FOURTH SECTION. CASE OF NEDYALKOV AND OTHERS v. BULGARIA. (Application no /05) JUDGMENT STRASBOURG. 2 June 2015 FINAL 02/09/2015

Transcription

1 FOURTH SECTION CASE OF NEDYALKOV AND OTHERS v. BULGARIA (Application no /05) JUDGMENT STRASBOURG 2 June 2015 FINAL 02/09/2015 This judgment has become final under Article 44 2 of the Convention. It may be subject to editorial revision.

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3 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT 1 In the case of Nedyalkov and Others v. Bulgaria, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Guido Raimondi, President, George Nicolaou, Ledi Bianku, Nona Tsotsoria, Paul Mahoney, Faris Vehabović, Yonko Grozev, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 12 May 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no /05) 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 four Bulgarian nationals, Mr Mihail Georgiev Nedyalkov, Mr Georgi Mihaylov Georgiev, Mr Dobromir Mihaylov Georgiev and Mr Dimitar Georgiev Yanchev ( the applicants ), on 15 November The first applicant, Mr Mihail Georgiev Nedyalkov, passed away on 9 February He was succeeded by his sons, the second and third applicants, Mr Georgi Mihaylov Georgiev and Mr Dobromir Mihaylov Georgiev, who stated that they wished to continue the application in his stead. 3. The applicants were represented by Mr M. Ekimdzhiev, Ms G. Chernicherska and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government ( the Government ) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 4. The applicants alleged, in particular, that a procedure concerning the restitution of agricultural land had been unjustifiably delayed, and that as a result they experienced a situation of lengthy uncertainty. 5. On 10 September 2012 the application was communicated to the Government.

4 2 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1923, 1948, 1957 and 1924 respectively. The fourth applicant lives in the village of Rogachevo, the second applicant lives in the village of Obrochishte and the third applicant lives in Varna. The first applicant also lived in Rogachevo. 7. A predecessor of the applicants had owned agricultural land in the village of Kranevo, which had been collectivised after Following the adoption of the Agricultural Land Act ( the ALA, see paragraph 16 below) in 1991, the fourth applicant, on behalf of his predecessors heirs, sought the restitution of land totalling 15,000 square metres. In a decision of 19 June 1995, the Balchik agricultural land commission partially allowed the request, refusing to restore the heirs rights to 9,210 square metres of land which had been either taken for urban development or transferred to third parties. 9. Upon an appeal lodged by the fourth applicant, in a final judgment of 7 December 1995 the Balchik District Court quashed the relevant part of the land commission s decision of 19 June It noted, in particular, that the public works for which parts of the land at issue had been taken had not been completed, and that in so far as other parts of the land had been transferred to third parties, there was no bar to restitution as the third parties had not carried out any construction work. On that basis the District Court recognised the heirs as the owners of all of the land claimed by them. 10. In execution of the above judgment, on 19 February 1996 the land commission issued another decision, restoring to the heirs, inter alia, in its actual boundaries, a plot of 1,180 square metres described as plot no. 891, district 23, under the cadastral plan of Kranevo of On 29 July 1996 the heirs obtained a plan of that plot. After agreeing as to the partition of the restituted land, the plot at issue was allocated to the fourth applicant and his sister (who after her death in 2004 was succeeded by the remaining applicants, namely her husband and her sons). On 30 September 1996 the fourth applicant and his sister obtained a notarial deed. 11. However, the plot was in actual fact held by several private persons, having been transferred in 1972 by the agricultural co-operative of the time to the predecessors of a certain Ms D.S. in exchange for another plot. In 1996 Ms D.S. had sold a share of the plot to a certain Ms E.H. and Mr N.R. 12. On 28 March 1997 the fourth applicant and his sister brought a rei vindicatio action against Ms D.S., Ms E.H. and Mr N.R., claiming that the 1972 transfer of the property and the subsequent sale could not have prejudiced their own rights. 13. The action was examined by three levels of jurisdiction and disallowed in a final judgment of the Supreme Court of Cassation of 1 June

5 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT The domestic courts took note of the Balchik District Court s final judgment of 7 December 1995, but found that they were competent to exercise an indirect judicial review (косвен контрол) of it. The courts found further that the documents describing the plot, namely the Balchik land commission s decision of 19 February 1996 and the notarial deed of 30 September 1996, referred to plot no. 891, district 23 under the cadastral plan of Kranevo of However, there existed no cadastral plan dating from 1950 and the current plans, the last of which dated from 1984, did not show a plot bearing that number. The Balchik District Court and the land commission had thus restored the claimants rights to a non-existent plot under a non-existent plan. 14. In addition, the domestic courts found that the defendants had validly obtained title to their plot pursuant to the 1972 exchange and the 1996 contract of sale. Accordingly, they were entitled to hold the land as its owners. 15. Following the above developments, the applicants have not sought to obtain compensation in lieu of restitution in kind, a possibility provided for under the relevant provisions of the ALA. II. RELEVANT DOMESTIC LAW AND PRACTICE 16. The Agricultural Land Act (Закон за собствеността и ползването на земеделските земи, the ALA ) was adopted in It provides, inter alia, that individuals whose land was collectivised after 1945 or their heirs may under certain conditions request the restoration of their ownership rights. The ALA s most relevant provisions concerning restitution and compensation in lieu thereof, and the domestic courts relevant practice, have been summarised in the Court s judgments in the case of Sivova and Koleva v. Bulgaria (no /03, 29-44, 15 November 2011) and Karaivanova and Mileva v. Bulgaria (no /05, 28-35, 17 June 2014). THE LAW I. PRELIMINARY QUESTION 17. One of the applicants, Mr Mihail Georgiev Nedyalkov, passed away on 9 February 2010 while the case was pending before the Court, and his heirs, Mr Georgi Mihaylov Georgiev and Mr Dobromir Mihaylov Georgiev, expressed the wish to pursue the application on his behalf (see paragraph 2 above). It has not been disputed that they are entitled to do so and the Court sees no reason not to accede to their request (see Horváthová v. Slovakia,

6 4 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT no /01, 25-27, 17 May 2005, and Donka Stefanova v. Bulgaria, no /03, 11, 1 October 2009). II. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL NO The applicants complained under Article 1 of Protocol No. 1 that they had been unable to obtain restitution of their predecessors plot. In addition, relying on Articles 6 1 and 13 of the Convention, they complained that the restitution procedure had taken an unreasonably lengthy period of time. 19. The Court is of the view that the complaints above are most appropriately examined under Article 1 of Protocol No. 1 alone (see Karaivanova and Mileva, cited above, 61). That provision 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. Arguments of the parties 20. The Government pointed out that the applicants had not been deprived of property, and that even after it had been established in the rei vindicatio proceedings that restitution in kind was impossible, they had remained entitled to receive compensation as provided for under the ALA. 21. As regards the duration of the restitution procedure, the Government argued, with reference in particular to the rei vindicatio judicial proceedings, that they had been very complex. 22. The second, third and fourth applicants disagreed. They were of the view that, following the land commission s decision of 19 February 1996, the fourth applicant and his sister had acquired title to the property, of which they had been unjustly deprived. In addition, they had received no compensation in lieu of restitution. In that latter regard the second, third and fourth applicants argued that it had been for the land commission to initiate compensation proceedings as a matter of course, which it had not done. Moreover, they expressed doubts as to whether they were in fact entitled to receive compensation under the ALA at all, given that the national courts had concluded in the rei vindicatio proceedings that their restitution claims had been unfounded. 23. In respect of the duration of the restitution procedure, the second, third and fourth applicants pointed out that the examination by the courts of

