TANTILOVI v. BULGARIA
Inadmissible
Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
1. The applicants, Ms Maria Stefanova Tantilova and Ms Anka Stefanova Tantilova, are Bulgarian nationals, who were born in 1923 and 1922 respectively and live in Plovdiv. They were represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 2. The Bulgarian Government (“the Government”) were represented by their Agents, Ms M. Kotseva and 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. The applicants’ mother owned a building and a plot of land of 1,370 square metres in Plovdiv. The property was expropriated in 1975, against the payment of monetary compensation of 1,911 old Bulgarian levs (BGL). Initially, the plot was designated for the creation of a public garden and in 1984 it was allocated for the construction of a street. However, none of these projects took shape. In 1983 the municipal authorities rented the property to the Evangelical Pentecostal Church of Plovdiv. 5. On 2 April 1992, following the adoption of the 1992 Restitution Act (see paragraph 17 below), the applicants requested the mayor of Plovdiv to quash the expropriation order and restore their property rights to the plot of land and the building on it. On an unspecified date the mayor rejected their request, reasoning that the building previously owned by the applicants’ mother had been pulled down and that a new building used as a church had been erected in its place, and that the area around this new building had been developed. 6. The applicants sought judicial review of the above decision. 7. In a decision of 10 May 1994 the Plovdiv Regional Court set aside the mayor’s decision and quashed the 1974 expropriation order, finding that the preconditions for restitution under the Restitution Act had been met. None of the projects for which the property had been taken, namely the creation of a public garden and the construction of a street, had been pursued. The domestic court noted in addition that the expropriated building existed and, in so far as in 1983 it had been reconstructed to serve as a church, such reconstruction had not been envisaged by the respective urban development plans. 8. In the meantime, on 27 June 1993 the applicants paid back the sum received in compensation at the time of expropriation, to allow the quashing of the expropriation order to take effect. As a result of inflation and the depreciation of Bulgarian currency, at that time the sum represented about 115 German marks (DEM). On 15 February 1995 the mayor of Plovdiv ordered the strike out of the plot of land from the register of municipal properties, in accordance with the decision of the Plovdiv Regional Court, but refused to do so in regard of the “building erected by permission no. 124 of 20 June 1983”. 9. The applicants were thus unable to take possession of the property, which continued to be occupied by the Evangelical Pentecostal Church of Plovdiv. On 17 June 1996, the applicants brought a rei vindicatio action against the Church. Initially the claim was also directed against the Union of the Evangelical Pentecostal Churches in Bulgaria; however, subsequently the proceedings in respect of it were dropped. 10. In the course of the proceedings, the Evangelical Pentecostal Church (and, in the beginning, the Union of the Evangelical Pentecostal Churches) argued that the preconditions for restitution had not been met, in particular because the building formerly owned by the applicants’ mother had been demolished as it had been entirely “worn out”, and the Church had built a completely new and bigger building, through donations from its parish and according to the approved construction plans. In order to establish these facts, the Church presented plans and called witnesses. Still, the Church conceded that the land and the building it was using were municipallyowned and that it rented the property. In the event that the courts would find that the property was to be returned to the applicants, the Church claimed that the applicants had to be ordered to reimburse the cost of the improvements made by it, and requested to be allowed to retain the property until payment. 11. On 21 February 1997 the Plovdiv Regional Court, which examined the case at first instance, allowed a request by the Evangelical Pentecostal Church of Plovdiv for the Plovdiv municipality to be joined to the proceedings as a third party. The municipality also argued in the course of the proceedings that the building claimed by the applicants was a new one, which meant that the preconditions for its restitution were not satisfied. 12. On 4 March 1999 the Regional Court allowed the applicants’ claims, finding, first, that they were the owners of the plot of land on the strength of the decision of 10 May 1994, and, second, that they were also the owners of the new building, which had been erected without the requisite re-allocation of the plot for that purpose and all necessary authorisations, and property to which had to follow property to the land. It found further that the defendant church was occupying the property without any valid legal basis. 13. On 22 December 2000 the Plovdiv Court of Appeal quashed that judgment and remitted the case to the Regional Court, which once again allowed the applicants’ claim in a judgment of 13 January 2003. Again, it found that the applicants were the owners of the land and the building and that, after the restitution, the defendant church was occupying them without any legal basis. 14. Upon an appeal by the defendant church, on 3 May 2004 the Plovdiv Court of Appeal quashed the Regional Court’s judgment and allowed the applicants’ claim in part. It found that in 1983, when it had been rented out to the defendant church, the building taken from the applicants’ mother had been pulled down and a much bigger, entirely new building had been built; it had become the property of the State, later of the municipality. It was irrelevant under the Restitution Act whether the new building’s construction had been duly authorised or not. Accordingly, the new building, the land on which it was standing, and the necessary adjoining land, totalling 744 square metres, could not be subject to restitution. On the other hand, the applicants’ property rights had been validly restored in respect of the remaining 626 square metres of the land and the defendant church had to vacate that part of the property. 15. As to the decision of 10 May 1994, the Court of Appeal noted that “it did not have res judicata effect as regards the property dispute”. 16. The applicants appealed on points of law. In a final judgment of 29 April 2004 the Supreme Court of Cassation dismissed their appeal. It confirmed the Court of Appeal’s finding that the building claimed by the applicants was not the one taken from their mother, but a new one, erected in 1983 and thus not subject to restitution. It held in addition as follows: “The main issue in the case, as raised in the appeal on points of law is: what is the significance for the legal dispute of the [decision of 10 May 1994]? The Supreme Court of Cassation finds that the Court of Appeal was right to reach the conclusion that the decision at issue had been given in administrative proceedings concerning the revocation of the expropriation. It does not have res judicata effect in respect of the dispute concerning the ownership of the property at issue ... Of course, in the present litigation the court is obliged, on the basis of the evidence presented, to establish all the circumstances related to the alleged property rights disputed by the parties.” 17. The Restitution of Property Expropriated under Building Planning Legislation Act (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the Restitution Act”) entered into force in February 1992. Its most relevant provisions have been summarised in the Court’s judgment in the case of Decheva and Others v. Bulgaria (no. 43071/06, §§ 28-31, 26 June 2012). 18. The provisions of domestic law concerning the res judicata effect of court judgments have been summarised in the Court’s judgment in the case of Kehaya and Others v. Bulgaria (nos. 47797/99 and 68698/01, §§ 34-55, 12 January 2006). 19. According to settled judicial practice under the Restitution Act, third parties claiming property rights could not intervene in the ex parte proceedings under that Act or challenge any decision restoring the former owners’ rights, but could have their claims examined in separate judicial proceedings, in which the courts exercised “indirect judicial review” (косвен контрол) of the restitution decision. The scope of that review was discussed in an Interpretative Decision of 10 May 2006 of the Supreme Court of Cassation, which noted that a third party claiming rights to a restituted property was not bound by a decision given under the Restitution Act and could dispute all preconditions for restitution as provided for under that Act, as this was its sole means by which to defend its rights (Тълкувателно решение № 6 от 10.05.2006 г. на ВКС по т. гр. д. № 6/2005 г.). 20. The relevant provisions of domestic law concerning remedies in respect of the length of proceedings have been summarised in the Court’s decisions in the cases of Balakchiev and Others v. Bulgaria ((dec.), no. 65187/10, §§ 18-37, 18 June 2013) and Valcheva and Abrashev v. Bulgaria ((dec.), nos. 6194/11 and 34887/11, §§ 47-66, 18 June 2013).