Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 37912/97

by Radka GOSPODINOVA

against Bulgaria

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 November 1995

by Radka Gospodinova against Bulgaria and registered on 26 September

1997 under file No. 37912/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Bulgarian national born in 1940 and residing

in Plovdiv.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

A. Particular circumstances of the case

The house of the applicant's father in Plovdiv was expropriated

under a building plan in 1973. In 1975 the applicant, to whom her

father had transferred his right to compensation, received in

compensation a three rooms apartment.

The house of the applicant's father was demolished and a state-

owned hotel complex was built in the area.

In 1992 the Parliament adopted a law on the restitution of

property expropriated under [building planning and other legislation]

(Zakon za vazstanoviavane na sobstvenostta varhu niakoi otchuzhdeni

imoti po ZTSU, ZPINM, ZBNM, ZDI i ZS) (see below Relevant domestic

law).

On 14 August 1992 the mayor of Plovdiv refused the applicant's

request for restitution stating that the project for which her father's

house had been expropriated, namely the construction of a hotel

complex, had been completed. Also, the applicant had not declared her

willingness to return the apartment she had received.

The applicant appealed to the Plovdiv Regional Court (Okrazhen

sad) stating that the plot where the house had stood was not covered

by the hotel building. The Court held several hearings, heard experts

and collected other evidence.

An expert, who presented his findings on 21 June 1993, stated

inter alia that the claimed land was partly covered by a restaurant at

the hotel and partly by tennis courts. Also, the expert expressed an

opinion that the claimed land could not constitute an independent plot

according to the relevant regulations as in force in 1993.

By judgment of 30 March 1994 the Court dismissed the appeal. The

Court found that the hotel complex envisaged by the building plan had

been built and that therefore the project for which the applicant's

property had been expropriated had been accomplished within the meaning

of the law. This was so despite the fact that the tennis courts had

not been built at the same time as the hotel. The tennis courts

nevertheless formed a part of the hotel complex. The Court also found

that the land claimed by the applicant had insufficient surface and

could not constitute an independent plot.

By judgment of 7 February 1996 the Supreme Court (Varhoven sad)

dismissed the applicant's ensuing petition for review (cassation)

(pregled po reda na nadzora).

The applicant then unsuccessfully attempted to institute criminal

proceedings against the experts who had testified before the Regional

Court.

The applicant first wrote to the Commission on 20 November 1995,

and complained about a French firm which allegedly promised to employ

her but then refused to do so. On 12 January 1996 the applicant

withdrew this complaint. The applicant then wrote again on 11 June

1997 complaining of the refusal of her request for restitution.

B. Relevant domestic law

According to the Law on the restitution of property expropriated

under [building planning and other legislation] the former owners, or

their heirs, of real property which had been expropriated pursuant to

several particular pieces of legislation could request, within six

months of the law's entry into force, the restoration of their rights

under certain conditions.

In the case of plots of land where the building had been

demolished, the restitution of the land was possible only if the

practical execution of the project for which the property had been

expropriated had not commenced and if the property could constitute an

independent plot under the planning regulations (Section 1 para. 2).

Also, the former owners were required to return what they had received

in compensation (Sections 5 - 7).

COMPLAINTS

The applicant invokes Article 8 of the Convention and Article 1

of Protocol No. 1. She complains that the 1973 expropriation was

unjust as she received inadequate compensation and that, after 1992,

restitution was refused.

THE LAW

The applicant complains of the expropriation of her father's real

property in 1973 and of the decisions delivered after 1992 and refusing

her request for restitution.

The Commission finds that this complaint falls to be examined

under Article 1 of Protocol No. 1 (P1-1) to the Convention which,

insofar as relevant, provides as follows:

"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 ..."

Insofar as the applicant complains of the expropriation which

took place in 1973, the Commission recalls that the Convention entered

into force in respect of Bulgaria on 7 September 1992, and that in

accordance with the generally recognised principles of international

law, the Commission is only competent to examine complaints about

violations of the Convention by virtue of acts, facts or decisions that

have occurred after that date. The Commission finds, therefore, that

this part of the application is outside its competence ratione temporis

and therefore incompatible with the provisions of the Convention within

the meaning of Article 27 para. 2 (Art. 27-2).

As regards the remainder of the application the Commission notes

that the first letter of the applicant to the Commission, dated

20 November 1995, apparently did not mention the complaint concerning

the refusal of her request for restitution and that the applicant's

letter raising this complaint was dated 11 June 1997.

Nevertheless the Commission need not decide in the particular

circumstances whether, as required by Article 26 (Art. 26) of the

Convention, the applicant introduced the application within the six

months' time-limit following the final decision in her case as the

application is in any event inadmissible for the following reasons.

The Commission recalls that according to the Convention organs'

case-law, a person complaining of an interference with his property

must show that such right existed (No. 7655-7657/76, Dec. 4.10.77,

D.R. 12, p. 111).

The Commission further recalls that "possessions" within the

meaning of Article 1 of Protocol No. 1 (P1-1) may be either "existing

possessions" (Eur. Court HR, Van der Mussele v. Belgium judgment of

23 November 1983, Series A no. 70, p. 23, para. 48) or claims, in

respect of which the applicant can argue that he has at least a

"legitimate expectation" of obtaining effective enjoyment of a property

right (Eur. Court HR, Pine Valley Developments v. Ireland judgment of

29 November 1991, Series A no. 222, p. 23, para. 51; Pressos Compania

Naviera S.A. v. Belgium judgment of 20 November 1995, Series A no. 332,

p. 21, para. 31).

It is clear that the present case does not concern any "existing

possessions" of the applicant. The property of the applicant's father

was expropriated in 1973. Since then the applicant, and her father,

were not able to exercise any ownership right over the property

concerned.

It remains to be examined whether the applicant could have any

"legitimate expectation" of realising her claim to restitution of

property.

The Commission recalls that where a law provided for certain

conditions which, if fulfilled, would have entitled the applicants to

the restitution of their confiscated or nationalised property, a

"legitimate expectation" amounting to a "possession" cannot be said to

exist in circumstances where the applicants evidently did not meet

clear conditions under the restitution law, such as residence in the

country or the requirement that the claimed property be in the

possession of the State (cf. No. 23131/93, Dec. 4.3.96, D.R. 85, p. 65;

No. 25497/94, Dec. 17.5.95, D.R. 85, p. 126).

In the present case the answer to the question whether the

applicant met the conditions under the relevant law was apparently of

a greater legal and factual complexity. Thus, the Regional Court when

examining the applicant's appeal needed, inter alia, to appoint experts

in order to establish whether the claimed property, or a part of it,

could constitute an independent plot. Furthermore, it was not patently

clear whether all the land in question had served precisely for the

project for which it had been expropriated. Therefore, it appears that

the applicant may have reasonably believed that she would be able to

convince the courts that the conditions for restitution were met.

In these circumstances the Commission considers that it should

examine the application on the assumption that the applicant may be

considered to have had a "legitimate expectation" of realising her

claim to restitution and that there has been an interference with her

rights protected by Article 1 of Protocol No. 1 (P1-1) to the

Convention.

The Commission recalls that Article 1 of Protocol No. 1 (P1-1)

to the Convention guarantees in substance the right of property and

comprises three distinct rules. The first, which is expressed in the

first sentence of the first paragraph and is of a general nature, lays

down the principle of peaceful enjoyment of possessions. The second,

in the second sentence of the same paragraph, covers deprivation of

possessions and makes it subject to certain conditions. The

deprivation rule is intended to refer to acts whereby the State lays

hands on, or authorises a third party to lay hands on, a particular

piece of property which is to serve the public interest (cf. Eur. Court

HR, Air Canada v. the United Kingdom judgment of 5 May 1995, Series A

no. 316, paras. 29, 30; No. 11949/86, Dec. 1.12.86, D.R. 51, pp. 195,

209).

Where there has been a state interference with the right to

peaceful enjoyment of a property right the task of the Convention

organs is to examine the lawfulness, purpose and proportionality of the

decision taken by the domestic authorities (cf. No. 12258/86,

Dec. 9.5.88, D.R. 56, p. 215).

The Commission notes that the decisions refusing restitution to

the applicant had a legal basis in the provisions of the law on the

restitution of property expropriated [under building plan legislation].

The mayor gave a reasoned decision following which the applicant was

able to bring judicial proceedings where she freely put forward her

arguments and presented evidence. Furthermore, the courts examined all

relevant material and delivered decisions in which they addressed all

pertinent submissions of the applicant. The decisions were based on

the findings that the project for which the property had been

expropriated, the construction of a hotel complex, had been completed

and that the claimed land was included in the area of the complex. In

such circumstances restitution was not possible under the relevant law.

Moreover, the courts noted that the claimed land did not have the

minimum surface necessary to become an independent plot, which was

another condition for restitution.

The Commission finds therefore that the refusal of restitution

was not arbitrary or otherwise incompatible with Article 1 of

Protocol No. 1 (P1-1) to the Convention and that therefore the

remainder of the application is manifestly ill-founded and has to be

rejected under Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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GOSPODINOVA v. BULGARIA

GOSPODINOVA v. BULGARIA

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