CASE OF SHEYTANOVA v. BULGARIA

FOURTH SECTION

CASE OF SHEYTANOVA v. BULGARIA

(Application no. 42218/13)

JUDGMENT
 

STRASBOURG

1 September 2020

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

In the case of Sheytanova v. Bulgaria,

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

Faris Vehabović, President,
Iulia Antoanella Motoc,
Carlo Ranzoni, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application 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 a Bulgarian national, Ms Malena Vassileva Sheytanova (“the applicant”), on 23 June 2013;

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

the parties’ observations;

Having deliberated in private on 30 June 2020,

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

INTRODUCTION

1.  The case concerns a complaint about the excessive length of restitution proceedings.

THE FACTS

2.  The applicant was born in 1983 and lives in Sofia.

3.  The Government were represented by their Agent, Mr V. Obretenov of the Ministry of Justice.

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

5.  The applicant is one of the heirs of Mr M. She is entitled to a half of his inheritance.

6.  Mr M. owned a part of an afforested island in the Danube. In 1948 the property was expropriated by the communist authorities.

7.  In 1998, after the adoption of the Forests Restitution Act, Mr M.’s heirs initiated a restitution procedure. The course of these proceedings has been described in detail in the Court’s judgment in Popov and Chonin v. Bulgaria (no. 36094/08, §§ 9‑21, 17 February 2015), a case brought by one of the other heirs of Mr M. and another applicant.

8.  Notably, on 12 December 2000 the competent body – a local land commission – recognised the entitlement of Mr M.’s heirs, in principle, to restitution or compensation with regard to 542,500 square metres of land. Since restitution in kind was impossible, the island being situated in a border zone and therefore being public State property, the land commission held that the heirs were to receive compensation. Under the relevant domestic law, the only possible means of compensation was through the provision of other equivalent afforested land.

9.  In the following years the authorities made attempts to identify forests of sufficient size and quality. Two decisions in that regard by the Montana agriculture department (former land commission), given in 2003 and 2009, were quashed by the Montana District Court in 2007 and 2012 respectively on grounds that, as regards the first decision, the administrative body had allotted Mr M.’s heirs forest land of low quality and, as regards the second, that contrary to the land commission’s findings appropriate land was available in the Montana region. As a result, the Montana District Court identified such land and ordered that it be transferred to the heirs.

10.  In 2013-14 the agriculture departments in Montana and in neighbouring towns adopted several decisions transferring to the heirs of Mr. M. several plots of afforested land. The last of these decisions was dated 28 January 2014.

11.  On numerous occasions throughout the years and until 2014 the applicant and other heirs of Mr M. wrote to the authorities, complaining about the delays in the procedure and the periods of inactivity.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

12.  The relevant domestic law on the restitution of forests has been summarised in Popov and Chonin (cited above, §§ 27-29).

13.  The domestic law and practice concerning a compensatory scheme with regard to excessive length of judicial proceedings have been described in Balakchiev and Others v. Bulgaria (dec.) (no. 65187/10, §§ 20-34, 18 June 2013).

THE LAWALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1

14.  The applicant complained of the duration of the restitution procedure. While she relied on Article 6 § 1 of the Convention, the Court finds that the complaint falls to be examined under Article 1 of Protocol No. 1 (see Popov and Chonin, cited above, §§ 33-34; Petkova and Others v. Bulgaria [Committee], no. 19130/04, § 29, 25 September 2012; Kamenova v. Bulgaria [Committee], no. 61731/11, §§ 23-24, 16 May 2019), 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.”Admissibility

15.  The Government were of the view that the applicant had failed to exhaust the available domestic remedies. They argued that it had been open for her to seek compensation under the scheme concerning excessive length of judicial proceedings, or to bring a tort action against the State.

16.  The applicant disagreed.

17.  The Court observes that the applicant did not complain about the length of a single set of judicial proceedings, but with regard to a restitution procedure, during which different administrative and judicial decisions were taken. On two occasions the matter reached the courts, but the complaint is not about delays in these particular judicial proceedings; as mentioned, it is about the restitution procedure as a whole. The Government have not shown that the compensation scheme they referred to was applicable to a complaint of such type, nor does the Court see a reason to find so (see, mutatis mutandis, S.Z. v. Bulgaria, no. 29263/12, §§ 34-35, 3 March 2015).

18.  In so far as the Government are to be understood to argue that the applicant could bring a tort action against the State outside the compensatory scheme discussed in the preceding paragraph, the Court refers to its findings in previous cases concerning the duration of restitution proceedings that such a remedy had not been shown to be effective (see Lyubomir Popov v. Bulgaria, no. 69855/01, §§ 102-05, 7 January 2010, and Vasilev and Doycheva v. Bulgaria, no. 14966/04, § 29, 31 May 2012). The Government have presented no arguments, nor referred to case law of the domestic courts, which could lead the Court to a different conclusion.

19.  Accordingly, the Court dismisses the Government’s objections of non-exhaustion of domestic remedies.

20.  The Court notes furthermore that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.Merits

21.  The Government argued that the restitution procedure had been delayed due to a “lawful obstacle”, namely the difficulty in identifying appropriate land for the heirs of Mr M. They urged the Court to take also into account the complexity of the restitution process in general.

22.  The applicant considered that the restitution procedure had been delayed due to the administrative authorities’ unwillingness to find a suitable solution. They had issued invalid decisions and had remained inactive during lengthy periods of time. Lastly, the applicant pointed out that the case had not been complex and that there had been no dispute as to her entitlement, in principle, to compensation in lieu of restitution.

23.  The Court observes that the applicant’s legitimate expectation to compensation in lieu of restitution arose in 2000, when the local land commission recognised the entitlement of the heirs of Mr M. in that regard (see paragraph 8 above). The procedure was completed in the beginning of 2014, about fourteen years later, with the provision of the necessary compensation (see paragraph 10 above).

24.  The Court has found breaches of Article 1 of Protocol No. 1 in many earlier cases against Bulgaria concerning the excessive duration of restitution proceedings (see, for example, Lyubomir Popov and Vasilev and Doycheva, cited above; Nedelcheva and Others v. Bulgaria, no. 5516/05, 28 May 2013; and, more recently, Zikatanova and Others v. Bulgaria, no. 45806/11, 12 December 2019).

25.  As already mentioned, the case of Popov and Chonin concerned the same procedure which is at stake in the case at hand. The Court, in finding a violation of Article 1 of Protocol No. 1 in Popov and Chonin, criticised the confusing decisions of the national authorities, the lack of diligence and determination on their part to find an appropriate solution, and the inflexible legislation which did not allow for other means of compensation. The Court observed additionally that the applicants (one of whom was an heir of Mr M., and the other – of a person who had co-owned with him the island) had not caused any substantial delay, and that they had been placed in a situation of prolonged uncertainty (see Popov and Chonin, cited above, §§ 45-52).

26.  The Court sees no reason to reach a different conclusion in the case at hand. It takes note of the Government’s arguments related to the complexity of the restitution process and the difficulties in the present case (see paragraph 21 above), and agrees that this could have caused some reasonable delay (see, for similar findings, Zagorchinova v. Bulgaria (dec.) [Committee], no. 26471/06, 5 July 2012, and Filipov v. Bulgaria (dec.), no. 39135/06, § 52, 20 November 2012). However, for the considerations put forward in Popov and Chonin and summarized in the preceding paragraph, it finds such factors as referred to by the Government insufficient to justify the delay under examination.

27.  The Court finds thus that the restitution procedure in the applicant’s case was unjustifiably delayed through the fault of the national authorities.

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

29.  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.”Damage

30.  In respect of pecuniary damage the applicant claimed 44,000 euros (EUR).

31.  She argued, first, that, had the restitution procedure been completed on an earlier date, she would have been able to economically exploit the forests due to her. She submitted permits authorising logging in those forests in 2016-18, and on that ground drew conclusions as to amount of timber which could have been harvested in the preceding years. She pointed out in addition that logging was a process which was, in principle, repeatable every three to ten years. The applicant submitted a contract for the sale of timber concluded by one of the remaining heirs of Mr M. – indicative, in her view, of the minimum possible price. On the ground of these data, taking into account her share of Mr M.’s inheritance (see paragraph 5 above), the applicant calculated the income she considered to have lost between 2000 and 2014 from the economic exploitation of the forests at issue at 55,560 Bulgarian levs (BGN), the equivalent of about EUR 28,400.

32.  The applicant considered, second, that she had incurred damage due to being unable, after 2014, to sell profitably her forests; she argued that the situation would have been different if the restitution procedure had been completed earlier, and submitted a document entitled “Analysis of the market of forestry land”, showing that between 2004 and 2006 the demand for such land had been high.

33.  Lastly, in respect of non-pecuniary damage, the applicant claimed EUR 6,000.

34.  The Government contested the claims. They considered that the pecuniary damage claimed had not been the immediate consequence of any violation of the applicant’s rights.

35.  The Court finds that the applicant must have suffered pecuniary damage as a result of the violation of her rights (see Naydenov v. Bulgaria, no. 17353/03, § 95, 26 November 2009). That damage stemmed only from the unjustified delay in the procedure, as the applicant has received the compensation due to her (see Lyubomir Popov, cited above, § 138). With a view to the applicant’s specific claims, the Court makes the following remarks.

36.  First, even though it found above that the applicant’s legitimate expectation to compensation in lieu of restitution had arisen in 2000 and that the procedure had continued until 2014 (see paragraph 23 above), it did not conclude that the entire delay at issue had been unjustified. On the contrary, it noted that some reasonable delay could have been caused due to the general complexity of the restitution process and the difficulties encountered by the authorities in the particular case (see paragraph 26 above). Accordingly, the Court cannot conclude that any loss of profit for the applicant during the whole period between 2000 and 2014 was the direct and proximate result of the violation of her rights under Article 1 of Protocol No. 1.

37.  Second, the Court considers that, despite making detailed submissions in that regard (see paragraph 31 above), the applicant has not established definitely the amount of logging she could have undertaken, seeing in particular that she has not specified whether any logging in the forests allotted to her had been undertaken at the time when, according to her, the restitution should have happened, nor what the state of those forests had been. Moreover, the applicant complains of the impossibility to undertake what is in essence an economic activity, and the Court has already referred, in the context of claims regarding lost profit, to the inherent uncertainty of such activities (see, for example, Basarba OOD v. Bulgaria (just satisfaction), no. 77660/01, § 26, 20 January 2011). Lastly, the Court points out that it is a mere assumption that the applicant would have actually undertaken the activity she referred to, and not, for example, sold her share of the property in the years when, according to her, demand for forestry land was high.

38.  And third, the Court cannot hold the respondent State liable for any fluctuations of the forestry land market, and the applicant has not shown that the land allotted to her and the remaining heirs of Mr M. indeed lost of its value as a result of the violation of her rights as found above.

39.  In view of these considerations and the different imponderables it has to account for, the Court, making therefore an assessment on an equitable basis, considers it reasonable to award the applicant EUR 12,000 under the present head.

40.  Lastly, in view of the circumstances of the case, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage.Costs and expenses

41.  The applicant claimed BGN 745.5 (EUR 380) for the expenses incurred by her in the domestic judicial proceedings ending in 2007 (see paragraph 9 above).

42.  In respect of the costs and expenses incurred before the Court, the applicant claimed the reimbursement of BGN 1,000 (EUR 510), which she had paid to lawyers for the preparation of her initial application. In support of that claim she submitted the relevant receipt. She claimed in addition expenses incurred for postage, submitting receipts for the payment of BGN 33.8 (EUR 17).

43.  The Government contested the claims.

44.  The Court dismisses the claim related to the domestic proceedings. It notes that the applicant and the remaining heirs of Mr M. were the successful party in those proceedings, and could thus claim the reimbursement of the expenses they had made.

45.  As to the costs and expenses incurred in the proceedings before it, the Court, considering that they were actual, necessary and reasonable as to quantum, awards them in full.

46.  The award under the head of costs and expenses is thus EUR 527.Default interest

47.  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 the application admissible;Holds that there has been a violation of Article 1 of Protocol No. 1;Holds

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

(i)  EUR 12,000 (twelve thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 527 (five hundred twenty-seven euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 1 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Ilse Freiwirth Faris Vehabović
Deputy RegistrarPresident

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