CASE OF MIHALEVI 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)
Yonko Grozev;Gabriele Kucsko-Stadlmayer
4. The applicants were born in 1942 and 1969 respectively. The first applicant lives in Gabrovo and the second applicant lives in Varna. 5. Mr Ts. Mihalev, father of the first applicant and grandfather of the second applicant, owned a machinery factory in Gabrovo, which was nationalised in 1947. After the nationalisation the property was allocated for use to a State-owned enterprise, which in 1991 was transformed into a State-owned company named T.. Under domestic law, such a transformation entailed the newly-created company becoming, in principle, the owner of the assets which had until then been allocated to it for use and management; some assets allocated to State-owned enterprises or companies could nevertheless be the subject of restitution (see paragraph 15 below). 6. After the Restitution of Ownership of Nationalised Real Property Act (hereinafter “the Restitution Act”, see paragraphs 15-16 below) came into force in 1992, the first applicant and his brother asked the mayor of Gabrovo to strike the factory building out of the register of State properties. Their request was allowed in a decision of the mayor of 28 August 1992, which explicitly referred to the Restitution Act. On that basis in 1993 the first applicant and his brother obtained a notary deed, which also stated that the property had been subject to restitution under the Restitution Act. 7. In 1994 the first applicant and his brother concluded a rent contract with company T., which undertook to pay rent in exchange of the use of the building. The term of the contract was extended on several occasions, the last of which in 2002. 8. In 1997 the first applicant’s brother transferred his share in the building to his daughter, the second applicant. 9. After the entry into force of the Compensation of Owners of Nationalised Real Property Act (hereinafter “the Compensation Act”, see paragraph 17 below), in January 1998 the first applicant and his brother applied to receive compensation for moveable properties such as industrial equipment and materials which had been nationalised together with the factory. In a decision of 21 December 1999 the Minister of Economy awarded them compensation for these properties, noting in addition that the factory building had been the subject of restitution and no compensation was due for it. That decision was upheld in a final judgment of the Supreme Administrative Court of 17 September 2002, after the first applicant and his brother sought its judicial review, contesting the manner of compensation. Eventually, in 2005 they received compensation bonds with a face value of 19,494 Bulgarian levs (BGN, the equivalent of 9,970 euros (EUR)). 10. Company T. was privatised in 2003 and the new management stopped paying rent to the applicants for the factory building, arguing that it had in fact never been subject of restitution. 11. In January 2009 company T. brought proceedings against the applicants, claiming to be the factory building’s owner. It argued that the restitution of the property had not taken place, because the preconditions under the Restitution Act had not been complied with, and that it had become the owner of the building as a result of its transformation into a company (see paragraph 5 above). 12. In a judgment of 27 October 2009 the Gabrovo Regional Court dismissed the claim. However, on 17 May 2010 the Veliko Tarnovo Court of Appeal quashed the lower court’s judgment and allowed the action against the applicants, finding that the preconditions for restitution had indeed not been met. On the basis of expert evidence and witness testimony, it concluded that after the nationalisation the building had been modified in a manner and to a degree which meant that in 1992 it had not existed in its state prior to 1947. Accordingly, the applicants could not rely on restitution and company T. had become the owner of the building on the strength of its transformation from a State-owned enterprise into a company in 1991 (see paragraph 5 above). In a final decision of 30 March 2011 the Supreme Court of Cassation refused to accept for examination the applicants’ appeal on points of law. 13. In June 2011 the applicants applied to the Gabrovo regional governor to receive compensation for the factory building under the Compensation Act. In a decision of 19 July 2011 the governor dismissed their request, as it had not been submitted within the time-limit provided for under that Act (see paragraph 17 below). After the applicants applied for its judicial review, the governor’s decision was upheld in a final judgment of the Supreme Administrative Court of 14 June 2012.