FOURTH SECTION

DECISION

Application no. 51587/15 Yordan Kitanov ILIEV against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 27 September 2022 as a Committee composed of:

Iulia Antoanella Motoc , President,

Yonko Grozev ,

Pere Pastor Vilanova , Judges,

and Ludmila Milanova, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 51587/15) 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”) on 6 October 2015 by a Bulgarian national, Mr Yordan Kitanov Iliev (“the applicant”), who was born in 1941; the applicant passed away in 2019 and his son, Mr Kiril Yordanov Iliev, represented by Ms Y. Rodzheri , a lawyer practising in Sofia, expressed the wish to pursue the proceedings in his late father’s stead;

the decision to give notice of the application to the Bulgarian Government (“the Government”), represented by their Agent, Mr V. Obretenov of the Ministry of Justice;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1 . This case is of the type examined in Kirilova and Others v. Bulgaria (nos. 42908/98 and 3 others, 9 June 2005) and a number of follow-up cases concerning lengthy delays in providing compensation to the applicants for properties belonging to them which had been expropriated, usually in the 1980s, for the purpose of urban development. In the case at hand, property of the applicant’s wife (who died in 2010 and of whom the applicant was a successor in title) situated in Sofia was expropriated in 1986. The compensation was to comprise a flat and a garage, both to be constructed by the municipality. Even though the flat was constructed and made available within a short time, no specific garage was ever allocated to the family, nor were any steps in that regard taken over the course of many years. In 2012 the applicant received monetary compensation in lieu of compensation in the form of a garage. Subsequently, he brought tort proceedings against the municipal authorities, which continued until 8 April 2015, but was unsuccessful in them.

2. The applicant complained under Article 1 of Protocol No. 1 and Article 13 of the Convention of the delays in the compensation proceedings.

THE COURT’S ASSESSMENT

3. The Court takes note of the death of the applicant and of his son’s wish to continue the proceedings in his stead. The Government have not objected. Having regard to the circumstances of the present case, the Court accepts that the applicant’s son has a legitimate interest in pursuing the application in his father’s stead (see Ergezen v. Turkey , no. 73359/10, §§ 27-30, 8 April 2014).

4. The Government pointed out that the possibility for the applicant (or, before 2010, his wife) to apply for monetary compensation in lieu of compensation in rem , under section 9(1) of the transitional provisions of the 2001 Territorial Planning Act (hereinafter “section 9(1)” – see paragraph 9 below), had been available since 2001. The applicant had only taken formal steps to apply for such compensation in August 2011. Accordingly, any delays in the compensation procedure had been caused through his (or his late wife’s) fault.

5. The applicant argued that he could not be blamed for preferring to receive a garage. Once he had found out that that was impossible, he had applied to receive monetary compensation. Before that the authorities had not sought to solve the problem and had placed the applicant (and previously, his wife) in a situation of lengthy uncertainty.

6 . In two earlier similar cases against Bulgaria concerning the application of the same legislation as in the present case, the Court found that the applicants had had to apply to receive monetary compensation under section 9(1), or other alternative compensation, once it had become clear that the properties initially opted for would never be constructed and delivered (see Velyov and Dimitrov v. Bulgaria (dec.) [Committee], no. 64570/10, §§ 27-30, 20 September 2016, and Petrovi v. Bulgaria [Committee], no. 26759/12, §§ 25-28, 2 February 2017). In another case, by contrast, the Court held that the applicant could not be blamed for not seeking monetary compensation as an alternative, because the local municipality had never abandoned its plans to build the flat due to her as compensation, and had eventually constructed and delivered it (see Basmenkova v. Bulgaria [Committee], no. 63391/13, §§ 29-30, 6 April 2017).

7. In the case at hand, it is not disputed by the parties that the possibility for the applicant (or, before 2010, his wife) to seek monetary compensation in lieu of compensation in the form of a garage arose in 2001. The applicant only applied for such compensation in 2011, and what the parties disagree upon is whether he or his wife should have done so at an earlier date, thus enabling the compensation proceedings to be completed sooner. As can be seen from the cases cited in the previous paragraph, the Court’s approach in similar situations has depended on whether the applicants had had reason to expect that the property due in compensation would eventually be constructed and delivered to them.

8. In the present case, after it was decided in general terms that the applicant’s wife would receive a garage (see paragraph 1 above), no specific garage was ever allocated to her, nor has it been claimed that garages were being built by the municipal authorities in the area.

9 . Accordingly, as early as 2001, when it became possible by law to seek monetary compensation in lieu of compensation in rem , the applicant (or his wife) could have done so, since there was no indication that the municipal authorities intended to construct and deliver a garage, and no justification for the family waiting any longer. It is also significant that section 9(1) was introduced in 2001 with the exact aim of finalising pending compensation proceedings such as the ones in the instant case, which had commenced under the earlier legislation (for more detail, see Kopankovi v. Bulgaria , no. 48929/12, § 22, 6 September 2018).

10. Thus, the Court concludes that the delay in the compensation proceedings after 2001 mostly occurred through the fault of the applicant and his wife, as they could have taken steps to finalise the procedure already at that time.

11. As to the period before 2001, even though the family’s entitlement to receive a garage arose in the 1980s (see paragraph 1 above), it is only the period after 7 September 1992, when the Convention entered into force in respect of Bulgaria, which is relevant to the present case (see Kirilova and Others , cited above, § 86). This initial delay was therefore about nine years. However, the parties have provided no details about any relevant developments during that period. Moreover, the State made efforts towards resolving situations such as the one under examination, seeing that, as noted above, in 2001 the remedy under section 9(1) was introduced. In view thereof, the Court does not have sufficient ground to conclude that the initial delay in providing compensation was such that it could disrupt the fair balance required under Article 1 of Protocol No. 1 and place an excessive burden on the applicant (and, previously, his wife). The above conclusion also means that the applicant had no “arguable claim” under Article 13 of the Convention.

12. In view of the above and in the light of all the material in its possession, the Court finds that the applicant’s complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Holds that the applicant’s son has standing to pursue the proceedings in his stead;

Declares the application inadmissible.

Done in English and notified in writing on 20 October 2022.

Ludmila Milanova Iulia Antoanella Motoc Acting Deputy Registrar President