I incorrectly predicted that there's no violation of human rights in DIMOV v. BULGARIA.

Information

  • Judgment date: 2022-05-03
  • Communication date: 2020-10-02
  • Application number(s): 14642/15
  • Country:   BGR
  • Relevant ECHR article(s): 6, 6-1, 13, P1-1
  • Conclusion:
    Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings
    Article 6-1 - Reasonable time)
    Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.521462
  • Prediction: No violation
  • Inconsistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Veselin Nikolov Dimov, is a Bulgarian national who was born in 1962 and lives in the village of Zhelyo Voyvoda.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is one of the heirs of Y.
The latter owned agricultural land measuring about 150,000 square metres, which was collectivised in the 1950s.
In 1991-92 some of the heirs of Y.
(“the first group”) applied for restitution.
In several decisions the Sliven land commission allowed their applications, holding that the land was to be restored through a land redistribution plan.
Such a plan for the respective area was adopted in 1995, and in 1995-97 the first group of heirs entered into possession of the plots allotted to them.
Subsequently they transferred some of these plots to third parties.
In 1997 the remaining heirs of Y., including the applicant’s father (who passed away in 2012 and was succeeded by the applicant and his mother), brought proceedings against the first group, under section 14(4) of the Agricultural Land Act, claiming that the land should have been restituted to all heirs.
Their action was partially allowed – as regards all but two plots of land totalling 4,000 square metres – in a final judgment of the Supreme Court of Cassation of 27 September 2002.
In 2003 the Sliven Agricultural Department (former land commission, hereinafter “the Department”) informed the applicant’s father that it was unable to comply with the above mentioned final judgment, because it was unable to identify, on the basis of the holdings of the national courts, the two plots meant to remain the property of the first group.
The reason was that the group had been allotted, by means of the land redistribution plan, plots with sizes and locations differing from the ones originally owned.
The Department thus advised all heirs of Y. to reach an agreement on the matter.
The same need to reach an agreement was invoked in a decision of the Department given on 16 July 2008.
However, on 9 July 2009 that decision was declared null and void by the Sliven District Court, on the ground that the Department could not validly refuse to comply with a final court judgment.
Subsequently the applicant complained to the national Ombudsman who, in a letter dated 12 November 2013, informed the applicant that he considered the Department obliged to comply with the final court judgment of 27 September 2002.
He considered furthermore that the Department was authorised to select itself the plots to remain property of the first group, seeing that Y.’s heirs were unable to reach an agreement.
He recommended to the Department to take the necessary measures to complete the restitution procedure.
In 2013 the applicant also sought an administrative punishment for the head of the Department, in relation to the latter’s refusal to comply with the judgment of 27 September 2002.
In a decision of 19 December 2014 the president of the Sliven District Court refused to impose such a punishment, finding, for his part, that the Department was unable to comply with the judgment without a prior agreement among the heirs of Y.
The Department took a decision, restoring the property rights of all heirs of Y. to the land at issue, on 24 October 2016.
That decision entered into force in July 2017.
It was not preceded by an agreement among the heirs of Y.
However, the decision above was not accompanied by the requisite cadastral plans of all plots concerned.
In November 2017 the Agricultural Department informed the applicant about difficulties preventing it from issuing some of these plans, which apparently stemmed from some of the plots having been transferred to third persons.
According to the applicant, some plots have already been acquired by other persons through adverse possession.
In 2019 the applicant initiated partition proceedings against other heirs of Y.
In accordance with his inheritance share, he claims land totalling 6,000 square metres.
The relevant domestic law and practice concerning restitution of agricultural land have been summarised in Velcheva v. Bulgaria (no.
35355/08, §§ 18-19, 9 June 2015) and Zikatanova and Others v. Bulgaria (no.
45806/11, §§ 47-59, 12 December 2019).
COMPLAINTS The applicant complains under Article 1 of Protocol No.
1, Article 6 § 1 and Article 13 of the Convention that the restitution procedure was not completed for many years, despite the final judgment of 27 September 2002 acknowledging his father’s restitution rights.

Judgment

FOURTH SECTION
CASE OF DIMOV v. BULGARIA
(Application no.
14642/15)

JUDGMENT
STRASBOURG
3 May 2022

This judgment is final but it may be subject to editorial revision.
In the case of Dimov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Iulia Antoanella Motoc, President, Gabriele Kucsko-Stadlmayer, Pere Pastor Vilanova, judges,and Ludmila Milanova, Acting Deputy Section Registrar,
Having regard to:
the application (no.
14642/15) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 March 2015 by a Bulgarian national, Mr Veselin Nikolov Dimov, born in 1962 and living in Zhelyo Voyvoda (“the applicant”), who was represented by Ms Y. Dimova, a lawyer practising in Burgas;
the decision to give notice to the Bulgarian Government (“the Government”), represented by their Agent, Ms A. Panova, of the Ministry of Justice, of the complaints concerning the delay in finalising the restitution procedure the applicant was a party to, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 29 March 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1.
The case concerns the restitution of agricultural land. The applicant complained under Article 1 of Protocol No. 1, Article 6 § 1 and Article 13 of the Convention that the restitution procedure had not been completed for many years, without any due justification. 2. The applicant’s father (who died in 2012 and was succeeded by the applicant) was among the heirs of K.Y. After at first only some of the heirs obtained the restitution of several plots of land, in 1997 the remaining ones brought proceedings and, in a final judgment of the Supreme Court of Cassation of 27 September 2002, secured judicial recognition that all the heirs were entitled to the restitution of all but two of the plots at issue. However, for many years the competent body, the Sliven agriculture department, refused to comply with the above-mentioned judgment, maintaining that it was unable to identify the two plots excluded from restitution; they had been described with their pre-nationalisation boundaries, whereas the existing plots that were subject to restitution had different boundaries and specifications. The department thus considered that the heirs needed to reach a settlement as to the land to be excluded. It was only on 24 October 2016 that the department took a decision acknowledging that all the heirs of K.Y. were entitled to restitution; that decision, which was not preceded by a settlement among the heirs, became enforceable on 18 July 2017, after being amended by the courts (for further details, see paragraph 11 below). There are indications that even after the decision at issue, the cadastral plans necessary to conclude the restitution procedure were not issued with regard to some of the plots. In accordance with his share of the inheritance, the applicant is entitled to the restitution of 6,000 square metres of land. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF article 6 § 1 OF THE CONVENTION and ARTICLE 1 of protocol no.
1
3.
The complaints fall to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Velcheva v. Bulgaria, no. 35355/08, § 21, 9 June 2015). 4. The Government argued that the applicant, and his father in respect of the period before 2012, had failed to exhaust the available domestic remedies. First, they had not applied to the courts to have the final judgment of 27 September 2002 interpreted or supplemented, in order to facilitate compliance with it on the part of the agriculture department. Second, they had not contested decisions taken before 1997 in the framework of the restitution procedure. 5. As to the first argument, it was never alleged at the domestic level that the judgment of 27 September 2002 was unclear or incomplete and that it needed to be interpreted or supplemented. The courts adjudicated on the claims as brought before them, and any confusion as to the implementation of their findings appears to have been caused by the mechanisms of restitution. Regarding the second argument, it suffices to note that the applicant’s father and the other heirs of K.Y. who had been excluded from the initial restitution were successful in pursuing the most obvious remedy in the circumstances, namely an action under section 14(4) of the Agricultural Land Act (for a description, see Velcheva, cited above, § 19). 6. The Government also argued that the application was time-barred because, in their view, the applicant’s father had known as early as in 2003 that the judgment of 27 September 2002 could not be enforced (following the agriculture department’s initial formal refusal of enforcement; that refusal was declared null and void by the courts in 2008, and a subsequent refusal was struck down in 2009 – see paragraph 10 below). However, the restitution procedure in the case continued at least until 18 July 2017 (see paragraph 11 below), and there is no reason to consider that the six-month time-limit under the Convention started running on an earlier date. 7. The Court thus dismisses the inadmissibility pleas raised by the Government. It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. The application must therefore be declared admissible. 8. The court judgment of 27 September 2002 acknowledged the entitlement of the applicant’s father to restitution, and that of the applicant as his heir. On 24 October 2016 the agriculture department took a decision, which, after being amended by the Sliven Administrative Court on 18 July 2017 (see paragraph 11 below), complied with that judgment. There are indications that the restitution procedure remained pending even after that date with regard to some of the plots of land, since the requisite cadastral plans were not immediately issued. However, the parties have not provided any further and more specific information on the matter and the Court therefore cannot reach a conclusion on that ground as to when the restitution procedure was finally completed. On the basis of the available information, it accepts that the judgment of 27 September 2002 was finally complied with and the restitution procedure ended on 18 July 2017, namely fifteen years later. 9. The Government argued that the Sliven agriculture department had been right in insisting that the heirs of K.Y. reach an agreement among themselves, and that, in view of their failure to do so, any delays in the restitution procedure had not been the department’s fault. However, on two occasions the domestic courts found that the department could not justifiably refuse to comply with the judgment of 27 September 2002 on such grounds. 10. First, upon a request by the applicant’s father, the Sliven District Court, in a final judgment of 9 July 2009, declared a refusal by the department to comply with the judgment of 27 September 2002 null and void. It held that the department was bound by the judgment at issue and that there were no legal grounds for its refusal to comply. 11. Second, the agriculture department’s decision of 24 October 2016 contained two parts: it acknowledged that all the heirs of K.Y. were entitled to the restitution of the plots claimed, but then refused to proceed with the restitution until the heirs had settled their claims as to their respective shares in the restituted land. The latter part of the decision was declared null and void, upon a request by the applicant, in a final judgment of 18 July 2017 of the Sliven Administrative Court. The national court held that the heirs had already reached an agreement as to their respective shares, reflected in the judgment of 27 September 2002, and that the agriculture department could not legitimately ask for any further steps in that respect. 12. In view of the findings of the national courts that the agriculture department’s repeated refusals to comply with the judgment of 27 September 2002 were unlawful, and the fact that these refusals delayed compliance with the judgment during a period of fifteen years, the refusals were in breach of Article 6 § 1 of the Convention (see Velcheva, cited above, § 40). Article 6 § 1 requires that final court judgments be enforced, and there should be no unreasonably long delay in their enforcement (see, among other authorities, Burdov v. Russia (no. 2), no. 33509/04, §§ 65-66, ECHR 2009). 13. There has accordingly been a violation of Article 6 § 1 of the Convention. 14. The judgment of 27 September 2002 also gave rise to a “legitimate expectation” for the applicant to obtain restitution and thus triggered the application of Article 1 of Protocol No. 1. The authorities’ failure to comply with that judgment and the delays incurred as discussed above also violated the applicant’s right to the peaceful enjoyment of his possessions (see Ramadhi and Others v. Albania, no. 38222/02, §§ 76-77, 13 November 2007, and Velcheva, cited above, §§ 39 and 49). 15. There has accordingly also been a breach of Article 1 of Protocol No. 1. APPLICATION OF ARTICLE 41 OF THE CONVENTION
16.
The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage, in compensation for lost profit from the use of 6,000 square metres of land over twenty years. He claimed in addition EUR 5,000 for non-pecuniary damage and EUR 4,800 in respect of costs and expenses (legal representation and translation) incurred before the Court. 17. The Government contested the claims, considering in particular the ones concerning pecuniary damage and costs and expenses unsubstantiated. 18. The applicant’s claim for pecuniary damage has not been substantiated by any relevant documents. Accordingly, in accordance with Rule 60 § 2 of the Rules of the Court, no award is to be made under this head (see Schatschaschwili v. Germany [GC], no. 9154/10, § 170, ECHR 2015, and Kostov and Others v. Bulgaria, nos. 66581/12 and 25054/15, §§ 110-11, 14 May 2020). 19. As to non-pecuniary damage, in view of the circumstances of the case, it is appropriate to award the applicant EUR 4,000, plus any tax that may be chargeable. 20. The applicant has not submitted any documents showing that he has actually paid, or is under a legal obligation to pay, the costs claimed for representation before the Court or for translation. Accordingly, these expenses cannot be considered to have been actually incurred, and the claim in that regard is to be dismissed. 21. Lastly, the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 3 May 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ludmila Milanova Iulia Antoanella Motoc Acting Deputy Registrar President

FOURTH SECTION
CASE OF DIMOV v. BULGARIA
(Application no.
14642/15)

JUDGMENT
STRASBOURG
3 May 2022

This judgment is final but it may be subject to editorial revision.
In the case of Dimov v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Iulia Antoanella Motoc, President, Gabriele Kucsko-Stadlmayer, Pere Pastor Vilanova, judges,and Ludmila Milanova, Acting Deputy Section Registrar,
Having regard to:
the application (no.
14642/15) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 March 2015 by a Bulgarian national, Mr Veselin Nikolov Dimov, born in 1962 and living in Zhelyo Voyvoda (“the applicant”), who was represented by Ms Y. Dimova, a lawyer practising in Burgas;
the decision to give notice to the Bulgarian Government (“the Government”), represented by their Agent, Ms A. Panova, of the Ministry of Justice, of the complaints concerning the delay in finalising the restitution procedure the applicant was a party to, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 29 March 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1.
The case concerns the restitution of agricultural land. The applicant complained under Article 1 of Protocol No. 1, Article 6 § 1 and Article 13 of the Convention that the restitution procedure had not been completed for many years, without any due justification. 2. The applicant’s father (who died in 2012 and was succeeded by the applicant) was among the heirs of K.Y. After at first only some of the heirs obtained the restitution of several plots of land, in 1997 the remaining ones brought proceedings and, in a final judgment of the Supreme Court of Cassation of 27 September 2002, secured judicial recognition that all the heirs were entitled to the restitution of all but two of the plots at issue. However, for many years the competent body, the Sliven agriculture department, refused to comply with the above-mentioned judgment, maintaining that it was unable to identify the two plots excluded from restitution; they had been described with their pre-nationalisation boundaries, whereas the existing plots that were subject to restitution had different boundaries and specifications. The department thus considered that the heirs needed to reach a settlement as to the land to be excluded. It was only on 24 October 2016 that the department took a decision acknowledging that all the heirs of K.Y. were entitled to restitution; that decision, which was not preceded by a settlement among the heirs, became enforceable on 18 July 2017, after being amended by the courts (for further details, see paragraph 11 below). There are indications that even after the decision at issue, the cadastral plans necessary to conclude the restitution procedure were not issued with regard to some of the plots. In accordance with his share of the inheritance, the applicant is entitled to the restitution of 6,000 square metres of land. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF article 6 § 1 OF THE CONVENTION and ARTICLE 1 of protocol no.
1
3.
The complaints fall to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Velcheva v. Bulgaria, no. 35355/08, § 21, 9 June 2015). 4. The Government argued that the applicant, and his father in respect of the period before 2012, had failed to exhaust the available domestic remedies. First, they had not applied to the courts to have the final judgment of 27 September 2002 interpreted or supplemented, in order to facilitate compliance with it on the part of the agriculture department. Second, they had not contested decisions taken before 1997 in the framework of the restitution procedure. 5. As to the first argument, it was never alleged at the domestic level that the judgment of 27 September 2002 was unclear or incomplete and that it needed to be interpreted or supplemented. The courts adjudicated on the claims as brought before them, and any confusion as to the implementation of their findings appears to have been caused by the mechanisms of restitution. Regarding the second argument, it suffices to note that the applicant’s father and the other heirs of K.Y. who had been excluded from the initial restitution were successful in pursuing the most obvious remedy in the circumstances, namely an action under section 14(4) of the Agricultural Land Act (for a description, see Velcheva, cited above, § 19). 6. The Government also argued that the application was time-barred because, in their view, the applicant’s father had known as early as in 2003 that the judgment of 27 September 2002 could not be enforced (following the agriculture department’s initial formal refusal of enforcement; that refusal was declared null and void by the courts in 2008, and a subsequent refusal was struck down in 2009 – see paragraph 10 below). However, the restitution procedure in the case continued at least until 18 July 2017 (see paragraph 11 below), and there is no reason to consider that the six-month time-limit under the Convention started running on an earlier date. 7. The Court thus dismisses the inadmissibility pleas raised by the Government. It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. The application must therefore be declared admissible. 