CASE OF DIMITROVI v. BULGARIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicants were born in 1973 and 2004 respectively and live in Sofia. 6. The applicants are the widow and the son of Mr Konstantin Dimitrov Dimitrov, who died in December 2003. 7. In 2001, following publications in the media concerning the income of the first applicant and her husband, the Sofia regional public prosecutor’s office opened proceedings against them under Chapter Three of the Citizens’ Property Act (“the CPA”, see paragraphs 23-28 below). In a decision of 23 August 2002 a prosecutor from that office discontinued the proceedings. 8. The prosecutor found, first, that for the period from 1990 to 1992 Mr Dimitrov’s expenditure had exceeded his income, but that in 2002 he had paid the difference to the State budget. Accordingly, there was no ground to pursue the proceedings for that period (section 45 of the CPA, see paragraph 27 below). 9. Next, the prosecutor described the income and the expenditure of the first applicant and Mr Dimitrov for the period from 1993 to 1997, but did not make an explicit finding as to whether she considered their income lawful within the meaning of the CPA. 10. Lastly, analysing the couple’s income and expenditure for the period from 1997 to 2001, the prosecutor concluded that they were equivalent, and that there were no grounds for bringing forfeiture proceedings under the CPA. 11. On an unspecified date the Sofia regional public prosecutor’s office opened new proceedings under Chapter Three of the CPA. On 18 November 2004 it brought an action in the Sofia Regional Court against the two applicants, seeking the forfeiture of two flats, one in Varna and one in Sofia, a garage, an office and a share in a plot of land in Sofia, a holiday house in the Borovets resort and a Toyota Land Cruiser car, all acquired by the first applicant and Mr Dimitrov with income received between 1990 and 1999, which was allegedly “unlawful” within the meaning of section 34 of the CPA (see paragraph 25 below). 12. The Sofia Regional Court gave a judgment on 28 November 2006. It analysed in detail the income received by the first applicant and her husband and their expenditure during the period at issue. Due to the difficulties in making an assessment because of the high inflation of that time, the court relied on expert conclusions, calculating all the amounts in United States dollars (USD). 13. The Regional Court accepted in particular, referring to rent contracts, the tax declaration submitted by the first applicant in 1998 and witness statements by those involved, that in 1997 the first applicant and her husband had received substantial income from farming. 14. On the basis of its calculations, the Regional Court concluded that the couple’s expenditure for the period at issue had exceeded their proved income by approximately USD 40,000, which by virtue of section 34 of the CPA represented “unlawful” income. Accordingly, allowing the action brought before it in part, the Sofia Regional Court ordered the forfeiture of property of that value, namely the flat in Varna, the share in a plot of land in Sofia and approximately one-quarter of the flat in Sofia. 15. Both parties lodged appeals. 16. On 17 March 2008 the second-instance Sofia Court of Appeal gave a judgment. It found that the applicants had not established all the income considered proven by the Regional Court, in particular as concerns the family’s farming business. According to the Court of Appeal it was unacceptable to prove such income on the basis of the evidence presented before the lower court, without any further documents showing, for example, expenditure and revenue received. It also considered unproven two monetary gifts, one of them allegedly made by the first applicant’s parents and the other allegedly received on the occasion of her wedding to Mr Dimitrov in 1997. 17. The Court of Appeal calculated that the expenditure of the first applicant and her husband for the period from 1990 to 1999 had exceeded their income by approximately USD 286,000. It considered further that the properties for which the prosecution authorities sought forfeiture had been acquired with this “unlawful” income, and accordingly ordered the forfeiture of the flats in Sofia and Varna and the office, the garage and the share in a plot of land in Sofia. As to the remaining properties at issue, namely a holiday house in Borovets and a car, given that they had in the meantime been transferred to third parties, the Court of Appeal ordered the applicants to pay their monetary value to the State. 18. The applicants lodged an appeal on points of law. In a final decision of 28 July 2008 the Supreme Court of Cassation refused to accept the appeal for examination. 19. On the basis of the judgment of 17 March 2008, on 28 January 2010 the regional governor of Varna issued a decision declaring the flat in Varna State property. Similar decisions concerning the properties in Sofia were issued by the Sofia regional governor on 27 July and 4 August 2011. Following these decisions the applicants surrendered possession to the State. 20. On 20 July 2010 the applicants paid 178,815 Bulgarian levs (BGN) to the State budget, representing the value of the remaining forfeited properties, namely the holiday house in Borovets and the car, and the court fees and other costs due by them. In the domestic proceedings they had been ordered to pay BGN 14,019.34 in total in fees and other expenses. 21. In 2003 and 2004 the relevant tax authorities carried out probes into the income received by the first applicant and her husband between 1997 and 2002. Their decisions, calculating the income tax due, were given on 23 June and 26 November 2004. 22. In respect of the first applicant the respective decision was partly quashed on 20 June 2007 by the Supreme Administrative Court.