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FOURTH
SECTION
CASE OF
IDAKIEV v. BULGARIA
(Application
no. 33681/05)
JUDGMENT
STRASBOURG
21
June 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 Idakiev v.
Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Sverre
Erik Jebens,
Päivi
Hirvelä,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. De Gaetano,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33681/05) 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 Ivan Yordanov Idakiev
(“the applicant”), on 30 August 2005.
- The
applicant was represented by Mr A. Kashamov and Ms D. Mihaylova,
lawyers practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agents, Ms M. Dimova and
Ms M. Kotseva, of the Ministry of Justice.
- The
applicant complained, in particular, that the Supreme Administrative
Court had failed to examine a decisive argument of his. He also
complained that he had been deprived of his property and that the
restitution proceedings to which he, and before him his father, had
been a party had been too lengthy and had been marred by frequent
legislative changes and uncertainty.
- On
15 September 2009 the President of the Fifth Section decided to give
notice of the application to the Government.
- Following
the re composition of the Court’s sections on 1 February
2011, the application was transferred to the Fourth Section of the
Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Pernik.
- Agricultural
lands owned by the applicant’s father and grandfather were
collectivised after 1945.
- Following the entry into force of the Agricultural Land
Act (see paragraph 26 below), on 22 February 1992 the applicant’s
father sought to recover fifteen plots formerly owned by him in the
area of the village of Kasilag totalling 39,650 square metres. In two
decisions adopted on 16 May 1996 the Radomir Agricultural Land
Commission (“the land commission”) restored to him
several plots totalling 21,755 square metres, some in their old
boundaries and the remainder through a land redistribution plan which
was to be adopted later.
- On 28 February 1992, acting on behalf of the
applicant’s grandfather’s heirs, the applicant’s
father sought to recover another thirty seven plots formerly
owned by the applicant’s grandfather, also in the area of
Kasilag, totalling 175,000 square metres. The applicant’s
father was entitled to one-seventh of the applicant’s
grandfather’s property. In two decisions also dated 16 May 1996
the land commission restored to the heirs a number of plots totalling
107,500 square metres, some in their old boundaries and the remainder
through the land redistribution plan.
- The land redistribution plan for the area of Kasilag
was published on 18 June 1996. Under that plan the applicant’s
father and the heirs of the applicant’s grandfather received
most of the plots detailed in the above mentioned decisions of
16 May 1996.
- On
26 November 1997 the applicant’s father, acting on his own
behalf and on behalf of the applicant’s grandfather’s
heirs, challenged the plan, arguing that they could have been given
additional plots, including some of the plots in respect of which the
land commission had refused restitution, and that the land that had
been allocated to them was not of good quality. In two decisions of
19 January 1998 the land commission refused to amend the plan. On 29
July 1998 the applicant’s father sought judicial review.
- Despite the pending judicial review proceedings, on 27
March 2000 the land commission adopted two decisions whereby it
decided that the applicant’s father was to receive
municipally-owned land or bonds as compensation in lieu of
restitution for 11,888 square metres of land. In addition, the heirs
of the applicant’s grandfather were to receive compensation for
16,425 square metres of land.
- On
5 July 2002 the Pernik Regional Court gave a judgment in the judicial
review proceedings. It found that the decisions of 19 January 1998
were null and void because they had not been issued in accordance
with the relevant procedure, and it remitted the case to the land
commission for re examination.
- Upon
an appeal by the applicant, on 13 December 2002 the Supreme
Administrative Court quashed that judgment in so far as the case had
been remitted to the land commission, and instructed the Regional
Court to examine the merits of the applicant’s father’s
objections to the land redistribution plan.
- In a new judgment of 5 July 2004 the Pernik Regional
Court found that the land redistribution plan for Kasilag could be
amended so that the applicant’s father’s objections could
be satisfied. Accordingly, the court amended the plan and allotted to
the applicant’s father a plot of 14,888 square metres, and
to the heirs of the applicant’s grandfather another plot of
37,779 square metres.
- On 12 July 2004 that judgment was served on the
Radomir Agriculture and Forestry Department (formerly the Radomir
Agricultural Land Commission) and the Radomir municipality. It was
served on the applicant’s father on 21 July 2004. The parties
were informed that they could appeal against it within fourteen days
of the dates of the respective notifications. No appeals were filed
within the relevant time limits.
- As
the Pernik Regional Court had failed to award costs, on 29 July 2004
the applicant’s father requested that the judgment of 5 July
2004 be supplemented to take account of this, as provided for in
Article 192 of the 1952 Code of Civil Procedure (see paragraph 34
below).
- The
applicant’s father passed away on 7 August 2004. His heirs –
the applicant and the latter’s mother and sister –
continued the proceedings in his stead. Later, it transpired that the
applicant’s father had left a will bequeathing all his property
to the applicant.
- On 12 August 2004 the Pernik Regional Court examined
and allowed the applicant’s father’s request concerning
costs and awarded to his heirs 322 Bulgarian levs (BGN).
- On
19 August 2004 that decision was served on the Radomir Agriculture
and Forestry Department.
- On 20 August 2004 the Radomir Agriculture and Forestry
Department filed with the Supreme Administrative Court an appeal in
which it challenged both the Regional Court’s decision
concerning costs and the decision on the merits given on 5 July 2004.
- The
applicant and his mother and sister also appealed against the
decision of 12 August 2004, claiming a higher award for costs.
- The Supreme Administrative Court held a hearing on 14
February 2005. According to the record of the hearing, the
applicant’s representative said:
“It was not indicated in the [Agriculture and
Forestry Department’s] appeal that any other decision of the
Regional Court, apart from the one concerning costs, was being
challenged. The judgment has become final. I maintain my clients’
appeal in respect of the award for costs and therefore ask [the
Supreme Administrative Court] to allow it and award us the
remainder.”
- In a judgment of 2 March 2005 the Supreme
Administrative Court allowed the Agriculture and Forestry
Department’s appeal, without commenting on its admissibility or
the objection raised by the applicant’s representative, and
quashed the Pernik Regional Court’s judgment of 5 July 2004.
Deciding on the merits of the case, it found that there were no
grounds to amend the land redistribution plan and allocate new plots
to the applicant’s father and the heirs of the applicant’s
grandfather.
- It is unclear what the developments in the restitution
procedure were after the above mentioned judgment, and in
particular whether the applicant and the remaining heirs of his
grandfather received any compensation, as per the land commission’s
decisions of 27 March 2000 (see paragraph 12 above) or any subsequent
decisions.
II. RELEVANT DOMESTIC LAW
A. Restitution of agricultural land
- The Agricultural Land Act (Закон
за собствеността
и ползването
на земеделските
земи), adopted in 1991, provides,
inter alia, that persons, or their heirs, whose land has been
collectivised may request restoration of their ownership rights under
certain conditions. On the basis of certain statutory criteria, such
as whether or not the old borders of the plot of land once owned by
the claimant or his or her ancestors can be determined, restitution
may be “in actual boundaries” (“реални
граници”)
or through a land redistribution plan (“план
за земеразделяне”).
- The administrative bodies competent to decide on the
restitution of agricultural land were, in the beginning, the
respective land commissions, which were replaced in 2002 by
Agriculture and Forestry Departments, after 2008 renamed Agricultural
Departments. Their members are appointed by the Minister of
Agriculture.
- Where restitution is impossible the former owners of
agricultural land are to be compensated with municipal land or with
compensation bonds, which can be used in privatisation tenders or for
the purchase of State-owned land.
- After its adoption in 1991 the Agricultural Land Act
underwent numerous amendments, mostly of a technical nature, which
did not significantly alter the substantive rights accorded to former
owners of agricultural land.
- The remaining provisions of that Act concerning the
restitution of agricultural land have been summarised in the Court’s
judgments in Lyubomir Popov v. Bulgaria (no. 69855/01, §§
83 87 and 92, 7 January 2010) and Mutishev and Others v.
Bulgaria (no. 18967/03, §§ 61, 68 74, 82 and
89 90, 3 December 2009).
B. Relevant procedural provisions
- At
the relevant time most of the procedural rules applicable to judicial
review proceedings were contained in the Administrative Procedure Act
of 1979 and the Supreme Administrative Court Act of 1997. The Code of
Civil Procedure of 1952 was also applicable, on a subsidiary basis.
- Section 33 of the Supreme Administrative Court Act
provided that an appeal against the judgment of a lower court was to
be lodged within fourteen days of the notification of that judgment.
By section 37 of the Act, the Supreme Administrative Court was to
discontinue proceedings where that time-limit had not been complied
with. In addition, Article 40 of the Code of Civil Procedure
stipulated that the courts were to disregard any procedural steps
taken by the parties after the expiry of the applicable time-limits.
- Article 219 of the Code provided that judgments which
had not been appealed against within the relevant time-limits became
final. By Article 220 any final judgment was binding on the
parties, the court which had given it, and all other courts and
public bodies.
- Article 192 of the Code provided that after being
pronounced, a judgment could not be revoked or amended by the court
which had given it except where it contained an obvious error or the
court had failed to make an award in respect of costs. In the latter
case, the new decision concerning costs was independently subject to
appeal before a higher court.
- Article 189 § 2 of the Code of Civil Procedure
obliged the courts to give reasoned decisions.
- In respect of the grounds justifying the reopening of
judicial proceedings, section 41 of the Supreme Administrative Court
Act referred to Article 231 § 1 of the Code of Civil Procedure,
which, in subparagraph (d), stated that reopening was
permissible where
“there has been another conflicting decision
concerning the same parties, the same claim and the same cause of
action”.
The
Supreme Court of Cassation has held that this provision does not
concern conflicting findings reached following an appeal by a higher
court in the framework of the same proceedings and concerning the
same dispute (see, for example, Judgment of the Supreme Court of
Cassation no. 428 of 4 November 1998, case no. 29/1998).
- After 12 July 2006 the grounds
for reopening judicial proceedings were provided for in the new Code
of Administrative Procedure, which in Article 239 § 6
provides that an interested party may request the reopening of the
proceedings in the event that
“a judgment of the
European Court of Human Rights has found a violation of the
[Convention]”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Relying
on Articles 6 § 1 and 13 of the Convention, the applicant
complained that the Supreme Administrative Court had quashed the
Pernik Regional Court’s judgment of 5 July 2004 following an
appeal by the Radomir Agriculture and Forestry Department which had
been time-barred; it had failed to respond to the applicant’s
argument that the appeal was time barred and the said judgment
had already become final.
- The
Court finds that the complaint falls to be examined under Article 6
§ 1 of the Convention. The parties do not question its
applicability to the dispute at issue, which obviously concerned the
“civil rights” of the applicant. Article 6 § 1, in
so far as relevant, reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Arguments of the parties
- The Government argued that the complaint was
inadmissible for non-exhaustion of domestic remedies because the
applicant had failed to seek the reopening of the proceedings, as
provided for under Article 231 § 1 (d) of the 1952
Code of Civil Procedure (see paragraph 36 above).
- In addition, the Government considered that the
applicant’s allegations about a violation of Article 6 § 1
of the Convention were “absolutely ill founded and
unjustified” because the Radomir Agriculture and Forestry
Department had appealed in due time against the Pernik Regional
Court’s judgment of 5 July 2004 “as amended by the
additional decision of 12 August 2004”. Furthermore, the
Government were of the view that the applicant’s representative
had not raised before the Supreme Administrative Court, in a
sufficiently clear and explicit manner, an objection against the
timing of that appeal, and that the Supreme Administrative Court had
been under no obligation to verify the appeal’s admissibility
of its own motion.
- The
applicant disputed these arguments. As to the Government’s
objection concerning non-exhaustion of domestic remedies, he pointed
out that the reopening procedure was an extraordinary remedy and not
part of the regular judicial procedure. Furthermore, the provision of
Article 231 § 1 (d) of the 1952 Code of Civil
Procedure was not applicable to his case because it did not concern
cases where the “conflicting decisions” were those of the
first- and second-instance courts.
- As
to the merits, the applicant disputed the Government’s
assertion that the Radomir Agriculture and Forestry Department had
appealed against the judgment of 5 July 2004 “in due time”.
He also disputed the Government’s interpretation of his
representative’s statement at the court hearing held on 14
February 2005. He considered that his representative had
unequivocally raised an objection as to the admissibility of the
other party’s appeal. In any event, relying on Article 40 of
the Code of Civil Procedure (see paragraph 32 above), the applicant
considered that even in the absence of any objection on his part the
Supreme Administrative Court had been under an obligation to make
sure that the statutory time-limits had been complied with.
- In
conclusion, the applicant considered it to be established that the
Supreme Administrative Court had been under an obligation to reply to
his argument, which had been decisive for the outcome of the
proceedings. It had failed to do so.
B. The Court’s assessment
1. Admissibility
- The
Court takes note of the Government’s objection concerning
non exhaustion of domestic remedies, based on the applicant’s
failure to make use of the possibility to seek the reopening of the
proceedings under Article 231 § 1 (d) of the Code of Civil
Procedure, in force at the time (see paragraph 40 above). The Court
does not consider it necessary to determine whether such reopening
could in principle be regarded as an effective remedy, because it
agrees with the applicant that this remedy was not applicable to the
case. It notes that according to the Bulgarian Supreme Court of
Cassation a higher court’s decision to quash the decision of a
lower court, upon an appeal by one of the parties and in the
framework of the same proceedings, cannot be seen as a ground for
reopening (see paragraph 36 above). Accordingly, the Court dismisses
the Government’s objection.
- The
Court further observes that the Government’s second objection –
that the complaint was “ill founded and unjustified”
– is a matter which goes to the merits of the case and will be
addressed as a question of substance.
- 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.
2. Merits
- The Court reiterates that Article 6 § 1 of the
Convention obliges domestic courts to give reasons for their
decisions (see, among many other authorities, Ruiz Torija v.
Spain, 9 December 1994, § 29, Series A no. 303 A,
and Yanakiev v. Bulgaria, no. 40476/98, §§ 71 72,
10 August 2006). The extent to which this duty applies may vary
according to the nature of the decision. It is moreover necessary to
take into account, inter alia, the diversity of the
submissions that a litigant may bring before the courts and the
differences existing in the Contracting States with regard to
statutory provisions, customary rules, legal opinion and the
presentation and drafting of judgments. That is why the question
whether a court has failed to fulfil the obligation to state reasons,
deriving from Article 6 § 1, can only be determined in the light
of the circumstances of the case (see Gorou v. Greece (no. 2)
[GC], no. 12686/03, § 37, ECHR 2009 ...).
- In
the present case the applicant argued before the Supreme
Administrative Court that the Radomir Agriculture and Forestry
Department’s appeal against the judgment of the Pernik Regional
Court of 5 July 2004, which had allowed his father’s
claims to have the land redistribution plan for Kasilag modified, had
been time-barred. The Court agrees with the applicant that this
argument was clearly raised by his representative, who pointed out at
the hearing before the Supreme Administrative Court that the Regional
Court’s judgment had become final; his statement to that effect
was also noted in the record of the hearing (see paragraph 23 above).
- It
is not the Court’s task to decide whether the applicant’s
objection was well-founded, as it falls to the national courts to
determine questions of that nature (see Ruiz Torija, §
30, and Yanakiev, § 72, both cited above). Nevertheless,
the Court notes that the objection appears to be at least arguable,
because the main judgment of 5 July 2004 was served on the Radomir
Agriculture and Forestry Department on 12 July 2004 (see paragraph 16
above); therefore, the fourteen-day time limit for it to appeal
(see paragraph 32 above) expired on 26 July 2004. However, its appeal
was lodged on 20 August 2004, that is, after the expiry of the period
allowed for it to appeal against the main judgment but within the
time limit for appealing against the additional decision of 12
August 2004 concerning costs (see paragraph 21 above).
- Furthermore,
the Court finds that the applicant’s objection was clearly
relevant because had the Supreme Administrative Court found it to be
well founded it would have dismissed as inadmissible the
Agriculture and Forestry Department’s appeal in so far as it
concerned the main judgment.
- Therefore,
the Court finds that the Supreme Administrative Court was obliged to
give a reasoned answer to the objection at issue. This obligation,
contained implicitly in Article 6 § 1 of the Convention (see
paragraph 48 above), was also provided for in Article 189 § 2 of
the Code of Civil Procedure, in force at the time (see paragraph 35
above). Moreover, the provisions of domestic law, namely section 33
of the Supreme Administrative Court Act and Article 40 of the Code of
Civil Procedure, obliged the Supreme Administrative Court to verify
of its own motion that the Agriculture and Forestry Department’s
appeal had been lodged in due time, as they required appeal
proceedings to be discontinued in case of failure to abide by the
time limits (see paragraph 32 above).
- Nevertheless,
despite being under an obligation to examine the applicant’s
objection, the Supreme Administrative Court failed to do so and made
no mention of it in its judgment of 2 March 2005 (see paragraph 24
above).
- There has accordingly been a violation of Article 6 §
1 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Article 1 of Protocol No. 1 that he had
been deprived of the land allotted to his father and the heirs of his
grandfather by virtue of the judgment of 5 July 2004. In addition, he
complained that the restitution of his ancestors’ property had
been delayed for many years and ultimately refused, chiefly as a
result of the uncertainty engendered by frequent legislative changes.
- Article
1 of Protocol No. 1 provides:
“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. Admissibility
- The
Court considers that these complaints are not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention or
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
- The
Government contended that the Supreme Administrative Court had been
right in finding that there had been no grounds to amend the land
redistribution plan for Kasilag, as sought by the applicant’s
father. Therefore, the Pernik Regional Court’s judgment of 5
July 2004 had not given rise to any property rights for the
applicant.
- The
Government further defended the Bulgarian State’s efforts to
achieve a fair balance between the interests of different groups of
citizens in the process of transition to a democratic society, which
had resulted in numerous amendments to the restitution legislation
and had complicated the restitution process. Moreover, they pointed
out that the applicant alleged that his interests had been prejudiced
because the Supreme Administrative Court had decided arbitrarily in
his case, and not because of amendments to the restitution
legislation.
- The
applicant asserted that the judgment of 5 July 2004 had given rise to
property rights for his father and the heirs of his grandfather, and
thus for himself, and that this amounted to a “possession”
within the meaning of Article 1 of Protocol No. 1. He had been
deprived of this possession by virtue of the Supreme Administrative
Court’s final judgment, which had been erroneous and given in
breach of the law.
- In
respect of the second limb of his complaint, the applicant relied on
the Court’s judgment in the case of Viaşu v. Romania
(no. 75951/01, 9 December 2008). He considered that, as in that
case, the frequent and unjustified changes to the restitution
legislation had given rise to uncertainty, brought about the
protraction of the restitution proceedings, led to contradictory
decisions in his case, and thus ultimately resulted in his being
deprived of his property.
- The Court notes that it has already found that the
applicant did not receive a fair trial and that there was thus a
violation of Article 6 § 1 of the Convention (see paragraphs 48 54
above). The Court cannot speculate what the outcome of the
proceedings would have been had it been otherwise, that is, had the
Supreme Administrative Court examined the applicant’s objection
that the Radomir Agriculture and Forestry Department’s appeal
against the judgment of 5 July 2004 had been time barred. The
Court refers in this connection to paragraph 70 below. Consequently,
the Court does not consider it necessary to rule on whether the
judgment of 5 July 2004 gave rise to a “possession” for
the applicant, within the meaning of Article 1 of Protocol No. 1, and
whether the applicant was unlawfully deprived of that “possession”
(see, mutatis mutandis, Yanakiev, cited above, §
82, with further references).
- Nor
does the Court consider that, in the circumstances of the present
case, it has to deal with the question of uncertainty in the
restitution process as a result of frequent legislative changes. The
central issue in the case, which impacted on the applicant’s
prospects of obtaining the restitution of the property at hand, was,
as already noted, the Supreme Administrative Court’s failure to
address his argument about the timeliness of the appeal filed by the
Radomir Agricultural and Forestry Department, which the Court found
in breach of Article 6 § 1 of the Convention (see paragraphs 48 54
above). In those circumstances, it does not seem necessary here to
dwell on the alleged defects of the restitution process as a whole.
- In
those circumstances, the Court does not consider that the complaints
under Article 1 of Protocol No. 1 call for separate examination.
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. Pecuniary damage
- For
pecuniary damage, the applicant claimed 62,621.06 Bulgarian levs
(BGN), the equivalent of 31,980 euros (EUR), which included
compensation for the market value of the two plots of 14,888 and
37,779 square metres, as described in the Pernik Regional
Court’s judgment of 5 July 2004 (see paragraph 15 above), and
for the fact that it was impossible to use that land during the
period after 1992.
- The
Government disputed the existence of any causal link between the
damages claimed and the alleged violations of the Convention.
- The
Court notes that in the present case an award for pecuniary damage
can only be based on the fact that the applicant did not have the
benefit of the guarantees of Article 6 § 1 of the Convention.
Whilst the Court cannot speculate as to the outcome of the
proceedings had the situation been otherwise (see paragraph 62
above), it considers that the applicant suffered a loss of real
opportunities (see Yanakiev, cited above, § 88).
Accordingly, it awards him EUR 2,000 under this head.
- The
Court also considers it necessary to point out that a judgment in
which it finds a violation of the Convention imposes on the
respondent State a legal obligation not just to pay those concerned
the sums awarded by way of just satisfaction, but also to choose,
subject to supervision by the Committee of Ministers, the general
and/or, if appropriate, individual measures to be adopted in its
domestic legal order to put an end to the violation found by the
Court and make all feasible reparation for its consequences in such a
way as to restore as far as possible the situation existing before
the breach (see, among other authorities, Ilaşcu and Others
v. Moldova and Russia [GC], no. 48787/99, § 487, ECHR
2004 VII). In the case of a violation of Article 6 of the
Convention, the applicant should as far as possible be put in the
position he would have been in had the requirements of this provision
not been disregarded (see, among other authorities, Lungoci
v. Romania, no. 62710/00, § 55, 26 January 2006).
- The Court notes in this connection that Article 239 §
6 of the Code of Administrative Procedure allows for the reopening of
the domestic proceedings if the Court has found a violation of the
Convention or its Protocols (see paragraph 37 above). Thus, the Court
is of the view that the most appropriate form of redress in the case
would be to reopen the proceedings in due course and re examine
the case in keeping with all the requirements of a fair trial (see
Yanakiev, cited above, § 90).
B. Non pecuniary damage
- The
applicant claimed EUR 5,000 for non pecuniary damage, arguing
that he had experienced uncertainty and frustration for many years.
- The
Government considered the claim to be excessive.
- The
Court finds that the applicant must have suffered anguish and
frustration as a result of the violation of his right to a fair trial
found in this case. Judging on an equitable basis, it awards him EUR
2,000 under this head.
C. Costs and expenses
- Lastly,
the applicant claimed EUR 2,940 for forty two hours of work
performed by his lawyers, Mr Kashamov and Ms Mihaylova, in connection
with his representation before the Court, at a rate of EUR 70 per
hour. In support of this claim he presented a contract for legal
representation and a time-sheet. He also claimed BGN 322, the
equivalent of EUR 164, for the costs incurred before the domestic
courts, as indicated in the Pernik Regional Court’s decision of
12 August 2004 (see paragraph 19 above). He requested that any amount
awarded for costs and expenses be transferred directly into his
lawyers’ bank account.
- The
Government disputed these claims, arguing that they were excessive
and not supported by sufficient documents. Furthermore, they
considered that there was no legal ground to award the applicant any
costs for the domestic proceedings.
- 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.
- The
Court is of the view that the amount claimed for the work performed
by the applicant’s lawyers is excessive. Furthermore, it notes
that it has only found a violation of Article 6 § 1 of the
Convention. Therefore, the Court awards the applicant EUR 2,000 under
this head, to be transferred directly into the bank account of his
representatives, Mr Kashamov and Ms Mihaylova.
- As
to the costs for the domestic proceedings before the Pernik Regional
Court, it has not been established that they were actually incurred
and, moreover, the applicant has not shown that they were necessary,
that is, that they related to an attempt on his part to remedy the
violations of the Convention. Therefore, this claim must be
dismissed.
D. 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
6 § 1 of the Convention;
- Holds that the complaints under Article 1 of
Protocol No. 1 do not call for separate examination;
- 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
2,000 (two 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
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, to be transferred
directly into the bank account of the applicant’s legal
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;
- Dismisses the remainder of the applicant’s
claims for just satisfaction.
Done in English, and notified in writing on 21 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
