FOURTH SECTION

Application no. 47405/07 Madlen Magardich CHENGELYAN and others against Bulgaria lodged on 24 September 2007

STATEMENT OF FACTS

A list of the applicants, who are all Bulgarian nationals and are represented by Mr M. Ekimdzhiev , Ms K. Boncheva and Ms G. Chernicherska , is set out in the appendix.

A. The circumstances of the case

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

Ancestors of the applicants owned a plot of land of 246 square metres with a two-storey house built on it in the old part of Plovdiv. In 1949 the building was declared a cultural monument and in 1966 the property was expropriated against the payment of compensation. After that the building was the subject of renovation works, in particular after a fire destroyed a part of it in 1978.

After the adoption of the Restitution of Property Expropriated under Building Planning Legislation Act in 1992 (“the 1992 Act”, see “Relevant domestic law” below), some of the applicants and other heirs of the initial owners (from whom the remaining applicants succeeded in the course of the proceedings) applied for the revocation of the expropriation. On 28 June 1993 they were informed that their application had been rejected by the mayor of Plovdiv and on 7 July 1993 they applied for judicial review. In a judgment of 9 October 1997 the Plovdiv Regional Court upheld the administrative decision. However, the decision was quashed by the Supreme Administrative Court which reversed on appeal, in a final judgment of 2 October 1998.

The Supreme Administrative Court found that the preconditions for restitution had been satisfied, because the property existed still and, in addition, no “public works” within the meaning of the 1992 Act had been commenced because the renovation works carried out after the expropriation had only been aimed at the building ’ s preservation and had not been a part of the implementation of urban development plans. On this basis, the Supreme Administrative Court revoked the expropriation.

Following the above judgment, on 21 May 1999 the applicants paid back to the municipality the monetary compensation received by their ancestors at the time of expropriation.

In 2001 they obtained a notary deed, indicating them as the property ’ s owners.

Despite the developments above, the applicants could not enter into possession, because the property continued to be occupied by the Plovdiv municipality, together with an organisation called “13 Centuries Bulgaria” National Endowment Fund (“the Fund”, see “Relevant domestic law” below). After attempting unsuccessfully to negotiate a solution with these bodies, on 31 December 2003 the applicants brought against them rei vindicatio proceedings.

The action was dismissed in a final judgment of the Supreme Court of Cassation of 8 June 2007. The courts found, in the first place, that they were competent to examine the action. According to the second-instance Plovdiv Regional Court, the judgment of 2 October 1998 could be subject to indirect judicial review, because it was replacing the mayor ’ s administrative decision on the applicants ’ request for restitution and did not have a res judicata effect in proceedings whereby a civil dispute concerning the right to property was examined. On the other hand, according to the Supreme Court of Cassation the defendants to the rei vindicatio action, namely the Plovdiv municipality and the Fund, had not participated in the earlier judicial proceedings and were thus not bound by the judgment of 2 October 2007.

The courts found, next, that the reparation works carried out in the building claimed by the applicants had been so substantial (its appearance had been preserved, but the internal construction had been largely modified; the roof, some windows and other elements had also been changed) that it could not be said that the building existed, within the meaning of the 1992 Act. In addition, the property was being used for the purpose and the “public works” it had been expropriated for, namely “a cultural monument”. Accordingly, none of the preconditions for restitution had been complied with.

B. Relevant domestic law

1. The 1992 Act

The Restitution of Property Expropriated under Building Planning Legislation Act ( Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС , “the 1992 Act”) was adopted in 1992. It provided, in section 1(1), for the revocation of previous expropriations and the restitution of property where certain criteria had been met, in particular where the public works for which the property had been expropriated had not commenced and where any buildings on the property were still existing at the time of the Act ’ s entry into force.

The applicants have submitted two judgments ( Решение № 805 от 8 април 1994 г. по адм . д. № 160/93 г., ІІІ г. о.; Решение № 460 от 15 декември 1993 г. по адм . д. № 2171/92 г., ІІІ г. о. ), where the former Supreme Court of Bulgaria found that the “public works” within the meaning of section 1(1) of the Act always involved the demolition of the expropriated building; where the building was standing, even with substantial improvements carried out after the expropriation, it could not be considered that the preconditions for restitution were not met.

The 1992 Act provided further that where the previous owner had received monetary compensation at the time of expropriation, restitution would only take effect upon repayment of the sum received (section 6(1)).

A request for the revocation of expropriation had to be addressed to the mayor of the municipality, whose refusal (express or tacit) was amenable to judicial review.

2. The “13 Centuries Bulgaria” National Endowment Fund Act

That Act ( Закон за Националния дарителски фонд “13 века България ”), adopted in 2001, provides that the “13 Centuries Bulgaria” National Endowment Fund (“the Fund”) is an organisation tasked with receiving and managing donations from local and foreign persons made in support of Bulgarian education, science, culture, health and other social activities. The Fund is governed by a board, which includes the ministers of culture, health, education and labour. One of them is selected by the Council of Ministers to serve as the board ’ s president. The remaining members of the board are appointed by the Council of Ministers upon a proposal by the Prime Minister. Apart from donations, the Fund ’ s activities are also financed by the State budget.

3. Provisions concerning the res judicata effect of final judgments

The relevant provisions have been summarised in the Court ’ s judgment in the cases of in the case of Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, §§ 34-55, 12 January 2006) and Sivova and Koleva v. Bulgaria ( no. 30383/03, §§ 57-60, 15 November 2011 ).

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that the national courts examining their rei vindicatio action disregarded the binding force of the Supreme Administrative Court ’ s judgment of 2 October 1998. The applicants rely on the Court ’ s findings in the case of Kehaya and Others , cited above. They argue, in addition, that the provision of section 1(1) of the 1992 Act was unclear as to the exact meaning of the conditions for restitution.

The applicants also complain under Article 1 of Protocol No. 1 that the national courts ’ judgments in the rei vindicatio proceedings unlawfully deprived them of property acquired pursuant to the judgment of 2 October 1998. The applicants rely in addition on Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the principles of legal certainty and respect for the res judicata effect of final judgments under Article 6 § 1 of the Convention, in that the dispute about the applicants ’ right to restitution, already determined by the Supreme Administrative Court ’ s final judgment of 2 October 1998, was re-examined by the courts in the rei vindicatio proceedings (see Decheva and Others v. Bulgaria , no. 43071/06 , §§ 38-45, 26 June 2012 , and, mutatis mutandis , Kehaya and Others v. Bulgaria , nos. 47797/99 and 68698/01, §§ 58 ‑ 70, 12 January 2006)? Did the domestic courts ’ conclusion that the Plovdiv municipality was not bound by the judgment of 2 October 1998 comply with those principles? In addition, was the Fund to be considered bound by that judgment, seeing its particular status under public law?

Was the provision of section 1(1) of the 1992 Act, as argued by the applicants, unclear? Did the manner in which the courts applied it in the case breach the applicants ’ right to a fair trial under Article 6 § 1 of the Convention?

2. Did the circumstances of the case also justify a conclusion that the applicants ’ rights under Article 1 of Protocol No. 1 were breached? In particular, did the impossibility for them to enter into possession of the property claimed following the outcome of the rei vindicatio proceedings amount to interference with their property rights and if so, was that interference lawful (see Decheva and Others , §§ 54-58, and, Kehaya and Others , §§ 71 ‑ 77, both cited above)?

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