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FIFTH
SECTION
CASE OF PESHEVI v. BULGARIA
(Application
no. 29722/04)
JUDGMENT
STRASBOURG
2 July
2009
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 Peshevi v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
Pavlina Panova, ad hoc
judge,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 9 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29722/04) 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 two Bulgarian nationals, Mr Nikola Kotzev
Peshev and Mrs Roza Grigorova Pesheva (“the applicants”),
on 29 July 2004.
- The
applicants were represented by Mr S. Andreev, a lawyer practising in
Sofia. The Bulgarian Government (“the Government”) were
represented by their Agent, Mrs S. Atanasova of the Ministry of
Justice.
- The applicants alleged that they
had been deprived of their property in violation of Article 1 of
Protocol No. 1 and Article 6 of the Convention.
- On 25 February 2008 the President of the Fifth Section
decided to give notice of the application to the Government. It was
also decided to examine the merits of the application at the same
time as its admissibility (Article 29 § 3).
- Judge Kalaydjieva, the judge elected in respect of
Bulgaria, withdrew from sitting in the case (Rule 28 of the Rules of
Court). On 30 January 2009 the Government, pursuant to Rule 29 §
1 (a), informed the Court that they had appointed Ms Pavlina Panova
as an ad hoc judge in her stead.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1942 and 1947 respectively and live in Sofia.
- In April 1979 the two applicants
and the second applicant's mother bought from the Sofia municipality
a four-room apartment of 121 square metres in the centre of the city.
In September 1979 the second applicant's mother died; her heirs were
the second applicant and her brother. In 1993 the second applicant's
brother died; the second applicant was his heir.
- The apartment had become State
property by virtue of the nationalisations carried out by the
communist regime in Bulgaria after 1947. In February 1993 the heir of
its former pre-nationalisation owner brought proceedings under
section 7 of the Restitution Law seeking the nullification of the
applicants' title and the restoration of her own title.
- The proceedings ended by a final
judgment of the Supreme Court of Cassation of 16 February 2004. The
courts found that the applicants' title was null and void on the
ground that the 1979 contract had not been signed by the mayor but by
one of his deputies. Although the mayor had been entitled to
authorise another person to sign such contracts, he had made no
written and explicit authorisation. Furthermore, the initial approval
of the sale in 1977 had not been signed by the mayor and had not also
been confirmed by the mayor of the region; instead, it had once again
been their deputies who had signed.
- Later in 2004 the applicants
attempted unsuccessfully to have the proceedings reopened.
- Immediately after the final
judgment in their case, it became possible for the applicants to
obtain compensation from the State, in the form of bonds which could
be used in privatisation tenders or sold to brokers. The applicants
did not avail themselves of this opportunity.
- On
an unspecified date the applicants vacated the apartment. In July
2005 they were granted the tenancy of a four-room municipal
apartment, which they share with their daughter and her husband and
son.
II. RELEVANT BACKGROUND FACTS, DOMESTIC LAW AND PRACTICE
- The
relevant background facts and domestic law and practice have been
summarised in the Court's judgment in the case of Velikovi and
Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99,
51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicants complained under Article 1 of Protocol No. 1 that they had
been deprived of their property arbitrarily, through no fault of
their own and without adequate compensation. Article 1 of Protocol
No. 1 reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government did not comment.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes that the present complaint concerns the same legislation
and issues as in Velikovi and Others, cited above.
- The
events complained of constituted an interference with the applicants'
property rights.
- The
interference was based on the relevant law and pursued an important
aim in the public interest, namely to restore justice and respect for
the rule of law. As in Velikovi and Others (cited above, §§
162-176), the Court considers that in the particular circumstances
the question whether the relevant law was sufficiently clear and
foreseeable cannot be separated from the issue of proportionality.
- Applying the criteria set out in Velikovi and
Others (cited above, §§ 183-192), the Court notes
that the applicants' title was declared null and void and they were
deprived of their property on the ground that in 1977 and 1979
relevant documents had been signed by the deputies to the officials
in whom the relevant power had been vested. These deficiencies were
clearly attributable to omissions on the part of the local
administration, not the applicants.
- The
Court considers therefore that the present case is similar to those
of Bogdanovi and Tzilevi, examined in Velikovi and
Others (see § 220 and § 224 of the judgment, cited
above), where it held that in such cases the fair balance required by
Article 1 of Protocol No. 1 could not be achieved without adequate
compensation.
- The
question thus arises whether adequate compensation was provided to
the applicants.
- Following
the final judgment in their case they could have applied for
compensation bonds but failed to do so. However, as the Court found
in Velikovi and Others, cited above, § 226, and in a
number of subsequent cases (see Koprinarovi v. Bulgaria, no.
57176/00, § 31, 15 January 2009; Dimitar and Anka Dimitrovi
v. Bulgaria, no. 56753/00, § 31, 12 February 2009; and
Vladimirova and Others v. Bulgaria, no. 42617/02, § 40,
26 February 2009), owing to the instability of bond prices and
frequent changes in the relevant rules, it could not be considered
that at the time the bond scheme secured adequate compensation.
Therefore, the applicants' failure to use the bond compensation
scheme must be taken in consideration under Article 41, but cannot
affect decisively the outcome of the Article 1 Protocol No. 1
complaint.
- In
these circumstances, the Court finds that no clear, timely and
foreseeable opportunity to obtain adequate compensation was available
to the applicants.
- It
follows that the fair balance between the public interest and the
need to protect their rights was not achieved. There has therefore
been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1 that in their case the
domestic courts had decided arbitrarily.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court has examined above the applicants' complaint that the judicial
decisions in their case resulted in arbitrary deprivation of property
contrary to Article 1 of Protocol No. 1. Therefore, it considers that
no separate issue arises under Article 6 § 1.
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
- The
applicants submitted a valuation report of March 2008, by an expert
commissioned by them, assessing the value of the apartment they had
lost at 618,500 Bulgarian levs (BGN), the equivalent of approximately
317,000 euros (EUR), and claimed this sum in respect of pecuniary
damage. In respect of non-pecuniary damage, they claimed BGN 100,000,
the equivalent of EUR 51,200.
- The
Government considered these claims to be excessive. They pointed out
that the applicants had failed to make use of the bond compensation
scheme and that they had been granted the tenancy of a
municipally-owned apartment.
- Applying
the approach set out in similar cases and in view of the nature of
the violation found, the Court finds it appropriate to fix a lump sum
in respect of pecuniary and non-pecuniary damage with reference to
the value of the property taken away from the applicants and all
other relevant circumstances (see Todorova
and Others v. Bulgaria (just
satisfaction), nos. 48380/99,
51362/99, 60036/00 and 73465/01, §§ 10 and 47, 24 April
2008). The Court will also take into account the applicants' failure
to use the bond compensation scheme (see paragraph 23 above and
Todorova and Others,
cited above, §§ 44-46).
- Having regard to the above, to
all the circumstances of the case and to information at its disposal
about real property prices in Sofia, the Court awards the applicants
102,000 EUR in respect of pecuniary and non pecuniary damage.
B. Costs and expenses
- Without
indicating exact sums, the applicants claimed reimbursement of legal
fees and “procedural expenses”.
- The
Government urged the Court to dismiss the claim for “procedural
expenses”.
- The
Court notes that the applicants' claim for costs and expenses is not
itemised and that the applicants have not provided any relevant
supporting documents. Therefore, the Court finds that the claim for
costs and expenses must be dismissed in whole.
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
1. Declares the application admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds that no separate issue arises under
Article 6 § 1 of the Convention;
- 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, EUR 102,000 (one hundred and
two thousand euros), plus any tax that may be chargeable, in respect
of pecuniary and non-pecuniary damage, 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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 2 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
