CASE OF PETROVI v. BULGARIA
(Application no. 26759/12)
2 February 2017
This judgment is final but it may be subject to editorial revision.
In the case of Petrovi v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ganna Yudkivska, President,
Carlo Ranzoni, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 10 January 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 26759/12) 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 three Bulgarian nationals, Ms Marinka Krasteva Petrova, Mr Krasimir Hristov Petrov and Ms Mariana Hristova Petrova (“the applicants”) on 23 April 2012.
2. The applicants were represented by Mr Zh. Chobanov, a lawyer practising in Razgrad. The Bulgarian Government (“the Government”) were represented by their Agent, Ms L. Gyurova, of the Ministry of Justice.
3. On 10 January 2014 the complaints concerning the failure of the authorities to provide compensation to the applicants for their expropriated property were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants were born in 1944, 1964 and 1966 respectively and live in Razgrad.
5. The first applicant and H.P., her husband and father of the other two applicants, owned a house with a yard and garage in Razgrad.
6. By a decision of the mayor of 28 June 1988 the property was expropriated with a view to constructing a residential building. The decision, based on section 98(1) of the Territorial and Urban Planning Act (Закон за териториалното и селищно устройство - “the TUPA”), provided that the first applicant and H.P. were to be compensated with a flat and a garage.
7. By a supplementary decision of 24 July 1991, based on section 100 of the TUPA, the mayor determined the exact location, size and other details in respect of the garage to be offered in compensation, which was to be located in a residential building which the municipality planned to construct. The first applicant and H.P. had to pay for the cost of the garage that was not covered by the value of their expropriated property 4,479 old Bulgarian levs (BGL). It appears that at the time they did not pay that sum, which has since then devalued significantly.
8. On unspecified dates the flat due to be given to first applicant and H.P. was constructed and delivered to them. The expropriated house and garage were pulled down.
9. In 1996 the mayor of Razgrad offered the first applicant and H.P. a garage in another part of the city. They refused the offer.
10. The building where the garage offered to them was to be situated was never constructed. In 2006 the municipality authorised the construction of another building by a private investor in the same place, which did not include garages.
11. In a letter dated 18 August 2006 the mayor advised the first applicant and H.P. that they could request financial compensation for their expropriated property in lieu of compensation with a garage. In reply, they stated that they did not want such compensation and insisted on receiving a garage.
12. In February 2009 H.P. passed away and was succeeded by the three applicants.
13. On an unspecified date in 2010 the applicants brought an action in tort, seeking pecuniary and non-pecuniary damages for the allegedly unlawful failure on the part of the Razgrad municipality to build and provide them with a garage. The action was dismissed by the Supreme Administrative Court in a final judgment on 16 November 2011. It noted that the municipality had not acted unlawfully and had offered various solutions which the first applicant and her husband had rejected.
II. RELEVANT DOMESTIC LAW AND PRACTICE
14. The relevant domestic law in force until 1996-98 concerning the expropriation of property for public use and the provision of compensation, as well as the relevant domestic practice, have been summarised in the Court’s judgment in the case of Kirilova and Others v. Bulgaria (nos. 42908/98, 44038/98, 44816/98 and 7319/02, §§ 72-79, 9 June 2005).
15. In particular, section 100 of the TUPA provided that, following an expropriation, a supplementary decision by the respective mayor had to designate the exact property to be offered in compensation to the owners. Such a decision could be amended by the mayor, at the request of the owners whose property had been expropriated, to provide compensation in cash or with other property (section 103(5) of the TUPA). In 1996 and 1998 the provisions of the TUPA regarding expropriation for public use were superseded by other rules, but it was provided that the earlier provisions, although repealed, would continue to govern pending expropriation proceedings.
16. The Territorial Planning Act 2001 also provides that where expropriation proceedings have commenced under the TUPA and the owners of any expropriated property have not yet received the compensation due to them, but the property has already been taken by the authorities, the former owners can seek financial compensation (section 9(1) of the transitional provisions of the Territorial Planning Act). The national courts have accepted that such compensation should be calculated on the basis of what the value of the expropriated property would have been at the time of the compensation decision (Решение № 413 от 24.03.2008 г. на АдмС - Варна по адм. д. № 14/2007 г.; Решение № 28 от 21.05.2009 г. на АдмС - София по адм. д. № 1490/2009 г.; Решение № 928 от 26.05.2011 г. на АдмС - Пловдив по адм. д. № 2800/2010 г.; Решение № 363 от 27.06.2013 г. на АдмС - Плевен по адм. д. № 406/2013 г.).
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
17. The applicants complained that the authorities in Razgrad had failed for many years to provide the garage that was due to them, and that they lacked an effective domestic remedy in that regard.
18. The applicants relied on Article 1 of Protocol No. 1 and Article 13 of the Convention. The Court is of the view that it suffices to examine the complaints solely under Article 1 of Protocol No. 1, which 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.”
19. The Government did not comment on the admissibility and merits of the application.
20. The Court notes that the application 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.
21. On the merits, the Court starts by noting that the case is similar to the ones examined by it in Kirilova and Others (cited above) and a number of follow-up cases (see, for example, Lazarov v. Bulgaria, no. 21352/02, 22 May 2008; Antonovi v. Bulgaria, no. 20827/02, 1 October 2009; and Dichev v. Bulgaria, no. 1355/04, 27 January 2011).
22. As in the previous cases (see, for example, Kirilova and Others, § 104, and Antonovi, § 28, both cited above), the Court is of the view that the 1988 expropriation decision stating that the first applicant and her husband were to receive a garage in compensation for their expropriated property (see paragraph 6 above) created an entitlement in their favour, and in respect of the two other applicants as successors of their father (see paragraph 12 above), which has not been disputed by the authorities and qualifies as a “possession” within the meaning of Article 1 of Protocol No. 1. The authorities’ failure to provide the garage amounts to an interference with the applicants’ rights which falls to be examined under the first sentence of the first paragraph of Article 1 of Protocol No. 1, laying down in general terms the principle of the peaceful enjoyment of property (see Kirilova and Others, § 105, and Lazarov, § 28, both cited above).
23. To ascertain whether or not the Bulgarian State has complied with its obligations under Article 1 of Protocol No. 1, the Court must examine whether a fair balance has been struck between the general interest and the applicants’ rights. It is to take into account, in particular, the length of the delay in the provision of compensation, the conduct of the parties, and whether or not the authorities demonstrated willingness to resolve the problem (see Kirilova and Others, cited above, §§ 106 and 123).
24. The entitlement in favour of the first applicant and H.P., respectively the three applicants, to be provided with a garage arose in 1988. However, the Court will only take into account the period which is within its temporal jurisdiction, namely after 7 September 1992 when Protocol No. 1 entered into force in respect of Bulgaria. The applicants have not yet received the garage due to them, or any alternative compensation, twenty-four years after that date.
25. However, the Court is not satisfied that that lengthy delay should be entirely imputable to the authorities. It points out that by 2006 at the latest the first applicant and H.P., and subsequently the three applicants, must have become aware of the fact that the building where the garage promised to them was to be located would never be constructed, as it was around that time that the construction of another building, without garages, was authorised in the same place. The mayor wrote to the first applicant and H.P. to offer them a different means of compensation (see paragraphs 10-11 above).
26. In relation to those developments, the Court notes, first of all, that it cannot blame the authorities in Razgrad for their decision to authorise the construction of a building without garages as it is prepared to accept that there can be changes to urban development plans after many years have gone by.
27. Next, the Court observes that even though the first applicant and H.P. stated in 2006 that they did not wish to receive financial compensation (see paragraph 11 above), it was precisely that kind of compensation that the applicants sought when bringing tort proceedings against the Razgrad municipality in 2010 (see paragraph 13 above). Moreover, in the proceedings before the Court the applicants also claimed monetary compensation for the authorities’ failure to construct and deliver their garage (see paragraph 35 below).
28. However, the first applicant and H.P., and subsequently the three applicants, could have sought such compensation directly from the municipal authorities in Razgrad under the TUPA or the Territorial Planning Act (see paragraphs 15-16 above) as early as 2006. Such an action on their part could have “unblocked” the expropriation procedure and allowed its completion (see, for a similar situation, Velyov and Dimitrov v. Bulgaria (dec.) [Committee], no. 64570/10, §§ 27-31, 20 September 2016). In addition, as already noted, the applicants appeared to accept in principle that financial compensation was an alternative. They have not argued that the ways to claim such compensation provided by domestic law were unavailable to them, or that such compensation would have been inadequate.
29. Accordingly, when assessing whether the fair balance required under Article 1 of Protocol No. 1 (see paragraph 23 above) has been struck in this case, the Court will not take into account any delays in providing compensation to the applicants which accrued after 2006. It considers that after that date it was up to the first applicant and H.P., and then the three applicants, to bring about the completion of the expropriation procedure, in a manner which they apparently did not object to.
