AS TO THE ADMISSIBILITY OF
by Vihra Dimitrova NIKOLOVA and Others
The European Court of Human Rights (Fifth Section), sitting on 9 June 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska, judges,
Pavlina Panova, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 8 April 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the fact that Judge Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from sitting in the case (Rule 28 of the Rules of Court) and that on 1 October 2008, the Government, under Rule 29 § 1 (a), informed the Court that they had appointed, in her stead, Ms Pavlina Panova as an ad hoc judge,
Having deliberated, decides as follows:
The applicants, Ms Vihra Nikolova and her children, Ms Maglena Gorchilova and Mr Danko Nikolov, are Bulgarian nationals who were born in 1923, 1943 and 1950 respectively and live in Sofia. They were represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Mrs N. Nikolova and Mrs S. Atanasova, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1975 the first applicant and her husband purchased from the Sofia municipality a three-room flat covering 106 square metres.
The property had belonged to a private person until the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following several years.
In February 1993 the heirs of the former pre-nationalisation owners brought proceedings against the first applicant and her husband under section 7 of the Restitution Law.
In 1997 the first applicant’s husband passed away. The second and third applicants, being his heirs, became parties to the proceedings.
By judgment of 12 June 2001 of the Supreme Court of Cassation the applicants’ title was declared null and void with final effect on the ground that the 1975 contract had not been signed by the mayor personally. It had been signed by another official of the municipality.
The proceedings continued as regards other alleged grounds for nullity but were eventually terminated on 8 November 2001 as the plaintiffs did not maintain their claim in this respect.
The applicants vacated the flat in October 2001. In April 2003 they were granted the tenancy of a two-room municipal flat which needed renovation. In 2004 the applicants purchased the flat at regulated prices below market value, as applicable for the sale of municipal flats to their tenants. They paid 20,000 Bulgarian levs (approximately EUR 10,200).
On 21 December 2001 the applicants filed a request for compensation bonds.
In July 2007 the applicants inquired about the examination of their request. On 29 August 2007 the regional governor refused to grant it stating that it had been submitted outside the relevant two-month time-limit. The governor considered that the time-limit ran from 12 June 2001, the date of the final judgment of the Supreme Court of Cassation.
Upon the applicant’s appeal, on 14 February 2008 the Sofia Administrative Court quashed the governor’s refusal, accepting that the time-limit had run from 8 November 2001. In May 2008 a court-appointed expert submitted her report according to which the value of the applicants’ former flat, assessed in accordance with the applicable rules, was BGN 81,983 (the equivalent of approximately EUR 42,050). By a judgment of 26 June 2008 the Sofia Administrative Court, noting, inter alia, that the parties had not contested the expert’s assessment, ordered that the applicants should receive compensation bonds for this amount.
B. Relevant 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.
In May 2007 the Government published regulations implementing section 7 (3) of the Restitution Law (State Gazette no. 37 of May 2007). The regulations enabled persons currently in possession of housing compensation bonds to obtain payment at face value from the Ministry of Finance.
The applicants complained under 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.
In September 2007 they raised an additional complaint, stating that the delay in the examination by the regional governor of their request for compensation bonds violated their right to a trial within a reasonable time under Article 6.
The Government stated, inter alia, that the interference with the applicants’ property rights was the result of the restitution legislation which pursued legitimate aims and was necessary in a democratic society, in particular, in the period after the fall of totalitarian rule in Bulgaria. They also referred to the fact that the applicants had obtained a municipal flat and that compensation bonds had been available to them.
The applicants considered that the Restitution Law was unclear, did not pursue a legitimate aim and that the interference with their property rights was not necessary in a democratic society. As to compensation, they argued, inter alia, that the amount available to them in compensation bonds did not reflect the real market value of the flat.
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 1975 contract had not been signed by the mayor personally but by another official of the municipality. 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, in April 2003, a year and a half after they vacated the flat, the applicants were granted the tenancy of a two-room municipal flat, which they purchased in 2004 for the equivalent of approximately EUR 10,200 - the regulated price, below market value, applicable for the sale of municipal flats to their tenants.
The above alleviated to a certain extent the burden imposed on the applicants as a consequence of the interference with their property rights.
The Court also observes that in 2008 the applicants obtained compensation bonds for the equivalent of approximately EUR 42,050, which was the value of the flat taken from them, as assessed by an expert in 2008 in accordance with the applicable regulations. They did not contest the expert’s assessment as they could have (see Ivanovi v. Bulgaria (dec.), no. 14226/04, 16 September 2008) and are entitled to receive the above amount in cash from the Ministry of Finance.
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.
It is true that the applicants incurred a loss in that the above mentioned compensation through bonds became available to them in 2008, seven years after they vacated the flat at issue. As the Court stated in Velikovi and Others (cited above §§ 192 and 234), however, it will not regard as disproportionate every imbalance between the public interest pursued by the Restitution Law and its effects on the particular individual concerned. 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.
2. The applicants complained, relying on Article 6 of the Convention, that the delay in the examination by the regional governor of their request for compensation bonds violated their right to a trial within a reasonable time.
The Court has examined the above complaint. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that the remainder of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen