Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29583/96

by Elisaveta, Marie and Vahe PANIKIAN

against Bulgaria

The European Commission of Human Rights sitting in private on

13 May 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, 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

Elisaveta, Marie and Vahe Panikian against Bulgaria and registered on

2 January 1996 under file No. 29583/96;

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 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 applicants, 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. At that time the first applicant was deputy

headmaster in a school for nurses and her husband was assistant

researcher in a medical institute.

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 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

21 March 1996 and, in the damages case, for 8 October 1996.

The applicants have not requested the repayment of the price of

the apartment. They submit that they have not done so because in 1995

the law was amended several times in this respect, but then the

amendments were quashed by the Constitutional Court (Konstitutsionen

sad) (see below Relevant domestic law and practice); and also because

they risk receiving only the nominal amount paid under the 1959 sale-

purchase contract, and not the real value of the apartment.

B. Relevant domestic law and practice

a. The 1992 Law on the Restitution of Ownership of Nationalised Real

Property provides, inter alia, that the former owners, or their heirs,

of certain types of real property nationalised by virtue of several

specific laws dating 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

Restitution Law's entry into force.

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.

It follows from the provisions of the general civil law that a

person in the applicants' position could claim back from the State the

price paid under the contract.

b. On 19 April 1995 the Parliament adopted an amendment to the

Restitution Law which provided, inter alia, that restitution under

Section 7 should be possible only in cases of acquisition by abuse of

party position or of power; that persons ordered to vacate real

property under Section 7 should receive back the up-to-date "market

price" of the property; and that the court order to vacate should not

be executed until the payment of this amount. On 6 July 1995 the

Constitutional Court declared this amendment unconstitutional on

grounds, inter alia, that modifying the conditions for restitution

under Section 7 after the expiry of the one year time-limit for the

bringing of actions and after the entry into force of judgments based

on them was contrary to the principle of legality. Also, the execution

of a court order could not be made conditional on the payment of an

amount by a third party (Reshenie No. 9 po konst. delo No. 4/95, D.V.

br. 66/95).

On 14 September 1995 the Parliament adopted another amendment to

the Restitution Law which provided, inter alia, that Section 7 should

be repealed. It also reinstated the text of the previous amendment as

regards the payment of the market price and the execution of court

orders. On 17 October 1995 the Constitutional Court declared this

amendment unconstitutional because, inter alia, it reiterated the

previous amendment which had already been found to be unconstitutional

(Reshenie No. 20 po konst. delo No. 24/95, D.V. br. 94/95).

c. In November 1995 the Constitutional Court was seised with a

request to declare Section 7 of the Restitution Law unconstitutional.

On 18 January 1996 the request was refused. The Court found

inter alia that in cases where post-nationalisation transactions

between the State and third persons had been contrary to the law and

therefore void, the former owners had their property rights restored

ex lege, by virtue of the 1992 Restitution Law. The third persons, who

had purchased the nationalised property from the State, "had never

become owners ...". Therefore, they are not deprived of a property

right. It followed that Section 7 was not contrary to the

constitutional guarantee of private property.

The contention, as submitted in the request to the Court, that

Section 7 was unconstitutional as it allegedly did not "take into

account the interests and the rights of the other group [of persons]",

was also unfounded. These rights and interests, acquired in breach of

the law or by abuse of power, could not be derived from the

Constitution and the law and could not be opposed to them. Nobody

could derive rights from his or her unlawful acts.

The Court also examined the assertion that the unlawfulness of

the transactions between the State and the third persons was often the

result of unlawful acts of the State administration. It was contended

that, therefore, the constitutional principle of State responsibility

for damages caused by the State was breached by Section 7 of the

Restitution Law. The Court noted that a contract which was contrary

to the law, was null and void regardless of which party was

responsible. The Court further stated that persons in the applicants'

position could submit claims for damages against State organs or State

officials, who had breached the law at the time of the transactions.

Section 7 of the Restitution Law did not impede such claims in any way.

It was within the competence of the Parliament to elaborate rules in

this respect (Reshenie po konst. delo 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.

The applicants also complain that Article 13 of the Convention

was breached in that the courts wrongly interpreted the law and the

evidence in the case and thus violated their right "to ... proceedings

establishing the justice and the truth".

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 considers that it cannot, on the basis of the

file, determine the admissibility of these complaints and that it is

therefore necessary, in accordance with Rule 48 para. 2 (b) of the

Rules of Procedure, to give notice of these complaints to the

respondent Government.

2. The applicants also complain, invoking Article 13 (Art. 13) of

the Convention, that the courts wrongly interpreted the law and the

evidence in their case.

However, 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 (Appl. No. 10000/82, Dec. 4.7.83, D.R. 33, pp. 247,

255).

Insofar as the applicants may be understood as complaining that

the proceedings in their case were unfair, the Commission recalls its

well established case-law according to which where the right claimed

is of a civil character, the guarantees of Article 13 (Art. 13) are

superseded by the more stringent requirements of Article 6 para. 1

(Art. 6-1) of the Convention (Appl. No. 13021/87, Dec. 8.9.88, D.R. 57,

pp. 268, 277).

However, in the present case the Commission finds no indication

that the applicants, who were represented by three lawyers, could not

sufficiently put forward their point of view, that the judges were

biased or that the proceedings were otherwise unfairly conducted.

Furthermore, the judgments were based on the analysis of evidence

derived from the relevant documents and its assessment in the light of

the submissions of the parties. The Commission notes in this context

that the Bulgarian courts addressed almost every objection of the

applicants.

In these circumstances the Commission finds that there is no

appearance of a violation of the principle of a fair hearing within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Appl.

No. 7987/77, Dec. 13.12.79, D.R. 18, pp. 31, 45).

It follows that 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, by a majority,

DECIDES TO ADJOURN the examination of the applicants' complaints

under Articles 8 and 14 (Art. 8, 14) of the Convention and

Article 1 of Protocol No. 1 (P1-1) thereto;

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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PANIKIAN v. BULGARIA

PANIKIAN v. BULGARIA

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