikolova Mukareva (“the applicants”), on 17 December
2004.
2. The applicants were represented by Ms S.
Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government
(“the Government”) were represented by their Agents, Ms N. Nikolova and Ms M.
Dimova, of the Ministry of Justice.
3. The applicants alleged
that they had been deprived of their property in violation of Article 1 of
Protocol No. 1 and Articles 6 § 1, 13 and 14 of the Convention.
4. On 2 March 2009 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 of the Convention).
5. Judge Kalaydjieva, the judge elected in respect
of Bulgaria, withdrew from sitting in the case. On 24 March 2010 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were born in 1935 and 1957
respectively and live in Varna. They are mother and daughter.
7. In 1985 the first applicant and her husband
bought from the Varna municipality an apartment of 54 square metres, situated
in the centre of the city, which had become State property by virtue of the
nationalisations carried out by the communist regime in Bulgaria after 1945.
8. On an unspecified date after that the first
applicant’s husband died and his property was inherited by the two applicants.
9. In February 1992 the Restitution Law entered into
force.
10. On 8 July 1992 one of the heirs of the former
pre-nationalisation owner of the flat brought proceedings against the
applicants under section 7 of the Restitution Law. In a final judgment of the Supreme
Court of Cassation of 7 July 1997 the action was allowed partially, the
domestic courts finding that the plaintiff could only claim half of the
property.
11. The courts found that the applicants’ title over
half of the property was null and void on two grounds: 1) their apartment had
been part of a bigger apartment, which had, prior to 1985 and in breach of the
relevant construction requirements, been divided by the State into two; and 2)
the area where the apartment was located had been
earmarked for the construction of buildings of more than three storeys and the
applicants’ building was of two storeys; the relevant legislation at the time
prohibited the sale of apartments in such buildings.
12. On 20 November 1998 the applicants requested to
be compensated with compensation bonds for half of the property. The request
was granted and in January 2003 the applicants received bonds for 10,300
Bulgarian levs (BGN), the equivalent of approximately 5,280 euros (EUR), in
accordance with an expert valuation of a half of their apartment drew up in
2001 or 2002. On 25 November 2004 the applicants sold their bonds for
approximately 50% of their face value and received BGN 5,145, the equivalent of
EUR 2,640.
13. In the meantime, on 8 December 1997, following a
legislative amendment whereby the time-limit to bring an action under section 7
of the Restitution Law was renewed, the remaining heirs of the former
pre-nationalisation owner brought such an action against the applicants regarding
the second half of the apartment.
14. The action was granted in a final judgment of
the Supreme Court of Cassation of 14 July 2004. Putting forward arguments
identical to the ones concerning the first half of the apartment (see paragraph
11 above), the courts found that the applicants’ title to the second half of
the property was likewise null and void.
15. The applicants did not apply for compensation
bonds for that half of the apartment, as they were entitled to.
16. On several occasions after 1997 the first
applicant requested to be provided with municipal housing but was informed that
no such housing was available. By 2003 the two applicants and the second
applicant’s family were still living in the disputed flat. In December 2003
they vacated it and rented another apartment. In 2004 the second applicant
bought another flat and her family and the first applicant moved in there.
II. RELEVANT BACKGROUND FACTS, DOMESTIC LAW AND
PRACTICE
17. The relevant background facts and domestic law
and practice have been summarised in the Court’s judgments in the cases 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) and Tsonkovi v. Bulgaria (no.
27213/04, §§ 14-15, 2 July 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.
1 OF THE CONVENTION
18. The applicants complained that that they had been deprived of their property arbitrarily,
through no fault of their own and without adequate compensation. They relied on
Article 1 of Protocol No. 1 and Articles 6 § 1, 13 and 14 of the Convention.
19. The Court considers
that the complaint falls to be examined solely under 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.”
20. The Government argued that, in so far as it
concerned the first half of the disputed apartment, the applicants’ complaint
had been submitted outside the time-limit provided for under Article 35 § 1 of
the Convention as the final domestic decision in the proceedings under section
7 of the Restitution Law had been given on 7 July 1997 (see paragraph 10 above).
In any event, the Government considered that the taking of the applicants’
property had pursued a legitimate aim in the public interest and had been
proportionate to that aim. In so far as the complaint concerned the second half
of the apartment, the Government pointed out that the applicants had been
entitled to seek compensation through bonds.
21. The applicants contested these arguments.
A. Admissibility
22. As the Government indicated (see paragraph 20
above), the domestic proceedings under section 7 of the Restitution Law concerning
the first half of the applicants’ property ended on 7 July 1997, whereas the present
application was lodged on 17 December 2004 (see paragraphs 1 and 10 above). The
Court must therefore examine whether the applicants have complied with the
six-month rule under Article 35 § 1 of the Convention.
23. In a number of cases similar to the ones
examined in Velikovi and Others (cited above) the Court has held that
where the relevant events concerned not only the deprivation of property, but
also ensuing developments concerning the right to compensation, they should be
viewed as a situation continuing until any compensation issues were settled (see
Shoilekovi and Others v. Bulgaria (dec.), nos. 61330/00, 66840/01 and
69155/01, 18 September 2007, Kayriakovi v. Bulgaria, no. 30945/04, § 24‑29,
7 January 2010, and Georgievi v. Bulgaria, no. 10913/04, §§ 26‑27,
7 January 2010).
24. The Court sees no reason to depart from this
approach in the present case and finds therefore that the relevant events
should be viewed as a situation continuing after the final court decision
depriving the applicants of the first half of their property and until their
right to compensation was realised with finality. This occurred on 25 November
2004 when the applicants sold their compensation bonds (see paragraph 12
above). The present application was lodged on 17 December 2004, less than six
months after the above date, and also less than six months after 14 July 2004,
the date of the final judgment concerning the second half of the apartment (see
paragraph 14 above). Accordingly, the Court concludes that the six-month
time-limit under Article 35 § 1 of the Convention has been complied with.
25. Furthermore, the Court considers that the present
complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
26. The Court notes that the present complaint
concerns the same legislation and issues as Velikovi
and Others (cited above).
27. The interference with the applicants’ property
rights was based on the Restitution Law, which pursued in principle an
important aim in the public interest, namely to restore justice and respect for
the rule of law in the transitional period after the fall of the totalitarian
regime in Bulgaria.
28. Turning to the question of whether the
interference with the applicants’ rights fell within the scope of that
legitimate aim and if so, whether it was proportionate, the Court considers it
appropriate to examine separately the circumstances concerning the first and
second halves of the applicants’ apartment.
1. The first half of the apartment
29. Applying the criteria set out in Velikovi
and Others (cited above, §§ 183-192), the Court considers that
in respect of the first half of the applicants’ apartment there was no
deviation from the transitional character of the restitution legislation, since
the action under section 7 of the Restitution Law was brought in July 1992 (see
paragraph 10 above), that is, within the initial one-year time-limit following
the Restitution Law’s entry into force.
30. The applicants’ title to the first half of the
apartment was declared null and void, on the first place, because their
apartment had been part of a bigger apartment, which had, in breach of the
relevant construction requirements, been divided into two by the State (see paragraph 11 above). This deficiency is clearly
attributable to authorities, not the applicants (see Yurukova
and Samundzhi v. Bulgaria, no. 19162/03, § 24, 2 July 2009, and Bachvarovi v. Bulgaria, no. 24186/04, § 24, 7 January 2010).
31. The domestic courts also found that the applicants’
title to the first half of their apartment was null and void because the
municipality had decided to sell to the first applicant and her husband a flat
in a two-storey building in an area where higher buildings had been planned (see paragraph 11 above). The Court has already
dealt with similar cases (see Dimitar and Anka Dimitrovi v.
Bulgaria, no. 56753/00, § 29, 12 February
2009, and Bornazovi v. Bulgaria
(dec.), no. 59993/00, 18 September 2007) and has found that such a shortcoming
could not be characterised as a material breach of the relevant housing
regulations, and that, furthermore, in so far as the municipality’s decision
violated relevant building planning rules, the responsibility for this error
lay entirely with the municipal authorities. The Court sees no reason to reach
different conclusions in the present case.
32. In view of the foregoing, the Court concludes
that the State administration was responsible for the defects that led to the
annulment of the applicants’ title to the first half of the property. Therefore,
it considers that in so far as it concerns the first half of the property the
present case is similar to those of Bogdanovi
and Tzilevi,
examined in Velikovi
and Others (cited above, §§ 220 and 224), and that, accordingly, the
fair balance required by Article 1 of Protocol No. 1 could not be achieved
without adequate compensation.
33. The question thus arises whether adequate
compensation was provided to the applicants.
34. The applicants took all necessary steps under
the bond compensation scheme as it operated at the time but only obtained the
equivalent of EUR 2,640, about 50% of the value of a half of their
apartment as of 2001 or 2002 when it was accessed by an expert (see paragraph
12 above).
35. The Court considers that there were no
circumstances justifying this inadequate compensation. It thus finds that in
respect of the first half of the applicants’ apartment the authorities failed
to strike a fair balance between need to protect the applicants’ rights and the
public interest.
2. The second half of the apartment
36. The Court notes that the action against the
applicants regarding the second half of the apartment was not brought within
the initial one-year time-limit after the adoption of the Restitution Law in
1992, but in July 1997, after that time-limit had been renewed (see paragraph
13 above).
37. In the case of Velikovi and Others (cited
above, see §§ 166, 172, 179 and 189 of the judgment), the Court found that the
measures introduced by section 7 of the Restitution Law – which authorised the
challenging of decades-old property titles and the taking of private property as
compensation for the nationalisations carried out by the State in the 1940s –
could only be seen as proportionate to the legitimate aim of restoring justice
where applied as an exceptional transitional step of short duration in the
period of social transformation from a totalitarian regime to democracy.
38. In the case of Tsonkovi (cited above),
where, similarly to the present case, the action under section 7 of the
Restitution Law had been brought after the expiry of the initial time-limit in
1993 and its renewal in 1997, the Court found that the interference with the
applicants’ property rights could not be seen as falling within the scope of
the legitimate aims that the restitution legislation pursued in principle and
was in disregard of the principle of legal certainty. The Court held that
nothing short of payment reasonably related to the market value of the flat
lost could have maintained the requisite fair balance under Article 1 of
Protocol No. 1 (see §§ 24-27 of the judgment).
39. The Court sees no reason to apply a different
approach in the case in hand, in so far as it concerns the second half of the
applicants’ apartment. Therefore, similarly to Tsonkovi, it finds that
the interference with the applicants’ property rights disregarded the principle
of legal certainty and that nothing short of compensation reasonably related to
the market value of the second half of the apartment could restore the fair
balance required under Article 1 of Protocol No. 1.
40. However, the
applicants have not received the market value of the second half of their
apartment and the Government have not shown that compensation reasonably
related to the market value of the second half of the apartment was secured to them with sufficient clarity and certainty
(see Tsonkovi, cited above, § 28)
3. Conclusion
41. In view of the foregoing, the Court concludes
that the taking of applicants’ property did not meet the requirements of Article
1 of Protocol No. 1 and that there has therefore been a violation of that
provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
42. 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
43. In respect of pecuniary damage the applicants
claimed jointly the value of the apartment they had lost. They presented a
valuation report prepared in September 2009 by experts commissioned by them,
assessing the value of the apartment at EUR 61,000 euros.
44. In respect of pecuniary damage, the applicants
also claimed BGN 900, the equivalent of EUR 460, paid by them for rent
after they had vacated the apartment (see paragraph 16 above). Referring to the
fact that the second applicant had to take a bank loan to buy a new apartment,
they claimed another EUR 8,092, equalling the sum she had paid in interest
between 2004 and 2009. In support of those claims they submitted the relevant
receipts.
45. In respect of non-pecuniary damage, the
applicants claimed EUR 14,000.
46. The Government contested these claims.
47. In view of its conclusions on the merits of the
applicants’ complaints, the Court considers it appropriate to award a lump sum
covering both pecuniary and non-pecuniary damage (see, mutatis mutandis,
Todorova and Others v. Bulgaria (just satisfaction), nos. 48380/99, 51362/99, 60036/00
and 73465/01, § 10, 24 April 2008). In assessing those damages, it will take
into account its findings above in respect of the two halves of the applicants’
apartment (see paragraphs 29-40 above) and the fact that the applicants
received EUR 2,640 from the sale of the compensation bonds they had awarded for
the first half of the property (see paragraph 12 above).
48. Having regard to the above, all the
circumstances of the case and the information at its disposal about real
property prices in Varna, the Court awards jointly to the two applicants EUR 49,000
in respect of pecuniary and non-pecuniary damage.
B. Costs and expenses
49. The applicants claimed EUR 2,580
for forty-three hours of legal work by their lawyer, Ms S. Margaritova-Vuchkova,
at an hourly rate of EUR 60. In support of this claim they presented a contract
for legal representation and a time sheet. They requested that any sum awarded
under this head be paid directly into Ms Margaritova-Vuchkova’s bank account,
apart from 800 Bulgarian levs (BGN), the equivalent of EUR 410, already
paid by them for her work.
50. The applicants claimed another BGN 472.80, the
equivalent of EUR 240, for translation and postage for the proceedings
before the Court and for the cost of the valuation report they presented (see
paragraph 43 above), and BGN 1,078, the equivalent of EUR 550, for expenses
incurred by them in the domestic proceedings under section 7 of the Restitution
Law. In support of these claims, amounting to EUR 790 in total, the applicants
presented the relevant receipts.
51. The Government contested the applicants’ claims.
52. In respect of the Ms
Margaritova-Vuchkova’s legal fees, the Court considers that the number
of hours of work claimed is excessive. In view thereof, and also noting that Ms
Margaritova-Vuchkova has represented other applicants
in identical cases (see, for example Panayotova v. Bulgaria, no. 27636/04, 2 July 2009,
and Tsonkovi, cited above), the Court awards EUR 2,000 under this
head, EUR 410 of which to be paid to the applicants and the remainder, EUR 1,590,
directly into the bank account of Ms Margaritova-Vuchkova.
53. In respect of the remaining claims, the Court,
having regard to the information in its possession, finds that the costs and
expenses claimed were actually and necessarily incurred and are reasonable as
to quantum. It thus awards the whole sum sought, that is, EUR 790, to be paid
to the applicants.
C. Default interest
54. 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 the application admissible;
2. Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
3. Holds
(a) that the respondent State is to pay the
applicants jointly, 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 49,000 (forty-nine thousand euros) in
respect of pecuniary and non-pecuniary damage, plus any tax that may be
chargeable;
(ii) EUR 2,790 (two thousand seven hundred ninety euros),
plus any tax that may be chargeable to the applicants, in respect of costs and
expenses, EUR 1,590 (one thousand five hundred ninety euros) of which is to be
paid directly into the bank account of the applicants’ 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;
4. Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 2 September
2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer
Lorenzen
Deputy Registrar President
