European Court of Human Rights

FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 5191/05
by Tsvetana Petkova DZHAGAROVA and Others
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 3 March 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 Stephen Phillips, Deputy Section Registrar,

Having regard to the above application lodged on 25 January 2005,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Tsvetana Petkova Dzhagarova, Mr Martin Georgiev Dzhagarov, Mrs Rositsa Georgieva Kirova and Mr Georgi Georgiev Dzhagarov, are Bulgarian nationals who were born in 1935, 1956, 1963 and 1973 respectively. The first, third and fourth applicants live in Sofia, and the second applicant lives in Adelaide, Australia. The applicants are represented before the Court by Ms 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 1977 the first applicant and her husband, the parents of the second, third and fourth applicants, bought from the Sofia municipality an apartment of 261 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 18 August 1992 the heirs of the former pre-nationalisation owner of the flat brought proceedings against the first applicant and her husband under section 7 of the Restitution Law. They also sought a rei vindicatio order.

On 30 November 1995 the first applicant's husband died and the second, third and fourth applicants joined the proceedings as his heirs.

On 17 April 1997 the Sofia District Court allowed the claimants' actions. In judgments, respectively, of 24 September 2002 and 28 July 2004 the Sofia City Court and the Supreme Court of Cassation upheld the District Court's judgment.

The courts found that in 1977 the first applicant and her husband had purchased the apartment in breach of law as domestic legislation at the time did not allow the sale of apartments of more than 120 square metres except in cases where there had been permission by the municipal council. In the case at hand no such permission had been given. Therefore, the title of the first applicant and her husband had been null and void.

In September 2004 the first, third and fourth applicants, who were living in the apartment at the time, vacated it. In November 2005 the third applicant was granted the tenancy of a municipal apartment which she purchased in March 2008.

In June 2007 the first and fourth applicants rented another municipal apartment and moved in there.

Following the judgment of 28 July 2004 the applicants applied for compensation bonds. In August 2007 they received bonds for 229,900 new Bulgarian levs (approximately 118,000 euros) which was the value of their flat as assessed by an expert in December 2006.

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

“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.

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 February 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 in 1977 the municipal council had not duly given permission for the sale of an apartment with a surface superior to 120 square metres.

The Court does not find it necessary to establish whether this error was attributable solely to the authorities as it considers that the applicants have in any event received adequate compensation and that the fair balance required by Article 1 of Protocol No. 1 to the Convention has been achieved. The applicants obtained compensation bonds for 229,900 new Bulgarian levs (approximately 118,000 euros) which was the value of their apartment as assessed by an expert in December 2006 and are entitled to receive the full value of the bonds in cash.

In these circumstances the Court considers that the present case is similar to the cases of Nikolovi (examined in Velikovi and Others, see §§ 229-235 of the judgment) and Ivanovi (see Ivanovi v. Bulgaria (dec.), no. 14226/04, 16 September 2008) where the applicants had obtained the full value of their apartments, as assessed by experts, and where the Court rejected the complaints under Article 1 of Protocol No. 1.

Having regard to the 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.

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.

Stephen Phillips Peer Lorenzen
Deputy Registrar President