FOURTH SECTION

DECISION

Application no. 59845/14 Vasko Dimitrov KOZALIEV and Georgi Dimitrov STARCHEV against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 15 September 2020 as a Committee composed of:

Branko Lubarda , President, Carlo Ranzoni, Péter Paczolay , judges, and Ilse Freiwirth, Deputy Section Registrar ,

Having regard to the above application lodged on 25 August 2014,

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

1 . The applicants, Mr Vasko Dimitrov Kozaliev and Mr Georgi Dimitrov Starchev , are Bulgarian nationals, who were born in 1951 and 1950 respectively and live in Lyubimets and Sofia. They were represented before the Court by Ms M.M. Aydarova , a lawyer practising in Sofia.

2 . The Bulgarian Government (“the Government”) were represented by their Agents, initially Mr V. Obretenov and subsequently Ms V. Hristova , both of the Ministry of Justice .

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

4 . The Council of Ministers adopted a decision on 30 November 2007 (“the first decision”) to expropriate part of a plot of land belonging to the applicants. The whole of the applicants ’ plot measured 14,548 square metres and, according to the first decision, 10,843 square metres of that plot were to be expropriated for the purposes of constructing a motorway. That decision determined that compensation in the amount of 22,732 Bulgarian levs (about 11,500 euros (EUR)) was due to applicants for the expropriation in question.

5 . The applicants challenged this amount in court. On 21 December 2009, in a final decision, the Supreme Administrative Court (“the SAC”) increased the compensation to EUR 144,000 and held that interest in the amount of about EUR 40,000 was due in addition for the period between 21 December 2009 and 23 October 2013.

6 . On 17 February 2010 the applicants obtained a writ of enforcement and on 26 February 2010 they submitted it to the relevant institution, the Agency for Road Infrastructure (“the Agency”), requesting payment of the compensation due. No payment followed.

7 . The Council of Ministers adopted another decision on 15 July 2011 (“the second decision”), which provided that 2,393 square metres of the applicants ’ plot was to be expropriated and set the compensation due in this respect at EUR 240. The applicants did not challenge in court either the expropriation decision itself, or the amount determined in it (see paragraph 21 below). On 5 August 2011 the Agency transferred the compensation amounting to EUR 240 to the bank account of the relevant regional administration, which in turn was responsible for transferring it to the applicants.

8 . Thereafter, the Agency brought proceedings before the SAC, seeking the annulment ( отмяна ) of the final judicial decision of 21 December 2009 (see paragraph 5 above). On 20 February 2012 the SAC rejected the request, finding in particular that the second decision of the Council of Ministers had not specified explicitly that it was meant to modify their first decision. Likewise, it was unclear whether the smaller surface earmarked for expropriation in the second decision was part of the surface earmarked for that purpose in the first decision. Thus, it was possible that the surface marked for expropriation in the second decision (2,393 square metres) concerned a different part of the applicants ’ plot (which totalled 14,548 square metres) than the one subject to expropriation in the first decision (10,843 square metres).

9 . On 1 March 2012 the Council of Ministers adopted a new decision (“the third decision”), in which the applicants ’ plot of land was removed from the areas set for expropriation. Subsequently, the Agency sought, again unsuccessfully, the annulment of the final judicial decision of 21 December 2009 which had determined the amount of compensation due to the applicants for the expropriation of 10,843 square metres of their plot (see paragraph 5 above).

10 . The applicants submitted the writ of enforcement to the Agency, respectively on 25 January 2013 and 6 June 2013, in an attempt to receive payment. Given that the Agency did not pay, they approached a bailiff who in turn sent an invitation for voluntary compliance to the Agency. As the Agency failed to pay, the bailiff attached its bank accounts which were not directly financed by the State budget. The Agency unsuccessfully brought judicial proceedings, requesting that the attachment be removed and that the enforcement proceedings be discontinued altogether. In particular, the Agency referred to the legal impossibility to collect monetary debts from State bodies.

11 . According to the applicants, on 26 February 2014 the Agency paid them about EUR 10,000 in connection with the enforcement proceedings which they had started.

12 . The Government contested this statement and submitted that they had never paid, even partially, any sum of money towards the compensation determined by the domestic court on 21 December 2009, namely the principal amount of EUR 144,000 and the interest of EUR 40,000 (see paragraph 5 above). The only amount paid to the applicants was the EUR 240 mentioned in paragraph 7 above. That sum was the compensation due to the applicants for the part of the latter ’ s plot (2,939 square metres) which had been expropriated by virtue of the second Council of Ministers ’ decision.

13 . On an unspecified date in 2014 the Agency brought a claim before the Sofia City Administrative Court (“the SCAC”), asking it to establish that it did not owe the applicants the sum determined for compensation in the final court decision of 21 December 2009. The SCAC rejected the Agency ’ s request on 12 March 2015.

14 . Upon an appeal, in a final judgment of 27 July 2016, the SAC quashed the SCAC ’ s judgment and instead held that the Agency did not owe the applicants either the principal amount or the legal interest on it for the period between 21 December 2009 and 23 October 2013. The SAC found that the Council of Ministers ’ third decision (see paragraph 9 above) was a new fact which had taken place after the final court decision on the amount of compensation due to the applicants in case of expropriation. The third decision had had the consequence of quashing the expropriation to the extent identified in that decision. It had not been found null and void, nor quashed in court, and therefore there was no reason for it not to produce legal effects. Given that the expropriation established in the first decision of the Council of Ministers (see paragraph 4 above) was no longer going to take place, the compensation determined for that expropriation was not owed and, consequently, did not have to be paid.

15 . In the meantime, the applicants brought proceedings asking the courts to declare the third decision of the Council of Ministers (see paragraph 9 above) null and void. In a final decision of 14 July 2017, the SAC rejected that request as unfounded. That decision was final.

16 . On 24 August 2017 the bailiff terminated the enforcement proceedings started in connection with the final judgment of 21 December 2009 (see paragraph 10 above). The applicants challenged the termination in court. In a final judgment of 5 December 2017 the Sofia City Court rejected the appeal as unfounded.

17 . In the meantime, in September 2017 the Agency wrote to the bailiff asking that, following the termination of the enforcement proceedings, he return some EUR 11,000 which he had unduly collected in the context of those proceedings.

18 . According to Article 17 § 5 of the Constitution of the Republic of Bulgaria, forcible expropriation of property for State or municipal needs shall be effected only by virtue of a law, provided that these needs cannot be met otherwise, and after an adequate compensation has been ensured in advance.

19 . The Constitutional Court held in a decision of 4 July 2006 ( реш . № 6 от 4 юли 2006 г. по к. д. № 5/2006 г., обн ., ДВ, бр . 57 от 2006 г.) that the phrase “prior and adequate compensation” in Article 17 § 5 of the Constitution was to be understood as requiring that the payment of compensation mandatorily precede the transfer of title and the taking of possession of the real property being expropriated. The Constitutional Court had given the same interpretation in its earlier decision of 2001 ( реш . № 7/2001 г. по к.д . № 1/2001 г.). I n another decision of 2013 (see реш . № 6 от 15 юли 2013 по к.д . № 5/2013) that court held that the payment of adequate compensation was a prerequisite for the validity of an expropriation. More specifically, such compensation had to be paid to the owner prior to him or her transferring his or her property rights. Expropriation, therefore, could not attract legal consequences before the owner had been fully paid the adequate compensation due.

20 . According to the relevant legislation in force at the time of the events, the Council of Ministers ’ decision on expropriation becomes final, and the expropriation is considered to have validly taken place, once the compensation, determined by the court in cases of legal challenges to the amount, has been paid to the owners (section 39(1) of the State Property Act)

21 . According to section 39(3) of the State Property Act, as in force at the relevant time, if within six months from the final judicial decision on the amount of compensation due for the expropriation the owner has not been paid, the property ’ s owner can seek the annulment of the expropriation from the competent administrative court.

22 . At the relevant time, Council of Ministers ’ decisions to expropriate could be challenged before the administrative courts, including with respect to the amount of compensation awarded. The time-limit for such a challenge was 14 days from the publication of the decision in the State Gazette.

COMPLAINTS

23 . The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that the authorities had not enforced the final judgment of 21 December 2009. The applicants further complained under Article 13 of the Convention that they did not have an effective remedy in connection with their complaint above.

THE LAW

24 . The applicants complained about the non-enforcement of the final judgment of 21 December 2009 (see paragraph 5 above) and about the lack of an effective remedy in this regard. They relied on Articles 6 § 1 and 13 of the Convention, as well as on Article 1 of Protocol No. 1 to the Convention.

In so far as relevant, these provisions read as follows:

Article 6 § 1

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

Article 1 of Protocol No. 1

“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.”

Article 13

“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.”

25 . The Government submitted that the applicants had failed to exhaust domestic remedies. On the one hand, they could have sought the annulment of the expropriation (see paragraph 21 above), since they had not received the compensation within six months of it being determined by the courts. On the other hand, they could have brought a claim for damages against the State under the State and Municipalities Responsibility for Damage Act (“the SMRDA”), given that their property had been earmarked for expropriation, but they had not received the corresponding payment.

26 . In addition, the Government pointed out that the principle of legal certainty, and the related requirement that final judgments be implemented, had not been breached in the instant case. In particular, the final judgment of 21 December 2009, determining the amount due to the applicants for the expropriation of part of their land, could not be implemented because the expropriation itself had been annulled (see paragraph 14 above).

27 . They further emphasised that domestic law guaranteed protection of individuals ’ property rights in case of expropriation. More specifically, both the Constitution and the State Property Act (see paragraphs 18 - 20 above) provided that the payment of compensation was a prerequisite for the validity of an expropriation. Therefore, in cases of expropriation, property rights were only transferred after the compensation due had been paid in full by the State.

28 . For so long as, and to the extent that, the applicants had not received payment of the compensation due to them in relation to the first decision on expropriation (see paragraph 4 above), they had retained their property rights over that part of their land. The EUR 240 paid to them had been in connection with the expropriation determined in the second decision (see paragraph 7 above). In their persistent efforts to receive the compensation in relation to the first decision, the applicants had disregarded the circumstance that the general public interest may require the initial expropriation decision to be modified by the authorities, including by opting out of the intended expropriation altogether.

29 . The applicants disagreed. They stated that domestic law provided them with a choice: either to bring court proceedings seeking the annulment of the expropriation if they had not been compensated for it in due time, or to wait for the State to pay them that compensation. In any event, bringing separate court proceeding seeking the cancellation of the expropriation would have meant having to wait for years before the courts decided, so it could hardly be an effective remedy for their complaint.

30 . The Court reiterates that in accordance with its established case-law, execution of a final judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention and an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see, among many other authorities, Burdov v. Russia , no. 59498/00 , § 34, ECHR 2002 ‑ III; Mancheva v. Bulgaria , no. 39609/98 , § 54, 30 September 2004; Yuriy Nikolayevich Ivanov v. Ukraine , no. 40450/04 , § 51, 15 October 2009). Likewise, the impossibility for an applicant to obtain the execution of a judgment in his or her favour in due time constitutes an interference with the right to the peaceful enjoyment of possessions, as set out in the first sentence of the first paragraph of Article 1 of Protocol No. 1 ( Yuriy Nikolayevich Ivanov , cited above, § 52).

31 . In the present case, the Court finds that it is not necessary to deal with the Government ’ s objection of non-exhaustion of domestic remedies (see paragraph 25 above), because the complaint about the lack of enforcement of the 21 December 2009 judgment is in any event inadmissible, for the following reasons.

32 . The Court notes that the applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about the failure of the authorities to enforce a final judgment in their favour. In particular, they stated that they had an enforceable right to receive the compensation determined by the domestic court. They claimed they also had a legitimate expectation to the enjoyment of that possession, namely the compensation due to them. According to them, this expectation had existed between 21 December 2009 (see paragraph 5 above) and 27 July 2016, when the SAC held that the authorities did not owe the compensation in issue (see paragraph 14 above).

33 . The Court observes that according to domestic law the decision on expropriation becomes final once the compensation has been paid to the expropriated owners (see paragraphs 18 - 20 above). Before that, expropriation does not validly take place and the owners retain their ownership rights in full. This has been confirmed in several decisions by the Constitutional Court (see paragraph 19 above). Consequently, the Court finds that, contrary to the position of the applicants, the final domestic judgment of 21 December 2009 cannot be considered as having created separate rights and as unconditionally being subject to enforcement in all circumstances. Bearing in mind the relevant provisions of domestic law, this judgment is an element of the expropriation procedure and the Court will consider it in the context of that procedure as a whole.

34 . The Court then notes the applicants ’ assertion that in 2014 the authorities paid to them about EUR 10,000 in connection with the enforcement proceedings started by them (see paragraph 11 above). According to the Government, the only amount they paid as compensation for expropriation of the applicants ’ property was EUR 240 in respect of the 2,393 square metres expropriated on the basis of the second decision by the Council of Ministers (see paragraphs 12 and 28 above).

35 . The Court observes that the applicants did not submit any document as evidence of payment made by the authorities in respect of the compensation determined in the 21 December 2009 judgment. It appears nonetheless that about EUR 11,000 was taken by the bailiff during the enforcement proceedings, and that subsequently the Government demanded its restitution following the termination of the enforcement proceedings (see paragraph 17 above). In any event, the Court observes that no expropriation has taken place under domestic law, as prior full payment has not been received by the applicants. They therefore continued to be the owners of their plot of land after the first decision on expropriation.

36 . The Court then notes that the State adopted a third decision on 1 March 2012 (see paragraph 9 above), removing the part of the applicants ’ plot from the area that had been earmarked for expropriation in their first decision (see paragraph 4 above). Later, in 2016, the SAC upheld the authorities ’ claim that they did not owe payment to the applicants in relation to the first decision on expropriation, given that the expropriation had been cancelled by the same authority in line with the powers vested in it by law (see paragraph 14 above).

37 . In view of the above, the Court concludes as follows. The 21 December 2009 judgment was in the applicants ’ favour to the extent and in the sense that it increased the amount of compensation the State owed to them for the expropriation of part of their property. That judgment was final and enforceable in respect of what it had determined, namely the amount of compensation due to the applicants for the expropriation (see paragraph 5 above). However, given that the expropriation never materialised, the complaint that the judgment was not enforced has become devoid of substance.

38 . The Court finds it appropriate to distinguish the present situation from that in the case of Uzunova and Seid v. Bulgaria (no. 2866/13, § 28, 6 September 2018). The main and decisive difference is that, at the time the Court decided the case in Uzunova and Seid , the State had paid in full the amount determined by the domestic court as being due for the expropriated property. Thus, the Court had before it a situation where the authorities had completed the process of expropriation by complying with their obligation to pay the amount set by the courts as payable when expropriating. That situation, examined in its entirety, led to the conclusion that expropriation had materialised with the full legal consequences that this entailed. The only question which remained was the issue of delay related to the payment, the latter not having been contested.

39 . The Court also finds that the present case should be distinguished from the case of Kostov and Others v. Bulgaria (nos. 66581/12 and 25054/15, §§ 65 and 71-93, 14 May 2020, in which the Court found that determining insufficient compensation for expropriation of property had breached Article 1 of Protocol No. 1 to the Convention. Importantly, in Kostov and Others, expropriation had been completed in respect of the individual applicants. Conversely, in the present case, the compensation determined by the domestic court was never challenged by the applicants as being insufficient; on the contrary, they actively attempted to collect it.

40 . The Court finds that, as the expropriation of the part of the present applicants ’ property determined in the first decision of the Council of Ministers never materialised, the applicants ’ claim that payment for it was nonetheless due is manifestly ill-founded.

41 . The Court further notes that, at the time of submitting their claim for just satisfaction, the applicants complained that the authorities had disturbed their peaceful enjoyment of their possession, in particular by the construction works which had been carried out on and around their property after the first decision to expropriate. The Court finds that this complaint is about damage which the applicants claim to have sustained as a result of undue interference by the authorities with their property. Therefore, it is a separate and different complaint from the one made in the application form, and it was only raised after communication of the application to the Government. Consequently, the Court will not deal with it in the instant case (see, for instance and mutatis mutandis , Radev v. Bulgaria , no. 37994/09, § 44, 17 November 2015).

42 . Finally, at the time they submitted their claim for just satisfaction (29 December 2019), the applicants claimed that the EUR 240 the authorities had paid them for expropriating the 2,393 square metres from their property (see paragraphs 7 and 12 above) had been too low and, as such, inadequate and in breach of Article 1 of Protocol No. 1 to the Convention. The Court notes that this is a new complaint compared to the one made in the application form and as such it should be left unexamined in the present decision. It nonetheless observes as being of relevance that the said part of the applicants ’ plot was effectively expropriated in 2011 when the authorities paid them the amount they had determined payable (see paragraph 7 above). The applicants omitted to challenge in a domestic court the second decision to expropriate or the amount determined in it (see paragraph 7 above). And, in any event, they raised this complaint before the Court for the first time more than six months after expropriation had taken place.

43 . It follows, on the basis of the information available to the Court, that the applicants ’ complaint about the authorities ’ failure to enforce the final judgment in their favour, made under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, must be deemed manifestly ill ‑ founded and be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 8 October 2020 .

Ilse Freiwirth Branko Lubarda Deputy Registrar President