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STOYCHEVA v. BULGARIA - 43590/04 [2011] ECHR 1123 (19 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1123.html
Cite as:
[2011] ECHR 1123
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FOURTH
SECTION
CASE OF
STOYCHEVA v. BULGARIA
(Application
no. 43590/04)
JUDGMENT
STRASBOURG
19 July 2011
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 Stoycheva v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Sverre
Erik Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 43590/04) 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, Ms Veska Dimitrova
Stoycheva (“the applicant”), on 23 November 2004.
The
applicant, who had been granted legal aid, was represented by Mrs S.
Stefanova and Mr M. Ekimdzhiev, lawyers practising in Plovdiv. The
Bulgarian Government (“the Government”) were represented
by their Agent, Mrs R. Nikolova of the Ministry of Justice.
The
applicant alleged that the authorities’ failure to enforce the
final court judgment of 1997 restoring her property rights over a
plot of land deprived her of her right to the peaceful enjoyment of
her possessions. She relied on Article 1 of Protocol No. 1 and
Article 13 of the Convention.
On
11 December 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1). The application was
subsequently assigned to the Fourth Section following the
recomposition of the Court’s Sections on 1 February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1937 and lives in Plovdiv.
The
applicant’s father owned one quarter of a plot of land with a
total surface area of 2,184 square metres, situated in Plovdiv. In
the period between 1954 and 1956 the plot was expropriated for public
use. In 1956 the applicant’s father received, as compensation
for the expropriation, a plot of land in the same area, which he sold
in 1957 to a third person.
On
8 April 1992, after the entry into force of the Law on the
Restitution of Property Expropriated under Building Planning
Legislation (“the 1992 Law” – see paragraph 26
below), the applicant submitted a request to the mayor of Plovdiv
(“the mayor”) for the revocation of the expropriation and
the restitution of the expropriated property to her as an heir of the
person from whom it had been expropriated.
The
mayor dismissed her request, finding that the property could not be
restored to the applicant as a bridge had been built over it.
The
applicant appealed to the Plovdiv Regional Court. In the course of
the proceedings, in 1995, a court-appointed expert concluded that the
public works for the purposes of which the property had been
expropriated had affected only part of it, leaving 1,500 square
metres that could be restored to the original owners. The expert
opinion was accompanied by several plans.
In a judgment of 23 October 1997, the Regional Court
set aside the expropriation order in respect of one quarter of 1,500
square metres of the property, within the specific boundaries marked
on a plan provided by the above expert (“the 1995 plan”).
This plan was an inseparable part of the court’s judgment.
Neither party submitted a petition for review (cassation).
The
court did not examine the issue of the compensation that the
applicant’s father had received for the expropriation, nor was
this issue raised by the municipality during the course of the
proceedings or at any time after. It appears that the applicant did
not return this compensation. It also appears that after the judgment
of 23 October 1997 came into effect, the municipality never
challenged, on that basis or on any other grounds, the applicant’s
ownership of the one quarter of the plot of 1,500 square metres that
had to be returned to her.
Subsequently,
in January 1998, 1999 and 2000 the applicant filed several requests
with the Plovdiv municipality inviting the latter to execute the
judgment of 1997 and, in particular, to register the returned
property in the land register.
The
municipality discovered that the 1995 plan did not correspond to the
current urban plan and that it contained a number of technical
errors. These defects made it technically impossible to register the
returned property in the land register. Therefore, on 9 November 1999
the municipality requested that the Plovdiv Regional Court rectify
these defects, which it apparently refused to do.
In
September and November 2000 the municipality informed the applicant
that a procedure for the modification of the land register under
section 32(1)(2) of the Zone Plan Act had been started, but because
of a number of technical errors in the 1995 plan, which the Regional
Court had refused to rectify, it was impossible to issue an
up-to-date plan. The applicant was advised to request the expert who
prepared the 1995 plan to provide the information missing therein.
In
a letter dated 26 July 2002 the municipality again informed the
applicant that the property could not be registered in the land
register because of the defects in the 1995 plan and advised her that
registration might become possible if the boundaries of the property
were determined and marked on the spot (да
се заснемат
на място материализирани
грaници).
In this connection, it was open to her to request the assistance of
an enforcement judge.
Meanwhile,
the applicant had requested the issuing of a writ for the execution
of the judgment of 1997. Her request was rejected by both the Plovdiv
Regional Court and the Supreme Administrative Court in a final
decision of 24 September 2002. The courts held that judgments in
respect of restitution of properties were not subject to enforcement
as their purpose was the transformation of a right (имат
конститутивен
ефект) and did not include an
order to act. The 1992 Law did not provide for the enforcement of
final decisions or judgments by an enforcement judge.
On
2 December 2002 the applicant requested the Plovdiv Regional Court to
interpret its judgment of 1997 and to indicate a method for its
execution. A hearing was scheduled for 14 April 2003. The outcome of
these proceedings is not clear.
On
13 March 2003, upon the request of a co-owner of the plot at issue,
the municipality instituted a procedure for the modification of the
land register in order to register a new plot which appeared to be
almost identical to the one which had been returned in part to the
applicant in 1997.
On
several occasions in February and May 2004 the applicant requested
that the municipality mark the boundaries of her property on the spot
(трасиране
на имота) or issue a
certificate (служебна
бележка) to that
effect. In reply, the municipality informed her that this was within
the competence of the local land registry office and reminded her
that the procedure for the entry of the property in the land register
had not yet been completed.
Meanwhile,
on 21 April 2004 the applicant filed an application in which she
objected to the amendments to the land register and reiterated her
request for the marking of the boundaries. On 20 May 2004 the
municipality dismissed the applicant’s objection as she had not
identified any procedural violations.
On
4 June 2004 the mayor gave his approval for the above mentioned
amendment to the land register.
On
15 June 2004 the applicant appealed stating that she “did not
agree with the proposed amendment” and reiterating her request
for the marking of the property’s boundaries. The appeal was
dismissed by the municipal authorities as no specific procedural
breaches had been challenged.
On
19 August 2004 a deed establishing omissions or errors in the
cadastral maps (акт за
непълноти и
грешки в кадастралния
план) was
issued, providing for the registration, pursuant to the mayor’s
decision of 4 June 2004, of a new property in the land registry.
In the deed, the applicant was listed as one of the co-owners of the
property, along with three other individuals and the municipality. It
is not clear whether this modification was carried out in accordance
with the judgment of 1997 and the boundaries determined by the 1995
plan.
Relying
on the deed of 19 August 2004, on 1 October 2004 the mayor approved
the amendment to the land register. The applicant was informed that
she could object within fourteen days. It is not clear whether she
did so.
The
parties have not informed the Court of any subsequent developments
after 2004, despite its explicit request to that effect.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Restitution of expropriated property
In
1992 the Law on the Restitution of Property Expropriated under
Building Planning Legislation (Закон
за възстановяване
на собствеността
върху някои
отчуждени имоти
по ЗТСУ, ЗПИНМ,
ЗБНМ, ЗДИ и ЗС,
“the 1992 Law”) was enacted. It provided for the
restitution of expropriated property where no construction project
had been effected and where certain other specific conditions had
been met. The request for restitution had to be lodged with the mayor
of the municipality, whose refusal could be appealed against to the
Regional Court. The mayor’s decision was binding on all State
authorities (paragraph 1(2) of the additional provisions).
Owners
who had received compensation at the time of expropriation were
required to return the compensation in order for the restitution
order to enter into force (section 6). In their practice, the
domestic courts have held, however, that when deciding on the request
for revocation of the expropriation, the administrative organs or
courts are not obliged to rule on the question of whether the
compensation received for the expropriation has been returned because
the duty to do so flows directly from the law (Реш. №
239 от 17.03.1994 г. на ВАС
по адм. д. № 3585/1999 г.;
Реш. № 5425
от 19.10.1999 г. на ВАС
по адм. д. № 3165/1999 г.).
