Communicated on 16 March 2015
FOURTH SECTION
Application no. 50506/09
Alexander Petkov TOMOV and Mariana Petrova NIKOLOVA
against Bulgaria
lodged on 9 June 2009
STATEMENT OF FACTS
The applicants, Mr Alexander Petkov Tomov and Ms Mariana Petrova Nikolova, are Bulgarian nationals, who were born in 1950 and 1957 respectively. Mr Tomov lives in the village of Kokalyane and Ms Nikolova lives in Sofia. The applicants are represented before the Court by Mr Y. Grozev and Ms N. Dobreva, lawyers practising in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 19 February 1993 the applicants bought a plot of land of 1,000 square metres in the village of Kranevo. The seller, Mr O., had acquired the property in 1967 from the then-existing agricultural co-operative, in exchange of another plot of land of his.
The applicants held and used the land until 2003, when other persons took possession of it. The applicants discovered then that in 1991 the heirs of a Mr K. had instituted restitution proceedings in respect of the same plot under the relevant provisions of the Agricultural Land Act (“the ALA”, see Relevant domestic law below), and that their restitution request had been allowed in a court judgment of 7 December 1995 and in a decision of the competent land commission of 4 April 1996. After that the heirs of Mr K. transferred the land to the persons who had taken possession of the plot.
On an unspecified date in 2003 the applicants brought against these persons a rei vindicatio action.
In a judgment of 25 May 2005 the Balchik District Court dismissed their claim. It relied on the provision of section 10(13) of the ALA (see Relevant domestic law below), concluding that of the two rival claims to the same land the law gave priority to that of the restitution owners.
Upon appeal, on 25 January 2007 the Dobrich Regional Court reversed and allowed the applicants’ action. It considered in particular that as section 10(13) of the ALA and section 18z(3) of the Regulations for the ALA’s implementation had only been introduced in 1997, that is after the restitution decision in favour of the heirs of Mr K. and after the applicants had bought the plot of land, these provisions were inapplicable to the case.
Upon further appeal, in a final judgment of 12 December 2008 the Supreme Court of Cassation quashed the Regional Court’s judgment and dismissed the applicants’ rei vindicatio claim. It too relied on section 10(13) of the ALA but, unlike the lower court, was of the view that the provision had to be considered to be applicable as of the ALA’s entry into force in 1991, because it was merely clarifying the general restitution provisions existing earlier. As to the exception contained in section 18z(3) of the Regulations for the ALA’s implementation, the Supreme Court considered it inapplicable to the case, since the applicants had bought the plot claimed by them in 1993, that it after the ALA’s entry into force.
B. Relevant domestic law
The Agricultural Land Act (“the ALA” Закон за собствеността и ползването на земеделските земи) was adopted in 1991. It entitled persons, or their heirs, whose land had been collectivised, to request under certain conditions the restoration of their ownership rights.
At the time of its adoption the ALA did not expressly address situations where third parties had acquired property to formerly collectivised land.
Section 10(13) of the Act, adopted in 1997, provided that former owners’ rights were to be restored even in cases where the land at issue had been sold or transferred to third parties. Those third parties could not rely on acquisitive prescription.
An exception to the above rule was contained in section 18z(3) of the Regulations for the ALA’s implementation, also adopted in 1997, which precluded the possibility of restitution where third parties had acquired the land in exchange of another plot and, in addition, the land had been the subject of further transactions or had been constructed upon.
COMPLAINTS
The applicants complain under Article 1 of Protocol No. 1 and Article 13 of the Convention that they were unfairly deprived of their property. They point out that in 1993 when they bought the plot of land there was nothing to alert them to the fact that the property could also be the subject of a restitution claim, and that they could not have foreseen the introduction of section 10(13) of the ALA, which in 1997 allowed the taking of private property to satisfy restitution claims. Lastly, the applicants consider that they were made to bear excessive burden because they could claim no compensation.
QUESTIONs TO THE PARTIES
Have the applicants been deprived of their property in accordance with the requirements of Article 1 of Protocol No. 1? In particular, was the applicable domestic law foreseeable, and accordingly was the deprivation of the applicants of their property “subject to the conditions provided for by law”? In addition, did the fact that the applicants were not entitled to any compensation mean that the fair balance required under Article 1 of Protocol No. 1 had not been achieved (see, mutatis mutandis, 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)?
Full & Egal Universal Law Academy