FOURTH SECTION

DECISION

Application no . 4548/04 Evgenia Tsvetanova STAMBOLSKA against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 18 February 2014 as a Chamber composed of:

Ineta Ziemele , President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Zdravka Kalaydjieva , Paul Mahoney, Krzysztof Wojtyczek , judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 23 January 2004,

Having regard to the initial observations submitted by the respondent Government and the observations in reply submitted by the applicant, and the additional observations submitted by the parties after the Court invited them to do so on 12 July 2013,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mrs Evgenia Tsvetanova Stambolska , is a Bulgarian national, who was born in 1952 and lives in Pleven. She was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva , lawyers practising in Plovdiv.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva , of the Ministry of Justice.

A. The circumstances of the case

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

1. Initiation of the procedure

4. The applicant ’ s mother owned a three-storey house and a plot of land of 662 square metres, which were expropriated in 1948.

5. Following the enactment of the Compensation Law in 1997 (see paragraph 29 below), on 4 March 1998 the applicant and her brother requested compensation for their mother ’ s expropriated property. By a decision of 2 June 1998 the regional governor of Lovech dismissed the request insofar as it concerned the expropriated land, because it had already been subject to restitution, and held that in respect of the house, which had been demolished, the applicant and her brother were to receive compensation bonds.

6. The decision was served on the applicant on 18 February 2000.

2. First review of the regional governor ’ s decision of 2 June 1998

7. On 2 March 2000 the applicant applied for judicial review of the above-mentioned decision.

8. In a judgment of 3 November 2000 the Pleven Regional Court (“the Regional Court”) quashed the regional governor ’ s decision in respect of the applicant and found that she was entitled to compensation for the land and house, to be provided both by transferring to her a share of a larger plot totalling 12,600 square metres, which adjoined the expropriated plot formerly owned by her mother, and by awarding her compensation bonds, the exact value of which would be determined at a later stage (see paragraph 31 below).

9. A limited liability company, N. OOD, joined the proceedings before the Regional Court, after it was accepted that the company had locus standi because it owned a share of the plot of land of 12,600 square metres. No other third party joined the proceedings at this time, despite the plot having several other co-owners.

10. All parties lodged appeals against the Regional Court ’ s judgment, but it was upheld by the Supreme Administrative Court (“the SAC”) on 17 September 2001.

11. The case was subsequently sent back to the Regional Court for the second stage of the proceedings, namely the determination of the exact amount of compensation to be awarded. In a judgment of 17 December 2001 the Regional Court held that the applicant was to receive 91.04% of the State-owned share of the larger plot and compensation bonds with a face value of 8,400 Bulgarian levs (BGN).

12. On 28 December 2001 the regional governor appealed to the SAC against the judgment of the Regional Court. However, the proceedings were stayed owing to the submission of several requests to have the first stage of the proceedings reopened (see below).

3. First attempts to have the proceedings reopened

13. On 14 January 2002 the applicant ’ s brother lodged an application to set aside the Regional Court ’ s judgment of 3 November 2000, as upheld by the SAC on 17 September 2001, and to have the proceedings reopened. He referred to evidence which he considered to be newly discovered. His application was dismissed on 7 July 2002.

14. On an unspecified date, a Mr H.H. also applied to have the first stage of the proceedings reopened, arguing that, as a co-owner of the plot of 12,600 square metres, he was an interested party and should have been notified of the proceedings and given an opportunity to participate. He explained that he had become aware of the judgments of 3 November 2000 and 17 September 2001 in March 2002 when he had visited the local municipality.

15. On 14 December 2002 the SAC dismissed Mr H.H. ’ s application.

16. On 24 February 2003 Ms E.H., wife of Mr H.H., also applied to have the judgment of 3 November 2000 set aside and the proceedings reopened, arguing that she was also a co-owner of the plot and had been deprived of an opportunity to participate. She stated that she had become aware of the impugned judgment in February 2003 when she had visited the municipality.

17. On 28 March 2003 Ms D.K., a further co-owner of the plot of land, applied to have the proceedings reopened, putting forward arguments similar to those made by Ms E.H. Ms D.K. stated that she had become aware of the impugned judgment in March 2003.

18. On 17 April 2003 Mr H.H., Ms D.K. and the company N. OOD sent a letter to the Chief Public Prosecutor ’ s Office, urging it to propose that the proceedings be reopened, on the ground that some of the co-owners of the plot had not been given an opportunity to participate. The applicant alleged before the Court that their letter had actually been received by the Chief Public Prosecutor ’ s Office exactly a year earlier and filed as part of her evidence a copy of the letter bearing the date 17 April 2002 next to the acknowledgment-of-receipt stamp. The Government, however, submitted a copy of the same letter together with a copy of the relevant entry of the register of documents filed with the Chief Public Prosecutor ’ s Office, which were both dated 17 April 2003.

19. On 27 May 2003 the Deputy Chief Public Prosecutor introduced a proposal for the judgment of 3 November 2000 to be set aside and the proceedings to be reopened, noting that Ms E.H. and Ms D.K. had not been notified of the proceedings and given an opportunity to participate. He pointed out that the two women had become aware of the impugned judgment in February and March 2003, referring to a letter he had received at his office on 17 April 2003.

20. In a judgment of 25 July 2003 the SAC allowed the requests, set aside the Regional Court ’ s judgment of 3 November 2000 and reopened the proceedings. It considered that Ms E.H. ’ s and Ms D.K. ’ s applications had been lodged within the relevant three-month time-limit (see paragraph 33 below), as it had been impossible to establish with certainty the date upon which they had actually become aware of the impugned judgment. The SAC also found that since Ms E.H. and Ms D.K. were both co-owners of the above-mentioned plot of land they had a legitimate interest in the outcome of the contested proceedings, which had directly affected their rights and obligations.

21. The applicant lodged an appeal against the above-mentioned judgment, which was dismissed as inadmissible on 3 December 2003.

22. Following that, the SAC resumed examination of the regional governor ’ s appeal against the Regional Court ’ s judgment of 17 December 2001 (see paragraphs 11-12 above). On 12 February 2004, referring to its decision to reopen the first stage of the proceedings, it quashed the judgment and remitted the case to the Regional Court.

4. Second review of the regional governor ’ s decision of 2 June 1998

23. After it started re-examining the case, the Regional Court allowed several individuals and two companies to join the proceedings. It gave judgment on 11 May 2005. It again quashed the regional governor ’ s decision of 2 June 1998 and held that the applicant was entitled to receive compensation for her mother ’ s expropriated property by way of a share of the plot of land measuring 12,600 square metres in total, as well as through compensation bonds.

24. Two of the parties lodged an appeal. On 11 July 2006 the SAC upheld the Regional Court ’ s judgment.

25. The case was subsequently returned to the Regional Court for the second stage in the proceedings, namely the determination of the amount of compensation to be awarded to the applicant. The Regional Court gave judgment on 22 November 2007 . In respect of the share of the plot of land measuring 12,600 square metres, it held that the applicant ’ s share could not exceed the State-owned share. However, it held that the relevant date on which it was to base its assessment of the State-owned share was 25 February 1992, because, pursuant to an express provision of the Compensation Law (see paragraph 29 below), any transfer of property after that date could not limit the interested parties ’ entitlement to compensation. In 1992 the State-owned share of the plot had amounted to 5,705 square metres, and in 2007 it amounted to 1,822 square metres, the remainder of the land being the property of the other co-owners. The applicant was entitled to a share measuring 4,293.86 square metres, which meant that the shares of the remaining co-owners had to be reduced accordingly. In respect of the compensation bonds to be awarded to the applicant, the Regional Court awarded bonds with a face value of BGN 9,200.

26. Two of the parties lodged appeals against the above-mentioned judgment. The SAC held a hearing on 6 November 2008, following which the proceedings were stayed.

5. Subsequent application for proceedings to be reopened

27. On 15 October 2008 Ms E.H. made an application to set aside the Regional Court ’ s judgment of 11 May 2005, as upheld by the SAC on 11 July 2006, and to have the first stage of the proceedings reopened. She referred to newly discovered evidence. On 12 February 2009 the application was dismissed as time-barred by a five-member panel of the SAC. It appears that a subsequent appeal by Ms E.H. to a seven-member panel of that court was dismissed on an unspecified date.

6. End of the proceedings

28. On an unspecified date the SAC resumed its examination of the two appeals against the Regional Court ’ s judgment of 22 November 2007 (see paragraphs 25-26 above). On 26 March 2010 it dismissed them.

B. Relevant domestic law

1. The Compensation Law

29. After the fall of communism, the Bulgarian Parliament introduced a series of restitution laws and, in November 1997, the Law on Compensation for Owners of Nationalised Real Property (“the Compensation Law”), which provided, in cases where restitution had been impossible, for compensation to former owners of nationalised property or their heirs, through different means, such as transfer of State or municipally-owned shares in properties, or the award of compensation bonds. Requests under the Compensation Law were to be addressed to the regional governor or the relevant minister.

30. Once the regional governor had received such a request, the procedure unfolded in two stages. Firstly, the regional governor had to decide whether the interested parties were entitled to compensation. The regional governor then issued a second decision, based on an expert report, determining the amount of compensation to be awarded. The decisions taken at the different stages of the procedure were subject to judicial review.

31. The regional governor ’ s refusal to acknowledge the interested parties ’ right to compensation is subject to judicial review in a two stage procedure; the first stage established the right to compensation and the means thereof, and the second determined the amount of compensation to be awarded.

2. Relevant provisions concerning judicial review of administrative measures and participation of third parties

32. Until 2006 the rules concerning judicial review of administrative measures were contained in the 1979 Administrative Procedure Act, which obliged the domestic court examining an appeal against an administrative measure to notify all interested parties of the appeal (section 41(2)); those parties could then join the proceedings and defend their rights. Similar provisions were contained in section 21(1) of the 1997 Supreme Administrative Court Act, in force until 2007. Since 2006, such matters have been regulated by the Code of Administrative Procedure, which contains similar requirements.

33. Before 2006 the conditions and procedure for judicial review proceedings were set out in the Code of Civil Procedure (Article 231 et seq.) A third party could apply to have such proceedings reopened in cases where they had been adversely affected by a final judgment and unduly deprived of the opportunity to participate in the proceedings. The requisite time-limit for parties to make applications for the reopening of proceedings was three months from the date upon which the third party became aware of the judgment at issue. According to the SAC ’ s settled practice, compliance with the three-month time-limit did not depend on the time which had passed since the judgment ’ s entry into force, because the third parties ’ rights would otherwise be seriously undermined.

3. Provisions concerning remedies for length of proceedings

34. The relevant provisions of domestic law have been summarised in the Court ’ s decisions in the cases of Balakchiev and Others v. Bulgaria (( dec. ), no. 65187/10, §§ 18-37, 18 June 2013) and Valcheva and Abrashev v. Bulgaria (( dec. ), nos. 6194/11 and 34887/11, §§ 47-66, 18 June 2013).

COMPLAINTS

35. The applicant complained under Article 6 § 1 of the Convention that the reopening of the proceedings, as ordered by the SAC on 25 July 2003, had impinged upon the principle of legal certainty. She also complained, relying on Article 1 of Protocol No. 1 and Article 13 of the Convention, that this had violated her property rights, because the SAC had set aside a final judgment in her favour and had consequently delayed her being able to profit from the compensation to which she was due.

36. Lastly, the applicant complained that the proceedings concerning her right to compensation had been excessively lengthy and that she had had no effective remedies at her disposal, alleging breaches of Article 6 § 1 and Article 13 of the Convention

THE LAW

A. The reopening of the proceedings

37. The Court is of the view that the complaints in respect of the reopening of the civil proceedings are most appropriately examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. The applicant relied in addition on Article 13 of the Convention.

1. Complaint under Article 1 of Protocol No. 1

38. The applicant complained, in the first place, that the re-opening of proceedings on 25 July 2003 had violated her property rights, because the SAC had set aside a final judgment in her favour and had consequently delayed her being able to profit from the compensation to which she was due.

39. The Government argued that the fact that the reopening of proceedings in the case had been justified gave rise to the conclusion that there had been no violation of Article 1 of Protocol No. 1.

40. As to the first limb of the complaint, concerning the alleged deprivation of the applicant of the effect of the judgment of 3 November 2000, the Court notes that following the re-examination of the case the applicant obtained a new favourable outcome, as on 11 May 2005 the Regional Court again found that she was entitled to compensation, in the form of a share of the plot of land measuring 12,600 square metres and compensation bonds. Both judgments concerned the first stage of the compensation proceedings and the Regional Court ’ s judgment was upheld by the SAC (see paragraphs 25-26 above). The applicant did not allege that this later outcome was less favourable to her than the one resulting from the impugned judgment of 3 November 2000.

41. Moreover, the Court observes that the applicant ’ s application under the Compensation Law was decided upon by the competent authorities in 1998 and in further ex parte proceedings. The reopening complained of was triggered by third private parties and aimed at allowing them a possibility to participate in adversarial proceedings concerning a property in which they had shares. This situation is not imputable to the authorities and is clearly distinct from the one examined by the Court in the case of Brumărescu v. Romania [GC], no. 28342/95, ECHR 1999 ‑ VII , where the reopening of the restitution proceedings had been sought by the authorities in order to reverse a final judgment in favour of the applicant .

42. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

43. Insofar as the applicant complained that the delay caused by the reopening of the proceedings in 2003 had prejudiced her property rights, the Court notes that it will examine below the applicant ’ s complaints related to the length of the proceedings and that the present complaint does not raise any separate issue (see, mutatis mutandis , Zanghì v. Italy , 19 February 1991, § 23, Series A no. 194 ‑ C; Lonza v. Croatia , no. 14062/07 , § 42, 1 April 2010; and KosiÅ„ska v. Poland , no. 42797/06 , §§ 87-88, 14 December 2010 ).

2. Complaint under Article 6 § 1

44. Under Article 6 § 1, the applicant argued that the SAC had acted in an arbitrary fashion, in particular because it had failed to satisfy itself that the applications by Ms E.H. and Ms D.K. to have the proceedings reopened had been lodged within the requisite three-month time-limit (see para graph 33 above). Consequently, the SAC had failed to verify Ms E.H. ’ s and Ms D.K. ’ s assertions that they had only become aware of the Regional Court ’ s judgment of 3 November 2000 at the beginning of 2003.

45. The Government argued that the reopening of the proceedings had been justified and carried out in accordance with the law and the relevant time-limits (see paragraph 33 above). They pointed out that there was no evidence to suggest that Ms E.H. and Ms D.K. had been aware of the impugned judgment of 3 November 2000 more than three months prior to filing their applications. The letter Ms D.K. and Mr H.H (Ms E.H. ’ s husband) had sent to the Chief Public Prosecutor ’ s Office (see paragraph 18 above) was dated 17 April 2003, not 17 April 2002, and therefore the letter was not proof, as alleged by the applicant, that the two women had already known about the impugned judgment a year earlier.

46. In addition, the Government argued that the reopening of the proceedings had not unjustifiably prejudiced the applicant ’ s interests, because it had not involved a final decision on her compensation claim but merely a fresh examination of the case.

47. The applicant disputed the Government ’ s arguments. She contended that the SAC ’ s approach to the case, in particular its acceptance that Ms E.H. ’ s and Ms D.K. ’ s applications had been made within the requisite time-limit despite it being impossible to establish the date on which they had become aware of the impugned judgment (see paragraph 20 above), meant that any final decision could be challenged without the need to observe a limitation period. In addition, the applicant contested the reasonableness of the applicable domestic provisions, which, in her view, were too rigid as they provided for an automatic right for third parties not participating in proceedings to apply to have them reopened.

48. The applicant acknowledged that setting aside the judgment of 3 November 2000 had achieved the legitimate aim of protecting the rights of third parties, but believed that this had been unjust because in her view Ms E.H. and Ms D.K. had had no genuine interest in the proceedings. The applicant reiterated her argument that Ms E.H. and Ms D.K. had acted in bad faith, because they had deliberately concealed from the SAC their knowledge of the judgment of 3 November 2000 on a much earlier date. This was in her view proved by the letter sent to the prosecution authorities (see paragraph 18 above); the applicant reiterated her position that it was marked with the date 17 April 2002 and not 17 April 2003.

49. A summary of the general principles developed in the Court ’ s case ‑ law is set out in its judgment in the case of Lenskaya v. Russia (no. 28730/03, §§ 30-35, 29 January 2009).

50. In the present case the Court has to determine, in the first place, whether the SAC ’ s decision of 25 July 2003 to set aside a final judgment and order the reopening of proceedings was aimed at correcting a “fundamental defect” therein. The Court notes that the ground relied on by the SAC was the protection of third parties ’ rights, specifically those of Ms E.H. and Ms D.K., who had not participated in the first judicial review of the case. Such a ground for the reopening of proceedings was expressly provided for in domestic law (see paragraph 33 above), whose provisions the Court considers neither unreasonable nor unclear. Nor does the Court consider unreasonable or arbitrary the time-limits for applying to have proceedings reopened, which were at the time set out in the Code of Civil Procedure, or the SAC ’ s approach of seeking to protect third parties ’ rights by not imposing specific time-limits upon their application to reopen proceedings following the impugned judgment ’ s entry into force (ibid.). In addition, the Court does not see any reason to question the SAC ’ s conclusion that the proceedings had directly affected Ms E.H. ’ s and Ms D.K. ’ s rights and obligations in respect of the 12,600 square metre plot of land, because under the applicable domestic provisions it was entirely possible that their shares of the land would be reduced in order to fully satisfy the applicant ’ s compensation claim. In fact, this was what eventually occurred because the Regional Court found that the co-owners ’ shares had to be decreased (see paragraph 25 above). Lastly, the Court notes that it has not been alleged that Ms E.H. and Ms D.K. were at fault for not having been able to participate during the first examination of the case.

51. In view of this, the Court is satisfied that the SAC ordered the reopening of proceedings for the purpose of correcting a “fundamental defect” therein (see Protsenko v. Russia , no. 13151/04, §§ 29-32, 31 July 2008). It must therefore examine whether the actual manner in which the SAC processed the third-party applications violated the requirements of Article 6 § 1 (see Lenskaya , cited above, §§ 36-42, and Giuran v. Romania , no. 24360/04, §§ 37 and 41, ECHR 2011).

52. In the latter connection the Court notes that the parties ’ main arguments were centred on the question whether the SAC had been correct in accepting that Ms E.H. ’ s and Ms D.K. ’ s applications to reopen the proceedings had been lodged within the requisite time-limit. The applicant argued that the SAC had dealt with the matter in an arbitrary manner, while the Government contended that the reopening had been carried out in accordance with the law.

53. It is not the task of the Court to re-examine the facts of the case (see, for instance, García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, and Zheltyakov v. Ukraine, no. 4994/04, § 46, 9 June 2011), but to assess whether the SAC ’ s findings were not in any way arbitrary or manifestly unreasonable. It notes in this connection that Ms E.H. told the SAC that she had become aware of the Regional Court ’ s impugned judgment in February 2003, whereas Ms D.K. stated that she had become aware of it in March 2003; both their applications to reopen the proceedings had been lodged soon thereafter (see paragraphs 16-17 above). Admittedly, there may be doubts as to the reliability of Ms E.H. ’ s statement, given that her husband, Mr H.H., had stated earlier that he had become aware of the impugned judgment in March 2002 (see paragraph 14 above). However, there was no indication that Ms D.K. had known about the judgment any earlier than the date indicated by her, March 2003. In addition, it appears that the letter to the Chief Public Prosecutor ’ s Office relied on by the applicant was indeed dated 17 April 2003; in this connection the Court is prepared to accept the Government ’ s statement, supported by other evidence (see paragraph 18 above), that the date on the applicant ’ s copy of the document had been incorrect. The date of 17 April 2003 was also referred to in the Deputy Chief Public Prosecutor ’ s proposals for the reopening of proceedings as introduced on 27 May 2003 (see paragraph 19 above).

54. The Court thus accepts that, at least in respect of Ms D.K., the SAC ’ s conclusion that her application for the proceedings to be reopened had been lodged within the requisite time-limit was reasonable and not arbitrary. In addition, it does not consider that the proceedings before the SAC were unfair in any other way.

55. Lastly, the Court notes that the purpose of setting aside the Regional Court ’ s judgment of 3 November 2000 was not to determine with finality the extent of the applicant ’ s compensa tion rights, but to secure a re ‑ examination of the case (see Lenskaya , § 33, and Giuran , § 31, both cited above).

56. It follows from the above that t his complaint is manifestly ill ‑ founded and must be rejected in accordan ce with Article 35 §§ 3 (a) and 4 of the Convention.

B. The length of the proceedings

57. The applicant complained that the proceedings concerning her right to compensation had been excessively lengthy and that she had had no effective remedies at her disposal, under Article 6 § 1 and Article 13 of the Convention.

58. In their initial submissions, the Government argued that the proceedings had been factually and legally complex and that the authorities had not caused any unreasonable delay.

59. After the Court invited the parties, by letters of 12 July 2013, to make additional observations on the complaints at issue, in particular in connection with the new remedies concerning length of proceedings introduced in Bulgarian law in 2012 (described in the decisions referred to in paragraph 34 above), the Government urged the Court to dismiss the complaints at issue as inadmissible. They argued that the remedies at issue were effective in theory and in practice.

60. In her comments on the matter, the applicant considered, on the other hand, that the remedies at issue were inapplicable to persons in a situation such as hers, namely whose applications with the Court had been submitted before the remedies ’ introduction.

61. The Court recalls that in its decisions in the cases of Balakchiev and Others , §§ 53-85, and Valcheva and Abrashev , §§ 92-124, both cited above, it found that the remedies at issue, under sections 60a et seq. of the Judiciary Act 2007 and section 2b of the State and Municipalities Liability for Damage Act 1988, could be regarded as effective remedies in respect of the allegedly unreasonable length of proceedings. It found further that the remedies at issue were also available to applicants who had lodged their applications with the Court before the remedies ’ introduction. The applicant has not satisfied the Court that there exist special circumstances which could absolve her from pursuing the remedies, once her complaints are dismissed as inadmissible by the Court.

62. It follows from the above that the complaint under Article 6 § 1 of the Convention concerning the length of the proceedings must be rejected under Article 35 §§ 1 and 4 for non-exhaustion of domestic remedies.

63. As to the complaint under Article 13, seeing its conclusion that the newly-introduced remedies are available to persons in a position such as the applicant ’ s and effective, the Court considers it manifestly ill-founded (see Valcheva and Abrashev , cited above, §§ 128-29). Accordingly, this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President