STEFANOV v. BULGARIA
Inadmissible
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev
1. The applicant, Mr Stoyan Dimitrov Stefanov, is a Bulgarian national who was born in 1950 and lives in Sofia. He was represented before the Court by Ms I. Ivanova, a lawyer practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3. An ancestor of the applicant, of whom the applicant is the only heir, owned land in the city of Kyustendil that was expropriated after 1944. Following the adoption of denationalisation legislation in Bulgaria, in 1997 the applicant initiated restitution proceedings. 4. In a decision of 5 August 1998 the governor of the Sofia region (“the Sofia governor”) held that the land could not be restituted in kind, and awarded the applicant compensation in lieu of restitution. The Sofia governor found that the land had been taken for the construction of buildings and streets, that the construction works had been completed, and that the land which remained unoccupied was insufficient to be registered as separate plot. These findings were reached on the basis of documents submitted by the Kyustendil municipality, including a letter dated 30 June 1998 stating expressly that the unoccupied land was insufficient for a separate plot. 5. According to the applicant, since he had no ground to question the veracity of the documents submitted by the municipality, he did not seek a judicial review of the Sofia governor’s decision, which thus became final. In June 1999 the applicant received the compensation awarded to him, which took the form of compensation bonds. 6. Subsequently the applicant became aware that at about the time when he had sought restitution the municipality had initiated a procedure aimed at separating that part of the land claimed by him which had been unoccupied by buildings or other construction and creating from it an independent plot. The creation of a new plot with a surface of 2,600 square metres was approved by the mayor of Kyustendil in a decision of 5 February 1999. After that the plot was sold to a third party and construction works were commenced. 7. In 2002 the applicant brought a tort action against the Kyustendil municipality, arguing that it had failed to submit to the Sofia governor correct information regarding the status of the land claimed by him. He considered that this had caused him damage, in that had he been awarded partial restitution in kind on the basis of the correct information, he would have received more than what he had actually received after the sale of his compensation bonds. The applicant assessed the losses he had incurred at 30,329 Bulgarian levs (BGN). 8. The Sofia City Court commissioned an expert report, which confirmed that the documents submitted by the Kyustendil municipality in the restitution proceedings had not accurately reflected the land’s true status. In point of fact, the land unoccupied by construction at the time had been sufficient to form a separate plot under the statutory requirements. The Sofia City Court accepted the report’s findings. 9. In a judgment of 30 March 2005 it dismissed the applicant’s action. It noted that a number of circumstances should have been established in order to substantiate the tort claim; however, it had not been shown that the land claimed by the applicant had been expropriated on any of the grounds giving rise to an entitlement to restitution, that the applicant had in fact sought restitution in kind, and that, lastly, the Sofia governor had refused such restitution in kind (and if he had, on what legal ground). Thus, it had not been shown that a causal link existed between the alleged damage and the defendant’s actions. 10. On appeal, on 5 April 2006 the above judgment was upheld by the Sofia Court of Appeal. It also pointed out that in order to prove his claim the applicant had had to establish a causal link between the alleged damage and the actions of the defendant, consisting of a number of elements, and that the failure to establish just one of them would lead to the rejection of the claim. Like the first-instance court, the Court of Appeal pointed out that a number of elements in the causal link were missing. It held that it was not clear on what evidence the Sofia governor had relied in granting compensation in the restitution proceedings. It further held that the applicant had not requested restitution in kind and that it was not proven that he had been entitled to restitution in kind, as it was not established that the documents submitted by the Kyustendil municipality had been the only basis for holding that such restitution was impossible. 11. Upon a further appeal by the applicant, the Court of Appeal’s judgment was upheld by the Supreme Court of Cassation in a final judgment of 29 June 2007. The Supreme Court’s main argument was that the applicant had failed to apply for a judicial review of the Sofia governor’s decision of 5 August 1998 and seek to establish that a partial restitution in kind had been possible. Thus, any damage incurred by the applicant had not been due to actions on the part of the Kyustendil municipality but rather to his own failure to act. 12. In separate proceedings, in 2001 the applicant brought an action against the governors of the Sofia and Kyustendil regions. That action was dismissed in a final judgment by the Supreme Court of Cassation of 4 February 2005. On 20 June 2006 the Supreme Court also dismissed an application by the applicant for the re-opening of the proceedings.