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

Judgment

FIFTH SECTION

CASE OF KAMENOVA v. BULGARIA

(Application no. 61731/11)

JUDGMENT

STRASBOURG

16 May 2019

This judgment is final but it may be subject to editorial revision. In the case of Kamenova v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Gabriele Kucsko-Stadlmayer, President,Yonko Grozev,Lado Chanturia, judges,and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 23 April 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 61731/11) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Hristina Georgieva Kamenova (“the applicant”), on 9 September 2011. 2. The applicant was represented by her husband, Mr S. Kamenov. The Bulgarian Government (“the Government”) were represented by their Agent, Ms V. Hristova, of the Ministry of Justice. 3. On 4 April 2018 notice of the application was given to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1947 and lives in Vratsa. 5. In 1991, following the adoption of the Agricultural Land Act which provided, inter alia, for the restitution of formerly collectivised land, the applicant applied for the restitution of land previously owned by her father. 6. In a decision of 20 May 1996 the competent body, the Oryahovo land commission, held that the heirs of the applicant’s father (the applicant and her sister) were entitled to the restitution of, inter alia, a plot of land of 11,800 square metres enlisted as “forest”. The decision indicated that the heirs of the applicant’s father had established his property title with a notarial deed. It stated additionally that the plot of land was “situated in an area under section 4”. 7. That provision (section 4 of the transitional provisions of the Agricultural Land Act, hereinafter “section 4”) concerns plots of land which were offered by the Communist authorities for use of private persons, and stipulates that those persons’ right of use is to be discontinued. Under further conditions, those plots are subject to restitution in favour of the pre‐collectivisation owners. Such restitution is to be carried out after the elaboration of a detailed cadastral plan of the respective area and, on its basis, a so-called plan of the newly-created plots. 8. During the years after 1996 the applicant kept sending letters to different bodies, seeking the completion of the restitution procedure. She was informed that she had to await the elaboration of the above-mentioned plans. 9. Such plans for the territory of the Oryahovo municipality were prepared and approved by the relevant authorities in 2010. 10. In 2012, responding to a letter from the applicant, the Ministry of Agriculture and Forests informed her that the completion of the restitution procedure as concerns plots under section 4 was within the competence of the municipality. 11. The applicant contacted the municipality, which informed her in a letter of 23 April 2013 that her plot was not situated within the boundaries of the area concerned by section 4 and not covered by the plan of the newly‐created plots. Thus, the municipality was not competent to take any decision to finalise the restitution procedure. It informed the applicant that the plot claimed by her was considered State property and was held and managed by the Ministry of Agriculture and Forests. 12. After the applicant contacted once again the Ministry, it informed her, in an undated letter, that she was to address its local branch, the Oryahovo Agriculture Department (former land commission). 13. The applicant wrote to the Oryahovo Agriculture Department, requesting it to finalise the restitution procedure and transfer to her possession of her father’s plot. In a letter dated 21 August 2013 the Department, while confirming that the municipality had no competence as concerns this plot, explained that the applicant had had to do one of the following: either have the exact borders of her plot identified in a different procedure, which had already been completed, concerning land which is not covered by section 4; or apply for the restitution of the land under the Forests Restitution Act, for which the relevant time-limits had already expired (see paragraph 22 below). 14. In another letter dated 11 April 2017, replying to a further request by the applicant to finalise the restitution procedure, the Oryahovo Agriculture Department stated that its decision of 20 May 1996, indicating that the applicant’s plot was covered by section 4 and was to be restituted under the procedure concerning such plots, was final, and that the time-limit for seeking its revocation or rectification had expired. 15. In a further undated letter, replying to a fresh complaint by the applicant, the Ministry of Agriculture and Forests instructed her to submit a written request under section 45d of the Regulations on the Application of the Agricultural Land Act (hereinafter “section 45d”, see paragraph 21 below). 16. On 5 June 2017 the Vratsa Regional Directorate of Agriculture (superior body of the Oryahovo Agriculture Department) instructed the applicant to submit to the Agriculture Department the relevant documents concerning the plot of land. The same was reiterated by the Ministry of Agriculture and Forests on 30 August 2017, after it was once again contacted by the applicant. 17. On 8 September 2017 the Oryahovo Agriculture Department sent a letter to the applicant, listing the documents she needed to submit to enable the completion of the restitution procedure. These were: a written request under section 45d; an inheritance certificate; notarial deeds, court decisions and any other documents establishing the title to property; documents sent to the applicant by the Oryahovo municipality concerning the procedure under section 4; a plan prepared by a certified geodesist, indicating the exact borders of the plot of land. 18. On 19 September 2017 the applicant submitted a written request under section 45d, which was not accompanied by the remaining documents. 19. The necessity to submit those documents was reiterated in three additional letters sent to the applicant by the Oryahovo Agriculture Department, dated 23 October and 15 and 23 November 2017. In the meantime, the Department requested ex officio from the municipality any relevant documents concerning the procedure conducted by the latter under section 4. It appears that there were no other relevant developments after that. II. RELEVANT DOMESTIC LAW
20. The restitution provisions of the Agricultural Land Act (Закон за собствеността и ползването на земеделските земи) have been summarised in Lyubomir Popov v. Bulgaria (no. 69855/01, §§ 83-95, 7 January 2010). In addition, the procedure concerning the restitution of plots under section 4 of the transitional provisions of that Act has been described in Naydenov v. Bulgaria (no. 17353/03, §§ 21-42, 26 November 2009). 21. Further restitution provisions are contained in the Regulations on the Application of the Agricultural Land Act (Правилник за прилагане на Закона за собствеността и ползването на земеделските земи), adopted by the Government in 1991. In particular, section 45d stipulates that, after a decision recognising the right to restitution has entered into force, the interested persons are to address a written request to the respective Agriculture Department to adopt a decision ordering the restitution. Such decision can only be taken after the exact borders of the individual plot concerned have been traced. 22. The Forests Restitution Land Act (Закон за възстановяване на собствеността върху горите и земите от горския фонд) was enacted in 1997. It set out the conditions for the restitution of forestry land. By section 13(1) of that Act, former owners could apply for such restitution before 30 June 1999. By section 13(2), those who had missed that time-limit could instead of that bring an action against the respective land commission (later Agriculture Department) to establish their entitlement to restitution. That latter possibility was revoked in 2007. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
23. The applicant complained, relying on Articles 6 § 1 and 7 of the Convention and Article 1 of Protocol No. 1, that the restitution procedure concerning her plot, already lasting for a lengthy period of time, had not yet been finalised. 24. The Court is of the view that the complaint falls to be examined under Article 1 of Protocol No. 1 alone, which reads as follows:
“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. Admissibility
25. The Government argued that the Oryahovo land commission’s decision of 20 May 1996, recognising the applicant’s right to restitution, was null and void, since the land claimed by her was forested, and as such was not subject to restitution under the Agricultural Land Act, but under the Forest Restitution Act. Moreover, relying on the Court’s decision in the case of Danailov and Others v. Bulgaria ((dec.), no. 47353/06, 10 February 2015), the Government contended that the land commission’s decision at issue could not, in itself, give rise to a “legitimate expectation” to restitution. Accordingly, the Government concluded that the applicant could not claim to have a “legitimate expectation” to obtain restitution, and did not thus have any “possession” within the meaning of Article 1 of Protocol No. 1, which was inapplicable. 26. The applicant disagreed, pointing out that the decision of 20 May 1996 had never been found to be null and void by a court, and that even the Oryahovo Agriculture Department had stated in its letter of 11 April 2017 addressed to her that the decision at issue was final and irrevocable. 27. Under the Court’s case law, an applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the case relates to his or her “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, among other authorities, Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX). 28. In the case at hand, in a decision dated 20 May 1996 the Oryahovo land commission held that the applicant was entitled to the restitution of her father’s former property (see paragraph 6 above). It is not the Court’s task to assess whether this decision was taken in accordance with national law, in particular whether the restitution of the particular plot of land fell within the scope of the Agricultural Land Act. It suffices to note that the decision of 20 May 1996 was never challenged at the domestic level, and that, on the contrary, the national authorities seemed to agree that the applicant was entitled to restitution on its basis and sought to assist her in the realisation of that entitlement. 29. Furthermore, the Court cannot agree with the Government’s argument that a restitution decision such as the one at issue, which is final under domestic law and has not been contested – by the State or by a third party claiming rights over the same land – is insufficient to give rise to a “legitimate expectation”. In similar cases against Bulgaria it already held that administrative decisions of the land commissions, unchallenged by other parties, were sufficient in that regard, even though the exact scope of the applicants’ entitlement under the restitution legislation remained to be determined (see, for example, Naydenov, cited above, §§ 68‐70; Vasilev and Doycheva v. Bulgaria, no. 14966/04, §§ 41-43, 31 May 2012; Popov and Chonin v. Bulgaria, no. 36094/08, § 43, 17 February 2015). The present case should be differentiated from Danailov and Others (cited above), relied on by the Government, where the applicants’ entitlement to restitution had been contested on a continuous basis, and where the national courts denied eventually any such entitlement (see in particular §§ 7, 9-11, 14-18 and 46 of the decision). 30. Accordingly, the Court dismisses the Government’s objection concerning the application’s compatibility ratione materiae, finding that the decision of 20 May 1996 gave rise to a “legitimate expectation” to restitution for the applicant and entitled her to have the restitution procedure completed. She had a “possession” within the meaning of Article 1 of Protocol No. 1, which is therefore applicable. 31. The Court notes in addition that the application is not manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
32. The Government argued that the failure to complete the restitution procedure could not be imputed to the authorities. The latter had assisted the applicant in the realisation of her restitution rights and had instructed her on the procedural steps to be taken, but she had failed to comply with the requirements. 33. The applicant, for her part, blamed the authorities, considering that they were refusing to complete the restitution procedure, and that they had exchanged with her “meaningless” correspondence. 34. The Court has found violations of Article 1 of Protocol No. 1 in several cases against Bulgaria concerning refusals of the administrative authorities to comply with final decisions acknowledging the applicants’ right to restitution (see, for example, Mutishev and Others v. Bulgaria, no. 18967/03, 3 December 2009, and Hadzhigeorgievi v. Bulgaria, no. 41064/05, 16 July 2013). 35. However, the Court is not convinced that the present case concerns such a refusal. It is true that after it became clear that the applicant’s plot of land was not included in the territories covered by section 4, there appears to have been a confusion as to the procedural means to complete the restitution procedure. The competent body, the Oryahovo Agriculture Department, informed the applicant that she had had to use other procedural avenues, which were no longer available, and on another occasion said that its decision of 20 May 1996 stating erroneously that the applicant’s land was covered by section 4 could not be amended or revoked (see paragraphs 13‐14 above). Eventually, the Oryahovo Agriculture Department as well as its superior bodies – the Vratsa Regional Directorate of Agriculture and the Ministry of Agriculture and Forests – seemed to agree that the applicant could use the procedure provided for under section 45d, and the applicant was on numerous occasions instructed by these bodies on the formalities of that procedure (see paragraphs 16-17 and 19 above). 36. The applicant failed to comply with those formalities and has not given any explanation for this failure. She has not in particular alleged that the instructions given to her were unclear, or that she was unable to obtain the requisite documents. 37. The Court is thus of the view that the national authorities cannot be blamed for the fact that the restitution procedure has remained unfinished until this day, and that it is currently for the applicant to take the necessary steps to bring about its finalisation. There has therefore been no breach of Article 1 of Protocol No. 1 as concerns the authorities’ alleged refusal to complete the procedure. 38. Still, the Court is called upon to examine an additional aspect of the application, namely the allegedly excessive duration of the restitution procedure (see paragraph 23 above). The applicant’s “legitimate expectation” to restitution arose in 1996, with the adoption of the Oryahovo land commission’s decision recognising her entitlement to restitution, and as already mentioned, the restitution procedure is still pending. 39. It could seem that the applicant could have had resort to the procedure under section 45d – which appears to be the appropriate procedural avenue – already in 2013, when she was informed by the Oryahovo municipality that the plot of land claimed by her was not covered by section 4 (see paragraph 11 above). While it is true that in August 2013 and in April 2017 the Oryahovo Agriculture Department sent her letters suggesting that no further procedure was available, these opinions were not binding and could not, in principle, prevent the applicant from taking the necessary action, if needed with legal representation. 40. The Court thus finds that after 2013 it was up to the applicant to take measures to bring about the completion of the restitution procedure, and that any delays incurred after that date should not be attributable to the authorities. 41. However, the fact remains that previously to that the procedure was delayed from 1996 to 2013, namely for about seventeen years, as a result of the land commission erroneously indicating that the applicant’s land was covered by section 4, and accordingly obliging her to await the elaboration of the documents necessary in that procedure (see paragraphs 6-11 above). As it turned out eventually, the procedure was inapplicable, which rendered the delays incurred unjustified. It has not been argued by the Government that there would have been any obstacles to finalising the procedure within reasonable time after the decision of 20 May 1996 had the land commission not made the error at issue, or that the delay at issue would have otherwise been inevitable. 42. The Court finds thus that the delay in the procedure up to 2013 was incurred through the authorities’ fault, and that it was unjustified. It notes in addition that the delay at issue was substantial, and considers that it must have placed the applicant in a situation of prolonged uncertainty (see Nedelcheva and Others v. Bulgaria, no. 5516/05, § 82, 28 May 2013, and Popov and Chonin, cited above, § 52). 43. In numerous previous cases against Bulgaria the Court held that lengthy unjustified delays in the restitution procedure resulted in breaches of Article 1 of Protocol No. 1 (see, for example, Lyubomir Popov and Popov and Chonin, both cited above). It sees no reason to reach a different conclusion in the case at hand. 44. There has accordingly been a violation of Article 1 of Protocol No. 1 on account of the excessive duration of the restitution procedure. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
45. 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. Damage
46. The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage, pointing out that the restitution procedure had remained unfinished and that she had been unable to profit from her plot of land. She claimed another EUR 15,000 in respect of non-pecuniary damage. 47. The Government contested the claims. 48. The Court recalls that its finding of a violation of Article 1 of Protocol No. 1 was related only to the excessive duration of the restitution procedure. Accordingly, the Court will only make an award to compensate the applicant for any loss of chance on that account (see Naydenov, cited above, § 96). 49. The Court reiterates that, even though the restitution procedure remains pending, an appropriate procedural means to finalise it seems to be available and it was up to the applicant to take the necessary steps in that regard (see paragraphs 35-37 above). 50. Taking into account the circumstances of the case – in particular the duration of the unjustified delays in the procedure, the size of the plot claimed by the applicant and the applicant’s share in it (see paragraph 6 above) – the Court awards the applicant EUR 2,000 in respect of pecuniary damage. It awards her an additional EUR 2,000 in respect of non-pecuniary damage. B. Costs and expenses
51. The applicant has not claimed the reimbursement of any costs and expenses. C. Default interest
52. 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 no violation of Article 1 of Protocol No. 1 on account of the authorities’ alleged refusal to complete the restitution procedure;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 on account of the excessive duration of that procedure;

4. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan Blaško Gabriele Kucsko-StadlmayerDeputy RegistrarPresident