FOURTH SECTION
 
 
 
 
 
 
CASE OF PULEVA AND RADEVA v. BULGARIA
 
(Application no. 36265/05)
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
14 February 2012
 
 
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Puleva and Radeva v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
 Päivi Hirvelä, President,
 Ledi Bianku,
 Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 24 January 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 36265/05) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Bulgarian nationals, Mrs Ivanka Georgieva Puleva and Mrs Daniela Panayotova Radeva (“the applicants”), on 26 September 2005. 2. The applicants were represented by Mrs I. Ivanova, a lawyer practising in Burgas. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice. 3. On 6 January 2010 the President of the Fifth Section decided to give notice of the application to the Government. 4. The application was later transferred to the Fourth Section of the Court, following the re‑composition of the Court’s sections on 1 February 2011. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1946 and 1967 respectively and live in Pomorie. 6. The two applicants are a mother and her daughter. The first applicant was an employee of a state-owned company. In 1991 and 1993 the company granted the tenancy of a house to the first applicant. In 1992 its managing body decided to sell the house to the applicants at its market value. The sale did not take place for unspecified reasons. In 1993 tenancy was also granted to the second applicant. 7. On an unspecified date, most probably in 1994, the title to the house was transferred to the municipality. The applicants are still occupying the house as tenants. 8. On an unspecified date the applicants requested the Pomorie Municipal Council to be allowed to buy the house. On 25 April 1994 the Municipal Council approved the sale and ordered the mayor to proceed with the relevant formalities and to conclude the sale until 30 June 1994. The sale did not take place for unspecified reasons. 9. On 17 November 1994 the applicants filed another request to the Municipal Council for purchasing the house. By letter of 26 June 1995 the municipality informed the applicants that in connection with their request they needed to submit certain documents. It is not clear whether the applicants submitted those documents. In any event, there is no information that the Municipal Council allowed the sale. 10. In the period of 1995-97 the applicants made major repairs to the house and in 2000 brought an action against the municipality, seeking reimbursement of the expenses they had incurred. 11. In a judgment of 26 August 2003 the Burgas Regional Court allowed partially the claim. Upon appeal, on 12 October 2004 the Burgas Court of Appeal rendered a judgment in the applicants’ favour. This judgment became final on an unspecified date shortly thereafter as the parties did not lodge a cassation appeal. 12. On 5 January 2005 the applicants obtained a writ of execution against the Pomorie municipality for 21,660 Bulgarian levs (BGN), the equivalent of approximately 11,000 euros (EUR), which included the amount awarded by the courts and the expenses incurred by the applicants during the court proceedings, as well as the relevant interest. 13. On 25 March 2005 the applicants made a fresh request to Pomorie Municipal Council to sell them the house. In particular, they proposed to the municipality when determining the price of the house to take into account the compensation awarded with the judgment of 12 October 2004 and to reduce the price accordingly. The applicants enclosed a copy of the writ. On 8 April 2005 they made an identical request to the mayor and again enclosed a copy of the writ. 14. It appears that the authorities did not respond to the requests and that the situation remained unchanged until June 2008. 15. On 9 June 2008 the applicants made another request to the Pomorie Municipal Council to sell them the house. On 18 July 2008 the Municipal Council ordered an inventory and assessment of the house. It also decided, inter alia, to explore other opportunities and offer another property in order to settle the debt. It does not appear that the Municipal Council took a decision to allow the sale. 16. On 6 April 2009 the applicants presented an assessment of the house to the municipality. Apparently, no further action in this respect was taken by the authorities. On 24 September 2009 the applicants challenged the tacit refusal of the mayor to enforce the Municipal Council’s decision to sell the house of 25 April 1994 before the Burgas Administrative Court. On 2 April 2010 the court rejected the appeal, finding that the tacit refusal in question was not an administrative act and was not subject to judicial review, as in concluding the sale the mayor had acted on equal footing with the applicants. The applicants did not file a cassation appeal. 17. Meanwhile, after the entry into force of the new Code of Civil Procedure in March 2008, on 26 August 2009 the applicants requested the bailiff to institute enforcement proceedings against the municipality. On 7 October 2009 the bailiff presented the writ before the financial department of the municipality for execution. 18. On 1 March 2010 the bailiff invited the municipality to pay the debt. On 26 March 2010 the municipality informed the applicants that the amount claimed would become part of the current or next-year budget plan as at that moment the municipality did not dispose of financial means to settle the debt. 19. On an unspecified date in the beginning of 2010 the municipality brought an action against the applicants before the Burgas Regional Court, seeking compensation from the applicants for unpaid rent. It appears that the proceedings were discontinued at first instance on 31 March 2010. It is not clear how the appeal proceedings unfolded. 20. In October 2010 the municipality initiated a procedure for reaching an agreement with the applicants in respect of the pending debt. The actual agreement was concluded on 11 May 2011. It stated that the municipality had a pending judgment debt against the applicants and that the applicants owed compensation for unpaid rent to the municipality. The parties agreed that the municipality would pay, in particular, the majority of the judgment debt and would sell, following the relevant formalities, the house to the applicants. 21. Separately, in 2005 the first applicant bought a portable kiosk and requested to be allowed to rent municipally-owned land in order to be able to exploit it. Apparently, this was refused by the municipality. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Civil Procedure
22. Pursuant to the Code of Civil Procedure of 1952 the creditor who had a pecuniary claim, stemming from a second-instance judgment in his favour against a state authority or a municipality, could not obtain a writ of execution before the said judgment becomes final (Article 239 § 2). This legal regime differed from the general regime which stipulated that the second-instance judgments were enforceable even before they had become final (Article 237 (a)). 23. A person with such an enforceable claim (e.g. a judgment debt) against a state authority or a municipality had to submit the writ of execution evidencing the claim to the authority’s financial department. The payment of the claim was to be made out of the funds earmarked for that purpose in the authority’s budget. If there were no funds available in the authority’s budget, the higher administrative authority had to ensure that funds became available in the budget for the following year (Article 399 § 2). Enforcement proceedings were not possible where the judgment debtor was a state authority or a municipality. 24. This legal regime changed with the entry into force of the new Code of Civil Procedure of 2007 in March 2008 which provided that pecuniary claims against municipalities were to be enforced in accordance with the general rules applicable to private debtors (Article 520 § 2). Only public municipal property and subsidies received from the State were immune from enforcement. 25. In February 2010 the Code of Civil Procedure of 2007 was amended again. It reinforced the old regime, providing that enforcement proceedings are not possible not only against state authorities but also against municipalities. By a decision of 21 December 2010 (реш. № 15 от 21.12.2010 г., по к. д. № 9/2010 г., обн., ДВ, бр. 5 от 14.01.2011 г.) the Constitutional Court struck down this amendment, thus allowing enforcement proceedings against municipalities. B. The State and Municipality Responsibility for Damage Act 1988 (the State Responsibility Act)
26. Pursuant to section 1 the State is liable for the damage suffered by individuals as a result of unlawful decisions, actions or omissions by its organs and officials, committed in the course of or in connection with the performance of administrative action. 27. According to the available recent case law of the Supreme Administrative Court the non-enforcement or the belated enforcement of a judgment by the administration could not be characterised as actions or omissions committed in the course of or in connection with the performance of administrative action and thus cannot serve as a basis of a claim for damages under the State Responsibility Act (реш. на ВАС № 7496 от 8 юни 2009 по адм. дело № 13108 от 2008 г.; опр. № 3292 от 8 март 2009 по адм. дело № 2207 от 2011 г.; опр. № 6129 от 11 май 2010 по адм. дело № 5549 от 2010 г.). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
28. The applicants complained that the Pomorie municipality had failed to honour its judgment debt in the applicants’ favour for a period of many years. They did not rely on a particular Article of the Convention. 29. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which provide, as relevant:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”
A. Admissibility
30. The Government contended that the applicants had failed to exhaust domestic remedies as they could have lodged an action under the State Responsibility Act against the municipality and claim compensation for the damage sustained because of the delay in the enforcement of the judgment.
31.

Article of the Convention at issue: Article 6
Outcome: violation