VALKOVA v. BULGARIA - 48149/09 (Judgment : Article 6 - Right to a fair trial : Fifth Section Committee) [2019] ECHR 10 (10 January 2019)

JUDGMENT STRASBOURG 10 January 2019 This judgment is final but it may be subject to editorial revision. In the case of Valkova v. Bulgaria, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Gabriele Kucsko-Stadlmayer, President, Yonko Grozev, Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 4 December 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 48149/09 ) 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 a Bulgarian national, Ms Rayna Nikolaeva Valkova ("the applicant"), on 28 July 2009. 2. The applicant was represented by Mr B. Mihaylov, a lawyer practising in Sofia. The Bulgarian Government ("the Government") were represented by their Agent, Ms K. Radkova, of the Ministry of Justice. 3. On 23 March 2017 the President of the Section to which the case has been allocated decided, under Rule 54 § 2 (b) of the Rules of Court, that notice of the application should be given to the Government of Bulgaria. The application was communicated to the Government on 5 April 2017. 4. On 23 February 2018 the Government submitted a unilateral declaration in which they acknowledged a violation of Article 6 § 1 of the Convention as a result of the applicant not having had access to a court in connection with her civil claim. They also offered to pay a lump sum covering any and all damage sustained by the applicant and invited the Court to strike the case out of its list of cases. 5. On 7 May 2018 the Government's unilateral declaration was examined by the Court, which decided not to accept it. The applicant was thereafter invited to submit a claim for just satisfaction. The Government were given an opportunity to comment on it. On 17 August 2018 the Government filed observations on the case after their related request had been allowed by the President of the Section. The applicant commented on those observations on 10 October 2018. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1979 and lives in Sofia. 7. The applicant's grandfather owned part of a real estate. He donated his part to the applicant's cousins in 1997. The applicant's grandfather died on 16 January 2003. 8. On 13 February 2004 the applicant brought proceedings under section 30 of the Inheritance Act 1949 before the Sofia District Court. She claimed that, by donating his part in the immovable property in 1997, her grandfather had infringed her right to a "reserved share" in his inheritance, given that the immovable property in question represented his entire estate. In a decision of 2 March 2005 the court upheld her claim by diminishing the part of the estate donated to the applicant's cousins and restoring the applicant's "reserved share" in her grandfather's inheritance. 9. Following an appeal by the other party, on 20 September 2007 the Sofia City Court quashed the first instance court's judgment and rejected the applicant's claim for restoration of her "reserved share" in her grandfather's estate. In particular, referring to Interpretative Decision No. 1 of 4 February 2005 by the Supreme Court of Cassation ("SCC"), the court found that the applicant had not complied with the statutory requirements for claiming her reserved share. The court held that, given that her cousins to whom the real estate had been donated could not be considered "heirs-at-law", the applicant should have claimed the reserved share of the inheritance by means of an "inventory". 10. Following a cassation appeal brought by the applicant, on 24 March 2009 the SCC upheld the Sofia City Court's findings in full in a final decision. II. RELEVANT DOMESTIC LAW AND PRACTICE 11. The statutory conditions for claiming a "reserved share" in an inheritance and their interpretation by the domestic courts, including Interpretative Decision No. 1 adopted by the SCC on 4 February 2005, have been set out in the case of Petko Petkov v. Bulgaria (no. 2834/06 , §§ 14-19, 19 February 2013). In particular, since the adoption of the said domestic interpretative decision, claiming an inheritance through an "inventory" has been considered a pre-requisite for bringing a claim against all successors by deed or will, save for those with immediate priority of succession. That decision did not envisage any interim rules or transition period for its application to pending proceedings. 12. Pursuant to Article 303 § 1 (7) of the Code of Civil Procedure of 2007 ("the CCP"), civil proceedings may be reopened when a judgment of the European Court of Human Rights establishes that the Convention has been violated and when a fresh examination of the case is necessary in order to eliminate the consequences of the violation. The interested party may make the request no later than six months after the judgment has become final (Article 305 § 2 of the CCP). The request is examined by the SCC (Article 307 of the CCP). Following the final judgment of the Court in the case of Petko Petkov , cited above, the proceedings at the national level were reopened. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 13. The applicant complained under Article 6 § 1 about having been deprived of access to a court as a result of the domestic courts' refusal to hear her inheritance claim on the basis of a newly adopted interpretative decision introducing a new procedural requirement with which the applicant could not comply. Article 6 § 1 of the Convention provides as follows: "In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..." A. Admissibility 14. The Court observes that the applicant had a statutory right in domestic law (under the Inheritance Act 1949), arising at the time of her grandfather's death, to claim the reduction of the dispositions made by him during his lifetime if they happened to infringe her entitlement to a "reserved share". Consequently, the claim brought by the applicant falls within the scope of Article 6 of the Convention under its civil head. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions of the parties 15. The Government emphasised that, as the present case only concerned lack of access to a court, the Court had to limit its examination to that issue and not deal with the question of the inheritance claim, since competent to pronounce on the applicant's civil claim were only the national jurisdictions. They referred in that connection to the situation of the applicant in the case of Petko Petkov , cited above, pointing out that he had been able to have his inheritance claim heard by the national jurisdictions after the judgment of the Court in his application had become final. The Government also stated that reopening of the proceedings at the national level was not possible if the case were resolved by a friendly settlement between the parties, or via a unilateral declaration of the Government (see paragraph 12 above). 16. The Government then submitted that they maintained their unilateral declaration even at this stage of the procedure. They pointed out in that connection that a judgment by the Court finding a violation of the applicant's right of access to a court risked interfering with the principle of legal certainty. The reason was that the events at the origin of the present application had taken place many years earlier and the final domestic judicial decision had been that of the SCC of 24 March 2009. Thereafter, bona fides third parties might have acquired property rights over the estate in question and a reopening of the proceedings as a result of the Court's judgment would pose a threat to their lawfully acquired rights. Also, given the lapse of time, it was highly likely that the files of this case were either archived or even destroyed. The Government underlined that reopening of proceedings which had ended with a final judgment had to be distinguished according to the type of proceedings: in that sense, in the criminal or administrative law context one of the parties was always the State or an administrative authority and therefore the risk of interfering with bona fides third parties' rights was minimal. 17. The applicant agreed with the Government that the likelihood of success for her if the proceedings were reopened at the national level was minimal, in particular because, even if the estate had not been transferred to third parties, under domestic law those who have held it in good faith for a certain number of years acquired the right of ownership. 2. The Court's assessment 18. The Court notes that the second instance court and the SCC, in applying a new interpretation of the procedure for inheritance, dismissed the applicant's claim on the ground that she had not claimed the inheritance through the preparation of an "inventory" (see paragraphs 9 and 10 above). 19. It therefore falls to the Court to ascertain whether the procedural restriction applied by the court in the domestic final judgment was clear, accessible and foreseeable within the meaning of the Court's case-law, whether it pursued a legitimate aim and whether it was proportionate to that aim (see, mutatis mutandis , Lupaş and Others v. Romania , nos. 1434/02 , 35370/02 and 1385/03 , § 67, ECHR 2006-XV (extracts)). 20. The Court has already had the opportunity to examine this question in the case of Petko Petkov , cited above in paragraph 11. The Court found in that case that when the applicant had brought his claim domestically he could reasonably have expected that his uncle would be considered by the courts as an "heir-at-law" and that the requirement to list the property comprising the estate in an "inventory" would accordingly not apply to his case. The new interpretative decision adopted by the SCC in the meantime had changed the scope of the term "heir-at-law" to exclude the applicant's uncle from that category. That new interpretation had not only prevented the applicant from having his claim determined by a court, but it also had become an unsurmountable obstacle to any future attempts on his part to recover his reserved share, given that the time-limit for preparing an "inventory" had long expired (see Petko Petkov , cited above, §§ 7 and 14). 21. In the present case, similarly to the situation in Petko Petkov , the applicant had applied to court to have her "reserved share" determined about a year before the adoption of the new interpretative decision by the SCC. Consequently, it was impossible for her to have complied with that newly adopted procedural requirement, given that the applicable law only gave applicants three (at the most six) months to resort to an "inventory", counted from the moment of learning about the death of the relative whose heirs they were. The applicant's grandfather had died more than two years before the adoption of the interpretative decision in question. Accordingly, the Court finds that the application to the applicant's case of the new procedural requirement prevented her from having her claim determined by a court in those proceedings or in any future proceedings, given that the time-limit for complying with the new requirement had long expired. Such a situation runs contrary to the right of an effective access to a court under Article 6 (see, similarly, Petko Petkov, cited above, § 34). 22. The foregoing considerations are sufficient to enable the Court to conclude that there has been a breach of Article 6 § 1 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 23. Article 41 of the Convention provides: "If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party." A. Damage 24. The applicant claimed 47,325 euros (EUR) in respect of pecuniary damage representing the current market value of the "reserved share" of her grandfather's inheritance. Alternatively, she asked to be awarded compensation for the inability to peacefully use her "reserved share" of the inheritance, which she estimated at EUR 300 per month counted from the date of her bringing her related claim before the domestic courts, namely 13 April 2004. Finally, the applicant stated that, even if the Court were to find a violation of the Convention, she would not be able to recover her property or bring a related claim domestically. The reason for this was that the other heirs have held the whole real estate in good faith for many years and have thus acquired ownership rights over it by virtue of adverse possession. 25. The applicant further claimed EUR 20,000 in respect of non-pecuniary damage for the anxiety and suffering which she had endured as a result of having been deprived of her share in the inheritance. 26. The Government contested these claims. They pointed out that the amount in respect of pecuniary damage was unjustified and did not correspond to that usually awarded under the Court's practice in respect of breaches of the right of access to a court. In addition the Government emphasised that an award under Article 41 was only due if the matter could not be resolved at the national level. They explained that that was not the case in the applicant's situation given that, if a violation of Article 6 § 1 were established by the Court, the applicant was entitled under national law to seek reopening of the proceedings, following which the national courts would decide on her claim. As regards the applicant's claim in respect of non-pecuniary damage, the Government considered it exaggerated and unjustified. 27. The Court notes that in the present case an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6 § 1 of the Convention, since this was the issue examined by it. The Court does not discern any causal link between the violation found and the applicant's claim in respect of pecuniary damage. In that connection, the Court cannot speculate about what the outcome of the proceedings would have been had her claim been examined domestically in conformity with Article 6 § 1 of the Convention. Accordingly, it dismisses the claim for damages for pecuniary loss. 28. The above said, the Court considers that the applicant must have suffered non-pecuniary damage for which the finding of a violation does not constitute sufficient reparation. Ruling on an equitable basis as required by Article 41 of the Convention, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage. B. Costs and expenses 29. The applicant also claimed EUR 5,235.33 for the costs and expenses incurred before the domestic courts in the proceedings for restoring her "reserved share" in the inheritance. 30. The Government submitted that the amount sought for costs and expenses was exaggerated and entirely unjustified as no document in relation to it had been presented. 31. The Court reiterates that, as regards the costs and expenses incurred in the domestic proceedings, it will uphold such claims only in so far as they relate to the violations it has found (see Avdić and Others v. Bosnia and Herzegovina , nos. 28357/11 , 31549/11 and 39295/11 , § 51, 19 November 2013; Duraliyski v. Bulgaria , no. 45519/06 , § 45, 4 March 2014, and Penchevi v. Bulgaria , no. 77818/12 , § 88, 10 February 2015). There is no evidence that the applicant incurred any costs and expenses before the domestic authorities in seeking redress in connection with the violation of the Convention found in the present case. Accordingly, the Court rejects this claim. 32. The Court notes furthermore that no claim has been made in respect of the costs and expenses incurred in the proceedings before it and accordingly does not award any amount in that respect. C. Default interest 33. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 6 § 1 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Bulgarian levs at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 10 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Milan Blaško Gabriele Kucsko-Stadlmayer Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII