FOURTH SECTION
Application no. 36094/08
Dimitar Haralampiev POPOV and Veselin Arahangelov CHONIN
against Bulgaria
lodged on 5 July 2008
STATEMENT OF FACTS
The applicants, Mr Dimitar Haralampiev Popov and Mr Veselin Arahangelov Chonin, are Bulgarian nationals, who were born in 1930 and 1953 respectively and live in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant is one of the heirs of Mr M. and the second applicant – one of the heirs of Ms F. The two ancestors were the co-owners of an afforested island in the Danube measuring 1,048,000 square metres. Ms F. owned another afforested island measuring 400,000 square metres and other forestry land on the shores of the Danube, totalling 9,300 square metres.
The land above was nationalised after 1948.
Due to the Danube’s fluvial activity over the years, the first island’s area has increased and it currently measures about 1,500,000 square metres. The second island no longer exists.
On 21 October 1998, following the adoption of the 1997 Forests Restitution Act (see Relevant domestic law below), the applicants applied for the restitution of their ancestors’ forests and forestry land.
By two decisions of 12 December 2000 the Valchedram land commission recognised to the heirs of Mr M. and Ms F. the right to restitution or compensation in lieu thereof and, finding that the actual restitution was impossible because the forests had become “forests‑exclusive State property” (“гори-изключителна държавна собственост”), decided that the heirs were to receive compensation bonds. These decisions were served on the applicants on 5 October 2001.
In the meantime, legislative amendments entered into force, repealing the possibility of awarding compensation through bonds for properties falling under the Forests Restitution Act and leaving as the sole possibility compensation through the transfer of equivalent State-owned forestry land. Former owners having had their right to compensation through bonds already recognised were automatically considered to be entitled to compensation through State-owned land.
As in the Valchedram district where the applicants’ ancestors’ forests had been situated there was no sufficient State-owned land to compensate the heirs, it was decided that the compensation would be provided in another district.
Accordingly, in two decisions of 17 October 2003 the Montana Agriculture and Forestry Department allotted to the heirs of Mr M. a plot of 542,500 square metres in the Montana district, and to the heirs of Ms F. – a plot of 933,800 square metres.
On 16 March 2004 the applicants applied for judicial review of these decisions, arguing that the land and the forests allotted were not equivalent to the ones owned by their ancestors. The exact course of the judicial proceedings is unclear.
As concerns the land formerly owned by Ms F., the Montana District Court gave a judgment on 6 July 2007. It found that, indeed, the land allotted as compensation was of manifestly lower quality than the one owned by Ms F. It found further that in the area of the village of Gorno Orizovo in the adjacent Varshets district there was a plot of forestry land which was equivalent in quality to those owned by Ms F. and was even bigger in size. It thus quashed the Montana Agriculture and Forestry Department’s decision of 17 October 2003, recognised to the heirs of Ms F. the right to compensation with a part of the identified bigger plot and held that it was for the local Agriculture and Forestry Department to individualise the part to be allotted.
This judgment was not appealed against and entered into force on an unspecified date.
As concerns the heirs of Mr M., the Montana District Court’s judgment was given on 27 December 2007. Similarly, the District Court found that the land and the forests allotted in compensation were not equivalent to those owned by Mr M. It found further that in the area of the village of Gorna Byala Rechka in the adjacent Varshets district there were forests of the necessary quality. It thus quashed the disputed decision of the Montana Agriculture and Forestry Department and remitted the case for compliance with its instructions.
This judgment was not appealed against and entered into force on 4 March 2008.
During the ensuing contacts of the applicants with the authorities it became clear that the afforested area indicated in the judgment of 6 July 2007 was included in the territory of the “Vrachanski Balkan” natural park; thus, the authorities considered that Ms F.’s heirs could not own property in that area. This was in particular stated in two letters sent to the applicants, dated respectively 26 August and 10 September 2008, by the Ministry of Agriculture and the administration of the Council of Ministers.
It is unclear whether the area indicated in the judgment of 27 December 2007 was also part of the park; no reasons for the non-enforcement of that judgment were indicated in the two letters.
It is also unclear whether the applicants contacted directly the body competent to take a decision, the Agriculture and Forestry Department (after 2008 called Agricultural Department) in the Varshets district, and whether it took any decisions.
Apparently, the authorities discussed the possibility of allotting to the heirs other land; nevertheless, it appears that at the time of the latest communication from the applicants in June 2011 no solution had yet been found.
B. Relevant domestic law
The Restitution of Ownership to Forests and Forestry Land Act, adopted in 1997 (Закон за възстановяване на собствеността върху горите и земите от горския фонд, “the Forests Restitution Act”), provided that persons, or their heirs, whose forestry land had been nationalised after 1944 could request restoration of their ownership rights under certain conditions. Initially, the bodies competent to take decisions for restitution were the local agricultural land commissions, which in 2002 were replaced by Agriculture and Forestry Departments.
Section 6 of the Forests Restitution Act provides that where actual restitution is impossible because, inter alia, the forests and the forestry land have become “exclusive State property” (“гори-изключителна държавна собственост”) or no longer exist, the former owners are to receive compensation through the transfer of property of other land and forests equivalent in size and origin. The possibility to award compensation bonds, existing initially, was repealed in 2001.
Under the Forests Restitution Act, “forests-exclusive State property” include, inter alia, the territory of islands in frontier rivers. Until 2003 territories situated within 200 metres of the State borders were also included in the category.
COMPLAINTS
1. The applicants complain, relying on Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1, that the State authorities delayed excessively the process of restitution of their ancestors’ forests and land, which started in 1998 and has not yet ended, and that in that process they were placed in a position of uncertainty.
2. Relying on the same provisions, the applicants complain also that the authorities have not implemented the two judgments of the Montana District Court of 6 July and 27 December 2007. The applicants complain that the 2004-2007 judicial proceedings were excessively lengthy and that they did not have at their disposal effective remedies in that regard.
3. Lastly, the applicants complain, relying on Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1, that any forestry land they may receive on the mainland would be of a lesser value than an island, and that they would not be compensated for the loss thus incurred. The applicants complain in addition that they had no means to seek the restitution or compensation in lieu thereof of the whole surface of the first island, as it exists now.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 1 of Protocol No. 1 on account of the lengthy duration of the restitution process in the applicants’ cases, including the authorities’ failure to execute the Montana District Court’s judgments of 6 July 2007 and 27 December 2007 (see, mutatis mutandis, Lyubomir Popov v. Bulgaria, no. 69855/01, 7 January 2010, and Vasilev and Doycheva v. Bulgaria, no. 14966/04, 31 May 2012)?
Were the two judgments above executable, under what procedure and in what time-limits? Was the compensation due to the applicants subject to further determination following those judgments, and by which body?
What was the reason for the failure to execute the judgment in the case of the heirs of Mr M. (the applicant Mr Popov)? As regards the heirs of Ms F. (the applicant Mr Chonin), was the fact that the land indicated in the judgment was a part of a natural park a lawful obstacle to execution?
What solutions have the authorities envisaged in order to complete the restitution process?
2. In this connection, do the circumstances of the applicants’ cases also give rise to a breach of Article 6 § 1 of the Convention?
The applicants are requested to specify their respective shares in their ancestors’ inheritance.
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