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FIFTH
SECTION
CASE OF BACHVAROVI v. BULGARIA
(Application
no. 24186/04)
JUDGMENT
STRASBOURG
7 January 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision
In the case of Bachvarovi v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
judges,
Pavlina Panova, ad hoc judge,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24186/04) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Bulgarian nationals, Mr Gancho Kolev
Bachvarov and Mr Nikolay Ganchev Bachvarov (“the applicants”),
on 2 July 2004.
- The
applicants were represented by Mr S. Lyuboslavov, a lawyer practicing
in Varna. The Bulgarian Government (“the Government”)
were represented by their Agents, Mrs M. Dimova and Mrs N. Nikolova,
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 8 of the
Convention.
- On
14 May 2008 the President of the Fifth Section decided to give notice
of the application to the Government. It was also decided to examine
the merits of the application at the same time as its admissibility
(Article 29 § 3).
- Judge
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case. On 30 January 2009 the Government appointed in
her stead Mrs Pavlina Panova as an ad hoc judge (Article 27 §
2 of the Convention and Rule 29 § 1 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1927 and 1951 respectively and live in
Varna. They are a father and his son.
- In
1959 the first applicant and his wife bought from the State, through
the Ministry of Defence, an apartment of 115 square metres in the
centre of Varna. 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. It had been a part of a bigger
apartment, which had on an unspecified date before 1959 been divided
into two smaller ones.
- In
the beginning of 1993 the heirs of the former pre-nationalisation
owner of the property brought proceedings against the first applicant
and his wife under section 7 of the Restitution Law.
- In
2003 the first applicant’s wife died and was inherited by the
two applicants.
- The
proceedings under section 7 of the Restitution Law ended by final
judgment of the Supreme Court of Cassation of 20 February 2004. The
courts found that the applicants’ title was null and void
because the division of the initial bigger apartment into two smaller
ones (see paragraph 7 above) had not been carried out in accordance
with the law.
- Immediately
after the final judgment in their case, 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. The applicants did not avail themselves of this opportunity.
- In
December 2006 the heirs of the former owner of the apartment brought
a rei vindicatio action and an action for damages against the
first applicant who was still living in the apartment. The
proceedings are still pending. The first applicant’s request to
be accommodated in a municipally owned dwelling, lodged in 2004,
has not yet been granted due to the unavailability of free
apartments.
II. RELEVANT BACKGROUND FACTS, DOMESTIC LAW AND PRACTICE
- These
have been summarised in the Court’ s judgment in the case of
Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99,
48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and
194/02, 15 March 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicants complained that they had been deprived of their property
arbitrarily, through no fault of their own and without adequate
compensation. They relied on Article 1 of Protocol No. 1 and Article
8 of the Convention.
- The
Court is of the view that the complaint falls to be examined under
Article 1 of Protocol No. 1, which reads:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government argued that the applicants had failed to exhaust domestic
remedies because they had not sought compensation bonds. In any
event, they urged the Court to conclude that there was no violation
of Article 1 of Protocol No. 1, arguing that a fair balance had been
achieved in the case between the public interest and the applicants’
rights.
- The
applicants contested these arguments.
A. Admissibility
- The
Court notes the Government’s objection for non-exhaustion of
domestic remedies.
- In
this respect, it refers to its detailed reasoning in Velikovi
and Others, where it found that at
the relevant time the bonds compensation scheme did not secure
adequate compensation with any degree of certainty (see Velikovi
and Others, cited above, §
227). Furthermore, the Court has already examined an identical
objection in a similar case and has rejected it (see Dimitar
and Anka Dimitrovi v. Bulgaria,
no. 56753/00, § 23, 12 February 2009). It does not see
a reason to reach a different conclusion in the present case and,
accordingly, dismisses the Government’s objection.
- The
Court notes that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Court notes that the present complaint concerns the same legislation
and issues as in Velikovi and Others, cited above.
- The
events complained of constituted an interference with the 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’
title was declared null and void and they were deprived of their
property on the sole ground that their flat had been part of a bigger
apartment which had been divided by the State in violation of the
applicable regulations (see paragraph 11 above). This deficiency is
clearly attributable to authorities, not the applicants (see Yurukova
and Samundzhi v. Bulgaria, no.
19162/03, § 24, 2 July 2009).
- The
Court considers therefore that the present case is similar to those
of Bogdanovi and Tzilevi, examined in Velikovi and
Others (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 (see also Yurukova and
Samundzhi, cited above, § 25).
- The
question thus arises whether adequate compensation was provided to
the applicants.
- Following
the final judgment in their case they could have applied for
compensation bonds but failed to do so. However, as the Court found
in Velikovi and Others, cited above, § 226, and in a
number of subsequent cases (see Koprinarovi v. Bulgaria, no.
57176/00, § 31, 15 January 2009; 2009; Vladimirova and Others
v. Bulgaria, no. 42617/02, § 40, 26 February 2009; and
Peshevi v. Bulgaria, no.
29722/04, § 23, 2 July 2009), owing to the instability of
bond prices and frequent changes in the relevant rules, it could not
be considered that at the time the bond scheme secured adequate
compensation. Therefore, although it must be taken in consideration
under Article 41, the applicants’ failure to use the bond
compensation scheme cannot affect decisively the outcome of the
present complaint.
- In
these circumstances, the Court finds that no clear, timely and
foreseeable opportunity to obtain adequate compensation was available
to the applicants.
- It
follows that the fair balance between the public interest and the
need to protect their 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 pecuniary damage, the applicants claimed, jointly, the
value of their apartment, reduced with the value of the compensation
bonds they would have received had they applied for such bonds in
2004. In accordance with a valuation prepared by two experts
appointed by them, they assessed that sum to be 123,660 euros (EUR).
- In
respect of non-pecuniary damage, the applicants claimed EUR 25,000.
- The
Government considered these claims to be excessive.
- 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 applicants 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 applicants’
failure to use the bond compensation scheme (see paragraph 28 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 Varna, the
Court awards, jointly to the two applicants, EUR 80,000 in respect of
pecuniary and non pecuniary damage.
B. Costs and expenses
- The
applicants claimed EUR 2,000 for legal work by their lawyer after the
communication of the present application. In support of the claim
they submitted a contract for legal representation in which that
remuneration was agreed upon.
- They
also claimed 465.30 Bulgarian levs, the equivalent of approximately
EUR 240, for postage and translation and for the cost of the
valuation report they submitted. They submitted the relevant
receipts.
- The
Government urged the Court to reject these claims.
- 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, 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 were not indicated,
and also that the applicants’ lawyer did not represent them at
the initial stage of the proceedings, considers it reasonable to
award the sum of EUR 1,500 covering costs and expenses under all
heads.
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
(a) that
the respondent State is to pay jointly to the two applicants, 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
80,000 (eighty thousand euros), plus any tax that may be chargeable,
in respect of pecuniary and non-pecuniary damage;
(ii) EUR
1,500 (one thousand five 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’
claims for just satisfaction.
Done in English, and notified in writing on 7 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
