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FIRST
SECTION
CASE OF
KEHAYA AND OTHERS v. BULGARIA
(Applications
nos.47797/99 and 68698/01)
JUDGMENT
(just
satisfaction)
STRASBOURG
14
June 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Kehaya and Others v. Bulgaria,
The
European Court of Human Rights (First Section),
sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E.
Steiner,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 24 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 47797/99 and 68698/01)
against the Republic of Bulgaria. Application no. 47797/99 was lodged
on 25 May 1998 with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Aliosman Ahmed Kehaya (born on 17
January 1947). It was transmitted to the Court on 1 November 1998,
when Protocol No. 11 to the Convention came into force (Article 5 §
2 of Protocol No. 11).
- Application
no. 68698/01 was lodged with the Court on 7 February 2001 by Mr Ahmed
Halil Bozov (born on 4 January 1938), Mr Ahmed Rahmanov Bozov (born
on 29 November 1956), Ms Aishe Rahmanova Kachanova (born on 24
September 1951), Mr Halil Rahman Bozov (born on 26 January 1961), Mr
Mustafa Halil Bozov (born on 4 July 1935), Ms Gulfize Halilova
Osmandjikova (born on 10 October 1945), Mr Redjep Salihov Musov (born
on born on 21 March 1954), Ms Aishe Mustafova Kestendjieva (born on
23 October 1932), Mr Bairyam Ahmed Bairyam (born on 18 December 1944)
, Mr Halil Ahmed Kehaya (born on 18 May 1949), Mr Salih Nebi Boza
(born on 29 October 1951), Mr Redjep Nebi Boza (born on 12 July
1954), Mr Kadri Nebi Boza (born on 7 January 1965) and Mr Halil Salih
Musov (born on 11 November 1958).
3. Initially,
applicants under application no. 68698/01 were also Mrs Fatme
Nebi Trampova (born in 1949), Mr Ahmed Ahmed Kehaya (born in 1954),
Mr Mihail Damianov Tanev (born in 1955), Mr Milen Damianov Tanev
(born in 1957), Mr Stoyan Damianov Tanev (born in 1948), Mr Djemile
Damianova Zaimova (born in 1950) and Mr Ahmed Sali Musov (born in
1961). In November 2003 they all declared that they did not maintain
their applications and did not maintain their claims concerning land
in the Okusha area, near Sarnitza.
- In
a judgment delivered on 12 January 2006 (“the principal
judgment”), the Court held that there had been violations of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
In particular, as regards Article 1 of Protocol No. 1, the Court
found that there had been no justification for the deprivation of
property in issue (Kehaya and Others v. Bulgaria, nos.
47797/99 and 68698/01, 12 January 2006).
- Under
Article 41 of the Convention the applicants had sought just
satisfaction of approximately 250,000 euros (EUR) for damage
sustained and costs and expenses.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision as regards pecuniary and non-pecuniary damage
and the costs incurred for a valuation report, the Court reserved it
and invited the Government and the applicants to submit, within two
months, their written observations on that issue and, in particular,
to notify the Court of any agreement they might reach (ibid.,
§§ 91 and 97, and point 5 of the operative provisions).
- The
applicants and the Government each filed observations. Three of the
applicants were represented by Mr M. Ekimdjiev, a lawyer practising
in Plovdiv. The Government were represented by their co-agent
Ms M. Kotseva, of the Ministry of Justice.
THE LAW
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
1. Pecuniary damage
a) The applicants' claims
- In
respect of pecuniary damage, the applicants stated that they should
be given back their land.
- The
applicants presented a valuation report prepared by an expert, who
had been asked to assess the value of 25.6 ha of land (all the land
that was the subject matter of the 1997-2000 rei-vindicatio
proceedings), including the 14 ha that are the subject matter of the
present case (see paragraphs 15-19 and 20-26 of the principal
judgment). The expert found that the “fair value” of the
25.6 ha he assessed was 237,955 euros (EUR). As far as it can be
deducted from the information provided by the expert, the value of
the 14 ha that are the subject matter of the present case was
assessed by him at approximately EUR 133,000.
- The
expert relied on the characteristics of the land, which was located
in the Rhodoppi mountains, in an area of natural beauty in which
tourism was developing rapidly. The plots were located along the road
between Sarnitza and Dospat and some of them bordered the Dospat
reservoir. The expert also relied on information about prices paid in
four recent transactions involving land in the region (without
providing details of these transactions). Having regard to the above
criteria, the expert determined a “comparative market price”
per square metre (between EUR 0.75 and EUR 2.25, depending on
the quality of the respective part of the land). He then calculated
the overall “comparative market price” and then the “fair
value” of the land. The figure given as “fair value”
of the land, approximately EUR 133, 000 for the 14 ha under
consideration, represents approximately 68 % of the land's
“comparative market price” as determined by the expert.
b) The Government's position
- In
reply to the applicants' claims, the Government submitted a valuation
report prepared by another expert.
- The
expert noted that in accordance with the latest area map, issued by
the municipal authorities, the land at issue covered 13.3 ha, not 14
ha. The expert also criticised the approach used in the report
submitted by the applicants, stating, inter alia, that in the
absence of reliable market data, the land's value should be assessed
in accordance with the prices fixed by legislation for tax purposes.
Also, since there had not been an official decision declaring the
area “a resort”, no surcharge on account of the area's
attractiveness for tourism should be applied. Using prices determined
under the Basis Prices Regulations 2003, adopted by Council of
Ministers Decision no. 252 of 6 November 2003, amended in 2004 and
2005, the expert arrived at the conclusion that the land's value was
the equivalent of approximately EUR 54,000.
c) The Court's assessment
(i) The land at issue and each applicant's
share
- In
so far as the Government alleged that the surface of the plots of
land at issue was 13.3 ha and not 14 ha, the Court considers that it
is not necessary to decide this issue in the present judgment, in so
far as there is no dispute about the identity of the plots. The
decisive document in this respect must be the applicants' notary deed
(no. 50, book VII in notary case 1771/1997, executed on 20 August
1997 by the notary Veselin Angelov Petrichev).
- The
notary deed also sets out the co-owners' shares and the Court will
use this information as a basis for its decision. The total number of
shares in the property was 108 and the following applicants had the
following number of shares:
Mr
Ahmed Halil Bozov – 12
Mr Ahmed Rahmanov Bozov – 4
Ms
Aishe Rahmanova Kachanova – 4
Mr Halil Rahman Bozov – 4
Mr Mustafa Halil Bozov – 12
Ms Gulfize
Halilova Osmandjikova – 12
Ms
Aishe Mustafova Kestendjieva – 12
Mr Bairyam Ahmed Bairyam- 3
Mr Halil Ahmed Kehaya – 3
Mr
Salih Nebi Boza – 3
Mr
Redjep Nebi Boza – 3
Mr Kadri Nebi Boza – 3
Mr Aliosman Ahmed Kehaya - 3
- The
remaining two applicants, Mr Halil Salih Musov and Mr
Redjep Salihov Musov, submitted that they were the heirs of Mrs
Zeinena Halilova Musova who, according to the above mentioned notary
deed, had had twelve shares in the property. The Government did not
comment. The Court will therefore proceed on the basis that Mr Halil
Salih Musov and Mr Redjep Salihov Musov owned six shares each.
(ii) The Court's award
- The
Court reiterates that, in principle, a judgment in which it finds a
violation of the Convention imposes on the respondent State a legal
obligation to make reparation for its consequences in such a way as
to restore as far as possible the situation existing before the
breach (see Papamichalopoulos and Others v. Greece (Article
50), judgment of 31 October 1995, Series A no. 330 B, pp.
58-59, § 34).
- In
the principal judgment the Court found that the applicants had been
deprived of their property by virtue of the Supreme Court of
Cassation's judgment of 10 October 2000, which was contrary to the
principle of legal certainty as it disregarded the final nature of
the Supreme Court's judgment of 20 September 1996, determining the
applicants' property rights. The deprivation of property was thus
unlawful in the sense of the Convention and contrary to Article 1 of
Protocol No. 1 thereto (see paragraphs 74-77 of the principal
judgment).
- In
cases concerning unlawful dispossession of property, the Court
ordered the return to the applicants of the property that had been
taken away from them and, failing such restitution, the payment of a
sum of money reflecting the value of the property (see the above
cited, Papamichalopoulos and Others v. Greece judgment and
Brumărescu v. Romania (just satisfaction) [GC], no.
28342/95, ECHR 2001 I).
- Having
regard to the nature of the violation of Article 1 of Protocol No. 1
to the Convention found in the present case, the Court considers that
the restoration of the applicants' ownership rights and the return of
their part of the land in their possession would put the applicants
as far as possible in a situation equivalent to the one in which they
would have been if there had not been a breach of Article 1 of
Protocol No. 1.
- In
making this holding the Court takes into account the fact that the
land at issue was the joint property of the heirs of Mrs Fatma Bozova
and that not all her heirs are among the applicants. While the return
of the whole property to all heirs of Mrs Fatma Bozova will
constitute compliance with the present judgment, the Court only has
jurisdiction to order the restoration of the applicants' part of the
plots as described in the notary deed mentioned in paragraph 14
above.
- Failing
such restitution within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, the Court holds that the respondent State is to
pay each of the applicants, for damage, a sum of money representing
his or her share of the current value of the land.
- As
to the determination of this amount, the Court takes into account the
experts' reports submitted by the parties and information available
to it about property prices in Bulgaria. The Court notes that the
expert report presented by the applicants does not provide sufficient
detail and considers, therefore, that the final figure arrived at by
the expert cannot be accepted as fully reliable. On the other hand,
the Court cannot accept the Government's position that in the absence
of a developed market of agricultural land in the area it should use
the price fixed by legislation for tax purposes. It has not been
claimed by the Government that the price used for tax purposes
represented the real value of the land. Also, in so far as it is not
disputed that the land is located in an area of natural beauty in
which tourism is developing, the fact that it had not been declared
“a resort” is not of significant importance.
- Having
regard to the above, the Court determines that the amount
representing the value of the whole property at issue in the instant
case (the plots of land of approximately 13.3 or 14 ha in the Okusha
area) is EUR 95,000. The property was co-owned in 108 shares.
The value of each share is therefore determined at EUR 880.
- Having
regard to the shares held by each applicant, as described in
paragraphs 15 and 16 above, the Court holds that failing restitution
of the land, those of the applicants who owned twelve shares each
should be paid EUR 10,560 each, the applicants who owned six shares
each should be paid EUR 5,230 each, the applicants who owned four
shares each should be paid EUR 3,520 each and the applicants who
owned three shares each should be paid EUR 2,640 each.
26. The
total amount to be paid to the applicants for pecuniary damage in
case of non-restitution of their land is thus EUR 79,200.
2. Non-pecuniary damage
- In
respect of non-pecuniary damage, each of the applicants claimed
EUR 20,000 for the violations of Article 6 and Article 1 of
Protocol No. 1 related to the effects of the judgment of 10 October
2000 of the Supreme Court of Cassation and the taking of the
applicants' land. Mr Aliosman Kehaya claimed an additional EUR 3,000
in respect of the violations of the Convention related to the fines
imposed on him.
- The
Government did not comment.
- The
Court considers that the applicants have suffered distress on account
of the violations of their right to a fair trial and their right to
peaceful enjoyment of their property. Deciding on an equitable basis,
it awards EUR 1,500 in respect of non-pecuniary damage to each of the
applicants except Mr Aliosman Kehaya, to whom it awards EUR 2,000 for
non-pecuniary damage, having regard to the additional violation of
Article 1 of Protocol No. 1 found in his case (see paragraphs 79-84
of the principal judgment).
B. Costs and expenses
- In
its principal judgment the Court reserved its decision on the
applicants' claim for costs and expenses in so far as it concerned
the cost allegedly incurred for a valuation report. The applicants
claimed in this respect the sum of EUR 1,400. The applicants did not
claim costs in respect of the proceedings under Article 41 of the
Convention. The Government did not comment.
- The
Court considers that the expenses made by the applicants for a
valuation report have been actually and necessarily incurred, but
cannot accept them as reasonable as to quantum. The applicants have
not shown that the amount claimed is justified with regard to the
average experts' fees in Bulgaria.
- Deciding
on an equitable basis the Court awards to all applicants jointly EUR
500 in respect of the costs for a valuation report.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that the respondent State is to return to
the applicants, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2 of the
Convention, the ownership and possession of their part of the land at
issue;
- Holds that, failing such restitution, the
respondent State is to pay the applicants, within the same period of
three months, EUR 79,200 (seventy nine thousand two hundred euros) in
respect of pecuniary damage, payable as follows:
(i) EUR
10,560 (ten thousand five hundred and sixty euros) to each of the
following four applicants: Mr Ahmed Halil Bozov, Mr Mustafa
Halil Bozov, Ms Gulfize Halilova Osmandjikova and Ms Aishe Mustafova
Kestendjieva;
(ii) EUR
5,230 (five thousand two hundred and thirty euros) to each of the
following two applicants: Mr Halil Salih Musov and Mr Redjep
Salihov Musov;
(iii) EUR
3,520 (three thousand five hundred and twenty euros) to each of the
following three applicants: Mr Ahmed Rahmanov Bozov, Ms Aishe
Rahmanova Kachanova and Mr Halil Rahman Bozov;
(iv)
EUR 2,640 (two thousand six hundred and forty euros) to each of the
following six applicants: Mr Aliosman Ahmed Kehaya, Mr Bairyam
Ahmed Bairyam, Mr Halil Ahmed Kehaya, Mr Salih Nebi Boza, Mr Redjep
Nebi Boza and Mr Kadri Nebi Boza;
(v)
any tax that may be chargeable on the above amounts.
- Holds that the respondent State is to pay the
applicants, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the following amounts:
(i) in
respect of non-pecuniary damage, EUR 2,000 (two thousand euros) to Mr
Aliosman Kehaya and EUR 1,500 (one thousand five hundred euros) to
each of the remaining fourteen applicants;
(ii) in
respect of costs and expenses, EUR 500 (five hundred euros) jointly
to all applicants;
(iii) any
tax that may be chargeable on the above amounts;
- Holds that from the expiry of the periods
mentioned under (2) and (3) above until settlement simple interest
shall be payable on the amounts under (2) and (3) at a rate equal to
the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 14 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
