FOURTH SECTION

Application no 8725/07 Elka Dim itrova STAMOVA against Bulgaria lodged on 2 February 2007

STATEMENT OF FACTS

The applicant, Ms Elka Dimitrova Stamova , is a Bulgarian national who was born in 1958 and lives in Burgas . She is repres ented before the Court by Mr M. Ekimdzhiev , Ms K. Boncheva and Ms G. Chernicherska , lawyers practising in Plovdiv .

A. The circumstances of the case

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

1. The applicant ’ s privatisation request and ensuing judicial proceedings

On 28 April 1993 the applicant rented a municipally-owned shop in Primorsko . The shop consisted of a metal structure built on a concrete foundation on a municipally-owned plot.

On 18 September 1995 the applicant asked the Tsarevo municipal council to purchase the shop under the preferential privatisation procedure for tenants of State and municipally-owned property, provided for in section 35 (1) of the Transformation and Privatisation of State and Municipally ‑ Owned Enterprises Act ( Закон за преобразуване и приватизация на държавни и общински предприятия : “the Privatisation Act”). She also expressed the wish to buy the plot of land on which the shop was built. As the municipal council did not reply, the applicant appealed in court against its tacit refusal. In a final judgment of 4 November 2003, rectified for errors in another judgment of October 2004, the Supreme Administrative Court quashed the municipality ’ s tacit refusal. That court remitted the case to the Tsarevo municipal council with instructions that privatisation proceedings be opened in respect of the shop and the plot of land. The court held that the applicant met all statutory conditions for purchasing the shop and land under the preferential privatisation procedure.

On an unknown date in 2004 the applicant again asked the Tsarevo municipal council to examine her privatisation proposal. As she did not receive a reply, she appealed in court against the municipality ’ s tacit refusal to sell the shop and land to her. In a final judgment of 28 November 2005, the Supreme Administrative Court held that the applicant met the conditions for privatisation of the shop and land. That court specified that, following changes in the country ’ s administrative map, the privatisation decision should be taken by the Primorsko municipal council and it remitted the case to it.

On two occasions, respectively on 25 November 2005 and 30 October 2006, the Primorsko municipal council explicitly refused to sell the shop and land to the applicant. She appealed. In a final judgment of 31 March 2008, the Supreme Administrative Court quashed those two refusals, finding that the Primorsko municipal council had been obliged to sell the shop and land to the applicant. That court briefly noted that, in any event, no proof had been presented before it by the municipal council in support of its complaint that the shop no longer physically existed.

2. Attempted eviction of the applicant and demolition of the shop

In the meantime, in March and April 1996, the municipal company managing the shop informed the applicant that she had no lease contract for 1996 and invited her to vacate the premises. On an unknown date in 1997, that company brought a rei vindicatio claim against the applicant. In a final judgment of 3 July 2002, the Supreme Court of Cassation dismissed the claim, holding that the applicant ’ s lease contract could not be terminated pending the privatisation proceedings brought by her.

On 16 February 1999 the mayor of Primorsko ordered the municipal company to demolish the shop. Following a co mplaint by the applicant, on 18 April 2000 the governor of Burgas Region quashed the order, finding that the mayor had not been competent to dispose of municipal property without a prior decision of the municipal council to that effect. The governor further stated that, pending the privatisation proceedings, the lease contract with the applicant could not be terminated.

It appears that, on an unknown date in 1999, the municipal company sold the shop to a private company. On 12 May 1999, the buyer, assisted by municipal employees, prevented the applicant from accessing the shop. Following a complaint by the applicant, on 27 May 1999 the public prosecutor established that the buyer had acted in an abusive manner and ordered the police to assist the applicant in regaining possession of the shop. According to the applicant, on re-entering the property she established that the electric supply had been cut. It appears that she ran the shop without electricity until an unspecified date in 2001, when the electric supply was resumed.

In 2000 the buyer brought a rei vindicatio claim against the applicant. In a final judgment of 14 October 2003, the Supreme Court of Cassation dismissed that claim. Without adjudicating on the validity of the sale of 1999, the court held that the applicant was protected by the Privatisation Act in that she could not be evicted from the shop pending the examination of her privatisation proposal.

On 11 May 2000 the Primorsko municipal council excluded the shop from the balance sheet of the municipal company. Finding that the shop was unattractive and unsafe due to the corrosion of its metal structure, the municipal council ordered its sale for demolition. In early February 2006 the municipal council apparently sold the shop to an individual. On 14 February 2006 the mayor ordered the new buyer to demolish the shop, which he did on 18 February 2006 with the assistance of the police. The applicant ’ s goods and belongings were listed and taken for safe-keeping. She was informed of the demolition by acquaintances, who happened to pass by the shop on the day it was pulled down. It is unclear whether she knew about the sale of the shop before it was demolished.

3. Complaints to the prosecutor

In 2006 the applicant requested that criminal proceedings be opened against the mayor and the president of Primorsko municipal council for breach of duties and obstruction of the enforcement of a final court judgment. In a decision of February 2007 the regional prosecutor dismissed her request. He found that it was impossible to open criminal proceedings, as the refusals to privatise the shop and land had been issued by the municipal council, a collective body, while criminal responsibility was personal.

4. Further developments

On 18 October 2006 and 22 May 2008 the applicant again requested the Primorsko municipal council to examine her privatisation proposal. In a letter of 10 September 2008 the Council informed her that her case was factually and legally complex, and that an ad hoc commission would be formed to propose a solution. On 20 January 2009 the ad hoc commission proposed that an inquiry be made with the Privatisation Agency. In two letters of 5 March 2009, sent to the applicant and the municipality respectively, the Privatisation Agency observed that the question about the demolition of the shop had not been raised in the proceedings before the courts. It nonetheless held that the municipality was obliged to comply with court judgments.

5. Claim for damages against the municipality

In February 2011, the applicant brought a claim for damages against the Primorsko municipality under the State Responsibility for Damage Act 1998. Her claim was split to be examined in two separate sets of proceedings. She sought damages in respect of the rent she had had to pay between January 1998, when she estimated that her request to privatise the shop and land should have been granted, and February 2006, when the shop had been demolished. Challenging the 14 February 2006 order of the mayor, she also sought damages for loss of opportunity as a result of the demolition of the shop. The applicant also challenged the impartiality of one of the judges on the bench as she considered the splitting of her claims into two separate sets of proceedings was arbitrary. The Burgas Administrative Court found that the applicant had no legal interest in pursuing the claim because she had not been the addressee of the mayor ’ s order. Although the shop had been demolished shortly after, that had been irrelevant for the legal proceedings brought by the applicant, given that she had explicitly sought damages as a result of the mayor ’ s order. The court dismissed her claim and terminated the proceedings. That finding was upheld by the Supreme Administrative Court in a final decision of 17 October 2011.

B. Relevant domestic law and practice

1. Privatisation

The relevant provisions governing the preferential privatisation procedure under Article 35 of the Transformation and Privatisation of State and Municipally ‑ Owned Enterprises Act of 1992 ( Закон за преобразуване и приватизация на държавни и общински предприятия : “the Privatisation Act”) are summarised in Basarba OOD v. Bulgaria , no. 77660/01 , § 18-22, 7 January 2010.

Pursuant to paragraph 7(2) of the transitional provisions to the Privatisation Act, where a tenant of a state-owned or municipally-owned property has submitted a privatisation proposal, his or her lease contract may not be terminated by the landlord pending the examination of this proposal.

The Privatisation Act 1992 was superseded by Privatisation and Post ‑ privatisation Act 2002 (“the 2002 Act”). According to paragraph 17 (3) of the transitional provisions of the “2002 Act”, the Privatisation Act 1992 remained applicable to all cases in which, at the moment of entry into force of the “2002 Act”, the refusal to open privatisation proceedings was either being challenged in pending court proceedings or was subject to a final judicial decision ordering the opening of privatisation proceedings.

2. Enforcement of final administrative court judgments

Enforcement of administrative court judgments was regulated by the Administrative Procedure Act 1979, as in force until July 2006, and – as regards judgments of the Supreme Administrative Court – by the Supreme Administrative Court Act 1997, as in force until 1 March 2007. The latter ’ s section 30 provided that the decisions of that court had an obligatory force vis-à-vis the parties. Its section 32 provided that a decision of that court was subject to an immediate enforcement by the administrative body concerned. Its Chapter IV contained administrative-penal provisions which envisaged the imposition of a pecuniary sanction of between 100 Bulgarian levs (BGN) and BGN 500 in cases in which administrative bodies did not enforce the court ’ s decisions.

The Supreme Administrative Court held in a decision of 2001 (see decision no. 2572 of 17 April 2001, case no. 4047/2000) that the applicable legislation at the time (Administrative Procedure Act 1979 and Supreme Administrative Court Act 1997) did not provide for time-limits within which the administrative body had to comply with judicial decisions. The decision as to when the judgment should be enforced was entirely in the hands of the administrative body concerned. The only procedure for the enforcement of administrative court decisions was an administrative pecuniary sanction (section 53 and following of the Administrative Procedure Act 1979, and section 51 and following of the Supreme Administrative Court Act 1997). The party aiming at obtaining enforcement did not need to appeal against a tacit or explicit refusal to enforce a judgment, but instead had to bring a separate complaint before the courts asking for the imposition of a pecuniary sanction on the administrative body which had not complied with the court ’ s judgment.

The Code of Administrative Procedure, which is currently in force, was adopted in 2006 and, with effect as from 1 March 2007, it repealed the Supreme Administrative Court Act 1997. It also repealed the Administrative Procedure Act 1979. Article 290 of the Code of Administrative Procedure 2006 regulates the enforcement of administrative court judgments vis-à-vis an administrative body obliged in a court judgment to deliver a non ‑ substitutable action. If the responsible official fails to act, the bailiff imposes on them weekly pecuniary sanctions, in the amount of between BGN 50 and BGN 1200, for so long as the act remains uncompleted. Under Article 294, the bailiff ’ s actions or failure to act can be appealed before the administrative courts. If the court quashes an action or declares it unlawful, it may order that specific measures be carried out by the administrative body within a fixed time-frame. In addition, Article 304 stipulates that an official who does not comply with a final judicial decision can be fined with a sum of between BGN 200 and BGN 2000. Finally, under Article 250, an individual with a legal interest can ask the courts to order the termination of an action by an administrative body or official which is not based on an administrative act or on the law.

3. State and municipal responsibility for damages

As in force of 12 July 2006, section 1 (1) of the State Responsibility for Damages Act 1998 provides that claims for compensation can be brought against municipalities, in addition to the State, for pecuniary and non ‑ pecuniary damages which are the result of acts, actions or omissions to act of their bodies or officials.

The responsibility of the public administration for an unlawful act arises if that act has been quashed in earlier proceedings. A claim for compensation can be brought in parallel with an appeal against an administrative act (Article 204 (2) of the Code of Administrative Procedure). The court before which the claim for compensation is pending has to pronounce itself on the lawfulness of the administrative act, action or inaction (Article 204 (4) of the Code of Administrative Procedure).

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that the municipal authorities infringed her statutory right, recognised with final court judgments, to purchase a leased property under the preferential privatisation procedure for tenants of municipally-owned property.

2. The applicant further complains, invoking Articles 6, 13 and 14 of the Convention, that the prosecuting authorities refused to open criminal proceedings against the municipal officials who were allegedly responsible for the non-compliance with the judgments in her favour.

3. In a letter of 5 September 2009, the applicant also complains under Article 1 of Protocol No. 1 and Article 13 that: (a) the municipal authorities infringed her statutory right to purchase the shop under the preferential conditions of the Privatisation Act; (b) the shop she rented was unlawfully demolished on 18 February 2006; and, (c) she did not have effective domestic remedies in respect of her complaints under Article 6 and Article 1 of Protocol No. 1. She also complains under Article 6 § 1 about the lack of legal certainty as a result of the non-enforcement of the Supreme Administrative Court ’ s final judgments.

4. In a letter of 17 April 2012, the applicant further complains under Article 6 § 1 that, in the proceedings for damages which she brought, the courts did not deal with the merits of her complaints, and that her case was not heard by an impartial tribunal established by law. She also complains under Article 1 of Protocol No. 1 that, as a result of the courts findings in those proceedings, her right to protection of her property was breached, and under Article 13 that she did not have an effective remedy in that respect .

QUESTIONS TO THE PARTIES

1. Was the applicant informed of the mayor ’ s order of 14 February 2006 to demolish the shop and, if yes, when?

2. Were the judgments of the Supreme Administrative Court , respectively of 4 November 2003, 28 November 2005 and 31 March 2008 implemented and, if yes, when and how?

3. If the above-mentioned judgments were not implemented, does the applicant have a continuous legitimate expectation, under Article 1 of Protocol No. 1, to have the judgments implemented, including by an alternative means in view of the demolition of the shop?

4. If the applicant has a continuous legitimate expectation to the above effect, did the failure of the authorities to implement the judgments amount to an unlawful or unjustified interference with the applicant ’ s right to peaceful enjoyment of her possessions under Article 1 of Protocol No. 1 ( Basarba OOD v. Bulgaria , no. 77660/01 , § 48, 7 January 2010 )?

5 . Did the applicant have at her disposal e ffective remedies under Article 13, in conjunction with Article 1 of Protocol No. 1, for the implementation of the Supreme Administrative Court judgments? Could she have sought forced implementation of the judgments under the Code of Administrative Procedure 2006, or acted preventively by bringing claims under the Code of Civil Procedure seeking to secure the physical preservation of the shop ( обезпечителни мерки )? Were such remedies effective? Did the applicant exhaust them?