DANAILOV AND OTHERS v. BULGARIA

FOURTH SECTION

DECISION

Application no. 47353/06
Eduard Stefanov DANAILOV and others
against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 10 February 2015 as a Chamber composed of:

Guido Raimondi, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,

Having regard to the above application lodged on 23 October 2006,

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

1. The applicants are Bulgarian nationals. A list of their names and years of birth is set out in the appendix. All of the applicants lived in Dospat, except Mr Sergey Savkov Bozov, who lives in Negovan. The applicants were represented before the Court by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv. Some of the initial applicants died or transferred their properties in the course of the proceedings before the Court and their heirs or successors expressed the wish to continue the application in their stead. They also authorised Mr Ekimdzhiev, Ms Boncheva and Ms Chernicherska to represent them.

2. The Bulgarian Government (“the Government”) were represented by their Agents, Ms N. Nikolova and Ms A. Panova, then by Ms M. Kotseva and Ms A. Panova, from the Ministry of Justice.

A. The circumstances of the case

3. The application concerns twenty-two sets of domestic proceedings to which the applicants were parties, relating to the restitution of forestry land in the area of Dospat. The facts, as submitted by the parties, may be summarised as follows.

1. Restitution proceedings and attempt to have them re-opened

4. Following the enactment of the Forests Restitution Act in 1997 (see paragraph 24 below), the applicants (or, in some cases, their predecessors) applied for the restitution of forestry land in the area of Dospat.

5. The applicants claimed that the documents establishing their former titles had been destroyed, so they could not present them. The claims were therefore examined under the special procedure provided for under section 14 of the Forests Restitution Act (see paragraphs 25-26 below). For the region of Smolyan, the commission provided for in section 14 (“the regional commission”) was created in October 1999 by an order of the Minister of Agriculture. It was headed by a judge of the Smolyan Regional Court and included representatives of the municipalities in the region, the Smolyan Regional Governor’s office, the Smolyan Regional Forest Authority and the local forest authorities. The order specified that the regional commission was to be assisted by representatives of the local land commissions.

6. The regional commission carried out an inquiry to verify the restitution claims for the area of Dospat. The Dospat forest authority made submissions to it, pointing out that as there had never been privately owned forests in the area, there was no need for restitution. Nevertheless, on 30 August 2000 the regional commission adopted a decision recognising the rights of numerous persons, including the applicants, to different plots of forestry land.

7. The representative of the Smolyan Regional Forest Authority signed the decision, but joined a separate opinion whereby he too stated that there had been no privately owned forests in the area prior to the process of nationalisation. He considered that if, on the other hand, the land claimed had been agricultural before nationalisation, that fact had to be expressly established by showing that the forests on the land were less than fifty years of age.

8. On the basis of the regional commission’s decision of 30 August 2000, in a series of decisions dated 10 May 2001 the Dospat land commission restored the applicants’ property rights to the land at issue, and the applicants took possession and started using it shortly thereafter.

9. In July 2001 the Dospat forest authority complained to the Smolyan regional public prosecutor’s office about the restitution process in the Dospat region. The complaint concerned seventy-five beneficiaries of the restitution process, including the applicants, and 189.9 hectares of forestry land. Non-governmental organisations also complained to the prosecution authorities that the Dospat forests had been “plundered”.

10. The Smolyan regional public prosecutor’s office commissioned an expert report, which established that before nationalisation the land given to the applicants had been yaylak (a Turkish term designating a high-mountain pasture). Under the law of the Ottoman Empire to which the territory had belonged until 1912, the State remained the owner of all yaylak land and private individuals could only receive the right to use it. That situation was preserved in Bulgarian law after the area had been included in Bulgarian territory. There were no documents in the public archives indicating that there had ever been privately owned forests in the area. In particular, in the tax registers for the period between 1929 and 1934, there were no data indicating that private individuals had paid land tax; there were no documents for the expropriation of forestry land in the area after the enactment of the relevant legislation in 1947; and there was no indication that at the time of expropriation anyone in the area had received compensation, which in accordance with the law had to be in the form of State bonds. Lastly, the expert pointed out that there had been no cases of restitution of forests or forestry land in the Dospat region under section 13 of the Forests Restitution Act, namely with documents establishing rights to property prior to nationalisation (see paragraph 25 below).

11. In November 2003 the Smolyan regional public prosecutor’s office proposed that the administrative proceedings be re-opened and the decisions of the land commission of 10 May 2001 be quashed.

12. In a series of decisions dated 2 and 8 December 2003, in all but four of the present cases the Dospat Agriculture and Forestry Department (the former land commission) quashed the decisions of 10 May 2001. It considered that those decisions had been adopted “in material breach of the law”, because the documents submitted by the prosecution had shown that as there had never been privately owned forests and forestry land in the area of Dospat, the preconditions for restitution had not been met.

13. The applicants challenged those new decisions. In judicial proceedings which all ended between 1 February and 12 April 2005, the Smolyan Regional Court and the Supreme Administrative Court quashed the decisions. Giving largely identical reasoning, they found that the Agriculture and Forestry Department’s reasons for re-opening the proceedings had not been valid and quashed its earlier decisions because the relevant time-limits for doing so, as provided for by the general rules on administrative procedure, had expired. They did not discuss the merits of the applicants’ restitution claims.

2. Rei vindicatio proceedings against the applicants

(a) Developments concerning all the applicants

14. In November 2005 the Dospat forest authority, acting on behalf of the State, brought rei vindicatio claims against the applicants, arguing that the State was the lawful owner of the restored land and that the restitution had been unlawful. Following requests by the forest authority, in many of the cases the courts issued interim injunctions against the applicants, barring them from transferring their titles.

15. The different sets of rei vindicatio proceedings ended between 22 January 2009 and 4 March 2010. In all of them, using largely identical reasoning and relying on the legislation as in force in the 1920s and 1930s and documents from different periods, the courts found that the land at issue had been yaylak, which meant that it could not have been privately owned at the time of nationalisation of forests in Bulgaria in the 1940s. Moreover, given the age of the forests – in some cases more than a hundred years – it could not be accepted that at the time of nationalisation the land at issue had been agricultural and that it had subsequently been afforested. In some of the cases the courts pointed out that the applicants had not even claimed that they or their predecessors had been owners, but merely relied on the land commission’s respective decisions of 10 March 2001. In some cases the courts noted in addition that the regional commission’s decision of 30 August 2000 had not been signed on the part of the Dospat forest authority by the member indicated in the order of the Minister of Agriculture, but by another person.

16. On the basis of the above findings the courts concluded that the land at issue had not been owned by the applicants’ predecessors and could not therefore have been taken from them in the 1940s; on the contrary, the land had always been State-owned. Accordingly, the restitution legislation had not given rise to any rights for the applicants. Furthermore, the courts considered that both the regional commission’s decision of 30 August 2000 and the Dospat land commission’s decisions of 10 March 2001 had been given in breach of the law.

17. In addition, the courts found that the State, as represented by the Dospat forest authority, was not bound by the land commission’s decisions on restitution. For instance, in its judgment of 27 November 2007 in the case of Mr Eduard Stefanov Danailov and Mr Aleksandar Stefanov Danailov, the Smolyan Regional Court held:

“The court, in examining a rei vindicatio action, must scrutinise independently whether the right to property has arisen on valid grounds and is not bound by the administrative decision relied on – the decision of the land commission – the validity of which is to be verified through indirect judicial review where the plaintiff has not participated in the administrative proceedings.

It cannot be accepted that the participation of a representative of the Dospat forest authority in the administrative proceedings which resulted in the adoption of the land commission’s decision is sufficient to render the conclusions of those proceedings binding on the Dospat forest authority.”

18. Similarly, in a judgment of 18 December 2009, in the case of Mr Velin Menkov Terziev, the Supreme Court of Cassation held:

“The claimant in the rei vindicatio proceedings has not participated in the administrative proceedings concerning restitution of property and is not bound by the land commission’s decision. It can therefore challenge that decision in civil proceedings concerning its property rights.”

(b) Examination of the appeal on points of law of Mr Sevdalin Antimov Pehlivanov and Mr Feti Halilov Pehlivanov

19. After the entry into force of the new Code of Civil Procedure on 1 March 2008 Mr Sevdalin Antimov Pehlivanov and Mr Feti Halilov Pehlivanov lodged an appeal on points of law, which was examined in accordance with the rules provided for in the new Code.

20. As required under Articles 287 and 288 of the Code, the appeal was served on the Dospat forest authority, which lodged written submissions in reply. The submissions were not communicated to the applicants. Having considered the case file on the papers, in a final decision of 26 February 2010 a three-member panel of the Supreme Court of Cassation refused to admit the appeal for examination. It held that the appeal did not meet the requirements of Article 280 § 1 of the Code.

3. Other developments

21. On unspecified dates the prosecution authorities instituted criminal proceedings against some of the beneficiaries of restitution in the Dospat region for document forgery and fraud. In six of the cases under examination, which were not specified by the parties, the applicants were indicted. In two of those cases the courts convicted the applicants.

22. Specific information has been provided on the case of Mr Emil Velinov Mladenov, Ms Atidzhe Salihova Uzunova, Ms Nayle Salihova Letifova and Mr Mladen Velinov Mladenov. On 25 June 2004 Mr Emil Velinov Mladenov was convicted by the Devin District Court for having forged a request for restitution submitted on behalf of the remaining applicants. This was taken into account by the courts examining the rei vindicatio action against those applicants and served as grounds to allow the action and conclude that the applicants had not become the owners of the land claimed.

23. After the completion of the rei vindicatio proceedings the Dospat forest authority brought proceedings for unlawful enrichment against some of the applicants, seeking to recover the monetary equivalent of the timber produced from the respective plots of land between 2001 and 2005.

B. Relevant domestic law and practice

1. Restitution of forestry land

(a) The Forests Restitution Act

24. The Restitution of Title to Forests and Forestry Land Act (Закон за възстановяване на собствеността върху горите и земите от горския фонд, “the Forests Restitution Act”) was enacted in 1997. It set out the conditions for restitution of forestry land which had been expropriated in 1946 and the following years. Under section 11 of the Act, the bodies competent to take decisions on restitution were the respective land commissions, replaced in 2002 by Agriculture and Forestry Departments (after 2008 renamed Agriculture Departments). Those are State bodies, whose members are appointed by the Minister of Agriculture. Forest authorities are also State bodies.

25. Former owners of forestry land wishing to have their property rights restored had to support their claims by documents establishing their title before nationalisation (section 13 of the Forests Restitution Act). Where the relevant documents had been “lost or destroyed through no fault of their own”, such claimants might still apply for restitution and their requests were to be examined under a special procedure provided for in section 14 of the Act.

26. Section 14 provides for the creation of regional commissions, composed of representatives of the local judicial and administrative authorities, with the task of carrying out inquiries to verify restitution claims. Where, following an inquiry, the regional commission was satisfied that the claims in question were well founded, it would take a decision to restore the former owners’ property rights. Such a decision was binding on the respective land commission/Agriculture Department, which was obliged, within six months of its receipt, to issue a formal decision on restitution. The decisions taken by the land commissions/Agriculture Departments were not amenable to judicial review, and any disputes with third parties over property rights were to be determined in separate proceedings.

(b) Interpretative decision no. 5/2013

27. On 14 January 2013 the Plenary of the Civil Chambers of the Supreme Court of Cassation delivered interpretative decision no. 5/2013 (Т.д. № 5/2011 г., Върховен съд на Република България, Общо събрание на Гражданска колегия). It found, in the first place, that court judgments ordering restitution under the Forests Restitution Act had binding effect on the State and its bodies, which could not seek the re-examination of the matter in new judicial proceedings.

