FIFTH SECTION
DECISION
Application no. 33586/15
Stoyan Lyubenov AYDAROV and Others
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 2 October 2018 as a Chamber composed of:
Angelika Nußberger, President,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 10 July 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the submissions by the European Roma Rights Centre, which was given leave to intervene as a third party in the written proceedings,
Having deliberated, decides as follows:
THE FACTS
1. The case originated in an application (no. 33586/15) against the Republic of Bulgaria lodged with the Court on 10 July 2015 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twelve Bulgarian nationals whose names and years of birth are set out in paragraphs 5 and 7 below (“the applicants”). They were represented by Ms D. Mihaylova and Mr A. Kashumov, lawyers practising in Sofia.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimitrova of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicants
4. The applicants are two families of Bulgarian nationals of Roma ethnic origin: the Aydarovi family and the Ilievi family.
5. The Aydarovi family consists of Mr Stoyan Aydarov, born in 1987, and Ms Lilyana Aydarova, born in 1989, and their three children. The first child, Mr Yosif Aydarov, was born in 2006. The second, Mr Mariyan Aydarov, was born in 2008. The third (who is not an applicant in these proceedings), Ms Lidia Aydarova, was born on 21 August 2015.
6. Mr Mariyan Aydarov and Ms Lidia Aydarova both suffer from congenital glaucoma in both eyes, for which they have undergone medical treatment and several operations since infancy.
7. The Ilievi family consists of Mr Krasimir Iliev, born in 1979, and Ms Makedonka Kirilova, born in 1984, and their six children. The first child, Ms Sinema Ilieva, was born in 2001. The second, Ms Elena Kirilova, was born in 2004. The third, Mr Iliya Kirilov, was born in 2006. The fourth, Mr Yoan Iliev, was born in 2009. The fifth, Mr Hristo Iliev, was born in 2011. The sixth, Mr Yosif Iliev, was born in 2013. It appears that after 2015 the family had another child; his or her name was not specified by the applicants, and he or she is not an applicant in these proceedings.
8. Mr Iliya Kirilov suffers from spastic diplegia (a form of cerebral palsy) and is completely paralysed.
2. Background to the case
9. The two applicant families live near the village of Marchevo, in the municipality of Garmen, in an area known as the Kremikovtsi settlement, which was apparently established in the late 1960s. The settlement consists of 134 houses in which about 770 people reside, all of Roma ethnic origin. About 350 of them are children, 140 of whom were between one and six years old in August 2015. The land in the area on which the settlement stands, known as Padarkata, belongs to the Garmen Municipality and is earmarked as agricultural. Most of the houses in the settlement, including the two houses inhabited by the applicant families, are or were crude one-storey brick buildings with one or two rooms.
10. Between December 2010 and February 2012 the Garmen Municipality issued 114 certificates saying that, although they had been unlawfully built, the houses in the Kremikovtsi settlement, including those in which the applicant families resided, could be tolerated under the transitional provisions of the Territorial Organisation Act 2001 (see paragraphs 44 and 45 below). The certificates relating to the houses in which the Aydarovi and Ilievi families lived stated that they had been built before 1987; it appears that this was only based on declarations to that effect by Mr Stoyan Aydarov and Mr Krasimir Iliev.
11. Between March 2011 and November 2012 the National Building Control Directorate’s regional office set aside 104 of those certificates and upheld the remaining ten. It is unclear whether the certificates relating to the two houses in which the applicant families lived were set aside or upheld.
12. In 2013 and 2014 the Garmen Municipality sold plots of land in Padarkata to twenty-four people who lived there. The applicants were not among those people. The municipality apparently stated that it intended to continue with such sales, but then halted them.
3. Demolition orders and proceedings for judicial review of the order addressed to Mr Stoyan Aydarov
13. On various dates in 2010 and 2011 officers of the National Building Control Directorate inspected 134 houses in the Kremikovtsi settlement and found that they had been unlawfully built. The house in which the Aydarovi family lived was inspected on 19 August 2010, and the house in which the Ilievi family live was inspected on 23 August 2010.
14. Based on the results of the inspection, in an order of 22 March 2011 the National Building Control Directorate’s regional office noted that the house in which the Ilievi family lived had been built in 2002-03 on land owned by the Garmen Municipality without the requisite construction papers, in breach of section 148(1) of the 2001 Act, and in the absence of a detailed zoning plan, in breach of section 12(2) of the same Act. There had been no procedure to legalise it under the Act’s transitional provisions. It was therefore unlawful and as such liable to be demolished.
15. Mr Krasimir Iliev, who was notified of the order on 14 December 2011, did not seek judicial review, and the order became final on 29 December 2011.
16. In an order of 22 June 2011, the same office noted that the house in which the Aydarovi family lived had been built in 2002-03 on land owned by the Garmen Municipality without the requisite construction papers, in breach of sections 137(3) and 148(1) of the 2001 Act; without a right to build on another’s land, in breach of section 182(1) of the Act; and in the absence of a detailed zoning plan, in breach of section 12(2) of the Act. There had been no procedure to legalise it under the Act’s transitional provisions. It was therefore unlawful and as such was liable to be demolished.
17. Between 2010 and 2012 the National Building Control Directorate’s regional office apparently issued a total of 124 similar demolition orders in relation to houses in the Kremikovtsi settlement.
18. Unlike Mr Krasimir Iliev, Mr Stoyan Aydarov sought judicial review of the order relating to the house in which his family lived. He argued that the order did not properly describe the house, that a procedure to legalise the house was pending, and that the Garmen Municipality had certified that the house could be tolerated under the 2001 Act’s transitional provisions (see paragraphs 10 above and 44 below).
19. On 20 October 2011 the Blagoevgrad Administrative Court dismissed the claim for judicial review. It found that the order had been issued in the proper form, with a proper description of the house, and in line with the relevant rules of procedure. The available evidence showed that there was no pending procedure to legalise the house. The house had been built on agricultural land belonging to the Garmen Municipality without a building permit or the requisite construction papers, and did not fall under any of the statutory clauses making those requirements less stringent with respect to certain classes of buildings. Nor did it fall within the ambit of the 2001 Act’s transitional provisions, as it was not tolerable under a relevant detailed zoning plan, as required under those provisions – no such plan existed with respect to the relevant area, which was agricultural land. The certificate issued by the Garmen Municipality confirming that the house was tolerable under those provisions could not preclude the court from determining that point for itself, and had no evidential value in proceedings for judicial review of a demolition order (see реш. № 1524 от 20.10.2011 г. по адм. д. № 652/2011 г., АдмС-Благоевград).
20. Mr Stoyan Aydarov did not appeal against that judgment, and accordingly it became final on 11 November 2011.
21. The judgment was nearly identical to a series of judgments given by the Blagoevgrad Administrative Court between July and November 2011 in which it dismissed claims for judicial review of other orders to demolish other houses in the Kremikovtsi settlement (see paragraph 17 above, and реш. № 1154 от 18.07.2011 г. по адм. д. № 425/2011 г.; реш. № 1158 от 18.07.2011 г. по адм. д. № 416/2011 г.; реш. № 1171 от 19.07.2011 г. по адм. д. № 418/2011 г.; реш. № 1172 от 19.07.2011 г. по адм. д. № 478/2011 г.; реш. № 1214 от 26.07.2011 г. по адм. д. № 470/2011 г.; реш. № 1329 от 16.09.2011 г. по адм. д. № 540/2011 г.; реш. № 1330 от 16.09.2011 г. по адм. д. № 543/2011 г.; реш. № 1331 от 16.09.2011 г. по адм. д. № 552/2011 г.; реш. № 1332 от 16.09.2011 г. по адм. д. № 522/2011 г.; реш. № 1339 от 19.09.2011 г. по адм. д. № 479/2011 г.; реш. № 1344 от 20.09.2011 г. по адм. д. № 521/2011 г.; реш. № 1347 от 20.09.2011 г. по адм. д. № 379/2011 г.; реш. № 1379 от 28.09.2011 г. по адм. д. № 417/2011 г.; реш. № 1437 от 10.10.2011 г. по адм. д. № 590/2011 г.; реш. № 1461 от 12.10.2011 г. по адм. д. № 672/2011 г.; реш. № 1462 от 12.10.2011 г. по адм. д. № 654/2011 г.; реш. № 1478 от 14.10.2011 г. по адм. д. № 554/2011 г.; реш. № 1488 от 17.10.2011 г. по адм. д. № 539/2011 г.; реш. № 1491 от 17.10.2011 г. по адм. д. № 673/2011 г.; реш. № 1543 от 21.10.2011 г. по адм. д. № 377/2011 г.; реш. № 1585 от 27.10.2011 г. по адм. д. № 653/2011 г.; and реш. № 1718 от 11.11.2011 г. по адм. д. № 759/2011 г., АдмС-Благоевград). In all but two of those judgments the court examined whether the houses were tolerable under the 2001 Act’s transitional provisions and found that they were not, because no urban zoning plan with respect to the area covered by the Kremikovtsi settlement, which was agricultural, had ever existed. It does not appear that any of those judgments was appealed against.
4. Proceedings to enforce the demolition orders and related judicial review proceedings
(a) Unfolding of the enforcement proceedings until July 2015
22. In December 2013 the National Building Control Directorate decided to stay the enforcement of the demolition orders relating to the Kremikovtsi settlement pending a solution to the housing problem of the people living there.
23. About a year and a half later, on 25 May 2015, Blagoevgrad’s regional governor wrote to the National Building Control Directorate and its regional office, enquiring about the steps taken to enforce the orders. He referred to a letter of 23 February 2015 written by the inhabitants of Marchevo in which they protested against the “brutal gypsy raids on the property of the villagers [and] the uncontrolled settlement of a large gypsy community” in Kremikovtsi.
24. It appears that the governor’s letter was triggered by an incident on 23 May 2015 in which a fight had erupted between a few Roma from the Kremikovtsi settlement and ethnic Bulgarians from Garmen. As a result of the incident, in the few days which followed police forces from the whole region had had to intervene and block the roads between the settlement and Garmen to prevent inter-ethnic clashes, and the Bulgarian inhabitants of Garmen had held several rallies, requesting the eviction of the Roma living in the settlement. The incident and the rallies had been widely reported by the national media.
25. In reply to the governor’s letter, the National Building Control Directorate asked the governor and Garmen’s mayor what steps, if any, had been taken to provide housing for the people concerned by the demolition orders, so that the enforcement of those orders could resume.
26. On 27 May 2015 the National Building Control Directorate’s regional office invited Mr Stoyan Aydarov and Mr Krasimir Iliev to comply with the demolition orders in their cases within fourteen days of receiving notice to do so, and advised them that failure to do so would prompt it to enforce the orders at their expense.
27. On 23 June 2015 the National Building Control Directorate, having noted that the orders had not been complied with, retained a private company to demolish the houses in which the applicant families lived between 13 and 24 July 2015.
28. In a letter of 6 July 2015 the Social Protection Agency informed the Blagoevgrad Building Control Directorate that children with disabilities lived in both houses.
29. In a letter of 16 July 2015 to all other authorities concerned by the case, the National Building Control Directorate noted, inter alia, that the houses in the Kremikovtsi settlement whose demolition had been ordered were buildings which were unsafe and had no sanitation facilities, and so put at risk the life and health of those living in them, especially the young children.
(b) First set of proceedings for judicial review of the enforcement of the demolition orders
30. Meanwhile, on 8 July 2015 Mr Stoyan Aydarov and Mr Krasimir Iliev had sought judicial review of the enforcement of the orders. They argued, inter alia, that enforcement would be in breach of Articles 3 and 8 of the Convention because the houses liable to be demolished were their and their families’ only homes, and their families included children who were minors, some of whom were disabled. They also argued that enforcement would run counter to the principle of proportionality, enshrined in Article 6 of the Code of Administrative Procedure 2006 as a general rule of Bulgarian administrative procedure. They requested that enforcement be stayed by way of interim measures pending the examination of their claims on the merits.
31. On 10 July 2015 the Blagoevgrad Administrative Court found that the claims for judicial review were out of time. Since, under Bulgarian law, a claim that an administrative decision or action is null and void is not limited by time, the court nevertheless examined the fundamental validity of the steps taken to enforce the demolition orders, and concluded that they were not null and void. Lastly, the court held that the applications for interim measures could only be entertained if they had been made alongside admissible claims for judicial review, which was not the case. Therefore, they could not be allowed (see реш. № 1124 от 10.07.2015 г. по адм. д. № 535/2015 г., and реш. № 1125 от 10.07.2015 г. по адм. д. № 536/ 2015 г., АдмС-Благоевград).
32. Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. On 13 and 21 October 2015 the Supreme Administrative Court held that, in so far as the appeals concerned the refusals to impose interim measures, they were inadmissible, because no appeal lay against such rulings. The rulings that the enforcement measures were not null and void were final as well. However, the rulings that the claims for judicial review were out of time were open to appeal and had been tainted by a procedural irregularity, because, when making the rulings, the lower court had sat in three-judge rather than single-judge formations. Accordingly, the Supreme Administrative Court remitted those parts of the cases (see опр. № 10577 от 13.10.2015 г. по адм. д. № 10005/2015 г., ВАС, II о., and опр. № 10968 от 21.10.2015 г. по адм. д. № 11571/2015 г., ВАС, II о.).
33. On 8 and 9 December 2015 the Blagoevgrad Administrative Court, this time sitting in single-judge formations, again found that the claims for judicial review were out of time (see опр. № 1924 от 08.12.2015 г. по адм. д. № 862/2015 г., and опр. № 1928 от 09.12.2015 г. по адм. д. № 861/2015 г., АдмС-Благоевград).
34. Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. On 25 February 2016 the Supreme Administrative Court upheld the lower court’s decision in the case of Mr Krasimir Iliev (see опр. № 2188 от 25.02.2015 г. по адм. д. № 1313/2016 г., ВАС, II о.), but on 18 March 2016 quashed the lower court’s decision in the case of Mr Stoyan Aydarov, holding that he had not been duly notified of the enforcement, as his address had not been correctly set out in the letter informing him of it (see опр. № 3098 от 18.03.2015 г. по адм. д. № 2796/2016 г., ВАС, II о.).
35. Following the remittal, the Blagoevgrad Administrative Court dismissed Mr Stoyan Aydarov’s claim on the merits in a judgment of 24 March 2016. It held, inter alia, that the principle of proportionality did not apply to the removal of an unlawful building, unless the demolition order only concerned a part of it, and that it was immaterial how many people lived in the building. Demolition did not amount to inhuman or degrading treatment or to an unjustified interference with the right to respect for one’s home. People who did not have a home could rent a dwelling or build one in a lawful way. No one could derive rights from his or her own unlawful conduct (see реш. № 441 от 24.03.2016 г. по адм. д. № 861/2015 г., АдмС-Благоевград). That judgment was not amenable to appeal (see paragraph 41 below).
(c) Intervening developments
36. Meanwhile, on 13 July 2015, citing a request by the applicants for the indication of interim measures under Rule 39 of the Rules of Court and a request for information sent by this Court in connection with this request, the National Building Control Directorate decided to adjourn enforcement of the two demolition orders until the end of July 2015.
(d) Second set of proceedings for judicial review of the enforcement of the demolition orders
37. On 20 July 2015 Mr Stoyan Aydarov and Mr Krasimir Iliev sought judicial review of the letters informing them of that adjournment. On 22 July 2015 the Blagoevgrad Administrative Court found that the letters did not amount to an enforcement measure amenable to judicial review, and declared the claims inadmissible (see опр. № 1234 от 22.07.2015 г. по адм. д. № 560/2015 г., and опр. № 1238 от 22.07.2015 г. по адм. д. № 559/2015 г., АдмС-Благоевград). Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. On 15 and 16 October 2015 the Supreme Administrative Court quashed those decisions and remitted the cases, as it found that the lower court had, in breach of the rules of procedure, sat in a three-judge formation, whereas it should have sat in a single-judge one (see опр. № 10735 от 15.10.2015 г. по адм. д. № 11498/2015 г., ВАС, II о., and опр. № 10797 от 16.10.2015 г. по адм. д. № 11497/2015 г., ВАС, II о.). The Blagoevgrad Administrative Court, this time sitting in single-judge formations, again held that the letters did not amount to an enforcement measure amenable to judicial review (see опр. № 1541 от 20.10.2015 г., по адм. д. № 760/2015 г., and опр. № 1560 от 22.10.2015 г. по адм. д. № 769/2015 г., АдмС-Благоевград). Its decisions were upheld by the Supreme Administrative Court on 1 and 3 February 2016 (see опр. № 1004 от 01.02.2016 г. по адм. д. № 14276/2015 г., ВАС, II о., and опр. № 1099 от 03.02.2016 г. по адм. д. № 14261/2015 г., ВАС, II о.).
(e) Intervening and subsequent developments in the applicants’ cases
38. In the meantime, the building control authorities had adjourned enforcement of the two demolition orders until the end of August 2015, and then until the end of October 2015, on the basis that no alternative accommodation had been found for the applicants.
39. However, on 7 September 2015 the house in which the Aydarovi family lived was demolished. The Aydarovi family submitted that they had been informed of the demolition just minutes before it had taken place, and that after that they had spent several nights out in the open, until they had been accommodated in the house of Ms Aydarova’s mother. They did not provide further particulars. From the documents in the case file it is clear that, at the time of the demolition, the family’s youngest child, who is not an applicant in these proceedings, was seventeen days old (see paragraph 5 above).
40. According to a register available on the National Building Control Directorate’s website on 24 September 2018, the order to demolish the house in which the Ilievi family live has not yet been carried out, the matter having been formally adjourned until the end of March 2018. Its enforcement had previously been adjourned until the end of November 2015, then the end of January, April, June and September 2016, and then the end of January, May, June, July, August and October 2017.
B. Relevant domestic law and practice
1. Unlawful buildings and their demolition
41. The Court’s judgment in Ivanova and Cherkezov v. Bulgaria (no. 46577/15, §§ 25-27 and 33-40, 21 April 2016) set out the provisions of the Territorial Organisation Act 2001 and the 2006 Code of Administrative Procedure and the case-law of the administrative courts relating to the demolition of unlawful buildings and legal challenges against building control authorities’ orders to that effect by way of (a) claims for judicial review of the demolition orders themselves; (b) claims under Article 294 of the Code for judicial review of the enforcement of the orders (which are examined at one level of court only – Article 298 § 4 of the Code); and (c) claims under Article 292 of the Code for a judicial declaration that enforcement should not proceed owing to newly emerged facts.
42. An examination of the Supreme Administrative Court’s case-law since that judgment shows that that court has fully adhered to its position that the building control authorities have no discretion in relation to the removal of unlawful buildings; that the only course of action open to them in such cases is to order their demolition; and that, in such cases, those authorities are not bound by the general requirement of proportionality laid down in Article 6 of the 2006 Code, because it only applies when the relevant authority has a discretion (see the following judgments given in proceedings for judicial review of demolition orders: реш. № 5103 от 27.04.2016 г. по адм. д. № 8537/2015 г., ВАС, II о.; реш. № 8956 от 18.07.2016 г. по адм. д. № 3380/2016 г., ВАС, II о.; and реш. № 8713 от 05.07.2017 г. по адм. д. № 773/2017 г., ВАС, II о., and the following judgments given in proceedings for a judicial declaration under Article 292 of the 2006 Code: реш. № 7893 от 29.06.2016 г. по адм. д. № 14264/ 2015 г., ВАС, II о., and реш. № 12463 от 16.11.2016 г. по адм. д. № 4802/2016 г., ВАС, II о.).
43. By contrast, contrary to its earlier rulings under Article 294 of the 2006 Code (see реш. № 1791 от 20.11.2015 г. по адм. д. № 869/2015 г., АдмС-Благоевград), in a recent case the Blagoevgrad Administrative Court examined, for the first time, the proportionality of the intended demolition of a house by reference to Article 8 of the Convention, as construed in Yordanova and Others v. Bulgaria (no. 25446/06, 24 April 2012) and Ivanova and Cherkezov (cited above), and in view of the individual circumstances of the woman living in the house. The court found, inter alia, that the building control authorities had not duly elucidated whether the house was her only home, even though she had expressly made that point in the course of the proceedings to enforce the demolition order, and had not properly assessed whether the measure would be proportionate in the light of that fact. The court therefore annulled the steps taken to enforce the order and referred the case back to the building control authorities (see реш. № 1072 от 30.06.2017 г. на по адм. д. № 316/2017 г., АдмС-Благоевград). A few similar decisions have recently been given in such proceedings by other first-instance administrative courts (see реш. № 72 от 05.10.2015 г. по адм. д. № 47/2015 г., АдмС-Силистра; реш. № 52 от 02.03.2016 г. по адм. д. № 42/2016 г., АдмС-Добрич; реш. № 335 от 29.08.2017 г. по адм. д. № 485/2017 г., АдмС-Добрич; реш. № 502 от 27.10.2017 г. по адм. д. № 271/2016 г., АдмС-Пазарджик; and реш. № 467 от 24.11.2017 г. по адм. д. № 34/2017 г., АдмС-Добрич).
2. The possibility of not demolishing unlawful buildings erected before the end of March 2001
44. The Court’s judgment in Ivanova and Cherkezov (cited above, §§ 28-29) also set out paragraph 16(1)-(3) of the transitional provisions of the 2001 Act and paragraph 127(1) of a 2012 Act for its amendment – according to which buildings erected before end of March 2001 without construction papers are not liable to be demolished if they were tolerable under the zoning plans and building regulations in force at the time of their construction, or under the corresponding plans and regulations issued under the 2001 Act.
45. Here, it should be added that by paragraph 16(1) in fine of the 2001 Act’s transitional provisions and paragraph 127(1) in fine of the 2012 Act’s transitional provisions, such buildings may be conveyed to others on the basis of certificates issued by municipalities’ chief architects confirming that the buildings can be tolerated.
46. In accordance with the Supreme Administrative Court’s established case-law, those certificates do not legalise the buildings; their sole purpose is to permit the buildings’ notarised conveyance. Nor do the certificates bind the building control authorities when they seek to determine whether a building is unlawful and as such liable to be demolished, or the courts reviewing their orders. In such proceedings, the building control authorities and the courts must ascertain a building’s legality for themselves (see реш. № 12649 от 18.12.2006 г. по адм. д. № 8560/2006 г., ВАС, II о.; реш. № 3440 от 25.03.2008 г. по адм. д. № 415/2008 г., ВАС, II о.; реш. № 2122 от 16.02.2009 г. по адм. д. № 13312/2008 г., ВАС, II о.; реш. № 13141 от 05.11.2010 г. по адм. д. № 9816/2010 г., ВАС, петчл. с-в; реш. № 466 от 10.01.2012 г. по адм. д. № 12702/2011 г., ВАС, II о.; реш. № 11348 от 09.08.2013 г. по адм. д. № 5892/2013 г., ВАС, II о.; реш. № 6287 от 12.05.2014 г. по адм. д. № 10208/2013 г., ВАС, II о.; реш. № 4949 от 04.05.2015 г. по адм. д. № 2346/2015, ВАС, II о.; реш. № 6537 от 02.06.2016 г. по адм. д. № 12664/2015 г., ВАС, II о.; and реш. № 7677 от 19.06.2017 г. по адм. д. № 11244/2016 г., ВАС, II о.).
3. Protection against discrimination
47. The Protection Against Discrimination Act was enacted in 2003 and came into force on 1 January 2004. It prohibits, in section 4(1), any direct or indirect discrimination on the basis of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or on any other grounds established by law or by an international treaty to which Bulgaria is party. In paragraph 1(6) of its additional provisions, the Act also defines racial segregation, and provides, in section 5, that it is a form of discrimination.
48. The authority responsible for ensuring compliance with the Act is the Commission for Protection Against Discrimination (section 40). It can act of its own motion or pursuant to complaints by those concerned (section 50). If the Commission finds a breach of the Act, it can order that it be averted or brought to an end, or that the status quo ante be restored (section 47(2)). It can also impose sanctions or order coercive measures, or give compulsory directions (section 47 (3) and (4)). The Commission’s decisions are subject to judicial review (section 68(1)).
49. People who have obtained a favourable decision by the Commission and wish to obtain compensation for damage suffered as a result of the breach established by the Commission can bring a claim for damages against the people or authorities that have caused the damage (section 74(1)). If the damage stems from unlawful decisions, actions or omissions of public authorities or officials, the claim must be brought under the State and Municipalities Liability for Damage Act 1988 (section 74(2)).
50. Alternatively, those complaining of discrimination can directly bring court proceedings and seek declaratory or injunctive relief or an award of damages (section 71(1)). The claim can be brought on behalf of the aggrieved party by a non-governmental organisation (section 71(2)). If the alleged discrimination affects many people, the non-governmental organisation can even bring the claim in its own name, in which case those directly affected can join the proceedings as third parties (section 71(3)).
51. Claims for damages under section 71(1) directed against public authorities or officials fall under the jurisdiction of the administrative courts (see тълк. п. № 2 от 19.05.2015 г. по тълк. д. № 2/2014 г., ОСС на ГК от ВКС и ОСС на I и II к. на ВАС, т. 4).
COMPLAINTS
52. The applicants complained under Article 8 of the Convention that the demolition of the houses in which they lived would be disproportionate.
53. They further complained under Article 1 of Protocol No. 1 that this would be an unjustified interference with the peaceful enjoyment of their possessions.
54. They also complained under Article 13 of the Convention that they had not had an effective domestic remedy in that respect.
55. They in addition complained under Article 14 of the Convention that the measures against them had been discriminatory because: (a) the authorities had taken those measures under the influence of anti-Roma protesters; (b) the authorities were not seeking to demolish other unlawful buildings, such as seaside hotels; (c) the authorities had not taken into account the fact that the houses liable to be demolished were their only homes; (d) the authorities had not acted consistently throughout the proceedings; and (e) the authorities had pressed on with their intention to demolish the houses while being aware that no alternative accommodation was available to the applicants.
56. Lastly, the applicants raised two complaints under Article 3 of the Convention. In their initial application, they complained that the proceedings meant to result in the demolition of the houses in which they lived, during which the authorities had not discussed with them any alternative accommodation, and which had unfolded against the backdrop of racial tensions against Roma in the local community, had amounted to inhuman and degrading treatment. In their observations in reply to those of the Government, filed with the Court on 29 November 2016, the applicants from the Aydarovi family further complained about the actual demolition of the house in which they had lived.
THE LAW
A. Complaints under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1
57. In respect of their complaint concerning the proportionality of orders for the demolition of the houses in which they lived and their enforcement, the applicants relied on Article 8 of the Convention and Article 1 of Protocol No. 1, which provide, so far as relevant:
Article 8 of the Convention
“1. Everyone has the right to respect for his private and family life [and] his home ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 1 of Protocol No. 1
“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 or to secure the payment of taxes or other contributions or penalties.”
58. In respect of their complaint concerning the alleged lack of an effective remedy in that respect, the applicants relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. The parties’ submissions
(a) The Government
59. The Government submitted that the applicants had not exhausted domestic remedies. Although Mr Stoyan Aydarov had sought judicial review of the order to demolish the house in which his family lived, he had not appealed against the first-instance judgment of 20 October 2011 dismissing his claim. As for Mr Krasimir Iliev, he had not sought judicial review of the order to demolish the house in which his family lived at all. It had been open to them to challenge the orders on two grounds: (a) that the houses were not liable to be demolished under the 2001 Act’s transitional provisions, and (b) that the demolition of the houses would be disproportionate, given the applicants’ individual circumstances. It was true that the Bulgarian administrative courts normally refused to quash demolition orders on the latter basis. However, those courts were capable of dealing with such cases in the light of Article 8 of the Convention, as noted by the Court with reference to the way in which the Supreme Administrative Court in 2015 had examined a claim for damages against the building control authorities by a woman whose house had been demolished on their orders. The principle of subsidiarity demanded that the courts be given an opportunity to do so. The fact that the applicants were poorly educated and did not know the law did not exempt them from the requirement to exhaust domestic remedies.
60. The Government alternatively submitted that the complaint was out of time. If judicial review of the orders was not an effective remedy, then the six-month time-limit under Article 35 § 1 of the Convention had started to run in 2011, when the orders, which were instantaneous acts, had become final. Their proportionality could not be properly reviewed in the course of the proceedings for enforcement of the orders. Nor was it possible to challenge them by way of a claim for a judicial declaration under Article 292 of the Code of Administrative Procedure, because such a claim was only possible if new circumstances had emerged since the orders had been issued, which did not appear to be the case.
(b) The applicants
61. With respect to the first point made by the Government, the applicants submitted that claims for judicial review of the demolition orders would have been bound to fail, since the 2001 Act clearly provided that demolition was the only way to deal with unlawful construction and did not enable the courts to assess the individual proportionality of such measures. Mr Stoyan Aydarov had argued that the house in which his family lived was not liable to be demolished under the Act’s transitional provisions, but the Blagoevgrad Administrative Court had found that the house did not meet those requirements, and that it was not bound by the certificate issued by the Garmen Municipality to that effect. Moreover, at the time when the demolition orders had been issued, the applicants had not received any information about possible avenues of redress, or legal aid. A claim for a judicial declaration under Article 292 of the 2006 Code of Administrative Procedure could only be based on newly emerged facts relating to the legality of a construction, and would not have helped the applicants either. They had properly resorted to claims for judicial review under Article 294 the Code instead.
62. The applicants went on to say that the complaint was not out of time. They pointed out that they did not complain of the demolition orders themselves, but of the enforcement of the orders, which was the real interference with their rights under Article 8 of the Convention. The Bulgarian courts could have examined the compatibility of the enforcement with that provision in the proceedings under Article 294 of the 2006 Code of Administrative Procedure, which had been concluded after the application with the Court had been lodged.
2. The Court’s assessment
63. The first point to be considered is whether the complaints were raised within the six-month time-limit laid down in Article 35 § 1 of the Convention.
64. By the terms of that provision, this time-limit runs from the date of the “final decision”. As a rule, this means the final decision resulting from the exhaustion of all domestic remedies according to the generally recognised rules of international law. The remedies to be taken into account for this purpose are those capable of effectively redressing or preventing the wrong alleged to amount to a breach of the Convention or its Protocols (see, among other authorities, Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II (extracts); Tarbuk v. Croatia, no. 31360/10, § 28, 11 December 2012; and Dzhabarov and Others v. Bulgaria, nos. 6095/11 and 2 others, § 57, 31 March 2016). Exceptionally, however, when applicants attempt an apparently existing remedy which turns out to be ineffective, the time-limit runs from the point when they became or ought to have become aware of that (see, among other authorities, Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 136, ECHR 2012; and Yordan Ivanov and Others v. Bulgaria, no. 70502/13, § 31, 11 January 2018).
65. In this case, the demolition orders amounted to an interference with the applicants’ rights under Article 8 of the Convention and Article 1 of Protocol No. 1 (assuming this latter provision applies, which does not need to be resolved here) even before they were enforced (see Paulić v. Croatia, no. 3572/06, §§ 35-38, 22 October 2009; Gladysheva v. Russia, no. 7097/10, §§ 70 and 91, 6 December 2011; Winterstein and Others v. France, no. 27013/07, § 143, 17 October 2013; and Vrzić v. Croatia, no. 43777/13, § 59, 12 July 2016). They were issued on 22 March 2011 in the case of the Ilievi family and on 22 June 2011 in the case of the Aydarovi family (see paragraphs 14 and 16 above).
66. The orders could be challenged by way of a claim for judicial review (see paragraph 41 above). Mr Krasimir Iliev did not bring such a claim, and the order relating to the house inhabited by his family became final on 29 December 2011 (see paragraph 15 above). By contrast, Mr Stoyan Aydarov sought judicial review of the order relating to the house in which his family lived. But when his claim was dismissed by the Blagoevgrad Administrative court on the basis that the house had been built illegally, that there was no pending procedure for its legalisation, that it did not fall within the 2001 Act’s transitional provisions as no zoning plan existed with respect to the relevant area, and that the toleration certificate issued by the municipality had no value in those proceedings, Mr Stoyan Aydarov did not appeal to the Supreme Administrative Court. The first-instance judgment in his case thus became final on 11 November 2011 (see paragraphs 18-20 above).
67. The applicants argued that in their situation an appeal to the Supreme Administrative Court would have been bound to fail, just like the claim for judicial review brought by Mr Stoyan Aydarov. This is confirmed by several factors. First, in a series of parallel cases, also relating to orders to demolish houses in the Kremikovtsi settlement, the Blagoevgrad Administrative Court found that the houses were not tolerable under the 2001 Act’s transitional provisions since no relevant zoning plan with respect to the area had ever existed (see paragraph 21 above). Secondly, under the Supreme Administrative Court’s settled case-law in such cases all illegal buildings are subject to demolition, regardless of whether this is proportionate in the individual circumstances of the people affected by that (see Ivanova and Cherkezov v. Bulgaria, no. 46577/15, §§ 26-27, 21 April 2016, and paragraphs 42 and 61 above). Lastly, it is the Supreme Administrative Court’s established position that toleration certificates issued by municipalities are no bar to demolition (see paragraph 46 above).
68. It could be accepted that the ineffectiveness of this remedy was not apparent to the applicants when the demolition orders were issued, but only transpired later in 2011, when the Blagoevgrad Administrative Court dismissed Mr Stoyan Aydarov’s claim and a raft of similar claims (see paragraphs 19 and 21 above). The fact that Mr Stoyan Aydarov did not appeal to the Supreme Administrative Court tends to confirm this. But the six-month time-limit must then be calculated from the point in 2011 when the applicants realised or ought to have realised the remedy’s ineffectiveness.
69. There is, in this case, no reason to calculate this time-limit by reference to a different date owing to the existence of another remedy which the applicants attempted because at the material time they had reason to believe that it would be effective.
70. In principle, they had at their disposal two further remedies: a claim under Article 294 of the 2006 Code of Administrative Procedure for judicial review of the demolition orders’ enforcement, and a claim under Article 292 of the same Code for a judicial declaration that enforcement should not proceed owing to newly emerged facts (see paragraph 42 above). A remedy capable of leading to an examination of the proportionality of the measure at the stage of its enforcement can in principle be effective in cases such as this one (see J.L. v. the United Kingdom (dec.), no. 66387/10, §§ 44-46, 30 September 2014, and Ivanova and Cherkezov, cited above, § 58). But a perusal of the Blagoevgrad Administrative Court’s and the Supreme Administrative Court’s case-law under Articles 292 and 294 of the Code shows that between 2011 and 10 July 2015 neither of those remedies offered a reasonable prospect of success in cases such as those of the applicants (see paragraphs 42 in fine and 43 above). It appears that the Blagoevgrad Administrative Court – and indeed other first-instance administrative courts – only began reviewing the proportionality of intended demolitions in view of the individual circumstances of the people affected by them in late 2015.
71. The applicants did not attempt a claim under Article 292 of the Code, and there is hence no reason to take this remedy into account for the purpose of calculating the six-month time-limit.
72. By contrast, they brought claims under Article 294 of the Code. On 8 July 2015, two days before applying to the Court, they sought judicial review of the orders’ enforcement by reference to that provision (see paragraph 30 above). But, as noted above, at that time this remedy did not offer a reasonable prospect of success; this is confirmed by the fact that when the Blagoevgrad Administrative Court examined Mr Stoyan Aydarov’s claim on the merits in March 2016, it dismissed it, saying that the individual circumstances of the people affected by the intended demolition had no bearing on its lawfulness (see paragraph 35 above). It follows that those proceedings cannot be taken into account for the purpose of calculating the six-month time-limit either.
73. Thus, between 2011 and the time when they applied to the Court the applicants had no further recourse against the intended demolition of the houses inhabited by them (see, mutatis mutandis, Gladysheva, cited above, § 91). There is hence no reason, in this case, to calculate the six-month time-limit with reference to another date than the time in 2011 when the applicants realised or ought to have realised the ineffectiveness of the claims for judicial review of the orders themselves. At that point in time, they could have introduced their application before the Court, the obligation to exhaust having been displaced by the absence of an effective domestic remedy.
74. These complaints have therefore been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
B. Complaints under Article 14 of the Convention
75. In respect of their complaints that the measures against them had been discriminatory, the applicants relied on Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
1. Submissions by the parties and the third-party intervener
76. The Government submitted that the applicants had not brought proceedings under the Protection Against Discrimination Act 2003, and had thus failed to exhaust domestic remedies with respect to this complaint. They made no submissions on the merits of the complaint.
77. The applicants submitted that Roma in Bulgaria were being discriminated against in relation to housing, since their only homes were being targeted for demolition without the provision of alternative accommodation, even for minors and other vulnerable members of their families. The manner in which those demolitions were being carried out amounted to racial harassment. Thus, the Aydarovi family, including three children, two of whom with disabilities, had been removed from their house without being provided with another place to live. The Ilievi family had remained in uncertainty in that respect for about two years and were constantly awaiting the demolition of their house. Many other Roma who lived in undocumented houses in segregated communities throughout the country were being treated in the same way. They were the only ethnic group subjected to such treatment. There were currently 6,080 demolition orders in Bulgaria; 514 of them concerned dwellings, and Roma lived in 500 of those dwellings. A survey carried out by a non-governmental organisation in 162 of the 265 municipalities in Bulgaria in early 2016 showed that mayors had issued 2,000 orders to demolish unlawful buildings; 444 of those orders concerned dwellings, 399 of which belonged to Roma. Demolitions in Roma neighbourhoods were conducted en masse and were meant to demonstrate the authorities’ firm stance on unlawful construction. Those concerned were often not effectively notified of those measures, and did not even have time to gather their personal belongings before the demolition.
78. The third-party intervener, the European Roma Rights Centre, made two points. The first was that there was a crisis of forced evictions of Roma throughout Europe, which was linked to their residential exclusion and segregation and was symptomatic of widespread anti-Gypsyism. The Centre pointed to evidence of the extent of Romani poverty in Europe and in particular Eastern Europe, with a view to showing that the fact that many Roma lived in informal housing, which exposed them to eviction, was not a natural state of affairs but one of the clearest current manifestations of anti-Gypsyism in Europe. For the Centre, this was the result of Roma being excluded for generations, an exclusion either promoted or ignored by the authorities, and the threat of eviction was simply the most prominent among the tools used by the authorities to intimidate and control Roma communities. The Centre urged the Court to acknowledge the forced eviction of Roma as a manifestation of anti-Gypsyism.
79. The European Roma Rights Centre’s second point was that the Court should adopt a special approach to allegations of racial discrimination relating to forced evictions. In their view, that approach should be based on three principles stemming from the Court’s case-law and anti-discrimination law in Europe: (a) that when an eviction only concerned Roma, it was for the respondent State to show that it did not constitute racial harassment; (b) that when an eviction only concerned Roma, this automatically triggered the application of the notion of indirect discrimination, again with the result that the burden of proof fell on the respondent State; and (c) that discriminatory statements by anyone connected to an eviction – in particular public officials and local residents – was evidence of direct discrimination.
2. The Court’s assessment
80. Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see, among other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts)). In this case, the applicants’ complaint, which chiefly concerns matters relating to the enjoyment of their right to respect for their home, falls to be examined under Article 14 read in conjunction with Article 8 of the Convention.
81. In view of the findings in paragraphs 65-74 above, the grievances summarised in points (b) to (e) of paragraph 55 above – which are closely linked with the complaints under Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1, and are based on the same facts – are also out of time, and must be rejected under Article 35 §§ 1 and 4 of the Convention.
82. For its part, the complaint summarised in point (a) of paragraph 55 above – that the steps taken by the authorities to enforce the demolition orders were spurred by the anti-Roma protests in May 2015 (see paragraphs 23 and 24 above) – is based on slightly different facts, and calls for separate analysis. It is, however, inadmissible for non-exhaustion of domestic remedies, for the following reasons.
83. As pointed out by the Government, there is in Bulgaria a dedicated mechanism for dealing with such discrimination claims, in the form of proceedings under the Protection Against Discrimination Act 2003. Under this Act, people who are of the view that they have fallen victim to discrimination can (a) complain to the Commission for Protection Against Discrimination – and then, in the case of a favourable outcome of the proceedings before the Commission, seek damages – or (b) directly bring court proceedings and seek declaratory or injunctive relief or damages (see paragraphs 47-51 above). Nothing suggests that these remedies would not have been effective in relation to the applicants’ grievance (see, mutatis mutandis, Yordanova and Others, cited above, § 160, and Dimitrova and Others v. Bulgaria (dec.), no. 39084/10, §§ 66-76, 11 July 2017). Yet, none of them appears to have attempted such proceedings.
84. This complaint must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. Complaints under Article 3 of the Convention
85. In respect of their complaints of (a) the manner in which the proceedings meant to result in the demolition of the houses in which they lived had unfolded, and (b) the actual demolition of the house in which the Aydarovi family had lived, the applicants relied on Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
1. The parties’ submissions
86. The Government submitted that neither the demolition orders nor their enforcement had amounted to inhuman or degrading treatment. They pointed out that the applicants had not suffered any physical damage as a result of those measures. It was true that the measures had caused them anxiety, but this had not been sufficient to reach the threshold of severity under Article 3 of the Convention, especially bearing in mind that the applicants had not remained without shelter and had been offered assistance from social services. In so far as the applicants complained that the enforcement of the orders had taken place against the backdrop of anti-Roma tensions, it had been open to them to bring proceedings under the Protection Against Discrimination Act 2003. In any event, the authorities had repeatedly tried to calm those tensions and resolve the applicants’ housing problem.
87. The applicants emphasised the discomfort experienced by the Aydarovi family as a result of the demolition of their house. They also submitted that the sudden manner in which that demolition had been carried out had shocked them and caused them – especially the children, two of whom were seriously ill – grave psychological damage. The situation of the Ilievi family, who had already witnessed the demolition of several houses in their neighbourhood and lived in constant fear that their house would be demolished as well, was similar. The deliberate taking of such measures resulting in the homelessness of families with children was out of place in a modern democratic society.
2. The Court’s assessment
88. It is not necessary to decide whether the applicants have exhausted domestic remedies with respect to this complaint since it is in any event inadmissible for the following reasons.
89. As regards the initial complaint – that the proceedings to enforce the demolition orders had themselves amounted to inhuman and degrading treatment – it should be noted that the building control authorities, though insisting throughout that the orders had to be enforced, repeatedly adjourned that enforcement in recognition of the fact that it would have serious consequences for the applicants (see paragraphs 22, 36 and 38 above). It cannot therefore be said that the anxiety and discomfort that these proceedings provoked in the applicants in themselves reached the threshold of severity bringing them within the ambit of Article 3 of the Convention.
90. The follow-up complaint – that the sudden demolition of the house in which the Aydarovi family had lived had shocked and traumatised them – was not lodged within the six-month time-limit under Article 35 § 1 of the Convention. Although related to the original complaint, it was not simply a further aspect or a further argument in support of that original complaint. It was based on fresh developments and raises different issues in terms of Article 3 of the Convention (see, mutatis mutandis, Fábián v. Hungary [GC], no. 78117/13, §§ 95-97, 5 September 2017, and contrast Merabishvili v. Georgia [GC], no. 72508/13, § 250, 28 November 2017). Assuming, as implied by the applicants, that no effective domestic remedy existed with respect to that complaint, it should have been raised not more than six months after the date on which the house was demolished – 7 September 2015 (see paragraph 39 above). It was, however, lodged over a year after that, on 29 November 2016 (see paragraph 56 in fine above).
91. It follows that these complaints are inadmissible and must be rejected in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 25 October 2018.
Claudia WesterdiekAngelika Nußberger
RegistrarPresident
Full & Egal Universal Law Academy