FOURTH SECTION
CASE OF IVANOV v. BULGARIA
(Application no. 19988/06)
JUDGMENT
STRASBOURG
11 December 2012
This judgment is final but it may be subject to editorial revision.
In the case of Ivanov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
George Nicolaou, President,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 20 November 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 19988/06) 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, Mr Manol Georgiev Ivanov (“the applicant”), on 12 May 2006.
2. The applicant was represented by Mr G. Georgiev, a lawyer practising in Veliko Tarnovo. The Bulgarian Government (“the Government”) were represented by their then Agent, Ms N. Nikolova, of the Ministry of Justice.
3. The applicant alleged, in particular, that the prolonged failure of the authorities to complete the restitution procedure in his case was in violation of his property rights and that he had not had en effective remedy in that respect.
4. On 15 September 2010 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1951 and lives in Silistra.
A. The restitution proceedings
6. The applicant’s father owned a vineyard in Silistra. In 1963 part of the land was expropriated.
7. In 1991 the applicant’s father requested restitution of the land in its “actual boundaries”. In a decision of 24 November 1992 the Silistra land commission decided that the land should be restored through a land redistribution plan.
8. The applicant’s father died in 1994 and was inherited by the applicant and two other heirs. It appears that only the applicant, but not the other heirs, participated in the subsequent proceedings concerning the vineyard.
9. In a decision of 7 February 1994 the land commission decided that the restitution procedure envisaged in paragraph 4k of the transitional and concluding provisions of the Agricultural Land Act of 1991 (“the restitution procedure under paragraph 4k of the ALA”) was applicable to the area in which the applicant’s vineyard was situated because that area comprised both land restored in “actual boundaries” and land allocated to usufructuaries. That procedure envisaged the preparation of a plan of newly formed plots (“план на новообразуваните имоти”) based on the cadastral plan for the area.
10. A cadastral plan for the area in which the vineyard was situated was drawn up in 1990 but was never approved. On an unspecified date the governor of Silistra Region ordered the elaboration of such a plan and appointed a contractor.
11. On 19 October 1995 the land commission decided to compensate the applicant and the other heirs of the applicant’s father with another property. The applicant appealed.
12. In a judgment of 26 June 1998 the Silistra District Court quashed the decision of 19 October 1995 and held that the heirs of the applicant’s father were entitled to the restitution of 3,590 square meters of the vineyard in their “actual boundaries”. The judgment was not appealed against and became final on 20 July 1998.
13. In a decision of 30 June 1998 the land commission ordered the restitution of the land to the heirs in its “actual boundaries”. However, it expressly noted that a plan showing the precise boundaries of the real estate was to be drawn up after the approval of the cadastral plan so as to enable the heirs to conclude any transactions with the property.
B. The rei vindicatio claim against third parties
14. Since the vineyard was possessed by third parties, in 1998 the applicant brought a rei vindicatio claim against them. During the proceedings the municipality informed the court that it could not issue a plan of the vineyard because the cadastral plan for the area had not been finalised.
15. In a final decision of 16 March 2001 the Supreme Court of Cassation rejected the claim as premature. It held that since the plan was not ready, the restitution procedure could not be deemed completed because the property was not sufficiently individualised.
C. The applicant’s attempts to obtain a plan of the vineyard
16. On an unknown date in 2004 the applicant retained a licensed expert to prepare a plan of the vineyard and requested the land commission to validate it. The latter refused. Following an appeal, in a final judgment of 21 March 2005 the Supreme Administrative Court upheld the refusal. It held that the plan of newly formed plots for the area had not yet been approved and therefore no plans for particular properties could be issued.
17. On 25 May 2005 the applicant requested the local Agriculture and Forestry Department (“AFD”) to issue a plan for the vineyard. On 2 June 2005 it refused. Following an appeal, in a final judgment of 27 March 2006 the Supreme Court of Cassation upheld the refusal. It held that the plan of newly formed plots for the area was not yet in force, which prevented the AFD from issuing a plan for the property. It went on to note that if the applicant deemed that his claim should have been examined under a more simplified restitution procedure than the one under paragraph 4k of the ALA (see paragraph 9 above), he should have appealed against the respective decision, which he had not done.
D. The approval of the cadastral plan for the area and the subsequent attempt of the applicant to evict the third parties
18. On 17 November 2006 the Governor of the Silistra Region approved the plan of newly formed plots for the area in which the applicant’s land was situated.
19. On an unknown date in 2006 the applicant brought a second rei vindicatio claim against the third parties, seeking to recover the entire vineyard. A plan of the property was issued on 19 January 2007 and submitted to the court. In a judgment of 25 June 2007 the District Court granted the claim in respect of all heirs.
20. Following an appeal, on 10 April 2008 the Regional Court upheld the judgment of 25 June 2007 only in respect of the applicant’s one-third share. Relying on section 32 of the Property Act, it held that a rei vindicatio claim was more than a simple act of property management. Therefore, the applicant could not seek to vindicate the rights of the other heirs in such proceedings. Accordingly, the Regional Court ordered the defendants to deliver the possession of a one-third share of the vineyard to the applicant.
21. The applicant appealed to the Supreme Court of Cassation, arguing that the judgment of 10 April 2008 went against the established case-law, which considered a rei vindicatio claim an act of property management that could be carried out by any co-owner on behalf of the others.
22. In a decision of 17 September 2010 the Supreme Court of Cassation dismissed the applicant’s appeal on points of law, finding that the applicant had failed to show that an important substantive or procedural issue had been decided by the lower courts out of line with the Supreme Court of Cassation’s case-law.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Restitution
23. The applicable domestic law and practice concerning the restitution of agricultural land is summarised in the Court’s judgments in the cases of Mutishev and Others v. Bulgaria, no. 18967/03, §§ 57-75, 3 December 2009, and Naydenov v. Bulgaria, no. 17353/03, §§ 21-42, 26 November 2009.
B. The State and Municipalities Responsibility for Damage Act 1988
24. Section 1 of the State and Municipalities Responsibility for Damage Act 1988 (“the SMRDA”), as in force since July 2006, provides as follows:
“The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
25. The applicant complained that the prolonged failure of the authorities to issue a plan of his property had prevented him from entering into possession, using and disposing of it. He relied on 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
1. The parties’ submissions
26. The Government submitted that the applicant had received a plan for his plot in 2007 and had therefore lost his status of a victim. They further stated that the applicant had failed to appeal against the applicability of the restitution procedure under paragraph 4k of the ALA to his case. Finally, they submitted that the applicant could have brought a compensation claim under the SMRDA.
27. The applicant submitted, without elaborating further, that the plan he had received in 2007 had been issued for litigation purposes, in connection with the second set of rei vindicatio proceedings brought by him, and that he could not apply for and obtain one for other purposes. As for the authorities’ decision to apply the restitution procedure under paragraph 4k of the ALA in his case, he stated that he had had no interest in challenging that decision since it would have delayed the restitution procedure even further. All he had wanted from the authorities had been to issue him a plan, which would have enabled him to enjoy his property rights and recover the vineyard from the third parties. However, the authorities had failed to discharge their duties. The applicant finally submitted that a claim under the SMRDA had not been an effective remedy in his case because it could not have resulted in a decision compelling the authorities to act, and therefore, could not have accelerated the procedure of elaboration of the plan of newly formed plots. Furthermore, the applicant stated that the domestic courts had already dismissed his appeals against the authorities’ refusals to issue the plan, finding those refusals lawful under the national law, while one of the conditions for a successful claim under the SMRDA had been the establishment of the unlawfulness of the act causing the damage.
2. Victim status
28. Concerning the applicant’s victim status, the Court notes that the authorities issued a plan delimiting the applicant’s property on 19 January 2007 (see paragraph 19 above). Therefore, in the absence of any arguments from the applicant as to why he deems himself prevented from obtaining such a plan for purposes different from litigation against third parties, the Court is satisfied that the authorities discharged their obligation to issue a plan on the above-specified date. However, the Court notes that it took the authorities more than eight years to do so and that this delay is the focus of the present complaint. It follows that the Government’s objection regarding the applicant’s victim status should be rejected.
3. Exhaustion of domestic remedies
29. The Court considers that the question of exhaustion of domestic remedies is closely linked to the substance of the applicant’s complaint under Article 13 of the Convention. Therefore, to avoid prejudging the latter, both questions should be examined together. Accordingly, the Court holds that the question of the exhaustion of domestic remedies should be joined to the merits of the applicant’s complaint under Article 13.
