DANAILOV AND OTHERS v. BULGARIA
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Zdravka Kalaydjieva
1. The applicants are Bulgarian nationals. A list of their names and years of birth is set out in the appendix. All of the applicants lived in Dospat, except Mr Sergey Savkov Bozov, who lives in Negovan. The applicants were represented before the Court by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv. Some of the initial applicants died or transferred their properties in the course of the proceedings before the Court and their heirs or successors expressed the wish to continue the application in their stead. They also authorised Mr Ekimdzhiev, Ms Boncheva and Ms Chernicherska to represent them. 2. The Bulgarian Government (“the Government”) were represented by their Agents, Ms N. Nikolova and Ms A. Panova, then by Ms M. Kotseva and Ms A. Panova, from the Ministry of Justice. 3. The application concerns twenty-two sets of domestic proceedings to which the applicants were parties, relating to the restitution of forestry land in the area of Dospat. The facts, as submitted by the parties, may be summarised as follows. 4. Following the enactment of the Forests Restitution Act in 1997 (see paragraph 24 below), the applicants (or, in some cases, their predecessors) applied for the restitution of forestry land in the area of Dospat. 5. The applicants claimed that the documents establishing their former titles had been destroyed, so they could not present them. The claims were therefore examined under the special procedure provided for under section 14 of the Forests Restitution Act (see paragraphs 25-26 below). For the region of Smolyan, the commission provided for in section 14 (“the regional commission”) was created in October 1999 by an order of the Minister of Agriculture. It was headed by a judge of the Smolyan Regional Court and included representatives of the municipalities in the region, the Smolyan Regional Governor’s office, the Smolyan Regional Forest Authority and the local forest authorities. The order specified that the regional commission was to be assisted by representatives of the local land commissions. 6. The regional commission carried out an inquiry to verify the restitution claims for the area of Dospat. The Dospat forest authority made submissions to it, pointing out that as there had never been privately owned forests in the area, there was no need for restitution. Nevertheless, on 30 August 2000 the regional commission adopted a decision recognising the rights of numerous persons, including the applicants, to different plots of forestry land. 7. The representative of the Smolyan Regional Forest Authority signed the decision, but joined a separate opinion whereby he too stated that there had been no privately owned forests in the area prior to the process of nationalisation. He considered that if, on the other hand, the land claimed had been agricultural before nationalisation, that fact had to be expressly established by showing that the forests on the land were less than fifty years of age. 8. On the basis of the regional commission’s decision of 30 August 2000, in a series of decisions dated 10 May 2001 the Dospat land commission restored the applicants’ property rights to the land at issue, and the applicants took possession and started using it shortly thereafter. 9. In July 2001 the Dospat forest authority complained to the Smolyan regional public prosecutor’s office about the restitution process in the Dospat region. The complaint concerned seventy-five beneficiaries of the restitution process, including the applicants, and 189.9 hectares of forestry land. Non-governmental organisations also complained to the prosecution authorities that the Dospat forests had been “plundered”. 10. The Smolyan regional public prosecutor’s office commissioned an expert report, which established that before nationalisation the land given to the applicants had been yaylak (a Turkish term designating a high-mountain pasture). Under the law of the Ottoman Empire to which the territory had belonged until 1912, the State remained the owner of all yaylak land and private individuals could only receive the right to use it. That situation was preserved in Bulgarian law after the area had been included in Bulgarian territory. There were no documents in the public archives indicating that there had ever been privately owned forests in the area. In particular, in the tax registers for the period between 1929 and 1934, there were no data indicating that private individuals had paid land tax; there were no documents for the expropriation of forestry land in the area after the enactment of the relevant legislation in 1947; and there was no indication that at the time of expropriation anyone in the area had received compensation, which in accordance with the law had to be in the form of State bonds. Lastly, the expert pointed out that there had been no cases of restitution of forests or forestry land in the Dospat region under section 13 of the Forests Restitution Act, namely with documents establishing rights to property prior to nationalisation (see paragraph 25 below). 11. In November 2003 the Smolyan regional public prosecutor’s office proposed that the administrative proceedings be re-opened and the decisions of the land commission of 10 May 2001 be quashed. 12. In a series of decisions dated 2 and 8 December 2003, in all but four of the present cases the Dospat Agriculture and Forestry Department (the former land commission) quashed the decisions of 10 May 2001. It considered that those decisions had been adopted “in material breach of the law”, because the documents submitted by the prosecution had shown that as there had never been privately owned forests and forestry land in the area of Dospat, the preconditions for restitution had not been met. 13. The applicants challenged those new decisions. In judicial proceedings which all ended between 1 February and 12 April 2005, the Smolyan Regional Court and the Supreme Administrative Court quashed the decisions. Giving largely identical reasoning, they found that the Agriculture and Forestry Department’s reasons for re-opening the proceedings had not been valid and quashed its earlier decisions because the relevant time-limits for doing so, as provided for by the general rules on administrative procedure, had expired. They did not discuss the merits of the applicants’ restitution claims. 14. In November 2005 the Dospat forest authority, acting on behalf of the State, brought rei vindicatio claims against the applicants, arguing that the State was the lawful owner of the restored land and that the restitution had been unlawful. Following requests by the forest authority, in many of the cases the courts issued interim injunctions against the applicants, barring them from transferring their titles. 15. The different sets of rei vindicatio proceedings ended between 22 January 2009 and 4 March 2010. In all of them, using largely identical reasoning and relying on the legislation as in force in the 1920s and 1930s and documents from different periods, the courts found that the land at issue had been yaylak, which meant that it could not have been privately owned at the time of nationalisation of forests in Bulgaria in the 1940s. Moreover, given the age of the forests – in some cases more than a hundred years – it could not be accepted that at the time of nationalisation the land at issue had been agricultural and that it had subsequently been afforested. In some of the cases the courts pointed out that the applicants had not even claimed that they or their predecessors had been owners, but merely relied on the land commission’s respective decisions of 10 March 2001. In some cases the courts noted in addition that the regional commission’s decision of 30 August 2000 had not been signed on the part of the Dospat forest authority by the member indicated in the order of the Minister of Agriculture, but by another person. 16. On the basis of the above findings the courts concluded that the land at issue had not been owned by the applicants’ predecessors and could not therefore have been taken from them in the 1940s; on the contrary, the land had always been State-owned. Accordingly, the restitution legislation had not given rise to any rights for the applicants. Furthermore, the courts considered that both the regional commission’s decision of 30 August 2000 and the Dospat land commission’s decisions of 10 March 2001 had been given in breach of the law. 17. In addition, the courts found that the State, as represented by the Dospat forest authority, was not bound by the land commission’s decisions on restitution. For instance, in its judgment of 27 November 2007 in the case of Mr Eduard Stefanov Danailov and Mr Aleksandar Stefanov Danailov, the Smolyan Regional Court held: “The court, in examining a rei vindicatio action, must scrutinise independently whether the right to property has arisen on valid grounds and is not bound by the administrative decision relied on – the decision of the land commission – the validity of which is to be verified through indirect judicial review where the plaintiff has not participated in the administrative proceedings. It cannot be accepted that the participation of a representative of the Dospat forest authority in the administrative proceedings which resulted in the adoption of the land commission’s decision is sufficient to render the conclusions of those proceedings binding on the Dospat forest authority.” 18. Similarly, in a judgment of 18 December 2009, in the case of Mr Velin Menkov Terziev, the Supreme Court of Cassation held: “The claimant in the rei vindicatio proceedings has not participated in the administrative proceedings concerning restitution of property and is not bound by the land commission’s decision. It can therefore challenge that decision in civil proceedings concerning its property rights.” 19. After the entry into force of the new Code of Civil Procedure on 1 March 2008 Mr Sevdalin Antimov Pehlivanov and Mr Feti Halilov Pehlivanov lodged an appeal on points of law, which was examined in accordance with the rules provided for in the new Code. 20. As required under Articles 287 and 288 of the Code, the appeal was served on the Dospat forest authority, which lodged written submissions in reply. The submissions were not communicated to the applicants. Having considered the case file on the papers, in a final decision of 26 February 2010 a three-member panel of the Supreme Court of Cassation refused to admit the appeal for examination. It held that the appeal did not meet the requirements of Article 280 § 1 of the Code. 21. On unspecified dates the prosecution authorities instituted criminal proceedings against some of the beneficiaries of restitution in the Dospat region for document forgery and fraud. In six of the cases under examination, which were not specified by the parties, the applicants were indicted. In two of those cases the courts convicted the applicants. 22. Specific information has been provided on the case of Mr Emil Velinov Mladenov, Ms Atidzhe Salihova Uzunova, Ms Nayle Salihova Letifova and Mr Mladen Velinov Mladenov. On 25 June 2004 Mr Emil Velinov Mladenov was convicted by the Devin District Court for having forged a request for restitution submitted on behalf of the remaining applicants. This was taken into account by the courts examining the rei vindicatio action against those applicants and served as grounds to allow the action and conclude that the applicants had not become the owners of the land claimed. 23. After the completion of the rei vindicatio proceedings the Dospat forest authority brought proceedings for unlawful enrichment against some of the applicants, seeking to recover the monetary equivalent of the timber produced from the respective plots of land between 2001 and 2005. 24. The Restitution of Title to Forests and Forestry Land Act (Закон за възстановяване на собствеността върху горите и земите от горския фонд, “the Forests Restitution Act”) was enacted in 1997. It set out the conditions for restitution of forestry land which had been expropriated in 1946 and the following years. Under section 11 of the Act, the bodies competent to take decisions on restitution were the respective land commissions, replaced in 2002 by Agriculture and Forestry Departments (after 2008 renamed Agriculture Departments). Those are State bodies, whose members are appointed by the Minister of Agriculture. Forest authorities are also State bodies. 25. Former owners of forestry land wishing to have their property rights restored had to support their claims by documents establishing their title before nationalisation (section 13 of the Forests Restitution Act). Where the relevant documents had been “lost or destroyed through no fault of their own”, such claimants might still apply for restitution and their requests were to be examined under a special procedure provided for in section 14 of the Act. 26. Section 14 provides for the creation of regional commissions, composed of representatives of the local judicial and administrative authorities, with the task of carrying out inquiries to verify restitution claims. Where, following an inquiry, the regional commission was satisfied that the claims in question were well founded, it would take a decision to restore the former owners’ property rights. Such a decision was binding on the respective land commission/Agriculture Department, which was obliged, within six months of its receipt, to issue a formal decision on restitution. The decisions taken by the land commissions/Agriculture Departments were not amenable to judicial review, and any disputes with third parties over property rights were to be determined in separate proceedings. 27. On 14 January 2013 the Plenary of the Civil Chambers of the Supreme Court of Cassation delivered interpretative decision no. 5/2013 (Т.д. № 5/2011 г., Върховен съд на Република България, Общо събрание на Гражданска колегия). It found, in the first place, that court judgments ordering restitution under the Forests Restitution Act had binding effect on the State and its bodies, which could not seek the re-examination of the matter in new judicial proceedings. 28. The Supreme Court of Cassation found, on the other hand, that it remained open for the State, through its bodies, to challenge administrative decisions of the land commissions/Agriculture Departments allowing restitution claims. In particular, it held: “The restitution of ... forests is carried out through administrative means. ... The procedure unfolds between the administrative body and the person who has sought restitution, and that is why it is ex parte. No disputes concerning rights to property are examined in these proceedings, and the Agriculture Department decides on the request for restitution. ... The State is not a party to the proceedings before the Agriculture Department. Pursuant to [the relevant provisions of the Code of Administrative Procedure], the parties to proceedings concerning the issuance of an individual administrative decision are the claimant and other interested parties who were summoned or have joined the procedure. The Agriculture Department is not a party to the administrative procedure, but the body before which the procedure unfolds. ... Where the decision given in the restitution procedure affects rights in rem of the State, it is entitled to defend them under the general civil law, by bringing an action to establish the rights claimed by it. Where an action has been brought against it, it can seek to establish that it has the right to ownership of the disputed plot. For the State this is the only means of defence against an unlawful administrative decision.” 29. The rules under the Code of Civil Procedure, as in force since 1 March 2008, have been summarised in the Court’s decision in the case of Valchev and Others v. Bulgaria ((dec.), nos. 47450/11, 26659/12 and 53966/12, 21 January 2014).