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FIFTH
SECTION
CASE OF YURUKOVA AND SAMUNDZHI v. BULGARIA
(Application
no. 19162/03)
JUDGMENT
STRASBOURG
2 July
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Yurukova and
Samundzhi 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,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Pavlina
Panova, ad
hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 9 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19162/03) 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, Ms Valeriya Stancheva
Yurukova (“the first applicant”), on 4 June 2003. In
August 2008, the applicant's son, Mr Alex Alexander Samundzhi (“the
second applicant”), born in 1976, joined the proceedings.
- The
applicants were represented by Mr H. Studenchev, a lawyer practising
in Sofia. The Bulgarian Government (“the Government”)
were represented by their Agents, Mrs S. Atanasova and Mrs N.
Nikolova, of the Ministry of Justice.
- On
26 November 2007 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). The parties exchanged
observations on the admissibility and merits of the case and on the
applicants' claims for just satisfaction, including those submitted
on 19 August 2008 in relation to new facts and admitted to the file
by decision of the President (Rule 38 § 1 of the Rules of
Court).
- 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, under Rule 29 § 1 (a), informed the Court
that they had appointed, in her stead, Mrs Pavlina Panova as an ad
hoc judge.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- In 1987 the first applicant
purchased from the Sofia municipality a three-room apartment of 102
square metres.
- The property had become State
owned by virtue of the nationalisations carried out by the communist
regime in Bulgaria in 1947 and the following years.
- Originally, the nationalised
apartment had been bigger. Not later than 1968 it had been divided
into two apartments. One of them had been sold to an individual, Mr.
V., in 1968 and the second one to the first applicant in 1987.
- In 1993, shortly after the
enactment of the Restitution Law, the former pre-nationalisation
owners brought proceedings under section 7 of that Law against the
first applicant.
- The proceedings ended by final
judgment of the Supreme Court of Cassation of 13 January 2003.
- The courts examined the evidence
and rejected, in reasoned decisions, the first applicant's argument
that the claim under section 7 had been brought after 23 February
1993 – the date of expiry of the relevant statutory time-limit.
- Dealing with the case on the
merits, the courts declared the 1987 contract null and void and
restored the plaintiffs' ownership of the apartment on the basis of
two arguments: 1) the procedure for dividing an apartment into two
apartments had not been observed by Mr V. and the municipality in
1968 or earlier, and 2) a relevant document concerning the 1987 sale,
a tenancy order, had not been signed by the mayor personally, as
required by law, but by another official at the municipality.
- Until April 2003, within three
months of the final judgment in the case under section 7 of the
Restitution Law, it was possible for the first applicant to obtain
compensation from the State, in the form of bonds which could be used
in privatisation tenders or sold to brokers. The first applicant did
not avail herself of this opportunity.
- As the first applicant did not vacate the apartment
voluntarily, in December 2003 the owners brought rei vindicatio
proceedings against her and her son, the second applicant, who
apparently also lived in the flat. These proceedings ended by final
judgment of the Supreme Court of Cassation of 20 February 2008
ordering the applicants to vacate the flat. In December 2008, the
first applicant informed the Court that she had not vacated the
property and that the second applicant did not live there.
- In May 2008 the first applicant petitioned the
regional governor with requests to provide her with a State-owned
flat or, alternatively, with compensation bonds. In December 2008 the
first applicant informed the Court that she had not received a reply.
II. RELEVANT 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.
- In
a judgment of 23 October 2008 (decision no. 11025 in administrative
case no. 670/08), the Supreme Administrative Court held that
persons who had not applied for compensation bonds within the
relevant time-limit, in force since 2000, could not seek such bonds
after the enactment in June 2006 of paragraphs 2 and 3 of section 7
of the Restitution law (see paragraphs 133 and 139 of the Court's
judgment in Velikovi and Others, cited above) as
these provisions did not give rise to additional entitlement to
compensation bonds and therefore did not affect the relevant
time-limit.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 TO THE
CONVENTION IN RESPECT OF THE FIRST APPLICANT
- The
first applicant complained that she had been deprived of her property
arbitrarily, through no fault of her own and without adequate
compensation. She relied on Article 1 of Protocol No. 1, 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.”
- The
Government contested the first applicant's allegations.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
first applicant stated, inter alia, that she had been the
victim of an arbitrary and unlawful deprivation of property for which
she had not been compensated.
- The
Government did not dispute that the first applicant could not be held
responsible for the omissions which led to the nullification of her
title but considered that these omissions were considerable and
inevitably rendered the title null and void. The Government also
stated that the first applicant could have obtained adequate redress
by requesting the municipal authorities to sell her another flat and
making use of the bonds compensation scheme.
- The
Court notes that the present case concerns the same legislation and
issues as in Velikovi and Others,
cited above.
- The
facts complained of constituted an interference with the first
applicant's property rights and fall to be
examined under the second sentence of the first paragraph of Article
1 of Protocol No. 1 as a deprivation of property.
- Applying the criteria set out in
Velikovi and Others
(cited above, §§ 183-92), the Court notes that the
first applicant's title was declared null and void and she was
deprived of her property on the ground that there had been omissions
imputable to a Mr V. and the municipality (see paragraphs 7 and 11
above). The Government did not dispute the first applicant's position
that she could not be held responsible for these omissions.
- 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 could not be achieved
without adequate compensation.
- The
question arises whether adequate compensation was provided to the
first applicant.
- In
the Court's view, the fact that the first applicant did not vacate
the flat at least until December 2008 cannot be considered as
“compensation”. In any event, she was ordered to vacate
it by a final and enforceable judgment in the rei vindicatio
proceedings against her (see paragraph 13 above) and is in principle
liable to pay compensation to the owners for continuing to use their
flat (see paragraphs 69, 93 and 227 of the Velikovi and Others
judgment, cited above).
- It
is true that in 2003 the first applicant could have applied for
compensation bonds. She did not do so at that time, as in one of the
applications examined in Velikovi and
Others (see §§ 226-28) –
the case of Tzilevi
(see also the Court's judgments in other similar cases –
Koprinarovi v. Bulgaria,
no. 57176/00, 15 January 2009; Dimitar and Anka Dimitrovi
v. Bulgaria, no. 56753/00 12
February 2009; and Vladimirova and
Others v. Bulgaria, no. 42617/02, 26
February 2009). The Court considers that, as in those cases,
the first applicant forewent the opportunity to obtain at least
between 15% and 25% of the value of the property taken away from her
(assessed in accordance with the relevant regulations), 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 effect as of 2007 and provided for payment of the
bonds at face value cannot lead to the conclusion that the
authorities would have secured adequate compensation for the first
applicant. Indeed, she could not have foreseen bond prices or
legislative amendments and the Court cannot speculate whether she
would have waited before cashing her bonds. Furthermore, the
legislation on compensation changed frequently and was not
foreseeable (see Velikovi and Others,
cited above, §§ 191 and 226). As the Court ruled in
Velikovi and Others, the applicants' failure to use the bonds
compensation scheme must be taken into consideration under Article
41, but cannot decisively affect the outcome of the Article 1 of
Protocol No.1 complaint.
- In
so far as the first applicant eventually submitted a request for
bonds in May 2008, the Court notes that its outcome is highly
uncertain, having regard, in particular, to the practice of the
Supreme Court of Cassation (see paragraph 16 above).
- In
these circumstances, the Court finds that no clear, timely and
foreseeable possibility of obtaining adequate compensation was
secured to the first applicant.
- There
has therefore been a violation of Article 1 of Protocol No. 1 in
respect of the first applicant.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained that the restitution proceedings against the
first applicant and the rei vindicatio proceedings against
both applicants had been conducted in breach of the relevant
procedural requirements, that these proceedings had been unfair and
that the courts had made a wrong decision on a number of points. The
applicants asked the Court to set aside these judgments and decide on
the merits of the property dispute.
- The
Court has already found that section 7 of the Restitution Law and the
judgments of the national courts applying it in the present case
resulted in a violation of the first applicant's right to peaceful
enjoyment of her possessions, as enshrined in Article 1 of Protocol
No. 1 to the Convention (see paragraph 31 above). It is not the
Court's task to substitute itself for the national courts and decide
on the domestic law dispute in which this violation of the
applicant's Convention rights occurred.
- As
regards the second applicant's complaints and the remainder of the
first applicant's complaints, the Court, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, finds that they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols.
- It
follows that the remainder of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
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
first applicant did not claim pecuniary damages.
- She
claimed 3,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government considered that the claim was excessive since her
complaints were unfounded and also because the first applicant could
have requested the municipal authorities to provide her with a
municipal flat to rent or purchase.
- The
Court finds that the first applicant must have suffered non-pecuniary
damage as a result of the violation of her right to peaceful
enjoyment of her possessions found in this case. It considers that
the claim is not excessive and awards it in full (see, Todorova
and Others v. Bulgaria (just satisfaction), nos.
48380/99, 51362/99, 60036/00 and 73465/01, §§ 20 and 29,
24 April 2008).
B. Costs and expenses
- The
first applicant claimed EUR 5,152.90 for costs and expenses. These
included EUR 1,952 in costs incurred before the domestic courts
(lawyer's fees, court fees and postage) and EUR 3,200 in respect of
costs incurred in the proceedings before the Court (lawyer's fees,
translation costs and postage). She submitted copies of relevant
receipts.
- The
Government considered that the first applicant was not entitled to
recover the expenses incurred in the domestic proceedings and that in
any event the claims were excessive and unproven.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, the Court observes that some of the
applicants' complaints were declared inadmissible. Regard being had
to the information in its possession and the above criteria, the
Court, noting that the just satisfaction claims were supported by
relevant evidence, but that the exact volume, time and type of legal
work done was not indicated, considers it reasonable to award the sum
of EUR 2,500 covering all costs and expenses in the domestic
proceedings and before the Court.
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 complaint concerning the
deprivation of the first applicant of her property and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention in respect of the first
applicant;
- Holds
(a) that
the respondent State is to pay the first applicant, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 3,000 (three thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage and EUR 2,500 (two thousand and five hundred
euros), plus any tax that may be chargeable to the first applicant,
in respect of costs and expenses, both sums to be converted into
Bulgarian levs at the rate applicable at the date of settlement;
(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 2 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
