CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                         AS TO THE ADMISSIBILITY OF                           Application No. 37912/97                       by Radka GOSPODINOVA                       against Bulgaria          The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 1998, the following members being present:              MM    J.-C. GEUS, President                 M.A. NOWICKI                 G. JÖRUNDSSON                 A. GÖZÜBÜYÜK                 J.-C. SOYER                 H. DANELIUS            Mrs   G.H. THUNE            MM    F. MARTINEZ                 I. CABRAL BARRETO                 J. MUCHA                 D. SVÁBY                 P. LORENZEN                 E. BIELIUNAS                 E.A. ALKEMA                 A. ARABADJIEV                Ms    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 20 November 1995 by Radka Gospodinova against Bulgaria and registered on 26 September 1997 under file No. 37912/97;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;          Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Bulgarian national born in 1940 and residing in Plovdiv.        The facts of the case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        The house of the applicant's father in Plovdiv was expropriated under a building plan in 1973.   In 1975 the applicant, to whom her father had transferred his right to compensation, received in compensation a three rooms apartment.        The house of the applicant's father was demolished and a state- owned hotel complex was built in the area.        In 1992 the Parliament adopted a law on the restitution of property expropriated under [building planning and other legislation] (Zakon za vazstanoviavane na sobstvenostta varhu niakoi otchuzhdeni imoti po ZTSU, ZPINM, ZBNM, ZDI i ZS) (see below Relevant domestic law).        On 14 August 1992 the mayor of Plovdiv refused the applicant's request for restitution stating that the project for which her father's house had been expropriated, namely the construction of a hotel complex, had been completed.   Also, the applicant had not declared her willingness to return the apartment she had received.        The applicant appealed to the Plovdiv Regional Court (Okrazhen sad) stating that the plot where the house had stood was not covered by the hotel building.   The Court held several hearings, heard experts and collected other evidence.        An expert, who presented his findings on 21 June 1993, stated inter alia that the claimed land was partly covered by a restaurant at the hotel and partly by tennis courts.   Also, the expert expressed an opinion that the claimed land could not constitute an independent plot according to the relevant regulations as in force in 1993.        By judgment of 30 March 1994 the Court dismissed the appeal.   The Court found that the hotel complex envisaged by the building plan had been built and that therefore the project for which the applicant's property had been expropriated had been accomplished within the meaning of the law.   This was so despite the fact that the tennis courts had not been built at the same time as the hotel.   The tennis courts nevertheless formed a part of the hotel complex.   The Court also found that the land claimed by the applicant had insufficient surface and could not constitute an independent plot.        By judgment of 7 February 1996 the Supreme Court (Varhoven sad) dismissed the applicant's ensuing petition for review (cassation) (pregled po reda na nadzora).        The applicant then unsuccessfully attempted to institute criminal proceedings against the experts who had testified before the Regional Court.        The applicant first wrote to the Commission on 20 November 1995, and complained about a French firm which allegedly promised to employ her but then refused to do so.   On 12 January 1996 the applicant withdrew this complaint.   The applicant then wrote again on 11 June 1997 complaining of the refusal of her request for restitution.   B.    Relevant domestic law        According to the Law on the restitution of property expropriated under [building planning and other legislation] the former owners, or their heirs, of real property which had been expropriated pursuant to several particular pieces of legislation could request, within six months of the law's entry into force, the restoration of their rights under certain conditions.        In the case of plots of land where the building had been demolished, the restitution of the land was possible only if the practical execution of the project for which the property had been expropriated had not commenced and if the property could constitute an independent plot under the planning regulations (Section 1 para. 2). Also, the former owners were required to return what they had received in compensation (Sections 5 - 7).     COMPLAINTS        The applicant invokes Article 8 of the Convention and Article 1 of Protocol No. 1.   She complains that the 1973 expropriation was unjust as she received inadequate compensation and that, after 1992, restitution was refused.     THE LAW        The applicant complains of the expropriation of her father's real property in 1973 and of the decisions delivered after 1992 and refusing her request for restitution.        The Commission finds that this complaint falls to be examined under Article 1 of Protocol No. 1 (P1-1) to the Convention which, insofar as relevant, provides as follows:              "Every natural or legal person is entitled to the      peaceful enjoyment of his possessions.   No one shall be      deprived of his possessions except in the public interest      and subject to the conditions provided for by law and by      the general principles of international law.              The preceding provisions shall not, however, in any      way impair the right of a State to enforce such laws as it      deems necessary to control the use of property in      accordance with the general interest   ..."        Insofar as the applicant complains of the expropriation which took place in 1973, the Commission recalls that the Convention entered into force in respect of Bulgaria on 7 September 1992, and that in accordance with the generally recognised principles of international law, the Commission is only competent to examine complaints about violations of the Convention by virtue of acts, facts or decisions that have occurred after that date.   The Commission finds, therefore, that this part of the application is outside its competence ratione temporis and therefore incompatible with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).        As regards the remainder of the application the Commission notes that the first letter of the applicant to the Commission, dated 20 November 1995, apparently did not mention the complaint concerning the refusal of her request for restitution and that the applicant's letter raising this complaint was dated 11 June 1997.        Nevertheless the Commission need not decide in the particular circumstances whether, as required by Article 26 (Art. 26) of the Convention, the applicant introduced the application within the six months' time-limit following the final decision in her case as the application is in any event inadmissible for the following reasons.        The Commission recalls that according to the Convention organs' case-law, a person complaining of an interference with his property must show that such right existed (No. 7655-7657/76, Dec. 4.10.77, D.R. 12, p. 111).        The Commission further recalls that "possessions" within the meaning of Article 1 of Protocol No. 1 (P1-1) may be either "existing possessions" (Eur. Court HR, Van der Mussele v. Belgium judgment of 23 November 1983, Series A no. 70, p. 23, para. 48) or claims, in respect of which the applicant can argue that he has at least a "legitimate expectation" of obtaining effective enjoyment of a property right (Eur. Court HR, Pine Valley Developments v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, para. 51; Pressos Compania Naviera S.A. v. Belgium judgment of 20 November 1995, Series A no. 332, p. 21, para. 31).        It is clear that the present case does not concern any "existing possessions" of the applicant.   The property of the applicant's father was expropriated in 1973.   Since then the applicant, and her father, were not able to exercise any ownership right over the property concerned.        It remains to be examined whether the applicant could have any "legitimate expectation" of realising her claim to restitution of property.        The Commission recalls that   where a law provided for certain conditions which, if fulfilled, would have entitled the   applicants to the restitution of their confiscated or nationalised property, a "legitimate expectation" amounting to a "possession" cannot be said to exist in circumstances where the applicants evidently did not meet clear conditions under the restitution law, such as residence in the country or the requirement that the claimed property be in the possession of the State (cf. No. 23131/93, Dec. 4.3.96, D.R. 85, p. 65; No. 25497/94, Dec. 17.5.95, D.R. 85, p. 126).        In the present case the answer to the question whether the applicant met the conditions under the relevant law was apparently of a greater legal and factual complexity.   Thus, the Regional Court when examining the applicant's appeal needed, inter alia, to appoint experts in order to establish whether the claimed property, or a part of it, could constitute an independent plot.   Furthermore, it was not patently clear whether all the land in question had served precisely for the project for which it had been expropriated.   Therefore, it appears that the applicant may have reasonably believed that she would be able to convince the courts that the conditions for restitution were met.        In these circumstances the Commission considers that it should examine the application on the assumption that the applicant may be considered to have had a "legitimate expectation" of realising her claim to restitution and that there has been an interference with her rights protected by Article 1 of Protocol No. 1 (P1-1) to the Convention.        The Commission recalls that Article 1 of Protocol No. 1 (P1-1) to the Convention guarantees in substance the right of property and comprises three distinct rules.   The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of possessions.   The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions.   The deprivation rule is intended to refer to acts whereby the State lays hands on, or authorises a third party to lay hands on, a particular piece of property which is to serve the public interest (cf. Eur. Court HR, Air Canada v. the United Kingdom judgment of 5 May 1995, Series A no. 316, paras. 29, 30; No. 11949/86, Dec. 1.12.86, D.R. 51, pp. 195, 209).        Where there has been a state interference with the right to peaceful enjoyment of a property right the task of the Convention organs is to examine the lawfulness, purpose and proportionality of the decision taken by the domestic authorities (cf. No. 12258/86, Dec. 9.5.88, D.R. 56, p. 215).        The Commission notes that the decisions refusing restitution to the applicant had a legal basis in the provisions of the law on the restitution of property expropriated [under building plan legislation]. The mayor gave a reasoned decision following which the applicant was able to bring judicial proceedings where she freely put forward her arguments and presented evidence.   Furthermore, the courts examined all relevant material and delivered decisions in which they addressed all pertinent submissions of the applicant.   The decisions were based on the findings that the project for which the property had been expropriated, the construction of a hotel complex, had been completed and that the claimed land was included in the area of the complex. In such circumstances restitution was not possible under the relevant law. Moreover, the courts noted that the claimed land did not have the minimum surface necessary to become an independent plot, which was another condition for restitution.        The Commission finds therefore that the refusal of restitution was not arbitrary or otherwise incompatible with Article 1 of Protocol No. 1 (P1-1) to the Convention and that therefore the remainder of the application is manifestly ill-founded and has to be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.          For these reasons, the Commission, unanimously,          DECLARES THE APPLICATION INADMISSIBLE.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber