FOURTH SECTION
DECISION
Application no. 36823/07
by Tsvetanka Lazarova TSENOVA and Tsvetan Georgiev TSENOV
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 5 July 2011 as a Committee composed of:
Lech Garlicki, President,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Rgistrar,
Having regard to the above application lodged on 2 August 2007,
Having regard to the declaration submitted by the respondent Government on 14 April 2011 requesting the Court to strike the application out of the list of cases,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Tsvetanka Lazarova Tsenova and Mr Tsvetan Georgiev Tsenov, are Bulgarian nationals who were born in 1955 and 1944 respectively and live in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The order of 31 May 2001 and the compensation proceedings against the municipality
On 12 September 2000 the second applicant purchased a building, located in the village of Dolna Dikanya, from the Municipality of Radomir.
On 16 February 2001 he obtained permission to use the building as a snack bar.
By an order of 31 May 2001 the Mayor of Radomir approved a change to the building plan of Dolna Dikanya concerning the plot of land under the applicants’ building so that a pavement could be constructed. The pavement made a cesspit built by the applicant unusable.
The order was appealed against by the second applicant. By a final judgment of 19 July 2005 the Supreme Administrative Court (“the SAC”) declared it null and void.
On 24 October 2003 the applicants brought an action in tort against the Radomir Municipality claiming damages arising from its actions which had made it impossible for the applicants, in the absence of a cesspit, to use and rent out their property. By a judgment of 14 December 2005 of the Radomir District Court their action was allowed. The court awarded the applicants compensation in the amount of 6,714.12 Bulgarian levs (BGN, approximately 3,433 Euros (EUR)) plus interest. The judgment was not appealed against and became final on 2 February 2006.
On 9 February 2006 the applicants sent a letter to the municipality requesting the amount awarded and attached a writ of execution. The applicants sent further letters in October 2006 and July and August 2007 requesting that the municipality allocated in its budget the funds necessary for the payment of the awarded amount.
In 2006 the applicants requested that enforcement proceedings be instituted and that the enforcement agent draw up an inventory of real estate property owned by the municipality.
The municipality appealed against the actions of the enforcement agent and by a final judgment of 13 November 2007 the Pernik Regional Court held that they were unlawful. The court reasoned that in view of the provisions of Article 399 § 2 of the Code of Civil Procedure enforcement proceedings were not possible where the debtor was a state institution.
The amount due was apparently paid to the applicants on an unspecified date in April 2008.
2. Proceedings concerning the nullity of the contract of 12 September 2000
In 2006 the Radomir Municipality brought an action against the applicants claiming the nullity of the contract concluded on 12 September 2000. In a final decision of 23 November 2010 the Supreme Court of Cassation refused to allow cassation review thus upholding the lower court’s judgment finding against the applicants. The courts found that the contract contained discrepancies regarding the property it concerned. In addition, the applicable statutory procedure for sale had not been observed, namely a tender had not been held.
3. Criminal proceedings against officials from the Radomir Municipality
In 2006 and 2007, following requests submitted by the applicants, two sets of criminal proceedings were instituted against officials from the Radomir Municipality for breach of duties under Article 282 of the Criminal Code.
By a final decision of 4 February 2009 the Sofia Court of Appeal dismissed the applicants’ appeal as inadmissible thus upholding the prosecutor’s order to terminate the first set of proceedings.
On 8 May 2009 the Radomir District Prosecutor terminated the second set of criminal proceedings on account of the death of the suspect.
4. Criminal proceedings against the applicants
In 2008 the Mayor of Dolna Dokanya lodged a criminal complaint against the applicants for false incrimination, which was a privately prosecutable offence.
They were convicted in 2009 and fined. The applicants’ request for re-opening, lodged with the Chief Prosecutor, was rejected on an unspecified date.
5. Construction works in proximity to the applicants’ building
On an unspecified date in 2005 or later, on a neighbouring plot of land, a building was erected in alleged breach of the relevant statutory provisions.
In 2006, a bus stop was constructed on a plot of land in front of the applicants’ building.
COMPLAINTS
1. The applicants complained, relying on Articles 6 § 1, 13 and 17 of the Convention, that the Radomir Municipality failed to comply for more than two years with the judgment of the Radomir District Court of 14 December 2005 awarding them compensation.
2. They further complained under Article 6 § 1 about the length of the compensation proceedings against the Radomir Municipality and those against the order of the Radomir Mayor of 31 May 2001.
3. The applicants also complained that they were unable to use their property as a result of the allegedly unlawful construction, in breach of the relevant statutory provisions, of a building and a bus stop in front of their property.
4. The applicants also raised complaints in relation to the other proceedings in which they were involved. In particular, they complained about the alleged unfairness, partiality and outcome in those proceedings and, as regards the criminal proceedings for false incrimination against them, that one of the hearings was held in the absence of the first applicant.
THE LAW
1. The applicants complained about failure of the Radomir Municipality to comply with a final judgment awarding them damages as well as about the length of the compensation proceedings. The Court considers that these complaints fall to be examined under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention.
The relevant parts of Article 6 § 1 read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
Article 1 of Protocol No. 1 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.”
By letter dated 14 April 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“... The Government hereby wish to express ... [their] acknowledgment of the failure of the municipality authorities to [comply] with the final judgment for a period of over two years and the length of the compensation proceedings against the municipality authorities contrary to [Article] 1 of [Protocol] No. 1 and [Article] 6 of the Convention.
Consequently, the Government are prepared to pay to the two applicants – Tsvetanka Lazarova Tsenova and Tsvetan Georgiev Tsenov the amount of EUR 1,600 which they consider reasonable in the light of the Court’s case-law. The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses will be converted into Bulgarian [levs] at the exchange rate applicable at the time of payment, and will be free of any taxes that may be chargeable ... It will 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]...
The Government, therefore, request that this application be struck out of the Court’s list of cases pursuant to Article 37 § 1 (c) of the Convention. ...”
In their written reply dated 24 May 2011 the applicants expressed their disagreement with the proposed amount.
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 carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003‑VI; WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03, 18 September 2007).
The Court has established in a number of cases, including those brought against Bulgaria, its practice concerning complaints about the non-execution of a final judgment and about one’s right to a hearing within a reasonable time (see, for example, Burdov v. Russia, no. 59498/00, §§ 33-42, ECHR 2002‑III; Mancheva v. Bulgaria, no. 39609/98, §§ 54-68, 30 September 2004; Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Rachevi v. Bulgaria, no. 47877/99, §§ 69-92, 23 September 2004).
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 this part of the application (Article 37 § 1(c)).
Moreover, in light of the above considerations, and in particular given the clear and 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 this part of the application (Article 37 § 1 in fine).
In view of the above, it is appropriate to strike this part of the application out of the list.
2. The Court has examined the remainder of the applicants’ complaints as submitted by them. 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.
It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to 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 6 § 1 and Article 1 of Protocol No. 1 to the Convention about the failure of the municipal authorities to comply with a final judgment and the length of the compensation proceedings against the Radomir Municipality and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases, in so far as it relates to the above complaints, in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy