FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 23530/05
by Zheko Kolev DONCHEV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 6 July 2010 as a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Rait Maruste,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna Yudkivska, judges,
Pavlina Panova, ad hoc judge,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 6 June 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Zheko Kolev Donchev, is a Bulgarian national who was born in 1923 and lives in Burgas.
The Bulgarian Government (“the Government”) were represented by their Agent, Mrs S. Atanasova, of the Ministry of Justice.
Judge Kalaydjieva, the judge elected in respect of Bulgaria, withdrew from sitting in the case. On 30 January 2009 the Government appointed in her stead Mrs Pavlina Panova as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1 of the Rules of the Court as in force at the time).
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1969 the applicant and his wife bought from the Burgas municipality a three-room apartment of 81 square metres, which had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria after 1947.
In the beginning of 1993 the heirs of the former pre-nationalisation owners of the property brought proceedings under section 7 of the Law on the Restitution of Ownership of Nationalised Real Property of 1992 (the Restitution Law 1992), seeking the nullification of the title of the applicant and his wife on the ground that the contract whereby the latter had acquired the property at issue had been flawed.
The proceedings ended by final judgment of the Supreme Court of Cassation of 4 July 1997. The domestic courts held that none of the flaws indicated by the plaintiffs existed.
In December 1997, following a renewal of the time-limit to bring an action under section 7 of the Restitution Law 1992, the heirs of the former owners of the apartment brought a new action against the applicant and his wife, invoking new grounds for nullity.
The applicant's wife died on an unspecified date before August 2002.
In a final judgment of the Supreme Court of Cassation of 28 June 2005 the claim was allowed and the title of the applicant and his late wife was found to have been null and void.
B. Other relevant developments
Following the communication of the present application, on 27 August 2008 the Government informed the Court that on 7 August 2002 the applicant and his two daughters, acting as their mother's heirs, had sold the apartment at issue to a third party. In his letters and application form and the enclosed documents the applicant had not informed the Court of this fact.
It is not clear whether following the judgment of 28 June 2005 the buyers sought to recover the price they had paid in 2002 to the applicant and his daughters.
In his claims for just satisfaction, submitted on 12 May 2009, the applicant claimed again the full market price of the apartment.
COMPLAINTS
1. The applicant complained that he had been deprived of his apartment arbitrarily and through no fault of his.
2. He also complained that the issue examined in the second set of court proceedings, namely whether his title to the disputed apartment was null and void, had already been decided with a res judicata effect by virtue of the Supreme Court of Cassation's final judgment of 4 July 1997.
THE LAW
The applicant complained that he had been deprived of his property as a result of court proceedings which had not been fair. The complaints would have fallen to be examined, respectively, under Article 1 of Protocol No. 1 and Article 6 § 1 of the Convention.
However, the Court notes that in his initial application lodged in 2005 and his letters the applicant failed to indicate that in 2002 he had sold the disputed apartment to a third party.
The Court recalls that according to Rule 47 § 6 of the Rules of Court applicants must inform the Court of all circumstances relevant to their application. It further recalls that an application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts. Incomplete information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see, for example, Lozinschi and Rujavnita v. Moldova (dec.), nos. 33052/05 and 31404/05, 4 November 2008, and Berger v. Germany (dec.), no. 10731/05, 17 March 2009).
In the present case the applicant has failed to inform the Court of a relevant change in the circumstances concerning the ownership of the apartment at issue. He has provided no explanation for his failure to disclose this information. Seeing that the information was of central importance for the proper determination of the present cases, as all of the applicant's complaints did, in essence, concern his deprivation of the disputed apartment, the Court finds that the applicant's conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.
It follows that the application must be rejected in its entirety as an abuse of the right of application pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsPeer Lorenzen
Deputy RegistrarPresident
Full & Egal Universal Law Academy