FOURTH SECTION
CASE OF
BASHIKAROVA AND OTHERS v. BULGARIA
(Application no.
53988/07)
JUDGMENT
STRASBOURG
5 February 2013
This judgment is final but it may be
subject to editorial revision.
In the case of Bashikarova and Others v. Bulgaria,
The European Court of Human
Rights (Fourth Section), sitting as a Committee composed of:
David Thór Björgvinsson, President,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 15 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 53988/07) 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 three
Bulgarian nationals, Ms Zinaida Georgieva Bashikarova, Mr Konstantin Ivanov
Dokov and Ms Dimitrina Stoyanova Dzhogleva-Dokova (“the applicants”), on 30
November 2007.
The applicants were
represented by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent,
Ms R. Nikolova, of the Ministry of Justice.
On 22 September 2010 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1936, 1964 and 1969
respectively and live in Sofia.
In 1969 the first applicant’s father bought from
the Sofia municipality a four-room flat of 132 square metres, which had become State property by virtue of the
nationalisations carried out by the communist regime in Bulgaria after 1946.
. In
1983 the first applicant’s parents conveyed to her the title to that property.
. On
an unspecified date in the beginning of 1993 Ms V., heir of the former
pre-nationalisation owner of the property, brought proceedings against the
first applicant under section 7 of the Restitution Law, seeking to establish
that the contract whereby the first applicant’s father had acquired the flat was
null and void. Ms V. also brought a rei vindicatio action against the
first applicant and her son, the second applicant. At the time, he was also
living in the flat, together with his wife - the third applicant - and her two
children.
. On
3 October 1995 the Sofia District Court discontinued the proceedings. On 7
February 1996 the Sofia City Court declared inadmissible an appeal against that
decision lodged by Ms V. On 9 April 1997 the Supreme Court of Cassation quashed
the Sofia City Court’s decision, finding that the lower court had breached the
procedural rules. Subsequently, the Sofia City Court remitted the case to the
Sofia District Court for examination on the merits.
. On
27 October 1999 the Sofia District Court gave a judgment. It found that the
contract whereby the first applicant’s father had acquired the disputed
property was null and void because the administrative authorities’ decision to
sell the flat had not been approved by the Minister of Architecture and Public
Works, as required by law at the time, but by another official. Accordingly,
the domestic court concluded that the first applicant had not herself acquired
ownership and was occupying the flat on an invalid legal ground; on this basis
it allowed Ms V.’s rei vindicatio claim and ordered the first and second
applicants to vacate the property.
. On
an unspecified date in the beginning of 2000 the applicants lodged an appeal. On
22 April 2005 the Sofia City Court upheld the above judgment.
. Although
the City Court’s judgment was not final, it was enforceable and Ms V.
instituted enforcement proceedings. In November 2005 the applicants vacated the
flat.
. In
the proceedings under section 7 of the Restitution Law and for rei vindicatio,
on 1 June 2007 the Supreme Court of Cassation gave a final judgment, upholding
the lower courts’ findings.
. In
April 2007 the second applicant and his family were granted the tenancy of a
municipally-owned apartment at a regulated price. The first applicant also
applied for municipal housing, which was refused. Therefore, she moved in with
her son’s family.
. Soon
after the Supreme Court of Cassation’ judgment of 1 June 2007 the first
applicant applied to receive compensation bonds. In February 2009 she received
bonds for 81,200 Bulgarian levs (BGN), the equivalent of approximately 42,000
euros (EUR), in accordance with a valuation of the property of August
2008 by a certified expert. In July 2009 the first
applicant received in cash from the Ministry of Finance the full value of the
bonds.
II. RELEVANT BACKGROUND FACTS, DOMESTIC LAW AND
PRACTICE
. The
relevant background facts and domestic law and practice concerning the effect
of restitution on third parties and the application of section 7 of the
Restitution Law 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
relevant domestic law and practice on remedies aimed at accelerating civil
proceedings have been summarised in the Court’s judgment in the case of Finger
v. Bulgaria, no. 37346/05, §§ 43
and 55, 10 May 2011.
THE LAW
I. PRELIMINARY POINT
The applicants urged the Court to exclude from
examination the Government’s observations on the admissibility and merits of
the application, considering that they had been received by the Court on 18 April
2011, whereas the relevant time-limit to submit observations had expired on 25
February 2011.
The Court notes that, indeed, at the time of
communication of the present application it indicated to the Government that
they had to submit their observations on the admissibility and merits of the
case by 25 February 2011. However, the Government’s observations in Bulgarian were
postmarked with exactly that date. In fact, it was the translation of these
observations into English which was received on 18 April 2011, as seen from the
Court’s receipt stamp.
Accordingly, the Court finds that the Government’s
observations were submitted in time and that there is no reason to exclude them
from the case-file.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL
NO. 1
Relying on Articles 6
§ 1, 8 and 13 of the Convention and Article 1 of Protocol No. 1, the first
applicant complained that she had been deprived of the property of her flat
arbitrarily, through no fault of her own and without adequate compensation.
. The
Court is of the view that this complaint, which is of the type examined in the
case of Velikovi and Others, cited above, and a series of follow-up cases
(see, for example, Simova and Georgiev v. Bulgaria, no. 55722/00,
12 February 2009; Panayotova v. Bulgaria, no. 27636/04, 2 July 2009; Madzharov v. Bulgaria, no. 40149/05, 2 September 2010; Dzhagarova
and Others v. Bulgaria (dec.), no. 5191/05, 3 March 2009), is most appropriately examined under Article 1 of
Protocol No. 1 alone, which reads 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.”
Admissibility
Applying the approach developed in Velikovi
and Others (cited above, §§ 159-192), the Court considers that the events
complained of constituted interference with the first applicant’s property
rights, because the courts found that she had not validly acquired property and
was living in the flat on no valid legal ground; accordingly, they ordered her
to vacate it (see paragraphs 9-12 above).
The interference was based on a provision of the
Restitution Law which pursued an important aim in the public interest - to
restore justice and respect for the rule of law. As in Velikovi and Others (cited above, § 167),
in the particular circumstances the question whether the relevant law was
sufficiently clear and foreseeable cannot be separated from the issue of
proportionality.
The Court notes further that the first applicant’s
title was challenged within the relevant one-year time-limit after the adoption
of the Restitution Law in 1992. The present case, therefore, did not involve a
deviation from the transitional nature of the restitution legislation.
The domestic courts found the contract whereby
the first applicant’s father had acquired the property of the flat in 1969 to
be null and void on the sole ground that a document related to the sale had not
been signed by the official with whom the relevant power had been vested (see paragraph
9 above). This deficiency is clearly attributable to the authorities, not the
first applicant or her father (see Velikovi and Others, §§ 218 and 223,
and Madzharov, § 23, both cited above; Peshevi
v. Bulgaria, no. 29722/04, § 20, 2 July 2009).
In cases like this the fair balance required by Article 1 of Protocol No. 1
could not be achieved without adequate compensation. In the assessment whether
adequate compensation was available to the first applicant, the Court must have
regard to the particular circumstances of each case (see Velikovi and Others, cited above, § 231,
and Georgievi v. Bulgaria, no. 10913/04, § 36, 7 January 2010).
In the present case, in February 2009 the first
applicant obtained compensation bonds for BGN 81,200,
in accordance with an assessment of her flat’s value carried out in August 2008
by a certified expert. Several months later she received from the Ministry of
Finance the bonds’ full value in cash. Therefore, having regard to
importance of the legitimate aims pursued by the Restitution Law and the
particular complexity involved in regulating the restitution of nationalised
property after decades of totalitarian rule, the interference with the first
applicant’s property rights does not appear disproportionate or otherwise
contrary to Article 1 of Protocol No. 1 to the Convention (see Velikovi and
Others, § 234, and Dzhagarova and
Others (dec.), both cited above;
Bornazovi v. Bulgaria (dec.), no. 59993/00, 18 September 2007; Ivanovi
v. Bulgaria (dec.), no. 14226/04, 16 September 2008; Yakimovi v.
Bulgaria (dec.), no. 26560/05, 3 February 2009).
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.
III. ALLEGED VIOLATIONS OF THE CONVENTION IN
RELATION WITH THE LENGTH OF THE CIVIL PROCEEDINGS
The first and second applicants, who were
parties to the civil proceedings described in paragraphs 7-12 above, complained
in addition of the length of those proceedings and the lack of effective remedies
in that regard, under Articles 6 § 1 and 13 of the Convention, which read as
follows:
Article 6 § 1
“In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by a ...
tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. Admissibility
The Government submitted that the first and
second applicants had failed to exhaust domestic remedies in relation to their
complaint under Article 6 § 1 of the Convention, because they had not availed themselves
of the procedure for “complaints about delays” provided for in Article 217a of
the 1952 Code of Civil Procedure, in force at the time.
The applicants contended that the procedure
would not have represented an effective remedy in their case, because it had
been introduced in July 1999, only several months before the first-instance
judgment in their case (see paragraph 9 above). In addition, the remedy was not
applicable before the Supreme Court of Cassation.
. The
Court considers that the question of exhaustion of domestic remedies is closely
linked with the substance of the first and second applicants’
complaint under Article 13 of the Convention. It should therefore be joined to
the merits (see Finger, cited above, § 64).
The Court notes in addition that the present
complaints are not manifestly ill-founded within the meaning of Article 35 § 3(a)
of the Convention, nor inadmissible on any other ground. They must therefore be
declared admissible.
B. Merits
1. Complaint under Article 13
The parties did not make submissions on the
merits of this complaint.
Article 13 of the Convention guarantees an
effective remedy before a national authority for an alleged breach of the
requirement under Article 6 § 1 to hear a case within a reasonable time.
Remedies available to a litigant at domestic level are “effective”,
within the meaning of Article 13,
if they prevent the alleged violation or its
continuation, or provide adequate redress for any violation that has already
occurred (see Kudła v. Poland [GC], no. 30210/96, § 156-7,
ECHR 2000-XI).
. The
Court considers, without anticipating the examination of whether the reasonable-time
requirement in Article 6 § 1 of the Convention was complied with, that the
first and second applicants’ complaint concerning the length of the proceedings
was prima facie “arguable”. They were therefore entitled to an effective
domestic remedy in that regard.
. At
the relevant time, the only acceleratory remedy under Bulgarian law was the “complaint about delays” under Article 217a
of the 1952 Code of Civil Procedure. However, as
it was introduced in July 1999, in the present case it could not have brought
about the speeding up of the proceedings before the Sofia District Court, which
ended in October 1999. Moreover, the remedy appears to
have been inapplicable in the proceedings before the Supreme Court of Cassation (see Pavlova v. Bulgaria, no. 39855/03, § 31, 14 January 2010; Maria Ivanova v. Bulgaria,
no. 10905/04, § 35; Finger, cited above, § 87).
. The
proceedings in the present case were pending before the second-instance Sofia City Court from 2000 to 2005 (see paragraph 10
above). The Court recalls that it has held that in a number of occasions, for
instance where the delays were due to the courts’ failure to organise the
proper examination of the case or where the proceedings
had lasted too long without there being identifiable periods of inactivity,
even though in principle applicable, the remedy under Article 217a of the Code
of Civil Procedure could not provide effective redress (see Finger, cited above, § 87). The Court has
not been informed in the present case of the course of the proceedings before
the Sofia City Court and the reasons for the delays incurred and cannot reach a
conclusion as to whether the remedy at issue could have effectively accelerated
the proceedings.
. Nevertheless,
it notes that by 2000 when the case reached the Sofia City Court the delays
accumulated were already substantial, given that the proceedings had been
brought in the beginning of 1993 (see paragraph 7 above). Moreover, once the
case reached the Supreme Court of Cassation, a further delay of two years was accrued
(see paragraphs 10 and 12 above). The Court thus considers that even though it might
have, in principle, reduced to some extent the period of examination of the present
case by the Sofia City Court, the remedy at issue would not have had an
important effect on the duration of the proceedings as a whole.
At the relevant time Bulgarian law did not
provide for any other remedies in respect of the length of proceedings, whether
acceleratory or compensatory (see Finger, cited above, § 89).
. The
Court therefore finds that there has been a violation of Article 13 of the
Convention.
. Accordingly,
it dismisses the Government’s objection that the first and second applicants
failed to exhaust domestic remedies, which it joined to the merits under
Article 13 (see paragraph 31 above).
2. Complaint under Article 6 § 1
The Government considered that the first and
second applicants were themselves to blame for some of the delays in the
proceedings, because, in the first place, they had on several occasions between
1994 and 1997 requested the adjournment of the court hearings and, in the
second place, had raised unsubstantiated arguments which the courts had had to
deal with. In any event, the Government were of the view that the proceedings
had not been too lengthy, given their complexity, and that what was at stake
for the first and second applicants had not been of particular importance.
The applicants contested these arguments.
The Court notes that the period to be taken into
consideration began on an unspecified date in the beginning of 1993 and ended
on 1 June 2007 (see paragraphs 7 and 12 above).
It thus lasted for more than fourteen years for three levels of jurisdiction.
The Court reiterates that the reasonableness of
the length of proceedings must be assessed in the light of the circumstances of
the case and with reference to the following criteria: the complexity of the
case, the conduct of the applicants and the relevant authorities and what was
at stake for the applicants in the dispute (see, among many other authorities, Frydlender
v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
The Court has frequently found violations of
Article 6 § 1 of the Convention in cases raising issues similar to the one in
the present case (see Frydlender, cited above), including against
Bulgaria (see, among many others, Finger, cited above; Marinova and
Radeva v. Bulgaria, no. 20568/02,
2 July 2009; Dzhagarova and Others v. Bulgaria, no. 5191/05, 2 September 2010). Having examined all
the material submitted to it, the Court considers that the Government have not
put forward sufficient arguments capable of persuading it to reach a different
conclusion in the present case. It notes, in particular, that even though, as
indicated by the Government, some hearings between 1994 and 1997 were
adjourned, arguably because of the applicants, during that period the case was
being transferred between different levels of jurisdiction which were deciding
on its admissibility (see paragraph 8 above) and the adjournment of specific
hearings could not have caused any important delay. Nor can the Court accept
the Government’s argument that the applicants caused undue delays by raising allegedly
unsubstantiated arguments; it does not appear that the applicants did anything
but attempt to actively defend against the plaintiff’s claims against them.
Lastly, the Court notes that the case does not
appear to have been of particular complexity (see, for similar claims against
the applicants, Dzhagarova and Others, cited above, § 16).
Having regard to its case-law on the subject,
the Court considers that in the instant case the length of the proceedings was
excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6
§ 1 of the Convention in respect of the first and second applicants.
IV. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the second and third applicants
complained under Articles 8 (right to home) and 13 of the Convention that they
had been evicted from the first applicant’s flat after the Sofia City Court’s
judgment of 22 April 2005 and had not immediately been provided with municipal
housing (see paragraphs 11 and 13 above). In addition, the second applicant
complained under Article 6 § 1 that the civil proceedings against him and his
mother had been unfair.
However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3(a) and 4 of
the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
The applicants claimed, in respect of
non-pecuniary damage arising from the length of proceedings, EUR 10,000 for the
first applicant and EUR 5,000 jointly for the second and third applicants.
The Government contested the claims.
The Court notes that it found violations of
Articles 6 § 1 and 13 of the Convention only in respect of the first and second
applicants. It considers that they must have sustained non-pecuniary damage
and, ruling on an equitable basis, awards the first applicant EUR 4,800 under
that head. As to the second applicant, the Court, considering that he claims
for himself EUR 2,500, awards him that sum in full.
B. Costs and expenses
In respect of cost and expenses, the applicants
claimed EUR 1,530 for their lawyers’ work for the proceedings before the Court
and BGN 229.50 for postage and translation.
The Government contested these claims.
Regard being had to the documents in its
possession, its case-law and the fact that it only found violations of the
Convention in respect of the length of the proceedings, the Court considers it
reasonable to award the sum of EUR 600 covering costs under all heads.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Joins the Government’s objection of non-exhaustion of
domestic remedies to the merits;
2. Declares the first and second applicants’ complaints
under Articles 6 § 1 and 13 of the Convention concerning the excessive length
of the proceedings admissible and the remainder of the application
inadmissible;
3. Dismisses the Government’s objection of
non-exhaustion of domestic remedies and holds
that there has been a violation of Article 13 of the Convention;
4. Holds that there has been a violation of
Article 6 § 1 of the Convention;
5. Holds
(a) that the respondent State is to pay, within
three months, the following amounts, to be converted into Bulgarian levs at the
rate applicable at the date of settlement:
(i) EUR 4,800 (four thousand eight hundred euros)
to the first applicant, Ms Zinaida Georgieva Bashikarova, and EUR 2,500 (two thousand
five hundred euros) to the second applicant, Mr Konstantin Ivanov Dokov, in
respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 600 (six hundred euros) to the first and
second applicants in respect of costs and expenses, plus any tax that may be
chargeable to those two applicants;
(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;
6. Dismisses the remainder of the claims for
just satisfaction.
Done in English, and notified in writing on 5 February 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı David Thór
Björgvinsson President
