European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

 

CASE OF RASHKOVA AND SIMEONSKA v. BULGARIA

 

(Application no. 41090/12)

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

STRASBOURG

 

2 February 2017

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Rashkova and Simeonska v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Ganna Yudkivska, President,
          Faris Vehabović,
          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:

PROCEDURE

1.  The case originated in an application (no. 41090/12) 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 two Bulgarian nationals, Ms Nevena Petrova Rashkova and Ms Rayna Dyankova Simeonska (“the applicants”), on 19 June 2012.

2.  The applicants were represented by Mr S. Petkov, a lawyer practising in Sofia. 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 lengthy delays on the part of the authorities in providing the applicants with compensation for their legal predecessors’ 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.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  The applicants were born in 1970 and 1935 respectively and live in Sofia and Ruse.

5.  D.D., father of the second applicant and grandfather of the first applicant, and his son P.R., father of the first applicant, owned a plot of land and a house in Popovo.

6.  By two decisions of the mayor of 9 May 1988 and 27 February 1989 the property was expropriated with a view to constructing a residential building. The decisions, based on section 98(1) of the Territorial and Urban Planning Act of 1973 (Закон за териториалното и селищно устройство - hereinafter “the TUPA”), provided that D.D. was to be compensated with a two-room flat in a building which the municipality planned to construct on the expropriated plot, and P.R. with the right to build a house on municipally owned land.

7.  In 1989 the expropriated house was pulled down and in 1994 construction work was started on the site.

8.  By a supplementary decision of 19 April 1991, based on section 100 of the TUPA, the mayor specified the exact location and size of the future flat to be offered to D.D. No supplementary decision was issued however with regard to the right to build a house on municipally owned land which was due to P.R.

9.  D.D. and P.R. passed away in 1998 and 2002 respectively, and D.D.’s wife passed away in 2011. This left the two applicants as heirs of D.D., and the first applicant as sole heir of P.R.

10.  On an unspecified date in 2005 the applicants requested that the mayor of Popovo revoke the expropriation order in respect of their predecessors’ property, under paragraph 9(2) of the transitional provisions of the Territorial Planning Act (Закон за устройство на територията, see paragraph 17 below). The mayor did not respond, which under domestic law was considered a tacit refusal. After the applicants applied for judicial review, the refusal was upheld by the courts, in judgments of the Targovishte Administrative Court (“the Targovishte Court”) and the Supreme Administrative Court of 9 March and 11 July 2006 respectively.

11.  Following a fresh request by the applicants for the revocation of the expropriation order, in judgments of 10 November 2006 and 25 April 2007 the Targovishte Court and the Supreme Administrative Court annulled a new tacit refusal on the part of the mayor, acknowledging that the preconditions for such a revocation had indeed not been met, but instructing the mayor to examine the applicants’ request under paragraph 9(1) of the transitional provisions of the Territorial Planning Act, providing for the possibility of monetary compensation (see paragraph 17 below).

12.  As the mayor failed once again to take a decision on the applicants’ request, on an unspecified date they challenged his new tacit refusal, which was annulled once again by the Targovishte Court and the Supreme Administrative Court, in judgments of 27 September 2007 and 3 April 2008 respectively.

13.  Following that, on two occasions (3 June 2009 and 15 June 2010) the mayor refused expressly to revoke the expropriation order in respect of the applicants’ property. After the applicants challenged these refusals, they were found to be null and void by the courts, the first one in a final judgment of the Supreme Administrative Court of 21 May 2010, and the second one in a judgment of the Varna Administrative Court of 25 March 2011. The courts, finding that the fresh refusals were in contradiction with the earlier court judgments in cases between the same parties, sent the case back to the mayor, instructing him once again to examine it under paragraph 9(1) of the transitional provisions of the Territorial Planning Act.

14.  In April 2011 an expert commission of the municipality assessed the value of the expropriated property and set the amount of compensation to be provided to the applicants at 67,300 Bulgarian levs (BGN). After the applicants challenged that amount, in a judgment of 21 December 2011 the Targovishte Court increased it to BGN 83,500.

15.  That sum was paid to the applicants in June 2012.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

16.  The relevant domestic law concerning the expropriation of property for public use, the provision of compensation and the domestic practice related thereto, 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).

17.  The provisions of the TUPA regarding expropriation of property for public use were superseded by other legislation in 1996 and 1998. In 2001 the Territorial Planning Act provided that, as concerns cases where the expropriation proceedings had commenced under the TUPA and where the owners of expropriated property had not yet received the compensation due to them but the property had already been taken by the authorities, the former owners could claim monetary compensation (paragraph 9(1) of the transitional provisions of the Territorial Planning Act). Where, by contrast, the authorities had not yet taken possession of the expropriated property, the owners could seek the revocation of the expropriation order and the restitution of the property (paragraph 9(2)).

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

18.  The applicants complained of the lengthy delays on the part of the authorities in providing them with compensation for their predecessors’ expropriated property.

19.  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 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.”

20.  The Government did not comment on the admissibility and merits of the application.

21.  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.

22.  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; Dichev v. Bulgaria, no. 1355/04, 27 January 2011; and Petrovi v. Bulgaria [Committee], no. 9504/09, 13 October 2016).

23.  As in those previous cases (see, for example, Kirilova and Others, § 104, and Antonovi, § 28, both cited above), the Court is of the view that the expropriation orders of 1988 and 1989 stating that the applicants’ relatives were to receive compensation for their expropriated property (see paragraph 6 above) created an entitlement in their favour, and in respect of the applicants as their successors (see paragraph 9 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’ prolonged failure to provide that compensation - in the form of a flat or the right to construct on municipally owned land promised initially, or the monetary compensation provided eventually - 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, which lays down in general terms the principle of the peaceful enjoyment of property (see Kirilova and Others, § 105, and Lazarov, § 28, both cited above).

24.  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 was struck between the general interest and the applicants’ rights. Very long delays in the provision of compensation, coupled with an unwillingness on the part of the authorities to resolve the problem, are amongst the factors that can upset that balance (see Kirilova and Others, cited above, § 123).

25.  In this case, the entitlement in favour of the applicants’ relatives and subsequently the two applicants to receive compensation for their expropriated property arose initially in 1988 (see paragraph 6 above). However, the Court will only take into account the period which is within its temporal jurisdiction, specifically after 7 September 1992 when Protocol No. 1 entered into force in respect of Bulgaria. The applicants received monetary compensation in 2012 (see paragraph 15 above), some twenty years after that date. That delay is clearly excessive.

26.  The Court has not been informed of the reasons for the authorities’ failure to provide compensation to the applicants before 2005. As to the period after that, it observes that the applicants made continuous attempts to bring about the completion of the compensation procedure, by seeking first the revocation of the expropriation order in respect of their predecessors’ property, and then, when told by the courts that the preconditions for such a revocation had not been met, by claiming monetary compensation, as they were entitled to do under domestic law. However, for many years the mayor of Popovo failed to take any meaningful decision in relation to their requests, even after having been repeatedly ordered to do so by the national courts (see paragraphs 10-13 above). A decision as to the monetary compensation to be provided to the applicants was taken by the municipal authorities only in 2011 (see paragraph 14 above).

27.  In cases like the present one it is incumbent on the authorities to act in good time and in an appropriate and consistent manner. Instead, as noted above, they proved reluctant to assist the applicants and even chose, for many years, to actively oppose their attempts to bring about the completion of the compensation procedure. This undoubtedly left the applicants in a state of uncertainty as to whether and when they would receive the compensation to which they were entitled. To this must be added the lack of effective domestic remedies for rectifying the situation. The above means that the authorities failed to strike a fair balance between the general interest and the applicants’ rights, as required under Article 1 of Protocol No. 1 (see Kirilova and Others, §§ 121 and 123; Antonovi, § 30; and Dichev, § 30, all cited above).

28.  There has accordingly been a violation of that provision.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

29.  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

30.  In respect of pecuniary damage, the applicants claimed 21,000 euros (EUR) on account of being unable to profit from the flat promised, and another EUR 21,000 on account of being unable to profit from the right to construct on municipally owned land, both due to their predecessors and subsequently to the applicants themselves, prior to the decision to award the applicants monetary compensation. The claims concerned the period after 1992, the date on which the Convention entered into force in respect of Bulgaria.

31.  For non-pecuniary damage, the applicants claimed jointly EUR 9,000.

32.  The Government contested the claims.

33.  The Court is of the view that it is justified to award the applicants damages for lost opportunity on account of their inability to use and enjoy the compensation due to them over a substantial period of time (see Kirilova and Others v. Bulgaria (just satisfaction), nos. 42908/98, 44038/98, 44816/98 and 7319/02, §§ 28-33, 14 June 2007). However, it considers their claims in that regard exaggerated, noting furthermore that the applicants have not specified how the amounts claimed were arrived at. Accordingly, the Court must rule on an equitable basis and finds it appropriate to award jointly to the two applicants EUR 4,000 for the impossibility to profit from the flat due to their predecessor, and to the first applicant another EUR 1,000 for the right to construct on municipally owned land which had been due to her father.

34.  In respect of non-pecuniary damage, ruling on an equitable basis, the Court awards each of the applicants EUR 3,000.

B.  Costs and expenses

35.  The applicants also claimed EUR 1,600 for the costs and expenses incurred for their legal representation before the Court.

36.  The Government urged the Court to dismiss this claim, pointing out that it was unsupported by any documentary evidence.

37.  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 are reasonable as to quantum. In the present case, regard being had to the fact, also pointed to by the Government, that the applicants have not submitted evidence for the costs and expenses claimed, the Court rejects their claim (see Grzelak v. Poland, no. 7710/02, § 115, 15 June 2010, and Mladoschovitz v. Austria, no. 38663/06, § 45, 15 July 2010).

C.  Default interest

38.  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;

 

3.  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)  jointly to the two applicants, EUR 4,000 (four thousand euros), and to the first applicant another EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  to each applicant, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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 Yudkivska
Acting Deputy Registrar                                                            President