CASE OF UZUNOVA AND SEID v. BULGARIA

FIFTH SECTION

CASE OF UZUNOVA AND SEID v. BULGARIA

(Application no. 2866/13)

JUDGMENT

STRASBOURG

6 September 2018

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

In the case of Uzunova and Seid v. Bulgaria,

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

Gabriele Kucsko-Stadlmayer, President,
Yonko Grozev,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 10 July 2018,

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

PROCEDURE

1. The case originated in an application (no. 2866/13) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bulgarian nationals, Ms Bozhana Boyanova Uzunova and Mr Ferad Ismail Seid (“the applicants”), on 12 December 2012.

2. The applicants were represented before the Court by Mr D. Mitkov and Ms S. Vasileva, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms L. Gyurova, from the Ministry of Justice.

3. On 9 October 2014 the complaint concerning the prolonged failure of the national authorities to enforce a final domestic judgment in the applicants’ favour was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants, Ms Bozhana Boyanova Uzunova and Mr Ferad Ismail Seid, were born in 1978 and 1955 respectively, and live in Kardzhali.

A. Expropriation of the applicants’ property

5. The applicants co-owned a plot of land of 15,276 square metres near the town of Kapitan Andreevo.

6. On 30 November 2007 the Council of Ministers decided to expropriate 6,218 square metres of the applicants’ plot with a view to building a motorway. The decision allowed preliminary enforcement of the expropriation and stated that the owners were to be given BGN 13,023 (the equivalent of approximately EUR 6,657) in compensation. The decision recorded as owner of the expropriated plot the person from whom the applicants had bought the property.

7. The applicants brought judicial review proceedings in respect of the expropriation decision before the Supreme Administrative Court. In a final judgment of 3 April 2009 that court declared the decision null and void as it had failed to specify the actual owners of the plot to whom compensation was due, and referred the case back to the administrative authorities. The Road Infrastructure Agency requested re-opening of the judicial review proceedings on the ground that it had not been able to take part in them as an interested third party even though its participation was mandatory under the State Property Act 1996 as investor in the construction of the motorway. In a judgment of 12 October 2009 a five-member panel of the Supreme Administrative Court allowed the request, quashed the judgment of 3 April 2009 and remitted the case to be re-examined by a three-member panel of the Supreme Administrative Court.

8. In a final judgment of 28 December 2010 the Supreme Administrative Court found that compensation was due to the applicants as owners of the plot at issue and that it had to be increased to BGN 59,817 (the equivalent of EUR 30,577), in accordance with the conclusions of an expert report obtained in the course of the proceedings. The court also awarded the applicants BGN 600 in costs, to be paid by the Council of Ministers.

B. The applicants’ attempts to collect the awarded compensation

9. On 13 January 2011 the applicants invited the Road Infrastructure Agency to pay the compensation due to them. In its response of 21 February 2011, the Agency informed the applicants that due to some changes in the layout of the motorway, a new decision for expropriation of the affected property was being prepared.

10. On 5 July 2011 the Council of Ministers issued a new decision for expropriation, in accordance with which 5,215 square metres of the applicants’ plot were to be expropriated against compensation in the amount of BGN 1,794 (the equivalent of EUR 917). The applicants brought judicial review proceedings in respect of this decision. In a judgment of 26 June 2012, the Supreme Administrative Court declared the decision of 5 July 2011 null and void as it had failed to take account of the binding character of the judgment of 28 December 2010, the latter having determined the dispute between the parties with final effect. In March 2012 the Ministry of Finance unsuccessfully sought reopening of the proceedings ending with the judgment of 28 December 2010 before the Supreme Administrative Court.

11. On 4 July 2012 the applicants once again invited the Road Infrastructure Agency to pay the compensation due to them. They subsequently wrote to the agency again on 15 October 2012, to the Council of Ministers on 14 October 2013 submitting also a writ of enforcement in respect of the sum due, and to the regional governor on 21 February 2014.

12. On 26 February 2015, at the time of submitting their observations on the admissibility and merits in this case, the Government informed the Court that on 15 May 2014 the Road Infrastructure Agency had paid to each applicant BGN 29,908.50, or altogether BGN 59,817 pursuant to the final judgment in their favour of 28 December 2010.

13. On 10 December 2014, 20 January 2015 and 23 March 2015 respectively, the applicants wrote to various authorities, without success, seeking the payment of interest on the above amount for the period of over three years when it had remained unenforced.

C. Judicial proceedings related to the lack of enforcement

14. In the meantime, on 22 November 2013 the applicants brought proceedings before the Sofia Administrative Court in relation to the lack of enforcement of the final judicial decision of 28 December 2010. In particular, they claimed they had incurred pecuniary damage as a result of the lack of enforcement; they also claimed interest on the amount determined in the said judgment for the period of its non-enforcement. On 18 December 2013 the court dismissed their claim as inadmissible. It found, on the one hand, that the applicants had not indicated an individual administrative act as the subject of their judicial review proceedings. If, on the other hand, the applicants’ claim was about the lack of enforcement of a final judicial decision, the court held that the competent body in that connection was the bailiff and the relevant procedure was under chapter XVII of the Code of Administrative Procedure 2006 (“the 2006 Code”).

15. The applicants appealed before the Supreme Administrative Court, alleging a breach of Article 203 of the 2006 Code and a breach of section 1(1) of the State and Municipalities Responsibility for Damage Act (the “SMRDA”), and challenging the lower court’s decision as being unreasoned. In a final decision of 13 February 2014, the Supreme Administrative Court confirmed the lower court’s decision.

II. RELEVANT DOMESTIC LAW

Enforcement of pecuniary claims against State authorities

16. The relevant provisions can be found in the Code of Civil Procedure 2007. In particular, Article 519 of the Code of Civil Procedure 2007 provides as follows:

“1. The enforcement of money claims against State bodies is not allowed.

2. Money claims against State bodies shall be paid out of funds allotted for that purpose in their budgets. For this purpose, the writ of execution shall be presented to the financial department of the [State] body in issue. If no funds have been allocated, the higher [State] body shall take the necessary measures to provide such funds at the latest in the next budget.”

17. In March 2010 the Ombudsman of the Republic challenged that provision before the Constitutional Court. In a judgment of 21 December 2010 (реш. № 15 от 21 декември 2010 г. по к. д. № 9/2010 г., обн. ДВ, бр. 5/2011 г.), the Constitutional Court refused to declare Article 519 unconstitutional in so far as it concerned State bodies, but declared it unconstitutional in so far as it concerned municipalities.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

18. Relying on Articles 6, Article 1 of Protocol No. 1 to the Convention and Article 13 of the Convention, the applicants complained of the failure of the authorities to comply with the final court decision on compensation due to them for the expropriation of their property. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaint at issue falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, which read respectively as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time 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. ...”

A. Admissibility

19. The Government claimed that the application was inadmissible for failure of the applicants to exhaust domestic remedies. They pointed out in the first place that the applicants had failed to request a quashing of the decision to expropriate, as they could have done under section 39(3) of the State Property Act. Secondly, the applicants had omitted to seek, under Article 290 of the Code of Administrative Procedure, the imposition of fines on the public authority which had failed to comply with the final judgment in their favour. And, finally, the applicants had failed to bring a claim for damages under the SMRDA.

20. The applicants submitted that they had unsuccessfully attempted the legal paths suggested by the Government and, despite that, the money owed to them by the State had only been paid with a delay of about three years and three months.

21. The Court first notes that the applicants’ complaint in the present case is that the authorities had failed to enforce a final judicial decision which ordered a public body to pay a sum of money to them. It finds accordingly that a request for quashing of the expropriation decision is not a remedy for their complaint.

22. Secondly, the Court observes that according to domestic law, unlike cases where a public body owes the carrying out of a non-substitutable action on the basis of a final judgment, there is no enforcement mechanism for monetary claims against State bodies (see paragraphs 16 and 17 above). Such claims are paid out of funds allotted for that purpose in the State bodies’ budgets, following a presentation of a writ of enforcement to the financial department of the body in issue. Consequently, the Court finds that the applicants were not expected to attempt to bring a claim under the 2006 Code either.

23. As regards the Government’s last objection of non-exhaustion, namely the applicants’ failure to bring a claim for damages under the SMRDA, the Court finds that the Government have not submitted examples of domestic case-law demonstrating that such a claim was an effective remedy in practice in cases of failure to enforce monetary debts against a public body (see, mutatis mutandis, Dimitar Yanakiev v. Bulgaria (no. 2), no. 50346/07, § 63, 31 March 2016).

24. The Court accordingly dismisses the Government’s objection of non-exhaustion. It furthermore notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

25. The applicants reiterated their complaint.

26. The Government pointed out that the debt had been paid and thus the final judgment in the applicants’ favour had been enforced. Therefore, there has been no violation of the Convention.

27. In accordance with the Court’s established case-law, execution of a final judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention and an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see, among many other authorities, Burdov v. Russia, no 59498/00, § 34, ECHR 2002‑III; Mancheva v. Bulgaria, no. 39609/98, § 54, 30 September 2004; Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, § 51, 15 October 2009). Likewise, the impossibility for an applicant to obtain the execution of a judgment in his or her favour in due time constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Yuriy Nikolayevich Ivanov, cited above, § 52).

28. The Court then observes that the final judgment in the applicants’ favour has now been enforced (see paragraph 12 above). However, the Court has already held that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, Kuzminskiy v. Russia, no. 40081/03, § 14, 11 November 2008, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 259 with further references, ECHR 2012 (extracts)). Other than paying the sum owed to the applicants on the basis of the final judgment, the authorities have neither acknowledged a breach of the applicants’ rights, nor afforded redress for the delay in payment of more than three years. The Court has already established, including in the context of Bulgarian cases before it, that the prolonged failure of State bodies to enforce a final judgment in accordance with which they owed the payment of a sum of money breached both Article 6 § 1 and Article 1 of Protocol No. 1 (see Mancheva, cited above, §§ 61–62 and §§ 66–68; Sirmanov v. Bulgaria, no. 67353/01, §§ 33–34 and §§ 38–39, 10 May 2007; and Pashov and Others v. Bulgaria, no. 20875/07, §§ 58–63, 5 February 2013). The Court accordingly finds in the present case that, by failing for over three years to comply with the enforceable judgment in the applicants’ favour, the domestic authorities prevented them from receiving an amount of money they could reasonably have expected to receive and deprived the provision of Article 6 § 1 of all useful effect.

29. It follows that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

30. The applicants complained that they did not have an effective remedy in connection with their complaint, contrary to Article 13 of the Convention in conjunction with Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. Article 13 reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

31. The Government asserted that the legal paths indicated in the context of admissibility could be considered effective domestic remedies.

32. The Court firstly notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

33. The Court observes that the procedure for general enforcement of final judgments was not applicable with respect to claims against the State and that there is no specific procedure that could speed up or redress the negative consequences of delayed enforcement in such cases (see paragraphs 16–17 above). The Court has held on numerous occasions that while member States have a wide margin of appreciation in providing such a remedy in a manner consistent with their own legal system and traditions, a remedy with respect to delayed enforcement of claims against the State should still exist (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 186‑187, ECHR 2006‑V; Burdov v. Russia (no. 2), no. 33509/04, §§ 96‑100, ECHR 2009, and Chorbov v. Bulgaria, no. 39942/13, § 47, 25 January 2018). The Government have not pointed to the existence of an effective domestic remedy in such situations.

34. Accordingly, the Court finds that there has been a violation of Article 13 in conjunction with Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

35. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

36. The applicants claimed the following sums in respect of pecuniary damage: 300,000 euros (EUR), which they claimed was the difference between the compensation awarded to them by the national court and the real market value of the property, and EUR 10,622 as legal interest on the amount awarded by the national court for the period between 28 December 2010 and 16 May 2014. The applicants also claimed EUR 100,000 in respect of non-pecuniary damage for the negative emotions they had experienced from the beginning of the judicial proceedings in 2007 until payment.

37. The Government maintained that the final judgment in the applicants’ favour had been enforced and therefore the claim in respect of pecuniary damage was unjustified. As regards non-pecuniary damage, the Government stated that, in case the Court were to find a violation, this finding would be a sufficient just satisfaction.

38. The Court does not discern any causal link between the violation found and the first amount claimed as pecuniary damage above; it therefore rejects this claim. On the other hand, ruling in equity, it awards the applicants jointly EUR 9,500 in respect of the second amount claimed for pecuniary damage, namely the legal interest accumulated on the amount awarded by the national court during the period of delayed enforcement. It further finds that the delay in enforcement of the final judgment in the applicants’ favour must have caused them emotional distress. It accordingly awards the applicants jointly EUR 1,800 in respect of non-pecuniary damage.

B. Costs and expenses

39. The applicants did not claim costs and expenses incurred before the Court.

40. The Government submitted that, accordingly, no award should be made in this regard.

41. The Court makes no award under this head.

C. Default interest

42. 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 complaints concerning the delay in enforcement of the final judgment in the applicants’ favour and the absence of an effective remedy in that regard admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention;

3. Holds that there has been a violation of Article 13 in conjunction with Article 6 § 1 and Article 1 of Protocol No. 1;

4. Holds

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

(i) EUR 9,500 (nine thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

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

Done in English, and notified in writing on 6 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoGabriele Kucsko-Stadlmayer
Deputy RegistrarPresident

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