FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38780/02
by Paul Evald PUTTER and Others
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 9 October 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 10 October 2002,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Paul Evald Putter, Mr Victor Alexandrov Putter and Mr Johannes Alexandrov Putter, are Bulgarian nationals who were born in 1930, 1954 and 1966, respectively, and live in Plovdiv. Mr Paul Putter (the “first applicant”) is the uncle of Mr Victor Putter and Mr Johannes Putter (the “second and third applicants”, respectively).
The applicants are represented before the Court by Mr M. Ekimdjiev and Ms K. Boncheva, lawyers practising in Plovdiv.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background
The ancestors of the applicants held 9.375 per cent of the shares in the brewery “Kamentiza – Frick & Sultzer” (the “Brewery”) situated in the town of Plovdiv.
In 1947 the State nationalised the Brewery together with its properties and the stockholdings of its shareholders under the Nationalisation of Private Industrial and Mining Enterprises (Закон за национализация на частни индустриални и минни предприятия).
In February 1992 the Restitution of Ownership of Nationalised Real Estates Act (the “Restitution Act”: Закон за възстановяване собствеността върху одържавени недвижими имоти) entered into force. By virtue of the said act the applicants restituted their ancestors' participation of 9.375 per cent in a 20,539 square meters of land and a number of buildings situated on it, all of which still formed part of the Brewery (the “Properties”). In particular, the first applicant restituted 4.6875 per cent of the Properties and the second and third applicants jointly restituted 4.6875 per cent.
Thereafter, the applicants successfully sued the Brewery, on at least one occasion, for rental payments in respect of the Properties.
In May 1992 the Transformation and Privatisation of State and Municipal Enterprises Act (the “Privatisation Act”: Закон за преобразуване и приватизация на държавни и общински предприятия) entered into force (see Relevant domestic law). On an unspecified date prior to 30 September 1994 the applicants made a request under its section 18 to be compensated with shares in the Brewery.
Sometime in the autumn of 1993 the first applicant discovered from local media reports that the State had sold a majority stake in the Brewery to “Brau und Brunnen GmbH” a Germany limited liability company. However, the sale was not completed.
On 12 November 1993 the first applicant obtained a notary deed for his 4.6875 per cent ownership of the Properties. On the same day the second and third applicants also obtained a notary deed for their joint ownership of 4.6875 per cent of the Properties. Thus, in total they owned 9.375 per cent of the Properties.
On 25 January 1995 the State sold seventy percent of the shares in the Brewery to “Interbrew”, a Belgian brewer.
2. The allocation of shares to the applicants
On 2 December 1993 the first applicant wrote to the Privatisation Agency enquiring what had been the expert valuation of the Brewery and what would be the stockholdings of the applicants in it. In a response of 3 February 1994 the Privatisation Agency informed the first applicant that the valuation of the Brewery that it had undertaken was in the context of its privatisation and that it was confidential because it only served as an indicative basis for negotiating the sale price of the shares to be sold by the State. In addition, the Privatisation Agency noted that the privatisation valuation was not relevant for determining the number of shares to be allocated to the applicants which would be undertaken by the Ministry of Industry on the basis of a separate expert valuation.
Section 18 of the Privatisation Act was amended on 28 May 1996 in respect of the method for determining the size of the stockholdings of owners of restituted property.
Starting at the beginning of 1997 the applicants complained to a number of State bodies that their request to receive shares in the Brewery had not been examined.
On 8 May 1997 the applicants initiated an action before the domestic courts seeking a finding that the Plovdiv municipality and the Privatisation Agency had failed in their obligation under section 18 of the Privatisation Act to inform them of the valuation of the Brewery. On 17 November 1997 the Plovdiv District Court rejected the applicants' action, which was upheld on appeal by the Plovdiv Regional Court in a final decision of 11 March 1998.
In the meantime, on 25 September 1997 the Ministry of Industry requested the Privatisation Agency to provide it with the value of, inter alia, the Properties. It also asked to be informed what percentage of the registered share capital of the Brewery and how many shares were to be allocated for, inter alia, the Properties.
In a letter of 6 October 1997 the Privatisation Agency informed the Ministry of Industry that on the basis of its valuation of 30 June 1994 the value of the 20,539 square meters of land, a four-storey and a two-storey buildings, of which the Properties were part of, was equal to 8.11 per cent of the pure value of the assets of the Brewery corresponding to 12,445 shares.
On 10 November 1997 the Ministry of Industry informed the Plovdiv Municipality, which in turn informed the applicants soon thereafter, that they would be compensated for the Properties with a total of 998 shares in the Brewery, each with a nominal value of 1,000 Bulgarian levs (1 German mark), representing 0.65 per cent of its assets. In particular, the first applicant was allocated 499 shares and the second and third applicants were jointly allocated 499 shares, whereby each of these stockholdings represented 0.325 per cent of Brewery's assets.
On 25 November 1997 the applicants appealed against the decision of the Ministry of Industry.
In the course of the proceedings before the Plovdiv Regional Court an expert valuation was conducted on 10 June 1998 which compared the valuation conducted by the Privatisation Agency in 1994 with the prevailing market value of the Properties and concluded that the latter's price had increased by 5.38 per cent since 1994.
The Plovdiv Regional Court rejected the applicants' appeal on 25 June 1998 as it considered that the applicants had no right of appeal against the decision for determining their stockholding in the Brewery.
The applicants appealed against the above decision which was rejected on 27 January 1999 by the Supreme Administrative Court as having been submitted out of time.
Following a further appeal on 21 May 1999 the extended panel of the Supreme Administrative Court quashed the decision of 27 January 1999 and remitted the case.
On 29 October 1999 the Supreme Administrative Court quashed the decision of the Plovdiv Regional Court of 25 June 1998 and remitted the case.
The proceedings continued before the Plovdiv Regional Court.
An expert report, dated 26 January 2001, was presented to the Plovdiv Regional Court which concluded that the number of shares allocated to the applicants were not determined on the basis of the privatisation valuation of the Brewery but only on one part of it and also on its registered share capital as of 30 June 1994.
On 19 July 2001 the Plovdiv Regional Court dismissed the applicants' appeal against the decision of the Ministry of Industry to compensate them with a total of 998 shares in the Brewery. The court found that only the expert valuations undertaken under the original version of the text of section 18 of the Privatisation Act could be challenged before the courts. Recognising that the determination of the applicants' stockholdings had been undertaken after the amendment of the said provision in 1996 the court noted that the balance sheet value of such properties or, as in the case of the applicants, the privatisation valuation of the Properties was the basis for determining the number of shares to be allocated to them. However, the court considered that neither the balance sheet value nor the privatisation valuation of the Properties could be challenged before the courts nor therefore could the method for determining the number of shares allocated to the applicants.
The applicants appealed against the above judgment on 24 August 2001. They challenged, inter alia, the conclusions of the Plovdiv Regional Court and argued that they did have a right of appeal against the valuation of the Properties and therefore the number of shares allocated to them as a result. The applicants referred to the long delay by the authorities in addressing their request to receive shares in the Brewery and noted that the original method under section 18 of the Privatisation Act required an expert valuation to be performed, which the authorities had failed to undertake. In any event, they argued that both versions of the said provision provided for the right of appeal against the valuation used as a basis for determining the size of the allocated stockholding. Lastly, the applicants claimed that neither they nor apparently had the courts ever been presented with the full privatisation valuation of the Brewery as it had been rendered classified. As a result, the courts had allegedly relied entirely on the calculations and determinations undertaken by the Privatisation Agency and the Ministry of Industry as to what was the applicable value of the Properties and what number of shares they were entitled to receive in the Brewery.
In a final judgment of 11 July 2002 the Supreme Administrative Court dismissed the applicants' appeal. It upheld the lower court's finding that the privatisation valuation and therefore the method for calculating the applicants' stockholdings were not subject to appeal or challenge before the courts following the 1996 amendment of section 18 of the Privatisation Act.
3. Separate request for compensation with shares
On 19 March 1998 the applicants filed a request with the Minister of Economy under the Compensation of Owners of Nationalised Properties Act (the “Properties' Compensation Act”: Закон за обезщетяване на собственици на одържавени имоти) to be allocated shares in the Brewery as compensation for the Properties.
The applicants did not receive a response to their request, so on an unspecified date they filed an appeal against the tacit refusal of the Minister of Economy.
In a judgment of 9 January 2001 the Supreme Administrative Court dismissed the applicants' appeal. The applicants appealed further. In a final judgment of 4 June 2002 the extended panel of the Supreme Administrative Court upheld the lower court's findings and dismissed the applicants' appeal. The domestic courts found that the applicants had already initiated proceedings under section 18 of the Privatisation Act to receive shares in the Brewery as compensation for the Properties and could not therefore seek a second compensation under the Properties' Compensation Act. The courts noted in this respect that the number of shares due to them under the Privatisation Act had already been determined even though their actual number was the subject of pending legal proceedings.
4. The plot of land allegedly held by “Pribor-61-P EOOD”
Separately, on 16 December 1997 the applicants had filed another request with the Minister of Economy under the Properties' Compensation Act seeking to be restituted a plot of land measuring 654 square meters, which had allegedly been nationalised with the rest of the properties of the Brewery but which was now part of a different company – “Pribor‑61-P EOOD”.
The applicants did not receive a response to their request, so on 5 January 2000 they filed an appeal against the tacit refusal of the Minister of Economy.
An expert report, dated 20 March 2003, was presented to the Supreme Administrative Court which concluded that it was possible to separate the plot of land in question and to restitute it to the applicants.
Sometime thereafter in 2003 or 2004 the Supreme Administrative Court found against the applicants and dismissed their appeal against the tacit refusal of the Minister of Economy.
5. Subsequent developments
On 5 January 2005 the applicants wrote to the Minister of Economy requesting assistance to obtain the plot of land which was now part of “Pribor-61-P EOOD”.
In a response of 17 January 2005 the Ministry of Economy informed the applicants that that was not possible as it had already been found by the domestic courts that they had been compensated with shares under section 18 of the Privatisation Act for the real estate nationalised with the Brewery. In addition, it invited the applicants to enter into share transfer agreements in respect of their compensation under section 18 of the Privatisation Act. In particular, the Ministry of Economy offered to transfer to the first applicant 5,489 shares in the Brewery, each with a nominal value of 1 Bulgarian lev (0.51 euros), and 2,745 such shares each to the second and third applicants. The draft share transfer agreements explicitly stated that by signing them the applicants would accept the valuation of their nationalised properties and the number of shares allocated to them as a result.
In a letter of 31 January 2005 the applicants informed the Ministry of Economy that they refuse to sign the draft share transfer agreements because they still do not accept the valuation of the Properties and the number of shares allocated to them as a result and insist that an independent expert valuation be undertaken. Moreover, they expressed surprise at the significant increase of the number of shares they were being offered in the Brewery, demanded to know why and on what basis the said increase was being made and considered that a further increase may be possible if an independent valuation was made.
6. The Brewery's trademark and trade name
The applicants asserted that their ancestors had registered the trademark and trade name “Kamenitza” in 1881 and had never relinquished their proprietary rights to them. However, the State had transferred the Brewery as a whole, together with the said trademark and trade name, to the new owner which continued to use them in their trade. The applicants mentioned this fact several times in their submissions to the domestic courts in the context of the proceedings under section 18 of the Privatisation Act but never initiated separate infringement proceedings against the Brewery.
B. Relevant domestic law
Transformation and Privatisation of State and Municipal Enterprises Act [1992-2002]
Section 18 of the Privatisation Act provided that owners of real estate, such as the Properties, which existed physically and was part of the tangible assets of State and municipal enterprises had the right to receive shares in the company created from those enterprises. The size of the stockholding was to be determined on the basis of an expert valuation communicated to the owner of the real estate by the municipal council where the property was situated. In turn, the owner had the right to appeal against the expert valuation within fourteen days of it being served on him.
The time limit for submitting a request to receive shares expired on 11 May 1993, but with an amendment of 24 June 1994 a new deadline was granted which expired on 30 September 1994.
Following an amendment of 28 May 1996 the determination of the size of the stockholding was performed on the basis of the respective property's balance sheet value, while in the case of a performed cash privatisation – on its privatisation valuation. The right of appeal against the valuation remained.
The Privatisation Act was repealed in 2002.
COMPLAINTS
1. The applicants complained under Article 6 of the Convention that in the proceedings which ended with a final judgment of the Supreme Administrative Court of 11 July 2002 they lacked access to a court with full jurisdiction because the domestic courts refused to review the valuation of the Properties and relied entirely on the method and calculations undertaken by the Privatisation Agency and the Ministry of Industry in determining their shares' entitlement under section 18 of the Privatisation Act.
The applicants also complained under Article 1 of Protocol No. 1 to the Convention that they were allocated an insufficient number of shares in the Brewery as compensation for the Properties.
In a letter of 12 April 2005 the applicants raised a complaint under Article 6 of the Convention that the proceedings which ended with a final judgment of the Supreme Administrative Court of 11 July 2002 were of excessive length.
2. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the domestic courts decided wrongly by finding against them in the proceedings which ended with a final judgment of the Supreme Administrative Court of 4 June 2002.
3. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the domestic courts decided wrongly by findings against them in the proceedings which ended with a final judgment of the Supreme Administrative Court sometime in 2003 or 2004 and concerned the plot of land allegedly held by “Pribor-61-P EOOD”.
4. The applicants complained under Article 1 of Protocol No. 1 to the Convention that the State unlawfully privatised the trademark and trade name “Kamenitza” together with the Brewery and that the latter had infringed their intellectual property rights by its continued use of them in its trade. They recognised in this respect that they could have initiated an action for infringement against the Brewery, but claimed not to have had the financial ability to finance such proceedings.
In a letter of 12 April 2005 the applicants complained under Article 6 of the Convention that the requirement to pay court fees amounting to four per cent of the value of their claim restricted their right of access to a court.
5. In a letter of 12 April 2005 the applicants complained under Article 13 of the Convention that they lacked effective domestic remedies for their Convention complaints.
THE LAW
A. Complaint under Article 6 § 1 of the Convention concerning access to a tribunal with sufficient jurisdiction
The applicants complained under Article 6 of the Convention that in the proceedings which ended with a final judgment of the Supreme Administrative Court of 11 July 2002 they lacked access to a court with full jurisdiction.
The relevant part of the Article 6 § 1 of the Convention provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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.
B. The remainder of the applicants' complaints
The Court has examined the remainder of the applicants' complaints as submitted by them. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected 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 complaint concerning the alleged lack of access to a tribunal with sufficient jurisdiction (Article 6 of the Convention);
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy