DIMITAR YANAKIEV v. BULGARIA - 50346/07 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 316 (31 March 2016)

In the case of Dimitar Yanakiev v. Bulgaria (No. 2),

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Khanlar Hajiyev,
          André Potocki,
          Faris Vehabović,
          Yonko Grozev,
          Carlo Ranzoni, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 8 March 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 50346/07) 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 a Bulgarian national, Mr Dimitar Pavlov Yanakiev (“the applicant”), on 6 November 2007.

2. The applicant was represented by Ms V. Sedefova and Ms N. Sedefova, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms L. Gyurova, from the Ministry of Justice.

3. The applicant complained about the failure of the regional governor of Sofia region to implement a final judgment in his favour.

4. On 16 October 2013 the complaint concerning the failure to enforce a final domestic judgment was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1936 and lives in Sofia.

A. Applicant awarded compensation

6. In 1997 the Compensation for Owners of Nationalised Real Property Act (“the 1997 Compensation Law”) entered into force. It regulated the granting of compensation for property taken under several laws of a punitive or redistributive nature and which could not be returned physically.

7. On 27 November 1997 the applicant requested from the regional governor of Sofia region compensation for an apartment which had belonged to his ancestor at the time of its nationalisation in 1949. As he received no reply, at some point in 1998 the applicant challenged the governor’s silence in court. The Sofia City Court quashed the governor’s tacit refusal on 18 June 1999, finding that the applicant had to be compensated with “housing compensation bonds” (жилищни компенсаторни записи) as restitution was not possible. The applicant appealed, challenging the type of compensation awarded to him. On 9 April 2001 the Supreme Administrative Court upheld the lower court’s judgment and returned the case to it for the compensation amount to be determined.

8. Instead of ruling on the compensation, the Sofia City Court archived the case; it was only put back on the case roll on 5 July 2002 when the applicant complained.

9. The Sofia City Court, sitting in its administrative bench, delivered a decision on 19 July 2005. It determined that the amount of total compensation due in respect of the property in question was BGN 23,604, and that the regional governor was liable for costs. The court also ruled that the applicant was to receive compensation in the form of “housing compensation bonds”, in accordance with his share as an heir. The court went on to state that, as evidenced by the heirs certificate issued in 1994 and presented during the proceedings, the applicant and his brother were the two heirs of the owner of the confiscated property. Consequently, the applicant’s share of the inheritance stemmed directly from the law, which provided that the children of the deceased inherited in equal parts. The decision became enforceable on 6 September 2005.

B. The applicant’s requests for enforcement from the regional governor

10. On 26 June 2006 the applicant transmitted to the regional governor a copy of the final court decision of 19 July 2005, asking that it be enforced. He sent another request to that effect on 8 August 2006.

11. The deputy regional governor replied in writing on 14 February 2007 that the applicant needed to submit a certified copy of the court decision, as well as a certificate attesting to his status as heir and a declaration certified by a notary.

12. On 19 February 2007 the applicant submitted a certified copy of the court decision of 19 July 2005. He signalled that enforcement continued to be outstanding and emphasised that he had already submitted a certificate attesting to his status as heir to the regional governor, together with his initial request for compensation of 27 November 1997 (see paragraph 7 above). He also pointed out that it was clear from the judicial decision that the heirs in question were two - himself and a sibling of his; pursuant to section 5(1) of the Inheritance Act 1949 he was eligible to receive half of the inheritance and, therefore, half of the compensation awarded by the court. He sought clarification in respect of the declaration requested by the governor.

13. The deputy governor replied on 5 March 2007 that the declaration was necessary pursuant to section 5 of Ordinance No. 9 of 1998; the latter governed the conditions and order for the payment of experts included in the list under § 4 of the 1997 Compensation Law.

C. Forced enforcement proceedings

14. In the meantime, on 19 January 2007, the applicant requested to be issued with a writ of execution on the basis of the 19 July 2005 judgment and, more specifically, in respect of its part concerning the amount of compensation and his consequent share of it.

15. On 16 March 2007 he was issued with a writ of execution in respect of the compensation owed to him. On 30 March 2007 he asked the bailiff to start forced enforcement proceedings and to collect the related costs and expenses.

