FIFTH SECTION
 
 
 
 
 
 
 
CASE OF STAMOVA v. BULGARIA
 
(Application no. 8725/07)
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
19 January 2017
 
 
FINAL
 
19/04/2017
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Stamova v. Bulgaria,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Angelika Nußberger, President,
 Erik Møse,
 Khanlar Hajiyev,
 André Potocki,
 Yonko Grozev,
 Síofra O’Leary,
 Carlo Ranzoni, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 13 December 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 8725/07) 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”) on 2 February 2007 by a Bulgarian national, Ms Elka Dimitrova Stamova (“the applicant”), who was born in 1958 and lives in Burgas. The applicant complained both in her personal capacity and as a sole trader, “Ella Prim – Elka Stamova” (the “sole trader”). 2. The applicant was represented by Mr M. Ekimdzhiev and Ms G. Chernicherska, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. 3. The applicant alleged, in particular, that the failure of the municipal authorities to sell to her a municipally-owned shop, as ordered in three final judgments in her favour, had breached her right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1. She also submitted that she did not have an effective remedy in this connection. 4. On 6 May 2013 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s privatisation request and ensuing judicial proceedings
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. 1. First set of judicial proceedings
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. 2. Second set of judicial proceedings
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. 3. Third set of judicial proceedings
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. B. The attempted eviction of the applicant and demolition of the shop
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. C. Complaints to the prosecutor
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. D. Further developments of relevance
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. E. Claims for damages
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). 1. Proceedings against the municipality
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. 2. Proceedings against the municipal council
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. (a)  At first instance
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.

Outcome for Article 13: violation