CASE OF KUSHOGLU v. BULGARIA
Violation of P1-1
Peer Lorenzen
7. The applicants, Ms Ayten Kushoglu (alias Ayten Zeynal Ali) and Mr Mehmed Kushoglu (alias Mehmed Sali Ali), have Bulgarian and Turkish nationality. They were born in 1958 and 1956 respectively and live in Malkara, Turkey. 8. The applicants were born and lived in Bulgaria until the summer of 1989, when the communist regime in Bulgaria forced tens of thousands of ethnic Turks, among them the applicants, to emigrate. 9. Before leaving, on 24 July 1989 the applicants sold their two-storey house in Dulovo to the local municipality. At the relevant time, a person willing to sell real estate could only do so through the intermediary of the local municipality. The price was fixed at 19,288 Bulgarian levs (“BGL”), in accordance with an evaluation made by an expert at the municipality. The applicants received that amount. 10. On 12 February 1990 the municipality sold the house to two individuals, Ms A. and Mr N. The price was BGL 21,376. 11. On an unspecified date in 1991 the applicants brought an action against the Dulovo municipality for a declaration that the 1989 transaction between them was null and void as being contrary to the law or concluded in circumstances of urgent necessity and under obviously unfavourable terms. 12. On an unspecified date in 1993 the applicants brought another action against Ms A. and Mr N. claiming that the contract of 12 February 1990 between the Dulovo municipality as the seller and Ms A. and Mr N. as the buyers was also null and void as being contrary to the law. On that basis the applicants asked the court to order the defendants to “surrender the ownership and the possession” over the disputed house. The proceedings in the above two cases were joined on 19 February 1993. 13. On 2 March 1994 the Dulovo District Court gave judgment. It declared inadmissible, as having been submitted out of the relevant one-year statutory time-limit, the applicants' claim that the 1989 transaction had been concluded in circumstances of urgent necessity and under obviously unfavourable terms. It further rejected on the merits the applicants' claims that the 1989 and 1990 transactions were null and void as being contrary to the law. 14. Upon the applicants' appeal, on 8 June 1994 the Silistra Regional Court upheld the lower court's judgment. The applicants submitted a petition for review to the Supreme Court. 15. On 17 January 1995 the Supreme Court quashed the lower courts' judgments and declared with final effect the nullity of the 1989 transaction between the applicants and the municipality. The transaction was null and void as it had been signed on behalf of the municipality by a person lacking the relevant power. 16. As to the applicants' claim that the 1990 transaction between the municipality and the third parties was also null and void, the Supreme Court found that the lower courts had not considered all relevant factors and referred this part of the case back to the Regional Court. It also referred for renewed examination the applicants' rei vindicatio claim, stating that it must be considered in the light of the outcome of the dispute about the validity of the 1990 contract. 17. On 19 April 1995, in the renewed examination of the remainder of the case, the Silistra Regional Court found that the 1990 contract was valid. It then went on to dismiss the applicants' rei vindicatio claim stating: “The binding directions given by the Supreme Court [in its judgment of 17 January 1995] appear to indicate that the outcome of the rei vindicatio claim depends on the outcome of the claim [that the 1990 contract was null and void]. The latter claim must be dismissed as there are no defects in the 1990 transaction. In this sense, the defendants Ms A. and Mr N. are in possession of the disputed property on existing grounds. It follows that one of the conditions for a successful rei vindicatio – that the defendant holds the property without valid grounds – has not been established. As there exists a valid contract between the municipality and Ms A. and Mr N., it cannot be considered that there is a lack of valid grounds. ” 18. The applicants submitted a petition for review (cassation), claiming that they were entitled to recover the house from Ms A. and Mr N. 19. On 8 February 1996 the Supreme Court rejected the petition for review (cassation), stating in the reasoning and operative parts of its judgment, that the Regional Court's conclusions had been correct. In the introductory part of its judgment, restating the procedure in the case, the Supreme Court mentioned that the Regional Court had decided that the 1990 contract was valid and “Ms A. and Mr N. were the owners of the property”. 20. In 1996 the applicants sent complaints to the municipal authorities in Dulovo and other institutions. In reply, on 28 February 1997 the mayor of Dulovo advised them that following the Supreme Court's judgment of 17 January 1995 declaring null and void the 1989 contract, the applicants were considered its owners. 21. On 15 April 1998 the applicants brought a fresh rei vindicatio action against Ms A., Mr N. and the Dulovo municipality, stating that they based their new action on grounds different from those raised in the previous proceedings. In particular, they did not claim that the 1990 contract between the municipality and Ms A. and Mr N. was null and void but that it had never had any effect in rem since, in accordance with the basic principles of property law, ownership could only be acquired by dealing with the owner. Since the 1989 contract had been null and void ab initio, the Dulovo municipality had never become the owner of the disputed house and thus could not validly transfer the title thereto. The applicants stressed that the courts in the first proceedings had not dealt with this ground for restitution. 22. On 20 July 1998 the Dulovo District Court terminated the proceedings on the basis that the dispute was a res judicata. It referred in particular to the judgment of the Supreme Court of 8 February 1996. 23. The applicants appealed, stating that the previous proceedings had been limited to the issue whether or not the 1990 transaction had been null and void. The courts had never dealt with the question who was the owner of the disputed property. Any other interpretation of the judgments in the previous proceedings was absurd, as it would run contrary to the basic principles of property law. 24. On 26 September 1998 the Silistra Regional Court dismissed the appeal in private. The applicants' ensuing appeal to the Supreme Court of Cassation was also dismissed in private, on 29 December 1998. The Supreme Court of Cassation stated: “The parties to the [previous] proceedings and the current proceedings are the same ... The dispute [in the previous proceedings] concerned the ownership of the [same house] ... The grounds invoked were the nullity of the 1989 transaction between the applicants and the municipality and, on that basis, the [alleged] nullity of the subsequent transaction [of 1990] between the municipality and [Ms A. and Mr N.]. All matters have been decided and are res judicata ... “ 25. In August 1998, the applicants requested the interpretation of the Supreme Court' judgment on 8 February 1996, stating that it was unclear. In their submissions, they averred that the courts had delivered arbitrary decisions, bringing about an absurd situation. In particular, the applicants criticised the courts' failure to explain on the basis of the relevant principles of property law who was the owner of the property and why. 26. By judgment of 11 June 1999 the Supreme Court of Cassation dismissed the request. In the introductory part, the impugned judgment of 8 February 1996 was described as having recognised that Ms A. and Mr N. were the owners of the disputed house. The Supreme Court of Cassation further stated that the judgment of 8 February 1996 was clear in so far as it upheld the Regional Court's judgment of 19 April 1995. As regards the clarity of the Regional Court's judgment, it was not possible to engage in its interpretation as that would be tantamount to a re-examination of the case. 27. Under the Law on Obligations and Contracts, as interpreted by the courts, a contract that is null and void as being contrary to the law is considered null and void ab initio. It is considered to have never produced any legal effect. Each party can seek from the other restitution of all it has given under the void contract. 28. Under the Property Act and the relevant judicial practice, a person who has bought a real estate from another does not become its owner if the seller's title was not valid. In such cases, if the original owner seeks rei vindicatio from the last buyer even after a chain of transactions, the validity of the last buyer's contract is immaterial as it does not produce effects in rem. The Supreme Court of Cassation has applied this practice in cases of two or more consecutive transfers where the first transaction was found to have been null and void ab initio and, therefore, none of the subsequent buyers could acquire title to the property, even if their contracts were valid. In such cases, each consecutive transaction is retrospectively considered as a sale of a real estate belonging to a third person (see judgment no. 1876 of 3.12.1998 in case no. 3515/96 of the Supreme Court of Cassation). The last buyer may only become the owner of the property through acquisitive prescription (usucapion) on the basis of undisturbed possession of five or ten years. 29. Where the owner has successfully recovered the property from the last buyer, the latter can seek from “his” seller recovery of the price paid. 30. Under section 108 of the Property Act and the relevant case-law, the plaintiff in rei vindicatio proceedings must prove two elements: 1) the validity of his title and 2) the fact that there are no legal grounds for the defendant to hold the property. Valid grounds to hold the property may be rights in rem such as ownership or a right to use the property, contractual rights such as tenancy or a right to withhold possession until the payment of a debt and other concrete rights. 31. Judgments of the civil courts are binding on the parties, their successors, the courts and all other State organs (Article 220 § 1 of the Code of Civil Procedure). 32. Final judgments preclude any re-examination of the same dispute between the same parties (Articles 221 and 224 of the Code). They are not conclusive, however, in respect of disputes on the same subject between different parties or between the same parties on a different subject matter. 33. The issue determined in a court's findings on the merits is a res judicata. In order to establish the content of the issue determined, regard must be had to the scope of the dispute and, therefore, to the court's reasoning. In addition, certain decisive findings on elements directly determinative of the disputed right or obligation may also be seen as res judicata (201-91-I, 98790-I, 433-90-I, 30-64-OSGK). 34. The Law on Restitution of Real Property of Bulgarian Citizens of Turkish Origin Who Sought to Travel to Turkey or to Other Countries in the Period May - September 1989 provides for the restitution, under certain conditions, of property sold or transferred otherwise during the forced exodus of the Bulgarian Turks. The law only applies in respect of persons who settled back in Bulgaria before 1 March 1992. It does not exclude the application of the general rules of civil law in all other cases.