CASE OF CHENGELYAN AND OTHERS v. BULGARIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
6. The applicants were born in 1950, 1979, 1988, 1958, 1947, 1927 and 1932 respectively. They live in Plovdiv, apart from Ms Asthig Hampartsum Bedrosyan, who lives in New York, United States of America. Before her death in 2014, Ms Anaiys Hampartsum Shirin lived in Burgas. 7. Ancestors of the applicants owned a plot of land measuring 246 square metres in the old part of Plovdiv, which had a two-storey house built on 160 square metres of it. In 1949 the building was declared a cultural monument. In 1966 the property was expropriated and the applicants’ ancestors received compensation. After that, the building was the subject of substantial renovation work, in particular after a fire destroyed part of it in 1978. 8. After the adoption of the Restitution of Property Expropriated under Building Planning Legislation Act (“the Restitution Act”) in 1992 (see paragraph 15 below), some of the applicants and other heirs of the original owners (from whom the remaining applicants succeeded in the course of the domestic proceedings) applied for the revocation of the expropriation. On 28 June 1993 they were informed that their application had been refused by the mayor of Plovdiv municipality, and on 7 July 1993 they applied for judicial review of that refusal. In a judgment of 9 October 1997 the Plovdiv Regional Court upheld the administrative decision. 9. However, in a final judgment of 2 October 1998 the Supreme Administrative Court reversed. It found that the applicants’ property had been taken under legislation regulating expropriations made with a view to carrying out public works, namely expropriations intended to be followed by the construction of new buildings or infrastructure. The property in issue, however, had been declared a cultural monument, and had been expropriated to be used as such, thus the expropriation had been in breach of the law. The fact that no construction work had ever been envisaged had to be assimilated to a situation where no public works within the meaning of the Restitution Act had ever been commenced. In addition, the renovation work carried out after the expropriation did not represent “public works” either, as it had only aimed to preserve the building. Lastly, it was noted that the property still existed. All of those factors meant that the preconditions for restitution had been fulfilled. On this basis, the Supreme Administrative Court revoked the expropriation, quashing the mayor’s refusal in that regard. 10. Following the above judgment, in order to make the restitution effective (see paragraph 16 below), on 21 May 1999 the applicants paid back to the municipality the monetary compensation received by their ancestors at the time of the expropriation. The parties disagreed as to whether the applicants had also received compensation in the form of other property at the time of the expropriation, and whether they had to return that as well. 11. In 2001 the applicants obtained a notarial deed, which named them as the property’s owners. 12. Despite the events described above, the applicants could not take possession of the property, because it was being held and used by the Plovdiv municipality, which in 1997 had declared it a public municipal property and had rented a room in the building to an organisation called “13 Centuries Bulgaria” National Endowment Fund (“the Fund”, see paragraphs 19-20 below). 13. After unsuccessfully attempting to negotiate an agreement, in December 2003 the applicants brought rei vindicatio proceedings against the Plovdiv municipality and the Fund. The action was dismissed by a final judgment of the Supreme Court of Cassation of 8 June 2007. In the first place, the domestic courts found that they were competent to examine the action. According to the second-instance Plovdiv Regional Court, the judgment of 2 October 1998 was open to indirect judicial review, because it was replacing the mayor’s administrative decision on the applicants’ request for restitution, and did not have a res judicata effect in proceedings specifically concerning the right to property. According to the Supreme Court of Cassation, the defendants to the rei vindicatio action, namely the Plovdiv municipality and the Fund, had not participated in the earlier judicial proceedings and therefore were not bound by the judgment of 2 October 1998. 14. Next, the domestic courts found that the reparation work carried out on the building which the applicants were claiming had been so substantial (the building’s appearance had been preserved, but the internal construction had been largely modified – the roof, some windows and other elements had also been replaced) that, within the meaning of the Restitution Act, it could not be said that the building still existed. In addition, the property was being used for the purpose for which it had been expropriated, namely as “a cultural monument”, which, in the courts’ view, constituted “public works” within the meaning of the same Act. Accordingly, none of the preconditions for restitution had been satisfied.