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FOURTH
SECTION
CASE OF BALEZDROVI v. BULGARIA
(Application
no. 36772/06)
JUDGMENT
STRASBOURG
20
September 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Balezdrovi v.
Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a
committee composed of:
Päivi Hirvelä,
President,
Ledi Bianku,
Zdravka Kalaydjieva,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 30 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36772/06) 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 two Bulgarian nationals, Mrs Teodora Hristova
Balezdrova and Mr Atanas Dimitrov Balezdrov (“the applicants”),
on 30 August 2006.
- The
applicants were represented by Mr M. Ekimdzhiev, a lawyer practising
in Plovdiv. The Bulgarian Government (“the Government”)
were represented by their Agent, Ms R. Nikolova, of the Ministry of
Justice.
- On
25 February 2010 the President of the Fifth Section decided to give
notice of the application to the Government.
- The
application was later transferred to the Fourth Section of the Court,
following the re-composition of the Court’s sections on 1
February 2011. In accordance with Protocol No. 14 to the Convention,
the application was allocated to a Committee of three Judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants are spouses who were born in 1957 and 1955 respectively
and live in Plovdiv.
- Following
partition proceedings, in 1980 the first applicant obtained title
over a house together with the adjoining land in Plovdiv, previously
owned by her ancestor.
- By
an order of 25 April 1984 the mayor of Plovdiv expropriated the
properties with a view to constructing an apartment building. The
order was based on sections 95 and 98 of the
Territorial and Urban Planning Act of 1973 (“the 1973 Act”)
and stipulated that the first applicant was to receive as
compensation a three-room flat in a building which was to be erected
by a housing construction cooperative and partly financed by the
State. The expropriated properties were valued at 7,431.81 old
Bulgarian levs (BGL).
- By
a supplementary order of 5 June 1986 based on section 100 of the 1973
Act (see paragraph 17 below), the mayor indicated the exact flat to
be given to the first applicant by way of compensation, specifying
the building in which it would be located and its exact size and
price.
- In
November 1986 the applicants vacated the property and were
accommodated in a State-owned dwelling. Subsequently the expropriated
house was pulled down.
- The
flat allotted to the first applicant was valued at BGL 22,928. In
1987 the applicants paid to the cooperative part of that price. The
remainder, which equalled the value of the first applicant’s
expropriated property, was to be covered by the State.
- On
3 June 1987 the State Savings Bank informed the Bulgarian National
Bank that all members of the housing construction cooperative had
paid the instalments due by them for the construction of the
building.
- Apparently,
the construction works started in 1987.
- Between
1992 and 1997 the housing construction cooperative informed the mayor
of Plovdiv, the Minister of Finance and the Minister of Public Works
of the increase in construction material prices, including by
providing in October 1992 and in July 1997 a calculation of the
respective increase in the financing due by the authorities. The
cooperative also drew the authorities’ attention to delays in
the construction works and requested that the State fulfilled its
obligation to pay its share in the financing of the construction
works.
- It
appears that between 1995 and 1997 the Ministry of Finance paid the
State’s share for the construction works which had been
performed between 1992 and 1997. The applicants and the other persons
entitled to receive flats in the building also made further financial
contributions on account of the increase in construction material
prices.
- Apparently,
in 1999 and 2001 the Plovdiv Municipality and the housing
construction cooperative concluded contracts assigning the
construction works of the building to several companies. According to
an annex to the contract of 2001, signed in 2005, which specified
each party’s financial obligations the State was to cover the
whole cost of the construction expenses for the flats of the
cooperatives’ members whose properties had been expropriated.
The annex further specified that the Plovdiv Municipality’s
outstanding financial obligations towards the cooperative amounted to
13,800 new Bulgarian levs (BGN).
- The
part of the building where the first applicant’s flat was
located was completed and its use authorised on 23 July 2007. That
month the first applicant and her family moved in the property. On 5
June 2008 the first applicant obtained a notary deed for the flat
which stated that its market value was BGN 41,745.82 (21,344 Euros
(EUR)).
