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Cite as: [2010] ECHR 1756
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
37714/03
by Miroslav Hristov GEORGIEV and Others
against
Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 5 October 2010 as a Chamber composed of:
Peer
Lorenzen,
President,
Renate
Jaeger,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Zdravka
Kalaydjieva,
judges,
and Claudia Westerdiek, Section
Registrar,
Having regard to the above application lodged on 20 November 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Miroslav Hristov Georgiev, Ms Rositsa Krumova Georgieva, Ms Miglena Miroslavova Hristova and Mr Hristo Miroslavov Hristov, are Bulgarian nationals who were born in 1968, 1964, 1985 and 1987 respectively and live in Svishtov. They are the members of one family.
The applicants were represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.
The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, 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.
1. Purchase and importation of the vehicle
On 11 August 1993 Mr H.Ts. bought a car in Austria on behalf of Ms J.A., who financed the purchase. After obtaining Austrian export license plates for the vehicle and an export transportation permit on 18 August 1993 Mr H.Ts. drove the car to Bulgaria. Both of the aforesaid documents indicated Ms J.A. as the owner of the vehicle.
It is unclear when Mr H.Ts. and the car entered Bulgaria.
On 3 September 1993 the car was stolen from a parking lot in Sofia.
On 6 September 1993 Mr H.Ts. reported the car as stolen and a preliminary investigation was opened on the 24th of the month against an unknown perpetrator. It was suspended on 30 November 1993 as the identity of the perpetrator could not be established.
2. The acquisition of the vehicle by Mr Georgiev
In the meantime, on 16 October 1993 the police in the town of Lukovit found the car abandoned in a local parking lot. It had Bulgarian license plates which were found to have been stolen from another vehicle. The authorities did not check the car's engine and chassis numbers in the database of stolen vehicles and thus did not make the connection that it was the same car that had been stolen in Sofia on 3 September 1993.
The vehicle remained with the Lukovit police for over a year. On 7 February 1995 the Lukovit police asked the Svishtov District Customs Office what to do with it. As a result, the car was delivered to the Svishtov District Customs Office on 15 February 1995 in accordance with section 3a of the Customs Act (see “Relevant domestic law” below).
On an unspecified date the Svishtov District Customs Office declared the vehicle State property as a result of it having been abandoned. Also on an unspecified date it entered the vehicle in a public auction run by the Union of Bulgarian Automobilists.
Mr Georgiev (“the first applicant”) participated in the public auction of 20 October 1995 and purchased the car. On the same day he entered into a sale and purchase agreement for the vehicle with the Svishtov District Customs Office. He paid 141,000 old Bulgarian levs (approximately 2,858 German marks) to the Customs Office on 24 October 1995 and obtained the car registration documents from the Svishtov district public prosecutor's office on 4 December 1995.
3. The seizure of the vehicle and the complaints against it
On an unspecified date Mr H.Ts. informed the public prosecutor's office that the first applicant was driving his car and sought its assistance to retrieve it. As proof of ownership he presented the authorities with the transportation permit and the Austrian car purchase agreement.
In response, on 28 March 1997 the Sofia district public prosecutor's office reopened the preliminary investigation into the theft of the car, ordered that it be seized from its current registered owner, the first applicant, and be held as material evidence at the police station.
On 10 June 1997 the Svishtov traffic police seized the car from the first applicant, who filed a complaint on the same day with the Sofia district public prosecutor's office.
In spite of the aforesaid complaint of the first applicant, on 13 June 1997 the Sofia district public prosecutor's office concluded that there was no dispute in respect of the ownership of the vehicle and ordered that it be returned to Mr H.Ts, whom it considered to be the owner of the vehicle on the basis of the Austrian car purchase agreement and the transportation permit. On an unspecified date the first applicant appealed against this decision to the higher standing public prosecutor's office.
The car was handed over to Mr H.Ts. on an unspecified date.
In a decision of 14 July 1997 the Sofia regional public prosecutor's office quashed as unlawful the decision of 13 June 1997 of the Sofia district public prosecutor's office. It found that in view of the first applicant's complaint of 10 June 1997 a dispute in respect of the ownership of the vehicle had clearly arisen which precluded the possibility to hand over the vehicle to Mr H.Ts. The Sofia regional public prosecutor's office therefore ordered that the car be seized from Mr H.Ts. and that it be held for safekeeping by the police. It also invited the first applicant to initiate civil proceedings in respect of his ownership claim to the vehicle. Both the first applicant and Mr H.Ts. appealed against this decision.
Separately, the first applicant complained on 10 September 1997 to the Central Customs Office about the seizure of the car and the actions of the public prosecutor's office. In its reply of 8 October 1997 the Central Customs Office informed the first applicant that they could not act on his complaint and stated that it considered the actions of the Svishtov District Customs Office to have been lawful.
In a decision of 11 September 1997 the Chief Public Prosecutor's Office quashed the decision of 14 July 1997 of the Sofia regional public prosecutor's office. It considered that Mr H.Ts. was the “unquestionable initial owner” of the vehicle and that the police had erroneously handed the car over to the customs authorities. Thus, it found that the “owner of the car”, Mr H.Ts., had been wrongly denied possession of it and that it should be returned to him while the other claimant – the first applicant – should prove his ownership rights in court. Accordingly, the Chief Public Prosecutor's Office ordered that the car be handed over, once again, to Mr H.Ts., who was to undertake not to sell it until the preliminary investigation had been concluded.
On an unspecified date the car was entrusted to Mr H.Ts. for safekeeping.
In response to a separate request from the first applicant that the evidence in the preliminary investigation – the vehicle – be handed over to him, on 2 October 1997 the Chief Public Prosecutor's Office ruled a second time on the decision of the Sofia regional public prosecutor's office of 14 July 1997. It dismissed the first applicant's request, but found that there was a clear dispute over the ownership of the vehicle and ordered that in accordance with Article 110 of the Code of Criminal Procedure (see “Relevant domestic law” below) the car remain with the authorities until the property dispute had been resolved in the civil courts, where the two parties needed to make their respective claims. The Chief Public Prosecutor's Office also criticized the actions of the Lukovit police and the customs office for having sold the vehicle to the first applicant instead of promptly returning it to its “owner” – Mr H.Ts.
In a further decision of 6 November 1997 the Chief Public Prosecutor's Office ruled on an appeal filed by the first applicant in the context of the preliminary investigation into the theft of the car. It dismissed it and upheld the decision to hand over the vehicle to Mr H.Ts. as it considered him to be the “initial owner” of the vehicle because he had purchased and imported it from Austria. It further noted that as the first applicant also laid claim to the car, he should prove his case in court, which was the only competent body that could adjudicate on the matter.
On an unspecified date the first applicant complained to the Chief Public Prosecutor about the contradictory decisions of his Office of 11 September and 2 October 1997.
In a decision of 25 November 1997 the Chief Public Prosecutor upheld the decision of 11 September 1997 and quashed the one from 2 October 1997 because the latter had been issued in response to an appeal on which the Chief Public Prosecutor's Office had already ruled. Nevertheless, he also reasoned that Mr H.Ts. had been the right person to return the car to as it had been stolen from him. The Chief Public Prosecutor further noted that the first applicant should initiate proceedings in the civil courts in respect of the ownership of the car.
On an unspecified date the first applicant complained once again to the Central Customs Office about the seizure of the car. In its reply dated 21 January 1999 the Central Customs Office informed him that it could not act on his complaint because the customs authorities had acted within their competences by taking charge of the vehicle under section 3a of the Customs Act and then selling it at a public auction to him.
In response to a further appeal by the first applicant in the context of the preliminary investigation into the theft of the car, on 4 August 1998 the supreme cassation public prosecutor's office instructed the Sofia city public prosecutor's office to take immediate action to continue the investigation, which had stalled in 1997. It also ordered the latter to investigate the first applicant's allegations that Mr H.Ts. had presented forged ownership documents in respect of the vehicle.
In a decision of 18 February 2000 the supreme cassation public prosecutor's office ruled on a further appeal by the first applicant. This time it found in his favour and revoked the decision of the Chief Public Prosecutor of 25 November 1997, which had found the seizure of the car and its handing over to Mr H.Ts to have been lawful. The supreme cassation public prosecutor's office also found that it had been unlawful to hand over the vehicle to the latter because he was clearly not, and never had been, the owner, because both the Austrian car purchase agreement and the transportation permit identified him as being only the transporter, while Ms J.A. was indicated as being the vehicle's owner in both of those documents. However, as Ms J.A. had never filed a complaint that her car had been stolen it was considered necessary that she be questioned. Therefore, the supreme cassation public prosecutor's office ordered that the car be seized and noted that when a dispute of ownership arises the individuals involved should refer the matter for resolution by the civil courts.
A police order was issued on 18 April 2000 to seize the car but the police were unable to find Mr H.Ts. or the vehicle. Therefore, on 8 May 2000 the car was declared stolen.
On 15 November 2000 the Sofia Investigation Service informed the Sofia city public prosecutor's office that it had been unable to find the car or Mr H.Ts.
