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FIFTH
SECTION
CASE OF DIMITAR AND ANKA DIMITROVI v. BULGARIA
(Application
no. 56753/00)
JUDGMENT
STRASBOURG
12
February 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 Dimitar and Anka
Dimitrovi 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,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 20 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56753/00) 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, Mr Dimitar Angelov
Dimitrov and Mrs Anka Vasileva Dimitrova (“the applicants”),
on 23 November 1999.
- The
applicants were represented by Mr T. Borodjiev and Mr I. Maznev,
lawyers practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs S. Atanasova
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 Article 6 of the
Convention.
- On
9 November 2007
the President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on its
admissibility and merits at the same time (Article 29 § 3).
- The
applicants and the Government each submitted observations on the
admissibility and merits of the case (Rule 59 § 1).
- Judge
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case (Rule 28 of the Rules of Court). On 1 October
2008, the Government, pursuant to Rule 29 § 1 (a), informed the
Court that they had appointed in her stead another elected judge,
namely Judge Lazarova Trajkovska.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1942 and 1946 respectively and live in Sofia.
- In
1972 the applicants purchased from the Sofia municipality a
three room apartment of seventy-four square metres located in a
three storey building in the centre of the city. The apartment
had become State property by virtue of the nationalisations carried
out by the communist regime in Bulgaria in 1947 and the
following several years.
- In
November 1992 some of the heirs of the former pre-nationalisation
owner brought proceedings against the applicants under section 7 of
the Restitution Law.
- As
the proceedings had not been brought by all heirs of the
pre nationalisation owner, they only concerned half of the
applicants' apartment. The proceedings ended by a final judgment of
the Supreme Court of Cassation of 26 May 1999.
- The
courts found that the applicants' title was null and void because the
area where the apartment was located had been earmarked for
construction of buildings of more than three storeys, according to
the Sofia building plan of the 1970s, and the relevant legislation
prohibited the sale of apartments in three-storey buildings located
in such areas.
- In
1998 and 1999 other heirs of the pre-nationalisation owner brought
proceedings against the applicants under section 7 of the Restitution
Law seeking to recover the remaining half of the apartment. It
appears that those proceedings were terminated as time-barred.
- In
1999 the applicants requested to be accommodated as tenants in a
municipal dwelling. This was refused as they still owned one half of
the apartment.
- In
2000 the applicants vacated half of the apartment, which the restored
owners started to use.
- The
applicants vacated the whole apartment in 2005 when they and the
restored owners sold their respective parts of the property to a
third party. The applicants received 70,000 euros (EUR). On an
unspecified date the new owner demolished the building.
- In
1998 the applicants requested compensation bonds. On 17 April 2001
the regional governor granted the request and ordered that an expert
be appointed to assess the value of the property. On 6 June 2001 the
governor issued another order rectifying an obvious error in the
first one. The applicants did not visit the governor's office to
receive the new order and the proceedings were apparently stayed.
II. RELEVANT BACKGROUND FACTS, DOMESTIC LAW AND PRACTICE
- The
relevant background facts and 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.
- Shortly
after the adoption of that judgment, on 8 May 2007 the Government
published regulations implementing section 7 (3) of the Restitution
Law (State Gazette no. 37 of May 2007). The regulations enable
persons currently in possession of housing compensation bonds to
obtain payment at face value from the Ministry of Finance.
THE LAW
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicants complained that they had been deprived of their property –
in this case half of an apartment – in violation of
Article 1 of Protocol No. 1 to the Convention, 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.”
- With
reference to the criteria adopted by the Court in its Velikovi and
Others judgment, cited above, the Government argued that the
interference with the applicants' rights had been proportionate as
the 1972 contract had been concluded in material breach of the
relevant law. In any event, a fair balance between the public
interest and the applicants' rights was achieved as the applicants
had only been deprived of half the apartment and had been able to use
the other half until 2005. Furthermore, following the adoption of
regulations implementing section 7 (3) of the Restitution Law (see
above, Relevant background facts, domestic law and practice) adequate
compensation was available to the applicants. In this respect, it had
to be noted that the applicants' request for compensation bonds had
been granted and that it had been only because of their inaction that
the compensation procedure had been stayed.
- The
applicants reiterated their arguments that the deprivation of
property had been arbitrary. They contended that no adequate
compensation was available to them as the compensation procedure had
been delayed for years. This delay was attributable to the
authorities who had failed to notify the applicants of any
developments following the order of the regional governor of 17 April
2001.
A. Admissibility
- The
Court considers that the Government's arguments in respect of the
pending compensation procedure represent in substance an objection
for non-exhaustion of domestic remedies. Accordingly, the Court must
examine this objection.
- It
recalls that in the case of Velikovi and Others, cited above
(see §§ 226-227 concerning in particular the case of
Tsilevi), it found that for a long period of time the bond
compensation scheme provided no clear opportunity to obtain adequate
compensation and that the legislation on compensation for persons in
the applicants' position changed frequently and could not be
characterised as foreseeable. Therefore, in 2001 when the applicants
abandoned the compensation procedure and renounced their right to
receive bonds, obtaining compensation through bonds did not represent
an effective domestic remedy.
- The
fact that a new opportunity to receive in cash the full face value of
compensation bonds was introduced in May 2007, which only concerned
persons who were still in possession of such bonds or received them
after this date, does not affect the Court's conclusion. This is so
because the assessment of whether domestic remedies have been
exhausted is normally carried out with reference to the date on which
the application was lodged with the Court. This rule is subject to
exceptions, which may be justified by the particular circumstances of
each case (see Prodan v. Moldova, no. 49806/99, §§
38-39, ECHR 2004 III (extracts)). However, in the case at hand
the Court does not see particular circumstances justifying a
departure from the general rule, bearing in mind that (1) there did
not exist an effective domestic remedy enabling the applicants to
receive adequate compensation for nearly eight years after the
lodging of the present application, and (2) the Government have not
shown convincingly that in 2007 it was still possible for the
applicants to obtain a valuation of their demolished apartment and
bonds for it. Accordingly, the Court dismisses the Government's
objection for non-exhaustion of domestic remedies.
- The
Court also finds that the complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and 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 in Velikovi and Others, cited above.
- The
events complained of undoubtedly constituted an interference with the
applicants' property rights.
- The
interference was based on the relevant law and pursued an important
aim in the public interest – to restore justice and respect for
the rule of law. As in Velikovi and Others, cited above, §§
162-176, the Court considers that in the particular circumstances the
question whether the relevant law was sufficiently clear and
foreseeable cannot be separated from the issue of proportionality.
- Applying
the criteria set out in Velikovi and
Others, cited above, §§ 183-192,
the Court notes that the applicants' title to
half the flat at issue was declared null and void and they were
deprived of their property on the sole ground that the municipality
had decided to sell a flat in a three-storey building in an area
where higher buildings had been planned (see paragraph 11 above). The
Court has already dealt with a case where the same defect had led to
the annulment of the applicants' title and found that such a
shortcoming could not be characterised as a material breach of the
relevant housing regulations. It also found that in so far as the
municipality's decision violated relevant building planning rules,
the responsibility for this error lay entirely with the municipal
authorities (see Bornazovi v.
Bulgaria (dec.), no. 59993/00, 18
September 2007). The Court sees no reason to reach a different
conclusion in the present case. As in Bornazovi,
it notes that the Government never claimed that the sale of the flat
to the applicants had impeded the realisation of the building plan,
which, moreover, was apparently abandoned. In sum, the Court finds
that the State administration, not the applicants, had been
responsible for the defect that led to the annulment of their
property title.
- The
Court considers that the present case is therefore similar to those
of Bogdanovi
and Tzilevi,
examined in its Velikovi and Others
judgment (see § 220 and § 224 of that judgment, cited
above), where it held that in such cases the fair balance required by
Article 1 of Protocol No. 1 to the Convention could not be achieved
without adequate compensation.
- The
applicants in the instant case decided not to seek compensation
through bonds (see paragraph 15 above). Their case is thus similar to
the case of Tzilevi examined in Velikovi and Others
(see §§ 94 and 226 228). Like in Tzilevi, the
Court considers that the applicants forewent the opportunity to
obtain at least between 15 and 25 per cent of the value of the
apartment, as that was the rate at which bonds were traded until the
end of 2004. The fact that bond prices rose at the end of 2004 or
that the applicable law was amended with practical effect from May
2007 and provided for payment of the bonds at face value cannot lead
to the conclusion that the authorities would have secured adequate
compensation forto the applicants but for their refusal to receive
bonds. The applicants could not have foreseen bond prices or
legislative amendments and the Court cannot speculate whether they
would have waited four or more years before cashing their bonds.
Furthermore, the legislation on compensation changed frequently and
was not foreseeable (see Velikovi and Others, cited above,
§§ 191 and 226).
- In these circumstances, the
Court finds that no clear and foreseeable possibility to obtain
compensation was secured to the applicants. Their failure to use the
bond compensation scheme will have to be taken into consideration
under Article 41, but cannot decisively affect the outcome of their
Article 1 Protocol 1 complaint.
- 34There
has therefore been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1 that in their case the
national courts had decided arbitrarily.
A. Admissibility
- The
Court finds that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- Having
regard to its conclusions under Article 1 of Protocol No. 1, the
Court is of the view that it is not necessary to examine the
complaint under Article 6 § 1 separately.
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
- The
property the applicants lost was one half of a three-room apartment
of 74 square metres in a building in the centre of Sofia, which has
since been demolished.
- Referring
to the fact that in 2005 they had sold the half of the apartment they
had retained for EUR 70,000, and taking into account the rise in
prices since then, the applicants claimed EUR 105,000 in respect of
the market value of the half they had lost. They also claimed EUR
16,800 in lost income from rent from 1999 to 2005.
- In
respect of non-pecuniary damage, the applicants claimed EUR 40,000.
They submitted that the second applicant's health had deteriorated as
a result of the anguish related to the loss of the property.
- The
Government did not comment.
- Applying
the approach set out in similar cases and in view of the nature of
the violation found, the Court finds it appropriate to fix a lump sum
in respect of pecuniary and non-pecuniary damage with reference to
the value of the property taken away from the applicants and all
other relevant circumstances (see Todorova
and Others v. Bulgaria (just
satisfaction), nos. 48380/99,
51362/99, 60036/00 and 73465/01, §§ 10 and 47, 24 April
2008).
- To
determine the amount to be awarded, the Court recalls that it found
that the applicants' failure to use the bond compensation scheme
would have to be taken into consideration under Article 41 of the
Convention (see paragraph 32 above). It notes that had the applicants
made use of that scheme, they could have obtained between 15 and 25
per cent of the value of half of the flat at issue. The Court
considers therefore that it must apply an appropriate reduction of
the just satisfaction award on account of the applicants' failure to
make use of this possibility to obtain partial compensation (see
Todorova and Others,
cited above, §§ 44-46).
- Having
regard to the above, to all the circumstances of the case and to
information at its disposal about property prices in Sofia, the Court
awards the applicants EUR 35,000 in respect of pecuniary and
non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed EUR 8,000 for legal work by their lawyers. They
submitted a copy of a legal fees' agreement. They also claimed
EUR 800 for postage and for copying and certifying documents.
- The
Government considered the claim for legal fees excessive and urged
the Court to dismiss the claim for expenses for mailing, copying and
certifying as it was not supported by receipts or any other
documents.
- 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 information in its possession and to the complexity of the case,
the Court awards EUR 2,500 for legal fees. It dismisses the claim for
expenses for postage, copying and certifying as the applicants have
not submitted any documents showing that these expenses were actually
incurred.
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
1. 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 applicants' complaint under 6 § 1 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
35,000 (thirty-five thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR
2,500 (two thousand five 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 the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 12 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen Registrar President
