CASE OF STAMOVA v. BULGARIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev
5. On 28 April 1993 the applicant rented a municipally-owned shop in the town of Primorsko. The shop consisted of a metal structure built on a concrete foundation on a municipally-owned plot of land. 6. On 18 September 1995 the applicant asked Tsarevo Municipal Council to be allowed to purchase the shop under the preferential privatisation procedure for tenants of State and municipally-owned property, as 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 – hereinafter “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 applied for judicial review of the municipality’s tacit refusal to sell the shop to her. The first-instance court rejected that application on 31 March 2003. 7. In a final judgment of 4 November 2003, rectified for errors in October 2004, the Supreme Administrative Court quashed the lower court’s judgment, finding that it had not dealt with all the evidence submitted by the applicant. The last-instance court then observed that the parties were in agreement that, at the time of her privatisation request, the applicant had had a valid rent contract for the shop with the municipal authorities. It further found, on the basis of the submitted evidence, that the shop constituted a separate property unit measuring 140 square metres and that all statutory conditions for privatising the shop under the preferential privatisation procedure had been present. As to the land on which the shop was built, the court observed that it was not part of the rental contract and thus its inclusion in the privatisation of the shop was a matter of discretion for the municipal authorities. The court referred the case back to Tsarevo Municipal Council with instructions for it to open a privatisation procedure by offering to sell the shop to the applicant. 8. In 2004 the applicant again asked Tsarevo Municipal Council to examine her privatisation proposal. As she did not receive a reply, she applied for judicial review of its tacit refusal to sell the shop to her. 9. In a final judgment of 28 November 2005, the Supreme Administrative Court held that the applicant met the conditions for the privatisation of the shop. The court specified that, following changes to the country’s administrative map, the privatisation decision had to be taken by Primorsko Municipal Council and it referred the case back to it. 10. On 25 November 2005 and later again on 30 October 2006, Primorsko Municipal Council explicitly refused to sell the shop to the applicant. She brought judicial review proceedings in respect of those refusals. 11. In a final judgment of 31 March 2008 the Supreme Administrative Court revoked the refusals as null and void, finding that the municipal council had been obliged to sell the shop to the applicant. The court briefly noted that, whatever the circumstances, no proof had been presented to it by the municipal council in support of its objection that the shop no longer physically existed. 12. 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 lodged a rei vindicatio claim against the applicant. In a final judgment of 3 July 2002, the Supreme Court of Cassation dismissed the company’s claim, holding that the applicant’s lease contract could not be terminated pending the privatisation procedure pursued by her. 13. On 16 February 1999 the mayor of Primorsko (hereinafter “the mayor”) ordered the municipal company to demolish the shop. Following a complaint lodged by the applicant with the Governor of the Burgas Region, the latter revoked the mayor’s order on 18 April 2000, 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 procedure, the lease contract with the applicant could not be terminated. 14. 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 entering the shop. Following a complaint lodged by the applicant with the prosecutor, on 27 May 1999 the latter 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, after she had re-entered the property she discovered that the electricity supply had been cut off. It appears that she ran the shop without electricity until an unspecified date in 2001, when the electricity supply was restored. 15. In 2000 the buyer brought a rei vindicatio claim in court against the applicant. In a final judgment of 14 October 2003, the Supreme Court of Cassation dismissed that claim, confirming the reasoning in the lower court’s judgment. The last-instance court found in particular that the buyer had not acquired ownership of the shop and that, in any event, 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. 16. Primorsko Municipal Council considered that the shop was dilapidated and unsafe on account of the corrosion of its metal structure and ordered its sale for demolition. At some point in 2005 the municipal council sold the shop to an individual and on 14 February 2006 the mayor ordered the new buyer to demolish the shop. Even though on the following day, 15 February 2006, the mayor revoked his own order, the buyer dismantled the shop on 18 February 2006 with the assistance of the police. The applicant was informed of the demolition by an acquaintance who happened to pass by the shop on the day it was pulled down. She had not known about the sale of the shop before it was demolished. 