FIFTH SECTION
DECISION
Application no. 39084/10
Ivelina Stoyanova DIMITROVA and others
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 11 July 2017 as a Chamber composed of:
Angelika Nußberger, President,
Erik Møse,
Faris Vehabović,
Yonko Grozev,
Síofra O’Leary,
Mārtiņš Mits,
Lәtif Hüseynov, judges
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 11 June 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by the European Roma Rights Centre which had been granted leave to intervene in the written procedure in accordance with Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. Applicants one to seventeen were represented initially by Mr Adam Weiss, from the AIRE Centre, London and, subsequently, by Mr M. Evans, director of the AIRE Centre, London, and a lawyer practising in London. Applicants eighteen to twenty-three were represented, initially, by Mr Adam Weiss from the AIRE Centre, London and, subsequently, by P. Radev, a lawyer practising in Varna.
3. The Bulgarian Government (“the Government”) were represented by their Agent, Ms D. Dramova, from the Ministry of Justice.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. The applicants are members of three Roma families from the Varna municipality in Bulgaria. They were represented during the domestic proceedings by association “Obnovlenie” (hereafter “the association”), a non‑governmental organisation based in Varna which deals with Roma issues and whose chair and representative was Ridvan Saly.
1. Background
6. The three applicant families indicated that they had been living in dwellings at 1 and 1a Borimechkata Street in the Mladost borough of Varna for up to twenty years. Those dwellings were owned by the municipality and were in a serious state of disrepair.
2. Intended demolition of the applicants’ dwellings
7. On 22 January 2008 an expert committee, tasked by the municipality with verifying the state of repair of municipal buildings, established that the houses at 1 and 1a Borimechkata Street were unfit for use and recommended their demolition.
8. Once the occupants had been formally put on notice, the mayor of Varna issued two orders on 25 May 2008, ordering the houses’ demolition as they were unsafe for occupation and also posed a threat to passers-by. The orders indicated that the first, second, fifth, sixth, seventh, eight, fourteenth, fifteenth, eighteenth, twentieth, twenty-first and twenty-second applicants were occupying the houses at 1 and 1a Borimechkata Street, unlawfully.
9. The mayor contracted a private company to demolish the two houses. A municipal company was tasked with ensuring that the necessary conditions for the demolition were in place. Representatives of the municipality were instructed to be present during the demolition and the police were asked to send officers to ensure that public order was observed.
3. Eviction and demolition
10. On 21 November 2008, demolition works started on one of the two houses mentioned above. Following an intervention by the association, the municipality orally granted a ten-day postponement for the demolition in order to find alternative housing for the applicants. They also announced on the radio that alternative accommodation would be found, especially for the children, as it was winter. Press reports described how some of the Roma inhabitants had positioned themselves on the roofs of the houses to prevent demolition.
11. On 5 December 2008, without alternative accommodation having been found, the council proceeded with the demolition, with the police entering the houses at 7 a.m. The applicants were evicted by the police with the help of a private security firm. According to the applicants, disputed by the Government, the police destroyed household items with clubs and poured water over the burning stove. All the applicants were ordered to go out into the street. A record, signed 8 December 2008 by a police officer who was present during the demolition, stated that “on 5 December 2008, between 7 a.m. and 1 p.m., teams of police officers from Varna assisted the municipality with the demolition of the buildings at 1 and 1a Borimechkata Street. No disturbance was observed during the demolition.” Another record drawn up by municipal officials on 5 December 2008 indicated that at 7.30 a.m. both houses were free of items and ready to be demolished.
12. The parties dispute whether Sava Zyumbyulkov Savov, aged one‑and‑a-half months at the time of the events, was among those evicted. He was the youngest child of the Savovi family (applicants eighteen to twenty‑three); his birth certificate indicated that he was born on 20 October 2008 and lived at 1a Borimechkata Street, Varna.
13. According to the applicants, the officials present, including the mayor of Mladost, made insulting remarks to them, such as “Take that back home” and “You are too dirty, go take a shower and then come back”. In addition, the children witnessed their homes being destroyed and their parents’ distress.
