Resolution CM/ ResDH (2011)6 [1]

Execution of the judgment of the European Court of Human Rights

Yanakiev against Bulgaria

(Application No. 40476/98, judgment of 10 August 2006, final on 10 November 2006)

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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the denial of the applicant ’ s right of access to a court on account of the refusal by the Supreme Administrative Court to examine the substance of the applicant ’ s appeal against an administrative decision (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

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 a p plicant 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 exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examina tion of this case.

Appendix to Resolution CM/ ResDH (2011)6

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

Yanakiev against Bulgaria

Introductory case summary

This case concerns the infringement of the applicant ’ s right of access to a court to obtain a decision on the tacit refusal of the mayor of Varna to approve the purchase by the applicant of a flat belonging to a state enterprise (violation of Article 6§1).

The Court noted that the Supreme Administrative Court in 1997 rejected the applicant ’ s appeal against the mayor ’ s refusal, on the ground that such administrative decisions could not be subjected to a judicial review, since they concerned the discretionary power of the administration. However, neither of the two panels of the Supreme Administrative Court touched upon the substance of the applicant ’ s claim that he had a specific right to acquire the flat by virtue of the additional provisions of the Housing Act of 1991, in which case the administration allegedly did not have discretion and could not refuse the purchase. Since those provisions had a decisive impact for the outcome of his case, the Court found that the applicant was owed a specific and express reply.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

3 000 EUR

-

1 500 EUR

4 500 EUR

Paid on 9/02/2007

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of pecuniary and non-pecuniary damage.

Furthermore, the applicant had the possibility to ask for the consequences of the violation to be erased through the reopening of the proceedings on the basis of Article 231§1 of the Code of Civil Procedure of 1952.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

The government considers that this is an isolated violation. Moreover, it should be noted that a new Code of Administrative Procedure, which entered into force in 2006, has superseded the legislation applicable at the material time. It should also be noted that Bulgaria n case-law is constantly evolving so as to take better account of the Convention and the case-law of the European Court . Furthermore, the judgment of the European Court has been translated into Bulgaria n and published on the website of the Ministry of Justice www.mj e li.government.bg .

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 10 March 2011 at the 1108th Meeting of the Ministers’ Deputies