![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
. The case concerns the allegedly excessive length of restitution proceedings.<\/p>\n. The case concerns the allegedly excessive length of restitution proceedings.<\/p>\n
FOURTH SECTION
\nCASE OF RASHEVA v. BULGARIA
\n(Application no. 66993\/13)
\nJUDGMENT
\nSTRASBOURG
\n13 October 2020<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Rasheva v. Bulgaria,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:<\/p>\n Faris Vehabovi\u0107, President, Having regard to:<\/p>\n the application (no. 66993\/13) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Bulgarian national, Ms Bozhura Ilieva Rasheva (\u201cthe applicant\u201d), on 4\u00a0October 2013;<\/p>\n the decision to give notice of the application to the Bulgarian Government (\u201cthe Government\u201d);<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 22 September 2020,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n 1. The case concerns the allegedly excessive length of restitution proceedings.<\/p>\n THE FACTS<\/strong><\/p>\n 2. The applicant was born in 1927 and lives in Sofia. She was represented by Ms N. Sedefova, a lawyer practising in Sofia.<\/p>\n 3. The Government were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice.<\/p>\n 4. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 5. The applicant owned agricultural land, which was included in an agricultural cooperative in the 1950s.<\/p>\n 6. In 2007 the applicant brought an action against the local body competent to take decisions concerning the restitution of agricultural land \u2013 the Samokov Agriculture Department (hereinafter \u201cthe Department\u201d) \u2013 seeking a recognition that she was entitled to the restitution of land totalling 8,275 square metres. The action was allowed in a final judgment of the Sofia Regional Court on 3 February 2009. Following that, in a decision of 9\u00a0July 2009 the Department also acknowledged the applicant\u2019s entitlement to restitution.<\/p>\n 7. Seeing that the restitution of agricultural land in the region had started in the 1990s and most of the land had already been allocated to other persons, the Department appointed three of its members to study the available remaining plots of land \u2013 considered at that time to have become municipal property \u2013 and select appropriate ones. Such a procedure was provided for by law and three plots were selected for the applicant in February 2010.<\/p>\n 8. However, it transpired subsequently that two of the plots were privately-owned. An attempt on the part of the Department to replace them with other plots was overturned in 2011 by the domestic courts, which found that the new plots had not been selected in accordance with the procedure provided for by law. In a final judgment of 10 May 2011 the Supreme Administrative Court ordered the Department to prepare a new proposal concerning the plots to be restituted to the applicants.<\/p>\n 9. The Department selected three other plots and in August 2011 submitted a new proposal for approval to the Samokov municipal authorities. On 21 January 2012 the Samokov mayor informed the applicant that he had forwarded the proposal to the municipal council.<\/p>\n 10. On 28 March 2013 the Samokov municipal council took a decision on the matter, accepting the Department\u2019s proposal as concerns one of the three plots enlisted in it, measuring 3,791 square metres. As to the two other plots, the municipal council rejected the Department\u2019s proposal, noting that one of them was privately-owned, and the other had not been registered as municipal property. The decision was published on the council\u2019s website together with other decisions of that day, and the applicant was not individually notified of it.<\/p>\n 11. At the date of the latest information available to the Court (March 2020), no further decision concerning the applicant\u2019s entitlement to restitution had been taken.<\/p>\n 12. The applicant submits that on numerous occasions throughout the years her son, acting as her representative, sought information from the Department on any new developments in the restitution procedure, but was informed that there were none.<\/p>\n RELEVANT LEGAL FRAMEWORK<\/strong><\/p>\n 13. The relevant domestic law on the restitution of agricultural land has been summarised in Zikatanova and Others v.\u00a0Bulgaria (no. 45806\/11, \u00a7\u00a7\u00a046-59, 12 March 2020).<\/p>\n 14. The relevant domestic law and practice on the enforcement of final judgments of the administrative courts have been summarised in Bratanova v. Bulgaria (no. 44497\/06, \u00a7\u00a7 24-25, 9 June 2015) and Dimitar Yanakiev v.\u00a0Bulgaria (no. 2) (no. 50346\/07, \u00a7\u00a7 30-35, 31 March 2016).<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1<\/p>\n 15. The applicant complained about the excessive duration of the restitution procedure. She invoked Article 1 of Protocol No. 1, as well as Article 6 \u00a7 1 and Article 13 of the Convention.<\/p>\n 16. 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, \u00a7\u00a7 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 to the Convention (see Popov and Chonin v. Bulgaria, no. 36094\/08, \u00a7\u00a7 33-34, 17 February 2015, and Kamenova v. Bulgaria [Committee], no. 61731\/11, \u00a7\u00a7 23-24, 16 May 2019), which reads as follows:<\/p>\n \u201cEvery 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.<\/p>\n 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.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 17. The Government were of the view that the applicant had failed to exhaust the available domestic remedies. They contended that it had been open for her to seek the judicial review of the decision of the Samokov municipal council of 28 March 2013 (see paragraph 10 above), that she could have initiated proceedings under the Code of Administrative Procedure for the enforcement of a final court judgment, and that she could bring a tort action against the State to obtain compensation for the delays in the restitution procedure.<\/p>\n 18. The applicant pointed out that she had not been notified of the decision of 28 March 2013 (see paragraph 10 in fine above) and could not have been expected to consult regularly the website of the municipal council. She noted furthermore that her failure to seek judicial review did not prevent the authorities from proceeding with the restitution procedure. The applicant contested as well the remaining limbs of the Government\u2019s objection of non-exhaustion of domestic remedies.<\/p>\n 19. The general principles concerning exhaustion of domestic remedies are resumed in Vu\u010dkovi\u0107 and Others v. Serbia ([GC] (preliminary objection), nos. 17153\/11 and 29 others, \u00a7\u00a7 69-77, 25 March 2014). Turning to the circumstances of the present case, the Court does not consider it necessary to establish whether the applicant could have reasonably been expected to learn about the decision of the Samokov municipal council of 28 March 2013, and whether she could thus have applied for its judicial review within the relevant time-limit after its publication. The Court does not perceive how the remedy indicated by the Government \u2013 judicial review of the decision at issue \u2013 could have sped up the restitution procedure and could have thus amounted to an effective remedy within the meaning of Article 35 \u00a7 1 of the Convention. The applicant did not claim the particular plots in respect of which the municipal council had refused restitution, nor did her complaint before the Court concern them. The applicant\u2019s failure to have recourse to the remedy at issue did not, in principle, prevent the relevant authorities from proceeding with the restitution procedure.<\/p>\n 20. The Government argued in addition that the applicant had failed to initiate enforcement proceedings under the Code of Administrative Procedure. The Court observes in that regard that while, indeed, the final judgment of the Supreme Administrative Court of 10 May 2011 was in the applicant\u2019s favour, and ordered the Department to take action (see paragraph 8 above), that body did actually take the action required, in adopting a new proposal as to the plots to be allotted to the applicant and presenting it to the Samokov municipal authorities (see paragraph 9 above). As to the Sofia Regional Court\u2019s judgement of 3 February 2009, also in the applicant\u2019s favour (see paragraph 6 above), it recognised her entitlement to restitution, but did not expressly order the administrative authorities to take any specific action. This judgment appears to have been sufficiently complied with when the Department also acknowledged the applicant\u2019s entitlement to restitution (see paragraph 6 above). The Government did not explain how and on the basis of which judgment the applicant could have sought any further enforcement.<\/p>\n 21. Lastly, as to the Government\u2019s argument that the applicant could bring a tort action against the State, the Court refers to its findings in previous cases concerning the duration of restitution proceedings that such a remedy had not been shown to be effective (see Lyubomir Popov v.\u00a0Bulgaria, no. 69855\/01, \u00a7\u00a7 102-05, 7 January 2010, and Vasilev and Doycheva v. Bulgaria, no. 14966\/04, \u00a7 29, 31 May 2012). The Government have presented no arguments, nor referred to any case-law of the domestic courts, which could lead the Court to a different conclusion (see, mutatis mutandis, Sheytanova v. Bulgaria [Committee], no. 42218\/13, \u00a7 18, 1\u00a0September 2020).<\/p>\n 22. Accordingly, the Court dismisses the Government\u2019s objection of non-exhaustion of domestic remedies.<\/p>\n 23. The Court notes in addition that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 24. The Government argued that the delay in the restitution procedure had been justified, seeing the need to guarantee the rights of third parties and the complexity and importance of the restitution process. They contended furthermore that after 2013 the applicant had not been diligent in pursuing her interests.<\/p>\n 25. The applicant pointed out that the restitution procedure initiated by her in 2007 had still not been completed, and that the authorities had remained inactive. She contended that this had placed her in a state of prolonged uncertainty as to the scope of her restitution rights.<\/p>\n 26. The Court observes that the applicant\u2019s \u201clegitimate expectation\u201d to restitution arose in February 2009, when the Sofia Regional Court recognised with finality her entitlement in that regard (see paragraph 6 above). By March 2020, at the time of the latest information received by the Court (see paragraph 11 above), namely more than eleven years later, the restitution procedure remained pending.<\/p>\n 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, for example, Lyubomir Popov and Vasilev and Doycheva, cited above; Nedelcheva and Others v. Bulgaria, no. 5516\/05, 28 May 2013; and, more recently, Zikatanova and Others v. Bulgaria, no. 45806\/11, 12\u00a0March 2020, and Sheytanova, cited above). It has found problematic, among others, the lengthy periods of inactivity on the part of the national authorities, as well as those authorities\u2019 failure to act with diligence and with determination to resolve any issue and complete the procedure (see Nedelcheva and Others, \u00a7\u00a7 79-80, Popov and Chonin, \u00a7 50, and Zikitanova and Others, \u00a7 121, all cited above).<\/p>\n 28. The Court considers that these were also the reasons for the delay in the restitution procedure in the case in hand. It points out that in the years following the recognition of the applicant\u2019s entitlement to restitution in February 2009 the authorities sought a solution: in particular, the Department attempted on several occasions to identify plots of land for the applicant and in 2011 presented a proposal in that regard to the Samokov municipal authorities, while in 2013 the Samokov municipal council took a decision on the matter (see paragraphs 9-10 above). However, no decision concerning the applicant\u2019s restitution entitlement was taken after that and the procedure remained in a standstill (see paragraph 11 above). The municipal council\u2019s decision at issue did not complete the procedure and further action by the Department was required \u2013 a decision to restore to the applicant the plot of 3,791 square metres (see, on the necessity of such a decision, Zikatanova and Others, cited above, \u00a7 55), as well as action to identify further available plots of land.<\/p>\n 29. The Government have not presented any valid justification for the lengthy period of inactivity after 2013. While they argued that the applicant had not been diligent in pursuing her interests (see paragraph 24 above), they failed to explain what action could have been necessary on her part, and have not claimed that the Department could not pursue the restitution procedure without such action (see, mutatis mutandis, Zikatanova and Others, cited above, \u00a7 120). Moreover, the Court points out that the Government have not contested that on numerous occasions throughout the years the applicant\u2019s son sought information on the course of the restitution proceedings, and was informed that there were no relevant developments (see paragraph 12 above).<\/p>\n 30. For the reasons above, while acknowledging, as it has done in earlier cases (see, for example, Lyubomir Popov, \u00a7 122, Zikatanova and Others, \u00a7\u00a0122, and Sheytanova, \u00a7 26, all cited above), the general complexity of the restitution process referred to by the Government, the Court finds that the restitution proceedings initiated by the applicant were unjustifiably delayed through the fault of the national authorities.<\/p>\n 31. It follows that there has been a violation of Article 1 of Protocol No.\u00a01.<\/p>\n II. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 32. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A. Damage<\/strong><\/p>\n 33. The applicant claimed the market value of the land she is entitled to receive by means of restitution, plus interest. According to experts appointed by her, that value amounts to the equivalent of 69,556 euros (EUR).<\/p>\n 34. In respect of non-pecuniary damage, the applicant claimed EUR\u00a020,000.<\/p>\n 35. The Government contested the claims. They pointed out that the applicant remained entitled to restitution at the domestic level.<\/p>\n 36. The Court notes that its finding of a violation of Article 1 of Protocol No. 1 was related to the excessive duration of the restitution procedure. Accordingly, the Court will only make an award to compensate the applicant on that account. It points out that the domestic procedure was, at the date of the latest information from the parties (March 2020), still pending (see paragraph 11 above), and that there appears to be no reason why it would not be completed with the transfer to the applicant of the land due to her (see, mutatis mutandis, Popov and Chonin, cited above, \u00a7 65). Accordingly, the Court dismisses the claim to award the applicant the market value of that land.<\/p>\n 37. While it does not see any ground to award interest, the Court considers nevertheless that the applicant suffered a certain loss of chance due to the delay in the restitution procedure, as she was unjustifiably deprived of the possibility to use the land due to her and profit of it during a lengthy period of time. Taking into account the circumstances of the case \u2013 in particular the duration of the restitution procedure and the size of the land claimed by the applicant (see paragraph 6 above) \u2013 the Court awards her EUR 2,000 in respect of pecuniary damage.<\/p>\n 38. The Court awards the applicant an additional EUR 2,000 in respect of non-pecuniary damage.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 39. The applicant claimed the fees charged by her legal representative before the Court, Ms N. Sedefova, in the amount of 5,000 Bulgarian levs (BGN) (the equivalent of EUR 2,556). In support of this claim she submitted two contracts with Ms Sedefova. The applicant claimed in addition BGN 228 (EUR 117) paid by her for the expert valuation referred to in paragraph 33 above, submitting an invoice, and BGN 350 (EUR 179) for translation, presenting a statement by the translator to the effect that he had been paid that sum.<\/p>\n 40. The Government contested the claims.<\/p>\n 41. The Court agrees that the costs for legal representation before the Court were necessary, but considers the amount claimed by the applicant excessive. Pointing out to the repetitive character of the case, evident from the case-law cited above, the Court finds it reasonable to award the applicant EUR 800 under the present head.<\/p>\n 42. The Court awards in addition the sum paid by the applicant for translation (EUR 179), considering these costs actually and necessarily incurred and reasonable as to quantum.<\/p>\n 43. Lastly, the Court dismisses the claim concerning the costs for an expert valuation, noting that they are not related to the violation found (see Popov and Chonin, cited above, \u00a7 76). The total sum awarded for costs and expenses is thus EUR 979.<\/p>\n C. Default interest<\/strong><\/p>\n 44. 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;<\/p>\n 3. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:<\/p>\n (i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;<\/p>\n (ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (iii) EUR 979 (nine hundred and seventy-nine euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (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;<\/p>\n 4. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 13 October 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Ilse Freiwirth\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Faris Vehabovi\u0107
\nIulia Antoanella Motoc,
\nCarlo Ranzoni, judges,
\nand Ilse Freiwirth, Deputy Section Registrar,<\/p>\n<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n