HADZHIGEORGIEVI v. BULGARIA - 41064/05 - Chamber Judgment [2013] ECHR 694 (16 July 2013)

In the case of Hadzhigeorgievi v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Ineta Ziemele, President,
          David Thór Björgvinsson,
          Päivi Hirvelä,
          George Nicolaou,
          Zdravka Kalaydjieva,
          Vincent A. De Gaetano,
          Krzysztof Wojtyczek, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 25 June 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 41064/05) 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 three Bulgarian nationals, Mr Yanko Krumov Hadzhigeorgiev, Mr Dimitar Krumov Hadzhigeorgiev and Mr Ivan Yankov Hadzhigeorgiev (“the applicants”), on 27 October 2005.

The applicants were represented by Mr I. Gruykin, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Ms V. Hristova and Ms N. Nikolova (later on by Ms M. Kotseva), of the Ministry of Justice.

The applicants alleged that the authorities had unlawfully refused to comply with a final court judgment restoring to them a formerly expropriated plot of forestry land.

On 31 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1951, 1959 and 1924 respectively. The first applicant lives in Sofia and the second applicant lives in Yakoruda.

The third applicant, Mr Ivan Yankov Hadzhigeorgiev, who also lived in Yakoruda, passed away on 14 July 2008.

The applicants are three of the heirs of Yakim and Nazari Hadzhigeorgievi. They submit that they are entitled to 75% of the inheritance. The first and second applicants are the sons of the third applicant’s late brother.

In 1997 the Forests Restitution Act was adopted by the Bulgarian Parliament (see paragraph 28 below).

On 30 June 1999 one of the heirs of Yakim and Nazari Hadzhigeorgievi applied for the restitution of 814,000 square metres of forestry land in the area of Yakoruda. By a decision of 9 June 2000 the competent body, the Yakoruda land commission, refused restitution, as it was not satisfied that the applicants’ ancestors had owned the land at issue.

One of the heirs applied for judicial review of the above decision.

By a judgment of 14 July 2000, the Razlog District Court set aside the land commission’s decision and restored to the heirs of Yakim and Nazari Hadzhigeorgievi the property rights over the plot of forestry land. It found, on the basis of documents such as an 1898 tuğra (a title deed) issued by the authorities of the Ottoman Empire to which the territory belonged at the time, and a 1910 document of the Bulgarian authorities certifying that the land had been recognised as being the ancestors’ property, that Yakim and Nazari Hadzhigeorgievi had owned the land at issue. The judgment specified the exact borders of the plot to be restituted.

The judgment above was not appealed against and became final on 4 August 2000.

In implementation of that judgment, by a decision of 15 August 2000 the land commission recognised and restored in actual boundaries the property rights of the heirs of Yakim and Nazari Hadzhigeorgievi. A plan of the plot was issued on 16 September 2002.

Further to the provisions of the Forests Restitution Act (see paragraph 31 below), the transfer of possession of the restored property was to be effected by the land commission, replaced in 2002 by an Agriculture and Forestry Department, in the presence of a representative of the local forest authority.

In September 2000 the second applicant wrote to the land commission on behalf of all heirs requesting that they enter into possession of their plot of forestry land.

In 2001 the Minister of Agriculture and Forests lodged a request for reopening of the judicial proceedings described in paragraphs 10-12 above on account of new evidence and because the local forest authority had not taken part in the proceedings before the Razlog District Court.

By a decision of 19 May 2002, a three-member panel of the Supreme Administrative Court dismissed the request as inadmissible. The court held that the Minister was not entitled to request reopening, that the request had been submitted out of time and that the evidence presented was the same as that presented during the restitution proceedings. Upon appeal, in a final decision of 30 July 2002, a five-member panel of the SAC upheld the three-member panel’s findings.

It appears that the Agriculture and Forestry Department refused to transfer possession during the pendency of the reopening proceedings.

Once these proceedings were over, on 20 December 2002 the second applicant requested once again that the judgment of the Razlog District Court be complied with.

In a letter dated 10 January 2003, the Agriculture and Forestry Department informed the second applicant that the transfer of possession would take place on 24 January 2003. However, this did not happen.

Pursuant to new requests by the second applicant that the judgment of the Razlog District Court be enforced, on 22 May 2003 the Agriculture and Forestry Department invited the local forest authority to designate its representative who would attend the transfer of possession.

In a letter dated 19 September 2003 to the Agriculture and Forestry Department, the forest authority stated that it considered the land at issue to be State-owned and that there had been no valid grounds for restitution. It pointed out that according to documents of 1936 and 1942 the land at issue had been declared a yaylak (a Turkish term designating a high-mountain pasture), to which the interested parties only had right of use. On that basis, the forest authority refused to participate in the transfer of possession, deeming such an action unlawful.

On 4 November 2003 the regional governor of Blagoevgrad issued an act registering the plot at issue as State property.

In a letter dated 26 January 2004 to the Agriculture and Forestry Department, the forest authority refused once again to participate in the transfer of possession. The Department informed the second applicant of that refusal in a letter dated 5 February 2004. It stated that it was unable to validly transfer possession in the absence of a representative of the forest authority.

On 5 February 2004 the second applicant wrote to the forest authority, informing it that the Razlog District Court’s judgment of 14 July 2000 was binding on all State bodies.

On 22 March, 11 May and 16 June 2004 the second applicant wrote to the Agriculture and Forestry Department, inviting it to enforce the Razlog District Court’s judgment. It is unclear whether there were any relevant developments after that.

At the time of the latest communication from the parties (January 2012), the judgment had not yet been enforced.

II. RELEVANT DOMESTIC LAW

A. The Forests Restitution Act

The Forests Restitution Act (Закон за възстановяване на собствеността върху горите и земите от горския фонд) was adopted in 1997. It set out the conditions for restitution of forestry land which had been expropriated in 1946 and the following years.

By section 11 of the Act, the bodies competent to take decisions for restitution were the respective land commissions, replaced in 2002 by Agriculture and Forestry Departments (after 2008 called Agricultural Departments). These are State bodies, whose members are appointed by the Minister of Agriculture.

Section 13 of the Act sets out the procedure for obtaining restitution of property. Requests for restitution had to be lodged by 30 June 1999. The respective land commission was to examine the documents submitted and take a decision within a year. Its decisions were subject to appeal before the courts which had jurisdiction to examine the merits of the request.

By section 13 (14) of the Act, introduced in 1999, within six months from the date of the final decision allowing a restitution request, the land commission was to transfer possession of the forestry land in question to the owners. This had to be carried out in the presence of a representative by the local forest authority (горско стопанство).

Forest authorities are also State bodies.

Section 13a (1) of the Forests Restitution Act, introduced in 2001, stipulates that a decision for restitution which has entered into force and is accompanied by a plan of the relevant plot, represents a valid title to property equivalent to a notary deed.

Paragraph 5 of the transitory provisions of the Act, introduced in 1997, provided at the relevant time that the right of use of forests and forestry land was not subject to restitution.

B. Interpretative decision no. 5/2013

. On 14 January 2013 the Plenary of the Civil Chambers of the Supreme Court of Cassation delivered interpretative decision no. 5/2013 (Т.д. № 5/2011 г., Върховен съд на Република България, Общо събрание на Гражданска колегия), finding, inter alia, that court judgments ordering restitution under the Forests Restitution Act had binding effect on the State and its bodies, which could not seek the re-examination of the matter in new judicial proceedings.

36. The Plenary reasoned, in particular, that:

“In direct judicial review proceedings, even though it does not decide on disputes concerning a right to property, the [relevant court] establishes whether the criteria for allowing the restitution claim have been met and on that question the court judgment has a res judicata effect in respect of the parties. ... The body which has issued the administrative decision, in this case the Agricultural Department, has the quality of a party to the proceedings, together with the clamant and all interested parties. In its quality as a party to these proceedings, which have an adversarial character ... the Agricultural Department can present evidence to substantiate the facts it has established and its conclusion as to whether the preconditions for issuing its decision have been met ....

It follows from the above that the judgment of the administrative court given in a procedure of direct judicial review is binding on the State and its bodies supervising the use of [State-owned forestry land].”

THE LAW

I. PRELIMINARY ISSUE

The Court notes at the outset that the applicant Mr Ivan Yankov Hadzhigeorgiev passed away on 14 July 2008 (see paragraph 6 above) and that none of his heirs or close relatives, including the two other applicants who are his nephews, have expressed a wish to pursue the application in his stead. It is the Court’s practice in such cases to strike applications out of the list (see, among other authorities, Leger v. France (striking out) [GC], no. 19324/02, 30 March 2009, Scherer v. Switzerland, 25 March 1994, §§ 31-32, Series A no. 287; and Thévenon v. France (dec.), no. 2476/02, ECHR 2006-III). The Court sees no reason to apply a different approach in the present case. In particular, it does not consider that respect for human rights requires it to continue the examination of Mr Ivan Yankov Hadzhigeorgiev’s complaints (Article 37 § 1 in fine of the Convention).

Accordingly, the Court strikes the application out of the list, insofar as it concerns the applicant Mr Ivan Yankov Hadzhigeorgiev.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1

The first and second applicants complained under Article 1 of Protocol No. 1 and Article 13 of the Convention that they had been unable to take possession of their property due to the authorities’ unlawful refusal to comply with the Razlog District Court’s final judgment of 14 July 2000.

The Court is of the view that the complaint is most appropriately examined under Article 1 of Protocol No. 1 alone, 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. Arguments of the parties

1. The Government

The Government argued that the applicants had failed to exhaust the available domestic remedies because they had not brought a tort action against the State. The Government considered that such an action could lead to the award of adequate compensation for any damage suffered. In support of that argument they referred to a number of judgments given in different situations in tort claims against State bodies.

The Government argued, in the next place, that the applicants should have brought a rei vindicatio action, an actio negatoria or an action for the determination of the borders of the plot claimed by them. They noted that in such proceedings the applicants could have sought an injunction or other interim measures.

The Government considered also that the present application was time barred, because it had been submitted more than six months after the Razlog District Court’s judgment of 14 July 2000. The Government pointed out in addition that in 2003 the disputed plot had been declared State-owned.

The Government contended that the applicants had not been entitled to restitution, because the land claimed by them had been a yaylak, to which their ancestors could only have had right of use, not right of property. They submitted several judgments of the domestic courts where restitution claims concerning land of the same type were dismissed. In addition, the Government relied on the provision of paragraph 5 of the transitory provisions of the Forests Restitution Act, which precluded the restitution of rights of use to forestry land (see paragraph 34 above). Thus, arguing that the applicants had not been entitled to restitution, the Government considered that Article 1 of Protocol No. 1 was inapplicable to the case. They added that the authorities could not have restored to the applicants property rights which their ancestors had not had, and were of the view that the Razlog District Court’s judgment of 14 July 2000 was null and void. The Government argued also that the Razlog District Court’s judgment had not determined with finality the applicants’ property rights.

2. The applicants

The first and second applicants contested the above arguments. To the Government’s objection for non-exhaustion of domestic remedies, they responded that a tort action, which could only have resulted in the payment of damages, could not be an effective remedy because it would not have compelled the authorities to comply with the judgment of 14 July 2000. The first and second applicants considered that it was also pointless to bring a rei vindicatio action, an actio negatoria or an action for the determination of the plot’s boundaries, because the most they could have obtained would have been another judgment obliging the authorities to transfer to them possession of the plot. However, they had already obtained a judgment with the same legal effect and the authorities were refusing to abide by it. The first and second applicants considered that they had done all within their powers to obtain compliance with the judgment of 14 July 2000.

Turning to the Government’s objection that the application was time-barred, the first and second applicants pointed out that it concerned a continuing violation, which had persisted well after the lodging of the present application with the Court.

On the merits, the first and second applicants argued that they had become owners of the plot at issue pursuant to the Razlog District Court’s judgment of 14 July 2000 and the land commission’s decision of 15 August 2000 taken in implementation of that judgment. However, the State, through its refusal to comply with the judgment and transfer to them possession of the land, was hindering the enjoyment of their property rights.

The first and second applicants contested the Government’s argument that their ancestors had not owned the land claimed, pointing out that the question had been decided with finality by the Razlog District Court, in judicial proceedings with the participation of the land commission, which had been representing the State and could have raised the arguments put forward by the Government before the Court. The first and second applicants considered that, in view of the District Court’s final judgment which was binding on all State bodies, it was impermissible for the Government to contest at this stage their entitlement to restitution.

B. The Court’s assessment

1. Admissibility

(a) Exhaustion of domestic remedies

The Government argued that the applicants had failed to exhaust the available domestic remedies, because they had not brought a tort action against the State. Furthermore, the Government were of the view that the applicants could have brought a rei vindicatio action, an actio negatoria, or an action for the determination of the borders of the plot claimed by them. The applicants contested these arguments (see paragraphs 41, 42 and 45 above).

