LEVI AND OTHERS v. BULGARIA

FOURTH SECTION

DECISION

Application no. 23474/06
Grazia Moshe LEVI and others
against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 23 September 2014 as a Committee composed of:

George Nicolaou, President,
Nona Tsotsoria,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 5 June 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 application was lodged by seven individuals. The first three applicants, Ms Grazia Levi, Ms Tamar Levy and Ms Ruth Levy, are Israeli nationals born respectively in 1919, 1979 and 1982. The fourth and fifth applicants, Mr Isac Calev and Mr Harry Asseoff, are nationals of the United States of America born respectively in 1920 and 1930. The sixth and seventh applicants, Ms Elisa Ventura and Ms Regina Ventura, are Italian nationals born respectively in 1927 and 1928.

2. The fifth applicant, Mr Harry Asseoff, died on 28 August 2007. His heirs, Ms Rachel Asseoff and Mr David Asseoff, expressed their wish to pursue his application before the Court.

3. The applicants were represented before the Court by Ms E. Dimitrova, a lawyer practicing in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice.

4. On 18 January 2011 the application was communicated to the Government.

A. The circumstances of the case

5. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background

6. The applicants’ ancestors were shareholders in the limited liability company “Theatre Royal”. The company, which had been formed in 1931, owned a plot of land of 1,062 square metres and a four-storey building in the centre of Sofia. The ground floor of the building was being used as a theatre. In 1948 that property was nationalised. Several years after that the company was wound up and struck out of the register of companies.

7. In 1992, after the fall of the communist regime, Parliament enacted the Restitution of Ownership of Nationalised Real Property Act 1992, which provided for the restitution, under certain conditions, of property nationalised under the communist regime. On an unspecified later date the heirs of the shareholders in “Theatre Royal”, relying on the provisions of that Act, asked the mayor of Sofia to strike the nationalised property off the register of State properties. On 18 June 1996 the mayor granted their request.

8. At that time the property was in the possession of the Ministry of Defence. Its ground floor has always been used as a theatre.

2. The rei vindicatio proceedings

9. It appears that after the mayor’s decision of 18 June 1996 the heirs of the shareholders, including some of the applicants, tried to take possession of the property. When those attempts failed, on 17 February 1997 they brought a rei vindicatio claim against the Ministry of Defence.

10. Between 19 June 1997 and 25 February 1999 the Sofia City Court held five hearings. The first hearing was adjourned as the court instructed the applicants to rectify irregularities in their statement of claim. The other three hearings were adjourned to enable the parties to adduce further evidence.

11. On 12 July 1999 the Sofia City Court allowed the claim, finding that the statutory prerequisites for restitution had been met: the property had remained in the same state as it had been at the time of its nationalisation and there was no indication that the shareholders or their heirs had been compensated for its nationalisation.

12. On an unspecified date the Ministry of Defence appealed to the Sofia Court of Appeal. It contested, in particular, the capacity of some of the applicants as heirs to the shareholders. Between 31 January and 25 September 2000 the court held six hearings. One of them was adjourned due to improper summoning of the parties, and four others were adjourned to enable the parties to adduce further evidence.

13. On 16 October 2000 the Sofia Court of Appeal upheld the Sofia City Court’s judgment. It dismissed the arguments of the Ministry of Defence and went on to hold, inter alia, that there was no indication that the claimants or their ancestors had been compensated for the nationalisation.

14. On an unspecified date the Ministry of Defence appealed on points of law. The Supreme Court of Cassation heard the appeal on 17 January 2002. In a judgment of 27 February 2002 it quashed the Sofia Court of Appeal’s judgment and remitted the case to that court, holding, inter alia, that the available evidence did not make it clear whether the statutory prerequisites for restitution had indeed been met: in particular, whether the property had remained in the same state as it had been at the time of its nationalisation.

15. Between 29 May 2002 and 24 March 2004 the Sofia Court of Appeal held eight hearings. Six of them were adjourned to allow expert reports to be prepared and other evidence to be adduced. At one of the hearings the court carried out an inspection of the property.

16. In the course of the proceedings the defendant authorities claimed that the shareholders had been compensated shortly after the nationalisation on the strength of a 1963 agreement between the United States of America and Bulgaria. They went on to assert that the property could not have been restored to the applicants because it was public State property, which, in contrast to private State property, was inalienable and could not be acquired by private persons, including by adverse possession.

17. In a judgment of 16 June 2004 the Sofia Court of Appeal quashed the Sofia City Court’s judgment of 12 July 1999 and dismissed the claim. It was satisfied that the property had remained in the same state as it had been at the time of its nationalisation, and found no evidence that all of the claimants had obtained compensation. However, the court held that the claimants could not recover the property because it was public State property. It was being used as one of the leading theatre houses in the country and was a cultural centre of national significance, designated to serve the community.

18. The applicants appealed on points of law. They claimed, inter alia, that the property had been restored to them in 1992 by virtue of the 1992 Act; that until 1996, when the State Property Act 1996 and the Municipal Property Act 1996 had been enacted, the notion of “public State property” had not existed; and that those two Acts had in effect re‑nationalised the property as they retroactively declared that public State property was inalienable and thus not subject to restitution. In a final judgment of 14 December 2005 the Supreme Court of Cassation upheld the Sofia Court of Appeal’s judgment of 16 June 2004. It agreed with the ruling that the property was public State property. In reply to the applicants’ argument concerning the alleged retroactive application of two 1996 Acts, the court held that the designation of State and municipal property as “public” or “private” had not taken place with the enactment of the State Property Act 1996 and the Municipal Property Act 1996; that designation had already been envisaged in the Constitution of 1991 and the Property Act 1951, as amended in 1991, both of which pre-dated the 1992 Act. The State Property Act 1996 and the Municipal Property Act 1996 had merely laid down detailed rules in that respect. Lastly, the court held that the applicants’ ancestors who had been nationals of the United States of America had obtained compensation by virtue of the 1963 Agreement.

19. On unspecified dates Mr Marco Levy and Ms Suzi Calev, ancestors of the first four applicants – Ms Grazia Levi, Ms Tamar Levy, Ms Ruth Levy, and Mr Isac Calev – died. Those applicants did not take part in the above proceedings.

B. Relevant domestic law

20. The law relating to the length of civil proceedings has been set out in detail in paragraphs 35-55 of the Court’s judgment in the case of Finger v. Bulgaria (no. 37346/05, 10 May 2011).

21. The ensuing legislative developments, in particular the enactment of new sections 60a et seq. of the Judiciary Act 2007 and new section 2b of the State and Municipalities Liability for Damage Act 1988, which allow persons who have become victims of unreasonably lengthy civil proceedings to seek compensation, have been set out in detail in paragraphs 53-85 of the Court’s decision in the case of Balakchiev and Others v. Bulgaria ((dec.), no. 65187/10, 18 June 2013).

22. The relevant provisions of the Restitution of Ownership of Nationalised Real Property Act 1992 and the law relating to “public” and “private” State and municipal property have been set out in detail in paragraphs 35-39 and 45-48 of the Court’s decision in the case of Velikin and Others v. Bulgaria ((dec.), no. 28936/03, 1 December 2009).

COMPLAINTS

23. The applicants complained under Article 6 § 1 of the Convention of the allegedly unreasonable length of the rei vindicatio proceedings.

24. The applicants complained under Article 1 of Protocol No. 1 that the authorities had not returned the nationalised property to them and that the domestic courts had applied retroactively new legislation, which had in effect amounted to a new expropriation of that property.

THE LAW

A. Complaint by the fifth, sixth and seventh applicants under Article 6 § 1 of the Convention of the length of the rei vindicatio proceedings

25. In respect of their complaint of the length of the rei vindicatio proceedings, the fifth, sixth, and seventh applicants, Mr Harry Asseoff, Ms Elisa Ventura and Ms Regina Ventura, relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

1. Preliminary remark

26. The Court notes that the fifth applicant, Mr Harry Asseoff, died after lodging his application with the Court and that his heirs, Ms Rachel Asseoff and Mr David Asseoff, expressed their wish to pursue the proceedings on his behalf (see paragraph 2 above). The Court sees no reason not to accede to their request (see Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005, and Donka Stefanova v. Bulgaria, no. 19256/03, § 11, 1 October 2009).

2. Exhaustion of domestic remedies

27. The Government submitted that in 2012, following a pilot judgment procedure, Bulgaria had put in place two remedies – an administrative one and a judicial one – enabling persons who had become victims of unreasonably lengthy proceedings to obtain compensation in respect of that. Those remedies operated retrospectively and applied specifically to persons who had applications pending before the Court. In those circumstances, the rule that the availability of effective domestic remedies was to be assessed by reference to the time of lodging of the application was subject to an exception, and the applicants were required to have recourse to those remedies.

28. The applicants submitted that the newly introduced remedies were not effective.

29. The Court notes that in its recent decision in the case of Balakchiev and Others (cited above, §§ 53-85) it found that: (a) the newly enacted sections 60a et seq. of the Judiciary Act 2007 and section 2b of the State and Municipalities Liability Act 1988 (see paragraph 21 above) provide an effective remedy in respect of the unreasonable length of civil proceedings in Bulgaria, and that (b) applicants who have lodged their applications with the Court before the introduction of those remedies are also required to have recourse to them to comply with the requirement to have exhausted domestic remedies. There is nothing in the present case to suggest that those remedies will not be able to provide the applicants adequate redress.

30. It follows that the complaint of the fifth, sixth and seventh applicants, Mr Harry Asseoff, Ms Elisa Ventura and Ms Regina Ventura, of the length of the rei vindicatio proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Complaint by the first, second, third and fourth applicants under Article 6 § 1 of the Convention of the length of the rei vindicatio proceedings

31. The court notes that the first, second and third applicants, Ms Grazia Levi, Ms Tamar Levi and Ms Ruth Levi, lodged their application with the Court as heirs of the late Mr Marco Levy, and the fourth applicant, Mr Isac Calev, did so in his capacity as heir of the late Ms Suzi Calev. There is no indication in the case file, and the applicants do not assert, that they took part in those proceedings either in their personal capacity or in their capacity as heirs of the original parties to the proceedings (see paragraph 19 above). Nor do those four applicants maintain that they were personally affected by the length of the proceedings. The Court has had occasion to hold that the relatives of a deceased person cannot be regarded as victims in respect of a complaint under Article 6 § 1 of the Convention concerning the length of proceedings to which that person was party, unless they also took part in them, either in their personal capacity or in their capacity as heirs of the original parties to the proceedings (see, for instance, Georgia Makri and Others v. Greece (dec.), no. 5977/03, 24 March 2005, and Bezzina Wettinger and Others v. Malta, no. 15091/06, § 68, 8 April 2008).

32. It follows that the complaint of those four applicants of the length of the rei vindicatio proceedings is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

C. Complaint under Article 1 of Protocol No. 1

33. Lastly, all applicants complained under Article 1 of Protocol No. 1 that the authorities had not returned the nationalised property to them and that the domestic courts had applied retroactively new legislation, which had in effect amounted to a new expropriation of that property.

34. Article 1 of Protocol No. 1 provides:

“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.”

35. The Court notes that a mayor’s decision to strike property off the register of State properties does not amount to sufficient recognition of the right to restitution such that it could be considered an “asset” for the purposes of Article 1 of Protocol No. 1 (see Velikin and Others, cited above, §§ 67-69). Furthermore, the applicants’ restitution claim was eventually dismissed by the domestic courts in reasoned judgments and following proceedings that afforded – except perhaps as regards their length – the entire panoply of safeguards under Article 6 § 1 of the Convention, on the ground that the statutory prerequisites for restitution had not been met (ibid., §§ 71 and 75). As regards the applicants’ allegation that the courts applied retroactively new legislation, an identical argument was rejected in Velikin and Others (cited above, §§ 72-74): noting that the applicants in that case had brought their claim before the national courts after the enactment of the State Property Act 1996 and the Municipal Property Act 1996, the Court held that they did not have a legitimate expectation that their claim would be determined in accordance with the law as it had stood in the past. The situation in the present case does not differ in any material respect.

36. It follows that this complaint 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.

Fatoş AracıGeorge Nicolaou
              Deputy RegistrarPresident

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