FOURTH SECTION
DECISION
Application no. 49893/07
CRASH 2000 OOD and others
against Bulgaria
The European Court of Human Rights (Fourth Section), sitting on 17 December 2013 as a Chamber composed of:
Ineta Ziemele, President,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney,
Robert Spano, judges,
and Fatos Araci, Deputy Section Registrar,
Having regard to the above application lodged on 31 October 2007,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are two Bulgarian citizens, Ms Bahtishen Ehlimanova Kazandzhieva and Mr Emil Emilov Ivanov, and a company called “Crash 2000” OOD which they own and manage, as well as seventy individuals of non-Bulgarian citizenship who concluded preliminary contracts with the applicant company for the purchase of apartments. All applicants are represented before the Court by Mr Mikhail Ekimdzhiev, Ms Katina Boncheva and Ms Ginka Tchernicherska, lawyers practising in Plovdiv.
2. A list of the applicants is set out in the appendix.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The ministerial order of 1995 proclaiming “Strandzha” national park as a protected territory
4. The Minister for Environment and Water issued an order in January 1995 declaring “Strandzha” national park as protected territory, which included some of the oldest nature reserves in the country as well as coastal land and spread over 116,136.2 hectares. The order stated that parts of Tsarevo municipality, including agricultural land measuring around 6,032 hectares, had to be included in the park. The order was published in the national gazette.
5. The order did not specify the exact borders of the park, but stated the total surface covered by it. It also specified that the Ministry for Environment and Water (“the Ministry”) had to draw up a plan for the park’s management and to determine its precise borders within a year of the order’s issuing.
2. The applicant company’s purchase of agricultural land
6. The applicant company, “Crash 2000” OOD, was registered in December 2003.
7. Subsequently, foreign nationals wishing to buy immovable property on the Bulgarian coast contacted “Crash 2000” OOD. The company selected agricultural land within Tsarevo municipality. In April 2005 it bought from private third parties a plot of it measuring around 16,000 square metres for about 310,000 euros (EUR).
3. Reclassification of the land and issuing of building permits
8. In April 2005 the applicant company requested that its newly acquired land be reclassified from agricultural to developable land for a holiday resort; it also requested a detailed development plan (подробeн устройствен план). The reclassification of agricultural land and the drawing up of such a plan lay within the competence of the local authorities. In June 2005 the Tsarevo municipality chief architect and the Tsarevo Municipal Council specified that the applicant company’s development project (“инвестиционно предложение”) had to be approved by the Ministry.
9. “Crash 2000” OOD submitted its development project to the competent regional authority, the Burgas Regional Inspectorate of the Ministry, which was responsible for the control of the activities of all property owners and users in protected territories. The project contained the company’s intention to build on the land in question. The Regional Inspectorate informed the company in June 2005 that, because their land was part of “Strandzha” national park and therefore a protected territory, the Minister had to decide whether an environmental impact assessment was necessary before the project could be approved.
10. On 21 July 2005 the mayor of Tsarevo asked the Ministry to inform him whether such an assessment was necessary. The mayor specified that a request had been made to exclude “Dalboki Dol” area from “Strandzha” national park when the park’s management plan would be drawn up. The land owned by the applicant company was part of “Dalboki Dol”.
11. A deputy minister replied on 27 July 2005, with a copy to “Crash 2000” OOD, that an environmental impact assessment was required. In addition, given that the applicant company’s land was situated within “Strandzha” national park, mandatory consultations had to be carried out with the Directorate of the park, the Ministry’s Regional Inspectorate and National Service for the Protection of Nature, and the team drafting the management plan for the park.
12. Another deputy minister sent another letter on 17 October 2005 to the municipality and “Crash 2000” OOD, stating that it was not necessary to carry out an environmental impact assessment, and approved the project.
13. The mayor then approved the detailed development plan on 15 November 2005, following which, on 8 December 2005, the land commission changed the classification of the land from agricultural land to terrains eligible for holiday building. The applicant company paid a fee for that of approximately EUR 8,500 and obtained the approval of the local water and electricity suppliers.
14. On 20 and 31 January 2006, the municipality’s chief architect issued permits to the applicant company for the construction of ten buildings on the company’s land.
4. Suspension of the construction and appeal against the suspension
15. On 9 February 2006 the head of the Directorate of “Strandzha” national park, another regional body of the Ministry competent to supervise and suspend unauthorised building activities in protected territories, issued an order suspending construction on the land in question. On 14 February 2006 “Crash 2000” OOD challenged the order before the National Forest Agency. As it received no reply, it challenged the agency’s tacit refusal in court.
16. The Burgas Regional Court upheld on 8 November 2006 the order suspending construction. The court observed that the approval of a detailed development plan for the land sufficed for reclassification of the land, but it did not automatically exclude it from the boundaries of the protected territories, nor change its authorised use. That plan did not convert the land into urban land either. The construction carried out by “Crash 2000” OOD had not been authorised in accordance with the Protected Territories Act 1998. The absence of a management plan for the park could not be interpreted by the applicant as a carte blanche to build.
