European Court of Human Rights

                                                                                                      13 July 2010

FIFTH SECTION

Application no. 43071/06
by Glikeria DECHEVA and Others
against Bulgaria
lodged on 10 October 2006

STATEMENT OF FACTS

THE FACTS

The applicants, Ms Glikeria (Ganka) Decheva, Antoaneta Todorova Georgieva and Maria Todorova Marinova are Bulgarian nationals who were born in 1919, 1937 and 1943 respectively and live in Sliven and in Sofia. They are represented before the Court by Mrs A. Gavrilova-Ancheva, 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.

1.  Expropriation of the property

The applicants' ancestors owned a plot with three buildings, among them a house, in the village of Zheravna. The houses in the village, including that of the applicants, are examples of traditional Bulgarian architecture and most of them have been recognised as cultural monuments. The village itself was declared an architectural reserve as early as 1964.

In 1968 the plot and the buildings were expropriated for the needs of the State Tourist Agency. The applicants received pecuniary compensation.

2.  Restitution of the property

On 20 April 1992, following the entry into force of the 1992 Restitution Law (see the relevant law), the applicants made a request to the mayor of Kotel for the restitution of the entire property, including the buildings. No response was received and on an unspecified date in 1993 the applicants appealed against the tacit refusal before the Sliven Regional Court.

In a judgment of 25 May 1993 the Regional Court rejected the appeal, finding that the property had been used for the purposes of the expropriation and therefore it was not subject to restitution. The applicants lodged a petition for review (преглед по реда на надзора).

In a final judgment of 28 March 1995 the Supreme Court held that the expropriation had been carried out under the building and planning legislation for the needs of the State Tourist Agency. It found that the preconditions for restitution had been met as the buildings were still standing and that the expropriation project had not been realized because the property had not been used for the purposes of the expropriation. Thus, it revoked the expropriation and restored the ownership of the property to the applicants.

Following a request for re-opening by the Kotel municipality, on 10 May 1997 the extended panel of the Supreme Administrative Court refused to re‑open the case as it found that the evidence relied upon was not newly discovered but had been in the possession of the municipality, which had been a party to the proceedings from their outset.

Meanwhile, on 5 July 1996 the Mayor of Kotel acknowledged the restoration of the property to the applicants and ordered that it be removed from the State Property Register, noting that the applicants had returned the compensation paid for the expropriation.

After certain obstructions by the municipal administration and judicial proceedings in that respect, the applicants managed to receive all documentation necessary for acquiring a notary deed and obtained such in 1998.

Ever since, they had been paying property tax for the land and the buildings. It is not clear, however, whether the applicants ever entered into possession of the plot and the buildings.

3.  The civil proceedings for ownership

On an unspecified date in 1999 the Kotel municipality brought a civil action against the applicants seeking a declaration that it was the owner of the buildings restored to the applicants.

The applicants objected, claiming, inter alia, that the issue had already been determined with res judicata by virtue of the final judgment of 28 March 1995. The Sliven Regional Court dismissed this objection in a hearing and in a judgment of 13 March 2000 granted the claim, finding that as the old buildings had been demolished and new ones had been erected at their place, the title to them could not be restored to the applicants.

On appeal, in a judgment of 6 October 2000, the Burgas Court of Appeal discontinued the proceedings as it found that the issue had already been determined with res judicata effect in the final judgment of 1995.

The Kotel municipality appealed further. In a judgment of 19 April 2002 the Supreme Court of Cassation quashed the lower court's judgment and remitted the case for further examination. It held that the party in the administrative proceedings which ended in the final judgment of 1995 had been the mayor as the executive authority, who had the power to decide on restitution claims. The Kotel municipality, however, was a separate legal entity, different from the mayor and vested with the municipal property rights. Moreover, the municipal council was the administrative body, which could dispose of municipal property. The mayor could dispose of such property only after prior authorisation by the municipal council, which was not existent in the present case. Therefore, the municipality was a third person with respect to the administrative proceedings which had ended in 1995 and was not bound by the res judicata effect of the 1995 judgment. It also held that the judicial review of administrative decisions differed from the general civil proceedings as the courts' judgments in them determined the dispute and replaced the administrative order. Thus the 1995 judgment had an effect similar to those in civil actions aiming at the transformation of a right (конститутивeн ефект) and had to be respected by third parties. This however, did not prevent third parties, as the Kotel municipality from challenging the effect of the judgment, claiming other material rights.

After the remittal, in a judgment of 4 February 2003 the Burgas Court of Appeal relied on the reasons given by the Supreme Court of Cassation in respect of the admissibility of the action and the res judicata effect of the 1995 judgment. It held that the applicant's property had been expropriated under section 101 of the Property Act, which did not provide for demolition of the existing buildings and new construction. Thus, the only relevant question was whether the property had been used for the purposes for which it had been expropriated. The Court of Appeal held that this was not so as at present the buildings were not used by the State Tourist Agency. Therefore, it quashed the Sliven Regional Court judgment and dismissed the Kotel municipality's claim.

The municipality appealed. In a judgment of 27 January 2004 the Supreme Court of Cassation quashed the previous judgment and granted the claim finding against the applicants. It re-examined the issue whether the applicants had a right to restitution, holding that the final judgment of 1995 was not binding on the Supreme Court which had the right to exercise indirect control over it.

On an unspecified date the applicants requested re-opening of the proceedings submitting new evidence – an expropriation order of the Council of Ministers of 1968, stating that the expropriated houses, including that of the applicants, had to be, intra alia, restored, adapted and preserved as cultural monuments. On 21 December 2004 the Supreme Court of Cassation granted re-opening holding that the order was of crucial importance for the determination of the dispute as it could cast light on the legal grounds of the expropriation, and hence as to the fact whether there had been new construction or not. It also found procedural violations in respect of the proper summoning of the applicants and remitted the case for fresh examination by another panel of the Supreme Court of Cassation.

In a final judgment of 11 April 2006 the Supreme Court of Cassation granted the Kotel municipality's claim, declaring it the owner of the buildings in question and revoking the applicants' notary deed of 1998 in respect of these buildings. Relying on the Council of Ministers order of 1968, it held that the property had been expropriated under section 101 of the Property Act. Therefore, it could be restituted to the applicants only if the buildings were still standing and if the property was not used for the expropriation purposes. Crediting the expert examinations, the court established that the “adaptation, restoration and conservation” of the old buildings in fact constituted new construction. Thus, the preconditions for restitution had not been met.

In respect of the res judicata effect the court held that the proceedings which ended in the judgment of 28 March 1995 were administrative and their subject matter was not an ownership dispute. In respect of these proceedings the municipality was a third person as it had not taken part in them. The present proceedings were civil and the municipality, being vested with the municipal property rights, was a party in them, while the mayor was just its representative. Therefore, the municipality was not bound by the res judicata effect of the 1995 judgment in respect of the ownership dispute.

B.  Relevant domestic law and practice

1.  Restitution of private property expropriated for public use

In 1992 the Bulgarian Parliament adopted the Law on the Restitution of Property Expropriated under Building Planning Legislation (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the 1992 Restitution Law”) which provided for the restitution of expropriated property where specific conditions were met.

Section 1 of the act provided that individuals (or their heirs) whose properties have been expropriated before 21 April 1990 under the building planning legislation could request the revocation of the expropriation if the buildings were still standing and the project for the purposes of which they had been expropriated had not started. If the buildings had been demolished, revocation of the expropriation could be requested if new construction had not yet started and the land could form an independent plot in accordance with the relevant legislation (section 1(2)).

Section 3(1) provided that the individuals whose properties had been expropriated under section 26 of the State Property Act or under section 101 of the Property Act could request revocation of the expropriation if upon entry into force of the 1992 Restitution Law the property was not being used for the purposes for which it had been expropriated. The individuals who had received compensation for the expropriation had to return it (section 3(2)).

The request for revocation of the expropriation had to be lodged with the mayor of the municipality in which the property was situated who was to issue a decision within thirty days of the request. The mayor's explicit or tacit refusal to revoke the expropriation was subject to appeal before the regional courts which had to decide on the merits of the request (section 4).

2.  Res judicata effect and binding character of the judgments under Bulgarian civil law procedure

The relevant procedure and practice in respect of the res judicata effect and the binding character of judgments under Bulgarian civil law procedure have been summarized in paragraphs 51-54 of the Court's judgment in the case of Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, 12 January 2006).

COMPLAINTS

1.  The applicants complain under Article 6 § 1 of the Convention that in the civil proceedings the domestic courts disregarded the res judicata effect of the final judgment of 1995, which had been in their favour and, in violation of the principles of legal certainty and the rule of law, re-examined the issue whether they were entitled to expropriation or not, finding against them.

2.  The applicants complain under Article 6 § 1 of the Convention that they were denied a fair trial as in its judgment of 11 April 2006 the Supreme Court of Cassation did not examine the issue whether in the light of the order of 1968 the “adaptation, restoration and conservation” of the buildings could be considered as new construction or just as actions necessary for the preservation of the building and that it failed to examine their objection that they and not the municipality were owners of the property.

3.  The applicants complain under Article 1 of Protocol No. 1 that as a result of the above actions of the domestic courts their right to peaceful enjoyment of their possessions was infringed.

1.  Has there been a violation of Article 6 § 1 of the Convention in that the dispute about the applicants' right to restitution of the buildings in question, although already determined by the final judgment of 28 March 1995 against the mayor of Kotel, was re-examined by the courts in the subsequent civil proceedings, which were initiated by the Kotel municipality in 1999 and ended in 2006 (see Kehaya and Others v. Bulgaria, nos. 47797/99 and 68698/01, §§ 58-70, 12 January 2006)?

2.   Has there been a violation of the applicants' rights under Article 1 of Protocol No. 1? Did the applicants acquire a “possession”, within the meaning of Article 1 of Protocol No. 1, by virtue of the judgment of 28 March 1995? As a result of the said judgment did they enter into possession of the plot and the buildings? Were the applicants, as a result of the 1999-2006 civil proceedings deprived of this possession in accordance with the conditions provided for by law (see Kehaya and Others, cited above, §§ 71-77)?