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FIFTH
SECTION
CASE OF TODOROVA AND OTHERS v. BULGARIA
(Applications
nos. 48380/99, 51362/99, 60036/00 and 73465/01)
JUDGMENT
(just
satisfaction)
STRASBOURG
24
April 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Todorova and Others v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Karel
Jungwiert,
Volodymyr
Butkevych,
Rait
Maruste,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
judges,
and Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 1 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in four applications against the Republic of Bulgaria
lodged by Bulgarian nationals under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) as follows: application no. 48380/99, Todorova,
on 4 February 1999; application no. 51362/99, Eneva and
Dobrev, on 13 May 1999, application no. 60036/00, Bogdanovi,
on 4 January 2000; and application no. 73465/01, Tzilevi, on
11 May 2001. The names of the applicants and their
representatives are indicated below. The applicants in applications
nos. 48380/99 (Todorova) and 60036/00 (Bogdanovi)
were granted legal aid.
- In
a judgment delivered on 15 March 2007 (“the principal
judgment”) the Court, having joined the above four applications
with five others, held that in respect of those four applications
there had been violations of Article 1 of Protocol No. 1 to the
Convention (see 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, §§ 217-228 and 236-249,
15 March 2007).
- Under
Article 41 of the Convention, the applicants sought just satisfaction
for pecuniary and non-pecuniary damage and costs. The Government did
not comment.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision as regards pecuniary and non-pecuniary damage,
the Court reserved it and invited the Government and the applicants
to submit, within two months of the date on which the judgment became
final, their written observations on that issue and, in particular,
to notify it of any agreement they might reach (ibid., point 6 of the
operative provisions).
- The
applicants filed observations.
THE LAW
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary and non-pecuniary damage
1. The Court's approach
- Where
the Court has found a breach of the Convention in a judgment, the
respondent State is under a legal obligation to put an end to that
breach and make reparation for its consequences. If national law does
not allow – or allows only partial – reparation to be
made, Article 41 empowers the Court to afford the injured party such
satisfaction as appears to it to be appropriate. The Court enjoys a
certain discretion in the exercise of that power, as the adjective
“just” and the phrase “if necessary” attest.
In particular, if one or more heads of damage cannot be calculated
precisely or if the distinction between pecuniary and non-pecuniary
damage proves difficult, the Court may decide to make a global
assessment (see Comingersoll S.A. v. Portugal [GC], no.
35382/97, § 29, ECHR 2000-IV).
- As
regards pecuniary damage, the basis on which the Court proceeds
depends on the nature of the breach found. Illegal and arbitrary
dispossessions of property in principle justify restitutio in
integrum and, in the event of non-restitution, payment of the
up-to-date full value of the property (see Papamichalopoulos and
Others v. Greece (Article 50), judgment of 31 October 1995,
Series A no. 330 B, and Brumărescu v. Romania
(just satisfaction) [GC], no. 28342/95, ECHR 2001-I). However,
where the failure to strike a fair balance between the public
interest and the individual's rights, rather than illegality, was the
basis of the violation found, just satisfaction must not necessarily
reflect the idea of wiping out all the consequences of the
interference in question and compensation need not always equal the
full value of the property. Legitimate objectives of public interest,
such as measures of economic reform or measures designed to achieve
greater social justice, may call for less than reimbursement of the
full market value. Less than full compensation may be equally, if not
a fortiori, called for where the taking of property is
resorted to with a view to completing fundamental changes of a
country's constitutional system (see James and Others v. the
United Kingdom, judgment of 21 February 1986, Series A
no. 98, p. 36, § 54, and The Former King of
Greece and Others v. Greece [GC] (just satisfaction), no.
25701/94, §§ 75-78, 28 November 2002).
- In
its principal judgment in the present case, the Court drew a
distinction between cases in which the interference with the
applicants' property rights fell within the scope of the legitimate
aims pursued by the Restitution Law but failed to strike a fair
balance between the public interest and the individuals' rights (the
cases of Bogdanovi and Tzilevi) and cases in which
there had been an excessively extensive application of the
Restitution Law in disregard of the principle of legal certainty (the
cases of Todorova and Eneva and Dobrev). In respect of
the first group, the Court considered that the requisite fair balance
between the public interest and the individuals' rights required
adequate compensation (see paragraphs 220 and 224 of the principal
judgment). In respect of the second group, the Court stated that
nothing short of compensation reasonably related to the market value
of the property would suffice (see paragraphs 238 and 248 of the
principal judgment).
- The
Court therefore considers that in the first group of cases, in view
of the nature of the breach found, it must fix a lump sum in respect
of pecuniary and non-pecuniary damage with reference to the value of
the property and all other relevant circumstances, such as the
hardship suffered by the applicants.
- In
respect of the second group of cases, the Court finds it appropriate
to make separate awards in respect of pecuniary and non-pecuniary
damage. The amount to be awarded under the head of pecuniary damage
must be reasonably related to the market value of the property at
present. In determining this amount the Court will take into account
the valuations submitted by the parties and information at its
disposal about the relevant property market.
- In
addition, having regard to the very special circumstances of the
present case, which concerns legislation and practice relating to a
unique transition from a totalitarian regime to a democratic society,
recourse to equitable considerations is called for in respect of all
heads of damage and in each case (see, The Former King of Greece
and Others (just satisfaction), cited above, § 79, and
Brumărescu (just satisfaction), cited above, § 24).
2. Application of that approach in the particular cases
(a) The case of Todorova
- The
property which was taken from the applicant in violation of Article 1
of Protocol No. 1 to the Convention was a plot of land of
352 square metres located in the centre of Stara Zagora and
two small one-storey houses built on that plot, covering areas of 86
and 46 square metres respectively.
- The
applicant claimed EUR 258,000 in respect of pecuniary damage. She
submitted two valuation reports by an expert commissioned by her. In
his first report, dated February 2006, the expert stated that the
value of the plot was EUR 160,500. In his second report, dated August
2007, the expert considered that the value of the property was EUR
258,000. In both reports the expert based his assessment on the
assumption that the plot would be purchased by an investor wishing to
demolish the existing house and erect a five-storey building of
offices and apartments on the land. The expert also assumed that the
hypothetical investor would agree to certain contractual terms, such
as a 30% owner's share in the new building.
- The
applicant also claimed EUR 10,000 in respect of non-pecuniary damage.
- The
Government did not comment.
- In
respect of pecuniary damage, applying the approach defined above (see
paragraph 11 above), the Court must determine a sum reasonably
related to the market value of the property taken from the applicant
in violation of Article 1 of Protocol No. 1.
- It
notes that the assessment offered by the applicant is not fully
reliable as it is based on speculation about possible future events.
In addition, the applicant has not shown that the relevant
authorities would authorise the construction of a five-storey
building on the plot at issue. Furthermore, it does not appear that
real-estate prices in Stara Zagora have increased by 60% between
February 2006 and August 2007, as the applicant appears to suggest.
-
Having regard to the information at its disposal about the
real-estate market in the town of Stara Zagora and the circumstances
of the case, the Court considers that the sum of EUR 80,000
represents compensation reasonably related to the market value of the
property.
- As
regards non-pecuniary damage, having regard to the circumstances of
the case and deciding on an equitable basis, the Court awards EUR
3,000 to the applicant.
(b) The case of Eneva and Dobrev
- The
property taken from the applicants was a three-room apartment of 93
sq. m on the third floor of a three-storey building constructed in
1938 in the centre of Varna.
- The
applicants claimed the equivalent of approximately EUR 140,850
in respect of the difference between the market value of the
apartment and the sum (EUR 18,800) they had obtained in 2004 through
the sale of their compensation bonds. They submitted two valuation
reports by an expert commissioned by them. In his first report, dated
February 2006, the expert stated that the market value of the
apartment was EUR 127,385. In his second report, dated August 2007,
the expert considered that the value of the property was EUR 159,650.
- The
applicants also claimed EUR 5,000 in respect of improvements they had
made in the apartment between 1964 and 1999 (such as renovation of
the electrical and sewage systems and tiling), EUR 2,000 in respect
of furniture damaged when they had moved out and EUR 26,900 for loss
of opportunities as the applicants had been unable to use the
apartment since 1999.
- The
applicants also claimed EUR 20,000 in respect of non-pecuniary
damage.
- The
Government did not comment.
- In
respect of pecuniary damage, applying the approach defined above (see
paragraph 11 above), the Court must determine a sum reasonably
related to the market value of the property taken from the applicants
in violation of Article 1 of Protocol No. 1.
