BRATANOVA v. BULGARIA - 44497/06 - Chamber Judgment [2015] ECHR 551 (09/06/2015)

In the case of Bratanova v. Bulgaria,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          Guido Raimondi, President,
          Päivi Hirvelä,
          George Nicolaou,
          Ledi Bianku,
          Krzysztof Wojtyczek,
          Faris Vehabović,
          Yonko Grozev, judges,
and Françoise Elens-Passos, Section Registrar,

Having deliberated in private on 19 May 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 44497/06) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Ilka Georgieva Bratanova (“the applicant”), on 7 October 2006.

2. The applicant was represented by Ms M. Tsvetkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Mr V. Obretenov and Ms M. Dimova, of the Ministry of Justice.

3. The applicant alleged, in particular, that the mayor of the Bankya district of Sofia had unlawfully refused to comply with a final court judgment in her favour.

4. On 2 November 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1944 and lives in Las Vegas, United States of America.

6. Her mother owned a plot of agricultural land of 1,000 square metres which was expropriated in 1952. Subsequently the plot was included in the urban territory of the Bankya district of Sofia.

7. The applicant is her mother’s sole heir.

8. In 1992, following the adoption of the Agricultural Land Act, the applicant requested that her property rights to the plot be restored. In a decision of 7 September 1994 the Bankya land commission held that, since the plot had become part of the urban territory, the procedure could only continue after the presentation of a plan of the plot and a certificate, showing whether any part of the plot had been constructed upon (see paragraph 23 below).

9. In a letter dated 19 June 2000, in response to an inquiry of the applicant as to the status of her request for restitution, the Bankya land commission stated once again that it needed a plan and a certificate.

10. On an unspecified date after that the applicant requested the Bankya district mayor to issue these documents, to allow her to pursue the restitution procedure.

11. During the years which followed the Bankya district authorities instructed the applicant to submit various documents, allegedly necessary for the preparation of the plan and the certificate, which she did. Nevertheless, the documents sought by the applicant were not issued.

12. On 27 February 2007 the applicant applied for judicial review of the mayor’s tacit refusal to issue the documents at issue.

13. Initially, the Sofia Administrative Court dismissed the application as inadmissible. Upon an appeal by the applicant, on 19 May 2008 the Supreme Administrative Court quashed that decision and ordered the lower court to examine the merits of the application. It commented as follows on the applicant’s situation:

“It can only be concluded on the basis of the case file that in the course of many years the municipal bodies were unlawfully refusing to provide [the applicant] with a plan of the plot and a certificate, and were instead flooding her with correspondence, expressing in different letters some kind of views as to what documents she needed to present and informing her that different procedures on which her request depended were under way. ...”

14. After a fresh examination of the case, in a judgment of 9 January 2009 the Sofia Administrative Court quashed the mayor’s refusal, finding that the mayor enjoyed no discretion as to whether to issue the documents sought by the applicant, and ordered him to issue these documents within one month. It noted that the plan of the plot and the certificate were mandatory for the Agriculture and Forestry Department (the former land commission) to be able to resume the restitution procedure, and pointed out that the mayor’s unlawful refusal to issue them affected the applicant’s right to restitution.

15. The above judgment was not appealed against and became final.

16. On 5 March 2009 the Bankya district mayor once again instructed the applicant to submit additional documents so that a plan of the plot and a certificate could be issued. The applicant challenged these instructions as irrelevant and impossible to observe. Nevertheless, in a decision of 24 February 2010 the mayor refused to issue a certificate and a plan because the instructions had not been complied with.

17. The applicant applied once again for judicial review. In a decision of 25 June 2010 the Sofia Administrative Court dismissed the application for judicial review as inadmissible, considering that the case concerned the enforcement of its judgment of 9 January 2009. However, upon an appeal by the applicant, on 23 September 2010 the Supreme Administrative Court quashed that decision, finding that the fresh refusal by the mayor to issue the documents sought was subject to separate judicial review.

18. In a new judgment of 27 June 2011 the Sofia Administrative Court dismissed the application for judicial review.

19. Upon an appeal by the applicant, in a final judgment of 8 May 2012 the Supreme Administrative Court set the above judgment aside, pronounced the mayor’s refusal null and void, remitted the case to him, and ordered him to issue the documents sought by the applicant. It pointed out that the mayor had already been obliged to issue the documents in question on the strength of the judgment of 9 January 2009. It noted further that the certificate and the plan of the plot were prerequisites for the resumption of the stayed restitution procedure.

20. Following the above judgment, between October 2012 and January 2013 the Bankya district administration sent three letters to the Sofia municipal administration requesting information about the plot’s current status in the land register, but, according to the applicant, made no further efforts to obtain the information thus requested, and at the end of 2013 the information was obtained by the applicant’s lawyer.

21. On 18 August 2014, upon a request by the applicant, a judge from the Supreme Administrative Court imposed a fine of 1,000 Bulgarian levs (BGN) on the Bankya district mayor for his failure to comply with the judgment of 8 May 2012 (Article 304 of the Code of Administrative Procedure, see paragraph 25 below). The judge noted that there was no indication that the documents sought by the applicant had been issued, and also that the mayor had provided no explanation for his failure to take that action. On 30 October 2014 the judge’s decision was upheld by a three-member panel of the Supreme Administrative Court.

II. RELEVANT DOMESTIC LAW

A. Restitution of agricultural land

22. The Agricultural Land Act (Закон за собствеността и ползването на земеделските земи) was adopted in 1991. Its relevant provisions concerning the restitution of agricultural land to its former owners have been summarised in the Court’s judgments in the cases of Lyubomir Popov v. Bulgaria (no. 69855/01, §§ 83-87 and 92, 7 January 2010), and Mutishev and Others v. Bulgaria (no. 18967/03, §§ 61, 68-74, 82 and 89-90, 3 December 2009).

23. Further provisions concerning the restitution of agricultural land are contained in the Regulations for the Implementation of the Agricultural Land Act. Section 11(1) of these Regulations provides that where formerly agricultural land has been included in urban territory, the relevant Agriculture Department (as the Agriculture and Forestry Departments were renamed in 2008) is to take a decision concerning the restitution of that land on the basis of a certificate (удостоверение) and a plan (скица), containing the specifications of the plot in question and information as to whether any part of it has been built upon. Only those parts which are free from any construction are subject to restitution in kind, and for the remainder the interested parties are in principle entitled to receive compensation. Pursuant to section 11(4) and section 13(4), (5) and (6) of the Regulations, the certificate and the plan are to be issued by the local authorities, upon a request by the claimant or directly by the relevant Agriculture Department.

B. Enforcement of final judgments of the administrative courts

24. The matter is regulated by the Code of Administrative Procedure adopted in 2006. In particular, Article 290 of the Code deals the enforcement of final 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 him weekly pecuniary sanctions, in the amount of between BGN 50 and 1,200, for so long as the act remains uncompleted. The bailiff’s decisions, actions or failure to act can be challenged before the administrative court (Article 294 of the Code).

25. In addition, Article 304 of the Code provides that in other cases where an official does not comply with a final judgment, he can be fined with between BGN 200 and 2,000. The fine is imposed by the president of the respective administrative court and is subject to appeal before a three-member panel of the same court (Article 306).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

26. The applicant complained about the Bankya mayor’s refusal to comply with the judgment of the Sofia Administrative Court of 9 January 2009 ordering him to issue a certificate and a plan of the plot of land. She relied on Article 1 of Protocol No. 1 and Article 13 of the Convention. The Court is of the view that the complaint falls to be examined under Article 6 § 1 of the Convention, the relevant part of which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Arguments of the parties

27. The Government claimed that the applicant had failed to exhaust the available domestic remedies, because she had not brought a tort action under the State and Municipalities Responsibility for Damage Act (“the SMRDA”).

28. In addition, the Government argued that the applicant was herself to blame for the mayor’s inability to issue the documents sought, because she had failed to comply with his instructions and submit other necessary documents. This statement was made on 26 April 2011, before the Supreme Administrative Court’s judgment of 8 May 2012 (see paragraph 19 above).

29. The applicant disagreed. As regards the Government’s objection for non-exhaustion of domestic remedies, she pointed out that the examination of a tort action under the SMRDA would take too much time and could not in itself compel the mayor to take the necessary action.

30. The applicant contested the Government’s argument that she had herself been responsible for the mayor’s failure to comply with the judgment of 9 January 2009. She argued that she had not been obliged to submit any documents, as the district authorities in Bankya had been under an obligation to carry out all the necessary checks themselves and to collect the information they needed.

B. The Court’s assessment

1. Admissibility

31. The Court takes note of the Government’s objection that the applicant had not exhausted all available domestic remedies because she had not brought a tort action against the Bankya district authorities.

