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FIFTH
SECTION
CASE OF KOPRINAROVI v. BULGARIA
(Application
no. 57176/00)
JUDGMENT
STRASBOURG
15
January 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 Koprinarovi 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,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 8 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 57176/00) 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, Mrs Evgenia Petrova
Koprinarova and her daughter Mrs Zinaida Krasteva Koprinarova (“the
applicants”), on 15 November 1999.
- The
applicants were represented by Mr D. Marinov, a lawyer practising in
Plovdiv. The Bulgarian Government (“the Government”) were
represented by their Agent, Mrs M. Dimova.
- The
applicants alleged, in particular, that they have been deprived of
their property in violation of Article 1 of Protocol No. 1.
- On
18 September 2007 the Court declared the application partly
inadmissible and decided to communicate the complaint concerning the
alleged deprivation of property to the Government. It 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 1 October
2008, the Government, pursuant to Rule 29 § 1 (a), informed the
Court that they had appointed in her stead another elected judge,
namely Judge Lazarova Trajkovska.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant was born in 1920. She died on 30 April 2006. The
second applicant, her daughter and only heir, expressed her wish to
pursue the proceedings in her own name and in the name of her
deceased mother. The second applicant was born in 1945 and lives in
Sofia.
- In 1958, Mr Koprinarov, whose
heirs the applicants are, purchased from the State one storey of a
three-storey house in Plovdiv. The property’s surface area was
109 square metres. The property had belonged to a private person
until the nationalisations carried out by the communist regime in
Bulgaria in 1947 and for several years afterwards.
- After the adoption of the
Restitution Law (ЗВСОНИ)
in 1992, the former pre-nationalisation owners brought proceedings
under section 7 of that law against the applicants, seeking the
nullification of the applicants’ title and the restoration of
their property.
- The case went twice through the
court system and the Supreme Court of Cassation gave final judgment
on 26 July 1999.
- The courts examined and
dismissed a number of allegations made by the plaintiffs in respect
of alleged breaches of the housing regulations and other legal
provisions as in force in 1958. The courts found, however, that a
relevant document in the file concerning the 1958 transaction –
approval by the Minister of Public Construction – had been
signed by a Head of Department in the Ministry, not by the Minister
personally. It followed that the person from whom the applicants had
inherited had obtained the property unlawfully.
The applicants’ title was
therefore null and void and they were ordered to vacate the property.
- The applicants were evicted from
the property on 17 September 2001. The eviction was conducted in the
presence of special counsel for the applicants, appointed by the
relevant court on the basis that the applicants had not been found at
their address and the summonses sent had been repeatedly returned
undelivered. The applicants appealed against the acts of the
enforcement judge arguing, inter
alia, that they had never changed
their address and that their belongings had been damaged. The appeals
were unsuccessful. The courts noted that the applicants had not been
found at the address they had indicated and that therefore there had
not been procedural violations. Also, the applicants had failed to
collect their belongings for more than a month and had thus been
responsible for the damage complained of.
- Following their eviction, the
applicants wrote repeatedly to the municipal authorities asking for
compensation in the form of a municipal apartment or land but did not
receive a reply.
- On an unspecified date in 1999 the applicants brought
an action against the Plovdiv Municipality and the Ministry of Public
Construction and Regional Development seeking compensation for the
fact that they had lost their property owing to an administrative
error committed by the defendant bodies in 1958. They claimed the
current value of the apartment, estimated at 54,000 Bulgarian levs
(BGN) (27,000 euros (EUR)). The claim was rejected by final judgment
of the Supreme Court of Cassation of 27 June 2006 on the grounds
that the relevant legislation – the State Responsibility for
Damage Act 1989 – did not apply retrospectively and that the
law provided for a special compensation scheme by bonds in cases like
that of the applicants.
- In 2000, 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 applied for compensation by bonds only
in July 2006, when their claim for damage was rejected. On 16 August
2007 the regional governor declared their request inadmissible for
having been submitted outside the three-month time-limit of the
adoption of that provision in January 2000. The governor pointed that
recent amendments of the restitution law (see paragraph 18 below) had
not provided for a new time-limit.
- Since an unspecified date the applicants have lived in
Sofia, in service accommodation provided by the second applicant’s
husband’s office.
II. RELEVANT 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.
- Shortly after the adoption of that judgment, on 8 May
2007 the Government published regulations implementing section 7(3)
of the Restitution law (State Gazette no. 37 of May 2007). The
regulations enable persons currently in possession of housing
compensation bonds to obtain payment at face value from the Ministry
of Finance.
THE LAW
I. PRELIMINARY OBSERVATION
- The
Court notes at the outset that the first applicant died in 2006 and
that the second applicant, her daughter, expressed the wish to pursue
the application also on her behalf. In similar cases in which an
applicant has died in the course of the proceedings the Court has
taken into account the statements of the applicant’s heirs who
have expressed a wish to pursue the proceedings before it and the
Court sees no reason to hold otherwise in the present case (see,
among others, Kirilova and Others v. Bulgaria, nos. 42908/98,
44038/98, 44816/98 and 7319/02, § 85, 9 June 2005).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.
1 TO THE CONVENTION
- The
applicants complained that they had been deprived of their property
in violation of Article 1 of Protocol No. 1 to
the Convention, which 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 disagreed.
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
applicants stated that they had bought their apartment in good faith
and had not been responsible for the administrative omission that led
to the nullification of their title forty years later. They
maintained that no adequate compensation had been available to them
for the deprivation of their property. They stressed that the
compensation bonds available to them in 2000 were traded at 10% of
their value at that time and that the possibility of obtaining such
bonds was no longer open to them after the law was amended in 2006.
They also submitted that, contrary to what had been suggested by the
Government, they had not been entitled to rent a municipal apartment,
such apartments being available only for persons in need of housing
due to social or health problems.
- The
Government stated that the restitution laws
adopted after the fall of communism aimed at restoring justice. In
the applicants’ case, the courts had applied the relevant law
correctly. The requisite fair balance had not been upset because the
applicants had been entitled to the tenancy of a municipal apartment
and to compensation by bonds which, following the 2006 amendment of
the law, could have been paid at face value. The applicants had
failed to introduce a timely request to obtain such compensation.
- The
Court notes that the present case concerns the same legislation and
issues as in Velikovi and Others,
cited above.
- The
facts complained of undoubtedly constituted an interference
with the applicants’ 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.
- The
Court must examine, therefore, whether the deprivation of property at
issue was lawful, was in the public interest and 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 notes that the
interference was based on the relevant law and pursued an important
aim in the public interest – to restore justice and respect for
the rule of law. As in Velikovi
and Others (cited above, §§ 162 176), it
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.
29. 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 sole ground
that in 1958 the administration had failed to comply with an
administrative formality – a relevant document had been signed
by a head of department instead of the relevant Minister. The error
was clearly imputable to the State, not to the applicants or the
person from whom they had inherited. Moreover, it was not alleged
that in 1958 Mr Koprinarov had had any opportunity to interfere with
the administrative formalities.
- The
Court considers that the present case is therefore similar to those
of Bogdanovi
and Tzilevi,
examined in its Velikovi and Others
judgment (see § 220 and § 224 of that judgment, cited
above), where it held that in such cases the fair balance required by
Article 1 of Protocol No. 1 to the Convention could not be achieved
without adequate compensation.
- The
Court notes that the applicants have not received compensation.
However, as in one of the applications examined in Velikovi
and Others (see §§
226-228) – the application of Tzilevi
– the applicants did not apply for compensation bonds,
as they could have in 2000. The Court considers that, as a result,
they forewent the opportunity to obtain at least between 15% and 25%
of the value of the apartment, as that was the rate at which bonds
were traded until the end of 2004. The fact that bond prices rose at
the end of 2004 or that the applicable law was amended in 2006 and
provided for payment of the bonds at face value cannot lead to the
conclusion that the authorities would have secured adequate
compensation for the applicants. Indeed, the applicants could not
have foreseen bond prices or legislative amendments and the Court
cannot speculate whether they would have waited four or more years
before cashing their bonds. Furthermore, the legislation on
compensation changed frequently and was not foreseeable (Velikovi
and Others, cited above, § 191
and § 226).
- In
these circumstances, the Court finds that no clear and foreseeable
possibility to obtain compensation was secured to the applicants.
Their failure to use the bonds compensation scheme will have to be
taken in consideration under Article 41, but cannot affect decisively
the outcome of their Article 1 Protocol 1 complaint.
- There
has therefore been a violation of Article 1 of Protocol No. 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
second applicant claimed 250,000 Bulgarian levs (BGN), approximately
127,000 euros (EUR), in respect of the market value of the apartment.
She submitted a valuation report, dated April 2008, by an expert
commissioned by her. She also claimed BGN 20,000 (EUR 10,000) for the
non-pecuniary damage sustained by her and her mother.
- The
Government did not comment.
- Applying
the approach set out in similar cases, in view of the nature of the
violation found the Court finds appropriate to fix a lump sum in
respect of pecuniary and non-pecuniary damage with reference to the
value of the apartment 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).
- To
determine the amount to be awarded, the Court observes that it stated
above that the applicants’ failure to use the bonds
compensation scheme would have to be taken into consideration under
Article 41 of the Convention. 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. The Court considers therefore 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 paragraph 31 above and Todorova
and others, cited above, § 46).
- The
Court further notes that in 1999 the market value of the apartment
was assessed at EUR 27,000 by the applicants (see paragraph 13 above)
and that in April 2008 an expert commissioned by them estimated it at
EUR 127,000. The Court also notes that whereas the applicants were
not provided with municipal housing, there is no indication that they
risked being homeless and it appears from the documents submitted
that they have lived in service accommodation provided by the second
applicant’s husband’s employer.
- Having
regard to the above considerations, all the circumstances of the case
and information at its disposal about the real-estate market in
Plovdiv, the Court awards the second applicant, who is pursuing the
application in her own name and as the first applicant’s heir,
EUR 72,000 in respect of pecuniary and non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed BGN 12,000 (EUR 6,130) for legal fees incurred in
the procedure before the Court. They submitted an agreement between
them and their lawyer according to which the fees would be paid only
in case of success.
- 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 the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,500 for costs and
expenses.
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
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay Mrs Zinaida Koprinarova, 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
72,000 (seventy-two thousand euros), plus any tax that may be
chargeable, in respect of pecuniary and non-pecuniary damage;
ii. EUR
2,500 (two thousand and five hundred euros), plus any tax that may be
chargeable to the applicant, 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 15 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