17. The applicant company appealed. The Supreme Administrative Court upheld the lower court’s findings in a final decision of 2 July 2007. It found that the approval of a detailed development plan could not be understood as permission to build. In addition, construction in protected territories which does not meet all the requirements of the special applicable regime is not permitted. Moreover, the law (section 79 of the Protected Territories Act 1998) explicitly empowered the director of the park to suspend construction in protected territories for which all the necessary authorisations had not been given prior to commencing the construction, as was the case here. The court concluded that the January 2006 building permits had been premature as issued in the absence of a number of requisite structural and technical plans applicable to protected territories, and thus in breach of the legal conditions for building in the area.
18. In its judgment of 8 November 2006 the Burgas Regional Court mentions also a parallel set of proceedings concerning the same construction by the applicant company. Those proceedings were apparently started on 16 February 2006 when the Burgas Regional Inspectorate of the Ministry in turn suspended construction until an environmental impact assessment was carried out. The proceedings ended on 1 November 2006 with a final decision of the Supreme Administrative Court which upheld the Inspectorate’s order of 16 February 2006. In addition, the Burgas Regional Court noted in the same judgment that on 10 February 2006 the Ministry had stated in a third letter sent to the applicant company that an environmental assessment impact had to be carried out. Such an assessment being mandatory under the Protection of the Environmental Act 2002, Annex I, construction had to stop until it was carried out.
5. Preliminary contracts for the sale of apartments to individual buyers
19. Between December 2004, even before the land had been bought, and November 2006, “Crash 2000” OOD signed preliminary sales agreements with ninety-three foreign nationals. The company undertook to construct apartments for the buyers and to transfer to them ownership rights after completion of the buildings. The buyers paid 30% of the price upon signing the preliminary agreements.
6. Investment in missing infrastructure
20. There was no infrastructure for electricity and water supplies to the applicant company’s land, nor for delivering telecommunications services. Between May 2006 and October 2006 the company invested in such infrastructure, following the Tsarevo mayor’s approval. It also built a crossroad servicing the newly built buildings.
21. Between July and October 2006 the rough construction of eight buildings was finished.
22. In July 2006, the applicant company borrowed about EUR 5,099,000 from a bank in order to complete the project.
7. Cancellation of the building permits and appeal against the cancellation
23. On 26 October 2006 the Burgas Regional Prosecution Office challenged the building permits before the Burgas Regional Agency for Building Control. On 14 November 2006 the agency quashed the permits, finding that they were issued in breach of the law and in the absence of an environmental impact assessment.
24. On 21 November 2006 “Crash 2000” OOD challenged the orders quashing the permits before the Burgas Regional Court. The court opened ten separate sets of proceedings. It then suspended all of them, pending the outcome of another set of proceedings, brought on 6 December 2006 before the Supreme Administrative Court, in which the Tsarevo municipality challenged the ministerial order of 1995.
25. According to information available to the Court, all permits concerning the ten buildings were quashed with final decisions of the Supreme Administrative Court (see, to that effect, pеш. № 12050 от 11 ноември 2008; pеш. № 12176/08 от 13 ноември 2008; pеш. № 12391 от 18 ноември 2008; реш. № 14636 от 30 декември 2008; pеш. № 2801 от 4 март 2009; реш. № 3050 от 9 март 2009). The court found, in particular, that the building permits granted by the municipality had been null and void as issued in circumvention of, and in direct contradiction with, the special laws applicable in this case, inter alia, because an environmental impact assessment had not been carried out. In addition, a number of other necessary permits had not been obtained, such as those required for connecting new construction with the area’s existing infrastructure, and for safe exploitation and sustainable use, in accordance the Spatial Organisation Act (inter alia, section 144). The demolition of the buildings was ordered by the Burgas Regional Agency for Building Control and was upheld by the Supreme Administrative Court in final decisions (see реш. № 4018 от 20 март 2012; реш. № 5569 от 18 април 2012; реш. № 16570 от 15 декември 2011; реш. № 3477 от 09 март 2012). The company abided by these orders within the period granted for voluntary compliance.
8. Appeal against the ministerial order of 1995 designating the park as protected territory and legislative amendment
26. On 6 December 2006 the Tsarevo municipality challenged the ministerial order of January 1995 before the Supreme Administrative Court. The municipality claimed that the order had been null and void as the borders of the park had not been drawn up more than eleven years after it had been issued. “Crash 2000” OOD joined the proceedings as a party in March 2007.
27. In a decision of 29 June 2007 a three-member bench of the Supreme Administrative Court quashed the ministerial order, finding that it had been null and void. In particular, the court found that it was impossible to determine the boundaries of the park and that the Minister had not approved a plan for the park’s management.
28. The Minister appealed. On 31 July 2007 an amendment to the Protected Territories Acts was published in the national gazette. The amendment, section 7a of the Transitional and Concluding Provisions of the Protected Territories Act 1998, stipulated that all administrative acts, including ministerial orders, which designated, inter alia, any national parks and protected territories, and which were issued before 30 June 2007, were not subject to judicial review; all pending court proceedings in which such acts were challenged were to be terminated. On 6 August 2007 a five‑member bench of the Supreme Administrative Court quashed the 29 June 2007 decision and terminated the proceedings in the applicant company’s case.
9. Further developments
29. According to “Crash 2000” OOD, at the beginning of June 2007 it informed the Tsarevo municipality and the Burgas Regional Agency for Building Control that it needed to carry out urgent work in order to prevent potential landslides.
30. Staff of the agency visited the construction sites several times and, on 15 June 2007, drew up an act which stated that construction had resumed. In two separate orders, respectively of 2 and 6 July 2007, the agency prohibited the company from entering the sites.
31. “Crash 2000” OOD challenged those orders before the Burgas Administrative Court, asking it to suspend their effects pending the court proceedings. At the time of lodging the application before the Court, the applicant company had apparently not been informed of the court’s decision in respect of its request.
B. Relevant domestic law
1. The Constitution
32. According to Article 18, the State enjoys exclusive ownership rights over underground resources, beaches and national thoroughfares, as well as over waters, forests and parks of national importance, and the natural and archaeological reserves established by law. The State exercises sovereign rights in prospecting, developing, utilizing, protecting and managing the continental shelf and the exclusive off-shore economic zone, and the biological, mineral and energy resources therein.
2. Protected territories
33. The allocation and management of protected territories is regulated by several laws, entrusting different powers to various central and local State bodies.
34. According to section 2 of the Protected Territories Act 1998 (the Act), the preservation of nature in protected territories has priority over other activities carried out in them. Changes in the designation of protected territories could only be effected by an order of the Minister for the Environment and Water, following a coordination procedure with the relevant State bodies (section 4).
35. Section 13 (2), as it stood between 1998 and 2009, stipulated that the construction of new buildings, as well as the enlargement or change in designation of already existing ones, required the written permission of the Ministry for the Environment and Water, irrespective of any other permits required under other Acts.
36. According to section 21, adopted in 2000, construction is prohibited in national parks, other than of tourist shelters, of water installations used only for drinking, of purification systems, buildings and facilities for the needs of the management of the parks and servicing the needs of its visitors, of underground communication facilities, and works on already existing buildings, roads, sports and other facilities.
37. The designation and changes in the protected territories is done by the Minister for the Environment and Water (section 35). Ministerial orders designating areas as protected territories are promulgated in the national gazette (section 43). The Ministry for the Environment and Water controls the activities of all property owners and users in protected areas (section 47 (7)).
38. The Ministry for the Environment and Water’s regional bodies responsible for protected territories are the Directorates of the national parks and the Regional Inspectorates for Environment and Water (section 48). The Directorates’ heads control the activities carried out by the owners or users of forests, land and waters located within protected territories. The Directorates’ heads suspend the activities, including construction, in protected territories, when those activities are in breach of the management plans for those territories, or have not been approved in accordance with this law when there are no specific management plans for the protected territory in question (section 79 (2)).
39. Plans and projects concerning, inter alia, construction in protected territories are adopted after a favourable assessment is given of the environmental impact of such projects in accordance with the Protection of the Environment Act 2002 (section 66 (2)).
40. A fine of between BGN 500 and BGN 10,000 is imposed on an official who authorises, orders, or does not sanction construction or other activities on protected territories which are in breach of the regime stipulated in the Act, in the order designating an area as protected territory or in the approved management plans for it (section 82). The same fine is imposed also on officials who fail to coordinate activities in the protected territories with the competent bodies, for which activities no management plans exist.
41. Paragraph 7 of the Transitional and Concluding Provisions of the Act, adopted in 1998, stipulates that the owners or users of forests, land and water areas, falling within protected territories, have to coordinate with the Ministry for the Environment and Waters any activity which they plan to undertake within the protected territory in cases where a plan for the territory’s management has not been prepared, or if the intended activities are not provided for in the plans and projects under Chapter IV of the Act, irrespective of any permits which are required under other acts.
42. Paragraph 7a of the Transitional and Concluding Provisions of the same Act, introduced in July 2007, stipulates that administrative acts, designating inter alia national parks and protected areas which were issued before 30 June 2007, are not subject to judicial review and on-going court proceedings against such acts are to be terminated.
3. Nature preservation
43. Section 92 of the Protection of the Environment Act 2002 (the 2002 Act), provides that it is mandatory to carry out an assessment of the environmental impact (“оценка за въздействие върху околната среда - ОВОС”) of development projects which involve construction in accordance with Annex 1 (35) to the 2002 Act. The Minister for Environment and Water is the competent body to decide on such assessment of projects in national parks falling within protected territories (section 94). The proponent of the investment informs the Minister about the project at the earliest possible stage and carries out consultations with the Minister (section 95) to whom s/he also presents a report (section 96). If the report receives a positive evaluation, the proponent organises for its public consultation (section 97). Within forty-five days of the public consultation, the Minister decides on the assessment of the environmental impact and issues a reasoned written decision which is publicly announced (section 99).
4. Spatial organisation
44. According to the Spatial Organisation Act 2001, section 125 as in force at the time, detailed development plans can be drawn up on the basis of a project prepared by the person who requests the plan. The project is submitted to the Ministry for the Environment and Water for an assessment of the environmental impact of the project. This assessment is part of the detailed development plan.
45. Construction can be carried out only after obtaining a building permit for that from the chief architect of the municipality (section 148).
46. Development projects for which building permits are issued are approved only after the submission of a number of documents issued under the Protection of the Environment Act 2002 or other special laws and necessary for the construction approval (section 144 (1)(4)) as in force at the time).
5. Reclassification of agricultural land
47. The relevant procedure can be found in the Protection of Agricultural Land Act 1996, sections 17 and following, and its Regulations for implementation, section 32 (1). According to Section 21, as in force at the time, for every project proposing construction on agricultural land it is necessary to draw up a detailed development plan and to have a favourable environmental impact assessment of the project issued in accordance with the Protection of the Environment Act 2002.
COMPLAINTS
48. The applicants complained under Article 6 § 1 and Article 13 of the Convention that they had been deprived of access to a court as a result of the adoption of paragraph 7 (a) of the transitional and concluding provisions of the Protected Territories Act 1998, and as a result of the operation of section 217 (2) of the Spatial Organisation Act.
49. The applicants also complained under Article 6 § 1 and Article 13 that the proceedings brought by the applicant company against the order of 9 February 2006 suspending the construction had been unfair.
50. The applicants further complained under Article 1 of Protocol No. 1 and Article 13 that the control by the authorities on the use of their property, resulting from the 1995 ministerial order and from the issuing of the orders of 9 February 2006 and of 14 November 2006, respectively for the suspension and quashing of the building permits, had been: (a) not in accordance with the law; (b) not in the general interest; and, (c) had failed to strike a fair balance between the interest of the applicants and the general interest of society. The applicant company also complained under Article 1 of Protocol No. 1 that it had been unable to deliver on its contractual undertaking vis-à-vis 93 individuals with whom it had concluded preliminary contracts for the sale of apartments.
51. The applicants complained under Article 14 in conjunction with Article 1 of Protocol No. 1 that, as a result of the adoption of paragraph 7 (a) of the transitional and concluding provisions of the Protected Territories Act 1998, they had been discriminated against as compared to people the proceedings in whose cases had come to an end before the adoption of that provision.
THE LAW
A. Complaints under Article 1 of Protocol No. 1 to the Convention
52. All the applicants complained under Article 1 of Protocol No. 1 on a number of counts. Article 1 of Protocol No. 1 reads 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 or to secure the payment of taxes or other contributions or penalties."
1. Complaint about the effect of the 1995 ministerial order and the orders of 9 February 2006 and 14 November 2006
53. The applicants complained in the first place about a breach of their right to use their property as a result of the 1995 ministerial order. They claimed in particular that, because the order had been unclear about the exact territories covered by it, neither could the company peacefully use its agricultural land or build on it, nor could the seventy individual applicants buy and use their apartments.
54. The Court must first determine whether Article 1 of Protocol No. 1 is applicable in the instant case. It reiterates that this provision protects “possessions”, which can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. It does not, however, guarantee the right to acquire property (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007-...; Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX). Where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-...; and Kopecký, cited above, § 52). No legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Anheuser-Busch Inc., cited above; Kopecký, cited above, § 50).
55. The Court must examine whether there was an interference with the peaceful enjoyment of the applicants’ possessions. It observes that the situation in the present case is distinct from that in the cases of Pine Valley Developments Ltd and Others v. Ireland (judgment of 29 November 1991, Series A no. 222) and Stretch v. the United Kingdom (no. 44277/98, 24 June 2003), where the Court found that the applicants had acquired “legitimate expectations” within the meaning of the Court’s case-law under Article 1 of Protocol No. 1. In both these cases the Court found that the persons concerned were entitled to rely on legal acts, which they could not expect to be retrospectively invalidated to their detriment. In contrast with these cases, in the instant case the applicants had acquired land, the allocation of which was subject to further proceedings concerning protected territory and there was no final legal act granting the company a right to build on it. This conclusion is supported by the findings of the Supreme Administrative Court in the proceedings in which “Crash 2000” OOD challenged the suspension orders of 9 and 16 February 2006, namely that the company had not met all the conditions required in law for it to build lawfully (see paragraph 17 above); it is also supported by the court’s findings in the proceeding quashing the permits as null and void (see paragraph 25 above).
56. The Court notes that, as in the case of Harovschi v. Moldova, (dec.), no. 33852/04, the applicant company’s claim to a right to build, pursuant to the January 2006 permits issued by the municipality’s chief architect, depended on the outcome of the proceedings contesting its lawfulness. In these circumstances it cannot be argued that the applicant company had obtained a legal ground for its claimed right to build on the land in question. Since the domestic courts found that the suspension of the permits had been lawful, the Court sees no reason to find otherwise. It is therefore not satisfied that the applicant ever acquired a right to build. Consequently, the order of 9 February 2006 did not represent an interference with the applicant’s right to peaceful enjoyment of its possessions.
57. The Court then observes that in 2005 the applicant company acquired from private third parties agricultural land on which it intended to build. The Court notes that the fact of owning a piece of land does not in itself guarantee a right to build on it as the owner deems fit. According to the Court’s established case-law, the national authorities exercise inevitable discretion in their choice and implementation of planning policies and in that context they enjoy a wide margin of appreciation (see, for example, Buckley v. the United Kingdom, 25 September 1996, § 75, Reports of Judgments and Decisions 1996‑IV; Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 70, ECHR 2004‑III; Lay Lay Company Limited v. Malta, no. 30633/11, § 83, 23 July 2013). The Court notes in that connection that, at the time the applicant company acquired the land, the ministerial order of 1995 had been in force for about ten years. At the time of purchase the company knew, or should have known, that the land it bought could have been part of the protected territory declared as such by the ministerial order. The company did not claim that there had been any obstacles before it which prevented it from clarifying the status of the land and in particular whether it had been possible to build on it before the purchase. Therefore, the Court finds that there was no interference with the property rights of the applicant company within the scope acquired by them when they bought the land. The applicant company does not allege that its land has been expropriated and it has been able at all times to use the property on the same conditions as when it bought it (see on that point Łącz v. Poland (dec.), no. 22665/02, 23 June 2009).
58. The question which arises in the case is whether, in purchasing the land in question, the applicant company also acquired a proprietary interest, or any right to construct on the land, which could be said to have the nature of a claim in national law, obtained as a result of this transaction (see paragraph 54 above), or at some point after the purchase of the land (see Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74(c), ECHR 2005-V, and Kopecký, cited above, § 35 (c)).
59. In this regard also the Court finds that the circumstances of the present case are clearly distinct from the ones in the cases of Pine Valley and Stretch (see paragraph 55 above) and in a series of cases against Poland (see Skibińscy v. Poland, no. 52589/99, 14 November 2006; Rosiński v. Poland, no. 17373/02, 17 July 2007; Skrzyński v. Poland, no. 38672/02, 6 September 2007; Pietrzak v. Poland, no. 38185/02, 8 January 2008 and Buczkiewicz v. Poland, no. 10446/03, 26 February 2008), in which the Court found a violation of Article 1 of Protocol No. 1 to the Convention where long-standing owners of plots of land were adversely affected by subsequently adopted local development plans.
60. The Court observes that in 2005, when the applicant company bought the land with the aim of constructing on it, it was not clear what the precise boundaries of the protected territories subject to a special building regime were. While the borders were meant to be defined in the plan for the management of the park, no such plan was adopted, at least until the time when the applicant bought the land and sought to build on it. This situation involved uncertainty as to whether the applicant company could reasonably expect to carry out its investment plans.
61. The Court finds regrettable the lack of clarity about the exact boundaries of the territory designated as protected. In that context, it should be stressed that lack of clarity – be it legislative, administrative or arising from practices applied by the authorities – is a factor to be taken into account in assessing the State’s conduct. Indeed, where an issue in the general interest is at stake, it is incumbent on the public authorities to act in good time, in an appropriate and consistent manner (see Beyeler v. Italy [GC], no. 33202/96, §§ 110, 114 and 120, ECHR 2000‑I; Sovtransavto Holding v. Ukraine, no. 48553/99, §§ 97-98, ECHR 2002‑VII; Broniowski v. Poland [GC], no. 31443/96, § 151, ECHR 2004‑V; Plechanow v. Poland, no. 22279/04, § 102, 7 July 2009; Potomska and Potomski v. Poland, no. 33949/05, § 66, 29 March 2011).
62. However, the Court notes from the documents submitted by the applicants that they were clearly aware of the order’s existence and, consequently, of the legal conditions for lawful construction on the protected territory. The applicant company was explicitly warned of the legal position in respect of the property and the complications involved in obtaining lawful building permits on account of the designation of this land (see paragraphs 8, 9 and 11 above). Being aware of the fact that their investment plan for the acquired land was dependent on the clarification of whether or not this land was encumbered with restrictions pursuant to the ministerial order of 1995 at the time when they bought it, the applicant company cannot hold this uncertainty against the authorities (see, mutatis mutandis, Allan Jacobsson v. Sweden (no. 1), 25 October 1989, §§ 60-62, Series A no. 163; and, Fredin v. Sweden (no. 1), 18 February 1991, § 54, Series A no. 192).
63. In this regard the applicants rely on their attempts to obtain a right to build notwithstanding the Minister’s order designating the territory as protected territory. This could not absolve the applicant company from the obligation to establish, in accordance with the applicable domestic law, what the pertinent regime for building on protected territory was and comply with it. It is the role of a competent entrepreneur to ensure that he or she is in possession of all relevant information before investing or conducting transactions, as well as to ensure that the transactions and investment are fit for purpose. The applicants’ own responsibility in this respect cannot be transferred to the State, nor can their apparent failure to comply with the relevant legal framework. Before incurring heavy investment-related expenditure as they did, the applicants should have at all stages ensured that their actions were in full conformity with domestic law.
64. The applicants initiated, or were involved in, procedures for the reclassification of the land (see paragraph 8 and 13 above), for obtaining the Ministry’s permission for the implementation of their project (see paragraphs 10 and 11 above), and for the exclusion of the land from the boundaries of the protected territory (see paragraph 10 above).
65. However, the fact that after the applicant company had purchased the land the local authorities allowed the reclassification of the land did not change the applicable legal requirements for building in protected territories (see paragraph 8 above). At the time when the local authorities issued the acts falling within their competence, they repeatedly signalled to the applicant company that the lawfulness of its building depended on the findings of the national authorities as to whether the possibility of construction on the land in question still required the approval of the central government bodies.
66. The applicant company further relies on the letter of a deputy minister stating that it was not necessary to carry out an environmental impact assessment for the investment project (see paragraph 12 above) and on the subsequent steps of the local municipality authorities to issue building permits for this project (see paragraph 13 above). In this respect the Court notes that the letter in question did not in itself repeal the ministerial order of 1995 so as to remove the uncertainty as to the exact boundaries and territory of the national park, nor was this impact assessment the only necessary permission required for valid and lawful permits for construction in protected territories (see paragraph 11 above). Furthermore, the issued permits had no final nature and were not only open to contestation, but were in fact contested, inter alia, on the grounds that they were issued in the absence of further approvals required for their validity (see paragraph 23). The Court notes that the letter of the Deputy Minister of 17 October 2005 was followed by another one – issued on 10 February, confirming the need of an environmental impact assessment (see paragraph 17) and that the issued permits were followed by the almost immediate reaction of the Directorate of the “Strandzha” national park, contesting these permits on such grounds. As a result of these reactions, these permits were quashed by final decisions of the Supreme Administrative Court of 2008 and 2009 (see paragraph 25 above), resulting in the demolition of the already carried out constructions by the applicant company, upheld by the Supreme Administrative Court in final decisions of 2012.
67. The Court is struck by the fact that in the meantime and despite the orders to suspend the enforcement of the issued permits, the applicant company continued to invest, apparently in the hope that, where confronted with a fait accompli, the permits issued by the local authorities would be approved by a final decision despite the lack of approval by all competent central authorities. However, the national courts declared them unlawful and this Court is not competent to hold otherwise.
68. In these circumstances the Court concludes that the applicant company had not obtained a right to construct on the acquired land in accordance with the applicable domestic law, which was capable of characterising such a right as a “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 of the Convention either at the moment of acquisition of the property, or at any subsequent moment.
69. The applicants’ own responsibility in carrying out construction in the absence of valid permits cannot be transferred to the State, nor can their apparent failure to comply with the relevant legal framework be seen as a matter attracting State responsibility. Before incurring heavy investment‑related expenditure as they did, the applicants should have at all stages ensured that their actions were in full conformity with domestic law. The company cannot therefore claim that any losses it may have subsequently incurred were the result of intervention by the authorities.
70. In conclusion, the Court finds that neither the purchase of the land nor its subsequent reclassification, or the permits issued by the local authorities and lawfully annulled (see paragraph 25 above), were sufficient to create for the applicant company a right to build determined in accordance with the applicable domestic law, or a “legitimate expectation” to do so within the meaning of Article 1 of Protocol No. 1 to the Convention.
71. It follows that the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
72. The same findings apply as regards the identical complaints brought by the two individual applicants who own and manage the company.
73. As to the identical complaints under Article 1 of Protocol No. 1 brought by the seventy individuals in their personal capacity, the Court notes that Article 35 § 1 of the Convention provides:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
74. It is a fundamental principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. Those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to first use the remedies provided for by the national legal system (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996‑IV; and Demopoulos and Others v. Turkey (dec.) [G.C.], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04, § 69, 1 March 2010).
75. The Court observes that the seventy individual applicants did not claim that they had even attempted to assert their rights, in as much as those arise out of the preliminary contracts they had concluded with the applicant company, at the national level before turning to the Court. Bulgarian law provides for the possibility of claiming damages for breach of contract which the individual applicants could have done. In any event, in the light of its finding that the applicant company did not have a right to build on the plots in question, the Court concludes that the responsibility of the State cannot be engaged under Article 1 of Protocol No. 1 as a result of the acts or omissions of the applicant company vis-à-vis the seventy individual applicants.
It follows that the above complaints must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
2. Other complaints under Article 1 of Protocol No. 1
76. The applicant company also complained under Article 1 of Protocol No. 1 that it could not deliver on its contractual undertaking vis‑à‑vis ninety-three individuals with whom it had concluded preliminary contracts for the sale of apartments.
77. The Court notes that the applicant company had signed preliminary contracts for the sale of apartments with many of the ninety-three individuals before it bought the land, and before any application had been made for converting the land from agricultural to land for building. In any event, the facts complained of were not the result of an exercise of governmental authority, but concerned exclusively relationships of a contractual nature between private individuals, namely the applicant company and the potential buyers of apartments. In the Court’s opinion, any repercussions on the applicant’s ability to deliver on its contractual undertaking that might have been caused as a result of its business decisions were not such as to bring Article 1 of Protocol No. 1 into play (see Gustafsson v. Sweden, 25 April 1996, § 60, Reports of Judgments and Decisions 1996‑II).
78. The applicant company finally complained under Article 1 of Protocol No. 1 that it had no effective domestic remedy for obtaining compensation for the damage it sustained as a result of the impossibility for it to build. In that vein, the applicants also relied on Article 14, read in conjunction with Article 1 of Protocol No. 1.
79. The Court considers that the above complaints would be best examined under Article 1 of Protocol No. 1 and that no separate issue arises under Article 14. It then notes that, as it can be seen from the national courts’ practice, a remedy exists at national level for obtaining compensation in cases in which building permits have been revoked. The Court cannot speculate as to the outcome of such a potential claim by the applicants.
80. In conclusion, it follows from the above that the remaining complaints under Article 1 of Protocol No. 1 must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Complaints under Article 6 § 1 of the Convention
1. Complaint concerning paragraph 7 (a) of the transitional and concluding provisions of the Protected Territories Act
81. All applicants complained that, as a result of the introduction of paragraph 7 (a) of the Transitional and Concluding Provisions of the Protected Territories Act 1998, they were deprived of access to a court in order to protect their property rights from the arbitrary limitations imposed with the ministerial order of 1995. They relied on Article 6 § 1, the relevant parts of which read as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal” ...
82. The Court observes that the 1995 ministerial order which declared “Strandzha” national park protected territory concerned matters of general policy in the public interest of environmental protection. This order was the source of restrictions on construction and generated uncertainty as to the applicant company’s prospective possibilities lawfully to carry out its investment plans. In 2006 it was challenged in court by the municipal authority, joined by the applicant company in the proceedings. These proceedings were discontinued before their finalisation as a result of the adoption of the above-mentioned legislative amendments (see paragraph 28 above), leaving the said ministerial order valid at all times throughout the period examined by the Court.
83. The Court reiterates the finding in its settled case-law that the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In matters of urban and regional planning policies the domestic policy-maker is afforded a particularly broad margin of appreciation in the taking of its decisions (see paragraph 57 above). Similarly, the Court has often reiterated that environmental conservation policies, where the community’s general interest is pre‑eminent, confer on the State a margin of appreciation that is greater than when exclusively civil rights are at stake (see Depalle v. France [GC], no. 34044/02, § 84, ECHR 2010 and, mutatis mutandis, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, § 70, ECHR 2004-III; Alatulkkila and Others v. Finland, no. 33538/96, § 67, 28 July 2005; Valico S.r.l. v. Italy (dec.), no. 70074/01, ECHR 2006‑III; and Lars and Astrid Fägerskiöld v. Sweden (dec.), no. 37664/04, 26 February 2008).
84. In that context, the Court notes that the Convention does not guarantee access to a court to challenge policy decisions per se; it requires that applicants be given access to a court to protect their interests in cases involving interference with a particular and established individual civil right, in respect of which they have an arguable claim that there has been an unlawful interference (see, mutatis mutandis, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 54, ECHR 2000‑IV). The Court recalls its finding above under Article 1 of Protocol No. 1 to the Convention that the applicants did not have any established right or legitimate expectation to consider themselves eligible to build on the territory in question at any time and that, therefore, the ministerial order issued ten years prior to the acquisition of their land did not interfere with such a right. It then observes that the legislative amendment of July 2007 had, inter alia, the effect of removing the possibility of challenging in court existing administrative acts, including ministerial orders concerning protected territories, such as the one in issue. While it might have given the impression of interfering with pending judicial proceedings, the fact remains that it is for the State to choose the means by which it puts into effect its national policies in such matters. It is important to note in this regard that the new amendment was a general policy measure which sought to achieve the essential purpose of protecting the environment. It did not specifically target any particular pending judicial proceedings, although inevitably such proceedings were affected. Moreover, in contrast with the situation in the cases of Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 50, Series A no. 301‑B, in the present case this amendment did not adversely affect any right of the applicant company established prior to the legislative changes.
85. Consequently, the fact that the applicants had no access to a court at national level to challenge the 1995 ministerial order at any moment does not raise an issue under Article 6 § 1. Insofar as the applicants have not acquired any civil right protected either by the Convention, or by domestic law, the fact that it was possible to undertake proceedings to challenge the order of 1995 during a certain period of time does not change the principle that Article 6 is not applicable to these circumstances.
86. Insofar as the applicants refer to the effect of the same legislative changes on the lawfulness of the rights allegedly acquired pursuant to the building permits issued in 2006, the applicant company had ample opportunities to have access to a court for the purposes of its protection from arbitrary or unlawful interference (see paragraphs 17 and 25 above). In fact, the subject matter of these proceedings was precisely to determine the compliance of these orders with the law. The suspension of these orders pursued the legitimate interest of preventing unnecessary losses, or damages occurring during pending proceedings.
87. The same findings apply as regards the identical complaints brought by the two individual applicants who own and manage the company.
88. As regards the identical complaints brought by the seventy individual customers of the applicant company, the Court observes that they were not party to the domestic proceedings and they had no actual rights to be determined in the related domestic proceedings.
89. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. Other complaints under Article 6 § 1
90. The Court notes that the applicants also complained under Article 6 § 1 about the unfairness of the court proceedings brought by the applicant company against the order of 9 February 2006, suspending the construction, and against the orders of 2 and 6 July 2007, prohibiting access to those constructions.
91. The Court finds that the applicants essentially challenged the domestic courts’ findings of fact and their interpretation of the law. The Court emphasises that it is not a court of appeal for decisions of national courts (see, as a recent authority, Yordanova and Toshev v. Bulgaria, no. 5126/05, § 65, 2 October 2012) and it is not its function to deal with errors of fact or law allegedly committed by those courts, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among many other authorities, Csősz v. Hungary, no. 34418/04, § 33, 29 January 2008, and Stoyanova‑Tsakova v. Bulgaria, no. 17967/03, § 26, 25 June 2009).
92. It follows that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged violation of Article 13 of the Convention
93. Finally, all applicants also complained that they had not had effective remedies at their disposal in connection with all their complaints examined above.
94. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] 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.”
95. The Court finds that, as the applicants have no arguable claims under Article 6 § 1 and under Article 1 of Protocol No. 1, Article 13 does not apply. This part of the application should therefore be rejected pursuant to Article 35 §§ 3 and 4 as being incompatible ratione materiae with the provisions of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
Appendix
No.
Firstname LASTNAME
Birth date
Nationality
CRASH 2000 OOD
Bulgarian
Emil Emilov IVANOV
06/10/1979
Bulgarian
Bahtishen Ehlimanova KAZANDZHIEVA
29/06/1968
Bulgarian
David Peter DOLLING
06/06/1980
British
Katherine Sarah DOLLING
06/05/1980
British
James DAND
08/12/1979
British
Sandra JACKLIN
01/03/1959
British
Robin Edward JACKLIN
11/12/1956
British
Alison Emma MOLES
27/01/1975
British
Darren John MOLES
16/04/1965
British
Nora Marcella MULVANNY
17/09/1976
Irish
Fearghal Michael MULVANNY
04/07/1975
Irish
Nicholas Eric BADMAN
01/09/1966
British
Martine O’GORMAN
10/09/1962
Irish
Ian O’GORMAN
19/07/1963
Irish
Tina Maria SMITH
02/05/1962
British
Lee William SMITH
16/08/1965
British
Nicolette BOTHA
28/08/1974
South African
Saran Nicol HANSON
28/02/1974
British
Caroline Maria O’CONNOR
21/02/1967
Irish
Ray John O’CONNOR
29/07/1965
Irish
Christopher Graham MURPHY
19/08/1959
British
Gilbert George FLOOK
31/07/1973
British
Amanda Leanne ROBSON
16/01/1974
British
Christian John ROBSON
13/06/1973
British
Fionntina Mary CARVILLE
16/11/1968
Irish
Jeanne MORGAN
08/03/1956
British
Anne Denise GOODALL
31/05/1948
British
Clive GOODALL
06/11/1946
British
Mabel Anne MURTAGH
26/06/1968
Irish
Padraig MURTAGH
17/10/1966
Irish
Marie DAVIES
22/03/1967
British
Philip Clive NEWPORT
02/10/1968
British
Rebecca Louise RYMER
28/09/1971
British
Christopher John RYMER
12/12/1970
British
Julie Ann LANSLEY
22/07/1960
British
Keith LANSLEY
21/10/1953
British
Carolina BURGOS BENITO
20/03/1972
Spanish
Keith Oliver LAKE
29/12/1946
British
Jose Javier GONZALEZ MURGA
11/10/1972
Spanish
Eithne Ann BELL
21/05/1969
Irish
Jill LAKE
31/12/1952
British
Paul Vincent MC CARTNEY
16/04/1967
Irish
Helen FORTUNE
05/11/1961
Irish
Pat FORTUNE
24/05/1957
Irish
Susan RANNARD
23/03/1957
British
Muriel Mcarthur WALLEY
10/11/1957
British
Michael George WALLEY
03/07/1956
British
Nadia HAMRI
06/01/1972
Belgian
Patrick Frans Marie ANDRIES
22/02/1958
Belgian
Wayne Sean MORAN
19/06/1979
British
Rosalina GABE
12/06/1943
British
Krishna BOSE
30/12/1946
British
Saroj Kumar BOSE
02/12/1938
British
Alice Mary NUGENT
04/11/1964
Irish
Gabriele Geb. Kasterke MANDER
26/04/1959
German
Lee Martin MANDER
20/05/1957
British
Rose Majella MUNNELLY
18/10/1963
Irish
Thomas MUNNELLY
29/03/1963
Irish
Michael CHU
27/12/1969
British
Andrew Dean BARKS
03/04/1965
British
Jane BARKS
22/11/1966
British
David BARKS
11/02/1963
British
Louise STUBLEY
20/12/1968
British
Kevin Vaughan GRIFFITH
07/05/1964
British
Gerard Anthony MURRAY
09/09/1967
Irish
Gary KNIGHT
30/05/1967
British
Nicola Sarah KNIGHT
27/10/1967
British
Dermot Patrick DWYER
08/06/1958
Irish
Patrick QUINN
27/08/1957
Irish
Dolores QUINN
02/08/1958
Irish
Paul CALLISON
18/11/1950
British
Janet CALLISON
27/06/1953
British
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