The first applicant continued petitioning the authorities to find the car.
In letters of 2 November and 29 December 2001 the supreme cassation public prosecutor's office informed him that the authorities were continuing their search for the car.
On 8 March 2002 the Chief of the 9th Police Station in Sofia informed the first applicant that they were continuing their search.
On 18 October 2002 the first applicant filed a further petition with the supreme cassation public prosecutor's office. In a reply dated 30 October 2002 the latter informed him that it had been unlawful to hand over the car to Mr H.Ts. as he was not its owner. However, it considered that the owner was Ms J.A. It also considered that the public prosecutor's office carried no liability for the failure of the Lukovit police to check the vehicle's chassis and engine numbers and noted that it “had not sold [the first applicant] anything” and had not received any of the money he had paid for the vehicle. The supreme cassation public prosecutor's office also noted that it was not the body which could rule on who held title to the car and expressed reservations in respect of a possible property dispute with Ms J.A.
Thereafter, the authorities continued looking for the car and Mr H.Ts., but without any apparent success.
B. Relevant domestic law and practice
1. Abandoned vehicles with foreign or no registration
The Customs Act of 1960 (“the Customs Act”) required all persons to immediately inform the customs authorities if they found a vehicle belonging to a foreign national who had left the country. If the vehicle was not claimed within six months it was considered abandoned and became State property (section 3a).
Abandoned vehicles held by the customs authorities were to be sold within thirty days of becoming State property (section 100 of the Regulation for Implementing the Customs Act).
The Customs Act was replaced in 1999 by a new act of the same name.
2. Acquisition of movable property
Section 78 of the Property Act, as in force at the relevant time, provided that a buyer who acted in good faith in purchasing movable property against consideration from a non-owner obtained clear title to the said property. However, the former owner of stolen or lost movable property had the right to claim it from a buyer acting in good faith within three years of the date of the theft or loss. This possibility did not exist if the buyer had purchased the property from a State or municipal enterprise.
3. Code of Criminal Procedure of 1974
The relevant provisions of the Code of Criminal Procedure of 1974 (“the Code”) have been summarised in the case of Karamitrov and Others v. Bulgaria (no. 53321/99, §§ 29-33, 10 January 2008).
4. State liability for damage
The relevant provisions of the State and Municipalities' Responsibility for Damage Act of 1988 (“the SMRDA”) and the Obligations and Contracts Act, as well as the pertinent practice of the domestic courts during the relevant period have been summarised in the case of Karamitrov and Others (cited above, §§ 34-45).
As part of their submissions, the applicants presented copies of the judgments in a case brought by an individual under section 2 of the SMRDA which was appealed all the way to the Supreme Court of Cassation (решение от 2006 г. на ВКС по гр. д. № 131/2006 г., ІV г.о.). In that case the public prosecutor's office had seized a car purchased by the claimant from a third party as it had previously been stolen from another individual. In reaching their decisions the domestic courts noted the restrictive interpretation of the SMRDA in respect of the liability of the State under section 2 of the Act. As the case related to decisions and actions of the investigation and prosecution authorities, it thus fell to be examined only under the said section, which, however, did not provide for liability in such instances. Therefore, the domestic courts rejected the action, but in doing so they also noted that the claimant had failed to appeal against the decisions of the investigation and prosecution authorities and had not initiated a property dispute.
COMPLAINT
The applicants complained under Article 1 of Protocol No. 1 to the Convention that as a result of the unlawful actions of the public prosecutor's office in seizing and handing over their vehicle to a third person they had been denied, for a considerable length of time, use of the car they had purchased from the State in good faith. Arguing that they did not have the opportunity to bring an action to retrieve the vehicle or to obtain compensation for the unlawful actions of the public prosecutor's office, the applicants considered that they had been denied use of their possession as a result of the authorities' actions.
THE LAW
The Court finds that the applicants' complaints fall to be examined under Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“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.”
In so far as the first applicant was the sole registered owner of the vehicle when it was seized from him and that only he participated as a party in the domestic proceedings, the Court considers that the remaining applicants cannot claim to have been directly affected by the act or omission in issue and that they do not attain the status of victims by the mere fact of being members of the same household economic unit.
It follows that in respect of those applicants the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
The first applicant contested the Government's assertions. He drew attention to the restrictive practice of the domestic courts under the SMRDA and the restriction on applying the general rules of tort when assessing State liability (see “Relevant domestic law and practice” above). The first applicant further noted that the Government had not presented any examples or copies of domestic court judgments to support their assertion that a civil action should have been initiated by the applicants. In addition, he noted that both the car and Mr H.Ts had disappeared, so it was impossible to initiate any such civil action to retrieve the car or seek compensation. The first applicant further noted that the possibility, introduced in 2000, to appeal against a public prosecutor's decision not to return chattels held as evidence would not have been effective in the present case either, because both the car and Mr H.Ts had already gone missing by then. Moreover, the initial interpretation of the domestic courts considered that only parties to the respective criminal proceedings could make use of the right under Article 108 § 4 of the Code. As the first applicant was not a party to the criminal proceedings in respect of the theft of the car he would, therefore, not have been allowed to make use of that remedy.
The Court reiterates, at the outset, that the purpose of Article 35 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions (see, for example, Hentrich v. France, judgment of 22 September 1994, Series A no. 296 A, p. 18, § 33, and Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996 II, p. 571, § 33). Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48, and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996 IV, p. 1210, § 65). Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance to the appropriate domestic body, and in compliance with the formal requirements and time-limits laid down in domestic law (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34).
The Court observes that the first applicant challenged the various decisions of the public prosecutor's office and had been successful in having quashed as unlawful their decision to hand over the vehicle to Mr H.Ts. because he was not, and never had been, its owner. It notes however that those actions of the public prosecutor's office do not fall under any of the instances exhaustively listed in section 2 of the SMRDA. Thus, the first applicant does not appear to have had any opportunity to seek compensation from the public prosecutor's office under the SMRDA for them having seized and handed over the vehicle to a non-owner (see Karamitrov and Others, §§ 75-79, cited above). For the same reason, the first applicant could not seek redress from the police for having failed to make the necessary checks to determine whether the car had been stolen before handing it over to the customs authorities either (ibid.). Moreover, the Government have not argued that any such possibility existed.
On the other hand, it would have been possible for the first applicant to initiate proceedings under the SMRDA against the customs authorities as an administrative body (see “Relevant domestic law and practice” above). Although there does not appear to be reason to consider that they did act illegally or in bad faith in processing the car and selling it to him it could nevertheless be argued that they failed to make the necessary checks to determine whether it had been stolen before doing so. However, this would only be relevant if the first applicant's property rights were found to be defective as a result and his proprietary claim to the vehicle had been denied by the civil court.
As to the possibility that the first applicant could have initiated a property dispute, such as a civil action for declaratory relief or rei vindicatio, against Mr H.Ts. or Ms J.A., the Court concurs with the Government on this point. It notes in this respect that sometime shortly after 13 June 1997 the vehicle was handed over to Mr H.Ts., who held it for safekeeping subsequent to the decision of the public prosecutor's office of 11 September 1997. Such a decision by the public prosecutor's office does not appear contrary to the Convention because they handed over the vehicle to the person who had reported it stolen by an unknown perpetrator and who held documents supporting his alleged proprietary claims to it. Moreover, it did not affect the property rights of the first applicant as it did not amount to an adjudication of the property dispute, which was not within the powers of the public prosecutor's office. In view of this fact, the Sofia regional public prosecutor's office in its decision of 14 July 1997, the Chief Public Prosecutor's Office in its decisions of 2 October, 6 November and 25 November 1997 and the supreme cassation public prosecutor's office in its decisions of 18 February 2000 and 18 October 2002 all noted and invited the first applicant to initiate civil proceedings in respect of his claim to the vehicle. He, however, failed to act on that advice but rather continued to appeal against the decisions of the public prosecutor's office, a course of action which was eventually successful but only after more than two years. By that time Mr H.Ts. and the vehicle had disappeared and could not be found by the authorities. Thus, the first applicant failed to officially initiate a property dispute in the civil courts in respect of the ownership of the vehicle which would have required that the car remain with the authorities for the duration of such proceedings (see “Relevant domestic law and practice” above and, mutatis mutandis, Atanasov and Ovcharov v. Bulgaria, no. 61596/00, § 73, 17 January 2008). Moreover, the Court considers it speculative to accept that a timely civil action against Mr H.Ts. would not have been effective in preventing his disappearance or that of the car. It would most probably have brought about a definitive adjudication of the first applicant's property claims to the vehicle and, if his proprietary rights were found to have been defective, he would have had recourse to seek reimbursement and damages from the customs authorities for the sale of the vehicle. In so far as the first applicant failed to avail himself of this possibility in good time, the Court finds that he did not exhaust the available domestic remedies in respect of the complaint currently before it.
Thus, it follows that the complaint of the first applicant must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia
Westerdiek Peer Lorenzen
Registrar President
