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FIFTH
SECTION
CASE OF KUSHOGLU v. BULGARIA
(Application
no. 48191/99)
JUDGMENT
(just
satisfaction)
STRASBOURG
3
July 2008
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 Kushoglu v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Volodymyr
Butkevych,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 10 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48191/99) against the Republic
of Bulgaria lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mrs Ayten Kushoglu and Mr Mehmet Kushoglu (“the
applicants”), on 28 September 1998. The applicants have both
Bulgarian and Turkish nationality.
- In
a judgment delivered on 10 May 2007 (“the principal judgment”),
the Court held that there had been a violation of Article 1 of
Protocol No. 1 to the Convention (Kushoglu v. Bulgaria, no.
48191/99, 10 May 2007).
- Under
Article 41 of the Convention the applicants sought just satisfaction
for pecuniary and non-pecuniary damage and costs.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicants to submit, within six months, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach (ibid., § 69, and point
3 of the operative provisions).
- The
applicants, but not the Government, filed observations.
THE LAW
- 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
applicants sought restitution of their property or, if that was not
possible, its market value which in their view was between 50,000 and
60,000 euros (EUR). The applicants also claimed 20,500 Bulgarian levs
(BGN) (the equivalent of approximately EUR 10,400) in respect of loss
of profit, calculated on the basis of the rent the applicants would
allegedly have earned for the period 1989-2008.
- In
their submissions prior to the adoption of the principal judgment the
Government stated that the applicants could have sought restitution
under the Law on Restitution of Real Property of Bulgarian Citizens
of Turkish Origin Who Sought to Travel to Turkey or to Other
Countries in the Period May-September 1989, if they met the relevant
conditions. The Government also stated that the applicants could not
expect to recover property belonging to third persons.
- In
accordance with the Court’s case-law, where it has found a
breach of the Convention in a judgment, the respondent State is under
a legal obligation to put an end to that breach and make reparation
for its consequences. If national law does not allow – or
allows only partial – reparation to be made, Article 41
empowers the Court to afford the injured party such satisfaction as
appears to it to be appropriate. The Court enjoys a certain
discretion in the exercise of that power, as the adjective “just”
and the phrase “if necessary” attest. In particular, if
one or more heads of damage cannot be calculated precisely or if the
distinction between pecuniary and non-pecuniary damage proves
difficult, the Court may decide to make a global assessment (see
Comingersoll S.A. v. Portugal [GC], no. 35382/97, §
29, ECHR 2000-IV).
- In
so far as the Government may be understood as arguing that the
internal law allowed for reparation to be made, the Court notes that
the legislation referred to by the Government was not applicable in
the applicants’ case as they did not return to Bulgaria within
the relevant period (see paragraphs 7, 8 and 34 of the principal
judgment).
- In
its principal judgment in the present case the Court found that there
had been a violation of the general rule of peaceful enjoyment of
possessions, enshrined in the first sentence of Article 1 § 1 of
Protocol No. 1 to the Convention, in that the authorities failed
to assist the applicants in recovering their property from third
persons. This was the result of judicial decisions which did not meet
the Convention requirement of lawfulness.
- The
Court cannot accept the applicants’ claim for restitution. It
notes that the present case does not concern an illegal dispossession
of property by the State. Therefore, the State duty to wipe out the
consequences of the violation of the Convention does not encompass an
obligation to return the real estate at issue to the applicants.
Furthermore, the Court’s judgments in the present case are
without prejudice to the rights of Ms A. and Mr N. who possess the
property (see paragraphs 10-26 of the principal judgment).
- Having regard to the facts of the case and the nature
of the violation found, the Court considers that the payment of a sum
of money to the applicants will provide redress for the pecuniary
damage suffered by them as a consequence of the breach of the
Convention.
- As
far as can be established from the information and documents
submitted by the parties, the property at issue is a two-storey house
of approximately 120 square metres and a 330 square-metre yard. The
house is unfinished in that the external walls have no coating. The
property is located in Dulovo, a small town in north-eastern
Bulgaria. The Court notes that the applicants have not submitted a
valuation report and has had regard to information at its disposal
about real estate prices in Bulgaria.
- In
the Court’s view, however, the pecuniary damage suffered by the
applicants as a direct result of the violation of the Convention for
which the authorities were responsible was less than the value of the
disputed house and yard. It reiterates that the present case does not
concern a deprivation of property in the sense of Article 1 of
Protocol No. 1. It also notes that even if the authorities had acted
in conformity with that provision the applicants would not have been
entitled to unconditional recovery of possession since under
Bulgarian law Ms A. and Mr N. could retain the property pending
payment by the applicants of compensation for improvements, increase
in value and costs (section 72 of the Bulgarian Property Act). The
Court also notes that in July 1989 the applicants received 19,288
Bulgarian levs (BGL) for the property and they have not claimed that
the municipality had ever sought restitution of this amount following
the judgment of 17 January 1995 declaring the July 1989
transaction null and void (see paragraphs 9 and 15 of the principal
judgment).
- As
to the applicants’ claim for loss of profit, the Court finds
that it is speculative and unsubstantiated: it is unclear whether the
applicants would have been able to enter into possession of the
property and, if so, when, and it is unclear whether the applicants
would have rented out the property.
- Having
regard to the above considerations, the Court awards to the
applicants EUR 9,000 in respect of all pecuniary damage.
2. Non-pecuniary damage
- The
applicants stated that they had suffered distress as a result of the
violation of their rights and asked the Court to award an equitable
amount under this head. The Government considered that the applicants
had not suffered any damage.
- The
Court considers that the authorities’ unlawful refusal to
recognise the applicants’ property rights must have caused them
distress. Ruling on an equitable basis, it awards them jointly EUR
2,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants stated that they should be compensated for the court fees
and lawyers’ fees they had had to pay in the proceedings before
the domestic courts between 1992 and 1998. The amount paid by them
had been BGL 23,350 (“old” Bulgarian levs). The
applicants submitted a detailed account of the sums paid. The
Government stated that only costs before the Court could be
recovered.
- Having
regard to the facts of the case (see paragraphs 15-26 of the
principal judgment), the Court accepts that a significant part of the
costs incurred by the applicants before the domestic courts has been
necessarily incurred in their attempt to obtain redress for the
domestic courts’ failure to recognise their property rights
and, therefore, directly relates to the violation of the Convention
found in this case.
- The
Court also observes that, owing to the depreciation of the Bulgarian
currency in the period 1992-1999, the amount claimed by the
applicants is currently the equivalent of approximately EUR 13. It is
evident, however, that the real value of the sums spent by the
applicants was more significant at the time they were spent. The
Court also notes that the applicants sought recovery of the real
costs incurred by them.
- In
these specific circumstances, the Court must determine an amount
reasonably related to the value of the expenses incurred. Having
regard to the relevant facts, it awards EUR 100 in respect of costs
and expenses.
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
- Holds
(a) that
the respondent State is to pay the applicants, 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 (BGN) at the rate applicable at the
date of settlement:
(i) EUR
9,000 (nine 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
100 (one hundred 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;
- Dismisses unanimously the remainder of the
applicants’ claim for just satisfaction.
Done in English, and notified in writing on 3 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