7 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT 5 the rei vindicatio claim had been excessively protracted, for which there was no justification because the case had been relatively straightforward. As to the overall duration, they urged the Court to take into account the period of time that had elapsed since the initiation of the restitution procedure in B. The Court s assessment 1. Admissibility (a) Complaint that the applicants could not obtain restitution in kind 24. The Court has previously summarised the principles applicable to cases of restitution of expropriated property in Kopecký v. Slovakia ([GC], no /98, 35, 2004-IX). 25. In the present case, in its decision of 19 February 1996 issued on the basis of the judgment of 7 December 1995 the Balchik land commission recognised the right of the fourth applicant and his sister (the predecessor of the remaining applicants) to restitution in kind (see paragraph 10 above). However, it is also significant that at the same time there were known rival claims to the same land on the part of Ms D.S., Ms E.H. and Mr N.R., who were holding the property. In view of the domestic courts well-established practice of re-examining administrative and judicial decisions on restitution in subsequent civil proceedings concerning ownership rights (see Sivova and Koleva, 44, and Karaivanova and Mileva, 33, both cited above), the applicants should have been aware of the fact that any dispute between them and these parties would eventually be subject to further determination in such civil proceedings (see Sivova and Koleva, cited above, 74). 26. Accordingly, the Court cannot accept that the decision of 19 February 1996, issued on the basis of the judgment of 7 December 1995, finally determined the scope of the restitution rights of the fourth applicant and his sister, later the four applicants, and thereby gave rise to an asset for them that is to say to a stable and defendable property right (see Karaivanova and Mileva, 76, cited above; also Nedelcheva and Others v. Bulgaria, no. 5516/05, 60, 28 May 2013; and Kupenova and Others v. Bulgaria (dec.), no /05, 34, 7 May 2013). On the contrary, the domestic law s approach to the matter meant that the scope of the applicants rights remained the subject of further determination. Subsequently, in the proceedings involving the third parties it was established that the plot s restitution in kind was impossible. 27. That being so, the applicants were entitled to receive compensation in lieu of restitution. This could have led to a final determination of the scope of their restitution rights, creating for them an entitlement to receive a specific asset. However, the applicants chose not to pursue that possibility.

8 6 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT In that regard the Court notes that in the absence of any attempt on their part to obtain a decision from the respective Agriculture Department (the former land commission) concerning compensation, or to challenge a refusal on its part, it cannot accept their claim (see paragraph 22 above) that they had no entitlement to receive any compensation. Lastly, the Court notes that it has on numerous previous occasions found that that the manner of compensation provided for by the ALA did not in principle run contrary to the requirements of Article 1 of Protocol No. 1 (see Sivova and Koleva, , and Nedelcheva and Others, 61, both cited above). 28. The above is sufficient for the Court to conclude that the present complaint is manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention. (b) Complaint in respect of the duration of the restitution procedure 29. The Court observes 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. 2. Merits 30. As concerns the complaint relating to the delays in the restitution procedure, the Court observes that the fourth applicant s and his sister s legitimate expectation of restitution arose from the judgment of 7 December 1995, given in judicial proceedings before the Balchik District Court with the participation of the fourth applicant and his sister and the land commission. After that the fourth applicant and his sister, later the four applicants, were involved in a new set of judicial proceedings, this time with the participation of Ms D.S., Ms E.H. and Mr N.R., with the aim of having the scope of that expectation determined. It was eventually found to be the case that they were not entitled to restitution in kind. The second set of judicial proceedings in which they were involved, taken alone, lasted for more than eight years, from March 1998 to June 2005 (see paragraphs above). Thus, the fourth applicant and his sister, and later the four applicants, were left in a state of uncertainty as to the status of their restitution rights for almost ten years. 31. In numerous previous cases against Bulgaria, the Court has found violations of Article 1 of Protocol No. 1 on the grounds of lengthy delays in the restitution procedure which had affected the applicants right to restitution or compensation (see, for example, Sivova and Koleva, , Nedelcheva and Others, 71-84, and Karaivanova and Mileva, 79-82, all cited above; see also Mutishev and Others v. Bulgaria, no /03, , 3 December 2009; Lyubomir Popov v. Bulgaria, no /01, , 7 January 2010; and Vasilev and Doycheva v. Bulgaria, no /04, 47-53, 31 May 2012).

