BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF KIROVA AND OTHERS v. BULGARIA
(Application
no. 31836/04)
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 Kirova and
Others v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark
Villiger,
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. 31836/04) 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 three Bulgarian nationals, Mrs Todorka
Atanasova Kirova, Mr Atanas Hristov Kovachev and Mrs Kristina
Hristova Kovacheva (“the applicants”), on 23 July 2004.
- The
applicants were represented by Mrs S. Margaritova-Vuchkova, a lawyer
practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Mrs M. Dimova of
the Ministry of Justice.
- The
first applicant alleged, in particular, that she had been deprived of
her property in violation of Article 1 of Protocol No. 1 to the
Convention. The remaining applicants alleged violations of Article 8
of the Convention.
- On
3 April 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).
- Zdravka
Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from
sitting in the case. On 30 January 2009 the Government appointed in
her stead Pavlina Panova as an ad hoc judge (Article 27 § 2 of
the Convention and Rule 29 § 1 of the Rules of the Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1953, 1975 and 1974 respectively and live in
Sofia. The first applicant is the mother of the second and the third
applicants.
- In
1984 the first applicant bought from the Sofia municipality a
two room apartment of 61 square metres.
- The
apartment had been confiscated by the State from Mr S.M. who in 1983
had been convicted of espionage and treason and sentenced to
imprisonment and confiscation of his property. In a judgment of 20
April 1990 the Supreme Court quashed Mr S.M.'s conviction finding
that the courts had breached the relevant procedural rules.
- In
1997 Mr S.M. brought rei vindicatio proceedings against the
first applicant.
- In
a final judgment of 16 April 2004 the Supreme Court of Cassation
allowed the claim. It found that the contract by virtue of which the
first applicant had acquired the flat at issue in 1984 had not been
signed by the mayor, as required by law, but by another official in
the municipality. This rendered the first applicant's title null and
void ab initio. She could not have acquired the apartment
through adverse possession either as prior to
1996 State property could not be acquired in this way. The
apartment had therefore remained State-owned and the judgment of 20
April 1990 had had the effect of restoring Mr S.M.'s title over it.
- In
August 2004 the applicants, who all lived in the apartment, vacated
it. The first and second applicants rented another apartment and
moved in there.
- In
April 2004 they applied for the tenancy of a municipal apartment and
in June 2007 were offered a two-room flat in the outskirts of the
city. They refused the offer.
- In
May 2004 the first applicant applied to receive compensation bonds
under the 1997 Law on Compensation for Owners of Nationalised Real
Property. According to the latest information available to the Court,
as of October 2008, the regional governor had not yet decided on the
request.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. General background and legal provisions concerning
restitution of nationalised property
- These
have been outlined 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.
- As
regards compensation through housing bonds, it was provided for in
the Law on Compensation for Owners of Nationalised Real Property of
1997 (“the Compensation Law”). By section 5(3) of this
Law, persons who had lost their dwellings pursuant to section 7 of
the Restitution Law could also receive such bonds.
B. Nullity of contracts and adverse possession
- Under
Bulgarian civil law a contract which is null and void is deemed to
have never given rise to any rights and obligations of the parties.
There is no time limit for declaring a contract null and void.
- Prior
to 1996 State property could not be acquired through adverse
possession.
C. Law on the Amnesty and the Return of Confiscated
Property 1991 (“the Amnesty Law”) and Law on the
Enforcement of Sentences 1969
- A
number of offences of a political character, including espionage and
treason, committed prior to December 1989, were amnestied by virtue
of the Amnesty Law. It provided also that any property confiscated
from persons convicted for these offences was to be returned,
provided that it was still owned by the State; where it had become
private property, the interested persons were to receive monetary
compensation or other property.
- The
Law on the Enforcement of Sentences 1969 provides that where a
confiscation has been enforced and subsequently quashed, any property
confiscated is to be returned (section 151); where it is not possible
to return it, the interested persons are to receive its market value.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
first applicant complained under Article 1 of Protocol No. 1 that she
had been deprived of her property arbitrarily, through no fault of
her own and without adequate compensation.
- Article
1 of Protocol No. 1 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.”
- The
Government contended that the first applicant had failed to exhaust
domestic remedies, as she could have asked to be provided with the
tenancy of another municipal apartment and because the regional
governor had not yet decided on her application for compensation
bonds. The Government further argued that the first applicant's
deprivation of her possessions had not been arbitrary but in
accordance with the law for the achievement of a legitimate aim. In
their view, a fair balance had been achieved as the first applicant
was entitled to receive bonds under the Compensation Law.
- The
first applicant contested these arguments. She pointed out that she
had refused the tenancy of the municipal apartment offered to her
because it had been in the outskirts of Sofia and not convenient for
her and the second applicant. She considered that she would most
likely receive no compensation under the Compensation Law as she was
not eligible.
- The
first applicant also argued that under the Amnesty Law 1991 and the
Law on the Enforcement of Sentences (see paragraphs 18-19 above) Mr
S.M. should have received other property or monetary compensation and
that, therefore, her flat should not have been taken from her.
A. Admissibility
- The
Court finds that the question of exhaustion of domestic remedies
raised by the Government (see paragraph 22 above) relates to the
merits of the present complaint. Therefore, to
avoid prejudging the latter, both questions should be examined
together. Accordingly, the Court holds that the question of
exhaustion of domestic remedies should be joined to the merits.
- The
Court further notes that the complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention and not
inadmissible on any other ground. It must therefore be declared
admissible.
B. Merits
- The
Court considers that the facts complained of constituted an
interference with the first applicant's property rights and fall to
be examined under the second sentence of the first paragraph of
Article 1 of Protocol No. 1 as a deprivation of property –
as in other similar cases which concerned the effects on third
persons of the restitution carried out in Bulgaria after the fall of
communism (see Velikovi and Others v. Bulgaria, cited above,
§§ 159-161, and Manolov and
Racheva-Manolova v. Bulgaria, no.
54252/00, § 35, 11 December 2008).
- The
Court must examine, therefore, whether the deprivation of property at
issue was lawful and in the public interest and whether the
authorities struck a fair balance between the demands of the general
interest of the community and the requirements of the protection of
the individual's fundamental rights.
- The
Court considers that the interference was provided for by law as the
domestic courts applied existing rules of civil law on the nullity of
contracts (see paragraphs 10 and 16 above). Furthermore, it is of the
view that although the deprivation of property did not result
directly from the application of special legislation on the
restitution of nationalised property, as in the case of Velikovi
and Others, cited above, it still pursued the legitimate aim of
undoing wrongs of the communist regime (see paragraph 8 above).
- The
Court is mindful of the differences between the cases examined in
Velikovi and Others, cited above, which concerned the
application of special restitution legislation to formerly
nationalised property, and the present case where the first applicant
lost her apartment as a result of the application of general rules on
the nullity of contracts, as interpreted by the domestic courts in
the specific situation that occurred in the present case. Despite
this difference, the Court is of the view that the measures applied
were similar and that in assessing whether in the present case the
authorities struck a fair balance between the demands of the general
interest and the requirements of the protection of the first
applicant's fundamental rights it is thus appropriate to apply the
criteria developed in its judgment in Velikovi and Others
(see §§ 177-192). The Court recalls that it adopted a
similar approach in the more recent case of Maslenkovi v.
Bulgaria, no. 50954/99, § 34, 8 November 2007.
- Applying
the said criteria, the Court notes that the first applicant's title
was found to be null and void and she was deprived of her property on
the ground that the contract whereby she had acquired the apartment
in 1984 had not been signed by the official in whom the relevant
power was vested (see paragraph 10 above). This error was
attributable to omissions on the part of the authorities, not the
first applicant.
- Moreover,
the Court notes that the law, as interpreted by the domestic courts,
did not restrict by any time-limit Mr S.M.'s right to seek the
nullification of the first applicant's title (see paragraph 16
above). In fact, he brought an action against her in 1997, seven
years after the Supreme Court judgment quashing the confiscation of
his property. The Court is of the view that this unlimited
possibility to challenge the validity of title to property acquired
from the State cannot be reconciled with the principle of legal
certainty.
- Therefore,
the Court is of the view that the present case is similar to the case
of Todorova, examined in Velikovi and Others (cited
above, §§ 236-242), where it found that the
authorities had failed to set clear boundaries on the recovery of
property from bone fide post-nationalisation owners and that
their approach had generated legal uncertainty. In Todorova,
the Court found that the principle of proportionality required that
compensation reasonably related to the market value of the property
be paid to the applicant (see Velikovi and Others, cited
above, § 238).
- However,
in the present case the first applicant did not receive any
compensation. The Court does not accept the Government's arguments
that she could receive compensation as she was entitled to receive
bonds under the Compensation Law and could also seek to be provided
with the tenancy of a municipally-owned apartment (see paragraph 22
above). The Court notes that section 5(3) of the Compensation Law
does not entitle persons in the first applicant's position to receive
bonds as this provision only concerns persons who have lost their
dwellings pursuant to section 7 of the Restitution Law (see paragraph
15 above). The Government have not provided any examples of court
decisions where this provision was applied in cases such as the first
applicant's and have not referred to any other provision entitling
her to receive bonds. As to their argument that she could seek the
tenancy of a municipal flat, the Court notes that this could not make
good the loss of her apartment.
- As
the first applicant did not have any means to obtain compensation,
the Government's objection concerning non-exhaustion of domestic
remedies, which was joined to the merits (see paragraph 25 above),
must be rejected.
- The
Court thus concludes that the fair balance between the public
interest and the need to protect the first applicant's right to
property was not achieved in the case. There has therefore been a
violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATIONS OF ARTICLES 8 AND 14 OF THE
CONVENTION IN RESPECT OF THE FIRST APPLICANT
- The
first applicant complained under Article 8 of the Convention that she
had been deprived of her home and, in addition, that this had
represented an interference with her private life and family life.
She also complained under Article 14 of the Convention that the
legislation applied in her case benefitted the State to the detriment
of good faith buyers of State property like herself and that she had
been placed in a less advantageous position than individuals buying
State property after 1996 when it had become possible to acquire such
property by adverse possession.
A. Admissibility
- Having
regard to its conclusion in paragraph 26 above, the Court considers
that these complaints must be declared admissible.
B. Merits
- The
Court has examined above the first applicant's complaint that she had
been arbitrarily deprived of her property. In view of its finding on
that point, the Court considers that no separate issues arise under
Articles 8 and 14 of the Convention (see, mutatis mutandis,
Velikovi and Others, cited above, §§ 250-52).
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN
RESPECT OF THE SECOND AND THIRD APPLICANTS
- The
second and third applicants also complained that they had been
deprived of their home and that the authorities had interfered with
their private and family lives.
- The
Court has examined these complaints. However, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, it finds that they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that this part of the
application is manifestly ill founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
IV. 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 Court considers it appropriate to adopt the
approach set out in other similar cases (see Todorova and Others
v. Bulgaria (just satisfaction), nos.
48380/99, 51362/99, 60036/00 and 73465/01, 24 April 2008), and in
particular, the approach followed in the case of Todorova (see
paragraphs 11 and 13-20 of the above cited judgment).
1. Pecuniary damage
- The
first applicant requested that the State be ordered to transfer to
her the property of an apartment similar to the one she had lost.
Failing that, she claimed 184,600 Bulgarian levs (the equivalent of
approximately EUR 95,000) for the value of the apartment. She
submitted a valuation report of October 2008 by an expert
commissioned by her, assessing the value at that level. She also
claimed EUR 9,960 for rent paid by her and the second applicant from
August 2004 to September 2008. In support of this claim she presented
the relevant receipts.
- The
Government did not comment.
- The
Court, having regard to the circumstances of the case and to
information at its disposal about real-estate prices in Sofia, awards
the first applicant EUR 73,000 for pecuniary damage.
2. Non-pecuniary damage
- The
first applicant claimed EUR 11,000.
- The
Government did not comment.
- Having
regard to the circumstances of the case and deciding on an equitable
basis, the Court awards the first applicant EUR 4,000 under this
head.
B. Costs and expenses
- The applicants claimed EUR 2,010
for thirty-three and a half hours of legal work by her lawyer, Mrs S.
Margaritova-Vuchkova, at an hourly rate of EUR 60, after the
communication of the application. In support of this claim they
presented a contract for legal representation and a time sheet.
They requested that any sum awarded under this head be paid directly
to Mrs Margaritova-Vuchkova.
- The applicants claimed another
250 Bulgarian levs (BGN), the equivalent of EUR 130, already paid by
them, for legal work by Mrs Margaritova-Vuchkova. They also
claimed BGN 600 (the equivalent of EUR 308) for legal fees
charged by the lawyer who had prepared the initial application to the
Court, and BGN 378.50 (the equivalent of EUR 194) for postage and
translation. In support of these claims they presented the relevant
receipts.
- The Government did not comment.
- 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.
- In respect of legal fees charged
by Mrs Margaritova-Vuchkova, the Court, considering that she was not
involved in the initial stages of the proceedings and that part of
the complaints have been rejected, awards to the first applicant EUR
1,000 under this head. As Mrs Margaritova Vuchkova has
already received EUR 130 from the applicants, EUR 870 of the sum
awarded is to be paid directly into her bank account.
- In respect of the remaining
legal fees and other costs and expenses, the Court, having regard to
the information in its possession, finds that they were actually and
necessarily incurred. As to quantum, considering that some of the
complaints have been rejected, it finds it reasonable to award to the
first applicant EUR 500.
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
- Decides to join to the merits the question of
the exhaustion of domestic remedies;
- Declares
the complaints of the first applicant admissible and the complaints
of the second and third applicants inadmissible;
- Holds that, in respect of the first applicant,
there has been a violation of Article 1 of Protocol No. 1 to the
Convention and accordingly dismisses the Government's
preliminary objection based on non-exhaustion of domestic remedies;
- Holds that, in respect of the first applicant,
no separate issues arise under Articles 8 and 14 of the Convention;
- Holds
(a) that
the respondent State is to pay the first applicant, 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
73,000 (seventy-three thousand euros) in respect of pecuniary damage
and EUR 4,000 (four thousand euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable;
(ii) EUR
1,500 (one thousand five hundred euros), plus any tax that may be
chargeable to the first applicant, in respect of costs and expenses,
EUR 870 (eight hundred and seventy euros) of which is to be paid
directly into the account of the applicants' legal representative;
(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 2 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