32. However, in a number of cases against Bulgaria the Court has already held that a tort action under the SMRDA could not be an effective remedy in cases where the authorities were obliged to take specific action, because it could only result in the award of compensation but could not compel the authorities to act (see, for example, Kirilova and Others v. Bulgaria, nos. 42908/98, 44038/98, 44816/98 and 7319/02, § 116, 9 June 2005, and Mutishev and Others, cited above, § 104). The Court sees no reason to depart from this conclusion in the present case, and accordingly dismisses the Government’s objection.

33. In addition, the Court notes that the applicant has failed to avail herself of the possibility to seek the enforcement of judgment of 9 January 2009 under section 290 of the Code of Administrative Procedure 2006 (see paragraph 24 above). As the Court has found, the procedure provided for therein could in principle represent an effective remedy in cases of non-enforcement of court judgments by administrative bodies (see Stoyanov and Tabakov v. Bulgaria, no. 34130/04, § 96, 26 November 2013). However, in the present case the Government have not raised a non-exhaustion objection on that account and the Court will not therefore examine the matter.

34. Lastly, the Court notes that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

35. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. In this way Article 6 § 1 embodies the “right to court”. However, this right would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. Implementation of a judgment given by any court must therefore be regarded as an integral part of the “trial” for the purposes of Article 6 (see Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III, and Hornsby v. Greece, 19 March 1997, § 40, Reports of Judgments and Decisions 1997-II).

36. In the present case, it was not disputed between the parties that the judgment of 9 January 2009 related to the civil rights and obligations of the applicant. The Court, for its part, observes that the judgment at issue concerned the Bankya mayor’s obligation to issue documents which were decisive for the outcome of the applicant’s restitution claim, in accordance with national law. As the two procedures are intrinsically intertwined, the dispute over the issue of those documents becomes inseparable from the procedure of reviewing the applicant’s restitution claim. Accordingly, the Court concludes that Article 6 § 1 of the Convention was applicable to the case and required that the judgment of 9 January 2009 be complied with.

37. The judgment of 9 January 2009 ordered the mayor of the Bankya district to issue the documents sought by the applicant, saying that he enjoyed no discretion in the matter (see paragraph 14 above). However, more than five years later, in 2014, as noted by the Supreme Administrative Court (see paragraph 21 above), the documents had still not been issued.

38. The Government argued that the applicant was herself to blame for this situation, as she had not complied with the mayor’s instructions to submit additional documents. The applicant contested that argument, saying that she had not been obliged to provide any documents.

39. The Court considers that it does not have to deal with this matter. It notes that the Government’s argument dated back to 2011, and that soon afterwards, on 8 May 2012, the Supreme Administrative Court found the mayor’s refusal to issue the documents sought by the applicant contrary to the judgment of 9 January 2009 and thus null and void (see paragraph 19 above). The Court sees no justification for a rejection of that conclusion, and accordingly finds the mayor’s refusal to comply with the judgment of 9 January 2009, between its entry into force and 8 May 2012, unlawful.

40. After the Supreme Administrative Court’s judgment of 8 May 2012 the mayor did not contest his obligation to issue the documents sought and did not request the applicant to meet any further formalities. During this period the failure to comply with the judgment of 9 January 2009 was apparently due to almost complete inaction on the part of his administration, which sent three letters to the Sofia municipal authorities requesting information, but apart from that did nothing to ensure compliance. In fact, it was even the applicant’s lawyer who collected the necessary information (see paragraph 20 above). The Government have not provided any explanation for the mayor’s failure to comply with the judgment of 9 January 2009 since May 2012. Moreover, this failure has also been found to be unjustified by the Supreme Administrative Court, which on that basis in 2014 imposed a fine on the mayor (see paragraph 21 above).

41. The foregoing considerations are sufficient to enable the Court to conclude that the mayor’s failure to comply with the final judgment of the Sofia Administrative Court of 9 January 2009 was in breach of the requirements of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1

42. The applicant also complained of a violation of Article 1 of Protocol No. 1. She pointed out that the authorities had not yet adopted a decision as concerns the restitution of her mother’s former plot of land.

43. Article 1 of Protocol No. 1 reads:

“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.”

44. The Government did not comment on that part of the application.

45. The Court reiterates that an applicant can allege a violation of Article 1 of Protocol No. 1 only to the extent that the impugned decisions relate to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. A “legitimate expectation” must be of a nature more concrete than a mere hope, and must be based on a legal provision or a legal act such as a judicial decision (see, as leading authorities, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001-VIII, and Kopecký v. Slovakia [GC], no. 44912/98, §§ 35 and 49, ECHR 2004-IX).

46. However, in the present case the domestic proceedings for the recognition of the applicant’s restitution rights are still pending and no final decision has been taken. It cannot thus be said that the applicant has “existing possessions” within the meaning above. In addition, the belief that in the future the authorities may issue a decision recognising her restitution rights is not sufficient to be regarded as a form of “legitimate expectation” for the applicant for the purposes of Article 1 of Protocol No. 1 (see Luli and Others v. Albania, nos. 64480/09, 64482/09, 12874/10, 56935/10, 3129/12 and 31355/09, § 104, 1 April 2014).

47. The Court therefore rejects this complaint as being premature in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

48. 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

49. In the submissions made by her lawyer on 18 July 2011, the applicant claimed 77,000 euros (EUR), representing the market price of 777 square metres of the plot sought by her, which she considered she could have realistically received had the restitution procedure been finalised. In support of that claim the applicant presented a letter by a real property agency, explaining that the market price of a plot of the type and location of the one claimed by her was EUR 100 per square metre. In the same submissions the applicant claimed another EUR 210,000, equalling the value of the plot “had it been constructed upon” in accordance with the existing urban development plans.

50. In a letter of 24 June 2011 sent directly to the Court the applicant stated, on the other hand, that she preferred to obtain actual restitution of the plot rather than compensation for its market price.

51. For non-pecuniary damage, the applicant claimed EUR 20,000. She argued that she had experienced uncertainty and dissatisfaction because of the authorities’ contradictory actions.

52. The Government considered the amounts claimed by the applicant exaggerated.

53. The Court does not discern any causal link between the violation found in the case, which concerned the Bankya mayor’s refusal to enforce the judgment of 9 January 2009, and the pecuniary damage alleged; moreover, it refers to its finding above (see paragraph 46) that the applicant’s restitution rights had not yet been determined. For these reasons, the Court rejects the claims for pecuniary damage.

54. On the other hand, it is of the view that the applicant must have suffered non-pecuniary damage as a result of the violation found in the case. Taking into account the relevant circumstances, and judging on the basis of equity, it awards the applicant EUR 3,600 under this head.

B. Costs and expenses

55. The applicant also claimed BGN 500, the equivalent of EUR 255, paid by her for legal representation before the Court. She submitted a contract for legal representation whereby it is noted that she had paid that sum to her lawyer, Ms Tsvetkova.

56. For the costs and expenses incurred before the domestic courts, the applicant claimed: (1) BGN 533, the equivalent of EUR 272, for legal representation and other expenses incurred in the proceedings which resulted in the judgment of 9 January 2009 (see paragraphs 12-14 above), and (2) BGN 1,200, the equivalent of EUR 612, for the proceedings which ended with the judgment of 8 May 2012 (see paragraphs 17-19 above). In support of these claims the applicant submitted the relevant receipts.

57. The applicant claimed another BGN 500, the equivalent to EUR 255, for other expenses such as postage, copying, and travel, and BGN 250, the equivalent of EUR 128, for “the preparation of two combined plans” of the plot of land.

58. The Government urged the Court to dismiss the above claims, considering that some of them were not sufficiently supported by evidence.

59. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.

60. In the present case, the Court is of the view that the costs of legal representation before the Court (see paragraph 55 above) were actual and necessary and are reasonable as to quantum. It thus awards the amount claimed in full, namely EUR 255.

61. The Court also awards the applicant the expenses incurred in the domestic proceedings, namely EUR 884 in total (see paragraph 56 above), taking the view that by initiating these proceedings the applicant attempted to put an end to the violation of her rights.

62. On the other hand, the Court sees no justification to award the costs and expenses described in paragraph 57 above. It perceives no link between the violations found in the case and the costs for two plans of the plot of land. As regards the claim for “other expenses” in the amount of BGN 500, the Court notes that it is unspecified and, in addition, unsupported by any documents.

C. Default interest

63. The Court considers it appropriate that the default interest rate 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,

1. Declares the complaint under Article 6 § 1 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,139 (one thousand one hundred and thirty-nine euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 9 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Guido Raimondi
Registrar President

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