28. The Supreme Court of Cassation found, on the other hand, that it remained open for the State, through its bodies, to challenge administrative decisions of the land commissions/Agriculture Departments allowing restitution claims. In particular, it held:

“The restitution of ... forests is carried out through administrative means. ... The procedure unfolds between the administrative body and the person who has sought restitution, and that is why it is ex parte. No disputes concerning rights to property are examined in these proceedings, and the Agriculture Department decides on the request for restitution. ...

The State is not a party to the proceedings before the Agriculture Department. Pursuant to [the relevant provisions of the Code of Administrative Procedure], the parties to proceedings concerning the issuance of an individual administrative decision are the claimant and other interested parties who were summoned or have joined the procedure. The Agriculture Department is not a party to the administrative procedure, but the body before which the procedure unfolds. ...

Where the decision given in the restitution procedure affects rights in rem of the State, it is entitled to defend them under the general civil law, by bringing an action to establish the rights claimed by it. Where an action has been brought against it, it can seek to establish that it has the right to ownership of the disputed plot. For the State this is the only means of defence against an unlawful administrative decision.”

2. Rules concerning cassation proceedings

29. The rules under the Code of Civil Procedure, as in force since 1 March 2008, have been summarised in the Court’s decision in the case of Valchev and Others v. Bulgaria ((dec.), nos. 47450/11, 26659/12 and 53966/12, 21 January 2014).

COMPLAINTS

30. The applicants complained, under Article 1 of Protocol No. 1 and Articles 6 § 1 and 13 of the Convention, that as a result of the rei vindicatio proceedings against them they had been arbitrarily deprived of the property acquired by them on the strength of the decisions of 10 March 2001. They argued that the courts examining the rei vindicatio claims against them had been bound by the decisions at issue and were not competent to re-examine the well-foundedness of their restitution claims. They considered that by re‑examining their claims, the State, which had initially allowed them, had afforded itself “a second chance” to have the matter determined.

31. Mr Sevdalin Antimov Pehlivanov and Mr Feti Halilov Pehlivanov complained under Article 6 § 1 of the Convention that the cassation proceedings in respect of their case had been unfair in that they had not been given an opportunity to comment on the other party’s position regarding the admissibility of their appeal on points of law. They also considered that the rules on cassation had unduly restricted their right to access to a court.

32. Relying on Articles 6 § 1, 13 and 46 of the Convention and Article 1 of Protocol No. 1, the applicants complained of the alleged unfairness of the rei vindicatio proceedings against them and the approach taken by the domestic courts. In particular, they considered that the national courts had failed to take into account the judgments of the Smolyan Regional Court and the Supreme Administrative Court concerning the land commission’s attempt to re-open the administrative proceedings (see paragraph 13 above). The applicants argued in addition that some of the judges examining the rei vindicatio claims had not been impartial.

THE LAW

A. Complaint that the land commission’s decisions of 10 March 2001 were reversed and that the authorities found that the applicants were not entitled to restitution

33. The applicants relied on Article 1 of Protocol No. 1 and Articles 6 § 1 and 13 of the Convention (see paragraph 30 above). However, the Court is of the view that the complaint is most appropriately examined under Article 1 of Protocol No. 1 alone, 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.”

1. The parties’ submissions

(a) The Government

34. The Government argued, in the first place, that the complaint was inadmissible for non-exhaustion of domestic remedies, because the application had been lodged while the rei vindicatio proceedings involving the applicants had been pending. They also submitted that the application had been lodged outside the six-month time-limit under Article 35 § 1 of the Convention. In addition, relying on Article 17 of the Convention, the Government argued that the applicants were abusing their right to individual application.

35. The Government also argued that the applicants’ acquisition of property on the basis of the land commission’s decisions of 10 March 2001 had not been valid. The Forests Restitution Act provided for restitution of forests and forestry land to their former owners, whereas the forests claimed by the applicants had always been State-owned. The applicants had not presented a single document or other piece of evidence showing that the forests and the land claimed by them were amenable to restitution.

36. The Government made a detailed analysis of the legislative provisions and the documents referred to in the domestic proceedings, showing that the forestry land in the area of Dospat had, ever since the territory had joined Bulgaria, been yaylak and as such had belonged to the State.

37. The Government agreed with the findings of the national courts that they had not been bound by the land commission’s decisions on restitution and were competent to re-examine the well-foundedness of the applicants’ restitution claims. The Government pointed out that the participation in the regional commission of representatives of the Dospat forest authority and the land commission did not lead “to the unambiguous and unconditional conclusion that the State had participated in the restitution proceedings and therefore could not participate in the rei vindicatio proceedings”.

38. Lastly, the Government pointed out that the domestic courts had found the regional commission’s decision of 30 August 2000 to be invalid, as it had been signed not by the person appointed by the Minister of Agriculture to sit on it as a representative of the Dospat forest authority, but by another person.

(b) The applicants

39. The applicants disputed the Government’s objections (see paragraph 34 above).

40. They pointed out that their entitlement to restitution had been acknowledged by the regional commission and the land commission, and that they had taken possession of the land claimed, thus acquiring title to it. They considered that the authorities had interfered with their property in three ways: by bringing the rei vindicatio claims, thus disputing their rights, and imposing interim measures on some of them (see paragraph 14 above); by allowing the rei vindicatio claims, thus depriving them of their property; and by bringing additional actions against them for unlawful enrichment (see paragraph 23 above).

41. The applicants contended that the interference with their rights had not been “subject to the conditions provided for by law”, as stipulated in Article 1 of Protocol No. 1. In particular, the domestic law did not provide for sufficient guarantees against arbitrariness as it had allowed the State a “second chance” to claim their land, several years after their restitution rights had been acknowledged. The applicants argued that they had acted in good faith and had therefore been made to bear an excessive burden as a result of the return of the land to the State.

2. The Court’s assessment

42. The Court takes note of the Government’s objections for inadmissibility of the present complaint and the applicants’ disagreement with them (see paragraphs 34 and 39 above). However, it considers that it is not necessary to decide on the matter, because the complaint is in any event inadmissible for the following reasons.

43. In the case of Kopecký v. Slovakia ([GC], no. 44912/98, § 35, ECHR 2004-IX), the Court set out the following principles in respect of restitution of expropriated property (citations omitted):

“Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners.

In particular, the Contracting States enjoy a wide margin of appreciation with regard to the exclusion of certain categories of former owners from such entitlement. Where categories of owners are excluded in this way, their claims for restitution cannot provide the basis for a ‘legitimate expectation’ attracting the protection of Article 1 of Protocol No. 1.

On the other hand, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement. The same may apply in respect of arrangements for restitution or compensation established under pre-ratification legislation, if such legislation remained in force after the Contracting State’s ratification of Protocol No. 1.”

44. Furthermore, the Court has held that where the proprietary interest is in the nature of a claim, it may be regarded as an “asset” only where it has a sufficient basis in national law (see Kopecký, cited above, § 52, and Maria Atanasiu and Others v. Romania, nos. 30767/05 and 33800/06, § 137, 12 October 2010).

45. In the case at hand, the Government argued that the applicants had not satisfied the requirements for restitution (see paragraphs 35-36 above).

