KUPENOVA AND OTHERS v. BULGARIA
Inadmissible
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicants, Ms Komnya Peycheva Kupenova, Mr Nikola Peychev Karabadzhakov, Mr Stefan Angelov Karabadzhakov and Mr Kiril Angelov Karabadzhakov, are Bulgarian nationals who were born in 1939, 1949, 1963 and 1967 respectively. Ms Komnya Peycheva Kupenova and Mr Nikola Peychev Karabadzhakov live in Burgas and Mr Stefan Angelov Karabadzhakov and Mr Kiril Angelov Karabadzhakov live in Sozopol. The applicants are represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. 2. The Bulgarian Government (“the Government”) are represented by their Agent, Ms R. Nikolova, of the Ministry of Justice. 3. The facts of the case may be summarised as follows. 4. An ancestor of the applicants owned agricultural land in the area of Sozopol, situated close to the seashore. In the 1980s the land was included in the territory on which a new sea resort called Duni was constructed. 5. The resort was initially managed by a State-owned enterprise, which was, in 1990, transformed into a State-owned company. This entailed, under the relevant domestic legislation, its becoming an owner of the assets it had until then used and managed. In 1991 it was registered as a joint-stock company. Between 1997 and 2001 the majority of its shares were privatised. After the privatisation the company was named Duni AD. 6. In the meantime, after the Agricultural Land Act (“the ALA”) entered into force in 1991 (see paragraph 14 below), on 16 November 1991 the applicants requested the restitution of their ancestor’s land. 7. In a decision of 16 January 1995 the competent body, the Sozopol agricultural land commission, adopted a decision in favour of their request for the restoration of their property rights to a plot of 9,000 square metres in the area of Duni. The decision did not contain reasoning mentioning possible property claims of the company managing the resort, nor whether the plot was subject to restitution in accordance with the criteria set in the law in force at the time. 8. On 6 February 1995 the applicants obtained a notary deed for the plot of land. On the same day the land commission issued an act for the formal transfer to them of possession of the plot. However, the applicants never obtained actual possession and did not start using the land, which remained within the fenced territory of the resort. The applicants did not bring proceedings to challenge this situation. 9. In December 2000 Duni AD brought rei vindicatio actions against all persons who had had their property rights to land in the territory of the resort restored after 1991. In the applicants’ case, the company argued that the land commission’s decision of 16 January 1995 had been null and void because the commission had not been competent to restore rights to land which had ceased to be agricultural before the adoption of the ALA in 1991. 10. The proceedings ended by final judgment of the Supreme Court of Cassation of 3 December 2004. The domestic courts found that the land at issue had been included in the resort’s territory since 1985, had been used and managed by the State-owned enterprise existing before 1990 and had become its property after its transformation into a State-owned company. Under the relevant legislation this land had not been subject to restitution. The land commission, in not taking the above circumstances into account, had given a decision which was null and void. Lastly, although they acknowledged that the land had remained within the fenced territory of the resort, the courts ordered the applicants to surrender possession. 11. In particular, in its judgment the first-instance District Court noted that: “There is no proof and it has not been alleged that at the time of restitution [the land commission] took into account the fact that the plot has been subject to urban planning.” It found in addition that: “By section 10b of the [ALA], in a case such as the present the owners have to be offered compensation, because the land is not subject to restitution, as is accepted in the constant judicial practice.” 12. In its judgment the Supreme Court of Cassation noted the following: “The present case concerns the construction of a resort, which is a complex of buildings, installations, promenades, alleys, car parks, roads and other communicating areas. Its territory is fenced and the totality of the land is being used for the resort’s needs. The plot at issue is situated at the centre of the resort, as seen from the plan presented by the [court-appointed expert]. Its restitution to the previous owners and its physical separation from the resort would infringe upon [the latter’s] entirety and unity. In adopting the provision of section 10b of the [ALA] the legislator aimed at preserving and guaranteeing what already existed as a complex of buildings and installations, and that is why it has been provided that such land would not be subject to restitution, but that the owners would be compensated through other means. What is decisive is the plot’s situation at the time of the law’s adoption in 1991. ... The plot’s separation through restitution does not correspond to this aim of the law and would have gone contrary to its spirit.” 13. The applicants have not claimed compensation in lieu of restitution through comparable land or compensation bonds under the ALA or through shares in Duni AD under the legislation regulating the privatisation of former State-owned enterprises. 14. The Agricultural Land Act (Закон за собствеността и ползването на земеделските земи, “the ALA”), adopted in 1991, provides, inter alia, that persons, or their heirs, whose land has been collectivised, may request restoration of their ownership rights under certain conditions. Restitution can be in kind, if the relevant conditions have been met, or through compensation with other comparable land or compensation bonds. 15. Section 10b of the ALA, introduced in 1992, provides that former owners would receive compensation where the land formerly owned by them “has been constructed upon or a complex of construction works (мероприятия) which do not permit restoration of property have been carried out”. 16. The remaining relevant domestic law and practice concerning restitution of agricultural land and compensation in lieu thereof, and the transformation and privatisation of public enterprises, have been summarised in the Court’s judgments in the cases of Sivova and Koleva v. Bulgaria (no. 30383/03, §§ 29-54, 15 November 2011) and Lyubomir Popov v. Bulgaria (no. 69855/01, §§ 83-95, 7 January 2010). 17. Rei vindicatio is provided for under section 108 of the Property Act. This provision and the relevant case-law require that 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.