CASE OF DIMOVA AND MINKOVA v. BULGARIA

FOURTH SECTION

CASE OF DIMOVA AND MINKOVA v. BULGARIA

(Application no. 30481/05)

JUDGMENT

STRASBOURG 

19 July 2011

This judgment is final but it may be subject to editorial revision.

In the case of Dimova and Minkova v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Päivi Hirvelä, President,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 28 June 2011,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 30481/05) 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 two Bulgarian nationals, Ms Stefana Yordanova Dimova and Ms Penka Yordanova Minkova (“the applicants”), on 1 August 2005.

2. The applicants were represented by Mr M. Ekimdjiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova, of the Ministry of Justice.

3. On 6 January 2010 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

4. The application was later transferred to the Fourth Section of the Court, following the re-composition of Court’s sections on 1 February 2011. In accordance with Protocol no. 14 to the Convention, the application was allocated to a Committee of three Judges.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1929 and 1937 respectively and live in Plovdiv.

6. The applicants are sisters. Their ancestor and another person, P.D., had owned 14,688 square metres of agricultural land which they had divided in 1957 in equal parts of 7,344 square metres each. Following the adoption of the Agricultural Land Act in 1991, the applicants and the heirs of P.D., separately, requested the restitution of their respective parts. The applicants’ request was submitted on 13 March 1991. In a decision of 5 July 1994 the Plovdiv Agricultural Land Commission (“the land commission”) restored 7,015 square metres to the applicants and dismissed their request for the remaining 329 square metres. The heirs of P.D. obtained a decision restoring to them their 7,344 square metres of land.

7. On 8 September 1994 the applicants appealed to the Plovdiv District Court, asking the court to declare that they were entitled to restitution of the entire plot.

8. On 24 October 1995 the District Court dismissed the applicants’ appeal. Relying on an expert’s report it held that the land had been restored to the heirs of P.D. The court thus concluded that the applicants should have brought an action against the latter. The applicants did not submit a petition for review (cassation) against the judgment of 24 October 1995.

9. On 18 August 1997 the applicants brought an action for rei vindicatio against the heirs of P.D. They sought to be recognised as the owners of 391.5 square metres of land and to obtain possession thereof.

10. Of the seventeen hearings held between 12 November 1997 and 16 March 2000 four were adjourned at the applicants’ request. Six of the remaining hearings were adjourned for reasons related to the preparation of expert reports commissioned by the court. At least four other hearings were adjourned so that new evidence could be collected or to allow the parties to get acquainted with such evidence.

11. On 5 April 2000 the Plovdiv District Court found against the applicants. It noted that the applicants had stated that their action had been based on section 14 § 4 of the Agricultural Land Act and had not been a rei vindicatio one. However, it was clear from the facts on which it was grounded and the formulation of the applicants’ claims that the action was for rei vindicatio. The District Court noted that the land commission had restored 7,015 square metres to the applicants and 7,344 square metres to the defendants. The missing land had not been restored to the defendants, although it was not clear to whom it had been given. Accordingly, the action was dismissed.

12. On 13 April 2000 the applicants filed an appeal against the judgment of 5 April 2000.

13. The first hearing was held on 12 December 2000 and the second one on 26 February 2001.

14. On 29 June 2001 the Plovdiv Regional Court dismissed the applicants’ appeal. It noted that the applicants did not claim that the heirs of P.D. had obtained land in excess and on that ground found that there was no legal dispute, within the meaning of section 14 § 4 of the Agricultural Land Act. It further found that it could not assess the lawfulness of the land commission’s decision of 1991 which had become final in 1995.

15. Following an appeal filed by the applicants on 2 August 2001 and a hearing held on 10 October 2002, on 4 November 2002 the Supreme Court of Cassation quashed the judgment of 29 June 2001 and remitted the case to the Regional Court for fresh examination holding that the latter had failed to examine all the relevant issues and instructing it to examine the whole restitution file.

16. On 12 September 2003 the Regional Court upheld the judgment of the District Court of 5 April 2000. It subscribed to the lower court’s findings and noted that the land commission’s decision had become final in 1995.

17. Following an appeal filed by the applicants on 15 October 2003 and a hearing held on 26 January 2005, on 10 February 2005 the Supreme Court of Cassation upheld the lower court’s judgment. The court endorsed the lower courts’ finding that the decision of the land commission had become final and therefore must be respected. It also held that the applicants had neither proved that the defendants were in possession of the claimed piece of land nor its precise location.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Complaints about delays

18. Complaints about delays were provided for in Article 217a of the Code of Civil Procedure of 1952, in force until 1 March 2008. The provision was introduced in July 1999. Complaints about delays were to be examined by the president of the higher court, who could order specific measures to be taken to speed up the proceedings.

B. Restitution of agricultural land

19. The Agricultural Land Act of 1991 (“the ALA”) provides, inter alia, that persons, or their heirs, whose land has been collectivised, may request restoration of their ownership rights under certain conditions (section 10 of the ALA). The decisions restoring title under the ALA are taken by the local agricultural land commission (section 14 § 1) and are amenable to appeal before the courts (section 14 § 3).

20. Pursuant to section 14 § 4 of the ALA when there exists a dispute involving a third party it has to be adjudicated in separate proceedings.

C. Distinction between the action under section 14 § 4 of the ALA and an action for rei vindicatio

21. According to the Supreme Court and the Supreme Court of Cassation’s practice the two actions differ in that the one under section 14 § 4 seeks to establish the owner of the disputed plot of land at the time of its collectivisation and consequently to determine the person or persons who have the right to claim restitution over it whereas the action for rei vindicatio requires the courts to determine the owner at the moment of institution of the proceedings (pеш. № 410 от 10.I.1994 г. по гр. д. № 397/93 на ВС 5-чл. с-в; реш. № 670 от 31.III.1997 г. по гр. д. № 196/96, на ВС IV г. о.; oпр. № 1051 от 23.09.2009 г. по гр.д. № 941/2009 г. на ВКС).

THE LAW

I. ALLEGED VIOLATIONS OF THE CONVENTION IN RELATION TO THE LENGTH OF THE 1997-2005 PROCEEDINGS

22. The applicants complained that the length of the proceedings for rei vindicatio had breached their rights protected under Articles 6 § 1 and 13 and Article 1 of Protocol No. 1 to the Convention.

23. The relevant parts of Article 6 § 1 read as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Article 13 reads as follows:

“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.”

Article 1 of Protocol No. 1 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.”

24. The Government contested that argument.

A. Admissibility

25. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Article 6 § 1

26. The applicants complained that the length of the proceedings for rei vindicatio had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.

27. The period to be taken into consideration began on 18 August 1997 and ended on 10 February 2005. The proceedings thus lasted almost seven years and six months for three levels of jurisdiction.

28. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

29. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, cited above and Kabakchievi v. Bulgaria, no. 8812/07, 6 May 2010).

30. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. In particular, delays totalling more than two years and six months occurred when the case was pending before the Supreme Court of Cassation (see paragraphs 15 and 17 above). Also, the case was remitted for fresh examination on account of the Plovdiv Regional Court’s failure to examine relevant circumstances (see paragraph 15 above). The Court considers that save for a period of about four months (see paragraph 10 above) the applicants were not responsible for any significant delay. Thus, having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

31. There has accordingly been a breach of Article 6 § 1.

2. Article 13

32. The applicants further complained under Article 13 of the Convention that they did not have an effective domestic remedy for the length of the proceedings.

33. The Government submitted that the applicants had not filed a “complaint about delays” (see paragraph 18 above) which was an effective remedy in their case.

34. The applicants replied that that remedy was not effective and that Bulgarian law did not provide for any other remedies.

35. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). It notes that the objections and arguments put forward by the Government have been rejected in earlier similar cases (see the above-cited Kabakchievi judgment, § 52; Pavlova v. Bulgaria, no. 39855/03, § 31, 14 January 2010; and Kotseva‑Dencheva v. Bulgaria, no. 12499/05, § 28, 10 June 2010) and sees no reason to reach a different conclusion in the present case.

36. Accordingly, the Court considers that in the present case there has been a violation of Article 13 of the Convention.

3. Article 1 of Protocol No. 1

37. The applicants also complained that the length of the proceedings had infringed their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1.

38. The Government contested that claim.

39. Having regard to its finding under Article 6 § 1, the Court considers that it is not necessary to examine whether there has been a violation of Article 1 of Protocol No. 1 (see Zanghì v. Italy, 19 February 1991, § 23, Series A no. 194-C; Kambourov v. Bulgaria, no. 55350/00, § 73, 14 February 2008; and Maria Ivanova v. Bulgaria, no. 10905/04, § 28, 18 March 2010).

