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FIFTH
SECTION
CASE OF SIMOVA AND GEORGIEV v. BULGARIA
(Application
no. 55722/00)
JUDGMENT
STRASBOURG
12
February 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Simova
and Georgiev v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 20 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 55722/00) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Bulgarian nationals, Mrs Mariyka Borisova
Simova and Mr Orlin Marinov Georgiev (“the applicants”),
on 3 December 1999.
- The
applicants were represented by Ms M. Barutchiyska, a lawyer
practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs M. Dimova of
the Ministry of Justice.
- The
applicants alleged that they had been deprived of their property in
violation of Article 1 of Protocol No. 1 and Article 13 of the
Convention.
- On
6 September 2007
the President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on its
admissibility and merits at the same time (Article 29 § 3).
- Judge
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case (Rule 28 of the Rules of Court). On 1 October
2008, the Government, pursuant to Rule 29 § 1 (a), informed the
Court that they had appointed in her stead another elected judge,
namely Judge Lazarova Trajkovska.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1937 and 1960 respectively and live in Sofia.
- In
1984 the first applicant purchased from the State a two-room
apartment of 48 square metres located on a main commercial street in
Sofia. The apartment had become State property by virtue of the
nationalisations carried out by the communist regime in Bulgaria in
1947 and the following years.
- In
1987 the first applicant transferred her title to her son, the second
applicant, but preserved the right to use one room of the apartment
until the end of her life.
- After
the adoption of the Law on the Restitution of Ownership of
Nationalised Real Property in 1992, the former pre-nationalisation
owners of the apartment brought proceedings against the first
applicant under section 7 of that Law seeking the nullification of
her title and the return of their former property. They also brought
a rei vindicatio action against the second applicant.
- In
1997 the District Court found that the 1984 transaction had been
valid and dismissed the claims.
- On
appeal, on 6 August 1998 the claims were granted by the Sofia City
Court, which also ordered the applicants to vacate the apartment. The
final judgment was that of the Supreme Court of Cassation of 20 July
1999, which upheld the Sofia City Court's judgment.
- The
courts found that in 1984, at the time of the transaction, the
building plan of Sofia had envisaged the demolition of the
applicants' apartment building and the construction of a new
apartment building. The relevant regulations had prohibited the sale
of State apartments in such circumstances. It followed that the first
applicant had obtained the apartment unlawfully. Thus, her title had
been null and void and the second applicant's title was null and void
as well.
- The
applicants were evicted in April 2000.
- In
2000, it became possible for the applicants to obtain compensation
from the State, in the form of bonds which could be used in
privatisation tenders or sold to brokers.
- On
5 February 2001 the regional governor of Sofia refused the
applicants' request for compensation bonds. Upon the applicants'
appeal, in judgments of 2002 and 2003 the courts quashed the refusal
and granted the applicants' request.
- In
June 2003 an expert appointed by the courts assessed the market value
of the apartment at 22,032 Bulgarian levs (“BGN”), the
equivalent of approximately EUR 11,200. The applicants submitted the
opinion of another expert, who assessed the apartment's market value
at BGN 40,490 (the equivalent of approximately EUR 20,700).
- In
February 2004 the applicants received compensation bonds for
BGN 21,600 (the equivalent of
approximately EUR 11,000).
- They
sold them on 26 November 2004, when bonds were traded at 68% of face
value, and obtained BGN 15,055.20 (the equivalent of approximately
EUR 7,680).
- In
1999 the first applicant brought an action under the State
Responsibility for Damage Act seeking BGN 44,800 in damages from the
State and the Sofia municipality, which had sold her the apartment in
breach of the relevant domestic law. On 10 April 2006 the claim was
disallowed in a final judgment of the Sofia Court of Appeal, which
found that the authorities' actions in concluding the contract of
sale did not give rise to responsibility under the State
Responsibility for Damage Act and that in any event the first
applicant could have refused to buy an apartment in breach of the
law.
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).
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
in violation of Article 1 of Protocol No. 1 to
the Convention, which reads:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government disagreed.
A. Admissibility
- The
Court notes that in 1987 the first applicant transferred her title to
the second applicant, but preserved the right to use one room in the
apartment until the end of her life. Although she did not have
ownership rights at the time of the impugned events, her right to use
the apartment also constitutes a possession within the meaning of
Article 1 of Protocol No. 1. The first applicant can therefore be
considered a victim of the alleged violation of that provision and
her complaint is not incompatible ratione personae with the
Convention.
- The
Court also notes that the complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
applicants argued that the first applicant had bought the apartment
in good faith and that they had not been responsible for the
administrative omission that led to the nullification of their
respective titles.
- The
Government submitted that the restitution laws adopted after the fall
of communism had had the aim of restoring justice. In the applicants'
case, the courts had applied the relevant law correctly. The
requisite fair balance had not been upset because the applicants had
benefited from the use of the apartment and had received compensation
through bonds. Referring to the case of James and Others v. the
United Kingdom (21 February 1986, Series A no. 98), the
Government argued that in cases of deprivation of property, Article 1
of Protocol No. 1 did not require full compensation.
- 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 applicants'
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, §§
162-176), the Court considers that in the particular circumstances
the question whether the relevant law was sufficiently clear and
foreseeable cannot be separated from the issue of proportionality.
- Applying
the criteria set out in Velikovi and
Others (cited above, §§ 183-192),
the Court notes that the applicants' respective
titles were declared null and void and they were deprived of their
property on the sole ground that in 1984 the State had sold the first
applicant an apartment in a building which had been earmarked for
demolition under the city's building plan (see paragraph 12 above).
It has not been alleged that the applicants had been aware of the
existence of this plan, which was never implemented, or that the sale
of the apartment to the first applicant had in any way impeded its
implementation. The State administration, not the applicants, had
been responsible for the decision to sell the apartment.
- The
Court considers that the present case is therefore similar to those
of Bogdanovi
and Tzilevi,
examined in its Velikovi and Others
judgment (see §§ 220 and 224 of that judgment, cited
above), where it held that in such cases the fair balance required by
Article 1 of Protocol No. 1 to the Convention could not be achieved
without adequate compensation. The applicants undertook all necessary
steps under the bonds compensation scheme but only obtained the
equivalent of EUR 7,680 – 68% of
the value of the apartment in 2003, as assessed by the
court-appointed expert, and 37% of the same value, as assessed by the
applicants' expert (see paragraphs 16-18 above), whereas during that
period real-estate prices were rising rapidly.
- The
Court is not convinced that this inadequate compensation was
justified. Furthermore, it notes that the applicants were not
provided with municipal housing after their eviction.
- It
follows that the fair balance between the public interest and the
need to protect the applicants' rights was not achieved. There has
therefore been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicants complained under Article 13 that they did not have an
effective remedy in respect of the alleged violation of Article 1 of
Protocol No. 1.
A. Admissibility
- Having
regard to its conclusion in paragraphs 23-24 above, the Court
considers that the complaint under Article 13 must be declared
admissible.
B. Merits
- Having
regard to its conclusions under Article 1 of Protocol No. 1 and the
approach in its Velikovi and Others judgment, the Court is of
the view that no separate issue arises under Article 13 and that it
is not therefore necessary to examine the complaint under this
provision separately (see Velikovi and Others, cited above, §
252).
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
applicants submitted a valuation report of October 2007, by an expert
commissioned by them, assessing the value of the apartment they had
lost at EUR 101,240. In respect of pecuniary damage, they jointly
claimed this sum, reduced by the sum they
had obtained from the sale of their compensation bonds – EUR
7,680 (see paragraph 18 above). They
also claimed non-pecuniary damage, without indicating an exact sum.
In this respect, they contended that their health had deteriorated as
a result of the anguish related to the loss of the apartment.
- The
Government did not comment.
- The
Court notes that the second applicant was the owner of the apartment
in question and that the first applicant had a right to use a room in
it until the end of her life. While it is true that, as a result, the
pecuniary damage suffered by each of the two applicants was not the
same, the Court, having regard to the specific circumstances of the
present case, considers it appropriate to award a sum of money to the
applicants jointly.
- Applying
the approach set out in Todorova and
Others v. Bulgaria ((just
satisfaction), nos.
48380/99, 51362/99, 60036/00 and 73465/01, §§ 10 and 47, 24
April 2008), 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
apartment and all other relevant circumstances.
- To
determine the amount to be awarded, the Court takes into account
publicly available information on real-estate prices in Bulgaria and
the fact that the applicants received some compensation.
- Having
regard to these considerations, the Court awards the applicants
jointly EUR 47,000 in respect of pecuniary and non-pecuniary damage
combined.
B. Costs and expenses
- The
applicants claimed EUR 1,500 for legal work by their lawyer. In
support of the claim they submitted a contract for legal
representation in which this remuneration was agreed upon. They also
claimed EUR 188 for translation of documents and submitted receipts
for this amount.
- Separately,
the applicants claimed the sum of BGN 2,155.67 (approximately EUR
1,100), which had been paid by the first applicant in court fees in
the 1999-2006 proceedings for damages. In support of this claim they
submitted a bank document certifying the payment.
- The Government did not
comment.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
- In
the present case, regard being had to the information in its
possession, the Court considers that the costs for lawyer's fees and
for translation of documents were actually and necessarily incurred.
As to quantum, the Court finds it reasonable to award EUR 1,200 for
the said costs and expenses.
- In
respect of the expenses for court fees incurred by the first
applicant in the proceedings for damages, the Court notes that in
1999 when the proceedings started, the domestic courts' approach to
such claims was not yet settled. Only later did it become clear that
such claims for damages by persons in the first applicant's position
had no prospects of success (see Velikovi
and Others, cited above, §
127). As the first applicant's claim was directly related to the
events which gave rise to the violation of Article 1 of Protocol No.
1 found in the present case, in that it concerned the responsibility
of the State for the applicant's deprivation of property, the Court
considers that the expenses in question were necessarily incurred and
are reasonable as to quantum (see Krushev v. Bulgaria,
no. 66535/01, §§ 63-65, 3
July 2008). It thus awards the applicants EUR
1,100 for the said costs and expenses.
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 application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that it is not necessary to examine
separately the applicants' complaint under Article 13 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicants jointly, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts to be converted into Bulgarian levs at the rate applicable at
the date of settlement:
(i) EUR
47,000 (forty-seven thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR
2,300 (two thousand three hundred euros), plus any tax that may be
chargeable to the applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 12 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
