FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 20827/02
by Stefka Kancheva and Kostadin Stoilov ANTONOVI
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 4 September 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 7 May 2002,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Stefka Kancheva Antonova and Kostadin Stoilov Antonov, are Bulgarian nationals who were born in 1944 and 1935 respectively and live in Popovo.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Compensation with a “future” flat for the applicants' house expropriated in 1988
By a mayor's order of 9 May 1988 the applicants' house in Popovo was expropriated with a view to developing a residential area. It was valuated at 18,486 old Bulgarian levs (“BGL”). The order was based on section 95 and 98(1) of the Territorial and Urban Planning Act of 1973 („Закон за териториалното и селищно устройство” – “TUPA”). It provided that the applicants were to be compensated with a two-room flat. The flat was to be situated in a building which the municipality intended to construct.
In 1989 the existing buildings on the land expropriated from the applicants were demolished.
By a supplementary order of 19 April 1991 under section 103 TUPA the mayor indicated the exact “future” flat with which the applicants were to be compensated.
On an unspecified date in 1991, in accordance with section 104(1)(c) of the Property Act, the municipal authorities opened with the State Savings Bank a blocked housing bank account in the name of the applicants and deposited on it an amount corresponding to the valuation of the expropriated real property.
The construction of the building started in 1994, already behind the schedule, and it appears that the construction is still not completed because of lack of funds.
On 8 January 2001 the applicants complained to the President of the National Assembly. On 27 March 2001 they filed a complaint with the President of the Republic. The complaint was transmitted to the Ministry of Finance. It appears that the efforts to resolve the problem by complaining to these bodies remained unsuccessful.
2. The civil proceedings for damages
In November 1999 the applicants filed a civil action for damages. On 29 December 2000 the Supreme Court of Cassation refused to open proceedings as the statement of claim was unclear.
On an unspecified date in 2000 the applicants brought a new civil action for damages against the municipality for wrongful failure to fulfil its obligations to build and provide them with a flat. They claimed pecuniary and non-pecuniary damages in respect of, inter alia, the delay itself, anguish and uncertainty and pecuniary losses. In a judgment of 18 October 2000 the Targovishte Regional Court awarded the applicants indemnification.
By a judgment of 12 March 2001 the Varna Appellate Court annulled the lower court's judgment as the damages were awarded on a wrong legal basis, namely Section 45 of the Obligations and Contracts Act instead of Section 1(1) of the State Responsibility for Damage Act. The case was referred back to the Regional Court.
In a judgment of 17 July 2001 the Targovishte Regional Court awarded the applicants 6,750 new Bulgarian levs (“BGN”), the equivalent of approximately EUR 3,500, in non-pecuniary damage and dismissed the applicants' claim for pecuniary damages (additional costs of living in temporary accommodation). The indemnification covered a period starting from the date of the issuance of the supplementary order (19 April 1991) till the date when the applicants lodged their statement of claim. The court held that the municipality's failure to provide the applicants with a flat was unlawful and it caused them to suffer mental anguish because of the situation of uncertainty about their property. In respect of the pecuniary damages claimed, the court held that the municipality was not under an obligation to provide them with a temporary accommodation as they did not meet the relevant criteria.
On 5 December 2001 the Varna Appellate Court upheld the Regional Court's judgment.
The applicants appealed. In a judgment of 27 May 2003 the Supreme Court of Cassation upheld the lower courts' judgments insofar as it awarded to the applicants non-pecuniary damages in the amount of BGN 6,750 and quashed the remainder. The court held that the lower courts had wrongly determined the subject-matter of the dispute. The applicants had been claiming loss of earnings (the rent they would have received had they let the flat which they were entitled to receive from the municipality) and not the loss they had incurred for additional costs of living in temporary accommodation. The case was referred back to the Regional Court for rehearing.
In a judgment of 13 October 2003 the Targovishte Regional Court awarded the applicants BGN 13,680 in pecuniary damages for loss of earnings. On 19 February 2004 the Varna Appellate Court reversed the judgment and dismissed the claim.
The applicants appealed. In a judgment of 31 August 2005 the Supreme Court of Cassation upheld the appellate court's judgment. The court ruled that the applicants' claim for loss of earnings was based on a speculation that they would have rented out the apartment.
3. The applicants' housing situation
As the applicants were not settled temporarily in a municipal flat they lived for an unspecified period in their son's flat (their son was allotted a municipal flat). Later they rented another accommodation and in 1996 they were housed in a temporary building provided by the municipality.
According to the applicants they lost part of their furniture and belongings when moving out from their house in 1988 following the expropriation.
4. Events concerning another expropriated real estate
On an unspecified date the Popovo municipality expropriated from the applicants a plot of 1830 square meters and in 2001 granted them compensation in bonds which, allegedly, was not reasonably related to the value of the property. On an unspecified date the applicants instituted proceedings which appear to be still pending. No further details are provided.
B. Relevant domestic law
1. Expropriation of private property for development of residential areas
At the relevant time expropriation of private property for development of residential areas was regulated by TUPA.
Expropriation was effected by order of the mayor, which had to designate the property to be expropriated and its valuation, and specify the manner (property or cash) and amount of compensation due to the dispossessed owner.
If the owner was to be compensated with a flat which had not yet been constructed, the order had to specify the type and the general features of such a flat (section 98(1)(4) of TUPA).
A supplementary order had to indicate the exact premises offered in compensation and their valuation (section 100 of TUPA). In accordance with section 103(1) of TUPA, that supplementary order had the effect of vesting title in the flat offered in compensation, even though it was still non-existent.
Section 104(1)(c) of the Property Act as in force between 1990 and 1996 provided that in the case of compensation with a “future” flat a blocked bank account was to be opened in the name of the owner with the State Savings Bank. An amount corresponding to the valuation of the expropriated flat was deposited on that account. Section 102(1) provides that the valuation is to be made on the basis of the market price at the time of the expropriation. If the owner was not provided with a flat and the demolition of the expropriated buildings had started, the owner could request a fresh valuation (section 102(9) Property Act).
The Property Act did not provide for a procedure whereby the money from the bank account could be withdrawn. It appears that it could not be withdrawn unless the expropriation was rescinded.
In 1996 sections 102-104 of the Property Act were repealed. It appears, however, that the option for having a fresh valuation of the expropriated real property according to the market value at the time of the valuation remained unavailable. In a judgment of 3 June 2002 the Supreme Administrative Court ruled that fresh valuation could be carried out only on the basis of the market value at the time of the expropriation (see реш. № 5258 от 3 юни 2002 по адм. д. № 8776/2001, ВАС, ІІ о.).
On 27 October 2004 the Supreme Administrative Court for the first time held that a fresh valuation based on the market value of the real estate at the time of the valuation is possible (see реш. № 8747 от 27 октомври 2004 по адм. д. № 5032/2004, ВАС, II о.). However it appears that there is no established procedure for obtaining the sum thus re-valuated.
2. State responsibility for unlawful acts or omissions
Section 1 of the State Responsibility for Damage Act of 1988, which entered into force on 1 January 1989, provides that the State is liable for damage suffered by private persons as a result of unlawful acts or omissions of civil servants, committed in the course of or in connection with the performance of their duties. The State's liability is strict, i.e. no fault is required on the part of the civil servants in the commission of the unlawful acts or omissions (section 4 in fine).
Section 7 of the Act provides that the action in responsibility must be brought against the authority by which the civil servant concerned is employed.
Section 4 of the Act provides that compensation for damage sustained pursuant to the unlawful act or omission of a civil servant is due for all pecuniary and non-pecuniary damage, including loss of earnings, which is the direct and proximate result of the act or omission.
Section 8(2) of the Act provides that if another statute provides for a special manner of indemnification, the Act does not apply.
COMPLAINTS
1. In respect of the house expropriated in 1988 the applicants complained under Article 1 of Protocol No. 1 that they were unable to obtain adequate compensation. In particular, they could neither obtain a new flat, nor adequate damages or pecuniary compensation.
2. The applicants complained that in 1999 their first claim for damages was not accepted for examination by the courts.
3. The applicants complained under Article 1 of Protocol No. 1 that as a result of the expropriation in 1988 and their moving out their furniture and other belongings were damaged.
4. In respect of another property expropriated on an unspecified date – a plot in the industrial part of Popovo, the applicants complained under Article 1 of Protocol No. 1 that they were compensated with bonds and that the amount of this compensation was not reasonably related to the actual value of the real estate.
THE LAW
1. The applicants complained under Article 1 of Protocol No. 1 that the municipal authorities did not provide them with a flat to which they are entitled as compensation for their real property expropriated in 1988 and that they are unable to obtain adequate compensation.
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicants further complained under Article 6 that in 1999 their first claim for damages was not accepted for examination by the courts. They also complained under Article 1 of Protocol No. 1 that as a result of the 1988 expropriation and moving out they lost part of their furniture. In respect of another plot of land expropriated on an unspecified date the applicants complained that they were compensated with bonds and that the compensation thus awarded was not reasonably related to the actual value of the real estate.
In the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that the abovementioned complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
It follows that the remainder of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants' complaint under Article 1 of Protocol No. 1 concerning the failure of the municipal authorities to provide them with compensation for their house expropriated in 1988;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy