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FOURTH
SECTION
CASE OF
GEORGI MARINOV v. BULGARIA
(Application
no. 36103/04)
JUDGMENT
STRASBOURG
15 March
2011
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 Georgi Marinov v.
Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Sverre Erik Jebens,
Päivi
Hirvelä,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 22 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36103/04) 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 a Bulgarian national, Mr Georgi Dimitrov
Marinov (“the applicant”), on 30 September 2004.
- The
applicant was represented by Mr D. Marinov, a lawyer practising in
Plovdiv. The Bulgarian Government (“the Government”) were
represented by their Agent, Mrs S. Atanasova of the Ministry of
Justice.
- The
applicant alleged that because of the unlawful actions of the
administration he could not fully exercise his right to peaceful
enjoyment of possessions.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1924 and lives in Brestovitza.
A. The expropriation and restitution of the applicant's
land
- In
1977 a plot of land measuring 1,870 square metres belonging to the
applicant was expropriated for public needs in order to build an
administrative and cultural centre and a road. The applicant received
compensation of 3,314.52 old Bulgarian levs.
- On
28 April 1992, after the entry into force of the 1992 Law
(see paragraph 23 below), the applicant made a request to the
mayor of the Rodopi Municipality in Plovdiv (“the mayor”)
for the revocation of the expropriation because neither of the public
works for the purposes of which it had been expropriated had
commenced.
- On
10 September 1992 the applicant paid back the compensation he had
received in 1977 at the time of the expropriation.
- In
a decision of 14 September 1992 the mayor revoked the expropriation.
Because of administrative omissions in that decision, on 30 August
1993 the mayor issued a new one to the same effect.
- It
appears that for a certain period of time the applicant was able to
use and to benefit from the whole property or at least from part of
it (see paragraphs 14 and 20 below).
-
On 7 November 1995, 11 April 1996 and 27 June 1996 the applicant
requested the mayor to modify the land register in order to include
the returned land. A procedure to that effect commenced in November
1995.
- As
by 11 April 1996 the mayor had not yet ordered the modification of
the land register, the applicant lodged an appeal against his tacit
refusal to do so.
- On
4 October 1996 the mayor approved the modification and on 29 October
the applicant's son in his capacity as owner of a neighbouring plot
was officially informed about it.
- According
to the applicant on 23 June 1998 an administrative sanction was
imposed on him for having used the land after the expropriation. He
appealed against the sanction to the domestic courts. It appears that
the appeal was granted and the sanction was quashed on an unspecified
date not later than March 2002.
- On
an unspecified date the applicant found out that in the land register
as modified in 1996 the area of the returned land had been reduced to
910 square metres and a note had been added indicating that the
remaining 960 square metres were part of a road the construction of
which had already started.
- On
an unspecified date in 1999 the applicant asked the court to declare
the order of 4 October 1996 null and void as it did not comply with
the restitution orders.
- In
a judgment of 2 March 2001 the Plovdiv Regional Court declared the
mayor's order of 4 October 1996 null and void as not being in
compliance with the orders of 14 September 1992 and 30 August 1993
and thus being in violation of paragraph 1(2) of the additional
provisions of the 1992 Law (see paragraph 23 below). This judgment
was not appealed against and entered into force on 18 April 2001.
- Subsequently,
on 19 November 2001,
the mayor approved the modification of the land register to include
the whole area of the land.
B. The proceedings for damages against the State
- In 2001 the applicant initiated an action for damages
under the State and Municipalities Responsibility for Damage Act
(“the SMRDA”) against the Plovdiv Rodopi Municipality.
Relying on the Constitution and on Article 1 of Protocol No. 1 he
alleged that due to the problems with the inclusion of the whole
surface of the property in the land register, he had been unable “to
enter into possession, use and dispose of the returned land in the
period between September 1992 and 2001”. He
claimed potentially lost earnings and presented calculations from an
expert based on the growing of certain types of agricultural products
on the whole surface of the land for the period in question. The
applicant also sought non-pecuniary damage for the anguish and
suffering sustained.
- At
the hearing of 15 January 2002 the applicant's son testified that the
applicant had used the whole area for a couple of years, but
thereafter the municipal authorities had forbidden him to use part of
it claiming that it had been allocated for the construction of a new
road. He also testified that the applicant had been involved in court
proceedings over that question and that because of these problems
with the land the applicant had suffered anguish and frustration.
- In
a judgment of 5 April 2002 the Plovdiv District Court dismissed the
claim as manifestly ill-founded, as did the Plovdiv Regional Court in
a final judgment of 19 August 2004.
- On
the one hand the courts admitted that there had been certain
omissions on the part of the municipal authorities and that there had
been obstacles preventing the applicant from using his land. On the
other hand they held that registration in the land register was not
decisive for ownership of the land, nor could it affect the right to
use it. Furthermore, the applicant had not presented the order of 23
June 1998 by which an administrative sanction had been imposed on
him. Therefore, he had failed to prove the reasons and the extent of
the alleged interference and that there had been a causal connection
between the refusal to register the whole surface of the land in the
land register and the damage allegedly sustained. He had also failed
to prove that as a result of the actions or omissions of the
municipal authorities he had sustained financial loss. The witness
testimony had not clearly established what kind of anguish and
suffering the applicant had experienced and there had been no medical
evidence that he had suffered from a physical illness as a result of
the alleged interference with his right of property. The courts did
not specifically address the applicant's arguments that he could not
obtain an up-to-date plan view of the property and hence to dispose
of the whole of this property.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Restitution of expropriated property
- In
1992 the Law on the Restitution of Property Expropriated under
Building Planning Legislation (Закон
за възстановяване
на собствеността
върху някои
отчуждени имоти
по ЗТСУ, ЗПИНМ,
ЗБНМ, ЗДИ и ЗС,
“the 1992 Law”) was adopted. It provided for the
restitution of expropriated property where specific conditions were
met. The request for restitution had to be lodged with the mayor of
the municipality, whose refusal could be appealed to the regional
court. The mayor's decision was binding on all State authorities
(paragraph 1(2) of the additional provisions). Owners who had
received compensation for the expropriation had to return the
compensation in order for the restitution order to enter into force
(section 6).
B. Land register
- The
land register is a land survey information system which consists of
registers and cadastral maps.
- At
the relevant time the adoption and modification of the land register
were governed by the Common Cadastre of the Peoples Republic of
Bulgaria Act of 1979 (“the CCPRBA”) and the Regulations
on its implementation (“the Regulations”).
- The
CCPRBA and the Regulations provided that the land register should
contain information, inter alia, about the boundaries, the
area and the type of plots of land, the constructions on these plots
and the ownership rights over them. Most of this information had to
be mentioned in the deeds and contracts concerning immovable
property, such as notary deeds, sales contracts, superficio
contracts, etc. All of these deeds and contracts had to be
accompanied by a plan view issued by the regional land register
service (section 34 of the Regulations). The state authorities and
the domestic courts were under the obligation to inform the land
register officials, inter alia, of all changes in the
ownership and the boundaries of private properties which had come to
their knowledge. These changes had to be duly entered in the land
registers and maps (sections 13 and 14 of the CCPRBA).
- As of 1 January 2001 the CCPRBA was replaced by the
Cadastre and Property Register Act (“the CPRA”). It
clarified and expanded the provisions in respect of the land
register. Section 49 b, in force as of 2004, provided that for the
issuance of notary deeds and other acts concerning the rights over
immovable property a plan view, i.e. a copy taken from the cadastral
maps was necessary. The same was
provided in section 2(3) of Ordinance No. 3 of 28 April 2005
(Наредба № 3
от 28.04.2005 г. за съдържанието,
създаването
и поддържането
на кадастралната
карта и кадастралните
регистри), which
governed the keeping of the cadastral maps and registers.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 1 of Protocol No. 1 that his right
to peaceful enjoyment of his possessions was infringed as between
1992 and 2001 he could neither use the land returned to him, nor
dispose of it.
- 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.”
A. Admissibility
30. The Court finds that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant contended that for the period between 1992 and 2001 he had
been unable to enter into possession of his land and to use it or
dispose of it. Moreover, on 23 June 1998 an administrative sanction
had been imposed on him for having worked the land. He further argued
that cadastre registration was a precondition for receiving a plan
view. He argued that without such a plan it would have been
impossible to obtain a notary deed or to dispose of the land.
- The
Government submitted that the applicant had failed to substantiate
his allegations and that his rights under Article 1 of Protocol No.
1 had not been violated. They further argued that the applicant could
fully use the 910 square metres of land which had been returned to
him and registered in the cadastre as early as 1996.
- Relying
on the Court's findings in the case of Velikovi and Others
v. Bulgaria, (nos. 43278/98 et al., 15 March 2007), the
Government further contended that in the specific context of the
transition from a totalitarian to a democratic society the
restitution process had been accompanied by a number of difficulties
and problems, which should be accepted as inevitable and
proportionate. In the light of these difficulties, the applicant's
restitution proceedings had been handled lawfully and expediently.
2. The Court's assessment
(a) Whether there was a possession
34. The
Court finds that the applicant had a “possession” within
the meaning of Article 1 of Protocol No. 1 as after the revocation of
the expropriation and the return of the compensation received by the
applicant for it, the applicant's ownership over the 1,870 square
metres of land was restored (see paragraphs 8, 9 and 23 above). The
applicant thus could legitimately expect that henceforth he would be
able to enjoy the complete recognition of his title and the full
realisation of his property rights, along with the finalisation of
any and all ensuing formalities, including the registration of the
full surface of the property in the land register (see above
paragraph 26 in fine).
(b) Interference and justification
- The
parties disagree as to whether there has been an interference with
the applicant's rights under Article 1 of Protocol No. 1.
- The
Court refers to its case-law in which it found that a failure to
enforce a final decision recognising title to property or an
unjustified delay in the enforcement of such a decision constitutes
an interference with the peaceful enjoyment of possessions and may
amount to a violation of Article 1 of Protocol No. 1 (see
Ramadhi and Others v. Albania, no. 38222/02, §§
76 -84, 13 November 2007, Nuri v. Albania, no. 12306/04, §
40, 3 February 2009, Naydenov v. Bulgaria, no. 17353/03, §§
72 and 85, 26 November 2009, Mutishev and Others v. Bulgaria,
no. 18967/03, §§ 138 and 146, 3 December 2009 and
Lyubomir Popov v. Bulgaria, no. 69855/01, § 131, 7
January 2010).
- It
considers that the present case is no different from the above
mentioned cases. In particular it notes that there was a delay of
about nine years between the restitution of the land in 1992,
pursuant to the decision of 14 September 1992 and the finalisation of
the land register amendments in 2001. On the basis of the material
before it, the Court finds it established that this delay was caused
by protraction in registering the applicant's property in the land
register and in particular the mayor's refusal of 1996 to register
the full surface of the land at issue (see paragraphs 9, 11-17 and 22
above). This was established by the domestic courts, which declared
the 1996 refusal unlawful (see paragraph 17 above) and, in the
proceedings under the SMRDA, found that there had been obstacles
hindering the applicant's use of the land (see paragraph 22 above).
Thus, during a period of about nine years the applicant was left in a
state of uncertainty as to the realisation of his property rights.
- In
the light of these considerations, the Court considers that the delay
in the registration of the land and the impugned attitude of the
local authorities between 1992 and 2001 constituted an interference
with the applicant's right to peaceful enjoyment of his possessions.
- Furthermore,
the Court finds that there was no justification for this interference
with the applicant's rights of property and that it was not in
accordance with the law. This is so because the mayor's order of
October 1996, authorising the registration of only part of the
property, was contrary to the orders for the revocation of the
expropriation, by virtue of which the ownership of the whole surface
of the property had been restored to the applicant. This order was
declared null and void by the domestic courts.
- There
has been therefore a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13
- The
applicant also complained under Article 13 of the Convention that he
did not have at his disposal effective remedies for the alleged
violation of Article 1 of Protocol No. 1 to fully enjoy his right of
property.
- Article
13 provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Government submitted that in the proceedings under the SMRDA the
domestic courts had examined the applicant's allegations that he had
been prevented from effectively enjoying his rights of property and
had given well-reasoned judgments.
A. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention, nor
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Court observes that the applicant employed relevant remedies and
obtained court decisions as a result of which the mayor's order of
October 1996 was declared null and void and thereafter the whole
surface of the land was included in the land register (see paragraphs
17 and 18 above). Apparently, the administrative sanction of 1998 was
also quashed. However, the applicant was refused compensation under
the SMRDA.
- The Court notes that an action under the SMRDA is, in
principle, a remedy capable of providing redress for delays in the
restitution or restoration of expropriated property (see Lyubomir
Popov v. Bulgaria, cited above, §§ 97, 99 and 104 and
Naydenov v. Bulgaria, cited above, §§ 45 and 46).
In particular, pecuniary as well as non-pecuniary damage can be
awarded by the domestic courts in that respect (see Mutishev
v. Bulgaria, cited above, §§ 49-56).
- In
the present case, however, the domestic courts dismissed the
applicant's action and refused to award him non-pecuniary damage on
the ground that he had failed to adduce sufficient evidence for the
suffering he had sustained as a result of the delay in entering his
property in the land register (see paragraph 22 above). They failed
to have due regard to the consequences of the unlawful order of 1996
and the fact that for about nine years the applicant had been in a
state of uncertainty as to the full realisation of his right of
property. Their holding was apparently based on the underlying
proposition that non-pecuniary damage such as stress, frustration and
anxiety could only be proved through formal, external evidence, such
as medical certificates, and that witness testimony in that respect
had to describe the suffering sustained in a particularly precise and
concrete manner.
- This
approach has already been criticised by the Court in a different
context (see, mutatis mutandis, Iovchev v. Bulgaria,
no. 41211/98, § 146, 2 February 2006, concerning
non-pecuniary damage stemming from poor conditions of detention, and
Danev v. Bulgaria, no. 9411/05, §§ 32-37,
2 September 2010, concerning compensation for a short-term
unlawful detention).
- The
Court considers that as a result of the above described formalistic
approach on the issue whether damage had been sustained, in the
present case the domestic courts failed to provide the applicant with
procedural guarantees as to the full enjoyment of his possessions.
Thus, the action for damages under the SMRDA, which could in
principle serve as an effective remedy, lost much of its remedial
efficacy.
-
The Government have not shown that Bulgarian law provides for other
means of redress for the violation of Article 1 of Protocol No. 1.
Accordingly,
there has been a violation of Article 13 of the Convention.
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
1. Pecuniary damage
- The
applicant claimed 8,000 euros (EUR) in respect of potential earnings
allegedly lost as a result of the impossibility to use his land. He
relied on the conclusions of the expert who reported in the course of
the proceedings under the SMRDA (see paragraph 19 above).
- The
Government considered that the claim was groundless.
- Having
examined the material in its possession, the Court is not convinced
that the applicant had suffered pecuniary damage as a result of the
above established violations. In particular, from the materials in
the Court's possession it is not entirely clear whether and for what
period of time the applicant has been unable to possess the property
and to benefit from it and whether this alleged impossibility
concerned the whole surface of the property or only part of it (see
paragraphs 20 and 22 above). In addition, it does not appear that the
expert who presented an opinion in the SMRDA proceedings dealt with
the issue of causal link.
- Therefore,
the Court dismisses the applicant's claim under this head.
2. Non-pecuniary damage
- The
applicant claimed EUR 2,500 in respect of non-pecuniary damage.
- The
Government argued that the applicant had failed to prove that he had
suffered non-pecuniary damage and therefore no award under this head
should be made.
- The
Court finds that the applicant must have suffered anguish and
frustration as a result of the violations found. Deciding on
equitable basis, it awards him EUR 1,200 under this head.
B. Costs and expenses
- The
applicant claimed EUR 2,000, for 40 hours of work by his lawyer for
the proceedings before the Court, at an hourly rate of EUR 50. He
further claimed EUR 1,000 for expenses incurred in the domestic
proceedings under the SMRDA. He presented an authorisation form and a
time sheet.
- The
Government argued that the applicant had not presented sufficient
evidence that he had actually incurred the claimed expenses as he had
not presented a contract with his representative. Therefore they
urged the Court to dismiss the applicant's claims under this head. In
any event, they contended that the claims were excessive.
- 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 and documents
in its possession, the Court finds it reasonable to award EUR 1,500
for the said 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
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
3. Holds that there has been a violation of
Article 13 of the Convention in conjunction with Article 1 of
Protocol No. 1;
4. Holds
(a) that
the respondent State is to pay the 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
1,200 (one thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand 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;
5. Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
