FOURTH SECTION
DECISION
Application no. 36307/06
by Ivanka Mihaylova VELCHEVA and Iliyana Mihaylova SOTIROVA
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 15 November 2011 as a Committee composed of:
Päivi Hirvelä, President,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 19 August 2006,
Having regard to the declaration of the respondent Government made with view to resolving the complaint about the length of the proceedings and requesting the Court to strike this part of the application out of its list of cases,
Having regard to the applicants’ comments on the Government’s unilateral declaration,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mrs Ivanka Mihaylova Velcheva (“the first applicant”) and Mrs Iliyana Mihaylova Sotirova (“the second applicant”), are Bulgarian nationals who were born in 1928 and 1930 respectively and lived in Sofia. They were represented before the Court by Mrs M. Ilieva and Mrs N. Popova, lawyers practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Mrs N. Nikolova and Mrs M. Kotzeva, of the Ministry of Justice.
On 7 October 2010 the President of the Chamber to which the case had been allocated communicated the application to the respondent Government.
In letters dated 22 November 2010 and 28 April 2011 the Court was informed that the first and second applicants had passed away on 23 October 2009 and 8 May 2010 respectively and that their only heir – Mrs Mariana Toshkova Velcheva-Stoeva, daughter of the first applicant and niece of the second applicant, stated that she wished to continue the present proceedings in the applicants’ stead.
The facts of the case, as submitted by the parties, may be summarized as follows.
On 5 August 1992 the applicants, whose father’s apartment had been nationalised in the period 1948-1949 and then sold to a third party, initiated rei vindicatio proceedings against the new owners of the property and proceedings under the special provision of section 7 of the Law on the Restitution of Ownership of Nationalised Real Property (“the Restitution Law”). They sought a declaration that the new owner’s title was null and void and numbered several grounds in that respect.
At the hearing of 21 February 1994 the applicants requested the Sofia District Court to order the relevant state authorities to submit copies of the purchase documentation, to which the applicants had had no access. The request was granted and the documents were submitted on an unspecified date between February and May 1994.
Subsequently, on 13 May 1994 the applicants amended their claim introducing new alleged grounds for declaring the title null and void, namely that the purchase contract had not been signed by the competent official.
At the hearing of 4 June 1997 the Sofia District Court noted that in breach of the relevant procedural rules the wrong state authority had been summoned as the defendant in the proceedings and no prosecutor had taken part and cancelled all procedural actions that had taken place so far. Thus, the proceedings had to re-start with the participation of the correct state authority and a prosecutor.
By a judgment of 14 January 2000 the Sofia District Court granted the applicants’ claim and declared the third party’s title null and void. It found that the purchase contract had not been signed by the competent official, namely the mayor of the relevant district.
The defendants appealed before the Sofia City Court. For the period between February 2000 and July 2001 the domestic courts dealt with one of the defendants’ request for restoration of the time-limit for appeal, which was allowed in a final decision of 20 July 2001.
Thereafter, the appeal proceedings continued before the Sofia City Court.
By a judgment of 25 November 2004 the Sofia City Court quashed the lower court’s judgment and rejected the applicants’ claim. It did not examine the argument that the purchase contract had not been signed by the competent official, holding that the introduction of this argument in May 1994 amounted to bringing a new nullity plea and thus a new action which was time-barred as submitted after the expiry in February 1993 of the one‑year time-limit under the Restitution Law. Therefore the Sofia City Court rejected the claim.
On appeal by the applicants, by a final judgment of 23 March 2006 the Supreme Court of Cassation upheld the Sofia City Court judgment. It rejected the applicants’ objection that in the period 1997-1998, while the applicants’ proceedings had been pending before the courts, an amendment of the Restitution law had been in force, introducing a new time-limit for lodging actions under section 7 of this Law. It held that the ground for nullity invoked for the first time in 1994, which was in reality a new claim, had to be timely and admissible at the time when it had been introduced. The amendment of 1997 had effect ex nunc and therefore it did not retroactively validate as timely the applicants’ claim of 1994, which had been introduced out of time.
COMPLAINTS
1. The applicants complained Articles 6 § 1 of the Convention about the length of the civil proceedings.
2. The applicants, relying on Articles 6 § 1 and 13 of the Convention, complained that they did not have an effective access to a court as the domestic courts did not examine their argument that the third party’s purchase contract had not been signed by the competent official.
3. The applicants, relying on Article 14 of the Convention, complained that they had been discriminated against in comparison to the individuals who had filed their actions under section 7 of the Restitution Law in the period between 22 November 1997 and 21 March 1998, when a new time‑limit for introducing such an action had been in force. The applicants claimed that unlike these actions, their action, which had been filed in 1994 and had been pending before the courts in 1997-1998 had not been examined.
4. The applicants complained under Article 1 of Protocol No. 1 that as a result of the proceedings they were refused their alleged right to obtain restitution of the apartment.
THE LAW
A. Preliminary issue
The Court notes at the outset that the applicants died after lodging the present application and their only heir, Mrs Mariana Toshkova Velcheva‑Stoeva, the first applicant’s daughter and the second applicant’s niece, expressed her wish to continue the proceedings before the Court. It has not been disputed that the applicants’ heir is entitled to pursue the application on their behalf and the Court sees no reason to hold otherwise (see Lukanov v. Bulgaria, 20 March 1997, § 35, Reports of Judgments and Decisions 1997-II; Kozimor v. Poland, no. 10816/02, §§ 25-29, 12 April 2007; and Gyuleva and Others v. Bulgaria, no. 76963/01, § 29, 25 June 2009).
B. The applicants’ complaints
1. The applicants complained under Articles 6 § 1 of the Convention about the length of the civil proceedings.
By letter dated 1 September 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue under Article 6 § 1 about the length of the proceedings 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 [...] its acknowledgment of the excessive length of the civil proceedings of the applicants, contrary to [Article] 6 § 1 of the Convention.
Consequently, the Government are prepared to pay to Ms Mariana Toshkova Velcheva-Stoeva, heir of the applicants the amount of EUR 8,000 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 to the applicants. 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 a statement dated 1 October 2011 the applicants’ heir expressed the view that the Government should have also acknowledged violations of Articles 13 and 14 of the Convention and Article 1 of Protocol No. 1, proposed just satisfaction in this respect, and undertaken to re-open the domestic proceedings.
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 (Tahsin Acar v. Turkey, [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).
The Court has established in a number of cases, including those brought against Bulgaria, its practice concerning complaints about the violation of the right to a hearing within a reasonable time (see, for example, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Cocchiarella v. Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006‑....; Majewski v. Poland, no. 52690/99, 11 October 2005; Wende and Kukówka v. Poland, no. 56026/00, 10 May 2007 and Finger v. Bulgaria, no. 37346/05, 10 May 2011).
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 complaint concerning the length of the proceedings (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 its examination (Article 37 § 1 in fine).
Accordingly, this part of the application should be struck 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
Holds that the applicants’ heir, Mrs Mariana Toshkova Velcheva-Stoeva, has standing to continue the present proceedings in their stead;
Takes note of the terms of the respondent Government’s declaration in respect of the complaint under Article 6 § 1 of the Convention about the length of the proceedings 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 complaint in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident
Full & Egal Universal Law Academy