4. Accommodation of some applicants after the eviction
14. The Dimitrovi family (applicants one to four) moved into another municipal dwelling situated at 115 Pop Hariton Street, to which they were directed by the borough authorities after the demolition on 5 December 2008. They were left in the street for approximately six hours before this accommodation was made available. The four members of the family were accommodated in one room in which they lived until 2014, at some point in time with an additional baby. Six months after they moved in the roof collapsed in the Dimitrovi family room. They patched it up themselves but the roof continued to leak.
15. The Savovi family (applicants eighteen to twenty-three) were not directed promptly to alternative housing. At approximately noon on 5 December 2008, the eighteenth applicant, Ms Savova, concerned about the situation of her new-born baby, enquired with the borough authorities where her family could move. The borough authorities directed them to the dwelling at 115 Pop Hariton Street. The Savovi family was only able to move there at 11 p.m. that day. In the meantime they were left in the street for about sixteen hours. They took shelter under a block of flats, where they had to change the baby’s nappies and clean their children in the open. They were finally accommodated in one room of the house at 115 Pop Hariton Street. At that point, ten members of the family occupied the same room.
16. The Atanasovi family (applicants five to seventeen) moved into a makeshift house at 4 Georgi Peyachevich Street which they put together out of wooden blocks and cardboard collected from a rubbish dump. The house did not have a toilet and its inhabitants used an area behind the house for this purpose. There was no running water so they washed in the sea. A certificate provided by the municipal authorities indicated that in 2009 the ninth applicant was listed as an occupant of the house together with the rest of the Atanasovi family.
17. The building at 115 Pop Hariton Street was a single-storey house with a total of three rooms. On 5 December 2008, the third room was uninhabitable. The Savovi family made the room habitable so that three people could live in it, while six others (applicants eighteen to twenty-three) lived in the room to which they originally moved. When the Dimitrovi and Savovi families moved into the house, there was no electricity supply and no hot water. The only toilet was an external one which was extremely dilapidated and there was no place to shower or bath. There was only one sink. The applicants attached photographs of the house to their application.
18. On 8 December 2008 the first and the eighteenth applicants signed typed-up declarations provided by the municipality, stating that they were aware that the dwelling which they occupied at the time, the house at 115 Pop Hariton Street, Varna, was in a state of disrepair and posed a danger to the life and limb of its occupants, and that they undertook to inform the people living with them at that address accordingly.
5. Subsequent developments in respect of housing for the applicants
19. The mayor of Mladost ordered on 22 March 2012 that the house the Atanasovi family occupied be demolished as it posed a danger to human occupation. On 5 November 2013 the municipal authorities proposed to the sixth applicant, Mr Atanasov, to move with his minor children and his wife to a small municipal apartment on the 8th floor of a block of flats. Following hesitations expressed by him, the authorities allegedly informed him that if he refused the offer, something he effectively did, more appropriate housing would be offered to his family. This did not happen.
20. On 21 July 2014 the mayor of Mladost ordered the eviction of the first, third, fourth, eighteenth, nineteenth, twentieth, twenty-first and twenty‑third applicants from 115 Pop Hariton Street, on the ground that they occupied it unlawfully. On 23 July 2014 the mayor ordered that the Savovi family, plus a baby born on 8 April 2014 to the eighteenth applicant, be allocated subsidised municipal housing. This order was enforced on the same day when the applicants moved into a flat of twenty-three metres squared.
21. The Dimitrovi family was not proposed any shelter after their eviction ordered in July 2014. While officially still registered at 115 Pop Hariton Street, they rented a room in a house at 44 Krayezerna Street where they were living at the time of their last communication with the Court.
6. Death of Sava Zyumbyulkov Savov
22. At about 4 a.m. on 30 December 2008, the eighteenth applicant, the mother of Sava, had called an ambulance as the child was not breathing. Sava Zyumbyulkov Savov, aged two months and ten days, was declared dead by the emergency doctor. A hospital record announcing his death listed 1a Borimechkata Street as his permanent address and another address in Varna as his current address. The same two addresses had been indicated on the hospital record announcing his birth.
