\nFIFTH SECTION
\nCASE OF VALKOVA v. BULGARIA
\n(Application no. 48149\/09)
\nJUDGMENT
\nSTRASBOURG
\n10 January 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Valkova v. Bulgaria,<\/p>\n
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n
Gabriele Kucsko-Stadlmayer, President,
\nYonkoGrozev,
\nL\u04d9tifH\u00fcseynov, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
Having deliberated in private on 4 December 2018,<\/p>\n
Delivers the following judgment, which was adopted on that date:<\/p>\n
PROCEDURE<\/p>\n
1.\u00a0\u00a0The case originated in an application (no. 48149\/09) 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 Rayna NikolaevaValkova (\u201cthe applicant\u201d), on 28 July 2009.<\/p>\n
2.\u00a0\u00a0The applicant was represented by Mr B. Mihaylov, a lawyer practising in Sofia. The Bulgarian Government (\u201cthe Government\u201d) were represented by their Agent, Ms K. Radkova, of the Ministry of Justice.<\/p>\n
3.\u00a0\u00a0On 23 March 2017the President of the Section to which the case has been allocated decided, under Rule 54 \u00a7 2 (b) of the Rules of Court, that notice of the application should be given to the Government of Bulgaria. The application was communicated to the Government on 5 April 2017.<\/p>\n
4.\u00a0\u00a0On 23 February 2018 the Government submitted a unilateral declaration in which they acknowledged a violation of Article 6 \u00a7 1 of the Convention as a result of the applicant not having hadaccess to a court in connection with her civil claim. They alsooffered to pay a lump sum covering any and all damage sustained by the applicant andinvited the Court to strike the case out of its list of cases.<\/p>\n
5.\u00a0\u00a0On 7 May 2018 the Government\u2019s unilateral declaration was examined by the Court, which decided not to accept it. The applicant was thereafter invited to submit a claim for just satisfaction. The Government were given an opportunity to comment on it. On 17 August 2018 the Government filed observations on the case after their related request had been allowed by the President of the Section. The applicant commented on those observations on 10 October 2018.<\/p>\n
THE FACTS<\/p>\n
I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n
6.\u00a0\u00a0The applicant was born in 1979 and lives in Sofia.<\/p>\n
7.\u00a0\u00a0The applicant\u2019s grandfather owned part of a real estate. He donated his part to the applicant\u2019s cousins in 1997. The applicant\u2019s grandfather died on 16January 2003.<\/p>\n
8.\u00a0\u00a0On 13 February 2004 the applicant brought proceedings under section\u00a030 of the Inheritance Act 1949 before the Sofia District Court. She claimed that, by donating his part in the immovable property in 1997, her grandfather had infringed her right to a \u201creserved share\u201d in his inheritance, given that the immovable property in question represented his entire estate. In a decision of 2 March 2005 the court upheld her claim by diminishing the part of the estate donated to the applicant\u2019s cousins and restoring the applicant\u2019s \u201creserved share\u201d in her grandfather\u2019s inheritance.<\/p>\n
9.\u00a0\u00a0Following an appeal by the other party, on 20 September 2007 the Sofia City Court quashed the first instance court\u2019s judgment and rejected the applicant\u2019s claim for restoration of her \u201creserved share\u201d in her grandfather\u2019s estate. In particular, referring to Interpretative Decision No. 1 of 4 February 2005 by the Supreme Court of Cassation (\u201cSCC\u201d), the court found that the applicant had not complied with the statutory requirements for claiming her reserved share. The court held that, given that her cousins to whom the real estate had been donated could not be considered \u201cheirs-at-law\u201d, the applicant should have claimed the reserved share of the inheritance by means of an \u201cinventory\u201d.<\/p>\n
10.\u00a0\u00a0Following a cassation appeal brought by the applicant, on 24 March 2009 the SCC upheld the Sofia City Court\u2019s findings in full in a final decision.<\/p>\n
II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n
11.\u00a0\u00a0The statutory conditions for claiming a \u201creserved share\u201d in an inheritance and their interpretation by the domestic courts, including Interpretative Decision No. 1 adopted by the SCC on 4 February 2005, have been set out in the case of PetkoPetkov v. Bulgaria(no. 2834\/06, \u00a7\u00a7 14-19, 19 February 2013).In particular, since the adoption of the said domestic interpretative decision, claiming an inheritance through an \u201cinventory\u201d has been considered a pre-requisite for bringing a claim against all successors by deed or will, save for those with immediate priority of succession. That decision did not envisage any interim rules or transition period for its application to pending proceedings.<\/p>\n
12.\u00a0\u00a0Pursuant to Article 303 \u00a7 1 (7) of the Code of Civil Procedure of 2007 (\u201cthe CCP\u201d), civil proceedings may be reopened when a judgment of the European Court of Human Rights establishes that the Convention has been violated and when a fresh examination of the case is necessary in order to eliminate the consequences of the violation. The interested party may make the request no later than six months after the judgment has become final (Article 305 \u00a7 2 of the CCP). The request is examined by the SCC (Article 307 of the CCP). Following the final judgment of the Court in the case of PetkoPetkov, cited above, the proceedings at the national level were reopened.<\/p>\n
THE LAW<\/p>\n
I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n
13.\u00a0\u00a0The applicant complained under Article 6 \u00a7 1about having been deprived of access to a court as a result of the domestic courts\u2019 refusal to hear her inheritance claim on the basis of a newly adopted interpretative decision introducing a new procedural requirement with which the applicant could not comply.Article 6 \u00a7 1 of the Convention provides as follows:<\/p>\n
\u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n
A.\u00a0\u00a0Admissibility<\/p>\n
14.\u00a0\u00a0The Court observes that the applicant had a statutory right in domestic law (under the Inheritance Act 1949), arising at the time of her grandfather\u2019s death, to claim the reduction of the dispositions made by him during his lifetime if they happened to infringe her entitlement to a \u201creserved share\u201d. Consequently, the claim brought by the applicant falls within the scope of Article 6 of the Convention under its civil head. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n
B.\u00a0\u00a0Merits<\/p>\n
1.\u00a0\u00a0Submissions of the parties<\/p>\n
15.\u00a0\u00a0The Government emphasised that, as the present case only concerned lack of access to a court, the Court had to limit its examination to that issue and not deal with the question of the inheritance claim, since competent to pronounce on the applicant\u2019s civil claim were only the national jurisdictions. They referred in that connection to the situation of the applicant in the case of PetkoPetkov, cited above, pointing out that he had been able to have his inheritance claim heard by the national jurisdictions after the judgment of the Court in his application had become final. The Governmentalso stated that reopening of the proceedings at the national level was not possible if the case were resolved by a friendly settlement between the parties, or via a unilateral declaration of the Government (see paragraph 12 above).<\/p>\n
16.\u00a0\u00a0The Government then submitted that they maintained their unilateral declaration even at this stage of the procedure. They pointed out in that connection that a judgment by the Court finding a violation of the applicant\u2019s right of access to a court risked interfering with the principle of legal certainty. The reason was that the events at the origin of the present application had taken place many years earlier and the final domestic judicial decision had been that of the SCC of 24 March 2009. Thereafter, bona fides third parties might have acquired property rights over the estate in question and a reopening of the proceedings as a result of the Court\u2019s judgment would pose a threat to their lawfully acquired rights. Also, given the lapse of time, it was highly likely that the files of this case were either archived or even destroyed. The Government underlined that reopening of proceedings which had ended with a final judgment had to be distinguished according to the type of proceedings: in that sense, in the criminal or administrative law context one of the parties was always the State or an administrative authority and therefore the risk of interfering with bona fides third parties\u2019 rights was minimal.<\/p>\n
17.\u00a0\u00a0The applicant agreed with the Government that the likelihood of success for her if the proceedings were reopened at the national level was minimal, in particular because, even if the estate had not been transferred to third parties, under domestic law those who have held it in good faith for a certain number of years acquired the right of ownership.<\/p>\n
2.\u00a0\u00a0The Court\u2019s assessment<\/p>\n
18.\u00a0\u00a0The Court notes that thesecond instance court and the SCC, in applying a new interpretation of theprocedure for inheritance, dismissed the applicant\u2019s claim on the ground that she had not claimed the inheritance through the preparation of an \u201cinventory\u201d (see paragraphs9 and 10 above).<\/p>\n
19.\u00a0\u00a0It therefore falls to the Court to ascertain whether the procedural restriction applied by the court in the domestic final judgment was clear, accessible and foreseeable within the meaning of the Court\u2019s case-law, whether it pursued a legitimate aim and whether it was proportionate to that aim (see, mutatis mutandis, Lupa\u015f and Others v. Romania, nos. 1434\/02, 35370\/02 and 1385\/03, \u00a7 67, ECHR 2006-XV (extracts)).<\/p>\n
20.\u00a0\u00a0The Court has already had the opportunity to examine this question in the case of PetkoPetkov, cited above in paragraph 11. The Courtfound in that case that when the applicant had brought his claim domestically he could reasonably have expected that his uncle would be considered by the courts as an \u201cheir-at-law\u201d and that the requirement to list the property comprising the estate in an \u201cinventory\u201d would accordingly not apply to his case. The new interpretative decisionadopted by the SCC in the meantimehad changed the scope of the term \u201cheir-at-law\u201d to exclude the applicant\u2019s uncle from that category. That new interpretation had not only prevented the applicant from having his claim determined by a court, but it also had become an unsurmountable obstacle to any future attempts on his part to recover his reserved share, given that the time-limit for preparing an \u201cinventory\u201d had long expired (seePetkoPetkov, cited above, \u00a7\u00a7 7 and 14).<\/p>\n
21.\u00a0\u00a0In the present case, similarly to the situation in PetkoPetkov, the applicant had applied to court to have her \u201creserved share\u201d determined about a year before the adoption of the new interpretative decision by the SCC. Consequently, it was impossible for her to have complied with that newly adopted procedural requirement, given that the applicable law only gave applicants three (at the most six) months to resort to an \u201cinventory\u201d, counted from the moment of learning about the death of the relative whose heirsthey were. The applicant\u2019s grandfather had died more than two years before the adoption of the interpretative decision in question. Accordingly, the Court finds that the application to the applicant\u2019s case of the new procedural requirement prevented her from having her claim determined by a court in those proceedings or in any future proceedings, given that the time-limit for complying with the new requirement had long expired.Such a situation runs contrary to the right of an effective access to a court under Article 6 (see, similarly, PetkoPetkov, cited above, \u00a7 34).<\/p>\n
22.\u00a0\u00a0The foregoing considerations are sufficient to enable the Court to conclude that there has been a breach of Article 6 \u00a7 1 of the Convention.<\/p>\n
II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n
23.\u00a0\u00a0Article 41 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.\u00a0\u00a0Damage<\/p>\n
24.\u00a0\u00a0The applicant claimed 47,325 euros (EUR) in respect of pecuniary damage representing the current market value of the \u201dreserved share\u201d of her grandfather\u2019s inheritance. Alternatively, she asked to be awarded compensation for the inability to peacefully use her \u201creserved share\u201d of the inheritance, which she estimated at EUR 300 per month counted from the date of her bringing her related claim before the domestic courts, namely 13\u00a0April 2004. Finally, the applicant stated that, even if the Court were to find a violation of the Convention, she would not be able to recover her property or bring a related claim domestically. The reason for this was that the other heirs have held the whole real estate in good faith for many years and have thus acquired ownership rights over it by virtue of adverse possession.<\/p>\n
25.\u00a0\u00a0The applicant further claimed EUR 20,000 in respect of non\u2011pecuniary damage for the anxiety and suffering which she had endured as a result ofhaving been deprived of her share in the inheritance.<\/p>\n
26.\u00a0\u00a0The Government contested these claims. They pointed out that the amount in respect of pecuniary damage was unjustified and did not correspond to that usually awarded under the Court\u2019s practice in respect of breaches of the right of access to a court. In addition the Government emphasised that an award under Article 41 was only due if the matter could not be resolved at the national level. They explained that that was not the case in the applicant\u2019s situation given that, if a violation of Article 6 \u00a7 1 were established by the Court, the applicant was entitled under national law to seek reopening of the proceedings, following which the national courts would decide on her claim.As regards the applicant\u2019s claim in respect of non-pecuniary damage, the Government considered it exaggerated and unjustified.<\/p>\n
27.\u00a0\u00a0The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6 \u00a7 1 of the Convention, since this was the issue examined by it. The Court does not discern any causal link between the violation found and the applicant\u2019s claim in respect of pecuniary damage. In that connection, the Court cannot speculate about what the outcome of the proceedings would have been had her claim been examined domestically in conformity with Article 6 \u00a7 1 of the Convention. Accordingly, it dismisses the claim for damages for pecuniary loss.<\/p>\n
28.\u00a0\u00a0The above said, the Court considers that the applicant must have suffered non-pecuniary damage for which the finding of a violation does not constitute sufficient reparation. Ruling on an equitable basis as required by Article 41 of the Convention, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage.<\/p>\n
B.\u00a0\u00a0Costs and expenses<\/p>\n
29.\u00a0\u00a0The applicant also claimed EUR 5,235.33 for the costs and expenses incurred before the domestic courts in the proceedings for restoring her \u201creserved share\u201d in the inheritance.<\/p>\n
30.\u00a0\u00a0The Government submitted that the amount sought for costs and expenses was exaggerated and entirely unjustified as no document in relation to it had been presented.<\/p>\n
31.\u00a0\u00a0The Court reiterates that, as regards the costs and expenses incurred in the domestic proceedings,it will uphold such claims only in so far as they relate to the violations it has found (see Avdi\u0107and Others v. Bosnia and Herzegovina, nos. 28357\/11, 31549\/11 and 39295\/11, \u00a7 51, 19November 2013; Duraliyski v. Bulgaria, no. 45519\/06, \u00a745, 4 March 2014, and Penchevi v. Bulgaria, no. 77818\/12, \u00a7 88, 10February 2015). There is no evidence that the applicant incurred any costs and expenses before the domestic authorities in seeking redress in connection with the violation of the Convention found in the present case. Accordingly, the Court rejects this claim.<\/p>\n
32.\u00a0\u00a0The Court notes furthermore that no claim has been made in respect of the costs and expenses incurred in the proceedings before it and accordingly does not award any amount in that respect.<\/p>\n
C.\u00a0\u00a0Default interest<\/p>\n
33.\u00a0\u00a0The 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,<\/p>\n
1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n
2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n
3.\u00a0\u00a0Holds<\/p>\n
(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months,EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,to be converted intoBulgarian levs at the rate applicable at the date of settlement;<\/p>\n
(b)\u00a0\u00a0that 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;<\/p>\n
4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n
Done in English, and notified in writing on 10 January 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n
Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Gabriele Kucsko-Stadlmayer
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n","protected":false},"excerpt":{"rendered":"
FIFTH SECTION CASE OF VALKOVA v. BULGARIA (Application no. 48149\/09) JUDGMENT STRASBOURG 10 January 2019 This judgment is final but it may be subject to editorial revision. In the case of Valkova v. Bulgaria, The European Court of Human Rights…<\/p>\n