Communicated on 29 November 2016
FIFTH SECTION
Application no. 57214/09
Zdravko Kirilov KIROV and others
against Bulgaria
lodged on 15 September 2009
STATEMENT OF FACTS
The applicants, Mr Zdravko Kirilov Kirov, Ms Lina Zdravkova Kirova and Mr Kiril Zdravkov Kirov, are Bulgarian nationals who were born in 1928, 1958 and 1961 respectively and live in Plovdiv. They are represented before the Court by Mr M. Ekimdzhiev and Ms M. Slavova, lawyers practising in Plovdiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are among the heirs of N.R.
By a decision dated 27 January 1999, taken on the basis of section 3(3) of the Compensation of Owners of Nationalised Properties Act (see Relevant domestic law below), the Plovdiv regional governor recognised the applicants’ entitlement to compensation through compensation bonds for properties abandoned by N.R. in Greece on an unspecified date before 1964.
By another decision of 19 April 1999, based on an expert’s calculation of the value of N.R.’s properties, the governor set the amount of bonds to be awarded to the applicants. Each of them was to receive bonds with a face value of 5,371,400 Bulgarian levs (BGN), the equivalent of approximately 2,740,500 euros (EUR).
The above decision was not appealed against and entered into force. The applicants later received their bonds and sold most of them to investors.
In 2001 the expert who had made the calculations relied on in the decision of 19 April 1999 was indicted by the prosecuting authorities for having wilfully given a false opinion. In 2004 he was convicted for that offence. The conviction became final at the beginning of 2006.
On 22 February 2006 the regional governor brought a claim against the applicants, alleging that there had been a gross error in the calculations which had led to the award of the bonds, and that each of the applicants had in fact been entitled to bonds worth BGN 21,489 (EUR 10,960). He asked that the applicants be ordered to return the improperly awarded bonds, or to pay their market value. The governor gave the bonds’ face value as the value of the claim at the time of bringing the proceedings.
On 27 October 2006 the Pazardzhik Regional Court dismissed the claim against the applicants. The Veliko Tarnovo Court of Appeal upheld the judgment on 13 July 2007.
After a further appeal by the regional governor, the Supreme Court of Cassation in a final decision of 22 July 2009 reversed the judgment and ordered each of the applicants to return bonds with a face value of BGN 5,349,911 to the State.
It also ordered each of the applicants to pay BGN 106,998 (the equivalent of approximately EUR 54,600) in court fees to the State.
In the context of the ensuing enforcement proceedings against the applicants, in 2010 an expert calculated the market value of the bonds due by each of them at BGN 973,683 (EUR 496,777), or 18.2% of their face value.
B. Relevant domestic law
1. The Compensation of Owners of Nationalised Properties Act
In 1997 Parliament adopted the above-mentioned act (Закон за обезщетяване на собственици на одържавени имоти), which provided for compensation for owners of certain categories of property taken by the Communist authorities. It included in particular, under section 3(3), former owners or their heirs who had had for various reasons to abandon properties in Greece which had been ceded to the Greek State under a treaty concluded in 1964 aimed at settling pending financial issues between the two countries (Спогодба за уреждане на висящите финансови въпроси и икономическо сътрудничество между Народна република България и Кралство Гърция, oбн. ДВ бр. 87 от 3 ноември 1964 г.).
The Act provides for various means of compensation, in particular through so-called compensation bonds (section 3(1)). The bonds are not exchangeable for cash and can be used for participation in privatisation tenders (section 4(2)). A secondary market for the bonds has developed in Bulgaria, and their actual value largely depends on the availability of privatisation offers. The actual value has usually been much below the face value.
2. Court fees
The matter of court fees was until 2008 regulated by the Code of Civil Procedure of 1952, which, even after being superseded by other legislation, remained applicable to pending proceedings. Certain provisions of the State Fees Act (Закон за държавните такси) were applicable as well.
The general rule was that court fees were payable by the plaintiff in advance, upon the submission of a claim. Where the plaintiff succeeded in the proceedings, the defendant was ordered to pay him his costs, including the court fees paid (Article 64 § 1 of the Code).
State bodies were exempt from the obligation to pay court fees (Article 63 § 4 of the Code). Where such a body was the plaintiff, and had been successful in the proceedings, the defendant had to pay the relevant fees to the State (Article 64 § 5).
Court fees were set at 4% of the value of a claim (цената на иска) for the proceedings before a first-instance court, and 2% of the value for examination on appeal or in cassation. The means of establishing the value of different types of claim were described in Article 55 § 1 of the Code. For instance, in respect of monetary claims, the value equalled the amount claimed. Where a claim was made which was not included in the list in Article 55 § 1, the value was to be determined by the judge examining the case or the president of the respective court.
The value of the claim had to be indicated by the plaintiff at the time of bringing the proceedings, and, once set with finality, was binding on the courts for the purpose of calculating the respective court fee. The defendant or the court examining the case at first instance, acting ex officio, could contest the value of the claim indicated by the plaintiff, with the latest time for doing that being during the first court hearing. The matter was then to be resolved by the respective court (Article 56 § 1 of the Code).
COMPLAINTS
Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicants complain that they were ordered by the Supreme Court of Cassation to pay “arbitrary” court fees that had been calculated on the basis of the face value of the compensation bonds they had been ordered to return and not on their market value.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the procedure provided for in Article 56 § 1 of the Code of Civil Procedure of 1952 reasonably available to them and effective?
2. Were the court fees the applicants were ordered to pay by the Supreme Court of Cassation in its judgment of 22 July 2009 necessary within the meaning of the second paragraph of Article 1 of Protocol No. 1, in particular “to secure the payment of taxes or other contributions or penalties”? Did the obligation for the applicants to pay those fees amount to an excessive individual burden for them, fundamentally interfering with their financial situation?
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