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice have been summarised in the
Court’s judgments in the cases of Kirilova and Others v.
Bulgaria (nos. 42908/98, 44038/98, 44816/98 and 7319/02, §§
72-83, 9 June 2005) and Lazarov v. Bulgaria (no. 21352/02, §
19, 22 May 2008).
- Pursuant
to Article 13 § 2 of the 1968 Family Code in force at the
relevant time real estate or goods acquired by one of the spouses
during the marriage by means of inheritance remained personal
property of that spouse.
- According
to section 16 § 4 of Ordinance No. 5 of 11 February 1986
(Hаредба №
5 oт 11.02.1986 г. за
набиране и
разходване
на средствата
по фонд “Жилищно
строителство”)
the difference in the value of expropriated properties as determined
at the time of expropriation and the value paid by the expropriated
owner was to be covered by the State following the submission by the
housing construction cooperative of a form containing an estimation
of that difference.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicants complained that as a result of the authorities’
inaction they were not provided with the flat they were entitled to
receive in compensation for the first applicant’s expropriated
property for an extended period of time, in breach of Article 1 of
Protocol No. 1 to the Convention, which 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.”
Admissibility
1. The second applicant’s victim status
- The
Government submitted that the second applicant could not claim to be
a victim of the alleged violation of the Convention. They argued that
the expropriated property belonged to the first applicant alone and
that it was only her who was listed in the Property Registry as the
owner of the flat provided to her in compensation. The Government
thus considered that the second applicant’s property rights
were not affected by the events in question.
- The
applicants submitted that the flat provided in compensation for the
first applicant’s expropriated properties was jointly owned as
they were spouses at the time the properties were acquired in 1980
and as the funds paid towards the construction came out of the family
budget.
- The
Court observes that, although acquired during her marriage, the first
applicant inherited the expropriated properties and was their only
owner according to the provisions of domestic law (see paragraphs 6
and 18 above). In addition, it was only her who was provided the flat
in compensation (see paragraph 8 above) and who was listed as the
owner in the notary deed issued following the flat’s completion
(see paragraph 16 above). The second applicant did not have a vested
right in the property.
- The
Court therefore considers that the complaint lodged by the second
applicant on his own behalf is incompatible ratione personae
with the provisions of the Convention within the meaning of Article
35 § 3 (a) and must be rejected in accordance with Article 35 §
4. The Court will henceforth refer to the first applicant as “the
applicant”.
2. The Government’s objection of non-exhaustion
of domestic remedies
- The
Government further contended that the applicant had failed to exhaust
domestic remedies. In particular, they submitted that she could have
requested a modification of the order to provide for compensation in
cash, for compensation with a smaller flat, or compensation with a
flat situated elsewhere. In the Government’s view the applicant
could lodge an action under the State and Municipality Responsibility
for Damage Act and claim compensation for the damage sustained
because of the delay in providing the flat due to her.
- The
Court notes that the objections and arguments put forward by the
Government have been rejected in earlier similar cases (see Kirilova
and Others, §§ 110-120, cited above; Antonovi v.
Bulgaria, no. 20827/02, § 24, 1 October 2009) and sees no
reason to reach a different conclusion in the present case. In
particular, it notes that the domestic case-law referred to by the
Government does not concern the award of damages for delays in
providing compensation for expropriated property and as such cannot
support the assertion that an action under the State and Municipality
Responsibility for Damage Act was an effective remedy for the
applicant in the circumstances of the present case.
- It
follows that the Government’s objection of non-exhaustion of
domestic remedies in respect of the applicant’s complaint under
Article 1 of Protocol No. 1 must be dismissed. The Court further
notes that this complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
Merits
1. The parties’ submissions
- The
applicant submitted that the authorities’ failure to provide
the necessary financing had resulted in her being unable to obtain
the flat provided in compensation for her expropriated property for
over twenty years and that this infringed her right under Article 1
of Protocol No. 1.
- The
Government submitted that the case differed significantly from
Kirilova and Others (cited above) in that in the case at hand
the State had not been under an obligation to construct the flat
provided in compensation to the applicant. They further submitted
that the Plovdiv Municipality had in no way impeded the construction
of the apartment building and that it had provided financing
according to the funds available to it. They also averred, relying on
Ordinance No. 5 of 11 February 1986, that it had not been established
that the applicant or the housing construction cooperative had
submitted the documents required by that ordinance in order to secure
State financing. Finally, the Government drew attention to the fact
that the construction works between 2001 and 2007 had been carried
out in a timely manner and that the flat was delivered to the
applicant in July 2007.
2. The Court’s assessment
- The
Court notes at the outset that, similarly to the case Kirilova and
others as well as to the follow-up cases Lazarov and
Antonovi (all cited above), the applicant in the instant case had
a vested right to the flat awarded to her as compensation for her
expropriated property (see paragraph 8 above).
- As regards the scope of the case, the Court observes
that it does not concern – and it has no jurisdiction ratione
temporis to examine – the issues linked to the taking of
the applicant’s property in 1984 or the adequacy of the
compensation awarded at that time and that consequently the
interference cannot be equated to a deprivation of possessions within
the meaning of the second sentence of the first paragraph of Article
1 of Protocol No. 1. Instead, the alleged interference with the
applicant’s right to enjoyment of her possessions consisted of
the delay in providing her with the compensation awarded which
occurred after 7 September 1992, the date when the Convention and
Protocol No. 1 entered into force in respect of Bulgaria.
Accordingly, the Court will examine it under the first sentence of
that paragraph (see Kirilova and Others, §§
104 and 105, Lazarov, § 28, and Antonovi, §
29, all cited above).
- The
Court thus needs to establish whether the delay in providing the
compensation awarded to the applicant for her expropriated property
upset the fair balance which must be struck between the demands of
the general interest of the community and the requirements of the
protection of the individual’s fundamental rights (see the
above-cited Kirilova and others judgment, § 106).
- The
Court observes in that regard that unlike the cases cited above,
where the authorities were under an obligation to construct the flats
provided in compensation for the applicants’ expropriated
properties, in the case at hand the State’s duty as defined at
the time of the expropriation was one of providing financing whereas
the construction of the applicant’s flat was to be carried out
by a housing construction cooperative.
- The
Court thus considers it appropriate to distinguish between the period
when the authorities were under an obligation to provide funds to the
housing construction cooperative which was to use them towards the
construction of the applicant’s flat and the period after the
contracts signed in 1999 and 2001 and the annex signed in 2005 (see
paragraph 15 above) when the authorities became a party to the
contracts for construction of the flat.
- As
regards the first period, the Court does not consider that the
authorities can be regarded as responsible for the delay in the
construction and delivery of the applicant’s flat solely on
account of the delay on their part in providing the funds due by them
as the construction works themselves were to be carried out by a
third party contracted by the housing construction cooperative.
- However,
following the agreements signed in 1999 and 2001 and the annex of
2005 the authorities became contractually bound to carry out the
construction of the applicant’s flat (see paragraph 15 above).
What is more, according to the annex signed in 2005 and much as in
the cases Kirilova and others, Lazarov and Antonovi (all cited
above) they were entirely responsible for the construction of the
flats of the members of the housing construction cooperative - such
as the applicant - whose properties had been expropriated.
- The
Court notes, in that regard, the irregular nature of the financing
provided by the State (see paragraphs 14 and 15 above) and that as of
2005 there still were outstanding financial obligations on its part.
It also notes that, the Government do not contend that the applicant
or the housing construction cooperative had not paid their share in
the financing of the construction works and do not put forward any
detail in support of their assertion that the construction works were
being carried out in a timely manner. That being said, the Court
cannot but conclude that it was the delay on the part of the public
authorities in providing the necessary financing, coupled with their
passive attitude during long periods of time that prevented the
applicant from obtaining the flat provided to her in compensation for
her expropriated property for a period of over eight years.
- In the judgments of Kirilova and Others
and Lazarov (both cited above) the Court found that the fair
balance required under Article 1 of Protocol No. 1 had not been
achieved due to the long delays in providing the properties, the
authorities’ passive attitude, and the long period of
uncertainty endured by the applicants who, as a result, had to bear a
special and excessive burden (see Kirilova and Others,
§ 123, Lazarov, § 32, Antonovi, § 30,
all cited above). While taking note of the present case’s
discernible feature (see paragraphs 33 and 35 above), the Court sees
no reason to reach a different conclusion bearing in mind the delay
of more than eight years in the delivery of the applicant’s
flat following the moment when the Plovdiv Municipality became
directly involved in the carrying out of the construction works.
- There
has accordingly been a violation of Article 1 of Protocol No. 1 to
the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
Damage
1. Pecuniary damage
- The
applicant claimed EUR 43,275 in respect of pecuniary damage resulting
from the impossibility to use the flat provided to her in
compensation. The amount represented the loss of rent sustained by
the applicant between 1991 and 2007.
- The
Government contested these claims.
- The
Court finds it appropriate to adopt the same approach as that in the
judgments in the cases of Kirilova and Others v. Bulgaria (just
satisfaction), (nos. 42908/98, 44038/98, 44816/98 and 7319/02, 14
June 2007) and the above-cited cases of Lazarov (§§
37-45) and Antonovi (§§ 33-42).
- In
respect of the alleged loss of rent, the Court observes that the
applicant has not shown that she or her family had alternative
housing available to them and, consequently, that she would have let
out the flat. Furthermore, the applicant, who was provided with
temporary municipal housing, did not claim that she or her family had
incurred expenses in order to find accommodation while awaiting
delivery of the flat. The Court nevertheless considers that the
applicant has suffered a certain loss of opportunity on account of
not having been able to use and enjoy the flat for an excessively
long period of time (see Kirilova and Others (just
satisfaction), cited above, § 33). Ruling in equity, it awards
EUR 2,000 under this head.
2. Non-pecuniary damage
- The
applicant claimed EUR 20,000 in respect of non-pecuniary damage. She
submitted she had suffered anxiety and frustration over an extended
period of time.
- The
Government contested these claims as excessive and speculative. In
their view the finding of a violation of the Convention would
constitute sufficient just satisfaction for the applicant.
- The
Court considers that the breach of Article 1 of Protocol No. 1 must
have caused the applicant non-pecuniary damage. Thus, having regard
to the period of delay in respect of which it found a breach of the
Convention, and ruling in equity, it awards the applicant EUR 2,500.
B. Costs and expenses
- The
applicant also claimed EUR 3,717.95 for the costs and expenses
incurred before the Court including EUR 3,413.20 for legal fees,
EUR 228.45 for translation and clerical expenses and EUR 76.70
for a valuation report. In support of her claim she presented a
contract for legal representation, a time sheet, a translation
contract and postal receipts. She requested that the amount awarded
by the Court under this head be paid into the bank account of her
representative, Mr M. Ekimdzhiev with the exception of EUR 400 which
she had paid as an advance payment on the legal fees and EUR 76.70
for the cost of the valuation report.
- The
Government contested these claims as excessive.
- 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 were
reasonable as to quantum. Regard being had to the documents in its
possession and to its case-law, the Court considers it reasonable to
award the sum of EUR 2,000 covering costs under all heads. EUR
1,523.30 of that amount is to be paid directly into the bank account
of the applicant’s legal representative, Mr M. Ekimdzhiev.
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
- Declares admissible the complaint submitted by
Mrs. Teodora Balezdrova under Article 1 of Protocol No. 1 concerning
the authorities’ continued failure to provide her with the
compensation she was awarded for her expropriated property and
declares the remainder of the application inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that the respondent State is to pay Mrs. Balezdrova,
within three months the following amounts which are to be converted
into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR
2,000 (two thousand euros), plus any tax that may be chargeable, in
respect of pecuniary damage;
(ii) EUR
2,500 (two thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(iii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, EUR 1,523.30 of
which to be transferred directly into the bank account of the
applicant’s representative;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Päivi Hirvelä
Deputy Registrar President