30. Nevertheless, the Court observes that prior even to 2006 the municipal authorities in Razgrad were under an obligation to compensate the first applicant and H.P., and that no explanation has been provided for their failure to do so during that period. The only information available to the Court is that in 1996 the municipality offered a garage in another part of the city to the first applicant and H.P., which they refused (see paragraph 9 above). However, they cannot be blamed for refusing property situated elsewhere (see Mihaylov v. Bulgaria [Committee], no. 50371/09, § 20, 13 October 2016), nor has it been shown that they could have been aware at that time that the garage due to them would never be constructed.
31. Mindful of its considerations above as to the period after 2006, the Court, nevertheless, finds that the initial delay of fourteen years (1992-2006) in providing compensation for the expropriated property of the first applicant and H.P., for which no justification has been provided, is sufficient for it to conclude that the applicants - the second and third applicants as successors of their father - have had to suffer a special and excessive burden (see Kirilova and Others, cited above, §§ 109 and 123, where one of the cases concerned a delay of twelve years, and Kovacheva v. Bulgaria [Committee], no. 2423/09, § 27, 10 November 2016). As already noted, the first applicant and H.P. did not contribute to that delay, and it has not been shown that during the period of time at issue the municipal authorities in Razgrad acted with the diligence and willingness to find a solution required under Article 1 of Protocol No. 1.
32. Accordingly, there has been a breach of that provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. 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.”
34. The Government submitted a valuation, assessing the market value of the garage due to the applicants at 11,017 Bulgarian levs (BGN) or 5,607 euros (EUR).
35. The applicants did not petition the Court to instruct the authorities to provide the garage due to them or an equivalent one. They claimed the market value of the garage, as assessed in the expert report mentioned above.
36. In addition, the applicants claimed BGN 5,000, the equivalent of EUR 2,545, for the lost opportunity of not being able to use the garage to which they were entitled, for the period between 2005 and 2012.
37. Lastly, the first applicant claimed BGN 3,000, the equivalent of EUR 1,527, in respect of non-pecuniary damage and the other applicants made no claims.
38. The Government did not comment.
39. The Court, referring to its finding above that the applicants could claim directly from the local authorities in Razgrad financial compensation, a possibility which is still open, sees no justification to award them the value of the garage described in the decision of 24 July 1991 (see paragraph 7 above). Moreover, the national authorities are in a better position to assess the possible implications of the fact that at the time the first applicant and H.P. failed to pay in the value of the garage allocated to them (ibid.).
40. In addition, the Court sees no justification to award damages to the applicants for the lost opportunity to use and enjoy the garage due to them. Even though it has not been claimed that they were able to receive compensation in that regard at the domestic level, the Court notes that their claim only concerned the period after 2005 (see paragraph 36 above), and that it has found that the delay after 2006, that is for nearly the whole period to be compensated, was imputable to them.
41. By contrast, in respect of non-pecuniary damage, the Court allows the first applicant’s claim (see paragraph 37 above) in full, awarding her EUR 1,527.
B. Costs and expenses
42. The applicants also claimed BGN 1,039, the equivalent of EUR 529, for the costs and expenses incurred by them in the domestic tort proceedings (see paragraph 13 above). They presented the relevant decisions and receipts. For the proceedings before the Court they claimed BGN 720, the equivalent of EUR 366, for legal representation, and BGN 7.10, the equivalent of EUR 4, for postage, submitting the relevant receipts.
43. The Government did not comment.
44. The Court sees no justification to award the costs and expenses incurred in the domestic proceedings. As already discussed above (see paragraphs 27-28), the applicants could have obtained what they claimed in these proceedings, namely financial compensation, directly from the Razgrad municipality.
45. On the other hand, the Court allows the applicants’ claims related to the current proceedings in full, as these costs and expenses, totalling EUR 370, appear to have been actually and necessarily incurred and are reasonable as to quantum.
C. Default interest
46. The Court considers it appropriate that the default interest rate 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;
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) to the first applicant, EUR 1,527 (one thousand five hundred and twenty-seven euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) to the three applicants jointly, EUR 370 (three hundred and seventy euros), plus any tax that may be chargeable to the applicants, 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’ claim for just satisfaction.
Done in English, and notified in writing on 2 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie Dougin Ganna
Acting Deputy Registrar President