FOURTH SECTION
DECISION
Application no. 10857/06
Maria Nikolova BADEVA and JSK ALBENA
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 12 November 2013 as a Committee composed of:
George Nicolaou, President,
Zdravka Kalaydjieva,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 10 March 2006,
Having regard to the comments submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Ms Maria Nikolova Badeva, is a Bulgarian national who was born in 1935 and lives in Plovdiv. The second applicant, JSK Albena, is a housing construction cooperative, a legal person with variable membership under Bulgarian law. The applicants are represented before the Court by Mr M. Ekimdjiev and Ms G. Chernicherska, lawyers practising in Plovdiv.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova and then by Ms M. Kotseva, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Granting the right to construct
4. In 1969 the first applicant bought one-fifth of a building in Plovdiv, together with the right to construct over the plot onto which the building lay.
5. In 1970 the second applicant housing cooperative was established by several individuals, including the first applicant, for the purpose of constructing a residential building. Each member of the cooperative was to acquire ownership rights over an apartment in the future building. Under Bulgarian law, members of a cooperative were free to opt out of membership if and when they chose and they acquired rights over constructed properties on condition that they continued to be members of the cooperative at the time when the properties were distributed.
6. On 2 April 1990 the chairman of Plovdiv Municipal Council issued an order, granting the cooperative a right to construct over the same plot of land on which Ms Badeva, the first applicant, had acquired her rights. On an unspecified date the applicant cooperative paid the corresponding price for the right it had been granted.
7. It appears that in 1992 the plot of land in question was restituted to its pre-nationalisation owners. On 17 May 1993 the cooperative asked for an alternative plot to be identified so that it could build on it. On 29 September 1995 the Plovdiv Municipal Council authorised the determination of such a plot and on 31 October 1995 an expert committee on city planning adopted a decision, allowing a modification of the building regulatory plan (застроителен регулационен план) and determining a new plot onto which a five-story building could be built. On 2 October 1996 that decision was quashed by an architectural commission of the municipality, which found the modification impracticable in terms of city planning.
8. In 1999 the applicant cooperative brought court proceedings against Plovdiv Municipality under section 79 of the Obligations and Contracts Act 1950. The cooperative claimed that the municipality failed to deliver on its contractual obligation to transfer to it the right to construct on the plot of land determined in the Municipal Council’s decision of 29 September 1995.
9. Of 27 January 2000 the Plovdiv District Court allowed the claim in a judgment which became final on 21 February 2000. The court found that the cooperative and Plovdiv Municipality had concluded a contract pursuant to which the municipality had to transfer to the cooperative the right to construct on a different plot of land to the one initially determined in the order of 2 April 1990. The court further held that no proof had been adduced by the municipality that it had discharged its obligations under this contract. Finally, the court ordered the municipality to grant the cooperative a right to construct over the plot of land identified in the decision of 29 September 1995.
10. In a letter of 23 October 2000 the chief architect of Plovdiv Municipality stated that the judgment of the district court could not be complied with as the plot of land in question was not included in the building regulatory plan. The architect also specified that he had suggested to the municipality a new plot of land which could be used for complying with the court’s judgment.
11. In an order of 29 March 2001 the mayor determined a new plot of land in respect of which a right to construct was to be granted to the applicant cooperative. Shortly thereafter, owners of neighbouring plots of land brought three separate sets of court proceedings, disputing the construction of a building over that plot. On 15 January 2003 the Plovdiv Regional Court joined those proceedings.
12. The court proceedings came to an end on 6 April 2006 when, in a final decision, the Plovdiv Regional Court rejected the neighbours’ claims. Subsequently, on 21 September 2006 the municipal authorities issued an act for municipal property in respect of the plot in question. On 16 October 2006 a sketch of the plot was drawn up in accordance with the relevant building regulatory plan.
13. The applicant cooperative brought proceedings for forced enforcement against the municipality in April 2007. The Municipal Council decided on 17 May 2007 to grant the applicant cooperative the right to construct on the plot and on 5 June 2007 the mayor issued an order to that effect. On 18 July 2007 the municipality and the cooperative signed a contract according to which the municipality transferred to it the right to build a five-story building over the plot of land.
2. Devaluation of monetary savings
14. Meanwhile, in 2003 the first applicant brought a claim against a bank in which she kept a house savings account intended to be used towards the construction of a building. She requested that her deposit be recalculated, taking into consideration inflation in the country in the 1990s.
15. The Plovdiv Regional Court rejected the applicant’s claim on 30 May 2005, in a final judgment. It held in particular that the bank was not bound to take account of inflation when determining deposit amounts and that the applicant could have withdrawn her deposit at any moment.
B. Relevant domestic law
1. Housing cooperatives
16. The Housing Construction Cooperatives Act 1978 stipulates in section 1 that housing cooperatives are established in order to provide dwellings to its members by carrying out construction projects. Those cooperatives are legal entities (section 5).
2. Administrative procedure
17. According to section 37 (3) of the Administrative Procedure Act 1979 which was applicable at the time, proceedings for judicial review of administrative acts suspended the enforcement of those acts.
3. Compensation for damages stemming from non-compliance with contractual obligations
18. Section 79 of the Obligations and Contracts Act 1950 provides the possibility to bring a claim in court, seeking compliance with a contractual undertaking, compliance together with compensation for the delay, or compensation instead of compliance.
COMPLAINTS
19. The applicants complained under Article 6 § 1 of the Convention that the Plovdiv Municipality’s failure to comply with the judgment of the Plovdiv District Court constituted an infringement of their right to a court.
20. The applicants further complained under Article 1 of Protocol No. 1 that, as a result of the municipality’s failure to do so, they had been unable to exercise the right to construct a residential building.
21. The first applicant also complained under Article 1 of Protocol No. 1 that her savings had lost their value as a result of the authorities’ failure to designate a plot of land for the construction of the building for an extended period of time.
THE LAW
22. The Court is of the view that the complaints about the failure of the municipal authorities to enforce the final district court judgment are most appropriately examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. These provisions, in so far as relevant, read:
Article 6
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“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
23. The Government contested the complaints. They submitted that the applicants had failed to exhaust the available domestic remedies, because they had not brought a tort claim against the State or a claim for damages under the Obligations and Contracts Act. The Government also considered that Plovdiv Municipality never refused to enforce the court decision of 27 January 2000 but had been actively seeking the most appropriate way for that, taking into account all relevant interests involved. The judgment had been fully enforced when that had become possible. The delay in enforcing it had been caused by objective difficulties which originated in third parties’ court claims, challenging the mayor’s order of 29 March 2001.
24. The applicants disagreed. They contended that the municipality had been obliged to rapidly enforce the judgment of 27 January 2000, by granting them the right to build over any comparable plot of land. They further argued that neither a tort claim against the State, nor a claim under the Obligations and Contracts Act, was an effective domestic remedy in their case, given that the Government had not demonstrated that there had been an established domestic practice evidencing that. Furthermore, there had not been any objective difficulties before the municipality, preventing it from enforcing, and the fact that they had not complied with the judgment was an expression of sheer administrative arbitrariness.
B. The Court’s assessment
1. Complaints under Article 6 § 1 and Article 1 of Protocol No. 1 of the individual applicant
25. To the extent it could be understood that Ms Badeva complained about her inability to build on the plot she had bought as a result of the plot’s restitution to its pre-nationalisation owners, the Court observes that she applied before it years after the facts without demonstrating any attempt to obtain satisfaction domestically. In addition, only the applicant cooperative has been party to the domestic proceedings, which included the judicial phase that ended with the final court judgment of 27 January 2000 and the enforcement phase which ended with the contract of 18 July 2007.
26. It would appear therefore that the individual applicant Ms Badeva has no victim status and her complaint above must be declared inadmissible under Article 34 of the Convention.
27. The first applicant further complained that her savings towards the construction of a residential building had lost their value. She claimed that had been as a result of the authorities’ failure to transfer the right to construct to the cooperative during a prolonged period of time, during which her savings had suffered from inflation.
28. The Court recalls that a general obligation on States to maintain the purchasing power of sums deposited with banking or financial institutions cannot be derived from Article 1 of Protocol No. 1 (see Todorov v. Bulgaria (dec.), no. 65850/01, 13 May 2008). Consequently, this complaint is incompatible ratione materiae with the provisions of the Convention. In any event, the Court notes that the complaint was lodged more than six months after the Plovdiv Regional Court delivered its final judgment in respect of this complaint on 30 May 2005.
29. It follows that this part of the application must be rejected in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.
2. Complaint of the second applicant under Article 6 § 1
30. The Court notes that the applicant cooperative complained about the municipality’s failure to comply with the final judgment of January 2000. The Court reiterates in that connection that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. In this way Article 6 § 1 embodies the “right to a court”. That right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Execution of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III; Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, p. 510, § 40).
31. The Court notes that a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1. While delays in enforcement might be justified in exceptional circumstances, only periods strictly necessary to enable the authorities to find a satisfactory solution are covered (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 69, ECHR 1999‑V; and Sokur v. Ukraine, no. 29439/02, § 30, 26 April 2005).
32. Turning to the instant case, the Court observes that the judgment of 27 January 2000 was fully enforced on 18 July 2007. That was the date when the parties signed a contract in accordance with which the municipality transferred the right to build to the applicant cooperative. In these circumstances, the issue of State responsibility for the lack of enforcement as such, about which the second applicant complained, does not arise (see Voytenko v. Ukraine, no. 18966/02, § 35, 29 June 2004 and Sokur v. Ukraine, no. 29439/02, § 27, 26 April 2005).
33. As regards the length of enforcement proceedings, the Court first notes that the judgment of 27 January 2000 cannot be taken to create ownership rights for the second applicant. According to the judgment’s operative provisions, the municipality was obliged to carry out a procedure for the determination of a terrain on which the second applicant could build. Once the judgment became final on 21 February 2000, the municipality established that it was impossible to grant a right to build on the plot identified in the judgment, as no building regulatory plan had been drawn up in respect of it. The chief architect informed the applicants on 23 October 2000 that a new plot of land had been identified in the meantime for the purpose of complying with the judgment.
34. Relatively shortly after that, on 29 March 2001, the mayor issued an order, approving a modification in the building regulatory plan concerning the newly identified plot. Several owners of neighbouring plots then brought separate sets of court proceedings, challenging the mayor’s order. The proceedings were joined and in April 2006 the court rejected the neighbours’ claims.
35. Therefore, the delay in enforcing the judgment, which lasted between the Spring of 2001 and April 2006, was caused by the lawful actions of third parties, which prevented any enforcement steps on the part of the authorities during that period. In accordance with domestic law, more specifically section 37 (3) of the Administrative Procedure Act 1979 as applicable at the time, the enforcement of the mayor’s decision was suspended while the proceedings for judicial review brought by the neighbours lasted. Consequently, the municipality was faced with an objective difficulty which it could neither ignore nor overcome on its own.
36. Upon the end of the court proceedings, the municipality took further steps towards enforcement of the final judgment of 27 January 2000. More specifically, on 21 September 2006 they issued an act for municipal property in respect of the plot in question. Following that, on 16 October 2006 a sketch was drawn up in respect of the plot in accordance with the relevant building regulatory plan. On 17 May 2007 the municipal council decided to grant the right to construct to the applicant cooperative and on 5 June 2007 the mayor issued an order to that effect. On 18 July 2007 the municipality and the applicant cooperative signed a contract according to which the municipality transferred to the cooperative the right to build a five-story building on the plot.
Therefore, the delay in enforcing the judgment of 27 January 2000 was the result of objective difficulties and, in particular, the exercise by third parties of their right to protect their property, which had been affected by the modification of the building regulatory plan. Thus, the present situation cannot be said to concern either the failure of the authorities to enforce a final judgment or their unjustified delay to do so.
37. It follows that the complaint under Article 6 § 1 is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. The second applicant’s complaint under Article 1 of Protocol No. 1
38. The second applicant also complained that the authorities’ delay in enforcing the final judgment amounted to unjustified interference with its right to property.
39. The Court notes that in 1990 the municipality granted the second applicant a right to construct and the latter paid for it. The municipality did not deliver on its contractual obligation because the plot in question was later restituted to a third party. In 1995 the second applicant asked the municipality to grant to it a right to build on a different plot. As the municipality did not do that, in 1999 the second applicant brought court proceedings against it. The cooperative asked the court to find that the municipality was obliged, on the basis of a contract it had concluded with it, to grant it a right to construct on a comparable plot of land, and that the municipality had failed to deliver on that obligation. The district court granted the second applicant’s claim on 27 January 2000 and that judgment became final on 21 February 2000.
40. The Court observes that it is not disputed between the parties that the second applicant only acquired a legitimate expectation to have the contract enforced by the municipality at the moment when that judgment became final, that is to say on 21 February 2000. Consequently, it cannot be said that there was an interference with a possession, or even a legitimate expectation, of the second applicant as regards the period before that date.
41. It follows that, as regards the period before 21 February 2000, the complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
42. Concerning the period after the judgment became final, the Court notes that the municipality acted upon its obligation stemming from the said judgment and effectively enforced it. Thus, on 18 July 2007 it concluded a contract with the second applicant, granting it a right to construct.
43. In as much as the applicant can be understood to complain about the delay in enforcing the judgment, the Court recalls its findings under Article 6 § 1 above and finds that they are equally valid in respect of the same complaint under Article 1 of Protocol No. 1. In any event, the Court observes that the national legislation, in particular section 79 and next of the Obligations and Contracts Act 1950, provided for a possibility to bring a claim for damages, resulting from, inter alia, delayed enforcement of contractual undertaking. That remedy was equally applicable and accessible to the second applicant throughout the entire period concerned by the events in the present case. The applicant cooperative used it successfully in 1999 when it brought a claim, seeking action by the municipality. In that same claim, just as in any subsequent claim under that law provision, the cooperative could have sought damages for delayed compliance by the municipality with its undertakings. Therefore, the fact that it chose not to do so cannot be attributed to the State, which had put in place effective procedural guarantees for protection in cases of alleged delayed compliance with contractual obligations.
44. It follows that the complaint under Article 1 of Protocol No. 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş AracıGeorge Nicolaou
Deputy RegistrarPresident
Full & Egal Universal Law Academy