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

Judgment

FOURTH SECTION
CASE OF LAZAROV AND OTHERS v. BULGARIA
(Application no. 27565/14)

JUDGMENT
STRASBOURG
16 November 2021

This judgment is final but it may be subject to editorial revision. In the case of Lazarov and Others v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Tim Eicke, President, Faris Vehabović, Pere Pastor Vilanova, judges,and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 27565/14) 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 29 March 2014 by 3 Bulgarian nationals, whose relevant details are listed in the appended table (“the applicants”);
the decision to give notice of the complaint concerning the duration of restitution proceedings to the Bulgarian Government (“the Government”), represented by their Agent, Ms M. Dimova, of the Ministry of Justice, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 19 October 2021,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. After L., father of the first and second applicants and husband of the third applicant (he passed away in 1997), had initiated restitution proceedings claiming a plot of agricultural land, in 1994 the local land commission informed him that restitution in kind was impossible and that he was entitled to compensation. In 2001 and 2011 the land commission took decisions concerning the compensation due. In a new decision issued on 28 June 2012 it refused once again restitution in kind. The applicants challenged this latter decision and it was quashed on 8 January 2013 by the Blagoevgrad District Court, which ordered restitution, holding that there were no impediments to it, and no grounds for the award of compensation. 2. As a matter of fact, however, in 1986 a sports complex had been constructed on the plot claimed by the applicants, and in 2006 the State had transferred the land to a private company. In September 2013 an official of the Cadastre Agency refused to register the applicants as the plot’s owners, referring to an objection by the company which had referred to its own ownership claims. The applicants have thus been unable to enter into possession of the land but have not brought proceedings against the company to defend their alleged title to property. There have been no relevant developments after 2013. 3. The applicants complained, relying on Article 6 § 1 of the Convention, of the excessive duration of the restitution proceedings. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1
4. The complaint falls to be examined under Article 1 of Protocol No. 1 (see Popov and Chonin v. Bulgaria, no. 36094/08, §§ 33-34, 17 February 2015). 5. The Government argued that the applicants had failed to exhaust the available domestic remedies because: 1) they had failed to pursue the compensation procedure and thus bring about the swifter completion of the restitution proceedings, and 2) they had failed after 2013, if they considered that the appropriate path was nevertheless restitution in kind, to bring civil proceedings against the company holding their land. 6. While the procedural steps above appear to have been available to the applicants and could have offered a way out of the standstill obtained after 2013 (see for more details below), they would not, in themselves, have put an end to the restitution procedure, which would have nevertheless still taken time (see, for an overview of the applicable domestic law and the different decisions taken by the authorities, Zikatanova and Others v. Bulgaria, no. 45806/11, §§ 54-57, 12 December 2019). Moreover, any of the above remedies would not have made up for the delays in the procedure accumulated until 2011. Accordingly, the applicants’ failure to pursue them cannot lead to a conclusion that they failed to exhaust effective domestic remedies, as required under Article 35 § 1 of the Convention. 7. The application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 8. The “legitimate expectation” for the applicants’ ancestor and, accordingly, the applicants who are his heirs, to restitution or compensation arose in 1994 when the land commission acknowledged his rights in that regard. The restitution procedure had still not been completed, with either the actual transfer of possession of the plot or the award of specific compensation, by the time of the latest communication to the Court in December 2020, namely the Government’s observations on the admissibility and merits of the application. By that time the procedure had therefore lasted twenty-six years. 9. Significant delays were accumulated before 2011-13, when the different decisions concerning the applicants’ entitlement to compensation were taken at lengthy intervals of time. 10. After 2013 the procedure has come to a standstill, as the compensation path followed previously for many years was abandoned and restitution in kind was ordered, but the plot remained in the hands of a third party and such restitution was not finalised. The situation thus obtained was the result of the obviously contradictory actions of the authorities: in particular, the decision of the land commission of 28 June 2012 and the judgment of the Blagoevgrad District Court of 8 January 3013 re-opened the question of whether the applicants were, in principle, entitled to restitution in kind or to compensation, despite the matter having been apparently determined already in 1994. In addition, restitution in kind was ordered without the third party holding the land being given the opportunity to put forward and prove its competing claims, which inevitably created more delay, leaving the matter, in principle, to be determined in further proceedings (see the Court’s criticism in that regard in previous cases – Sivova and Koleva v. Bulgaria, no. 30383/03, §§ 115-18, 15 November 2011; Karaivanova and Mileva v. Bulgaria, no. 37857/05, §§ 79-81, 17 June 2014; Zikatanova and Others, cited above, § 123). 11. As to any delay attributable to the applicants, they could have, as mentioned above, pursued two procedural paths to advance effectively their restitution claim. They could have sought to keep the procedure in the compensation “track”, in particular by objecting on that ground to the land commission’s decision of 28 June 2012. Alternatively, if the applicants considered that they could indeed obtain restitution in kind, they could have brought proceedings against the company holding the land claimed by them. Despite such a course generating further delay (see the explanations in the previous paragraph), the fact remains that in the situation obtained after 2013 this was the available means to unblock and advance the procedure (see Zikatanova and Others, cited above, §§ 104-06). The applicants’ failure to pursue the avenue at issue appears to be the reason for the lack of any relevant developments after 2013. Lastly, if the applicants had been unsuccessful in proceedings against the company, the compensation option would have been open once again (see, for a similar situation, Nedelcheva and Others v. Bulgaria, no. 5516/05, §§ 21-22, 28 May 2013). 12. Yet, as already discussed, any action on the part of the applicants would not have necessarily brought about a swift end of the restitution procedure and further steps would have been necessary. Thus, they can be held only partially responsible for the delays in the procedure after 2011-13. 13. The delay caused through the authorities’ actions as discussed above remains significant, and the Government have provided no explanation for it, save a general reference to the complexity and importance of the process of restitution of agricultural land. While such considerations have been found to be valid (see, among others, Zikatanova and Others, cited above, § 122), they cannot entirely justify the delays in the restitution procedure in the present case. 14. There has accordingly been a violation of Article 1 of Protocol No. 1 on account of the excessive duration of the restitution procedure attributable to the authorities. APPLICATION OF ARTICLE 41 OF THE CONVENTION
15. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 16 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. {signature_p_2}
Ilse Freiwirth Tim EickeDeputy Registrar President

APPENDIX
List of applicants:
No. Applicant’s Name
Year of birth
Nationality
Place of residence
1. Vasil Tsvetanov LAZAROV
1957
Bulgarian
Blagoevgrad
2. Katya Tsvetanova KOSTADINOVA
1955
Bulgarian
Blagoevgrad
3. Miropa Nikolova LAZAROVA
1932
Bulgarian
Blagoevgrad

FOURTH SECTION
CASE OF LAZAROV AND OTHERS v. BULGARIA
(Application no. 27565/14)

JUDGMENT
STRASBOURG
16 November 2021

This judgment is final but it may be subject to editorial revision. In the case of Lazarov and Others v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Tim Eicke, President, Faris Vehabović, Pere Pastor Vilanova, judges,and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 27565/14) 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 29 March 2014 by 3 Bulgarian nationals, whose relevant details are listed in the appended table (“the applicants”);
the decision to give notice of the complaint concerning the duration of restitution proceedings to the Bulgarian Government (“the Government”), represented by their Agent, Ms M. Dimova, of the Ministry of Justice, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 19 October 2021,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. After L., father of the first and second applicants and husband of the third applicant (he passed away in 1997), had initiated restitution proceedings claiming a plot of agricultural land, in 1994 the local land commission informed him that restitution in kind was impossible and that he was entitled to compensation. In 2001 and 2011 the land commission took decisions concerning the compensation due. In a new decision issued on 28 June 2012 it refused once again restitution in kind. The applicants challenged this latter decision and it was quashed on 8 January 2013 by the Blagoevgrad District Court, which ordered restitution, holding that there were no impediments to it, and no grounds for the award of compensation. 2. As a matter of fact, however, in 1986 a sports complex had been constructed on the plot claimed by the applicants, and in 2006 the State had transferred the land to a private company. In September 2013 an official of the Cadastre Agency refused to register the applicants as the plot’s owners, referring to an objection by the company which had referred to its own ownership claims. The applicants have thus been unable to enter into possession of the land but have not brought proceedings against the company to defend their alleged title to property. There have been no relevant developments after 2013. 3. The applicants complained, relying on Article 6 § 1 of the Convention, of the excessive duration of the restitution proceedings. THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1
4. The complaint falls to be examined under Article 1 of Protocol No. 1 (see Popov and Chonin v. Bulgaria, no. 36094/08, §§ 33-34, 17 February 2015). 5. The Government argued that the applicants had failed to exhaust the available domestic remedies because: 1) they had failed to pursue the compensation procedure and thus bring about the swifter completion of the restitution proceedings, and 2) they had failed after 2013, if they considered that the appropriate path was nevertheless restitution in kind, to bring civil proceedings against the company holding their land. 6. While the procedural steps above appear to have been available to the applicants and could have offered a way out of the standstill obtained after 2013 (see for more details below), they would not, in themselves, have put an end to the restitution procedure, which would have nevertheless still taken time (see, for an overview of the applicable domestic law and the different decisions taken by the authorities, Zikatanova and Others v. Bulgaria, no. 45806/11, §§ 54-57, 12 December 2019). Moreover, any of the above remedies would not have made up for the delays in the procedure accumulated until 2011. Accordingly, the applicants’ failure to pursue them cannot lead to a conclusion that they failed to exhaust effective domestic remedies, as required under Article 35 § 1 of the Convention. 7. The application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 8. The “legitimate expectation” for the applicants’ ancestor and, accordingly, the applicants who are his heirs, to restitution or compensation arose in 1994 when the land commission acknowledged his rights in that regard. The restitution procedure had still not been completed, with either the actual transfer of possession of the plot or the award of specific compensation, by the time of the latest communication to the Court in December 2020, namely the Government’s observations on the admissibility and merits of the application. By that time the procedure had therefore lasted twenty-six years. 9. Significant delays were accumulated before 2011-13, when the different decisions concerning the applicants’ entitlement to compensation were taken at lengthy intervals of time. 10. After 2013 the procedure has come to a standstill, as the compensation path followed previously for many years was abandoned and restitution in kind was ordered, but the plot remained in the hands of a third party and such restitution was not finalised. The situation thus obtained was the result of the obviously contradictory actions of the authorities: in particular, the decision of the land commission of 28 June 2012 and the judgment of the Blagoevgrad District Court of 8 January 3013 re-opened the question of whether the applicants were, in principle, entitled to restitution in kind or to compensation, despite the matter having been apparently determined already in 1994. In addition, restitution in kind was ordered without the third party holding the land being given the opportunity to put forward and prove its competing claims, which inevitably created more delay, leaving the matter, in principle, to be determined in further proceedings (see the Court’s criticism in that regard in previous cases – Sivova and Koleva v. Bulgaria, no. 30383/03, §§ 115-18, 15 November 2011; Karaivanova and Mileva v. Bulgaria, no. 37857/05, §§ 79-81, 17 June 2014; Zikatanova and Others, cited above, § 123). 11. As to any delay attributable to the applicants, they could have, as mentioned above, pursued two procedural paths to advance effectively their restitution claim. They could have sought to keep the procedure in the compensation “track”, in particular by objecting on that ground to the land commission’s decision of 28 June 2012. Alternatively, if the applicants considered that they could indeed obtain restitution in kind, they could have brought proceedings against the company holding the land claimed by them. Despite such a course generating further delay (see the explanations in the previous paragraph), the fact remains that in the situation obtained after 2013 this was the available means to unblock and advance the procedure (see Zikatanova and Others, cited above, §§ 104-06). The applicants’ failure to pursue the avenue at issue appears to be the reason for the lack of any relevant developments after 2013. Lastly, if the applicants had been unsuccessful in proceedings against the company, the compensation option would have been open once again (see, for a similar situation, Nedelcheva and Others v. Bulgaria, no. 5516/05, §§ 21-22, 28 May 2013). 12. Yet, as already discussed, any action on the part of the applicants would not have necessarily brought about a swift end of the restitution procedure and further steps would have been necessary. Thus, they can be held only partially responsible for the delays in the procedure after 2011-13. 13. The delay caused through the authorities’ actions as discussed above remains significant, and the Government have provided no explanation for it, save a general reference to the complexity and importance of the process of restitution of agricultural land. While such considerations have been found to be valid (see, among others, Zikatanova and Others, cited above, § 122), they cannot entirely justify the delays in the restitution procedure in the present case. 14. There has accordingly been a violation of Article 1 of Protocol No. 1 on account of the excessive duration of the restitution procedure attributable to the authorities. APPLICATION OF ARTICLE 41 OF THE CONVENTION
15. The applicants did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award them any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 16 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. {signature_p_2}
Ilse Freiwirth Tim EickeDeputy Registrar President

APPENDIX
List of applicants:
No. Applicant’s Name
Year of birth
Nationality
Place of residence
1. Vasil Tsvetanov LAZAROV
1957
Bulgarian
Blagoevgrad
2. Katya Tsvetanova KOSTADINOVA
1955
Bulgarian
Blagoevgrad
3. Miropa Nikolova LAZAROVA
1932
Bulgarian
Blagoevgrad