FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 20612/02
by Slavi Georgiev Slavov
against Bulgaria
lodged on 14 May 2002
Application no. 42563/02
by Amalia Dimitrova Yordanovich
against Bulgaria
lodged on 14 November 2002
Application no. 42596/02
by Zhores and Kiril Peychevi Georgievi
against Bulgaria
lodged on 18 November 2002
Application no. 16059/03
by Margarita Ganeva Slavova and Others
against Bulgaria
lodged on 14 May 2003
Application no. 32427/03
by Stoyan Georgiev Boyadzhiev and Others against Bulgaria
lodged on 4 October 2003
The European Court of Human Rights (Fifth Section), sitting on 2 December 2008 as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Isabelle Berro‑Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above applications lodged on 14 May and 14 and 18 November 2002 and 14 May and 4 October 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in no. 20612/02, Mr Slavi Georgiev Slavov, is a Bulgarian national who was born in 1932 and lives in Stara Zagora.
2. The applicant in no. 42563/02, Ms Amalia Dimitrova Yordanovich, is a Bulgarian national who was born in the 1950s and lives in Stara Zagora.
3. The applicants in no. 42596/02, Mr Zhores Peychev Georgiev and Mr Kiril Peychev Georgiev, are Bulgarian nationals who were born in 1949 and 1954 respectively and live in Stara Zagora.
4. The applicants in no. 16059/03, Ms Margarita Ganeva Slavova, Ms Lilyana Ganeva Slavova, Mr Slavi Georgiev Slavov, Ms Ruska Miteva Dyankova, Ms Svetoslava Dimitrova Petkova, Ms Mariyka Stancheva Slavova, Mr Dimitar Slavchev Dimitrov and Mr Stanko Slavchev Dimitrov, are Bulgarian nationals who were born in 1932, 1933, 1942, 1950, 1970 and 1977 respectively and live in Stara Zagora.[1]
5. The applicants in no. 32427/03, Mr Stoyan Georgiev Boyadzhiev, Ms Yulia Georgieva Popvasileva and Ms Velichka Radkova Bicheva, are/were Bulgarian nationals who were born in 1915, 1913 and a later unknown date respectively and live(d) in Sofia. In a letter of 29 January 2007 the Court was apprised of the deaths of the first two applicants, and of the wish of their heirs, Ms Maria Stoyanova Boyadzhieva (sole heir to Mr Stoyan Boyadzhiev), and Ms Elitsa Vasileva Mineva and Ms Maria Kostadinova Mineva (sole heirs to Ms Yulia Popvasileva), to pursue the application. In a letter of 13 February 2007 the applicants informed the Court that they wished to withdraw their application; however, in a letter of 28 September 2007 Ms Maria Stoyanova Boyadzhieva expressed her wish to pursue the application.
6. All applicants were represented before the Court by Ms M. Slavova, a lawyer practising in Stara Zagora (also applicant in no. 16059/03). The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.
A. The circumstances of the case
7. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The case of Mr Slavov
8. Mr Slavov’s father owned a house with a yard in Stara Zagora. With his brothers – Mr Slavov’s uncles –, with whom he had formed a partnership, he also owned a food‑oil factory. One of his brothers also owned a house with a yard in Stara Zagora.
9. In 1947 proceedings were brought against them under the 1946 Confiscation Act (see paragraph 40 below). In a judgment of 23 May 1947 the Stara Zagora Regional Court confiscated the above‑mentioned properties and various other assets owned by them. Mr Slavov’s father and his brothers appealed. So did the prosecution, but it later withdrew its appeal. In a judgment of 4 November 1948 the Supreme Court quashed the lower court’s judgment and proceeded to examine the case on the merits. In a judgment of 27 February 1950 it confiscated the above‑mentioned properties and various other assets owned by the appellants.
10. In the meantime, while the proceedings were still pending, the 1947 Nationalisation Act came into force (see paragraph 41 below) and all the assets of the partnership owned by Mr Slavov’s father and his brothers were earmarked for nationalisation. However, as confiscation proceedings were already underway, the nationalised property was not inventoried as provided for in the 1947 Nationalisation Act.
11. The two houses were later demolished and a communist party building was erected in their place. After the fall of the communist regime the building was given to the Stara Zagora municipal authorities and the social security authorities. A number of buildings in the factory were also demolished and new ones constructed in their place; machinery was also replaced.
12. On 16 April 1998, some years after the fall of the communist regime, the Chief Prosecutor, acting pursuant to a request by Mr Slavov, made a petition for a review of the 1947 and 1950 judgments, demanding that they be set aside and that the confiscation ordered in them be rescinded. He asserted that those judgments were unlawful and arbitrary. On 8 July 1998 the Supreme Court of Cassation refused to examine the petition. It noted that prior to the entry into force of a 1997 amendment to the 1992 Restitution Act (see paragraph 44 below) it had accepted such petitions for examination. However, that amendment had restituted ex lege the properties confiscated under the 1946 Confiscation Act and had thus removed the legal interest of the former owners or their heirs in seeking review of confiscation judgments made under that Act. When the Constitutional Court had declared the amendment unconstitutional in March 1998 (see paragraph 45 below) that interest had resurfaced, but the adding of the new section 2(1a) to the 1992 Restitution Act, effective from 25 April 1998 (see paragraph 46 below), had opened a new avenue of redress in respect of such confiscations, namely re‑opening. As procedural rules were immediately applicable, the court could no longer entertain petitions for review in such cases. Those concerned could instead seek re‑opening.
13. On 3 August 1998 the Chief Prosecutor renewed his petition. On 12 January 1999 the Supreme Court of Cassation again refused to examine it, finding that it was identical to the previous one.
14. Mr Slavov, with almost all of the applicants in no. 16059/03 (see paragraph 4 above) and another co‑heir, subsequently requested the re‑opening of the 1947‑50 proceedings. In a final decision of 16 April 1999 the Supreme Court of Cassation refused to examine the request. It held that re‑opening under Article 362 § 1 (5) of the 1974 Code of Criminal Procedure (see paragraph 48 below) was possible only if the judgment with regard to which setting aside was being requested had not been subjected to cassation review. However, the 1947 judgment had been examined by the Supreme Court on an appeal by Mr Slavov’s ancestors. That court had acted as a cassation court and not, as Mr Slavov and the other petitioners asserted, as a court of second instance.
15. On 4 March 1998 Mr Slavov and one of his co‑heirs lodged with the regional governor a request for compensation under the 1997 Compensation Act (see paragraph 43 below) for their ancestor’s house. As the governor did not reply, Mr Slavov and his co‑heir sought judicial review of his tacit refusal. In a judgment of 15 February 2001 the Stara Zagora Regional Court dismissed their application. It noted that the 1997 Compensation Act provided for compensation only of owners (or their heirs) whose property had been taken under one of the statutes enumerated in the 1992 Restitution Act. However, at the time when the regional governor was due to have made his decision on the compensation request, the 1992 Restitution Act, having been partially declared unconstitutional, no longer referred to the 1946 Confiscation Act (see paragraphs 43‑45 below). The governor’s tacit refusal was therefore consistent with the law as it stood at the material time. Mr Slavov appealed on points of law. In a final judgment of 27 November 2001 the Supreme Administrative Court upheld the lower court’s judgment with almost identical reasoning.
2. The case of Ms Margarita Slavova and her co‑heirs
16. The attempt by Ms Margarita Slavova and her co‑heirs to obtain re‑opening of the proceedings in which the properties of their ancestors were confiscated is described in paragraph 14 above.
17. On 4 March 1998 Ms Margarita Slavova and Ms Lilyana Slavova lodged with the regional governor a request for compensation under the 1997 Compensation Act (see paragraph 43 below) for the confiscated house which had belonged to their ancestor, Mr Slavov’s uncle (see paragraph 8 above). As the governor did not reply, they sought judicial review of his tacit refusal. In a judgment of 7 January 2002 the Stara Zagora Regional Court dismissed their application. It held that the 1997 Compensation Act provided for compensation only of owners whose property had been taken under one of the statutes enumerated in the 1992 Restitution Act. However, at the time when the regional governor was due to have made his decision on the compensation request, the 1992 Restitution Act, having been partially declared unconstitutional, no longer referred to the 1946 Confiscation Act (see paragraphs 43‑45 below). The governor’s tacit refusal was therefore consistent with the law as it stood at the material time. The court went on to hold that it was immaterial when the request for compensation had been lodged, because, since the property no longer existed in its original state, title to it had not been vested ex lege in the applicants. The applicants appealed on points of law. In a final judgment of 28 November 2002 the Supreme Administrative Court upheld the lower court’s judgment with almost identical reasoning.
18. In a separate bid to obtain compensation for their ancestors’ factory (see paragraph 8 above), on 20 November 1998 Ms Margarita Slavova, the other applicants in no. 16059/03 (see paragraph 4 above) and Mr Slavov asked the Minister of the Economy to compensate them either with shares in the State‑owned company in whose assets the factory had been included, or, if no shares were available, with compensatory bonds. As the Minister did not reply, on 1 February 1999 they sought judicial review of his tacit refusal.
19. According to the applicants, in the ensuing judicial review proceedings they requested the Supreme Administrative Court to stay, as an interim measure, the privatisation of the above‑mentioned State‑owned company. The court apparently failed to rule on those requests.
20. In a judgment of 30 July 2002 a three‑member panel of the Supreme Administrative Court quashed the tacit refusal and partly acknowledged the applicants’ right to compensation by bonds, up to an amount of 23,221,116 new Bulgarian levs. It held that the properties had been taken ex lege under the 1947 Nationalisation Act (see paragraph 41 below), and not pursuant to a judgment under the 1946 Confiscation Act (see paragraph 40 below), as the judgment had been made after the 1947 Act’s entry into force. It also held that the properties did not exist in their original state and that the applicants were thus entitled to compensation under the 1997 Compensation Act. The manner of compensation was bonds, as the State‑owned company in whose assets the properties had been included had been privatised and it was thus impossible to compensate the applicants with shares in it.
21. Upon appeals by the parties, in a judgment of 27 February 2003 a five‑member panel of the Supreme Administrative Court quashed that judgment and remitted the case. It held that the three‑member panel had not properly established the facts. It was evident that the properties had been taken partly under the 1947 Nationalisation Act and partly pursuant to a judgment made under the 1946 Confiscation Act. Whereas the 1997 Compensation Act provided for compensation for property taken under the former Act, after the Constitutional Court’s decision of 11 March 1998 it no longer provided for compensation for property taken under the latter (see paragraphs 43‑45 below). It was thus essential to establish, through an expert report, under which Act each piece of property had been taken.
22. On remittal another three‑member panel of the Supreme Administrative Court, after apparently ignoring several evidentiary requests by the applicants relating to the privatisation of the above‑mentioned State‑owned company, wholly dismissed the application for judicial review in a judgment of 22 December 2003. It found, on the basis of a report by an expert appointed during the proceedings, that certain of the properties had been taken pursuant to a judgment under the 1946 Confiscation Act; no compensation was due in respect of those. The court further found that the remainder of the properties, taken under the 1947 Nationalisation Act, had not been duly inventoried at the time of their nationalisation and that the net worth of the applicants’ ancestors’ partnership which had owned the properties had not been positive, as was apparent from the expert’s report. No compensation was therefore due in respect of those properties either (see paragraph 43 below).
23. The applicants appealed. In a final judgment of 31 May 2004 a five‑member panel of the Supreme Administrative Court dismissed the appeal, fully endorsing the three‑member panel’s reasoning. It observed that under the 1997 Compensation Act compensation was due for property taken under the 1947 Nationalisation Act only if the nationalised undertakings’ net worth, defined as assets minus liabilities, was positive, which, as was apparent from the expert report, had not been the case. It went on to hold that no breaches of the rules of procedure had taken place in the gathering and assessment of evidence. In particular, the expert report had been duly admitted in evidence and the applicants had not tried to challenge it or request another expert report. It finally noted that, unlike restitution under the 1992 Restitution Act, which had occurred ex lege, compensation under the 1997 Act was subject to the positive outcome of administrative proceedings. The applicant’s arguments based on the Supreme Court of Cassation’s interpretative decision (see paragraphs 48 and 49 below) were thus inapposite, as its ruling applied only to properties which had remained intact and could be restored. In the instant case, the applicants had no right to compensation as they had lodged their request after the publication of the Constitutional Court’s decision declaring the 1997 amendment unconstitutional.
3. The case of Ms Yordanovich
24. An ancestor of Ms Yordanovich had been a co-owner of three plots of land with buildings in Stara Zagora and two plots of land near it.
25. In 1946 proceedings were brought against her ancestor under the 1946 Confiscation Act (see paragraph 40 below). In a judgment of 9 May 1947 the Stara Zagora Regional Court confiscated the above‑mentioned properties along with various other assets part‑owned by her. In a judgment of 17 July 1947 the Supreme Court upheld the confiscation.
26. The properties were later modified, thus ceasing to exist in their original state.
27. After an unsuccessful attempt to obtain review through a petition made by the Chief Prosecutor and following the enactment of the new section 2(1a) of the 1992 Restitution Act (see paragraph 46 below), in 1998 Ms Yordanovich requested, along with some of her co‑heirs, the re‑opening of the 1947 proceedings. In a final decision of 3 April 1999 the Supreme Court of Cassation refused to examine the request. It held that the 9 May 1947 judgment had been examined in cassation proceedings. Re‑opening under Article 362 § 1 (5) of the 1974 Code of Criminal Procedure was therefore impossible. Moreover, no legal interest existed for Ms Yordanovich in requesting re‑opening, as properties confiscated under the 1946 Confiscation Act had been restituted ex lege with the 1997 amendment to the 1992 Restitution Act (see paragraph 44 below).
28. On 20 November 1998 Ms Yordanovich and some of her co‑heirs lodged with the regional governor a request for compensation under the 1997 Compensation Act (see paragraph 43 below) for the properties confiscated in 1947. The governor turned down the request. Ms Yordanovich sought judicial review of his decision. In a judgment of 27 July 2001 the Stara Zagora Regional Court dismissed the application, holding that at the time when the request for compensation had been made and at the time when the regional governor had made his decision the 1997 Compensation Act, read in conjunction with the 1992 Restitution Act, no longer provided for compensation for property confiscated under the 1946 Confiscation Act (see paragraphs 42‑45 below). Ms Yordanovich appealed on points of law to the Supreme Administrative Court. In a judgment of 21 May 2002 the Supreme Administrative Court upheld the lower court’s judgment, endorsing its reasoning.
4. The case of Messrs Georgievi
29. An ancestor of Messrs Georgievi owned a house with a yard in Stara Zagora.
30. In 1946 proceedings were brought against him under the 1946 Confiscation Act (see paragraph 40 below). In a judgment of 22 April 1947 the Stara Zagora Regional Court confiscated the above‑mentioned property together with various other assets owned by him. In a judgment of 30 October 1947 the Supreme Court upheld the confiscation, slightly modifying the perimeter of the yard.
31. Some time after the confiscation the property was modified, thus ceasing to exist in its original state.
32. Following the enactment of the new section 2(1a) of the 1992 Restitution Act (see paragraph 46 below), Messrs Georgievi requested the re‑opening of the 1946‑47 proceedings. In a decision of 18 June 1999 the Supreme Court of Cassation refused to examine their request. It held that, in so far as it was based on Article 362 § 1 (5) of the 1974 Code of Criminal Procedure (see paragraph 48 below), the request could not be entertained, because that provision was applicable only to judgments which had not been reviewed in cassation proceedings and had been delivered after 1 April 1998, which was not the case. Moreover, Messrs Georgievi had no legal interest in requesting re‑opening because their ancestor’s property had been restituted ex lege with the 1997 amendment to the 1992 Restitution Act, and that restoration had not been overturned by the subsequent declaration of unconstitutionality of that provision (see paragraphs 44 and 45 below). Thus, all they had to do was to request the competent officials to return the property.
33. In the meantime, on 5 March 1998 Messrs Georgievi and one of their co‑heirs lodged with the regional governor a request for compensation for the house and the yard under the 1997 Compensation Act (see paragraph 43 below). In a decision of 29 December 2000 the governor turned down the request. Messrs Georgievi sought judicial review of this decision. In a judgment of 20 July 2001 the Stara Zagora Regional Court dismissed their application. They appealed on points of law. In a final judgment of 5 June 2002 the Supreme Administrative Court upheld the lower court’s judgment, holding that at the time of the governor’s decision the 1992 Restitution Act, having been declared partly unconstitutional, no longer referred to property taken under the 1946 Confiscation Act (see paragraphs 42, 44 and 45 below). The governor’s refusal was therefore consistent with the law as it stood at the material time. The applicants’ argument that the property had already been restituted ex lege was inapposite, because the 1997 Compensation Act was a special piece of legislation which made compensation contingent on special prerequisites and laid down a special procedure for obtaining it.
5. The case of Mr Boyadzhiev and his sisters
34. The father of Mr Boyadzhiev, Ms Mineva and Ms Bicheva – all siblings – owned a piece of land in the village of Voluyak, an orchard in the town of Bankya, and some movable property and securities.
35. In 1946 proceedings were brought against him under the 1946 Confiscation Act (see paragraph 40 below). In a judgment of 15 January 1947 the Sofia Regional Court confiscated the above-mentioned properties. In a judgment of 1 April 1947 the Supreme Court upheld the confiscation and, in addition, confiscated Mr Boyadzhiev’s flat.
36. In 1958 the State sold the flat to a private person. It is not clear what became of the piece of land and the orchard.
37. In November 1998 Mr Boyadzhiev requested the re‑opening of the 1946‑47 proceedings. In a decision of 3 June 1999 the Supreme Court of Cassation refused to examine his request, noting that the trial court’s judgment had been examined in cassation proceedings. It went on to hold that Mr Boyadzhiev had no legal interest in requesting re‑opening because his property had been restituted ex lege with the 1997 amendment to the 1992 Restitution Act (see paragraph 44 below).
38. On 11 November 1999 the three applicants lodged with the regional governor a request for compensation under the 1997 Compensation Act for the properties taken from their father. In a decision of 19 January 2000 the governor turned down their request. They sought judicial review of his decision. In a judgment of 11 December 2000 the Sofia City Court dismissed their application, in so far as it related to their father’s movable property, but quashed the governor’s decision in so far as it related to the piece of land in Voluyak and the orchard in Bankya. It instructed the governor to strike the latter off the register of State property, if they were intact and were still owned by the State, a municipality, or a State‑ or municipally‑owned company. The court noted that the title-vesting effect of the 1997 amendment to the 1992 Restitution Act had not been invalidated by the Constitutional Court’s decision (see paragraphs 44 and 45 below). Therefore, it had to be verified whether the properties were still intact and were owned by the State, a municipality, or a State‑ or municipally‑owned company. If that were the case, they were to be returned to the applicants. On an appeal by the governor, on 24 April 2003 the Supreme Administrative Court quashed the judgment and wholly dismissed the application for judicial review. It found that the applicants’ request for compensation had been lodged after the Constitutional Court’s decision and thus had no basis in law. It also noted that the governor’s decision to strike a piece of land off the register of State property was not subject to judicial review, as it had no incidence on the title to that property, which could be determined only in a civil action.
39. Concomitantly, on 21 October 1999 Mr Boyadzhiev lodged with the regional governor a request for compensation for the flat. In a decision of 21 July 2000 the governor turned down the request. Mr Boyadzhiev sought judicial review of his decision. In a judgment of 12 November 2001 the Sofia City Court dismissed his application. It found that Mr Boyadzhiev’s request for compensation had not been made within the time-limit laid down in section 6(1) of the 1997 Compensation Act (see paragraphs 43 in fine and 47 below). It further held that after the Constitutional Court’s decision the right to compensation under the 1997 Compensation Act in respect of property taken under the 1946 Confiscation Act had ceased to exist (see paragraphs 44 and 45 below). It noted that, had the flat been owned by the State, title to it would have been vested in Mr Boyadzhiev by operation of law. However, it had been sold to private persons in 1958 and had thus not been restituted ex lege. On an appeal by Mr Boyadzhiev, on 18 April 2003 the Supreme Administrative Court upheld the judgment. It also found that Mr Boyadzhiev’s request had been out of time and observed that what had happened to the title to the flat between 22 November 1997 and 21 March 1998, during which period the 1997 amendment to the 1992 Restitution Act had been in force, was immaterial for the right to compensation under the 1997 Compensation Act. The Supreme Court of Cassation’s interpretative decision, which had proclaimed the amendment’s title‑vesting effect (see paragraphs 48 and 49 below), concerned civil proceedings, not judicial review proceedings, and the arguments based on it were inapposite.
B. Relevant domestic law and practice
1. Confiscation and nationalisation legislation adopted in the 1940s
40. In 1946, in the early stages of the establishment of the communist regime in Bulgaria, the legislature enacted the Confiscation of Property Acquired through Speculation and by Unlawful Means Act („Закон за конфискуване на придобити чрез спекула и по незаконен начин имоти“ – “the 1946 Confiscation Act”), an Act providing for the confiscation, by court order made after adversarial trial and cassation proceedings, of certain properties of individuals and companies who had allegedly enriched themselves through speculation or in an unlawful manner between 1935 and 1946.
41. In 1947 the legislature enacted the Nationalisation of Private Industrial and Mining Undertakings Act („Закон за национализация на частни индустриални и минни предприятия“ – “the 1947 Nationalisation Act”) which provided for the nationalisation ex lege of a number of private undertakings.
2. Restitution and compensation legislation adopted in the 1990s
42. In 1992, after the fall of the communist regime, the legislature enacted the Restitution of Nationalised Immovable Properties Act („Закон за възстановяване собствеността върху одържавени недвижими имоти“ – “the 1992 Restitution Act”). Its section 2(1), as originally enacted, provided for the restitution ex lege, under certain conditions, of immovable properties nationalised under several exhaustively listed statutes enacted in the 1940s and the 1950s, one of which was the 1947 Nationalisation Act. One of the conditions for restitution was that the properties existed intact in their state prior to nationalisation (section 2(2) before 1997, thereafter section 2(3)). Section 3(3) provided that if restitution was impossible – for example, because the properties no longer existed in their original state – the former owners or their heirs were to be compensated in the manner set out in a separate statute.
43. In 1997 the legislature enacted such a statute – the Compensation of the Owners of Nationalised Properties Act („Закон за обезщетяване на собственици на одържавени имоти“ – “the 1997 Compensation Act”). It provided for compensation of the former owners of nationalised property or their heirs in cases where it was impossible to restitute the property because it had been put in the public domain, had been acquired in good faith by third parties, or had been transformed by building or otherwise (section 2(1) of the Act). Compensation consisted of either (i) shares of title to the buildings erected on the nationalised plots or to the plots to which they had been appended, (ii) shares in State-owned companies in whose capital these properties had been put, or (iii) compensatory bonds. Compensation for properties taken under the 1947 Nationalisation Act was subject, inter alia, to the existence of a positive net worth of the nationalised undertakings at the time of nationalisation (section 3(5) of the Act). Those considering themselves entitled to compensation were to apply to the regional governors or the competent ministers not later than six months after the Act’s entry into force (section 6(1) of the Act).
44. Paragraph 1(1)(a) of the transitional and concluding provisions of the 1997 Compensation Act amended section 2(1) of the 1992 Restitution Act, adding to its list of statutes (see paragraph 42 above) the 1946 Confiscation Act (see paragraph 40 above). The amendment was published in the State Gazette on 18 November 1997 and came into force on 22 November 1997.
3. The Constitutional Court’s decision of 11 March 1998
45. Immediately thereafter, in November 1997, fifty‑two Members of Parliament challenged the amendment before the Constitutional Court. On 4 December 1997 the court declared the challenge admissible and invited a number of interested public authorities and two non-governmental organisations to submit briefs. It examined the merits of the case at a closed hearing held on 24 and 25 February 1998, and in a decision of 11 March 1998, published in the State Gazette on 17 March 1998 and entering into force on 21 March 1998 (реш. № 4 от 11 март 1998 г. по к.д. № 16 от 1997 г., обн., ДВ, бр. 30 от 17 март 1998 г.), unanimously found that the amendment was unconstitutional because it purported to overturn judicial rulings made pursuant to the 1946 Confiscation Act by Act of Parliament. This ran counter to the separation‑of‑powers doctrine enshrined in Article 8 of the 1991 Constitution and to the principle of the independence of the judiciary.
4. The creation of the right to seek re‑opening of proceedings under the 1946 Confiscation Act
46. Shortly thereafter, on 14 April 1998, the legislature added a new subsection (1a) to section 2 of the 1992 Restitution Act. This came into force on 25 April 1998 and provided that the former owners of property taken under the 1946 Confiscation Act or their heirs could request re‑opening of the proceedings under that Act in accordance with the relevant provisions of the 1974 Code of Criminal Procedure. This was in line with the position adopted in a 1993 interpretative decision of the former Supreme Court, which found that the proceedings under the 1946 Confiscation Act had been criminal (пост. № 1 от 1993 г. по д. № 1/1993 г., Пленум на ВС).
47. At the same time the time‑limit for lodging requests for compensation under the 1997 Compensation Act (see paragraph 43 in fine above) was extended to one year.
5. The Supreme Court of Cassation’s interpretative decision of 29 June 1999
48. In an interpretative decision of 29 June 1999 (тълк. реш. № 1 от 29 юни 1999 г. по н.д. № 3/1998 г., ОСНК на ВКС), made after a wave of requests for re‑opening under the new section 2(1a) of the 1992 Restitution Act, the Supreme Court of Cassation noted, inter alia, that prior to the adoption of the 1997 amendment to the 1992 Restitution Act it had examined petitions for review of judgments under the 1946 Confiscation Act, but that such review had subsequently become pointless since, under the amendment, title to the confiscated properties had been vested ex lege in their former owners or their heirs. However, following the declaration on 11 March 1998 that the 1997 amendment was unconstitutional, the problem had re‑emerged. In attempting to solve it the new section 2(1a) of the 1992 Restitution Act had opened a fresh avenue for reviewing judgments under the 1946 Confiscation Act. Those seeking re‑opening had accordingly relied on Article 362 § 1 (5) of the 1974 Code of Criminal Procedure, which provided that re‑opening was possible if the final judgment (i) had not been reviewed in cassation proceedings and (ii) was in breach of the substantive or the procedural law or had imposed a patently unjust penalty. As the 1946 Confiscation Act had made provision for cassation proceedings, the only possible conclusion was that re‑opening under section 2(1a) of the 1992 Restitution Act was possible only if the first‑instance judgments under the 1946 Confiscation Act had not been reviewed in cassation proceedings.
49. The court went on to state that it was questionable whether the persons whose property had been taken or their heirs had any legal interest in requesting re‑opening. At the very moment when the 1997 amendment to the 1992 Restitution Act had entered into force (see paragraph 44 above), title to the confiscated properties had been vested ex lege in its former owners or their heirs. The amendment had remained in force until 21 March 1998, when it had been declared unconstitutional. However, the Constitutional Court’s decision had not operated retroactively and had not wiped out the transfer of title. Therefore, the persons whose property had been confiscated or their heirs had no legal interest in requesting re‑opening, unless they sought to achieve results which were not purely pecuniary.
50. Section 86(2) of the 1994 Judicial Power Act („Закон за съдебната власт“) provided that the Supreme Court of Cassation’s interpretative decisions were binding on the judiciary and the executive.
6. Relevant case‑law of the Supreme Administrative Court
51. In a judgment of 11 January 2000 (реш. № 46 от 11 януари 2000 г. по адм.д. № 4938/1999 г., ВАС, III о.) a three‑member panel of the Supreme Administrative Court held that requests for compensation in respect of property taken under the 1946 Confiscation Act had to be determined in accordance with the law as it stood when they were lodged. If they had been lodged before the 1997 amendment to the 1992 Restitution Act was declared unconstitutional, they had to be determined in accordance with this amendment.
52. In two another judgments, given on 28 March 2000 (реш. № 1868 от 28 март 2000 г. по адм. д. № 6778/1999 г., ВАС, IV о.) and on 22 August 2000 (реш. № 5541 от 22 август 2000 г. по адм.д. № 8152/1999 г., ВАС, III o.), two other three‑member panels of the Supreme Administrative Court reached the opposite conclusion, on the basis of the same reasoning as in the applicants’ cases.
COMPLAINTS
53. In their initial applications the applicants raised the following complaints:
(a) Mr Slavov, Ms Margarita Slavova, Ms Lilyana Slavova, Ms Yordanovich and Messrs Georgievi complained that the Supreme Court of Cassation had refused to re‑open the proceedings against their ancestors under the 1946 Confiscation Act. They relied on Articles 1, 6 and 13 of the Convention.
(b) Mr Slavov, Ms Margarita Slavova, Ms Lilyana Slavova, Ms Yordanovich, Messrs Georgievi and Mr Boyadzhiev and his sisters complained under Article 6 of the Convention about the outcome and the fairness of the proceedings before the administrative courts. They submitted that, because of the latter’s bias in favour of the State, they had adopted an erroneous interpretation of the law and, having arrived at conclusions which differed from those of the Supreme Court of Cassation, had deprived them of the right to compensation for the properties confiscated from their ancestors.
(c) Mr Slavov, Ms Margarita Slavova, Ms Lilyana Slavova, Ms Yordanovich, Messrs Georgievi and Mr Boyadzhiev and his sisters complained under Article 1 of Protocol No. 1 that, as a result of the discrepancies between the Supreme Court of Cassation’s and the Supreme Administrative Court’s interpretations of the effects of the 1997‑98 changes to the 1992 Restitution Act, they had been deprived of the right to compensation for the properties confiscated from their ancestors.
(d) Mr Slavov complained under Article 14 of the Convention that those persons, like him, whose ancestors’ property had not remained in its original state after its nationalisation had been discriminated against. Unlike those whose property had remained intact and who could reclaim it as a result of the Supreme Court of Cassation’s finding that the 1997 amendment to the 1992 Restitution Act had title‑vesting effect, they had remained without compensation.
54. In a letter of 18 November 2004 the applicants in no. 16059/03 raised additional complaints:
(a) They complained under Article 6 § 1 of the Convention that in examining their application for judicial review of the Minister of the Economy’s refusal the Supreme Administrative Court had been biased, had neglected their evidentiary requests relating to the privatisation of the State‑owned company which owned the confiscated property, had deliberately protracted the proceedings, had made erroneous findings of fact, had misconstrued the relevant legal provisions, had not given adequate reasons and had not examined their request for interim relief.
(b) They also complained under Article 1 of Protocol No. 1 to the Convention that the Supreme Administrative Court, by erroneously assessing the facts and misconstruing the law, had denied them compensation. They also alleged that the system of compensation by bonds, as laid down in the relevant legislation and case‑law of the courts, did not provide adequate compensation for the property taken from their ancestors more than sixty years previously.
(c) Finally, they complained under Article 14 of the Convention that they had been discriminated against in that, under the 1946 Compensation Act, they had been entitled at most to compensatory bonds, whereas those whose unlawfully acquired properties had been returned to their rightful owners after the fall of the communist regime had received better compensation, as had the former king, whose properties had been restored.
THE LAW
A. Preliminary questions
55. As all five applications are based on similar facts and as they contain, for the most part, identical complaints, the Court considers it appropriate to join them under Rule 42 (former 43) § 1 of the Rules of Court.
56. The only remaining applicant in application no. 32427/03, Ms Velichka Bicheva, and two of the heirs to the other applicants in this application, Ms Elitsa Mineva and Ms Maria Mineva, expressed their wish to withdraw their complaints and, unlike the third heir, Ms Maria Boyadzhieva, did not subsequently reverse their position (see paragraph 5 above). In view of this, the Court considers that these three applicants no longer intend to pursue their applications (Article 37 § 1 (a) of the Convention). It also observes that they have raised the same complaints as the rest of the applicants in the present case, on which it will express its opinion below. The Court therefore finds no reasons relating to respect for human rights, as defined in the Convention and its Protocols, which would require it to continue the examination of the complaints of these three applicants (Article 37 § 1 in fine) (see Denizci and Others v. Cyprus, nos. 25316-25321/94 and 27207/95, § 369, ECHR 2001‑V).
B. Complaint about the refusals of the Supreme Court of Cassation to re-open the proceedings under the 1946 Confiscation Act
57. The Court considers that the applicants’ complaint that the Supreme Court of Cassation refused to re‑open the confiscation proceedings against their ancestors (see paragraph 53 (a) above) falls to be examined under Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
58. The Court observes at the outset that Article 6 § 1 was not applicable under its criminal limb, as the proceedings did not concern criminal charges against the applicants, but against their ancestors (see Kurzac v. Poland (dec.), no. 31382/96, ECHR 2000‑VI). The question remains, then, whether the proceedings, which were issued under a special rehabilitation law, fell under the civil limb of this provision (ibid.) and could have a bearing on the applicants’ ability to obtain compensation for the properties taken from their ancestors. However, the Court is not required to resolve this issue, because even assuming that Article 6 § 1 was applicable, the complaints are inadmissible as being out of time.
59. The requests for re‑opening in all five cases were turned down by final decisions of the Supreme Court of Cassation delivered more than six months prior to the introduction of the applications (see paragraphs 14, 27, 32 and 37 above). It is true that the attempts to secure re‑opening were part of a broader endeavour to obtain compensation, which was eventually frustrated by judgments of the Supreme Administrative Court delivered less than six months before the lodging of the applications (see paragraphs 15, 17, 23, 28, 33, 38 and 39 above). However, although this might be of relevance for the complaints under Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention, it is immaterial for the complaint under Article 6 § 1 of the Convention about the refusal to re‑open the proceedings.
60. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
C. Complaints under Article 6 § 1 of the Convention about the proceedings before the administrative courts
61. In respect of their complaints about the fairness of the proceedings before the administrative courts (see paragraphs 53 (b) and 54 (a) above) the applicants relied on Article 6 § 1 of the Convention, the text of which has been set out in paragraph 57 above.
62. In so far as the applicants complained about the manner in which the various administrative courts examining their applications for judicial review had established the facts and had construed Bulgarian law, the Court observes that it is not its function to deal with errors of fact or law allegedly made by national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I), as it is not a court of appeal from these courts (see, among many other authorities, Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004-V (extracts)). It does not consider that the administrative courts’ judgments were arbitrary. In particular, the Court does not find that their rulings that the determination of the applicants’ compensation requests had to be based on the law as it stood at the time when the authorities decided or ought to have decided the matter (see paragraphs 15, 17, 28, 33, 38 and 39 above) was so patently unlawful or unreasonable as to raise an issue under Article 6 § 1. It may have ran counter to an earlier judgment of the Supreme Administrative Court (see paragraph 51 above), but was hardly out of line with the remainder of that court’s case‑law (see paragraph 52 above). Nor is the Court persuaded that the rulings that the business undertaking belonging to the ancestors of the applicants in nos. 20612/02 and 16059/03 had been taken in part under the 1946 Confiscation Act and in part under the 1947 Nationalisation Act, and that the net worth of the part taken under the latter Act was not positive (see paragraphs 22 and 23 above) were so untenable or flawed as to render the proceedings unfair. It reiterates on this point that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law.
63. In so far as the applicants in no. 16059/03 complained that the Supreme Administrative Court had ignored their requests to gather evidence relating to the privatisation of the State‑owned company whose capital comprised properties once owned by their ancestors (see paragraph 22 above), the Court observes that Article 6 § 1 does not require the court hearing a case to allow the gathering of evidence solely because a party has asked for it. It is for the court to assess whether such evidence would be relevant for the examination of the case (see H. v. France, 24 October 1989, §§ 60 and 61, Series A no. 162‑A). Considering the grounds on which the Supreme Administrative Court disposed of the case (see paragraphs 22 and 23 above), it was entitled to take the view that the evidence sought to be adduced by the applicants would be immaterial. Accordingly, the fact that it did not accede to their requests did not infringe their right to a fair trial.
64. As to the alleged deliberate protraction of the proceedings for judicial review of the Minister of the Economy’s tacit refusal, examined as a length issue, the Court observes that the proceedings, which raised relatively complex issues of fact and law, lasted a little over five years for four levels of jurisdiction (see paragraphs 18‑23 above). Such an amount of time does not, in the circumstances, appear excessive.
65. Concerning the bias allegedly underlying the courts’ rulings, the Court observes that it has not been argued that the courts were not independent by reason of lack of guarantees against outside pressure, or that there existed objective factors casting doubt on their impartiality. Nor is there any indication that the judges who dealt with the applicants’ cases acted with personal bias, showed partiality in favour of the executive, or based their rulings on factors other than their opinions about the facts of the cases and the proper interpretation of the relevant legal provisions. The principle that a tribunal is presumed to be free of personal prejudice or partiality is long‑established in the Court’s case-law (see, as a recent authority, Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005‑XIII).
66. Finally, in so far as the applicants complained about the Supreme Administrative Court’s failure to impose the interim measure sought by them (see paragraph 19 above), the Court observes that it is questionable whether this grievance comes within the ambit of Article 6 § 1 (see, among many other authorities, Gallogly v. the United Kingdom, no. 7990/77, Commission decision of 11 May 1981, Decisions and Reports 24, p. 57, at p. 61; Ribstein v. France, no. 31800/96, Commission decision of 16 April 1998, unreported; APIS a.s. v. Slovakia (dec.), no. 39754/98, 13 January 2000; Starikow v. Germany (dec.), no. 23395/02, 10 April 2003; Libert v. Belgium (dec.), no. 44734/98, 8 July 2004; Biserica Sfantul Haralambie v. Moldova (dec.), no. 19967/02, 30 November 2004; and Saarekallas Oü v. Estonia, no. 11548/04, 8 November 2007; but see also, to the contrary, Micallef v. Malta, no. 17056/06, §§ 34-47, 15 January 2008, referred to the Grand Chamber). However, the Court does not need to resolve this issue in the instant case. Even assuming that Article 6 § 1 applied, it does not seem that the Supreme Administrative Court’s failure to order the measure sought by the applicants had a bearing on the fairness of the proceedings as a whole. In view of the grounds on which that court eventually disposed of the case (see paragraphs 22 and 23 above), it can hardly be said that its failure to stay the privatisation of the State‑owned company in whose assets the applicants’ ancestors’ factory had been included impinged on their rights.
67. It follows that these complaints are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Complaint under Article 1 of Protocol No. 1 to the Convention
68. In respect of their complaints that they had been deprived of the right to compensation for the properties taken from their ancestors (see paragraphs 53 (c) and 54 (b) above) the applicants relied on Article 1 of Protocol No. 1 to the Convention, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The parties’ submissions
69. The Government submitted, with reference to a number of the Court’s judgments and decisions relating to the process of restitution in Eastern Europe, that Article 1 of Protocol No. 1 was not applicable. In their view, the facts that the scope of the restitution and compensation statutes in Bulgaria had been circumscribed, and that the return of the nationalised properties or the obtaining of compensation had been made subject to certain conditions did not run counter to this provision. It was evident that under these statutes the applicants did not have an existing possession, but merely a claim. However, this claim was not sufficiently established to amount to a “legitimate expectation” within the meaning of the Court’s case‑law.
70. The Government further argued that following the 1997 amendment to the 1992 Restitution Act the applicants could have applied for compensation for the properties taken under the 1946 Confiscation Act. However, the decision of the Constitutional Court, and the change which it brought in the law, had eliminated this opportunity. The consistent rulings of the administrative courts that the authorities were bound to apply the law as it stood when the matter came for decision meant that the applicants’ requests for compensation had been legitimately dismissed. The position might have been otherwise if the declaration of unconstitutionality had applied retroactively. However, it had not. Although the applicants’ requests had been lodged before that declaration, they had come up for decision after it. At that time, the law no longer enshrined a right to compensation.
71. In the Government’s view, the applicants’ inability to obtain restitution or compensation through the re‑opening of the confiscation proceedings under the newly added section 2(1a) of the 1992 Restitution Act had also not been constitutive of a breach of Article 1 of Protocol No. 1. It was obvious that re‑opening had been made contingent on prerequisites whose fulfilment was to be determined by the courts. One of these had been for the confiscation judgments not to have been reviewed in cassation proceedings. However, in each of the applicants’ cases the Supreme Court of Cassation had found this prerequisite lacking. In any event, even if the applicants had been able to obtain re‑opening, one could not conjecture as to whether the confiscation judgments would ultimately have been set aside.
72. The applicants submitted that while they could not have expected the restoration of their property, which had been modified after its nationalisation, they could have legitimately expected the payment of compensation for it under the 1992 restitution legislation, as amended in 1997. They had met all of the prerequisites for such compensation and had duly applied to receive it. This legitimate expectation, which had amounted to a possession within the meaning of Article 1 of Protocol No. 1, had been based on several factors. Firstly, it had found support in the Supreme Court of Cassation’s binding interpretative decision, where it had ruled that title to confiscated property had been vested automatically in its former owners when the 1997 amendment to the 1992 Restitution Act had entered into force, regardless of the fact that this amendment had later been declared unconstitutional. Secondly, it had been based – as regards the factory – on the fact that property taken under the 1947 Nationalisation Act could not be seized for a second time pursuant to subsequent judgments made under the 1946 Confiscation Act. Thirdly, it had been based on the Supreme Administrative Court’s earlier ruling that requests for compensation under the 1997 Compensation Act were to be determined on the basis of the law as it stood when they had been lodged – an opinion which found full support in the prevailing principles of civil procedure.
73. In the applicants’ view, the 1997 amendment, as authoritatively construed by the Supreme Court of Cassation, had not created a conditional claim; it had given rise to an existing right which did not depend on a future favourable judicial decision. The administrative courts should not have revisited the question – already settled by the Supreme Court of Cassation – whether or not the applicants were entitled to compensation, but should have merely determined its amount.
74. The applicants finally argued that as a result of the administrative courts’ rulings in their cases their legitimate expectation had been frustrated. These rulings, which had amounted to interferences with their right to peaceful enjoyment of their possessions, had failed to take into account the position adopted by the Supreme Court of Cassation. As a result, they could not obtain any compensation for the properties taken from their ancestors, which upset the fair balance between their rights and the public interest, and made them bear a special burden.
2. The Court’s assessment
75. According to the Court’s settled case‑law, applicants may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to their “possessions” within the meaning of that provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicants can argue that they have at least a “legitimate expectation” of obtaining effective enjoyment of a property right (see, among other authorities, Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII; Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII; Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX; Von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74 (c), ECHR 2005‑V; and, more recently, Bata v. the Czech Republic (dec.), no. 43775/05, 24 June 2008).
76. It is clear that this case does not concern the applicants’ “existing possessions”, as the properties belonging to their ancestors were taken in the 1940s and 1950s, long before the entry into force of the Convention and Protocol No. 1 in respect of Bulgaria on 7 September 1992. Deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of “deprivation of a right” (see Malhous; Kopecký, § 35 (a); and Von Maltzan and Others, §§ 74 (a) and 79‑82, all cited above).
77. It remains to be determined whether the applicants could be said to have acquired a “legitimate expectation” of obtaining restitution of the properties taken from their ancestors or compensation for them.
78. The Court has previously accepted that legislation enacted or in force after the ratification of the Convention and Protocol No. 1 and providing for full or partial restoration of property confiscated under a previous regime, or compensation in lieu thereof, may be regarded as giving rise to a new property right protected by Article 1 of Protocol No. 1 for those satisfying the conditions for entitlement (see Von Maltzan and Others, cited above, § 74 (d) in fine, citing Broniowski v. Poland [GC], 31443/96, § 125, ECHR 2004‑V). In 1992 and 1997 the Bulgarian legislature enacted such statutes (see paragraphs 42‑44 above). The Court must therefore determine whether the applicants satisfied the various conditions for entitlement.
79. The Court observes at the outset that despite the Supreme Court of Cassation’s statements in the decisions denying re‑opening (see paragraphs 14, 27, 32 and 37 above) and in its interpretative decision of 29 June 1999 (see paragraphs 48 and 49 above), it does not seem that the applicants could seek the return of the properties taken from their ancestors, as they had not remained intact (see paragraphs 11, 26, 31 and 36 above). On the one hand, this physically prevented them from being restored. On the other, physical integrity was one of the express prerequisites for restitution under the 1992 Restitution Act (see paragraph 42 above). Thus, the applicants’ “possessions”, if any, were, as pointed out by the administrative courts (see paragraphs 15, 17, 28, 33, 38 and 39 above), solely their alleged entitlements to compensation under the 1997 Compensation Act (see Malhous, cited above). Indeed, the applicants conceded this point (see paragraph 72 above).
80. This being clarified, the Court will now examine whether the applicants did indeed have a “legitimate expectation” of obtaining compensation under the 1997 Compensation Act, as initially enacted or subsequently modified (see paragraphs 43‑46 above). The analysis of this question requires that their ancestors’ properties be divided in two groups: those taken wholly or in part under the 1947 Nationalisation Act, and those taken pursuant to the 1946 Confiscation Act. This is so because the Constitutional Court’s decision declaring the 1997 amendment to the 1992 Restitution Act unconstitutional did not affect the right to compensation in respect of the former, but solely in respect of the latter (see paragraphs 44 and 45 above).
81. From the materials in the case file it appears that the only properties arguably taken under the 1947 Nationalisation Act were those belonging to the partnership formed by the ancestors of Mr Slavov and the applicants in no. 16059/03. After examining this point in detail, the national courts found that only part of these properties had been nationalised under this Act. They further found, contrary to what was being asserted by the applicants, that no compensation was due in respect of them, because the net worth of the partnership which had owned them had not been positive (see paragraphs 22 and 23 above), whereas the positive net worth of the nationalised undertaking was an absolute precondition for the right to compensation under the 1997 Compensation Act (see paragraph 43 above). The Court has already found that this ruling was not arbitrary (see paragraph 62 above). There is therefore no basis on which it could reach a different conclusion (see Jantner v. Slovakia, no. 39050/97, § 32, 4 March 2003; and Kopecký, cited above, §§ 56 and 58). Bearing in mind that no “legitimate expectation” can be said to arise where there is a dispute as to the correct application of domestic law and the applicants’ submissions are ultimately rejected by the national courts (see Kopecký, cited above, § 50; and Anheuser‑Busch Inc. v. Portugal [GC], no. 73049/01, § 65 in fine, ECHR 2007‑...), the Court concludes that the applicants did not have such an expectation in respect of the properties taken under the 1947 Nationalisation Act.
82. Turning to the remainder of the properties, taken pursuant to judgments made under the 1946 Confiscation Act, the Court observes that Bulgarian law provided for compensation in respect of them only between 22 November 1997, when the 1997 Compensation Act entered into force, and 21 March 1998, when its relevant provision was declared unconstitutional (see paragraphs 44 and 45 above). The point in issue is whether or not this entitlement, which never materialised because the administrative proceedings for obtaining compensation all came to an end after the declaration of unconstitutionality, amounted to a “legitimate expectation”.
83. According to the Court’s case‑law, a “legitimate expectation” relates to the way in which a claim would be treated under domestic law; such expectation must have a sufficient basis in that law, that is, be based on a reasonably justified reliance on a legal act which has a sound legal basis (see Kopecký, cited above, §§ 47 and 52).
84. In the instant case, it is significant that, unlike the right to restitution of property which had remained intact, the right to compensation did not arise ex lege, but was subject to the lodging of requests and their approval by the competent administrative authorities (see paragraphs 42 and 43 above). The applicants could therefore not expect that their right to compensation would materialise before the successful completion of administrative proceedings, which were bound to take some time and in the course of which the authorities would have to verify whether they met the various conditions for entitlement. Some of the applicants – Mr Slavov, Ms Margarita Slavova and her co‑heirs, and Messrs Georgievi – lodged such requests while the proceedings before the Constitutional Court were still underway, whereas the remainder lodged theirs after that court had already declared unconstitutional the provision on which they were based (see paragraphs 15, 17, 28, 33, 38 and 39 above).
85. As far as the latter are concerned, the Court finds that they could not have harboured a “legitimate expectation” of obtaining compensation. Following the Constitutional Court’s decision, the legal situation was settled and it became evident that the 1997 Compensation Act, read in conjunction with the 1992 Restitution Act, no longer gave rise to any entitlement in respect of properties taken under the 1946 Confiscation Act.
86. The Court is not persuaded that even the former could be said to have entertained a “legitimate expectation” of obtaining compensation. At the time when they lodged their requests – 4 and 5 March 1998 – the legal provision serving as basis for them had been under challenge before the Constitutional Court for several months. That court had already declared the challenge admissible and had examined it at a hearing (see paragraph 45 above). The applicants could not have been unaware of these developments, which greatly limited the extent of their expectation.
87. More importantly, it can hardly be said that a legislative enactment which immediately after entering into force was challenged as allegedly contrary to essential constitutional principles – and was later found unconstitutional on this ground – amounted to a sound legal basis within the meaning of the Court’s case‑law. It is true that the Supreme Court of Cassation subsequently stated that the declaration of unconstitutionality had not invalidated that law’s title‑vesting effect (see paragraph 49 above). However, as pointed out by the Supreme Administrative Court, that ruling applied solely to properties which had remained intact and whose restitution could be claimed in civil proceedings, and was not determinative of the existence or otherwise of a right to compensation under the 1997 Compensation Act (see paragraph 39 in fine above). The applicants could not therefore hold a “legitimate expectation” that their claims would be determined in accordance with that law after its invalidation. Nor could they legitimately expect that the determination of their compensation claims would be based on the law as it stood when they had been lodged rather than on the law as it stood when they came up for decision. The Court has already found that the national courts’ rulings to the contrary were not arbitrary or departed from established case‑law (see paragraph 62 above).
88. It is true that where an issue in the general interest is at stake, the authorities are under an obligation to act in an appropriate and consistent manner (see Broniowski, cited above, § 151). It might seem incoherent to raise a hope by enacting a compensation law only to set aside the law and dash the hope shortly thereafter. However, the Court attaches considerable importance to the fact that the provision in issue was not annulled through an extraordinary, ad hoc mechanism, but as a result of the normal operation of the machinery for controlling the constitutionality of statutes. It also observes that these changes in the law took place in the context of a difficult transition from a State‑owned planned economy to a market one. In such a situation a State has a wide margin of appreciation when passing laws intended to redress wrongs committed under a preceding regime (see, among other authorities, Kopecký, cited above, § 36; and Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 113, ECHR 2005‑VI).
89. As regards the subsequently introduced possibility to apply for re‑opening of the confiscation proceedings under section 2(1a) of the 1992 Restitution Act (see paragraph 46 above), the Court observes that all the applicants availed themselves of this opportunity but failed, as the Supreme Court of Cassation found that they did not meet the requisite conditions (see paragraphs 14, 27, 32 and 37 above). Even if that court’s rulings that the applicants did not have a sufficient legal interest to seek re‑opening may seem questionable, the Court observes that it grounded its refusals mainly on another factor, namely that the confiscation judgments had been reviewed in cassation proceedings. Under the relevant provisions of the 1974 Code of Criminal Procedure, to which section 2(1a) expressly referred, this was an absolute bar to re‑opening (see paragraph 48 above). It is true that this formal test might have minimised the fact that the cassation proceedings which occurred in the 1940s and 1950s were possibly as unfair as those at first instance. However, according to the Court’s case‑law, the Convention imposes no specific obligation on the Contracting States to provide redress for wrongs or damage caused prior to ratification (see, among others, Kopecký, cited above, § 38). Nor does Article 1 of Protocol No. 1 restrict their freedom to choose the conditions under which they agree to indemnify those concerned (see Von Maltzan and Others, cited above § 77).
90. In view of the foregoing considerations, the Court concludes that the applicants did not have a “legitimate expectation” of obtaining compensation in respect of the properties taken under the 1946 Confiscation Act either.
91. It follows that their complaints under Article 1 of Protocol No. 1 to the Convention are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
E. Complaints under Article 14 of the Convention
92. In respect of their complaints that they had been discriminated against in the exercise of their rights under Article 1 of Protocol No. 1 to the Convention (see paragraphs 53 (d) and 54 (c) above) the applicants relied on Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
93. Having regard to the fact that Article 14 of the Convention is not autonomous and to the conclusion that Article 1 of Protocol No. 1 is not applicable, the Court considers that Article 14 cannot apply in the instant case (see Gratzinger and Gratzingerova, cited above § 76; Polacek and Polackova v. the Czech Republic (dec.), no. 38645/97, § 69, 10 July 2002; Jantner, cited above §§ 40 and 41; and Von Maltzan and Others, cited above, §§ 116 and 117).
94. It follows that these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35§ 4.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to strike the case out of the list in so far as it concerns Ms Velichka Radkova Bicheva, Ms Elitsa Vasileva Mineva and Ms Maria Kostadinova Mineva;
Declares the remainder of the applications inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
[1]. The initial application was lodged only by Ms Margarita Ganeva Slavova and Ms Lilyana Ganeva Slavova. The remainder of the applicants, including Mr Slavi Georgiev Slavov, the applicant in no. 20612/02, featured only in a subsequent letter dated 18 November 2004 and raising additional complaints (see paragraph 54 below).
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