Resolution CM/ ResDH ( 2013)238 Kehaya and others against Bulgaria

Execution of the judgments of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

47797/99+

KEHAYA AND OTHERS

12/01/2006

14/06/2007

12/04/2006

14/09/2007

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in this case and to the violations established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)1183 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT

KEHAYA AND OTHERS v. Bulgaria

Application No. 47797/99

Judgment of 12/01/2006

Final on 12/04/2006

Judgment of 14/06/2007, final on 14/09/2007 (Article 41)

The case concerns the failure by the Bulgarian courts to respect the final character of a judgment of 1996, ordering the restitution of certain plots of land to the applicants (violation of Article 6, § 1).

In 2000, following proceedings brought by the local Forest Authority, the Supreme Court of Cassation reconsidered the issue of restitution, determined by a judicial decision in 1996 in proceedings in which the applicants had appealed against a refusal of the Agricultural Land Commission to grant restitution of certain plots of land . The Supreme Court of Cassation found that the decision of 1996 did not have res judicata effects in respect of the Forest Authority, as this decision was delivered in proceedings which were administrative by their nature, with the participation of the Agricultural Land Commission.

The case also concerns a breach to the peaceful enjoyment of the applicants ’ property, as the Supreme Court of Cassation ’ s decision of 2000 had the effect of depriving them of their possession, in violation of the principle of legal certainty. Furthermore, one of the applicants was fined in 1997 for having used the land which belonged to him according to the decision of 1996 (violations of Article 1 of Protocol No. 1).

As concerns the question of just satisfaction, the Court found that the respondent State should either return to the applicants the ownership and possession of the plots of land at issue or pay the applicants within the same deadlines certain sums corresponding to the value of the property. The Bulgarian authorities did not return the land at issue to the applicants, but instead paid the amounts awarded by the European Court as compensation for pecuniary damage in case of non-restitution, as well amounts awarded in respect of non-pecuniary damages and for costs and expenses, into bank accounts specially opened for that purpose in the name of the applicants. No further individual measures are required.

- Legislative measures and changes in case-law

According to Article 302 of the new Code of Civil Procedure (in force as of 01.03.2008), a final judgment by an administrative court shall be binding upon the civil court regarding the lawfulness and the validity of an administrative act. Moreover, according to Article 177 of the Code of Administrative Procedure, a judgment by which an administrative court has quashed or amended an administrative act is res judicata with regard to all persons ( erga omnes ).

The civil court is thus no more competent to perform the verification (indirect judicial review of the civil court over administrative acts) which it was obliged to carry out under the Interpretative Decision â„– 6 of 05.10.2006 of the Supreme Court of Cassation and under the provisions of the old Code of Civil Procedure. Hence, it follows that the old practice of the Supreme Court of Cassation is no longer applicable.

This has been confirmed by an interpretative decision of the Supreme Court of Cassation adopted on 14/01/2013. According to this interpretative decision, the State is bound by the res judicata effect of judgments delivered in proceedings concerning the lawfulness of administrative acts adopted under the Use and Property on Agricultural Land Act and the Restitution of Forests and Lands from the Forest Fund Act.

The Supreme Court of Cassation considered that the State can contest the validity of an administrative act taken under one of these two Acts in civil proceedings only if this administrative act had not been reviewed by the courts.

- Publication and dissemination

The judgment was published on the web site of the Ministry of Justice and sent to the competent authorities.

IV. Conclusions

In conclusion the government considers that the general measures will prevent new similar violations and that Bulgaria ha s complied with its obligation under 46 §1 of the Convention. The government therefore looks forward to the Committee ’ s decision to close the examination of this case.