7. Investigation into the infant’s death
23. A preliminary criminal investigation against an unknown perpetrator was immediately opened into his death. A number of investigative measures were carried out. Those included an examination of the dwelling where the child had died and the creation of an album of pictures of the child in his cot, interrogation of the mother, as well as a forensic medical expertise, which comprised an autopsy of the infant’s body. The mother was provided with an ex officio lawyer.
24. The prosecutor terminated proceedings on 24 March 2009 for absence of a crime as the authorities considered that the child had died of natural causes. The death certificate indicated the cause of death as bilateral pneumonia and acute respiratory and cardiac failure. It listed the child’s address as 1 Borimechkata Street, Varna. The child’s mother, the eighteenth applicant, who was provided with legal assistance, did not make of her own motion any explicit complaint before the investigating authorities. Nor did she challenge the termination of the preliminary investigation.
8. Administrative proceedings brought on behalf of the applicants
(a) Proceedings before the Varna Administrative Court
(i) Initial submission by the association
25. On 9 October 2009, the chairman of the association brought an application before the Varna Administrative Court, entitled “complaint”, against Varna municipality. In it he complained of “drastic consequences” endured by the inhabitants of a number of dwellings following their eviction from those dwellings and the latter’s demolition. He claimed that those consequences included the death of one child and the severe psychological traumatism of several other children. He referred to evictions and demolitions carried out by the municipality since November 2008 on six different streets, among which Borimechkata Street, from which the individual applicants in the present case had been evicted.
26. He emphasised, without further detail and without listing the names of the individual applicants, that the actions of the municipality breached the affected persons’ human rights. He submitted that, while those persons would bring proceedings before the Commission for Protection Against Discrimination, that process would take too long and the families under threat of being evicted at that time risked being left in the street without shelter during the winter. He asked the court to order the municipality to provide shelter to the people facing eviction or to halt the planned eviction until shelter was secured.
(ii) Court’s order in response to the initial submission
27. By an order of 9 October 2009 the Varna Administrative Court found that the application did not meet the requirements of Article 150 of the Code of Administrative Procedure (“the 2006 Code”, see paragraph 40 below) and that it was necessary for the representative of the association to correct the irregularities in it. More specifically, the court order stated that he had to clarify the object of his application. If it was a complaint against an individual administrative act then he needed to specify the act, the body which had issued it and in what way the act was unlawful. Similarly, if he was complaining about actions or omissions on the part of an administrative body, then those had to be specified, together with their alleged unlawfulness. Further, it was necessary to indicate what he was asking of the court: the quashing of an unlawful administrative act or the discontinuation of actions or omissions by an administrative body. If he was asking for the latter, then he had to state whether those actions were carried out on the basis of an administrative act, or whether they were carried out without a lawful basis. He further had to provide proof of a paid state fee (of about 5 EUR), as well as of the existence of the association and of its valid representation. The court suspended the case so that the association’s representative could comply with the above instructions.
(iii) Clarified submission in response to the court’s order
28. On 21 October 2009 the association’s representative filed a submission entitled “clarifying application” in response to the Varna Administrative Court’s order of 9 October 2009. It indicated that it was brought by Ridvan Sali, acting as a head and representative of association “Obnovlenie”. The modified application specified that it was a complaint representing, on the one hand, a challenge to the implementation by Varna municipality of the ordinance on people’s housing needs. On the other hand, the complaint was a challenge to the authorities’ actions and omissions relating to the eviction of the individual applicants in November and December 2008 from 1a Borimechkata Street in Varna and the authorities’ continued failure thereafter to provide the evicted Roma people with adequate shelter. He identified the authorities in question as Varna municipal council officials, the Varna social assistance directorate, police officials and the private security firm’s staff hired by the municipality to assist during the above-mentioned eviction and demolition. He further complained about the inaction of the social assistance department which, despite having been repeatedly informed by the association of the children’s imminent eviction in November 2008, had contented themselves with the drawing up of a report concluding that it was beyond their mandate to act.
