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FOURTH
SECTION
CASE OF
MUTISHEV AND OTHERS v. BULGARIA
(Application
no. 18967/03)
JUDGMENT
(Just
satisfaction)
STRASBOURG
28
February 2012
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 Mutishev and Others v. Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki, President,
David
Thór Björgvinsson,
Päivi
Hirvelä,
George
Nicolaou,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 7 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 18967/03) 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 eight Bulgarian nationals, Mr Said Ibrahimov
Mutishev, Mr Edip Ibrahimov Mutishev, Ms Yordanka Stoycheva
Mutisheva, Ms Ivayla Kemalova Mutisheva, Ms Kornelia Aleksandrova
Lisiyska, Ms Katia Aleksandrova Angelova, Ms Kristina Nikolova
Yovcheva and Mr Iliya Nikolov Iliev (“the applicants”),
on 26 May 2003.
- The
applicants were represented by Mr M. Ekimdzhiev, a lawyer practising
in Plovdiv. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Dimova, of
the Ministry of Justice.
- In
a judgment delivered on 3 December 2009 (“the principal
judgment”), the Court held that there had been a violation of
Article 1 of Protocol No. 1 and that it was not necessary to examine
separately the complaints under Articles 6 § 1 and 13 of the
Convention. In particular, it found that the authorities’
refusal to complete the restitution of 846,500 square metres of
agricultural land near the village of Balgarchevo had breached the
principle of the rule of law, and that the delay in completing the
restitution of another group of plots totalling 200,000 square
metres, some situated near Balgarchevo and some within the urban
territory of the town of Blagoevgrad, had upset the fair balance
between the general interest and the applicants’ rights and had
placed a disproportionate burden on the applicants (see Mutishev
and Others v. Bulgaria, no. 18967/03, 3 December 2009).
- Since
the question of the application of Article 41 of the Convention was
not ready for decision as regards pecuniary and non pecuniary
damage, the Court reserved it and invited the Government and the
applicants to submit, within six months, their written observations
on that issue and, in particular, to notify the Court of any
agreement they might reach (ibid., § 159, and point 4 of
the operative provisions).
- On
3 September 2010 the applicants filed their updated claims in respect
of pecuniary and non pecuniary damage. On 27 October 2010 the
Government submitted their comments.
- Following
the re composition of the Court’s sections on 1 February
2011, the application was transferred to the Fourth Section.
- On
2 September 2011, at the Court’s request, the applicants
provided information about new developments in the case.
THE LAW
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. The new developments
- In
their submissions made after the principal judgment, the Government
informed the Court that on 26 May 2009 the Ministry of Agriculture
and Food had paid Mr Edip Ibrahimov Mutishev the amounts awarded to
him by virtue of the Supreme Court of Cassation’s final
judgment of 14 February 2008 (see paragraph 55 of the principal
judgment). The amounts in question were 15,635 Bulgarian levs (BGN),
the equivalent of 7,977 euros (EUR), for pecuniary damage and BGN
500, the equivalent of EUR 255, for non-pecuniary damage on account
of the delay in the restitution proceedings, plus the interest
accrued.
- On
an unspecified date the head of the Blagoevgrad Agriculture
Department (the former land commission, later the Agriculture and
Forestry Department) asked the Blagoevgrad District Court to
interpret its judgment of 12 May 2008 (see paragraph 35 of the
principal judgment) and give instructions in relation to the
enforcement of the Blagoevgrad Regional Court’s judgment of 22
March 2002 allowing the applicants’ restitution claims. On 18
December 2009 the Blagoevgrad District Court turned down the request,
finding that its judgment of 12 May 2008 was clear and that the head
of the Agriculture Department was, in fact, seeking to obtain a
re examination of the matter.
- On
23 March 2010 the Agriculture Department, citing the Blagoevgrad
District Court’s judgment of 12 May 2008 and its decision of
18 December 2009 (see paragraph 10 above), adopted a new
decision in respect of the applicants’ land. It “restored
the property rights” of the applicants to twenty four
plots of land near Balgarchevo, totalling 846,500 square metres,
in their “existing boundaries”.
- On
12 August 2010 Mr Edip Ibrahimov Mutishev sent a letter to the
Agriculture Department, requesting that that decision be put into
effect. On 27 August 2010 the Department informed him of the
formalities necessary to complete the procedure: the applicants
needed to fill in a special form and pay the relevant fees, after
which the exact borders of their plots would be drawn up on the spot,
in their presence, and entered into a “plan of the restituted
properties” of the area.
- In
reply to an enquiry by the Court, on 2 September 2011 the applicants
said that no further progress had been made, in spite of a number of
visits that they had made to the Agriculture Department, during which
they had even expressed their agreement to receive other equivalent
lands in lieu of those due to them.
- As
regards the plot of 2,000 square metres situated within the urban
territory of the town of Blagoevgrad, the judicial review proceedings
against the refusal of the mayor of Blagoevgrad to issue a plan of
the plot (see paragraphs 30 33 of the principal judgment)
resulted in a judgment of the Blagoevgrad Administrative Court of 8
July 2008. In that judgment, which became final on 24 July 2008, that
court declared the refusal null and void and referred the case back
to the mayor with instructions to issue a decision setting out the
built up and unbuilt parts of the plot.
- On
11 August 2008 Mr Edip Ibrahimov Mutishev requested the mayor of
Blagoevgrad to issue such a decision. Apparently as a result of that
request, on 19 September 2008 a municipal commission appointed by the
mayor examined the case and refused to adopt an auxiliary cadastral
plan featuring the plot.
- On
21 October 2009 Mr Edip Ibrahimov Mutishev sought judicial review of
the mayor’s tacit refusal to comply with the Blagoevgrad
Administrative Court’s judgment of 8 July 2008. On 24 June 2009
the Blagoevgrad Administrative Court, finding that the mayor had
failed to comply with its earlier judgment, declared his tacit
refusal null and void and referred the case back to him with
instructions to complete the procedure and issue the decision
detailed in the court’s earlier judgment. The mayor appealed on
points of law. On 22 March 2010 the Supreme Administrative Court
upheld the lower court’s judgment, fully agreeing with its
reasoning.
- On
19 July 2010 Mr Edip Ibrahimov Mutishev urged the mayor of
Blagoevgrad to comply with the Blagoevgrad Administrative Court’s
judgments. Until 2 September 2011 he had not received a reply.
B. Pecuniary damage
1. The applicants’ claims
- The
applicants invited the Court to adopt the same approach as in
Brumărescu v. Romania ((just satisfaction) [GC], no.
28342/95, ECHR 2001 I), and Kehaya and Others v. Bulgaria
((just satisfaction) nos. 47797/99 and 68698/01, 14 June
2007), and award them the full market value of the plots due to them.
They submitted claims concerning the market value of: (a) the plots
in the area of Balgarchevo, totalling 846,500 square metres and
dealt with in paragraphs 130 38 of the principal judgment and
paragraphs 10 13 above, and (b) the plot of 2,000 square metres
in Blagoevgrad mentioned in paragraph 140 of the principal judgment
and paragraphs 14 17 above. They did not claim compensation in
respect of the remaining plots, dealt with in paragraphs 139 45
of the principal judgment, in respect of which they considered
themselves satisfied.
- In
support of their claims the applicants presented two valuation
reports drawn up in August 2010 by experts appointed by them. The
experts were of the view that the market value of the 846,500 square
metres of land near Balgarchevo was BGN 5,717,700, the equivalent of
EUR 2,932,154. The experts pointed out that the land was located
close to Blagoevgrad, in an area with significant economic potential
owing to its proximity to the town, to a road leading to the
Bulgarian-Macedonian border, and to the planned route of a highway
due to be constructed in the near future. The experts assessed the
value of the land on the basis of three separate methods: (a) a
comparative method based on information about similar plots in the
area offered recently for sale, (b) a method based on potential
income from agriculture, and (c), in respect of the plots situated
close to residential areas, a method based on the potential income
from residential development. Then, on the basis of those
estimations, the experts arrived at the above mentioned figure.
- The
experts used a similar approach to assess the market value of the
plot of 2,000 square metres within the urban territory of
Blagoevgrad. They pointed out that it benefitted from good
infrastructure and was situated in an area for which the town’s
urban development plan envisaged residential development. On the
basis of information about similar properties in Blagoevgrad recently
offered for sale and an estimation of the potential income for the
owners, were the plot to be used for residential development, the
experts assessed its market value at BGN 407,745, the equivalent of
EUR 209,100.
- Thus,
the applicants’ claims in respect of pecuniary damage, based on
the above-mentioned reports, amounted in total to BGN 6,125,445, the
equivalent of EUR 3,141,254. The applicants claimed this amount
jointly.
2. The Government’s comments
- The
Government disputed the applicants’ claims. They pointed out
that the restitution of the applicants’ land near Balgarchevo
was under way and that the applicants were entitled to compensation
for the plot in Blagoevgrad, in the form of municipally or
State-owned land or compensation vouchers. In any event, the
Government considered that the expert reports presented by the
applicants in relation to the market values of their plots were
“speculative, completely arbitrary, unrealistic and
ill founded”.
3. The Court’s assessment
- A
judgment in which the Court finds a breach of the Convention imposes
on the respondent State a legal obligation to put an end to that
breach and make reparation for its consequences in such a way as to
restore as far as possible the situation existing before the breach.
The Contracting States are in principle free to choose the means
whereby they will comply with a judgment in which the Court has found
a breach. If the nature of the breach allows of restitutio in
integrum, it is for the respondent State to effect it. If, on the
other hand, national law does not allow – or allows only
partial – reparation to be made for the consequences of the
breach, Article 41 empowers the Court to afford the injured
party such satisfaction as appears to it to be appropriate (see
Papamichalopoulos and Others v. Greece (Article 50), 31
October 1995, § 34, Series A no. 330 B, and Brumărescu,
cited above, §§ 19 20).
- In
the present case, the applicants sought pecuniary damage in respect
of the 846,500 square metres of land near Balgarchevo and the plot of
2,000 square metres in Blagoevgrad (see paragraph 18 above).
- Regarding
the 846,500 square metres of land near Balgarchevo, in the principal
judgment the Court found that the Blagoevgrad Agriculture Department
was unlawfully refusing to comply with the Blagoevgrad Regional
Court’s judgment of 22 March 2002, which had allowed the
applicants’ restitution claims. In particular, in paragraphs
137 38 of the principal judgment the Court held (translation
from French, internal references omitted):
“The Court is aware that the process of
restitution of agricultural land collectivised in the past is of
particular complexity and that there might exist legitimate grounds
to refuse the restitution of certain plots of land in their existing
boundaries, in particular where they have already been allotted, by
means of a land redistribution plan, to other persons entitled to
restitution. However, it notes that the Government did not
specifically refer to the existence of any such grounds in respect of
the land previously owned by [the applicants’ ancestor].
Accordingly, the Court considers that, regard being had
to the principle of the rule of law, the interference with the
applicants’ right to respect for their possessions, in so far
as it concerned the [846,500 square metres] of agricultural land, was
unlawful...”
- As
regards the plot of 2,000 square metres in Blagoevgrad, in paragraph
144 of the principal judgment the Court held (citations omitted):
“The Court understands that the present process of
restitution of agricultural land collectivised in the past was
clearly more complex than procedures relating to the payment of
debts. It is therefore normal to afford the authorities a reasonable
time to take the necessary steps to put into effect the judgment of
22 March 2002. However, the Court is not convinced that the
complexity of the process in issue was the only reason for the
substantial delays incurred – more than five years. In fact,
those delays resulted mostly from the competent authorities’
inertia and their inability to apply domestic law in the applicants’
case ... To that should be added the lack under Bulgarian law of a
remedy allowing the applicants to approach the administrative
authorities directly to have the judgment of 22 March 2002 enforced.”
- The
Court notes that following the principal judgment the Blagoevgrad
Agriculture Department took steps to comply with the Blagoevgrad
Regional Court’s judgment of 22 March 2002, in so far as it
concerned 846,500 square metres of land near Balgarchevo. On 23 March
2010 it adopted a decision for the return of the land (see paragraph
11 above) and on 27 August 2010 instructed the applicants as to the
formalities to be complied with to complete the restitution process
(see paragraph 12 above). Although it appears that there have been no
further developments, the Court sees no reason to expect that the
applicants will be unable or unwilling to comply with certain
reasonable formalities. Thus, it sees no reason to doubt the
impending completion of the restitution. In that connection, it
should be noted that the applicants are apparently willing to accept
equivalent lands in lieu of those due to them (see paragraph 13
above).
- As
regards the plot of 2,000 square metres in Blagoevgrad, the Court
observes that in the principal judgment it noted that the restitution
process was ongoing and that the applicants were in the process of
obtaining a plan of their plot. However, it appears that the mayor of
Blagoevgrad is refusing to complete the procedure and issue such a
plan, in spite of two consecutive judicial orders to do so (see
paragraphs 14 17 above). As a result, the applicants have still
not received the property.
- In
view of its findings quoted in paragraphs 25 26 above, the Court
considers that in the instant case the most appropriate reparation
would be full compliance with the Blagoevgrad Regional Court’s
judgment of 22 March 2002, that is, actual delivery of the land
in issue to the applicants, which would put them as far as possible
in a situation equivalent to the one in which they would have been
had there not been a breach of Article 1 of Protocol No. 1.
- The
Court is of the view that, provided the applicants cooperate with the
authorities, it is not unreasonable to expect that the restitution
process may be completed within three months from the date on which
this judgment becomes final in accordance with Article 44 § 2 of
the Convention.
- Failing
the actual transfer of the land to the applicants within that time,
the respondent State is to pay, jointly to all applicants, within six
months from the date on which this judgment becomes final, an amount
of money representing its current value (see Brumărescu,
§ 23, and Kehaya and Others, § 22, both cited
above). As to the determination of that amount, the Court takes into
account the valuation reports presented by the applicants and the
objections raised by the Government (see paragraphs 19 20
and 22 above). Having regard to the information at its disposal about
the price of land in those areas, it finds that the values suggested
by the applicants appear to be exaggerated. The Court assesses the
value of the plots of land near Balgarchevo at EUR 433,000 and the
value of the plot in Blagoevgrad at EUR 120,000.
C. Non pecuniary damage
- In
respect of non pecuniary damage, the applicants claimed
EUR 15,000 each, or EUR 120,000 in total, arguing that for many
years they had been placed in a situation of uncertainty.
- The
Government disputed the claims and urged the Court to award the
“usual” compensation. Furthermore, they pointed out that,
save for Mr Edip Ibrahimov Mutishev, the applicants had not
availed themselves of the possibility to seek damages by way of
claims under the State and Municipalities Responsibility for Damage
Act 1988 (see paragraph 93 of the principal judgment).
- Concerning
the Government’s assertion that the applicants could have
brought claims under section 1 of the 1988 Act, the Court observes
that Mr Edip Mutishev did bring such a claim. However, while the
Supreme Court of Cassation awarded him damages in respect of other
failings of the agricultural lands commission, it dismissed his claim
relating to the failure of that commission to put into effect the
Blagoevgrad Regional Court’s final judgment of 22 March 2002
(see paragraphs 50 55 of the principal judgment) – which
was the subject matter of the applicants’ complaint under
Article 1 of Protocol No. 1. That was one of the reasons for the
Court’s decision to reject the Government’s objection of
non exhaustion of domestic remedies (see paragraph 106 of the
principal judgment). The Court sees no reason to revisit its ruling
on that point.
- The
Court is of the view that the breach of Article 1 of Protocol No. 1
must have caused the applicants non pecuniary damage arising out
of the feeling of helplessness and frustration in the face of the
prolonged failure of the authorities to put into effect the final
judgment in their favour. In view of the impossibility to assess the
precise extent of damage sustained by each applicant, the Court,
ruling in equity, awards each of them EUR 1,000, plus any tax that
may be chargeable.
D. Other measures
- In
addition, the Court considers it necessary to point out that, in the
context of the execution of judgments in accordance with Article 46
of the Convention, a judgment in which it finds a violation of the
Convention or its Protocols 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.
Furthermore, it follows from the Convention, and from Article 1 in
particular, that in ratifying the Convention the Contracting States
undertake to ensure that their domestic legislation is compatible
with it (see Maestri v. Italy [GC], no. 39748/98, § 47,
ECHR 2004 I, and Viaşu v. Romania, no.
75951/01, § 80, 9 December 2008).
- As already noted (see paragraphs 25 26 above), in
the principal judgment the Court found fault with the authorities’
failure to comply with the Blagoevgrad Regional Court’s final
judgment of 22 March 2002 allowing the applicants’ restitution
claims and the unavailability under domestic law of a remedy enabling
the applicants to compel the authorities to comply with that
judgment. The Court has received a number of other applications
against Bulgaria that raise similar issues (see, for example, Ivanov
v. Bulgaria, no. 19988/06, and Syarov v. Bulgaria, no.
44244/06, applications notice of which has been given to the
Government), which tend to indicate that there is a systemic problem
in that regard.
- In
view of that, and in order to assist the respondent Government in the
fulfilment of their obligations under Article 46 § 1 of the
Convention, the Court expresses the view that the general measures in
the execution of its judgment in this case should include the
introduction into domestic law of (a) clear time limits
concerning the enforcement of final judgments and decisions relating
to the restitution of agricultural land, and (b) a remedy affording
the persons concerned an effective means of obtaining compensation in
case those time limits have not been observed.
E. Costs and expenses
- The
applicants claimed EUR 1,247.70 for the costs and expenses for the
proceedings under Article 41 of the Convention, of which EUR 583.40
was for the fees charged by their lawyer, Mr Ekimdzhiev, EUR 32 for
translation, EUR 17.30 for postage, telephone conversations and
copying, and EUR 615 for the cost of the valuation reports they
submitted in support of their claims for pecuniary damage (see
paragraphs 14 15 above). The applicants requested that, of the
total amount awarded by the Court, the costs for the valuation
reports be paid to them and the remainder be paid directly to their
lawyer.
- In
support of the claims the applicants presented a time sheet for the
work performed by their lawyer and receipts for the amounts paid for
translation and the valuation reports.
- The
Government contested the claims.
- The
Court considers that the costs for the valuation reports and their
translation were actually and necessary incurred and are reasonable
as to quantum, and awards them in full. The Court considers it
reasonable to award EUR 500 for the work performed by the applicants’
lawyer, Mr Ekimdzhiev, which includes the expenses he must have
incurred for copying, postage and telephone conversations.
- Thus,
the total amount awarded by the Court is EUR 1,147, EUR 615 of
which, paid by the applicants for the two valuation reports, is to be
paid directly to them, and the remainder, EUR 532, is to be paid into
Mr Ekimdzhiev’s bank account.
F. 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
- Holds that, within three months from the date on
which the judgment becomes final in accordance with Article 44 §
2 of the Convention, the respondent State is to complete the
restitution process and return to the applicants their land, namely
the twenty four plots of land totalling 846,500 square metres
near Balgarchevo and the plot of 2,000 square metres in Blagoevgrad;
- Holds that, failing completion of the
restitution process and return of the applicants’ lands within
that time, the respondent State is to pay jointly to the applicants,
within six months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 433,000
(four hundred and thirty three thousand euros) in respect of the
twenty four plots near Balgarchevo, and EUR 120,000 (one
hundred and twenty thousand euros) in respect of the plot in
Blagoevgrad, to be converted into Bulgarian levs at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
- Holds that the respondent State is to pay to
each of the applicants, within three months from the date on which
the judgment becomes final in accordance with Article 44 § 2 of
the Convention, EUR 1,000 (one thousand euros) in respect of
non pecuniary damage, to be converted into Bulgarian levs at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
- Holds that the respondent State is to pay
jointly to the applicants, within three months from the date on which
the judgment becomes final in accordance with Article 44 § 2 of
the Convention, EUR 1,147 (one thousand one hundred and forty seven
euros), plus any tax that may be chargeable to the applicants, in
respect of costs and expenses, of which EUR 532 (five hundred and
thirty two euros) is to be paid into the bank account of the
applicants’ legal representative, and the remainder to the
applicants themselves;
- Holds that from the expiry of the periods under
points 2 4 above until settlement simple interest shall be
payable on the amounts indicated 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 28 February 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
