European Court of Human Rights

 

 

THIRD SECTION

CASE OF GANCHEVI v. BULGARIA

(Application no. 40026/19)

 

 

 

 

JUDGMENT

STRASBOURG

6 December 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Ganchevi v. Bulgaria,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Pere Pastor Vilanova, President,

          Georgios A. Serghides,
          Yonko Grozev, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 40026/19) 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”) on 20 July 2019 by two Bulgarian nationals, Ms Kalinka Ilieva Gancheva and Mr Ivaylo Dimitrov Ganchev, born in 1951 and 1987 respectively and living in Dobrich (“the applicants”), who were represented by Ms A. Chobanova, a lawyer practising in Sofia;

the decision to give notice of the application to the Bulgarian Government (“the Government”), represented by their Agent, Ms V. Hristova, of the Ministry of Justice;

the parties’ observations;

Having deliberated in private on 15 November 2022,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns the delayed provision of compensation to the applicants for their predecessors’ property which was expropriated for urban development in 1983 by the municipal authorities of Dobrich. The applicants were to be compensated with a flat in a building the authorities intended to construct. Construction work commenced in 2010; however, in 2014 this was postponed, apparently mainly due to financial difficulties experienced by the municipality.

2.  In 2015 the applicants wrote to the mayor asking to receive another flat, as entitled to in line with domestic law. They refused the mayor’s offer for a flat, finding it unacceptable, and instead requested financial compensation (see, for a description of these procedures, Velyov and Dimitrov v. Bulgaria (dec.) [Committee], no. 64570/10, § 16, 20 September 2016, and Kopankovi v. Bulgaria, no. 48929/12, § 22, 6 September 2018). The mayor has not responded to the latter request, and the applicants have not pursued the procedure.

3.  In November 2019 the construction work was resumed and, according to the Government, the building where the applicants’ flat is located is expected to be completed by 30 November 2022. The applicants had not yet received their flat or any alternative compensation by the time the parties filed their latest submissions with the Court in September 2022.

4.  The applicants complained under Article 1 of Protocol No. 1 to the Convention and Article 13 of the Convention of the delays in the compensation procedure.

THE COURT’S ASSESSMENT

I.         ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 OF THE CONVENTION

5.  The Court is of the view that it suffices to examine the complaints solely under Article 1 of Protocol No. 1 (see, for example, Kopankovi, cited above, §§ 26-27).

6.  The case is of the type examined in Kirilova and Others v. Bulgaria (nos. 42908/98 and 3 others, 9 June 2005) and many follow-up cases, some of which are cited below. The relevant domestic law and the applicable general principles concerning delays in providing compensation for expropriated property have been summarised therein.

A.    Admissibility

7.  The Government argued that the applicants had failed to exhaust available and effective domestic remedies. They had brought a tort action under the State and Municipalities Responsibility for Damage Act 1988 (hereinafter “the 1988 Act”), claiming compensation for the delay in providing the flat due to them, but had failed to pay the requisite court fee, and as a result the proceedings had been discontinued. The Government maintained that, unlike the circumstances criticised by the Court in Kirilova and Others (cited above, §§ 116-119,) in view of the recent evolution of domestic case-law and administrative practice, the remedy in question now offered a reasonable prospect of success.

8.  Secondly, the Government claimed that by failing to inform the Court of the proceedings described above, the applicants had abused their right to individual application under Article 35 § 3 (a) of the Convention.

9.  The applicants disagreed with those arguments. In particular, they contested the effectiveness of a tort action under the 1988 Act, arguing that the domestic courts had a divergent practice on that matter, and also that such a claim could only result in the award of compensation for the last five years preceding the date of its submission, in view of the relevant domestic rules on limitation periods.

10.  While it takes note of the recent domestic case-law awarding damages to plaintiffs in similar cases, as presented by the Government, the Court reiterates that such an action cannot directly compel the authorities to build and deliver the flat due; it only results in providing compensation for the delay for a limited period of time (see, for example, Antonovi v. Bulgaria, no. 20827/02, §§ 11-13, 1 October 2009, where the indemnification awarded by the courts covered a period up to the date of lodging the action). Thus, as long as the flat due remains undelivered to an applicant, the latter would be forced to lodge new actions and claim further compensation (see Kirilova and Others, cited above, § 116; Antonovi, cited above, § 24; and Lyubomir Popov v. Bulgaria, no. 69855/01, § 105, 7 January 2010). Therefore, an action for damages in the case at hand did not represent an effective remedy which the applicants should have exhausted, and their failure to duly pursue the proceedings they had brought cannot lead to the dismissal of their complaints for non-exhaustion of domestic remedies (see Kirilova and Others, cited above, §§ 116-119).

11.  In addition, in the circumstances of the present case, the proceedings under the 1988 Act do not relate sufficiently to the core issues at stake, and therefore informing the Court about their initiation and discontinuation cannot be deemed to be essential for the outcome of the application (see, mutatis mutandis, Anatoliy Marinov v. Bulgaria, no. 26081/17, §§ 30-32, 15 February 2022). The Court thus rejects the Government’s objection for abuse of the right to application (see paragraph 8 above).

12.  Lastly, the Court finds that the application is not manifestly ill founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B.    Merits

13.  The applicants’ entitlement to be provided with a flat as compensation for their predecessors’ expropriated property arose in 1983, and they have not yet received their flat, or any alternative compensation (see paragraph 3 above). Thus, in the present case the delay is thirty years (from the entry into force of Protocol No. 1 to the Convention for Bulgaria in 1992 onwards).

14.  The applicants argued that the domestic authorities were entirely responsible for the excessive delays in providing compensation, regardless of whether that was due to financial difficulties experienced by the municipality, or to negligence or a passive attitude on their part. They explained that they had refused the alternative flat offered to them because of its state of repair and location, and noted that the mayor had not replied to their subsequent request for financial compensation.

15.  The Government maintained that the domestic authorities had made active attempts to overcome financial and logistical difficulties, in order to find a solution and fulfil their obligation to provide a flat to the applicants. The municipality’s financial situation had caused some delay in the compensation procedure; however, the difficulties had been largely overcome and the applicants were to receive their flat in the second half of 2022. In the Government’s view, the applicants were responsible for part of the delay incurred, because they had failed to actively pursue the procedures available to them to bring about the conclusion of the procedure at an earlier date. In particular, the applicants had expressly refused to be compensated with another flat, and had lost interest in the possibility provided for under domestic law to seek financial compensation.

16.  The Court observes that the Dobrich municipality never abandoned its plans to construct the building where the applicants’ flat is located and actively sought financing in order to complete the construction, as noted by the Government. Thus, although the applicants did not accept an alternative flat, finding it inappropriate, and did not pursue the request to receive financial compensation (see paragraph 2 above), they should not be criticised for their decision to do so and to await the construction of that building (compare the circumstances in Basmenkova v. Bulgaria [Committee], no. 63391/13, §§ 28-30, 6 April 2017; by contrast, see Ugrinova v. Bulgaria (dec.) [Committee], no. 75025/17, §§ 3-7, 17 May 2022, where the Court found that at some point the authorities had informed the applicant that the building initially planned would not be constructed, which meant that she should have resorted to the various other means of redress proposed to her over the years). Therefore, the applicants’ failure to pursue those avenues cannot lead to the conclusion that they are to blame for some part of the delay in the compensation procedure.

17.  As to the authorities, in the present case it does not appear that they proved reluctant to assist the applicants, nor that they actively opposed the applicants’ attempt to receive the flat due to them (by contrast, see Kirilova and Others, cited above, § 121; and Dobrodolska v. Bulgaria [Committee], no. 34272/09, § 20, 13 October 2016). Nevertheless, the delay caused through their fault has not been validly justified. In particular, in so far as the Government referred to the insufficient financial resources of the Dobrich municipality, the Court reiterates that this in itself cannot justify such a lengthy delay (see Kirilova and Others, cited above, § 122). Furthermore, even assuming that the applicants will receive the flat due to them in the second half of 2022 (see paragraph 15 above), which has not yet happened (see paragraph 3 above), the fact remains that for many years the applicants faced uncertainty and have had to suffer an excessive burden. Thus, even after the possible incoming delivery of the flat, the fair balance required under Article 1 of Protocol No. 1 will not be achieved (see Kirilova and Others, cited above, § 123).

18.  There has accordingly been a violation of Article 1 of Protocol No. 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  The applicants claimed non-pecuniary damage, without indicating a specific amount.

20.  As for costs and expenses, the applicants claimed 1,795 euros (EUR). This included EUR 1,660 for their legal representation before the Court and EUR 135 for translation. To support their claim, the applicants presented a time sheet for the work performed by their lawyer and receipts for the amount paid for translation. They requested that EUR 415 awarded under this head be paid to their bank account and that the remainder be transferred directly to the bank account of their legal representative.

21.  The Government submitted that any award for non-pecuniary damage should not exceed the amounts awarded in similar cases. They contested the applicants’ claim for costs and expenses and considered it excessive.

22.  The Court, ruling on an equitable basis and having regard to the circumstances of the case, awards jointly to the two applicants EUR 3,000 in respect of non-pecuniary damage.

23.  Furthermore, having regard to the fact that the present case concerns a repetitive complaint and that it is part of a group of ten almost identical applications submitted to the Court by applicants represented by the same lawyer, the Court considers it reasonable to award the applicants a global amount of EUR 900 to cover all costs incurred, plus any tax that may be chargeable to them. It holds that, as requested by the applicants, EUR 485 of this amount is to be paid directly into the bank account of their legal representative.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 900 (nine hundred euros), in respect of costs and expenses, plus any tax that may be chargeable to them, EUR 485 (four hundred and eighty-five euros) of which to be paid directly into the bank account of their legal 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;

4.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 6 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

          Olga Chernishova                                            Pere Pastor Vilanova
          Deputy Registrar                                                      President