The Court recalls that in a similar case against Bulgaria it dismissed an objection for non-exhaustion of domestic remedies based on the possibility to bring a tort action against the State, finding that a compensatory remedy could not provide adequate redress in a situation where the authorities were yet to take specific measures to comply with a final court judgment (see Mutishev and Others v. Bulgaria, no. 18967/03, § 104, 3 December 2009, with further references). In addition, the Court was not satisfied that there was a sufficiently developed practice of the domestic courts relating to the remedy at issue (ibid., § 105). The Court has dismissed a similar objection in a number of other cases against Bulgaria concerning delays in completing the parallel process of restitution of agricultural land (see Lyubomir Popov v. Bulgaria, no. 69855/01, §§ 102-107, 7 January 2010; Vasilev and Doycheva v. Bulgaria, no. 14966/04, §§ 26-30, 31 May 2012; and Petkova and Others v. Bulgaria, nos. 19130/04, 17694/05 and 27777/06, 25 September 2012). The Government have not put forward arguments capable of convincing the Court to depart from the approach adopted in the above cases. In particular, it is noteworthy that the domestic judgments referred to by the Government (see paragraph 41 above) concern different situations and do not establish the effectiveness of a tort action in the specific circumstances of a case such as the present one.

As to the argument that the applicants could have brought a rei vindicatio action, an actio negatoria, or an action for the determination of the borders of the plot claimed by them, the Government have not indicated how any of these remedies would respond to the applicants’ grievances, which, as already mentioned, concerned the continued refusal of the authorities to comply with the Razlog District Court’s judgment of 14 July 2000. In particular, as concerns the possibility for a rei vindicatio action, the Court notes that what the applicants could obtain was a judgment ordering the authorities to transfer to them possession of the disputed plot. However, as pointed out by the first and second applicants, the judgment of 14 July 2000 already entailed such an obligation, but the authorities refused to comply with it. Accordingly, the Court does not consider that the applicants should have been expected to seek to obtain another such judgment.

Lastly, the Court points out that in the just-satisfaction judgement in the similar case of Mutishev and Others it found that domestic law did not provide for any remedies enabling claimants in a position such as the applicants’ to compel the authorities to abide by a final court judgment determining the scope of their restitution rights. Referring to Article 46 of the Convention, the Court recommended to the national authorities to introduce such remedies (see Mutishev and Others v. Bulgaria (just satisfaction), no. 18967/03, §§ 37-38, 28 February 2012). The Court sees no reason to depart in the present case from these findings. Accordingly, it concludes that the first and second applicants did not have at their disposal any effective remedies to obtain adequate redress.

In view of the above, the Court dismisses the Government’s objection based on non-exhaustion of domestic remedies.

(b) The six-months rule

The Government argued also that the application was time-barred, because it had been lodged more than six months after the Razlog District Court’s judgment of 14 July 2000 and thus outside the time-limit provided for by Article 35 § 1 of the Convention. The first and second applicants disagreed, pointing out that their case concerned a continuing situation (see paragraphs 43 and 46 above).

The Court notes that, indeed, the final judgment determining the applicants’ restitution rights was given on 14 July 2000, more than six months before the lodging of the present application on 27 October 2005. However, the first and second applicants did not complain of that judgment, with which they were satisfied, but of the subsequent actions of the authorities and their continued failure to comply with the judgment.

The concept of a “continuing situation” refers to a state of affairs in which there are continuous activities or omissions by or on the part of the State which render the applicant a victim (see Posti and Rahko v. Finland, no. 27824/95, § 39, ECHR 2002-VII; and Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 75, 10 January 2012). The Court has on numerous occasions held that failure on the part of the authorities to comply with a final judgment gives rise to such a continuing situation (see Çaush Driza v. Albania, no. 10810/05, § 60, 15 March 2011; and Dadiani and Machabeli v. Georgia, no. 8252/08, § 38, 12 June 2012).

. Accordingly, applying that approach, the Court finds that the present case also concerns a continuing situation, which would only end with the enforcement of the judgement of 14 July 2000. At the time of the lodging of the present application this had not been done.

The Government seemed to argue, in addition, that the application was submitted outside the six-month time-limit because in 2003 the plot claimed by the applicants was registered as State-owned (see paragraphs 23 and 43 above). However, the Government have not shown that the decision for registration, which was taken by the regional governor without the participation of the applicants, had an effect on any rights acquired by them, or that it wiped out the effects of the judgment of 14 July 2000. Accordingly, the 2003 act of registration was not relevant for the calculation of the six-month time-limit.

It follows that the present application has not been submitted after the expiry of the time-limit under Article 35 § 1 of the Convention.

The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. The application, in so far as it concerns the complaints of the first and second applicants, must therefore be declared admissible.

2. Merits

(a) Applicability of Article 1 of Protocol No. 1

The Court reiterates that, according to its case-law, an applicant can allege a violation of Article 1 of Protocol No. 1 only insofar as the impugned decisions relate to his “possessions” within the meaning of that provision. “Possessions” can be “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, among many others, Draon v. France [GC], no. 1513/03, § 65, 6 October 2005).

Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners. On the other hand, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX).

Turning to the circumstances of the present case, the Court notes that by a judgment of 14 July 2000, which was not appealed against and became final, the Razlog District Court restored to the heirs of the applicants’ ancestors property to 814,000 square metres of forestry land (see paragraph 11 above). That was confirmed by the land commission, in its decision of 15 August 2000 (see paragraph 13 above). Pursuant to domestic law, the first and second applicants’ restitution rights were not subject to any further determination and the authorities were obliged to enforce the judgment of 14 July 2000 and the subsequent decision, which entitled the first and second applicants to “possessions” within the meaning of Article 1 Protocol No. 1. (see paragraphs 30-31 above). Article 1 of Protocol No. 1 was thus applicable (see Mutishev and Others, cited above, § 123).

(b) Compliance with Article 1 of Protocol No. 1

The authorities’ refusal to comply with the judgment of 14 July 2000 determining the first and second applicants’ restitution rights undoubtedly constituted interference with their “possessions”.

The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that the States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see, among others, Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II; and Zlínsat, spol. s r.o., v. Bulgaria, no. 57785/00, § 97, 15 June 2006).

The Court has also held that administrative bodies have no discretion to refuse to enforce a final court judgment on the ground that they consider it erroneous or otherwise contrary to law (see Mutishev and Others, cited above, § 129; see also, mutatis mutandis, Mancheva v. Bulgaria, no. 39609/98, § 59, 30 September 2004). The principle of legal certainty requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question, save for reasons of a substantial and compelling character (see, mutatis mutandis, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII ; and Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX).

In the case at hand, the judgment of 14 July 2000 remained completely unenforced and the restitution procedure remained unfinished. After the Agriculture and Forestry Department’s initial refusal to enforce the judgment because of the Minister of Agriculture’s attempt to have the proceedings reopened (see paragraphs 16-18 above), ultimately the judgment remained unenforced due to the refusal of the local forest authority to participate in the transfer of possession of the plot and the fact that its participation was obligatory (see paragraphs 21-24 and 31 above). The reasons put forward by the forest authority were that it considered that the plot of land at issue had been a yaylak and therefore not subject to restitution, that it had remained State-owned and that the judgment of 14 July 2000 was erroneous (see paragraph 22 above). The Government, in their submissions to the Court, also contested the judgment of 14 July 2000, putting forward identical arguments and considering that the first and second applicants had had no entitlement to restitution (see paragraph 44 above).

However, the Court notes that the Razlog District Court, examining the documents presented to it by the parties, concluded that the applicants’ ancestors had in fact been owners of the land claimed (see paragraph 11 above). The arguments concerning the land being a yaylak were not raised before it by the land commission, nor were the documents referred to by the forest authority in its letter of 19 September 2003 (see paragraph 22 above) presented in the proceedings. It is not this Court’s task to speculate what conclusion the domestic jurisdictions would have reached had the materials at issue been brought to their attention (see Mutishev and Others, cited above, § 134). The principle of legal certainty, as interpreted by the Court in similar cases (see paragraph 66 above), does not permit State bodies such as the forest authority to refuse to comply with final court judgments on the ground that they are erroneous; it is equally impermissible for them to invoke new arguments and documents only at the stage of execution of a final judgement (see Mutishev and Others, cited above, § 134). This principle was also clearly reflected in the refusal of the domestic courts to reopen the proceedings (see paragraph 17 above).

