FOURTH SECTION
Application no. 1849/08
Tatyana Kaneva VELKOVA
against Bulgaria
lodged on 13 December 2007
STATEMENT OF FACTS
The applicant, Ms Tatyana Kaneva Velkova, is a Bulgarian national, who was born in 1966 and lives in Sofia. She works as a sole trader under the name “Tara”. The applicant is represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s privatisation request and ensuing judicial proceedings
In 1993 the applicant concluded a contract for mutual assistance with a municipally-owned company, by virtue of which she undertook to set up a shop in the City Shopping Centre. Initially the contract was for a duration of 20 days, which was subsequently extended numerous times.
On 1 July 1996 the applicant asked the Kardzhali municipal council to purchase the shop under the preferential privatisation procedure for tenants of State and municipally-owned property, provided for in section 35 (1) of the Transformation and Privatisation of State and Municipally‑Owned Enterprises Act (Закон за преобразуване и приватизация на държавни и общински предприятия: “the Privatisation Act”). In February 1997 the applicant was informed that the municipal council had rejected her request in a decision of 29 January 1997. The applicant appealed in court. The case was examined by the Kardzhali Regional Court and the Supreme Administrative Court. The latter twice quashed the lower court’s judgment and remitted the case to it for a new examination. In a decision of 20 February 2004 the Kardzhali Regional Court quashed the council’s refusal and instructed it to open privatisation proceedings in respect of the first floor of the shop. That was upheld by the Supreme Administrative Court in a final decision of 18 February 2005.
2. Eviction of the applicant and related complaint to the prosecution
In the meantime, on 8 May 2001 the mayor of Kardzhali sent a notice to sole trader “Tara”, announcing the termination of the contract for mutual assistance concluded in 1993. The mayor issued an order on 4 June 2001 for the eviction of the applicant from the shop. Following the applicant’s appeal, the Burgas District Court suspended the enforcement of the order. That was confirmed by the Burgas Regional Court.
On 24 September 2001 the mayor issued another order for the eviction of the applicant. Before that order entered into force, representatives of the municipal council broke into the shop and took possession of it. The applicant complained to the district prosecutor of Kardzhali about the arbitrary action of the mayor. In a decision of 9 November 2001, the district prosecutor refused to open criminal proceeding. That refusal was upheld by the regional and appellate prosecutor.
3. Refusal of the municipal council to enforce the Supreme Court judgment ordering the launch of a privatisation procedure
On 11 April 2005 the applicant asked the Kardzhali municipal council to open a procedure for the privatisation of the shop by the applicant, in accordance with the final decision of 18 February 2005 of the Supreme Administrative Court. As the municipal council did not reply, the applicant complained to the prosecutor about the failure of the mayor to comply with the judicial decision (under Article 296 (1) of the Criminal Code). In a decision of 9 November 2001 the district prosecutor refused to open criminal proceedings. He observed in particular that, in April 2005, all 38 members of the municipal council had discussed the applicant’s case on three separate occasions and had postponed the taking of a decision. Given that the decision had been taken by a collective body, no individual criminal responsibility could be attached to any of its members.
4. Proceedings for damages
On 18 December 2007 the applicant brought a claim against the Kardzhali municipality under the State Responsibility for Damages Act 1998, seeking damages as a result of the council’s failure to open privatisation proceedings. The Sofia Administrative Court rejected her claim in a decision of 10 November 2008. Following the applicant’s appeal, the Supreme Administrative Court upheld the lower court’s findings in a final decision of 31 May 2010.
5. Partial enforcement in favour of the applicant
After the applicant brought proceedings for damages, on 24 July 2008 the Kardzhali municipal council took a decision to open privatisation proceedings in favour of the applicant in respect of part of the shop’s first floor. The applicant appealed against that decision on 20 August 2008. While the appeal was ongoing, on 29 September 2008 the municipality and sole trader “Tara” signed a contract by virtue of which the applicant purchased part of the first floor of the shop. The applicant’s appeal was rejected by the Kardzhali Administrative Court on 7 October 2009 and that was confirmed by the Supreme Administrative Court in a final decision of 22 January 2010.
B. Relevant domestic law and practice
1. Privatisation
The relevant provisions governing the preferential privatisation procedure under Article 35 of the Transformation and Privatisation of State and Municipally‑Owned Enterprises Act of 1992 (Закон за преобразуване и приватизация на държавни и общински предприятия: “the Privatisation Act”) are summarised in Basarba OOD v. Bulgaria, no. 77660/01, § 18-22, 7 January 2010.
Pursuant to paragraph 7 (2) of the transitory provisions to the Privatisation Act, where a tenant of a state-owned or municipally-owned property has submitted a privatisation proposal, his or her lease contract may not be terminated by the landlord pending the examination of this proposal.
The Privatisation Act 1992 was superseded by Privatisation and Post‑privatisation Act 2002 (“the Act 2002”). According to paragraph 17 (3) of the transitory provisions of the Act 2002, the Privatisation Act 1992 remained applicable to all cases in which, at the moment of entry into force of the Act 2002, the refusal to open privatisation proceedings was either being challenged in pending court proceedings or was subject to a final judicial decision ordering the opening of privatisation proceedings.
2. Enforcement of final administrative court judgments
Enforcement of administrative court judgments was regulated by the Administrative Procedure Act 1979, as in force until July 2006, and – as regards judgments of the Supreme Administrative Court – by the Supreme Administrative Court Act 1997, as in force until 1 March 2007. The latter’s section 30 provided that the decisions of that court had an obligatory force vis-à-vis the parties. Its section 32 provided that a decision of that court was subject to an immediate enforcement by the administrative body concerned. Its Chapter IV contained administrative-penal provisions which envisaged the imposition of a pecuniary sanction of between 100 Bulgarian levs (BGN) and BGN 500 in cases in which administrative bodies did not enforce the court’s decisions.
The Supreme Administrative Court held in a decision of 2001 (see decision no. 2572 of 17 April 2001, case no. 4047/2000) that the applicable legislation at the time (Administrative Procedure Act 1979 and Supreme Administrative Court Act 1997) did not provide for time-limits within which the administrative body had to comply with judicial decisions. The decision as to when the judgment should be enforced was entirely in the hands of the administrative body concerned. The only procedure for the enforcement of administrative court decisions was an administrative pecuniary sanction (section 53 and following of the Administrative Procedure Act 1979, and section 51 and following of the Supreme Administrative Court Act 1997). The party aiming at obtaining enforcement did not need to appeal against a tacit or explicit refusal to enforce a judgment, but instead had to bring a separate complaint before the courts asking for the imposition of a pecuniary sanction on the administrative body which had not complied with the court’s judgment.
The Code of Administrative Procedure, which is currently in force, was adopted in 2006 and, with effect as from 1 March 2007, it repealed the Supreme Administrative Court Act 1997. It also repealed the Administrative Procedure Act 1979. Article 290 of the Code of Administrative Procedure 2006 regulates the enforcement of administrative court judgments vis-à-vis an administrative body obliged in a court judgment to deliver a non-substitutable action. If the responsible official fails to act, the bailiff imposes on them weekly pecuniary sanctions, in the amount of between BGN 50 and BGN 1200, for so long as the act remains uncompleted. Under Article 294, the bailiff’s actions or failure to act can be appealed before the administrative courts. If the court quashes an action or declares it unlawful, it may order that specific measures be carried out by the administrative body within a fixed time-frame. In addition, Article 304 stipulates that an official who does not comply with a final judicial decision can be fined with a sum of between BGN 200 and BGN 2000. Finally, under Article 250, an individual with a legal interest can ask the courts to order the termination of an action by an administrative body or official which is not based on an administrative act or on the law.
3. State and municipal responsibility for damages
As in force of 12 July 2006, section 1 (1) of the State Responsibility for Damages Act 1998 provides that claims for compensation can be brought against municipalities, in addition to the State, for pecuniary and non‑pecuniary damages which are the result of acts, actions or omissions to act of their bodies or officials.
The responsibility of the public administration for an unlawful act arises if that act has been quashed in earlier proceedings. A claim for compensation can be brought in parallel with an appeal against an administrative act (Article 204 (2) of the Code of Administrative Procedure). The court before which the claim for compensation is pending has to pronounce itself on the lawfulness of the administrative act, action or inaction (Article 204 (4) of the Code of Administrative Procedure).
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that the municipal authorities infringed her statutory right, recognised with a final court judgment, to purchase a leased property under the preferential privatisation procedure for tenants of municipally-owned property.
2. The applicant further complains under Article 6 about: (1) the excessive length of the judicial proceedings brought by her against the municipal council’s refusal to open privatisation proceedings; and, (2) the lack of legal certainty as a result of the council’s postponing for an indefinite period of time the taking of a decision to open privatisation proceedings.
3. The applicant also complains under Article 1 of Protocol No. 1 that, as a result of the prolonged non-enforcement of the decision of the Supreme Administrative Court of 18 February 2005, the municipal authorities infringed her statutory right to purchase the shop under the preferential conditions of section 35 of the Privatisation Act.
4. In a letter of 22 July 2010, the applicant further complains under Article 6 § 1 that: (1) in the proceedings brought by her for compensation, as well as in the proceedings against the partial enforcement in her favour, the courts did not deal with the merits of her complaints; (2) her case was not heard by an impartial tribunal established by law; and, (3) in the proceedings for compensation brought by her, the courts refused to award her damages.
5. Finally, the applicant complains under Article 13, in conjunction with Article 6 § 1 and with Article 1 of Protocol No. 1, that she did not have an effective remedy to challenge the decisions taken in the proceedings against the partial enforcement in her favour and in the proceedings for compensation.
QUESTIONS TO THE PARTIES
1. Did the failure to fully implement the judgment of the Supreme Administrative Court of 18 February 2005 constitute a breach, within the meaning of Article 6 § 1 of the Convention, of the applicant’s right to effective protection of her civil rights stemming from the said court judgment (Basarba OOD v. Bulgaria, no. 77660/01, § 33, 7 January 2010; Hornsby v. Greece, 19 March 1997, §§ 40 and 41, Reports of Judgments and Decisions 1997‑II)?
2. Did the failure of the authorities to fully implement the judgment of the Supreme Administrative Court of 18 February 2005 amount to an unlawful or unjustified interference with the applicant’s right to peaceful enjoyment of her possessions under Article 1 of Protocol No. 1 (Basarba OOD v. Bulgaria, no. 77660/01, § 48, 7 January 2010)?
3. Did the applicant have at her disposal effective remedies under Article 13, in conjunction with Article 6 § 1 and Article 1 of Protocol No. 1, for the implementation of the final Supreme Administrative Court judgment of 18 February 2005?
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