FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 41661/05
by Anani Vladimirov YAVASHEV and Others
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 15 March 2011 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 14 November 2005,
Having deliberated, decides as follows:
THE FACTS
The first and second applicants, Mr Anani Vladimirov Yavashev and Mr Stefan Vladimirov Yavashev, are Bulgarian nationals who were born in 1932 and 1938 respectively and live in Sofia. The third applicant, Mr Christo Vladimirov Javasheff, is a national of the United States of America who was born in 1935 and lives in New York, USA.
They are represented before the Court by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background
The applicants’ father owned a factory in the town of Gabrovo which was nationalised in 1947. During the following years the state authorities built an additional storey on the main building and turned the factory into a school. In 1964 it was included in the state property register.
In 1983 the father died, leaving the three applicants as his only heirs.
Pursuant to the enactment of the Law on the Restitution of Ownership of Nationalised Real Property (“the Restitution Act”) in February 1992, the applicants lodged a request with the mayor of Gabrovo for the real estate to be struck off the state property register.
On 30 November 1992 the mayor considered that the conditions for restitution had been met and that the applicants had become owners by virtue of the ex lege effect of the Restitution Act and granted the request. The real estate in question consisted of a plot of land of 3,730 sq. m, the first floor of a two-storey main building of 620 sq. m (the second floor, which had been constructed by the authorities, remained the property of the municipality), a one-storey building of 200 sq. m, and a one-storey building of 60 sq. m.
It appears that in the following years the municipality continued using the school, with the applicants’ consent.
In a letter of 13 March 1995 the mayor invited the second applicant to a meeting, allegedly to negotiate the future amount of the rent which was to be paid by the municipality. The outcome of the meeting is not specified by the applicants.
On 28 March 1996 the applicants obtained a notary deed to ascertain their title to the real estate.
Following the adoption of the Municipal Property Act, which entered into force in June 1996, the municipality issued a municipal property act for their title over the second floor of the main building.
In a letter of 3 September 1996 the mayor informed the applicants that the municipality intended to initiate a procedure for expropriation or purchase of the real estate. When the applicants objected the initiative was abandoned.
By virtue of a contract of 3 August 1998 the applicants granted the use of the real estate to the municipality at the stipulated price of 3,646,000 old Bulgarian levs (BGL) per month. The municipality also consented to pay the applicants compensation in the amount of BGL 34,637,000 for the use of the real estate between 15 October 1997 and 3 August 1998.
On 21 January 1999 the municipal council adopted a decision to institute a procedure for purchase of the real estate. Apparently the decision was subsequently abandoned.
On 17 May 2001 the municipal council adopted another decision for the purchase of the real property. The price was set at the equivalent of 180,000 United States dollars (USD).
2. The administrative proceedings against the municipal council’s decision of 17 May 2001
On 22 June 2001 the regional governor of Gabrovo issued an order suspending the execution of the decision of the municipal council for the purchase of the real estate. The order stated that the school served the needs of the local community and was municipal public property, it had never been restored to the applicants and the mayor’s order for it to be struck off the state property register was erroneous. The regional governor also lodged a request with the Gabrovo Regional Court for the municipal council’s decision to be overturned.
In a decision of 31 October 2001 the Gabrovo Regional Court dismissed the governor’s request, finding that his assertions that the plot had not been restored to the applicants and had always belonged to the municipality were ill-founded. In a final judgment of 15 July 2002 the Supreme Administrative Court quashed the decision of the municipal council on the purchase of the real estate. The court held, inter alia, that the school was municipal public property by virtue of the Constitution of 1991 and the interpretative decision no. 19 of 1993 of the Constitutional Court. The court further stated that as it had not been possible to effectively restore the title to the applicants they had a right to compensation under the Law on Compensation for Owners of Nationalised Real Property of 1997 (“the Compensation Act”).
3. Civil proceedings for the determination of the applicants’ title
On 1 April 2001 the municipality suspended payment of the rent.
On an unspecified date in 2002 the applicants brought an action against the municipality before the Gabrovo District Court for the unpaid rent. In the same proceedings the municipality lodged a declaratory counterclaim, requesting the court to recognise its title to the real estate.
In a judgment of 3 July 2002 the District Court granted the applicants’ and dismissed the municipality’s claim. Following an appeal by the municipality, in a judgment of 20 December 2002 the Gabrovo Regional Court confirmed the lower court’s judgment.
The municipality lodged a cassation appeal. In a judgment of 14 October 2004 the Supreme Court of Cassation granted the municipality’s claim in part. The court stated that the municipality had reconstructed the main building in such a way that a new building, different from the nationalised one, had been created. The court noted that in view of that the main building could not have been restored to the applicants and the title had rested with the municipality. The judgment in this part was final.
For the rest of the claim, as regards the two other smaller buildings and the plot of land, the court remitted the case with instructions to the Regional Court for new examination.
In a judgment of 7 October 2005 the Gabrovo Regional Court dismissed the applicants’ claim, granted the municipality’s declaratory claim and declared the mayor’s order for the real estate to be struck off the state property register null and void.
The applicants lodged a cassation appeal against the judgment. They requested the court, inter alia, to award them costs against the municipality, irrespective of the outcome of the proceedings.
In a final judgment of 12 December 2007 the Supreme Court of Cassation upheld the judgment of 7 October 2005 and declared that the property in question had always belonged to the municipality. The court stated that the real estate had been municipal public property at the time the Restitution Act entered into force, and was therefore not subject to restitution. It noted that the subsequent enactment in 1996 of the State Property Act and the Municipal Property Act had not on their own account transformed the state and municipal property into private and public property, as the transformation had already been envisioned in the Constitution of 1991. The laws in question solely provided for detailed regulation of the different types of property. The court further stated referring to the Compensation Act, that as the real estate could not in practice have been returned to the applicants they had been entitled to apply for compensation.
The court also stated that pursuant to the Code of Civil Procedure the court costs were to be borne by the applicants.
4. Further developments
Following the judgment of the Supreme Court of Cassation of 14 October 2004 in respect of the main building, in 2005 the municipality brought an action for unjust enrichment against the applicants with the Sofia City Court. It requested the return of the allegedly wrongly paid rent in the amount of 151,207 new Bulgarian levs (BGN) plus the relevant interest for the period between 3 August 1998 and 31 March 2001. According to the applicants’ submissions the proceedings are still pending before the Sofia City Court. The applicants also claim that an attempt had been made to reach agreement between the parties, but to no avail. No further information on the matter was submitted to the Court.
On 24 November 2005 the applicants lodged a request for compensation with the regional governor under the Compensation Act. In a decision of 25 January 2006 the regional governor rejected the request, stating that the applicants had missed the one-year statutory deadline, which had expired in 1998. The applicants did not appeal against the decision.
On 27 March 2008 the applicants sent a letter to the chair of the municipal council and to the mayor of Gabrovo with a request for compensation. Following meetings on the matter with representatives of the municipal council, on 25 May 2008 the applicants sent another letter to the chair of the municipal council and the mayor, again raising the request for compensation. According to the applicants’ submissions the authorities took no action.
B. Relevant domestic law and practice
The relevant domestic law and practice has been summarised in the court’s decisions in the cases of Ivanova and Others v. Bulgaria (dec.), and Velikin and Others v. Bulgaria (dec.) (nos. 66467/01 and 28936/03, 1 December 2009).
COMPLAINTS
1. The applicants complained under Article 1 of Protocol No. 1 and Article 8 of the Convention that, as a result of the interpretation of the law given by the domestic courts in the judgments of the Supreme Court of Cassation of 14 October 2004 and 12 December 2007, they had been unlawfully deprived of the real estate. They also complained that as the judgments had been delivered after the deadline for compensation set forth in the Compensation Act they had been deprived of the opportunity to apply for it.
2. The applicants complained, relying on Articles 6 § 1 and 13, that the domestic court erroneously imposed on them the payment of the court costs.
3. The applicants also complained, relying on Article 6 § 1, about the manner in which the Supreme Court of Cassation had interpreted and applied the law in its judgment of 14 October 2004.
4. The applicants further complained under Article 6 § 1 that they had not had the opportunity to participate in the proceedings before the administrative courts against the municipal decision of 17 May 2001 to purchase the real estate.
THE LAW
1. The applicants complained under Article 1 of Protocol No. 1 that following the judgments of the Supreme Court of Cassation of 14 October 2004 and 12 December 2007 they had been deprived of their real estate, namely the plot of land, the main building and the two smaller building, and that they had not received any compensation in return.
2. As regards the alleged deprivation of the plot of land and the two accessory buildings, the final judgment on which was delivered on 12 December 2007, the Court considers that on the basis of the case file it cannot determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. As regards the rest of the complaint, namely that they had been deprived of the main building, the Court notes that the final domestic decision within the meaning of Article 35 § 1 is the judgment of the Supreme Court of Cassation, which was delivered on 14 October 2004, more than six months before the date of introduction of the application with the Court.
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.
4. The Court has examined the remainder of the applicants’ complaints as submitted by them. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning the alleged deprivation of their property, namely the plot of land and the two accessory buildings;
Declares the remainder of the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy