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FIFTH
SECTION
CASE OF MANOVA AND OTHERS v. BULGARIA
(Application
no. 32626/06)
JUDGMENT
STRASBOURG
3 February
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Manova and Others
v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a
committee composed of:
Mark Villiger, President,
Isabelle
Berro-Lefèvre,
Ganna Yudkivska, judges,
and
Stephen Phillips, Deputy
Section Registrar,
Having
deliberated in private on 11 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32626/06) 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 three Bulgarian nationals, Ms Velichka
Aleksandrova Manova, Mr Dragomir Draganov Manov and Ms Neli Draganova
Georgieva-Manova (“the applicants”). The
first applicant lodged the present application on 24 July 2006. By
letter of 10 April 2008 the second and third applicants expressed
their wish to join the application.
- The
applicants were represented by Mr Y. Grozev and Ms N. Dobreva,
lawyers practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agents, Ms N. Nikolova
and Ms R. Nikolova, of the Ministry of Justice.
- On
8 February 2010 the President of the Fifth Section decided to give
notice of the application to the Government. In accordance with
Protocol No. 14, the application was allocated to a Committee of
three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1943, 1964 and 1953 respectively and live in
Sofia.
- In
1966 the first applicant and her husband bought from the Sofia
municipality a three-room flat of 78 square metres, situated 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 1946.
- On
an unspecified date in the beginning of 1993 the heirs of the former
pre-nationalisation owner of the property brought proceedings against
the first applicant and her husband under section 7 of the
Restitution Law. They also sought a rei vindicatio order.
- In
2001 the first applicant’s husband died, leaving as heirs the
three applicants (the second and third applicants were his children).
Accordingly, after that the first applicant owned two-thirds of the
flat and the second and third applicants one sixth each.
- The
proceedings under section 7 of the Restitution Law ended by final
judgment of the Supreme Court of Cassation of 26 January 2006. The
courts found that the applicants’ title was null and void
because the mayor’s decision in 1966 to sell the disputed flat
to the first applicant and her husband had not been approved by the
Minister of Finance, as required at the time, but by another
official. The applicants disputed this conclusion in their appeals
lodged in the framework of the proceedings.
- The
courts also allowed the claimants’ rei vindicatio action
and ordered the first applicant, who was at the time living alone in
the flat, to vacate it. She did so in August 2006. In May 2008 she
was provided with the tenancy of a small municipally-owned flat,
where she moved in.
- On
19 April 2006 the applicants applied to receive compensation bonds.
By an order of the Sofia regional governor of 25 September 2006 this
was refused as the applicants had not complied with the statutory
requirement to apply for such bonds within two months after the final
judgment given in the proceedings under section 7 of the Restitution
Law.
- The
applicants appealed, pointing out that they had missed the relevant
time-limit because the first applicant had been ill. Nevertheless, in
a final judgment of 19 May 2008 the Supreme Administrative Court
upheld the governor’s refusal.
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, §§
110-41, 15 March 2007).
- Pursuant
to section 9(4) of the Compensation Law persons who have lost
property under section 7 of the Restitution Law can apply for
compensation bonds within two months after the final judgment under
section 7 given in their case. It is the constant practice of the
domestic courts to apply strictly this time-limit, without regard to
the reasons which might have led to the interested parties having
missed it (see, for example, judgments of the Supreme Administrative
Court no. 12745 of 25 November 2008, case no. 2988/2008, and no. 3413
of 16 March 2009, case no. 5928/2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- 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 considered that the applicants’ deprivation of
property had not been arbitrary, but governed by strict rules meant
to balance the interests of pre-nationalisation and
post-nationalisation owners. They argued that the applicants had had
a possibility to receive adequate compensation through compensation
bonds, but had failed to make due use of it. Furthermore, the
applicants themselves bore responsibility for the outcome of the
restitution proceedings, as they had failed to mount an effective
defence in relation to the defect found in their title. In this
regard, the Government submitted two judgments of the Supreme Court
of Cassation where actions under section 7 of the Restitution Law,
based on claims that the respective decisions of the municipal
authorities to sell property to citizens had not been approved by the
Minister of Finance, had been dismissed. Lastly, the Government
pointed out that in 2008 the first applicant had been accommodated in
municipally-owned dwelling and considered that the second and third
applicant had not suffered “any special hardship” because
at the time when the first applicant had been evicted they had not
been living in the disputed flat.
- The
applicants contested these arguments.
A. Admissibility
1. Exhaustion of domestic remedies
- The Government pointed out that the applicants had
failed to apply for compensation bonds within the two-month statutory
time-limit following the final judgment under section 7 of the
Restitution Law (see paragraphs 10 and 16 above). The Court considers
that this amounts to an objection for non-exhaustion of domestic
remedies. However, it refers to its detailed reasoning in Velikovi
and Others (cited above, §§ 226-27), where it found
that at the relevant time the bonds compensation scheme did not
secure adequate compensation with any degree of certainty.
Furthermore, it has already examined identical objections for
non-exhaustion of domestic remedies in similar cases and has rejected
them (see Dimitar and Anka Dimitrovi v. Bulgaria, no.
56753/00, § 23, 12 February 2009, and Kayriakovi v. Bulgaria,
no. 30945/04, § 23, 7 January 2010). The Court does not see a
reason to reach a different conclusion in the present case.
- The
Government also argued that the applicants had not convincingly
challenged the national courts’ conclusion that the decision to
sell the flat to the first applicant and her husband in 1966 had not
been approved by the Minister of Finance (see paragraph 16 above).
The applicants disputed this conclusion (see paragraph 17 above). The
Court considers that the applicants cannot be held responsible for
the fact that the Supreme Court of Cassation reached, on the basis of
the evidence collected, conclusions differing from the ones in the
cases referred to by the Government (see paragraph 16 above).
- Therefore,
the Court dismisses the Government’s objections based on
non-exhaustion of domestic remedies.
2. The six-month rule
- In
these circumstances, the question arises as to whether the complaint
was submitted to the Court within six months of the final domestic
decision, as required by Article 35 § 1 of the Convention.
- In
cases similar to Velikovi and Others (cited above) the Court
has held that the relevant events should be viewed as a continuing
situation and that the six-month time-limit under Article 35 § 1
of the Convention started running when all compensation issues were
settled (see, for example, Shoilekovi and Others v. Bulgaria
(dec.), nos. 61330/00, 66840/01 and 69155/01, 18 September 2007). In
the cases of Kayriakovi (cited above, §§ 25-29)
and Yonkov v. Bulgaria (no. 17241/06, § 22, 2 September
2010) the Court specified that where the applicants had not duly
sought compensation bonds, the six-month period started to run after
the expiry of the two-month time-limit to do so, as provided for
under domestic law, because after that there were no relevant
developments which could lead to any form of compensation.
- The
Court finds it appropriate to apply this approach to the case at
hand. It notes that the two-month time-limit for the applicants to
seek bonds expired on 26 March 2006, the final judgment under section
7 of the Restitution Law being given on 26 January 2006 (see
paragraphs 8 and 10 above). Therefore, in the case the six-month
period under Article 35 § 1 of the Convention started running on
26 March 2006.
- It
is true that the applicants appealed before the courts against the
regional governor’s refusal to grant their belated application
for bonds and that those judicial proceedings ended on 19 May 2008
(see paragraph 11 above). However, the Court does not consider that
the proceedings represented a relevant development concerning the
applicants’ right to compensation, due to the constant practice
of the domestic courts in applying strictly the two-month statutory
time-limit and disallowing appeals such as the applicants’ (see
paragraph 13 above), who had claimed that they had missed the
time-limit because one of them had been ill (see paragraph 11
above).
- The
first applicant introduced her application to the Court on 24
July 2006 (see paragraph 1 above). As the six-month time-limit
started running on 26 March 2006, her complaints were introduced in
due time.
- However,
the second and third applicants only joined the application on 10
April 2008 (ibid.). Therefore, their complaints have been introduced
out of time and must be rejected in accordance with Article 35 §§
1 and 4 of the Convention.
3. Other grounds for inadmissibility
- Lastly,
the Court notes, in respect of the first applicant, that the present
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention, or inadmissible on any other ground.
The first applicant’s complaint 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.
- 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 she was deprived of her property on the sole ground that the
mayor’s decision in 1966 to sell to her and her husband the
disputed flat had not been approved by the Minister of Finance, but
by another official. This deficiency is attributable to the
authorities, not the first applicant or her husband (see Velikovi
and Others, cited above, §§ 218 and 229, and Peshevi
v. Bulgaria, no. 29722/04, § 20, 2 July 2009).
- 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 the
fair balance required by Article 1 of Protocol No. 1 could not be
achieved without adequate compensation. The question thus arises
whether adequate compensation was provided to the first applicant. In
making an assessment in that regard the Court must have regard to the
particular circumstances of the case.
- The
Court notes that in May 2008 the first applicant was provided with
the tenancy of a municipally-owned dwelling (see paragraph 9 above).
However, this is not sufficient to lead it to the conclusion that
adequate compensation had been secured (see Georgievi v. Bulgaria,
no. 10913/04, § 37, 7 January 2010).
- The
Court observes that the first applicant failed to apply for
compensation bonds following the final judgment in her case, in
accordance with the requirements of domestic law. However, as already
found above (see paragraph 18), it could not be considered that the
bond scheme secured adequate compensation. This was the position at
least until June 2006, when the Parliament adopted an amendment
providing for the payment in cash of the bonds’ full value (see
Velikovi and Others, cited above, § 139). As already
mentioned (see paragraph 23 above), the first applicant’s
entitlement to seek bonds became extinguished in March 2006.
Therefore, her failure to use the bond compensation scheme cannot
affect decisively the outcome of the Article 1 Protocol No. 1
complaint; it must, on the other hand, be taken in consideration
under Article 41 (see Velikovi and Others, cited above,
§ 227, and Peshevi, cited above, § 23).
- In
these circumstances, the Court finds that no clear, timely and
foreseeable opportunity to obtain adequate compensation was available
to the first applicant. It follows that the fair balance between the
public interest and the need to protect her rights was not achieved.
- There
has therefore been 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 her share in the flat, the first applicant claimed 49,600
euros (EUR) in pecuniary damage. She presented a valuation report of
June 2006, by an expert commissioned by her, assessing the total
value of the flat at EUR 74,400. The first applicant claimed another
EUR 10,000 for non pecuniary damage, contending that she had
suffered serious anguish and frustration.
- The
Government urged the Court to dismiss the claim, considering that any
finding of a violation would constitute sufficient just satisfaction.
In any event, they considered that the first applicant’s claim
for pecuniary damage was excessive, and the claim for non-pecuniary
damage – “excessive and speculative”.
- 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 first
applicant’s failure to make due use of the bond compensation
scheme (see paragraph 34 above and 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 real property prices in Sofia, the
Court awards the first applicant EUR 45,000 in respect of pecuniary
and non pecuniary damage.
B. Costs and expenses
- The
three applicants claimed jointly EUR 3,750 for 37.5 hours of legal
work by their lawyers, at an hourly rate of EUR 100. 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 their counsel, Mr Y. Grozev.
- The
Government argued that the claim was 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 notes that
it found a violation of Article 1 of Protocol No. 1 only in respect
of the first applicant. Having regard to the above and to the
circumstances of the case, it considers it reasonable to award EUR
2,000 for legal fees, to be transferred directly to Mr Y. Grozev’s
bank account.
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 admissible the complaints of the first
applicant, Ms Velichka Aleksandrova Manova, and the remainder of the
application inadmissible;
- Holds that in respect of Ms Velichka
Aleksandrova Manova there has been a violation of Article 1 of
Protocol No. 1;
- Holds
(a) that
the respondent State is to pay to Ms Velichka Aleksandrova Manova,
within three months, the following amounts to be converted into
Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR
45,000 (forty-five thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to Ms
Velichka Aleksandrova Manova, in respect of costs and expenses, to be
transferred directly into Mr Y. Grozev’s bank account;
(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 3 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Mark Villiger
Deputy Registrar President
