KANEVA v. BULGARIA
Doc ref: 26530/95 • ECHR ID: 001-3536
Document date: February 27, 1997
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AS TO THE ADMISSIBILITY OF
Application No. 26530/95
by Daniella KANEVA
against Bulgaria
The European Commission of Human Rights (First Chamber) sitting
in private on 27 February 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, 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 15 October 1994
by Daniella KANEVA against Bulgaria and registered on 15 February 1995
under file No. 26530/95;
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
11 March 1996 (and on 24 September 1996) and the observations in
reply submitted by the applicant on 24 April 1996 ;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as submitted by the parties may be
summarised as follows.
The applicant, a Bulgarian national born in 1938, resides in
Sofia. Before the Commission she is represented by Mr. Hristo
Tepavicharov, a lawyer practising in Sofia.
Particular circumstances of the case
In 1981, by virtue of an order of the local municipality, the
applicant and her brother were granted jointly the tenancy of a state
owned apartment. On 16 January 1989 the applicant purchased the
apartment from the municipality.
On 24 June 1991 the local municipality brought before the Sofia
District Court (Rayonen sad) an action against the applicant claiming
that the sales contract had been null and void as contrary to the law
and that therefore the municipality was the owner of the apartment.
The District Prosecutor's Office (Rayonna prokuratura), acting under
its authority to institute or join civil proceedings for purposes of
defending state interests, joined the action.
In its written submissions of 19 September 1991 the municipality
stated that the sale had been contrary to Section 117 of the Regulation
on State Property (Naredba za darzhavnite imoti) and to the Law on the
Property of Individuals (Zakon za sobstvenostta na grazhdanite). Thus
the conditions for sale of an apartment rented by a sister and her
brother had not been fulfilled. Also, there had been discrepancies
between the rental order, by virtue of which the applicant and her
brother had become tenants in 1981, and the order allowing the sale of
the apartment. Moreover, under the then existing restrictions on the
size of dwellings, it had been unlawful to sell to the applicant an
apartment consisting of five rooms with a surface of 143 square meters,
as she had no family. In these submissions there was also a remark
that the sale had been a "nomenklatura" type scheme.
The Court held three hearings on the matter.
On 15 June 1992 the Court declared null and void the contract for
the purchase of the applicant's apartment. As a consequence, the
municipality was the owner of the apartment and the applicant was
ordered to vacate it.
The Court found that, contrary to Section 117 of the Regulation
on State Property, the apartment had been sold only to the applicant
whereas it should have been sold to the applicant and her brother
jointly as both of them had been the tenants. Under Section 117 of the
said Regulation, if the tenancy was held jointly by persons related by
lineal consanguinity, the apartment could be sold to one of them with
the written consent of the other. If, however, the co-tenants were
brothers or sisters, they could purchase the apartment only jointly.
The purpose of this requirement had been to prevent the circumvention
of the rules concerning state housing. In the case before it the Court
noted that shortly after the applicant had bought her apartment her
brother had acquired another state-owned apartment.
The Court also examined in detail the other grounds on which the
plaintiff municipality had relied and dismissed them.
Upon the applicant's appeal the Sofia Regional Court (Gradski
sad) upheld the lower court's judgment on 4 May 1993. The Court
confirmed that there had been a breach of Article 117 of the Regulation
on State Property. In reply to the applicant's submission that, even
if the purchase contract was void, she should not be ordered to vacate
it as she used to be a tenant and therefore had legal ground to stay
in the apartment, the Court stated that as from the date of the
purchase contract the applicant had commenced to possess the apartment
as an owner and not as a tenant. The tenancy relationship between the
applicant and the administrative body which had granted it in 1981
could not be considered as automatically revived.
In her ensuing petition for review to the Supreme Court (Varhoven
sad) the applicant stated that the judgments were absurd because her
brother had given up his purchase right by virtue of a written
declaration and did not want to acquire ownership in the apartment.
On 10 May 1994 the Supreme Court dismissed the petition for
review stating inter alia that the apartment could be sold to brother
and sister co-tenants only if both of them wished to purchase it.
While the brother could have sold his part to his sister immediately
after the joint purchase, he would have needed to declare such
transaction and would not have been able to buy another state-owned
apartment. This was in fact what the applicant's brother had done and
had thus profited of the low state prices exactly at the end of 1990,
just before the prices rose enormously. For these reasons the rule
requiring a sister and a brother to buy an apartment jointly was not
absurd. Its purpose was to safeguard the interests of the State in the
process of the management and the sale of the state housing fund.
Also, the Court found that the above rule was applicable regardless of
the fact whether the second state-owned apartment had been purchased
from the municipality or from a state-owned institution.
The Prosecutor's Office did not take any part in the proceedings
before the Sofia Regional Court or the Supreme Court.
The decisions in the applicant's case did not deal with the
recovery of the price which she had paid for the apartment. Apparently
no such request had been made by the applicant.
The applicant continued to live in the apartment at issue as she
was not evicted. On 21 February 1995 she received a letter from the
local municipality inviting her to sign a lease for the apartment and
to pay rent as from 10 May 1994, the date of the Supreme Court's
decision in her case. The applicant has not substantiated whether she
has accepted this offer or whether she pays a rent.
Relevant domestic law and practice
1. The Regulation on State Property (Naredba za darzhavnite imoti),
as in force at the relevant time, in its Chapter XV set out the rules
for the sale of state lodgings. The decision to sell was within the
competence of the local municipality. According to Section 113 the
housing need of the applying individual or family had to be considered.
Section 117 covered situations where an apartment for sale was
rented by more than one individual. This provision, as in force at the
relevant time, read as follows:
"(1) Dwellings rented by tenants who are members of a family can
be sold to both or to one of the spouses.
(2) Dwellings rented by two or more tenants related in lineal
consanguinity who are members of separate families within the
meaning of section 50 of the Law on the Property of Individuals
can be sold to one of the families upon mutual consent.
(3) A dwelling rented by families of persons related in lineal
consanguinity or by brothers and sisters can be sold jointly to
them or jointly to them and to members of their families in such
shares as agreed among them in a written agreement certified by
the municipality or the mayor's office. In cases of a sale to
brothers and sisters and to members of their families a prior
permission of the Ministry of Finance shall be required. In
those instances the sale shall be effected simultaneously.
(4) In case the dwelling can be divided in accordance with the
building regulations, the part actually occupied by each tenant
can be sold to him or her, but all parts shall be sold. A sale
of only one of the parts shall be effected with the permission
of the Ministry of Finance. In both cases the sale shall be
effected after the dwelling has been duly reconstructed.
(5) No sale of a dwelling rented by two or more families within
the meaning of Section 50 of the Law on the Property of
Individuals shall be effected unless it falls under one of the
above paragraphs.
..."
At the time when the applicant purchased her apartment the Law
on the Property of Individuals prohibited the possession of more than
one dwelling per family, a family being defined as a single individual
of full age or spouses with their children under age. A family which
owned an apartment could acquire a second one only in limited cases,
inheritance being among them, and was required to sell it within a two
years' time limit. Also, it was prohibited to own an apartment larger
than 120 square meters except in certain circumstances or by virtue of
a special permission. This restrictive legal regime was abrogated in
March 1990.
2. The Law on Obligations and Contracts (Zakon za zadalzheniata i
dogovorite), which is the main legislative act in the domain of general
civil law, provides that contracts which are contrary to the law are
null and void ab initio. According to the jurisprudence the nullity
can be declared by a court at any time and in any proceedings. Under
Section 34, as in force since February 1993, each party can recover
from the other the sums paid or the property transferred under a void
contract.
3. The Law on State Responsibility for Damages (Zakon za
otgovornostta na darzhavata za vredi prichineni na grazhdani) provides
for the grounds and the procedure for bringing an action for damages
against state organs.
In a judgment of 18 January 1996 the Constitutional Court was
confronted with the claim that it was contrary to the principle of
state responsibility for damages to deprive an individual from property
purchased from the State, when the purchase was found to be null and
void but this was due to breaches of the law committed by the state
organ, the seller. Addressing this issue the Court noted inter alia
that a contract which was contrary to the law was null and void
regardless of which party was responsible. The Court further stated
that the person whose title has been declared null and void on such
ground could submit a claim for damages against state organs or state
officials who had breached the law at the time of the transactions
(Reshenie po const. delo No. 29/95, D.V. broi 9/96).
4. Section 219 of the Civil Procedure Code (Grazhdanski protzesualen
Kodeks) provides that a first instance judgment, when appealed against,
enters into force after the decision of the second instance court.
5. Section 27 of the Civil Procedure Code provides that the
prosecutor may institute or join civil proceedings on behalf of a third
person whenever this is expressly provided for in the law or where it
is necessary for the protection of state interests. The law provides
expressly for the prosecutor's participation in various types of
proceedings such as, among others, guardianship and other matters
concerning minors or mentally disabled persons, and challenging void
notarial deeds. According to the jurisprudence, under Section 27 the
prosecutor acts as a state authority but assumes the role of a party
to civil proceedings for the protection of the interests of the State
or of the individual.
COMPLAINTS
1. The applicant alleges a breach of Article 1 of Protocol No. 1 to
the Convention in that she has been deprived of her property
unlawfully, arbitrarily and not in the public interest. Thus Section
117 of the Regulation on State Property, in the applicant's view,
allowed her to purchase the apartment alone, with the written consent
of her brother. The courts, however, wrongly interpreted this
provision as establishing a prohibition for those who had the right to
acquire a certain property jointly, to acquire it separately. This was
unreasonable and not in conformity with the general principles of the
Constitution and of international law. Also, the applicant's brother
had purchased another state-owned apartment not from the municipality,
but from the state institute where he worked. Hence, he acquired it
based on the fact that he had been a valuable employee, not because of
a housing need. Furthermore, when ordering the vacation of the
apartment, the courts did not mention at all the fact that the
applicant had already paid its price.
2. The applicant also complains under Article 6 of the Convention
that in the civil proceedings in her case there has been a violation
of the principle of equality of the parties and that the courts were
partial. Thus the action against her was brought by the municipality,
which is a state authority and was joined by the prosecutor, another
state authority. It was unlawful that at the hearing on 28 May 1992
the prosecutor raised additional grounds for the contract's nullity
although the courts did not admit them. The courts were biased as they
interpreted the law arbitrarily and to the applicant's detriment.
3. Invoking Articles 14 and 18 of the Convention the applicant
submits that the purpose of the deprivation of her property has been
political. Thus the plaintiff municipality wrote in its submissions
to the District Court that the purchase of the apartment had been a
"nomenklatura" type scheme. Also, the courts decided arbitrarily,
based on the applicant's past and present political affiliation.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 15 October 1994 and registered
on 16 February 1995.
On 29 November 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 4 March
1996, after an extension of the time-limit fixed for that purpose. The
applicant replied on 24 April 1996. On 24 September 1996 the
Government submitted additional observations which were transmitted to
the applicant on 30 September 1996.
THE LAW
1. The applicant complains under Articles 6, 14, 18 and Article 1
of Protocol No. 1 (Art. 6, 14, 18, P1-1) to the Convention of the
judicial decisions concerning her apartment.
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 6 and Article 1 of Protocol No. 1
(Art. 6, 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, unpublished).
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 application is admissible.
2. The applicant complains that there has been a breach of Article 1
of Protocol No. 1 (P1-1) to the Convention in that the courts, upon the
action of the local municipality and a prosecutor, declared null and
void as contrary to the law a contract by virtue of which she had
purchased an apartment from the state.
Article 1 of Protocol No. 1 (P1-1) 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 or to secure the payment of taxes or other
contributions or penalties."
The Government criticise the judicial decisions in the
applicant's case and state that there has been a breach of this
provision. They submit that the applicant fulfilled all administrative
requirements for the purchase of state housing and thus validly became,
in 1989, the owner of the apartment at issue in the present case.
The Government also submit that, under the relevant rules as in
force in 1989, in transactions with state housing the municipality
acted not only as a seller, but also as a notary public. Therefore,
if there were some omissions in the execution of the applicant's sale-
purchase contract this must have been the responsibility of the
municipality. Nevertheless, it was the same municipality which two and
a half years later sought to invalidate the sale-purchase as contrary
to the law. According to the Government this was contrary to the
principle of state responsibility for damages, as enshrined in
Section 7 of the Constitution.
The Government further submit that the courts wrongly interpreted
Section 117 of the Regulation on State Property. It was not true that
paragraph 3 of this provision required imperatively a joint purchase
in cases of siblings co-tenants. The provision only provided for a
possibility for a joint purchase, thus leaving it to the persons
concerned to agree otherwise if they wished. The Government conclude
that the legal reasoning of the judgments in the applicant's case was
against the law, and that therefore the applicant was deprived of her
property unlawfully. Moreover, the alleged bad faith on the part of
the applicant was not proved and the courts wrongly took into account
the fact that the applicant's brother bought another apartment in 1990,
as this was an event which occurred after the disputed purchase.
The applicant agrees with the position of the Government.
The Commission notes that in the present case the judgment of the
District Court was delivered before 7 September 1992, the date of the
Convention's entry into force in respect of Bulgaria, but that the
decision to declare the applicant's contract null and void has come
into force after its confirmation by the Regional Court on 4 May 1993.
It follows that the alleged breach of Article 1 of Protocol No. 1
(P1-1) to the Convention has taken effect after the Convention's entry
into force for Bulgaria and that the Commission is competent ratione
temporis to examine this complaint.
The Commission further notes that the impugned decisions declared
the applicant's title to her apartment null and void ab initio and that
therefore she was considered to have never had a property right.
Nevertheless, the Commission need not decide whether the applicant can
invoke Article 1 of Protocol No. 1 (P1-1) to the Convention as the
application is in any event manifestly ill-founded for the following
reasons.
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
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 recalls also 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).
The Commission notes in this respect that the applicant's title
to her apartment was declared null and void as contrary to the law by
the courts in civil proceedings in which the applicant was legally
represented and freely put forward all her arguments. Also, the courts
gave detailed reasoning explaining their factual findings and the
interpretation of the law. Contrary to the parties' contention it does
not appear that the courts decided arbitrarily or that they relied on
facts posterior to the relevant period. Their finding of a breach of
Section 117 para. 3 of the Regulation on State Housing followed from
the very fact that the apartment at issue was sold to the applicant
only, whereas it should have been sold to her and to her brother
jointly.
Furthermore, the Supreme Court found that Section 117 required
siblings who were co-tenants in a state-owned apartment, if they wished
to purchase it, to do it jointly. The Court explained that this
requirement prevented the danger of arrangements between siblings to
acquire two state apartments instead of one.
The Commission does not find an indication that the purpose of
the requirements in question was incompatible with Article 1 of
Protocol No. 1 (P1-1) to the Convention. The rules enforced against
the applicant and laid down in Section 117 of the Regulation on State
Property, as interpreted by the courts, aimed at the just appropriation
of the state housing resources by preventing individuals from putting
themselves artificially in a situation of a housing need. It is not
for the Commission to assess the domestic authorities' approach in
drafting or interpreting these legal rules.
Finally, it appears that a decision declaring null and void a
contract which contravenes the regulations for the sale of state
housing would be a proportionate measure for their enforcement.
Insofar as the applicant contends that the municipality was responsible
for the irregularities, and that if she claims the recovery of the
price paid this would not compensate the value of the apartment, the
Commission notes that it was open to her to seek damages in this
respect from the liable state organs or officials.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Under Article 6 (Art. 6) of the Convention the applicant
complains of the alleged unfairness of the civil proceedings in view
of the participation of a prosecutor in the proceedings before the
District Court, of the alleged partiality of the courts and their
allegedly arbitrary interpretation of the law.
The Government submit that the courts based their decisions
partly on irrelevant facts. Also, they actively pursued the
examination of the grounds for nullity, but at the same time failed to
inform the applicant that she could claim to recover the price paid by
her. Therefore, the courts were biased and there has been a breach of
Article 6 (Art. 6) of the Convention.
The applicant agrees and also states that the courts wrongly
considered that they were competent to examine the lawfulness of the
1981 administrative order by virtue of which the applicant became a
tenant in the apartment at issue.
The Commission recalls its case-law according to which "when the
Commission's competence (ratione temporis) begin in the course of
proceedings before a second instance, it may examine such proceedings,
but not those at first instance" (No. 8261/78, Dec. 11.10.79, D.R. 18,
p. 150; No. 24140/94, Dec. 22.2.1995, unpublished). Therefore the
Commission finds that it is not competent to examine the proceedings
before the District Court ending with the judgment of 15 June 1992 as
they were concluded prior to the Convention's entry into force for
Bulgaria.
As regards the proceedings before the Regional and the Supreme
Courts, the Commission recalls that the Convention organs' task when
examining complaints under Article 6 (Art. 6) of the Convention is to
ascertain whether the proceedings considered as a whole were fair (see
Eur. Court HR, Windisch judgment of 27 September 1990, Series A no.
186, p. 10, para. 25).
In the present case the Commission notes that a prosecutor took
part only in the proceedings before the District Court, which fall
outside the Commission's competence ratione temporis.
Furthermore, it does not appear that the fairness of the
proceedings before the Regional and the Supreme Courts have been
affected by the fact that the plaintiffs were state organs. There is
no indication that the applicant was unable to put forward her point
of view, that the other party had been put in a better position, or
that the proceedings were otherwise unfairly conducted. Moreover, the
courts based their judgments on an analysis of the relevant law. There
decisions do not appear to be arbitrary. The Commission already dealt
with the applicant's contentions in this respect.
It follows that this complaint is also manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
4. The applicant invokes Articles 14 and 18 (Art. 14, 18) of the
Convention in that the purpose of the state action against her had been
political. Thus, the plaintiff municipality wrote in its submissions
to the District Court that the purchase of the apartment had been a
"nomenklatura" type scheme. Also, the courts decided arbitrarily,
based on the applicant's political affiliation.
The parties' observations do not mention this complaint.
Insofar as a separate issue arises under Article 14 in
conjunction with Article 1 of Protocol No. 1 (Art. 14+P1-1) to the
Convention, the Commission finds that the applicant's allegations are
based solely on a remark made by the plaintiff municipality in its
submissions to the District Court, which does not appear to be
conclusive of the existence of a political bias on the part of the
courts. Moreover, the Commission has just found that their decisions
do not appear to be arbitrary.
Therefore the remainder of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber