AS TO THE ADMISSIBILITY OF
Application No. 29583/96
by Elisaveta, Marie and Vahe PANIKIAN
against Bulgaria
The European Commission of Human Rights sitting in private on
13 May 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 October 1995 by
Elisaveta, Marie and Vahe Panikian against Bulgaria and registered on
2 January 1996 under file No. 29583/96;
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 applicants are Bulgarian nationals, born in 1926, 1952 and
1955 respectively and residing in Sofia. The first applicant,
currently retired, is the mother of the second and third applicants,
who are both medical doctors.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicants, may be
summarised as follows.
In 1954 the first applicant and her husband became tenants in a
state-owned apartment. The apartment had four rooms and the
applicants' family occupied two of them. Two other families were
tenants in the two remaining rooms.
In 1958 the first applicant and her husband applied to purchase
the apartment where they lived as tenants. Pursuant to the Regulation
on the Sale of State Housing of 1957 (Naredba za prodazhba na zhilishta
ot darzhavnia zhilishten fond predostaven na narodnite saveti) ("the
Housing Regulation 1957"), on 19 March 1959 the Executive Committee of
the local municipality (IK na Narodnia savet) gave its consent. On
26 March 1959 the first applicant and her husband signed the sale-
purchase contract. At that time the first applicant was deputy
headmaster in a school for nurses and her husband was assistant
researcher in a medical institute.
The obligation of the first applicant and her husband to pay to
the State the price of the apartment was secured by a mortgage. The
mortgage was lifted in 1979 when the last amounts due were paid in.
In February 1992 the Parliament adopted the Law on the
Restitution of Ownership of Nationalised Real Property ("the
Restitution Law" (Zakon za vazstanoviavane na sobstvenostta varhu
odarzhaveni nedvizhimi imoti) (see below Relevant domestic law and
practice).
On 3 August 1992 a Mr. S. submitted to the Sofia District Court
(Sofiiski raionen sad) an action against the applicants under Section 7
of the Restitution Law (see below Relevant domestic law and practice).
He presented proof that the apartment, which had been purchased by the
first applicant and her husband from the State in 1959 and which in
1992 was the joint property of the applicants, had been owned by his
parents until 1948 when it had been nationalised. He claimed that the
1959 sale-purchase contract, between the State as the seller and the
first applicant and her husband as buyers, had been contrary to certain
provisions of the then existing laws. Moreover, the buyers' membership
in the Communist Party and their social status had played a role in the
transaction.
The Sofia municipality was also summoned as a defendant in the
case. In its submissions to the Court the municipality disputed the
claims of the plaintiff and asked the Court to dismiss them.
On 30 June 1993, after several hearings with the participation
of the applicants and their lawyers, the District Court delivered its
judgment. The Court found that the decision of the municipal Executive
Committee of 19 March 1959 had not been approved by the competent
Ministry as required by Section 3 of the Housing Regulation 1957.
Also, the municipality had considered the first applicant's family as
consisting of six persons, two of them having been her uncles, whereas
under the Housing Regulation 1957 they could not be considered members
of the family. In any event, even for a six-member family, the
apartment had been too large because under Section 8 of the Lease Law
(Zakon za naemite), as in force at the time, a family of six was
entitled only to a three-room apartment. Finally, although in one of
the documents dating from 1959 it had been mentioned that the other
tenants in the same apartment had agreed that it be sold to the first
applicant's family, the written consent form required by the law was
not found in the file.
As a result the Court found that the first applicant and her
husband had acquired their apartment in breach of the law and restored
Mr. S.'s ownership rights.
The applicants submitted an appeal to the Sofia Regional Court
(Sofiiski gradski sad). They stated inter alia that the other tenants
in the apartment had given their prior consent to the transaction as
required by the law. Also, the sale-purchase contract clearly referred
in its text to the approval of the transaction by the Ministry, done
on 24 March 1959. The fact that some documents, among them the written
consent forms and the official approval, were missing from the file
held in the archives of the Sofia municipality, could not be used
against them. The applicants presented a written declaration signed
in 1993 before a notary by a woman, who had been one of the tenants.
She stated that in 1959 she had given her written consent. The
applicants also disputed the applicability of the Lease Law which
concerned only leases, not sales. Moreover, the family included the
uncles who were immigrants from Turkey, without any property, and had
always lived with them.
On 1 February 1994 the Regional Court confirmed the lower Court's
judgment. The judgment stated inter alia that even assuming the
existence of an approval by the Ministry and of written consent forms,
the other points discussed in the District Court's judgment were
sufficient to warrant a finding of unlawfulness.
Thereupon the applicants submitted to the Supreme Court (Varhoven
sad) a petition for review (pregled po reda na nadzora). They enclosed
the written opinion of a leading professor in civil law, who explained
in detail why the Lease Law and the restrictions as regards the number
of rooms were inapplicable in the applicants' case.
On 17 April 1995, following a hearing at which the applicants
were represented by three lawyers, the Supreme Court refused the
petition. It discussed all arguments of the applicants and found inter
alia that the Lease Law was applicable, that the existence of a
ministerial approval and of consent forms had not been proven and that
the lower courts had not breached the procedure.
The other defendant in the case, the Sofia municipality, was
summoned but did not take part either in the appeal or in the review
proceedings.
On unspecified dates Mr. S. instituted against the applicants two
sets of proceedings seeking the possession of the apartment and also
140,000 leva in damages as the applicants had unlawfully refused to
vacate it. A hearing in the revindication case was scheduled for
21 March 1996 and, in the damages case, for 8 October 1996.
The applicants have not requested the repayment of the price of
the apartment. They submit that they have not done so because in 1995
the law was amended several times in this respect, but then the
amendments were quashed by the Constitutional Court (Konstitutsionen
sad) (see below Relevant domestic law and practice); and also because
they risk receiving only the nominal amount paid under the 1959 sale-
purchase contract, and not the real value of the apartment.
B. Relevant domestic law and practice
a. The 1992 Law on the Restitution of Ownership of Nationalised Real
Property provides, inter alia, that the former owners, or their heirs,
of certain types of real property nationalised by virtue of several
specific laws dating between 1947 and 1952, become ex lege the owners
of their nationalised property if it still exists, if it is still owned
by the State and if no adequate compensation had been received at the
time of the nationalisation.
Section 7 provides for an exception to the requirement that the
real property be still owned by the State. It provides that, even if
certain property had been acquired by third persons after the
nationalisation, the former owners or their heirs can recover their
property rights if the third persons had become owners either in breach
of the law, or by virtue of their party or official position, or
through abuse of power. In cases under Section 7 the former owners
have to bring an action before the courts within one year from the
Restitution Law's entry into force.
The Restitution Law does not state expressly the nature of the
judgments under Section 7 and their consequences as far as the "third
persons" are concerned. The practice of the Supreme Court (Reshenie
No. 1623 ot 10.03.1994 po gr.d. No. 186/1993 na IV gr. otd. na VS;
reshenie No. 1036 ot 13.07.1994 po gr.d. No. 9/1994 na IV gr. otd. na
VS) and its Interpretative Decision No. 1 (TR 1/95, OSGK, Biul. VS kn.
4/95) have clarified that these are declaratory judgments and that
their effect is to declare the sale-purchase contract null and void as
contrary to the law, based on the respective provisions of the general
civil law.
It follows from the provisions of the general civil law that a
person in the applicants' position could claim back from the State the
price paid under the contract.
b. On 19 April 1995 the Parliament adopted an amendment to the
Restitution Law which provided, inter alia, that restitution under
Section 7 should be possible only in cases of acquisition by abuse of
party position or of power; that persons ordered to vacate real
property under Section 7 should receive back the up-to-date "market
price" of the property; and that the court order to vacate should not
be executed until the payment of this amount. On 6 July 1995 the
Constitutional Court declared this amendment unconstitutional on
grounds, inter alia, that modifying the conditions for restitution
under Section 7 after the expiry of the one year time-limit for the
bringing of actions and after the entry into force of judgments based
on them was contrary to the principle of legality. Also, the execution
of a court order could not be made conditional on the payment of an
amount by a third party (Reshenie No. 9 po konst. delo No. 4/95, D.V.
br. 66/95).
On 14 September 1995 the Parliament adopted another amendment to
the Restitution Law which provided, inter alia, that Section 7 should
be repealed. It also reinstated the text of the previous amendment as
regards the payment of the market price and the execution of court
orders. On 17 October 1995 the Constitutional Court declared this
amendment unconstitutional because, inter alia, it reiterated the
previous amendment which had already been found to be unconstitutional
(Reshenie No. 20 po konst. delo No. 24/95, D.V. br. 94/95).
c. In November 1995 the Constitutional Court was seised with a
request to declare Section 7 of the Restitution Law unconstitutional.
On 18 January 1996 the request was refused. The Court found
inter alia that in cases where post-nationalisation transactions
between the State and third persons had been contrary to the law and
therefore void, the former owners had their property rights restored
ex lege, by virtue of the 1992 Restitution Law. The third persons, who
had purchased the nationalised property from the State, "had never
become owners ...". Therefore, they are not deprived of a property
right. It followed that Section 7 was not contrary to the
constitutional guarantee of private property.
The contention, as submitted in the request to the Court, that
Section 7 was unconstitutional as it allegedly did not "take into
account the interests and the rights of the other group [of persons]",
was also unfounded. These rights and interests, acquired in breach of
the law or by abuse of power, could not be derived from the
Constitution and the law and could not be opposed to them. Nobody
could derive rights from his or her unlawful acts.
The Court also examined the assertion that the unlawfulness of
the transactions between the State and the third persons was often the
result of unlawful acts of the State administration. It was contended
that, therefore, the constitutional principle of State responsibility
for damages caused by the State was breached by Section 7 of the
Restitution Law. The Court noted that a contract which was contrary
to the law, was null and void regardless of which party was
responsible. The Court further stated that persons in the applicants'
position could submit claims for damages against State organs or State
officials, who had breached the law at the time of the transactions.
Section 7 of the Restitution Law did not impede such claims in any way.
It was within the competence of the Parliament to elaborate rules in
this respect (Reshenie po konst. delo No. 29/95, D.V. br. 9/96).
COMPLAINTS
The applicants complain that, after having owned their apartment
for more then 35 years, they were deprived of it arbitrarily and in
violation of Article 1 of Protocol No. 1 to the Convention. Moreover,
they can now claim back only a nominal amount, which would hardly
suffice to rent housing for several months, let alone to enable them
to buy another apartment. They also invoke Article 8 of the
Convention.
Furthermore, they submit that there has been a violation of
Article 14 of the Convention as they were discriminated against on the
basis of their Armenian ethnic origin and their political affiliation.
The applicants also complain that Article 13 of the Convention
was breached in that the courts wrongly interpreted the law and the
evidence in the case and thus violated their right "to ... proceedings
establishing the justice and the truth".
THE LAW
1. The applicants complain under Article 1 of Protocol No. 1 (P1-1)
to the Convention that they have lost the ownership of their apartment.
They also invoke Articles 8 and 14 (Art. 8, 14) of the Convention.
The Commission considers that it cannot, on the basis of the
file, determine the admissibility of these complaints and that it is
therefore necessary, in accordance with Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of these complaints to the
respondent Government.
2. The applicants also complain, invoking Article 13 (Art. 13) of
the Convention, that the courts wrongly interpreted the law and the
evidence in their case.
However, the Commission recalls that, in accordance with
Article 19 (Art. 19) of the Convention, its only task is to ensure the
observance of the obligations undertaken by the Parties to the
Convention. In particular, it is not competent to deal with an
application alleging that errors of law or fact have been committed by
domestic courts, except where it considers that such errors might have
involved a possible violation of any of the rights and freedoms set out
in the Convention (Appl. No. 10000/82, Dec. 4.7.83, D.R. 33, pp. 247,
255).
Insofar as the applicants may be understood as complaining that
the proceedings in their case were unfair, the Commission recalls its
well established case-law according to which where the right claimed
is of a civil character, the guarantees of Article 13 (Art. 13) are
superseded by the more stringent requirements of Article 6 para. 1
(Art. 6-1) of the Convention (Appl. No. 13021/87, Dec. 8.9.88, D.R. 57,
pp. 268, 277).
However, in the present case the Commission finds no indication
that the applicants, who were represented by three lawyers, could not
sufficiently put forward their point of view, that the judges were
biased or that the proceedings were otherwise unfairly conducted.
Furthermore, the judgments were based on the analysis of evidence
derived from the relevant documents and its assessment in the light of
the submissions of the parties. The Commission notes in this context
that the Bulgarian courts addressed almost every objection of the
applicants.
In these circumstances the Commission finds that there is no
appearance of a violation of the principle of a fair hearing within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Appl.
No. 7987/77, Dec. 13.12.79, D.R. 18, pp. 31, 45).
It follows that the remainder of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECIDES TO ADJOURN the examination of the applicants' complaints
under Articles 8 and 14 (Art. 8, 14) of the Convention and
Article 1 of Protocol No. 1 (P1-1) thereto;
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy