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DECISION
AS TO THE ADMISSIBILITY OF
Application no. 20612/02 Application no. 42563/02
by Slavi Georgiev Slavov by Amalia Dimitrova Yordanovich
against Bulgaria against Bulgaria
lodged on 14 May 2002 lodged on 14 November 2002
Application no. 42596/02 Application no. 16059/03
by Zhores and Kiril Peychevi by Margarita Ganeva Slavova and
Georgievi Others
against Bulgaria against Bulgaria
lodged on 18 November 2002 lodged on 14 May 2003
Application no. 32427/03
by Stoyan Georgiev Boyadzhiev and Others
against Bulgaria
lodged on 4 October 2003
The European Court of Human Rights (Fifth Section), sitting on 2 December 2008 as a
Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Renate Jaeger,
Mark Villiger,
Isabelle Berro-Lefèvre,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above applications lodged on 14 May and 14 and 18 November 2002
and 14 May and 4 October 2003,
Having regard to the observations submitted by the respondent Government and the
observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in no. 20612/02, Mr Slavi Georgiev Slavov, is a Bulgarian national who
was born in 1932 and lives in Stara Zagora.
2. The applicant in no. 42563/02, Ms Amalia Dimitrova Yordanovich, is a Bulgarian
national who was born in the 1950s and lives in Stara Zagora.
3. The applicants in no. 42596/02, Mr Zhores Peychev Georgiev and Mr Kiril Peychev
Georgiev, are Bulgarian nationals who were born in 1949 and 1954 respectively and live in
Stara Zagora.
4. The applicants in no. 16059/03, Ms Margarita Ganeva Slavova, Ms Lilyana Ganeva
Slavova, Mr Slavi Georgiev Slavov, Ms Ruska Miteva Dyankova, Ms Svetoslava Dimitrova
Petkova, Ms Mariyka Stancheva Slavova, Mr Dimitar Slavchev Dimitrov and Mr Stanko
Slavchev Dimitrov, are Bulgarian nationals who were born in 1932, 1933, 1942, 1950, 1970
and 1977 respectively and live in Stara Zagora.1
5. The applicants in no. 32427/03, Mr Stoyan Georgiev Boyadzhiev, Ms Yulia Georgieva
Popvasileva and Ms Velichka Radkova Bicheva, are/were Bulgarian nationals who were born
in 1915, 1913 and a later unknown date respectively and live(d) in Sofia. In a letter of 29
January 2007 the Court was apprised of the deaths of the first two applicants, and of the wish
of their heirs, Ms Maria Stoyanova Boyadzhieva (sole heir to Mr Stoyan Boyadzhiev), and
Ms Elitsa Vasileva Mineva and Ms Maria Kostadinova Mineva (sole heirs to Ms Yulia
Popvasileva), to pursue the application. In a letter of 13 February 2007 the applicants
informed the Court that they wished to withdraw their application; however, in a letter of 28
September 2007 Ms Maria Stoyanova Boyadzhieva expressed her wish to pursue the
application.
6. All applicants were represented before the Court by Ms M. Slavova, a lawyer practising
in Stara Zagora (also applicant in no. 16059/03). The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.
7. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The creation of the right to seek re-opening of proceedings under the 1946
Confiscation Act
46. Shortly thereafter, on 14 April 1998, the legislature added a new subsection (1a) to
section 2 of the 1992 Restitution Act. This came into force on 25 April 1998 and provided
that the former owners of property taken under the 1946 Confiscation Act or their heirs could
request re-opening of the proceedings under that Act in accordance with the relevant
provisions of the 1974 Code of Criminal Procedure. This was in line with the position adopted
in a 1993 interpretative decision of the former Supreme Court, which found that the
proceedings under the 1946 Confiscation Act had been criminal (пост. № 1 от 1993 г. по д.
№ 1/1993 г., Пленум на ВС).
47. At the same time the time-limit for lodging requests for compensation under the 1997
Compensation Act (see paragraph 43 in fine above) was extended to one year.
5. The Supreme Court of Cassation’s interpretative decision of 29 June 1999
48. In an interpretative decision of 29 June 1999 (тълк. реш. № 1 от 29 юни 1999 г. по
н.д. № 3/1998 г., ОСНК на ВКС), made after a wave of requests for re-opening under the
new section 2(1a) of the 1992 Restitution Act, the Supreme Court of Cassation noted, inter
alia, that prior to the adoption of the 1997 amendment to the 1992 Restitution Act it had
examined petitions for review of judgments under the 1946 Confiscation Act, but that such
review had subsequently become pointless since, under the amendment, title to the
confiscated properties had been vested ex lege in their former owners or their heirs. However,
following the declaration on 11 March 1998 that the 1997 amendment was unconstitutional,
the problem had re-emerged. In attempting to solve it the new section 2(1a) of the 1992
Restitution Act had opened a fresh avenue for reviewing judgments under the 1946
Confiscation Act. Those seeking re-opening had accordingly relied on Article 362 § 1 (5) of
the 1974 Code of Criminal Procedure, which provided that re-opening was possible if the
final judgment (i) had not been reviewed in cassation proceedings and (ii) was in breach of
the substantive or the procedural law or had imposed a patently unjust penalty. As the 1946
Confiscation Act had made provision for cassation proceedings, the only possible conclusion
was that re-opening under section 2(1a) of the 1992 Restitution Act was possible only if the
first-instance judgments under the 1946 Confiscation Act had not been reviewed in cassation
proceedings.
49. The court went on to state that it was questionable whether the persons whose property
had been taken or their heirs had any legal interest in requesting re-opening. At the very
moment when the 1997 amendment to the 1992 Restitution Act had entered into force (see
paragraph 44 above), title to the confiscated properties had been vested ex lege in its former
owners or their heirs. The amendment had remained in force until 21 March 1998, when it
had been declared unconstitutional. However, the Constitutional Court’s decision had not
operated retroactively and had not wiped out the transfer of title. Therefore, the persons
whose property had been confiscated or their heirs had no legal interest in requesting re-
opening, unless they sought to achieve results which were not purely pecuniary.
50. Section 86(2) of the 1994 Judicial Power Act („Закон за съдебната власт“) provided
that the Supreme Court of Cassation’s interpretative decisions were binding on the judiciary
and the executive.
COMPLAINTS
53. In their initial applications the applicants raised the following complaints:
(a) Mr Slavov, Ms Margarita Slavova, Ms Lilyana Slavova, Ms Yordanovich and Messrs
Georgievi complained that the Supreme Court of Cassation had refused to re-open the
proceedings against their ancestors under the 1946 Confiscation Act. They relied on Articles
1, 6 and 13 of the Convention.
(b) Mr Slavov, Ms Margarita Slavova, Ms Lilyana Slavova, Ms Yordanovich, Messrs
Georgievi and Mr Boyadzhiev and his sisters complained under Article 6 of the Convention
about the outcome and the fairness of the proceedings before the administrative courts. They
submitted that, because of the latter’s bias in favour of the State, they had adopted an
erroneous interpretation of the law and, having arrived at conclusions which differed from
those of the Supreme Court of Cassation, had deprived them of the right to compensation for
the properties confiscated from their ancestors.
(c) Mr Slavov, Ms Margarita Slavova, Ms Lilyana Slavova, Ms Yordanovich, Messrs
Georgievi and Mr Boyadzhiev and his sisters complained under Article 1 of Protocol No. 1
that, as a result of the discrepancies between the Supreme Court of Cassation’s and the
Supreme Administrative Court’s interpretations of the effects of the 1997-98 changes to the
1992 Restitution Act, they had been deprived of the right to compensation for the properties
confiscated from their ancestors.
(d) Mr Slavov complained under Article 14 of the Convention that those persons, like
him, whose ancestors’ property had not remained in its original state after its nationalisation
had been discriminated against. Unlike those whose property had remained intact and who
could reclaim it as a result of the Supreme Court of Cassation’s finding that the 1997
amendment to the 1992 Restitution Act had title-vesting effect, they had remained without
compensation.
54. In a letter of 18 November 2004 the applicants in no. 16059/03 raised additional
complaints:
(a) They complained under Article 6 § 1 of the Convention that in examining their
application for judicial review of the Minister of the Economy’s refusal the Supreme
Administrative Court had been biased, had neglected their evidentiary requests relating to the
privatisation of the State-owned company which owned the confiscated property, had
deliberately protracted the proceedings, had made erroneous findings of fact, had
misconstrued the relevant legal provisions, had not given adequate reasons and had not
examined their request for interim relief.
(b) They also complained under Article 1 of Protocol No. 1 to the Convention that the
Supreme Administrative Court, by erroneously assessing the facts and misconstruing the law,
had denied them compensation. They also alleged that the system of compensation by bonds,
as laid down in the relevant legislation and case-law of the courts, did not provide adequate
compensation for the property taken from their ancestors more than sixty years previously.
(c) Finally, they complained under Article 14 of the Convention that they had been
discriminated against in that, under the 1946 Compensation Act, they had been entitled at
most to compensatory bonds, whereas those whose unlawfully acquired properties had been
returned to their rightful owners after the fall of the communist regime had received better
compensation, as had the former king, whose properties had been restored.
THE LAW
A. Preliminary questions
55. As all five applications are based on similar facts and as they contain, for the most
part, identical complaints, the Court considers it appropriate to join them under Rule 42
(former 43) § 1 of the Rules of Court.
56. The only remaining applicant in application no. 32427/03, Ms Velichka Bicheva, and
two of the heirs to the other applicants in this application, Ms Elitsa Mineva and Ms Maria
Mineva, expressed their wish to withdraw their complaints and, unlike the third heir, Ms
Maria Boyadzhieva, did not subsequently reverse their position (see paragraph 5 above). In
view of this, the Court considers that these three applicants no longer intend to pursue their
applications (Article 37 § 1 (a) of the Convention). It also observes that they have raised the
same complaints as the rest of the applicants in the present case, on which it will express its
opinion below. The Court therefore finds no reasons relating to respect for human rights, as
defined in the Convention and its Protocols, which would require it to continue the
examination of the complaints of these three applicants (Article 37 § 1 in fine) (see Denizci
and Others v. Cyprus, nos. 25316-25321/94 and 27207/95, § 369, ECHR 2001-V).
B. Complaint about the refusals of the Supreme Court of Cassation to re-open the
proceedings under the 1946 Confiscation Act
57. The Court considers that the applicants’ complaint that the Supreme Court of
Cassation refused to re-open the confiscation proceedings against their ancestors (see
paragraph 53 (a) above) falls to be examined under Article 6 § 1 of the Convention, which
provides:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law.”
58. The Court observes at the outset that Article 6 § 1 was not applicable under its
criminal limb, as the proceedings did not concern criminal charges against the applicants, but
against their ancestors (see Kurzac v. Poland (dec.), no. 31382/96, ECHR 2000-VI). The
question remains, then, whether the proceedings, which were issued under a special
rehabilitation law, fell under the civil limb of this provision (ibid.) and could have a bearing
on the applicants’ ability to obtain compensation for the properties taken from their ancestors.
However, the Court is not required to resolve this issue, because even assuming that Article 6
§ 1 was applicable, the complaints are inadmissible as being out of time.
59. The requests for re-opening in all five cases were turned down by final decisions of the
Supreme Court of Cassation delivered more than six months prior to the introduction of the
applications (see paragraphs 14, 27, 32 and 37 above). It is true that the attempts to secure re-
opening were part of a broader endeavour to obtain compensation, which was eventually
frustrated by judgments of the Supreme Administrative Court delivered less than six months
before the lodging of the applications (see paragraphs 15, 17, 23, 28, 33, 38 and 39 above).
However, although this might be of relevance for the complaints under Article 1 of Protocol
No. 1 to the Convention and Article 14 of the Convention, it is immaterial for the complaint
under Article 6 § 1 of the Convention about the refusal to re-open the proceedings.
60. It follows that this complaint has been introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention.
C. Complaints under Article 6 § 1 of the Convention about the proceedings before the
administrative courts
61. In respect of their complaints about the fairness of the proceedings before the
administrative courts (see paragraphs 53 (b) and 54 (a) above) the applicants relied on Article
6 § 1 of the Convention, the text of which has been set out in paragraph 57 above.
62. In so far as the applicants complained about the manner in which the various
administrative courts examining their applications for judicial review had established the facts
and had construed Bulgarian law, the Court observes that it is not its function to deal with
errors of fact or law allegedly made by national courts (see García Ruiz v. Spain [GC], no.
30544/96, § 28, ECHR 1999-I), as it is not a court of appeal from these courts (see, among
many other authorities, Cornelis v. the Netherlands (dec.), no. 994/03, ECHR 2004-V
(extracts)). It does not consider that the administrative courts’ judgments were arbitrary. In
particular, the Court does not find that their rulings that the determination of the applicants’
compensation requests had to be based on the law as it stood at the time when the authorities
decided or ought to have decided the matter (see paragraphs 15, 17, 28, 33, 38 and 39 above)
was so patently unlawful or unreasonable as to raise an issue under Article 6 § 1. It may have
ran counter to an earlier judgment of the Supreme Administrative Court (see paragraph 51
above), but was hardly out of line with the remainder of that court’s case-law (see paragraph
52 above). Nor is the Court persuaded that the rulings that the business undertaking belonging
to the ancestors of the applicants in nos. 20612/02 and 16059/03 had been taken in part under
the 1946 Confiscation Act and in part under the 1947 Nationalisation Act, and that the net
worth of the part taken under the latter Act was not positive (see paragraphs 22 and 23 above)
were so untenable or flawed as to render the proceedings unfair. It reiterates on this point that
it is primarily for the national authorities, notably the courts, to interpret and apply domestic
law.
63. In so far as the applicants in no. 16059/03 complained that the Supreme
Administrative Court had ignored their requests to gather evidence relating to the privatisation
of the State-owned company whose capital comprised properties once owned by their
ancestors (see paragraph 22 above), the Court observes that Article 6 § 1 does not require the
court hearing a case to allow the gathering of evidence solely because a party has asked for it.
It is for the court to assess whether such evidence would be relevant for the examination of
the case (see H. v. France, 24 October 1989, §§ 60 and 61, Series A no. 162-A). Considering
the grounds on which the Supreme Administrative Court disposed of the case (see paragraphs
22 and 23 above), it was entitled to take the view that the evidence sought to be adduced by
the applicants would be immaterial. Accordingly, the fact that it did not accede to their
requests did not infringe their right to a fair trial.
64. As to the alleged deliberate protraction of the proceedings for judicial review of the
Minister of the Economy’s tacit refusal, examined as a length issue, the Court observes that
the proceedings, which raised relatively complex issues of fact and law, lasted a little over
five years for four levels of jurisdiction (see paragraphs 18-23 above). Such an amount of
time does not, in the circumstances, appear excessive.
65. Concerning the bias allegedly underlying the courts’ rulings, the Court observes that it
has not been argued that the courts were not independent by reason of lack of guarantees
against outside pressure, or that there existed objective factors casting doubt on their
impartiality. Nor is there any indication that the judges who dealt with the applicants’ cases
acted with personal bias, showed partiality in favour of the executive, or based their rulings on
factors other than their opinions about the facts of the cases and the proper interpretation of
the relevant legal provisions. The principle that a tribunal is presumed to be free of personal
prejudice or partiality is long-established in the Court’s case-law (see, as a recent authority,
Kyprianou v. Cyprus [GC], no. 73797/01, § 119, ECHR 2005-XIII).
66. Finally, in so far as the applicants complained about the Supreme Administrative
Court’s failure to impose the interim measure sought by them (see paragraph 19 above), the
Court observes that it is questionable whether this grievance comes within the ambit of
Article 6 § 1 (see, among many other authorities, Gallogly v. the United Kingdom, no.
7990/77, Commission decision of 11 May 1981, Decisions and Reports 24, p. 57, at p. 61;
Ribstein v. France, no. 31800/96, Commission decision of 16 April 1998, unreported; APIS
a.s. v. Slovakia (dec.), no. 39754/98, 13 January 2000; Starikow v. Germany (dec.), no.
23395/02, 10 April 2003; Libert v. Belgium (dec.), no. 44734/98, 8 July 2004; Biserica
Sfantul Haralambie v. Moldova (dec.), no. 19967/02, 30 November 2004; and Saarekallas Oü
v. Estonia, no. 11548/04, 8 November 2007; but see also, to the contrary, Micallef v. Malta,
no. 17056/06, §§ 34-47, 15 January 2008, referred to the Grand Chamber). However, the
Court does not need to resolve this issue in the instant case. Even assuming that Article 6 § 1
applied, it does not seem that the Supreme Administrative Court’s failure to order the measure
sought by the applicants had a bearing on the fairness of the proceedings as a whole. In view
of the grounds on which that court eventually disposed of the case (see paragraphs 22 and 23
above), it can hardly be said that its failure to stay the privatisation of the State-owned
company in whose assets the applicants’ ancestors’ factory had been included impinged on
their rights.
67. It follows that these complaints are manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
68. In respect of their complaints that they had been deprived of the right to compensation
for the properties taken from their ancestors (see paragraphs 53 (c) and 54 (b) above) the
applicants relied on Article 1 of Protocol No. 1 to the Convention, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be
deprived of his possessions except in the public interest and subject to the conditions provided for by law
and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws
as it deems necessary to control the use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
Decides to strike the case out of the list in so far as it concerns Ms Velichka Radkova
Bicheva, Ms Elitsa Vasileva Mineva and Ms Maria Kostadinova Mineva;