I incorrectly predicted that there's no violation of human rights in CHENGELYAN AND OTHERS v. BULGARIA.
Information
- Judgment date: 2016-04-21
- Communication date: 2013-09-16
- Application number(s): 47405/07
- Country: BGR
- Relevant ECHR article(s): 6, 6-1, P1-1, P1-1-1
- Conclusion:
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings
Article 6-1 - Fair hearing)
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: 0.795026
- Prediction: No violation
Inconsistent
Legend
Communication text used for prediction
A list of the applicants, who are all Bulgarian nationals and are represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, is set out in the appendix.
A.
The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.
Ancestors of the applicants owned a plot of land of 246 square metres with a two-storey house built on it in the old part of Plovdiv.
In 1949 the building was declared a cultural monument and in 1966 the property was expropriated against the payment of compensation.
After that the building was the subject of renovation works, in particular after a fire destroyed a part of it in 1978.
After the adoption of the Restitution of Property Expropriated under Building Planning Legislation Act in 1992 (“the 1992 Act”, see “Relevant domestic law” below), some of the applicants and other heirs of the initial owners (from whom the remaining applicants succeeded in the course of the proceedings) applied for the revocation of the expropriation.
On 28 June 1993 they were informed that their application had been rejected by the mayor of Plovdiv and on 7 July 1993 they applied for judicial review.
In a judgment of 9 October 1997 the Plovdiv Regional Court upheld the administrative decision.
However, the decision was quashed by the Supreme Administrative Court which reversed on appeal, in a final judgment of 2 October 1998.
The Supreme Administrative Court found that the preconditions for restitution had been satisfied, because the property existed still and, in addition, no “public works” within the meaning of the 1992 Act had been commenced because the renovation works carried out after the expropriation had only been aimed at the building’s preservation and had not been a part of the implementation of urban development plans.
On this basis, the Supreme Administrative Court revoked the expropriation.
Following the above judgment, on 21 May 1999 the applicants paid back to the municipality the monetary compensation received by their ancestors at the time of expropriation.
In 2001 they obtained a notary deed, indicating them as the property’s owners.
Despite the developments above, the applicants could not enter into possession, because the property continued to be occupied by the Plovdiv municipality, together with an organisation called “13 Centuries Bulgaria” National Endowment Fund (“the Fund”, see “Relevant domestic law” below).
After attempting unsuccessfully to negotiate a solution with these bodies, on 31 December 2003 the applicants brought against them rei vindicatio proceedings.
The action was dismissed in a final judgment of the Supreme Court of Cassation of 8 June 2007.
The courts found, in the first place, that they were competent to examine the action.
According to the second-instance Plovdiv Regional Court, the judgment of 2 October 1998 could be subject to indirect judicial review, because it was replacing the mayor’s administrative decision on the applicants’ request for restitution and did not have a res judicata effect in proceedings whereby a civil dispute concerning the right to property was examined.
On the other hand, according to the Supreme Court of Cassation the defendants to the rei vindicatio action, namely the Plovdiv municipality and the Fund, had not participated in the earlier judicial proceedings and were thus not bound by the judgment of 2 October 2007.
The courts found, next, that the reparation works carried out in the building claimed by the applicants had been so substantial (its appearance had been preserved, but the internal construction had been largely modified; the roof, some windows and other elements had also been changed) that it could not be said that the building existed, within the meaning of the 1992 Act.
In addition, the property was being used for the purpose and the “public works” it had been expropriated for, namely “a cultural monument”.
Accordingly, none of the preconditions for restitution had been complied with.
B.
Relevant domestic law 1.
The 1992 Act The Restitution of Property Expropriated under Building Planning Legislation Act (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the 1992 Act”) was adopted in 1992.
It provided, in section 1(1), for the revocation of previous expropriations and the restitution of property where certain criteria had been met, in particular where the public works for which the property had been expropriated had not commenced and where any buildings on the property were still existing at the time of the Act’s entry into force.
The applicants have submitted two judgments (Решение No 805 от 8 април 1994 г. по адм.
д.
No 160/93 г., ІІІ г. о.; Решение No 460 от 15 декември 1993 г. по адм.
д.
No 2171/92 г., ІІІ г.
о.
), where the former Supreme Court of Bulgaria found that the “public works” within the meaning of section 1(1) of the Act always involved the demolition of the expropriated building; where the building was standing, even with substantial improvements carried out after the expropriation, it could not be considered that the preconditions for restitution were not met.
The 1992 Act provided further that where the previous owner had received monetary compensation at the time of expropriation, restitution would only take effect upon repayment of the sum received (section 6(1)).
A request for the revocation of expropriation had to be addressed to the mayor of the municipality, whose refusal (express or tacit) was amenable to judicial review.
2.
The “13 Centuries Bulgaria” National Endowment Fund Act That Act (Закон за Националния дарителски фонд “13 века България”), adopted in 2001, provides that the “13 Centuries Bulgaria” National Endowment Fund (“the Fund”) is an organisation tasked with receiving and managing donations from local and foreign persons made in support of Bulgarian education, science, culture, health and other social activities.
The Fund is governed by a board, which includes the ministers of culture, health, education and labour.
One of them is selected by the Council of Ministers to serve as the board’s president.
The remaining members of the board are appointed by the Council of Ministers upon a proposal by the Prime Minister.
Apart from donations, the Fund’s activities are also financed by the State budget.
3.
Provisions concerning the res judicata effect of final judgments The relevant provisions have been summarised in the Court’s judgment in the cases of in the case of Kehaya and Others v. Bulgaria (nos.
47797/99 and 68698/01, §§ 34-55, 12 January 2006) and Sivova and Koleva v. Bulgaria (no.
30383/03, §§ 57-60, 15 November 2011).
COMPLAINTS The applicants complain under Article 6 § 1 of the Convention that the national courts examining their rei vindicatio action disregarded the binding force of the Supreme Administrative Court’s judgment of 2 October 1998.
The applicants rely on the Court’s findings in the case of Kehaya and Others, cited above.
They argue, in addition, that the provision of section 1(1) of the 1992 Act was unclear as to the exact meaning of the conditions for restitution.
The applicants also complain under Article 1 of Protocol No.
1 that the national courts’ judgments in the rei vindicatio proceedings unlawfully deprived them of property acquired pursuant to the judgment of 2 October 1998.
The applicants rely in addition on Article 13 of the Convention.
Judgment
FIFTH SECTIONCASE OF CHENGELYAN AND OTHERS v. BULGARIA
(Application no. 47405/07)
JUDGMENT
(Merits)
STRASBOURG
21 April 2016
FINAL
21/07/2016
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Chengelyan and Others v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Angelika Nußberger, President,Ganna Yudkivska,Khanlar Hajiyev,André Potocki,Yonko Grozev,Síofra O’Leary,Mārtiņš Mits, judges,and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 15 March 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 47405/07) 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”) by seven Bulgarian nationals, Ms Madlen Magardich Chengelyan, Ms Viktoria Takvor Chengelyan, Mr Eduard Takvor Chengelyan, Mr Manuk Garo Chengelyan, Ms Anaiys Hampartsum Shirin, Mr Ehisapert Ardavast Hintyan and Ms Asthig Hampartsum Bedrosyan (“the applicants”), on 24 September 2007. 2. Ms Anaiys Hampartsum Shirin passed away on 19 January 2014. Her heirs, Mr Barkev Kamer Shirin, Mr Kamer Barkev Shirin and Ms Araksi Barkev Shirin-Junglas, expressed a wish to continue the application in her stead. 3. The applicants were represented by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice. 4. The applicants alleged that the domestic courts had failed to respect the res judicata effect of an earlier court judgment in judicial proceedings they had initiated in the context of a dispute regarding restitution of property, and that this had resulted in an unlawful interference with their property rights. 5. On 16 September 2013 the above complaints under Article 6 § 1 and Article 1 of Protocol No. 1, were communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were born in 1950, 1979, 1988, 1958, 1947, 1927 and 1932 respectively. They live in Plovdiv, apart from Ms Asthig Hampartsum Bedrosyan, who lives in New York, United States of America. Before her death in 2014, Ms Anaiys Hampartsum Shirin lived in Burgas. 7. Ancestors of the applicants owned a plot of land measuring 246 square metres in the old part of Plovdiv, which had a two-storey house built on 160 square metres of it. In 1949 the building was declared a cultural monument. In 1966 the property was expropriated and the applicants’ ancestors received compensation. After that, the building was the subject of substantial renovation work, in particular after a fire destroyed part of it in 1978. A. Restitution of the property
8. After the adoption of the Restitution of Property Expropriated under Building Planning Legislation Act (“the Restitution Act”) in 1992 (see paragraph 15 below), some of the applicants and other heirs of the original owners (from whom the remaining applicants succeeded in the course of the domestic proceedings) applied for the revocation of the expropriation. On 28 June 1993 they were informed that their application had been refused by the mayor of Plovdiv municipality, and on 7 July 1993 they applied for judicial review of that refusal. In a judgment of 9 October 1997 the Plovdiv Regional Court upheld the administrative decision. 9. However, in a final judgment of 2 October 1998 the Supreme Administrative Court reversed. It found that the applicants’ property had been taken under legislation regulating expropriations made with a view to carrying out public works, namely expropriations intended to be followed by the construction of new buildings or infrastructure. The property in issue, however, had been declared a cultural monument, and had been expropriated to be used as such, thus the expropriation had been in breach of the law. The fact that no construction work had ever been envisaged had to be assimilated to a situation where no public works within the meaning of the Restitution Act had ever been commenced. In addition, the renovation work carried out after the expropriation did not represent “public works” either, as it had only aimed to preserve the building. Lastly, it was noted that the property still existed. All of those factors meant that the preconditions for restitution had been fulfilled. On this basis, the Supreme Administrative Court revoked the expropriation, quashing the mayor’s refusal in that regard. 10. Following the above judgment, in order to make the restitution effective (see paragraph 16 below), on 21 May 1999 the applicants paid back to the municipality the monetary compensation received by their ancestors at the time of the expropriation. The parties disagreed as to whether the applicants had also received compensation in the form of other property at the time of the expropriation, and whether they had to return that as well. 11. In 2001 the applicants obtained a notarial deed, which named them as the property’s owners. B. Rei vindicatio proceedings
12. Despite the events described above, the applicants could not take possession of the property, because it was being held and used by the Plovdiv municipality, which in 1997 had declared it a public municipal property and had rented a room in the building to an organisation called “13 Centuries Bulgaria” National Endowment Fund (“the Fund”, see paragraphs 19-20 below). 13. After unsuccessfully attempting to negotiate an agreement, in December 2003 the applicants brought rei vindicatio proceedings against the Plovdiv municipality and the Fund. The action was dismissed by a final judgment of the Supreme Court of Cassation of 8 June 2007. In the first place, the domestic courts found that they were competent to examine the action. According to the second-instance Plovdiv Regional Court, the judgment of 2 October 1998 was open to indirect judicial review, because it was replacing the mayor’s administrative decision on the applicants’ request for restitution, and did not have a res judicata effect in proceedings specifically concerning the right to property. According to the Supreme Court of Cassation, the defendants to the rei vindicatio action, namely the Plovdiv municipality and the Fund, had not participated in the earlier judicial proceedings and therefore were not bound by the judgment of 2 October 1998. 14. Next, the domestic courts found that the reparation work carried out on the building which the applicants were claiming had been so substantial (the building’s appearance had been preserved, but the internal construction had been largely modified – the roof, some windows and other elements had also been replaced) that, within the meaning of the Restitution Act, it could not be said that the building still existed. In addition, the property was being used for the purpose for which it had been expropriated, namely as “a cultural monument”, which, in the courts’ view, constituted “public works” within the meaning of the same Act. Accordingly, none of the preconditions for restitution had been satisfied. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Restitution Act
15. The Restitution of Property Expropriated under Building Planning Legislation Act (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the Restitution Act”) was adopted in 1992. In section 1(1) it provided for the revocation of previous expropriations and the restitution of property where certain criteria had been met, in particular where the public works for which the property had been expropriated had not commenced, and where any buildings on the property still existed at the time of the Act’s entry into force. 16. Restitution could only take effect upon the return of any compensation received at the time of expropriation (sections 5(1) and 6(1) of the Act). 17. A request for the revocation of an expropriation had to be addressed to the mayor of the relevant municipality, whose refusal (express or tacit) was open to judicial review. B. Local Self‐Government and Local Administration Act
18. Sections 38(1) and 44(1) of the Local Self-Government and Local Administration Act (Закон за местното самоуправление и местната администрация) provide that a mayor is a “body of executive power” of the municipality, who “represents the municipality against individuals and legal entities and before the courts”. C. The “13 Centuries Bulgaria” National Endowment Fund
19. The Fund is an organisation tasked with receiving and managing donations from local and foreign persons made in support of Bulgarian education, science, culture, health and other social activities. It is also financed by the State budget. 20. Until 2001 its status was regulated by a Council of Ministers decree adopted in 1983, which provided, inter alia, that the Fund was an entity “attached to the Council of Ministers”, that its managing board was to be governed by the Minister of Culture, and that the board’s remaining members were to be appointed by the Prime Minister. In 2001 Parliament adopted the “13 Centuries Bulgaria” National Endowment Fund Act (Закон за Националния дарителски фонд “13 века България”), which provides for a similar scheme: the Fund is governed by a board, which includes the ministers of culture, health, education and labour, and the remaining members are appointed by the Council of Ministers. D. Provisions concerning the res judicata effect of final judgments
21. The relevant provisions have been summarised in the Court’s judgments in the cases of Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, §§ 34-55, 12 January 2006), and Sivova and Koleva (no. 30383/03, §§ 57-60, 15 November 2011). THE LAW
I. PRELIMINARY QUESTION
22. One of the applicants, Ms Anaiys Hampartsum Shirin, passed away on 19 January 2014 while the case was pending before the Court, and her heirs, Mr Barkev Kamer Shirin, Mr Kamer Barkev Shirin and Ms Araksi Barkev Shirin-Junglas, expressed their wish to pursue the application on her behalf (see paragraph 2 above). It has not been disputed that they are entitled to do so, and the Court sees no reason not to accede to their request (see Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005, and Donka Stefanova v. Bulgaria, no. 19256/03, § 11, 1 October 2009). II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
23. The applicants complained under Article 6 § 1 of the Convention that the national courts examining their rei vindicatio action had disregarded the binding force of the Supreme Administrative Court’s judgment of 2 October 1998. The applicants relied on the Court’s findings in the case of Kehaya and Others (cited above). 24. In addition, the applicants complained that section 1(1) of the Restitution Act was unclear as to the exact meaning of the conditions for restitution, allowing for, as in their case, diverging interpretations. 25. In so far as applicable, Article 6 § 1 of the Convention reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Arguments of the parties
26. The Government contested the complaints. They argued that the courts which had dealt with the rei vindicatio proceedings had been competent to examine the applicants’ claims against the Plovdiv municipality, because the municipality “had not participated” in the first set of proceedings concerning the restitution of the plot, “was not bound” by the Supreme Administrative Court’s judgment of 2 October 1998, and had no other means of protecting its property rights. The Government also submitted that the mayor of Plovdiv, whose decision the applicants had challenged in the restitution proceedings, “had not been acting for the municipality” in the 1993-98 restitution proceedings. They added that the judgment of 2 October 1998 was replacing the mayor’s administrative decision on the applicants’ request for restitution, and was thus open to indirect judicial review. The Government pointed out that the Fund – named as the second defendant to the applicants’ rei vindicatio claim – was not bound by the judgment of 2 October 1998 either. Lastly, the Government contended that the domestic courts’ conclusions in the rei vindicatio proceedings had been correct and duly based on the evidence in the case. 27. The applicants disagreed. They argued that the Plovdiv municipality had sought to receive a “second chance” to have the applicants’ entitlement to restitution examined, without relying on any new facts. They contended that the municipality could not be considered to have been a third party to the restitution proceedings and, on the contrary, was bound by the judgment of 2 October 1998; the distinction made by the Government between the mayor and the municipality was, in their view, “artificial”. The applicants also pointed out that in the two sets of proceedings in issue the courts had examined exactly the same matter, and only the manner in which they had interpreted and applied the law had differed. 28. As to the Fund, the applicants pointed out that it was only renting a room in the disputed building, and had never claimed any property rights. Moreover, it was “an entirely public institution” under State control. 29. Lastly, the applicants reiterated their argument that the applicable provisions of the Restitution Act had been unclear, thus allowing for conflicting interpretations. B. The Court’s assessment
1. Admissibility
30. The Court notes that the complaint under Article 6 § 1 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits
(a) Res judicata
31. The Court reiterates that the right to a fair hearing under Article 6 § 1 of the Convention, interpreted in the light of the principles of the rule of law and legal certainty, encompasses the requirement that, where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‐VII; Oferta Plus S.R.L. v. Moldova, no. 14385/04, § 97, 19 December 2006; and Kehaya and Others, cited above, § 61). 32. The Court has already examined a complaint similar to the one at hand in the case of Kehaya and Others (cited above, §§ 59-70), which concerned the application of legislation to agricultural land, and in the case of Decheva and Others v. Bulgaria (no. 43071/06, 26 June 2012, §§ 39-45), which concerned the same legislation considered in the present case. In both those cases, final judgments restoring the applicants’ rights over different properties had been rendered devoid of any legal effect, because in separate proceedings the question of whether the State, respectively the municipality, or the applicants were the owners of the properties had been re-examined and decided differently. In those circumstances, the Court found that the State (the municipality) had been provided with a “second chance” to obtain a re-examination of a dispute already determined by a final judgment in a previous set of proceedings. In both cases the Court went on to find violations of Article 6 § 1 of the Convention, on the grounds that, by depriving final judgments in favour of the applicants of any legal effect, the authorities had acted in breach of the legal certainty principle inherent in that provision. 33. Similarly, in the present case, even though the judgment of 2 October 1998 allowing the applicants’ restitution claims was not quashed, it was rendered devoid of any legal effect, because in the subsequent rei vindicatio proceedings the national courts found that the restitution had not taken place. The courts examining the rei vindicatio claims gave two reasons for concluding that they had jurisdiction to review the matter and that the judgment of 2 October 1998 had no res judicata effect in the proceedings before them (see paragraph 13 above). Firstly, they pointed out that that judgment was replacing the mayor’s administrative decision on the applicants’ request for restitution, which meant that it was open to indirect judicial review. Secondly, they considered that the defendants to the rei vindicatio action had not participated in the initial judicial proceedings. The Government put forward the same arguments in their submissions to the Court, adding that the mayor “had not been acting” for the municipality in the 1993-98 restitution proceedings (see paragraph 26 above). 34. It is not the Court’s task here to examine in abstracto the legal theory underlying the Restitution Act and the nature of the proceedings initiated by the applicants in 1993. It must limit its analysis to the question of whether or not the application of the law in these particular circumstances resulted in a violation of the applicants’ right to a fair trial interpreted in light of the principle of legal certainty (see Kehaya and Others, cited above, § 65). It must take into account the fact that the judgment of 2 October 1998 was the result of contentious proceedings before two levels of jurisdiction, including the Supreme Administrative Court. The principle of legal certainty dictates that, where a civil dispute is examined on the merits by competent courts, it should be decided once and for all (ibid., § 68). 35. There does not appear to be a dispute between the parties that the courts examined the same matter in the two sets of proceedings at issue, namely whether the preconditions for the restitution of the property claimed by the applicants under the 1992 Restitution Act had been satisfied. The salient question is thus whether the same parties were involved in the re‐examination. In answering this question, the Court will not consider the Fund’s participation in the second set of proceedings determinative, in view of the fact that it was only renting a room in the disputed building, did not claim any property rights, and that its interest in the proceedings was the defence of its possession of that room (see, a contrario, Tantilovi v. Bulgaria (dec.), no. 39351/05, 13 January 2015, where the tenant combatting a rei vindicatio claim had rented the building in question for many years and had made substantial improvements to it). The key question when deciding the present complaint is thus whether the Plovdiv municipality could be considered to have participated in the 1993-98 proceedings and, accordingly, to have been bound by the judgment of 2 October 1998. 36. In the proceedings initiated in 1993 the applicants sought the judicial review of an order of the mayor of Plovdiv rejecting their restitution claims (see paragraph 8 above); accordingly, the parties to those proceedings were the applicants and the mayor. In the subsequent rei vindicatio proceedings the applicants brought their claims against the Plovdiv municipality (see paragraph 12 above). Even though the mayor of Plovdiv and the Plovdiv municipality may have exercised different functions in respect of municipal property and the question of restitution, this does not alter the fact that they were different emanations of the same local authority (see Decheva and Others, cited above, § 42). In addition, it is significant that, pursuant to the Local Self‐Government and Local Administration Act, the mayor is a “body of executive power” of the municipality, who “represents the municipality against individuals and legal entities and before the courts” (see paragraph 18 above). 37. Accordingly, the Court concludes that the national courts re‐examined the same matter in the rei vindicatio proceedings, namely whether the preconditions for restitution had been fulfilled, and that the same parties – the applicants and the Plovdiv municipality – were involved in the proceedings. Thus, the courts provided the municipality with a “second chance” to have the matter – which had already been decided upon in earlier contentious proceedings – determined in its favour (see Kehaya and Others, § 69, and Decheva and Others, § 43, both cited above). 38. The foregoing considerations are sufficient to enable the Court to conclude that the principle of legal certainty inherent in Article 6 § 1 of the Convention was infringed in this case. (b) Lack of clarity of the applicable legislation
39. In view of the conclusion above, the Court does not consider it necessary to also determine whether the conflicting conclusions of the national courts in the two sets of proceedings being examined were, as argued by the applicants (see paragraphs 24 and 29 above), the result of unclear legislation. (c) Conclusion under Article 6 § 1
40. In view of the foregoing, the Court concludes that there has been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
41. Relying on Article 1 of Protocol No. 1 and Article 13 of the Convention, the applicants also complained that they were unfairly deprived of their property. 42. The Court is of the view that the complaint is most appropriately examined under Article 1 of Protocol No. 1 alone, which reads:
“Every 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. 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.”
A. Arguments of the parties
43. The Government argued that any interference with the applicants’ property rights had been justified, because the building claimed by them had been declared a cultural monument and registered as public municipal property, together with the plot of land. The Government stated once again that the national courts had correctly concluded that the preconditions for the property’s restitution had not been fulfilled. 44. The applicants disagreed. They argued that they had been deprived of their possessions in breach of the principle of legal certainty, and thus not “subject to the conditions provided for by law”, as provided by Article 1 of Protocol No. 1. B. The Court’s assessment
45. The Court observes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible. 46. The applicants’ property rights over their ancestors’ plot of land and building were restored with the final judgment of 2 October 1998. In order to make the restitution effective, the applicants returned the monetary compensation received at the time of the expropriation to the municipality (see paragraph 10 above). The parties disagreed as to whether the applicants had also received compensation in the form of other property, and whether they had to return that as well (see paragraph 10 above). The Court considers this latter question irrelevant. What matters is that, in the subsequent domestic proceedings, the courts did not rely on any failure on the part of the applicants to return the compensation received. It is also significant that in 2001 the applicants obtained a notarial deed naming them as the property’s owners (see paragraph 11 above). Notwithstanding the fact that they never took possession of the property claimed, the above information is sufficient for the Court to conclude that the applicants had “possessions” within the meaning of Article 1 of Protocol No. 1. 47. The national courts’ judgments in the rei vindicatio proceedings constituted an interference with the applicants’ “possessions”, in that the courts did not recognise them as the owners of the disputed property and dismissed their rei vindicatio claim. 48. The Court finds that it is not necessary to decide whether that interference amounted to a deprivation of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. It observes that this rule is only concerned with a particular instance of interference with the right to peaceful enjoyment of property, and must be construed in the light of the principle enunciated in the first sentence of the first paragraph. The Court will therefore examine the interference in the light of the first sentence of the first paragraph of Article 1 of Protocol No. 1 (see Decheva and Others, cited above, § 56). 49. The Court has already found that the authorities in the case acted in breach of the legal certainty principle inherent in Article 6 § 1 of the Convention (see paragraphs 36-38 above). In Kehaya and Others (§§ 75-76 of the judgment) and Decheva and Others (§ 57), both cited above, where the Court reached a similar conclusion, it concluded that the interference could consequently not be deemed lawful under the Convention, not least because of the fundamental nature of the principle of rule of law in a democratic society, of which the legal certainty principle forms part and which is inherent in all the Articles of the Convention. The Court sees no reason to reach a different conclusion on the facts of the instant case. Like the two earlier cases, this case is not about the re-opening of civil proceedings within the time-limits and under the conditions regulated by law, but about a failure to recognise the res judicata effect of a final judgment delivered in contentious proceedings. 50. The above is, in principle, sufficient for the Court to conclude that the interference with the applicants’ “possessions” fell foul of the requirements of Article 1 of Protocol No. 1. 51. Nevertheless, the Court also takes note of the facts put forward by the Government to justify that interference, namely that the building claimed by the applicants was a cultural monument and that the whole property was registered as public municipal property (see paragraph 43 above). However, the Government have not shown that there was any statutory obstacle to private individuals owning cultural monuments. Moreover, the building in issue was declared such a monument in 1949 and was privately owned until 1966 (see paragraph 7 above); the fact that it was a monument was known to the Supreme Administrative Court (which delivered the judgment of 2 October 1998), and was not considered an obstacle to restitution. As to the 1997 decision declaring the land and the building public municipal property (see paragraph 12 above), it was issued by the municipality itself, and it has not been shown that it could be validly opposed to the applicants’ claims. 52. It follows from the above that there has been a violation of Article 1 of Protocol No. 1 in this case. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
53. Article 41 of the Convention provides:
“If 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.”
A. Pecuniary damage
54. The applicants claimed the actual restitution of their property under this head. In case the authorities failed to restore the property to them, they claimed 587,000 euros (EUR) in respect of its value. The applicants presented a valuation report prepared by an expert in March 2014, which indicated this amount as the property’s market value. 55. The Government contested the claim. 56. The Court is of the view that the question of the application of Article 41, in so far as it concerns pecuniary damage, is not ready for a decision (Rule 75 § 1 of the Rules of Court). Accordingly, the Court reserves that question and the further procedure, and invites the Government and the applicants, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, to submit their observations on the matter and, in particular, to inform it of any agreement that they may reach. B. Non-pecuniary damage
57. The applicants also claimed EUR 10,000 each in respect of non‐pecuniary damage. They argued that they had suffered distress and frustration for many years. 58. The Government contested this claim. In particular, they urged the Court not to award non-pecuniary damages to Ms Anaiys Hampartsum Shirin, who passed away in 2014 and whose heirs continued the procedure in her stead (see paragraph 2 above), contending that such damages could only be awarded intuitu personae. 59. As concerns the Government’s objection, the Court observes that it has already awarded non-pecuniary damages to an applicant who passed away during proceedings before it, holding that the award was to be paid to the person’s heirs (see Lukanov v. Bulgaria, 20 March 1997, § 53, Reports of Judgments and Decisions 1997‐II, and Baragan v. Romania, no. 33627/96, § 49, 1 October 2002). In the Court’s view, it would be unfair to hold otherwise in the present case. 60. The Court is of the view that the applicants must have suffered distress and frustration as a result of the violations of their rights. Judging on an equitable basis, it considers it appropriate to award EUR 2,000 to each of them in respect of non-pecuniary damage. The award in respect of Ms Anaiys Hampartsum Shirin is to be paid to her heirs, whose names are indicated in paragraph 2 above. C. Costs and expenses
61. The applicants also claimed 5,168 Bulgarian levs (BGN) in respect of costs and expenses incurred in the domestic rei vindicatio proceedings. In support of this claim, they submitted receipts from their lawyers, dated 2000, 2005 and 2006 respectively, indicating that the applicants had paid them BGN 4,920 in total (the equivalent of EUR 2,510) for legal representation. In addition, the applicants referred to the judgments given by the national courts, whereby they had been ordered to pay the defendants BGN 248 in costs and expenses. 62. In respect of the proceedings before the Court, the applicants claimed EUR 5,495 for the legal work carried out by their legal representatives. In support of this claim, they submitted a time sheet. They also claimed EUR 58.35 for postage and administrative expenses, of which EUR 27.35 was for postage, substantiated by the relevant invoices. The applicants claimed a further EUR 200 for translation, presenting a contract whereby their representatives had undertaken to pay this amount. The applicants requested that the amounts above, less the BGN 2,000 (EUR 1,020) which they had already paid to their representatives, be transferred directly into their representatives’ bank account. 63. Lastly, the applicants claimed BGN 800 (the equivalent of about EUR 408) which they had paid for the valuation report presented in support of their claim for pecuniary damages (see paragraph 54 above). 64. The Government argued that it had not been shown that the claims concerning the costs and expenses in the domestic proceedings had been actually incurred. As to the remainder, they argued that the amount claimed for legal representation in the proceedings before the Court was excessive, and that the expenses incurred in obtaining an expert valuation of the disputed property had been unnecessary. 65. According to the Court’s 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. 66. In the present case, the Court considers that the expenses incurred in the domestic proceedings (see paragraph 61 above) were necessary, as in those proceedings the applicants were trying to prevent the violations of their rights which the Court has found. Accordingly, the Court awards these expenses to the extent that they have been substantiated, namely EUR 2,510, the applicants not having shown that they actually paid the remainder. 67. As to the costs and expenses claimed in respect of the current proceedings (see paragraph 62 above), firstly, the Court is of the view that the expenses for legal representation were actually and necessarily incurred. However, it considers this part of the claim exaggerated, particularly given the existence of established case-law on the matter, and finds it reasonable to award the applicants EUR 2,500 under this head. Next, the Court awards the amount shown to have been incurred for postage and translation, namely EUR 227.35 in total. The applicants have already paid EUR 1,020 for legal representation. Accordingly, as requested by them, the amounts awarded in this paragraph, less the sum already paid by them, that is EUR 1,707.35, are to be transferred directly into the bank account of their legal representatives. 68. Lastly, the Court considers that the sum paid by the applicants for a valuation report, EUR 408, was also a necessary and reasonable expense. It therefore awards it in full. D. Default interest
69. The 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. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article 1 of Protocol No. 1;
4. Holds that the question of the application of Article 41, in so far as it concerns the claim for pecuniary damages, is not ready for decision;
accordingly,
(a) reserves the said question;
(b) invites the Government and the applicants to submit, within four months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, their written observations on the matter and to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be;
5. Holds
(a) that the respondent State is to pay the applicants (in respect of Ms Anaiys Hampartsum Shirin – to her heirs), within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) to each applicant, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) jointly to all applicants, EUR 5,645.35 (five thousand six hundred and forty-five euros and thirty-five cents), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, EUR 1,707.35 (one thousand seven hundred and seven euros and thirty-five cents) of which to be transferred directly into the bank account of the applicants’ representatives;
(b) that 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;
6. Dismisses the remainder of the applicants’ claims for non-pecuniary damages and costs and expenses. Done in English, and notified in writing on 21 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia WesterdiekAngelika NußbergerRegistrarPresident