CASE OF GEORGI MARINOV v. BULGARIA
Violation of P1-1;Violation of Art. 13+P1-1
Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1924 and lives in Brestovitza. 6. In 1977 a plot of land measuring 1,870 square metres belonging to the applicant was expropriated for public needs in order to build an administrative and cultural centre and a road. The applicant received compensation of 3,314.52 old Bulgarian levs. 7. On 28 April 1992, after the entry into force of the 1992 Law (see paragraph 23 below), the applicant made a request to the mayor of the Rodopi Municipality in Plovdiv (“the mayor”) for the revocation of the expropriation because neither of the public works for the purposes of which it had been expropriated had commenced. 8. On 10 September 1992 the applicant paid back the compensation he had received in 1977 at the time of the expropriation. 9. In a decision of 14 September 1992 the mayor revoked the expropriation. Because of administrative omissions in that decision, on 30 August 1993 the mayor issued a new one to the same effect. 10. It appears that for a certain period of time the applicant was able to use and to benefit from the whole property or at least from part of it (see paragraphs 14 and 20 below). 11. On 7 November 1995, 11 April 1996 and 27 June 1996 the applicant requested the mayor to modify the land register in order to include the returned land. A procedure to that effect commenced in November 1995. 12. As by 11 April 1996 the mayor had not yet ordered the modification of the land register, the applicant lodged an appeal against his tacit refusal to do so. 13. On 4 October 1996 the mayor approved the modification and on 29 October the applicant's son in his capacity as owner of a neighbouring plot was officially informed about it. 14. According to the applicant on 23 June 1998 an administrative sanction was imposed on him for having used the land after the expropriation. He appealed against the sanction to the domestic courts. It appears that the appeal was granted and the sanction was quashed on an unspecified date not later than March 2002. 15. On an unspecified date the applicant found out that in the land register as modified in 1996 the area of the returned land had been reduced to 910 square metres and a note had been added indicating that the remaining 960 square metres were part of a road the construction of which had already started. 16. On an unspecified date in 1999 the applicant asked the court to declare the order of 4 October 1996 null and void as it did not comply with the restitution orders. 17. In a judgment of 2 March 2001 the Plovdiv Regional Court declared the mayor's order of 4 October 1996 null and void as not being in compliance with the orders of 14 September 1992 and 30 August 1993 and thus being in violation of paragraph 1(2) of the additional provisions of the 1992 Law (see paragraph 23 below). This judgment was not appealed against and entered into force on 18 April 2001. 18. Subsequently, on 19 November 2001, the mayor approved the modification of the land register to include the whole area of the land. 19. In 2001 the applicant initiated an action for damages under the State and Municipalities Responsibility for Damage Act (“the SMRDA”) against the Plovdiv Rodopi Municipality. Relying on the Constitution and on Article 1 of Protocol No. 1 he alleged that due to the problems with the inclusion of the whole surface of the property in the land register, he had been unable “to enter into possession, use and dispose of the returned land in the period between September 1992 and 2001”. He claimed potentially lost earnings and presented calculations from an expert based on the growing of certain types of agricultural products on the whole surface of the land for the period in question. The applicant also sought non-pecuniary damage for the anguish and suffering sustained. 20. At the hearing of 15 January 2002 the applicant's son testified that the applicant had used the whole area for a couple of years, but thereafter the municipal authorities had forbidden him to use part of it claiming that it had been allocated for the construction of a new road. He also testified that the applicant had been involved in court proceedings over that question and that because of these problems with the land the applicant had suffered anguish and frustration. 21. In a judgment of 5 April 2002 the Plovdiv District Court dismissed the claim as manifestly ill-founded, as did the Plovdiv Regional Court in a final judgment of 19 August 2004. 22. On the one hand the courts admitted that there had been certain omissions on the part of the municipal authorities and that there had been obstacles preventing the applicant from using his land. On the other hand they held that registration in the land register was not decisive for ownership of the land, nor could it affect the right to use it. Furthermore, the applicant had not presented the order of 23 June 1998 by which an administrative sanction had been imposed on him. Therefore, he had failed to prove the reasons and the extent of the alleged interference and that there had been a causal connection between the refusal to register the whole surface of the land in the land register and the damage allegedly sustained. He had also failed to prove that as a result of the actions or omissions of the municipal authorities he had sustained financial loss. The witness testimony had not clearly established what kind of anguish and suffering the applicant had experienced and there had been no medical evidence that he had suffered from a physical illness as a result of the alleged interference with his right of property. The courts did not specifically address the applicant's arguments that he could not obtain an up-to-date plan view of the property and hence to dispose of the whole of this property. 23. In 1992 the Law on the Restitution of Property Expropriated under Building Planning Legislation (Закон за възстановяване на собствеността върху някои отчуждени имоти по ЗТСУ, ЗПИНМ, ЗБНМ, ЗДИ и ЗС, “the 1992 Law”) was adopted. It provided for the restitution of expropriated property where specific conditions were met. The request for restitution had to be lodged with the mayor of the municipality, whose refusal could be appealed to the regional court. The mayor's decision was binding on all State authorities (paragraph 1(2) of the additional provisions). Owners who had received compensation for the expropriation had to return the compensation in order for the restitution order to enter into force (section 6). 24. The land register is a land survey information system which consists of registers and cadastral maps. 25. At the relevant time the adoption and modification of the land register were governed by the Common Cadastre of the Peoples Republic of Bulgaria Act of 1979 (“the CCPRBA”) and the Regulations on its implementation (“the Regulations”). 26. The CCPRBA and the Regulations provided that the land register should contain information, inter alia, about the boundaries, the area and the type of plots of land, the constructions on these plots and the ownership rights over them. Most of this information had to be mentioned in the deeds and contracts concerning immovable property, such as notary deeds, sales contracts, superficio contracts, etc. All of these deeds and contracts had to be accompanied by a plan view issued by the regional land register service (section 34 of the Regulations). The state authorities and the domestic courts were under the obligation to inform the land register officials, inter alia, of all changes in the ownership and the boundaries of private properties which had come to their knowledge. These changes had to be duly entered in the land registers and maps (sections 13 and 14 of the CCPRBA). 27. As of 1 January 2001 the CCPRBA was replaced by the Cadastre and Property Register Act (“the CPRA”). It clarified and expanded the provisions in respect of the land register. Section 49 b, in force as of 2004, provided that for the issuance of notary deeds and other acts concerning the rights over immovable property a plan view, i.e. a copy taken from the cadastral maps was necessary. The same was provided in section 2(3) of Ordinance No. 3 of 28 April 2005 (Наредба № 3 от 28.04.2005 г. за съдържанието, създаването и поддържането на кадастралната карта и кадастралните регистри), which governed the keeping of the cadastral maps and registers.