17. The parties dispute what happened to the applicant’s goods and belongings. According to the Government, they were listed and taken for safekeeping. According to the applicant, they were destroyed together with the shop. 18. In 2006 the applicant requested that criminal proceedings be opened against the mayor and the chairperson 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 prosecutor refused her request. He found that it was impossible to open criminal proceedings as the refusals to privatise the shop had been issued by the municipal council, a collective body, whereas criminal responsibility was personal. 19. On 18 October 2006 and 22 May 2008 respectively the applicant again requested 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 enquiry be made with the Privatisation Agency (the State body in charge of the privatisation of State-owned property). In two letters dated 5 March 2009, sent respectively to the applicant and the municipality, the Privatisation Agency observed that the question about the demolition of the shop had not been raised in the proceedings before the courts. The Agency nonetheless held that the municipality was obliged to comply with court judgments. 20. In February 2011, the applicant lodged a claim with the Burgas Administrative Court for damages against the Primorsko municipal authorities for their failure to implement the final judgments in her favour. The claim was lodged under the State and Municipalities Responsibility for Damage Act 1988 (“the SMRDA”). The court split the claim to be examined into two separate sets of proceedings – the first one against the municipality (община) and the second one against the municipal council (общински съвет). 21. In the first set of proceedings, in which she challenged the mayor’s order of 14 February 2006 that the shop be demolished (see paragraph 16 above), the applicant sought damages for loss of opportunity (пропуснати ползи). The Burgas Administrative Court found that the applicant had no standing to pursue this claim because she had not been the addressee of the mayor’s order. Although the shop had been demolished shortly after the order had been issued, that had been irrelevant in respect of the legal proceedings brought by the applicant, given that she had sought compensation for damage specifically stemming from the mayor’s order. The court dismissed the applicant’s claim and terminated the proceedings. That ruling was upheld by the Supreme Administrative Court in a final decision of 17 October 2011. 22. In the second set of proceedings the applicant sought both pecuniary and non-pecuniary damages stemming from the failure of the municipal council to decide on her privatisation request by implementing the final court judgments ordering it to offer to sell the shop to her. 23. She specified that she sought pecuniary damages in respect of: the rent she had had to pay between January 1998, when her request to privatise the shop should have been granted, and February 2006, when the shop had been demolished; those of her belongings that had been destroyed together with the shop; the loss of income resulting from the impossibility of collecting rent from a company with which she had concluded a contract on 17 January 2006 in respect of part of the shop; and the impossibility of increasing her investment by buying the plot on which the shop stood and by building upon it. 24. In addition, the applicant sought non-pecuniary damages in respect of the intense stress and emotional suffering that had led her to fall into a lasting and severe depression, which had been the result of the shop’s demolition and of the failure of the municipal council to sell it to her, despite the final judgments. She provided medical records in respect of her failing health and the related hospital treatment she had undergone. 25. Examining the applicant’s claim, the Burgas Administrative Court considered that she was complaining of the municipal council’s tacit refusal to reply to her request of 23 May 2008 to buy the shop. On 3 January 2014 the court found that both claims, for pecuniary and non-pecuniary damages, were admissible. 26. As to the merits, the court held that the claim for pecuniary damages was unjustified and also that there was no causal link between the municipal council’s refusal to privatise the shop and the applicant’s claims for loss of financial opportunity as a result of the impossibility of buying the land and building on it. 27. As regards the applicant’s claim for non-pecuniary damages, the court accepted it as justified on the basis of the evidence submitted during the proceedings (see paragraph 24 above). In particular it found that it had been demonstrated that the applicant had suffered significantly as a result of the municipal council’s refusal to open a privatisation procedure vis-à-vis her. The court held that the applicant’s suffering had been caused by the municipal council’s tacit refusal to act upon the final court judgment of 2008. The applicant had succumbed to depression, which had manifested itself in acute feelings of hopelessness and a perception that any future efforts would be futile, as well as in feelings of helplessness, insomnia, a disturbance of memory functions, and attention disorder. Those conditions had further led to a serious deterioration in the applicant’s family environment, given that she had directed all her frustration and negative emotions towards her young daughter. The court awarded the applicant the entirety of her claim, namely about 20,000 euros (EUR), plus interest, as well about EUR 6,500 for costs and expenses. It further declared null and void the municipality’s tacit refusal to act upon her request of 23 May 2008, and returned the case to it for it to take the appropriate action. 28. After an appeal lodged by the municipal council, the Supreme Administrative Court found that the lower court had wrongly concluded that the municipal council’s silence amounted to a new tacit refusal to privatise the shop. The applicant was seeking damages stemming from the absence of a privatisation procedure launched by the municipality in respect of the shop. The administrative procedure concerning the privatisation of the shop had begun with the applicant’s initial request of 18 September 1995 (see paragraph 6 above) and had not been completed. The applicant’s subsequent requests to the same effect had not created a new obligation on the part of the municipality concerning the privatisation of the same shop. 29. The last-instance court further held that, as regards the first final court decision in the applicant’s favour (that of 4 November 2003) it had not created obligations on the part of Primorsko Municipal Council, given that the respondent party required to act under that decision had been the Tsarevo municipality (see paragraph 7 above). Primorsko Municipal Council had only been expected to act in respect of the second final judgment on that question (see paragraph 9 above). 30. As regards the municipal authorities’ explicit written refusal of 25 November 2005 to open a privatisation procedure (see paragraph 10 above), the court noted that that refusal had been declared null and void in 2008 by another of its benches for being contrary to the first final court decision of 2003 (see paragraph 11 above). 31. The last-instance court conceded that, objectively, the declaration of the municipal council’s refusal as null and void corresponded to one of the statutory prerequisites for the pecuniary liability of the council. However, the remaining conditions for the council being held so liable had not been met. In particular, the court held – without elaborating further – that the applicant had failed to prove both the existence of actual damage and the causal link of any such damage to the municipal council’s refusal to privatise the shop by offering to sell it to her. 32. Furthermore, the applicant’s claim in respect of the council’s refusal of 25 November 2005 had been inadmissible on account of the expiry of the five-year limitation period, as calculated as of the date of that refusal. Moreover, the council tacit refusal to act upon the 31 March 2008 court decision was of no consequence, given that the shop had no longer physically existed at that time. 33. Importantly, the obligation on the municipal authorities to privatise property under the Privatisation Act existed only vis-à-vis individuals who met the conditions stipulated under that Act. The applicant, however, was not among those persons. The reason was that she had not had a valid contract with the municipality at any of the times when she had requested the latter to sell the shop to her, because the contract concluded in 1993 had expired prior to those times. 34. Moreover, as a matter of principle, the liability of a municipality, or of the State for that matter, under the SMRDA did not include loss of opportunity but only already incurred losses. Consequently, the applicant could not claim loss of opportunity in these proceedings. 35. In respect of the applicant’s claim for non-pecuniary damages, the court emphasised that these could only be incurred by an individual and not by an enterprise. It was true that in legal terms the sole trader was a physical, as opposed to a legal, person; however, the damage suffered by the applicant stemmed specifically from the economic activity carried out by her in her capacity as a sole trader. Consequently, the applicant as an individual was not entitled to compensation for damage that could have been sustained in the context of the economic activity of the trader. In view of the above, the lower court had wrongly granted the applicant’s claim for non-pecuniary damages. 36. On the basis of the above, the Supreme Administrative Court quashed the lower court’s judgment and dismissed the applicant’s claims in a final judgment on 3 December 2014. It also held that the applicant had to pay to the municipal council about EUR 4,000 for legal costs and expenses. 37. On 5 January 2015 the applicant asked the Supreme Administrative Court to rectify its judgment of 3 December 2014 in the part in which it had ordered her to pay the legal costs claimed by the other party (the municipal council). She pointed out that the municipal council had not presented proof that it had indeed incurred those expenses and that, in any event, the council should not be allowed to benefit from its unlawful failure to implement the judgments in her favour. The applicant sought, alternatively, a reduction in those costs. 38. The Supreme Administrative Court found her request admissible but rejected it as unjustified (неоснователна) in a final decision of 2 June 2015. On 25 November 2015 the bailiff invited the applicant to voluntarily comply with the final judgment of 3 December 2014, indicating that failure to pay the sum due would result in the forced sale of items of the applicant’s personal movable and immovable property.