European Court of Human Rights
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Cite as: [2007] ECHR 813
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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
59993/00
by BORNAZOVI
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 18 September 2007 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 9 February 2000,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Georg Bornazov and Mr Vasil Bornazov, are Bulgarian nationals who were born in 1959 and 1952 respectively and live in Sofia. They were represented before the Court by Mrs N. Sedefova, a lawyer practising in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are brothers. In October 1989 the applicants’ parents together with the first applicant purchased from the Sofia municipality a four-room 171 square-metres apartment which they had inhabited as tenants for several decades. The apartment had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following several years.
After the adoption of the Restitution Law (ЗВСОНИ), in February 1992 the former pre-nationalisation owners brought proceedings under section 7 of that law against the applicants’ parents and the first applicant. After the applicants’ mother’s death in 1994, the second applicant also got involved in the proceedings. The applicants’ father passed away in 1999.
After September 1992, the District Court held fourteen hearings. The reasons for the adjournments varied. Several of them were necessary as the parties sought additional expert opinions or adduced supplementary evidence. Two adjournments were caused by the plaintiffs’ failure to clarify their claims. Two adjournments were caused by illness or unavailability of the plaintiff’s representative. One adjournment became necessary following the death of the applicants’ mother. Several hearings were held at intervals exceeding six months. The last hearing took place on 21 February 1996.
By judgment of 2 September 1996, the District Court dismissed the claim against the applicants. Apparently, that judgment was notified to the parties three or more months later.
In January 1997 the plaintiffs appealed to the Sofia City Court which held a hearing on 9 February 1998, the hearing listed for 20 October 1997 having been adjourned at the request of the plaintiffs.
By judgment of 28 April 1998 the Sofia City Court quashed the District Court judgment and granted the claim. It found that at the relevant time the area where the apartment was located had been earmarked for construction of buildings of more than three storeys, according to the building plan of Sofia. In such circumstances the relevant legislation prohibited the sale of apartments in three-storey buildings, such as the building in which the applicants had bought an apartment. It followed that the 1989 transaction was null and void. The applicants were ordered to vacate the apartment.
The applicants filed a cassation appeal, which was examined by the Supreme Court of Cassation at a hearing on 27 May 1999.
On 19 August 1999 the Supreme Court of Cassation upheld the Sofia City Court’s judgment. It noted that at the relevant time the building plan provided that an additional fourth storey was to be constructed over the existing building where the applicants lived. It followed that the building had been earmarked for construction of buildings of more than three storeys and that, therefore, the prohibition to sell apartments applied.
The applicants’ request for reopening of the proceedings was refused on 14 November 2002.
The applicants vacated the apartment in September 1999. In March and April 2001 each of the families of the two applicants was granted the tenancy of a municipal apartment. Each apartment had two rooms. The apartments covered 75 and 89 square metres respectively. Both apartments needed renovation.
The applicants obtained compensation bonds for 125,800 Bulgarian levs (“BGN”) (the equivalent of approximately EUR 63,500), which represented the value of the apartment they lost as assessed by an expert in 2001. The applicants sold their bonds in instalments, between May 2003 and the beginning of November 2004, at a time when bonds were traded between 21 and 35% of their face value. The net sum obtained by the applicants was BGN 30,367 (the equivalent of approximately EUR 15,500).
In November 2002 and December 2003 the first and the second applicants respectively purchased from the Sofia municipality, at regulated prices, the apartments they had rented in 2001. The price paid for the two apartments taken together, including tax, was BGN 37,153 (the equivalent of approximately EUR 19,000).
B. Relevant background facts, domestic law and practice
The remaining relevant background facts and domestic law and practice have been summarised in the Court’s judgment in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.
COMPLAINTS
The applicants complained, relying on Article 1 of Protocol No. 1 to the Convention, that they had been deprived of their property arbitrarily, through no fault of theirs and without adequate compensation.
The applicants complained under Article 6 1 of the Convention that the civil proceedings in their case had been excessively lengthy.
THE LAW
Article 1 of Protocol No. 1 reads as follows:
“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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court observes that the present case is of the same category of cases as those examined in its Velikovi and Others judgment, cited above. It refers to its analysis of the relevant background and the facts of the similar cases (see §§ 159-249).
In the present case the events complained of undoubtedly constituted an interference with the applicants’ property rights.
The interference was based on the relevant law and pursued an important aim in the public interest - to restore justice and respect for the rule of law. As in Velikovi and Others, cited above, §§ 62-176, the Court considers that in the particular circumstances the question whether the relevant law was sufficiently clear and foreseeable cannot be separated from the issue of proportionality.
Applying the criteria set out in Velikovi and Others (see §§ 183-192 of that judgment), the Court notes at the outset that the applicants’ title was challenged within the relevant one-year time limit after the adoption of the Restitution Law in 1992. The present case, therefore, did not involve a deviation from the transitory nature of the restitution legislation.
The Court further observes that the applicants’ title was declared null and void because the apartment was in a three-storey building located in an area which, at the relevant time, had been earmarked for higher construction according to the area building plan. The relevant law prohibited the sale of apartments in such circumstances.
The irregularity found undoubtedly concerned substantive provisions of the relevant housing regulations. However, it cannot be characterised as a material breach of those regulations. In particular, since the building plan simply envisaged the construction of a fourth floor over the existing structure, it is clear that the sale of the apartment to the applicants could not possibly hamper the realisation of that plan. Furthermore, that plan was never realised. In addition, having regard to the criteria set out in Velikovi and Others, cited above, the Court considers that the applicants were not responsible for the defect that rendered their title null and void.
Absent other relevant circumstances, in such cases the fair balance required by Article 1 of Protocol No. 1 to the Convention could not be achieved without adequate compensation. In the assessment whether adequate compensation was available to the applicants, the Court must have regard to the particular circumstances of each case, including the amounts received and losses incurred and, as the case may be, the availability of compensation and the practical realities in which the applicants found themselves (see Velikovi and Others, cited above § 231).
In the present case the applicants obtained through compensation bonds a sum of money that represented only a portion of the value of the apartment, as assessed by experts in 2001.
However, the Court observes that in 2001 the applicants were granted the tenancy of two municipal apartments and that soon thereafter the municipality agreed to sell them the apartments at regulated prices. The applicants were thus able to obtain in compensation ownership of two apartments of not inconsiderable size for a price comparable to the amount they had received for the apartment they had lost.
In these circumstances the Court considers that the present case is similar to the case of Nikolovi examined in its Velikovi and Others judgment (see §§ 229-235 of that judgment). Having regard to importance of the legitimate aims pursued by the Restitution Law and the particular complexity involved in regulating the restitution of nationalised property after decades of totalitarian rule, the Court considers that the interference with the applicants’ property rights was not disproportionate or otherwise contrary to Article 1 of Protocol No. 1 to the Convention.
It follows that the complaint under this provision is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under its paragraph 4.
Article 6 § 1 reads, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning the length of the civil proceedings in their case;
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President