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DIMOVA AND MINKOVA v. BULGARIA - 30481/05 [2011] ECHR 1126 (19 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1126.html
Cite as:
[2011] ECHR 1126
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FOURTH
SECTION
CASE OF
DIMOVA AND MINKOVA v. BULGARIA
(Application
no. 30481/05)
JUDGMENT
STRASBOURG
19 July
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Dimova and Minkova v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Päivi Hirvelä,
President,
Ledi Bianku,
Zdravka Kalaydjieva,
judges,
and Fatoş Aracı,
Deputy 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. 30481/05) 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 Stefana Yordanova
Dimova and Ms Penka Yordanova Minkova (“the applicants”),
on 1 August 2005.
The
applicants were represented by Mr M. Ekimdjiev and Ms K. Boncheva,
lawyers practising in Plovdiv. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms N. Nikolova,
of the Ministry of Justice.
On
6 January 2010 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 later transferred to the Fourth Section of the Court,
following the re-composition of Court’s sections on 1 February
2011. In accordance with Protocol no. 14 to the Convention, the
application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1929 and 1937 respectively and live in
Plovdiv.
The
applicants are sisters. Their ancestor and another person, P.D., had
owned 14,688 square metres of agricultural land which they had
divided in 1957 in equal parts of 7,344 square metres each. Following
the adoption of the Agricultural Land Act in 1991, the applicants and
the heirs of P.D., separately, requested the restitution of their
respective parts. The applicants’ request was submitted on 13
March 1991. In a decision of 5 July 1994 the Plovdiv Agricultural
Land Commission (“the land commission”) restored 7,015
square metres to the applicants and dismissed their request for the
remaining 329 square metres. The heirs of P.D. obtained a decision
restoring to them their 7,344 square metres of land.
On
8 September 1994 the applicants appealed to the Plovdiv District
Court, asking the court to declare that they were entitled to
restitution of the entire plot.
On
24 October 1995 the District Court dismissed the applicants’
appeal. Relying on an expert’s report it held that the land had
been restored to the heirs of P.D. The court thus concluded that the
applicants should have brought an action against the latter. The
applicants did not submit a petition for review (cassation) against
the judgment of 24 October 1995.
On
18 August 1997 the applicants brought an action for rei vindicatio
against the heirs of P.D. They sought to be recognised as the owners
of 391.5 square metres of land and to obtain possession thereof.
Of
the seventeen hearings held between 12 November 1997 and 16 March
2000 four were adjourned at the applicants’ request. Six of the
remaining hearings were adjourned for reasons related to the
preparation of expert reports commissioned by the court. At least
four other hearings were adjourned so that new evidence could be
collected or to allow the parties to get acquainted with such
evidence.
On
5 April 2000 the Plovdiv District Court found against the applicants.
It noted that the applicants had stated that their action had been
based on section 14 § 4 of the Agricultural Land Act and had not
been a rei vindicatio one. However, it was clear from the
facts on which it was grounded and the formulation of the applicants’
claims that the action was for rei vindicatio. The District
Court noted that the land commission had restored 7,015 square metres
to the applicants and 7,344 square metres to the defendants. The
missing land had not been restored to the defendants, although it was
not clear to whom it had been given. Accordingly, the action was
dismissed.
On
13 April 2000 the applicants filed an appeal against the judgment of
5 April 2000.
The
first hearing was held on 12 December 2000 and the second one on 26
February 2001.
On
29 June 2001 the Plovdiv Regional Court dismissed the applicants’
appeal. It noted that the applicants did not claim that the heirs of
P.D. had obtained land in excess and on that ground found that there
was no legal dispute, within the meaning of section 14 § 4 of
the Agricultural Land Act. It further found that it could not assess
the lawfulness of the land commission’s decision of 1991 which
had become final in 1995.
Following
an appeal filed by the applicants on 2 August 2001 and a hearing held
on 10 October 2002, on 4 November 2002 the Supreme Court of Cassation
quashed the judgment of 29 June 2001 and remitted the case to the
Regional Court for fresh examination holding that the latter had
failed to examine all the relevant issues and instructing it to
examine the whole restitution file.
On
12 September 2003 the Regional Court upheld the judgment of the
District Court of 5 April 2000. It subscribed to the lower court’s
findings and noted that the land commission’s decision had
become final in 1995.
Following
an appeal filed by the applicants on 15 October 2003 and a hearing
held on 26 January 2005, on 10 February 2005 the Supreme Court of
Cassation upheld the lower court’s judgment. The court endorsed
the lower courts’ finding that the decision of the land
commission had become final and therefore must be respected. It also
held that the applicants had neither proved that the defendants were
in possession of the claimed piece of land nor its precise location.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Complaints about delays
Complaints
about delays were provided for in Article 217a of the Code of Civil
Procedure of 1952, in force until 1 March 2008. The provision was
introduced in July 1999. Complaints about delays were to be examined
by the president of the higher court, who could order specific
measures to be taken to speed up the proceedings.
B. Restitution of agricultural land
The
Agricultural Land Act of 1991 (“the ALA”) provides, inter
alia, that persons, or their heirs, whose land has been
collectivised, may request restoration of their ownership rights
under certain conditions (section 10 of the ALA). The decisions
restoring title under the ALA are taken by the local agricultural
land commission (section 14 § 1) and are amenable to appeal
before the courts (section 14 § 3).
Pursuant
to section 14 § 4 of the ALA when there exists a dispute
involving a third party it has to be adjudicated in separate
proceedings.
C. Distinction between the action under section 14 §
4 of the ALA and an action for rei vindicatio
According
to the Supreme Court and the Supreme Court of Cassation’s
practice the two actions differ in that the one under section 14 § 4
seeks to establish the owner of the disputed plot of land at the time
of its collectivisation and consequently to determine the person or
persons who have the right to claim restitution over it whereas the
action for rei vindicatio requires the courts to determine the
owner at the moment of institution of the proceedings (pеш.
№ 410 от
10.I.1994
г. по гр. д. № 397/93
на
ВС
5-чл. с-в;
реш.
№ 670 от 31.III.1997
г. по гр. д. № 196/96,
на ВС IV
г. о.; oпр.
№ 1051
от 23.09.2009 г. по гр.д.
№ 941/2009
г. на ВКС).
THE LAW
I. ALLEGED VIOLATIONS OF THE
CONVENTION IN RELATION TO THE LENGTH OF THE 1997-2005 PROCEEDINGS
The
applicants complained that the length of the proceedings for rei
vindicatio had breached their rights protected under Articles 6 §
1 and 13 and Article 1 of Protocol No. 1 to the Convention.
The
relevant parts of Article 6 § 1 read as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
Article
13 reads as follows:
“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.”
Article
1 of Protocol No. 1 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 the complaints are not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
1. Article 6 § 1
The
applicants complained that the length of the proceedings for rei
vindicatio had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention.
The
period to be taken into consideration began on 18 August 1997 and
ended on 10 February 2005. The proceedings thus lasted almost seven
years and six months for three levels of jurisdiction.
The
Court reiterates that 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).
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 and Kabakchievi v.
Bulgaria, no. 8812/07, 6 May 2010).
Having examined all the material submitted to it, the
Court considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case. In particular, delays totalling more than two years
and six months occurred when the case was pending before the Supreme
Court of Cassation (see paragraphs 15 and 17 above). Also, the
case was remitted for fresh examination on account of the Plovdiv
Regional Court’s failure to examine relevant circumstances (see
paragraph 15 above). The Court considers that save for a period of
about four months (see paragraph 10 above) the applicants were not
responsible for any significant delay. Thus, having regard to its
case-law on the subject, the Court considers that in the instant case
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
2. Article 13
The
applicants further complained under Article 13 of the Convention that
they did not have an effective domestic remedy for the length of the
proceedings.
The
Government submitted that the applicants had not filed a “complaint
about delays” (see paragraph 18 above) which was an effective
remedy in their case.
The
applicants replied that that remedy was not effective and that
Bulgarian law did not provide for any other remedies.
The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It notes that the objections and arguments put forward by
the Government have been rejected in earlier similar cases (see the
above-cited Kabakchievi judgment, § 52;
Pavlova v. Bulgaria, no. 39855/03, § 31, 14
January 2010; and Kotseva Dencheva v. Bulgaria, no.
12499/05, § 28, 10 June 2010) and sees no reason to reach a
different conclusion in the present case.
Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention.
3. Article 1 of Protocol No. 1
The
applicants also complained that the length of the proceedings had
infringed their right to the peaceful enjoyment of their possessions,
as guaranteed by Article 1 of Protocol No. 1.
The
Government contested that claim.
Having
regard to its finding under Article 6 § 1, the Court considers
that it is not necessary to examine whether there has been a
violation of Article 1 of Protocol No. 1 (see Zanghì v.
Italy, 19 February 1991, § 23, Series A no. 194-C; Kambourov
v. Bulgaria, no. 55350/00, § 73, 14 February 2008; and
Maria Ivanova v. Bulgaria, no. 10905/04, § 28, 18 March
2010).
II. ALLEGED VIOLATIONS OF THE CONVENTION IN RELATION TO
THE FINDINGS OF THE DOMESTIC COURTS
The
applicants alleged that the findings of the domestic courts in the
two sets of proceedings had been contradictory and that as a result
they had been deprived of effective access to court in respect of
their alleged right to restitution of a plot of 329 or 391 square
metres. They also complained that as a result they had been deprived
of their possessions and that they lacked effective remedies in that
respect. They relied on Article 6 § 1, Article 1 of Protocol No.
1 and Article 13 of the Convention.
The
relevant parts of Article 6 § 1 read as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article
1 of Protocol No. 1 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.”
Article
13 reads as follows:
“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.”
1. The parties’ submissions
The
Government submitted that the domestic courts had examined the merits
of the applicants’ claims as submitted by them and had
dismissed them.
The
applicants disagreed. They stated, referring to the Court’s
findings in the case Kostadin Mihaylov v. Bulgaria, (no.
17868/07, 27 March 2008) that there were contradictory findings
of the domestic courts as to whether there was a dispute with the
heirs of P.D. over 329 square metres of land. Following the
instructions given by the Plovdiv District Court in its judgment of
24 October 1995 they had instituted proceedings against the heirs of
P.D. However, given the approach employed by that court to render a
final judgment dismissing their action despite holding that it had
been unable to examine it on the merits, the courts in the subsequent
proceedings for rei vindicatio had no choice but to find that
the applicants had title only over the land restored to them by the
land commission.
2. The Court’s assessment
The
Court considers that it is not possible to examine the applicants’
complaints about denial of access to court, deprivation of property
and lack of effective remedies without distinguishing between the two
separate sets of domestic proceedings at issue. Contrary to the
applicants’ view, those two sets of proceedings, while they
concerned the same amount of land (329 or 391 square metres), were in
reality very different as they concerned different rights and had
very different legal scope and consequences.
In
particular, the proceedings which ended in 1995 opposed the
applicants and the land commission and concerned the applicants’
alleged right to restitution under the ALA of a plot of collectivised
agricultural land. In these proceedings the national authorities had
to establish whether the applicants’ ancestors owned the land
at issue before the collectivisation and whether other specific
conditions set out in the ALA were met (see paragraph 19 above).
The
second set of proceedings (1997-2005) concerned an action brought by
the applicants against private individuals, the heirs of P.D.
In those proceedings the applicants alleged that they were the
lawful owners of the plot at issue and that the defendants were not
entitled to possess it.
47 As
these were two entirely different matters, the Court will examine
below the complaints related to the separate rights claimed by the
applicants in each of the two sets of proceedings.
(a) Complaints related to the alleged
right to restitution under the ALA
The
Court observes that in 1995 the Plovdiv District Court rejected the
applicants’ restitution claim in respect of 329 square metres
of land. The applicants did not lodge a petition for review
(cassation) (compare, Yanakiev v. Bulgaria, no. 40476/98, §
65, 10 August 2006, with further references). However, in the absence
of an objection by the Government regarding the exhaustion of
domestic remedies it is not necessary to examine whether this was a
remedy to be exhausted in the particular circumstances (see, mutatis
mutandis, Bevacqua and S. v. Bulgaria,
no. 71127/01, §§ 58 and 87, 12 June 2008).
In
any event, in so far as the applicants consider that the District
Court erred in delivering a judgment on the merits and in so far as
they saw violations of the Convention in this respect, including as
regards alleged deprivation of property, they should have submitted
an application to the Court within six months of the judgment of
October 1995 becoming final. That is so because all events relating
to the applicants’ restitution claim under the ALA, a claim
which opposed the applicants and the land commission only, ended in
1995. The 1997-2005 proceedings between the applicants and the heirs
of P.D. had a different subject matter and could not result in any
decision on the applicants’ alleged entitlement under the ALA.
It
follows that this part of the applicants’ complaints under
Article 6, Article 1 of Protocol No. 1 and Article 13 was lodged out
of time and must be rejected pursuant to Article 35 §§ 1
and 4 of the Convention.
(b) Complaints related to the rei
vindicatio claim against the heirs of P.D.
As
to the complaint that the applicants did not have access to a court
for the determination of their alleged ownership right, the Court
observes that in their judgments in the 1997-2005 proceedings the
courts dismissed as unproven the applicants’ claims that they
were the owners of 329 or 391 square metres of land and that the
defendants had had possession over it. Their conclusions were based
on an examination of all relevant arguments raised by the applicants
and the provisions of domestic law (see paragraphs 9 to 17
above). The present case thus differs significantly from the case of
Kostadin Mihaylov v. Bulgaria (cited above, § 40),
relied upon by the applicants, where the domestic courts “twice
disposed of the case on purely procedural grounds, without touching
upon the substance of the dispute”.
Having
regard to the above consideration, the Court cannot but observe that
the dispute submitted by the applicants for adjudication in the
1997-2005 proceedings between them and the heirs of P.D. was the
subject of a genuine examination and was decided by a legally binding
judgment.
It
follows that this part of the applicants’ complaint under
Article 6 § 1 is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
Furthermore,
as regards the complaint under Article 1 of Protocol No. 1, it
is sufficient to observe that the applicants’ claim that they
were the owners of the plot at issue was rejected by the domestic
courts in reasoned judgments which are not arbitrary (see paragraph
51 above). The Court thus finds that they did not have a “possession”
within the meaning of Article 1 of Protocol No. 1.
It
follows that this part of the applicants’ complaint under
Article 1 of Protocol No. 1 is incompatible ratione
materiae with the provisions of the Convention within the
meaning of Article 35 § 3 (a) and must be rejected in accordance
with Article 35 § 4.
As
regards the applicants’ complaint under Article 13, the Court
notes that according to its case-law, Article 13 applies only where
an individual has an arguable claim to be the victim of a violation
of a Convention right. Having regard to its conclusion under Article
1 of Protocol No. 1 (see paragraphs 50 and 55 above), the Court finds
that they did not have an arguable claim. Article 13 is therefore
inapplicable to their case (see, among many other authorities, Banks
and Others v. the United Kingdom (dec.),
no. 21387/05, 6 February 2007).
It
follows that the above mentioned part of the complaint under Article
13 is incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 35 §
3 (a) and must be rejected in accordance with Article 35 § 4.
III. THE REMAINDER OF THE APPLICANTS’ COMPLAINTS
The
applicants complained that the length of the first set of proceedings
which ended with the final judgment of the Plovdiv District Court of
24 October 1995 had been excessive and that as a result their
property rights had been violated. They relied on Articles 6 § 1
and 13 and Article 1 of Protocol No. 1 to the Convention.
The
Court notes that the six-month period under Article 35 § 1 of
the Convention started to run on 24 October 1995. The applicants
lodged their application with the Court on 1 August 2005, more than
six months after that date.
It follows that these complaints have been introduced
out of time and must be rejected in accordance with Article 35 §§
1 and 4 of the Convention.
IV. 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
Each
of the applicants claimed 8,000 Euros (EUR) in respect of
non pecuniary damage sustained as a result of the excessive
length of the proceedings, contrary to Article 6 § 1 of the
Convention and the lack of remedies in this respect which caused them
stress, frustration and a feeling of helplessness.
The
Government contested these claims as excessive and unsubstantiated.
In their view the finding of a violation of the Convention would
constitute sufficient just satisfaction for the applicants.
The
Court considers that the applicants must have sustained certain
non-pecuniary damage as a result of the excessive length of the
proceedings for rei vindicatio instituted by them and the lack
of effective remedies in this respect. Taking into account the
particular circumstances and the awards made in similar cases, and
ruling on an equitable basis, as required under Article 41, the Court
awards each applicant EUR 1,200 plus any tax that may be chargeable
(EUR 2,400 in total).
B. Costs and expenses
The
applicants sought recovery of EUR 2,927 in lawyer’s fees (at
the hourly rate of EUR 70), postage, translation and clerical
expenses incurred by them in relation to the proceedings before the
Court. In support of their claim they presented a contract for legal
representation, a time sheet and a translation contract. They
requested that the amount, awarded by the Court under this head, be
paid into the bank account of their representative, Mr M. Ekimdzhiev
with the exception of the first EUR 409, which they had paid as an
advance payment.
In
addition, the applicants claimed EUR 128 for the cost of a report on
the value of the property prepared by a valuation expert and
submitted by them in relation to the complaint under Article 1 of
Protocol No.1 concerning the alleged contradictory findings of the
domestic courts which has been rejected by the Court (see paragraphs
50 and 55 above).
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. In the present case, the Court, having
regard to the documents in its possession, the above criteria and to
the fact that the complaints retained by it concerned the length of
proceedings, considers it reasonable to award the sum of EUR 600,
covering costs under all heads. EUR 191 of that amount is to be paid
directly into the bank account of the applicants’ legal
representative, Mr M. Ekimdzhiev.
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 complaints under Articles 6 §
1 and 13 and Article 1 of Protocol No. 1 to the Convention in respect
of the length of the proceedings for rei vindicatio admissible
and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the proceedings for rei vindicatio;
Holds that there has been a violation of Article
13, in conjunction with Article 6 § 1 of the Convention, on
account of the lack of an effective remedy for the excessive length
of the proceedings for rei vindicatio;
Holds that there is no need to examine
separately the complaint under Article 1 of Protocol No. 1;
Holds
(a) that
the respondent State is to pay the applicants, within three months,
the following amounts, to be converted into Bulgarian levs at the
rate applicable at the date of settlement:
(i) EUR
1,200 (one thousand two hundred euros), plus any tax that may be
chargeable to the first applicant and EUR 1,200 (one thousand
two hundred euros), plus any tax that may be chargeable to the second
applicant, in respect of non-pecuniary damage;
(ii) EUR
600 (six hundred euros), plus any tax that may be chargeable to the
applicants, in respect of costs and expenses, EUR 191 of which
to be transferred directly into the bank account of the applicants’
representative. Mr M. Ekimdzhiev;
(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;
Dismisses the remainder of the applicants’
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.
Fatoş Aracı Päivi Hirvelä
Deputy
Registrar President
