European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14226/04
by Margarita Todorova and Robert Petrov IVANOVI
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 16 September 2008 as a Chamber composed of:

Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 14 April 2004,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Margarita Todorova Ivanova and Mr Robert Petrov Ivanov, are Bulgarian nationals who were born in 1936 and 1960 respectively and live in Sofia. They are represented before the Court by Mrs S. Margaritova-Vuchkova, 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 a mother and her son.

In 1969 the first applicant and her husband bought from the Sofia municipality an apartment of 65 square metres. It had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following years.

On 22 February 1993 the heir of the former owner of the apartment brought proceedings against the first applicant and her husband under section 7 of the Restitution Law.

In a judgment of 17 July 1995 the Sofia District Court dismissed the action. On 10 June 1996 the Sofia City Court reversed and allowed the claim. The first applicant and her husband filed a petition for review (cassation).

On 2 March 1999 the Supreme Court of Cassation quashed the judgment of the Sofia City Court of 10 June 1996 and remitted the case. After a new examination of the case, on 3 August 2001 the Sofia City Court allowed the claim against the first applicant and her husband.

In March 2002 the first applicant’s husband died and the second applicant joined the proceedings as his heir.

In a final judgment of 9 December 2003 the Supreme Court of Cassation upheld the judgment of 3 August 2001.

The domestic courts found that the applicants’ title was null and void on the ground that the decision of the mayor to sell the apartment to the first applicant and her husband had not been affirmed by the Minister of Architecture and Public Works, as required by the law, but by a deputy head of the regional administration.

The first applicant and her husband vacated the apartment in September 1996 – as, although not final, the judgment of 10 June 1996 in their case was enforceable. In March 1997 they were granted the tenancy of a one-room municipal apartment. By that time the second applicant was no longer living with his parents.

On 5 February 2004 the applicants applied for compensation bonds. The request was allowed and in August 2006 the applicants received bonds with a total face value of BGN 43,000 (approximately EUR 22,050), in accordance with a valuation of the property by a certified expert. In February 2008 they received from the State in cash the full face value of the bonds.

B.  Relevant background facts, domestic law and practice

The 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 LAW

The Court considers that the complaint falls to be examined under Article 1 of Protocol No. 1, which reads:

“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 notes that the present complaint is of the type examined in Velikovi and Others, cited above.

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, §§ 162-176, 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 notes that the applicants’ title was found to be null and void on the ground that the decision to sell the apartment had not been approved by the Minister of Architecture and Public Works but by another official. This error is clearly attributable to the authorities, not the applicants.

In cases like this 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 (see Velikovi and Others, cited above, § 231).

In the present case, shortly after they vacated the apartment in 1996, the first applicant and her husband were granted the tenancy of a municipal apartment. This fact alleviated to a certain extent the burden imposed on the applicants as a consequence of the interference with their property rights. Later, the applicants obtained BGN 43,000, which was the value of their apartment as assessed by an expert in 2006. They failed to challenge this assessment before the courts as they could have (see judgment No. 501 of the Varna Regional Court, 9 May 2006, case No. 1926/2005, where the sum in compensation bonds awarded to the owners was raised more than twice).

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) where the Court found no violation of Article 1 of Protocol No. 1.

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.

“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;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President