16. On 3 April 2007 the bailiff sent an invitation for voluntary compliance to the governor, signalling that a failure to act upon the 19 July 2005 decision attracted a pecuniary sanction.

17. The deputy regional governor replied on 20 April 2007 that the compensation proceedings had not been completed because of the applicant’s failure to submit the requested declaration certified by a notary (see paragraphs 11 and 13 above). He also indicated that an original writ of execution was needed in order for his office to pay costs and expenses.

18. On 25 April 2007 the applicant wrote to the regional governor that the ordinance in question did not apply to his case, as it only concerned situations in which the administrative body itself was called upon to determine the compensation amount. In the applicant’s case that amount had been determined in court, which had also ruled that the applicant and his sibling were the only heirs, and the property had to be evenly split between the two of them.

19. The bailiff sent another letter to the regional governor on 27 April 2007, inviting him to enforce the court decision. He reiterated that the writ of execution had been issued following a final judicial decision which was binding in respect of the parties and in which the court had established all relevant facts as well as the compensation due to the applicant. The bailiff specified that the costs and expenses which the governor was requested to pay related to the enforcement proceedings, that a writ of execution was not necessary in order to claim or collect those expenses, and that they had increased with the passage of time. Finally, the bailiff reiterated that a weekly fine in the amount of BGN 200 would be imposed on the governor in the event of failure to enforce the court decision.

20. On 10 May 2007 the regional governor challenged in court the bailiff’s acts. He claimed that the lack of enforcement was caused entirely by the applicant’s refusal to submit the notary declaration. On 2 July 2007 the Sofia City Administrative Court held that the governor’s application for judicial review was inadmissible. The court found in particular that the bailiff’s invitations to the governor for voluntary compliance were not acts of forced enforcement and were not therefore subject to judicial review. This decision was confirmed by the Supreme Administrative Court on 21 December 2007 in a final decision.

D. Continuation of forced enforcement proceedings

21. As no further action by the regional governor followed, in March 2009 the applicant once again asked the bailiff to enforce the court decision of 19 July 2005. The bailiff wrote to the governor on 31 March 2009, requesting enforcement and with a reminder that failure to enforce could result in weekly fines of BGN 1,200 and in prosecution.

22. The deputy regional governor replied on 27 April 2009 that the compensation proceedings had not been completed because of the applicant’s failure to submit the requested declaration about his share of the inheritance in accordance with the Inheritance Act 1949. Two days later the regional governor himself fined the applicant BGN 1,000, to be applied weekly.

23. On 11 May 2009 the applicant challenged the fine in court. The Sofia City Administrative Court quashed the fine on 8 January 2010, finding that in this case the regional governor was not competent to impose fines as he was not an enforcement body but a debtor, and Mr Yanakiev was not a debtor but a creditor.

24. By a letter of 19 August 2013 the applicant’s lawyer informed the Court that the final court decision of 19 July 2005 remained unenforced.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Compensation in lieu of restitution

25. According to the 1997 Compensation Law, refusal by a regional governor to determine compensation in lieu of restitution under this law are subject to judicial review within fourteen days of their notification to the interested party. When the court upholds a request for compensation under this law, it commissions an expert report and makes a definitive ruling on the request (section 6(6)).

26. Silence on the part of a regional governor who either fails to pronounce on requests for compensation or to approve the amount of compensation and the shares due, as determined by an expert report, is considered a tacit refusal (section 6(3) and (5)).

27. The regional governor has to maintain a record of the information she or he transmits to the Privatisation Agency under the Transactions with Compensation Instruments Act 2002, as well as of the certificates for compensatory instruments received and handed over to their owners (section 6(9)).

28. According to the Transactions with Compensation Instruments Act 2002, the regional governor has to transmit to the Privatisation Agency information about the compensatory instruments which have to be issued. The governor has to do this within seven days, counted from the day a final judgment is received in his or her office for action (section 5(1)).

29. The Privatisation Agency in turn sends the information about the compensatory instruments that need to be issued to the Central Register (section 5(3)). Within three days of receiving the information under section 5 above, the Central Register registers the compensatory instruments in the name of their owners (section 6(1)). Compensatory instruments are considered issued from the moment of their registration in the Central Register (section 6(2)). The Central Register issues to the regional governor a certificate, evidencing the registration of those instruments in the owners’ accounts (section 7(1)). On the day following the issue of those certificates, the Central Register sends the certificates to the regional governor via the Privatisation Agency (section 7(2)).

B. Enforcement of final administrative court judgments after 2006

30. The Code of Administrative Procedure (the 2006 Code) was adopted in 2006 and is currently in force. According to Article 271 (1), the body responsible for supervising the forced enforcement of administrative decisions can be (1) the administrative body which issued, or was obliged to issue, the administrative act upon which individuals or legal entities had to act, or (2) the bailiff, where it was a public administrative body which had to act in order to implement an administrative decision.

31. Chapter IV regulates the procedure for forced enforcement where the body which has to implement a judgment is a public one. According to Article 290 of the 2006 Code, if an administrative body obliged by a court judgment to deliver a non-substitutable action fails to act, the bailiff can impose on the responsible official weekly fines of between BGN 50 and BGN 1200 for as long as the act remains uncompleted.

32. Chapter VI regulates the procedure for challenging the actions or failure to act by the bailiff in the context of forced enforcement (Article 294 of the 2006 Code). Those actions or failure to act can be challenged before the administrative courts (Article 296). A failure of the bailiff to act can be challenged as from the seventh day after the request for action was made to him or her; there is no upper limit on the period within which such a challenge could be brought in court. If the court declares an action or inaction unlawful, it orders the bailiff to carry out specific steps within a fixed time-frame (Article 298 (1)).

33. In a final judgment of 29 June 2012, the Pleven Administrative Court ordered, under Article 294 of the 2006 Code, a bailiff who had been called upon to enforce a final judgment to continually impose fines under Article 290 of the 2006 Code on the debtor - the municipal agricultural agency - until the latter enforced the judgment. The court ordered the bailiff to do so within a period of seven days (see реш. по а. д. № 447/2012, адм. съд Плевен от 29.06.2012 г.).

34. Also under Article 294 of the 2006 Code, in three final judgments, respectively of 3 July 2009 and 18 December 2009 by the Smolian Administrative Court, and of 26 March 2012 by the Sofia Administrative Court, the courts quashed bailiffs’ decisions to terminate enforcement proceedings and/or their refusals to open enforcement proceedings against administrative bodies or officials. The courts further ordered the bailiffs to proceed with the forced enforcement which concerned non-substitutable actions that the different officials owed on the basis of final administrative court decisions and had failed to carry out (see реш. № 70 по а. д. № 166/2009, адм. съд Смолян от 03.07.2009 г.; реш. № 179 по а. д. № 352/2009, адм. съд Смолян от 18.12.2012 г.; реш. № 1601 по а. д. № 6021/2010, адм. съд София от 26.03.2012 г.).

35. In four other final judgments - respectively of 11 January 2012 by the Sofia Administrative Court, of 8 January 2014 by the Smolian Administrative Court, of 9 January 2014 by the Pazardzhik Administrative Court and of 15 June 2015 by the Sofia Administrative Court - the courts dismissed under Article 294 of the 2006 Code the appeals of officials against fines, imposed on them by bailiffs under Article 290 of the 2006 Code for failure to enforce final judgments ordering the officials to carry out a specific non-substitutable action (see реш. № 187 по а. д. № 10030/2011, адм. съд София от 11.01.2012 г.; реш. № 5 по а. д. № 20137230700269/2013, адм. съд Смолян от 08.01.2014 г.; реш. № 2 по а. д. № 31/2014, адм. съд Пазарджик от 09.01.2014 г.; реш. № 4120 по а. д. № 5330/2015, адм. съд София от 15.06.2015 г.).

C. State responsibility for unlawful acts and omissions

36. Section 1(1) of the State and Municipality Responsibility for Damage Act 1988 (the SMRDA) provides, with effect from July 2006, that the municipalities, and not only the State as was the case until then, are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties.

37. The domestic courts have sometimes accepted that public authorities could be responsible for damages under section 1 of the SMRDA in cases where they delay or fail to enforce a final judgment (see реш. № 7088 от 31.05.2010 г. по а. д. № 12358/2009, ВАС, confirming реш. № 1075 от 10.11.2008 г. по а. д. № 6339/2007, адм. съд София; see also реш. от 27.04.2009 г. по гр. д. № 71/2009, ОС Разград, in respect of situations where an administrative body had to comply with a final judgment ordering it to open privatisation proceedings). However, in other cases the courts awarded damages not as a result of the lack of enforcement of the judgment but because of the initial quashing of the unlawful administrative act by the court (see реш. № 8204 от 09.06.2011 г. на ВАС; реш. № 2 от 16.07.2010 на адм. съд Габрово; реш. № 782 от 20.12.2008 на адм. съд София област; реш. № 1365 от 10.05.2010 на адм. съд София град; реш. № 4529 от 30.03.2011 на ВАС, in respect of situations where medical commissions’ decisions have been quashed as unlawful). Yet, in a number of other cases the courts rejected such claims, finding that the responsibility of the authorities could not be engaged. The reasons were either that the applicants had omitted to use the enforcement procedure under Articles 290 and 294 of the Code (see реш. № 4730 от 15.08.2012 г. по а. д. № 9471/2010, адм. съд София), or because the authorities were only responsible for damage stemming from their actions or failure to act but not from their tacit refusal to issue an administrative act (see реш. № 1706 от 3.02.2011 г. по а. д. № 9953/2010, ВАC; опр. № 7877 oт 7.06.2013 г. по а. д. 7001/2013, ВАС), or - further still - because no damage could be established as a result of the refusal to provide information (see реш. № 7425 от 30.05.2011 г. на ВАС).

D. Inheritance

38. According to section 5(1) of the Inheritance Act, the children of the deceased inherit equal parts of his or her estate.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

39. The applicant complained that the final judgment in his favour, enforceable as of 6 September 2005, had not been implemented, in breach of Article 6 § 1 of the Convention, the relevant part of which reads respectively as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Admissibility

1. The Government

40. In their observations the Government contended that the applicant had failed to exhaust domestic remedies in respect of this complaint.

41. In the first place, he had failed to challenge in court the bailiff’s failure to enforce the judgment, which he could have done under Chapters IV and VI of the 2006 Code. As an example of relevant domestic practice the Government referred to decision no. 951 in case no. 839/2008 of the Burgas Administrative Court of 23 October 2008, in which the court had applied Articles 294 and 298 § 1 of the 2006 Code. In that decision the court had upheld a claimant’s challenge in respect of the failure to act by an administrative body responsible for supervising the enforcement of a final judgment, and had specifically tasked a bailiff to supervise the forced enforcement of the judgment instead of the administrative body in question.

42. Furthermore, the applicant had omitted to seek damages under the SMRDA in connection with the unlawful lack of enforcement of the judgment (see paragraphs 36-37 above).

43. Finally, he had failed to ask, under the Code of Civil Procedure, that the judgment be supplemented so as to specify the exact sum which was owed to him, rather than his share as an heir.

2. The applicant

44. In the applicant’s submissions, the Government’s contention that he had failed to exhaust domestic remedies was unfounded.

45. In respect of their first argument, that he had omitted to use the remedy available under the 2006 Code, the applicant asserted that the existing system for forced enforcement of administrative court judgments could not be considered an effective domestic remedy. There were several reasons for this.

46. More specifically, the imposition of a fine on the official or body which had to act to enforce the judgment was not a guarantee that the judgment would be enforced. In the present case the applicant had asked the bailiff to fine the regional governor, and the bailiff had in effect sent a warning to the governor. However, this had clearly not led to the latter complying with the judgment.

47. What was more, the fine could not be considered a form of compensation for the applicant because, even if it had been paid by the governor, it would not have benefited the applicant directly.

48. Furthermore, as the governor was entitled to contest in court the imposition of a fine, this would have led to yet another set of judicial proceedings without any guarantee that the outcome would be an enforcement of the judgment.

49. Also, under the 2006 Code the applicant could not challenge in court the governor’s failure to act. He could only bring judicial review proceedings in respect of the actions and/or omissions of the bailiff. In the present case the governor was not “a body supervising the enforcement of the judgment”; that function belonged to the bailiff. The governor was a debtor who owed implementation. In that connection the judicial decision to which the Government had referred in their observations (see paragraph 41 above) was not relevant, as the situation in it was different from that of the applicant. In particular, in the case cited by the Government the administrative body sanctioned by the court had been responsible for the supervision of the enforcement of the judgment by the debtor; when the administrative body had failed in that role, the court had replaced it with a bailiff. Contrary to that situation, in the present case the regional governor was the debtor, namely the body which had to act in order to implement the judgment; the bailiff could only supervise the enforcement and prompt the governor to enforce, but could not implement the judgment instead of him. The only way by which the bailiff could compel the governor was by the imposition of weekly fines (see paragraph 31 above) and that, the applicant had already submitted (see paragraphs 46-48 above), was not an effective remedy.

50. As regards the second argument advanced by the Government, the applicant pointed out that claims for damages were not an effective remedy in situations where the authorities had failed to act. He referred in particular to the Court’s findings in the case of Vasilev and Doycheva v. Bulgaria, no. 14966/04, 31 May 2012.

51. Finally, in respect of the third argument of the Government, the applicant submitted that it had been absolutely unnecessary to ask the court to supplement the final judgment in his favour. In it the court had determined the total amount of the compensation due to the heirs of the deceased owner of the confiscated property. The owner had two sons who, in accordance with section 5(1) of the Inheritance Act, were entitled to equal parts of the inheritance. The judgment had been perfectly clear that the applicant’s part was to be calculated directly in application of the law. Consequently, the applicant was entitled to receive 50% of the total compensation, or BGN 11,802 (about 6,000 euros (EUR)).

3. The Court’s assessment

(a) General principles

52. The Court highlights that, in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Gherghina v. Romania (dec.) [GC], no. 42219/07, 9 July 2015). States are exempted from answering before an international body for their acts until they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among many other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996-IV; and Vučković and Others, cited above, § 70). The rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies within the national legal system which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Micallef v. Malta [GC], no. 17056/06, § 55, ECHR 2009).

53. Where the Government claims non-exhaustion of domestic remedies, it bears the burden of proving that the applicant has not used a remedy that was both effective and available (see Dalia v. France, 19 February 1998, § 38, Reports of Judgments and Decisions 1998-I; McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010). The Government’s arguments will clearly carry more weight if examples from national case-law are supplied (see Doran v. Ireland, no. 0389/99, ECHR 2003-X (extracts)) and where examples prove to be relevant (see Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 43-44, 2 November 2010). Such case-law must in principle be well established and date back to the period before the application was lodged (see, among other authorities, Gherghina v. Romania (dec.) [GC], no. 42219/07, 9 July 2015; Sürmeli v. Germany [GC], no. 75529/01, § 110, ECHR 2006-VII; Norbert Sikorski v. Poland, no. 17599/05, § 115, 22 October 2009; and Zutter v. France (dec.), no. 197/96, 27 June 2000).

54. As regards remedies in the context of enforcement of domestic judicial decisions, the Court has held that any domestic means to prevent a violation by ensuring timely enforcement is, in principle, of greatest value (see Burdov v. Russia (no. 2), no. 33509/04, § 98, ECHR 2009, and Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 65, ECHR 2009-...(extracts)). Prevention of a violation is, in absolute terms, the best solution in many spheres. A remedy designed to prevent enforcement delays and to hasten the ultimate recovery of the judgment debt would therefore be most desirable (see Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, § 33, 23 September 2010).

55. Where a judgment has been delivered in favour of an individual against the State, the burden to comply with such a judgment lies primarily with the State authorities, which should use all means available in the domestic legal system in order to speed up the enforcement, thus preventing violations of the Convention (see Burdov (no. 2), cited above, § 98, and Yuriy Nikolayevich Ivanov, cited above, § 65). The Court will thus review the effectiveness of any domestic remedy both in light of this primary responsibility of the State in such cases and the general principles laid down under Article 35 § 1 of the Convention. The Court would require applicants to exhaust an available domestic remedy for the enforcement of a judgment against the State, only where such remedy is capable of leading to a timely enforcement and is not placing an excessive burden on the applicant.

(b) Application of these principles to the present case

56. The applicant in the present case was in possession of a final judgment in his favour which held that he had to receive compensation in accordance with his share as an heir. The material before the Court suggests that this judgment was clear and enforceable.

(i) Judicial review of the bailiff’s failure to enforce the judgment

57. In respect of the Government’s first objection of non-exhaustion, namely that the applicant did not challenge in court the bailiff’s failure to enforce the judgment in his favour, the Court observes the following.

58. As regards the situation in Bulgaria, a new preventive-type remedy for forced compliance with administrative court judgments, ordering the public authority to carry out a non-substitutable action, was introduced with the adoption of the 2006 Code in July 2006 (see paragraphs 31 and 32 above). By virtue of this remedy, an individual who is in possession of a final judgment against a public body or official who had to act to implement the judgment can ask the bailiff to impose under Article 290 of the 2006 Code weekly fines on the responsible party until the latter complied with the judgment. In the event that a bailiff does not impose a fine on the responsible official, or fails to pursue enforcement in any other way, the creditor (the applicant) is entitled to bring judicial review proceedings under Article 294 of the 2006 Code to challenge the bailiff’s failure to act. At the end of those proceedings the court can order the bailiff to carry out a specific action within a concrete time-frame (see paragraph 32 above).

59. In the present case, the decision in favour of the applicant became final in September 2005 and the applicant explicitly requested enforcement by the regional governor in June 2006. He initiated enforcement proceedings against the regional governor in early 2007 (see paragraphs 15-16 above). In the context of these proceedings, on three occasions the bailiff invited the governor to comply voluntarily with the judgment or else risk being fined (see paragraphs 16, 19 and 21 above). Although the governor failed to comply, the bailiff did not fine him nor does it appear that he otherwise pursued enforcement further. The applicant in turn failed to challenge in court the bailiff’s inactivity.

60. The Court notes with respect to the remedy provided for in Article 294 of the 2006 Code, described in paragraphs 32 and 59 above, that it has been used successfully in a number of cases in which the national courts have ordered bailiffs to pursue forced enforcement proceedings against administrative bodies and/or officials, or have dismissed appeals by officials against fines imposed on them by bailiffs under Article 290 of the 2006 Code for failure to act in order to enforce a judgment (see paragraphs 34-35 above). In particular, in a 2012 case (see paragraph 33 above) the court ordered a bailiff to continually impose fines under Article 290 of the 2006 Code until the municipal agricultural agency, a public authority which owed enforcement, complied with a final judgment. In this same context, the Court has already held that a mechanism of financial sanctions imposed on public officials, such as the one of weekly fines described immediately above, could in principle be an effective domestic remedy capable of compelling the responsible official to comply with the judgment (see Stoyanov and Tabakov v. Bulgaria, no. 34130/04, § 96 first sentence, 26 November 2013). Taking into account the spirit and aim of the protection system under the Convention, namely to give first an opportunity to the national authorities to put a violation right before the Court is seized, the Court notes that the requirement to use such a remedy could not be considered to place an excessive burden on an applicant and that, as of mid-2012, it can be said that this remedy appears available and in principle effective and applicants are therefore expected to use it before applying to the Court.

61. However, it cannot be said that this was the case in 2007 when the applicant brought this application before the Court. In particular, the domestic court decisions referred to in paragraph 60 above as an illustration of the remedy’s effectiveness should have been available before the application was lodged with the Court (see paragraph 53 above, last sentence). Noting that the legislative remedy was created only after the decision in the present case became final, and the case law demonstrating its effectiveness appeared many years later, the Court finds that the Government have not shown that the domestic practice was sufficiently consolidated, or that domestic case-law showing that this remedy had been successfully used even existed at the time when the applicant applied to the Court (see for a similar approach Norbert Sikorski, cited above, §§ 115 and 117). Consequently, the Court does not consider that the applicant in the present case should have attempted this remedy before turning to the machinery in Strasbourg.

(ii) Proceedings for damages under the SMRDA

62. As regards the Government’s second objection of non-exhaustion, namely the possibility of bringing a claim for damages (see paragraph 42 above), the Court notes that it has already held that proceedings for damages could, in principle, be considered an effective remedy in cases of non-enforcement of final administrative court decisions (see Burdov (no. 2), cited above, § 99; Yuriy Nikolayevich Ivanov, cited above, § 65; Stoyanov and Tabakov, cited above, § 102).

63. However, the Government have not provided examples of case-law showing that damages have been awarded under the SMRDA as a result of a failure to enforce final judgments. While the Court is aware of two final decisions in which the domestic courts awarded damages for non-enforcement of final judgments (see paragraph 37 above), it notes that in a number of other decisions the courts have rejected such claims (see paragraph 37 above) or awarded damages not in connection with the failure to enforce but because of the quashing of the initial administrative act by the courts (see, on this last point, Stoyanov and Tabakov, cited above, § 104). Consequently, the Court finds that the domestic practice is not sufficiently consolidated to allow it to conclude that the compensation remedy provided for in the SMRDA is an effective one for the purposes of exhaustion in cases where final administrative court judgments ordering non-substitutable actions have not been acted upon.

(iii) Proceedings for supplementing the judgment

64. As noted above in paragraph 56, the material before the Court suggests that the final judgment in the applicant’s favour was clear and enforceable. Consequently, the Court sees no reason for the applicant to have brought proceedings for supplementing or clarifying the judgment.

(iv) Conclusion on admissibility

65. In the light of the above the Court does not consider that the applicant should have attempted to exhaust any of the remedies advanced by the Government.

66. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

67. The applicant claimed that the failure of the regional governor to finalise the procedure necessary for the issuing of compensation bonds to the applicant led to the impossibility for the judgment in the applicant’s favour to be enforced, in breach of Article 6 § 1 of the Convention.

68. The Government contested this argument.

2. The Court’s assessment

69. The Court reiterates that the right to a court under Article 6 § 1 of the Convention would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by a court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II; and Burdov (no. 2), cited above, § 65).

70. The right of access to a court includes a right to have a court decision enforced without undue delay (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 66, ECHR 1999-V). While delays in enforcement might be justified in exceptional circumstances, only periods strictly necessary to enable the authorities to find a satisfactory solution are covered (see Immobiliare Saffi [GC], cited above, § 69; and Sokur v. Ukraine, no. 29439/02, § 30, 26 April 2005).

71. Turning to the case at hand, the Court observes that the Sofia City Court’s judgment of 19 July 2005 determined the amount of compensation which the applicant had to receive in the form of “housing compensation bonds”. According to the relevant procedure the regional governor had to act in order to ensure that compensation bonds were issued to the applicant in implementation of the judgment. However, the regional governor failed to do so over the period of several years, namely between June 2006 when the applicant sent him the judgment asking that it be enforced and at least April 2014 at the time of submission of the applicant’s observations before the Court. This delay is sufficient to enable the Court to conclude that in the present case there has been a violation of the applicant’s right to have a final judgment in his favour enforced, as guaranteed by Article 6 § 1 of the Convention (see, for comparison in respect of the period of non-enforcement, Kravchenko and Others (military housing) v. Russia, nos. 11609/05, 12516/05, 17393/05, 20214/05, 25724/05, 32953/05, 1953/06, 10908/06, 16101/06, 26696/06, 40417/06, 44437/06, 44977/06, 46544/06, 50835/06, 22635/07, 36662/07, 36951/07, 38501/07, 54307/07, 22723/08, 36406/08 and 55990/08, §§ 33-35, 16 September 2010; Kalinkin and Others, cited above, §§ 44 and 48).

72. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 OF THE CONVENTION

73. The applicant also complained that the failure of the governor to carry through the relevant procedure was unlawful and unjustified, and in breach of his rights under Article 1 of Protocol No. 1 to the Convention, which 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.”

74. The Government contested that argument.

75. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

76. In accordance with the Court’s established case-law, the applicant’s enforceable claim stemming from the final judgment of 19 July 2005 constituted a “legitimate expectation” to acquire a pecuniary asset (housing compensation bonds) which was sufficiently established to amount to “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention (see, among many other authorities, Gerasimov and Others v. Russia, nos. 29920/05, 3553/06, 18876/10, 61186/10, 21176/11, 36112/11, 36426/11, 40841/11, 45381/11, 55929/11 and 60822/11, § 182, 1 July 2014).

77. The impossibility for the applicant to obtain the execution of that judgment due to the inactivity of the governor was an unjustified interference with his right to peaceful enjoyment of his possessions as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1.

78. It follows that there has also been a violation of Article 1 of Protocol No. 1 to the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

79. 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

80. The applicant claimed 11,525 euros (EUR) in respect of pecuniary damage. This corresponded to EUR 6,000, which was the monetary face value of the compensation bonds awarded to him by the national court in the 2005 judgment, plus EUR 5,525, which was the amount of legal interest which would have accrued in respect of the award for the period between 26 June 2006, when he sought enforcement from the governor for the first time, and 28 April 2014, when the expertise in respect of the interest due was drawn up, pointing out that throughout this whole period the judgment remained unenforced.

81. The applicant further claimed EUR 5,500 in respect of non-pecuniary damage.

82. The Government considered that both of these claims were unjustified and excessive.

83. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see, among many other authorities, Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2000-I, and Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000-XI). In addition, there must be a clear causal connection between the damage claimed by the applicant and the breach (see, among other authorities, Stretch v. the United Kingdom, no. 44277/98, § 47, 24 June 2003). Under Rule 60 of the Rules of Court any claim for just satisfaction must be itemised and submitted in writing, together with the relevant supporting documents, failing which the Court may reject the claim in whole or in part.

84. As regards pecuniary damage, the basis on which the Court will proceed depends on the nature of the breach found. For example, illegal and arbitrary dispossessions of property in principle justify restitutio in integrum and, in the event of non-restitution, payment of the up-to-date full value of the property (see Papamichalopoulos and Others v. Greece (Article 50), judgment of 31 October 1995, Series A no. 330-B, and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, ECHR 2001-I). The Court observes in the present case that, had the governor enforced the judgment, the applicant would have been in possession of housing compensation bonds with nominal value of about EUR 6,000 at the time of their emission. However, having regard to the information available to it about the market value of the housing compensation bonds issued to owners (or their heirs) of nationalised property and, in particular, to the fact that between August 2006 and the end of 2015 that market value ranged between 37% and 73% of the nominal value of the bonds, the Court finds it appropriate to make a global assessment in respect of the applicant’s claim for pecuniary damage. Thus, taking into account the amount and type of compensation awarded by the national court to the applicant in the final judgment of 19 July 2005, as well as the valuation of the interest accrued on that amount as estimated in the expert report submitted by the applicant, the Court awards the applicant EUR 5,763 in respect of pecuniary damage.

85. As regards non-pecuniary damage, the Court finds that the failure to comply with the said judgment must have caused the applicant emotional distress and, deciding in equity, it awards the applicant EUR 3,600 in respect of non-pecuniary damage.

B. Costs and expenses

86. The applicant claimed EUR 80 for the costs and expenses incurred in the domestic enforcement proceedings. The applicant also claimed EUR 2100 for the costs and expenses incurred before the Court. The latter included EUR 1950 in legal fees, calculated at EUR 50 per hour, and EUR 150 for translation costs.

87. The Government submitted that these claims were exaggerated and unjustified.

88. 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.

89. In the present case, as regards the costs and expenses incurred in the domestic enforcement proceedings, the Court reiterates that it will uphold such claims only in so far as they relate to the violations it has found (see, Avdić and Others v. Bosnia and Herzegovina, nos. 28357/11, 31549/11 and 39295/11, § 51, 19 November 2013; Duraliyski v. Bulgaria, no. 45519/06, § 45, 4 March 2014; Penchevi v. Bulgaria, no. 77818/12, § 88, 10 February 2015). There is no evidence that the applicants incurred any costs and expenses before the domestic authorities in seeking redress in connection with the violation of the Convention found in the present case. Accordingly, the Court rejects this claim.

90. As regards the costs and expenses incurred before the Court, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,350.

C. Default interest

91. The Court considers it appropriate that the default interest rate 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;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, 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 5,763 (five thousand seven hundred and sixty three euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 3,600 (three thousand and six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 1,350 (one thousand three hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid directly in the bank account of the applicant’s representatives;

(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 31 March 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> DIMITAR YANAKIEV v. BULGARIA - 50346/07 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 316 (31 March 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/316.html Cite as: [2016] ECHR 316