CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 septembre 2013

.s800EAC49 { font-size:12pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } FOURTH SECTION Application no. 9590/07 Stoyan Dimitrov STEFANOV against Bulgaria lodged on 19 December 2006 STATEMENT OF FACTS The applicant, Mr Stoyan Dimitrov Stefanov, is a Bulgarian national, who was born in 1950 and lives in Sofia. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. An ancestor of the applicant owned land in the city of Kyustendil, which was taken from him after 1944, apparently on no valid legal ground. Following the adoption of denationalisation legislation in Bulgaria in the 1990s, the applicant initiated restitution proceedings. Apparently, he sought the restitution in kind of at least part of the land. In a decision of 5 August 1998 the governor of the Sofia region dismissed the request for restitution in kind and awarded the applicant compensation for the entirety of the land. The governor found that the property had been taken for specific urban development projects, which had been carried out, and that the land which remained unoccupied was not sufficient to form a separate plot. This last finding was based on a letter dated 30 June 1998 and plans of the respective urban area submitted by the Kyustendil municipality. The applicant submits that, since he had no ground to question the municipality’s statement as to the impossibility to form a separate plot, he did not seek the judicial review of the governor’s decision, which thus became final. In June 1999 the applicant received the compensation allotted to him, which was through compensation bonds. Subsequently the applicant became aware of the following developments: On 15 June 1998 a third party, Mr I., had initiated a procedure aimed at creating an independent plot on parts of the land claimed by the applicant which was unoccupied by buildings or other construction. The creation of a new plot with a surface of 2,600 square metres was approved by the regional governor on 29 December 1999. After that the plot was sold to a third party. In 2002 the applicant brought a tort action against the Kyustendil municipality, arguing that it had failed to present in the restitution proceedings before the regional governor correct information as to the status of the land claimed by him, which had caused him losses, in that had he obtained partial restitution in kind on the basis of the correct information he would have received more than the amount he had received after the sale of his compensation bonds. The applicant assessed the losses he had incurred at 30,329 Bulgarian levs. The first-level Sofia City Court commissioned an expert report, which concluded that the documents submitted by the Kyustendil municipality in the restitution proceedings did not accurately reflect the land’s status. As a matter of fact, the land unoccupied by construction at the time had been sufficient to form a separate plot in accordance with the statutory requirements. In a judgment of 30 March 2005 the Sofia City Court dismissed the applicant’s action, noting that it had not been shown that the land claimed by him had been expropriated on any of the grounds giving rise to an entitlement to restitution, that it had not been shown that the applicant had in fact sought restitution in kind, and that, finally, it had not been established that the regional governor had refused restitution in kind and if so, on what legal ground. Thus, despite the expert conclusions referred to above, it had not been shown that a causal link existed between any losses incurred by the applicant and the defendant’s actions. Upon an appeal by the applicant, on 5 April 2006 the above judgment was upheld by the Sofia Court of Appeal. Similarly to the lower court, it noted that it was unclear on the basis of what evidence the regional governor had accepted that the applicant had been entitled to compensation in lieu of restitution and whether the documents submitted by the Kyustendil municipality had been the only basis for dismissing the applicant’s claim for restitution in kind. In his cassation appeal the applicant pointed out, inter alia , that the Court of Appeal had failed to take into account the actions of the Kyustendil municipality concerning his plot. He noted that the inaccuracy of the documents submitted by the municipality in the restitution proceedings had been established by the expert report commissioned by the Sofia City Court. In a final judgement of 29 June 2007 the Supreme Court of Cassation upheld the Court of Appeal’s judgment. The Supreme Court’s main argument was that the applicant had failed to apply for judicial review of the governor’s decision of 5 August 1998 and seek to establish that the partial restitution in kind was possible. Thus, any losses incurred by the applicant had not been due to actions of the Kyustendil municipality but to his own failure to act. Separately, in 2001 the applicant brought another action, seeking damages on different grounds from the regional governors of Sofia and Kyustendil. The action was dismissed in a final judgment of the Supreme Court of Cassation of 4 February 2005. On 20 June 2006 the Supreme Court also dismissed an application by the applicant for the re-opening of the proceedings. COMPLAINTS 1.     The applicant complains under Article 6 § 1 of the Convention that he did not receive fair trial, because in reaching their conclusions the courts failed to examine the Kyustendil municipality’s actions and the fact that it had submitted (apparently deliberately) inaccurate information to the regional governor as to the status of the land, which resulted in the municipality making a profit and the applicant sustaining a loss. The applicant also considers that the domestic courts were wrong in their assessment of the facts and the applicable law and that the three levels of jurisdiction dismissed his action on different grounds. 2.     The applicant also complains in relation to the fairness of the proceedings which ended on 4 February 2005 and the Supreme Court of Cassation’s refusal to order their re-opening. QUESTION TO THE PARTIES Were the domestic courts in the civil proceedings against the Kyustendil municipality obliged to respond to the applicant’s argument that the municipality had submitted in the earlier restitution proceedings incorrect documents, which had resulted in the unjustified rejection of his claims for restitution in kind and in losses for him? Did the courts’ failure to expressly address the matter render the proceedings unfair, in breach of Article 6 § 1 of the Convention?