CASE OF BASMENKOVA v. BULGARIA
(Application no. 63391/13)
6 April 2017
This judgment is final but it may be subject to editorial revision.
In the case of Basmenkova v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Faris Vehabović, President,
Lәtif Hüseynov, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,
Having deliberated in private on 14 March 2017,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 63391/13) 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 Maria Nikolaeva Basmenkova (“the applicant”), on 21 September 2013.
2. The applicant was represented by Ms A. Gavrilova-Ancheva, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice.
3. On 10 January 2014 the complaints concerning the continued failure of the authorities to provide compensation to the applicant for her husband’s 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 applicant was born in 1937 and lives in Sofia.
5. The applicant’s husband owned part of a house and a yard in Sofia.
6. By a decision of the mayor of 15 October 1981 the property was expropriated with a view to constructing a metro station. The decision, based on section 98(1) of the Territorial and Urban Planning Act of 1973, provided that the applicant’s husband was to be compensated with a three-room flat in a building which the municipality planned to construct.
7. In 1989 the applicant and her husband were moved out of the expropriated property and settled in a two-room municipally-owned flat. The expropriated house was subsequently pulled down.
8. By a supplementary decision of 1 September 1989, based on section 100 of the Territorial and Urban Planning Act, the mayor determined the exact location, size and other details in respect of the future flat offered in compensation, which was to measure 94 square metres.
9. In 1993 the applicants’ husband passed away, after which the applicant became the owner of the future flat allocated in compensation to him.
10. In the years that followed the applicant requested on many occasions that the authorities complete the compensation procedure and deliver the flat due to her, but to no avail. The construction of the building in which the flat was to be located did not commence.
11. In 2001 the applicant brought a tort action, claiming wrongful failure on the part of the Sofia municipality to build and provide her with the flat due to her during the period from January 1993 to September 2001. In a final judgment of 6 March 2008 the Supreme Court of Cassation, holding that the municipality was responsible for the failure to deliver the flat within a reasonable time-limit, awarded the applicant 10,000 Bulgarian levs (BGN) in non-pecuniary damage and BGN 44,320 for loss of profit.
12. In 2009 the applicant brought a new tort action against the Sofia municipality covering the period after October 2001. The action was dismissed in a final judgment of the Supreme Administrative Court of 22 March 2013, on the ground that the applicant had had a special remedy at her disposal, namely the possibility provided for in section 9(1) of the transitional provisions of the Territory Planning Act 2001 to claim monetary compensation for the expropriated property instead of compensation with a flat (see paragraph 16 below).
13. In 2013 the Sofia municipality informed the applicant that the construction of the building where the flat due to her was to be located was to start in the near future. According to the latest information submitted by the parties in 2014, the municipality was looking for a company to carry out the construction works.
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 Territorial and Urban Planning Act (Закон за териториалното и селищно устройство) 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 Act). In 1996 and 1998 the provisions of the Territorial and Urban Planning Act 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 (Закон за устройство на територията) provides, in section 9(1) of its transitional provisions, that where expropriation proceedings have commenced under the earlier legislation and the owners of any expropriated property have not yet received the compensation due to them, the former owners can seek financial compensation.
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
17. The applicant complained of the authorities’ continued failure to provide her with the flat due to her in compensation for her husband’s expropriated property.
18. Even though the applicant 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. That provision 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. Arguments of the parties
19. The Government argued that the applicant was partially to blame for the delay in the compensation proceedings, as she had not resorted to the possibility provided for section 9(1) of the transitional provisions in the Territorial Planning Act 2001 (see paragraph 16 above) to seek financial compensation. On the same ground, the Government claimed that the applicant had failed to exhaust the available domestic remedies. They pointed out in addition that the delay in completing the compensation procedure had been due to the Sofia municipality’s financial difficulties in the period after 1989, marked with social changes and economic hardship.
20. The applicant pointed out that she had not been obliged, but only entitled, to resort to the procedure provided for in section 9(1) of the transitional provisions in the Territorial Planning Act 2001, and even more so in light of the fact that the municipal authorities in Sofia had never actually abandoned their intention to construct the building where her flat was to be located.
B. The Court’s assessment
21. The Court takes note of the Government’s objection for non-exhaustion of domestic remedies, based on the fact that the applicant has not applied for financial compensation (see paragraph 19 above). However, it considers it more appropriate to respond to this argument when examining the merits of the case, namely when discussing whether the authorities were entirely responsible for the delays in the compensation procedure.
22. The Court notes further that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other grounds. It must therefore be declared admissible.
23. 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).
24. 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 decisions of 15 October 1981 and 1 September 1989 stating that the applicant’s husband was to receive a flat in compensation for his expropriated property (see paragraphs 6 and 8 above) created an entitlement in his favour, and in favour of the applicant as his sole heir, which has not been disputed by the authorities and qualifies as a “possession” within the meaning of Article 1 of Protocol No. 1. The prolonged failure on the part of the authorities to provide the flat at issue amounts to an interference with the applicant’s 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).
25. 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 applicant’s 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).
26. The entitlement in favour of the applicant’s husband, respectively the applicant, to be provided with a flat arose in 1981 (see paragraph 6 above). 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.
27. As of the latest submissions by the parties in 2014, namely twenty-two years later, the applicant had not yet received her flat.
28. The Government argued that the applicant was herself to blame for part of that delay, because she had not used the possibility provided for under domestic law to apply for financial compensation for her husband’s expropriated property, in lieu of compensation with a flat.
29. Indeed, in a recent case the Court held that applicants in a situation similar to that of the applicant in the present case were partially to blame for the delay in receiving compensation for their expropriated property, as they could have requested monetary compensation once it had become clear that the property due to them, a garage, would never be constructed (see Petrovi v. Bulgaria [Committee], no. 26759/12, §§ 25-28, 2 February 2017). In another case raising similar issues, the Court observed that the applicants could have also sought compensation through other property, as provided for under section 103(5) of the Territorial and Urban Planning Act (see paragraph 15 above), seeing that, once again, it had become clear that the one due to them would never be constructed (see Velyov and Dimitrov v. Bulgaria (dec.) [Committee], no. 64570/10, 20 September 2016).
30. However, the situation in the present case is different, in that the Sofia municipality never abandoned its plans to construct the building with the applicant’s flat, and as a matter of fact the preparation of the construction started effectively in 2013-14 (see paragraph 13 above). Accordingly, unlike the cases discussed in the previous paragraph, the applicant should not be criticised for her decision to await that construction and not seek alternative solutions, such as financial compensation or compensation through other property. Thus, she cannot be blamed for failing to take action to bring about the earlier completion of the compensation procedure.
31. In view of the above the Court concludes that the whole delay in providing compensation to the applicant was imputable to the domestic authorities. That delay is clearly excessive, and the Government have provided no valid justification for it. In particular, in so far as they referred to the financial difficulties experienced by the Sofia municipality (see paragraph 19 above), the Court reiterates that this in itself cannot justify such a lengthy delay in constructing and providing the flat due to the applicant (see Kirilova and Others, cited above, § 122).
32. 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 of that, for many years they remained inactive, leaving the applicant in a state of uncertainty as to whether and when she would receive the compensation to which she was entitled. To this must be added the lack of effective domestic remedies for rectifying the situation (see Kirilova and Others, §§ 121 and 123, Antonovi, § 30, and Dichev, § 30, all cited above). The above means that the authorities failed to strike a fair balance between the general interest and the applicant’s rights, as required under Article 1 of Protocol No. 1.
33. There has accordingly been a violation of that provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
34. 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.”
35. Referring to the imminent construction of the flat due to her, the applicant stated that she did not claim any damage on account of the continuing failure of the authorities to deliver it.
36. On the other hand, she claimed compensation for the prolonged impossibility to use and enjoy the flat at issue. Her claim concerned the period after 2001, because she had been awarded compensation at the domestic level for the period before that (see paragraph 11 above). The applicant pointed out that she owned a house in the town of Dragoman, situated at about forty kilometres from Sofia, where she would have been able to live, letting out the flat due to her. Accordingly, she claimed the profit she would have received from rent.
37. The applicant’s claim amounted to 40,393 euros (EUR). In support of it she relied on an expert report drawn up in the context of the proceedings described in paragraph 12 above, and on a further report prepared for the purposes of the present proceedings by an expert appointed by her, who took into account the rent which she could have received and the interest on it, the expenses for maintaining the property and for taxation, the possible difficulties in finding tenants, and the fact that the applicant was in the meantime housed for free in a municipally-owned dwelling.
38. Lastly, the applicant claimed EUR 2,500 for non-pecuniary damage. She pointed out that the municipally-owned dwelling where she had been settled in 1989 was smaller than the one due to her and was situated far away from the city centre, which rendered difficult her professional activities and her social life. Lastly, she took into account the amount already awarded to her at the domestic level (see paragraph 11 above).
39. The Government contested the claims. In particular, as regards the claim for pecuniary damage, they expressed doubt as to whether the applicant would have indeed lived in her house in Dragoman, seeing that she already considered her professional and social life encumbered due to having to live away from the city centre in Sofia, as seen from her explanations related to her claim for non-pecuniary damage. In addition, the Government pointed out that the applicant had already received partial compensation at the domestic level.
40. As concerns the claim for lost rent, the Court shares the Government’s doubts as to whether the applicant would have indeed let out the flat which the municipality was obliged to provide to her. Indeed, as pointed out by the Government, it appears unlikely that the applicant would choose to live in Dragoman, seeing that she was already displeased by having to live in Sofia, but away from the city centre. Nevertheless, the Court agrees that the applicant must have suffered some loss of opportunity on account of not being able to use and enjoy the flat due to her over a substantial period of time. Considering the amount claimed by her exaggerated, and also taking into account the fact that she already received partial compensation at the national level (see paragraph 11 above), the Court awards her EUR 6,000 under the present head.
41. For non-pecuniary damage, the Court, considering that the applicant must have experienced frustration as a result of the authorities’ failure to deliver the flat and of their reluctance to solve the problem for such a lengthy period of time, and taking once again into account the fact that the applicant received partial compensation at the domestic level, finds it appropriate to award the applicant EUR 2,000.
B. Costs and expenses
42. The applicant claimed EUR 735 for the proceedings before the Court, an amount which covered postage, as well as the fees charged by her lawyer and the expert who had drawn up the valuation report presented in support of her claim for pecuniary damage (see paragraph 37 above). In order to substantiate these claims, the applicant presented invoices and receipts showing that she had paid the equivalent of those amounts in Bulgarian levs.
43. The Government contested the claims.
44. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses 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 documents in its possession and the above criteria, the Court awards the amount claimed, namely EUR 735, in full.
C. Default interest
45. 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 the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 735 (seven hundred and thirty-five euros), plus any tax that may be chargeable to the applicant, 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 applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 April 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Anne-Marie Dougin Faris
Acting Deputy Registrar President