II. ALLEGED VIOLATIONS OF THE CONVENTION IN RELATION TO THE FINDINGS OF THE DOMESTIC COURTS

40. The applicants alleged that the findings of the domestic courts in the two sets of proceedings had been contradictory and that as a result they had been deprived of effective access to court in respect of their alleged right to restitution of a plot of 329 or 391 square metres. They also complained that as a result they had been deprived of their possessions and that they lacked effective remedies in that respect. They relied on Article 6 § 1, Article 1 of Protocol No. 1 and Article 13 of the Convention.

41. The relevant parts of Article 6 § 1 read as follows:

“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 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.”

Article 13 reads as follows:

“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.”

1. The parties’ submissions

42. The Government submitted that the domestic courts had examined the merits of the applicants’ claims as submitted by them and had dismissed them.

43. The applicants disagreed. They stated, referring to the Court’s findings in the case Kostadin Mihaylov v. Bulgaria, (no. 17868/07, 27 March 2008) that there were contradictory findings of the domestic courts as to whether there was a dispute with the heirs of P.D. over 329 square metres of land. Following the instructions given by the Plovdiv District Court in its judgment of 24 October 1995 they had instituted proceedings against the heirs of P.D. However, given the approach employed by that court to render a final judgment dismissing their action despite holding that it had been unable to examine it on the merits, the courts in the subsequent proceedings for rei vindicatio had no choice but to find that the applicants had title only over the land restored to them by the land commission.

2. The Court’s assessment

44. The Court considers that it is not possible to examine the applicants’ complaints about denial of access to court, deprivation of property and lack of effective remedies without distinguishing between the two separate sets of domestic proceedings at issue. Contrary to the applicants’ view, those two sets of proceedings, while they concerned the same amount of land (329 or 391 square metres), were in reality very different as they concerned different rights and had very different legal scope and consequences.

45. In particular, the proceedings which ended in 1995 opposed the applicants and the land commission and concerned the applicants’ alleged right to restitution under the ALA of a plot of collectivised agricultural land. In these proceedings the national authorities had to establish whether the applicants’ ancestors owned the land at issue before the collectivisation and whether other specific conditions set out in the ALA were met (see paragraph 19 above).

46. The second set of proceedings (1997-2005) concerned an action brought by the applicants against private individuals, the heirs of P.D. In those proceedings the applicants alleged that they were the lawful owners of the plot at issue and that the defendants were not entitled to possess it.

47 As these were two entirely different matters, the Court will examine below the complaints related to the separate rights claimed by the applicants in each of the two sets of proceedings.

(a) Complaints related to the alleged right to restitution under the ALA

48. The Court observes that in 1995 the Plovdiv District Court rejected the applicants’ restitution claim in respect of 329 square metres of land. The applicants did not lodge a petition for review (cassation) (compare, Yanakiev v. Bulgaria, no. 40476/98, § 65, 10 August 2006, with further references). However, in the absence of an objection by the Government regarding the exhaustion of domestic remedies it is not necessary to examine whether this was a remedy to be exhausted in the particular circumstances (see, mutatis mutandis, Bevacqua and S. v. Bulgaria, no. 71127/01, §§ 58 and 87, 12 June 2008).

49. In any event, in so far as the applicants consider that the District Court erred in delivering a judgment on the merits and in so far as they saw violations of the Convention in this respect, including as regards alleged deprivation of property, they should have submitted an application to the Court within six months of the judgment of October 1995 becoming final. That is so because all events relating to the applicants’ restitution claim under the ALA, a claim which opposed the applicants and the land commission only, ended in 1995. The 1997-2005 proceedings between the applicants and the heirs of P.D. had a different subject matter and could not result in any decision on the applicants’ alleged entitlement under the ALA.

50. It follows that this part of the applicants’ complaints under Article 6, Article 1 of Protocol No. 1 and Article 13 was lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

(b) Complaints related to the rei vindicatio claim against the heirs of P.D.

51. As to the complaint that the applicants did not have access to a court for the determination of their alleged ownership right, the Court observes that in their judgments in the 1997-2005 proceedings the courts dismissed as unproven the applicants’ claims that they were the owners of 329 or 391 square metres of land and that the defendants had had possession over it. Their conclusions were based on an examination of all relevant arguments raised by the applicants and the provisions of domestic law (see paragraphs 9 to 17 above). The present case thus differs significantly from the case of Kostadin Mihaylov v. Bulgaria (cited above, § 40), relied upon by the applicants, where the domestic courts “twice disposed of the case on purely procedural grounds, without touching upon the substance of the dispute”.

52. Having regard to the above consideration, the Court cannot but observe that the dispute submitted by the applicants for adjudication in the 1997-2005 proceedings between them and the heirs of P.D. was the subject of a genuine examination and was decided by a legally binding judgment.

53. It follows that this part of the applicants’ complaint under Article 6 § 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

54. Furthermore, as regards the complaint under Article 1 of Protocol No. 1, it is sufficient to observe that the applicants’ claim that they were the owners of the plot at issue was rejected by the domestic courts in reasoned judgments which are not arbitrary (see paragraph 51 above). The Court thus finds that they did not have a “possession” within the meaning of Article 1 of Protocol No. 1.

55. It follows that this part of the applicants’ complaint under Article 1 of Protocol No. 1 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

56. As regards the applicants’ complaint under Article 13, the Court notes that according to its case-law, Article 13 applies only where an individual has an arguable claim to be the victim of a violation of a Convention right. Having regard to its conclusion under Article 1 of Protocol No. 1 (see paragraphs 50 and 55 above), the Court finds that they did not have an arguable claim. Article 13 is therefore inapplicable to their case (see, among many other authorities, Banks and Others v. the United Kingdom (dec.), no. 21387/05, 6 February 2007).

57. It follows that the above mentioned part of the complaint under Article 13 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

III. THE REMAINDER OF THE APPLICANTS’ COMPLAINTS

58. The applicants complained that the length of the first set of proceedings which ended with the final judgment of the Plovdiv District Court of 24 October 1995 had been excessive and that as a result their property rights had been violated. They relied on Articles 6 § 1 and 13 and Article 1 of Protocol No. 1 to the Convention.

59. The Court notes that the six-month period under Article 35 § 1 of the Convention started to run on 24 October 1995. The applicants lodged their application with the Court on 1 August 2005, more than six months after that date.

60. It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

61. 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

62. Each of the applicants claimed 8,000 Euros (EUR) in respect of non‑pecuniary damage sustained as a result of the excessive length of the proceedings, contrary to Article 6 § 1 of the Convention and the lack of remedies in this respect which caused them stress, frustration and a feeling of helplessness.

63. The Government contested these claims as excessive and unsubstantiated. In their view the finding of a violation of the Convention would constitute sufficient just satisfaction for the applicants.

64. The Court considers that the applicants must have sustained certain non-pecuniary damage as a result of the excessive length of the proceedings for rei vindicatio instituted by them and the lack of effective remedies in this respect. Taking into account the particular circumstances and the awards made in similar cases, and ruling on an equitable basis, as required under Article 41, the Court awards each applicant EUR 1,200 plus any tax that may be chargeable (EUR 2,400 in total).

B. Costs and expenses

65. The applicants sought recovery of EUR 2,927 in lawyer’s fees (at the hourly rate of EUR 70), postage, translation and clerical expenses incurred by them in relation to the proceedings before the Court. In support of their claim they presented a contract for legal representation, a time sheet and a translation contract. They requested that the amount, awarded by the Court under this head, be paid into the bank account of their representative, Mr M. Ekimdzhiev with the exception of the first EUR 409, which they had paid as an advance payment.

66. In addition, the applicants claimed EUR 128 for the cost of a report on the value of the property prepared by a valuation expert and submitted by them in relation to the complaint under Article 1 of Protocol No.1 concerning the alleged contradictory findings of the domestic courts which has been rejected by the Court (see paragraphs 50 and 55 above).

67. The Government contested these claims as excessive.

68. 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 were reasonable as to quantum. In the present case, the Court, having regard to the documents in its possession, the above criteria and to the fact that the complaints retained by it concerned the length of proceedings, considers it reasonable to award the sum of EUR 600, covering costs under all heads. EUR 191 of that amount is to be paid directly into the bank account of the applicants’ legal representative, Mr M. Ekimdzhiev.

C. Default interest

69. 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 complaints under Articles 6 § 1 and 13 and Article 1 of Protocol No. 1 to the Convention in respect of the length of the proceedings for rei vindicatio admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings for rei vindicatio;

3. Holds that there has been a violation of Article 13, in conjunction with Article 6 § 1 of the Convention, on account of the lack of an effective remedy for the excessive length of the proceedings for rei vindicatio;

4. Holds that there is no need to examine separately the complaint under Article 1 of Protocol No. 1;

5. Holds

(a) that the respondent State is to pay the applicants, within three months, 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 to the first applicant and EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to the second applicant, in respect of non-pecuniary damage;

(ii) EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, EUR 191 of which to be transferred directly into the bank account of the applicants’ representative. Mr M. Ekimdzhiev;

(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;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 19 July 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıPäivi Hirvelä             
Deputy RegistrarPresident

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