Resolution CM/ ResDH (2012)149 [1] Kushoglu against Bulgaria

Execution of the judgments of the European Court of Human Rights

(Application No. 48191/99, judgments of 10 May 2007, final on 10 August 2007 (merits) and 3 July 2008, final on 1 December 2008 (just satisfaction))

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the fact that through arbitrary decisions the domestic courts failed to assist the applicants in recovering the property they were forced to sell to the local municipality in 1989 (violation of article 1 of Protocol No. 1) (see details in Appendix);

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent State paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent State, where appropriate:

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

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent State (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2012)149

Information about the measures to comply with the judgment in the case of

Kushoglu against Bulgaria

Introductory case summary

The case concerns the fact that through arbitrary decisions the domestic courts failed to assist the applicants in recovering property they were forced to sell to the local municipality in 1989, when the communist regime forced tens of thousands of ethnic Turks, among them the applicants, to emigrate (violation of Article 1 of Protocol No. 1).

Soon after acquired it the municipality sold the property in question, a house in the town of Dulovo , to third parties. In 1995 the Supreme Court declared with final effect that the transaction of 1989 between the applicants and the municipality had been null and void due to a procedural shortcoming. However, in 1996 the domestic courts declared that the third parties had validly acquired the house on the basis of their contract with the municipality. The European Court noted that those latter findings of the national courts were “vague to the point of being arbitrary” (§ 53), as they went manifestly contrary the relevant provisions of the Property Act and the practice of Bulgarian courts, which stipulated that when a property sale was found to be null and void it was deemed to be so ab initio , entailing as a consequence that subsequent transactions cannot validly convey title to the property.

Consequently the European Court concluded that the interference with the applicants ’ rights did not have a clear basis in domestic law and did not meet the Convention requirement of lawfulness.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

9 000 EUR

2 000 EUR

100 EUR

Paid on 20/12/2008

b) Individual measures

In its just satisfaction judgment the Court noted that the case did not concern illegal dispossession of property by the State and that the State ’ s duty to erase the consequences of the violation did not include any obligation to return the property at issue to the applicants. The Court considered that payment of a sum of money to the applicants would provide redress for the pecuniary damage suffered by them and awarded them just satisfaction in that respect. It also awarded them non-pecuniary damage.

In these circumstances, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The judgments of the European Court on the merits of the case and on just satisfaction have been translated into Bulgarian and published on the website of the Ministry of Justice - http://www.justice.governm e nt.bg/new/Pages/Verdicts/Default.aspx

The government considered that the violation in the present case constituted an isolated incident confined within the specific circumstances of the case, which did not reveal the existence of any repeated or systemic problem. The Government indicated in addition that the issue at stake in this case concerned the application of the general rule of civil law and was not related to the legislation concerning the restitution of property sold during the forced departure of the Bulgarian Turks in 1989 (the Law on Restitution of Real Property of Bulgarian Citizens of Turkish Origin Who Sought to Travel to Turkey or to Other Countries in the Period May ‑ September 1989 provides for the restitution, under certain conditions, of property sold or transferred otherwise during this period).

Consequently, the government considered that no further general measures were necessary for the execution of the judgments in this case.

III. Conclusions of the respondent State

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Bulgaria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 6 December 2012 at the 11 57 th Meeting of the Ministers’ Deputies .