ITEMID: 001-68882
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF CHODECKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Non-pecuniary damage - financial award
TEXT: 5. The applicant was born in 1955 and lives in Sosnowiec.
6. On 12 June 1994 he was arrested on suspicion of murdering his common-law wife.
7. On 13 June 1994 the Sosnowiec District Prosecutor (Prokurator Rejonowy) charged the applicant with homicide and remanded him in custody until 12 August 1994 in connection with the investigation against him. The prosecutor considered that, given the serious nature of the offence in question, keeping the applicant in custody was necessary to ensure that the process of obtaining evidence followed its proper course. On the same day the prosecutor ordered an autopsy.
8. On 23 June 1994 the applicant appealed and requested his release.
9. On 24 June and 4 July 1994 the prosecutor ordered expert opinions. On 6 July 1994 the prosecutor ordered a reconstitution of the events which had taken place on the day of the death.
10. On 11 July 1994 the Katowice Regional Court (Sąd Wojewódzki) dismissed the applicant’s appeal of 23 June 1994. It found the same justification for the applicant’s detention: the reasonable suspicion against him, the serious nature of the offence in question and the fear that the applicant might tamper with the evidence.
11. On 28 July 1994 the Sosnowiec District Prosecutor prolonged the applicant’s detention until 12 September 1994.
12. On 29 July 1994 the Sosnowiec District Court ordered that two psychiatric reports be obtained in order to establish the applicant’s criminal responsibility.
13. On 27 and 28 August 1994 the prosecutor ordered that two other medical reports be obtained.
14. On 5 September 1994 the Katowice Regional Court prolonged the applicant’s detention on remand until 30 October 1994, relying on the existence of a reasonable suspicion that he had committed the offence in question. The court referred also to the fact that two expert reports had to be prepared. They were submitted to the court on 9 September and 24 October 1994.
15. On 24 October 1994 the applicant obtained access to the case-file.
16. On 28 October 1994 the District Prosecutor submitted the bill of indictment to the Regional Court. The prosecutor asked the court to hear evidence from 38 witnesses.
17. The trial court held hearings on 12 January, 16 March, 21 March, 28 March, 1 June, 8 June, 20 June, 12 October and 12 December 1995, as well as on 28 March 1996.
18. On 28 March 1996 the Katowice Regional Court gave judgment. The court convicted the applicant as charged, and sentenced him to twelve years’ imprisonment.
19. On 30 May 1996 the applicant appealed.
20. On 13 August 1996 the Katowice Court of Appeal (Sąd Apelacyjny) quashed the first-instance judgment and remitted the case for re-examination. It pointed out that the conviction was based on circumstantial evidence and that certain facts required further clarification.
21. In the course of the retrial, the Regional Court held hearings on 10 December 1996, 27 February, 28 February, 26 March, 30 April, 8 May and 28 October 1997, as well as on 14 and 22 January 1998. The hearing scheduled for 17 February 1998 was adjourned.
22. At the hearings of 30 April 1997, 28 October 1997 and 17 February 1998 the applicant’s counsel applied for his release, but to no avail.
23. On 1 June 1998 the court prolonged the applicant’s detention until 30 November 1998. It made reference to the reasonableness of the suspicion that he had committed the offence in question. The court stressed the serious nature of that offence and the necessity to consider further evidence.
24. On 10 June 1998 the applicant’s lawyer appealed against that decision. He contested the reasonableness of the charge against his client, maintaining that it was solely based on presumptive evidence. He also submitted that the applicant’s prolonged detention no longer served the purpose of securing the proper course of the proceedings since all necessary evidence had been obtained by the courts.
25. On 24 June 1998 the Katowice Court of Appeal dismissed both appeals. It pointed out that the principle referred to by the applicant, whereby detention exceeding two years could be prolonged only by the Supreme Court, did not apply to his case. The court observed that that principle concerned only the proceedings before the trial court and it was no longer valid once that court had delivered its judgment, even if the judgment was subsequently quashed by the appellate court.
26. On 30 July 1998 the applicant appealed against this decision.
27. On 3 August 1998 the Katowice Court of Appeal informed the applicant that no appeal lay against a decision given by an appellate court.
28. On 24 September 1998 the Katowice Regional Court gave judgment. It again convicted the applicant of homicide and sentenced him to ten years’ imprisonment. The court deducted from the sentence the period spent by the applicant in detention.
29. On 26 November 1998 the applicant’s lawyer appealed.
30. On 27 November 198 the Katowice Regional Court prolonged the applicant’s detention on remand until 29 January 1999 in view of the applicant’s conviction and sentence the month before.
31. On 8 December 1998 the applicant challenged that decision before a court which did not have the necessary jurisdiction. Accordingly, on 11 January 1999 the matter was transferred to the Katowice Court of Appeal, which on 25 February 1999 dismissed both of his appeals.
32. On 26 April 1999 the applicant’s lawyer lodged a cassation appeal with the Supreme Court concerning the conviction and sentence.
33. On 6 March 2000 the Supreme Court dismissed that appeal.
34. At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 “Code of Criminal Procedure” (Kodeks postępowania karnego) (“the Code”) entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998. The Code listed as “preventive measures”, inter alia, detention on remand, bail and police supervision.
35. Article 209 set out the general grounds justifying the imposition of preventive measures, as follows:
“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”
36. Article 217 § 1 defined the grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, provided as follows:
“1. Detention on remand may be imposed if:
(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or
(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; or
(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or
(4) an accused has been charged with an offence which creates a serious danger to society...”
37. On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 § 1 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read:
“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or
(2) [as it stood before 1 January 1996].”
Paragraph 2 of Article 217 provided:
“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”
38. The Code envisaged a margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate.
39. On 4 August 1996 an amendment to the Code of Criminal Procedure entered into force, according to which time-limits for detention on remand were introduced.
40. From that date onwards, Article 222 of the Code read, in so far as relevant, as follows:
” 3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning ordinary offences. In cases concerning serious offences this period may not exceed two years.
4. In particularly justified cases, the Supreme Court may, upon the request of the court competent to deal with the case ... prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings within the time-limits referred to in paragraph 3.”
41. Article 263 of the 1997 Code provides, in so far as relevant:
“3. The length of detention on remand until the delivery of a first judgment by the trial court shall not exceed two years.
4. Detention on remand may be prolonged for a fixed period exceeding the periods provided for in paragraphs 2 and 3 only by the Supreme Court at the request of the court dealing with a case ... – if it is necessary because of the suspension of criminal proceedings, the prolonged psychiatric observation of an accused, the prolonged preparation of an expert opinion, the collection of evidence in a particularly complicated case or abroad, a delay in the proceedings caused by an accused, as well as other obstacles which could not be overcome.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-3


ITEMID: 001-68928
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF KOLEV v. BULGARIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 4. The applicant was born in 1958 and lives in Sofia.
5. On 11 May 1994 he was arrested and remanded in custody on charges of fraud. He was accused of having obtained in February 1994 a bank credit in the amount of 300,000 Bulgarian levs (which, at the relevant time were the equivalent of approximately 10,000 US dollars) by presenting himself under a false identity and through the use of forged documents. Three other persons, the applicant's alleged accomplices, were also charged in the same proceedings in relation to a number of separate counts of fraud and forgery.
6. The applicant had a criminal record which included convictions for thefts dating from 1991, when he was sentenced to four years and two months' imprisonment. As a result, the charges brought against him in 1994 concerned a case of aggravated recidivism, punishable by three to fifteen years' imprisonment.
7. The preliminary investigation was completed in the beginning of 1996 when an indictment was submitted to the Sofia City Court.
8. The court held hearings on 24 June and 16 October 1996, 14 January, 18 March, 13 June and 3 November 1997, 13 January, 8 April and 11 November 1998, 3 May, 29 June and 8 October 1999. The hearings were adjourned as witnesses or representatives of the civil plaintiffs did not appear or could not be found and summoned. On some occasions adjournments were necessary as one or more of the co-accused persons had not appeared. The applicant's absence was the reason for one adjournment, of the hearing held on 18 March 1997.
9. On 8 October 1999 the presiding judge, Mrs M., withdrew from the case. The reason for her withdrawal was pressure brought to bear by the Sofia City Prosecutor in relation to Mrs M.'s decisions to release the applicant on bail (see paragraph 32 below). The examination of the case restarted.
10. The hearings listed for 10 April, 22 June, 28 September and 21 December 2000 could not proceed as some of the co-accused persons had not appeared. The applicant was present at those hearings.
11. On 23 February 2001 the hearing was adjourned as the applicant's lawyer withdrew from the case shortly before the start of the hearing.
12. The hearings scheduled for 25 April, 18 May and 22 October 2001 and 22 February 2002 were also adjourned as several of the persons summoned had not appeared and additional evidence ought to be collected.
13. The applicant and another accused person did not appear at the hearing listed for 25 June 2002. The Sofia City Court ordered the applicant's arrest and remand in custody and adjourned the hearing. The applicant was not found before the date of the next hearing, 25 November 2002, which caused another adjournment.
14. The applicant appeared at the hearings on 27 March 2003 and 8 September 2003, but the case was adjourned as another accused person had been unable to attend.
15. At the hearing on 21 and 24 November 2003 the Sofia City Court heard several witnesses and adjourned the case as some of the witnesses had not appeared.
16. As of February 2005 the criminal proceedings against the applicant were still pending before the Sofia City Court, a hearing having been listed for 1 March 2005.
17. Throughout the proceedings the Sofia City Court sought police assistance to secure the presence of the persons summoned for the hearings and imposed fines or ordered the arrest of persons who had not appeared without good cause.
18. On 11 May 1994 the applicant was arrested and remanded in custody.
19. The applicant appealed several times against his detention. Release on bail was repeatedly refused on the basis of Article 152 of the Code of Criminal Procedure and the relevant practice, according to which remand in custody was mandatory in all cases where the sentence faced went beyond a certain threshold of severity. In the present case the authorities also relied on paragraph 3 of Article 152 of the Code, as in force between 1995 and 1997, which provided that remand in custody was mandatory without exception where, inter alia, the accused person was a recidivist.
20. On 14 January 1997 the Sofia City Court decided to release the applicant on bail. Noting that to release the applicant would run contrary to the letter of Article 152 § 3 of the Code of Criminal Procedure, the court stated that nevertheless the continuation of the applicant's detention could not be reasonably justified. The court stated that numerous inexcusable delays had been caused by failure of witnesses or injured parties to appear or owing to police inaction and that the applicant should not bear the consequences. The court also noted that according to a medical report the applicant's mental health had deteriorated. In particular, he was passive, depressed and his behaviour revealed a high risk of a suicidal crisis.
21. The applicant paid the recognisance and was released on 21 January 1997.
22. Upon the prosecutor's appeal, on 5 March 1997 the Supreme Court of Cassation quashed the Sofia City Court's order of 14 January 1997 and ordered the applicant's remand in custody. The court found that there were no exceptional circumstances warranting release, regard being had to the fact that the applicant had a criminal record and could re-offend or abscond.
23. The applicant remained free until 18 March 1997. On that day he failed to appear at the hearing in the criminal case against him and was arrested several hours later, apparently at his home address.
24. Between September 1997 and November 1998 the applicant unsuccessfully sought release on bail stating, inter alia, that he had had no intention to abscond, which was allegedly demonstrated by the fact that he had been found by the police at his address. The courts based their refusals on Article 152 of the Code of Criminal Procedure and the relevant practice, while also noting that the applicant had not appeared at the hearing of 18 March 1997 and that therefore there was a risk of absconding.
25. On 11 November 1998 the Sofia City Court ordered the applicant's release on bail stating that the continuation of his pre-trial detention - which had exceeded four years - was unjustifiable.
26. The applicant paid the recognisance and was released on an unspecified date in November 1998.
27. Upon the prosecutor's appeal, on 26 February 1999 the Sofia Appellate Court quashed the City Court's decision of 11 November 1998 and ordered the applicant's remand in custody, reiterating that there was a danger of absconding.
28. Despite the Appellate Court's decision the applicant remained free. On 3 May and 29 June 1999 he appeared at the hearings in the criminal case.
29. On 29 June 1999 the Sofia City Court issued a new order for the applicant's release.
30. Upon the prosecutor's appeal, on 2 August 1999 the Sofia Appellate Court again ordered the applicant's remand in custody. The court relied on Article 152 of the Code of Criminal Procedure and the relevant practice.
31. The applicant was arrested on 3 August 1999 pursuant to the Appellate Court's decision.
32. At the hearing held on 8 October 1999 the Sofia City Court found that it was unable to rule on the applicant's request for release on bail. That was so because the prosecutor had requested from the Supreme Judicial Council, the body which appoints, promotes and dismisses judges, an authorisation to prosecute Mrs M., the presiding judge, in relation to her decisions to release the applicant on bail.
33. On 20 December 1999 the applicant appealed against his continuing pretrial detention.
34. On 21 January 2000 the Sofia City Court dismissed the appeal. The court noted that the applicant was a recidivist and that therefore the danger of his absconding and re-offending was presumed under the new wording of Article 152 § 2 of the Code of Criminal Procedure, as in force since 1 January 2000 (see paragraph 42 below). Since the available evidence did not establish facts capable of overturning the presumption, the applicant should remain in custody.
35. Upon the applicant's appeal, on 25 February 2000 the Sofia Appellate Court quashed the Sofia City Court's decision and ordered the applicant's release on bail, criticising the lower court for having interpreted the relevant new provisions wrongly. The applicant was released on the same day.
36. All decisions of the Sofia Appellate Court were taken in private. On at least one occasion the Appellate Court decided after having received comments by the Appellate Prosecutor's Office which were not communicated to the applicant.
37. The applicant was arrested again on 31 March 2003, pursuant to the order of the Sofia City Court of 25 June 2002, as he had failed to appear at the hearing listed on that day (see paragraph 13 above).
38. On 31 March 2003 the applicant appealed against his detention. On 7 April 2003 his appeal was granted and he was released. The court accepted that the applicant's failure to appear on 25 June 2002 did not disclose a danger of him absconding, taking into consideration the applicant's explanation and his diligent behaviour in the proceedings. The court also took into account the fact that the applicant had already spent an excessively lengthy period in pre-trial detention, which ran contrary to the Code of Criminal Procedure and the Convention.
39. According to the practice of the Supreme Court, Article 152 § 1 required that a person charged with a serious wilful offence had to be remanded in custody. Under Article 152 § 2 an exception was only possible where it was clear beyond doubt that any danger of absconding or reoffending was objectively excluded since, for example, the accused was seriously ill. The detainee bore the burden to prove the existence of such exceptional circumstances.
40. Article 93(7) of the Penal Code provides that a “serious offence” is one punishable by more than five years' imprisonment.
41. Under paragraph 3 of Article 152, as in force between 1995 and 1997, pre-trail detention was mandatory without exception where another preliminary investigation was pending against the accused person as well as in the cases of recidivism.
42. In accordance with the amended Article 152 §§ 1-3 of the Code of Criminal Procedure, accused persons may be remanded in custody only where it is established that there is a real danger of them absconding or committing an offence. For purposes of the initial decision to detain the accused person, such a danger is presumed, inter alia, where the charges concern an offence punishable by more than ten years' imprisonment or where the accused person was a recidivist. However, this presumption does not shift the burden of proof: the authorities must verify in each case whether or not a real danger exists of the accused person absconding or re-offending. Also, for purposes of subsequent decisions to extend pre-trial detention, the persistence of a real danger of the accused person absconding or re-offending must be established (see Interpretative decision no. 1 of 25 June 2002 of the Supreme Court of Cassation).
43. In a judgment of 8 November 2001 in case no. 1384/01, the Pazardjik Regional Court awarded damages to the plaintiff, whose appeal against detention had been examined 50 days following its submission. The court found that that excessive delay had breached Article 152a of the Code of Criminal Procedure and Article 5 § 4 of the Convention. It further considered that damages were due despite the fact that the exact legal characterisation of the claim under the State Responsibility for Damage Act was unclear. In assessing the case, the court took into account the fact that the plaintiff had suffered a serious psychological trauma as a result of her continued detention and had tried to commit suicide by knocking her head against the wall.
44. In a judgment of 24 March 2004 in case no. 1691/03, the Sofia Appellate Court noted that the plaintiff's request for release had been examined 42 days following its submission, in violation of Article 152a of the Code of Criminal Procedure. Nevertheless, the court considered that it was not possible to speculate whether or not the plaintiff's release would have been ordered had his application been examined within the relevant time-limit. Therefore, no damages were due on account of the delay.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
5-4
6-1


ITEMID: 001-83599
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF GIERLINGER v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1
JUDGES: Loukis Loucaides
TEXT: 4. The applicant was born in 1964 and lives in Neustift.
5. In December 1999 the Neustift community (Gemeinde) requested a permit from the Rohrbach District Administrative Authority (Bezirkshaupt-mannschaft) to enlarge its canalisation system. At a hearing scheduled on 4 May 2000 the applicant, who had not been summoned as a party, filed objections and submitted that the project would interfere with his property rights as it would affect the drainage system on his real estates.
6. On 15 June 2000, after having heard an official expert on water construction technology and biology, the Administrative Authority granted the requested permit. The applicant lodged an appeal with the Upper Austrian Regional Governor (Landeshauptmann).
7. In the subsequent proceedings the Regional Governor ordered the expert to supplement his opinion which was then submitted to the applicant for comment.
8. On 25 January 2001 the Regional Governor (Landeshauptmann) dismissed the applicant's appeal. Referring to the supplemented expert opinion, the Regional Governor found that the project at issue would not affect the drainage system on the applicant's premises.
9. On 16 March 2001 the applicant filed a complaint with the Administrative Court (Verwaltungsgerichtshof).
10. Having held an oral hearing, upon the applicant's request, the Administrative Court dismissed this complaint on 31 March 2005. It noted that the breach of the applicant's right to being summoned to be heard as a party before the District Administrative Authority had been remedied in the course of the proceedings. The applicant had been given an opportunity to submit comments and objections before the second instance and had thus been heard as a party. As to the remaining complaint concerning the alleged interference of the project with his property, the Administrative Court found that the applicant's general submissions could not disprove the conclusive findings of the expert. This decision was served on the applicant's counsel on 26 April 2005.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-76465
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VAJAGIC v. CROATIA
IMPORTANCE: 3
CONCLUSION: Violation of P1-1;Not necessary to examine length complaint under Art. 6;Violation of Art. 13;Remainder inadmissible;Just satisfaction reserved
JUDGES: Christos Rozakis
TEXT: 4. The applicants were born in 1937 and 1942, respectively, and live in Virovitica.
5. In 1976 the local authorities expropriated the applicants’ property with a view to building a road. The property consisted of 622 square metres of land with a house, shed, garage, toilet, well and fence.
6. The proceedings concerning compensation for that property were pending before the competent judicial authority since 1977. Due to a change in legislation, in 1994 the case was transferred to the administrative authorities.
7. On 1 December 1995 the Property Affairs Office of the Town of Virovitica (Ured za imovinsko-pravne poslove; “the Virovitica Office”) acting as the first-instance authority granted the applicants compensation for their property in the amount of 158,049 Croatian kunas (HRK), including interests payable as of the date of the decision. On appeal, on 10 December 1996 the Ministry of Justice (Ministarstvo pravosuđa; “the Ministry”) quashed that decision and remitted the case.
8. On 5 May 1997 the Virovitica Office gave a new decision awarding the applicants compensation in the amount of HRK 184,763 with interests payable as of the date on which the decision on expropriation became final.
9. The Town of Virovitica filed an appeal against that decision, which the Virovitica Office declared inadmissible on 10 June 1997 because it had been submitted outside the statutory time-limit. However, on 2 July 1997 the Office admitted the appeal and reinstated the case. Subsequently, on 14 April 1998 the Ministry reversed the first-instance decision, determining a lower amount of compensation payable to the applicants. Both parties filed administrative actions against that decision.
10. On 13 October 1999 the Administrative Court (Upravni sud Republike Hrvatske) quashed the Ministry’s decision of 14 April 1998 and remitted the case. Consequently, on 12 March 2000 the Ministry quashed the first-instance decision of 5 May 1997 and remitted the case to the first administrative instance. It found that the amount of compensation was to be calculated in line with the current market prices of the expropriated property.
11. In the resumed proceedings, the Virovitica Office obtained an expert opinion assessing the value of the property and held a hearing. On 20 November 2000 the Virovitica Office gave a new decision determining the amount of compensation payable to HRK 197,097. On 12 March 2001 the Ministry again quashed that decision and remitted the case, ordering the first-instance authority to obtain an additional expert opinion on the value of the property.
12. The Virovitica Office accordingly obtained a new expert opinion and held another hearing. On 9 October 2001 it gave a new decision, awarding the applicants HRK 209,352 in view of compensation. On 15 October 2002 the Ministry quashed that decision, finding that the first-instance authority failed to determine the correct amount of compensation.
13. On 11 March 2004 the Virovitica Office gave a new decision awarding the applicants HRK 209,107. The applicants appealed and on 11 November 2004 the Ministry quashed that decision yet another time and remitted the case. The proceedings are still pending before the first-instance authority.
14. Meanwhile, on 22 April 2002 the applicants filed a motion for review of constitutionality (prijedlog za ocjenu ustavnosti) of certain provisions of the 1994 Expropriation Act. It appears that the Constitutional Court (Ustavni sud Republike Hrvatske) has not yet adopted a decision on their motion.
15. Section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske) as amended on 15 March 2002, Official Gazette nos. 29/2002 of 22 March 2002 and. 49/2002 (consolidated text) – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
16. In case no. U-IIIA/635/2004 of 25 November 2004, the Constitutional Court was seized under Section 63 of the Constitutional Court Act to examine the length of administrative proceedings instituted in July 1996 when the complainant had brought an action in the Administrative Court for the Ministry of Defence’s failure to give a decision in his case. In October 1998 the Administrative Court ordered the Ministry to give a decision within 30 days. The Ministry gave a negative decision in July 1999. The complainant then brought a second administrative action, challenging that decision. In September 2000 the Administrative Court quashed the impugned decision and remitted the case. The Ministry again gave a negative decision and served it on the complainant in January 2004. On 18 February 2004 the complainant had brought a third administrative action, which was dismissed by the Administrative Court in June 2004. Meanwhile, on 25 February 2004 he lodged his constitutional complaint arguing that the Constitutional Court should, like the European Court of Human Rights, take into consideration the overall length of administrative proceedings when examining whether or not they exceeded a reasonable time.
Following its previous practice (decisions no. U-III-2467/2001 of 27 February 2002, and U-IIIA/3638/2003 of 18 February 2004), the Constitutional Court held that only the inactivity of the judicial authorities was relevant for a breach of Article 29 § 1 of the Constitution. In its view it was not possible for proceedings before the administrative authorities to last unreasonably long because the statutes regulating those proceedings contained the presumption that the application had been dismissed if the administrative authorities failed to give a decision within the statutory time-limits (see paragraphs 25 and 26 above). The Constitutional Court therefore examined only the length of the proceedings in their part between the introduction of the complainant’s third action in the Administrative Court and the lodging of the constitutional complaint. It dismissed the constitutional complaint finding that the proceedings had lasted only seven days.
17. The 1957 Expropriation Act (Zakon o ekproprijaciji, Official Gazette of SFRY no. 12/1957), which was a federal law of the former Yugoslavia, provided that a hearing should be held with a view to determining the amount of compensation only after the property had already been expropriated. The 1978 Expropriation Act (Zakon o ekproprijaciji, Official Gazette no. 30/1978), which was a law of Croatia as a federal unit within the former Yugoslavia, contained provisions on just satisfaction for expropriated property.
The 1994 Expropriation Act (Zakon o izvlaštenju, Official Gazette nos. 9/94, 35/94 and 114/01), adopted after Croatia’s independence, provides that the decision on compensation should be given at the same time the actual expropriation takes place. Sections 8 and 33 provide that compensation for expropriated property should equal the market value of that property at the time of the issuance of the first-instance decision in the expropriation proceedings.
VIOLATED_ARTICLES: 13


ITEMID: 001-79790
LANGUAGEISOCODE: ENG
RESPONDENT: BGR
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF VELIKOVI AND OTHERS v. BULGARIA
IMPORTANCE: 2
CONCLUSION: No violation of P1-1 for some applicants;Violation of P1-1 for the others;No violation of Art. 6 (one applicant);Not necessary to examine Arts.13 and 14;Just satisfaction partially reserved;Costs and expenses partial award
JUDGES: Peer Lorenzen
TEXT: 6. Mr Ilia Velikov (“the first applicant”) was born in 1923. He passed away on 27 April 2002. His sons, the second and the third applicants, stated that they maintained the application. Mr Atanas Velikov (“the second applicant”) was born in 1944. Mr Rossen Atanassov (“the third applicant”) was born in 1947. They were represented before the Court by Mr B. Voinov and Mr R. Raykovski, lawyers practising in Sofia
7. On 27 May 1968 the applicants bought jointly from the Sofia municipality a five/six-room apartment which had been nationalised in 1949. They made a 20% down-payment and reimbursed the remainder within the following years. During the relevant period the prices of apartments in big cities were fixed by legislation in amounts equal to at least several years' worth of an average salary.
8. In 1978 the apartment was divided into two apartments which became the ownership of the second and the third applicants respectively. In 1991 the second applicant transferred his title to his two sons, Alexander and Ilia Velikov.
9. In February 1993 the heirs of the pre-nationalisation owner of the whole apartment brought an action against the applicants under section 7 of the Restitution Law (see paragraphs 117-120 below explaining the relevant law and practice). In the proceedings that followed, the courts collected documentary evidence and also heard several witnesses.
10. On 17 February 1995 the Sofia District Court declared the 1968 contract null and void as contrary to the law and restored the plaintiffs' ownership rights.
11. The District Court found that the 1968 contract had not been signed by the relevant official – the mayor of the relevant district (председател на ИК на общински НС). In the applicants' case the decisions approving the contract had been issued by the deputy mayor of the region of Sofia (председател на ИК на Окръжен/Градски НС), the superior of the competent mayor of the relevant district. However, a superior administrative body could not validly usurp the powers vested in their subordinates in matters that were not subject to appeal. Also, the regional mayor's power to approve sales of apartments had only been introduced by an amendment that had entered into force in 1969, several months after the relevant dates.
12. On a final point, the District Court dismissed as unproven the allegation that the first applicant, who had been registered as an “anti-fascist and anti-capitalist veteran” – a registration which at the relevant time carried a number of privileges guaranteed by law – had abused his position to obtain the apartment at issue.
13. On 20 January 1997 the Sofia City Court dismissed the applicants' ensuing appeal.
14. Upon the applicants' petition for review (cassation), on 27 October 1997 the Supreme Court of Cassation upheld the lower courts' judgments while adding that there was sufficient circumstantial evidence of abuse: information that the first applicant might have been given priority, that he had made statements against persons who had applied to buy the same apartment and that when applying to purchase the apartment in 1968 he had stated that he should be “given his due” as a veteran.
15. On 25 November 1997 the restored owners brought an action for rei vindicatio. On an unspecified date in the beginning of 2000 the applicants and their sons vacated the two apartments and the pre-nationalisation owners took possession thereof.
16. Since October 2000 the sons of the second applicant have been renting an apartment at the monthly rate of 100 Euros (“EUR”). The applicants' families unsuccessfully requested the Sofia municipality to provide them with municipal apartments at fixed rental rates.
17. On an unspecified date the applicants and their sons requested compensation by bonds under the Compensation Law (for an explanation about that compensation scheme and the fluctuations in bond prices, see paragraphs 133-139 below). The market value of the two apartments was assessed in the beginning of 2000 by a certified expert at 84,756 Bulgarian levs (“BGN”), the equivalent of approximately EUR 42,900. The applicants received compensation bonds of that amount.
18. Some of the applicants or their sons sold their bonds in November 2004, when such bonds were traded at about 68% of their face value. One of the applicants sold his bonds at a moment when the market reached a peak, bonds trading at 110% of face value. In total, the applicants and their sons obtained the equivalent of approximately EUR 30,500 as compensation.
19. The applicant, Mrs Nadejda Wulpe, is a Bulgarian national, who was born in 1929 and lives in Sofia. Before the Court she was represented by Mrs S. Marguaritova-Voutchkova, a legal adviser practising in Sofia.
20. In 1969 the applicant's husband was granted the tenancy of a threeroom, 95-square-metres' state-owned apartment. The applicant's family moved in. The applicant had two daughters.
21. In 1982 the applicant, who had divorced and had obtained the tenancy of the apartment, purchased it and reimbursed the price within the following years.
22. In 1993 the heirs of the pre-nationalisation owners of the apartment, which had been nationalised in 1949 without compensation, brought an action against the applicant under section 7 of the Restitution Law.
23. It appears that at that time the applicant no longer lived in Burgas. She had moved to Sofia on an unspecified date.
24. By judgment of 24 March 1995 the Burgas District Court declared the 1982 purchase null and void. The court noted that the tenancy of the apartment had been obtained in 1969 in breach of the law as, according to the applicable rules, a four-member family – as the applicant's – had only been entitled to a two-room apartment. Furthermore, upon her divorce the applicant had been granted the tenancy of the apartment in breach of the law as it had largely exceeded her and her two daughters' needs. In any event, at that time the applicant should have been treated as a “one-member” family, her daughters having moved to Sofia. Moreover, at the moment of the 1982 transaction the applicant had not yet been a resident of Burgas (which was a pre-condition to buy an apartment there) and, since her daughters had attained majority, they could not be counted as members of the family to justify a right to buy a three-room apartment. Finally, the 1982 salepurchase contract had not been signed by the mayor personally.
25. The applicant's ensuing appeal was dismissed in January 1996 by the Burgas Regional Court. On 17 September 1997 the applicant's petition for review (cassation) was dismissed by the Supreme Court of Cassation. The courts upheld the conclusions of the District Court and stated that each of the breaches of the law found by that court had been sufficient to warrant a finding that the applicant's title was void.
26. On 2 October 1997 the applicant wrote to the mayor requesting market-value compensation in accordance with the June 1996 amendment of the Restitution Law (see paragraphs 129-132 below). She received a reply by the regional governor explaining that such compensation would only be payable after the adoption by the Council of Ministers of regulations on the implementation of the June 1996 amendment.
27. On 20 May 1998 the Burgas Regional Court ordered the applicant to vacate the apartment and to pay to the restored owners damages for having continued to use the apartment since the judgments declaring her title void. The court rejected the applicant's argument that she should not be required to leave until receipt of the market-value compensation provided for by the June 1996 amendment. The court found that her right to compensation from the State could not be invoked against the restored owners who were entitled to enter into possession of their property.
28. On an unspecified date the restored owners took possession of the apartment.
29. Following several unsuccessful applications of 1997 and 1998, on 30 September 1999 the applicant was granted the tenancy of a one-room municipal apartment in Burgas. At that time she lived in Sofia with her daughter and grand-daughter, still a minor. The applicant's daughter was ill and the applicant helped looking after her grand-daughter.
30. On 21 March 2000 the applicant filed a request with the regional governor for compensation through bonds. On 11 October 2000 the regional governor recognised the applicant's right to compensation bonds and on 12 June 2001 appointed an expert to assess the market value of the apartment. On 4 July 2001 the governor approved the expert's report and ordered the issuance of compensation bonds for face value BGN 39,600 (the equivalent of approximately EUR 20,000).
31. On 18 July 2001 the applicant appealed, contesting the assessment. The appeal was dismissed on 5 February 2002 by the Bourgas Regional Court which, after having appointed another expert who arrived at the same figure as the expert appointed by the regional governor, concluded that the method of calculation used by the two experts had been in conformity with the law. The applicant's ensuing cassation appeal was dismissed on 19 November 2002 by the Supreme Administrative Court.
32. On 2 January 2003 the applicant applied to receive the compensation bonds issued pursuant to the governor's order of 4 July 2001. She received them on 21 April 2003.
33. The applicant sold her bonds in instalments. In September and October 2003 she sold in two parts approximately half of her bonds, at an average rate of 22.6 % of face value. In September 2004 she sold part of her remaining bonds for 25% of their face value. When the bond prices started to rise in November 2004, she sold the remainder she had at 50% of face value. As a final result, the applicant obtained a total of BGN 11,923 (approximately EUR 6,050) as compensation for her apartment.
34. The applicants, Mr Bojko Cholakov and Mrs Milka Cholakova, both Bulgarian nationals, were born in 1914 and 1916 respectively. Mr Cholakov passed away in March 2005. His wife (the second applicant) and her daughter and son, Mr Cholakov's heirs, stated that they wished to continue the proceedings before the Court. The applicants were represented before the Court by Mrs Z. Kalaidjieva, a lawyer practising in Sofia.
35. In 1967 the applicants became tenants in a state-owned apartment of three rooms covering 126 square metres, in the centre of Sofia. In 1969 they purchased the apartment.
36. In 1993 Mr M., the heir of the pre-nationalisation owners of the apartment, brought an action against the applicants under section 7 of the Restitution Law. By judgment of 19 April 1994 the Sofia District Court dismissed the claim finding that that the 1969 transaction had been in conformity with the relevant law and that the allegations of abuse of official position had not been proven. On 17 June 1996 these findings were upheld on appeal by the Sofia City Court.
37. Mr M. filed a petition for review (cassation). On 17 September 1997 the Supreme Court of Cassation quashed the lower courts' judgments and declared the applicants' title to their apartment null and void. The court found that in 1967 the applicants had obtained the tenancy of the apartment in breach of the law as it had not been shown that they had been registered as persons in need of housing. Furthermore, the apartment had exceeded in size the applicants' housing needs as defined in the applicable law in force at the time. Moreover, assessing all circumstantial evidence, such as that the first applicant had been at the relevant time head of the finance department of the region of Sofia, that the tenancy had been granted pursuant to a letter emanating from the regional administration and that the apartment at issue had been located nearby the applicants' previous residence, the court concluded that the only possible explanation was that the apartment had been obtained through abuse of power and contra bonas mores.
38. On 12 October 1998 the applicants were ordered by the Sofia District Court to vacate the apartment. They sought unsuccessfully a postponement, invoking their age and poor health and the lack of compensation, and appealed. It appears that eventually, not earlier than September 2000, the applicants vacated the apartment.
39. On several occasions in 1997 and 1998 the applicants asked the municipal authorities to provide them with a state-owned apartment for rent. They were put on the waiting list. In November 1999 they obtained the tenancy of a 56-square-metres' two-room apartment in the suburbs of Sofia.
40. In the meantime, in July 1998 the applicants had applied for compensation bonds. In 1999 or 2000 the market value of the apartment was assessed by an expert at BGN 113,600 (the equivalent of approximately EUR 57,000) and on 11 August 2000 the applicants obtained compensation bonds for that amount.
41. In 2001 the applicants applied to purchase the two-room municipal apartment they had been renting since 1999. The municipality agreed. On 16 June 2003 the applicants purchased the apartment for BGN 12,550 (the equivalent of approximately EUR 6,500). The applicants paid in cash as their request to pay in compensation bonds had been refused.
42. The applicants sold their bonds on 26 January 2005 at 110% of face value, at a moment when the market had reached a peak, and thus obtained BGN 124,960 (the equivalent of approximately EUR 63,000).
43. The applicant, Mrs Lubomira Nedkova Todorova, is a Bulgarian national who lives in Plovdiv. She was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv.
44. In 1953 the applicant's grandparents' plot of land and small house in the centre of Stara Zagora were expropriated for the construction of an administrative building. The expropriation was undertaken outside the scope of the nationalisation laws of that period (it was not punitive or redistributive in nature) but concerned building plans in the town. On an unspecified date the house was demolished and an office building was erected on its place.
45. The applicant's grandparents received in compensation ownership of another plot of land and small house in the centre of Stara Zagora. The plot covered 352 square metres and the house 86 square metres. That property had been nationalised in 1949.
46. In 1992 the heirs of the pre-nationalisation owners brought an action against the applicant relying on section 7 of the Restitution Law and also on the general rei vindicatio provision of the relevant property law.
47. On 15 February 1994 the District Court dismissed the claim as there had been no breaches of the law in 1953. On appeal, on 28 December 1994 the District Court's judgment was quashed by the Regional Court and the case remitted for renewed examination.
48. By judgment of 12 April 1996 the District Court declared null and void the 1953 expropriation and compensation order, relying on section 7 of the Restitution Law. The court found that at the relevant time an expropriation could only be effected by decision of the Council of Ministers whereas the property of the applicant's grandparents had been expropriated – and they had been given another property in compensation – by decision of the regional authority. As a result, neither the applicant's grandparents nor the applicant, their heir, had ever become owners of the property provided in compensation. The District Court also granted the rei vindicatio claim and ordered the applicant to vacate the property.
49. On appeal, on 14 March 1997 the Regional Court upheld the District Court's judgment adding that the fact that the applicant's grandparents had not been responsible for any omission was irrelevant.
50. On 18 December 1998 the Supreme Court of Cassation dismissed the applicant's ensuing petition for review (cassation). It noted that section 7 of the Restitution Law did not apply – it only concerned property obtained through transactions whereas the applicant's title had been based on an administrative decision. Nevertheless, the lower courts' findings that the 1953 order was null and void had been correct. In these circumstances, the applicant's grandparents had never become owners of the plot of land and the building they had received as compensation in 1953. That estate had thus remained State property until 1992 (acquisition through adverse possession against the State was not possible) and in 1992 the pre-nationalisation owners had acquired it back ex lege, under the general rule of the Restitution Law, its section 1, providing for the return of certain categories of State properties to their former owners.
51. The court therefore modified the characterisation of the claim in law and upheld the lower courts' judgments insofar as they granted the rei vindicatio claim and ordered the applicant to vacate the property at issue. However, insofar as they declared null and void the 1953 order also in its expropriation part, the lower courts had acted beyond their jurisdiction as circumscribed by the pre-nationalisation owners' claim. That part of the judgments had to be quashed.
52. The applicant did not apply for bonds since compensation by bonds was only applicable for persons having lost cases under section 7 of the Restitution Law, whereas in her case the Supreme Court of Cassation had found that provision inapplicable.
53. The applicants, Mrs Anka Ivanova Eneva and Mr Dobromir Enchev Dobrev, are Bulgarian nationals, who were born in 1932 and 1953 respectively and live in Varna. Before the Court they were represented by Mrs S. Margaritova-Voutchkova, a legal adviser practising in Sofia.
54. The property at issue in the present case, a three-room apartment in Varna of about 93 square metres, was nationalised in 1951 without compensation. Between 1951 and 1959 the local municipal housing fund rented the apartment to several different tenants. In 1961 a Ms G., who had been living in the apartment since 1959, purchased it from the local municipality. In 1964, Ms G., having obtained the necessary authorisation, sold the apartment to the applicants' family.
55. In 1992 the pre-nationalisation owners brought an action under section 7 of the Restitution Law against the applicants and Ms G. They also sought a rei vindicatio order.
56. In 1994 the competent District Court dismissed the claim. On appeal its judgment was quashed on 9 January 1996 by the Regional Court which proceeded with an examination on the merits. .
57. By judgment of 24 June 1996 the Regional Court granted the claim. It noted that no trace of a tenancy agreement of 1959 between the municipality and Ms G. had been found in the archives. It found that, therefore, Ms G. had not been a tenant in the apartment at issue and that she had not been entitled to buy it. Furthermore, the 1961 sale-purchase contract between Ms G. and the municipality had not been signed by the mayor personally – a comma was visible before the signature, which meant that someone had signed in the mayor's stead. It followed that Ms G.'s title had been void and that the applicants – who had purchased the apartment from her in 1964 – had not become owners either. The applicants were ordered to vacate the apartment.
58. On 3 December 1998 the Regional Court's judgment was upheld by the Supreme Court of Cassation. The applicants' objection that they had been in good faith and had acquired the apartment through adverse possession was dismissed on the basis of the reasoning that the law excluded acquisitive prescription in respect of State property.
59. The applicants vacated the apartment in April 1999. In August 2001, following an assessment of the market value of the apartment by a certified expert, the applicants obtained compensation bonds in the amount of BGN 71,800 (the equivalent of approximately EUR 36,500).
60. In October and November 2002 the applicants requested the municipal and regional authorities in Varna to sell them an apartment against compensation bonds. The regional governor refused by letter of 7 October 2002. The municipality of Varna, by letter of 16 December 2002, informed the applicants that they could only buy a municipal apartment if they were tenants in such an apartment. Furthermore, in accordance with the relevant municipal regulations, not more than 25 % of the apartment's price could be paid in compensation bonds. The remainder had to be paid in cash.
61. The applicants sold their bonds in instalments. One part was sold in June and August 2004 (at approximately 24.8% of face value) and the remainder in December 2004, when the market rates surged (at 82% of face value). The net amount the applicants obtained, after deduction of the brokers' fees, was BGN 36,961 (the equivalent of approximately EUR 18,800), approximately 50% of the value of the apartment as assessed in 2001.
62. The applicants, Mrs Snejana Avramova Stoyanova and her husband Mr Kosta Kanchev Ivanov, are Bulgarian nationals, who were born in 1927 and 1926 respectively and live in Sofia. They were represented before the Court by Mrs Z. Kalaidjieva, a lawyer practising in Sofia.
63. Since the mid-1950s the first applicant's mother and later the applicants were tenants in a state-owned five-room 197-square-metres' apartment in Sofia. In 1971 the applicants and the first applicant's mother purchased the apartment. After the first applicant's mother's death, the applicants became the joint owners of the apartment.
64. In 1992 the pre-nationalisation owner from whom the apartment had been expropriated without compensation in 1949 brought an action against the applicants under section 7 of the Restitution Law. The proceedings were later continued by the heirs of the pre-nationalisation owner.
65. On 15 September 1994 the District Court dismissed the claim, noting that at the relevant time the applicants' family had consisted of five persons which entitled them to a three-room apartment, that the first applicant, who was a researcher in philosophy, had been entitled to an additional room for her study, and that the apartment consisted in fact of four rooms, the fifth room being a connecting hall. The court further noted that the first applicant's mother had been registered as an “anti-fascist and anti-capitalist veteran” – a registration that had carried privileges provided by law – and that this fact had been mentioned in the papers relating to the 1971 purchase. However, at the relevant time the right of a registered veteran to purchase a dwelling with priority had been provided for by law. Therefore, it could not be considered that there had been abuse of office or of a position in the communist party.
66. Following a decision terminating the proceedings and another decision ordering their continuation, the plaintiffs' ensuing appeal was eventually decided by the Sofia City Court by judgment of 6 April 1998 which upheld the District Court's judgment.
67. Upon the plaintiff's cassation appeal, on 16 June 1999 the Supreme Court of Cassation quashed the lower courts' judgments and granted the claim, declaring the applicants' title null and void. The Supreme Court of Cassation agreed with the lower courts that there had not been abuse. However, the conclusions as regards the fifth room of the apartment had been wrong. In reality, the apartment had exceeded by one room the family's needs, as determined by the relevant regulations.
68. On 30 June 1999 the restored owners invited the applicants to vacate the apartment and requested monthly payments of 500 US dollars. The applicants refused to leave but were eventually evicted in June 2002 pursuant to an eviction court order.
69. Between 1999 and 2002 the restored owners sued the applicants and obtained judgments ordering them to pay damages for their failure to vacate the property. Thus, as of October 2003 the applicants owed to the restored owners approximately BGN 28,000 (the equivalent of approximately EUR 14,000) which they refused to pay. The applicants also owed at least BGN 3,000 in costs.
70. The applicants never applied for compensation bonds considering that useless. On 19 October 1999 they requested the mayor to provide them a municipal apartment for rent. They were placed on the waiting list but never received an offer.
71. On an unspecified date the applicants purchased a small apartment for an unspecified sum of money and moved there. Shortly thereafter, the restored owners applied for and obtained an attachment of the applicants' new apartment to secure the payment of their claims. On 8 April 2005 the enforcement judge undertook steps to put the applicants' new apartment on sale with a view to satisfying the restored owners' claims. In addition, monthly deductions are applied to the applicants' pensions to cover their debt.
72. The applicants, Mr Stoiko Bogdanov and Mrs Maria Bogdanova, both Bulgarian nationals and residents of Burgas, were born in 1920 and 1924 respectively. Mrs Bogdanova passed away in August 2004. Her heirs, the first applicant and the applicants' two daughters, born in 1949 and 1955, stated that they wished to continue the proceedings. The applicants are represented before the Court by Mrs S. MargaritovaVoutchkova, a legal adviser practising in Sofia.
73. In 1960 the applicants obtained a tenancy order for a State-owned tworoom 92-square-metres' apartment in Burgas. The applicants, their two minor daughters and the elderly mother of one of the applicants lived in the apartment.
74. On 8 May 1967 the applicants filed with the Burgas municipal authorities a written request to buy the apartment under the relevant regulations. As required, they enclosed a declaration of means and family status.
75. The Burgas municipality instituted an administrative procedure. On 15 October 1967 the relevant expert committee assessed the value of the apartment.
76. On 17 November 1967 the Burgas municipal council submitted the file for approval by the Minister of Building Planning, as required by the regulations. By letter of 23 December 1967, the Deputy Minister of Building Planning approved the sale. In accordance with the relevant procedure, on 31 December 1967 a sale-purchase contract was signed between the applicants and the Burgas municipality. The applicants contracted a loan to pay the price of the apartment and reimbursed it in monthly instalments for twenty years.
77. In February 1993 the heirs of the pre-nationalisation owners of the apartment from whom it had been expropriated without compensation in 1949 brought an action against the applicants under section 7 of the Restitution Law. The plaintiffs claimed that the applicants had obtained the apartment in breach of the law. By judgments of 20 January 1995 and 2 May 1996 the District Court and the Regional Court dismissed the claim.
78. Upon the plaintiffs' petition for review (cassation), on 12 October 1998 the Supreme Court of Cassation quashed the lower courts' judgments and, deciding on the merits, declared the applicants' title null and void.
79. The Supreme Court of Cassation noted that the regulations in force in 1967 had required approval of the sale by the Minister of Building Planning, whereas in the applicants' case the document containing that approval had been signed by a Deputy Minister. The Supreme Court of Cassation did not accept the reasoning of the lower courts according to which the approval had been valid since the Deputy Minister who had signed it had been in charge of the sale of housing and had thus been empowered to sign in the Minister's stead. That reasoning was incorrect because the housing regulations as in force at the time only mentioned the Minister as the official in whom the relevant power was vested.
80. On 4 August 1999 the restored owners invited the applicants to leave the apartment and to pay rent for the time since the judgment of the Supreme Court of Cassation. On 16 October 1999 the applicants signed a rent contract with the restored owners and started paying monthly rent of BGN 150 (the equivalent of approximately EUR 80). The contract was renewed in December 2000.
81. On 5 March 1999 the applicants requested the mayor of Burgas to provide them with municipal housing. They reiterated their request in January 2000. No response was received.
82. On 20 June 1999 the applicants requested compensation in bonds. In February 2001 the regional governor approved the assessment of the apartment's value, made by an expert, and determined that the applicants were entitled to compensation bonds in the amount of BGN 64,200 (the equivalent of approximately EUR 32,500).
83. On 16 November 2001 the applicants wrote to the mayor of Burgas asking to buy a municipal apartment and to pay for it in bonds. On 29 November 2001 the mayor replied that for the moment the municipality did not envisage selling apartments for bonds.
84. On 23 November 2001 the applicants sold their compensation bonds at 17.5 % of their face value. They thus obtained BGN 11,335 (the equivalent of approximately EUR 5,800).
85. In November 2001 the restored owners invited the applicants to leave. The applicants did not have the resources necessary to buy an apartment and refused. By judgment of 14 March 2003 of the Bourgas District Court the applicants were ordered to vacate the property. Their objection that they should be entitled to withhold possession of the apartment until payment of the improvements they had made in the property was dismissed. The applicants appealed. By judgment of 28 July 2005 the Supreme Court of Cassation upheld the eviction order. The applicants rented an apartment and moved there on 14 November 2005.
86. The applicants, Mrs Regina Tzileva and Mr Konstantin Tzilev, are Bulgarian nationals, who were born in 1949 and 1942 respectively and live in Sofia. They were represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia.
87. In 1970 the first applicant became a tenant in a state-owned tworoom 60-square-metres' apartment in Sofia. The applicants had two children together, born in 1974 and 1975.
88. In 1977 the applicants applied to purchase the apartment in accordance with the relevant procedure for the sale of State housing to tenants. After having obtained the relevant authorisations, the applicants purchased the apartment from the local municipality and reimbursed the full price within the following years.
89. In February 1993 Mr N., the pre-nationalisation owner of the apartment from whom it had been nationalised without compensation in 1949, brought an action against the applicants under section 7 of the Restitution Law. In his claim Mr N. relied on all possible grounds under section 7. On 6 June 1994 the Sofia District Court dismissed the claim.
90. Upon the plaintiff's appeal, on 15 July 1998 the Sofia City Court quashed the lower court's judgment and granted the claim as the administrative decision authorising the 1977 sale-purchase contract had been signed by the deputy mayor and not by the mayor personally. The court dismissed as unproven the plaintiff's allegation that there had been abuse on the part of the applicants.
91. The applicants filed a cassation appeal. They argued that even if the administrative decision authorising the transaction had been signed by a deputy mayor, the sale-purchase contract itself had been signed by the mayor. On 28 November 2000 the Supreme Court of Cassation dismissed the appeal and upheld the Sofia City Court's judgment. It held, inter alia, that the relevant procedure had required an administrative authorisation as a separate step and that therefore the nullity of that authorisation could not be redressed by the fact that the sale-purchase contract that followed it had been executed properly.
92. Between 1999 and 2001 the applicants addressed numerous unsuccessful requests to the local municipality asking to be provided tenancy of a municipal dwelling.
93. In 2001 the heirs of the pre-nationalisation owner brought a rei vindicatio action against the applicants. As the applicants had no place to live, they decided to oppose the claim and gain time. As of February 2006 the proceedings were still pending before the Sofia District Court.
94. In 2001 the applicants requested compensation by bonds. On an unspecified date an expert assessed the value of their apartment at BGN 45,000 (the equivalent of about EUR 23,000). Weighing their options, the applicants decided, however, not to seek bonds as compensation. They considered that, having regard to the rates at which bonds were traded at that time, 15-25% of face value, such compensation would offer no realistic perspective of finding a place to live. By refusing to accept such partial compensation, the applicants also wished to express their protest against the injustice visited on them.
95. The applicants, Mr Dimitar Georgiev Nikolov and his daughter Zvezda Dimitrova Nikolova, are Bulgarian nationals, who were born in 1934 and 1960 respectively and live in Russe. Before the Court they were represented by Mrs S. Margaritova-Voutchkova, a legal adviser practising in Sofia.
96. In 1970 the first applicant and his wife bought a three-room 96square-metres' apartment from the local municipality.
97. In 1992 the pre-nationalisation owner, from whom the property had been expropriated in 1949, brought an action against the applicants under section 7 of the Restitution Law. By judgments of 19 December 1994 of the Ruse District Court, 15 May 1996 of the Regional Court and 24 June 1998 of the Supreme Court of Cassation, the courts granted the claim.
98. They found, in particular, that the 1970 administrative decision for the sale of the apartment had been signed by the secretary to the Municipal Council whereas it should have been signed by the mayor. The courts noted that in January 1970 the municipal council had issued a decision delegating to its secretary matters related to the sale of municipal housing but considered that that delegation had been null and void since in accordance with the relevant law as in force at the time the vice-president of the municipal council replaced the president in his absence.
99. The courts also noted a second shortcoming. The law at the relevant time provided that the municipality's decision to sell the apartment had to be approved by the mayor of the respective region. In the applicants' case, a comma was visible in front of the signature placed on the document containing the approval. In Bulgaria it was customary to “sign with a comma” when the person who signed was replacing. In these circumstances, since the applicants had failed to adduce evidence demonstrating that the signature on the relevant document was that of the mayor, the courts found that the approval must have been signed by another person and was therefore invalid.
100. The courts concluded that the applicants' title was null and void and ordered them to vacate the apartment. They did so on 27 October 1998.
101. In 1998 the applicants requested compensation by bonds. In April 1999 they received bonds for BGN 47,800 (the equivalent of approximately EUR 24,200), in accordance with the valuation of the property by an expert appointed by the regional governor.
102. On 31 March 1999 the applicants were granted the tenancy of a municipal apartment. They applied to purchase it by bonds.
103. In March 2000 the municipal council in Russe decided that as a matter of principle applications to purchase an apartment by persons who had lost cases under section 7 of the Restitution Law should be granted. In accordance with the relevant law, however, the power to sell municipal property was vested with the mayor.
104. On 3 May 2000 the mayor of Russe wrote to the Ministry of Finance inquiring whether the municipality would be able to make use of the bonds it would acquire if it were to sell municipal apartments to individuals in the applicants' position. On 26 July 2000 the Ministry replied negatively. On 19 January 2001 the mayor informed the applicants that the municipality was not under an obligation to sell an apartment to them.
105. On 8 February 2001 the applicants brought an action against the mayor challenging his refusal to sell an apartment. The Russe Regional Court rejected the claim as inadmissible. On 17 April 2001 the Supreme Administrative Court upheld the rejection of the claim. It noted that in accordance with the provisions of the Compensation Law, compensation bonds could be used for the purchase of municipal dwellings and persons who had lost cases under section 7 could do so with priority. Nonetheless, those provisions did not give rise to rights for the applicants and duties for the municipality. The decision of the municipal council of March 2000 did not create such rights and duties either. Municipal property sales were regulated by the Municipal Property Law. The sale of an apartment being a civil transaction to which the parties are at an equal footing, the mayor's refusal was nothing more than a refusal to enter into a transaction, not an administrative decision affecting rights. Therefore, the mayor's refusal did not affect any right of the applicants. It followed that the refusal was not amenable to judicial review.
106. On 29 March 2002 the mayor of Russe refused the applicants' renewed request to sell them an apartment for bonds.
107. In 2001 the applicants brought an action against the State and the local municipality, seeking damages for the fact that they had been deprived of their apartment owing to an administrative omission imputable to municipal clerks.
108. By judgments of the Russe District Court of 7 June 2002 and the Russe Regional Court of 9 May 2003 the applicants' claims were dismissed. The courts found that the State Responsibility For Damage Act only applied in respect of facts that occurred after its entry into force in 1988. The courts also stated that the alleged omissions had occurred in the context of a civil transaction, whereas the State Responsibility For Damage Act concerned State liability occasioned by acts in the exercise of State power.
109. On 25 January 2005, at a moment when the market for compensation bonds was reaching a peak, the applicants sold their bonds at 105% of their face value. They thus obtained BGN 49,660 (the equivalent of approximately EUR 25,400).
110. After 1945 the communist regime in Bulgaria introduced a series of nationalisation laws of a punitive or redistributive nature. As regards housing, the policy was to limit private real estate ownership to one dwelling per family and to take away from their owners apartments allegedly exceeding their needs. All city apartments “in excess” were nationalised. In some cases the owners received State bonds in compensation. Owing to regulations modifying the conditions of payment on these bonds, in practice compensation was never received by the owners.
111. The nationalised apartments were allocated to municipal housing funds which managed them and rented them out at fixed rates. Special legislation established a system of categorisation of those in need of housing and provided for detailed rules on the basis of which municipalities rented out and sold apartments. The rules, which changed many times during the relevant period, provided for, inter alia, precedence rights for various groups (“anti-fascist and anti-capitalist” veterans, large families, etc), limitations on the number of rooms and on the size of the apartments candidates could rent or buy (on the basis of factors such as number of children, profession, health problems, etc) and special procedures for renting or buying apartments belonging to State enterprises. Most of these rules were also applicable where newly built State apartments were rented out or sold.
112. A large number of nationalised apartments were sold to tenants in the 1960s and 1970s pursuant to a new housing policy whose purpose was the accumulation of financial resources for the construction of new dwellings.
113. In practice, during the communist period and until 1990 an individual in need of housing could only buy an apartment by applying to a competent State body. The procedure was administrative, followed by the signing of a contract prepared by the administration. Candidates had to fill out the relevant forms and submit the required documents. The relevant municipal authority would then issue a decision and present to the candidate for signature the sale-purchase contract.
114. Until 1970, the courts had no power to review administrative decisions. According to the Supreme Court, the courts had no jurisdiction to examine an action for a declaration that the sale of a State-owned apartment to an individual had been null and void. The decision which apartment to sell and to whom belonged to the administration. The courts had no power to examine whether or not there had been a breach of the relevant rules such as those concerning precedence (реш. 1706 от 17.11.1962 по гр.д. 1435/62; ТР No. 47 от 1.3.1967 по гр.д. 2045/67).
115. The law and practice changed after the adoption of the Administrative Procedure Act 1970. In 1973 the Supreme Court held that the courts, without repealing an administrative decision – which they had no power to do –, could take note that it was null and void and draw the ensuing civil-law conclusions such as that an individual concerned was not the owner of a disputed property (ОСГК, реш. No 78 oт 12.7.1973, гр.д. 58/73).
116. At all relevant times, Bulgarian civil law distinguished between possessing property in bad faith and doing so in good faith. According to section 70 of the Property Act 1951, still in force, an individual is considered to have acted in good faith if, unaware of a procedural defect in his title, he entered into possession of a piece of property. A bona fide possessor may acquire ownership rights (over private property) after five years of acquisitive prescription or, if evicted, claim the value of improvements made in the property (реш. No. 1051 от 25.3.1960 по гр.д. 1060/60; Interpretative Decree No. 6 of 1974 of the Supreme Court; реш. No. 507 от 1.7.1994 по гр.д. 381/94).
117. After the fall of the communist regime in 1990, Parliament enacted legislation aiming at restoring justice for those whose property had been nationalised without compensation, or for their heirs. A number of denationalisation laws covering different types of property (industrial plants, shops, dwellings, agricultural land, etc.) were adopted.
118. Section 1 of the Law on the Restitution of Ownership of Nationalised Real Property (“the Restitution Law”), which entered into force in February 1992, provided that the former owners, or their heirs, of certain types of real property nationalised by virtue of several specific laws dating from the period between 1947 and 1952, became ex lege the owners of their nationalised property if it still existed, if it was still owned by the State and if no adequate compensation had been received at the time of the nationalisation.
119. Section 7 provided for an exception to the requirement that the real property be still owned by the State. It provided that even if certain property had been acquired by third persons after the nationalisation, the former owners or their heirs could still recover it if the third persons in question had become owners in breach of the law, by virtue of their position in the Communist party or through abuse of power. According to the Government this provision was necessary since during the communist period there had been many cases in which the privileged of the day had obtained apartments unlawfully. The former pre-nationalisation owners had to bring an action before the courts against the post-nationalisation owners within a one-year time limit. If the courts established that the title of the post-nationalisation owners involved breaches of the law or was tainted by abuse they declared it null and void and restored the property to the pre-nationalisation owners.
120. In 1997 former pre-nationalisation owners who had missed the initial one-year period under section 7 of the Restitution Law for bringing an action against post-nationalisation owners were given a second chance through a legislative amendment renewing the one-year time-limit. On 11 March 1998 the Constitutional Court struck down the amendment as it encroached on the principle of protection of property and legal certainty (реш. 4 от 11.3.1998 по к.д. 16/97). Nevertheless, as the judgments of the Constitutional Court have no retroactive effect, the courts, in accordance with their established practice, were bound to examine claims under section 7 brought in the interval between the entry into force of the 1997 law renewing the time-limit and the 1998 Constitutional Court's judgment quashing that law (опр. 1280, 22.10.1998 по гр.д. 1539/98 г., ВКС-IV).
121. In practice, in some cases the ground for annulment was a finding that there had been abuse of office or of a position in the Communist party. In other cases the relevant files retrieved from the archives did not contain proof of approval by an administrative authority, as required by regulations in force at the relevant time. Other grounds on which the courts granted section 7 claims included breaches of regulations dating from the 1950s and the 1960s establishing a link between the number of family members and the number of rooms they were entitled to, breaches of requirements such as that the buyer should be a tenant or an employee of the State agency or enterprise using the apartment, etc.
122. In a large number of cases under section 7, the omission identified by the courts as decisive was the fact that the sale contract, or another relevant document, such as, for example, a tenancy order or a relevant approval, had been signed by the deputy to, or the superior of, the official in whom the relevant power was vested (i.e. deputy mayor instead of the mayor, deputy minister instead of the minister, regional governor instead of district governor). After an initial period of uncertain practice, the courts adopted the view that such defects had the automatic effect of rendering the transactions null and void ab initio. The outcome was the same even where the relevant minister or mayor had authorised a deputy to sign, since the housing regulations did not mention expressly a possibility to delegate (реш. No. 762/ 21.06.2000 по гр.д. 2026/99, ВКС – IV). The argument that the individuals concerned bore no responsibility for such omissions by the administration and had never had any legal means to seek their rectification was considered as irrelevant (ТР 1/95, ОСГК, Бюл. ВС кн. 4/95; реш. No. 1623/ 10.03.1994 по гр.д. No. 186/1993, ВС-IV; реш. No. 1036 от 13.07.1994 по гр.д. No. 9/1994, ВС-IV).
123. In reaction to post-nationalisation owners' argument that they had acquired the property through adverse possession, even if there had been a minor omission in the relevant transaction, the courts relied on section 86 of the Property Act, which provided that State property could not be acquired through adverse possession.
124. The application of section 7 has been the object of heated public debate, including in the Parliament. One of the central issues has been the question whether or not it was justified to allow the nullification of decades-old property titles for minor administrative omissions that had been the responsibility of the administration, not the individual concerned. In 1995 and 1996 the Parliament adopted amendments to the Restitution Law repealing section 7 or limiting its scope to cases involving substantial breaches of the law committed in bad faith or abuse of power. All those amendments were declared anti-constitutional by the Constitutional Court on the basis that they purported to modify already acquired civil rights to restitution (реш. No. 9 по к.д. No. 4/95, Д.В. бр.66/95; реш. No. 20 по к.д. No. 24/95, Д.В. бр. 94/95; реш. No. 11 по к.д. 10/96, Д.В. бр. 61/96, попр. Д.В. бр.87/96).
125. In some cases the courts allowed claims by pre-nationalisation owners against post-nationalisation owners who had purchased the property from an individual, not from the State (see the case of Eneva and Dobrev, paragraphs 53-58 above). Also, in cases where section 7 did not apply, the courts nevertheless granted restitution claims, without limitation in time, by reference to the general provisions of civil law concerning nullity of transactions combined with section 1 of the Restitution Law (реш. N: 2109, 25.1.99 г. по гр. д. N: 1754/97 г., ВКС-IV – see paragraphs 50 and 51 above, concerning the case of Todorova; but see, by contrast, реш. N: 1623, 10.3.94 г. по гр. д. N: 186/93 г., ВКС-IV).
126. In its judgment of 18 January 1996, refusing a motion to declare section 7 unconstitutional, the Constitutional Court dealt with the argument that the law affected disproportionately the rights of the post-nationalisation owners many of whom had not done anything unlawful. It stated:
“The Constitutional Court shares the [petitioners'] concern that there may be many cases where the breaches of the law ... resulted from [acts of] the administration... That fact, however, does not concern the nullity of the transactions ... The transaction[s] remain null and void regardless of which party had breached the law. The question of responsibility for damages in such cases is a separate issue. The Constitutional Court considers that section 7 of the [Restitution Law] does not exclude claims for damages against State bodies or State officials who have breached the law when effecting the transactions. The possible legislative elaboration of that responsibility in cases under section 7 falls within the competence of Parliament.”
127. Parliament has not adopted a law elaborating on possible civil liability of officials or State bodies responsible for a breach of the law that led to nullification of a property title. As confirmed by the courts (see paragraphs 107 and 108 above about the case of Nikolovi and, also, реш. 1893 от 1.12.2004 по гр.д. 1518/2003 на ВКС), such claims by persons in the applicants' position are not possible either under the State Responsibility for Damage Act 1988 (as it did not apply with regards to damage occasioned before its entry into force) or under general civil law.
128. The initial text of the Restitution Law of 1992 did not provide for any compensation for persons ordered to vacate their property under section 7. For several years, the question whether such compensation should be paid by the State was the subject matter of heated debates. In 1995 and 1996 Parliament adopted amendments to the Restitution Law concerning the issue of compensation (Д.В. броеве 40/1995, 87/1995, 51/1996). Most of these amendments were thereafter declared unconstitutional by the Constitutional Court on various grounds (see the decisions cited in paragraph 124 above).
129. An amendment introduced in June 1996 (paragraph 3 of the supplementary provisions to the Restitution Law, State Gazette no. 51/96, “the June 1996 amendment”) was not struck down by the Constitutional Court and remained in force until its repeal by Parliament in January 2000. It provided that persons who had been ordered to vacate their apartments under section 7 were to be paid by the State full market value cash indemnity. Also, until this payment was effected, they were entitled to rent temporarily State-owned apartments, or to receive a rent allowance. The above obligations of the State were to be governed by regulations to be issued by the Council of Ministers.
130. The Council of Ministers did not adopt the regulations necessary to put in practice the June 1996 amendment to the Restitution Law. Former owners who lost their apartments in cases under section 7 of the Restitution Law did not receive market-value cash indemnity or any rent allowance. In some cases, the evicted post-nationalisation owners were able to rent municipal apartments at fixed rates. In a large number of cases, however, the requests made were unsuccessful because of lack of availability or because the competent authorities interpreted the relevant law as allowing discretion and refused the requests.
131. In November 1997 a new law, the Law on Compensation for Owners of Nationalised Real Property (“the Compensation Law”) – whose main purpose was providing compensation for property taken under several laws of punitive or redistributive nature and which could not be returned physically – introduced a provision (section 5 § 3) which stated that persons who had lost their dwellings pursuant to section 7 of the Restitution Law should “receive housing compensation bonds, if they [had] not received the indemnity provided for in [the June 1996 amendment]” (see paragraphs 133-139 below).
132. In January 2000, the June 1996 amendment was repealed. The bill repealing the amendment was introduced in Parliament with the explanation that the State did not have the resources necessary to pay in cash.
133. After January 2000, the former owners whose title had been declared null and void could apply for bonds under section 5 § 3 of the Compensation Law (see paragraph 131 above) within three months of January 2000 or within two months of the final judgment in their case.
134. The requests are examined by the relevant ministry or regional governor. Experts assess the market value of the property. The face value of the bonds to be issued is equal to the full market value of the dwelling. The decisions are subject to appeal before the Supreme Administrative Court.
135. Compensation bonds are not exchangeable for cash. No interest accrues. They can only be used for participation in privatisation tenders and their value thus largely depends on the availability of privatisation offers.
136. A secondary market for compensation bonds developed in Bulgaria. Until November 2004, they were traded at between 15 and 25 % of their face value. As bond prices remained low over a long time, many persons in the applicants' situation sold their bonds during that period and obtained between 15 and 25% of their face value.
137. In the beginning of November 2004, there was a sudden surge in the price of compensation bonds at the secondary stock market in connection with the privatisation of several major enterprises. Within several weeks, in January 2005 bond rates reached 100 % and more of face value. In the end of January 2005 housing bond prices fell again and later stabilised at around 70 % of their face value.
138. In accordance with section 5 § 2 of the Compensation Law, as in force between November 1997 and November 2004, housing compensation bonds could also be used to purchase, “with priority”, State or municipal dwellings. However, municipalities had no interest in parting with their real property in exchange of compensation bonds and prefer to sell for cash. Some municipalities adopted rules according to which not more than 20 or 30% of the price of a dwelling could be paid by compensation bonds. The Supreme Administrative Court, when examining an appeal against a refusal of a mayor to sell an apartment for bonds, held that persons who had lost cases under section 7 did not have a right to buy an apartment, the matter being within the discretion of the municipality (опр. 2571/17.04.2001 по адм. д. 2065/01, ВАС-III, see paragraph 105 above, concerning the case of Nikolovi v. Bulgaria). In November 2004, by virtue of an amendment to section 41 of the Municipal Property Act, the sale of apartments for bonds was prohibited.
139. In June 2006 the Parliament amended again section 7 of the Restitution Law, introducing new paragraphs 2 and 3. The amendment only concerns persons who had not yet sold the compensation bonds they had received. New paragraph 2 provided that persons who had lost their property under section 7 should have priority when applying to buy municipal apartments and should be entitled to pay in bonds, at face value. The new provision was not accompanied by an amendment to section 41 of the Municipal Property Act, which prohibits the sale of apartments for bonds. Also, the new paragraph 2 does not affect the established case-law according to which municipalities are under no duty to sell apartments (see the preceding paragraph). New paragraph 3 provided that if no apartment was offered by the relevant municipality within three months, the person concerned was entitled to receive in cash the face value of his or her bonds from the Ministry of Finance. The realisation of this right is conditioned by the adoption by the Council of Ministers of implementing regulations.
140. A person whose title has been declared null and void could in principle claim the price that he, she or their ancestors had paid when buying the apartment (usually decades ago). However, owing to the depreciation of the national currency and the established practice of the Bulgarian courts refusing revalorisation, such claims can only lead to recovery of minimal amounts.
141. In accordance with interpretative decision No. 1 of 1995 of the Supreme Court, persons who lost cases under section 7 of the Restitution Law are not entitled to claim compensation for improvements they had made in the property. To reach that conclusion and thus establish an exception from the general rule, the Supreme Court referred to the fact that the aim of the Restitution Law had been to give back to their owners property confiscated without compensation. Justice required that they should not bear the burden to pay for improvements and maintenance expenses. Also, section 8 § 1 of the Restitution Law provided that persons who had obtained restitution of their nationalised property could not claim compensation for the fact that their property had been used by others after the nationalisation. It followed that the post-nationalisation owners whose titles had been nullified under section 7 should not be entitled to compensation for maintenance expenses and improvements in the property.
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