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FIFTH
SECTION
CASE OF
DICHEV v. BULGARIA
(Application
no. 1355/04)
JUDGMENT
STRASBOURG
27 January
2011
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 Dichev v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Mark Villiger,
Isabelle Berro Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva,
Ganna Yudkivska,
judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 6 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1355/04) 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 a Bulgarian national, Mr Tsvetan Ivanov Dichev
(“the applicant”), on 27 December 2003.
- The
applicant was represented by Ms S. Vasileva Georgieva, a lawyer
practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms S. Atanasova,
of the Ministry of Justice.
- The
applicant alleged, in particular, that for a number of years he had
been unable to obtain the delivery of a garage due to him as
compensation under an expropriation order issued in 1979.
- On
3 September 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 of the Convention, as worded
before 1 June 2010).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1935 and lives in Sofia. He was one of the
three co-owners of a house with a yard and a garage located there.
- On 24 July 1979 the mayor of Sofia decided to
expropriate the house and the garage with a view to the construction
of several residential buildings. His order was based on section
98(1) of the 1973 Territorial and Urban Planning Act (“the 1973
Act” – see paragraph 20 below), and said that the
applicant was to be compensated with a flat and a garage in a
building which the Ministry of the Interior intended to construct.
- The expropriated properties were valued at 14,639.07
old Bulgarian levs (BGL).
Following judicial review proceedings brought by the applicant and
the other co owners, on 16 November 1981 the Sofia City Court
increased the valuation to BGL 30,004.65.
- In the meantime, by a supplementary order of 2 July
1980 based on section 100 of the 1973 Act (see paragraph 20 below),
the mayor indicated the exact flat to be given to the applicant by
way of compensation, specifying the building in which it would be
located and its exact size and price.
- The flat was built and delivered to the applicant in
1984.
- In
1987 the applicant was informed that he had not been compensated with
a garage because there were none in the building where the flat was
located. It was confirmed that he would be offered a garage as soon
as the Ministry of the Interior constructed a building with garages.
- On
21 January 1999 the deputy mayor of Sofia invited the Ministry to
provide a garage for the applicant. In a letter of 3 February 1999
the Ministry replied that it could not satisfy the applicant's
request because its buildings had no garages.
- On 29 December 1999 the applicant requested the
municipality to compensate him with another garage, or to make a new
valuation of the expropriated garage, based on its current market
price, and compensate him with cash on the basis of that new
valuation. On 13 July 2000 the deputy mayor asked a municipal company
to carry out a fresh valuation of the garage. In a report of August
2000 three experts employed by that company valued it at 14,867 new
Bulgarian levs (BGN). However, the municipality did not act on that
report and did not compensate the applicant with cash.
- On 22 November 2000 the applicant requested to be
compensated in cash on the basis of the fresh valuation. The
municipality did not reply.
- On 27 December 2000 the applicant sought judicial
review. He referred to his request of 29 December 1999 and enclosed a
copy of it, but did not mention the request that he had made on 22
November 2000.
- In a judgment of 13 November 2001 the Sofia City Court
examined the application on the merits and dismissed it, holding that
at the time when the applicant had requested a fresh valuation –
29 December 1999 – there had been no legal basis to allow such
a request.
- The applicant appealed. The Supreme Administrative
Court heard the appeal on 26 March 2002. At the hearing counsel for
the municipality argued that the Sofia City Court's judgment was
correct, and that at the time when the applicant had made his request
there had been no legal basis for requesting a fresh valuation. The
public prosecutor who took part in the proceedings ex officio
submitted that the application for judicial review had been made out
of time and should not have been examined on the merits.
- On 22 April 2002 the Supreme Administrative Court
quashed the Sofia City Court's judgment and declared the application
for judicial review inadmissible (реш.
№ 3957 от 22 април
2002 г. по адм. д. №
858/2002 г., ВАС, ІІ о.).
It found that the application, as evident from its text, had
been directed against a tacit refusal to grant the request of 29
December 1999, not against a tacit refusal to grant the request of 22
November 2000. It had therefore been made out of time. Under the
rules of administrative procedure, the municipality should have
replied to the request within one month. Its failure to do so, which
had amounted to a tacit refusal, could have been challenged by way of
judicial review not later than two weeks after the expiry of that one
month. The application had been lodged long after that, on 27
December 2000. The Sofia City Court should therefore not have
examined it on the merits.
- In judgments of 27 March and 29 October 2003 (реш.
№ 2951 от 27 март
2003 г. по адм. д. №
7460/2002 г., ВАС, петчленен
състав, реш. №
9625 от 29 октомври
2003 г. по адм. д. №
5877/2003 г., ВАС, петчленен
състав) the Supreme
Administrative Court rejected two requests by the applicant for the
proceedings to be reopened.
- Meanwhile, on 7 May 2002 the applicant urged the
municipality to provide him the requested cash compensation. In a
letter of 3 June 2002 the deputy mayor, referring to the judicial
review proceedings, informed the applicant that the mayor had still
not issued a decision providing that he be compensated in cash.
II. RELEVANT DOMESTIC LAW
- A summary of the relevant domestic law may be found in
paragraphs 72 79 of the Court's judgment in Kirilova and
Others v. Bulgaria (nos. 42908/98, 44038/98, 44816/98 and
7319/02, 9 June 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that for a number of years he had been unable to
obtain compensation in respect of the garage expropriated in 1979. He
relied on Article 1 of Protocol No. 1, which provides 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.”
A. The parties' submissions
- The
Government submitted that this case differed from Kirilova and
Others (cited above), because the applicant had received the flat
due under the expropriation order in good time, and had not received
only the attendant garage, which was only a small part of the
compensation due for his expropriated property. Moreover, the delay
in the delivery of the garage had been due not so much to the
authorities' inability to provide it, but to the incompetent manner
in which the applicant had sought to vindicate his rights. He had not
made a request for a new valuation until 1999 and had even then
failed to make it in proper form. That had doubtlessly contributed to
the municipality's failure to satisfy his request. His ensuing
application for judicial review and appeal had been unclear and
incompetently drafted. He had then repeatedly sought reopening, which
was clearly not a suitable avenue of redress. He had thus delayed the
compensation proceedings by at least three years. Nevertheless, those
proceedings were not over, and at their close he would receive
compensation in cash.
- The
applicant submitted that the Government were impermissibly mixing the
flat and the garage, which were separate properties. He had indeed
received the flat, but not the garage, which was still due to him. In
his view, he had made proper use of the available procedures to
obtain redress for the authorities' longstanding failure to deliver
the garage, whereas the authorities had for a number of years tried
to hinder his efforts in that respect.
B. The Court's assessment
- The
Court considers that the complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
- On
the merits, the Court starts by noting that the case does not concern
the flat due to the applicant under the 1979 and 1980 expropriation
and compensation orders (see paragraphs 6 and 8 above). That flat was
built and delivered to him in 1984 (see paragraph 9 above), long
before the Protocol No. 1 came into force in respect of Bulgaria on
7 September 1992 and before the applicant lodged his application
in 2003. Nor is the Court competent ratione temporis to
examine questions related to the taking of the applicant's property
in 1979 or to the sufficiency of the compensation awarded at that
time (see Kirilova and Others, cited above, §§ 86
and 105).
- However,
the garage due to the applicant under the 1979 order (see paragraph 6
above) has apparently still not been built and delivered. That order
created an entitlement which qualifies as a “possession”,
and the authorities' failure to satisfy it until this day amounts to
a continuous situation which falls to be examined under the first
sentence of the first paragraph of Article 1 of Protocol No. 1
(ibid., §§ 86, 104 and 105).
- To
ascertain whether the Bulgarian State has complied with its
obligations under that provision, the Court must examine whether it
struck a fair balance between the general interest and the
applicant's rights (ibid., § 106). Very long delays in the
payment of compensation, coupled with the authorities' unwillingness
to resolve the problem, are factors, among others, that can upset
that balance (ibid, § 123).
- The
applicant's entitlement arose thirty one years ago, eighteen of
which fall within the Court's temporal jurisdiction. Such a long
period appears clearly unjustified. Throughout that time the
applicant was faced with the passive attitude of the authorities,
which left him in a position of uncertainty as to whether or when he
would receive the compensation to which he was entitled.
- Contrary
to what has been suggested by the Government, the Court finds no
indication that the applicant was responsible for that delay.
Firstly, he cannot be blamed for not trying earlier to request
compensation on the basis of a fresh valuation based on the current
market value of the garage. In view of the way in which the
authorities and the courts interpreted the applicable rules at the
time, he could have reasonably assumed that he would be unlikely to
obtain it (ibid., § 115). Moreover, when the Sofia City Court
examined the applicant's case on the merits, it held that there had
been no legal basis for even requesting a fresh valuation; on appeal,
counsel for the municipality maintained the same position (see
paragraphs 15 and 16 above). In those circumstances, the applicant
could have legitimately doubted whether the authorities ascribed any
effect to the valuation carried out in August 2000 (see paragraph 12
above). Secondly, it does not seem that the manner in which the
applicant prosecuted the judicial review proceedings contributed to
the delay. Those proceedings did not prevent the authorities from
finding an appropriate solution to his problem. However, they did not
take any steps in that direction, and as late as June 2002 informed
him that no order had been made for him to be compensated in cash
(see paragraph 19 above).
- In
cases like the present one it is incumbent on the authorities to act
in good time, and in an appropriate and consistent manner. Instead,
they adopted a passive attitude, leaving the applicant in a state of
uncertainty as to whether or when he would receive the compensation
to which he was entitled and opposing his attempts to seek redress.
That approach cannot be considered compatible with the State's
obligations under Article 1 of Protocol No. 1 (ibid., §§
121 and 123).
- There
has therefore been a violation of that provision.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. The examination of the application for judicial
review
- The
applicant complained that by declaring his application for judicial
review inadmissible the Supreme Administrative Court had deprived him
of effective access to a court.
- The
Court considers that this complaint falls to be examined under
Article 6 § 1 of the Convention. It notes that when lodging his
application for judicial review on 27 December 2000 the applicant
referred to the request that he had made in 29 December 1999 and
enclosed a copy of it, but did not mention the request that he had
made on 22 November 2000 (see paragraph 14 above). The ensuing
rejection of his application as being out of time can therefore be
attributed to his own lack of diligence (see, mutatis mutandis,
Edificaciones March Gallego S.A. v. Spain, 19 February 1998,
§ 35, Reports of Judgments and Decisions 1998 I).
To accomplish their task, the courts need the cooperation of the
parties, who are required, as far as possible, to set out their
claims clearly, unambiguously and in a reasonably structured form
(see Jahnke and Lenoble v. France (dec.), no. 40490/98,
ECHR 2000 IX).
- It
follows that this complaint is manifestly ill founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
B. The requests for reopening of the judicial review
proceedings
- The
applicant also complained that his applications for reopening of the
judicial review proceedings had been wrongfully rejected.
- The
Court observes that according to its case law, Article 6 does
not guarantee a right to the reopening of proceedings and is not
applicable to proceedings concerning requests for the reopening of
proceedings which have been concluded by a final decision (see, among
other authorities, Zawadzki v. Poland (dec.), no. 34158/96, 6
July 1999; Sablon v. Belgium, no. 36445/97, § 86, 10
April 2001; and Zotov v. Bulgaria (dec.), no. 43273/98, 6
March 2003).
- It
follows that this complaint is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 (a) and must be rejected in accordance with Article 35 §
4.
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
applicant claimed 20,460 euros (EUR) in respect of the pecuniary
damage resulting from the authorities' continuing failure to deliver
the garage to him. That amount was based on the market value that the
expropriated garage would have had in 2009. He further claimed
EUR 54,000 resulting from the impossibility to let the garage
since 1979. That amount was based on the current rental prices for
similar garages in Sofia. Lastly, the applicant claimed compensation
in respect of the non pecuniary damage, asking the Court to
determine the quantum of the award at its discretion.
- The
Government submitted that the applicant's claim in respect of
pecuniary damage was exorbitant. In their view, the finding of a
violation would constitute sufficient reparation for any damage
suffered. The claim in respect of loss of profits was speculative and
unfounded. Throughout the years the rental prices for garages like
the one taken from the applicant had varied widely, and it was
completely unrealistic to assume that the applicant would have been
able to obtain current rental prices throughout the past thirty
years. Lastly, they pointed out that the economic crisis had caused
the prices of immovable properties in Bulgaria to drop drastically.
- The
Court finds it appropriate to adopt the same approach as in Kirilova
and Others v. Bulgaria ((just satisfaction), nos. 42908/98,
44038/98, 44816/98 and 7319/02, §§ 23 33, 14 June
2007).
- As
regards the damage stemming from the authorities' continuing failure
to deliver the garage due to the applicant under the order of 24 July
1979 (see paragraph 6 above), the Court considers that the best way
to make good the breach of Article 1 of Protocol No. 1 would be for
the respondent State to deliver to the applicant ownership and
possession of that garage. If the respondent State does not make such
delivery within three months from the date on which this judgment
becomes final, it must pay the applicant a sum corresponding to the
current value of the garage. Having regard to the materials submitted
by the applicant and information available to it on the prices of
real property in Sofia, the Court assesses that value at EUR 12,000.
- Concerning
the damage sustained on account of the impossibility to use and enjoy
the garage since 1979, the Court is unable to follow the method
suggested by the applicant, for several reasons. First, the “period
of damage” did not start in 1979, but on 7 September 1992, when
Protocol No. 1 came into force in respect of Bulgaria. Secondly,
it is unclear whether the applicant would have let the garage out or
used it himself. Thirdly, the applicant would have inevitably
experienced some delays in finding suitable tenants, would have
incurred expenses to maintain the garage, and would have been subject
to taxation on any rent (ibid., §§ 30 and 31). Fourthly, in
view of the economic realities in Bulgaria, it is unrealistic to
assume that rent throughout the period since 7 September 1992 would
have been equal to that charged at present (see, mutatis mutandis,
Zlínsat, spol. s r.o. v. Bulgaria (just
satisfaction), no. 57785/00, § 44 (c), 10 January 2008). The
applicant may nonetheless be regarded as having suffered a certain
loss of opportunity on account of not being able to use and enjoy the
garage. Having regard to the number of imponderables involved, the
Court considers that it must rule in equity. It awards the applicant
EUR 4,000, plus any tax that may be chargeable.
- The
Court further considers that the applicant must have experienced
frustration as a result of the authorities' prolonged failure to
deliver the garage to which he was entitled and of their reluctance
to solve his problem for such a long time. Ruling in equity, the
Court awards him EUR 2,000 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicant sought reimbursement of EUR 1,000 incurred in lawyers' fees
for the proceedings before the Court and EUR 28 for other expenses,
such as postage and court fees for the domestic proceedings. He
submitted receipts for payment of court fees and postal expenses.
- The
Government pointed out that there was no indication that the
applicant had paid for the services of a lawyer. His claim in that
respect was therefore unfounded.
- According
to the Court's case law, applicants are entitled to the
reimbursement of their 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. To that end, Rule 60 §§ 2 and
3 of the Rules of Court provide that applicants must enclose with
their claims for just satisfaction “any relevant supporting
documents”, failing which the Court “may reject the
claims in whole or in part”. In the present case, the applicant
has not enclosed with his claim any documents showing that he has
incurred lawyers' fees. Therefore, his claim in that respect cannot
be allowed. On the other hand, noting that costs incurred to prevent
or obtain redress for a violation of the Convention through the
domestic legal order are recoverable under Article 41 (see, as a
recent authority, Neulinger and Shuruk v. Switzerland
[GC], no. 41615/07, §
159, 6 July 2010), the Court allows the applciant's claim in respect
of the court fees paid by him for the domestic proceedings. The claim
in respect of postage is also well founded. It therefore awards
the applicant EUR 28, plus any tax that may be chargeble.
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 complaint concerning the
authorities' failure to provide to the applicant the compensation to
which he was entitled admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds that the respondent State is to deliver to
the applicant, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention, ownership and possession of the garage that is due to
him;
- Holds
(a) that,
failing such delivery, the respondent State is to pay the applicant,
within the same period of three months, EUR 12,000 (twelve thousand
euros), plus any tax that may be chargeable, to be converted into
Bulgarian levs at the rate applicable on 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
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
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 on the date of
settlement:
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(iii) EUR
28 (twenty eight euros), plus any tax that may be chargeable, 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