Moreover, the Court notes that in its interpretative decision of 14 January 2013 the Plenary of the Civil Chambers of the Supreme Court of Cassation also concluded that court judgments determining claimants’ restitution rights were binding on all State bodies, which could not challenge their conclusions. This was so because the judgments at issue had resulted from adversarial judicial proceedings, in which the Agricultural Departments (the successors of the land commissions and the Agriculture and Forestry Departments) could raise all relevant arguments (see paragraphs 35-36 above). Although this decision was given long after the impugned events, it is indicative of the state of domestic law at the time.

The Government have not referred to any other reasons to justify the prolonged failure to enforce the judgment of 14 July 2000. Accordingly, the Court considers that there were no reasons of a substantial and compelling character, as required by its case-law (see paragraph 66 above), justifying that failure.

The foregoing considerations are sufficient to enable the Court to conclude that the interference with the first and second applicants’ “possessions” was contrary to the principles of lawfulness and legal certainty.

There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

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

In respect of damage the first and second applicants claimed the following amounts:

(a) 4,514,355 Bulgarian levs (BGN), the equivalent of 2,308,153 euros (EUR) for the market value of the whole plot at issue, namely 814,000 square metres. In support of this claim the first and second applicants presented a valuation report by an expert appointed by them. The report takes into account factors such as the surface of the land at issue, its geographical location, the character and the quality of the forests (which consisted of spruce and pine trees), and the possible income from felling;

(b) BGN 528,000, the equivalent of EUR 269,962, for lost profit from using the land from 2000 to 2011. In support of that claim the first and second applicants presented an expert report from 2005, prepared for unspecified domestic proceedings, which calculated that the possible revenues from the sale of wood for the period between 2000 and 2004 would have been BGN 48,000, the equivalent of EUR 24,490. The report noted nevertheless that after 1997 there had been no production of wood from the land at issue. It pointed out that according to the relevant plans part of the land was designated to be used for pasture;

The Government contested the above claims. They made unspecific and general submissions, in which they considered that the claims for pecuniary damage were “speculative and unproven” and that the damage claimed had not been the direct and proximate result of the violations alleged. In addition, they considered the claims for non-pecuniary damage excessive.

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).

The Court is of the view that in the instant case the most appropriate reparation would be full compliance with the Razlog District Court’s judgment of 14 July 2000, that is, completion of the restitution process and actual delivery of the land in issue to the first and second applicants, in accordance with their inheritance shares, 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 (see Mutishev and Others (just satisfaction), cited above, § 29). As already noted (see paragraph 70 above), there appear to be no valid obstacles to the completion of the restitution process.

Given the above, the Court considers that the question of the application of Article 41, insofar as it concerns pecuniary and non-pecuniary damage, is not ready for decision (Rule 75 § 1 of the Rules of Court). Accordingly, the Court reserves this question and the further procedure and invites the Government and the first and second applicants, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, to submit their observations on the matter and, in particular, to inform it of any agreement that they may reach, bearing in mind the considerations in the previous paragraphs.

B. Costs and expenses

The first and second applicants also claimed the following amounts for the costs and expenses incurred before the Court:

(a) EUR 800 for the work performed by their lawyer;

(b) BGN 185.75, the equivalent of EUR 95, for postage; and

In support of these claims the first and second applicants presented the relevant receipts.

The Government contested the claims and considered them exaggerated.

According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only insofar as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and those criteria, the Court awards the amounts claimed, namely EUR 1,079 in total, in full.

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. Decides to strike the application out of list of cases, insofar as it concerns the applicant Mr Ivan Yankov Hadzhigeorgiev;

2. Declares the application, insofar as it concerns the other two applicants, admissible;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4. Holds that the question of the application of Article 41, insofar as it concerns the claims for pecuniary and non-pecuniary damage, is not ready for decision;

accordingly,

(a) reserves the said question;

(b) invites the Government and the first and second applicants to submit, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and to notify the Court of any agreement that they may reach;

(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be;

5. Holds

(a) that the respondent State is to pay the first and second applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,079 (one thousand and seventy-nine euros), plus any tax that may be chargeable to the first and second applicants, in respect of costs and expenses, to be converted into Bulgarian levs at the rate applicable at 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.

Done in English, and notified in writing on 16 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Ineta Ziemele
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> HADZHIGEORGIEVI v. BULGARIA - 41064/05 - Chamber Judgment [2013] ECHR 694 (16 July 2013) URL: http://www.bailii.org/eu/cases/ECHR/2013/694.html Cite as: [2013] ECHR 694