9 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT The delays in the present case were to a significant extent the result of the approach adopted in the domestic law, under which third parties such as Ms D.S., Ms E.H. and Mr N.R. were not permitted to take part in restitution proceedings, which would have allowed their competing claims to the same land to be examined at an earlier stage. Instead of that, domestic law provided for such issues to be resolved in separate proceedings. The Court has already criticised this approach for prolonging the restitution process and causing individuals who find themselves in a situation such as the applicants to be left in a state of uncertainty for a protracted period (see Sivova and Koleva, ; Nedelcheva and Others, 78-82; and Karaivanova and Mileva, 81, all cited above). While acknowledging that States should be accorded a wide margin of appreciation in regulating important social and economic reforms such as the ones introduced in Bulgaria after the fall of communism, the Court reiterates that they nevertheless remain duty-bound to organise their judicial and administrative systems in such a way as to guarantee the rights provided for under the Convention (see Sivova and Koleva, cited above, 116). In the case at hand, requiring the fourth applicant and his sister, and later the four applicants, to participate in two sets of proceedings, firstly a restitution procedure and then civil proceedings aimed at resolving the conflict between them and the third parties with rival claims to the land, unjustifiably delayed the effective exercise of the applicants right to have the scope of those expectations finally determined. 33. In view of the above considerations, the Court concludes that in that aspect there has been a violation of Article 1 of Protocol No. 1. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 34. The applicants also complained under Article 6 1 of the Convention that the domestic courts findings in the rei vindicatio proceedings namely that the plot restituted to them could not be duly identified because the land commission s decision had been based on a non-existent plan had been arbitrary. 35. The Government did not comment on that complaint. 36. The applicants reiterated their position that the courts findings at issue had been arbitrary. They stated that a cadastral plan of the village of Kranevo had been prepared in 1950, but had never been adopted. They pointed out that they had been unable to influence the land commission s choice to identify their plot on the basis of that plan, and that in any event the available data had been sufficient for the purposes of identifying the land returned to them, given that the authorities had issued a plan of the plot on the basis of which the fourth applicant and his sister had obtained a notarial deed (see paragraph 10 above).

10 8 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT 37. The Court notes that, in view of the arguments raised by the applicants, there may indeed be doubts as to whether the domestic courts were right in concluding that the land commission had restored to the applicants a non-existent plot under a non-existent plan. 38. However, the Court observes that it is not called upon to deal with errors of fact or law allegedly committed by a national court, as it is not a court of fourth instance (see, for example, García Ruiz v. Spain [GC], no /96, 28, ECHR 1999-I, and Khodorkovskiy and Lebedev v. Russia, nos /06 and 13772/05, 803-4, 25 July 2013). In addition, before deciding whether or not there has been a violation of Article 6 1 of the Convention, the Court must take into account the proceedings as a whole (see Edwards v. the United Kingdom, 16 December 1992, 34, Series A no. 247-B; Mirilashvili v. Russia, no. 6293/04, 164, 11 December 2008; and Kinský v. the Czech Republic, no /06, 83, 9 February 2012). It thus notes that the argument about the plot s identification was not the only decisive argument in the case, since the rei vindicatio action brought by the fourth applicant and his sister was dismissed on the basis of the additional argument that the defendants, Ms D.S., Ms E.H. and Mr N.R., had validly obtained title to their plot pursuant to the 1972 exchange and the 1996 contract of sale, and were entitled to hold the land as its owners (see paragraph 14 above). The Court does not consider that additional argument to be arbitrary or manifestly unreasonable. Accordingly, the proceedings taken as a whole cannot be described as unfair for the purposes of Article 6 1 of the Convention. 39. It follows that the present complaint is manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention. 40. The applicants also complained under Article 6 1 of the Convention that the courts in the rei vindicatio proceedings had disregarded the binding force of the Balchik District Court s final judgment of 7 December Lastly, they complained under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 that they had been discriminated against in that the former king of Bulgaria and his sister had been able to obtain the restitution of their family s former property under more lenient procedures than the ones applicable to their case. 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, the Court 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 also manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention.

11 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT 9 IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. 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 42. The second, third and fourth applicants stated that, as regards pecuniary damage, they claimed only the plot of land sought by them in the domestic proceedings. They did not claim pecuniary damage on the grounds of the delays in the restitution procedure. 43. As regards non-pecuniary damage, they claimed 20,000 euros (EUR) each, stating, in particular, that they had suffered distress and frustration as a result of the situation of uncertainty in which they had found themselves for a lengthy period of time. 44. The Government considered that the claim for actual restitution of the plot of land was unrelated to any alleged violation of the Convention, and was anyway impossible to allow because the land had been recognised as the property of third parties. They considered the claim for non-pecuniary damage excessive. 45. The Court observes that, in considering this case, it has found a violation of Article 1 of Protocol No. 1 only in respect of the delays and the lack of certainty in the restitution process. It does not see any causal link between that violation and the applicants claim concerning the disputed plot of land. 46. As regards non-pecuniary damage, the Court accepts that the applicants must have experienced anguish and frustration. It reiterates that it found a violation of Article 1 of Protocol No. 1 only on the grounds of the lengthy delays and uncertainty in the restitution procedure, and will award compensation in respect of non-pecuniary damage solely on that basis. Taking into account the circumstances of the case and the amounts awarded in the similar cases referred to in paragraph 31 above, and also the fact that the second and third applicants are acting in the capacity of successors of their mother the fourth applicant s sister and of their father one of their mother s original successors the Court awards under the present head EUR 1,500 to the fourth applicant, Mr Dimitar Georgiev Yanchev, and EUR 750 each to the second and third applicants, Mr Georgi Mihaylov Georgiev and Mr Dobromir Mihaylov Georgiev.

12 10 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT B. Costs and expenses 47. The applicants also claimed EUR 3,866 for the legal work performed by their representatives before the Court. In support of this claim they submitted a time sheet. They also claimed EUR for postage, translation and other expenses. They requested that these amounts, less EUR 400 already paid by them to their representatives, be transferred directly into the latters bank account. 48. The Government contested the claims. 49. 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. 50. In the present case the Court found a violation of Article 1 of Protocol No. 1 only in respect of the delays and the uncertainty in the restitution process. Observing that this is a repetitive complaint (see the case law referred to in paragraph 31 above), the Court finds it reasonable to award EUR 1,000 in respect of the legal work performed by the applicants representatives and any other expenses incurred by them. As requested by the applicants, EUR 400 of this sum is to be paid to the applicants themselves, and the remainder, namely EUR 600, is to be transferred directly to the bank account of their representatives. C. Default interest 51. The Court considers it appropriate that the default interest rate 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 complaint under Article 1 of Protocol No. 1 in respect of the duration of the restitution procedure admissible and the remainder of the application inadmissible; 2. Holds that there has been a violation of Article 1 of Protocol No. 1;

13 NEDYALKOV AND OTHERS v. BULGARIA JUDGMENT 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, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement: (i) EUR 1,500 (one thousand five hundred euros) to Mr Dimitar Georgiev Yanchev, and EUR 750 (seven hundred and fifty euros) each to Mr Georgi Mihaylov Georgiev and Mr Dobromir Mihaylov Georgiev, plus any tax that may be chargeable, in respect of nonpecuniary damage; (ii) EUR 1,000 (a thousand euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, EUR 600 (six hundred euros) of which is to be transferred directly into the bank account of the applicants legal representatives; (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; 4. Dismisses the remainder of the applicants claim for just satisfaction. Done in English, and notified in writing on 2 June 2015, pursuant to Rule 77 2 and 3 of the Rules of Court. Fatoş Aracı Deputy Registrar Guido Raimondi President