8. The court judgment of 27 September 2002 acknowledged the entitlement of the applicant’s father to restitution, and that of the applicant as his heir. On 24 October 2016 the agriculture department took a decision, which, after being amended by the Sliven Administrative Court on 18 July 2017 (see paragraph 11 below), complied with that judgment. There are indications that the restitution procedure remained pending even after that date with regard to some of the plots of land, since the requisite cadastral plans were not immediately issued. However, the parties have not provided any further and more specific information on the matter and the Court therefore cannot reach a conclusion on that ground as to when the restitution procedure was finally completed. On the basis of the available information, it accepts that the judgment of 27 September 2002 was finally complied with and the restitution procedure ended on 18 July 2017, namely fifteen years later. 9. The Government argued that the Sliven agriculture department had been right in insisting that the heirs of K.Y. reach an agreement among themselves, and that, in view of their failure to do so, any delays in the restitution procedure had not been the department’s fault. However, on two occasions the domestic courts found that the department could not justifiably refuse to comply with the judgment of 27 September 2002 on such grounds. 10. First, upon a request by the applicant’s father, the Sliven District Court, in a final judgment of 9 July 2009, declared a refusal by the department to comply with the judgment of 27 September 2002 null and void. It held that the department was bound by the judgment at issue and that there were no legal grounds for its refusal to comply. 11. Second, the agriculture department’s decision of 24 October 2016 contained two parts: it acknowledged that all the heirs of K.Y. were entitled to the restitution of the plots claimed, but then refused to proceed with the restitution until the heirs had settled their claims as to their respective shares in the restituted land. The latter part of the decision was declared null and void, upon a request by the applicant, in a final judgment of 18 July 2017 of the Sliven Administrative Court. The national court held that the heirs had already reached an agreement as to their respective shares, reflected in the judgment of 27 September 2002, and that the agriculture department could not legitimately ask for any further steps in that respect. 12. In view of the findings of the national courts that the agriculture department’s repeated refusals to comply with the judgment of 27 September 2002 were unlawful, and the fact that these refusals delayed compliance with the judgment during a period of fifteen years, the refusals were in breach of Article 6 § 1 of the Convention (see Velcheva, cited above, § 40). Article 6 § 1 requires that final court judgments be enforced, and there should be no unreasonably long delay in their enforcement (see, among other authorities, Burdov v. Russia (no. 2), no. 33509/04, §§ 65-66, ECHR 2009). 13. There has accordingly been a violation of Article 6 § 1 of the Convention. 14. The judgment of 27 September 2002 also gave rise to a “legitimate expectation” for the applicant to obtain restitution and thus triggered the application of Article 1 of Protocol No. 1. The authorities’ failure to comply with that judgment and the delays incurred as discussed above also violated the applicant’s right to the peaceful enjoyment of his possessions (see Ramadhi and Others v. Albania, no. 38222/02, §§ 76-77, 13 November 2007, and Velcheva, cited above, §§ 39 and 49). 15. There has accordingly also been a breach of Article 1 of Protocol No. 1. APPLICATION OF ARTICLE 41 OF THE CONVENTION
16.
The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage, in compensation for lost profit from the use of 6,000 square metres of land over twenty years. He claimed in addition EUR 5,000 for non-pecuniary damage and EUR 4,800 in respect of costs and expenses (legal representation and translation) incurred before the Court. 17. The Government contested the claims, considering in particular the ones concerning pecuniary damage and costs and expenses unsubstantiated. 18. The applicant’s claim for pecuniary damage has not been substantiated by any relevant documents. Accordingly, in accordance with Rule 60 § 2 of the Rules of the Court, no award is to be made under this head (see Schatschaschwili v. Germany [GC], no. 9154/10, § 170, ECHR 2015, and Kostov and Others v. Bulgaria, nos. 66581/12 and 25054/15, §§ 110-11, 14 May 2020). 19. As to non-pecuniary damage, in view of the circumstances of the case, it is appropriate to award the applicant EUR 4,000, plus any tax that may be chargeable. 20. The applicant has not submitted any documents showing that he has actually paid, or is under a legal obligation to pay, the costs claimed for representation before the Court or for translation. Accordingly, these expenses cannot be considered to have been actually incurred, and the claim in that regard is to be dismissed. 21. Lastly, the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 3 May 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ludmila Milanova Iulia Antoanella Motoc Acting Deputy Registrar President