CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 octobre 2006

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Lorenzen , President ,   Mrs   S. Botoucharova ,   Mr   K. Jungwiert ,   Mr   R. Maruste ,   Mr   J. Borrego Borrego ,   Mrs   R. Jaeger ,   Mr   M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar , Having regard to the above application lodged on 22 April 2000, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Stoyan Todorov Tarnev, is a Bulgarian national who was born in 1939 and lives in Kamenovetz. He was represented before the Court by Mr M. Ekimdjiev, a lawyer practising in Plovdiv. The respondent Government were represented by their Agent, Ms   M.   Karadjova, of the Ministry of Justice. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The rei vindicatio proceedings On 5 October 1992 the applicant and six of his relatives initiated rei vindicatio proceedings against the Plovdiv municipality. They sought to recover possession of a property, which had been nationalised by the State in 1955 from one of their ancestors. They considered that the said property had been restituted to them ex lege following the entry into force on 15   February 1992 of the Restitution of Ownership of Nationalised Immovable Properties Act (the “Restitution Act”). It is unclear how many hearings were held before the Plovdiv District Court. At least one expert’s opinion was obtained in the course of the proceedings and there was difficulty in obtaining various official documents regarding the status of the property. On 24 September 1993 the Plovdiv District Court dismissed the claimants’ action as it found that they had failed to prove their ownership rights to the property. The claimants appealed against the judgment on an unspecified date. It is unclear how many hearings were held before the Plovdiv Regional Court. On 8 December 1993 the Plovdiv Regional Court upheld the judgment of the lower court. The claimants filed a petition for review (cassation) against the aforementioned judgements on an unspecified date. It is unclear how many hearings were held before the Supreme Court. In a judgment of 18 July 1995 the Supreme Court quashed the lower courts’ judgments and remitted the case to the Plovdiv Regional Court as it considered that there had been procedural violations by the lower courts due to the fact that they had based their findings on insufficient evidence. It is unclear how many hearings were held before the Plovdiv Regional Court at the retrial stage of the proceedings. During this period the court commissioned six expert reports, dated 16 February and 24   August 1996, 27   February and 29 December 1997, sometime at the beginning of 1998 and 16 June 1998. In a judgment of 20 July 1998 the Plovdiv Regional Court once again found against the claimants as it considered that they had failed to prove their ownership rights to the property and dismissed their rei vindicatio action. The claimants filed a petition for review (cassation) against the aforementioned judgement on an unspecified date. In a final judgment of 24   September 1999 the Supreme Court of Cassation upheld the lower court’s judgment on similar grounds. 2.     The restitution proceedings The mother of the applicant filed a request on 27 July 1992 with the Plovdiv Mayor’s Office seeking the restitution of a plot of land. It is unclear whether the property subject of this request was the same one as that in rei vindicatio proceedings. The Plovdiv Mayor’s Office apparently did not respond to the request filed by the applicant’s mother, so on an unspecified date she appealed against the tacit refusal of the Plovdiv Mayor. On an unspecified date, six of her relatives joined the proceedings. On 28   March 1993 the claimants were served with a decision of the Deputy-Mayor of Plovdiv refusing to restitute the claimed property. The claimants appealed against the decision on 8 June 1993. It is unclear how many hearings were conducted before the Plovdiv Regional Court. In a judgment of 20 December 1993 the Plovdiv Regional Court dismissed the claimants’ appeal and upheld the decision of the Deputy-Mayor of Plovdiv. The court found that the property was not subject to restitution under the Restitution Act because it had been nationalised for municipal projects which had been completed, which precluded such restitution. The claimants filed a petition for review (cassation) against the aforementioned judgment on 28   February 1994. It is unclear how many hearings were conducted before the Supreme Court. The Supreme Court, in a judgment of 19 June 1995, quashed the judgment of 20 December 1993 and remitted the case as it found that there had been procedural deficiencies in the proceedings before the lower court. In particular, it considered that the lower court had failed to examine evidence which unequivocally proved that the municipal projects for which the property had been nationalised had in fact been completed. It is unclear how many hearings were conducted before the Plovdiv Regional Court at the retrial. On this occasion, the relatives of the applicant’s mother did not join the proceedings. During the period, seven or eight technical and accounting expert reports were commissioned and obtained by the court on 27 December 1995, 18   June, 2   July and 14   November 1996, 12   October 1998, and, 18   January and 19 March 1999. In addition, three hearings were postponed at the request of the applicant and the lawyer of his mother. As a result of the applicant’s mother passing away, on 9   June 1997 he and his sister continued the proceedings instituted by her. In a judgment of 13 May 1999 the Plovdiv Regional Court found against the applicant and his sister, dismissed their appeal and upheld the refusal of the Deputy-Mayor of Plovdiv. The court noted their failure to comply with an instruction of 2 December 1997 to present a certificate that they were the heirs of the ancestor whose property they sought to restitute. Regarding the restitution claim, the court found, inter alia , that it was not possible to identify the property previously owned by the claimants’ ancestor and that the prerequisites for restitution under the Restitution Act had not been met. The applicant and his sister appealed against the judgment on 7 June 1999. It is unclear how many hearings were conducted before the Supreme Administrative Court. In a final judgment of 7 April 2000 the Supreme Administrative Court quashed the lower court’s judgment in respect of part of the disputed property and ruled on the merits of the appeal against the refusal of the Deputy-Mayor of Plovdiv as regards that part of the property. In contrast to the lower court, the Supreme Administrative Court considered that all the prerequisites for restitution of the said part of the property were present, found in favour of the applicant and his sister, and restituted it to them. COMPLAINTS The applicant complained under Article 6 § 1 and Article 1 of Protocol No. 1 of the Convention of the excessive length of both sets of proceedings and the resulting interference with his right to peaceful enjoyment of his possessions for their duration. THE LAW 1.     The applicant complained of the excessive length of both sets of proceedings and the resulting interference with his right to peaceful enjoyment of his possessions. Article 6 § 1 of the Convention provides, as relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...” Article 1 of Protocol No. 1 to the Convention 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.” A.     The rei vindicatio proceedings 2.     The Court reiterates that the six-months’ period under Article 35 § 1 of the Convention runs from the date on which the final decision was served or, if the domestic law, as in the present case, does not provide for service, from the date on which the applicant could find out its contents (see Worm v. Austria , judgment of 29 August 1997, Reports of Judgments and Decisions 1997 ‑ V, p. 1547, §   33, Papachelas v. Greece [GC], no. 31423/96, §   30, ECHR 1999 ‑ II, Anguelova v. Bulgaria (dec.), no. 38361/97, 6 June 2000 and Köksal v. the Netherlands (dec.), no. 31725/96, 19   September 2000). The Court notes that in the present case the rei vindicatio proceedings concluded on 24 September 1999 with the final judgment of the Supreme Court of Cassation. The Government claimed that on that date the said judgment was finalised and deposited with the registry of the court. The applicant disputed that assertion and claimed that the judgment was prepared on a much later date, that it was deposited with the registry of the court on an unknown date and, in any event, that he acquired knowledge of its content on an unspecified later date when the case file was returned to the Plovdiv District Court. Considering the above, the Court finds that the Government has failed to convincingly show on which date the judgment was deposited with the registry of the court, but also recognises that the applicant did not specify on which date he became aware of the said judgment. Accordingly, the Court finds it unproven, both by the Government and the applicant, on which date the final judgment of the Supreme Court of Cassation became accessible by the parties in the proceedings and, accordingly, from which date onwards the applicant could have became aware of its content for the purpose of calculating the six-month period under Article 35 § 1 of the Convention. However, the Court considers that it is not required to definitively decide on this issue, as it finds the applicant’s complaints relating to these proceedings to be in any event inadmissible for the following reasons. 1.     The period to be taken into consideration The period to be taken into consideration started on 5 October 1992 and ended on 24 September 1999 with the final judgment of the Supreme Court of Cassation. Thus, the overall length of the proceedings was six years, eleven months and twenty days. During this period the case was heard twice   – once by three levels of jurisdiction and once by two levels. 2.     The reasonableness of the length of the rei vindicatio proceedings The Government submitted that there were no unreasonable delays attributable to the authorities and that the courts had processed the case expeditiously. In addition, they argued that the case was complex as it was necessary for the courts to assess the ownership rights of the claimants to a property which had been nationalised many years earlier. The Government claimed that this required the commissioning of a number of expert reports, mostly at the request of the claimants, which prolonged the proceedings. In conclusion, noting that the subject matter of the proceedings was the ownership of a property and considering that the case was sufficiently complex, the Government argued that the overall length of the proceedings was not unreasonable. The applicant disagreed with the Government. He claimed that the case was not complex and that the subject matter was of vital importance to him. In addition, the applicant argued that he had not contributed to their overall length while the courts had failed to show the required diligence in processing the case expeditiously. He further argued that the domestic courts had failed to provide the necessary guidance to the parties in order to expeditiously conclude the proceedings, a responsibility which they had until an amendment to the Code of Civil Procedure in 1997. Lastly, the applicant claimed that the two periods during which the case had been pending before the Supreme Court and then the Supreme Court of Cassation had been especially unreasonable in length. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The Court considers that the case, which related to a sought recognition and restoration of the ownership rights of the claimants to a property nationalised from their ancestors, was relatively complex. In particular, it involved the completion of a number of expert reports in order to determine the basis for the said nationalisation, the changes to and the current status of the property, as well as the rights of the claimants to it. In addition, there was also some difficulty in obtaining various official documents regarding the property. In respect of the conduct of the applicant, the Court does not find that he unjustifiable delayed the proceedings. As to the conduct of the authorities, the Court observes that with the exception of the Plovdiv Regional Court at the retrial stage of the proceedings, each level of jurisdiction dealt with the case within a period of three to nineteen months, which it considers reasonable in the present case. In respect of the retrial before the Plovdiv Regional Court, the Court does not find indication of, and the applicant does not claim to have been, any unjustified periods of inactivity on account of the authorities. During this period, six expert reports were commissioned and delivered to the court at regular intervals. In respect of the applicant’s argument that the court did not actively assist the parties in concluding the case sooner, the Court notes that they were represented by counsel who participated in the proceedings and requested the commissioning of certain expert reports. Lastly, the Court notes that the proceedings related to the recognition and restoration of ownership rights to a property, which the applicant had never owned. Thus, it does not consider that the proceedings required special diligence (see, mutatis mutandis , Hadjikostova v. Bulgaria , no. 36843/97, §   36, 4   December 2003). Considering all circumstances, the Court finds that, the overall length of the civil proceedings in the present case did not violate the “reasonable time” requirement of Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 3.     As to the applicant’s related complaint under Article 1 of Protocol No.   1 to the Convention, the Court notes that it stems from the alleged excessive length of the rei vindicatio proceedings. It further notes that the domestic courts dismissed the action of the claimants, including the applicant, because they failed to prove their ownership rights to the property. In this instance, even assuming that the responsibility of the State under Article 1 of Protocol No. 1 to the Convention may in certain circumstances be engaged, the Court refers to its conclusions in respect of the applicant’s Article 6 complaint (see, , mutatis mutandis , Grozeva v. Bulgaria (dec.), no.   52788/99, 3 November 2005) . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. B.     The restitution proceedings 1.     The period to be taken into consideration 4.     The Government argued that the period to be taken into consideration began on 8 June 1993 when the proceedings were initiated before the Plovdiv Regional Court. The applicant disagreed and claimed that the period began on 27 July 1992 when his mother initiated the administrative proceedings before the Plovdiv Mayor’s Office. The parties agreed that the end of the period to be taken into consideration was 7 April 2000, the date of the final judgment of the Supreme Administrative Court. The Court observes that in the present case, prior to the court proceedings, the applicant’s mother filed her restitution request with the Plovdiv Mayor’s Office. The latter is an administrative body whose task is to restitute such land to its former owners or their heirs and a negative decision of that body is a prerequisite for instituting court proceedings. It should therefore be accepted that the proceedings complained of by the applicant commenced when his mother filed her claims for restitution on 27   July 1992 with the Plovdiv Mayor’s Office (see, mutatis mutandis , Dimitrov v.   Bulgaria , no. 47829/99 , §§ 52-53, 23 September 2004 and Vallée v.   France , judgment of 26 April 1994, Series A no. 289 ‑ A, p. 17, §   33). Nonetheless, in so far as the Convention entered into force for Bulgaria on 7 September 1992, the Court is competent ratione temporis to examine only the period after that date. However, it must take into account the stage the proceedings had reached at that point (see Proszak v. Poland , judgment of 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, p. 2772, § 31). Thus, the overall length of the proceedings was seven years, eight months and twelve days, of which seven years, seven months and one day can be taken into consideration ratione temporis . During this period the case was heard twice – once by three levels of jurisdiction and once by two levels. 2.     The reasonableness of the length of the restitution proceedings The Government submitted that there were no unreasonable delays attributable to the authorities and that the courts had processed the case expeditiously. In addition, they argued that the case was complex as it related to the restitution of property that had been nationalised several decades prior to the proceedings, which often entailed the collection and assessment of a multitude of documents and expert reports. The Government also contended that the parties to the proceedings had contributed to their overall length, claimed that a number of the expert reports had been commissioned at their request and that they had requested postponements on several occasions. In conclusion, noting that the subject matter of the proceedings was only the restitution of property and considering that the case was sufficiently complex, the Government considered that the overall length of the proceedings was not unreasonable. The applicant rejected the Government’s arguments and sustained his complaint. He argued that the case was not complex and that the subject matter was of essential importance to him. In addition, the applicant claimed that he and the other parties to the proceedings had not contributed to their overall length while the courts had failed to show the required diligence in processing the case expeditiously. Lastly, he argued that at the retrial stage the Plovdiv Regional Court was responsible for protracting the proceedings by allowing a multitude of expert reports to be commissioned and by failing to provide the necessary guidance to the parties in order to expeditiously conclude the proceedings, a responsibility which it had until an amendment to the Code of Civil Procedure in 1997. The Court refers to the criteria for assessing the reasonableness of the length of proceedings indicated above in respect of the rei vindicatio proceedings. The Court considers that the case, which related to the restitution of property, was relatively complex as it involved the completion of a number of expert reports in order to determine the exact location of the property and to asses whether the projects for which it had been nationalised had in fact been completed, which was a prerequisite for the said restitution. In respect of the conduct of the applicant, his mother and their lawyers, the Court finds that there were certain minor delays for which they were responsible. In particular, they requested the postponement of at least three hearings before the Plovdiv Regional Court at the retrial stage of the proceedings and failed to present a certificate that they were the heirs of the ancestor whose property they sought to restitute. As to the conduct of the authorities, the Court observes that with the exception of the Plovdiv Regional Court at the retrial stage of the proceedings, each level of jurisdiction dealt with the case within a period of six to fifteen months, which it considers reasonable in the present case. In respect of the retrial before the Plovdiv Regional Court, the Court does not find indication of, and the applicant does not claim to have been, any unjustified periods of inactivity on account of the authorities. During this period, a number of expert reports were commissioned and delivered to the court at regular intervals. In respect of the applicant’s argument that the court did not actively assist the parties in concluding the case sooner, the Court notes that they were represented in the proceedings by lawyers who actively participated in the proceedings and requested the commissioning of several expert reports. Thus, it does not find it proven that the lack of assistance or guidance by the court contributed directly to any claimed protraction of the proceedings. Lastly, the Court takes stock of the fact that, although the applicant’s interests in the restitution of the property were evidently intertwined with those of his mother (see, mutatis mutandis , Fütterer   v. Croatia , no.   52634/99, § 11 and §§ 24-25, 20   December 2001), he joined the proceedings only on 9   June 1997. At that time they had lasted almost five years, had already passed through three levels of jurisdiction and were at the re-trial stage since 19   June 1995. After the applicant and his sister joined the proceedings, they passed through another two levels of jurisdiction and were concluded within a period of two years, nine months and twenty-nine days. Considering all circumstances, the Court finds that, the overall length of the civil proceedings in the present case did not violate the “reasonable time” requirement of Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 5.     As to the applicant’s related complaint under Article 1 of Protocol No.   1 to the Convention, the Court notes that it stems from and is based solely on the alleged excessive length of the restitution proceedings. Referring to its finding above in respect of Article   6 of the Convention, the Court finds the present complaint, if examined under Article 1 of Protocol No. 1 to the Convention, to be likewise manifestly ill-founded. Thus, it must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 6.     In view of the above, it is appropriate to discontinue the application of Article   29 § 3 of the Convention and to reject the application. For these reasons, the Court unanimously Declares the application inadmissible.   Claudia Westerdiek   Peer Lorenzen   Registrar   President