Communicated on 15 June 2015
FOURTH SECTION
Application no 45568/12
Lachezar Tsvetanov PETROV against Bulgaria
and 4 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Bulgarian nationals. They are represented before the Court by Mr V. Rusev, a lawyer practising in Sofia.
Application no. 45568/12 was lodged on 29 June 2012 by Mr Lachezar Tsvetanov Petrov, born in 1975 and living in Sofia. Application no. 47100/12 was lodged on 18 July 2012 by Mr Stoyan Petrov Petrunov, born in 1940 and living in Sofia. Application no. 47831/12 was lodged on 23 July 2012 by Mr Todor Tsvetanov Petrov, born in 1980 and living in Pernik. Application no. 74925/12 was lodged on 13 November 2012 by Mr Ivan Petrov Petrunov, born in 1943 and living in Sofia. Application no. 75321/12 was lodged on 13 November 2012 by Mr Valentin Vladimirov Ranev, born in 1970 and living in Sofia.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. The decision of the Council of Ministers to expropriate the applicants’ plots of land
The applicants co-owned plots of land in the vicinity of the village of Delyan.
On 13 September 2011 the Council of Ministers adopted a decision for expropriation of parts of plots owned by the applicants with a view to building the highway Struma. The decision allowed preliminary enforcement of the expropriation and provided that the owners were to be awarded a monetary compensation. A copy of that decision was not submitted to the Court and the applicants do not specify the exact acreage of the expropriated parts nor the amount of the compensation.
The decision of the Council of Ministers was published in State Gazette on 16 September 2011. The statute limitation period for filing an appeal against that decision was fourteen days after the publication.
The applicants submit that they were not notified at any stage of the proposal of the administrative authorities for the expropriation of their properties. They do not provide information as to how they were apprised of the expropriation decision.
All the applicants filed appeals against the impugned decision with the Supreme Administrative Court (SAC).
2. The court proceedings against the Council of Ministers’ decision in the case of Lachezar Petrov, application no. 45568/12
The applicant submits, without presenting copies of the relevant courts’ decisions, that he appealed against the decision for expropriation and asked for reinstatement of the time-limit for lodging the appeal, and that the SAC refused thereof.
He also filed a claim with the SAC demanding that the decision for expropriation be declared null and void. The applicant stated that as he was not properly informed about the proposal of the authorities to expropriate part of his land he could not exercise his right to take part in the administrative proceedings preceding the adoption of the Council of Ministers’ decision. By a final judgment of 7 June 2012 the SAC dismissed the claim, reasoning that the failure of the applicant to participate in the decision-making process had not led to a significant breach of the procedural rules of such gravity as to render the administrative decision null and void.
3. The court proceedings against the Council of Ministers’ decision in the cases of Stoyan Petrunov, application no. 47100/12, Todor Petrov, application no. 47831/12, Ivan Petrunov, application no. 74925/12, and Valentin Ranev, application no. 75321/12
On 27 December 2011, 28 December 2011 and 13 January 2012 the four applicants appealed against the decision for expropriation before the SAC. They maintained that the amounts of the compensation for the expropriated plots were insufficient. They also claimed that the term for lodging an appeal against the decision of the Council of Ministers be reinstated and asked for the suspension of the immediate enforcement of the decision. On a final point, the applicants demanded that the decision for expropriation be declared null and void, claiming that they were not properly informed in order to participate in the decision-making process before the decision was adopted.
With decisions dated respectively 23 February 2012, 19 January 2012, 15 February 2012 and 13 February 2012 three-member panels of the SAC established that the applicants submitted their appeals after the expiration of the fourteen-day time-limit for lodging an appeal, pursuant to Section 38 of the Property Act. Therefore, the SAC dismissed the appeals as time-barred.
As far as the claims for reinstatement of the time-limit were concerned, the SAC noted that the applicants did not point to any circumstances of exceptional character that had prevented them to file timely appeals and disallowed the claims.
With respect to the claims for suspension of the immediate enforcement of the expropriation decision, the SAC found no proof of irreparable damage that have been or could have been suffered by the applicants and also dismissed the claims.
With the same decisions the SAC continued the proceedings regarding the validity of the decision of the Council of Ministers.
The applicants Stoyan Petrunov, Ivan Petrunov and Valentin Ranev appealed the decisions of the three-member panels of the SAC. Five‑member panels of the SAC upheld the decisions on 18 April 2012, 17 May 2012 and 20 April 2012 respectively. The applicant Todor Petrov did not file an appeal before a five-member panel of the SAC.
As far as the applicants’ claims for declaring the decision of the Council of Ministers null and void, with final judgments of 22 June 2012, 28 June 2012, 24 October 2012 and 12 October 2012 respectively the SAC dismissed the claims. The SAC reasoned that that decision was adopted in conformity with the statutory requirements by the competent authority and in the prescribed form. The applicable substantive law provisions have also been abided. Concerning the applicants’ complaints that they were not notified in the course of the administrative proceedings conducted before the adoption of the decision for expropriation, the SAC considered that Section 34a § 3 of the State Property Act provided for an obligation of the mayor of the municipality in the vicinity of which the expropriated plots were situated to display in the municipality building an announcement about the initiated expropriation procedure and that in the case at hand the applicants had not provided evidence that this procedure had not been observed. Accordingly, the SAC in the cases of Stoyan Petrunov, Todor Petrov and Ivan Petrunov concluded that the applicants could be considered to have been informed of the administrative proceedings prior to the expropriation and found the complaints unfounded. In the case of Valentin Ranev the SAC did not address specifically the complaint that the applicant was not informed of the administrative procedure for expropriation.
B. Relevant domestic law and practice
1. The Constitution of the Republic of Bulgaria of 1991
Section 17 § 5 of the Constitution provides that property may be expropriated for State or municipal needs only on the basis of a law, and only if those needs cannot be satisfied otherwise and following prior and adequate compensation.
2. The State Property Act of 1996
The State Property Act governs the expropriation of private property by the State.
Section 34a, as it stood at the relevant time, provided that the Council of Ministers was the authority competent to make decisions for expropriation of private property for State needs of national importance. The competent authority in all other cases was the Regional Governor. Their decisions could be appealed before the administrative courts, including with respect to the amount of compensation awarded.
Section 34a § 3 prescribed that together with the introduction of the proposal for expropriation the Minister of Regional and Urban Development sent a copy to all municipalities which territories were affected by the expropriation. The mayor of the respective municipality was under an obligation to post immediately an announcement about the beginning of the expropriation procedure on the announcement board in the municipality.
Pursuant to Section 34b, the Council of Ministers’ decision for expropriation was to be published in State Gazette. This decision contained information of the State need justifying the nationalisation, the type, the location, the area of the property, the amount of the compensation, and the names of the owners.
In accordance with Section 38 § 1, the time-limit for lodging an appeal against the decision for expropriation before the courts was fourteen days after the publication in State Gazette. In case the expropriation decision was appealed only with respect to the amount of compensation, the appeal did not have suspensive effect and could not stay its enforcement.
On 15 January 2013 the Ombudsman of the Republic of Bulgaria lodged a request with the Constitutional Court (CC) asking, inter alia, that Section 38 §§ 1 and 2 of the State Property Act providing for notification of the expropriation decision only by means of publication in State Gazette be proclaimed contrary to the Constitution. On 15 July 2013 the CC adopted a decision, declaring that several provisions of the State Property Act were contrary to the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms, including Section 38 § 1 concerning the notification in Official Gazette of the decision for expropriation (реш. № 6 от 15 юли 2013 г. к. д. № 5/2013 г., обн. ДВ, бр. 65 от 2013 г.). The CC pointed out that the impugned provisions contradicted the rule of law and only formally complied with the obligation to create an effective opportunity for challenging administrative acts, thus failing to guarantee protection of the property rights of the citizens.
Following the CC’s decision, on 20 December 2013 the Parliament enacted amendments to Sections 34b and 38 and they currently provide for personal notification of the owners of the expropriated property.
3. Administrative Procedure Code
Section 161 of this Code provides that the appellant could ask for reinstatement of the time-limit for appeal within seven days after the communication that the appeal has been left without examination, maintaining that non-compliance with the said time-limit was due to special unforeseen circumstances or to behaviour of the administration that misled the appellant. Alternatively, any such motion may be submitted with the appeal.
Pursuant to Section 166, the appellant could ask for suspension of the immediate enforcement of the administrative act if the said enforcement could inflict a significant or irreparable prejudice on him.
An administrative act can also be challenged seeking a declaration of nullity and no time limitation is applicable in that case. The reasons for declaring nullity lay in severe breaches of any of the grounds for unlawfulness as listed in Section 146.
COMPLAINTS
1. The applicants complain, under Article 6 § 1 of the Convention, of the impossibility to effectively challenge the decision of the Council of Ministers to expropriate parts of their land, due to the fact that the decision was announced in State Gazette without personal notification. They allege that, as a result, their access to a court was denied, as the Supreme Administrative Court decided that their appeals were lodged out of time.
2. The applicants also submit that the decision for expropriation constitutes an unjustified interference with their right to the peaceful enjoyment of their possessions in view of the expropriation itself, the alleged low amount of the compensation awarded, as well as due to the impossibility to obtain a court examination of their complaints. The applicants rely on Article 1 of Protocol No. 1, alone and together with Articles 13 and 14, as well as on Article 1 of Protocol No. 2.
QUESTION TO THE PARTIES
1. Has there been a violation of the applicants’ rights to access to court and/or to peaceful enjoyment of possessions, as guaranteed by Article 6 of the Convention and/or 1 of Protocol No. 1, having regard to the following circumstances:
a) the applicants had not been personally notified of the fact that the Council of Ministers had expropriated their plots, and the expropriation decision was published in the State Gazette on 16 September 2011;
b) the applicants were unable to comment on the legality of the expropriation decision, the amount of the compensation and the method of calculation thereof;
c) the Supreme Administrative Court dismissed the applicants’ appeals on the basis that their claims were out of time?
The parties are invited to present a copy of the decision of the Council of Ministers of 13 September 2011 for expropriation of the plots as well as all other relevant documents related to the proceedings in question, and in particular those specifying the exact acreage of the expropriated parts of plots and the amount of the compensation.
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
45568/12
29/06/2012
Lachezar Tsvetanov PETROV
04/02/1975
Sofia
Valentin RUSEV
47100/12
18/07/2012
Stoyan Petrov PETRUNOV
04/05/1940
Sofia
Valentin RUSEV
47831/12
23/07/2012
Todor Tsvetanov PETROV
08/03/1980
Pernik
Valentin RUSEV
74925/12
13/11/2012
Ivan Petrov PETRUNOV
19/06/1943
Sofia
Valentin RUSEV
75321/12
13/11/2012
Valentin Vladimirov RANEV
08/08/1970
Sofia
Valentin RUSEV
Full & Egal Universal Law Academy