FIFTH SECTION
\nCASE OF DIMITAR YORDANOV v. BULGARIA
\n(Application no. 3401\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n6 September 2018<\/p>\n
FINAL
\n06\/12\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Dimitar Yordanov v. Bulgaria,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:<\/p>\n Angelika Nu\u00dfberger, President, Having deliberated in private on 10 July 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 3401\/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, Mr Dimitar Pavlov Yordanov (\u201cthe applicant\u201d), on 17 December 2008.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms N. Sedefova, a lawyer practising in Sofia. The Bulgarian Government (\u201cthe Government\u201d) were represented by their Agents, Ms M. Kotseva and Ms M. Dimitrova, of the Ministry of Justice.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that the State had been responsible for damage to property of his, due in his view to unlawful mining activities in close proximity, and that the domestic courts had wrongly dismissed his tort claim related to that damage.<\/p>\n 4.\u00a0\u00a0On 15 September 2016 the above complaints were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1939 and lives in Sofia.<\/p>\n 6.\u00a0\u00a0The applicant owns one half of a plot of land in the village of Golyamo Buchino, close to the city of Pernik. He also owned one half of a house standing on the plot, in which he lived until 1997, and one half of two smaller buildings, a barn and a pen. Those buildings no longer exist.<\/p>\n 7.\u00a0\u00a0On an unspecified date towards the end of the 1980s or the beginning of the 1990s the State took a decision to create an opencast coalmine near the village. In a decision of 8May 1990 the local mayor expropriated about ninety properties in the area for that purpose, including the applicant\u2019s land and buildings.<\/p>\n 8.\u00a0\u00a0The expropriation decision stated that the applicantshould receive in compensation another plot of land in the village. The applicant received additionally a sum of money(the parties have not presented the decision of the mayor on the additional compensation). The majority of the remaining owners received either monetary compensation or flats in the city of Pernik.As another plot was not provided to the applicant within the statutory time\u2011limit of one year, on 21 August 1992 herequested that the expropriation be cancelled, as he was entitled to under section 102 of the Property Act (see paragraph 24 below). Another person who was due a plot of land in compensation also applied to have the expropriation of her property cancelled. In a decision of 2 October 1992 the Pernik regional governor cancelled the two expropriations, noting that the plots of land due in compensation had not been provided \u201cowing to the impossibility for the municipality to ensure such plots\u201d. The decision stated furthermore that the owners had to pay back the monetary compensation they had additionally received. On 22 December 1993 the applicant paid back thatcompensation.<\/p>\n 9.\u00a0\u00a0The applicant remained in his house.In the years which followed the mine approached the house, due to its gradual enlargement. Coal was extracted from it by means of detonations, which, according to the applicant, shook the house on a daily basis.On unspecified dates cracks appeared on the walls of the house, and the barn and the pen collapsed. Towards the beginning of 1997 the applicant\u2019s family moved out of the house, judging it too dangerous to stay.<\/p>\n 10.\u00a0\u00a0Subsequently,the applicant contacted the mine, seeking to obtain compensation, but the negotiations failed.At the time, the mine was managed by a company which was wholly State-owned. In 2005 it was privatised.<\/p>\n 11.\u00a0\u00a0In 2001 the applicant brought a tort action against the company operating the mine, seeking compensation for the damage caused to his property.<\/p>\n 12.\u00a0\u00a0The Pernik Regional Court (\u201cthe Regional Court\u201d), which examined the case at first instance, heard a witness, a neighbour of the applicant, who stated during a court hearing of 13 December 2001 that the walls of the applicant\u2019s house were cracked, that its state continued to deteriorate, and that the barn had collapsed three or four years earlier. He thought that the house had beenwell constructed, and explained that after the initial damage the applicant had attempted to repair it. On 7 March 2002 the Regional Court heard another witness, who stated that most of the damage to the applicant\u2019s house had been caused three or four years earlier.<\/p>\n 13.\u00a0\u00a0The Regional Court appointed an expert, who established that the house had been constructed between 1948 and 1950, when there had been no requirements as to seismic resistance. At the time of drawing up the expert report the house was uninhabitable, as its walls were bent and cracked, with the cracks sometimes reaching 20-35 cm in width. The distance between the house and the mine\u2019s periphery was about 160\u2011180\u00a0metres. This meant that the house was situated well inside the so\u2011called \u201csanitation zone\u201d consisting of land within 500 metres of the mine\u2019s edge, inside which the law prohibited any dwellings.The \u201csecurity zone\u201d for the mine,within which no unauthorised personwas to be present during detonation works,had a radius of 600 metres. The expert confirmed his conclusions at a court meeting on 24 January 2002.<\/p>\n 14.\u00a0\u00a0In a judgment of 27 June 2003 the Regional Court dismissed the applicant\u2019s action. It considered it established that the applicant\u2019s property had been seriously damaged and that the damage had coincided in time with the beginning of detonation works in the mine. Still, it concluded that the applicant had not proven that a causal link existed between thedamage and the detonations. He had relied in that regard on the witness testimony provided by two neighbours, but according to the Regional Court it was impossible to establish what had caused the damage to the property by way of witness testimony. The burden of proof to establish such a circumstancelay on the applicant and the other party had argued that the damage had been due to the manner of construction of his house.<\/p>\n 15.\u00a0\u00a0The applicant lodged an appeal. Before the Sofia Court of Appeal (\u201cthe Court of Appeal\u201d) he called an additional witness, who stated during a hearing on 2 February 2004that many houses in the area had already collapsed,and that all the other houses in the applicant\u2019s neighbourhood had cracks.<\/p>\n 16.\u00a0\u00a0On25 June 2004 the Court of Appeal upheld the Regional Court\u2019s judgment, confirming its reasoning. It held that while witness testimony could establish the extent and the timing of the damage to the applicant\u2019s property, it could not prove the causal link between that damage and the detonation works at the mine.<\/p>\n 17.\u00a0\u00a0The applicant lodged an appeal on points of law. In a judgment of 5\u00a0April 2006 the Supreme Court of Cassation quashed the Court of Appeal\u2019s judgment and remitted the case for fresh examination. It was of the view that the lower courts had not duly accounted for the fact that the mine operated in a prohibited area close to the applicant\u2019s house, the house being situated within both the \u201csanitation zone\u201d and the \u201csecurity zone\u201d around the mine. The lower courts had had to examine this fact in light of the statements of the witnesses, which had \u201cestablished the circumstance\u201d that the damage to the applicant\u2019s property had been the result of the detonation works. It was also necessary to assess compliance by the company operating the mine with other statutory requirements, such as those concerning environmental protection.<\/p>\n 18.\u00a0\u00a0After the case was remitted, the Court of Appeal commissioned a new expert report. The expert noted that,owing to the passage of time and the destruction of some documents, it was impossible to determine the exact distance betweenthe applicant\u2019s houseand the area where the detonations had been carried out in 1997. Nevertheless, it was clear that the house had been well inside the \u201csanitation zone\u201d around the mine. The expert additionally noted that the detonations had been carried out by qualified workers, in accordance with the mine\u2019s internal rules.<\/p>\n 19.\u00a0\u00a0The Court of Appeal heard an additional witness for the applicant, who stated during a court hearing of 23 November 2006 that many houses in the village had collapsed, and that he thought that this was due to the detonations at the mine. He added that the detonations took place on a daily basis, that they caused \u201cearthquakes\u201d,and that the houses shattered as a result. The first cracks on the applicant\u2019s house had appeared even before the time when the mine had operated closest to it. The witness was not aware of any landslides in the area.<\/p>\n 20.\u00a0\u00a0In a judgment of 2April 2007 the Court of Appeal once again upheld the Regional Court\u2019s judgment of 27 June 2003, dismissing the applicant\u2019s claim. It foundit \u201cindisputable\u201d that employees of the mine had acted in breach of law, by carrying out detonations in a prohibited area close to residential buildings, including at the time when, according to the applicant, the damage to his property had started. Nevertheless, on the basis of the material submitted,the applicant had not proved the causal link between the mine\u2019s work and the damage to his property. The Court of Appeal reasoned in that regard:<\/p>\n \u201cThe causal link … cannot be assumed \u2013 it is to be fully proven by the claimant. It has not been shown in the case that the claimant\u2019s building, constructed in the 1950s, has been damaged precisely because of the detonation works at the mine.The claimant has not shown that the residential building and the auxiliary buildings, given [their] manner of construction, the materials [used] and the time of [their] construction, would not have been damaged, or would not have been damaged to such an extent, had it not been for the detonation works at the mine. It has not been shown whether and to what degree the buildings\u2019 state described by the expert [heard by the Regional Court] was due to normalwear and tear, taking into account the year [they were built] and the manner of [their] construction, and any lack of maintenance by the owner after the 1990 expropriation.\u201d<\/p>\n 21.\u00a0\u00a0Upon a further appeal by the applicant, in a final judgment of 3 July 2008 the Supreme Court of Cassation upheld the Court of Appeal\u2019s judgment, affirming its conclusions. It pointed out in particular that the expert report presented to the Court of Appeal (see paragraph 18 above) had only established that the applicant\u2019s property had been situated within the \u201csanitation zone\u201d around the mine, but \u201cwas insufficient to prove the existence of a causal link between the damage … and the unlawful behaviour of employees of the respondent company\u201d.<\/p>\n 22.\u00a0\u00a0In the meantime, the applicant\u2019s house has collapsed and no longer exists. The property has been abandoned.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n A.\u00a0\u00a0Expropriations for public needs under the Property Act<\/strong><\/p>\n 23.\u00a0\u00a0Section 101 of the Property Act (\u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0441\u043e\u0431\u0441\u0442\u0432\u0435\u043d\u043e\u0441\u0442\u0442\u0430), as worded at the relevant time, allowed the expropriation of private property for \u201cespecially important State needs\u201d, which could not be met otherwise.<\/p>\n 24.\u00a0\u00a0Section 102 stated in addition that the owner would receive compensation through other property or in cash, and that the authorities could take possession of the expropriated property only after the provision of the compensation due. If such compensation was not provided within one year of the entry into force of the expropriation decision, the owner could seek the cancellation of the expropriation. In 1996 section 102 of the Property Act was superseded by other legislation.<\/p>\n B.\u00a0\u00a0Health and safety requirements with regard to industrial installations<\/strong><\/p>\n 25.\u00a0\u00a0Ordinance No. 7 of 25 May 1992 concerning the health and safety requirements for the protection of health in residential areas (\u041d\u0430\u0440\u0435\u0434\u0431\u0430 \u2116 7 \u043e\u0442 25.05.1992 \u0433. \u0437\u0430 \u0445\u0438\u0433\u0438\u0435\u043d\u043d\u0438\u0442\u0435 \u0438\u0437\u0438\u0441\u043a\u0432\u0430\u043d\u0438\u044f \u0437\u0430 \u0437\u0434\u0440\u0430\u0432\u043d\u0430 \u0437\u0430\u0449\u0438\u0442\u0430 \u043d\u0430 \u0441\u0435\u043b\u0438\u0449\u043d\u0430\u0442\u0430 \u0441\u0440\u0435\u0434\u0430), adopted by the Minister of Health in implementation of the Public Health Act (see paragraph 27 below), provided for the creation of \u201csanitation zones\u201d around industrial installations which represented an environmental hazard. The width of such zones was to be between 50 and 3,000 metres, depending on the specific characteristics of each installation, and the construction of non-industrial buildings was not permitted inside the zones.If such buildings already existed, the owners of installations concerned by the \u201csanitation zone\u201d requirement were obliged to limit any harmful activities \u201cto the statutory levels\u201d by the end of 1997; otherwise, they were obliged to close down the respective installation or move it to another area. This ordinance remained in force until 2011.<\/p>\n 26.\u00a0\u00a0In addition, \u201csecurity zones\u201d around detonation sites, within which no person is allowed during any detonation works, are provided for in a document entitled Security Rules During Detonation Works (\u041f\u0440\u0430\u0432\u0438\u043b\u043d\u0438\u043a \u043f\u043e \u0431\u0435\u0437\u043e\u043f\u0430\u0441\u043d\u043e\u0441\u0442\u0442\u0430 \u043d\u0430 \u0442\u0440\u0443\u0434\u0430 \u043f\u0440\u0438 \u0432\u0437\u0440\u0438\u0432\u043d\u0438\u0442\u0435 \u0440\u0430\u0431\u043e\u0442\u0438), adopted on 28\u00a0December 1996 by the Minister for Work and Social Assistance.<\/p>\n 27.\u00a0\u00a0The 1973 Public Health Act (\u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u043d\u0430\u0440\u043e\u0434\u043d\u043e\u0442\u043e \u0437\u0434\u0440\u0430\u0432\u0435), in force until 2005, and after that the Health Act (\u0417\u0430\u043a\u043e\u043d \u0437\u0430 \u0437\u0434\u0440\u0430\u0432\u0435\u0442\u043e),regulate the functioning and powers of health protection bodies. Among other things, those bodies are entitled to conduct checks and inspections, and if necessary suspend the functioning of industrial objects or installations operating in breach of health protection rules, and impose administrative punishments.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLE 6 \u00a7 1 AND ARTICLE 8 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1<\/p>\n 28.\u00a0\u00a0The applicant complained under Article 6 \u00a7 1 of the Convention of the manner in which the national court had decided on his claim against the company operating the mine. He complained furthermore under Article 8 of the Convention of an infringement of his right to a home. Lastly, he complained underArticle 1 of Protocol No. 1 that he had been deprived of the possibility to \u201cuse freely\u201d his property.<\/p>\n 29.\u00a0\u00a0Article 6 \u00a7 1, in so far as relevant, reads:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n Article 8 of the Convention and Article 1 of Protocol No. 1 read:<\/p>\n Article 8<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n 2.\u00a0\u00a0There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n Article 1 of Protocol No. 1<\/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.\u00a0\u00a0The parties\u2019 arguments<\/strong><\/p>\n 1.\u00a0\u00a0The Government<\/em><\/p>\n 30.\u00a0\u00a0The Government pointed out that the complaint under Article 6 \u00a7 1 of the Convention was related to the outcome of the civil proceedings, and argued that it was of a fourth-instance character.<\/p>\n 31.\u00a0\u00a0Under Article 8 of the Convention, the Government contested the applicant\u2019s claim that the house in Golyamo Buchino had been his \u201chome\u201d, pointing out that after 1997 he had not lived there.<\/p>\n 32.\u00a0\u00a0As concerns the complaint under Article 1 of Protocol No. 1, the Government pointed out that if the applicant had considered that employees of the mine had handled explosives in breach of the relevant rules, he could have requested that criminal proceedings be initiated against them on that account.<\/p>\n 33.\u00a0\u00a0The Government contended that the State could not be held responsible for the damage caused to the applicant\u2019s property, as he had not shown that it was due to any action of the public authorities. Nor had the applicant shown that the damage at issue was indeed the result of the operation of the mine, and,this being so, the State could not have been expected to take measures to prevent \u201cevents the cause of which is unknown or cannot be reasonably predicted\u201d. Moreover, the State could not be required to close down the mine, an enterprise of \u201ccrucial economic importance\u201d, for the sole reason that \u201can individual upon his free will chose to continue living in its vicinity\u201d.<\/p>\n 34.\u00a0\u00a0The Government submitted that the State\u2019s responsibility was limited to guaranteeing the effectiveness of judicial proceedings between private parties. In such proceedings, the applicant had failed to substantiate his claim, and the claim had thus been dismissed \u201cdue to the objective facts of the case\u201d.In any event, at the beginning of the 1990s the State had expropriated the applicant\u2019s property and had offered him compensation.<\/p>\n 2.\u00a0\u00a0The applicant<\/em><\/p>\n 35.\u00a0\u00a0The applicant reiterated that his rights had been breached. He pointed out that the Government had not contested the fact that the mine had operated in a prohibited area close to his property, which had also been acknowledged by the domestic courts.<\/p>\n 36.\u00a0\u00a0Under Article 6 of the Convention, the applicant argued that the national courts had reached the wrong conclusion in the tort proceedings initiated by him in finding that he had not proved the causal link between the mine\u2019s work and the damage to his property. In his view, that causal link had been clearly established by the witnesses and the experts heard by the courts. The applicant added that, prior to being obliged to leave the house, he had repaired and maintained it, and that it had been well constructed.<\/p>\n 37.\u00a0\u00a0As regards his complaint under Article 8 of the Convention and the question as to whether the case concerned his \u201chome\u201d, the applicant pointed out that he had a \u201cstrong emotional connection\u201d with the house in Golyamo Buchino, where he had grown up and where he had lived predominantly with his family until 1997. He had not left the house of his own free will, but had been forced to do so after it had become dangerous to live there. The unlawful damage to the house rendering it uninhabitable meant that Article 8 of the Convention had been breached.<\/p>\n 38.\u00a0\u00a0Under Article 1 of Protocol No. 1, as to the Government\u2019s argument that he could have sought the criminal prosecution of employees of the mine (see paragraph 32 above), the applicant considered that such prosecution could not have provided the redress he sought, and in any event he had pursued another remedy, claiming damages.<\/p>\n 39.\u00a0\u00a0The applicant pointed out that detonation works were inherently dangerous, and that the State had therefore established safety rules. In the event of a mine operating near to a house, the State required a protective \u201csanitation zone\u201d, but even though his house had remained well inside such a zone, the mine had been allowed to continue to operate. The applicant argued that after the cancellation of the expropriation of his property the State had had to step in to exercise control and ban the unlawful activity.The applicant additionally pointed out that his request that the1990 expropriation of his properties be cancelled had been motivated by the State\u2019s failure to provide the compensation due to him within the statutory time limit. He had not been obliged to await this compensation indefinitely.<\/p>\n B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n 1.\u00a0\u00a0Admissibility<\/em><\/p>\n (a)\u00a0\u00a0Article 8 of the Convention<\/p>\n 40.\u00a0\u00a0The applicant complained of a breach of his right to respect for his home (see paragraph 28 above).<\/p>\n 41.\u00a0\u00a0Under Article 35 \u00a7 1 of the Convention, the Court may examine a matter only where it has been submitted to it within six months of the date on which a final decision was taken. The primary purpose of this rule is to maintain legal certainty by ensuring in particular that cases raising issues under the Convention are examined within a reasonable time. Furthermore, the rule facilitates the establishment of facts in a case, since with the passage of time any fair examination of the issues raised is rendered problematic (see Sabri G\u00fcne\u015f v. Turkey [GC], no.27396\/06, \u00a7 39, 29 June 2012).<\/p>\n 42.\u00a0\u00a0As was also pointed out by the Government (see paragraph 31above),the house in Golyamo Buchino,which is the subject of this complaint,ceased to be the applicant\u2019s home in 1997 when he moved out of it, judging it too dangerous to stay (see paragraph 9 above). The tort proceedings the applicant brought subsequently were not aimed at recovering the house or enabling him to return there, and there were no other developments in relation to his right to respect for his home. For these reasons the Court is of the view that as concerns the applicant\u2019s complaint under Article 8 the six-month time-limit under Article 35 \u00a7 1 of the Convention started running in 1997 when he moved out of his house.<\/p>\n 43.\u00a0\u00a0That complaint, lodged in December 2008 (see paragraph 1 above),has thus been lodged out of time, and must be rejected in accordance with Article 35 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n (b)\u00a0\u00a0Remainder of the application<\/p>\n 44.\u00a0\u00a0Concerning the complaint under Article 1 of Protocol No. 1, the Government appeared to raise an objection of non-exhaustion of domestic remedies, since they stated that the applicant had failed to seek the criminal prosecution of employees of the mine who might have handled explosives in breach of the relevant rules (see paragraph 32 above). However, the Government have not shown that the remedy at issue could have provided any adequate redress to the applicant, enabling him to return to his house or to obtain compensation, and the Court thus dismisses the objection.<\/p>\n 45.\u00a0\u00a0It finds in addition that the complaints under Article 6 \u00a7 1 of the Convention and Article 1 of Protocol No. 1 are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention, or inadmissible on any other ground. They must therefore be declared admissible.<\/p>\n 2.\u00a0\u00a0Merits<\/em><\/p>\n (a)\u00a0\u00a0Article 6 \u00a7 1 of the Convention<\/p>\n 46.\u00a0\u00a0The applicant argued that the national courts had wrongly decided in the tort proceedings brought by him against the company operating the mine, in particular in concluding that no causal link had been shown to exist between the detonations at the mine and the damage to his property (see\u00a0paragraph 36 above).<\/p>\n 47.\u00a0\u00a0The Court has said on numerous occasions that it is not called upon to deal with errors of fact or law allegedly committed by the national courts, as it is not a court of fourth instance, and that it is not called upon to reassess the national courts\u2019 findings, provided that they are based on a reasonable assessment of the evidence (see Garc\u00eda Ruiz v. Spain [GC], no.\u00a030544\/96, \u00a7 28, ECHR 1999\u2011I, and Centro Europa 7 S.r.l. and\u00a0Di\u00a0Stefano v. Italy [GC], no. 38433\/09, \u00a7 197, ECHR 2012). Thus, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments submitted to them for consideration are not normally for the Court to review (see Bochan v. Ukraine (no. 2) ([GC], no.\u00a022251\/08, \u00a7 61, ECHR 2015, and Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867\/12, \u00a7 83, ECHR 2017 (extracts)).<\/p>\n 48.\u00a0\u00a0Nevertheless, the Court may entertain a fresh assessment of evidence where the decisions reached by the national courts can be regarded as arbitrary or manifestly unreasonable (see Khodorkovskiy and Lebedev v.\u00a0Russia, nos. 11082\/06 and 13772\/05, \u00a7\u00a7 803-4, 25 July 2013, and Lupeni\u00a0Greek Catholic Parish and Others v. Romania [GC], no. 76943\/11, \u00a7 90, ECHR 2016 (extracts)). Thus, for instance, in the case of Dulaurans v.\u00a0France (no. 34553\/97, \u00a7\u00a7 36-38, 21 March 2000), the Court found a violation of the right to a fair trial because the sole reason why the French Court of Cassation had arrived at its contested decision rejecting the applicant\u2019s appeal on points of law as inadmissible was the result of \u201ca manifest error of assessment\u201d. In An\u0111elkovi\u0107 v. Serbia (no. 1401\/08, \u00a7 27, 9\u00a0April 2013), the Court also found that the domestic court\u2019s decision, which principally had had no legal basis in domestic law and had not established any connection between the facts, the applicable law and the outcome of the proceedings, was arbitrary. In Bochan (no.2) (cited above, \u00a7\u00a7 63-65), the Supreme Court had so \u201cgrossly misinterpreted\u201d a legal text (an earlier judgment of the Court) that its reasoning could not be seen merely as a different reading of that text, but was \u201cgrossly arbitrary\u201d or entailing a \u201cdenial of justice\u201d. In Carmel Saliba v. Malta (no. 24221\/13, \u00a7\u00a7\u00a069-79, 29 November 2016), the Court criticised the domestic courts for having relied on the inconsistent testimony of one witness and having failed to adequately comment on the remaining evidence; combined with other less significant shortcomings of the civil proceedings, this meant that those proceedings had not been fair.<\/p>\n 49.\u00a0\u00a0In the present case the domestic courts appointed experts and heard witnesses, former neighbours of the applicant, and found on the basis of this evidence that the applicant\u2019s house and the other buildings in his yard were seriously damaged and had become unusable. They found furthermore that the detonations in the nearby mine had been carried out in breach of law (even though by qualified workers and in accordance with the mine\u2019s own internal rules), including at the time when, according to the applicant, the damage to his property had started (see paragraphs 14 and 20 above).<\/p>\n 50.\u00a0\u00a0It was also established that, when the detonations were carried out closest to the applicant\u2019s property, they were within 160-180 metres of it (see paragraph 13 above). However, while the applicant has not at any stage specified when the mining activity of which he complained commenced, it would appear that this occurred sometime in the early 1990s (see paragraph\u00a07 above). In contrast, the expert reports on which the domestic courts relied were only drawn upin 2001-02 and 2006-07 as the applicant waited until 2001 to initiate his tort action. Those expert reports found that it was impossible to say whether the distance just referred to had been the distance in 1997 when the damage to the applicant\u2019s house had become so significant that he had had to leave (see paragraphs 13 and 18 above).<\/p>\n 51.\u00a0\u00a0The Court is of the view that, unlike the cases referred to in paragraph 48above, the present case does not concern \u201ca manifest error of assessment\u201d on the part of the national courts, or a \u201cgross misinterpretation\u201d of the relevant circumstances, or reasoning disregarding the bulk of the evidence presented or failing to connect the established facts, the applicable law and the outcome of the proceedings. The present case concerns the national courts\u2019 assessment of the applicant\u2019s claim as argued by him and in light of the evidence presented. The courts discussedand took into account the findings of the experts which they had appointed and the testimony of the witnesses put forward by the applicant,and made their own assessment as totheir evidentiary value, stating in particular that the witness evidence was insufficient to prove the causal link alleged by the applicant (see\u00a0paragraphs 14, 16 and 20-21 above).<\/p>\n 52.\u00a0\u00a0After the case was remitted by the Supreme Court of Cassation (see paragraph 17 above), the Court of Appeal complied with its instructions to take into account the unlawfulness of the detonation works carried out at the mine, and expressly discussed that aspect, but still, on the balance, considered that the causal link between those detonations and the damage to the applicant\u2019s house had remained unproven (see paragraph 20 above). As already noted, due to the passage of time and the destruction of some documents, it had proved impossible to determine the distance between the applicant\u2019s house and the area where the detonations had been carried out in 1997 \u2013 theyear in which he had abandoned his property. While it had been established that damage to the property had occurred, the cause or causes of that damage or the extent to which the mining activities had caused the damage and when could not be established.<\/p>\n 53.\u00a0\u00a0The above conclusion was upheld when the case reached the Supreme Court of Cassation for the second time (see paragraph 21 above).<\/p>\n 54.\u00a0\u00a0The applicant\u2019s complaint under Article 6 \u00a7 1 of the Convention concerns thus the weight attached by the national courts to the evidence presented, in particular the witness testimony, and their assessments of the issues raised before them. As mentioned above (see paragraph 47), it is not normally for the Court to review such matters.<\/p>\n 55.\u00a0\u00a0In view of the above, the Court cannot conclude that the decisions of the national courts, in particular their conclusion contested by the applicant as to the existence of a causal link between the detonation works at the mine and the damage to his property, reached the threshold of arbitrariness and manifest unreasonableness described in paragraph 48above,or amounted to a \u201cdenial of justice\u201d. Accordingly, the applicant did have a \u201cfair hearing\u201d of his case, as required by Article 6 \u00a7 1 of the Convention<\/p>\n 56.\u00a0\u00a0Hence, there has beenno violation of that provision.<\/p>\n (b)\u00a0\u00a0Article 1 of Protocol No. 1<\/p>\n 57.\u00a0\u00a0The applicant owned one half of the plot of land and the buildings located in the village of Golyamo Buchino (see paragraph 6 above). Accordingly, the Court finds that he had \u201cpossessions\u201d, within the meaning of Article 1 of Protocol No.\u00a01.<\/p>\n 58.\u00a0\u00a0On an unspecified date towards the end of the 1980s or the beginning of the 1990s the State took a decision to create an opencast coalmine close to the applicant\u2019s village. An expropriation procedure concerning numerous properties in the area of the future mine, including the applicant\u2019s house and land, was commenced in 1990 (see paragraph 7 above). However, as regards the applicant\u2019s property the procedure failed, as the expropriation was quashed at the request of the applicant after part of the compensation designated for him, namely another plot of land in the village, was never provided to him (see paragraph 8 above). While, as mentioned, it was the applicant himself who sought the quashing of the expropriation (ibid.), the Court is of the view that he cannot be blamed for the expropriation procedure\u2019s failure. He had waited to receive another plot of land in the village for more than two years, from May 1990 to August 1992, and the Government have not shown that the authorities intended to honour their legal obligations under the expropriation procedure and that such a plot could have indeed been provided to the applicant.<\/p>\n 59.\u00a0\u00a0The applicant and his family remained in the house, whereas the mine started operating close to it (see paragraph 9 above). It has not been disputed \u2013 and it was confirmed by the domestic courts in the tort proceedings initiated by the applicant \u2013 that the mine, where coal was extracted by means of detonations, represented an environmental hazard, and that the health-and-safety requirements contained inthe Minister of Health\u2019s Ordinance No. 7 of 25 May 1992, in particular the maintenance of \u201csanitation zones\u201daround non-industrial buildings such as dwellings (see paragraph 25 above), applied to it. The \u201csanitation zone\u201d required in the case was 500-metre wide. However, the mine gradually expanded, and at the closest operated within 160-180 metres from the applicant\u2019s house.<\/p>\n 60.\u00a0\u00a0At the relevant time the mine was managed by a company which was entirely State-owned (see paragraph 10 above). For the Court, the fact that that company was a separate legal entity under domestic law (see, for example, Ilieva and Others v. Bulgaria, no. 17705\/05, \u00a7 36, 3 February 2015)cannot be decisive to rule out the State\u2019s direct responsibility under the Convention (see Liseytseva and Maslovv. Russia, nos. 39483\/05 and\u00a040527\/10, \u00a7 188, 9 October 2014, and Ali\u0161i\u0107 and Others v.\u00a0Bosnia and\u00a0Herzegovina, Croatia, Serbia, Slovenia and the\u00a0former\u00a0Yugoslav Republic of Macedonia [GC], no. 60642\/08, \u00a7 114, ECHR 2014). The parties have provided no information on the extent of State supervision and control of the company at the relevant time. Of relevance is that it was not engaged in ordinary commercial business, operatinginstead in a heavily regulated field subject to environmental and health-and-safety requirements (see, mutatis mutandis, Mykhaylenky and Others v. Ukraine, nos. 35091\/02 and 9 others, \u00a7 45, ECHR 2004\u2011XII).It is also significant that the decision to create the mine was taken by the State, which also expropriated numerous privately-owned properties in the area to allow for its functioning, under legislation concerning \u201cespecially important State needs\u201d(see paragraphs 7 and 24 above). All of the above factors demonstrate that the company was the means of conducting a State activityand that, accordingly, the State must be held responsible for its acts or omissionsraising issues under the Convention.<\/p>\n 61.\u00a0\u00a0In view of the considerations above, the Court is of the view that the authorities, through the failed expropriation of the applicant\u2019s property and the work of the mine under what was effectively State control,were responsible for the applicant\u2019s property remaining in an area of environmental hazard, namely daily detonations in close proximity to the applicant\u2019s house. That situation, which led to the applicant abandoning his property in 1997 (see paragraph 9 above), amounted to State interference with his \u201cpossessions\u201d within the meaning of Article 1 of Protocol No. 1.<\/p>\n 62.\u00a0\u00a0Such an interference cannot be regarded as either a deprivation of property or a control of use within the meaning of the first and second paragraphs of Article 1 of Protocol No. 1. However, it falls within the meaning of the first sentence of that provision as an interference with the peaceful enjoyment of possessions (see, mutatis mutandis, Loizidou v.\u00a0Turkey (merits), 18 December 1996, \u00a7 63, Reports of Judgments and Decisions 1996\u2011VI).<\/p>\n 63.\u00a0\u00a0The first and most important requirement of Article 1 of Protocol\u00a0No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see, for example, Beyeler v.\u00a0Italy [GC], no. 33202\/96, \u00a7 108, ECHR 2000\u2011I). This means, in the first place, compliance with the requirements of national law (see Iatridis v.Greece [GC], no. 31107\/96, \u00a7\u00a7 58-62, ECHR 1999\u2011II).<\/p>\n 64.\u00a0\u00a0In the present case, domestic law required the maintenance of protective \u201csanitation zones\u201d around industrial installations representing environmental hazard, on the territory of which there could be no residential buildings (see paragraph 25 above). As regards in particular the mine in the vicinity of the applicant\u2019s village, the required buffer area was 500-metre wide. Despite that, the mineoperated, conducting daily detonations much closer, at the closest within 160-180 metres (see paragraphs 13 and 19 above).<\/p>\n 65.\u00a0\u00a0In the tort proceedings initiated by the applicant, the Court of Appeal stated that the carrying out of detonations by the mine in such vicinity to the residential buildings was \u201cindisputably\u201d in breach of the domestic legislation(see paragraph 20 above). This means that the interference with the peaceful enjoyment of the applicant\u2019s possessions as defined above, manifestly in breach of Bulgarian law, was not lawful eitherfor the purposes of the analysis under Article 1 of Protocol No. 1. This conclusion makes it unnecessary to ascertain whether a fair balance has been struck between the demands of the general interest of the community and the requirements of the protection of the applicant\u2019s rights (see Iatridis, cited above, \u00a7 62).<\/p>\n 66.\u00a0\u00a0There has therefore been a violation of Article 1 of Protocol No.\u00a01.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 67.\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<\/strong><\/p>\n 68.\u00a0\u00a0In respect of pecuniary damage, the applicant claimed 9,040.70\u00a0Bulgarian levs (BGN \u2013 the equivalent of 4,622.51 euros (EUR)) for the value of his share of the property in Golyamo Buchino, plus default interest. He presented valuation reports prepared by experts. He pointed out that, as a result of the conduct of the State complained of, his house and the auxiliary buildings had collapsed and had become unusable. In respect of non-pecuniary damage, the applicant claimed EUR 9,000.<\/p>\n 69.\u00a0\u00a0The Government contested the claims.<\/p>\n 70.\u00a0\u00a0The Court finds that it is justified to award the applicant compensation for the breach of his property rights as a result of the exposure of his property to environmental hazard. It considers in addition that it is appropriate to award a lump sum, covering any pecuniary and non\u2011pecuniary damage. In view of all the circumstances of the case, includingthe value of the applicant\u2019s property as indicated by him (see paragraph 68 above), the Court fixes that sum at EUR 8,000.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 71.\u00a0\u00a0For the proceedings before the Court, the applicant claimed BGN\u00a02,800 (the equivalent of EUR 1,431) for the fee charged by his legal representative, the expert valuations submitted in support of his claim for pecuniary damage (see paragraph 68 above) and translation. In support of the claim he submitted the relevant receipts and a contract with a translator.<\/p>\n 72.\u00a0\u00a0The applicant also claimed expenses incurred by him in the domestic tort proceedings, amounting to BGN 961.30 in total (the equivalent of EUR\u00a0491). These included court fees and the cost of an expert report. In support of this claim the applicant submitted the relevant receipts.<\/p>\n 73.\u00a0\u00a0The Government contested the claims.<\/p>\n 74.\u00a0\u00a0In accordance with the Court\u2019s 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court allows the claim in respect of costs and expenses in full. As to the claim concerning the expenses incurred in the domestic tort proceedings, it notes that, in bringing those proceedings, the applicant sought to obtain compensation for the violation of his property rights. The total amount awarded under this head is thus EUR 1,922.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 75.\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,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe complaint under Article 8 of the Convention inadmissible and the remainder of the application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been no violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds that there has been a violation of Article 1 of Protocol No. 1;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 \u00a7 2 of the Convention, the following amounts,to be converted into Bulgarian levs at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 1,922 (one thousand nine hundred and twenty-two euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that 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 5.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 6 September 2018, pursuant to Rule77\u00a7\u00a72 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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Angelika Nu\u00dfberger
\nErik M\u00f8se,
\nAndr\u00e9 Potocki,
\nYonko Grozev,
\nS\u00edofra O\u2019Leary,
\nGabriele Kucsko-Stadlmayer,
\nL\u04d9tif H\u00fcseynov, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
\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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n