DIMITROVA AND OTHERS v. BULGARIA
Inadmissible
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev
1. The applicants are Bulgarian nationals. Their particulars are set out in the appendix. The applicants were represented by Mr M. Ekimdzhiev and Ms G. Chernicherska, lawyers practising in Plovdiv. One of the applicants passed away in 2010 and her heirs, whose names are also indicated in the appendix, expressed the wish to continue the proceedings in her stead. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms L. Gyurova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. An ancestor of the applicants owned agricultural land on the outskirts of Sofia, which was collectivised in the 1950s. It was initially managed by an agricultural cooperative, but was subsequently, together with other land, allocated to State-owned film studios and became part of what was known as “the Boyana National Film Centre”. At the beginning of the 1990s the State enterprise managing these facilities was transformed into a Stateowned company, initially named Boyana Film EAD and, after its privatisation in 2007, Nu Boyana Film AD. 5. Following the adoption of the Agricultural Land Act in 1991, which, under certain conditions, provided for the restoration of property titles to agricultural land, on 14 March 1993 the competent body dealing with restitution – the local agricultural land commission – held that the applicants were entitled to restitution in kind of their ancestor’s entire plot, measuring 4,900 sq. m in total. 6. In 1996 the applicants brought rei vindicatio proceedings against Boyana Film EAD. On 14 October 1998 the Sofia District Court allowed the action in part and ordered the company to hand over possession of 2,830 sq. m of the plot; it found that the company did not hold the remainder of the land, which had been taken by a street. The domestic court observed that the applicants’ property rights had been restored by virtue of the decision of 14 March 1993, whereas the company, which had made no submissions before it, had failed to show that it possessed the land on any valid legal grounds. 7. The judgment of the Sofia District Court, not having been appealed against, became final on 14 July 1999. 8. On 20 December 1999 the agricultural land commission issued another decision, restoring the applicants’ property rights in respect of 2,830 sq. m of their original plot, and refusing restitution as regards the remainder. The applicants did not appeal against that decision. 9. In 2000 they brought enforcement proceedings against Boyana Film EAD, seeking enforcement of the judgment of 14 October 1998. On two occasions, in August 2000 and December 2002, a bailiff formally handed over possession of the plot to the applicants, tracing its borders with poles inserted into the ground, and evicted the company. However, on each occasion the company removed the poles and continued to use the land, which remained within the film studios’ fenced territory. 10. In a decision dated 7 December 2001 the local mayor ordered that the plot described above be registered in the cadastral plans as the property of the applicants. In 2003 Boyana Film EAD challenged that order before the courts. The ensuing proceedings continued until 31 January 2012, with the courts rejecting the company’s challenge, finding in particular that, as the judgment of 14 October 1998 had already recognised the applicants’ property rights to the plot at issue, the proposed amendment to the cadastral plan was lawful. 11. In 2007 the company, already named Nu Boyana Film AD, brought court proceedings against the applicants, seeking a declaration that it was the owner of the disputed plot. Having satisfied itself on the basis of expert reports that the plot claimed was identical to the one which had been the subject of the previous proceedings between the same parties, the Sofia District Court found, in a decision of 25 February 2009, that the claim was inadmissible because the matter had already been settled with res judicata effect. That decision became final on 20 January 2010. 12. In December 2010 the body tasked with maintaining cadastral plans, the Geodesy, Cartography and Cadastre Agency, adopted a new plan for the area, naming the applicants as the owners of the plot at issue. Nu Boyana Film AD applied for the plan to be amended to say that ownership of the plot was “in dispute”. Its application was allowed, by order of the head of the Agency on 11 February 2011. The applicants challenged that order successfully, with the national courts pointing out in their judgments that ownership of the plot was not “in dispute”, particularly as the proceedings regarding amendments of the cadastral plan described in paragraph 10 above were not determinative of any property rights of the parties. The final judgment in that series of proceedings was given on 15 July 2013. In November 2013 the applicants’ representative was informed that the cadastral plans had been amended in accordance with the courts’ findings. 13. Article 415 § 1 of the 1952 Code of Civil Procedure, in force until 1 March 2008, provided that, in the context of enforcement proceedings, where a person had been ordered to hand over immovable property, a bailiff would evict that person from the property, if necessary forcibly, and formally transfer possession to the claimant. Under Article 418, if the person who had been removed from the property retook possession of it, he or she was to be evicted again. It was expressly noted that, in such a case, the person responsible for unlawfully taking possession could also incur criminal liability under Article 323 § 2 of the Criminal Code. 14. Similar provisions are contained in Article 522 § 1 and Article 525 of the current Code of Civil Procedure. 15. Under Article 323 § 2 of the 1968 Criminal Code, it is an offence for any person to take possession of immovable property from which they have been lawfully removed. The offence is punishable by up to three years’ imprisonment and a fine. The offence can also be committed by a representative of the relevant person (Решение № 248 от 14.07.2011 г. на ВКС по н. д. № 1302/2011 г., II н. о., НК). 16. Under section 109(1) of that Act, an owner may request the cessation of any unjustified action which hinders him or her in the exercise of his or her property rights. 17. In a 1985 interpretative decision (Тълкувателно решение № 31/84 г. от 6.II.1985 г. по гр. д. № 10/84 г., ОСГК) the former Supreme Court explained that such a claim (actio negatoria) provided protection against unjustified interference – whether direct or indirect – which might prevent an owner from using his or her property to the fullest extent. It pointed out that the claim could be used to declare such interference unlawful and enjoin the persons concerned to stop it and remove its effects. 18. In a number of cases the domestic courts, examining actions under section 109(1), have ordered the defendants to remove fences constructed by them, obstructing the plaintiffs’ access to their own properties (for example, Решение № 229 от 7.05.2009 г. на ВКС по гр. д. № 511/2008 г., I г. о., ГК; Решение № 37 от 7.03.2014 г. на ВКС по гр. д. № 4245/2013 г., I г. о., ГК; and Решение № 74 от 9.07.2014 г. на ВКС по гр. д. № 6580/2013 г., II г. о., ГК). 19. Section 59 of the Act is the general provision on unlawful enrichment. It has been relied on in a number of cases concerning unlawful hindrance of the effective enjoyment of a claimant’s right of property, with the courts, as a rule, awarding in damages what has been shown to be the “market rent” for a property for the period at issue (among many others, Решение № 1415 от 23.VIII.1995 г. по гр. д. № 1519/95 г., IV г. о.; Решение № 1937 от 24.XI.1995 г. по гр. д. № 2368/94 г., IV г. о.; Решение № 4 от 23.01.2009 г. на ВКС по гр. д. № 5382/2007 г., II г. о.; Решение № 90 от 8.07.2009 г. на ВКС по т. д. № 3/2009 г., I т. о.; and Решение № 122 от 14.03.2012 г. на ВКС по гр. д. № 1472/2011 г., IV г. о.).