CASE OF NEDYALKOV AND OTHERS 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;Paul Mahoney;Yonko Grozev
6. The applicants were born in 1923, 1948, 1957 and 1924 respectively. The fourth applicant lives in the village of Rogachevo, the second applicant lives in the village of Obrochishte and the third applicant lives in Varna. The first applicant also lived in Rogachevo. 7. A predecessor of the applicants had owned agricultural land in the village of Kranevo, which had been collectivised after 1945. 8. Following the adoption of the Agricultural Land Act (“the ALA”, see paragraph 16 below) in 1991, the fourth applicant, on behalf of his predecessors’ heirs, sought the restitution of land totalling 15,000 square metres. In a decision of 19 June 1995, the Balchik agricultural land commission partially allowed the request, refusing to restore the heirs’ rights to 9,210 square metres of land which had been either taken for urban development or transferred to third parties. 9. Upon an appeal lodged by the fourth applicant, in a final judgment of 7 December 1995 the Balchik District Court quashed the relevant part of the land commission’s decision of 19 June 1995. It noted, in particular, that the public works for which parts of the land at issue had been taken had not been completed, and that in so far as other parts of the land had been transferred to third parties, there was no bar to restitution as the third parties had not carried out any construction work. On that basis the District Court recognised the heirs as the “owners” of all of the land claimed by them. 10. In execution of the above judgment, on 19 February 1996 the land commission issued another decision, restoring to the heirs, inter alia, in its “actual boundaries”, a plot of 1,180 square metres described as “plot no. 891, district 23, under the cadastral plan of Kranevo of 1950”. On 29 July 1996 the heirs obtained a plan of that plot. After agreeing as to the partition of the restituted land, the plot at issue was allocated to the fourth applicant and his sister (who after her death in 2004 was succeeded by the remaining applicants, namely her husband and her sons). On 30 September 1996 the fourth applicant and his sister obtained a notarial deed. 11. However, the plot was in actual fact held by several private persons, having been transferred in 1972 by the agricultural co-operative of the time to the predecessors of a certain Ms D.S. in exchange for another plot. In 1996 Ms D.S. had sold a share of the plot to a certain Ms E.H. and Mr N.R. 12. On 28 March 1997 the fourth applicant and his sister brought a rei vindicatio action against Ms D.S., Ms E.H. and Mr N.R., claiming that the 1972 transfer of the property and the subsequent sale could not have prejudiced their own rights. 13. The action was examined by three levels of jurisdiction and disallowed in a final judgment of the Supreme Court of Cassation of 1 June 2005. The domestic courts took note of the Balchik District Court’s final judgment of 7 December 1995, but found that they were competent to exercise an “indirect judicial review” (косвен контрол) of it. The courts found further that the documents describing the plot, namely the Balchik land commission’s decision of 19 February 1996 and the notarial deed of 30 September 1996, referred to “plot no. 891, district 23 under the cadastral plan of Kranevo of 1950”. However, there existed no cadastral plan dating from 1950 and the current plans, the last of which dated from 1984, did not show a plot bearing that number. The Balchik District Court and the land commission had thus restored the claimants’ rights to “a non-existent plot under a non-existent plan”. 14. In addition, the domestic courts found that the defendants had validly obtained title to their plot pursuant to the 1972 exchange and the 1996 contract of sale. Accordingly, they were entitled to hold the land as its owners. 15. Following the above developments, the applicants have not sought to obtain compensation in lieu of restitution in kind, a possibility provided for under the relevant provisions of the ALA.