FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42908/98 
by Daniela Evgenieva KIRILOVA 
and Others 
against Bulgaria

Application no. 44038/98 
by Slave Ivanov ILCHEV 
against Bulgaria

Application no. 44816/98 
by Elisaveta Danailova METODIEVA 
against Bulgaria

Application no. 7319/02 
by Teodora Alexandrova SHOILEVA-STAMBOLOVA and Stefan Alexandrov SHOILEV 
against Bulgaria

The European Court of Human Rights (First Section), sitting on 5 February 2004 as a Chamber composed of

Mr C.L. Rozakis, President
 Mrs F. Tulkens
 Mr E. Levits
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above applications introduced with the European Commission of Human Rights on 16 July 1998, 19 June 1998, 17 July 1998 and with the Court on 13 November 2001,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the first three applications was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants in the first application (no. 42908/98), Ms Daniela Evgenieva Kirilova, Mr Kamen Ivanov Kirilov and Ms Milena Ivanova Schneider, are Bulgarian nationals who were born in 1937, 1961 and 1966, respectively. The second and the third applicants live respectively in Brunn am Gebirge and Kaltenleutgeben, Austria. The first applicant, Ms Daniela Kirilova, died on 2 January 2001. The second and the third applicants, who are her son and daughter, expressed the wish to pursue the proceedings in their own name and in the name of the deceased Ms Kirliova. The applicants are represented before the Court by Ms N. Sedefova and Ms Z. Kalaydjieva, lawyers practising in Sofia.

The applicant in the second application (no. 44038/98), Mr Slave Ivanov Ilchev, is a Bulgarian national who was born in 1958 and lives in Sofia. He is represented before the Court by Ms N. Sedefova and Ms Z. Kalaydjieva, lawyers practising in Sofia.

The applicant in the third application (no. 44816/98), Ms Elisaveta Danailova Metodieva, is a Bulgarian national who was born in 1930 and lives in Sofia. She is represented before the Court by Ms A. Gavrilova-Ancheva and Ms N. Sedefova, lawyers practising in Sofia.

The applicants in the fourth application (no. 7319/02), Ms Teodora Alexandrova Shoileva-Stambolova and Mr Stefan Alexandrov Shoilev, are Bulgarian nationals who were born in 1964 and 1968, respectively, and live in Sofia. They are not legally represented.

The respondent Government are represented by Ms M. Dimova, co-agent, of the Ministry of Justice.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  The case of Ms Kirilova, Mr Kirilov and Ms Schneider

Ms Kirilova and her husband owned jointly a house with a yard in the centre of Sofia.

By a mayor’s order of 29 May 1985 their house was expropriated for the construction of a school and a street. The order, based on section 98(1) of the Territorial and Urban Planning Act of 1973 („Закон за териториалното и селищно устройство“ – “TUPA”), provided that Ms Kirilova and her husband were to be compensated with one apartment and their son, Mr Kirilov, was to be compensated with another apartment. Both apartments were to be situated in a building which the municipality intended to construct. The expropriated house was valued at 29,311.59 old Bulgarian levs (“BGL”).1

By a supplementary order of 28 July 1986, based on section 100 of TUPA, the mayor indicated the exact apartments with which Ms Kirilova, her husband and Mr Kirilov were to be compensated, specifying the building in which they would be located and their precise surface.

The house was pulled down and the construction of the school started. Ms Kirilova, her husband, Mr Kirilov and Ms Schneider were settled as tenants in a municipally-owned apartment at the outskirts of Sofia pending the construction of the apartment offered in compensation. In 1993 Ms Kirilova’s husband died.

The construction of the building in which the apartments offered in compensation would be located did not start, apparently because of financial difficulties experienced by the municipality.

On 22 July 1997 Ms Kirilova, Mr Kirilov and Ms Schneider lodged complaints with the municipality, the Regional Governor, the Parliament, the Ministry of Finance and the Ministry of Construction and Urban Development, stating that the apartments allocated to them as compensation had not been constructed, apparently due to lack of funds. They stated that they had been waiting in vain despite their repeated complaints. They also alleged that since 1986 the municipality had built and sold apartments to other persons, but had never found funds to fulfil its obligation towards them. They requested to be given other apartments as compensation. Their request was placed on a waiting list.

By letters of 5 December 1997 and 14 April 1998 the municipality informed Ms Kirilova, Mr Kirilov and Ms Schneider that the construction of their apartments was expected to start in 1998 and that additional investors were needed. In 2002 the construction of the building was underway, but its completion date was unknown.

2.  The case of Mr Ilchev

Mr Ilchev owned part of a house with a yard in Sofia, where he lived.

By a mayor’s order of 16 March 1988 the house was expropriated for the construction of a subway station. The order, based on section 98(1) of TUPA, provided that Mr Ilchev was to be compensated with a three-room apartment in a building which the municipality intended to construct. The house was valued at BGL 8,484.30.

Shortly thereafter the house was occupied and Mr Ilchev was settled as a tenant in a small municipally-owned apartment at the outskirts of the city pending the construction of the apartment offered in compensation.

In July 1989 Mr Ilchev’s house was pulled down and a subway station was built in its place.

By a supplementary order of 8 September 1989, based on section 100 of TUPA, the mayor indicated the exact apartment with which Mr Ilchev was to be compensated, specifying the exact building in which it would be located and its precise surface.

The construction of this building never started, apparently because of financial difficulties experienced by the municipality and because its construction would interfere with the restitution of certain plots of land to their former owners.

Mr Ilchev made numerous complaints to the municipal authorities, to no avail. By a letter of 19 June 1998 the deputy-mayor advised him that the construction of the building in which the apartment offered in compensation would be situated could not start because of changes in the zoning plan. After the drawing up of a new plan, the designing of a new building and the finding of financing for its construction, Mr Ilchev would be invited to choose another apartment.

On 21 December 2000 Mr Ilchev requested from the municipality to be allotted another apartment. As of November 2002 the municipality was still not in a position to provide him with another apartment.

Meanwhile, on 9 February 1996 Mr Ilchev commenced proceedings against the municipality under the State Responsibility for Damage Act of 1988.

In a judgment of 23 July 1999 the Sofia City Court partially allowed his action, awarding him 500 Bulgarian levs (“BGN”) in compensation for non-pecuniary damage and BGN 536.45 in compensation for pecuniary damage. It held that the municipality’s failure to provide Mr Ilchev with an apartment was an omission contrary to section 1 of the State Responsibility for Damage Act of 1988.

The applicant appealed against the judgment, claiming that the amount of compensation was too low. The municipality of Sofia also appealed. The Sofia Court of Appeals reversed the lower court’s judgment, holding that the applicant had failed to request cancelling of the expropriation and had thus been solely at fault for the obtaining situation.

Mr Ilchev appealed on points of law to the Supreme Court of Cassation. In a judgment of 16 October 2001 that court quashed the lower court’s judgment and remitted the case. It held, inter alia, that Mr Ilchev had suffered damages because of the municipality’s failure to build and deliver him an apartment. The restitution of the expropriated property was impossible because the house had been pulled down for the construction of a subway station. Since the omission of the municipality had been unlawful, Mr Ilchev was entitled to claim compensation for the delay. The court further held that the authorities’ obligation to compensate the damage suffered by Mr Ilchev on account of the delay, although stemming from their failure to provide him an apartment, was different from that underlying obligation.

On remittal the Sofia Court of Appeals, in a judgment of 2 October 2002, upheld the Sofia City Court’s judgment, but awarded to Mr Ilchev an additional BGN 280.27 in compensation for pecuniary damage, together with interest as from 9 February 1996, when the action had been commenced, until the final payment of the compensation. It held, inter alia, that the municipality’s failure to build and deliver the apartment allotted to Mr Ilchev in compensation for his house had been an illegal omission within the meaning of section 1 of the State Responsibility for Damage Act of 1988 and that the damage suffered by the applicant was a direct and proximate result of the omission. The court also held that the applicant’s allegation that the amount of the compensation was too low was partially well-founded. The applicant, who was an acting officer in the army, had been living on army premises during the weekdays and could have rented the apartment out. The amount which he would have received in rent between 1988, when the apartment had been due, and 1996, when the action had been commenced, was BGN 280.27.

The municipality appealed to the Supreme Court of Cassation. It argued that Mr Ilchev’s action was inadmissible, because TUPA provided a special procedure for the compensation of expropriated owners of real property. Therefore the State Responsibility for Damage Act of 1988, section 8(2) of which provided that it was applicable only if no other statute contained a special indemnification procedure, did not apply. Secondly, Mr Ilchev had not made a notarised request under section 103(5) of TUPA to be allotted another apartment, and had thus failed to use all options available to him. Thirdly, the Act applied only in respect of facts occurring after its entry into force (1 January 1989), whereas the expropriation order had been dated 16 March 1988. It also argued that the action was unfounded, because Mr Ilchev had failed to prove the extent of his damages and the causal link between them and the alleged omission of the municipality.

The proceedings are still pending and the Supreme Court of Cassation has listed a hearing for 8 March 2004.

3.  The case of Ms Metodieva

Ms Metodieva owned, together with her sister, half of a house with a yard in the town of Nikopol, which she rented out to tenants.

By a mayor’s order of 16 May 1990 the house was expropriated for the creation of a municipal green space. The order, based on section 98(1) of TUPA, provided that Ms Metodieva was to be compensated with a one-room apartment in a building which the municipality intended to construct. Ms Metodieva’s sister was compensated in cash. The applicant’s share of the house was valued at BGL 567.

The construction of the building never started because of financial difficulties experienced by the municipality and it was eventually altogether left out of the municipal construction program.

Meanwhile Ms Metodieva’s house was pulled down. Instead of creating a green space, in 1993 the authorities constructed on the plot an office building for the State Savings Bank

Ms Metodieva made an attempt to obtain reversal of the expropriation, relying on a 1992 restitution law, but her attempt failed as that law concerned expropriations carried out before 21 April 1990.

In December 1997 Ms Metodieva asked the mayor to issue a supplementary order under section 100 of TUPA and indicate the exact apartment with which she was to be compensated. In January 1998 the mayor replied that such an order could not be issued as the construction of the building in which the apartment was to be located had not started.

In May 1998 Ms Metodieva requested the mayor to set a date when she could select another apartment. As the mayor did not reply, she filed an appeal against his “tacit refusal” with the Pleven Regional Court. In a judgment of 16 October 1998 the Pleven Regional Court quashed the refusal and refereed the matter back to the mayor with instructions to issue an order under section 100 of TUPA in which to specify the exact apartment with which the applicant was to be compensated. Apparently the mayor did not issue such an order because there were no available apartments.

In the meantime, on 4 August 1997, the mayor explained that he could not offer Ms Metodieva an apartment as there were no free ones with parameters equivalent to those set forth in the expropriation order.

Ms Metodieva also filed complaints with the regional governor and the Ministry of Finance, to no avail.

On 6 July 1998, pursuant to a request by Ms Metodieva, the municipality made a new valuation of the expropriated house, valuing her share at BGL 792,000. Ms Metodieva appealed against this valuation and on 13 January 1999 it was quashed by the Nikopol District Court on the ground, inter alia, that Ms Metodieva had not been notified of the procedure. The matter was referred back to the municipality. On request of Ms Metodieva on 29 March 2000 the Nikopol District Court interpreted its judgment, specifying, inter alia, that the valuation of the property should be made in accordance with section 102 of the Property Act. On 22 June 2000 a municipal commission again assessed the value of the house, basing its assessment on the market price at the time of the expropriation. The value thus obtained was BGL 1133.65 for Ms Metodieva’s and her sister’s half of the house. On appeal of Ms Metodieva the Nikopol District Court, in a judgment of 1 March 2001, quashed the valuation, holding, inter alia, that the new valuation should be based on the market price at the time of its carrying out. The municipality and Ms Metodieva appealed and in a judgment of 3 June 2002 the Supreme Administrative Court quashed the lower court’s judgment, holding, inter alia, that the new valuation should be made on the basis of the market price at the time of the expropriation. The court remitted the case to the mayor for a fresh valuation made in accordance with its instructions. By an order of 23 August 2002 the mayor valued Ms Metodieva’s and her sister’s half of the house at BGN 1.13, expressly specifying that the valuation had been made as at the time of the expropriation. On appeal of Ms Metodieva the Pleven Regional Court, in a judgment of 13 December 2002, declared the order void and remitted the case to the mayor. It held, inter alia, that both the house and the apartment offered in compensation should be valued on the basis of the market prices at the time of the expropriation. On appeal of the mayor the Supreme Administrative Court, in a judgment of 21 May 2003, quashed the lower court’s judgment, holding that the mayor’s order had not been void. If there had been irregularities with the valuation, the lower court should have re-valued the house instead of remitting the case to the mayor. The court remitted the case to the Pleven Regional Court with instructions to carry out a new valuation of the house. The Pleven Regional Court ordered an expert report and listed a hearing for 8 December 2003. The proceedings are still pending.

4.  The case of Ms Shoileva-Stambolova and Mr Shoilev

Ms Shoileva-Stambolova’s and Mr Shoilev’s father owned half of a house with a yard in Sofia, where he and the two of them lived.

By a mayor’s order of 8 February 1983 the house was expropriated for the construction of a subway station. The order, based on section 98(1) of TUPA, provided that Ms Shoileva-Stambolova’s and Mr Shoilev’s father was to be compensated with an apartment and that Ms Shoileva-Stambolova was to be compensated with another apartment. Both apartments were to be situated in a building which the municipality intended to construct. The house was valued at BGL 39,451. The applicants’ father appealed and the Sofia City Court increased the valuation with BGL 947, thus making it BGL 40,398. Thus, the applicants’ father’s share was BGL 20,199.

In 1984 the house was occupied and pulled down. Ms Shoileva-Stambolova’s and Mr Shoilev’s father was settled in a municipally-owned apartment at the outskirts of the city pending the construction of the apartment offered in compensation. Considering, however, that the apartment was not suitable for his needs, he chose to rent another apartment and left the municipally-owned apartment uninhabited.

By a supplementary order of 7 March 1984, based on section 100 of TUPA, the mayor indicated the exact apartments with which the applicants’ father and Ms Shoileva-Stambolova were to be compensated, specifying the buildings in which they would be located and their precise surface.

In 1985 Ms Shoileva-Stambolova’s apartment was finished. BGL 100 of the valuation of the her father’s house was applied towards the value of that apartment. The remainder (BGL 19,223) was paid by Ms Shoileva-Stambolova and she was able to settle in. However, the applicants’ father’s apartment was not constructed, apparently because the design for the building in which it was to be located was changed.

In 1989 the applicants’ father requested to be allotted another apartment. By a mayor’s order of 27 March 1989 he was allotted a new apartment in lieu of the one originally intended as compensation. The order, like the original one, specified the exact location and surface of the new apartment. The construction of the building in which the apartment thus allotted was to be located started in 1989 but soon was stopped because of lack of funds. The building is still unfinished.

On 25 February 1998 Ms Shoileva-Stambolova’s and Mr Shoilev’s father died. The two are his only heirs.

In 2001 Ms Shoileva-Stambolova and Mr Shoilev wrote to the mayor. They asked whether there were any plans for the completion of the buildings in which the apartments allotted in compensation would be located. In the alternative, they asked whether they could receive other equivalent apartments or cash and, if so, what would be the amount of such monetary compensation. By a letter of 9 May 2001 the mayor informed them that there were no plans to finish the building. Their application for re-compensation was sixth on the waiting list but at present there were no apartments available. If they opted for monetary compensation, the amount which they would be entitled to would be BGN 20.20.

B.  Relevant domestic law

1.  Expropriation of private property for public use

At the relevant time expropriations of houses and apartments for public use were regulated by TUPA.

Expropriations were effected by order of the mayor which had to set forth the property subject to expropriation and its valuation and the manner of compensation of the owner: with another piece of property or in cash (sections 95(1), 98(1)(1) and 98(1)(2)).

If the owner was to be compensated with an apartment that had not yet been constructed, the order had to specify the type, the general features and the number of rooms of such apartment (section 98(1)(4)). A supplementary order had to indicate the exact premises offered in compensation and their valuation (section 100). By section 103(1), that supplementary order had the effect of vesting title to the apartment offered in compensation, even though it was still non-existent.

The Supreme Court has held that both the initial order providing for compensation and the supplementary order create vested rights for the expropriated owners and may be modified only in limited circumstances (решение № 301 от 29 април 1980 г. по гр.д. № 62/1980 г. на ВС, III г.о.; решение № 713 от 7 септември 1982 г. по гр.д. № 627/1982 г. на ВС, III г.о.). One such case was when the expropriated owner submitted, prior to receiving the apartment, a notarised request for a modification of the order to provide for monetary compensation, with a smaller apartment, or with an apartment situated elsewhere (section 103(5)).

Owners who had not received the apartments due within a specified time (initially three years and later one year) – either because of changes in the municipal construction program (the respective building being left out of it) or because the building was earmarked for other purposes – could request canceling of the expropriation or a new valuation of the expropriated property (section 109(1) and (2) of TUPA, superseded in 1990 by section 102(7) and (8) of the Property Act). This could be done either before or after the issuing of the supplementary order. However, after the issuing of the supplementary order canceling of the expropriation was only possible if the land had not been cleared for groundwork or the expropriated building had not been demolished. In the latter case a new valuation was the only remaining option (section 109(4) of TUPA, superseded in 1990 by section 102(9) of the Property Act). The valuation is done on the basis of the market price of the property at the time of the expropriation (section 102(1) of the Property Act). The new valuation is subject to judicial review (section 138(2)(2) of TUPA)(решение № 2181 от 3 май 1999 г. по адм. д. № 4433/1998 г. на ВАС, ІІ о.).

In 1996 and 1998 all these provisions were repealed and superseded by rules giving better protection to expropriated owners. However, the new legislation provides that the old provisions will continue to govern pending expropriation proceedings in which the State has taken possession of the expropriated property prior to 30 October 1998.

2.  State responsibility for unlawful acts and omissions

Section 1 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), which entered into force on 1 January 1989, provides that the State is liable for damage suffered by private persons as a result of unlawful acts or omissions of civil servants, committed in the course of or in connection with the performance of their duties. The State’s liability is strict, i.e. no fault is required on the part of the civil servants in the commission of the unlawful acts or omissions (section 4 in fine).

Section 7 of the Act provides that the action in responsibility must be brought against the authority by which the civil servant concerned is employed.

Section 4 of the Act provides that compensation for damage sustained pursuant to the unlawful act or omission of a civil servant is due for all damage which is the direct and proximate result of the act or omission.

Section 8(2) of the Act provides that if another statute provides for a special manner of indemnification, the Act does not apply.

COMPLAINTS

1.  The applicants complained under Article 1 of Protocol No. 1 that they had not received the compensation to which they were entitled and which had been awarded to them under domestic law. They submitted that the failure of the State to build apartments and deliver them to them constituted a continuing violation of that provision which had lasted for many years and was not likely to come to an end soon.

2.  The applicants also complained under Article 13 of the Convention that they did not have effective remedies to obtain redress for the alleged violation of their rights under Article 1 of Protocol No. 1.

THE LAW

Having regard to the similarity between the four applications, the Court finds it convenient to join them (Rule 42 (former 43) § 1 of the Rules of Court).

A.  The complaint under Article 1 of Protocol No. 1

In respect of their complaint about the failure of the authorities to provide them with the compensation due under the expropriation orders the applicants relied on Article 1 of Protocol No. 1, which provides:

“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.”

1.  The Government’s objection of non-exhaustion of domestic remedies

(a)  The parties’ submissions

The Government submitted that the applicants had failed to exhaust domestic remedies.

They firstly argued that the applicants could request to be allotted other apartments, even though such apartments could be located in areas different from those where the original apartments were to be located.

Secondly, they argued that the applicants could request new valuations of the expropriated properties and then opt for monetary compensation set in accordance with these new valuations. By section 102 of the Property Act, the valuations would be made on the basis of the properties’ market price.

Thirdly, they averred that the applicants could lodge actions under the State Responsibility for Damage Act of 1988 and claim compensation for the damage sustained because of the delay in providing the apartments they were due. In support of their contention the Government submitted a copy of the Supreme Court of Cassation’s judgment of 16 October 2001 in the case of Mr Ilchev against the municipality of Sofia, arguing that it represented the established case-law of the Bulgarian courts.

The applicants in the first three applications – Mr Kirilov, Ms Schneider, Mr Ilchev and Ms Metodieva – replied that the remedies suggested by the Government were not effective.

As regards the possibility to request to be allotted other apartments, they submitted that they were not bound to accept something different from what they were entitled to. In any event, they had made such requests, but their efforts had not been successful: the municipal authorities had informed them that there were no apartments available.

Concerning the possibility to request a new valuation and then opt for monetary compensation on the basis of this new valuation, they argued that they were not required to avail themselves of this opportunity, because they were entitled to apartments and could not be forced into receiving monetary compensation. The apartments due were to be located in areas close to the sites of expropriated properties; it was improbable that the applicants would be able to buy such apartments with the cash the authorities would pay them. Moreover, the Government had not indicated the legal basis for this possibility. If it really existed, it was inexplicable why the municipal authorities had not offered it to the applicants for such a long period. If the authorities had sufficient funds to pay the applicants the market value of their apartments, they could have used these funds to build them. However, from the Government’s observations it transpired that it was exactly the lack of funds that had prevented the authorities from fulfilling their obligations. Finally, the applicants submitted that Ms Metodieva had requested such a new valuation and had been unable to obtain one for many years. Furthermore, the new valuation had to be based on the market price of the property at the moment of expropriation, and not the current market price, as provided by section 102(1) of the Property Act.

As to the possibility to lodge an action under the State Responsibility for Damage Act of 1988, the applicants submitted that the action lodged by Mr Ilchev was unusual and unique and the resulting judgments did not represent the settled case-law of the Bulgarian courts. Moreover, it was not a remedy which could compel the authorities to build and deliver the apartments due to the applicants; at most it could compensate them for the delay incurred thus far. This possibility to obtain compensation for the delay could not in itself remedy the failure of the authorities to comply with their obligations to deliver the apartments. The action would constitute an adequate means of redress only if the compensation awarded was coupled with a process whereby the authorities could be compelled to deliver the apartments. The applicants also argued that these proceedings were not an effective remedy because seven years after their institution they were still pending, their final outcome was yet uncertain and, even if they resulted in a judgment in favour of Mr Ilchev, it was doubtful whether he would be able to enforce it against the financially strained municipal authorities. The applicants went on to state that in any event the amount of the compensation awarded –  BGN 1,316.72 – was too low.

Ms Shoileva-Stambolova and Mr Shoilev submitted that their father had availed himself of the opportunity to request to be allotted another apartment. The municipality had granted his request, but the other apartment had likewise not been constructed. As regards the possibility to request a new valuation, they submitted that this was not possible, because by section 102(8) of the Property Act such a valuation could only be made if after the issuing of the order based on section 100 of TUPA the building in which the apartment was to be situated was dropped out of the construction plan or was earmarked for other uses. This was not their case: the apartment was still in the construction plan, but was yet unfinished. Moreover, it was absurd for the Government to claim that the applicants could be paid cash at market prices and in the same time claim that the authorities did not have sufficient funds to finish the construction.

Regarding the possibility to lodge an action under the State Responsibility for Damage Act of 1988, they submitted that the Supreme Court of Cassation’s judgment of 16 October 2001 was not settled case-law of the Bulgarian courts, but an isolated occurrence. Moreover, it was not final: the proceedings were still pending and Mr Ilchev’s action could still be dismissed. In any event, such an action was not an effective remedy, because the proceedings had lasted for many years and the resulting award of compensation could be less than the costs and expenses for the proceedings. Finally, they argued that since the action could not compel the authorities to build and deliver the apartments, it could not redress the alleged violation of Article 1 of Protocol No. 1 and was not a remedy which had to be availed of.

(b)  The Court’s assessment

The Court finds that the question of exhaustion of domestic remedies in respect of the complaint under Article 1 of Protocol No. 1 relates to the merits of this complaint and to the merits of the complaint under Article 13 of the Convention about the alleged lack of effective remedies in this respect. Hence, to avoid prejudging the latter issues, both questions should be examined together. Accordingly, it holds that the question of exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.

2.  The substance of the complaint

(a)  The parties’ submissions

The Government submitted that the works for the realisation of which the applicants’ properties had been expropriated had been without doubt in the public interest. Moreover, the expropriations had been carried out in accordance with the relevant legal rules and the future apartments allotted in compensation were conformable to the applicants’ needs. The Government conceded, however, that the procedures for the compensation of the applicants were still pending and that the authorities had not fulfilled their obligation to build and deliver apartments to the applicants. They submitted that the reasons for this had been the social and economic changes in the country after 1989, the adoption of a package of restitution laws and the difficulties in providing financing for the construction of the buildings. Nevertheless, the Government argued that most of the applicants had been settled as tenants in municipally-owned apartments pending the completion of their apartments. The applicants’ complaints that those apartments were far worse in terms of space and location than those to which they were entitled were obviously exaggerated. Furthermore, the applicants could request full compensation for the damage they had sustained from the delay in actions against the municipalities under the State Responsibility for Damage Act of 1988. All this indicated that a fair balance had been struck and that Article 1 of Protocol No. 1 had not been breached.

The applicants submitted that the authorities’ failure to provide them with the apartments awarded in compensation for their expropriated properties constituted an infringement of their rights under Article 1 of Protocol No. 1. Indeed, the Government conceded that the authorities had not fulfilled their obligation to build and deliver the apartments. The fact that they lacked finds did not absolve them of their obligation.

The applicants stated that they did not claim that the expropriations had not been in the public interest. They contended, however, that this was immaterial as their complaint did not relate to the expropriations themselves, but to the failure of the authorities to deliver the compensation due under the expropriation orders. In the applicants’ view, in this respect the fair balance between their interests and those of the public had not been respected. The authorities had expropriated their properties a long time ago and had used them throughout this period, while in the same time leaving the applicants to wait for the promised compensation. This waiting, which could last without end, was sanctioned by law: there were no means of compelling the authorities to fulfil their obligation. The applicants had tried many avenues to force the authorities to deliver the apartments, but in vain. This had placed a disproportionate and excessive burden on them. On the other hand, there was no public interest to be weighed against the individual burden placed on the applicants.

It was true that pending the completion of the apartments most of the applicants had been settled as tenants in municipally-owned apartments, but this was far from enough. First, those apartments were much smaller and in much worse areas than the ones due to the applicants. Second, if the applicants had received the apartments due to them, they could have fully enjoyed the benefits of ownership.

(b)  The Court’s decision on admissibility

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B.  The complaint under Article 13 of the Convention

In respect of their complaint about the lack of effective remedies against the above alleged violation of Article 1 of Protocol No. 1 the applicants relied on Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

1.  The parties’ submissions

The Government submitted that the statutory rules in this area were detailed and provided sufficient guarantees for the protection of the applicants’ rights. The applicants had at their disposal effective remedies to vindicate their rights, as required by Article 13 of the Convention

The applicants submitted that if the relevant rules had been detailed and had provided sufficient guarantees for the protection of their rights, they would not have remained without any compensation for many years after the expropriation of their properties. They also referred to their submissions in respect of the Government’s objection of non-exhaustion of domestic remedies.

2.  The Court’s decision on admissibility

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to join to the merits the question of the exhaustion of domestic remedies in respect of the applicants’ complaint that they had not received the compensation to which they were entitled and which had been awarded to them under domestic law;

Declares the applications admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis 
 Registrar President

1.  On 5 July 1999 the Bulgarian lev was denominated. One new Bulgarian lev (“BGN”) equals 1,000 old Bulgarian levs (“BGL”).


KIRILOVA AND OTHERS v. BULGARIA DECISION


KIRILOVA AND OTHERS v. BULGARIA DECISION