CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 février 2017

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BULGARIA   (Application no. 35355/08)             JUDGMENT ( Just satisfaction )   This version was rectified on 21 March 2017 under Rule 81 of the Rules of Court.   STRASBOURG   9 February 2017     FINAL   09/05/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Velcheva v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   Ganna Yudkivska,   André Potocki,   Faris Vehabović,   Yonko Grozev,   Síofra O’Leary,   Mārtiņš Mits, judges, and Milan Blaško, Deputy Section Registrar , Having deliberated in private on 17 January 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 35355/08) 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 Gana Petkova Velcheva (“the applicant”), on 30 June 2008. 2.     The applicant was represented by Mr M. Ekimdzhiev, a lawyer practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms   V.   Hristova, of the Ministry of Justice. 3.     In a judgment delivered on 9 June 2015 (“the principal judgment”), the Court found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the national authorities’ prolonged failure to take the necessary technical steps to enforce a final court judgment allowing the applicant’s claims for the restitution of agricultural land (see Velcheva v.   Bulgaria , no. 35355/08, 9 June 2015). 4.     Under Article 41 of the Convention, the Court noted that the most appropriate reparation would be compliance with the domestic court judgment at issue and completion of the restitution procedure initiated by the applicant (see the principal judgment, § 57). The Court therefore concluded that the question of the application of Article 41, in so far as it concerned the applicant’s claims for pecuniary and non-pecuniary damage, was not ready for decision, reserved that question, and invited the Government and the applicant to submit, within four months of the judgment becoming final, their written observations on the matter and in particular to notify it of any agreement they might reach (ibid., § 58, and point 4 of the operative provisions). 5.     Since the applicant and the Government failed to submit observations within the time-limit set in the principal judgment, on 29 March 2016 the respective Section President invited them once again to file such observations. The applicant submitted her observations on 22 July, and the Government submitted theirs on 1 September 2016. On 13 October 2016 the applicant responded to the Government’s observations. The parties informed the Court that they had been unable to reach any settlement. THE LAW 6.     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 1.     Submissions by the parties 7.     The applicant stated that, as regards compensation for pecuniary damage, she wished to obtain “the actual restitution” of her property. In addition, she claimed 10,000 euros (EUR) for non-pecuniary damage. 8.     The Government, for their part, stated that it was impossible to restitute to the applicant the plots claimed by her. Two of them were regarded as being the property of a third party, and a third one – which had been mentioned in the decision of the competent administrative body without any particulars such as its borders and specifications under the cadastral plan – could not be identified. The Government therefore considered it appropriate for the Court to award monetary compensation to the applicant. In their view, an award of about EUR 8,000, covering pecuniary and non-pecuniary damage, would have been just and in line with the awards made by the Court in previous similar cases. To assist the Court in establishing the market price of the plots claimed by the applicant, the Government submitted several sale offers published on the Internet and concerning land in the same village, with prices ranging from EUR 0.6 to EUR 3.12 per square metre. 9.     In response to the Government’s position, the applicant claimed the market value of the land which had been the subject to the restitution procedure. She submitted an expert valuation of that land which assessed its market price at about EUR 24 per square metre. In proposing that amount, the expert appointed by the applicant acknowledged that there was no reliable information about prices at which similar plots of land in the village had actually been sold recently but took into account offers of land for sale and the potential revenue if buildings were later constructed on the land. 2.     The Court’s assessment (a)     The plots claimed by the applicant 10.     The Court notes at the outset that the plots which had been the subject of the restitution proceedings initiated by the applicant measured 2,900 square metres in total. That land, which is eligible for construction, is situated in the small resort of Ribaritsa, at the foot of the Stara Planina mountain. 11.     Despite being the subject of the applicant’s restitution claims, the land was sold by the then-existing agricultural cooperative to a third party in 1995. In the principal judgment, however, the Court pointed out that this was not in itself an obstacle to completion of the restitution process − thereby reiterating the findings of the national courts – because under domestic law any dispute between the buyer and the applicant as to the rightful owner of the land would fall to be examined in separate proceedings after the technicalities of the restitution had been complied with (see the principal judgment, §§ 10 and 46). This meant that, despite the court judgment already recognising the applicant’s entitlement to restitution in kind, if the national courts were to confirm that the third party’s title to the land was valid and could be opposed to hers, the applicant might be entitled to compensation in the form of other comparable land or so-called compensation bonds in lieu of restitution in kind (see, for similar situations and the terms and conditions of the compensation scheme, the cases cited in §   44 of the principal judgment). (b)     Pecuniary damage 12.     The Court observes that when submitting her claims for compensation in respect of pecuniary damage, the applicant claimed “the actual restitution” of the properties which had been the subject of the restitution procedure (see paragraph 7 above). In response to the Government’s submissions, indicating that such restitution was impossible, she agreed to receive the market value of those properties (see paragraph 9 above). 13.     In the principal judgment, the Court held that the authorities were obliged to finalise the restitution procedure, including the requisite technical steps. It stated that the completion of that procedure would constitute the most appropriate execution of the principal judgment (see the principle judgment, §§ 57-58). However, in the light of the Government’s view in the current proceedings that completion of the domestic restitution procedure is impossible, and of the applicant’s apparent agreement to receive financial compensation in that case (see paragraphs 8-9 above), the Court sees no reason to insist on finalisation of the restitution procedure. As the parties appear to agree on that question, it will award the applicant financial compensation. It points out that this will constitute the final resolution of the case. 14.     As to the amount to be awarded, the Court reiterates its finding in the principal judgment that the authorities were not under an absolute obligation to return to the applicant the land claimed by her in the restitution procedure. Since the land had in the meantime been transferred to a third party, the applicant could bring proceedings to challenge that party’s own claims to the same land after the possible finalisation of the restitution (see the principal judgment, § 46 and 57). As already noted (see paragraph 11 above), at the close of any such proceedings the applicant would either have obtained confirmation of her entitlement to restitution in kind, or would have been obliged to accept compensation. 15.     Accordingly, even though it considers that the failure to complete the restitution procedure undoubtedly caused the applicant to sustain certain losses which the authorities should compensate, the Court is not prepared to equate these losses to the market value of the land claimed by her at the domestic level. As noted above, the applicant was not unconditionally entitled to that land, but rather to completion of the restitution procedure, possibly in a different manner. Moreover, were the applicant to receive compensation in lieu of restitution, which could have been in the form of other comparable land or compensation bonds, that compensation might have been significantly lower in value than the market price of the land claimed originally (for more details on the applicable rules and a finding by the Court that such an outcome is not in itself flawed or unreasonable, see Sivova and Koleva v.   Bulgaria , no. 30383/03, §§ 35-35 and 111-14, 15   November 2011, and Nedelcheva and Others v. Bulgaria , no.   5516/05, §   61, 28 May 2013). 16.     Accordingly, even though it takes into account the information provided by the parties concerning land prices in Ribaritsa (see paragraphs   8 ‑ 9 above), in view of the number of imponderables involved with regard to assessing the losses suffered by the applicant, the Court ultimately determines the award to be made on an equitable basis. Taking into account all the information available to it, it considers it appropriate to award the applicant EUR 7,000 under this head. (c)     Non-pecuniary damage 17.     The Court is of the view, secondly, that the applicant must have suffered non ‑ pecuniary damage, for which the finding of a violation of the Convention in the principal judgment is not a sufficient remedy. Judging on an equitable basis, it awards her EUR 3,200. B.     Costs and expenses 18.     Lastly, the applicant claimed 300 Bulgarian levs (BGN), the equivalent of EUR 153, for the expert valuation submitted by her (see paragraph 9 above), and another EUR 400 for the costs and expenses incurred in the procedure under Article 41 of the Convention, including her lawyer’s fees, postage and translation. In support of these claims the applicant submitted an invoice concerning the valuation report. She requested that save for the sum paid by her for the expert valuation, any amount awarded by the Court under this head be paid directly to her representative, Mr Ekimdzhiev. [1] 19.     The Court, finding that the costs and expenses claimed have been actually and necessarily incurred and are reasonable as to quantum, satisfies those claims in full. The total amount awarded under the present head is therefore EUR 553. As requested by the applicant, EUR 153 is to be paid to her, and the remainder, namely EUR 400, is to be transferred directly to her legal representative. [2] C.     Default interest 20.     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.     Holds (a)     that the respondent State is to pay the applicant, 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)     EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii)     EUR 3,200 (three thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (iii)     EUR 553 (five hundred and fifty-three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, EUR 400 (four hundred euros) of which to be transferred directly to the applicant’s legal representative [3] ; (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; (c)     that the above payments will constitute the final resolution of the case (paragraph 13 above);   2.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Milan Blaško   Angelika Nußberger Deputy Registrar   President [1] Rectified on 21 March 2017: “She requested that save for the sum paid by her for the expert valuation, any amount awarded by the Court under this head be paid directly to her representative, Mr Ekimdzhiev.” was added. [2] Rectified on 21 March 2017: “As requested by the applicant, EUR 153 is to be paid to her, and the remainder, namely EUR 400, is to be transferred directly to her legal representative.” was added. [3] Rectified on 21 March 2017: “EUR 400 (four hundred euros) of which to be transferred directly to the applicant’s legal representative” was added.