FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48459/99 by Z.G. against Bulgaria

The European Court of Human Rights ( Fourth Section) , sitting on 21 November 2000 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 15 April 1998 and registered on 31 May 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Section’s partial decision of 21 September 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Bulgarian national, born in 1929 and living in Pernik (Bulgaria).

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant’s plot of land and his house were expropriated in 1982 and 1983 respectively by the local municipality. He was compensated with two apartments. In 1992 the Parliament adopted a law on the restitution of property expropriated under planning and other legislation ( Закон за възстановяване собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС) (see below Relevant domestic law).

On 4 June 1992 the applicant requested restitution of his property from the Krasno Selo Deputy-Mayor. On 1 March 1993 the municipal board on architecture and construction issued its opinion according to which a road and a building were built over the expropriated plot of land. On 19 November 1993 the committee in which the appropriate power was vested regarding the restitution of expropriated property expressed the opinion the plot of land should not be returned, regard being had to the fact that it had already been built over.

On 1 March and 23 November 1993 the applicant repeated his request. By letter of 18 March 1994, he was informed by the deputy-mayor that the municipality had been processing his request, the delay being due to the large number of similar applications.

On 5 April 1994 the applicant’s request was rejected by the mayor on the ground that the project for which his property had been expropriated, namely a road and a building, was completed.

On 20 May 1994 the applicant appealed against that decision to the Sofia City Court through the municipality. He requested the court to order the preparation of an expert report regarding his property. On 23 August 1994 the applicant’s appeal was received by the court, on 25 August it was assigned to a panel of judges and on 22 September 1994 the court appointed an expert.

The expert report of 10 November 1994 stated, inter alia , that the road had been closed, the constructed building had been demolished and that the claimed land constituted an independent plot according to the relevant regulations as in force in 1993.

On 16 November 1994 the court held a hearing. The applicant stated that he did not intend to give back the two apartments received as compensation.

On 17 November 1994 the court dismissed the applicant’s appeal holding that the legal conditions for the restitution of the applicant’s expropriated land were not met since he did not intend to give back the two apartments by which he had been compensated.

On 13 January 1995 the applicant submitted a petition for review to the Supreme Court complaining, inter alia , that the lower court did not take into consideration the expert report and the fact that the value of the plot of land had diminished.

Following the adoption of the Judiciary Act, on 16 November 1996, the Supreme Court was split into the Supreme Administrative Court and the Supreme Court of Cassation .

On 6 December 1995 the applicant declared before a notary that he would return the apartments if he received back the plot of land with the house which had been demolished and an adequate compensation.

On 2 June 1997 the Supreme Administrative Court opened case-file no. 7175/95 regarding the applicant’s petition for review. At the hearing of 20 October 1997, the applicant declared his determination to return the apartments at issue. By judgment of 31 October 1997, the court quashed the decision of the Sofia City Court and instructed it to examine whether the applicant’s property had been expropriated on the basis of one of the laws mentioned in the restitution law, whether the project for which the property had been expropriated had been completed on the date on which the restitution law had entered into force and whether the preconditions set out in the restitution law for the annulment of the expropriation had been fulfilled.

The Sofia City Court held its first hearing on 3 February 1998. The applicant declared that he would return the apartments only if a new house were built by the municipality. The applicant applied for leave to adduce additional evidence and the hearing was adjourned.

The hearing resumed on 5 May 1998. The applicant again applied for leave to adduce additional evidence and the hearing was adjourned.

At the hearing of 15 October 1998, the applicant again stated that he would not give back the two apartments.

On 13 November 1998 the Sofia City Court quashed the mayor’s decision of 5 April 1994 and the expropriation orders of 1982 and 1983. It held that the legal conditions set out in the restitution law had been fulfilled.

Upon the applicant’s requests in November and December 1998, the Sofia City Court corrected some errors in its 1998 judgment.

On 15 December 1998 the municipality filed a cassation appeal with the Supreme Administrative Court through the Sofia City Court. On 21 January 1999 the applicant was served with a copy.

On 17 March 1999 the Sofia City Court transmitted the cassation appeal to the Supreme Administrative Court. The hearing was held on 13 May 1999.

On 4 June 1999 the Supreme Administrative Court, at a public hearing, quashed the Sofia City Court’s decision and upheld the mayor’s decision of 5 April 1994. It noted that the applicant had chosen of his own will to request restitution of a plot of land, although the expropriated house had been demolished and it had been clear under the relevant law that he would have to give back the two apartments which he had received in compensation. On several occasions the applicant had declared before the court his unwillingness to give up the apartments. Therefore, there was no clear and unconditional request for restitution. As regards the applicant’s request for compensation, the court held that it had not had jurisdiction to examine that issue, but the applicant would have to institute civil proceedings in this regard.

Throughout the proceedings the applicant was not legally represented.

B. Relevant domestic law

1992 Law on the restitution of property expropriated under planning and other legislation

This law provides that former owners, or their heirs, of real estate 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 an existing building was demolished, its restitution was possible only if the practical execution of the project for which the property had been expropriated had not commenced and the expropriated land had a sufficient surface to constitute an independent plot under the planning regulations (Section 1 § 2). Also, the former owners were required to return what they had received in compensation (Sections 5 ‑ 7).

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that the restitution proceedings were unreasonably long.

THE LAW

The applicant complains that the restitution proceedings lasted unreasonably long. He alleges a violation of Article 6 § 1 of the Convention which provides, so far as relevant, as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a tribunal ...”

The Government state that the applicant has not exhausted all domestic remedies as he has not submitted a civil claim regarding the length of the proceedings under the Law on State Responsibility for Damage to Individuals ( Закон за отговорността на държавата за вреди причинени на граждани ) which would have been an effective remedy in the applicant’s case. Furthermore, the applicant has not raised his complaint about the length of the proceedings in substance and has never invoked Article 6 § 1 of the Convention before the domestic authorities.

The Government also state that the hearings of 3 February and 5 May 1998 had to be adjourned following the applicant’s request for taking of additional evidence, that he was hiding on 3 and 4 December 1998 in order not to be served with a judicial decision, that he was constantly submitting different requests to the courts between 1998 and  1999 and that he tried to slow down the domestic proceedings after he had lodged an application with the Court, thereby abusing his right to petition.

The Government recall that the Convention has entered into force in respect of Bulgaria on 7 September 1992. Therefore, the proceedings before that date cannot be taken into consideration. Moreover, the proceedings before the municipality as a whole should not be taken into consideration either, as they commenced on 4 June 1992, before the entry into force of the Convention in respect of Bulgaria.

The Government consider that the applicant’s complaint is manifestly ill-founded. According to the restitution law, if a person requests to obtain the restitution of an expropriated property he must give back the property which he received as compensation. However, on several occasions before the court the applicant declared that he did not want to return the apartments.

In addition the applicant, who was not represented by a lawyer, was unable clearly to define his requests, which inevitably delayed the proceedings.

The Government consider that the delay in the proceedings before the municipality was due to the fact that the applicant had not enclosed the complete documentation. They further emphasise that the respective proceedings took place before the municipality, the Sofia City Court and the Supreme Administrative Court and that all of them adopted their decisions in due time, regard being had to the number of the restitution requests. In particular, following the enactment of the restitution law, from 1992 to 1993 the competent municipal department dealing with the restitution had to process 4838 requests for restitution.

The applicant rejects the allegation that he was trying to hide with the purpose of delaying the proceedings. He submits that it was his right to decide whether or not to be represented by a lawyer. He maintains that the proceedings lasted unreasonably long.

The Court does not find it necessary to deal with the Government’s objections concerning the alleged failure to exhaust all domestic remedies as it finds that the application is in any event manifestly ill-founded for the reasons now to be set out.

The Court notes that the applicant requested the restitution of his plot of land on 4 June 1992. However, the period to be considered began to run on 7 September 1992 when the Convention entered into force with regard to Bulgaria. The proceedings ended with the judgment of the Supreme Administrative Court of 4 June 1999. Thus, the period to be considered amounts to approximately six years and nine months.

The reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (see, among many other authorities, the Cazenave de la Roche v. France judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1327, § 47).

The Court notes that the proceedings were of some complexity, as the domestic bodies needed to answer the question whether the applicant met the conditions under the relevant law to restore his property rights. It should also be taken into account that the proceedings encompassed administrative, appellate and cassation proceedings before the municipality, the Sofia City Court and the Supreme Administrative Court.

It is true that it took the Supreme Administrative Court two years and eleven months to prepare a hearing in the applicant’s case and although part of that delay is due to the structural re-organisation of the court in accordance with the new law, this cannot be seen as a convincing explanation for the entire length of that period. However, except for that instance’s failure to make progress in the proceedings, the Court does not find any substantial period of inactivity for which the authorities could be held responsible. The hearings were held at reasonable intervals and adjourned when the applicant applied for taking of additional evidence.

The Court agrees with the Government that the applicant’s behaviour was the decisive factor for the delay in the proceedings. From the relevant law it was clear at the outset that the applicant could either obtain the restitution of the expropriated plot of land and relinquish the possession of the two apartments which he had received in compensation or remain the owner of the two apartments without requesting restitution of the land. Nevertheless the applicant, who was not legally represented, instituted civil proceedings with the apparent hope to achieve a solution which he considered just, but which was not provided for under the relevant law. He constantly changed his position as regards the return of the apartments.

On 16 November 1994, the applicant declared before the Sofia City Court that he would not return the two apartments. Then, on 20 October 1997, he declared before the Supreme Administrative Court that he would return the apartments. His case was thus referred back to the Sofia City Court for re-examination. In the subsequent proceedings before the Sofia City Court the applicant again declared his unwillingness to return the apartments. Eventually, the applicant’s attitude led to a finding that no clear and unconditional request for restitution could be considered to have ever been submitted by the applicant.

The Court finds that in these particular circumstances the applicant is responsible not only for certain delays due to his numerous and apparently belated requests for submission of additional evidence but also in respect of the length of the proceedings as a whole.

Therefore, the applicant’s complaint that the restitution proceedings were unreasonably long is manifestly ill-founded within the meaning of Article 35 § 3. Accordingly, the complaint must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Georg Ress

Registrar President