46. The Court observes that the question whether the applicants were entitled to the restitution of the land claimed by them was first examined by an administrative body, the land commission, which issued decisions favourable to the applicants. However, subsequently those decisions were successfully challenged before the domestic courts in rei vindicatio proceedings instituted by the Dospat forest authority on behalf of the State. Bearing in mind that the domestic law does not treat favourable decisions of the competent administrative body as binding on third parties, who are entitled to challenge such decisions in separate proceedings, the Court is not convinced that the decisions in the applicants’ cases could be seen as giving rise for the applicants to any rights protected by Article 1 of Protocol No. 1. The Court notes that in the present case, in verifying the status of the land after the area had joined Bulgarian territory in subsequent proceedings, the courts in the rei vindicatio proceedings concluded that the land had been yaylak, which meant that its owner had always been the State and that private persons could only have benefited from the right of use. The courts thus concluded that the applicants, or their predecessors, had never owned the land, that it had not been expropriated from them in the 1940s, and that the requirements for restitution had not been met (see paragraphs 15 and 16 above). The applicants did not dispute the evidence relied on in the domestic proceedings or the evidence submitted by the Government in the current proceedings.

47. The above conclusion was reached in adversarial proceedings in which the applicants participated. It is also noteworthy that in the domestic proceedings some of the applicants did not claim that their predecessors had owned the land, but merely relied on the land commission’s respective decisions returning the land to them (see paragraph 15 above).

48. The Court is thus satisfied, with a view to the applicable principles cited in paragraph 43 above, that the decisions of the domestic courts that the provisions of the Forests Restitution Act did not give rise to a valid legitimate expectation for the applicants were not arbitrary.

49. The applicants contended than the decisions of the regional commission of 30 August 2000 and of the land commission of 10 March 2001 were nevertheless sufficient to create property rights for them.

50. In so far as the applicants argued that the State had received a “second chance” to have the question of their entitlement to restitution examined, the Court observes that indeed, once decided upon by the regional commission and the land commission, the matter was re-examined by the courts in the rei vindicatio proceedings. However, the Court does not consider this fact sufficient to conclude that a problematic issue arose related to legal certainty in view of the requirements of Article 1 of Protocol No. 1. As already stated, unlike in the case of Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, 12 January 2006), in the present case the initial decisions favourable to the applicants were given by an administrative body and could be challenged before the courts. Unlike the case of Kehaya and Others, where a second round of court proceedings had “the effect of providing a ‘second chance’ for the State to obtain a re‑examination of a dispute already determined by way of final judgments” (see § 70 of the judgment), in the present case the initial favourable decision of the administrative body was not considered as final and could be contested in subsequent adversarial proceedings. The question of the applicants’ entitlement to restitution was examined by a court for the first time in the adversarial rei vindicatio proceedings, where all arguments in favour of or against the restitution could be heard. As already noted, the courts in those proceedings gave relevant and sufficient reasons for their conclusion that the preconditions for restitution had not been met.

51. The above conclusions correspond to the position of the Plenary of the Civil Chambers of the Supreme Court of Cassation, which confirmed in its interpretative decision of 14 January 2013 (see paragraph 28 above) that the State was entitled to defend its property rights where they had been affected by decisions of the Agricultural Departments (former land commissions). Even though that decision was given long after the impugned events, it is indicative of the state of domestic law.

52. In addition, the Court notes that the applicants must have been aware from the very beginning of the statutory possibility of subsequent examination of the matter by the courts, as well as of the fact that no documents establishing their right to property had ever existed, or had been “lost or destroyed”, as required to justify the application of the procedure provided for by section 14 of the Forests Restitution Act (see paragraph 25 above). Accordingly, the Court cannot accept that the applicants were acting in good faith, as claimed by them. It notes in addition that some of the applicants were prosecuted and convicted for document forgery and fraud in relation to the restitution procedure (see paragraphs 21 and 22 above), which is also an indication of bad faith on their part.

53. In so far as the applicants obtained the possession and the use of the land in question following the decisions of the land commission, the Court points out that, as a general principle, the authorities should not be prevented from correcting their mistakes, even those resulting from their own negligence, because holding otherwise would be contrary to the doctrine of unjust enrichment (see Moskal v. Poland, no. 10373/05, § 73, 15 September 2009, and Bogdel v. Lithuania, no. 41248/06, § 66, 26 November 2013). Given its finding above that the applicants were not entitled to restitution, the Court does not doubt that the authorities’ actions in the case were aimed at correcting a mistake, namely the decisions to restore title to property which had never been owned by the claimants or their predecessors.

54. In so far as the Court has held that the principle referred to above should not prevail in a situation where the individual concerned is required to bear an excessive burden (see Moskal, cited above, § 73), it considers that there is nothing in the present case to show that the applicants were made to bear such a burden. The finding that they were not entitled to restitution did not affect their main income, their homes or their means of subsistence and, as already stated, the Court is not satisfied that the applicants acted in good faith.

55. Accordingly, the Court is of the view that the examination of the applicants’ restitution claims in the rei vindicatio proceedings and the findings that they were not entitled to restitution did not run contrary to the protection provided for by Article 1 of Protocol No. 1. The same is valid in respect of the remaining measures complained of by the applicants, namely the imposition of interim measures on some of them and the bringing of actions for unlawful enrichment (see paragraph 40 above), which were the lawful consequences of the rei vindicatio proceedings.

56. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaint of Mr Sevdalin Antimov Pehlivanov and Mr Feti Halilov Pehlivanov concerning the alleged unfairness of the admissibility proceedings before the Supreme Court of Cassation

57. Mr Sevdalin Antimov Pehlivanov and Mr Feti Halilov Pehlivanov also complained that the Supreme Court of Cassation had failed to send them the submissions of the Dospat forest authority in reply to their appeal on points of law and to give them an opportunity to respond to those submissions (see paragraph 32 above). The applicants relied on Article 6 § 1 of the Convention, which, in so far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing...”

1. The parties’ submissions

58. The Government argued that there had been no breach of the applicants’ rights under Article 6 § 1 of the Convention. They were of the view that the fact that the decision concerning the admissibility of the applicants’ appeal on points of law had been taken by three judges of the Supreme Court of Cassation was a guarantee against any undue restriction of their access to cassation. They pointed out, in addition, that the case had been examined in detail by the first and second-instance courts and that, accordingly, the applicants had become aware of their opponents’ arguments in relation to the case at earlier stages of the proceedings. The Government concluded that the applicants had not been put at a disadvantage vis-à-vis their opponents.

59. The applicants disagreed. Most notably, they referred to the dissenting opinions of some of the Bulgarian Constitutional Court judges who had dealt with a constitutional challenge to Article 288 of the Code of Civil Procedure 2007 (see Valchev and Others, cited above, § 43), and asserted that they had been placed at a clear disadvantage vis-à-vis their opponents.

2. The Court’s assessment

60. The Court notes, in the first place, that there could be doubts as to the applicability of Article 6 § 1 of the Convention to proceedings in which the Bulgarian Supreme Court of Cassation decides, by reference to the criteria set out in Article 280 § 1 of the Code of Civil Procedure 2007, whether or not to admit an appeal on points of law in a civil case for examination. However, as in the recent similar case of Valchev and Others (cited above, §§ 68-73), the Court does not find it necessary to determine the matter. It considers that, even assuming that Article 6 § 1 applies to such proceedings, the present complaint is inadmissible for the reasons that follow.

61. The principle of equality of arms is part of the wider concept of a fair hearing within the meaning of Article 6 § 1 of the Convention (see, among many other authorities, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 56, ECHR 2004-III). In relation to litigation involving opposing private interests, that principle implies that each party must be afforded a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponents (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A no. 274).

62. In the case of Valchev and Others (cited above, §§ 76-78) where it examined similar complaints, the Court pointed out that its assessment was based on the special features of the proceedings before the Supreme Court of Cassation, and that account had also to be taken of the entirety of the proceedings conducted in the domestic legal order and the cassation court’s role therein. It thus noted that each of the applicants in that case had submitted a brief explaining, by reference to the criteria set out in Article 280 § 1 of the Code of Civil Procedure 2007, why their appeal on points of law should be admitted for examination. They had therefore had an opportunity to put before the Supreme Court of Cassation all their arguments in that regard. Accordingly, in view of the special nature of the proceedings the non-communication of the respondents’ submissions in reply and the lack of an additional opportunity to respond to those submissions had not placed the applicants at a substantial disadvantage vis‑à-vis their opponents or impermissibly impinged on the adversarial nature of the proceedings. Lastly, the Court pointed out that before reaching the Supreme Court of Cassation, the applicants’ cases had been subjected to a full and adversarial examination by two levels of court with full jurisdiction.

