ILIEVA AND OTHERS v. BULGARIA - 17705/05 - Chamber Judgment [2015] ECHR 113 (03 February 2015)

In the case of Ilieva and Others v. Bulgaria,

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

          Guido Raimondi, President,
          George Nicolaou,
          Ledi Bianku,
          Nona Tsotsoria,
          Zdravka Kalaydjieva,
          Paul Mahoney,
          Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 13 January 2015,

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

PROCEDURE

1. The case originated in an application (no. 17705/05) 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 four Bulgarian nationals, Ms Stanka Tsanova Ilieva, Mr Stanko Kalinov Stanev, Mr Kalin Tsvetanov Iliev and Mr Stanko Tsvetanov Iliev (“the applicants”), on 5 May 2005.

2. Ms Stanka Tsanova Ilieva passed away on 22 July 2012 and by a letter dated 18 December 2012 the applicant Mr Stanko Kalinov Stanev, her son and sole heir, expressed his wish to continue the application in her stead.

3. The applicants were represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, from the Ministry of Justice.

4. The applicants alleged that in proceedings concerning the restitution of agricultural land the authorities had acted in breach of the principle of legal certainty, had unjustifiably refused restitution in kind, and had delayed the restitution process.

5. On 10 July 2012 the application was communicated to the Government. It was 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

6. The applicants were born in 1928, 1949, 1958 and 1954 respectively. Mr Stanko Kalinov Stanev and Mr Kalin Tsvetanov Iliev live in Teteven and Mr Stanko Tsvetanov Iliev lives in Pleven. Ms Stanka Tsanova Ilieva also lived in Teteven.

7. Ancestors of the applicants owned agricultural land in the area of the village of Ribaritsa, Lovech region, which was collectivised after 1945.

A. Developments concerning the applicants’ land and creation of “Pochivno delo na SSHP” EOOD

8. In 1964 the municipal authorities in Lovech decided to allocate land for the construction of a hotel in Ribaritsa. The exact borders of the plot were specified in a decision delivered in 1984: it was one of the plots formerly owned by the applicants’ ancestors. In 1985 a proposal to formally expropriate the land from the agricultural co-operative in which it had been included earlier was rejected by a commission created by the Government.

9. The hotel was constructed between 1962 and 1968. It consisted of a main building ‒ comprising a restaurant and five bedrooms, ten bungalows and maintenance buildings. In the 1990s the complex also included an unfinished building, designed to be used as six bedrooms and a lounge, and a swimming pool. The plot of land on which it was constructed measured 8,182 square metres.

10. In March 1987 the local authorities in Lovech created a State-owned enterprise named “Pochivno delo na SO”, which was charged with the task, in particular, of using and managing the hotel in Ribaritsa. On 23 January 1995 the Minister of Agriculture ordered the creation of a State-owned limited liability company named “Pochivno delo na SSHP” EOOD, which took over the assets of the enterprise; under the applicable domestic provisions, this entailed the company becoming the owner of these assets. “Pochivno delo na SSHP” EOOD was entered in the companies register in Lovech on 1 March 1995.

11. In June 1996 the company initiated a procedure aimed at changing the status of the land on which the hotel was constructed, and which was still formally considered agricultural. The course of that procedure is unclear.

12. On 13 November 1998 the Minister of Agriculture issued an “act of State ownership” of the hotel and the land on which it was constructed. The document noted that the property had been included in the capital of “Pochivno delo na SSHP” EOOD.

B. Restitution of the land

13. In 1991, following the adoption of the Agricultural Land Act (“the ALA”), the applicants, who had inherited their ancestors in equal shares, applied for the restitution of the land formerly owned by them.

14. In a decision of 25 July 1995 the Teteven agricultural land commission (“the land commission”) restored the applicants’ property rights to several plots, including one of 8,290 square metres on which the hotel had been constructed. The decision referred to this plot as a “meadow”.

15. On 26 February 1996 the land commission issued a new decision concerning the applicants’ land, amending its previous one. In the new decision the commission did not mention the plot on which the hotel had been constructed, which, according to the applicable rules, was considered to amount to a tacit refusal to order restitution.

16. The applicants instigated proceedings for judicial review of the decision of 26 February 1996. In a final judgment of 9 April 1998 the Teteven District Court quashed the decision. It noted that in 1985 a proposal to expropriate the disputed plot from the agricultural co-operative had been rejected by the competent commission. It noted further that the procedure aimed at changing the land’s status initiated by “Pochivno delo na SSHP” EOOD had not been completed and that the plot had not yet been registered as State or municipally-owned. It concluded that the land commission had had no valid legal grounds on which to amend its decision of 25 July 1995 ordering restitution in kind, quashed its subsequent tacit refusal in that regard and restored the applicants’ property rights to the plot of land.

17. On the basis of the above judgment, on 5 March 1999 the applicants obtained a notarial deed.

C. Civil proceedings

18. On 7 August 1998 “Pochivno delo na SSHP” EOOD brought an action against the applicants, seeking a declaratory judgment to the effect that it was the owner of the plot of land at issue. The applicants brought a counter-claim for rei vindicatio. They argued that the hotel’s buildings were unlawful and that the land had never formally ceased to be considered agricultural. They based their claims to be the owners of the land on the land commission’s decision of 25 July 1995.

19. The case was examined by three levels of jurisdiction. The Supreme Court of Cassation’s final judgment was given on 19 January 2005.

20. The domestic courts found that “Pochivno delo na SSHP” EOOD had become the owner of the plot following its transformation into a State-owned company in 1995, since the State enterprise of which it was the successor had previously used and managed that property. As to the applicants’ claims, the courts noted that they were based on the land commission’s decision of 25 July 1995. However, this decision, as well as the Teteven District Court’s judgment of 9 April 1998, were not binding on “Pochivno delo na SSHP” EOOD, as it had not been party to the restitution proceedings. The courts thus considered that they were free to conduct an “indirect judicial review” (косвен контрол) of the restitution decision and concluded that it was invalid as the preconditions for restitution in kind had not been met. This was so in particular in the light of the provision contained in section 10b of the ALA, which barred such restitution where a “complex of construction works” had been carried out on the land at issue. Section 10b did not require the construction works to have been lawful, since what mattered was the situation at the moment of the ALA’s entry into force.

D. Compensation

21. Following the above developments, in a decision of 28 February 2006 the Teteven Agriculture and Forestry Department (former land commission) held that the applicants were entitled to compensation in lieu of restitution. In another decision of 6 April 2006 it held that the compensation would be effected through compensation bonds, with a face value of 5,360 Bulgarian levs (BGN). The applicants received the bonds on 20 December 2006.

22. The applicants sold the bonds in February 2013. They received, in total, BGN 2823.88.

II. RELEVANT DOMESTIC LAW AND PRACTICE

23. The relevant domestic law and practice concerning the res judicata effect of court judgments, the process of restitution of agricultural land, and the transformation of former State-owned enterprises into companies have been summarised in the Court’s judgments in the cases of Sivova and Koleva v. Bulgaria (no. 30383/03, §§ 29-49 and 57-60, 15 November 2011) and Karaivanova and Mileva v. Bulgaria (no. 37857/05, §§ 28-35, 17 June 2014).

THE LAW

I. PRELIMINARY QUESTION

24. One of the applicants, Ms Stanka Tsanova Ilieva, passed away on 22 July 2012 while the case was pending before the Court, and her son and sole heir, Mr Stanko Kalinov Stanev, expressed the wish to pursue the application on her behalf (see paragraph 2 above). It has not been disputed that he is entitled to do so and the Court sees no reason not to accede to his request (see Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005, and Donka Stefanova v. Bulgaria, no. 19256/03, § 11, 1 October 2009).

