FIFTH SECTION
DECISION
Applications nos. 61330/00, 66840/01 and 69155/01
by SHOILEKOVI and Others against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 18 September 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above applications lodged on 29 August 2000, 23 November 2000 and 26 January 2001 respectively,
Having deliberated, decides as follows:
THE FACTS
The applicants in application no. 61330/00 are Mr Liubomir Stanev Shoilekov and Mrs Vaskresia Petrova Shoilekova, Bulgarian nationals who were born in 1931 and 1937 respectively and live in Plovdiv. They were represented before the Court by Ms E. Nedeva and Mr M. Ekimdjiev, lawyers practising in Plovdiv.
The applicant in application no. 66840/01 is Mrs Sofka Dionisieva Semkova, a Bulgarian national who was born in 1925 and lives in Plovdiv.
The applicants in application no. 69155/01 are Ilia Georgiev Sinapov and Slavka Kostadinova Sinapova, Bulgarian nationals who were born in 1940 and 1946 respectively and live in Sofia. They were represented before the Court by Ms S. Maneva, a lawyer practising in Sofia.
A. The circumstances of the applicants’ cases
The facts of the three cases under examination, as submitted by the applicants, may be summarised as follows.
1. The judgments declaring the applicants’ titles null and void
The applicants acquired from the State apartments that had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria in 1947 and the following several years. The apartments had been nationalised without compensation.
After the adoption of the Restitution Law in 1992, in proceedings under section 7 of that law brought by the former pre-nationalisation owners, the applicants’ titles were declared null and void and they were ordered to vacate the apartments.
In 2000, it became possible for the applicants to obtain compensation from the State. Compensation was granted in the form of bonds which could be used in privatisation tenders and sold to brokers. Until the end of 2004 bonds were traded at price levels between 15 to 25% of their face value. Their price surged towards the end of 2004 and reached 100% and more of face value and then fell again. In May 2007, it became possible for persons who have not sold their bonds to obtain their full face value directly from the State.
The remaining relevant background facts 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.
In the three cases under examination, the claims under section 7 of the Restitution Law were brought within the relevant one-year time limit after the adoption of that law in 1992.
The grounds on which the applicants’ titles were declared null and void and the relevant circumstances were as follows.
(a) In the case of Shoilekovi (application no. 61330/00)
The courts found, in proceedings that ended by final judgment of the Supreme Court of Cassation of 14 March 2000, that the applicants had purchased the property at issue (a storey in a two-storey house) in 1981, at a time when one of the applicants owned another property which could satisfy the applicants’ housing need. It followed that the purchase had been in breach of the requirement that only persons who did not own other real property qualified to purchase State housing. In the course of the proceedings the courts also dealt with alleged irregularities in respect of tenancy orders dating from 1948 and the 1960s.
The applicants have not informed the Court whether they have received compensatory bonds or rented or purchased municipal housing.
(b) In the case of Semkova (application no. 66840/01)
The courts found, in proceedings that ended by final judgment of the Supreme Court of Cassation of 8 April 1998, that the apartment in question had exceeded in size the relevant limits fixed by legislation in respect of a three-member family, as the applicant’s at the time of the transaction (1960). The courts also found that in breach of the relevant law the apartment had not been offered for sale to the tenants who had been living therein, but directly to the applicant, as a former resistance fighter.
In 1999 the applicant unsuccessfully attempted to reopen the proceedings. She vacated the apartment on an unspecified date.
In October 1999 the applicant was temporarily provided with municipal housing for rent at fixed low rates. She remained there at least until October 2001.
In 2003 the applicant obtained compensatory bonds with face value 54,000 Bulgarian levs (BGN) (the equivalent of approximately EUR 27,500). The applicant has not informed the Court whether she had sold her compensatory bonds and if so at what price.
(c) In the case of Sinapovi (application no. 69155/01)
The courts, in proceedings that ended by final judgment of the Supreme Court of Cassation of 28 July 2000, found that the applicants had purchased the apartment at issue in November 1990, despite the Parliament’s decision of 17 August 1990 imposing a moratorium on sales of State and municipal property.
The applicants have not informed the Court whether they have received compensatory bonds or rented or purchased municipal housing.
2. The length of the proceedings in the case of Shoilekovi (application no. 61330/00)
The pre-nationalisation owners brought an action against the applicants on 3 June 1992. Between July and November 1992 the District Court held three hearings and admitted evidence.
The hearing listed for 17 March 1993 was adjourned as the applicants’ lawyer had been unable to attend. The next and last hearing was held on 20 April 1993.
By judgment of 2 July 1993 the District Court granted the claim against the applicants. They appealed.
The Regional Court held a hearing on 6 October 1993.
By judgment of 3 December 1993 the Regional Court quashed the lower court’s judgment and rejected the claim.
On 11 March 1994 the plaintiffs, the pre-nationalisation owners, submitted a petition for review (cassation) to the Supreme Court.
The Supreme Court held a hearing on 2 March 1995.
By judgment of 24 July 1995 the Supreme Court quashed the Regional Court’s judgment and referred the case back to that court.
In the renewed examination of the case by the Regional Court, the hearings listed for 15 November 1995 and 6 February 1996 were adjourned at the applicants’ request.
The court held three hearings - on 1 April, 24 June and 6 November 1996.
By judgment of 6 January 1997 the Regional Court quashed the District Court’s judgment of 2 August 1993 and referred the case back for renewed examination by that court.
The District Court held a hearing on 7 March, 14 May and 22 September 1997. One of the adjournments was caused by the plaintiffs’ failure to submit a relevant document.
By judgment of 7 October 1997 the District Court granted the restitution claim against the applicants. They appealed.
Before the Regional Court, the hearing listed for 9 January 1998 was adjourned owing to illness of one of the applicants.
On 6 May 1998 the Regional Court noted the applicants’ failure to amend their appeal in accordance with procedural requirements introduced in April 1998 and instructed them to do so.
At the hearing held on 5 October 1998 the court heard the parties and admitted evidence, including an expert’s report.
By judgment of 3 November 1998 the Regional Court upheld the lower court’s judgment of 7 October 1997. The applicants submitted a cassation appeal.
The Supreme Court of Cassation held a hearing on 21 September 1999.
By judgment of 14 March 2000 the Supreme Court of Cassation upheld the lower courts’ judgments of 1997 and 1998.
B. Relevant domestic law and practice
The relevant domestic law and practice have been set out in the Court’s judgment in the case of Velikovi and Others v. Bulgaria, cited above.
COMPLAINTS
The applicants complained, relying on Articles 6, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1, that they had been deprived of their property by virtue of legal provisions that lacked the necessary clarity and foreseeability and through judicial decisions which were not sufficiently reasoned. The applicants disputed the legitimacy of the aim pursued by section 7 of the Restitution Law or considered that it failed to strike a fair balance between the various interests involved. They also alleged that they did not have effective remedies in this respect, the bonds compensation scheme not providing full compensation.
The applicants in the case of Shoilekovi (application no. 61330/00) also complained under Article 6 § 1 of the alleged excessive length of the civil proceedings in their case.
THE LAW
1. The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.
2. The applicants complained, relying on Articles 6, 8, 13 of the Convention and Article 1 of Protocol No. 1, that they had been the victims of an arbitrary deprivation of property. They considered that the Restitution Law was unclear, did not pursue a legitimate aim, that the interference with their property rights was not necessary in a democratic society and that they did not have an effective remedy in this respect.
In so far as in the case of Semkova (no. 66840/01) the applicant’s title was declared null and void in 1998, more than six months prior to the introduction of the application in 2000, the Court notes that Mrs Semkova’s complaints concern not only the nullification of the her title but also the legal and practical developments after 1998 and, in particular, the alleged deficiencies of the bond compensation scheme that became available in 2000. As the Court found in Velikovi and Others, cited above (see § 161 of that judgment), the relevant events must be seen as a continuing situation ending with the actual receipt by the applicant of compensation, if any. It follows that the application cannot be dismissed for failure to abide by the six-month time limit under Article 35 § 1 of the Convention.
The Court further considers that the above complaints, in the three applications under review, fall to be examined under Article 1 of Protocol No. 1 to the Convention.
The events complained of undoubtedly constituted an interference with the applicants’ rights under that provision.
The interference was based on the relevant law and pursued an important aim in the public interest - to restore justice and respect for the rule of law. As in Velikovi and Others, cited above, §§ 62-176, the Court considers that in the particular circumstances the question whether the relevant law was sufficiently clear and foreseeable cannot be separated from the issue of proportionality.
Applying the criteria set out in Velikovi and Others (see §§ 183-192 of that judgment), the Court notes at the outset that the applicants’ titles were challenged within the relevant one-year time limit after the adoption of the Restitution Law in 1992. The present cases, therefore, did not involve a deviation from the transitory nature of the restitution legislation.
The Court further attaches decisive weight to the fact that the properties in question had been acquired in material breach of substantive housing regulations. The interference with the applicants’ cases, therefore, clearly fell within the legitimate aim of the Restitution Law (see Velikovi and Others, cited above, §§ 204-216).
It is also clear that under the relevant law the applicants were entitled to compensation by bonds which could secure to them at least 15 to 25 %, probably more, of the value of the respective apartments (see Velikovi and Others, cited above, §§ 133-139).
The above suffices to conclude that the interference with the applicants’ property rights was not disproportionate to the legitimate aims pursued by the Restitution Law.
It follows that the applicants’ complaints under Article1 of Protocol No. 1 must be rejected under Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.
3. The applicants in the case of Shoilekovi (application no. 61330/00) also complained under Article 6 § 1 of the alleged excessive length of the civil proceedings in their case.
The period to be taken into consideration began only on 7 September 1992, the date of the Convention’s entry into force for Bulgaria and ended on 14 March 2000, when the Supreme Court of Cassation delivered its final judgment in the case. It thus lasted seven years and six months for three levels of jurisdiction. As of the date of the Convention’s entry into force for Bulgaria the proceedings had only been pending for three months.
The reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).
Having examined all the material submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was not excessive. In reaching this conclusion, the Court takes into account that the case went twice through the three-level court system and that it has not been shown that its referral for renewed examination was unnecessary. In addition, the case was factually complex as it involved the examination of documentary evidence dating several decades ago. It was also legally complex. The courts needed to apply, in addition to the Restitution Law and general civil law, provisions of administrative law and housing regulations as in force in the 1940s, 1960s and 1980s. The Court also attaches importance to the fact that the applicants were responsible for a number of adjournments, whereas no significant periods of inactivity or other delays imputable to the authorities have been shown to exist.
The Court concludes, therefore, that the complaint must be rejected under Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy