Communicated on 26 April 2019

FIFTH SECTION

Application no. 59845/14 Vasko Dimitrov KOZALIEV and Georgi Dimitrov STARCHEV against Bulgaria lodged on 25 August 2014

STATEMENT OF FACTS

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, respectively. They are represented before the Court by Ms M.M. Aydarova , a lawyer practising in Sofia.

A. The circumstances of the case

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

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. That decision determined that compensation in the amount of about 11,500 euros (EUR) was due to applicants for the expropriation in question. The applicants challenged this amount in court. On 21 December 2009, in a final decision, the Supreme Administrative Court (“the SAC”) increased this amount to EUR 144,000. 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.

In a new decision of 15 July 2011 (“the second decision”), the Council of Ministers modified their first decision on expropriation by lowering significantly the surface of the applicants ’ plot intended for expropriation. Thereafter, the Agency brought proceedings before the SAC, seeking the annulment ( отмяна ) of the final judicial decision of 21 December 2009. 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 or whether it was an entirely new one.

On 1 March 2012 the Council of Ministers adopted a new decision (“the third decision”), in which they deleted the applicants ’ plot of land 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 compensation due to the applicants.

The applicants attempted to receive payment by presenting the writ of enforcement to the Agency, respectively on 25 January 2013 and 6 June 2013, without success. They then sought the assistance of a bailiff who sent an invitation for voluntary compliance to the Agency. As the Agency failed to pay, the bailiff attached its extra-budgetary accounts. The Agency unsuccessfully brought judicial proceedings, requesting that the attachment be lifted and that the enforcement proceedings be discontinued altogether. In particular, the Agency referred to the prohibition in law on enforcement of monetary obligations of State bodies.

On 26 February 2014 the Agency allegedly made a partial payment of about EUR 10,000.

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.

Upon an appeal, in a final judgment of 27 July 2016, the SAC quashed the SCAC ’ s judgment and instead held that the Agency owed the applicants neither that sum, nor the EUR 45,000 corresponding to the legal interest rate on it for the period between 21 December 2009 and 23 October 2013. In particular, the SAC found that the Council of Ministers ’ third decision 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, as set in the first decision of the Council of Ministers, was no longer going to take place, the compensation determined in connection with that expropriation was not owed and consequently did not have to be paid.

B. Relevant domestic law and practice

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 a fair compensation has been ensured in advance.

The Constitutional Court has held, either obiter dicta or in its main findings, in three separate decisions ( реш . № 7 от 10 април 2001 по к.д. № 1 /2001; реш . № 6 от 4 юли 2006 по к.д. № 5/2006; реш . № 6 от 1 5 юли 20 13 по к.д. № 5/2013) that the payment of adequate compensation is a prerequisite for the validity of an expropriation.

According to section 39(1)2(a) of the State Property Act, the Council of Ministers ’ decision on expropriation becomes final, and the expropriation is considered as having validly taken place, once the compensation amount determined by the court in cases of legal challenges to the amount, has been paid to the owners.

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 from the competent administrative court the annulment of the expropriation.

COMPLAINTS

Relying on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complain of the failure of the authorities to comply with the final court decision on compensation due to them for the expropriation of their property.

QUESTIONS TO THE PARTIES

1. Did the applicants have a legitimate expectation, under Article 1 of Protocol No. 1 to the Convention to have the final judgment of 21 December 2009 enforced and, if yes, during which period? Was the failure to enforce that judgment in breach of the applicants ’ right to access to a court under Article 6 § 1 of the Convention ( Mancheva v. Bulgaria , no. 39609/98, §§ 61-62, 30 September 2004)?

2. Did the final judgment of 21 December 2009 cease to be enforceable at any point in time? If yes, when and on what basis? What is the decisive act for annulling the expropriation at the national level: the State ’ s decision quashing the expropriation (in this case of 1 March 2012), or the judicial decision holding that the State owes no payment for expropriation (of 27 July 2016)?

The parties are invited to inform the Court as follows: whether the applicants were free to use and/or dispose of their plot of land after it had been earmarked for expropriation in the first decision of the Council of Ministers and, if they were not at any point in time, when were they prevented from it and on what basis; whether the State had physically occupied the property at any point in time; whether expropriation took place under domestic law; and, whether the State made any payment, partial or full, in respect of expropriation and, if yes, can it claim it back from the applicants after abandoning the decision to expropriate.