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FIFTH
SECTION
CASE OF TSONKOVI v. BULGARIA
(Application
no. 27213/04)
JUDGMENT
STRASBOURG
2 July 2009
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 Tsonkovi v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
judges,
Pavlina Panova, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 9 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27213/04) 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, Mrs Asenka Petrova
Tsonkova and Mr Geno Petrov Tsonkov (“the applicants”),
on 21 July 2004.
- The
applicants were represented by Ms S. Margaritova-Vuchkova, a lawyer
practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agents, Mrs S. Atanasova
and Mrs R. Nikolova of the Ministry of Justice.
- The
applicants alleged that they had been deprived of their property in
violation of Article 1 of Protocol No. 1 and Articles 6, 13 and 14 of
the Convention.
- On
5 March 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- Judge
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case (Rule 28 of the Rules of Court). On 30 January
2009 the Government appointed in her stead Ms Pavlina Panova as an ad
hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1
of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1952 and 1950 respectively and live in
Sofia. They are sister and brother.
- In
September 1967 their parents bought from the Sofia municipality a
three-room apartment of 108 square metres in the centre of the city,
which had become State property by virtue of the nationalisations
carried out by the communist regime in Bulgaria after 1947.
- In
1994 the applicants' parents conveyed the title to the property to
the applicants. All four of them – the applicants and their
parents – continued to live in the apartment.
- On
13 March 1998, following the amendments to the Restitution Law
whereby the initial one-year time-limit for bringing proceedings
under section 7 of that law was renewed (see paragraph 15 below), the
heirs of the former, pre-nationalisation, owners of the flat brought
such proceedings against the applicants' parents.
- In
March 2002 the applicants' mother died and the applicants joined the
proceedings as her heirs. On an unspecified later date their father
died too.
- The
proceedings ended by a final judgment of the Supreme Court of
Cassation of 26 March 2004. The courts found that the title of the
applicants' parents was null and void because documents
related to the sale of the apartment had not been signed by the
officials in whom the relevant power had been vested but by their
deputies.
- On
an unspecified date the former owners of the apartment brought a rei
vindicatio action against the applicants. Considering that they
stood no chance in these proceedings, in November 2004 the applicants
vacated the apartment. In December 2005 they bought from the
municipality an apartment in the outskirts of Sofia for 24,393
Bulgarian levs (BGN), the equivalent of approximately 12,450 euros
(EUR).
- On
8 July 2004 the applicants applied for compensation bonds. On 10
March 2005 their request was rejected by the regional governor, who
found that it had been lodged after the expiry of the statutory
two-month time-limit following the final judgment in their case. In
April 2005 the applicants lodged an appeal against the governor's
order, arguing that his refusal ran contrary to the purpose of the
Compensation Law. As of April 2009 the proceedings were still pending
at first instance before the Sofia City Court.
II. RELEVANT BACKGROUND FACTS, DOMESTIC LAW AND PRACTICE
- The
relevant background facts, domestic law and practice have been
summarised in the Court's judgment in the case of Velikovi and
Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99,
48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15
March 2007.
- In
1997 former pre-nationalisation owners who had missed the initial
one-year period under section 7 of the Restitution Law for bringing
an action against post-nationalisation owners were given a second
chance through a legislative amendment renewing the time-limit. On
11 March 1998 the Constitutional Court struck down the amendment
as it encroached on the principle of protection of property and legal
certainty (реш. 4 от 11.3.1998 по
к.д. 16/97). Nevertheless, as the judgments of the
Constitutional Court have no retroactive effect, the courts continued
to examine claims brought between the entry into force of the 1997
law renewing the time-limit and the Constitutional Court's judgment
of 11 March 1998.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicants complained under Article 1 of Protocol No. 1 that they had
been deprived of their property arbitrarily, through no fault of
their own and without adequate compensation. 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 contended that the taking of the applicants' property had
not been arbitrary and that the authorities had achieved a fair
balance between the general interest and the need to protect the
applicants' rights. Furthermore, the applicants were entitled to
receive compensation through bonds.
- The
applicants contested these arguments. They affirmed that they had
lost the apartment through no fault of their own or of their
parents'. They considered that their appeal against the regional
governor's refusal to provide them with bonds would most likely be
dismissed and that they would not receive anything. They acknowledged
that they had not filed a timely request for bonds but pointed out
that they had not been notified of the final judgment in their case.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes that the present complaint concerns the same legislation
and issues as Velikovi and Others,
cited above.
- The
applicants had to vacate their apartment as a result of the domestic
courts' decisions declaring null and void their parents' property
title, which they had inherited (see paragraphs 11 and 12 above). The
Government did not claim that as a result of these events the
applicants could no longer claim to be the owners of the flat at
issue. Therefore, there has been an
interference with their property rights.
- The
interference was based on the Restitution Law, which pursued in
principle an important aim in the public interest, namely to restore
justice and respect for the rule of law in the transitional period
after the fall of the totalitarian regime in Bulgaria.
- The
Court notes, however, that the action against the applicants' parents
was not brought within the initial one-year time-limit after the
adoption of the Restitution Law in 1992, but in March 1998, following
the legislative amendment of 1997 whereby the time-limit for actions
under its section 7 was renewed (see paragraph 15 above).
- As
the Court already found in Velikovi and Others (cited above),
the measures introduced by section 7 of the Restitution Law –
which authorised the challenging of decades-old property titles and
the taking of private property as compensation for the
nationalisations carried out by the State in the 1940s – could
only be seen as proportionate to the legitimate aim of restoring
justice where applied as an exceptional transitional step of short
duration in the period of social transformation from a totalitarian
regime to democracy (ibid., §§ 166, 172, 179 and 189). On
this basis the Court accepted that there had been no violation of
Article 1 of Protocol No. 1 in some of the cases in which the
restitution proceedings against the applicants had been instituted
within the relevant one-year time-limit after the adoption of the
Restitution Law (see Velikovi and Others, cited above,
§§ 194-216 and 229-35 and Shoilekovi and Others v.
Bulgaria (dec.), nos. 61330/00, 66840/01 and 69155/01, 8
September 2007). It stated, however that the same did not apply in
respect of interference with property rights resulting from the
renewal of the time-limit in 1997 (see Velikovi and Others,
cited above, § 189). The Government have not argued that in 1997
there were new particular circumstances justifying a repeated
recourse to the far-reaching measures introduced by section 7 of the
Restitution Law.
- Furthermore,
it is noteworthy that in its judgment of 11 March 1998 the Bulgarian
Constitutional Court also reached the conclusion that the impugned
1997 amendment to the Restitution Law encroached on the principle of
legal certainty. However, this judgment did not affect the decisions
in the present case as it had no retroactive effect (see paragraph 15
above) and the domestic courts were obliged to examine the action
against the applicants' parents.
- As
in Velikovi and Others,
the Court reaffirms in this case that by authorising a significant
departure from the transitory nature of the restitution legislation
the authorities violated the principle of legal certainty. Therefore,
the interference with the applicants' property rights cannot be seen
as falling within the scope of the legitimate aims that the said
legislation pursued in principle. In view of this finding, the Court
considers that it is not necessary to examine the specific grounds on
which the domestic courts nullified the title of the applicants'
parents.
- The
Court reiterates that cases like the present one, where the
deprivation of property was not part of measures associated with the
transition from a totalitarian to democratic society or where it
resulted from an excessively extensive application of the Restitution
Law in disregard of the principle of legal certainty (see the cases
of Todorova
and Eneva and Dobrev,
examined in Velikovi and Others,
§§ 236-49 of the judgment), nothing short of payment
reasonably related to the market value of the flat lost could
have maintained the requisite fair balance under Article 1 of
Protocol No. 1.
- However,
the applicants in the present case have not received the market value
of their flat (see paragraphs 12 and 13 above) and the Government
have not shown that such compensation was secured to them with
sufficient clarity and certainty.
- There
has therefore been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLES 6, 13 AND 14 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention that
in their case, in applying a provision which had already been found
to be unconstitutional, the domestic courts had decided arbitrarily.
Furthermore, they complained under Article 13 that they had no
effective remedy against the alleged violation of Article 1 of
Protocol No. 1 and under Article 14 that they had been discriminated
against in that the Restitution Law favoured pre-nationalisation
owners to the detriment of post-nationalisation ones.
A. Admissibility
- The
Court notes that these 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
- The
Court has examined above the applicants' complaint that they had been
the victims of an arbitrary deprivation of
property contrary to Article 1 of Protocol No. 1. Therefore,
it does not find it necessary to examine separately the complaints
under Articles 6 § 1, 13 or 14 of the Convention (see Velikovi
and Others, cited above, §§ 250-2).
III 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
- In
respect of damage, the Court considers it appropriate to follow the
criteria established in the just satisfaction
judgment in the cases examined in Velikovi
and Others (see Todorova
and Others v. Bulgaria (just
satisfaction) nos.
48380/99 et al., 24 April 2008). The case at hand is similar to the
cases of Todorova
and Eneva and Dobrev,
examined in Todorova and Others,
in that the taking of the applicants' property was contrary to the
principle of legal certainty. Like in those two cases, the Court
finds it appropriate to award separate sums for pecuniary and
non-pecuniary damage (see paragraph 11 of Todorova
and Others, cited above).
1. Pecuniary damage
- The
applicants claimed jointly 186,008 euros (EUR) in respect of the
value of the apartment they had lost. They submitted two valuation
reports by an expert commissioned by them. In the first report, dated
April 2004, the expert assessed the value of the apartment at EUR
115,000. In the second report, prepared in May 2008, she considered
that the value of the property was EUR 186,008.
- The
Government considered this claim to be excessive.
- The
Court, having regard to the circumstances of the case and to
information on its disposal about real-estate prices in Sofia, awards
jointly to the applicants EUR 130,000 under this head.
2. Non-pecuniary damage
- The
applicants claimed EUR 8,000 each, or EUR 16,000 in total.
- The
Government urged the Court to reject this claim.
- The
Court considers that the applicants have undoubtedly suffered anguish
and frustration as a result of the violation of their property
rights. Having regard to the circumstances of the case and deciding
on an equitable basis, the Court awards EUR 3,000 to each of them
(EUR 6,000 in total).
B. Costs and expenses
- The
applicants claimed EUR 3,360 for forty-eight hours of legal work by
their lawyer, Mrs S. Margaritova-Vuchkova, at an hourly rate of EUR
70, for the proceedings before the Court. They also claimed EUR 280
for four hours of work by Mrs Margaritova-Vuchkova in the domestic
proceedings for compensation bonds. In support of these claims they
presented a contract for legal representation and a time-sheet. They
requested that any sums awarded under this head be paid directly into
the bank account of Mrs Margaritova-Vuchkova.
- The
applicants also claimed, in respect of the proceedings before the
Court, 500 Bulgarian levs (BGN), the equivalent of EUR 256, already
paid by them for legal work by Mrs Margaritova-Vuchkova, and BGN
395 (the equivalent of EUR 203) for postage and translation. They
further claimed BGN 628.50 (the equivalent of EUR 322) in
expenses incurred in the domestic proceedings concerning the flat. In
support of these claims they presented the relevant receipts.
- The
Government considered the claims for legal work by
Mrs Margaritova-Vuchkova to be 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 are
reasonable as to quantum.
- In
respect of Mrs Margaritova-Vuchkova's fees for the present
proceedings, the Court considers that the number of hours of work
claimed is excessive. In view thereof, the Court awards EUR 2,000
under this head, to be paid directly into the bank account of Mrs
Margaritova-Vuchkova.
- The
Court considers that it is not necessary to award expenses for the
domestic proceedings for compensation bonds. It notes that the
applicants' request for such bonds was lodged out of time (see
paragraph 13 above) and that, consequently, they stand little, if
any, chance to succeed in these proceedings.
- In
respect of the remaining costs and expenses claimed by the
applicants, the Court, having regard to the information in its
possession, finds that they were actually and necessarily incurred
and are reasonable as to quantum. It thus awards the whole sum
sought, that is, EUR 781 in total.
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 application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that it is not necessary to examine
separately the complaints under Articles 6 § 1, 13 and 14 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, 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 at the rate
applicable at the date of settlement:
i. EUR
130,000 (one hundred and thirty thousand euros) in respect of
pecuniary damage and EUR 6,000 (six thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
ii. EUR
2,781 (two thousand seven hundred eighty-one euros), plus any tax
that may be chargeable to the applicants, in respect of costs and
expenses, EUR 2,000 of which is to be paid directly into the bank
account of the applicants' legal representative;
(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 2 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
