European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2011/912.html
Cite as: [2011] ECHR 912
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
25277/06
by Kina Koseva KATSARSKA and Others
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 24 May 2011 as a Chamber composed of:
Nicolas Bratza, President,
Sverre
Erik Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 13 June 2006,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Kina Koseva Katsarska, Mr Krasimir Stefanov Katsarski, Mr Lachezar Stefanov Katsarski and Ms Todorka Hristova Damyanova, are Bulgarian nationals who were born in 1927, 1955, 1962 and 1928 respectively. The first three applicants live in Blagoevgrad and the fourth applicant lives in Sofia. The applicants were represented before the Court by Mr Y. Yankov, a lawyer practising in Sofia.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The ancestors of the applicants owned a plot of land and a two-storey building in Blagoevgrad. A portion of that property was expropriated in 1948. However, in practice the whole property was taken and allocated for use by the State enterprise T.
Two additional storeys to the expropriated building were constructed by the State in 1954 55 and 1968 70 respectively.
In 1993, following the demise of the communist regime, T. was transformed into a State-owned limited liability company. Pursuant to the legislation in force at the time, it acquired ownership of the two additional storeys previously allocated for its use.
On an unspecified date after the adoption of legislation in Bulgaria in the early 1990s which provided for the restoration of titles to certain types of expropriated property, the applicants obtained restitution of the land and the first two storeys of the building.
In 1997 the first, second and third applicants brought a rei vindicatio claim against the company T. and the State. They argued that they had become co owners of the two storeys constructed after the expropriation, as only parts of the building had been expropriated from their ancestors. As their ancestors had never consented to another person constructing and becoming owner of the two new storeys, the State could not have acquired the entire property.
The claim was examined at three levels of jurisdiction and dismissed in a final judgment of the Supreme Court of Cassation of 29 December 2005. The domestic courts found that the two additional storeys could not be subject to restitution under the denationalisation legislation, because they had never been expropriated. Furthermore, even if the applicants’ ancestors had remained co-owners of the property, parts of which had been expropriated, and had thus become co-owners of the two additional storeys, their rights had been extinguished and the State had acquired full ownership of these storeys through adverse possession, once the applicable ten-year statutory period had expired. The provisions of the restitution legislation, relied on by the first, second and third applicants, stating that the rules on adverse possession did not apply to expropriated property, were not applicable in the case.
COMPLAINTS
The applicants complained, relying on Article 1 of Protocol No. 1 to the Convention, that they had been arbitrarily deprived of their property, by the domestic courts’ incorrect interpretation and application of the relevant domestic provisions on adverse possession.
THE LAW
“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 observes at the outset that it is precluded for temporal reasons from examining the fact of the expropriation of the property at issue back in the 1950s.
The Court further notes that the present case concerns a rei vindicatio dispute between the applicants and the State. The first, second and third applicants take issue with the domestic courts’ decision to apply to that dispute the general rules of civil law, including those on adverse possession, and not the special rules provided for in the restitution legislation, which derogated from the rules on adverse possession in cases of expropriated property.
However, the Court observes that it is in the first place for the national authorities, and in particular the courts, to construe and apply the domestic law (see, among other authorities, Pla and Puncernau v. Andorra, no. 69498/01, § 46, ECHR 2004 VIII). The Court’s jurisdiction to verify whether domestic law has been correctly interpreted and applied is limited and it is not its function to take the place of the national courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable (see Anheuser Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007 I).
The Court does not consider the domestic courts’ interpretation of the applicable law in the present case arbitrary or otherwise manifestly unreasonable. It notes that the proceedings brought by the first, second and third applicants did not concern expropriated property but property constructed many years after the nationalisation of the applicants’ ancestors’ land and building. Furthermore, the State did not act in the rei vindicatio proceedings as an entity exercising State power, but as a civil law party defending its right to property. Therefore, the Court sees no reason to consider the domestic courts’ approach arbitrary or manifestly unreasonable (see Sara Borenstein and Others v. Poland (dec.), no. 6303/04, 24 June 2008). The applicants did not argue that the courts had deviated from well established case law, or that once found to be applicable, the rules on adverse possession were applied in an arbitrary or perverse manner.
Therefore, the Court takes the view that the domestic courts’ choice to examine the first, second and third applicants’ rei vindicatio claim under the rules of general civil law and apply the general provisions on adverse possession, thus reaching a conclusion in favour of the State, was not arbitrary or otherwise manifestly unreasonable.
Moreover, the Court notes that the first, second and third applicants did not participate in the construction of the additional storeys, which were entirely constructed by the State, and that they obtained restitution of the property which had been taken from their ancestors.
It follows that the first, second and third applicants’ complaint under Article 1 of Protocol No. 1 is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
However, the Court notes that that applicant did not take part in the rei vindicatio proceedings brought by the other three applicants. Nor does it appear that she took any other steps to recover the property rights that she allegedly had. Her complaint under Article 1 of Protocol No. 1 is therefore inadmissible for non exhaustion of domestic remedies and must be dismissed in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza
Registrar President