European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26560/05
by Konstantin and Irinka YAKIMOVI
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 3 February 2009 as a Chamber composed of:

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

Having regard to the above application lodged on 12 July 2005,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Konstantin Konstantinov Yakimov and Mrs Irinka Hristova Yakimova, are Bulgarian nationals who were born in 1931 and 1930 respectively and live in Varna. 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.

In 1969 the applicants bought from the Varna municipality an apartment of 76 square metres, which had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following years.

On 16 November 1992 the heirs of the former owner of the property brought proceedings against the applicants under section 7 of the Restitution Law. They also sought a rei vindicatio order.

On 13 August 1995 the Varna District Court allowed the rei vindicatio action and held that it was not necessary to examine the action under section 7 of the Restitution Law. On 9 May 1997 the Varna Regional Court set aside the judgment of the District Court and remitted the case with instructions that the action under section 7 be examined.

On 5 June 2000 the Varna District Court gave a new judgment and allowed the claimants’ actions. The Varna Regional Court upheld this judgment on 7 July 2001.

Upon appeal by the applicants, on 6 January 2003 the Supreme Court of Cassation quashed the judgment of the Regional Court finding that the latter had committed procedural violations and had applied wrongly the law.

Following a fresh exanimation of the case, on 18 June 2003 the Varna Regional Court allowed the claimants’ actions. By a final judgment of 8 March 2005 the Supreme Court of Cassation dismissed the applicants’ appeal.

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 in 1969 had not been affirmed by the Minister of Architecture and Public Works, as required by law, but by another official.

In December 2005 the applicants vacated the apartment. They rented another apartment and moved there.

Following the judgment of 8 March 2005 the applicants applied for compensation bonds. By an order of 13 October 2005 the regional governor approved an assessment of the value of the apartment, made by a certified expert, and determined that the applicants were entitled to bonds in the amount of BGN 41,400 (approximately EUR 22,230).

The applicants appealed against the governor’s order and on 9 May 2006 the Varna Regional Court set it aside. In accordance with an evaluation made by another expert, it held that the applicants were entitled to bonds in the amount of BGN 98,600 (approximately EUR 50,560).

In September 2006 the applicants received bonds for BGN 98,600. They sold a part of the bonds; for another part they received from the State the value in cash. They thus obtained BGN 62,588.22 (approximately EUR 32,000). In March 2008 the applicants were still holding bonds for BGN 20,000.

B.  Relevant background facts, domestic law and practice

The relevant background facts, 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.

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 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 (Velikovi and Others, cited above, § 231).

In the present case, the applicants obtained BGN 62,588.22 in compensation and are still holding bonds for BGN 20,000, for which they are entitled to receive the full value in cash.

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 applicants had obtained the full value of their apartment, as assessed by an expert six years earlier, and 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.

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