FOURTH SECTION

Application no. 44103/05 Mihail Georgiev NEDYALKOV and others against Bulgaria lodged on 15 November 2005

STATEMENT OF FACTS

The applicants, Mr Mihail Georgiev Nedyalkov , Mr Georgi Mihaylov Georgiev , Mr Dobromir Mihaylov Georgiev and Mr Dimitar Georgiev Yanchev , are Bulgarian nationals who were born in 1923, 1948, 1957 and 1924 respectively. The first and fourth applicants live in the village of Rogachevo , the second applicant lives in the village of Obrochishte and the third applicant lives in Varna . The applicants are represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva , lawyers practising in Plovdiv .

A. The circumstances of the case

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

An ancestor of the applicants owned in the village of Kranevo agricultural land, which was collectivised after 1945.

Following the adoption of the Agricultural Land Act in 1991 (“the ALA ”), the fourth applicant, on behalf of his ancestor ’ s heirs, sought the restitution of land totalling 15,000 square metres. In a decision of 19 June 1995, the Balchik agricultural land commission allowed partially the request, refusing to restore the heirs ’ rights to 9,210 square metres of land, which had been included in urban territories.

Upon an appeal by the fourth applicant, in a final judgment of 7 December 1995 the Balchik District Court quashed in the relevant part the land commission ’ s decision of 19 June 1995 and restored the heirs ’ rights to all of the land claimed.

On that basis, on 19 February 1996 the land commission issued another decision, restoring to the heirs, inter alia, in its “actual boundaries”, “plot no. 891, district 23, under the cadastral plan of Kranevo of 1950”.

Following a partition between the heirs, on 30 September 1996 the fourth applicant and his sister (who was after her death in 2004 succeeded by the remaining applicants) obtained a notary deed for the above plot, which measured 1,180 square metres. The document was accompanied by a plan of the plot, indicating its exact borders.

However, in reality the plot was held by several private persons, since in 1972 it had been transferred by the then-existing agricultural co-operative to the ancestors of Ms D.S., in exchange for another plot, and in 1996 Ms D.S. had sold a share of the property to Ms E.H. and Mr N.R.

On 28 March 1997 the fourth applicant and his sister brought a rei vindicatio action against Ms D.S., Ms E.H. and Mr N.R., claiming that the 1972 transfer of the property and the later sale could not prejudice their own rights. Throughout the proceedings the courts received several plans of the disputed plot and commissioned several expert reports which referred to its borders.

The action was examined by three levels of court and disallowed in a final judgment of the Supreme Court of Cassation of 1 June 2005. The domestic courts took note of the Balchik District Court ’ s final judgment of 7 December 1995 ordering the restitution of the disputed plot to the applicants, but found that they were competent to exercise indirect judicial review of it. The courts found further that the documents describing the plot, namely the Balchik land commission ’ s decision of 19 February 1996 issued pursuant to the judgment of 7 December 1995 and the notary deed of 30 September 1996, referred to “plot no. 891, district 23 under the cadastral plan of Kranevo of 1950”. However, there existed no cadastral plan of 1950 and the actual plans, the last of which of 1984, did not include a plot under such a number. The defendants ’ plot existed under a different number. Thus, the Balchik District Court and the land commission had restored the claimants ’ rights to “a non-existent plot under a non-existent plan” and not to the plot held by the defendants.

In addition, the domestic courts found that the defendants had validly obtained title to their plot pursuant to the 1972 exchange and the 1996 sale contract.

The applicants have not informed the Court whether, following the above developments, they have applied to receive compensation, as they were entitled to pursuant to the relevant provisions of the ALA.

B. Relevant domestic law and practice

The Agricultural Land Act (“the ALA ”) was adopted in 1991. It provides, inter alia , that persons, or their heirs, whose land has been collectivised, may request, under certain conditions, restoration of their ownership rights.

By section 10(13) of the Act, introduced in 1997, the land is to be returned to the former owners also in cases where it has, following the collectivisation, been sold or transferred to third parties.

The remaining provisions of domestic law concerning restitution of agricultural land have been summarised in the Court ’ s judgment in the case of Sivova and Koleva v. Bulgaria (no. 30383/03, §§ 29-44, 15 November 2011 ).

COMPLAINTS

1. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the applicants complain that they were unable to obtain the restitution of their ancestor ’ s plot “in actual boundaries” and, in particular, that the domestic courts ’ findings in the rei vindicatio proceedings that the plot restituted to them could not be duly identified were arbitrary.

2. The applicants also complain, relying on Articles 6 § 1 and 13 of the Convention, that the restitution procedure, including the 1997-2005 judicial proceedings, lasted an unreasonably long period of time, and that they did not have effective remedies in respect thereof.

3. The applicants also complain under Article 6 § 1 of the Convention that the courts in the rei vindicatio proceedings disregarded the binding force of the Balchik District Court ’ s final judgment of 7 December 1995, ordering the restitution of their land.

4. Lastly, the applicants c omplain under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 that they were discriminated against in that the former king of Bulgaria and his sister were able to obtain the restitution of their family ’ s former property under more lenient procedures than the ones applicable to their case.

QUESTIONS TO THE PARTIES

1. Was there a violation of Article 6 § 1 of the Convention, seeing that in the 1997-2005 rei vindicatio proceedings the courts apparently concluded that the plot claimed by the fourth applicant and his sister could not be identified, whereas they had been presented with several plans of that plot, one of which had served as a basis for the issuance of a notary deed?

2. Was the length of the 1997-2005 rei vindicatio proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention? Did the applicants have at their disposal an effective domestic remedy in that regard, as required by Article 13 of the Convention?

3. Has there been a violation of Article 1 of Protocol No. 1 given that the applicants could not obtain the restitution of their plot “in actual boundaries”? W as the interference with the applicants ’ rights under Article 1 of Protocol No. 1 lawful and justified?

Was the restitution procedure too lengthy and were the applicants placed in a situation of legal uncertainty, given that they were involved in many years of litigation in order to have their restitution rights determined (see Sivova and Koleva v. Bulgaria , no. 30383/03, §§ 115-17 , 15 November 2011 )?

The parties are requested to provide information on any developments after 2005 concerning compensation in lieu of restitution.