In the case of Dzhagarova and Others v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Peer Lorenzen, President,
Karel Jungwiert,
Rait Maruste,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna Yudkivska, 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. 5191/05) 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 four Bulgarian nationals, Ms Tsvetana Petkova Dzhagarova, Mr Martin Georgiev Dzhagarov, Ms Rositsa Georgieva Kirova
and Mr Georgi Georgiev Dzhagarov, (“the applicants”), on 25 January
2005
2. The applicants were
represented by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent,
Ms R. Nikolova, of the Ministry of Justice.
3. 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 Court).
4. On 3 March 2009 the
Court declared the application partly inadmissible and decided to communicate to
the Government the complaint concerning the length of the civil proceedings. 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
THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1935, 1956, 1963 and 1973 respectively. The first, third and
fourth applicants live in Sofia and the second applicant lives in Adelaide, Australia.
6. In 1977 the first applicant and her husband, who
are the parents of the second, third and fourth applicants, bought from the
Sofia municipality a flat of 261 square metres which had become State property by virtue of the nationalisations
carried out by the communist regime in Bulgaria in 1947 and the following
years.
7. On 18 August 1992 the
heirs of the pre-nationalisation owner of the flat brought proceedings under
section 7 of the 1992 Law on the Restitution of
Ownership of Nationalised Real Property against the first applicant and
her husband, seeking to establish that their title
was null and void. They also sought a rei vindicatio order.
8. On 30 November 1995 the first applicant’s husband
died and the second, third and fourth applicants joined the proceedings as his
heirs.
9. On 17 April 1997 the Sofia District Court allowed
the claimants’ actions. On an appeal by the applicants, on 24 September 2002
its judgment was upheld by the Sofia City Court. On further appeal, the Supreme
Court of Cassation upheld the lower courts’ judgments on 28 July 2004. The
courts found that in 1977 the first applicant and her husband had purchased the
flat in breach of the law and their title had therefore been null and void.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
10. The applicants complained that the length of the
proceedings in their case had been incompatible with the “reasonable time” requirement,
laid down in Article 6 § 1 of the Convention, which, in so far as relevant,
reads:
“In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal...”
11. The Government considered that the length of the
proceedings had not been excessive, in view, in particular, of the complexity
of the case and the conduct of the applicants. The applicants contested these
arguments.
12. The Court notes that the action against the
first applicant and her husband was brought on 18
August 1992 (see paragraph 7 above). However, the period to be taken
into consideration began on 7 September 1992, when the Convention entered into
force in respect of Bulgaria. The period in question ended on 28 July 2004,
when the Supreme Court of Cassation gave a final judgment (see paragraph 9
above). It thus lasted eleven years, ten months and twenty-one days for three
levels of jurisdiction.
A. Admissibility
13. 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
14. The reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and with
reference to the following criteria: the complexity of the case, the conduct of
the applicants and the relevant authorities and what was at stake for the
applicants in the dispute (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000-VII).
15. The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to the one in
the present case (see Frydlender, cited above).
16. Having examined all the material submitted to
it, the Court does not see a reason to reach a different conclusion in the
present case. It notes that the case was examined by the domestic courts with
substantial delays. In particular, the Sofia District Court examined those
actions over more than four and a half years, from 7 September 1992 to 17 April
1997 (see paragraphs 9 and 12 above). It then took the Sofia City Court more
than five years, from 17 April 1997 to 24 September 2002, to examine the
applicants’ appeal against the District Court’s judgment (see paragraph 9
above). The Court does not consider that the case was of particular complexity,
or that the applicants were responsible for any substantial delay.
17. The Court therefore concludes that the length of
the proceedings failed to meet the “reasonable time” requirement. There has
accordingly been a breach of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
18. 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
19. For non-pecuniary damage, the first applicant
claimed 9,000 euros (EUR) and the other three applicants claimed EUR
5,000 each.
20. The Government considered these claims to be
excessive.
21. The Court considers that the applicants must
have sustained non-pecuniary damage. Ruling on an equitable basis, it awards the
first applicant, Ms Tsvetana Petkova Dzhagarova, who was a party to the
impugned proceedings from their beginning, EUR 4,000 under this head, plus any
taxes that may be chargeable.
22. As to the remaining applicants, Mr Martin Georgiev Dzhagarov, Ms Rositsa Georgieva
Kirova and Mr Georgi Georgiev Dzhagarov, the Court refers to its recent
finding in the case of Ergül and Others v. Turkey (no. 22492/02, § 45, 20 October 2009) that whenever, in a case concerning length of
proceedings, there were multiple applicants who had inherited one single party
to the impugned proceedings, it would award non-pecuniary damages as for one
single applicant because the increase of the number of applicants could not be
imputable to the respondent Government. On this basis, and noting that
the second, third and fourth applicants in the case inherited from their father
against whom the proceedings had initially been brought (see paragraphs 7-8
above), the Court awards jointly to those three applicants EUR 4,000, plus any
taxes that may be chargeable.
B. Costs and expenses
23. The applicants also claimed EUR 1,680 and 850
Bulgarian levs (the equivalent of approximately EUR 440) for the costs and
expenses incurred before the Court. They presented a time-sheet for the work
performed by their legal representative, a contract for legal representation
and several receipts.
24. The Government contested these claims.
25. According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to the circumstances
of the case and the above criteria, the Court considers it reasonable to award,
jointly to the four applicants, the sum of EUR 600 covering costs under all
heads, plus any charges that may be chargeable on the applicants.
C. Default interest
26. 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 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay, 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) to the first applicant, Ms Tsvetana Petkova
Dzhagarova, EUR 4,000 (four thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) jointly to the remaining three applicants, Mr Martin Georgiev Dzhagarov, Ms Rositsa Georgieva Kirova
and Mr Georgi Georgiev Dzhagarov, EUR 4,000
(four thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(iii) to the four applicants jointly, EUR 600 (six
hundred euros), plus any tax that may be chargeable to them, in respect of
costs and expenses;
(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
