FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 51745/99
by KABAKCHIEVI against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 10 April 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 13 August 1999 and further submissions from the applicants,
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 first applicant, Mrs Olga Timofeeva Kabakchieva, is a Russian national, who was born in 1917 and lives in Sofia. In 2006 the first applicant’s sons, M r Alexander Kabakchiev, born in 1947, and Mr Hristo Kabakchiev, born in 1957 (the second and the third applicants, both Bulgarian nationals), joined the proceedings before the Court.
The applicants were represented before the Court by Mrs S. Margaritova-Voutchkova, a legal adviser practising in Sofia. The respondent Government were represented by their agent Mrs M. Dimova, of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The particular circumstances of the applicants’ case
In March 1945, by decision of a State authority the first applicant and her husband were granted the right to use two rooms and the kitchen in an apartment in Sofia. In 1947, after the birth the second applicant, the competent authority allocated an additional room to the family. At that time the apartment, which covered 173 square metres, belonged to a private joint-stock company.
In 1947 the property of the company was expropriated without compensation. In 1950 the apartment at issue was allocated to the State Military Housing Fund at the Ministry of Defence. In 1951 the fund issued a tenancy order to the first applicant’s husband.
In 1968, at a time when he was Deputy Minister of Defence, the first applicant’s husband purchased the whole apartment from the Ministry of Defence. In accordance with the applicable rules of family law, the first applicant acquired half of the property.
In 1993 the heirs of the pre-nationalisation owners of the apartment brought an action against the first applicant’s husband under section 7 of the Restitution Law. The applicants were not parties to the proceedings.
On 18 October 1995 the District Court granted the claim. It found, inter alia, that the apartment had been purchased in breach of the relevant housing regulations as in force in 1968 since it had been significantly larger than permitted for a four-member family, as the applicants’. The court also found that certain procedural rules had not been complied with and that, in all likelihood, the first applicant’s husband had abused his position of Deputy Minister of Defence.
On appeal, on 14 July 1997 the Sofia City Court quashed the District Court’s judgment and dismissed the claim of the pre-nationalisation owners’ heirs. The court found that all relevant regulations as in force between 1945 and 1968 had been complied with and that the allegation that the first applicant’s husband had abused his position was groundless.
The heirs of the pre-nationalisation owners submitted a petition for review (cassation).
On 22 February 1999 the Supreme Court of Cassation quashed the Sofia City Court’s judgment and upheld the District Court’s judgment.
The Supreme Court of Cassation agreed that the allegation of abuse of office had not been proven. However, the apartment had largely exceeded the needs of the applicants’ family under the rules applicable at the relevant time. As a result, the title of the first applicant’s husband to the apartment at issue was null and void.
The judgment of 22 February 1999 was final and enforceable.
On an unspecified date shortly after February 1999 the first applicant, who had not been a party to the proceedings until then, submitted a request for reopening, stating that in accordance with the Code of Civil Procedure she should have been cited as a party since she was the owner of one half of the apartment at issue.
The first applicant’s husband died in May 1999. The first applicant and her two sons (the second and the third applicants) were his heirs.
By judgments of 30 January and 13 November 2001, the Supreme Court of Cassation quashed the judgments of 14 July 1997 and 22 February 1999 and reopened the case. The court found that, in violation of the relevant provisions of the Code of Civil Procedure, the first applicant had not been summoned as a party to the 1993-1999 proceedings.
All three applicants became parties to the reopened proceedings.
On 1 March 2004 the Sofia City Court decided to refer the case for renewed examination by the Sofia District Court. That decision was quashed by the Supreme Court of Cassation on 24 March 2005, as the reopened case fell to be examined by the Sofia City Court.
On 9 January 2006 the Sofia City Court found that the 1968 transaction was null and void, having regard to the fact that the apartment at issue had largely exceeded the applicants’ family’s needs as determined by the relevant housing regulations. The court thus upheld the District Court’s judgment of 18 October 1995.
The applicants appealed. The proceedings are currently pending before the Supreme Court of Cassation which listed a hearing for 20 June 2007.
In the meantime, between 2000 and 2004, there were separate rei vindicatio proceedings between the same parties regarding the same apartment. The proceedings ended in 2004 by judgment rejecting the pre-nationalisation owners’ claim, apparently on the basis that the proceedings under section 7 of the Restitution Law were still pending.
The applicants continue to possess the apartment at issue.
B. Background facts and relevant domestic law and practice
These are summarised in the case of Velikovi and Others v. Bulgaria, nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007.
COMPLAINTS
The applicants complained, relying on under Article 1 of Protocol No.1 to the Convention and its Articles 13 and 14, that they had been the victims of an unjustified attack on their property and could lose their apartment without justification and without adequate compensation.
The applicants also complained under Article 6 of the Convention that the courts decided wrongly, relied on grounds which had not been invoked by the plaintiffs and that the failure of the Supreme Court of Cassation to take note of an allegedly relevant legal argument disclosed bias.
THE LAW
The applicants relied on Articles 6, 13 and 14 of the Convention and on Article 1 of Protocol No.1 thereto. The Court finds that the complaints made fall to be examined under Article 6 of the Convention and under Article 1 of Protocol No. 1. Those provisions read, in so far as relevant:
Article 6
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 1 of Protocol No. 1
“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 Government stated that in general the measures under section 7 of the Restitution Law were lawful, pursued an important legitimate aim – to correct injustice committed by the communist regime – and were proportionate. The courts had given reasoned decisions and had provided a fair trial.
The applicants replied, inter alia, that the measures against them were unlawful, lacked a legitimate aim and were in any event grossly disproportionate. Also, the courts had been biased and had decided arbitrarily.
The Court observes that the proceedings against the applicants are still pending, a hearing before the Supreme Court of Cassation being listed for 20 June 2007. No final decision depriving the applicants of their property or otherwise affecting their civil rights has been delivered.
In these circumstances the Court finds that the applicants’ complaints are premature and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekPeer Lorenzen
Section RegistrarPresident
Full & Egal Universal Law Academy