CASE OF TOMOV AND NIKOLOVA v. BULGARIA
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Georgieva;Khanlar Hajiyev;Pavlina Panova;Yonko Grozev
6. The applicants were born in 1950 and 1957 respectively and live in Sofia. 7. On 19 February 1993 the applicants, at the time a married couple, bought a plot of land of 1,000 square metres in the village of Kranevo, on the Black Sea coast. The seller, Mr O., had acquired the property in 1967 from the agricultural co-operative that existed at the time, in exchange for another plot of land of his. 8. The applicants’ possession of the land remained undisturbed until 2003, when other persons took possession of it. The applicants discovered then that the land had been collectivised after 1945 and that in 1991 the heirs of the pre-collectivisation owner, Mr K., had instituted restitution proceedings under the relevant provisions of the Agricultural Land Act (“the ALA”, see paragraph 13 below). Their restitution request had been allowed in a court judgment of 7 December 1995 and in a decision issued by the competent administrative body ‒ the local agricultural land commission ‒ on 4 April 1996. Thereafter, the heirs of Mr K. had transferred the land to the persons who had later taken possession of the plot. 9. On an unspecified date in 2003 the applicants brought a rei vindicatio action against these individuals. 10. In a judgment of 25 May 2005 the Balchik District Court dismissed their claim. It relied on the provision of section 10(13) of the ALA (see paragraph 15 below), holding on its basis that of the two rival claims to the same land the law gave priority to the one based on restitution. 11. Upon appeal, on 25 January 2007 the Dobrich Regional Court reversed that decision and allowed the applicants’ action. It considered in particular that section 10(13) of the ALA was not applicable to the case as it had only been introduced in 1997, that is to say after the restitution decision in favour of Mr K.’s heirs and after the applicants had bought the plot of land. 12. Upon further appeal, in a final judgment of 12 December 2008, the Supreme Court of Cassation quashed the Regional Court’s judgment and dismissed the applicants’ rei vindicatio claim. It took the view that section 10(13) of the ALA, introduced in 1997, had to be considered to be applicable with effect from the ALA’s entry into force in 1991 because it was merely clarifying its general restitution provisions. As to the exception contained in section 18z(3) of the Regulations for the ALA’s implementation, also introduced in 1997 (see paragraph 16 below), the Supreme Court considered it inapplicable to the case; in its view, section 18z(3) only precluded the restitution of properties which had been the subject of transactions prior to the ALA’s entry into force in 1991, whereas the applicants had bought their plot in 1993.