FOURTH SECTION
DECISION
Application no. 44244/06
Veselin Yordanov SYAROV
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 9 July 2013 as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 9 October 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Veselin Yordanov Syarov, is a national of Bulgaria and France, who was born in 1965 and lives in Orsay, France. He was represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms N. Nikolova, and then by Ms M. Kotseva, of the Ministry of Justice.
3. On 21 October 2010 the French Government was informed of their right to intervene in the proceedings in accordance with Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court. On 26 October 2010 they informed the Court that they would not avail themselves of this possibility.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. In 1991 Parliament enacted the Agricultural Land Act 1991 (“the ALA”, see paragraph 25 below) which provided for the restitution, under certain conditions, of formerly collectivised agricultural land.
6. On 8 January 1993 the Sliven agricultural land commission recognised the right of the applicant’s grandfather, Mr Andon Demirev, to land as compensation in lieu of formerly collectivised land, to be transferred to him following the preparation of a “land redistribution plan” for the village of Krushare.
7. The legal effect of that decision, in so far as is relevant to the present case, was to recognise Mr Demirev’s right to obtain, under a land redistribution plan to be drawn up at a later date, a plot or plots of land which would correspond in size, quality and value to two plots of 1,000 square metres which had been owned by him and his ancestors prior to the collectivisation process.
8. Mr Demirev passed away in 1997.
9. In August 1998 the land redistribution plan for Krushare was published.
10. By decision of 2 September 1998, the land commission, referring to its decision of 8 January 1993 and to the plan, allocated several plots to Mr Demirev’s heirs. These included a plot measuring 1,999 square metres in an area known as Selska Koria, newly created under the land redistribution plan in lieu of the two 1,000 square metre plots.
11. On 17 March 1999 the Ministry of Agriculture wrote to the land commission, seeking the review of a certain number of restitution decisions. It appears that the issue arose in the context of the entry into force in 1997 of a new law concerning the restitution of forests and forestry land, under which a higher level of proof of ownership was imposed on those claiming the restitution of land expropriated as part of the collectivisation process.
12. By decision of 30 July 1999 the land commission, referring to the above-mentioned letter and to section 14(7) of the ALA (see paragraph 27 below), amended its earlier decision of 8 January 1993 and refused to recognise the property rights of Mr Demirev’s heirs in respect of the two above-mentioned 1,000 square metre plots.
13. On 12 November 1999 a revised land redistribution plan for Krushare was published in the Official Gazette. It appeared that the plot of 1,999 square metres that had been allocated to Mr Demirev’s heirs was marked on the plan as “State forestry fund”.
14. The decision of 30 July 1999 was not served on Mr Demirev’s heirs.
15. On 4 October 2000 the heirs concluded a partition agreement, by which the plot of 1,999 square metres in Selska Koria was allocated to the applicant’s mother. On 21 December 2000 she transferred it to the applicant.
16. Until 2004 the applicant enjoyed undisturbed possession of the plot. However, the same year he was told by local officials that the land was not his and actually belonged to the State.
17. Having become aware of the decision of 30 July 1999, on 30 October 2004 the applicant applied for judicial review. In the meantime he abandoned the plot of 1,999 square metres.
18. On 9 November 2005 the Sliven District Court declared the decision of 30 July 1999 null and void. The court found that the statutory time-limit within which it had been possible, under section 14(7) of the ALA, to amend the decision of 8 January 1993, had expired in 1997. The decision recognising the property rights of the applicant’s ancestors could not be amended by the administrative authorities after that period. It followed that by amending the decision they had acted in excess of their powers.
19. That judgment was upheld by the Sliven Regional Court on 7 February 2006.
20. On 13 April 2006 the Sliven Agriculture and Forestry Department, which had replaced the land commission following legislative amendments, issued a further decision concerning the land at issue. The decision stated that although the right to restitution was “recognised”, actual restitution of the land was refused. It further stated that compensation should be awarded in lieu of restitution.
21. The applicant applied for judicial review of that decision. On 27 November 2006 the Sliven District Court declared it null and void, noting that, despite the judgment of 9 November 2005, the Department had issued a further decision in excess of its powers, which appeared to be an attempt to vary vested restitution rights. Upon an appeal by the Agriculture and Forestry Department, on 29 May 2007 the Sliven Regional Court upheld the lower court’s judgment.
22. On 9 August 2007 the Agriculture and Forestry Department issued a decision ordering the restitution “in actual boundaries” of the two initially claimed separate plots of 1,000 square metres, as described in the land commission’s decision of 1993, to Mr Demirev’s heirs. The Department expressly stated that it annulled its earlier decision of 13 April 2006.
23. The decision of 9 August 2007 was served on the applicant on 5 September 2007. It appears that he has neither formally challenged it nor sought its enforcement, which required him to participate in the photography of the land for mapping purposes.
24. After 2007 the applicant complained to the Ombudsman and visited the local municipality, where he requested a certified plan of the plot of 1,999 square metres in Selska Koria allocated to Mr Demirev’s heirs in 1998. He was allegedly told that he would not receive that plot.
B. Relevant domestic law
25. The Agricultural Land Act 1991 (Закон за собствеността и ползването на земеделските земи – “the ALA”) provides, inter alia, that individuals, or their heirs, whose land has been collectivised, may request the restoration of their ownership rights under certain conditions. On the basis of certain statutory criteria, such as whether or not the plot’s original boundaries still exist or are traceable, restitution can be carried out, “in actual boundaries” or, alternatively, newly created plots of land can be allocated using a land redistribution plan.
26. Until 2002, the administrative bodies competent to decide on restitution requests under the ALA were the agricultural land commissions. In 2002 they were replaced by local Agriculture and Forestry Departments, renamed in 2008 as Agricultural Departments.
27. Under section 14(7) of the ALA and the transitional provisions to the 1995 law which introduced that provision, amendments to restitution decisions taken by land commissions were permitted within two years of the decision being taken. As regards decisions which had already been adopted, amendments were possible within two years of the provision entering into force, namely until 1997.
28. The remaining relevant provisions of the ALA and the Regulations for its implementation have been summarised in the Court’s judgments in the cases of Lyubomir Popov v. Bulgaria (no. 69855/01, §§ 83-95, 7 January 2010) and Sivova and Koleva v. Bulgaria (no. 30383/03, §§ 29‑44, 15 November 2011).
COMPLAINTS
29. Relying on Article 1 of Protocol No. 1 and Article 13 of the Convention, the applicant complained that he had been deprived of the plot of 1,999 square metres and had been unable to retake its possession, owing to an abuse of power on the part of the local authorities. He argued that the administrative bodies had refused to comply with the Sliven District Court’s judgments of 9 November 2005 and 27 November 2006, as upheld by the Sliven Regional Court.
THE LAW
30. The Court is of the view that the complaints raised by the applicant are most appropriately examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. These provisions, in so far as relevant, read:
Article 6
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“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.”
A. Arguments of the parties
31. The Government contested the complaints. They argued that the applicant had failed to exhaust the domestic remedies available, because he had failed to bring an action in tort against the State. They also submitted that the applicant’s grandfather had not, at the material time, duly established his property rights, but that the land commission, later the Agriculture and Forestry Department, had nevertheless been bound by its decision of 1993 allowing his restitution claims. Those claims had been satisfied in accordance with the Department’s decision of 9 August 2007 for restitution “in actual boundaries”. Following that decision, it had been up to the applicant or any other of Mr Demirev’s heirs to submit a request and thus bring about the decision’s enforcement.
32. The applicant disagreed. He contended that the land commission, later the Agriculture and Forestry Department, had refused to comply with the Sliven District Court’s judgments of 9 November 2005 and 27 November 2006. That violated his right of access to a court, since full compliance with the judgments would have meant returning to him the plot of 1,999 square metres. He also submitted that he had validly acquired the plot of 1,999 square metres and had been deprived of it in contravention of domestic law. He pointed out that even the Government had acknowledged that the restitution decisions of 1993 and 1998 should still have been in force and binding. He did not make any specific comments about the decision of 9 August 2007 and the situation occurring after that time.
B. The Court’s assessment
33. The Court notes the Government’s objection of non-exhaustion of domestic remedies (see paragraph 31 above). However, it considers that it is not necessary to examine it, seeing that it finds the complaints in the present case inadmissible in any event for the reasons given below.
1. Complaint under Article 6 § 1 of the Convention
34. The applicant alleged that the Sliven Agriculture and Forestry Department had refused to comply with the District Court’s judgments of 9 November 2005 and 27 November 2006, upheld by the Regional Court on 7 February 2006 and 29 May 2007 respectively (see paragraphs 18-19 and 21 above). The effect of the judgments was to declare the decisions of the land commission and the Agriculture and Forestry Department of 30 July 1999 and 13 April 2006 respectively (see paragraphs 12 and 20 above) null and void, on the grounds that they had acted in excess of their powers by amending the decision of 8 January 1993 (see paragraph 6 above).
35. The applicant further submitted (see paragraph 32 above) that full compliance with the judgments of 9 November 2005 and 27 November 2006 could only involve the return to him of the plot of 1,999 square metres, as per the land commission’s decision of 2 September 1998. However, the Court is not convinced that the judgments declaring decisions taken by the land commission and the Agriculture and Forestry Department null and void necessitated any further action for their enforcement. Nor do their operative parts refer to any obligation in this regard. The present situation therefore does not concern failure to enforce a final and favourable decision of the national courts.
36. It follows that the complaint under Article 6 § 1 is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. Complaint under Article 1 of Protocol No. 1
37. The applicant also complained that the authorities’ decision to deny him title to the plot of 1,999 square metres amounted to an unlawful deprivation of property.
38. The Court notes, firstly, that in its earlier judgment in the case of Lyubomir Popov, (cited above), it has already found that the decisions of the land commissions cannot be considered final acts establishing the rights to ownership with finality (§ 117). It further notes that in the present case the applicant ceded possession of the plot of 1,999 square metres in the absence of any formal decision or procedure on the part of the State to seek formal or de facto eviction from the plot transferred to him after the land commission’s decision of 1999 (see paragraph 12 above). In these circumstances the Court is not convinced that the present case concerns deprivation of property, as submitted by the applicant.
39. The Court observes, in addition, that following the Department’s decision of 9 August 2007 (see paragraph 22 above), the Department eventually allocated to the applicant’s grandfather’s heirs precisely the same land he had been in possession of prior to the collectivisation and had initially claimed under the ALA, namely the two plots of 1,000 square metres each.
40. The applicant did not expressly contest this subsequent modification of his grandfather’s heirs’ rights under the ALA, nor explained why he did not accept it. In any event he did not challenge the decision of 9 August 2007 before the domestic courts (see paragraph 23 above) and made no specific comments in that regard before the Court (see paragraph 32 above). In these circumstances it is not the Court’s task to assess whether this modification of the applicant’s property rights was, as claimed by him, arbitrary.
41. It follows that this part of the application is manifestly ill-founded as well and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy