FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 65417/01
by Rosen Yordanov PETKOV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 2 September 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Volodymyr Butkevych,
Renate Jaeger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 2 October 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Rosen Yordanov Petkov, is a Bulgarian national who was born in 1963 and lives in Plovdiv. He is represented before the Court by Mr M. Neikov, a lawyer practising in Plovdiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The proceedings against the applicant
In 1949 Mr D’s real estate, the third floor of a three-storey residential building, was expropriated. In 1967 Mr P., father of the applicant, bought the real estate from subsidiary 18820 of the Ministry of Defence (под. КЕЧ 18820).
On 30 November 1992 Mr D’s heirs brought an action against Mr P.’s heirs - the applicant and Ms P.P. - seeking restitution of the title to their expropriated real estate.
In April 1993 the applicant requested that the subsidiary of the Ministry of Defence, from which the real estate had been purchased, be joined in the proceedings.
Between February 1993 and January 1997 at least sixteen hearings were held. The court ordered that an export report be prepared and questioned witnesses. At least on four occasions the court adjourned hearings because one of the parties had not been properly summoned.
In a judgment of 15 May 1997 the Plovdiv District Court dismissed the claim.
The plaintiffs appealed. In a judgment of 28 December 1999 the Plovdiv Regional Court affirmed.
The plaintiffs filed a cassation appeal. In a judgment of 10 January 2001 the Supreme Court of Cassation quashed the Regional Court’s judgment and referred the case back for rehearing.
On 30 November 2001 the Plovdiv Regional Court gave judgment whereby the judgment of 15 May 1997 was set aside, the applicant’s and Ms P.P.’s title was declared null and void and the plaintiffs were declared owners of the disputed real estate. In a judgment of 29 April 2003 the Supreme Court of Cassation upheld the lower court’s judgment.
On an unspecified date the Executive Agency “Management of the Private State Property of the Ministry of Defence” filed a request with the Supreme Court of Cassation for annulment of the final judgment rendered on 29 April 2003. The agency claimed that under the relevant procedural rules it should have been a party to the proceedings.
On 14 May 2004 the Supreme Court of Cassation annulled the judgment of 29 April 2003 and remanded the case to the Plovdiv Regional Court. The court held that in February 2000 the Executive Agency “Management of the Private State Property of the Ministry of Defence” had succeeded subsidiary 18820 of the Ministry of Defence and therefore should have been summoned. Therefore, the case had to be reopened under Article 231(1)(e) of the Code of Civil Procedure.
In a judgment of 16 December 2005 the Plovdiv Regional Court again declared the plaintiffs owners of the real estate.
The applicant and Ms P.P. appealed. In a judgment of 13 April 2007 the Supreme Court of Cassation quashed the lower court’s judgment and rejected the plaintiffs’ claims, thus deciding the case in favour of the applicant and Ms P.P.
On 6 June 2007 the plaintiffs filed a request for reopening. As of November 2007 the request had not been examined yet.
2. Correspondence between the applicant and the Registry in 2007
As the applicant had not informed the Court about relevant developments since 2005, in March, April and July 2007 the Registry repeatedly invited him to do so and, in particular, to state whether the domestic proceedings were still pending, whether he had vacated the property and, if so, when.
In reply, by letter of 14 September 2007 the applicant made general submissions. The letter contained two statements relevant to the questions put by the Registry – that the applicant “had been deprived of his property” and that he had “left the property at stake and was not compensated for his losses”, without further detail. The applicant did not mention the judgment of 13 April 2007 and did not inform the Court of the fact that the domestic proceedings had ended in the applicant’s favour. No documents were enclosed.
By letter of 4 October 2007 the Registry again requested an answer to the concrete questions put to the applicant. He replied on 29 November 2007, enclosing a copy of the judgment of 13 April 2007. He did not reply to the question whether and, if so, when he had vacated the property at issue. However, the letter gave the applicant’s address which coincided with the address of the real estate at issue.
B. Relevant domestic law and practice
Article 217a of the Code of Civil Procedure, adopted in July 1999, provides:
“1. Each party may lodge a complaint about delays at every stage of the case, including after oral argument, when the examination of the case, the delivery of judgment or the transmitting of an appeal against a judgment is unduly delayed.
2. The complaint about delays shall be lodged directly with the higher court, no copies shall be served on the other party, and no State fee shall be due. The lodging of a complaint about delays shall not be limited by time.
3. The chairperson of the court with which the complaint has been lodged shall request the case file and shall immediately examine the complaint in private. His instructions as to the acts to be performed by the court shall be mandatory. His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been lodged.
4. In case he determines that there has been [undue delay], the chairperson of the higher court may make a proposal to the disciplinary panel of the Supreme Judicial Council for the taking of disciplinary action.”
The relevant background facts and domestic law and practice concerning restitution of nationalised residential property have been summarised in the Court’s judgment 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
1. The applicant complained under Articles 6 § 1 and 13 that the length of the civil proceedings had been excessive and that he did not have effective remedies in that respect.
2. The applicant complained under Article 1 of Protocol No. 1 he had been deprived of his property.
THE LAW
1. The applicant complained under Article 6 § 1 that the length of the civil proceedings had been excessive and under Article 13 that he had no effective remedies in this respect.
Articles 6 § 1 and 13 of the Convention, in so far as relevant, read as follows:
Article 6
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant further complained under Article 1 of Protocol No. 1 to the Convention that he had been deprived of his property.
The Court observes that the applicant’s title was declared null and void by “final” judgment of 29 April 2003 and that between that date and 14 May 2004, when the domestic proceedings were reopened, Mr D.’s heirs were considered the lawful owners of the real estate. This situation lasted approximately one year.
The Court notes, however, that in the reopened proceedings by final judgment of 13 April 2007 the courts rejected the restitution claim brought by Mr D.’s heirs against the applicant. Therefore, the challenge to the applicant’s title was eventually unsuccessful and he, together with Ms P.P., was recognised as lawful owner of the real estate at issue. Moreover, by its very nature the rejection of the plaintiffs’ claims resulted in the applicant’s title being retrospectively considered to have been valid at all relevant times, including between April 2003 and May 2004.
Therefore, the applicant cannot claim to be a victim of deprivation of property.
In so far as the applicant may be understood as complaining of a separate violation of Article 1 of Protocol No. 1 on account of the alleged “losses” mentioned in his letter of 14 September 2007, even assuming that this complaint has been submitted in compliance with Article 35 § 1 of the Convention, the Court finds it to be unsubstantiated.
In particular, despite repeated invitations to do so the applicant did not submit relevant information and documents on the issue whether the judgment of 29 April 2003 had been enforced and if so, when and under what circumstances. No proof that the applicant ever moved out of his property or details about the alleged “losses” were submitted by him. The Court also notes that in his letter of 14 September 2007 the applicant failed to inform the Court of a highly relevant fact – the judgment of 13 April 2007 in his favour, despite its obvious impact on the complaints he had made before the Court and despite the questions put to him.
Finally, the fact that the other party in the civil proceedings requested their reopening after the final judgement of 13 April 2007 is irrelevant in the present context. The applicant will be free to submit a new application in the event of the proceedings being reopened and his property taken away from him.
It follows that the complaints under Article 1 of Protocol No. 1 must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the length of the civil proceedings and the alleged lack of effective remedies related thereto;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy