CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mai 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                     AS TO THE ADMISSIBILITY OF                    Application No. 29583/96                  by Elisaveta, Marie and Vahe PANIKIAN                  against Bulgaria         The European Commission of Human Rights sitting in private on 13 May 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  C.L. ROZAKIS                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL              Mr.    H.C. KRÜGER, Secretary to the Commission         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 3 October 1995 by Elisaveta, Marie and Vahe Panikian against Bulgaria and registered on 2 January 1996 under file No. 29583/96;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicants are Bulgarian nationals, born in 1926, 1952 and 1955 respectively and residing in Sofia.   The first applicant, currently retired, is the mother of the second and third applicants, who are both medical doctors.   A.     Particular circumstances of the case         The facts of the case, as submitted by the applicants, may be summarised as follows.         In 1954 the first applicant and her husband became tenants in a state-owned apartment.   The apartment had four rooms and the applicants' family occupied two of them.   Two other families were tenants in the two remaining rooms.         In 1958 the first applicant and her husband applied to purchase the apartment where they lived as tenants.   Pursuant to the Regulation on the Sale of State Housing of 1957 (Naredba za prodazhba na zhilishta ot darzhavnia zhilishten fond predostaven na narodnite saveti) ("the Housing Regulation 1957"), on 19 March 1959 the Executive Committee of the local municipality (IK na Narodnia savet) gave its consent.   On 26 March 1959 the first applicant and her husband signed the sale- purchase contract.   At that time the first applicant was deputy headmaster in a school for nurses and her husband was assistant researcher in a medical institute.         The obligation of the first applicant and her husband to pay to the State the price of the apartment was secured by a mortgage.   The mortgage was lifted in 1979 when the last amounts due were paid in.         In February 1992 the Parliament adopted the Law on the Restitution of Ownership of Nationalised Real Property ("the Restitution Law" (Zakon za vazstanoviavane na sobstvenostta varhu odarzhaveni nedvizhimi imoti) (see below Relevant domestic law and practice).         On 3 August 1992 a Mr. S. submitted to the Sofia District Court (Sofiiski raionen sad) an action against the applicants under Section 7 of the Restitution Law (see below Relevant domestic law and practice). He presented proof that the apartment, which had been purchased by the first applicant and her husband from the State in 1959 and which in 1992 was the joint property of the applicants, had been owned by his parents until 1948 when it had been nationalised.   He claimed that the 1959 sale-purchase contract, between the State as the seller and the first applicant and her husband as buyers, had been contrary to certain provisions of the then existing laws.   Moreover, the buyers' membership in the Communist Party and their social status had played a role in the transaction.         The Sofia municipality was also summoned as a defendant in the case.   In its submissions to the Court the municipality disputed the claims of the plaintiff and asked the Court to dismiss them.         On 30 June 1993, after several hearings with the participation of the applicants and their lawyers, the District Court delivered its judgment.   The Court found that the decision of the municipal Executive Committee of 19 March 1959 had not been approved by the competent Ministry as required by Section 3 of the Housing Regulation 1957. Also, the municipality had considered the first applicant's family as consisting of six persons, two of them having been her uncles, whereas under the Housing Regulation 1957 they could not be considered members of the family.   In any event, even for a six-member family, the apartment had been too large because under Section 8 of the Lease Law (Zakon za naemite), as in force at the time, a family of six was entitled only to a three-room apartment.   Finally, although in one of the documents dating from 1959 it had been mentioned that the other tenants in the same apartment had agreed that it be sold to the first applicant's family, the written consent form required by the law was not found in the file.         As a result the Court found that the first applicant and her husband had acquired their apartment in breach of the law and restored Mr. S.'s ownership rights.         The applicants submitted an appeal to the Sofia Regional Court (Sofiiski gradski sad).   They stated inter alia that the other tenants in the apartment had given their prior consent to the transaction as required by the law. Also, the sale-purchase contract clearly referred in its text to the approval of the transaction by the Ministry, done on 24 March 1959.   The fact that some documents, among them the written consent forms and the official approval, were missing from the file held in the archives of the Sofia municipality, could not be used against them.   The applicants presented a written declaration signed in 1993 before a notary by a woman, who had been one of the tenants. She stated that in 1959 she had given her written consent.   The applicants also disputed the applicability of the Lease Law which concerned only leases, not sales.   Moreover, the family included the uncles who were immigrants from Turkey, without any property, and had always lived with them.         On 1 February 1994 the Regional Court confirmed the lower Court's judgment.   The judgment stated inter alia that even assuming the existence of an approval by the Ministry and of written consent forms, the other points discussed in the District Court's judgment were sufficient to warrant a finding of unlawfulness.         Thereupon the applicants submitted to the Supreme Court (Varhoven sad) a petition for review (pregled po reda na nadzora).   They enclosed the written opinion of a leading professor in civil law, who explained in detail why the Lease Law and the restrictions as regards the number of rooms were inapplicable in the applicants' case.         On 17 April 1995, following a hearing at which the applicants were represented by three lawyers, the Supreme Court refused the petition.   It discussed all arguments of the applicants and found inter alia that the Lease Law was applicable, that the existence of a ministerial approval and of consent forms had not been proven and that the lower courts had not breached the procedure.         The other defendant in the case, the Sofia municipality, was summoned but did not take part either in the appeal or in the review proceedings.         On unspecified dates Mr. S. instituted against the applicants two sets of proceedings seeking the possession of the apartment and also 140,000 leva in damages as the applicants had unlawfully refused to vacate it.   A hearing in the revindication case was scheduled for 21 March 1996 and, in the damages case, for 8 October 1996.       The applicants have not requested the repayment of the price of the apartment.   They submit that they have not done so because in 1995 the law was amended several times in this respect, but then the amendments were quashed by the Constitutional Court (Konstitutsionen sad) (see below Relevant domestic law and practice); and also because they risk receiving only the nominal amount paid under the 1959 sale- purchase contract, and not the real value of the apartment.   B.     Relevant domestic law and practice   a.     The 1992 Law on the Restitution of Ownership of Nationalised Real Property provides, inter alia, that the former owners, or their heirs, of certain types of real property nationalised by virtue of several specific laws dating between 1947 and 1952, become ex lege the owners of their nationalised property if it still exists, if it is still owned by the State and if no adequate compensation had been received at the time of the nationalisation.         Section 7 provides for an exception to the requirement that the real property be still owned by the State.   It provides that, even if certain property had been acquired by third persons after the nationalisation, the former owners or their heirs can recover their property rights if the third persons had become owners either in breach of the law, or by virtue of their party or official position, or through abuse of power.   In cases under Section 7 the former owners have to bring an action before the courts within one year from the Restitution Law's entry into force.         The Restitution Law does not state expressly the nature of the judgments under Section 7 and their consequences as far as the "third persons" are concerned.   The practice of the Supreme Court (Reshenie No. 1623 ot 10.03.1994 po gr.d. No. 186/1993 na IV gr. otd. na VS; reshenie No. 1036 ot 13.07.1994 po gr.d. No. 9/1994 na IV gr. otd. na VS) and its Interpretative Decision No. 1 (TR 1/95, OSGK, Biul. VS kn. 4/95) have clarified that these are declaratory judgments and that their effect is to declare the sale-purchase contract null and void as contrary to the law, based on the respective provisions of the general civil law.         It follows from the provisions of the general civil law that a person in the applicants' position could claim back from the State the price paid under the contract.   b.     On 19 April 1995 the Parliament adopted an amendment to the Restitution Law which provided, inter alia, that restitution under Section 7 should be possible only in cases of acquisition by abuse of party position or of power; that persons ordered to vacate real property under Section 7 should receive back the up-to-date "market price" of the property; and that the court order to vacate should not be executed until the payment of this amount.   On 6 July 1995 the Constitutional Court declared this amendment unconstitutional on grounds, inter alia, that modifying the conditions for restitution under Section 7 after the expiry of the one year time-limit for the bringing of actions and after the entry into force of judgments based on them was contrary to the principle of legality.   Also, the execution of a court order could not be made conditional on the payment of an amount by a third party (Reshenie No. 9 po konst. delo No. 4/95, D.V. br. 66/95).         On 14 September 1995 the Parliament adopted another amendment to the Restitution Law which provided, inter alia, that Section 7 should be repealed.   It also reinstated the text of the previous amendment as regards the payment of the market price and the execution of court orders.   On   17 October 1995 the Constitutional Court declared this amendment unconstitutional because, inter alia, it reiterated the previous amendment which had already been found to be unconstitutional (Reshenie No. 20 po konst. delo No. 24/95, D.V. br. 94/95).   c.     In November 1995 the Constitutional Court was seised with a request to declare Section 7 of the Restitution Law unconstitutional.         On 18 January 1996 the request was refused.   The Court found inter alia that in cases where post-nationalisation transactions between the State and third persons had been contrary to the law and therefore void, the former owners had their property rights restored ex lege, by virtue of the 1992 Restitution Law.   The third persons, who had purchased the nationalised property from the State, "had never become owners ...".   Therefore, they are not deprived of a property right.   It followed that Section 7 was not contrary to the constitutional guarantee of private property.         The contention, as submitted in the request to the Court, that Section 7 was unconstitutional as it allegedly did not "take into account the interests and the rights of the other group [of persons]", was also unfounded.   These rights and interests, acquired in breach of the law or by abuse of power, could not be derived from the Constitution and the law and could not be opposed to them.   Nobody could derive rights from his or her unlawful acts.         The Court also examined the assertion that the unlawfulness of the transactions between the State and the third persons was often the result of unlawful acts of the State administration.   It was contended that, therefore, the constitutional principle of State responsibility for damages caused by the State was breached by Section 7 of the Restitution Law.   The Court noted that a contract which was contrary to the law, was null and void regardless of which party was responsible.   The Court further stated that persons in the applicants' position could submit claims for damages against State organs or State officials, who had breached the law at the time of the transactions. Section 7 of the Restitution Law did not impede such claims in any way. It was within the competence of the Parliament to elaborate rules in this respect (Reshenie po konst. delo No. 29/95, D.V. br. 9/96).   COMPLAINTS         The applicants complain that, after having owned their apartment for more then 35 years, they were deprived of it arbitrarily and in violation of Article 1 of Protocol No. 1 to the Convention.   Moreover, they can now claim back only a nominal amount, which would hardly suffice to rent housing for several months, let alone to enable them to buy another apartment.   They also invoke Article 8 of the Convention.         Furthermore, they submit that there has been a violation of Article 14 of the Convention as they were discriminated against on the basis of their Armenian ethnic origin and their political affiliation.         The applicants also complain that Article 13 of the Convention was breached in that the courts wrongly interpreted the law and the evidence in the case and thus violated their right "to ... proceedings establishing the justice and the truth".   THE LAW   1.     The applicants complain under Article 1 of Protocol No. 1 (P1-1) to the Convention that they have lost the ownership of their apartment. They also invoke Articles 8 and 14 (Art. 8, 14) of the Convention.         The Commission considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 (b) of the Rules of Procedure, to give notice of these complaints to the respondent Government.   2.     The applicants also complain, invoking Article 13 (Art. 13) of the Convention, that the courts wrongly interpreted the law and the evidence in their case.         However, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (Appl. No. 10000/82, Dec. 4.7.83, D.R. 33, pp. 247, 255).         Insofar as the applicants may be understood as complaining that the proceedings in their case were unfair, the Commission recalls its well established case-law according to which where the right claimed is of a civil character, the guarantees of Article 13 (Art. 13) are superseded by the more stringent requirements of Article 6 para. 1 (Art. 6-1) of the Convention (Appl. No. 13021/87, Dec. 8.9.88, D.R. 57, pp. 268, 277).         However, in the present case the Commission finds no indication that the applicants, who were represented by three lawyers, could not sufficiently put forward their point of view, that the judges were biased or that the proceedings were otherwise unfairly conducted. Furthermore, the judgments were based on the analysis of evidence derived from the relevant documents and its assessment in the light of the submissions of the parties.   The Commission notes in this context that the Bulgarian courts addressed almost every objection of the applicants.         In these circumstances the Commission finds that there is no appearance of a violation of the principle of a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Appl. No. 7987/77, Dec. 13.12.79, D.R. 18, pp. 31, 45).         It follows that the remainder of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.       For these reasons, the Commission, by a majority,         DECIDES TO ADJOURN the examination of the applicants' complaints       under Articles 8 and 14 (Art. 8, 14) of the Convention and       Article 1 of Protocol No. 1 (P1-1) thereto;         DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission          (H.C. KRÜGER)                          (S. TRECHSEL)