4. Conclusion on admissibility
30. The Court considers that the present complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
31. The applicant submitted that the authorities had failed to issue a plan of his vineyard, a document of a purely technical nature, and had attached undue legal significance to that plan, thus preventing him from exercising his property rights and from recovering the property from third parties for a considerable period of time.
32. The Government submitted that the authorities had complied with the national legislation and that their refusal to issue a plan of the applicant’s plot before 2006 had not been unjustified, seeing that the plan of newly formed plots for the area had not been approved. They stated that the applicant’s restitution procedure had been completed after the approval of the plan of newly formed plots in 2006 and that the applicant had received a plan of his property. They further noted that the State had introduced such laws as it had deemed necessary to control the use of property in accordance with the general interest. Finally, they stated, without elaborating further, that the proportionality requirements of Article 1 of Protocol No. 1 had been complied with.
2. The Court’s assessment
33. The Court refers to its established case-law in similar cases (see Naydenov, cited above, §§ 64-70, and Vasilev and Doycheva v. Bulgaria, no. 14966/04, §§ 37-42, 31 May 2012) and is satisfied that the applicant, whose right to restitution “in actual boundaries” had been recognised by the Silistra District Court in a final judgment of 26 June 1998 (see paragraph 12 above), had a sufficiently established “asset” within the meaning of Article 1 of Protocol No. 1.
34. It also considers that the authorities’ failure to issue a plan of the applicant’s property for a considerable period of time, thus preventing him from entering into possession of that property and from exercising his property rights, amounts to an interference with his right to peaceful enjoyment of his possessions (see Naydenov, § 72, and Vasilev and Doycheva, § 44, both cited above).
35. Furthermore, the Court accepts that this interference was lawful, as there were no special time-limits for issuing such a plan under the relevant legislation, and might have pursued a legitimate aim in the public interest, namely to protect the rights of others, as the authorities needed to accommodate the claims of numerous former owners in the rather complex restitution process.
36. Turning to the question of proportionality, the Court has to examine whether the delay in issuing the plan meant that the applicant had to bear a special and excessive burden (see Lyubomir Popov v. Bulgaria, no. 69855/01, § 120, 7 January 2010).
37. The Court has already examined a number of cases raising similar issues (see Naydenov, Lyubomir Popov, and Vasilev and Doycheva, all cited above) and refers to the principles developed therein. It notes that the applicant’s legitimate expectation to enter into possession of his vineyard arose not later than June 1998 (see paragraph 12 above). The plan for that vineyard, which enabled him to initiate rei vindicatio proceedings and thus recover it from third parties, was received in January 2007 (see paragraph 19 above). The delay was therefore almost eight years and seven months. During that considerable period of time the applicant was left in a state of uncertainty as to the realisation of his property rights and was prevented from enjoying his possessions. The Court acknowledges that the relevant events happened in a period of social and economic transition in Bulgaria and that the authorities needed to take into account the claims of numerous interested parties (see Lyubomir Popov, cited above, § 122, with further references). However, in the absence of any specific justifications for the delays in issue, the Court cannot but accept that the delays were unreasonable and placed an excessive burden on the applicant (ibid., and Ramadhi and Others v. Albania, no. 38222/02, § 83, 13 November 2007).
38. It follows that there has been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
39. The applicant complained that he had not had an effective remedy allowing him to obtain a plan of his property. He relied on Article 13 of the Convention, which reads:
“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.”
A. Admissibility
40. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.
B. Merits
41. The Government reiterated the arguments they had raised in respect of the admissibility of the complaint under Article 1 of Protocol No. 1 (see paragraph 26 above). In their view, the applicant had not exhausted all domestic remedies as he had neither appealed against the authorities’ decision to apply the restitution procedure under paragraph 4k of the ALA nor brought a compensation claim under the SMRDA.
42. Apart from his observations concerning the exhaustion of domestic remedies (see paragraph 27 above), the applicant did not put forward any additional arguments under Article 13.
43. The Court reiterates that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. This Article therefore requires the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligation under this provision. The remedy must be “effective” in practice as well as in law (see Rotaru v. Romania [GC], no. 28341/95, § 67, ECHR 2000‑V).
44. In respect of the Government’s submission that the applicant could have challenged the restitution procedure applicable in his case, the Court observes that the procedure chosen by the authorities (see paragraph 9 above) eventually resulted in the realisation of the applicant’s restitution rights and could not therefore be dismissed as inappropriate. Furthermore, it is not the Court’s task to determine which procedure was more appropriate in the circumstances but rather whether, by applying the chosen procedure as they did, the authorities restricted the applicant’s property rights in an unlawful or disproportionate manner.
45. The Government also submitted that a compensation claim under the SMRDA could have provided the applicant with an adequate redress for the prejudice he had suffered from the delays in the restitution process. The Court reiterates that a claim for damages may sometimes be deemed a sufficient remedy, in particular where compensation is the only means of redressing the wrong suffered. However, it could not be an alternative to the measures which the authorities should have afforded the applicant in order to comply with a final judgment in his favour (see Naydenov, cited above, § 51, with further references). It follows that a compensatory remedy could be regarded as capable of providing redress only after the authorities have taken all reasonable measures to comply with their obligations under the Convention (ibid.). In the present case, the authorities completed the restitution procedure in early 2007 (see paragraph 19 above). It follows that a compensation claim could in principle be an effective remedy in respect of the delays which had occurred in the applicant’s case (see Naydenov, cited above, § 53). However, the Court notes that in Naydenov it already rejected the Government’s argument that an action under the SMRDA would be an effective remedy in cases of delayed restitution procedures, finding that the Government had failed to show that there was sufficient case-law of domestic courts on such claims (see § 56 of that judgment). The Court observes that the Government have not put forward any fact or argument capable of persuading it that there had been any domestic developments in that respect (see also Vasilev and Doycheva, cited above, § 29). Furthermore, it notes that one of the prerequisites for a successful claim under the SMRDA is the establishment of the unlawfulness of the act causing the damage (see paragraph 24 above). However, the domestic courts dismissed the applicant’s appeals against the refusals of the authorities to issue a plan, finding them lawful under the national law (see paragraphs 16‑17 above). Moreover, the Court is of the view that the applicant, who could not have known when the requisite plan would be issued, cannot have been expected to periodically bring claims for damages in order to obtain redress for the delays. Had he been required to do so, this might have erected a permanent barrier to bringing matters before the Court (see Lyubomir Popov, cited above, § 105). In the specific circumstances of the case, therefore, a claim under the SMRDA did not represent an effective remedy which the applicant should have used.
46. The Government did not refer to another remedy, and the Court is not aware of any. Moreover, in 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 that judgment).
47. In view of the above considerations, the Court dismisses the Government’s objection of non‑exhaustion of domestic remedies and holds that there has been a violation of Article 13 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
48. On 22 April 2010 the applicant also complained, without relying on a particular Convention provision, that in the second set of rei vindicatio proceedings brought by him the domestic courts had deprived him of the right to use the entire property and to evict the third parties from it. He argued that without a writ of execution for the entire property his entry into possession of a one-third share of it would prove impossible.
49. The Court examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
50. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
51. 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
52. The applicant claimed 2,513 levs (BGN), the equivalent of approximately 1,285 euros (EUR), in respect of lost rent for his vineyard from 1998 to 2008. In support of this claim he submitted a rental contract and a notice from the tenant. He also claimed EUR 1,000 in respect of non‑pecuniary damage.
53. The Government contested these claims as unsubstantiated and excessive.
54. The Court considers that the applicant must have sustained pecuniary and non-pecuniary damage as a result of the breaches of his rights found in the case. Taking into account all the circumstances of the case, and deciding on an equitable basis, it awards the applicant EUR 2,000 under this head.
B. Costs and expenses
55. The applicant sought reimbursement of EUR 1,500 incurred in lawyer’s fees for work on the proceedings before the Court. He submitted a fees agreement between him and his legal representatives.
56. The Government contested this claim.
57. 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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads.
C. Default interest rate
58. 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. Decides to join to the merits the Government’s objection on the issue of exhaustion of domestic remedies and rejects this objection after having examined the merits;
2. Declares the complaints under Article 1 of Protocol No. 1 and Article 13 of the Convention admissible and the remainder of the application inadmissible;
3. Holds that there has been a violation of Article 1 of Protocol No. 1;
4. Holds that there has been a violation of Article 13 of the Convention;
5. 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 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage;
(ii) EUR 1,000 (one thousand 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;
6. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 11 December 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıGeorge Nicolaou
Deputy RegistrarPresident
Full & Egal Universal Law Academy