63. The Court considers the conclusions it reached in Valchev and Others fully applicable to the case at hand. It thus concludes that the fact that the Dospat forest authority’s submissions on the admissibility of their appeal on points of law were not communicated to them did not place Mr Sevdalin Antimov Pehlivanov and Mr Feti Halilov Pehlivanov at a substantial disadvantage vis-à-vis their opponents, and that the requirement of adversarial proceedings was not impermissibly impinged upon.

64. It follows that the present complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Remainder of the applicants’ complaints

65. The applicants raised other complaints, relying on Articles 6 § 1, 13 and 46 of the Convention and Article 1 of Protocol No. 1 (see paragraph 32 above).

66. The Court has examined these complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

67. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 March 2015.

              Françoise Elens-PassosGuido Raimondi
RegistrarPresident

Appendix

     Eduard Stefanov DANAILOV, born in 1950    Eftim Sevdalinov BAGRYANOV, born in 1929    Salih Halilov BAYRYAM, born in 1939    Nuri Dzheferov BAYRYAMOV, born in 1933    Sergey Savkov BOZOV, born in 1959    Aleksandar Stefanov DANAILOV, born in 1948    Biser Sevdalinov DASKALOV, born in 1938    Antim Delyanov DZHAMBAZOV, born in 1957    Delyan Delyanov DZHAMBAZOV, born in 1946Feti Mehmedov DZHAMBAZOV, born in 1932Fidan Fidanov DZHAMBAZOV, born in 1972Ayshe Redzhepova DZHAMBAZOVA, born in 1924Salih Ismailov KASAKLIEV, born in 1965Emil Milkov KOLEV, born in 1943Aleksandar Atanasov KUTSLEV, born in 1955Veselin Sevdalinov KUTSLEV, born in 1955Emine Salihova KUTSLEVA, born in 1946Silvie Salihova KUTSLEVA, born in 1940Nayle Salihova LETIFOVA, born in 1939Halil Salihov MASLEV, born in 1924Abdula Salihov MEYZINOV, born in 1942Ramadan Salihov MEYZINOV, born in 1950Emil Velinov MLADENOV, born in 1967Mladen Velinov MLADENOV, born in 1963Halil Mustafov MOLALIEV, born in 1940Shukri Ahmedov MUSTAFINKOV, born in 1934Neven Antimov MUTAFCHEV, born in 1957Redzhep Mehmedov MUTAFCHEV, born in 1939Vladimir Antimov MUTAFCHEV, born in 1959Fatme Ahmedova MUTAFCHEVA, born in 1936Milena Sevdalinova OSANLIEVA, born in 1942Salih Halilov PASHOV, born in 1929Elin Sabev PEHLIVANCHEV, born in 1954Halil Mehmedov PEHLIVANCHEV, born in 1938Nikolay Filipov PEHLIVANOV, born in 1962Sevdalin Pehlivanov PEHLIVANOV, born in 1952Stefan Filipov PEHLIVANOV, born in 1964Feti Halilov PEHLIVANOV, born in 1934Gyulfize Ahmedova PEHLIVANOVA, born in 1937Ayshe Salihova SAITOVA, born in 1952Ismail Halilov SELYOSHEV, born in 1941Salih Sabrihov TERZIEV, born in 1939Velin Menkov TERZIEV, born in 1957Vlado Stankov TERZIEV, born in 1966Atidzhe Salihova UZUNOVA, born in 1943Evgeni Davidov VALNEV, born in 1945Yavor Davidov VALNEV, born in 1935

 

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