Therefore, the return of compensation was not a precondition
for the revocation but, rather, a consequence of the revocation
taking effect (Реш. №
9299 от 5.12.2001 г. на ВАС
по адм. д. № 4699/2001 г.,
to the contrary
see Реш. № 3377 от
21.06.1999 г. на ВАС по
адм. д. № 2047/1999
г).
On
the other hand, section 7(2) of the 1992 Law provided that if another
property had been received as compensation for an expropriation and
had subsequently been transferred to a third person, revocation of
the expropriation could not be granted, unless the property received
in compensation had been returned to the person requesting the
expropriation, who could then return it to the State. In their
practice, the domestic courts have held that where another property
has been received as compensation for an expropriation and has then
been sold to a third party and therefore cannot be returned to the
State, revocation of an expropriation cannot be granted. An objection
to this effect has often been raised by municipalities or prosecutors
taking part in proceedings as third parties acting in the interest of
the State (Реш. № 5231 от
12.10.1999 г. на ВАС по
адм. д. № 2890/1999
г.; Реш.
№ 3041 от 09.06.1999 г. на ВАС
по адм. д. № 1210/1999
г.). In one case, the Supreme Court of Cassation held
that the issue of compensation under section 7(2) of the 1992 Law had
to be examined proprio motu by the administrative authorities
competent to revoke the expropriation and by the courts which dealt
with appeals against refusals of revocation (Реш. №
674 от 08.02.2001 г. на ВАС
по адм. д. № 6979/2000 г.).
Bulgarian
restitution legislation, including the 1992 Law, does not provide for
any specific procedure for the execution of decisions or judgments
returning expropriated property to its former owners.
Section
64(1) of the Municipal Property Act of 1996 provides that municipal
properties which have been returned to their former owners and which
no longer belong to the municipality should be struck out of the
municipal property register (актови
книги) and possession thereof passed to
their former owner.
B. Land register
The
land register is a land survey information system which consists of
registers and cadastral maps.
At
the relevant time the adoption and modification of the land register
were governed by the Common Cadastre of the People’s Republic
of Bulgaria Act of 1979 (“the CCPRBA”) and the
Regulations on its implementation (“the Regulations”).
The
CCPRBA and the Regulations provided that the land register should
contain information, inter alia, about the boundaries, surface
area and type of plots of land, any construction(s) on these plots
and ownership rights over them. Most of this information had to be
provided in the deeds and contracts concerning immovable property,
such as notary deeds, sales contracts, etc. All of these deeds and
contracts had to be accompanied by a plan issued by the regional land
register service (section 34 of the Regulations). The state
authorities and domestic courts were under an obligation to inform
the land register officials, inter alia, of all changes in the
ownership and the boundaries of private properties which had come to
their knowledge. These changes had to be duly entered in the land
registers and maps (sections 13 and 14 of the CCPRBA).
On
1 January 2001 the CCPRBA was replaced by the Cadastre and Property
Register Act (“the CPRA”), which clarified and expanded
the provisions in respect of the land register. Section 49b, in force
since 2004, provides that for the issuance of notary deeds and other
acts concerning the rights over immovable property a plan, namely, a
copy taken from the cadastral maps is necessary. The same is provided
in section 2(3) of Ordinance No. 3 of 28 April 2005 (Наредба № 3
от 28.04.2005 г. за съдържанието,
създаването
и поддържането
на кадастралната
карта и кадастралните
регистри), which
governs the keeping of the cadastral maps and registers.
C. The Building Planning Act of 1973
Under
section 32 of the Building Planning Act (“the BPA”)
(Закон за
териториално
селищното
устройство),
in force between 1973 and 2001, amendments to the different zone
plans could be made, inter alia, in cases of errors and
omissions in these plans (section 32(4)) and in cases of errors and
omissions in the cadastral maps (section 32(2)). In the latter case,
both the zone plan and the cadastral maps were to be amended. After
the entry into force of the CCPRBA in 2001, this procedure was
governed by section 53 of that Act. Section 32 was superseded by
section 134(2) of the new Building Planning Act of 2001, which
retained the possibility of amendments to the zone plan in cases of
errors and omissions. Where the latter were contained in the
cadastral maps, they had to be amended first under the procedure set
out in section 53 of the CCPRBA.
D. The State Responsibility for Damage Act (“the
SRDA”) of 1988 and relevant practice of the domestic courts
The
relevant provisions and domestic courts’ practice in connection
with actions for damages under the State Responsibility for Damage
Act (the Act’s title having been amended later to State and
Municipalities’ Responsibility for Damage Act (SMRDA)) have
been summarised in the Court’s judgments in the cases of
Lyubomir Popov v. Bulgaria, no. 69855/01, §§
96-99, 7 January 2010; Naydenov v. Bulgaria, no. 17353/03,
§§ 43-47, 26 November 2009; and Mutishev and Others
v. Bulgaria, no. 18967/03, §§ 93-96, 3 December
2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
The
applicant complained under Article 1 of Protocol No. 1 to the
Convention that although her property had been restored to her by
virtue of the final court judgment of 1997, she had been unable to
enjoy this property because of the domestic authorities’
failure to execute the 1997 judgment.
Article
1 of Protocol No. 1 reads:
“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.”
A. Admissibility
The
Government argued that the applicant had failed to exhaust all
available domestic remedies because she had not filed an action under
section 1 of the SMRDA and had not initiated certain procedures
under section 32 of the BPA of 1973.
The
applicant contested this argument, maintaining that an action under
the SMRDA could not be regarded as an effective remedy against the
municipality’s refusal to execute the judgment of 1997 because
it could result only in compensation but could not lead to the
execution of the 1997 judgment. Furthermore, even if such an action
were to be allowed and compensation awarded, there would be no
guarantee that the municipality would pay this compensation since
Bulgarian legislation did not provide for remedies against the
refusal of a State body to execute a judgment.
The
Court reiterates that under Article 35 § 1 of the Convention the
only remedies required to be exhausted are those that are effective
and capable of redressing the alleged violation (see Sejdovic v.
Italy [GC], no. 56581/00, § 45, ECHR 2006-II). In the
present case the applicant’s complaint is that the municipal
authorities failed to execute the 1997 judgment in her favour and
thus impeded her from peacefully enjoying her possessions. The Court
considers that an action under the SMRDA could not have remedied the
applicant’s grievances because it could only provide her with
monetary compensation but could not directly compel the authorities
to take the action required to secure compliance with the final court
judgment of 1997 (see, mutatis mutandis, Iatridis v. Greece
[GC], no. 31107/96, § 47, ECHR 1999-II; Kirilova and
Others v. Bulgaria, nos. 42908/98, 44038/98, 44816/98 and
7319/02, § 116, 9 June 2005; and Lyubomir Popov v. Bulgaria,
§ 106, cited above).
Furthermore,
the Government failed to present copies of any domestic court
judgments where awards had been made under the SMRDA providing
redress in cases of delayed restitution under the 1992 Law. The Court
also notes that an action under the SMRDA has not been found to
constitute an effective remedy in cases of delays in the restitution
of nationalised agricultural land, notably, having regard to the lack
of established practice emanating from the domestic courts (see
Lyubomir Popov, §§ 104-107; Naydenov, §
59; and Mutishev, §§ 103-11, all cited above).
As
to the Government’s argument that the applicant had failed to
initiate certain procedures under the BPA, the Court notes that after
the 1997 judgment became effective, the applicant requested that the
property be registered in the land register (see paragraph 12 above),
which at the relevant period was governed by section 32 of the BPA
(see paragraphs 14 and 35 above), brought a number of actions aimed
at the execution of the judgment (see paragraphs 16 and 17 above) and
actively participated in the procedure of 2004 by filing requests and
appealing against the proposed amendments to the land register (see
paragraphs 19 to 22 above).
Under
these circumstances, the Court considers that the applicant made
normal use of the remedies available to her.
Accordingly,
the Court dismisses the Government’s objection. It further
finds that the complaint under Article 1 of Protocol No. 1 is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention and is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
a. The Government
The
Government contended that the applicant’s rights under
Article 1 of Protocol No. 1 had not been infringed and that,
although she had faced certain difficulties in relation to the
restitution of her property, she had not suffered an excessive
burden. They contended that the State had a wide margin of
appreciation in the field of construction and planning, therefore the
authorities’ actions had not run counter to the Convention. The
Government further argued that the applicant’s ownership rights
had been restored by virtue of the 1997 judgment and had subsequently
never been challenged by the authorities. There was no reason for the
applicant to believe that all ensuing procedures would not be
finalised. The Government did not dispute the applicant’s
allegation that the property had never been entered in the land
register and admitted that the applicant had been unable to take
possession of it. They argued, however, that her property rights had
not been violated as she could dispose of the plot as she wished. In
any event, the municipal authorities had acted with due diligence and
expedience – procedures for the property’s registration
in the land register and striking it out of the municipal property
register had started shortly after the judgment of 1997. The delay in
the registration had been due to technical errors in the 1995 plan
and the fact that the applicant had not returned the compensation
which her father had received in 1956 for the expropriated property
(see paragraph 6 above). Furthermore, it was normal that the
authorities needed time to enter the applicant’s property in
the relevant registers and maps, given that the events dated back
forty years and that the cadastral and zone planning maps had been
changed during that period.
b. The applicant
The
applicant submitted that the 1997 judgment had still not been
executed to date and that she is unable to use her property. This
situation had been ongoing for a period of more than twelve years –
from the final judgment of 1997 until the present day. The
municipality was under an obligation to register the property with
the boundaries stipulated in the 1997 judgment. Instead of doing so
in good time, it had initiated a procedure for an amendment to the
land register only in 2004, seven years after the restitution of the
property to the applicant. Despite these amendments, the property
remained unregistered until today. Even assuming that following the
2004 amendments, the property was entered in the land register, there
was a delay of seven years between this entry and the restoration,
which could not be justified. Thus, although the applicant’s
ownership of the property had not been challenged by the
municipality, the refusal to register the property in the land
register infringed her rights under Article 1 of Protocol No. 1
because without this registration she could not obtain an up to-date
plan of the property, which was necessary for the sale of the
property or for the undertaking of any construction work on it.
In
so far as the Government claimed that the delays in the registration
were partly due to the technical errors in the 1995 plan, she argued
that as a party to the restitution proceedings, the municipality
could have challenged the expert’s opinion or the 1995 plan but
had failed to do so. Neither had it alleged that the plan contained
technical errors or omissions, or sought to establish different
boundaries of the property. As to the argument concerning her failure
to return the compensation received for the expropriation, she
contended that the municipality never requested the return of the
compensation, nor challenged her ownership rights on that basis.
2. The Court’s assessment
a. Application of Article 1 of Protocol
No. 1
The
Court notes that by virtue of the final judgment of the Plovdiv
Regional Court of 23 October 1997, ownership of one quarter of a plot
of 1,500 square metres was restored to the applicant (see paragraph
10 above).
In
so far as the Government may be understood as arguing that the
Regional Court wrongly applied the 1992 Law and, in particular,
section 7(2) thereof (see paragraph 28 above) since it did not take
into account the applicant’s failure to return the compensation
received by her father in 1956, the Court observes that it was for
the relevant mayor, who was party to the judicial proceedings, or for
the Regional Court to address that issue in the course of the
relevant proceedings. The Court will revert to this matter later (see
paragraph 56 below).
Since
the 1997 judgment became final and the applicant’s ensuing
property rights were never challenged in any domestic proceedings,
the Court finds that she has a “possession” within the
meaning of Article 1 of Protocol No. 1.
b. Compliance with Article 1 of Protocol
No. 1
The
Court notes that the Government did not dispute the applicant’s
ownership rights over the property, nor her allegations that the
judgment of 1997 had remained unenforced and that at present she was
still experiencing obstacles to her full possession and enjoyment of
those ownership rights. They did not provide any evidence that the
property had been struck out of the municipal property register and
that possession had consequently passed to the applicant.
In
these circumstances, while it is unclear whether and to what extent
the 2004 amendments to the land register (see paragraphs 18 to 24
above) resolved the problems encountered by the applicant, the Court
will proceed on the basis that between the judgment of 1997 and the
present time there has been a delay of about thirteen years in the
process of restoration of the applicant’s rights over the
property and her full enjoyment of these rights (see paragraphs 10,
46 and 47 above).
A
failure to enforce, for reasons imputable to the State, a final
decision recognising title to property or unjustified delay in the
enforcement of such a decision constitutes interference with the
peaceful enjoyment of possessions and may amount to a violation of
Article 1 of Protocol No. 1 to the Convention (see Ramadhi and
Others v. Albania, no. 38222/02, §§ 76 84, 13
November 2007; Nuri v. Albania, no. 12306/04, § 40,
3 February 2009; Naydenov, cited above, §§
72 and 85; Mutishev and Others, cited above, §§ 138
and 146; and Lyubomir Popov, cited above, § 131).
The
present case is similar to the above-mentioned cases. The Court must
therefore determine whether the delay in the full execution of the
judgment of 1997 and the obstacles faced by the applicant in that
respect were imputable to the respondent State and, if so, whether
the resulting interference with her property rights was, as alleged
by her, unlawful and imposed on her a disproportionate and excessive
burden (see Beyeler v. Italy [GC], no. 33202/96, §§
110 in fine, 114 and 120 in fine, ECHR 2000-I, and
Kirilova and Others, cited above, § 106).
In
the present case the explanation offered by the Government with
respect to the delay in the property’s registration in the land
register was that the applicant had failed to return the compensation
received by her father in 1956 and that there had been technical
errors and omissions in the 1995 plan as a result of normal
difficulties associated with the complex restitution process. No
other justification has been offered.
The
Court observes that the fact that the applicant had not returned the
property received in compensation in 1956 was never invoked against
her in any domestic proceedings and, moreover, was never cited by the
municipality as a reason for their failure to execute the 1997
judgment (see paragraph 11 above). The municipality was free to raise
the issue in the proceedings that led to the 1997 judgment, or to
bring an action against the applicant after that. As they never did
so, it cannot be considered that they were entitled to delay the
execution of the 1997 judgment for essentially undisclosed reasons.
As
to the objective difficulties relied upon by the Government, the
Court is mindful that the execution of a judgment for the restitution
of a property expropriated several decades earlier may require more
time, as there may be complications of a technical nature to be dealt
with (see, mutatis mutandis, Lyubomir Popov, cited
above, § 122). It is also true that the municipal
authorities invested some effort in finding a solution to the
situation which arose as a result of inconsistencies in the 1995 plan
(see paragraphs 13 to 15 above) and to register the applicant’s
property within the boundaries determined by the judgment of 1997.
These efforts, however, do not seem to have brought about the desired
results as the property remained unregistered for a very long period
of time, namely, thirteen years, and it is still unclear whether such
registration has ever taken place. Moreover, as the Government appear
to have confirmed, the authorities have not officially allowed the
applicant to take possession of the property.
In
so far as the Government suggested that the problems in connection
with the full execution of the 1997 judgment were due to the
applicant’s failure to undertake steps to that effect or to
duly and timely cooperate with the authorities, the Court notes that
this assertion is not supported by convincing evidence. Moreover, the
Court reiterates that even though it may be expected that an
applicant undertake certain procedural steps in connection with the
execution of a final judgment in his or her favour, this does not
relieve the authorities of their obligation under the Convention to
take timely action of their own motion, on the basis of the
information available to them, with a view to honouring the judgment
against the State. Where a judgment is delivered in favour of an
individual against the State, the burden to comply with such a
judgment lies primarily with the State authorities, which should use
all means available in the domestic legal system in order to speed up
the enforcement, thus preventing violations of the Convention (see
Burdov v. Russia (no. 2), no. 33509/04, §§ 69
and 98, ECHR 2009 ...).
In
view of the above, the Court finds that the delay in the execution of
the 1997 judgment was imputable to the authorities and constituted an
interference with the applicant’s right to peaceful enjoyment
of her possessions, which was not justified as it did not have a
clear legal basis and the Government have not shown before the Court
that there was a justification in pursuance of a legitimate aim.
Accordingly,
there has been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant also alleged that there had been a violation of Article 13
of the Convention as she lacked an effective remedy for the situation
in issue, especially considering that Bulgarian law did not provide
for enforcement of judgments against State bodies.
Article
13 provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government did not comment.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The
Court reiterates that Article 13 of the Convention guarantees the
availability, at the national level, of a remedy to enforce the
substance of Convention rights and freedoms in whatever form they
might happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy to
deal with the substance of an “arguable complaint” under
the Convention and to grant appropriate relief, although Contracting
States are afforded some discretion as to the manner in which they
conform to their Convention obligations under this provision. The
scope of the obligation under Article 13 varies depending on the
nature of the applicant’s complaint under the Convention.
Nevertheless, the remedy required by Article 13 must be “effective”
in practice as well as in law; in particular, its exercise must not
be unjustifiably hindered by the acts or omissions of the authorities
of the respondent State (see, among other authorities, Aksoy v.
Turkey, 18 December 1996, § 95, Reports of Judgments and
Decisions 1996-VI and Kudła v. Poland [GC],
no. 30210/96, § 157, ECHR 2000 XI).
The
Court refers to its finding that in the particular circumstances of
the present case an action under the SMRDA could not remedy the
applicant’s specific complaint (see paragraphs 38 to 44 above).
Moreover, although the applicant availed herself of the procedures
under the BPA, her efforts were in vain. Accordingly, the applicant
had no effective remedies within the meaning of Article 13 of the
Convention.
The
Government have not argued that Bulgarian law provides any other
means whereby the applicant could have obtained execution of the 1997
judgment and compensation in that respect.
It
thus appears, in particular, that the Bulgarian restitution
legislation, including the 1992 Law, does not provide for any
specific procedure for the execution of decisions or judgments
restoring expropriated property to its former owners. Persons
encountering obstacles such as those at issue in the present case
cannot obtain the assistance of an enforcement officer and the
possibility of filing administrative complaints does not appear to
have provided the applicant with effective redress.
In
view of the above, the Court finds that there has been a violation of
Article 13 of the Convention in conjunction with Article 1 of
Protocol No. 1.
III. 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
1. Pecuniary damage
The
applicant, relying on the cases of Brumărescu v. Romania
((just satisfaction) [GC], no. 28342/95, ECHR 2001 I) and Kehaya
and Others v. Bulgaria (just satisfaction), nos. 47797/99
and 68698/01, 14 June 2007), requested that the State take all
necessary measures in order to restore in full her ownership rights
over the property in compliance with the judgment of 23 October 1997.
She
further claimed 513,270 Bulgarian levs (BGN), the equivalent of
262,434.81 euros (EUR), in loss of rent. She also claimed BGN
321,423.76, the equivalent of EUR 164,343.89, in interest on the
above amount. She presented an expert opinion on the rent she would
have received for a plot of 1,500 square metres in Plovdiv for the
period between 1 November 1997 and 10 June 2009.
The
Government stated that, in contrast to the case of Brumărescu,
cited above, where the property had never been returned to the
applicant, in the present case the 1997 judgment had had the effect
of restoring the applicant’s ownership and therefore, there had
been no obstacles to her renting it out, for example. In any event,
the applicant’s claim was excessive.
The
Court reiterates that a judgment in which the Court finds a breach of
the Convention imposes on the respondent State a legal obligation to
put an end to that breach and make reparation for its consequences in
such a way as to restore as far as possible the situation existing
before the breach. The Contracting States are in principle free to
choose the means whereby they will comply with a judgment in which
the Court has found a breach. If the nature of the breach allows for
restitutio in integrum, it is for the respondent State to
effect it. If, on the other hand, national law does not allow, or
allows only partial, reparation to be made for the consequences of
the breach, Article 41 empowers the Court to afford the injured
party such satisfaction as appears to it to be appropriate (see
Papamichalopoulos and Others v. Greece (Article 50), 31
October 1995, § 34, Series A no. 330 B, and Brumărescu,
cited above, §§ 19-20).
In
view of its findings in paragraphs 60 and 69 above, the Court
considers that the most appropriate reparation in the present case
would be the removing of all obstacles to the applicant’s full
possession and enjoyment of her rights as an owner in accordance with
the judgment of 23 October 1997. Thus, the applicant would be
put as far as possible in a situation equivalent to the one in which
she would have been, had there not been a breach of Article 1 of
Protocol No. 1.
Despite
the Court’s specific request, the parties have failed to inform
it of the developments, which have occurred since 2004. The Court is
thus not aware whether the property at issue has in fact been
transferred to the applicant. If the property has not been so
transferred, given that the Government have not argued that there
exist insurmountable obstacles to such a transfer and provided that
the applicant cooperated with the authorities, it is not unreasonable
to expect that the removal of all obstacles to the applicant’s
full possession should be completed without delay.
As to the claimed loss of rent, the Court notes, on
the one hand, that the Government have not argued that Bulgarian law
provides for means whereby the applicant could obtain compensation in
that respect. The Court has not been presented with any evidence of
an established practice of the domestic courts in granting
compensation in proceedings under the SMRDA or in any other
proceedings. The Court, therefore, does not find it established that
in the present case it was open to the applicant to seek and receive
compensation for loss of rent in proceedings before the domestic
courts. On the other hand, the Court is unable to speculate as to
whether the applicant would have rented out the property and received
rent for it during the whole period between 1997 and 2009 or, for
example, would have preferred to use it for her own needs, sell it or
not use it at all. It also takes into account that the rent
calculation concerned the renting out of the whole property, while
the applicant owns only part of it and therefore, would be entitled
to the receipt of only part of the rent. Furthermore, the Court notes
that even if the applicant had rented out the property, she would
have probably incurred expenses for its maintenance and taxation, as
any revenue from rent would also have been subject to taxation (see
Popov v. Moldova (no. 1) (just satisfaction), no. 74153/01,
§ 13, 17 January 2006, and Kirilova and Others v.
Bulgaria (just satisfaction), nos. 42908/98 et al., § 31, 14
June 2007).
In
conclusion, the Court does not find it to have been established with
certainty that the applicant would have been able to let the property
up to today and to receive the claimed market rent. The Court
nevertheless considers that the applicant has suffered a certain loss
of opportunity on account of not having been able to fully enjoy her
property for a long period of time. In view of these considerations
and ruling on equitable basis, the Court awards the applicant EUR
2,000 under this head.
2. Non-pecuniary damage
The
applicant also claimed EUR 10,000 in respect of non-pecuniary damage
for the anguish and suffering caused as a result of the alleged
violations.
The
Government contested the claim as excessive and unfounded.
The
Court finds that the applicant must have suffered anguish and
frustration as a result of the violations found. Deciding on an
equitable basis, it awards her EUR 2,200 under this head.
B. Costs and expenses
The
applicant claimed EUR 4,200 in lawyer’s fees for the
proceedings before the Court; EUR 50 for postal expenses and EUR 30
for office materials. She submitted an agreement with her legal
representatives and a time-sheet for 60 hours of work at an hourly
rate of EUR 70. She requested the amounts awarded under this head to
be paid directly into the bank accounts of her legal representatives.
The
Government contested these claims as excessive.
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. The Court finds that the costs for postal
expenses and office materials and part of the lawyers’ fees
have been covered by the legal aid which was granted to the
applicant. Having regard to this fact, the Court awards EUR 1,500
under this head.
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
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 that there has been a violation of
Article 13 of the Convention in conjunction with Article 1 of
Protocol No. 1;
4. 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, the following amounts, to be
converted into Bulgarian levs at the rate applicable at the date of
settlement:
(i) EUR
2,000 (two thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage;
(ii) EUR
2,200 (two thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(iii) EUR
1,500 (one thousand five hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses to be
paid directly into the bank accounts of the applicant’s legal
representatives;
(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;
5. Dismisses the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas
Bratza
Registrar President
