AS TO THE ADMISSIBILITY OF
Application No. 37912/97
by Radka GOSPODINOVA
against Bulgaria
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 November 1995
by Radka Gospodinova against Bulgaria and registered on 26 September
1997 under file No. 37912/97;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Bulgarian national born in 1940 and residing
in Plovdiv.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
The house of the applicant's father in Plovdiv was expropriated
under a building plan in 1973. In 1975 the applicant, to whom her
father had transferred his right to compensation, received in
compensation a three rooms apartment.
The house of the applicant's father was demolished and a state-
owned hotel complex was built in the area.
In 1992 the Parliament adopted a law on the restitution of
property expropriated under [building planning and other legislation]
(Zakon za vazstanoviavane na sobstvenostta varhu niakoi otchuzhdeni
imoti po ZTSU, ZPINM, ZBNM, ZDI i ZS) (see below Relevant domestic
law).
On 14 August 1992 the mayor of Plovdiv refused the applicant's
request for restitution stating that the project for which her father's
house had been expropriated, namely the construction of a hotel
complex, had been completed. Also, the applicant had not declared her
willingness to return the apartment she had received.
The applicant appealed to the Plovdiv Regional Court (Okrazhen
sad) stating that the plot where the house had stood was not covered
by the hotel building. The Court held several hearings, heard experts
and collected other evidence.
An expert, who presented his findings on 21 June 1993, stated
inter alia that the claimed land was partly covered by a restaurant at
the hotel and partly by tennis courts. Also, the expert expressed an
opinion that the claimed land could not constitute an independent plot
according to the relevant regulations as in force in 1993.
By judgment of 30 March 1994 the Court dismissed the appeal. The
Court found that the hotel complex envisaged by the building plan had
been built and that therefore the project for which the applicant's
property had been expropriated had been accomplished within the meaning
of the law. This was so despite the fact that the tennis courts had
not been built at the same time as the hotel. The tennis courts
nevertheless formed a part of the hotel complex. The Court also found
that the land claimed by the applicant had insufficient surface and
could not constitute an independent plot.
By judgment of 7 February 1996 the Supreme Court (Varhoven sad)
dismissed the applicant's ensuing petition for review (cassation)
(pregled po reda na nadzora).
The applicant then unsuccessfully attempted to institute criminal
proceedings against the experts who had testified before the Regional
Court.
The applicant first wrote to the Commission on 20 November 1995,
and complained about a French firm which allegedly promised to employ
her but then refused to do so. On 12 January 1996 the applicant
withdrew this complaint. The applicant then wrote again on 11 June
1997 complaining of the refusal of her request for restitution.
B. Relevant domestic law
According to the Law on the restitution of property expropriated
under [building planning and other legislation] the former owners, or
their heirs, of real property which had been expropriated pursuant to
several particular pieces of legislation could request, within six
months of the law's entry into force, the restoration of their rights
under certain conditions.
In the case of plots of land where the building had been
demolished, the restitution of the land was possible only if the
practical execution of the project for which the property had been
expropriated had not commenced and if the property could constitute an
independent plot under the planning regulations (Section 1 para. 2).
Also, the former owners were required to return what they had received
in compensation (Sections 5 - 7).
COMPLAINTS
The applicant invokes Article 8 of the Convention and Article 1
of Protocol No. 1. She complains that the 1973 expropriation was
unjust as she received inadequate compensation and that, after 1992,
restitution was refused.
THE LAW
The applicant complains of the expropriation of her father's real
property in 1973 and of the decisions delivered after 1992 and refusing
her request for restitution.
The Commission finds that this complaint falls to be examined
under Article 1 of Protocol No. 1 (P1-1) to the Convention which,
insofar as relevant, provides 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 ..."
Insofar as the applicant complains of the expropriation which
took place in 1973, the Commission recalls that the Convention entered
into force in respect of Bulgaria on 7 September 1992, and that in
accordance with the generally recognised principles of international
law, the Commission is only competent to examine complaints about
violations of the Convention by virtue of acts, facts or decisions that
have occurred after that date. The Commission finds, therefore, that
this part of the application is outside its competence ratione temporis
and therefore incompatible with the provisions of the Convention within
the meaning of Article 27 para. 2 (Art. 27-2).
As regards the remainder of the application the Commission notes
that the first letter of the applicant to the Commission, dated
20 November 1995, apparently did not mention the complaint concerning
the refusal of her request for restitution and that the applicant's
letter raising this complaint was dated 11 June 1997.
Nevertheless the Commission need not decide in the particular
circumstances whether, as required by Article 26 (Art. 26) of the
Convention, the applicant introduced the application within the six
months' time-limit following the final decision in her case as the
application is in any event inadmissible for the following reasons.
The Commission recalls that according to the Convention organs'
case-law, a person complaining of an interference with his property
must show that such right existed (No. 7655-7657/76, Dec. 4.10.77,
D.R. 12, p. 111).
The Commission further recalls that "possessions" within the
meaning of Article 1 of Protocol No. 1 (P1-1) may be either "existing
possessions" (Eur. Court HR, Van der Mussele v. Belgium judgment of
23 November 1983, Series A no. 70, p. 23, para. 48) or claims, in
respect of which the applicant can argue that he has at least a
"legitimate expectation" of obtaining effective enjoyment of a property
right (Eur. Court HR, Pine Valley Developments v. Ireland judgment of
29 November 1991, Series A no. 222, p. 23, para. 51; Pressos Compania
Naviera S.A. v. Belgium judgment of 20 November 1995, Series A no. 332,
p. 21, para. 31).
It is clear that the present case does not concern any "existing
possessions" of the applicant. The property of the applicant's father
was expropriated in 1973. Since then the applicant, and her father,
were not able to exercise any ownership right over the property
concerned.
It remains to be examined whether the applicant could have any
"legitimate expectation" of realising her claim to restitution of
property.
The Commission recalls that where a law provided for certain
conditions which, if fulfilled, would have entitled the applicants to
the restitution of their confiscated or nationalised property, a
"legitimate expectation" amounting to a "possession" cannot be said to
exist in circumstances where the applicants evidently did not meet
clear conditions under the restitution law, such as residence in the
country or the requirement that the claimed property be in the
possession of the State (cf. No. 23131/93, Dec. 4.3.96, D.R. 85, p. 65;
No. 25497/94, Dec. 17.5.95, D.R. 85, p. 126).
In the present case the answer to the question whether the
applicant met the conditions under the relevant law was apparently of
a greater legal and factual complexity. Thus, the Regional Court when
examining the applicant's appeal needed, inter alia, to appoint experts
in order to establish whether the claimed property, or a part of it,
could constitute an independent plot. Furthermore, it was not patently
clear whether all the land in question had served precisely for the
project for which it had been expropriated. Therefore, it appears that
the applicant may have reasonably believed that she would be able to
convince the courts that the conditions for restitution were met.
In these circumstances the Commission considers that it should
examine the application on the assumption that the applicant may be
considered to have had a "legitimate expectation" of realising her
claim to restitution and that there has been an interference with her
rights protected by Article 1 of Protocol No. 1 (P1-1) to the
Convention.
The Commission recalls that Article 1 of Protocol No. 1 (P1-1)
to the Convention guarantees in substance the right of property and
comprises three distinct rules. The first, which is expressed in the
first sentence of the first paragraph and is of a general nature, lays
down the principle of peaceful enjoyment of possessions. The second,
in the second sentence of the same paragraph, covers deprivation of
possessions and makes it subject to certain conditions. The
deprivation rule is intended to refer to acts whereby the State lays
hands on, or authorises a third party to lay hands on, a particular
piece of property which is to serve the public interest (cf. Eur. Court
HR, Air Canada v. the United Kingdom judgment of 5 May 1995, Series A
no. 316, paras. 29, 30; No. 11949/86, Dec. 1.12.86, D.R. 51, pp. 195,
209).
Where there has been a state interference with the right to
peaceful enjoyment of a property right the task of the Convention
organs is to examine the lawfulness, purpose and proportionality of the
decision taken by the domestic authorities (cf. No. 12258/86,
Dec. 9.5.88, D.R. 56, p. 215).
The Commission notes that the decisions refusing restitution to
the applicant had a legal basis in the provisions of the law on the
restitution of property expropriated [under building plan legislation].
The mayor gave a reasoned decision following which the applicant was
able to bring judicial proceedings where she freely put forward her
arguments and presented evidence. Furthermore, the courts examined all
relevant material and delivered decisions in which they addressed all
pertinent submissions of the applicant. The decisions were based on
the findings that the project for which the property had been
expropriated, the construction of a hotel complex, had been completed
and that the claimed land was included in the area of the complex. In
such circumstances restitution was not possible under the relevant law.
Moreover, the courts noted that the claimed land did not have the
minimum surface necessary to become an independent plot, which was
another condition for restitution.
The Commission finds therefore that the refusal of restitution
was not arbitrary or otherwise incompatible with Article 1 of
Protocol No. 1 (P1-1) to the Convention and that therefore the
remainder of the application is manifestly ill-founded and has to be
rejected under Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy