FOURTH SECTION
DECISION
Application no. 11892/05
Dafina Angelova SIRAKOVA and others
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 2 July 2013 as a Committee composed of:
David Thór Björgvinsson, President,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 16 March 2005,
Having regard to the declaration submitted by the respondent Government on 19 March 2013 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicants, Ms Dafina Angelova Sirakova, Ms Anna Simeonova Denkova and Ms Borislava Simeonova Baikusheva, are Bulgarian nationals, who were born in 1951, 1966 and 1972 respectively. The first applicant lives in Burgas and the other two applicants live in Sofia. The applicants are represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia.
The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice.
The part of the application concerning the delays and the insecurity in the restitution procedure has been communicated to the Government.
An ancestor of the applicants – father of the first applicant and grandfather of the second and third applicants – owned agricultural land in the area of Burgas, which was included in an agricultural co-operative in 1946.
In 1991, following the adoption of the Agricultural Land Act (“the ALA”), the first applicant and other heirs of her father applied for the restitution of the land. By a final judgment of 18 April 1996 the Burgas District Court found that the heirs were entitled to the restitution “in actual boundaries” of 20,000 square metres of land. On that basis, on 23 January 1997 the heirs obtained a notary deed.
However, the judgment of 18 April 1996 was not enforced, because in practice most of the land was being held and used by two companies – SOMAT AD and Svobodna bezmitna zona AD, former State enterprises which had been transformed into State-owned companies in 1991-92. There is no information on the dates of the subsequent privatisation of Svobodna bezmitna zona AD. As to SOMAT AD, a large part of its capital was privatised between 1994 and 1998. As of 1998 the State retained 3,79% of the capital with a view to satisfying compensation claims of former owners of real property which had in the meantime been transferred to the company.
In 1997 the heirs brought rei vindicatio proceedings against SOMAT AD. At the same time Svobodna bezmitna zona AD brought against them an action for declaratory judgment, seeking to establish that they were not the owners of the land it was using. The two sets of proceedings concerned land totalling 16,325 square metres (the remainder of the initial plot of 20,000 square metres was taken by roads and other infrastructure). The proceedings ended by final judgments of the Supreme Court of Cassation – in respect of SOMAT AD on 22 February 2005, and in respect of Svobodna bezmitna zona AD on 9 April 2004. During the proceedings the applicants replaced the initial claimants/defendants – their ancestors who had passed away.
In the two sets of civil proceedings the courts found that SOMAT AD and Svobodna bezmitna zona AD had not participated in the restitution proceedings which had ended by the final judgment of 18 April 1996 and were therefore not bound by that judgment. The courts found further that in 1967 the land had been expropriated from the then-existing agricultural co‑operative and had subsequently been included in Burgas’s industrial zone. A “complex of construction works” had been carried out on it, which, under the ALA, barred restitution.
After the completion of the above proceedings, the applicants applied to receive compensation under the ALA through comparable municipally‑owned land or compensation bonds. Apparently, after those proceedings it was considered that the restitution of the part of the plot which was not being held by the two companies but was taken by infrastructure was impossible as well.
In July 2006 the applicants received compensation bonds with face value of BGN 19,700. Subsequently they sold part of the bonds for BGN 10,474.24. There is no information as to whether the applicants attempted to obtain compensation under the legislation concerning privatisation of former State enterprises.
The relevant domestic law and practice concerning restitution of agricultural land and compensation in lieu thereof have been summarised in the Court’s judgment in the case of Sivova and Koleva v. Bulgaria, no. 30383/03, §§ 29-54 and 57-60, 15 November 2011.
COMPLAINTS
1. The applicants complained, relying on Articles 13 and 14 of the Convention and Article 1 of Protocol No. 1, that after many years of litigation and insecurity they had eventually been unable to obtain the restitution of their land “in actual boundaries”.
2. They also complained under Article 6 § 1 that in the civil proceedings against SOMAT AD and Svobodna bezmitna zona AD the national courts had failed to respect the res judicata effect of the final judgment given in the earlier restitution proceedings.
3. Lastly, the applicants complained under Article 6 § 1 of the Convention of the outcome and the alleged unfairness of the civil proceedings.
THE LAW
1. The applicants complained, first, of the lengthy duration of the restitution process and the situation of insecurity they had been placed in.
After the failure of the attempts to reach a friendly settlement, by a letter of 19 March 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They acknowledged that the delays in the restitution procedure and the lack of legal certainty amounted to a violation of Article 1 of Protocol No. 1 and offered to the first applicant, Ms Dafina Angelova Sirakova, 5,000 euros (EUR) in compensation, and to each of the two remaining applicants, Ms Anna Simeonova Denkova and Ms Borislava Simeonova Baikusheva, EUR 2,500. The total sum offered was thus EUR 10,000.
The Government invited the Court to strike the application out of the list of cases. They suggested that the declaration might be accepted by the Court as “any other reason” justifying the striking out of the case of the Court’s list, as referred to in Article 37 § 1 (c) of the Convention.
The declaration also provided that the sum offered in compensation was to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, would be free of any taxes that may be chargeable to the applicants, and would be converted into Bulgarian levs at the rate applicable at the date of settlement. The sum above would be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay the sum within the said three-month period, the Government undertook to pay simple interest on it from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
By a letter of 20 May 2013, the applicants indicated that they were not satisfied with the terms of the unilateral declaration. They argued that their case concerned deprivation of property, which meant that they had to receive in compensation the market value of the land they had claimed.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
It also recalls that in certain circumstances it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.
To this end, the Court will examine the declaration in the present case in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI).
The Court has found violations of Article 1 of Protocol No. 1 by reason of the excessive delays and the lack of legal certainty in proceedings concerning restitution of agricultural land in a number of cases against Bulgaria (see Sivova and Koleva, cited above; Lyubomir Popov v. Bulgaria, no. 69855/01, 7 January 2010; Naydenov v. Bulgaria, no. 17353/03, 26 November 2009; Vasilev and Doycheva v. Bulgaria, no. 14966/04, 31 May 2012; Petkova and Others, nos. 19130/04, 17694/05 and 27777/06, 25 September 2012; and Ivanov v. Bulgaria, no. 19988/06, 11 December 2012). In the case of Vasilev and Doycheva (see §§ 68-69 of the judgment) the Court pointed out that the problem was recurrent and, relying on Article 46 of the Convention, 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.
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application.
Moreover, in light of the above considerations, and in particular given its extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
Accordingly, the Court finds it appropriate to strike this part of the application out of its list of cases, in accordance with Article 37 § 1 (c) of the Convention.
2. Relying on Articles 6 § 1, 13 and 14 of the Convention and Article 1 of Protocol No. 1, the applicants also complained that they had been unable to obtain the restitution of the plot they had claimed, despite the judgment of the Burgas District Court in their favour. They also complained of the outcome and the alleged unfairness of the civil proceedings
Having regard to all the evidence in its possession, to its case-law and in particular its findings in the similar case of Sivova and Koleva, cited above, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Article 1 of Protocol No. 1 concerning the complaint of excessive length and lack of legal certainty in the restitution procedure, and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike this part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Fatoş AracıDavid Thór Björgvinsson
Deputy RegistrarPresident
Full & Egal Universal Law Academy