. The case concerns the allegedly excessive duration of restitution proceedings.
CASE OF PANAYOTOV v. BULGARIA
(Application no. 66491/14)
17 November 2020
This judgment is final but it may be subject to editorial revision.
In the case of Panayotov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Iulia Antoanella Motoc, President,
Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 66491/14) 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, Mr Andrey Marinov Panayotov (“the applicant”), on 3 October 2014;
the decision to give notice of the application to the Bulgarian Government (“the Government”);
the parties’ observations;
Having deliberated in private on 20 October 2020,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the allegedly excessive duration of restitution proceedings.
2. The applicant was born in 1923.
3. The applicant passed away on 16 June 2015 and his heirs – his wife Ms Ruska Ivanova Panayotova and his daughters Ms Biana Andreeva Laguardia and Ms Veneta Andreeva Panayotova – expressed the wish to pursue the case in his stead.
4. The Government were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.
5. The facts of the case, as submitted by the parties, may be summarised as follows.
6. In 1991 the applicant applied under the Agricultural Land Act for the restitution of a plot of land measuring 2,800 square metres in the vicinity of Haskovo, previously owned by his father of whom he was the only heir.
7. The applicant’s entitlement to the restitution of the plot was acknowledged in a decision of the competent body, the Haskovo land commission, of 19 February 1993.
8. However, in October 1994 1,000 square metres of the plot were sold by the municipality to a third party, Mr K., who had earlier been granted the right of use of that part and had, under domestic law, the right to buy it up. The price to be paid by Mr K. to the municipality was set at 40,000 old Bulgarian levs (BGL), the equivalent at the time of 928 German marks (DEM).
9. The applicant became aware of the sale in 2007 and enquired with the municipality about the compensation due to him in lieu of restitution. He was informed that, pursuant to the relevant provisions of the Agricultural Land Act, such compensation could only be paid after the adoption of a socalled plan of the newly-created plots (see paragraphs 16-17 below).
10. In 2013-14 the applicant attempted to claim the compensation due to him through the courts, and even though at first instance he was awarded 3,628 new Bulgarian levs (BGN, the equivalent of about 1,850 euros – EUR), the second-instance court found his claim premature, pointing out once again that any compensation in his case was only due after the adoption of a plan of the newly-created plots.
11. The plan of the newly-created plots for the respective area was approved in September 2019.
12. In a letter dated 29 October 2019 the Haskovo mayor informed the applicant’s heirs that the compensation due to them was equal to the value of the plot in 1994, namely BGL 40,000, equivalent to BGN 40 (EUR 20.4).
13. However, in a letter to the Government dated 20 January 2020, sent after the communication of the present application, the mayor specified that, due to the devaluation of the amount paid by K. in 1994, “consultations with lawyers and other competent bodies [were] under way about the amount of compensation”.
14. The Court has not been informed of the subsequent course of the procedure, and it is in particular unclear whether any formal decision on the compensation due to the applicant’s heirs (see paragraph 17 below) has been taken.
RELEVANT LEGAL FRAMEWORK
15. The relevant provisions of domestic law concerning restitution of agricultural land in cases where the land had been the subject of right of use, and the compensation due to former owners who could not on that ground obtain restitution in kind, have been described in Naydenov v. Bulgaria (no. 17353/03, §§ 21-42, 26 November 2009).
16. In particular, the procedure involves the preparation and the adoption of a so-called plan of the newly-created plots, which traces the exact borders of the plots subject to restitution in kind and of those acquired by former users. Such a plan is to comply with urbanisation requirements as to the minimum surface and accessibility of individual plots.
17. Section 4l of the transitional provisions of the Agricultural Land Act specifies that the compensation due to former owners is to be determined within three months after the adoption of the plan of the newly-created plots. The decision on the matter, to be taken by the mayor of the respective municipality, is subject to judicial review.
I. Preliminary question
18. The applicant passed away in 2015 and his heirs – his wife Ms Ruska Ivanova Panayotova and his daughters Ms Biana Andreeva Laguardia and Ms Veneta Andreeva Panayotova – expressed the wish to pursue the case in his stead (see paragraph 3 above). It has not been disputed that they are entitled to do so, and the Court sees no reason not to accede to their request (see, among many others, Bittó and Others v. Slovakia, no. 30255/09, §§ 73-74, 28 January 2014).
II. ALLEGED VIOLATION OF ARTICLE 1 of protocol No. 1
19. The applicant complained, relying on Article 1 of Protocol No. 1 and Article 13 of the Convention, of the delays in the restitution procedure as concerns the part of his land acquired by Mr K.
20. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), the Court is of the view that the complaint falls to be examined solely under Article 1 of Protocol No. 1, 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.”
21. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
22. In observations submitted in January 2020, the Government acknowledged that the restitution proceedings remained pending. They argued however that the duration of the proceedings was justified, in light of the importance and complexity of the restitution process, and in particular with a view to the requirement to accommodate the needs of former owners and users of the land.
23. The applicant’s heirs reiterated his complaints. They stated that the applicant had been “humiliated” by the authorities for more than twenty years.
24. The applicant’s “legitimate expectation” to restitution arose in February 1993, when the Haskovo land commission recognised his entitlement in that regard (see paragraph 7 above). It was later on specified that he would receive compensation in lieu of restitution (see paragraph 9 above). By January 2020, the time of the latest information available to the Court (see paragraph 22 above), that compensation had not yet been paid and the restitution proceedings remained pending. The proceedings have therefore lasted about twenty-seven years.
25. The Government justified such a duration with reference to the complexity of the restitution process (see paragraph 22 above). Indeed, the Court has acknowledged the complexity of that process, and has held that it could cause some reasonable delay (see Zagorchinova v. Bulgaria (dec.) [Committee], no. 26471/06, 5 July 2012; Filipov v. Bulgaria (dec.), no. 39135/06, § 52, 20 November 2012; Popov and Chonin v. Bulgaria, no. 36094/08, § 45, 17 February 2015).
26. However, the complexity of the restitution process alone cannot justify a lengthy delay such as the one in the present case (see Lyubomir Popov v. Bulgaria, no. 69855/01, § 122, 7 January 2010, and Zikatanova and Others v. Bulgaria, no. 45806/11, § 122, 12 December 2019). The Court reiterates once again that the applicant’s (respectively his heirs’) “legitimate expectation” to restitution had not been satisfied twenty-seven years after it had arisen (see paragraph 24 above), and it has not been informed of any final decision (see paragraph 14 above).
27. The Court has found breaches of Article 1 of Protocol No. 1 in many cases against Bulgaria concerning the excessive duration of restitution proceedings (see, among others, Naydenov, Lyubomir Popov, Popov and Chonin and Zikatanova and Others, all cited above; Nedelcheva and Others v. Bulgaria, no. 5516/05, 28 May 2013; Sheytanova v. Bulgaria [Committee], no. 42218/13, 1 September 2020). As discussed, the Government have not put forward sufficient reasons allowing it to reach a different conclusion in the present case.
28. There has therefore been a violation of Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. 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.”
30. The applicant’s heirs stated that they expected the Court to give a “just decision” concerning their material losses. However, they failed to make any specific claims, or to submit any supporting documents. They claimed in addition compensation for “the psychological harassment and the suffering” inflicted on their predecessor.
31. The Government did not comment.
32. The Court considers that the applicant’s heirs have failed to comply with Rule 60 of the Rules of Court as concerns pecuniary damage. Since no valid claim under Article 41 of the Convention has been made in that regard, there is no reason to award just satisfaction (see, mutatis mutandis, Mancini v. Italy, no. 44955/98, §§ 28-29, ECHR 2001‑IX; Abdullayeva v. Azerbaijan, no. 29674/07, §§ 33-34, 14 March 2019; Dumagas Transport S.A. v. Bulgaria [Committee], no. 59271/11, § 40, 21 November 2019). The Court observes nevertheless that any compensation it would have awarded would only have concerned damage resulting from the delay in the restitution procedure, and that the applicant’s heirs remain entitled at the domestic level to receive compensation in lieu of the restitution of his plot of land (see paragraph 14 above).
33. The Court considers it justified, on the other hand, to award the applicant’s heirs non-pecuniary damage. Judging on the basis of equity and in view of the circumstances of the case, it awards jointly to the three of them EUR 2,000. To that sum should be added any tax that may be chargeable.
34. Lastly, 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. Holds that the applicant’s heirs have standing to continue the proceedings in his stead;
2. Declares the application admissible;
3. Holds that there has been a violation of Article 1 of Protocol No. 1;
(a) that the respondent State is to pay jointly to the applicant’s heirs, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Bulgarian levs at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s heirs’ claim for just satisfaction.
Done in English, and notified in writing on 17 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Iulia Antoanella Motoc
Deputy Registrar President