PANIKIAN v. BULGARIA
Doc ref: 29583/96 • ECHR ID: 001-3772
Document date: July 10, 1997
- Inbound citations: 9
- •
- Cited paragraphs: 0
- •
- Outbound citations: 14
AS TO THE ADMISSIBILITY OF
Application No. 29583/96
by Elisavieta, Marie and Vahe PANIKIAN
against Bulgaria
The European Commission of Human Rights sitting in private on
10 July 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mrs. M.F. BUQUICCHIO, Deputy to the Secretary
to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 October 1995 by
Elisavieta, Marie and Vahe PANIKIAN against Bulgaria and registered on
2 January 1996 under file No. 29583/96;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
9 September 1996 and the observations in reply submitted by the
applicants on 11 November 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are Bulgarian nationals, born in 1926, 1952 and
1955 respectively and residing in Sofia. The first applicant,
currently retired, is the mother of the second and third applicants,
who are both medical doctors.
A. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows.
In 1954 the first applicant and her husband became tenants in a
state-owned apartment. The apartment had four rooms and the
applicants' family occupied two of them. Two other families were
tenants in the two remaining rooms.
In 1958 the first applicant and her husband applied to purchase
the apartment where they lived as tenants. Pursuant to the Regulation
on the Sale of State Housing of 1957 (Naredba za prodazhba na zhilishta
ot darzhavnia zhilishten fond predostaven na narodnite saveti) ("the
Housing Regulation 1957"), on 19 March 1959 the Executive Committee of
the local municipality (IK na Narodnia savet) gave its consent. On
26 March 1959 the first applicant and her husband signed the sale-
purchase contract.
The obligation of the first applicant and her husband to pay to
the State the price of the apartment was secured by a mortgage. The
mortgage was lifted in 1979 when the last amounts due were paid in.
In February 1992 the Parliament adopted the Law on the
Restitution of Ownership of Nationalised Real Property ("the
Restitution Law" - Zakon za vazstanoviavane na sobstvenostta varhu
odarzhaveni nedvizhimi imoti) (see below Relevant domestic law and
practice).
On 3 August 1992 a Mr. S. submitted to the Sofia District Court
(Sofiiski raionen sad) an action against the applicants under Section 7
of the Restitution Law (see below Relevant domestic law and practice).
He presented proof that the apartment, which had been purchased by the
first applicant and her husband from the State in 1959 and which in
1992 was the joint property of the applicants, had been owned by his
parents until 1948 when it had been nationalised. He claimed that the
1959 sale-purchase contract, between the State as the seller and the
first applicant and her husband as buyers, had been contrary to certain
provisions of the then existing laws. Moreover, the buyers' membership
in the Communist Party and their social status had played a role in the
transaction.
The Sofia municipality was also summoned as a defendant in the
case. In its submissions to the Court the municipality disputed the
claims of the plaintiff and asked the Court to dismiss them.
On 30 June 1993, after several hearings with the participation
of the applicants and their lawyers, the District Court delivered its
judgment. The Court found that the decision of the municipal Executive
Committee of 19 March 1959 had not been approved by the competent
Ministry as required by Section 3 of the Housing Regulation 1957.
Also, the municipality had considered the first applicant's family as
consisting of six persons, two of them having been her uncles, whereas
under the Housing Regulation 1957 they could not be considered members
of the family. In any event, even for a six-member family, the
apartment had been too large because under Section 8 of the Lease Law
(Zakon za naemite), as in force at the time, a family of six was
entitled only to a three-room apartment. Finally, although in one of
the documents dating from 1959 it had been mentioned that the other
tenants in the same apartment had agreed that it be sold to the first
applicant's family, the written consent form required by the law was
not found in the file.
As a result the Court found that the first applicant and her
husband had acquired their apartment in breach of the law and restored
Mr. S.'s ownership rights.
The applicants submitted an appeal to the Sofia Regional Court
(Sofiiski gradski sad). They stated inter alia that the other tenants
in the apartment had given their prior consent to the transaction as
required by the law. Also, the sale-purchase contract clearly referred
in its text to the approval of the transaction by the Ministry, done
on 24 March 1959. The fact that some documents, among them the written
consent forms and the official approval, were missing from the file
held in the archives of the Sofia municipality, could not be used
against them. The applicants presented a written declaration signed
in 1993 before a notary by a woman, who had been one of the tenants.
She stated that in 1959 she had given her written consent. The
applicants also disputed the applicability of the Lease Law which
concerned only leases, not sales. Moreover, the family included the
uncles who were immigrants from Turkey, without any property, and had
always lived with them.
On 1 February 1994 the Regional Court confirmed the lower Court's
judgment. The judgment stated inter alia that even assuming the
existence of an approval by the Ministry and of written consent forms,
the other points discussed in the District Court's judgment were
sufficient to warrant a finding of unlawfulness.
Thereupon the applicants submitted to the Supreme Court (Varhoven
sad) a petition for review (pregled po reda na nadzora). They enclosed
the written opinion of a leading professor in civil law, who explained
in detail why the Lease Law and the restrictions as regards the number
of rooms were inapplicable in the applicants' case.
On 17 April 1995, following a hearing at which the applicants
were represented by three lawyers, the Supreme Court refused the
petition. It discussed all arguments of the applicants and found inter
alia that the Lease Law was applicable, that the existence of a
ministerial approval and of consent forms had not been proven and that
the lower courts had not breached the rules of civil procedure.
The other defendant in the case, the Sofia municipality, was
summoned but did not take part either in the appeal or in the review
proceedings.
On unspecified dates Mr. S. instituted against the applicants two
sets of proceedings seeking the possession of the apartment and also
140,000 leva in damages as the applicants had unlawfully refused to
vacate it. A hearing in the revindication case was scheduled for
18 November 1996 and, in the damages case, for 8 October 1996. The
parties have not provided information about any later developments.
B. Relevant domestic law and practice
a. The Law on the Restitution of Ownership of Nationalised Real
Property, which entered into force in February 1992, provides, inter
alia, that the former owners, or their heirs, of certain types of real
property nationalised by virtue of several specific laws dating from
the period between 1947 and 1952, become ex lege the owners of their
nationalised property if it still exists, if it is still owned by the
State and if no adequate compensation had been received at the time of
the nationalisation.
Section 7 provides for an exception to the requirement that the
real property be still owned by the State. It provides that, even if
certain property had been acquired by third persons after the
nationalisation, the former owners or their heirs can recover their
property rights if the third persons had become owners either in breach
of the law, or by virtue of their party or official position, or
through abuse of power. In cases under Section 7 the former owners
have to bring an action before the courts within one year from the
entry into force of the Restitution Law.
The Restitution Law does not state expressly the nature of the
judgments under Section 7 and their consequences as far as the "third
persons" are concerned. The practice of the Supreme Court (Reshenie
No. 1623 ot 10.03.1994 po gr.d. No. 186/1993 na IV gr. otd. na VS;
Reshenie No. 1036 ot 13.07.1994 po gr.d. No. 9/1994 na IV gr. otd. na
VS) and its Interpretative Decision No. 1 (TR 1/95, OSGK, Biul. VS
kn. 4/95) have clarified that these are declaratory judgments and that
their effect is to declare the sale-purchase contract null and void as
contrary to the law, based on the respective provisions of the general
civil law.
b. On 19 April 1995, 14 September 1995, and 30 May 1996 the
Parliament adopted amendments to the Restitution Law, most of which
were thereafter declared unconstitutional by the Constitutional Court
(D.V. br.br. 40/1995, 87/1995 i 51/1996; Resh. No. 9 po k.d. No. 4/95,
D.V. br. 66/95; Resh. No. 20 po k.d. No. 24/95, D.V. br. 94/95; Resh.
No. 11 po k.d. 10/96, D.V. br. 61/96, popr. D.V. br. 87/96).
An amendment which appears to be in force since June 1996 is
contained in paragraph 3 of the supplementary provisions to the
Restitution Law (D.V. br. 51/96). It provides that persons who have
been ordered to vacate their apartments under Section 7 are to be paid
by the State the price of the property, adjusted to reflect the market
price as of the date of the eviction. Also, until this payment is
effected, they are given temporarily State owned apartments for rent,
or a rent allowance, which would enable them to let an apartment.
c. In a judgment of 18 January 1997 the Constitutional Court refused
a motion to declare unconstitutional Section 7 of the Restitution Law.
The Court noted, inter alia, that in cases under this provision the
persons who had purchased nationalised property from the State by
virtue of a void contract "had never become owners ..." (Resh. po k.d.
No. 29/95, D.V. br. 9/96).
COMPLAINTS
The applicants complain that, after having owned their apartment
for more then 35 years, they were deprived of it arbitrarily and in
violation of Article 1 of Protocol No. 1 to the Convention. Moreover,
they can now claim back only a nominal amount, which would hardly
suffice to rent housing for several months, let alone to enable them
to buy another apartment. They also invoke Article 8 of the
Convention.
Furthermore, they submit that there has been a violation of
Article 14 of the Convention as they were discriminated against on the
basis of their Armenian ethnic origin and their political affiliation.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 October 1995 and registered
on 2 January 1996.
On 13 May 1996 the Commission decided to communicate the
applicants' complaints under Articles 8 and 14 and Article 1 of
Protocol No. 1 concerning the loss of their apartment, and to declare
inadmissible the remainder of the application.
The Government's written observations were submitted on
9 September 1996, after an extension of the time-limit fixed for that
purpose. The applicants replied on 11 November 1996.
On 6 December 1996 the Commission granted the applicants legal
aid.
THE LAW
1. The applicants complain under Article 1 of Protocol No. 1 (P1-1)
to the Convention that they have lost the ownership of their apartment.
They also invoke Articles 8 and 14 (Art. 8, 14) of the Convention.
The Commission notes at the outset that in the present case the
Government submit that there have been breaches, on the part of
Bulgaria, of Article 13 (Art. 13) of the Convention and of Article 1
of Protocol No. 1 (P1-1) to the Convention, and that therefore the
application is admissible.
The Commission recalls that an issue going to the merits of a
case has to be examined independently of the attitude of the respondent
State (Eur. Court HR, H. v. France judgment of 24 October 1989, Series
A no. 162, p. 20, para. 47; No. 14365/88, Dec. 17.5.90, unpublished;
Robins v. the United Kingdom, Comm. Rep. 4.7.96. paras. 27, 28 and 38;
No. 28858/95, Dec. 25.11.96, D.R. 87, p. 130).
The Government's assertion that the facts complained of amounted
to violations of the Convention is a statement concerning the merits
of the application which cannot be relied upon by the Commission, even
at the stage of admissibility, without an independent assessment.
The Commission must, therefore, undertake an examination of the
facts of the case and also of the submissions of the parties, and on
this basis establish whether the remainder of the application is
admissible.
2. Article 1 of Protocol No. 1 (P1-1) to the Convention, insofar as
relevant, provides as follows:
"Every ... 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 ..."
The Government first make a detailed analysis of the legislation
concerning the sale of state housing, as in force in 1959. They state
inter alia that the Housing Regulation 1957 did not provide for any
restriction on the size of the dwelling to be sold. Citing several
decisions of the Supreme Court from the 1960's, the Government conclude
that the courts in the applicants' case wrongly decided that the Lease
Law was applicable in this respect.
Furthermore, the Government maintain that under the relevant law
at the time it was within the competence of the administrative organs
of the municipality and of the respective Ministry to assess all
factors and to decide whether an apartment should be sold or not.
Therefore, and in accordance with interpretative decision No. 47 of
1967 of the Supreme Court, the courts should be considered competent
only to review whether there had been a valid consent between the State
(the seller) and the buyer. It was not for the courts to replace the
administrative bodies and analyse issues such as, for example, the size
of the apartment.
The Government also make an analysis of the legal issues related
to the Restitution Law and dispute its interpretation by the Supreme
Court and by the Constitutional Court. The Government contend that the
applicants can invoke their right to peaceful enjoyment of their
possessions because Section 7 of the Restitution Law provided for a
nullification ex nunc and not ab initio. This was so because, inter
alia, Section 7 gave a one year time-limit, as from February 1992, for
the bringing of an action by the pre-nationalisation owner. After the
expiration of this time-limit, and if no action was brought, the rights
of the owners would again become stable. On the other hand the nullity
of a contract which had been null and void ab initio could be declared
to be so at any time, in any proceedings. This was not the case under
Section 7 of the Restitution Law, whose legal effect is in fact now
over, the one year time-limit having expired.
The Government conclude that the applicants lost their property
pursuant to the Restitution Law, in proceedings where the courts
decided wrongly on issues of fact and law and that, therefore, there
has been a breach of Article 1 of Protocol No. 1 (P1-1).
The applicants agree with the Government and also bring
additional arguments. Thus, there was another decree of 1957, which
was relevant and should have been applied by the courts. Also, when
deciding whether the required consent and authorisation forms had
existed back in 1959, the courts wrongly put the burden of proof on the
applicants. It was absurd to state that these forms had not existed
simply because the applicants could not produce copies of them.
Moreover, it was the Government's, and not their fault, if these
documents had been lost, as they were supposed to be kept in the
archives of the municipality.
Furthermore, the applicants state, in agreement with the
Government, that the courts should have examined proprio motu whether
they had power to review the administrative decisions of 1959. The
applicants contend that there have been breaches of Articles 6 and 13
(Art. 6, 13) of the Convention and of Article 1 of Protocol No. 1
(P1-1) to the Convention.
3. According to the Convention organs' case-law "possessions" within
the meaning of Article 1 of Protocol No. 1 (P1-1) may be either
"existing possessions" or valuable assets, including claims, under
certain conditions. By contrast, the hope of recognition of a former
property right which has not been susceptible of effective exercise for
a long period of time, is not to be considered as a "possession" (see
Nos. 18890/91, 19048/91, 19049/91, 19342/92 and 19549/92, Dec. 4.3.96,
D.R. 85, p. 5, and the case-law referred to there on p. 18).
According to the jurisprudence of the Bulgarian courts on
Section 7 of the Restitution Law it appears that the applicants' title
to their apartment was considered void ab initio which had the effect
that they were considered to have never owned it. It is true that the
Government of Bulgaria present a different interpretation of the law
in this respect and state that this jurisprudence was wrong. However,
in accordance with the basic principles of the rule of law, the
Commission considers that for purposes of the proceedings before it the
relevant interpretation of domestic law is to be found in its text and
in the competent courts' jurisprudence.
The Commission considers that the applicants had a "possession"
within the meaning of Article 1 of Protocol No. 1 (P1-1) to the
Convention even if their title was null and void ab initio. Thus, for
about 35 years they possessed the apartment in question and were
considered owners for all legal purposes. Moreover, it would be
unreasonable to accept that a State may enact legislation which allows
nullification ab initio of contracts or other titles to property and
thus escape the responsibility for an interference with property rights
under the Convention.
The applicants' title having been nullified by virtue of judicial
decisions delivered after 7 September 1992, the date of the
Convention's entry into force in respect of Bulgaria, the Commission
finds that it is competent ratione temporis to examine the complaints
(cf. No. 26530/95, Dec. 27.2.97, unpublished).
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 property. The second, in
the second sentence of the same paragraph, covers deprivation of
possessions and makes it subject to certain conditions. The third,
contained in the second paragraph, concerns the control on the use of
property. 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 p. 195, 209).
Insofar as the applicants contend that the courts decided
wrongly, the Commission recalls that in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (No. 10000/82, Dec. 4.7.83, D.R. 33, pp. 247, 255).
It is true that the applicants also complain that the courts
deprived them of their property as they acted arbitrarily. However,
the Commission recalls that in its partial decision of 13 May 1996 it
found that the impugned judgments, which declared the applicants' title
to their apartment null and void as contrary to the law, were given by
the courts in civil proceedings where the applicants were legally
represented and freely put forward all their arguments. Also, the
Commission noted that the courts gave a detailed reasoning, addressing
every relevant objection of the applicants and explaining their factual
findings and the interpretation of the law.
The essence of the applicants' complaints is, rather, in their
criticism of Section 7 of the Restitution Law, of the manner in which
it was applied, and of the alleged injustice resulting therefrom. The
Commission considers that this complaint should be examined in the
light of the first sentence of the first paragraph of Article 1 of
Protocol No. 1 (P1-1) to the Convention (cf., Eur. Court HR, Matos e
Silva Lda and Others v. Portugal judgment of 16 September 1996, to be
published in Judgements and Decisions 1996).
For the purposes of this examination the Commission must
determine whether a fair balance was struck between the general
interest of the community and the requirements of the protection of the
individual's fundamental rights (Eur. Court HR, Pressos Compania
Naviera S.A. and others v. Belgium judgment of 20 November 1995,
Series A no. 332, p. 23, para. 38; No. 12258/86, Dec. 9.5.88, D.R. 56,
p. 215).
In matters under Article 1 of Protocol No. 1 (P1-1) States enjoy
a certain margin of appreciation. Where the legislature has made a
choice by enacting laws, which it considered in the general interest,
the possible existence of alternative solutions does not in itself
render the contested legislation unjustified. Provided that the
authorities remain within the bounds of their margin of appreciation,
it is not for the Convention organs to say whether the legislation
represented the best solution (cf., mutatis mutandis, Mellacher and
others v. Austria judgment of 19 December 1989, Series A no. 169,
p. 28, para. 53).
In the present case the applicants' title to their apartment
derived from a transaction, concluded in 1959, which was found to have
been in breach of certain provisions of the law then in force.
However, its lawfulness was not challenged at the time, in 1959 and in
the following years. Also, it appears that at the time only the
municipality (the seller) and the State had locus standi to bring an
action to declare the contract null and void. Years later, in
February 1992 the Parliament decided to introduce a new possibility
for contesting the lawfulness of such transactions, by giving locus
standi to third persons, the pre-nationalisation owners. Mr. S., the
pre-nationalisation owner of the applicants' apartment, seized this
opportunity and challenged the applicants' title, which had been
practically stable for the past 33 years. The courts, upon his action,
reviewed the lawfulness of the 1959 transaction and declared it null
and void.
In examining whether the interference with the applicants' rights
under Article 1 of Protocol No. 1 (P1-1) to the Convention, resulting
from the above legislation and its implementation in the case, was
justified, the Commission attaches special importance to the very
particular circumstances which formed the background of the Restitution
Law. This Law was apparently adopted with the aim to make good
injustice dating back decades in the past and inherited from the
communist rule in Bulgaria. Also, it had a strictly transitional
character, the possibility to bring an action under Section 7 having
been limited to only one year, which expired in February 1993.
The Commission further notes that according to the law in force
since June 1996 the applicants can claim from the State the price of
the apartment, adjusted to reflect its market value as of the date of
the eviction. Moreover, they are entitled to a rent allowance for the
period of time between the eviction and the receipt of the amount due
in respect of the price of the apartment.
In these circumstances the Commission does not consider that the
Bulgarian authorities acted beyond the margin of appreciation left to
States under Article 1 of Protocol No. 1 (P1-1) to the Convention.
It follows that the applicants' complaint under Article 1 of
Protocol No. 1 (P1-1) to the Convention is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicants further complain that they were deprived of their
apartment contrary to Article 8 (Art. 8) of the Convention. They also
state that there has been a breach of Article 14 (Art. 14) of the
Convention.
The Commission considers that, insofar as the apartment at issue
is the home of some of the applicants, their complaint under Article 8
(Art. 8) of the Convention does not raise an issue separate from that
already examined under Article 1 of Protocol No. 1 (P1-1) to the
Convention.
As regards the alleged discrimination contrary to Article 14
(Art. 14), on the basis of the applicants' Armenian ethnic origin, the
Commission finds that this complaint is unsubstantiated and therefore
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
5. The Commission finally notes that the applicants state in their
observations that there have been breaches of Articles 6 and 13
(Art. 6, 13) of the Convention. However, in its partial decision of
13 May 1996 the Commission declared inadmissible the applicants'
complaints raised under Article 13 (Art. 13) of the Convention, and
examined under Article 6 para. 1 (Art. 6-1) of the Convention.
Insofar as the applicants may be understood as requesting the
reopening of the proceedings in respect of these complaints, the
Commission finds that they have not raised any substantial new element,
which would require a reopening (cf. No. 19975/92, Dec. 3.12.92,
unpublished).
For these reasons, the Commission, by a majority,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO S. TRECHSEL
Deputy to the Secretary President
to the Commission of the Commission