FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44626/98 by Onnik Arshavir KURKCHIAN and Nuritza Haik KURKCHIAN against Bulgaria

The European Court of Human Rights (First Section), sitting on 22 January 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. H ajiyev , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 9 July 1998 and registered on 20 November 1998,

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

Having regard to the partial decision of 7 March 2002,

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, Mr Onnik Arshavir Kiurkchian and Mrs Nuritza Haik Kiurkchian, are Bulgarian nationals who were born in 1937 and 1947 respectively and live in Plovdiv. They are represented before the Court by Mr K. Petrov, a lawyer practising in Sofia. The respondent Government are represented by Ms M. Pasheva, co ‑ agent, of the Ministry of Justice.

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

The applicants own the first floor of a house with a yard in Plovdiv. In May 1992 the owners of a neighbouring building started reconstructing it without obtaining the necessary permission from the building control authorities. The works were presented as a reconstruction of an existing house, but in fact the old building was pulled down and replaced by a higher and larger structure.

A. Proceedings concerning the legality of the construction under the Territorial and Urban Planning Act

In May and June 1992 the applicants filed complaints with the mayor and the chief architect of the municipality. They alleged that their consent for the construction had not been obtained and that the plan of the new building did not meet the relevant legal requirements.

On an unspecified date the municipal authorities ordered the suspension of the construction. The building plan was modified and the modifications were communicated to the applicants.

On 7 September 1992 the applicants submitted objections against their neighbours’ request for legalisation of the construction.

On 19 January 1993 the municipal authorities dismissed the applicants’ objections.

By a decision of 18 March 1993 the construction was legalised, and all obstacles to the resumption of the construction works were removed (but only until 10 May 1993: see below about the 10 May 1993 provisional injunction).

On 14 June 1993 the applicants appealed against the 18 March 1993 legalisation decision to the Plovdiv Regional Court.

At the first hearing, which took place on 15 July 1993, the applicants requested the court to constitute as defendants their neighbours alongside the municipality of Plovdiv. The court acceded to their request and adjourned the case.

The second hearing was held on 23 August 1993. Pursuant to a request by the applicants the court ordered a technical expert report on the question whether the construction had been effected in compliance with the relevant technical rules.

The third hearing took place on 29 December 1993. One of the defendants stated that he had not received a copy of the applicants’ appeal and requested an adjournment. The first applicant requested a graphological expert report to determine whether a signature appearing in the municipal records relating to the construction was in fact his. The court acceded to the parties’ requests and adjourned the case.

The next hearing was held on 11 April 1994. The court admitted in evidence the technical and the graphological experts’ reports and questioned the experts. The applicants’ neighbours requested a new technical expert report, to be drawn up by three experts. The court agreed and adjourned the case.

A hearing listed for 30 June 1994 failed to take place because one of the defendants could not attend.

At the hearing which took place on 26 October 1994 the three experts presented their report. Finding that they had failed to consult certain relevant documents, the court instructed them to do so and also asked them an additional question, as requested by the defendants. The case was adjourned.

The last hearing before the Plovdiv Regional Court took place on 25 January 1995. The court admitted in evidence the three experts’ report and certain other documents. It also heard the parties’ closing arguments and reserved judgment.

In a judgment of 30 June 1995 the Plovdiv Regional Court dismissed the applicants’ appeal.

On 24 August 1995 the applicants lodged a petition for review with the Supreme Court.

Noting that the applicants had not paid the requisite fee, the court instructed them to do so. They paid the fee on 11 September 1995.

On unspecified dates in September and October 1995 copies of the petition for review were served on the other parties and on 20 October 1995 the case was forwarded to the Supreme Court.

In 1997, following a restructuring of the judicial system in Bulgaria, all administrative cases falling within the jurisdiction of the Supreme Court were transmitted to the newly established Supreme Administrative Court.

A hearing listed by the Supreme Administrative Court for 3 November 1997 failed to take place because the applicants’ neighbours had not been duly summoned.

On 12 January 1998 the Supreme Administrative Court held a hearing. It heard the parties’ arguments and reserved judgment.

In a judgment of 30 March 1998 Supreme Administrative Court reversed the Plovdiv Regional Court’s judgment and declared the 18 March 1993 legalisation decision void, as it had not been made by the competent officer.

As of March 1998 the construction in the neighbouring estate had already been completed.

B. Proceedings for a permanent injunction

On 28 April 1993 the applicants issued proceedings against their neighbours at the Plovdiv District Court. They argued that the construction in the neighbouring estate had intruded into their yard and impeded the normal use of their house as it prevented the access of sunlight. The applicants sought a permanent injunction requiring their neighbours to restore the situation to what it had been formerly.

The applicants also requested a provisional injunction for the suspension of the ongoing construction works. On 10 May 1993 the Plovdiv District Court made a provisional injunction, prohibiting the applicants’ neighbours from continuing the works. The neighbours appealed against the injunction but the appeal was apparently dismissed. The applicants tried to enforce the injunction by applying to an enforcement judge who ordered the neighbours to stop the works.

On 11 October 1993 the Plovdiv District Court stayed the proceedings pending the outcome of the proceedings on the applicants’ appeal against the 18 March 1993 legalisation decision (see above). In 1998, after their completion, the proceedings between the applicants and their neighbours resumed.

Apparently the proceedings were again stayed on 13 January 1999 as a new procedure for the legalisation of the construction had been opened.

There is no information whether the applicants appealed against the 1993 and the 1999 staying of the proceedings.

In January 1999 the proceedings were still pending before the Plovdiv District Court. There is no information about the further course of the proceedings.

C. Proceedings against the municipality under the State Responsibility for Damage Act

Following the Supreme Administrative Court’s holding that the order legalising the construction of the applicants’ neighbours’ house was void (see above), on 11 January 1999 the applicants issued proceedings against, inter alia , the municipality of Plovdiv, claiming damages for the unlawful actions and omissions of the municipality with regard to their neighbours’ construction. The Plovdiv Regional Court dismissed the applicants’ action, but on appeal, in a judgment of 3 April 2002 the Plovdiv Court of Appeals allowed their claims in full, awarding them 5,000 Bulgarian levs (“BGN”) each, with interest as from 11 January 1999. The municipality appealed against the judgment to the Supreme Court of Cassation. On the date of the latest communication from the applicants the proceedings there were still pending. However, under the relevant rule of the Civil Procedure Code that judgment, although subject to appeal, was enforceable. On 20 May 2002 the applicants’ lawyer requested the issuing of a writ of execution pursuant to the judgment and on 28 May 2002 such a writ was issued.

COMPLAINTS

1. The applicants complained under Article 6 § 1 of the Convention that the proceedings under the Territorial and Urban Planning Act and the proceedings for a permanent injunction had lasted unreasonably long.

2. The applicants complained under Article 1 of Protocol No. 1 that the excessive length of the proceedings had allowed their neighbours to finish the construction which prevented the access of sunlight to their house.

THE LAW

In respect of their complaints about the length of the proceedings under the Territorial and Urban Planning Act and the proceedings for a permanent injunction the applicants relied on Article 6 § 1 of the Convention.

Article 6 § 1 provides, as relevant:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

A. Length of the proceedings under the Territorial and Urban Planning Act

Concerning the conduct of the authorities, the Government argued that the proceedings before the Plovdiv Regional Court had not been unduly delayed. All adjournments had been done in order to allow the parties to better present their case. As regards the proceedings before the Supreme Administrative Court, they had taken a longer time because that court had just been established, following the restructuring of the judicial system. Having regard to the high number of cases before that court, the time taken to examine the applicants’ petition for review had not been unreasonable.

As regards the applicants’ conduct, the Government submitted that they had significantly contributed to the delay. In particular, the hearings before the Plovdiv Regional Court on 15 July, 23 August and 29 December 1993 had been adjourned because of their requests to the court to constitute as defendants their neighbours alongside the municipality of Plovdiv and to order expert reports. The new defendants – the applicants’ neighbours – had caused the adjourning of the hearings on 11 April, 30 June and 26 October 1994.

The applicants maintained that the case was not complex at all. In their view, the authorities had been entirely responsible for the delay. In particular, the proceedings before the Plovdiv Regional Court had taken more than two years and three months, which had been largely due to that court’s tolerance of the unwarranted requests of the defendants. The proceedings before the Supreme Administrative Court had taken more than two years and five months.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

B. Length of the proceedings for a permanent injunction

The Government made no submissions on these proceedings, instead maintaining that the proceedings issued by the applicants under the State Responsibility for Damage Act had not been unreasonably lengthy.

The applicants stated that obviously the Government had made a mistake as to which proceedings were the subject ‑ matter of their application to the Court.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

C. Complaint under Article 1 of Protocol No. 1

In respect of their complaint that the length of the two sets of proceedings had allowed their neighbours to finish the construction and thus prevent the access to sunlight to the applicants’ house the applicants relied on Article 1 of Protocol No. 1.

Article 1 of Protocol No. 1 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.”

The Government submitted that any infringement of the applicants’ property rights had been made good through the award of compensation by the Plovdiv Court of Appeals in its judgment of 3 April 2002.

The applicants replied that due to the inactivity of the authorities their neighbours had managed to finish the construction and thus prevent the access of sunlight to their house. This had caused them anxiety and distress. The award of BGN 5,000 to each of them had been wholly insufficient to remedy the distress they had suffered. Moreover, that award was by no means final and certain, because the municipality had lodged an appeal against the judgment with the Supreme Court of Cassation.

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

Declares the remainder of the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President