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE RES JUDICATA EFFECT OF THE JUDGMENT OF 9 APRIL 1998

25. The applicants complained under Article 6 § 1 of the Convention that in the civil proceedings against “Pochivno delo na SSHP” EOOD the national courts had re-examined the conclusions in their favour reached by the Teteven District Court in its final judgment of 9 April 1998. They considered that this approach had violated the principle of legal certainty.

26. Article 6 § 1 of the Convention, in so far as applicable, 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

27. Relying on the Court’s findings in the case of Sivova and Koleva, (cited above), which concerned similar circumstances, the Government considered that Article 6 § 1 had not been violated. They pointed out that third parties claiming rights over restituted properties, such as “Pochivno delo na SSHP” EOOD, could not participate in administrative proceedings concerning restitution.

28. The applicants argued that, seeing that the State had been bound by the Teteven District Court’s judgment of 9 April 1998, so should have been “Pochivno delo na SSHP” EOOD, which could not be considered a genuine “third party” to the restitution proceedings as it had been wholly owned and controlled by the State. Thus, the re-examination of the well-foundedness of the applicants’ restitution claims had violated the principle of legal certainty, as set out by the Court in the case of Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, 12 January 2006). The applicants considered that, by transferring ownership of the land claimed by them to the company, the State had given itself a “second chance” to have the matter re-examined and to prevent the enforcement of the restitution decision.

B. The Court’s assessment

1. Admissibility

29. The Court notes that this complaint 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. It must therefore be declared admissible.

2. Merits

30. The Court notes at the outset that the issues raised in the present case are similar to the ones examined by it in the cases of Sivova and Koleva and Karaivanova and Mileva (both cited above), and will apply to it the principles it developed in these two judgments.

31. As in these cases, the Court reiterates that the right to a fair hearing under Article 6 § 1 of the Convention, interpreted in the light of the principles of the rule of law and legal certainty, encompasses the requirement that where the courts have finally determined a dispute between given parties, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII). The principle of legal certainty and respect for the res judicata effect of final judgments requires that no party may be entitled to seek review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX). In all legal systems the res judicata effect of judgments has limitations ad personam and ad rem (see Kehaya and Others, cited above, § 66, and Esertas v. Lithuania, no. 50208/06, § 22, 31 May 2012).

32. As regards the case at hand, the Court observes that the Teteven District Court’s judgment of 9 April 1998 did not concern the judicial review of an initial refusal by the land commission to order restitution, but the review of its subsequent decision aiming to reverse an earlier decision in the applicants’ favour (see paragraphs 14-16 above).

33. The Court notes in addition that even before the applicants made their restitution claims, and throughout all the time after that, the company “Pochivno delo na SSHP” EOOD was holding and using the plot claimed by them, and attempted to have the land’s status modified. The applicants should have thus been aware of the company’s rival claims to the plot. Moreover, in view of the domestic courts’ well-established practice of re-examining administrative and judicial decisions on restitution in subsequent civil proceedings concerning ownership rights (see Sivova and Koleva, § 44, and Karaivanova and Mileva, § 33, both cited above), the applicants should have been aware of the fact that any dispute between them and the company would eventually be subject to subsequent determination in civil proceedings to which the company would be a party (see Sivova and Koleva, cited above, § 74).

34. In order to determine whether the outcome of the civil proceedings in the case complied with the principle of legal certainty protected by Article 6 § 1 of the Convention, the Court will examine its two aspects as set out in paragraph 31 above, namely ad personam and ad rem.

35. Concerning the first of them, ad personam, the Court observes that under domestic law at the relevant time, decisions of the land commissions and judgments such as the one of 9 April 1998 were adopted in ex parte proceedings and were binding on the parties to these proceedings (see Karaivanova and Mileva, cited above, § 49). In the instant case those parties were the applicants and a State body, the land commission, whereas the company “Pochivno delo na SSHP” EOOD was a party only to the subsequent civil proceedings.

36. The Court observes further that it is not contested that under Bulgarian law State-owned companies ‒ even where they are the successors of former State enterprises ‒ are separate legal entities, capable of independently acquiring and exercising various property rights, as well as defending these rights in civil proceedings (see Sivova and Koleva, cited above, §§ 48-49). Such companies ‒ even where, as in the instant case, they are owned by the State ‒ are subject to the rules of private law and exercise no public power (ibid., § 72). Moreover, it is significant that “Pochivno delo na SSHP” EOOD was created and took over the assets of the former State enterprise in 1995 (see paragraph 10 above), long before the Teteven District Court’s judgment of 9 April 1998. Thus, the Court does not consider that, in re-examining whether the preconditions for restitution in kind had been met, the domestic courts encroached upon the ad personam aspect of the principle of legal certainty (see Karaivanova and Mileva, cited above, §§ 50-51).

37. The Court must also examine whether, in the circumstances of the instant case, the authorities called into question an issue that had been finally determined by a court (the ad rem aspect of the principle of legal certainty).

38. It notes in that regard that in its judgment of 9 April 1998 the Teteven District Court found that the land commission had had no valid legal grounds for refusing restitution in kind, in particular because a proposal in 1985 to expropriate the disputed plot from the agricultural co-operative had been rejected, because the land continued to be formally allocated as agricultural, and lastly because the plot had not been registered as State-owned or municipally-owned (see paragraph 16 above).

39. However, the Teteven District Court did not examine the questions raised and examined in the subsequent civil proceedings between the applicants and “Pochivno delo na SSHP” EOOD, namely whether the company had acquired title to the land, and whether a “complex of construction works” within the meaning of section 10b of the ALA had been put in place on the plot, barring restitution in kind. These arguments were raised for the first time by “Pochivno delo na SSHP” EOOD in the civil proceedings. After having examined the arguments, the courts in these proceedings found, firstly, that the company had become the owner of the plot, as it was the successor of a former State enterprise which had been using and managing it, and, secondly, that the hotel occupying the land represented a “complex of construction works”, already existing at the time of the ALA’s entry into force, which entailed that the restitution of the plot “in actual boundaries” was not permitted by law (see paragraph 20 above).

40. The Court cannot conclude on the basis of the above that the national courts examined the same matter in the restitution and the civil proceedings. In this regard the present case is to be distinguished from the case of Kehaya and Others (cited above, §§ 16-18 and 21-25), relied on by the applicants (see paragraph 28 above), which clearly concerned a re-examination of the same matter in the second set of proceedings as in the first one, namely whether the applicants’ ancestor had been the owner of the land claimed by them prior to the expropriation (see Karaivanova and Mileva, cited above, § 57).

41. Accordingly, the Court cannot conclude that the approach of the national courts in the present case failed to respect the principle of legal certainty enshrined in Article 6 § 1 of the Convention.

42. It follows that there has been no violation of that provision.

III. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE CONVENTION

43. The applicants complained under Article 1 of Protocol No. 1 that they had been unable to obtain the restitution of their plot “in actual boundaries”. They also complained, relying on Article 6 § 1 and Article 13 of the Convention, that the restitution procedure had been excessively lengthy.

44. The Court is of the view that the complaints above are most appropriately examined under Article 1 of Protocol No. 1 alone (see Karaivanova and Mileva, cited above, § 61). That provision reads:

“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

45. Relying, once again, on the Court’s findings in the case of Sivova and Koleva (cited above), the Government argued that Article 1 of Protocol No. 1 had not been violated, in particular because the applicants had been awarded compensation in lieu of restitution.

46. The applicants disagreed. They were of the view that the decisions of the land commission and the Teteven District Court allowing their restitution claims had resulted in their acquiring property rights, and that the ensuing impossibility of the enforcement of these decisions, once the civil courts had found that the preconditions for restitution in kind had not been met, amounted to deprivation of property. The applicants also contended that this deprivation had not been provided for by law and that it had not been in the public interest. In addition, they argued that the compensation which they had received, namely through compensation bonds which they had sold for the sum of BGN 2,823.88, had been inadequate. They argued also that the restitution proceedings had been too lengthy and that they had been placed in a situation of prolonged uncertainty. They claimed that the procedure had continued until 2013, because it had been only then that they had been able to sell the compensation bonds received in 2006.

47. In their additional observations on the case, the Government disputed the applicants’ statement that they had not been able to sell the bonds before 2013. The Government submitted a receipt signed by a representative of the applicants showing that they had received a certificate allowing them to trade the bonds on 20 December 2006.

B. The Court’s assessment

1. Admissibility

48. The Court notes that this complaint 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. It must therefore be declared admissible.

2. Merits

49. The Court has previously summarised the principles applicable to cases of restitution of expropriated property in Kopecký v. Slovakia ([GC], no. 44912/98, § 35, 2004-IX). Most notably, it has held that Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property taken by them before they ratified the Convention, nor does it impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution or 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. In addition, the Court has accepted that in situations such as that in the present case, involving a wide-reaching legislative scheme with a significant economic impact, the national authorities must have a wide margin of appreciation in selecting the measures to secure respect for property rights or to regulate ownership relations (see also Broniowski v. Poland [GC], no. 31443/96, § 182, ECHR 2004-V; Maria Atanasiu and Others v. Romania, nos. 30767/05 and 33800/06, §§ 171-72, 12 October 2010; and Sivova and Koleva, cited above, §§ 97-98).

50. Turning to the circumstances of the present case, the Court notes that in its decision of 25 July 1995 the Teteven agricultural land commission recognised the applicants’ right to restitution (see paragraph 14 above). This gave rise to a legitimate expectation for them in that regard.

51. However, even though that decision, as well as the Teteven District Court’s judgment of 9 April 1998, stated that they acknowledged the applicants’ entitlement to the restitution of the plot claimed by them in its “actual boundaries”, due to the fact, already discussed above, that the company “Pochivno delo na SSHP” EOOD had known rival claims to the land, falling to be examined in separate civil proceedings with its participation, the Court cannot accept that the decision of 25 July 1995 and the judgment of 9 April 1998 determined with finality the scope of the applicants’ restitution rights and gave rise to an asset, that is to a stable and defendable property right for them (see Karaivanova and Mileva, § 76, cited above; also Nedelcheva and Others v. Bulgaria, no. 5516/05, § 60, 28 May 2013, and Kupenova and Others v. Bulgaria (dec.), no. 12664/05, § 34, 7 May 2013). On the contrary, the domestic law’s approach to the matter meant that the scope of the applicants’ legitimate expectation remained the subject of further determination. Subsequently, in the proceedings between the applicants and “Pochivno delo na SSHP” EOOD it was established that the restitution in kind of the plot was impossible, due to the existence of a “complex of construction works” within the meaning of section 10b of the ALA.

52. After that the Teteven Agriculture and Forestry Department (successor of the land commission) awarded the applicants compensation (see paragraph 21 above). This was thus the moment when the content of the applicants’ legitimate expectation was determined with finality, creating for them an entitlement to receive a specific asset.

53. The applicants argued that the compensation they received, namely compensation bonds, which they traded for BGN 2823.88 (see paragraph 22 above), was unsatisfactory. However, the Court reiterates that States have the freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners (see paragraph 49 above; see also Nedelcheva and Others, cited above, § 56). Moreover, the Court refers to its finding in Sivova and Koleva (cited above, §§ 109-114) and Nedelcheva and Others (cited above, § 61) that the manner of compensation chosen by the Bulgarian legislator did not run contrary to the requirements of Article 1 of Protocol No. 1.

54. The applicants argued in addition that the restitution procedure was too lengthy (see paragraph 43 above). The Court notes in that regard that, once the applicants’ legitimate expectation to restitution arose in 1995 (see paragraph 50 above), they were involved in two sets of judicial proceedings, first the restitution proceedings before the Teteven District Court and then the civil proceedings between them and “Pochivno delo na SSHP” EOOD, with the aim of obtaining a determination of the scope of that expectation, namely, as was eventually found to be the case, that they were not entitled to restitution in kind and would receive compensation. The judicial proceedings ended in January 2005 and in December 2006 the applicants received compensation bonds (see paragraphs 20-21 above). Thus, the applicants remained in a state of uncertainty as to the contents of their restitution rights for more than eleven years. The civil proceedings in which they took part, taken alone, lasted for almost six and a half years, from August 1998 to January 2005 (see paragraphs 18-20 above). The Court considers unsubstantiated the applicants’ allegation (see paragraph 46 above) that there were additional delays in the procedure because they had been unable to sell the bonds until 2013; it refers in that respect to the documents submitted by the Government showing that the applicants had been able to enter into transactions with the bonds as early as the end of 2006 (see paragraph 47 above).

55. In numerous previous cases against Bulgaria the Court has found violations of Article 1 of Protocol No. 1 on the ground of lengthy delays in the restitution procedure, which had affected the applicants’ legitimate expectation of restitution or compensation (see, for example, Lyubomir Popov, §§ 119-24, Sivova and Koleva, §§ 115-19, Nedelcheva and Others, §§ 71-84, and Karaivanova and Mileva, §§ 79-82, all cited above; see also Mutishev and Others v. Bulgaria, no. 18967/03, §§ 139-45, 3 December 2009; Vasilev and Doycheva v. Bulgaria, no. 14966/04, §§ 47-53, 31 May 2012; Petkova and Others v. Bulgaria [Committee], nos. 19130/04, 17694/05 and 27777/06, 25 September 2012; and Ivanov v. Bulgaria [Committee], no. 19988/06, 11 December 2012). In the case of Vasilev and Doycheva (see § 69 of the judgment) the Court concluded that the problem was recurrent and expressed the view that the Bulgarian authorities should provide for clear time-limits for the adoption and enforcement of administrative decisions necessary for the completion of the restitution procedures, namely for the determination of the assets due to the claimants and for those assets’ delivery.

56. The delays in the present case were to a significant extent the result of the approach adopted in the domestic law, under which third parties such as “Pochivno delo na SSHP” EOOD were not allowed to take part in restitution proceedings and thus have their competing claims to the same land examined at an earlier stage. Instead of that, domestic law provided for such issues to be resolved in separate proceedings. The Court has already criticised this approach, as it prolonged the restitution process and placed individuals in situations such as the applicants’ in a state of lengthy uncertainty (see Sivova and Koleva, §§ 115-16, Nedelcheva and Others, §§ 78-82, and Karaivanova and Mileva, § 81, all cited above). While acknowledging that States should be accorded a wide margin of appreciation in regulating important social and economic reforms such as the ones introduced in Bulgaria after the fall of communism, the Court reiterates that they nevertheless remain bound to organise their judicial and administrative systems in such a way so as to guarantee the rights provided for under the Convention (see Sivova and Koleva, cited above, § 116). In the case at hand, requiring that the applicants participate in two procedures, first a restitution procedure and then civil proceedings aimed at resolving the conflict between them and the third party with rival claims to the land, accordingly specifying the legitimate expectations recognised in the restitution procedure, unjustifiably delayed the effective exercise of the applicants’ right to have the scope of these expectations determined.

57. In view of the above considerations, the Court concludes that there has been a violation of Article 1 of Protocol No. 1.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

58. 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

59. In respect of pecuniary damage, the applicants claimed the current market value of the plot they had claimed. They relied on the cases of Kehaya and Others v. Bulgaria ((just satisfaction), nos. 47797/99 and 68698/01, 14 June 2007), Brumărescu v. Romania ((just satisfaction) [GC], no. 28342/95, ECHR 2001-I), and Papamichalopoulos and Others v. Greece ((Article 50), 31 October 1995, Series A no. 330-B), where the Court awarded the market value of the properties claimed. The applicants submitted a valuation report prepared by an expert which assessed the market value of their plot at 245,190 euros (EUR). Accordingly, they claimed that amount under the present head. They did not claim any pecuniary damage arising from the delays in the procedure.

60. In respect of non-pecuniary damage the second, third and fourth applicants, Mr Stanko Kalinov Stanev, Mr Kalin Tsvetanov Iliev and Mr Stanko Tsvetanov Iliev, claimed EUR 20,000 for each of them. Mr Stanko Kalinov Stanev urged the Court to take into account the fact that he also pursued the application on behalf of his late mother, the first applicant.

61. The Government disputed the claim for pecuniary damage, pointing out that the applicants had received compensation bonds in lieu of the restitution in kind of their plot. As regards the claim for non-pecuniary damage, they considered it exaggerated.

62. The Court observes that it has only found a violation of Article 1 of Protocol No. 1 in respect of the delays and the lack of certainty in the restitution process. It does not see a causal link between that violation and the applicants’ claim in respect of the market value of the plot of land, and accordingly dismisses that claim (see Sivova and Koleva, § 124, Nedelcheva and Others, § 91, and Karaivanova and Mileva, § 88, all cited above). Moreover, it points out that the applicants received compensation in lieu of restitution (see paragraphs 21-22 above).

63. As concerns non-pecuniary damage, the Court accepts that the applicants must have experienced anguish and frustration. However, it reiterates once again that it only found a violation of Article 1 of Protocol No. 1 of the ground of the lengthy delays in the restitution procedure. Ruling on an equitable basis, taking into account the amounts awarded in similar cases, and also the fact that following the first applicant’s death her son, Mr Stanko Kalinov Stanev, expressed the wish to pursue the application in her stead, to which it did not object (see paragraph 24 above), the Court awards Mr Stanko Kalinov Stanev EUR 2,000 for non-pecuniary damage, and to Mr Kalin Tsvetanov Iliev and Mr Stanko Tsvetanov Iliev EUR 1,000 each.

B. Costs and expenses

64. The applicants also claimed EUR 4,032.25 for the work performed by their representatives before the Court. In support of this claim they submitted a time sheet. They also claimed EUR 241.82 for postage, translation and office expenses. They requested that the above amounts, less EUR 200 already paid by them to their representatives, be transferred directly into the latter’s bank account.

65. The applicants claimed another BGN 240, the equivalent of EUR 123, paid for the expert report submitted in support of their claim for pecuniary damage (see paragraph 59 above). They submitted the relevant receipt. Lastly, they claimed BGN 2,764.50, the equivalent of EUR 1,417, for court fees and other expenses incurred in relation to the domestic civil proceedings.

66. The Government contested the above claims.

67. 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.

68. In the present case the Court only found a violation of Article 1 of Protocol No. 1 in respect of the delays in the restitution procedure. Noting that this is a repetitive complaint (see the case law referred to in paragraph 55 above), the Court finds it reasonable to award EUR 1,000 for the legal work performed by the applicants’ representatives and any other expenses incurred by them. As requested by the applicants, EUR 200 of this sum is to be paid to the applicants themselves, and the remainder, amounting to EUR 800, is to be transferred directly to the bank account of their representatives.

69. The Court sees no reason to award the remaining expenses claimed by the applicants, which are not related to the nature of the violation established in the case (see Karaivanova and Mileva, cited above, § 95).

C. Default interest

70. 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. Declares the application admissible;

2. Holds that there has been no violation of Article 6 § 1 of the Convention;

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

4. Holds

(a) that the respondent State is to pay the applicants, within three months from 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 at the date of settlement:

(i) EUR 2,000 (two thousand euros) to Mr Stanko Kalinov Stanev, and EUR 1,000 (one thousand euros) each to Mr Kalin Tsvetanov Iliev and Mr Stanko Tsvetanov Iliev, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, EUR 800 (eight hundred euros) of which is to be transferred directly to the bank account of the applicants’ 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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 3 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Guido Raimondi
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> ILIEVA AND OTHERS v. BULGARIA - 17705/05 - Chamber Judgment [2015] ECHR 113 (03 February 2015) URL: http://www.bailii.org/eu/cases/ECHR/2015/113.html Cite as: [2015] ECHR 113