CASE OF GECHEVI v. BULGARIA

FOURTH SECTION

CASE OF GECHEVI v. BULGARIA

(Application no. 54909/14)

JUDGMENT
 

STRASBOURG

22 June 2021

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

In the case of Gechevi v. Bulgaria,

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

Tim Eicke, President,
Faris Vehabović,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 54909/14) 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 three Bulgarian nationals, Mr Vladimir Atanasov Gechev, Mr Vladimir Krastanov Gechev and Ms Rumyana Borisova Gecheva (“the applicants”), on 22 July 2014;

the decision to give notice of the application to the Bulgarian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 1 June 2021,

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

INTRODUCTION

1.  The case concerns the allegedly excessive length of restitution proceedings. It raises issues under Article 1 of Protocol No. 1 to the Convention.

THE FACTS

2.  The applicants were born in 1977, 1960 and 1953 respectively and live in Plovdiv. They were represented before the Court by Mr M. Ekimdzhiev and Ms G. Chernicherska, lawyers practising in Plovdiv.

3.  The Government were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5.  A predecessor of the applicants owned agricultural land on the outskirts of Plovdiv; that land was collectivised in the 1950s. Following collectivisation the authorities granted private individuals a right of use in relation to parts of the land. At the beginning of the 1990s some of those individuals purchased their respective parts from the municipality, as they were entitled to do under domestic law.

6.  Following the enactment of the Agricultural Land Act in 1991, in 1992 the applicants applied for restitution of their land. In a decision of 17 February 2000 the competent body, the Plovdiv land commission, acknowledged their entitlement to restitution of a plot of land measuring 7,600 square metres. It specified that the restitution procedure would continue under sections 4 et seq. of the transitional provisions of the Agricultural Land Act (see paragraph 11 below).

7.  A plan of the newly created plots in the area, as required under the transitional provisions, was adopted in 2001. Under that plan 2,240 square metres of the applicants’ land were subject to restitution in kind. As to the remainder – 3,110 square metres acquired by third parties (see paragraph 5 above) and an additional 2,250 square metres taken over by roads – the applicants were entitled to compensation under the relevant provisions of domestic law.

8.  In February 2010 the applicants sent a letter to the local municipality, insisting on receiving the compensation due to them in lieu of restitution. Since the mayor gave a decision which did not respond to this request but dealt with other matters, the applicants applied for judicial review. The decision in issue was set aside in a final judgment of 23 February 2012 of the Supreme Administrative Court, which pointed out that the mayor had been obliged to take a decision on the compensation that was due to the applicants. It thus remitted the case to him to decide accordingly.

9.  In September 2012 the applicants came into possession of the land that was subject to restitution in kind. According to the latest information available to the Court (see paragraph 17 below), they have not yet received compensation in lieu of restitution.

RELEVANT LEGAL FRAMEWORK

10.  The relevant provisions of domestic law concerning restitution of agricultural land in cases where the land had been the subject of a right of use, and the compensation due to former owners who could not obtain restitution in kind on that ground (sections 4 et seq. of the transitional provisions of the Agricultural Land Act), have been described in Naydenov v. Bulgaria (no. 17353/03, §§ 21-42, 26 November 2009). Further provisions on the restitution of agricultural land have been summarised in Zikatanova and Others v. Bulgaria (no. 45806/11, §§ 46-59, 12 December 2019).

11.  In particular, the procedure under sections 4 et seq. of the transitional provisions of the Agricultural Land Act involves the preparation and the adoption of a so-called plan of the newly created plots, which traces the exact borders of the plots subject to restitution in kind and of those acquired by former users. Such a plan must comply with urban planning requirements, such as those relating to the accessibility of individual plots. The former owners of the land which has been purchased by users are to receive monetary compensation, to be determined by the mayor of the relevant municipality in a decision which is subject to judicial review. For land which for other reasons cannot be restituted, the amount and type of compensation (comparable land or compensation bonds) is to be determined in accordance with section 10b of the Agricultural Land Act.

THE LAWALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1

12.  The applicants complained that the restitution proceedings had been excessively lengthy. While they relied on Article 1 of Protocol No. 1 and Article 13 of the Convention, the Court finds it appropriate to examine the complaint under Article 1 of Protocol No. 1 alone (see Popov and Chonin v. Bulgaria, no. 36094/08, §§ 33-34, 17 February 2015, and Zikatanova and Others, v. Bulgaria (no. 45806/11, §§ 77-78, 12 December 2019).

13.  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.”Admissibility

14.  In their initial application the applicants complained of the delays in providing compensation to them in respect of the land which had been sold to third parties and the land which had been taken over for roads (see paragraph 7 above). In their submissions after notice of the application had been given to the Government, they stated that they were also complaining of the excessive length of the restitution proceedings with regard to the land which had been subject to restitution in kind.

15.  As it has stated in previous cases, the Court does not find it appropriate to examine any new matters raised after notice of an application has been given to the Government, if they do not constitute an elaboration on the applicant’s original complaints (see, for example, Rafig Aliyev v. Azerbaijan, no. 45875/06, § 69, 6 December 2011; Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 121-22, 20 March 2018; and Zikatanova and Others, cited above, § 109). However, in the present case the Court does not need to determine whether the complaint concerning the land which was subject to restitution in kind was raised in the initial application to the Court and only elaborated on after notice of the application had been given (see, mutatis mutandis, Paunović v. Serbia, no. 54574/07, § 24, 3 December 2019). Even if this was so, the application was submitted on 22 July 2014 and the proceedings with regard to the land which was subject to restitution in kind ended more than six months before that, in September 2012, when the applicants came into possession of that land (see paragraph 9 above). Accordingly, the complaint concerning the land subject to restitution in kind has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

16.  The remaining complaints, concerning the delays in providing compensation to the applicants in lieu of restitution, are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.Merits

17.  In observations submitted in September 2020, the applicants pointed out that the mayor had not yet adopted a decision completing the compensation procedure, after his previous decision had been set aside in 2012 by the Supreme Administrative Court (see paragraph 8 above).

18.  The Government submitted two documents. The first one, a letter from the competent municipality dated 16 January 2020, stated that on an unspecified date one of the applicants had been orally informed of the sum to be paid in compensation for the land acquired by third parties. She had expressed her dissatisfaction with the amount and had refused to provide bank account details with a view to obtaining payment. The letter stated also that, with regard to the parts of the land taken over by roads, the relevant decision had to be taken by the agriculture department (the former land commission). The second document submitted by the Government was a letter from the agriculture department dated 28 July 2020. The department stated that it had not commenced a procedure for the award of compensation in lieu of restitution of the land taken over by roads, because “no land ha[d] been taken for the construction of roads” and all plots claimed by the applicants “had been restituted” to them. The Government argued on the basis of the above that the reason for the municipality’s failure to pay compensation for the land acquired by third parties had been the applicants’ refusal to provide bank account details. As to the land taken over by roads, the applicants should have approached the agriculture department. Lastly, the Government referred to the general complexity of the restitution process.

19.  The applicants’ “legitimate expectation” of obtaining restitution or compensation in lieu thereof arose on 17 February 2000, when the Plovdiv land commission acknowledged their entitlement in that regard (see paragraph 6 above). In 2001, when a plan of the newly created plots was adopted, it was determined that the applicants would receive compensation in lieu of restitution (see paragraph 7 above). However, no such compensation had been provided by the time of the applicants’ most recent communication with the Court in September 2020 (see paragraph 17 above), that is, twenty years after a “legitimate expectation” arose.

20.  The Government argued that, as regards the land acquired by third parties, the delay in providing compensation had been caused by the applicants’ refusal to provide bank account details, as a consequence of their dissatisfaction with the amount of compensation (see paragraph 18 above).

21.  However, the Court points out that, under domestic law, in cases such as the present one the mayor of the municipality is to take a decision setting the amount of compensation, such a decision being subject to judicial review (see paragraph 11 above). The Government have not shown that a valid decision was ever taken after the initial decision in that regard was set aside by the Supreme Administrative Court in 2012 (see paragraph 8 above). It is noteworthy that the Supreme Administrative Court also ordered the mayor to take a new decision on the matter of the applicants’ compensation (ibid.). In the absence of such a decision, the Court fails to see how any action or refusal to act on the part of the applicants could be relevant for the completion of the compensation procedure.

22.  As to the land taken over by roads, the Government pointed out that the applicants should have submitted a request for compensation to the local agriculture department (see paragraph 18 above).

23.  However, it has not been shown that any action on the part of the applicants, such as submitting an express request for compensation, was indispensable, and that the agriculture department could not have – of its own motion and after the adoption of the plan of the newly created plots – initiated a compensation procedure (see, mutatis mutandis, Zikatanova and Others, cited above, § 120). The Government have not provided any explanation or justification for the agriculture department not even being aware, as transpires from its letter (see paragraph 18 above), that the applicants remain entitled to receive compensation for the part of their land taken over by roads.

24.  Neither have the Government argued that the applicants could take any further action to speed up the proceedings and obtain compensation.

25.  The Court has found breaches of Article 1 of Protocol No. 1 in many cases against Bulgaria where the applicants complained of the excessive duration of proceedings concerning the restitution of agricultural land or the provision of compensation in lieu thereof (see, among many other authorities, Naydenov v. Bulgaria, no. 17353/03, 26 November 2009; Lyubomir Popov v. Bulgaria, no. 69855/01, 7 January 2010; Zikatanova and Others, cited above).

26.  In the previous cases the Court has found problematic, among other aspects, the lengthy periods of inactivity on the part of the national authorities, as well as those authorities’ failure to act with diligence and with determination to resolve any issue and complete the procedure (see, for example, Popov and Chonin, § 50, and Zikitanova and Others, § 121, both cited above, and Nedelcheva and Others v. Bulgaria, no. 5516/05, §§ 79-80, 28 May 2013). The Court considers that these appear to be the reasons for the delay in the restitution proceedings also in the case at hand.

27.  In so far as the Government referred to the complexity of the restitution process in general (see paragraph 18 in fine), the Court has acknowledged that this is a factor which can cause some reasonable delay (see, for example, Filipov v. Bulgaria (dec.), no. 39135/06, § 52, 20 November 2012, and Popov and Chonin, cited above, § 45). However, for the reasons put forward in the preceding paragraph, the complexity of the restitution process does not appear to have been the reason for the delays in the case at hand.

28.  The foregoing considerations are sufficient to enable the Court to conclude that the proceedings in the case were excessively lengthy, and that the Government have provided no valid justification for the delays incurred.

29.  There has accordingly been a violation of Article 1 of Protocol No. 1.APPLICATION OF ARTICLE 41 OF THE CONVENTION

30.  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.”

31.  The applicants claimed 2,216 Bulgarian levs (1,133 euros (EUR)), plus interest, in respect of pecuniary damage for the part of their land acquired by third parties. They also claimed entitlement to other comparable land in compensation for the part of their land taken over by roads. Lastly, the applicants claimed EUR 4,000 each, or EUR 12,000 in total, in respect of non-pecuniary damage.

32.  The Government pointed out that the applicants remained entitled to receive compensation in lieu of restitution at the domestic level. They considered the claim in respect of non-pecuniary damage excessive.

33.  The Court has found a violation of Article 1 of Protocol No. 1 on account of the lengthy duration of the restitution proceedings instituted by the applicants. It discerns no causal link between this violation and the claims in respect of the compensation due at the domestic level, which falls within the competence of the national authorities. Accordingly, the Court dismisses the claims in that regard.

34.  On the other hand, having regard to the applicants’ claim in respect of pecuniary damage (see paragraph 31 above), the Court considers that they must have suffered a certain loss of opportunity owing to the delays in obtaining compensation. Taking into account the circumstances of the case, in particular the duration of the restitution proceedings and the size of the land for which the applicants are entitled to compensation (see paragraph 7 above), the Court awards to all of them jointly EUR 2,000 in respect of pecuniary damage.

35.  The Court also awards each applicant EUR 800 in respect of non-pecuniary damage.

36.  The applicants claimed in addition EUR 5,885.60 for the costs and expenses incurred in the proceedings before the Court. These included the remuneration of the applicants’ representatives, as well as the costs for translation, postage, copying and printing. In support of the claim the applicants presented a contract for legal representation, a time sheet and invoices. They requested that, of any amount awarded under the present head, EUR 920 be paid to them and the remainder directly to their legal representatives.

37.  The Government contested those claims.

38.  The Court, taking into account the circumstances of the case, in particular its repetitive nature (see the case-law cited above), awards the applicants EUR 1,000 jointly in respect of all costs and expenses incurred in the current proceedings. As requested (see paragraph 36 above), EUR 920 is to be paid to the applicants and the remainder to their legal representatives, Mr M. Ekimdzhiev and Ms G. Chernicherska.

39.  Lastly, 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,Declares admissible the complaints concerning the duration of the restitution proceedings in so far as they concern the compensation due to the applicants in lieu of restitution, and the remainder of the application inadmissible;Holds that there has been a violation of Article 1 of Protocol No. 1;Holds

(a)  that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,000 (two thousand euros) jointly to the three applicants, plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 800 (eight hundred euros) to each applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 1,000 (one thousand euros) jointly to the three applicants, plus any tax that may be chargeable to them, in respect of costs and expenses, EUR 920 (nine hundred and twenty euros) of which is to be paid to the applicants and the remainder directly to their 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;Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 22 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              {signature_p_2}

Ilse Freiwirth Tim Eicke
Deputy RegistrarPresident

APPENDIX

No.

Applicant’s Name

Date of birth/registration

Nationality

Place of residence

1.

Vladimir Atanasov GECHEV

1977

Bulgarian

Plovdiv

2.

Vladimir Krastanov GECHEV

1960

Bulgarian

Plovdiv

3.

Rumyana Borisova GECHEVA

1953

Bulgarian

Plovdiv

 

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