FOURTH SECTION
CASE OF PETKOVA AND OTHERS v. BULGARIA
(Applications nos. 19130/04, 17694/05 and 27777/06)
JUDGMENT
STRASBOURG
25 September 2012
This judgment is final but it may be subject to editorial revision.
In the case of Petkova and Others 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 4 September 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in three applications 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”) on the following dates: application no. 19130/04, Petkova, on 14 May 2004; application no. 17694/05, Ivanova and Others, on 10 May 2005; and application no. 27777/06, Yankov, on 23 June 2006.
2. The representatives of the applicants are indicated below. The applicant in application no. 27777/06 was granted legal aid. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, from the Ministry of Justice.
3. On 31 August 2010 the Court decided to join the three applications, to declare applications nos. 19130/04 and 27777/06 partly inadmissible, and to communicate to the Government the complaints concerning the continued failure of the authorities to complete the restitution of the applicants’ agricultural land (see Petkova and Others v. Bulgaria (dec.), nos. 19130/04, 17694/05 and 27777/06, 31 August 2010).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The case of Petkova (application no. 19130/04)
4. The applicant, Ms Tsvetana Stoycheva Petkova, was born in 1932 and lives in Plovdiv. She was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.
5. The applicant and her two sisters inherited their mother’s estate after her death in 1972. In 1991, following the adoption of the Agricultural Land Act (see paragraph 28 below), the applicant sought, on behalf of all heirs, restitution of a plot of land measuring 6,500 square metres.
6. In a decision of 2 December 1994 the Plovdiv agricultural land commission found that the land, which had in the meantime been included in the urban territory of Plovdiv, had been built upon and could not be subject to restitution. As no appeal was lodged against that decision, it became final shortly afterwards.
7. Nevertheless, in 1995 the land commission advised the applicant to seek from the municipality and submit additional documents, whereupon it would re-examine the possibility for partial restitution “in actual boundaries” and, if appropriate, modify its decision of 2 December 1994. After some delays, which in their submissions to the Court the parties imputed to each other, the applicant submitted the additional documents in 2000. However, in a letter dated 8 November 2000 she was informed that the decision of 2 December 1994 could no longer be modified as the two‑year statutory time-limit during which it had been possible to do so had expired.
8. The applicant brought an action seeking nullification of the decision of 2 December 1994. On 6 July 2001 the Plovdiv District Court dismissed the action. The applicant did not appeal against that judgment.
9. The parties have not informed the Court of the relevant developments afterwards. At the time of her latest communication to the Court in June 2011 the applicant had not yet received the compensation in lieu of restitution she was entitled to under domestic law.
B. The case of Ivanova and Others (application no. 17694/05)
10. The first applicant, Ms Radka Yovcheva Ivanova, a Bulgarian national who was born in 1910, passed away on 2 December 2006. She was inherited by the second and third applicants, Ms Maria Zhekova Mincheva and Mr Atanas Zhekov Tanev, Bulgarian nationals who were born in 1932 and 1929 respectively and who stated that they wished to continue the application in her stead. On 17 January 2011 Mr Tanev passed away too. On 30 October 2011 his heirs, Ms Margarita Ganeva Slavova and Ms Rumyana Atanasova Taneva, informed the Court that they wished to continue the application in his stead. The second applicant, Ms Mincheva, as well as Mr Tanev’s heirs, live in Stara Zagora.
11. In 1991 and 1992 the applicants requested the restoration of their title to agricultural land formerly owned by an ancestor of theirs. In two decisions dated 23 March 1994 and 3 May 1995 the Radnevo agricultural land commission found that the applicants should receive compensation in lieu of restitution for 34,000 square metres of land in the area around Radnevo and the village of Golyama Detelina.
12. In two further decisions dated 19 April 2000 and 18 April 2001 the land commission determined the value of the compensation that the applicants were to receive.
13. However, following appeals lodged by the applicants, by judgments dated 16 April 2001 and 17 December 2002 the Radnevo District Court found the last two decisions to be null and void on the ground that the land commission had committed material breaches of the relevant procedural rules.
14. On 10 May 2002 the applicants filed those judgments with the land commission and demanded that it adopt new decisions concerning their compensation.
15. On 28 March 2005 and 6 April 2005 the Radnevo Agriculture and Forestry Department (former land commission) adopted new decisions concerning the applicants’ compensation. However, on an appeal by the applicants, by judgments dated 8 February and 1 March 2006 the Radnevo District Court found these decisions null and void.
16. On 14 May 2007 the Agriculture and Forestry Department allotted municipally-owned land to the second and third applicants in compensation for their plots in Golyama Detelina. The second applicant, Ms Mincheva, lodged an appeal, arguing that the land was not of good quality. In a judgment of 7 January 2008 the Radnevo District Court quashed the impugned decision and remitted the case for fresh consideration, finding that the decision had been based on the previous decisions of 19 April 2000 and 6 April 2005 (see paragraphs 12 and 15 above), which had already been found to be null and void.
17. In a letter dated 15 December 2010 the Agriculture and Forestry Department (now called Agriculture Department) stated that it had not adopted any new decision concerning the applicants’ restitution claims “because [it] had not received a court decision [...] of 7 January 2008”.
18. In its submissions on the case of February 2011 the Government admitted that no compensation had yet been provided to the applicants and their heirs.
C. The case of Yankov (application no. 27777/06)
19. The applicant, Mr Dimitar Ognyanov Yankov, is a Bulgarian national who was born in 1942 and lives in the village of Herakovo. He was represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practicing in Sofia.
20. The applicant’s grandfather, who passed away in 1952, owned agricultural land, which was expropriated after 1945. The applicant is entitled to one ninth of his grandfather’s inheritance.
21. In February 1992 the applicant and the remaining heirs requested the restitution of nine plots of land in the village of Hrabarsko totalling 23,600 square metres.
22. In a decision of 11 July 1996 the Bozhurishte agricultural land commission found that the claimants were entitled to compensation in the form of other land or compensation bonds.
23. In another decision of 16 February 2007 the Bozhurishte Agriculture and Forestry Department (the former agricultural land commission) allotted to the heirs of the applicant’s grandfather a plot of 14,870 square metres as partial compensation for the nine plots. At the time of the applicant’s latest communication to the Court in June 2011 he had not yet received compensation for the remaining land.
24. On an unspecified date the heirs of the applicant’s grandfather requested the restitution of other land in the village of Herakovo.
25. Apparently, the Bozhurishte land commission refused restitution and the heirs of the applicant’s grandfather appealed to a court.
26. In a final judgment of 10 March 1998 the Slivnitsa District Court held that the heirs of the applicant’s grandfather were entitled to the restitution through a “land redistribution plan” of several plots of land totalling 36,100 square metres of land. On 15 July 1998 the judgment of 10 March 1998 was amended to include an additional 15,950 square metres of land.
27. On unspecified dates the applicant and the remaining heirs of his grandfather were allotted land totalling 33,300 square metres. At the time of the applicant’s latest communication to the Court in June 2011 he and the remaining heirs had not yet been allotted the remainder of their land, measuring 18,750 square metres, or compensation in lieu thereof.
II. RELEVANT DOMESTIC LAW AND PRACTICE
28. The Agricultural Land Act (Закон за собствеността и ползването на земеделските земи) was enacted in 1991. Its provisions concerning the restitution of agricultural land, the possibility of compensation in lieu of restitution, and the relevant procedures have been summarised in the Court’s judgments in the cases of Lyubomir Popov v. Bulgaria (no. 69855/01, §§ 83-88 and 92-92, 7 January 2010) and Vasilev and Doycheva v. Bulgaria (no. 14966/04, §§ 19-23, 31 May 2012).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
29. The applicants complained of the continued failure of the authorities to take the relevant steps to complete the process of restitution of agricultural land. They relied on Article 1 of Protocol No. 1 and Articles 6 § 1 and 13 of the Convention. The Court is of the view that the complaints fall to be examined solely under Article 1 of Protocol No. 1, which 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.”
A. Admissibility
30. The Government objected that the applicants had failed to exhaust the available domestic remedies because neither of them had sought damages from the State on account of the delays in the restitution process. The applicants contested this objection.
31. The Court notes that in a number of similar cases it has examined and dismissed an objection such as the present one, finding that there was no established practice of the national courts to award damages for delays in the restitution procedure and that in any event an action for damages could not compel the authorities to accelerate and complete the process (see Lyubomir Popov, §§ 102-107, and Vasilev and Doycheva, §§ 26-30, both cited above). The Court sees no reason to reach a different conclusion in the present case, given that the Government have not put forward any additional argument in support of their objection. In addition, the Court recalls that in its judgment in the case of Vasilev and Doycheva it in fact urged the respondent State to introduce a remedy permitting any aggrieved person to effectively obtain compensation in cases of delays in the restitution proceedings (see § 69 of the judgment).
32. As concerns application no. 19130/04, Petkova, the Government noted in addition that the applicant had not appealed against the Plovdiv District Court’s judgment of 6 July 2001 (see paragraph 8 above) and argued that she had thus failed to exhaust an available domestic remedy. The Government considered also that Ms Petkova’s application was time‑barred as it had been submitted more than six months after the judgment of 6 July 2001. Ms Petkova contested these arguments.
33. The Court notes that the judgment of 6 July 2001 concerned Ms Petkova’s attempts to obtain restitution “in actual boundaries”, whereas the complaint under examination here is about the delays in determining the compensation due and the enforcement of any decision taken. It follows that the applicant’s failure to appeal against the judgment of 6 July 2001 cannot be seen as a failure to make use of a relevant remedy. In addition, the judgment cannot be considered a “final decision” within the meaning of Article 35 § 1 of the Convention. Accordingly, the Court dismisses the objections raised by the Government in connection with Ms Petkova’s application.
34. Lastly, the Court notes that the applications are not manifestly ill‑founded within the meaning of Article 35 § 3(a) of the Convention, nor inadmissible on any other grounds. They must therefore be declared admissible.
C. Merits
35. The Government considered that the applicants had not had any “possession” within the meaning of Article 1 of Protocol No. 1 because the restitution procedures had not been completed. They argued also that the process of restitution of agricultural land was very complex, which had justified some delays, and that the applicants had themselves contributed to the delays in the procedures concerning their lands. The applicants contested these arguments.
36. The Court recalls that an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see Prince Hans‑Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001‑VIII, and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX).
37. In addition, the Court has held that Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. On the other hand, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement (see Broniowski v. Poland [GC], no. 31443/96, § 125, ECHR 2004‑V).
38. The present cases concern complaints about unjustified delays in the process of restitution of agricultural land in Bulgaria. The Court has already examined a number of cases raising similar issues (see Naydenov v. Bulgaria, no. 17353/03, 26 November 2009, and Lyubomir Popov and Vasilev and Doycheva, both cited above) and refers to the principles developed therein. The Court recalls also that in the case of Vasilev and Doycheva it noted that the problem was recurrent and expressed the view that the Bulgarian authorities had to provide for clear time‑limits for the adoption and enforcement of administrative decisions necessary for the completion of the process of restitution of agricultural land (see § 69 of the judgment).
39. As in the above-mentioned cases, the Court finds, in the first place, that the respective decisions of the land commissions according to which the applicants had the right to receive land through a “land redistribution plan” or compensation in lieu of restitution created an entitlement which was sufficiently established under domestic law so as to amount to a legitimate expectation and thus a “possession” within the meaning of Article 1 of Protocol No. 1 (see Naydenov, §§ 68-70, Lyubomir Popov, § 117, and Vasilev and Doycheva, §§ 41-43, all cited above). Furthermore, it appears that at no stage was that entitlement to restitution or compensation contested in the domestic proceedings.
40. The Court recalls in the next place that in the similar cases referred to above it has found that failure on the part of the authorities for many years to determine and meet the applicants’ legitimate expectations amounted to interference with the applicants’ rights under Article 1 of Protocol No. 1 (see Naydenov, §§ 71-72, and Lyubomir Popov, § 119, both cited above). The Court notes that in the present cases as well the applicants’ legitimate expectations remained undetermined and the restitution procedures remained uncompleted for long periods of time, namely between thirteen and seventeen years following the decisions which gave rise to those legitimate expectations (see paragraphs 6-9, 11-18 and 22‑27 above).
41. The Government argued that the applicants were themselves partly responsible for those delays. They pointed out that in 2000 the applicant in application no. 19130/04, Ms Petkova, had submitted with the Plovdiv land commission documents concerning her claim to obtain restitution “in actual boundaries” (see paragraphs 6-8 above). However, the Court cannot see how this action of the applicant could have delayed the process of determination of her right to compensation and the awarding of such compensation, given that it must have already become clear in 1996 that it was no longer possible to amend the land commission’s decision of 2 December 1994 refusing restitution “in actual boundaries” (see paragraph 7 above). In addition, the Government pointed out that the applicants in application no. 17694/05, Ms Ivanova, Mr Tanev and Ms Mincheva, had challenged on several occasions decisions of the Radnevo land commission (later Agriculture and Forestry Department) which could have led to awarding them compensation (see paragraphs 12-16 above). The Court notes that these actions of the applicants were aimed at determining through valid decisions the compensation due to them and completing the restitution process.
42. The Court cannot therefore conclude that the applicants’ actions referred to by the Government were the cause of any unjustified delay in the procedures. Similarly to the cases referred to in paragraph 39 above, the Court finds in the present cases that the lengthy delays in the process of restitution of agricultural land were attributable to the authorities. Therefore, they amounted to interference with the applicants’ rights under Article 1 of Protocol No. 1.
43. The Court finds further that, as there were no special time-limits under the relevant legislation for completing the restitution process, the interference with the applicants’ rights was apparently in accordance with domestic law. Furthermore, as the delays described above could have, at least in some measure, served the proper management of agricultural land and the protection of the rights of third persons, as it might have been necessary to accommodate the claims of numerous former owners, the Court is prepared to assume that the interference pursued a legitimate aim in the public interest (see Naydenov, § 78, Lyubomir Popov, § 119, and Vasilev and Doycheva, § 46, all cited above).
44. However, the Court is not satisfied that the lengthy delays incurred in the present cases were necessary for the achievement of the legitimate aims mentioned above. The Government did not provide any explanation for those delays in the context of the specific cases and the Court has already found the Government’s general reference to the complexity of the restitution process (see paragraph 35 above) insufficient (see Lyubomir Popov, cited above, § 122).
45. Accordingly, the Court finds that the interference with the applicants’ rights under Article 1 of Protocol No. 1 was not proportional, in that the respondent State failed to strike a fair balance between the public interests it might have pursued and the need to protect the applicants’ individual rights.
46. It follows that there has been a violation of Article 1 of Protocol No. 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
47. 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. Application no. 17694/05
48. The Court notes at the outset that neither the applicants in that application, nor their heirs submitted a claim for just satisfaction. Accordingly, the Court considers that it is not necessary to consider a just satisfaction on that case.
B. Remaining applications
1. Damage
49. In respect of pecuniary damage, the applicant in application no. 19130/04, Ms Petkova, claimed 377,029 euros (EUR) for the market value of her share of the plot she had initially sought to have restituted, in accordance with her inheritance rights (see paragraph 5 above), and sums she could have allegedly received had she rented out that plot between 2004 and 2011. In support of her claims the applicant presented an expert report. In respect of non-pecuniary damage she claimed EUR 20,000.
50. The applicant in application no. 27777/06, Mr Yankov, expressed a wish to have his share in his grandfather’s land returned to him or, failing that, to receive its market price and compensation for not having been able to use the land for a long period of time. He claimed EUR 105,896 under this head. In addition, the applicant claimed EUR 10,000 for non-pecuniary damage.
51. The Government considered that there was no causal link between the claims for pecuniary damage and the violations at issue and that the claims for non-pecuniary damage were excessive.
52. The Court notes that it found a violation of Article 1 of Protocol No. 1 only as concerns the excessive delays in the restitution procedures in the applicants’ cases (see paragraphs 35-46 above) and that the applicant’s complaints concerning their claims to receive specific plots were declared inadmissible in the partial decision in these cases (see paragraph 3 above). The Court will therefore only award just satisfaction for the delay in the restitution procedures. Applying the approach set out in the similar cases referred to in paragraph 38 above, it awards the lump sums of EUR 3,000 to Ms Petkova and EUR 3,500 to Mr Yankov, to cover any loss of opportunity and any non-pecuniary damage caused by the violation of their rights.
2. Costs and expenses
53. The applicant in application no. 19130/04, Ms Petkova, claimed EUR 4,991 for the work of her representatives, Mr M. Ekimdzhiev and Ms K. Boncheva, and EUR 237 for expenses for postage, copying and translation. In support of these claims she presented a time-sheet for her lawyers’ work and a contract for legal representation. She requested that these amounts be transferred directly into her representatives’ bank accounts. She claimed another EUR 409 for the cost of the expert report provided in support of her claim for pecuniary damage (see paragraph 49 above), to be paid directly to her.
54. The applicant in application no. 27777/06, Mr Yankov, claimed EUR 1,200 for the work of his representative, Ms S. Margaritova‑Vuchkova, and EUR 65 for postage and translation. In support of these claims he presented a time-sheet, a contract for legal representation and the relevant invoices. Mr Yankov requested that any amount awarded for costs and expenses be transferred directly into his legal representative’s bank account.
55. The Government considered the claims above to be excessive.
56. 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.
57. In the case of Ms Petkova, application no. 19130/04, the Court considers that the costs for an expert report incurred directly by the applicant (see paragraph 49 above) were not necessary, given that the report did not relate to the delay in the restitution proceedings. As to the remaining costs and expenses, the Court considers it appropriate to award EUR 1,000, to be transferred directly into the bank accounts of Mr M. Ekimdzhiev and Ms K. Boncheva.
58. In the case of Mr Yankov, application no. 27777/06, the applicant has been granted legal aid in the amount of EUR 850 (see paragraph 2 above). The Court considers that it is not necessary to make any further award in respect of the legal work performed by the applicant’s lawyer, who only joined the proceedings after the communication of the application. On the other hand, the Court finds that the expenses for postage and translation in the amount of EUR 65 were necessary and actually incurred and reasonable as to quantum. It thus awards in full that amount, to be transferred directly into Ms Margaritova-Vuchkova’s bank account.
3. Default interest
59. 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 remainder of the applications admissible;
2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;
3. Holds
(a) that the respondent State is to pay, within three months, the following amounts, to be converted into Bulgarian leva at the rate applicable at the date of settlement:
(i) to Ms Tsvetana Stoycheva Petkova (application no. 19130/04), EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage, and EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, the latter sum to be transferred directly into her legal representatives’ bank accounts;
(ii) to Mr Dimitar Ognyanov Yankov (application no. 27777/06), EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage, and EUR 65 (sixty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, the latter sum to be transferred directly into his legal representative’s bank account;
(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 claims for just satisfaction.
Done in English, and notified in writing on 25 September 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident
Full & Egal Universal Law Academy