FOURTH SECTION DECISION

Transcription

1 FOURTH SECTION DECISION Application no /05 Maria Stefanova TANTILOVA and Anka Stefanova TANTILOVA against Bulgaria The European Court of Human Rights (Fourth Section), sitting on 13 January 2015 as a Chamber composed of: Guido Raimondi, President, Päivi Hirvelä, Ledi Bianku, Nona Tsotsoria, Zdravka Kalaydjieva, Paul Mahoney, Faris Vehabović, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 20 October 2005, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, and the additional observations submitted by the parties after the Court invited them to do so on 12 July 2013, Having deliberated, decides as follows: THE FACTS 1. The applicants, Ms Maria Stefanova Tantilova and Ms Anka Stefanova Tantilova, are Bulgarian nationals, who were born in 1923 and 1922 respectively and live in Plovdiv. They were represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 2. The Bulgarian Government ( the Government ) were represented by their Agents, Ms M. Kotseva and Ms L. Gyurova, of the Ministry of Justice.

2 2 TANTILOVI v. BULGARIA DECISION A. The circumstances of the case 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants mother owned a building and a plot of land of 1,370 square metres in Plovdiv. The property was expropriated in 1975, against the payment of monetary compensation of 1,911 old Bulgarian levs (BGL). Initially, the plot was designated for the creation of a public garden and in 1984 it was allocated for the construction of a street. However, none of these projects took shape. In 1983 the municipal authorities rented the property to the Evangelical Pentecostal Church of Plovdiv. 5. On 2 April 1992, following the adoption of the 1992 Restitution Act (see paragraph 17 below), the applicants requested the mayor of Plovdiv to quash the expropriation order and restore their property rights to the plot of land and the building on it. On an unspecified date the mayor rejected their request, reasoning that the building previously owned by the applicants mother had been pulled down and that a new building used as a church had been erected in its place, and that the area around this new building had been developed. 6. The applicants sought judicial review of the above decision. 7. In a decision of 10 May 1994 the Plovdiv Regional Court set aside the mayor s decision and quashed the 1974 expropriation order, finding that the preconditions for restitution under the Restitution Act had been met. None of the projects for which the property had been taken, namely the creation of a public garden and the construction of a street, had been pursued. The domestic court noted in addition that the expropriated building existed and, in so far as in 1983 it had been reconstructed to serve as a church, such reconstruction had not been envisaged by the respective urban development plans. 8. In the meantime, on 27 June 1993 the applicants paid back the sum received in compensation at the time of expropriation, to allow the quashing of the expropriation order to take effect. As a result of inflation and the depreciation of Bulgarian currency, at that time the sum represented about 115 German marks (DEM). On 15 February 1995 the mayor of Plovdiv ordered the strike out of the plot of land from the register of municipal properties, in accordance with the decision of the Plovdiv Regional Court, but refused to do so in regard of the building erected by permission no. 124 of 20 June The applicants were thus unable to take possession of the property, which continued to be occupied by the Evangelical Pentecostal Church of Plovdiv. On 17 June 1996, the applicants brought a rei vindicatio action against the Church. Initially the claim was also directed against the Union of the Evangelical Pentecostal Churches in Bulgaria; however, subsequently the proceedings in respect of it were dropped.

3 TANTILOVI v. BULGARIA DECISION In the course of the proceedings, the Evangelical Pentecostal Church (and, in the beginning, the Union of the Evangelical Pentecostal Churches) argued that the preconditions for restitution had not been met, in particular because the building formerly owned by the applicants mother had been demolished as it had been entirely worn out, and the Church had built a completely new and bigger building, through donations from its parish and according to the approved construction plans. In order to establish these facts, the Church presented plans and called witnesses. Still, the Church conceded that the land and the building it was using were municipally-owned and that it rented the property. In the event that the courts would find that the property was to be returned to the applicants, the Church claimed that the applicants had to be ordered to reimburse the cost of the improvements made by it, and requested to be allowed to retain the property until payment. 11. On 21 February 1997 the Plovdiv Regional Court, which examined the case at first instance, allowed a request by the Evangelical Pentecostal Church of Plovdiv for the Plovdiv municipality to be joined to the proceedings as a third party. The municipality also argued in the course of the proceedings that the building claimed by the applicants was a new one, which meant that the preconditions for its restitution were not satisfied. 12. On 4 March 1999 the Regional Court allowed the applicants claims, finding, first, that they were the owners of the plot of land on the strength of the decision of 10 May 1994, and, second, that they were also the owners of the new building, which had been erected without the requisite re-allocation of the plot for that purpose and all necessary authorisations, and property to which had to follow property to the land. It found further that the defendant church was occupying the property without any valid legal basis. 13. On 22 December 2000 the Plovdiv Court of Appeal quashed that judgment and remitted the case to the Regional Court, which once again allowed the applicants claim in a judgment of 13 January Again, it found that the applicants were the owners of the land and the building and that, after the restitution, the defendant church was occupying them without any legal basis. 14. Upon an appeal by the defendant church, on 3 May 2004 the Plovdiv Court of Appeal quashed the Regional Court s judgment and allowed the applicants claim in part. It found that in 1983, when it had been rented out to the defendant church, the building taken from the applicants mother had been pulled down and a much bigger, entirely new building had been built; it had become the property of the State, later of the municipality. It was irrelevant under the Restitution Act whether the new building s construction had been duly authorised or not. Accordingly, the new building, the land on which it was standing, and the necessary adjoining land, totalling 744 square metres, could not be subject to restitution. On the other hand, the applicants property rights had been validly restored in respect of the

4 4 TANTILOVI v. BULGARIA DECISION remaining 626 square metres of the land and the defendant church had to vacate that part of the property. 15. As to the decision of 10 May 1994, the Court of Appeal noted that it did not have res judicata effect as regards the property dispute. 16. The applicants appealed on points of law. In a final judgment of 29 April 2004 the Supreme Court of Cassation dismissed their appeal. It confirmed the Court of Appeal s finding that the building claimed by the applicants was not the one taken from their mother, but a new one, erected in 1983 and thus not subject to restitution. It held in addition as follows: The main issue in the case, as raised in the appeal on points of law is: what is the significance for the legal dispute of the [decision of 10 May 1994]? The Supreme Court of Cassation finds that the Court of Appeal was right to reach the conclusion that the decision at issue had been given in administrative proceedings concerning the revocation of the expropriation. It does not have res judicata effect in respect of the dispute concerning the ownership of the property at issue... Of course, in the present litigation the court is obliged, on the basis of the evidence presented, to establish all the circumstances related to the alleged property rights disputed by the parties. B. Relevant domestic law and practice 1. Restitution under the Restitution Act The Restitution of Property Expropriated under Building Planning Legislation Act (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, the Restitution Act ) entered into force in February Its most relevant provisions have been summarised in the Court s judgment in the case of Decheva and Others v. Bulgaria (no /06, 28-31, 26 June 2012). 18. The provisions of domestic law concerning the res judicata effect of court judgments have been summarised in the Court s judgment in the case of Kehaya and Others v. Bulgaria (nos /99 and 68698/01, 34-55, 12 January 2006). 19. According to settled judicial practice under the Restitution Act, third parties claiming property rights could not intervene in the ex parte proceedings under that Act or challenge any decision restoring the former owners rights, but could have their claims examined in separate judicial proceedings, in which the courts exercised indirect judicial review (косвен контрол) of the restitution decision. The scope of that review was discussed in an Interpretative Decision of 10 May 2006 of the Supreme Court of Cassation, which noted that a third party claiming rights to a restituted property was not bound by a decision given under the Restitution Act and could dispute all preconditions for restitution as provided for under that Act, as this was its sole means by which to defend its rights (Тълкувателно решение 6 от г. на ВКС по т. гр. д. 6/2005 г.).

5 TANTILOVI v. BULGARIA DECISION 5 2. Remedies for length of proceedings 20. The relevant provisions of domestic law concerning remedies in respect of the length of proceedings have been summarised in the Court s decisions in the cases of Balakchiev and Others v. Bulgaria ((dec.), no /10, 18-37, 18 June 2013) and Valcheva and Abrashev v. Bulgaria ((dec.), nos. 6194/11 and 34887/11, 47-66, 18 June 2013). COMPLAINTS 21. The applicants complained under Article 6 1 of the Convention that the courts which had examined their rei vindicatio claim had failed to respect the res judicata effect with regard to the Plovdiv municipality of the Plovdiv Regional Court s final decision of 10 May The applicants also complained under Article 1 of Protocol No. 1 that they had been unable to obtain the restitution of the entire property claimed by them. 22. The applicants complained under Article 6 1 and Article 13 of the Convention that the rei vindicatio proceedings had been too lengthy and that they did not have an effective remedy in that regard. 23. Lastly, the applicants complained under Article 6 1 of the Convention that the provisions of the 1992 Restitution Act were not clear and allowed contradictory interpretations, and under Article 14 of the Convention that they had been discriminated against, in that the former King of Bulgaria and his sister had obtained the restitution of their family s former property under a more lenient procedure than the one applicable to the applicants case. THE LAW A. Complaints in respect of the res judicata effect of the judgment of 10 May 1994 and the impossibility for the applicants to obtain restitution of their entire property 24. The applicants complained under Article 6 1 of the Convention that the courts which had examined their rei vindicatio claim had failed to respect the res judicata effect of the Plovdiv Regional Court s final decision of 10 May The applicants also complained under Article 1 of Protocol No. 1 that they had been unable to obtain the restitution of the entire property claimed by them. 25. Article 6 1 of the Convention, in so far as relevant, reads:

6 6 TANTILOVI v. BULGARIA DECISION 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 reads: 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. Arguments of the parties 26. The Government disputed the complaint under Article 6 1 of the Convention. They pointed out that the parties to the proceedings which had resulted in the decision of 10 May 1994 had been the applicants and the Plovdiv municipality, whereas the main defendant to the applicants rei vindicatio claim was the Evangelical Pentecostal Church, a private-law entity which was completely independent from the State. It was thus entirely irrelevant that the Plovdiv municipality, in respect of which the decision of 10 May 1994 was binding, had also participated in the rei vindicatio proceedings. The decision of 10 May 1994 had been taken into account by the courts in the rei vindicatio proceedings, in which they had given reasons for their findings that they had been authorised to review it. In support of their argument the Government referred to the Supreme Court of Cassation s Interpretative Decision cited in paragraph 19 above. 27. Under Article 1 of Protocol No. 1, the Government argued that the applicants had not had any legitimate expectation of restitution, because no legal system would permit that an object be taken from a third party acting in good faith, without giving them a chance to defend their disputed right before the courts. 28. The applicants disagreed. As regards their complaint under Article 6 1 of the Convention, they pointed out that in the two sets of proceedings at issue, namely the restitution proceedings which had ended with the decision of 10 May 1994 and the rei vindicatio proceedings, the courts had examined the same issue whether the building claimed by the applicants had been the one expropriated from their mother or a new one. 29. The applicants also pointed out that the Plovdiv municipality had taken part in the proceedings which had resulted in the decision of 10 May 1994 and was to be considered bound by it. The municipality had also participated in the subsequent rei vindicatio proceedings, as a third party intervening in support of the Evangelical Pentecostal Church. It had once again made submissions on the question decided earlier and had, accordingly, been given a second chance to defend its position that the

7 TANTILOVI v. BULGARIA DECISION 7 preconditions for restitution had not been satisfied. The applicant considered this circumstance sufficient to conclude that the re-examination of their restitution claim in the rei vindicatio proceedings had breached the principle of legal certainty. In that connection they relied on the Court s findings in the case of Kehaya and Others (cited above). 30. The applicants also pointed out that the Evangelical Pentecostal Church had not claimed to be the owner of the property and had merely been a tenant. 31. The applicants argued in addition that the decision of 10 May 1994 had given rise to property rights for them and that they had been deprived of their property as a result of the courts findings in the rei vindicatio proceedings. They considered that this deprivation of property had not been provided for by law, had not been in the public interest and had been gratuitous, because the applicants had also been deprived of the compensation paid to them in 1975, since they had paid it back in 1993 in order to enable the restitution of their property to take effect. 2. The Court s assessment (a) Article 6 1 of the Convention 32. The Court reiterates that the right to a fair hearing under Article 6 1 of the Convention, interpreted in the light of the principles of the rule of law and legal certainty, encompasses the requirement that where the courts have finally determined a dispute between given parties, their ruling should not be called into question (see Brumărescu v. Romania [GC], no /95, 61, ECHR 1999-VII). The principle of legal certainty and respect for the res judicata effect of final judgments requires that no party should be entitled to seek review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case (see Ryabykh v. Russia, no /99, 52, ECHR 2003-IX). 33. The Court has noted in previous judgments that the res judicata effect of judgments has limitations ad personam and ad rem in all legal systems (see Kehaya and Others, cited above, 66, and Esertas v. Lithuania, no /06, 22, 31 May 2012). It has examined complaints similar to the one at hand in several cases against Bulgaria which concerned restitution under different legislation (see Kehaya and Others, cited above; Sivova and Koleva v. Bulgaria, no /03, 15 November 2011; and Karaivanova and Mileva v. Bulgaria, no /05, 17 June 2014). In these cases the applicants complained that the domestic courts had re-examined their restitution claims, already decided upon in their favour in earlier judicial proceedings. 34. The Court observes that in the case at hand the initial decision on the applicants entitlement to restitution was taken in proceedings which ended with the decision of 10 May 1994, between the Plovdiv mayor, a body of

8 8 TANTILOVI v. BULGARIA DECISION the municipality, and the applicants. It has not been contested, and it is also the subject matter of settled practice of the domestic courts (see paragraph 19 above), that third parties affected by such decisions could legitimately dispute the applicants entitlement to restitution in situations where it invaded their rights to the same property. In these circumstances the Court is not convinced that the decision of 10 May 1994 had obtained stability similar, for example, to the one in the case of Brumărescu, cited above. 35. Unlike some of the cases mentioned above, in the present case the subsequent rei vindicatio proceedings involved a private entity, the Evangelical Pentecostal Church of Plovdiv. Defending against the applicants rei vindicatio claim, the Church actively disputed their entitlement to restitution, arguing that the old building no longer existed, that a new one had been built by itself, and that accordingly the preconditions of the Restitution Act 1992 had not been satisfied (see paragraph 10 above). It has not been disputed that the church had not participated in the proceedings which resulted in the decision of 10 May 1994 allowing the applicants restitution claim, and that it could not otherwise be considered bound by that decision. In that respect the Court notes that it is not only owners but also persons who hold a property on a different ground such as, in the present case, a tenancy agreement, that can defend against a rei vindicatio claim. Such parties are entitled to defend their rights on all grounds and through any objections. 36. Accordingly, the Court concludes that the indirect judicial review exercised by the national courts did not contradict the ad personam aspect of the principle of respect for the res judicata effect of judgments, in that the courts did not re-examine a question allegedly already decided upon proceedings involving the same parties. 37. It is thus unnecessary to examine whether the courts approach also contradicted the ad rem aspect of the same principle. 38. It follows from the above that the applicants complaint under Article 6 1 of the Convention, in so far as it concerns legal certainty, is manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention. (b) Article 1 of Protocol No The applicants complained under Article 1 of Protocol No. 1 that it had been impossible for them to obtain the restitution of the whole plot claimed by them and the building erected thereon (see paragraph 21 above). 40. The Court has previously summarised the principles applicable to cases of restitution of expropriated property in Kopecký v. Slovakia ([GC], no /98, 35, 2004-IX). Most notably, it has held that Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property taken by them before they ratified

9 TANTILOVI v. BULGARIA DECISION 9 the Convention. Nor does this provision impose any restrictions on the Contracting States freedom to determine the scope of property restitution or to choose the conditions under which they agree to restore property rights of former owners. However, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement. In addition, the Court has accepted that in situations such as that in the present case, involving a wide-reaching legislative scheme with a significant economic impact, the national authorities must have a wide margin of appreciation in selecting the measures to secure respect for property rights or to regulate ownership relations (see also Broniowski v. Poland [GC], no /96, 182, ECHR 2004-V; Maria Atanasiu and Others v. Romania, nos /05 and 33800/06, , 12 October 2010; and Sivova and Koleva, cited above, 97-98). 41. Turning to the circumstances of the present case, the Court notes that in a decision of 10 May 1994 the Plovdiv Regional Court found that the preconditions of the Restitution Act had been satisfied, seeing that the project for which the property had been expropriated had not started and the expropriated building, albeit reconstructed, existed (see paragraph 7 above). The applicants paid back the sum given to them in the 1970s in compensation for the expropriation, to enable the quashing of the expropriation order to take effect (see paragraph 8 above). 42. The Court must therefore examine whether the decision of 10 May 1994 gave rise to any property rights protected under Article 1 of Protocol No. 1. It already noted (see paragraph 34 above) that affected third parties had the opportunity to challenge such decisions, given in ex parte proceedings, in subsequent proceedings so as to protect their own rights to the same properties. It thus concludes that the decision of 10 May 1994 could not be considered to have determined with a final and binding effect the applicants entitlement to restitution, or that it gave rise to any legitimate expectation to restitution. In this regard the Court notes that a comparable scheme existed under other restitution legislation in Bulgaria, and in cases concerning that legislation s application the Court has also held that decisions on restitution cannot be considered to have given rise, in a final and binding manner, to property rights in respect of a given asset until affected third parties have had a chance to defend their interests (see Karaivanova and Mileva, cited above, 74-76; Nedelcheva and Others v. Bulgaria, no. 5516/05, 56-57, 28 May 2013; and Kupenova and Others v. Bulgaria (dec.), no /05, 30-31, 7 May 2013). 43. The Court observes in addition that, at the time when the applicants claimed the property s restitution, the Evangelical Pentecostal Church was,

10 10 TANTILOVI v. BULGARIA DECISION occupying and using the property claimed by them, on the strength of a tenancy agreement with the municipality. Thus, the applicants should have been aware from the outset that the church would have competing claims in respect of the same property, subject to determination in separate civil proceedings. 44. In view of the above, the Court considers that the applicants could not have legitimately expected the decision of 10 May 1994 to definitively determine whether they were entitled to restitution and thus give rise to a right to property or to a legitimate expectation to obtain any property rights falling under the protection of Article 1 of Protocol No. 1 (see, mutatis mutandis, Karaivanova and Mileva, 76, Nedelcheva and Others, 60, and Kupenova and Others, 34, all cited above). 45. Lastly, with regard to the applicants remark that they had paid back the entire compensation received at the time of expropriation and had not recovered the entire property (see paragraph 31 above), the Court notes that this payment was intended to meet a precondition of the law and was due so that the restitution of the expropriated property could take effect. The applicants have not argued that they could not claim the sum back following the finding that the restitution had only partially been possible. 46. In those circumstances, the Court cannot accept that the applicants have been deprived of their possessions in an unjustified or arbitrary manner. 47. It follows that their complaint under Article 1 of Protocol No. 1 is manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention. B. Complaints in relation to the length of the rei vindicatio proceedings 48. The applicants also complained under Article 6 1 and Article 13 of the Convention that the rei vindicatio proceedings had been too lengthy and that they did not have an effective remedy in that regard. 49. In their initial submissions, the Government argued that the applicants could have lodged a complaint about the delays in the proceedings and that, in any event, if there were any unnecessary delays, they were not imputable to the authorities but to the parties to the proceedings. The applicants disagreed. 50. After the Court invited the parties, in a letter of 12 July 2013, to make additional observations on the complaints at issue, in particular with regard to the domestic remedies concerning the length of proceedings introduced into Bulgarian law in 2012, the Government pointed out that those remedies were available even to applicants who had already lodged their applications with the Court and referred to the Court s finding in its

11 TANTILOVI v. BULGARIA DECISION 11 decisions in Balakchiev and Others and Valcheva and Abrashev (both cited above). 51. The applicants, on the other hand, considered that the remedies at issue were inapplicable to persons in a situation such as theirs, namely where applications to the Court had been submitted before the introduction of the remedies. 52. The Court observes that in its decisions in Balakchiev and Others (cited above, 53-85) and Valcheva and Abrashev (cited above, ) it found that the remedies at issue, under sections 60a et seq. of the Judiciary Act 2007 and section 2b of the State and Municipalities Liability for Damage Act 1988, could be regarded as effective remedies in respect of an allegedly unreasonable length of proceedings. It further found that the remedies at issue were also available to applicants who had lodged their applications with the Court before the introduction of the remedies. The applicants have not satisfied the Court that there are special circumstances which could absolve them from pursuing those remedies once their complaints have been dismissed as inadmissible by the Court. 53. It follows from the above that the complaint under Article 6 1 of the Convention concerning the length of the proceedings must be rejected under Article 35 1 and 4 for failure to exhaust domestic remedies. 54. As to the complaint under Article 13, the Court, in view of its conclusion that the newly-introduced remedies are available to persons in a position such as that of the applicants and effective, considers it manifestly ill-founded (see Valcheva and Abrashev, cited above, ). Accordingly, this complaint must be rejected in accordance with Article 35 3 (a) and 4 of the Convention. C. Remaining complaints 55. Lastly, the applicants raised additional complaints under Articles 6 1 and 14 of the Convention (see paragraph 23 above). 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. 56. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention.

12 12 TANTILOVI v. BULGARIA DECISION For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 5 February Fatoş Aracı Deputy Registrar Guido Raimondi President