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FIFTH
SECTION
CASE OF GEORGIEVI v. BULGARIA
(Application
no. 10913/04)
JUDGMENT
STRASBOURG
7 January 2010
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 Georgievi v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Pavlina Panova, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10913/04) 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, Mr Belyu Dimitrov
Georgiev and Mrs Bona Petrova Georgieva (“the applicants”),
on 12 March 2004.
- On
6 December 2008 the first applicant, Mr Belyu Dimitrov Georgiev,
passed away. By a letter of 17 January 2009, his daughter, Mrs Emilia
Belyuva Georgieva, and his wife, the second applicant, informed the
Court that they wished to continue the present application in his
stead.
- The
applicants were represented by Mrs S. Margaritova-Vuchkova, a lawyer
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 Articles 13 and 14 of
the Convention.
- On
6 May 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. On 30 January 2009 the Government appointed in
her stead Mrs Pavlina Panova as an ad hoc judge (Article 27 § 2
of the Convention and Rule 29 § 1 of the Rules of the Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1926 and 1927 respectively. The second
applicant lives in Sofia. The two applicants were spouses.
- In
1966 they bought from the Sofia municipality an apartment of
81 square metres, located in the centre of the city, which had
become State property by virtue of the nationalisations carried out
by the communist regime in Bulgaria in 1947 and the following years.
- At
the beginning of 1993 the heir of the former pre-nationalisation
owners of the property brought proceedings against the applicants
under section 7 of the Restitution Law.
- By
judgments of 24 September 1996 and 10 July 1998 the Sofia District
Court and the Sofia City Court allowed the claim. They found the
applicants’ title to be null and void on two grounds: 1) no
decision of the mayor to initiate the sale procedure had been found
in the case file; nor had the applicants established that such a
decision had existed but had been lost or destroyed; 2) the sale had
not been approved by the Minister of Finance, as required by law, but
by one of his deputies.
- The
applicants did not submit a petition for review (cassation).
- On
an unspecified date in 1998 they vacated the apartment. In May 1999
they were granted the tenancy of a municipal apartment of 51 square
metres.
- Following
the judgment of 10 July 1998 the applicants applied to receive
compensation bonds, which could be used in privatisation tenders or
sold to brokers. In December 2000 they obtained bonds with a total
face value of 62,400 Bulgarian levs (BGN), in accordance with a
valuation of the apartment prepared by an expert.
- On
9 July 2003 the second applicant sold her half of the bonds for BGN
7,434.01, the equivalent of 3,810 euros (EUR).
- On
17 February 2004 the first applicant sold his half of the bonds for
BGN 7,387.68, the equivalent of EUR 3,780.
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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicants complained that they had been deprived of their property
arbitrarily, through no fault of their own and without adequate
compensation. They relied on Article 1 of Protocol No. 1 and Articles
13 and 14 of the Convention.
- The
Court is of the view that the complaint falls to be examined 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.”
- The
Government argued that the applicants had failed to exhaust domestic
remedies, as required by Article 35 § 1 of the Convention,
because they had not submitted a petition for review (cassation)
against the Sofia City Court’s judgment of 10 July 1998 (see
paragraph 11 above). Furthermore, they argued that there was no
violation of Article 1 of Protocol No. 1 in the case as the
applicants had received compensation through bonds and had soon after
vacating their apartment been provided with the tenancy of a
municipally-owned flat.
- The
applicants disputed these arguments.
A. Admissibility
1. The Government’s objection on non-exhaustion
of domestic remedies
- The
Court notes that under Article 35 § 1 of the Convention the only
remedies required to be exhausted are those that are effective and
capable of redressing the alleged violation (see Sejdovic v. Italy
[GC], no. 56581/00, § 45, ECHR 2006-II). It notes
further that in most cases an applicant claiming a breach of Article
1 of Protocol No. 1 allegedly resulting from decisions of the
Bulgarian courts must take the opportunity to submit a cassation
appeal (or, as regards older cases such as the present one, a
“petition for review”) to the Supreme Court of Cassation
(or, as regards older cases, the Supreme Court) before bringing his
grievance to the attention of the European Court of Human Rights (see
Raichinov v. Bulgaria
(dec.), no. 47579/99, 1 February 2005).
- However,
in a recent case similar to the present one, the Court found that a
cassation appeal was not an effective remedy and that the applicants
were not bound to make use of it. In that case, the applicants’
title to an apartment bought from the State had been found null and
void under section 7 of the Restitution Law because a relevant
document concerning the sale had been signed by the deputy to the
official in whom the relevant power had been vested. Referring to the
Supreme Court of Cassation’s established practice, according to
which such administrative omissions resulted in property titles being
considered null and void, the Court concluded that any attempt by the
applicants to argue before the Supreme Court of Cassation that the
authorities’ omission in their case should not result in their
title being declared null and void had been bound to fail (see
Vladimirova and Others v. Bulgaria,
no. 42617/02, §§ 10 and 24 27, 26 February
2009).
- The
Court does not see a reason to reach a different conclusion in the
present case. It notes that even if the applicants could obtain a
finding in their favour in respect of the first ground for declaring
their title null and void (see paragraph 10 above) arguing before the
Supreme Court of Cassation that it had not been their fault that a
decision of the mayor to initiate the sale procedure could no longer
be found in the case file, any attempt on their part to also argue
that their title should not be declared null and void on the ground
that the sale had not been approved by the Minister of Finance but by
one of his deputies (the second ground for declaring their title null
and void) was, similarly to the case of Vladimirova and Others,
bound to fail.
- The
Court considers therefore that in the specific circumstances of this
case a petition for review (cassation) did not represent an effective
remedy to be exhausted in accordance with Article 35 § 1 of the
Convention. Accordingly, the applicants’ failure to pursue
that remedy cannot result in their application being dismissed for
its non-exhaustion.
2. The six-month rule
- The
Court notes furthermore that the judicial proceedings in the
applicants’ case ended on 10 July 1998, whereas the present
application was lodged on 12 March 2004 (see paragraphs 1 and 10
above). The Court must therefore examine whether in the case the
applicants have complied with the six-month rule under Article 35 §
1 of the Convention.
- In
a number of cases similar to Velikovi and Others, cited above,
the Court found that the relevant events should be viewed as a
continuing situation, as they concerned not only deprivation of
property but also the ensuing right to compensation which was the
subject of legislative developments and changes of practice at least
until 2007 (see Shoilekovi and Others
v. Bulgaria (dec.),
nos. 61330/00, 66840/01 and 69155/01, 18 September 2007).
In the case of Vladimirova and Others,
cited above, also similar to Velikovi
and Others, the Court reiterated
that the events should be viewed as a continuing situation until the
compensation issues were settled (see § 30 of the judgment).
- In
the present case, having regard to its conclusions in the cases
referred to above, the Court also considers that the relevant events
should be viewed as a situation continuing after the final court
decision depriving the applicants of their property and concerning
the ensuing compensation. A question however arises as to the end
date of that continuing situation. The Court is of the view that it
ended when the applicants’ right to compensation was realised
with finality. This occurred when they sold their respective shares
of the bonds received as compensation; after that they were no longer
affected by the relevant legislative developments and changes of
practice concerning compensation.
- The
Court observes that the first applicant sold his half of the bonds on
17 February 2004 (see paragraph 15 above). As the present application
was lodged on 12 March 2004, less than six
months after that, the six-month time-limit under Article 35 § 1
has been complied with.
- However,
the second applicant sold her compensation bonds on 9 July 2003
and her complaint under Article 1 of Protocol No. 1 was raised on 12
March 2004, that is, more than six months later (see paragraphs 1 and
14 above). The second applicant’s complaint is therefore
time-barred and must be declared inadmissible.
3. Other grounds for admissibility
- The
Court finds that the first applicant’s
complaint under Article 1 of Protocol No. 1 is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and not inadmissible on any other ground. 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 constituted an interference with the first
applicant’s property rights.
- The
interference was based on the relevant law and pursued an important
aim in the public interest, namely to restore justice and respect for
the rule of law. As in Velikovi and Others, cited above, §§
162-76, 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 first applicant’s
title was declared null and void and he was deprived of his property,
on the first place, because no decision of the mayor to initiate the
sale procedure had been found in the file concerning the sale of the
apartment and the applicants had not established that such a decision
had existed but had been lost or destroyed (see paragraph 10 above).
However, the national courts did not find expressly that no decision
of the mayor to initiate the sale procedure had been taken at the
time; rather, they concluded that the document could not be found in
the case file concerning the apartment’s sale. As the case file
had been kept by the authorities, the Court is of the view that the
applicants could not have been responsible for the possible loss or
destruction of the missing document. Therefore, this deficiency is
attributable to the authorities, not the first applicant.
- On
the second place, the domestic courts found that the first
applicant’s title was null and void because the sale of
the apartment had not been approved by the Minister of Finance, as
required by law, but by one of his deputies (see paragraph 10 above).
In numerous similar cases, the Court has held that such deficiencies
were clearly attributable to the authorities, not the individuals
concerned (see, in Velikovi and Others, cited above, the cases
of Bogdanovi and Nikolovi, §§ 218 and 229 of
the judgment, and also Peshevi v.
Bulgaria, no. 29722/04, § 20, 2
July 2009); it does not see a reason to reach a different conclusion
in the case at hand.
- The
Court considers therefore that the present case is similar to those
of Bogdanovi, Tzilevi and Nikolovi, examined in
Velikovi and Others (see §§ 220, 224 and 231
of that judgment, cited above), where it held that in such cases the
fair balance required by Article 1 of Protocol No. 1 could not be
achieved without adequate compensation. In the assessment whether
adequate compensation was available to applicants, the Court must
have regard to the particular circumstances of each case, including
the amounts received and losses incurred and, as the case may be, the
availability of compensation and the practical realities in which the
applicants found themselves.
- The
Court notes that soon after vacating his apartment the first
applicant was provided with the tenancy of a municipally-owned
dwelling (see paragraph 12 above). However, it considers that this
alone cannot absolve the State from the obligation to provide
adequate compensation.
- The
question thus arises whether adequate compensation was provided to
the first applicant.
- The
first applicant took all necessary steps under the bond compensation
scheme as it operated at the time but only obtained the equivalent of
EUR 3,780, less than 23% of the value of his half of the apartment as
of 2000 when it was accessed by a certified expert (see paragraphs 13
and 15 above). Furthermore, between 2000, when this assessment was
made (see paragraph 13 above), and 2004, when the first applicant
obtained the above sum, real estate prices rose considerably.
- As
in the case of Bogdanovi, examined in Velikovi and Others
(see § 222 of the judgment, cited above), the Court is of
the view that there were no circumstances justifying this inadequate
compensation.
- It
follows that the authorities failed to strike a fair balance between
the first applicant’s rights and the public interest and that
there was a violation of Article 1 of Protocol No. 1.
II. 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 pecuniary damage the applicants claimed the value of the
apartment they had lost. They presented a valuation report prepared
by an expert commissioned by them, assessing the value of the
apartment at EUR 162,000. In respect of non-pecuniary damage suffered
by the first applicant, his heirs claimed EUR 8,000.
- The
Government considered these claims to be excessive. They pointed out
that the first applicant had received compensation bonds and had been
accommodated in a municipally-owned apartment.
- The
Court notes at the outset that it only found a violation of Article 1
of Protocol No. 1 in the present case in respect of the first
applicant (see paragraph 41 above); it can therefore examine the
claims above in so far as they concern damage suffered by that
applicant.
- 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 first applicant 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). The Court will also take into account the fact that the
first applicant received EUR 3,780 from the sale of his
compensation bonds (see paragraph 15 above).
Having regard to the above, to all the circumstances of the case and
to information at its disposal about real property prices in Sofia,
the Court awards the first applicant EUR 37,000 in respect of
pecuniary and non pecuniary damage. That amount is to be paid to
his heirs, Mrs Bona Petrova Georgieva (the second applicant)
and Mrs Emilia Belyuva Georgieva.
B. Costs and expenses
- The
applicants claimed EUR 4,240 for fifty-three hours of legal work by
their lawyer, Mrs S. Margaritova-Vuchkova, at an hourly rate of
EUR 80. In support of this claim they presented a contract for
legal representation and a time sheet. They requested that any sum
awarded under this head be paid directly to Mrs Margaritova-Vuchkova.
- They
claimed another BGN 450, the equivalent of EUR 230, already
paid by the applicants for legal work by Mrs Margaritova-Vuchkova,
and BGN 626.3, the equivalent of EUR 321, for postage and
translation for the proceedings before the Court and for the cost of
the valuation report they submitted. In support of these claims they
presented the relevant receipts.
- The
Government considered these claims 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
the present case, the Court reiterates that it found a violation of
Article 1 of Protocol No. 1 only in respect of the first applicant.
Furthermore, it considers that the number of hours of work claimed by
Mrs Margaritova-Vuchkova appears
excessive. Therefore, having regard to the above and to the fact that
she has already received BGN 450 from the applicants, the Court
considers it reasonable to award EUR 1,500 in respect of Mrs
Margaritova-Vuchkova’s legal fees,
to be transferred directly into her bank account.
- As
to the remaining costs and expenses, totalling EUR 551 (see paragraph
48 above) the Court, considering that it only found a violation of
Article 1 of Protocol No. 1 in respect of the first applicant and
that the expenses at issue must have been incurred by the two
applicants, awards a half of the amount sought, that is EUR 276, to
be paid jointly to the first applicant’s
heirs, Mrs Bona Petrova Georgieva (the second applicant) and
Mrs Emilia Belyuva Georgieva.
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 complaints of
the first applicant admissible and the complaints of the second
applicant inadmissible;
- Holds that in respect of the first applicant
there has been a violation of Article 1 of Protocol No. 1 to the
Convention;
- Holds
(a) that
the respondent State is to pay to the first applicant’s heirs,
Mrs Bona Petrova Georgieva and Mrs Emilia
Belyuva Georgieva, within three months of 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 37,000 (thirty-seven thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii)
EUR 1,776 (one thousand seven hundred seventy-six euros), plus any
tax that may be chargeable to Mrs Bona Petrova Georgieva and
Mrs Emilia Belyuva Georgieva, in respect of costs and
expenses, EUR 1,500 (one thousand five hundred) of which to be
transferred directly into the bank account of the applicants’
legal representative, Mrs Margaritova-Vuchkova;
(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 claims for just
satisfaction.
Done in English, and notified in writing on 7 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
