FIFTH SECTION
\nCASE OF SHEHOVA v. BULGARIA
\n(Application no. 68185\/11)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n18 January 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Shehova v. Bulgaria,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n Andr\u00e9 Potocki, President, Having deliberated in private on 12 December 2017,<\/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. 68185\/11) 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 IskraAntimovaShehova (\u201cthe applicant\u201d), on 4 October 2011.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms V.Tenova, a lawyer practising in Plovdiv. The Bulgarian Government (\u201cthe Government\u201d) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice.<\/p>\n 3.\u00a0\u00a0On 10 July 2014 the complaint concerning the failure of the national authorities to enforce two final domestic judgments in the applicant\u2019s favour was 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 4.\u00a0\u00a0The applicant was born in 1959 and lives in Smolyan.<\/p>\n 5.\u00a0\u00a0In two final judgments of 28 February 2005 and 8 May 2006 the Supreme Court of Cassation awarded the applicant pecuniary damages in respect of breach of contract for construction workswhich she had carried out. The awarded damages comprised BGN 52,784 for the principal amount, plus BGN17,685 indefault interest and BGN 5,433 in costs and expenses, or a total amount of BGN 75,902.93, the equivalent to 38,000\u00a0euros (EUR). The damages were awarded to the applicant against the National Centre for Recreation, Rehabilitation and Sport \u2013 Ministry of Education and Science (\u201cthe Centre\u201d, a State bodysubsidised by the Ministry of Education and Science and exercising certain functions delegated by the Ministry).<\/p>\n 6.\u00a0\u00a0By an order of 25 May 2005 the Minister of Education closed down the Centre and ordered that its remaining property be managed by the Ministry of Education. The Ministry then established a State-owned joint\u2011stock company with part of the Centre\u2019s property, including the real estate in which the applicant had carried out the construction works.<\/p>\n 7.\u00a0\u00a0On 13 May 2005 and 15 March 2007 the applicant was issued with two writs of enforcement for the amountsawarded in the final judgments of 2005 and 2006 (see paragraph 5 above) and on 6 February 2008 she presented the writs to the Ministry of Education asking it to pay.<\/p>\n 8.\u00a0\u00a0The Ministry replied in writing that it was not the successor to the Centre and did not owe payment to the applicant. In October 2009 the applicant reiterated her request but received a similar reply by the Ministry. The Ministry also pointed out that payment could not be sought from the State-owned joint-stock company either as it had a legal personality separate from that of the Ministry. By a letter of 23 September 2010, the Minister provided a similar explanation to the applicant.<\/p>\n 9.\u00a0\u00a0The applicantbrought judicial review proceedings challenging the Minister\u2019s refusal. In a final decision of 8 April 2011 the Supreme Administrative Court rejected the appeal as inadmissible.<\/p>\n 10.\u00a0\u00a0As of 19 March 2015, the date of the applicant\u2019s last communication to the Court, no change in the above circumstances had been reported.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n Enforcement of monetary claims vis-\u00e0-vis State institutions<\/strong><\/p>\n 11.\u00a0\u00a0The relevant provisions concerning enforcement of monetary claims vis-\u00e0-vis State bodies until 2007 have been set out in the case of Mancheva v. Bulgaria, no. 39609\/98, \u00a7\u00a7 36-38, 30 September 2004. The relevant provisions as of 2008 can be found in the Code of Civil Procedure 2007. In particular, Article 519 of the Code of Civil Procedure 2007 provides as follows:<\/p>\n \u201c1.\u00a0\u00a0The enforcement of money claims against State bodies is not allowed.<\/p>\n 2.\u00a0\u00a0Money claims against State bodies shall be paid out of funds allotted for that purpose in their budgets. For this purpose, the writ of execution shall be presented to the financial department of the [State] body in issue. If no funds have been allocated, the higher [State] body shall take the necessary measures to provide such funds at the latest in the next budget.\u201d<\/p>\n 12.\u00a0\u00a0In March 2010 the Ombudsman of the Republic challenged that provision before the Constitutional Court. In a judgment of 21 December 2010 (\u0440\u0435\u0448. \u2116 15 \u043e\u0442 21 \u0434\u0435\u043a\u0435\u043c\u0432\u0440\u0438 2010 \u0433. \u043f\u043e \u043a. \u0434. \u2116 9\/2010 \u0433., \u043e\u0431\u043d. \u0414\u0412, \u0431\u0440. 5\/2011 \u0433.), the Constitutional Court refused to declare Article 519 unconstitutional in so far as it concerned State bodies, but declared it unconstitutional in so far as it concerned municipalities.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION<\/p>\n 13.\u00a0\u00a0The applicant complained that the failure of the authorities to implement the final judgments in her favour, by virtue of which a State body owedher a sum of money, breached her right to access to a court under Article 6 \u00a7 1 of the Convention. The Court, which is master of the characterisation to be given in law to the facts of the case, finds that the complaint at issue falls to be examined under Article 6 \u00a7 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention, which read respectively as follows:<\/p>\n Article 6 \u00a7 1<\/p>\n \u201c1.\u00a0\u00a0In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by [a] … tribunal …\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. …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 14.\u00a0\u00a0At the time of submitting their observations in respect of the applicant\u2019s claim for just satisfaction, the Government advanced that the applicant had failed to exhaust domestic remedies. In particular, the writs of enforcement presented by her to the Ministry had indicated that the indebted institution had been the Centre. According to the Government the Ministry was not a legal successor of the Centre and had not taken part in the judicial proceedings concerning the Centre\u2019s debts to the applicant. Consequently, the applicant\u2019s complaint concerned a legal dispute which had not been dealt with at the domestic level.<\/p>\n 15.\u00a0\u00a0The Court considers that the issue of admissibility is closely linked to the merits and must therefore be joined to the merits. The Court furthermore 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<\/strong><\/p>\n 16.\u00a0\u00a0The applicant reiterated her complaint.<\/p>\n 17.\u00a0\u00a0The Government did not elaborate further.<\/p>\n 18.\u00a0\u00a0In accordance with the Court\u2019s established case-law, execution of a final judgment given by any court must be regarded as an integral part of the \u201ctrial\u201d for the purposes of Article 6 of the Convention and an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see, among many other authorities, Burdov v. Russia, no\u00a059498\/00, \u00a7\u00a7 34\u201335, ECHR 2002\u2011III; Mancheva v. Bulgaria, no.\u00a039609\/98, \u00a7 54, 30 September 2004; Yuriy Nikolayevich Ivanov v.\u00a0Ukraine, no. 40450\/04, \u00a7 51, 15 October 2009). Likewise, the impossibility for an applicant to obtain the execution of a judgment in his or her favour in due time constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Yuriy Nikolayevich Ivanov, cited above, \u00a7\u00a052).<\/p>\n 19.\u00a0\u00a0It is the State\u2019s obligation to ensure that final decisions against its organs, or entities or companies owned or controlled by the State, are enforced without an unreasonably long delay (see Yuriy Nikolayevich Ivanov, cited above, \u00a7 54, with further references). The Court has earlier held in this respect that liquidation proceedings against a State organ cannot absolve the State of its responsibility to enforce a final judgment. To conclude otherwise would allow the State to use this avenue to avoid payment of the debts of its organs, especially taking into account that changing needs force the State to make frequent changes in its organisational structure, including by forming new organs and liquidating old ones (see Kuksa v. Russia, no. 35259\/04, \u00a7 26, 15 June 2006; and Nikitina v. Russia, no. 47486\/07, \u00a7 19, 15 July 2010).<\/p>\n 20.\u00a0\u00a0Turning to the present case, the two final judgments of 2005 and 2006 in the applicant\u2019s favour have remained unenforced (see paragraphs 8 and 10 above) and the Government have not provided any justification for that (see paragraph 17 above). The Court has already established, including in the context of Bulgarian cases before it, that the prolonged failure of State bodies to enforce a final judgment in accordance with which they owed the payment of a sum of money breached both Article 6 \u00a7 1 and Article 1 of Protocol No. 1 (see Mancheva, cited above, \u00a7\u00a7 61\u201362 and \u00a7\u00a7 66\u201368; Sirmanov v. Bulgaria, no. 67353\/01, \u00a7\u00a7 33\u201334 and \u00a7\u00a7 38\u201339, 10 May 2007; and Pashov and Others v. Bulgaria, no. 20875\/07, \u00a7\u00a7 59\u201363, 5 February 2013).<\/p>\n 21.\u00a0\u00a0The Court accordingly dismisses the Government\u2019s objection concerning non-exhaustion of domestic remedies and finds that, by failing for over ten years to comply with the enforceable judgments in the applicant\u2019s favour, the domestic authorities prevented her from receiving an amount of money she could reasonably have expected to receive and deprived the provision of Article 6 \u00a7 1 of all useful effect.<\/p>\n 22.\u00a0\u00a0It follows that there has been a violation of Article 6 \u00a7 1 and Article\u00a01 of Protocol No. 1.<\/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<\/strong><\/p>\n 24.\u00a0\u00a0The applicant claimed approximately EUR 38,000 in respect of pecuniary damage and EUR 10,000 in respect of non-pecuniary damage.<\/p>\n 25.\u00a0\u00a0The Government submitted that the claim for non-pecuniary damages was excessive and unjustified.<\/p>\n 26.\u00a0\u00a0The Court observes that the amount claimed by the applicant in respect of pecuniary damage is the same as that awarded to her in the final judgments and it has remained unpaid. Accordingly, it awards her EUR\u00a038,000 for pecuniary damage.<\/p>\n 27.\u00a0\u00a0The Court furthermore finds that the failure of the authorities to pay the applicant what was due to her on the basis of the final judgments must have caused her emotional distress. It accordingly awards the applicant EUR 3,600 in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 28.\u00a0\u00a0The applicant also claimed EUR 2,000 for the costs and expenses in the form of legal fees which she had incurred before the Court.<\/p>\n 29.\u00a0\u00a0The Government submitted that this sum was exaggerated and not accompanied by the relevant account of expenses.<\/p>\n 30.\u00a0\u00a0Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,000 covering costs for the proceedings before the Court.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 31.\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\u00a0Decides to join to the merits the Government\u2019s objection concerning non-exhaustion of domestic remedies and dismisses it;<\/p>\n 2.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three monthsthe following amounts,to be converted into Bulgarian levs at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 38,000 (thirty-eight thousand euros), plus any tax that may be chargeable,in respect of pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (iii)\u00a0\u00a0EUR 1,000 (one thousand 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\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 18 January 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Anne-Marie Dougin\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 Andr\u00e9 Potocki
\nM\u0101rti\u0146\u0161 Mits,
\nL\u04d9tif H\u00fcseynov, judges,
\nand Anne-Marie Dougin,ActingDeputy Section Registrar,<\/p>\n
\nActing Deputy 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 President<\/p>\n