- In
determining the amount that would represent compensation reasonably
related to the market value of the property, the Court notes that
according to the assessment made by a certified expert in August
2001, the market value of the apartment at issue at that time was the
equivalent of approximately EUR 36,500, whereas according to the
valuation report submitted by the applicants its market value was
EUR 127,385 in February 2006 and EUR 159,650 in August 2007.
While it is true that real-estate prices in Bulgaria increased
significantly between 2001 and 2007, the Court considers that the
figures put forward by the applicants are excessive and not fully
reliable.
- Having
regard to information at its disposal about the real-estate market in
the town of Varna and the fact that in 2004 the applicants obtained
partial compensation in the amount of EUR 18,800, the Court awards
the applicants EUR 50,000 in respect of pecuniary damage.
- As
regards non-pecuniary damage, having regard to the circumstances of
the case and deciding on an equitable basis, the Court awards EUR
3,000 to each of the applicants (EUR 6,000 in total).
(c) The case of Bogdanovi
- The
property the applicants lost was a two-room apartment of 92 sq. m
on the third floor of a three-storey building in the centre of
Burgas. The building was constructed in 1940.
- The
applicants claimed EUR 64,200 in respect of the difference between
the market value of the apartment and the amount (EUR 5,800) they had
obtained in 2001 when they had sold their compensation bonds. The
applicants submitted two valuation reports by an expert commissioned
by them. In his first report, dated July 2005, the expert stated that
the value of the apartment was EUR 58,000. In his second report,
dated August 2007, the expert considered that the value of the
property was EUR 70,000.
- The
applicants claimed, in addition, EUR 5,400 in respect of improvements
they had made in the apartment, EUR 5,700 in respect of the rent they
had had to pay to the former owners (see paragraph 80 of the
principal judgment) and EUR 2,800 in respect of the renovation
of the apartment the applicants had moved into in November 2005,
losses related to the removal of their personal effects and expenses
incurred in the domestic judicial proceedings. The applicants also
claimed EUR 25,000 in respect of non-pecuniary damage.
- The
total amount claimed in respect of pecuniary and non-pecuniary damage
was thus approximately EUR 108,900. The Government did not comment.
- The
Court notes that the case of Bogdanovi falls in the category
of cases where it is appropriate, in accordance with the approach set
out above (see paragraph 10 above), to fix a lump sum in respect of
pecuniary and non-pecuniary damage. That would secure adequate
compensation in the circumstances of the case.
- To
determine that amount, the Court observes that in 2001 a certified
expert assessed the market value of the applicants' apartment at the
equivalent of approximately EUR 32,500 (see paragraph 82 of the
principal judgment) but also takes note of the increase in real
estate prices after 2001 and the valuation reports submitted by the
applicants. The fact that the applicants were not provided with
municipal housing and suffered additional hardship must also be taken
into consideration (see paragraphs 80, 81 and 83 of the principal
judgment).
- Having
regard to the circumstances of the case, the information at its
disposal about the real-estate market in the town of Burgas and the
fact that in 2001 the applicants obtained partial compensation in the
amount of EUR 5,800, the Court awards the applicants jointly EUR
47,000 in respect of all pecuniary and non-pecuniary damage.
(d) The case of Tzilevi
- The
property the applicants lost was a two-room apartment measuring 60
sq. m on the third floor of a five-storey building in the centre of
Sofia.
- The
applicants claimed EUR 77,050 in respect of the market value of the
apartment. They submitted two valuation reports by an expert
appointed by them. In his first report, dated February 2006, the
expert stated that the value of the apartment was EUR 52,220. In his
second report, dated September 2007, the expert considered that the
value of the property was EUR 76,180.
- The
applicants stated that this amount should be awarded to them in full
as they had not received any compensation from the State. In their
view the fact that they had failed to take advantage of the bonds
compensation scheme (see paragraph 94 of the principal judgment)
should not be held against them. In particular, the applicants'
decision to forgo this possibility was understandable as they were
entitled to full compensation, whereas at the relevant time bonds
could secure not more than 10% or 15% of the value of the property.
Furthermore, the respondent Government were under a duty to provide
full compensation and the applicants would not unfairly enrich
themselves if they were to receive an award reflecting the full value
of the apartment.
- The
applicants also claimed EUR 3,893, the amount they might be
ordered to pay the persons restored as the owners for use of the
apartment (see paragraph 93 of the principal judgment). The
applicants also claimed EUR 30,000 for the pain and suffering caused
to them.
- The
total amount claimed in respect of pecuniary and non-pecuniary damage
was thus EUR 110,943.
- The
Government did not comment.
- The
Court observes at the outset that in the principal judgment it stated
that the applicants' failure to use the bonds compensation scheme
would have to be taken into consideration under Article 41 of the
Convention (see paragraph 227 of the principal judgment).
- It
notes that had the applicants made use of that scheme, they could
have obtained between 15% and 25% of the value of the apartment. At
the relevant time, the bonds scheme did not afford the applicants a
clear and foreseeable possibility to obtain adequate compensation
(see paragraphs 136, 226 and 227 of the principal judgment).
- The
Court reiterates that it is empowered to afford just satisfaction
under Article 41 of the Convention where national law does not allow
– or allows merely partial – reparation to be made. In
the specific circumstances obtaining in the Tzilevi case,
having regard to the unavailability of adequate compensation at the
relevant time, the Court considers that the applicants' failure to
seek the partial compensation available to them should not result in
a refusal to award them just satisfaction. This conclusion is without
prejudice to the Court's approach in other situations where –
unlike Tzilevi – the bonds compensation scheme or other
redress may prove to be adequate (see, for example, the developments
described in paragraphs 137 and 139 of the principal judgment).
- The
Court considers, however, that it must apply an appropriate reduction
of the just satisfaction award on account of the applicants' failure
to make use of the possibility to obtain partial compensation. It
accepts that the reduction must be modest, having regard to the fact
that the relevant national legislation on compensation was subject to
frequent amendments in contradictory directions and was thus
unpredictable and generated legal uncertainty (see paragraphs 165 and
191 of the principal judgment).
- Applying
the approach set out above (see paragraphs 10 and 43-45 above), the
Court finds it appropriate to fix a lump sum in respect of pecuniary
and non-pecuniary damage which would secure adequate compensation in
the circumstances of the case and apply an appropriate reduction.
- To
determine the amount to be awarded, the Court notes that in 2001 a
certified expert assessed the market value of the apartment at EUR
23,000 (see paragraph 94 of the principal judgment) and that in
February 2006 and September 2007 an expert commissioned by the
applicants estimated its market value at EUR 56,470 and EUR 76,180
respectively. The fact that the applicants were not provided with
municipal housing and suffered additional hardship must also be taken
into consideration (see paragraphs 92 and 93 of the principal
judgment).
- Having
regard to the above, all the circumstances of the case and
information at its disposal about the real-estate market in Sofia,
the Court awards the applicants EUR 41,000 in respect of pecuniary
and non-pecuniary damage.
B. Costs
- Ms
Todorova claimed EUR 128 for the cost of the second report on the
value of the property (see paragraph 14 above). Mr Tzilev and
Ms Tzileva claimed jointly EUR 210 in legal fees for three hours
of legal work on the just-satisfaction procedure at the hourly rate
of EUR 70. The remaining applicants did not submit claims for costs
incurred after the delivery of the principal judgment.
- The
Government did not comment.
- The
Court awards EUR 128 to Ms Todorova and EUR 210 jointly to Mr Tzilev
and Ms Tzileva.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds
(a) that
the respondent State is to pay the respective 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 (BGN) at
the rate applicable at the date of settlement, plus any tax that may
be chargeable to the applicants:
(i) in
the case of Todorova (application no. 48380/99), EUR 80,000
(eighty thousand euros) in respect of pecuniary damage, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage and EUR 128
(one hundred twenty eight euros) in respect of costs and expenses;
(ii) in
the case of Eneva and Dobrev (application no. 51362/99),
EUR 50,000 (fifty thousand euros) in respect of pecuniary damage
and EUR 6,000 (six thousand euros) in respect of non-pecuniary
damage;
(iii) in
the case of Bogdanovi (application no. 60036/00), EUR 47,000
(forty-seven thousand euros) in respect of pecuniary and
non-pecuniary damage;
(iv) in
the case of Tzilevi (application no. 73465/01), EUR 41,000
(forty one thousand euros) in respect of pecuniary and non-pecuniary
damage and EUR 210 (two hundred and ten euros) in respect of costs
and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 24 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
