FOURTH SECTION
CASE OF STOYANOV AND TABAKOV v. BULGARIA (No. 2)
(Application no. 64387/14)
JUDGMENT
Art 6 § 1 (civil) • Art 1 P1 • Fair hearing • Peaceful enjoyment of possessions • Continued non-enforcement of final domestic judgments obliging council to initiate privatisation procedure for sale of property to applicants at preferential conditions, after finding of violations by the European Court in 2013 • Distinct situation containing relevant new information relating to issues undecided by that judgment and still under supervision of the Committee of Minister for its execution
STRASBOURG
7 December 2021
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Stoyanov and Tabakov v. Bulgaria (no. 2),
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Tim Eicke, President,
Yonko Grozev,
Faris Vehabović,
Iulia Antoanella Motoc,
Armen Harutyunyan,
Gabriele Kucsko-Stadlmayer,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 64387/14) 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 two Bulgarian nationals, Mr Valeri Stoyanov Stoyanov (the first applicant”) and Valentin Stoyanov Tabakov (“the second applicant”), on 8 September 2014;
the decision to give notice to the Bulgarian Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 16 November 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the non-enforcement of final domestic judgments in the applicants’ favour by virtue of which a municipal council was obliged to initiate a privatisation procedure for the sale of a property to the applicants at preferential conditions. It raises an issue under Article 6 § 1 of the Convention, Article 1 of Protocol No. 1 to the Convention, and Article 13 of the Convention in conjunction with the above-mentioned provisions. In an earlier judgment (see Stoyanov and Tabakov v. Bulgaria, no. 34130/04, 26 November 2013, hereinafter referred to also as “the Court’s 2013 judgment”), the Court found violations of the above‑mentioned Convention provisions in an application brought by the same applicants, regarding the same privatisation procedure.
THE FACTS
2. The applicants were born in 1962 and 1960 respectively and live in Pazardzhik.
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.
the court’s 2013 judgment5. In 1996 the applicants submitted a proposal to the Pazardzhik Municipal Council (“the council”) to purchase an office, part of a house which was municipal property, under a preferential privatisation procedure applicable to tenants of State and municipally-owned properties provided for in section 35(1) of the Privatisation Act 1992 (Закон за преобразуване и приватизация на държавни и общински предприятия). As the council did not reply, they brought judicial review proceedings. In a final judgment of 17 February 2005 the courts quashed the council’s tacit refusal to open a privatisation procedure and found that it was obliged to do so, and to offer the applicants to buy the office in question, within a two-month period. In July 2007 the council decided to open such a procedure and in September 2007 it assigned the applicants as buyers, and set the conditions for the purchase, namely the purchase price. Following a judicial challenge to the conditions set by the council, in a final judgment of 8 January 2010 the courts quashed the September 2007 council’s decision in its part setting the conditions for privatisation. The applicants unsuccessfully pursued enforcement of the two final judgments in their favour.
6. The Court found in its 2013 judgment (see paragraph 1 above) that the municipal authorities had not only failed to undertake the necessary steps to enforce the final judgments in the applicants’ favour, but had demonstrated a particular unwillingness to do so. Specifically, the council had annulled its own decisions of 2007 which had recognised the applicants’ privatisation rights in respect of the office. Once the decisions’ annulment had been quashed in court, the council had attempted to have the courts declare those decisions null and void. Even though the domestic courts had repeatedly found for the applicants, and even awarded them compensation, the council’s actions had resulted in a fully unjustified delay of enforcement of the final judgments, in violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. The Court furthermore found a violation of Article 13 of the Convention, in conjunction with the above‑mentioned provisions, due to the absence of an effective domestic remedy.
7. The Committee of Ministers of the Council of Europe has been supervising the execution of the Court’s 2013 judgment, since it became final in February 2014. As of 6 October 2021, the case was pending before the Committee who was awaiting information on the individual measures adopted by the authorities with a view to enforcing the domestic judgments in the applicants’ favour.
Facts subsequent to the court’s 2013 judgment8. In three decisions taken respectively on 31 October, 25 November and 19 December 2013, the council resolved to open a privatisation procedure concerning the whole house mentioned in paragraph 5 above, including the office subject to the Court’s 2013 judgment, and determined the conditions for that procedure under the Privatisation Act 2002 (Закон за приватизация и следприватизационен контрол).
9. The privatisation procedure, opened by the council at the end of 2013, apparently fixed eligibility conditions which disqualified the applicants from participating. As a result of judicial challenges by the applicants against the three council’s decisions of 2013 (see paragraph 8 above), the courts quashed those decisions as unlawful. Among other things, the Pazardzhik Administrative Court held in three separate judgments, two of 6 February 2014 and one of 18 March 2014, that, by opening an entirely new procedure under a new law, the council had disregarded the final judgments in the applicants’ favour on the basis of which the council had been obliged to proceed with a privatisation procedure under the Privatisation Act 1992 (see paragraph 5 above). The Supreme Administrative Court (“the SAC”) upheld those findings, in final judgments of 14 May 2014, 4 December 2014 and 28 March 2016.
10. In the meantime, on 24 February 2014, the applicants put the mayor on notice in writing that on 26 February 2014 the Court’s 2013 judgment (see paragraphs 5-7 above) would become final. They pointed out that, if the mayor were to enter into a contract selling the property in question to a third party, that would make it impossible to enforce several domestic judgments, as well as the Court’s 2013 judgment. They invited the mayor to inform the council accordingly. Notwithstanding the above and following a publicly‑announced bidding competition held on 17 February 2014, in a decision of 27 February 2014 the council assigned company Z. as the buyer, and tasked the mayor with entering into a contract with it.
11. A judicial challenge by the applicants to the council’s decision of 27 February 2014 (see paragraph 10 above) was dismissed in a final decision of 28 July 2014 by the SAC, which found that the applicants had no legal interest to pursue the proceedings. The SAC specified that it had been the council’s decisions of 2013 (see paragraph 8 above), which had opened the contested privatisation procedure and determined the conditions for it, that had affected the applicants’ legal interests.
12. Acting upon a challenge brought by the prosecutor, on 14 July 2014 the Pazardzhik Administrative Court quashed the council’s decision of 27 February 2014 as unlawful. The court held that the authorities had been obliged, on the basis of the final judgment of 17 February 2005 (see paragraph 5 above), to conduct a privatisation procedure under the old Privatisation Act 1992, and not a new procedure under the Privatisation Act 2002. The SAC confirmed the lower court’s findings in a final judgment of 22 April 2015.
13. Nonetheless, in the meantime the house (see paragraph 8 above) had been sold to company Z., on the basis of a contract entered into on 12 March 2014.
14. Subsequently, in November 2016 the council and company Z. reached an agreement, accepting that the contract for the sale of the house had been null and void, as a result of the judicial decisions quashing all of the related council decisions.
15. On 28 June 2017 the mayor notified the second applicant that his rental contract, entered into with the municipality in 1994, was being unilaterally terminated with a month’s notice. In a separate letter of the same date, the mayor invited the applicant to voluntarily vacate the office premises within seven days following the end of the month’s notice for the termination of the contract.
16. In judicial proceedings brought by the second applicant in 2017, in a judgment of 22 February 2018, final on 3 April 2018, the Pazardzhik Regional Court directed the council to refrain from unilaterally terminating his rental contract in respect of the office, until such time as the privatisation procedure, subject to the final judgments of 17 February 2005 and 8 January 2010 (see paragraph 5 above), was completed. The second applicant had previously, in July 2017, unsuccessfully pursued separate proceedings seeking a judicial order to the same effect.
17. It would appear that the second applicant continued to use the office as the premises for his legal practice, even though, according to him, the municipal authorities had at some point cut the electricity and water supply to the house. The first applicant, who had shared the office with the second applicant until about 2007, has moved out.
18. In addition, both applicants successfully pursued proceedings under the State and Municipality Responsibility for Damage Act 1988 (“the SMRDA”), concerning non-pecuniary damage in relation to the council’s unlawful decisions of November and December 2013 (see paragraph 8 above). The courts examining the claims for compensation found that, as those decisions had been declared unlawful in court (see paragraph 9 above), and the applicants had experienced negative emotions and frustration in connection with those decisions, they had sustained related non-pecuniary damage as a result. In particular, in a final judgment of 10 October 2017 the SAC awarded the first applicant 500 euros (EUR) in relation to damage he had sustained as a result of the council’s decision of 25 November 2013. In a final judgment of 31 May 2018 the SAC awarded the second applicant EUR 2,500 in relation to damage he had sustained as a result of the council’s decision of 19 December 2013. The damages concerned the period between 2013 and 2016. In determining the amount of the award, the courts deciding on the claim of the second applicant found that the demonstrative unwillingness by the council to act in accordance with the final domestic judgment (see paragraph 5 above) had resulted in increased intensity of the applicant’s suffering and granted his claim in full.
RELEVANT LEGAL FRAMEWORk
19. The relevant domestic legal provisions have been set out in Stoyanov and Tabakov (cited above, §§ 45-64).
20. In addition, under section 21 of the Local Self-Government and Local Administration Act (“the Local Self-Government Act”), the municipal council has competence to dispose of municipal property and define the scope of the mayor’s related powers. Under section 23(4) of the Local Self-Government Act, the council could be convened to vote by its chairperson on his or her initiative, or following a request to that effect by one third of the municipal councils, one fifth of the municipal electorate, or by the regional governor.
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION and of article 1 of protocol no. 1 to the COnvention21. The applicants complained about the continued lack of enforcement of the final judgments of 17 February 2005 and 8 January 2010 (see paragraph 5 above), according to which the municipal authorities had been obliged to open a privatisation procedure and to offer to sell an office to the applicants under preferential conditions. They also argued that this was in breach of the Court’s 2013 judgment (see paragraphs 5-7 above). They relied on Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention, the relevant parts of which read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
AdmissibilityArguments by the parties22. The Government advanced the argument that the complaint was inadmissible on a number of counts.
23. Firstly, Article 6 was not applicable and the applicants were not victims of a Convention violation, given that there had been no refusal to implement the final judgments in the applicants’ favour, nor a new interference with their rights.
24. Secondly, the application had been submitted outside the six-month time-limit following the final domestic decision.
25. Finally, the complaint was inadmissible for failure to exhaust domestic remedies. In particular, the applicants had not attempted to convene the municipal council in accordance with the Local Self‑Government Act. Furthermore, they had not turned to the Ombudsperson or the Mediator of Pazardzhik Municipality for assistance. Nor had they brought proceedings for damages under the SMRDA, in relation to the delayed enforcement, at the end of which they could have been awarded compensation for potential new violations of their rights.
26. The applicants disagreed.
The Court’s assessment(a) The Court’s competence ratione materiae
27. The Court must first deal with the question whether it has jurisdiction ratione materiae to examine the applicants’ complaints.
(i) General principles
28. The Court reiterates that the Committee of Ministers’ role in supervising the enforcement of the Court’s judgments does not mean that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment and, as such, form the subject of a new application that may be dealt with by the Court (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 62, ECHR 2009, with further references).
29. On that basis, the Court has found that it had the competence to entertain complaints in a number of follow-up cases, for example where the domestic authorities have carried out a fresh domestic examination of the case by way of implementation of one of the Court’s judgments, whether by reopening of the proceedings (see Emre v. Switzerland (no. 2) no. 5056/10, 11 October 2011) or by the initiation of an entire new set of domestic proceedings (see The United Macedonian Organisation Ilinden – PIRIN and Others v. Bulgaria (No. 2), nos. 41561/07 and 20972/08, 18 October 2011, and Liu v. Russia (no. 2), no. 29157/09, 26 July 2011).
30. Reference should be made in this context to the criteria established in the case-law concerning Article 35 § 2 (b), by which an application is to be declared inadmissible if it “is substantially the same as a matter that has already been examined by the Court ... and contains no relevant new information”. The Court must therefore ascertain whether the complaint brought before it by the applicants relates essentially to the same persons, the same facts and the same complaints (see Verein gegen Tierfabriken Schweiz (VgT), cited above, § 63, with further reference).
(ii) Application of those principles in the present case
31. The Court reiterates that a complaint is characterised by the facts alleged in it, not by the legal grounds or arguments relied on (see, among other authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 113, 20 March 2018).
32. To the extent that the applicants’ complaint may be understood as being about the lack of compliance by the Bulgarian authorities with the Court’s 2013 judgment (see paragraph 21 above), including by them having actively pursued steps to undermine the said judgment, the Court emphasises that its judgments are essentially declaratory in nature and that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used to discharge its obligations under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (see, among other authorities, Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005‑IV; Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I; and Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). The Court does not have jurisdiction to verify whether a Contracting Party has complied with the obligations imposed on it by one of the Court’s judgments (see Wasserman v. Russia (no. 2), no. 21071/05, § 31, 10 April 2008, with further reference).
33. It follows that the complaint in the instant application about the failure of the national authorities to execute the Court’s 2013 judgment is a matter for the Committee of Ministers, in the context of its supervision of the execution of the Court’s judgments (see, similarly, Egmez v. Cyprus (dec.), no. 12214/07, §§ 49-50, 18 September 2012, with further references). That complaint falls outside of the Court’s jurisdiction and is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3. It must be rejected in accordance with Article 35 § 4 of the Convention.
34. The Court must next determine whether it is competent ratione materiae to examine the applicants’ complaint concerning the new developments which occurred after October 2013, while the implementation of the Court’s 2013 judgment was being supervised under Article 46 by the Committee of Ministers (compare with Wasserman, cited above, § 31). The Court reiterates in this connection that the powers assigned to the Committee of Ministers by Article 46 of the Convention are not being encroached on where the Court has to deal with relevant new information in the context of a fresh application (see Liu, cited above, § 65, with further references). In the specific context of allegations of a continuing violation of a Convention right, following adoption of a judgment in which the Court found a violation of that right during a certain period, it is not unusual for the Court to examine a second application concerning a violation of the same right during the subsequent period (see Wasserman, cited above, § 33, with further references).
35. Reiterating that the Convention is intended to guarantee rights that are not theoretical or illusory but practical and effective (see, among other authorities, Musci v. Italy [GC], no. 64699/01, § 84, ECHR 2006‑V (extracts)), the Court finds that it is not prevented from examining the applicants’ present complaint, even though the Committee of Ministers has not completed its supervision of the execution of the Court’s 2013 judgment by the Bulgarian authorities (see, mutatis mutandis and for example, Liu, cited above, § 65 and Mehemi v. France (no. 2), no. 53470/99, §§ 52-56, ECHR 2003‑IV).
36. In particular, the complaint concerns a new period, not covered by the Court’s 2013 judgment, and a series of events that took place after October 2013. Although those events could be seen as concerning the enforcement of the Court’s 2013 judgment, they are new in relation to the enforcement steps forming the subject of that judgment, and were subsequent to them (compare, mutatis mutandis, Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 54, 11 July 2017, and The United Macedonian Organisation Ilinden – PIRIN and Others, cited above, § 64).
37. Furthermore, the applicants’ complaint relates to the compatibility of the actions pursued by the authorities during the new period with the requirements of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. That being so, the Court finds that the complaint can be examined separately from the aspects relating to the execution of the Court’s 2013 judgment (see, similarly, Moreira Ferreira, cited above, § 54). Accordingly, the Court considers that the complaint before it concerns a distinct situation containing relevant new information relating to issues undecided by that judgment, namely the applicants’ position during the period after October 2013 (compare, mutatis mutandis, Mehemi, § 43, and The United Macedonian Organisation Ilinden – PIRIN and Others, § 64, both cited above).
38. It follows that, as the applicants’ complaint concerns a further period during which the domestic judgments in their favour remained unenforced, and were even contravened, it has not been previously examined by the Court (see, similarly, Wasserman, cited above, § 37). In view of the above, the Court finds that it is competent to examine the applicants’ complaint relating to the actions taken by the national authorities in the context of enforcement of the final domestic judgments, to the extent that those actions fall after the period considered in the Court’s 2013 judgment (see, a contrario, Kuppinger v. Germany, no. 62198/11, §§ 87-92, 15 January 2015), that period being up until October 2013 (see Stoyanov and Tabakov v. Bulgaria, no. 34130/04, § 44, 26 November 2013). The Government’s objection to the applicability of Article 6 of the Convention (see paragraph 23 above), and therefore about lack of jurisdiction ratione materiae as regards the new developments at the national level after 2013, must therefore be dismissed.
(b) Other admissibility issues
39. The Court observes that, as the instant complaint concerns prolonged lack of enforcement of final domestic judgments, the situation complained of is a continuing one. Accordingly, the six-month period starts to run afresh each day and it is in general only when that situation ends that the six-month period actually starts to run (see, among many other authorities, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 261, ECHR 2014 (extracts)). It cannot, therefore, be said that the applicants, who introduced their application on 8 September 2014, submitted the complaint in question outside the six-month time-limit.
40. In respect of the objection of non-exhaustion of domestic remedies (see paragraph 25 above), the Court recalls the general principles laid down in Vučković and Others v. Serbia ([GC] (Preliminary Objection), nos. 7153/11 and 29 others, §§ 69-77, 25 March 2014) and finds as follows. First, the applicants were not among the subjects entitled under the Local Self-Government Act to seek to convene the municipal council for it to vote on their request to pursue a privatisation procedure (see paragraph 20 above). Secondly, as to a potential complaint which the applicants could have made before the Ombudsman or the Mediator, the Court has repeatedly held that such complaints are not an effective remedy because it is not open to the applicant to complain directly to the courts (see, among other authorities, Tănase v. Moldova [GC], no. 7/08, § 122, ECHR 2010).
41. Thirdly, in respect of a claim for damages under the SMRDA, the Court notes that both applicants sought and obtained compensation for non‑pecuniary damage under the SMRDA. However, the basis for the awards was not the lack of enforcement of the final domestic judgments in their favour, but the quashing of the council decisions of November and December 2013 as unlawful (see paragraph 18 above). Consequently, as the object of those claims was not compensation for damage as a result of lack of enforcement, they could not provide appropriate redress to the applicants despite the compensation awarded to them (compare Stoyanov and Tabakov, cited above, § 104). Given that the applicants’ complaint concerns the non‑enforcement of domestic judicial decisions, in accordance with which the Government was obliged to carry out a privatisation procedure, the Court finds that in the specific circumstances they were not required to bring additional claims for damages. In addition, the Court notes that, in the period examined by the Court in its 2013 judgment, the applicants did seek compensation for damage as a result of lack of enforcement of the final judgments, without success (see Stoyanov and Tabakov, cited above, §§ 33‑38). The Government have not referred to any case-law of the domestic courts showing the effectiveness of that remedy during the period after October 2013.
42. Lastly, as regards the question whether the applicants could claim to have been victims of a Convention violation, given that there had been no refusal to implement the final judgments in their favour (see paragraph 23 above), the Court finds that this question is closely linked to the merits. It therefore orders that it be joined to the merits.
(c) Conclusion in respect of admissibility
43. The Court accordingly dismisses the Government’s objections as to the complaint’s admissibility.
44. The Court further notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
MeritsArguments by the parties45. The applicants submitted that their complaint concerned the lack of enforcement of the domestic judgments during the period after the one examined in the Court’s 2013 judgment. The relevant authorities had not only failed to act in accordance with those judgments but had instead pursued a series of actions in contravention of the judgments. This had led to new violations of the Convention, in respect of the new period identified above.
46. The Government stated that the Court had already found violations of the Convention in relation to the above complaint, that enforcement was still possible and that the applicants had related rights recognised domestically.
The Court’s assessment47. The general principles in respect of non‑enforcement or delayed enforcement of final judgments have been laid down in the Court’s judgments in Burdov v. Russia (no. 2) (no. 33509/04, §§ 65-70, ECHR 2009), Yuriy Nikolayevich Ivanov v. Ukraine (no. 40450/04, §§ 51‑54, 15 October 2009) and Stoyanov and Tabakov (cited above, §§ 77‑78). The essence of these principles is that execution of a judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 and, therefore, an unreasonably long delay in enforcement of a binding judgment may breach this Convention provision. The Court reiterates that a “claim” can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see, among other authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002‑III).
48. The Court observes that in the instant case the applicants, who held two final judgments in their favour which had not been enforced, brought judicial review proceedings to challenge the council’s decisions of 2013, with which the council had opened a new privatisation procedure under the new law. In three separate sets of proceedings the courts found for the applicants and quashed the council’s decisions of 2013 as unlawful (see paragraph 9 above). The applicants additionally wrote to the mayor alerting him to the fact that, if the house were sold to a third party, this would make it impossible to comply with the final domestic judgments on the basis of which the council had been obliged to offer the applicants the opportunity to purchase the office under preferential conditions (see paragraph 10 above). Despite all of those actions by the applicants, in March 2014 the authorities entered into a contract with a third party for the sale of the house containing the office in issue (see paragraph 13 above). Thus, at the time when the applicants brought the present application before the Court, in the second half of 2014, enforcement of the domestic judgments in their favour appeared impossible, as the property in question had been sold to a third party.
49. Even though the sale of the house was ultimately invalidated (see paragraph 14 above), the authorities continued to pursue steps aimed not at enforcing the domestic judgments, but at ending the second applicant’s rental contract and at evicting him instead from the office in question (see paragraph 15 above). The second applicant pursued yet another separate set of judicial proceedings, at the end of which the courts ordered the mayor to refrain from ending his rental contract (see paragraph 16 above). When the municipal authorities’ related actions were thus refuted in court, they appear to have stopped the utilities supply to the property (see paragraph 17 above).
50. The Court finds that the applicants had a legitimate expectation, hence a “possession” within the meaning of Article 1 of Protocol No. 1, consisting of the right to be offered the opportunity to purchase the office at issue under the preferential conditions of the Privatisation Act 1992 (compare Velkova v. Bulgaria, no. 1849/08, § 42, 13 July 2017). The Government put forward the argument that enforcement was still possible (see paragraph 46 above). While taking note of that argument, the Court observes nonetheless that the applicants, through no fault of their own, and despite a myriad of additional legal actions which they actively engaged in, continued to endure the consequences of a situation in which the final judgments in their favour were not enforced for a number of further years after the Court’s 2013 judgment. The Court accepts that complying with the judgment in the present case required steps to be taken that were more time‑consuming than enforcing a simple obligation on the part of the authorities to pay a sum of money. However, it finds that the period of non‑enforcement which lasted between November 2013 and at least 7 January 2021, the latter date being that of the submission by the Government of their additional observations in the case, exceeded all reasonableness. It represented more than seven years of prolonged lack of enforcement. While the Court is not concerned in the present judgment with the period of non-enforcement accumulated before October 2013, it is conscious that it was sufficiently long for the Court to find a violation of Article 6 § 1 and of Article 1 of Protocol No. 1 of the Convention in its 2013 judgment.
51. As stated on numerous occasions in its earlier case-law, the right to a court under Article 6 § 1 of the Convention would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party (see, for example, Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II). The effective protection of litigants and the restoration of legality presuppose an obligation on the administrative authorities’ part to comply with a final judgment delivered by the domestic court. Where administrative authorities refuse or fail to comply, or even delay doing so, the guarantees enjoyed under Article 6 by a litigant during the judicial phase of the proceedings are rendered devoid of purpose (see Dadiani and Machabeli v. Georgia, no. 8252/08, § 44, 12 June 2012, with further references). Furthermore, the impossibility for the applicants in the present case of obtaining the enforcement of the final judgments, as a result of the council’s repeat actions aimed at making enforcement impossible, are further examples of the council’s “particular bad faith” (see Stoyanov and Tabakov, cited above, § 84) and represent an unjustified interference with their right to peaceful enjoyment of their possessions.
52. There has accordingly been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1. Consequently, the Court dismisses the Government’s preliminary objection (see paragraph 42 above) to the effect that the applicants could not claim to be victims of a Convention violation.
ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION53. The applicants also complained of the absence of an effective domestic remedy in respect of their complaint. They relied on Article 13 of the Convention, which 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 ...”
54. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
55. Nevertheless, having regard to its finding under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see paragraphs 51 and 52 above), the Court considers that it is not necessary to examine it separately.
OTHER ALLEGED VIOLATIONS OF THE CONVENTION56. The applicants also complained, under Article 6 § 1 of the Convention, that the courts had not examined their complaint that the conditions of the new privatisation procedure had disqualified them. Lastly, the first applicant complained under Article 8 of the Convention, without further substantiating that complaint.
57. The Court observes that the domestic courts dealt with the applicants’ complaints challenging the council’s decisions of 2013, and quashed those decisions as unlawful (see paragraph 9 above). In doing so, the courts found that by opening a new privatisation procedure the council had disregarded the final judgments in the applicants’ favour, on the basis of which it had been obliged to proceed with a privatisation procedure under the Privatisation Act 1992. Accordingly, the applicants’ related complaint must be declared inadmissible as manifestly ill-founded pursuant to Article 35 § 3 (a) of the Convention, and it must be rejected under Article 35 § 4.
58. Lastly, the Court notes that the first applicant’s complaint under Article 8 of the Convention is entirely unsubstantiated. Accordingly, it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION59. 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.”
Damage60. The first applicant claimed compensation for non-pecuniary damage of 15,000 euros (EUR), requested the adoption of legislative changes and to be declared the owner of half of the office in question, and to be awarded further compensation of EUR 2,125.
61. The second applicant omitted to submit a claim for damages within the allocated period, without requesting an extension.
62. The Government submitted that the first applicant’s claim for damages was excessively high and unjustified. They also pointed out that second applicant should not be awarded compensation as he had not filed a quantified claim in respect of damage incurred, nor related supporting documents.
63. The Court finds that as the second applicant did not submit a claim for damages in the allocated period, the Court is not called upon to make any award to him.
64. The Court considers that the first applicant must have sustained frustration, distress and anxiety on account of the excessively long lack of enforcement discussed above. Accordingly, the Court awards him EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable.
65. The Court considers that, as enforcement of the domestic judgments remains possible, the question of the application of Article 41 is not ready for decision in so far as it concerns pecuniary damage sustained by the first applicant. The Court takes note of the possibility of an agreement between the respondent State and the first applicant (Rule 75 § 1 of the Rules of Court). Accordingly, the Court reserves this question and invites the Government and the first applicant to notify it, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, of any agreement that they may reach.
Costs and expenses66. The applicants did not claim costs and expenses incurred before the Court and the Court accordingly is not called upon to make any award in this respect.
Default interest67. 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,
Joins to the merits the Government’s objection of lack of victim status and rejects it;Declares the complaints concerning the prolonged non-enforcement, after October 2013, of the final domestic judgments in the applicants’ favour, under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, and about the lack of a related effective remedy, under Article 13 of the Convention, admissible and the remainder of the application inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention;Holds that there is no need to examine separately the complaint under Article 13 of the Convention;Holds(a) that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Holds that the question of the application of Article 41 is not ready for decision in so far as it concerns pecuniary damage sustained by the first applicant and accordingly:(a) reserves the said question;
(b) invites the Government and the first applicant to notify the Court, within six months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be;
Rejects the remainder of the first applicant’s claim for non-pecuniary damage.Done in English, and notified in writing on 7 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
{signature_p_2}
Ilse Freiwirth Tim Eicke
Deputy Registrar President