Communicated on 7 December 2016
FIFTH SECTION
Application no. 48929/12
Lyudmil Slavov KOPANKOV and others
against Bulgaria
lodged on 27 July 2012
STATEMENT OF FACTS
The applicants are Bulgarian nationals. Their particulars are set out in the Appendix. The applicants were represented by Mr P. Kordov, a lawyer practising in Stara Zagora.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
A relative of the applicants, Ms Maria Kopankova, and the fourth applicant co-owned a house and a garden in Kazanlak.
By a decision of the town mayor of 18 July 1988 the property was expropriated with a view to constructing a residential building. The decision, based on section 98(1) of the Territorial and Urban Planning Act of 1973, provided that the two owners were to be compensated with flats in a building which the municipality planned to construct.
In 1989 the applicants and their relative were moved out of the expropriated property and the house was pulled down. Construction work started on the plot of land and the foundations of the future building were laid, but then the site was abandoned.
Throughout the years Ms Kopankova and the applicants petitioned on many occasions the authorities to provide them with the compensation due to them, but to no avail. A supplementary order under section 100 of the Territorial and Urban Planning Act, specifying the exact future flats to be offered in compensation, was never issued.
In 1998 Ms Maria Kopankova passed away and was succeeded by her sons, the first applicant and Mr Kancho Kopankov. The latter also passed away in 2011, and was succeeded by the second and third applicants.
On 16 February 2009 the applicants and Mr Kancho Kopankov made a request to the Kazanlak mayor for the revocation of the expropriation order of 18 July 1988, which they were entitled to do under paragraph 9(2) of the transitional provisions of the Territorial Planning Act of 2001 (see below, Relevant domestic law and practice). As no response followed, they applied for judicial review of the mayor’s tacit refusal.
In a judgment of 27 May 2010, which was not appealed against and became final, the Stara Zagora Administrative Court allowed the application for judicial review, revoking the expropriation order. It found that the fourth applicant and Ms Maria Kopankova, and subsequently her heirs, had not received the compensation due to them, namely two flats. It found further that it could not be considered that the authorities had “taken possession” of the applicants’ plot of land, because there had been no formal decision to take possession (as had been required at the time), and in any event the construction work which had started on the plot had eventually been abandoned. Thus, the preconditions for the revocation of the 1988 expropriation had been fulfilled.
In 2011 the applicants brought a tort action against the Kazanlak municipality under the State and Municipalities Responsibility for Damage Act, seeking pecuniary and non-pecuniary damages based on the fact that their house had been pulled down after the 1988 expropriation and the plot of land had been restored to them without it. However, the domestic courts found the action inadmissible (the final decision of the Supreme Administrative Court was given on 20 April 2012), considering that the applicants had had a special remedy at their disposal, as they had been entitled to seek monetary compensation for their expropriated property instead of the revocation of the expropriation order. The first level Stara Zagora Administrative Court noted in addition (in a decision of 26 January 2012) that a procedure to seek compensation after the revocation of an expropriation was provided for in section 31(2) of the Municipal Property Act (see below, Relevant domestic law and practice).
B. Relevant domestic law and practice
1. Expropriation of property for public use
The relevant domestic law concerning the expropriation of property for public use, the provision of compensation and the domestic practice related thereto, is summarised in the Court’s judgment in the case of Kirilova and Others v. Bulgaria (nos. 42908/98, 44038/98, 44816/98 and 7319/02, §§ 72‑79, 9 June 2005).
The provisions of the Territorial and Urban Planning Act (Закон за териториално и селищно устройство) regarding expropriation of property for public use were superseded by other legislation in 1996 and 1998. Regarding cases where, in proceedings commenced under that Act, the owners of expropriated property had not yet received the compensation due to them, the Territorial Planning Act (Закон за устройство на територията) enacted in 2001 provided, in paragraph 9(2) of its transitional provisions, that where the authorities had not yet taken possession of the expropriated property, the respective decision providing for expropriation and compensation could be revoked, after which the proceedings were to be terminated by a decision of the mayor. Where, by contrast, the authorities had already taken possession of the expropriated property, the former owners could claim monetary compensation.
2. The Municipal Property Act
That Act (Закон за общинската собственост) of 1996, also provides, in section 31(1), that where the construction work the property has been expropriated for has not commenced after the lapse of a certain period of time, the former owners are entitled to seek the revocation of the expropriation order. Pursuant to section 31(2) of the same Act, where the expropriation has been quashed under section 31(1), the respective municipality is liable for any damage to the property.
In a binding interpretative decision of 7 February 2011 (Тълкувателно решение № 1 от 07/02/2011, ОСС от I и II колегия на ВАС) the Supreme Administrative Court held that section 31(1) of the Municipal Property Act was only applicable to expropriations carried out under that Act, after its adoption in 1996.
3. State and Municipalities Responsibility for Damage Act
Section 1 of that Act (Закон за отговорността на държавата и общините за вреди) provides that the State and the municipalities are liable for damage suffered by private persons as a result of unlawful decisions or actions by civil servants committed in the course of or in connection with the performance of their duties.
COMPLAINTS
The applicants complain, relying on Article 13 of the Convention, about the domestic courts’ conclusion that their tort claim against the Kazanlak municipality was inadmissible, considering that conclusion erroneous.
The applicants also complain, under Article 1 of Protocol No. 1, that even though the expropriation order in respect of their property was revoked, they were unable to get their house back, as in the meantime it had been pulled down, and that they were unable to obtain compensation for its demolition.
Appendix
Lyudmil Slavov KOPANKOV, born in 1941, lives in Kazanlak; Miroslav Kanchev KOPANKOV, born in 1974, lives in Kazalak; Stanka Nikolova KOPANKOVA, born in 1941, lives in Kazanlak; Stanislav Lyudmilov KOPANKOV, born in 1967, lives in Sofia.
QUESTIONS TO THE PARTIES
1. Did the applicants have any “legitimate expectation” to receive compensation for the demolition of their house after the revocation of the expropriation of their land? Did they thus have “possessions” necessitating the protection of Article 1 of Protocol No. 1?
2. Were the applicants entitled to have resort to the remedy provided for in section 31(2) of the Municipal Property Act, as mentioned by the Stara Zagora Administrative Court in its decision of 26 January 2012? Was there any other avenue of redress available to them?
3. Did the fact that eventually the applicants received no compensation for the expropriation of their house mean that there was a breach of Article 1 of Protocol No. 1?
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