29. The association’s representative further listed the names of the individual members of the Roma families who he claimed had suffered damage as a result of the authorities’ actions and inactions. The latter were enumerated as follows: the forced removal of the named individuals from their dwellings by the police; the humiliating treatment of the former by authorities involved in the eviction and demolition; the selective demolition of dwellings occupied by Roma only; forcing a one-month-old baby to spend a whole winter day in his cot in the open in the street, as a result of which he had died several weeks later from double-sided pneumonia; psychological harassment of the children from the demolished homes and failure to provide them with psychological support for the shock of witnessing their homes being destroyed and the helplessness of their parents; subsequent housing of the Roma families in conditions unsuitable for human occupation; unfair and discriminatory treatment during the last fifteen years of Roma in need of social housing including the families listed; and discriminatory treatment on the basis of people’s social status in the distribution of municipal dwellings. The association’s representative stated that those actions and inactions had breached the Protection Against Discrimination Act (hereafter “the PADA”), the human rights and freedoms provided for in the Convention for the Protection of the Child and the Convention for the Protection of Human Rights and Freedoms and, in particular, Articles 2, 3, 13 and 14.
30. He asked the court to order the municipality to audit its municipal housing policy as regards the ethnicity and social status of the people given municipal dwellings. In addition, he asked the court to compel the municipality to provide normal living conditions to the applicant families. He also asked the court to order the municipality to pay just compensation to them for the humiliating living conditions in which they had been forced to live after the eviction and demolition, as well as for having discriminated against them as regards the provision of housing. He also sought compensation for the family of the dead child, Sava Zyumbyulkov Savov, and for all three families for the insufficient protection provided to the children during the demolition and thereafter. He sought costs and expenses and submitted proof of payment of the state tax due and of the existence of the association. He also listed the written items of evidence which he submitted together with his application.
(iv) First instance court’s decision on clarified submission by the association
31. The Varna Administrative Court examined the clarified application on 23 October 2009. The court found, in the first place, that this application had made it clear that the complaint was against the actions and inactions of municipal officials from Varna municipality, of police officers and private contractors at the time of the demolition of dwellings in November-December 2008. The court further concluded that the complaint was against the inaction of the social assistance department for having refused to draw up a report on the living conditions of the children in the Savovi family during the said period. It then observed that the association was seeking, on behalf of three families, pecuniary and non-pecuniary damages stemming from the actions and omissions of the municipal administration in relation with the demolition of the municipal houses in which those families had been living and damages for placing those individuals in inappropriate municipal dwellings.
32. The court noted that the aforementioned actions and omissions had been presented as being unlawful and in breach of the Convention for the Protection of the Child, the Convention for the Protection of Human Rights and Fundamental Freedoms and the PADA.
33. The Varna Administrative Court decided that it had not been seized with a complaint against a specific individual administrative act under Article 145 § 2 of the 2006 Code, nor with a proper complaint against specific actions or omissions under Article 250 of the 2006 Code (see paragraph 37 below), or with a proper claim for damages under the State and Municipalities Responsibility for Damage Act 1988 (hereafter “the SMRDA”, see paragraphs 42-43 below). In particular, neither in the initial application of 9 October 2009 nor in the clarified application thereafter had the association representative specified an individual administrative act against which judicial review proceedings could be brought. Even assuming that this act was the eviction and demolition order in respect of the dwelling at 1a Borimechkata Street, the association was not a party to, or personally affected by, that order and the fourteen-day statutory period for judicial review of such orders had long expired. Furthermore, the claim against the administrative actions or omissions under Article 250 §§ 1 and 5 of the 2006 Code was likewise out of time, given that the authorities’ actions complained of had taken place in November-December 2008. The court further noted that a claim under section 1(1) of the SMRDA was inadmissible due to the lack of standing of the association and because such a claim would require a prior declaration of illegality in accordance with Article 204 of the 2006 Code. The court declared the application inadmissible.
34. Apart from the restating the complaint made by the association that the actions and omissions in question had been unlawful and in breach of the PADA, among other legal instruments (see paragraph 32 above), at no point in its decision did the Varna Administrative Court refer to the PADA – the legislative act to which the association had made explicit reference –, examine the procedural regularity or irregularity of the application from the perspective of the PADA or explain why, for all or any of the association’s complaints made in it, the PADA could not constitute an effective remedy.
(b) Proceedings before the Supreme Administrative Court (SAC)
35. On 11 December 2009, in the context of a cassation review, the SAC upheld the lower court’s decision in its entirety.
36. It found that the application before it was admissible as submitted within the statutory limitation period. However, it was not well-founded. In particular, the lower court had correctly established that it had not referred to a specific administrative act under Article 150 of the 2006 Code. Neither had it pointed out specific actions or omissions under Article 250 of the 2006 Code. Given that from the applicant association’s submissions it had been clear that the events complained of had taken place in November‑December 2008, it was indisputable that the statutory limitation period had lapsed, which in turn was an additional ground for not examining the application on its merits. Finally, the applicants had not made a valid claim for compensation under section 1 of the SMRDA, given that they had failed to specify the concrete acts, actions and omissions in connection with which compensation was being sought, or its amount. The SAC did not address the applicability of the PADA either.
B. Relevant domestic law and practice
1. The 2006 Code
37. Individuals can seek protection against actions and omissions of administrative bodies under Chapter 11 of the 2006 Code. Article 250 stipulates that everyone with a legal interest can bring a claim before the administrative court, seeking the discontinuation by an administrative body of an action not based on an administrative act or in the law.
38. According to Article 145 §§ 1 and 2 an administrative act may be contested before a court within fourteen days of its communication.
39. All claims for damages stemming from unlawful acts, actions or omissions by public bodies or officials are heard at first instance by the competent administrative court (Article 128 §§ 1 and 5).
40. According to Article 150 § 1, judicial review of an individual administrative act has to be lodged in writing and must indicate, inter alia, the court, personal and contact data of the applicant, the administrative act which is contested and the essence of the request. The administrative court may collect evidence admissible under the Code of Civil Procedure 2007 (Article 171 § 2) and it assists the parties in proceedings before it to correct formal errors and lack of clarity in their submissions (Article 171 § 4).
41. If an irregular application has been made challenging an individual administrative act before a court, the court specifies the irregularity and invites the party to correct it and resubmit the application (Article 158). Thus, in two decisions, the Sofia Administrative Court, referring to the latter provision, returned an application twice to the claimant, indicating each time its irregularities and how to correct them (see опр. на адм. съд София град от 14.05.2010 и 26.06.2010 по адм. д. № 3537/2010).
2. The SMRDA
42. Section 1(1) of the SMRDA provides that the State and, as of July 2006, the municipalities are liable for damage caused to individuals and legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging administrative duties. Pursuant to Article 204 (4) of the 2006 Code, the lawfulness of administrative actions or omissions is established by the court in the context of the same proceedings for damages.
43. Persons seeking redress for damage resulting from acts or omissions falling within the scope of the SMRDA have no claim under general tort law as the SMRDA is a lex specialis and excludes the application of the general regime (section 8(1) of the SMRDA; see also реш. от 29 юли 2002 г. по гр.д. № 169/2002 г. на СГС, ГК, ІVб отд., as well as реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о., referred to in, among others, the case of Iovchev v. Bulgaria, no. 41211/98, § 80, 2 February 2006).
3. Protection against Discrimination
44. Article 6 § 2 of the Constitution bans discrimination on the grounds of race, national origin, ethnicity, sex, religion, education, conviction, political affiliation, personal or public status and property status.
45. The PADA, which was adopted in 2003 and came into force on 1 January 2004, transposes Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, p. 22) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, p. 16).
46. It prohibits discrimination on grounds of sex, race, national origin, ethnicity, human genome, nationality, origin, religion or faith, education, beliefs, political affiliation, personal or public status, disability, age, sexual orientation, family status, property status, or any other ground provided for by law or an international treaty to which Bulgaria is a party. The Act also defines racial segregation, explicitly providing that it is a form of discrimination.
47. The PADA is a lex specialis in relation to general administrative and civil law.
48. Section 9 provides for the shifting of the burden of proof in discrimination cases. Under that section, where a claimant is able to prove facts from which an inference may be drawn that there has been discriminatory treatment, it is incumbent on the defendant to prove that there has not been a violation of the right to equal treatment.
49. A complainant may first file a complaint with the Commission for Protection against Discrimination (section 50 of the PADA) or instead bring an action directly in court (section 71 of the PADA).
50. According to section 71(1) of the PADA, every individual who considers himself or herself to be a victim of discrimination can bring a claim before the first-instance civil court, seeking in particular to establish that he or she has been discriminated against, that the defendant be made to discontinue the discriminatory treatment and to refrain for the future from it, and that compensation be paid to the victim.
51. Section 71(2) of the PADA entitles non-governmental organisations to bring claims on behalf of victims complaining of discriminatory treatment and seek compensation on their behalf. Section 71(3) of the PADA authorises non-governmental organisations to bring such proceedings in their own name when a high number of individuals is concerned. In such cases the compensation sought by the non-governmental organisation is in the interest of the individuals allegedly discriminated.
52. Domestic judicial practice on the question which courts have competence to hear discrimination claims under section 71(1) of the PADA has varied considerably in the past. An interpretative decision of a joint bench of judges from the SCC and SAC decided on 19 May 2015 that the administrative, and not civil, courts were competent to hear discrimination claims against public bodies or officials under section 71(1) of the PADA. This decision put an end to the lack of clarity regarding which courts – civil or administrative – were competent to hear such claims.
COMPLAINTS
53. The applicants complained under Articles 2, 3, 6 § 1, 8, 13 and 14 of the Convention that their eviction on a winter day and the subsequent failure to provide them with adequate alternative accommodation or shelter had resulted in the death of an infant member of one of the applicant families and constituted degrading and discriminatory treatment.
THE LAW
A. The Government’s submissions
54. The Government submitted in the first place that the application was inadmissible as the applicants had failed to exhaust domestic remedies. More specifically, they had omitted to challenge their eviction and the house’s demolition within the limitation period of fourteen days following the events (see paragraph 38 above).
55. In addition, the application which the applicants had brought before the administrative courts in 2009 had been unclear and incomplete, as they had neither indicated a concrete administrative act of which they were complaining, nor an administrative action or failure to act. Because of that failure to comply with the formal requirements of Bulgarian law, their application had not been examined on the merits by the domestic courts. Similarly, they had not brought a proper claim under the SMRDA as the right to bring a claim for damages was personal and could not be exercised by a non-governmental organisation.
56. Neither had the applicants, according to the Government, brought a proper claim under the PADA, given that they had not specifically referred to its section 71 and had wrongly brought the application before the administrative instead of the civil court. Furthermore, in its initial application the association had indicated that the applicants intended to bring proceedings before the Commission for Protection Against Discrimination (see paragraph 26 above). This demonstrated clearly that the proceedings in question were of a different nature, that is to say they did not concern discrimination allegations. Without providing further details, the Government stated that the applicants had failed to use either a criminal law or a general civil law remedy.
57. The Government further contested the victim status of the nineteenth applicant, who claimed he was the father of the infant. They pointed out that he had not produced any document showing that he was the father, or that he had ever lived at 1 or 1a “Borimechkata” Street. They provided a document showing that he was not, and had never been, married. They also provided a certificate issued by the municipality on 14 August 2013 indicating that he had been living at 115 Pop Hariton Street since September 2009. They further submitted a document showing that on 11 September 2014 he had applied for municipal housing stating that he was not married and that his household consisted of one person only.
58. Finally, the Government considered that the application was submitted out of time as the eviction and demolition had taken place in 2008. This had been more than six months before the applicants applied to the Court and the administrative judicial proceedings which they had brought in October 2009 had not been a valid attempt to exhaust an effective domestic remedy.
B. The applicants’ submissions
59. The applicants maintained that the application which the association had brought before the Varna Administrative Court on their behalf in relation to the eviction, to the infant’s death, and to the living conditions in which all applicants found themselves thereafter, was an effective domestic remedy. The application in question had sought to have the court establish that the authorities’ actions and omissions vis-à-vis the applicants represented discriminatory treatment and to award the applicants compensation for it. As a result they had exhausted domestic remedies. The applicants also contested the Government’s objection that their domestic application before the administrative court was unclear. They pointed out that in its supplementary submission on 21 October 2009 the association had specified its complaints and claims in significant detail, which included claims for damages on their behalf in relation to the death of Sava Zyumbyulkov Savov.
C. The Court’s assessment
60. The Court considers that it is not called upon to examine in the abstract the different legal options available to the applicants under domestic law when seeking redress for their different grievances. Given that the applicants brought proceedings domestically for that purpose, the question before the Court is whether those proceedings (see paragraphs 25-36 above) could be considered as having complied with the Convention requirement that effective domestic remedies be exhausted.
61. The Court has repeatedly held that the rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is an indispensable part of the functioning of the Convention system of subsidiary protection (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014).
62. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Vučković and Others, cited above, § 70 and the authorities cited therein).
63. The Court has also repeatedly emphasised that it is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation – both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 69, ECHR 2010; and also Vučković and Others, cited above, § 70).
64. The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances (see Vučković and Others, cited above, § 71). Article 35 § 1 also requires that the complaints intended to be made subsequently in Strasbourg should have been made to the appropriate domestic body, at least in substance (see Gäfgen v. Germany [GC], no. 22978/05, §§ 144 and 146, ECHR 2010; and Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I) and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports 1996-IV). Where an applicant has failed to comply with these requirements, his or her application should in principle be declared inadmissible for failure to exhaust domestic remedies (Vučković and Others, cited above, § 72).
65. To be considered effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (ibid., § 74).
66. The Court observes that, in the present case, the initial application presented to the Varna Administrative Court was chaotic and formulated in overly general terms. It contained statements about unidentified people who were allegedly experiencing grave difficulties as a result of pending and completed evictions. It did not present clear-cut claims. Neither did it mention by name the individual applicants in the present case, or provide specific information on the basis of which a reasonable understanding could be formed about who the victims of the alleged discriminatory and degrading treatment were (see paragraphs 25-26 above).
67. Having been returned by the first-instance administrative court with an indication regarding what needed to be rectified, the association submitted an amended version within the established time-limit (see paragraphs 27-28 above).
68. The association’s reformulated application is summarised in paragraphs 28-30 above. It was submitted in the name of Mr Radvan Sali, acting as a head and representative of the association. The latter listed the names of the individual members of the Roma families who it claimed had suffered damage as a result of the authorities’ actions and inactions. Reference was made to the PADA and the Convention. The claims which appeared in the initial application no longer featured. The bodies responsible for the alleged damage were identified as being both public authorities and private parties whose alleged action and inaction were spread over time. The only date or period specified were the months of November-December 2008 when the individual applicants had been evicted from their dwellings and the latter had been demolished. The essence of the complaints made ranged from humiliation and psychological harassment of children in 2008 to a request for the court to order the municipality to audit its social housing policy for the last fifteen years and a complaint that the applicants were living in sub‑standard conditions provided by the municipality, without further particulars. The application further sought compensation for the individuals who are applicants in the present case without, however, specifying a concrete amount.
69. The domestic courts considered the various complaints and claims made with reference to several legal paths available to claimants under Bulgarian administrative law (see paragraphs 31-36 above). They appeared to do so in an attempt to assess the issues potentially raised by the application, to the extent that these could be deduced from the submissions made in it.
70. The first-instance administrative court found that the application was inadmissible as being either out of time or filed by a person who had no standing to bring it, namely the association which could not complain on behalf of third parties nor seek damages in their stead and even less so without specifying an amount. It examined whether the application amounted to an appeal of an administrative decision under general administrative law, a complaint about the legality of specific actions/inactions or a claim for compensation under SMRDA. The first-instance administrative court gave brief reasons why the application did not meet admissibility requirements under any of these proceedings (see paragraph 33 above).
71. The SAC, for its part, concluded that the lower court had correctly established that the application had neither referred to a specific administrative act, nor to specific actions or omissions of the authorities, and was in any event out of time (see paragraph 36 above).
72. The Court sees no reason to disagree with or call into question the analysis or conclusions of the domestic courts, noting that the latter are better placed to interpret and apply relevant national legislation and domestic procedural rules to complaints made before them (see Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 143, ECHR 2005-VI).
73. The Court notes, nevertheless, that the association made an explicit reference to the PADA in its application at domestic level. Despite the fact that the PADA was, at the relevant time, a relatively new remedy in domestic law, that it permitted non-governmental organisations to bring claims on behalf of victims complaining of discriminatory treatment (see paragraph 51 above) and that the respondent Government has conceded that it constitutes an effective domestic remedy in certain circumstances (see Angelova and Iliev v. Bulgaria, no. 55523/00, § 108, 26 July 2007; Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, § 104, 25 October 2011; Yordanova and Others v. Bulgaria, no. 25446/06, § 160, 24 April 2012; and also Halil Adem Hasan v. Bulgaria, no. 4374/05, § 71, 10 March 2015), the domestic courts, at first instance and on appeal, remained entirely silent in its regard. They did not clarify whether, given the nature and content of the application, the procedural requirements under the PADA had or had not been complied with, whether they considered themselves competent to examine a complaint about discriminatory treatment without the Commission for Protection Against Discrimination having first been seized or whether, given the breadth of the association’s application (see paragraphs 28-30 above), they did not consider it an appropriate or effective remedy as regards all or certain strands of it, not least that relating to the death of the infant member of one of the Roma families.
74. The Court has consistently held that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for an applicant failing to exhaust that avenue of redress (see Akdivar and Others, cited above, § 71, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009). Equally, it is considered in an applicant’s interests to apply to the appropriate domestic court in order to give the latter the possibility to develop existing rights through its power of interpretation (see Ciupercescu v. Romania, no. 35555/03, § 169 and the authorities cited therein, 15 June 2010). Conversely, it is for domestic courts to avail of their power of interpretation or to explain the futility or inappropriateness of the remedy relied on, regard being had to the relevant domestic procedural requirements, the nature of the complaints before it or the remedy’s ability (or not as the case may be) to address directly the impugned state of affairs and provide redress.
75. However, while the domestic courts’ silence regarding the PADA is open to some criticism, it nevertheless remains the case that the association’s application, as indicated previously, was initially chaotic and even after clarification remained unclear and unstructured. It raised very diverse legal issues stemming from the provision, or lack of provision, of housing for the applicants and several of those issues had to be the subject of different domestic procedures unrelated to discrimination. In essence, the domestic courts were being requested to order a full review of the housing policy of the municipality, to order the municipality to house the families in appropriate housing and to award compensation both for the eviction and lack of housing and for the death of an infant member of one of the affected families (see paragraph 30 above).
76. It cannot thus be said, in the circumstances of the present case, that the applicants provided the national courts with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 of the Convention, namely the opportunity to prevent or put right Convention violations through their own legal system. In view of this finding, the Court considers that it is not necessary to examine the other preliminary objections advanced by the Government and that the Government’s objection of failure to exhaust domestic remedies must be upheld.
77. It follows that the application must be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 September 2017.
Milan BlaškoAngelika Nußberger
Deputy RegistrarPresident
APPENDIX
The applicants are all Bulgarian nationals who live in Varna. They are members of three families each of which consists of parents and their children. They are listed below by family.
Ivelina Stoyanova DIMITROVA was born on 10 July 1973Emil Toshkov MIHAYLOV was born on 4 October 1968Nadezhda Emilova TOSHKOVA was born on 2 September 1991Slavi Emilov TOSHKOV was born on 26 August 1992Nadezhda Toshkova ATANASOVA was born on 22 November 1966Angel Hristov ATANASOV was born on 6 February 1966Maria Angelova ATANASOVA was born on 4 October 2005Valentina Angelova ATANASOVA was born on 14 February 2004Magda Angelova ATANASOVA was born on 24 April 2001Stoycho Angelov ATANASOV was born on 13 November 1998Ivelina Angelova ATANASOVA was born on 24 June 1993Asya Angelova ATANASOVA was born on 8 April 1992Ilko Angelov ATANASOV was born on 21 July 1996Zlatka Angelova ATANASOVA was born on 12 July 1987Toshko Angelov ATANASOV was born on 26 June 1988Angel Toshkov ANGELOV was born on 7 April 2009Nikolay Nelev NIKOLAEV was born on 8 November 2007Zyumbyulka Radomirova SAVOVA was born on 19 January 1985Mihail Yuseinov ASANOV was born on 22 April 1981Rumen Zyumbyulkov SAVOV was born on 25 April 2007Ridvan Zyumbyulkov SAVOV was born on 26 July 2003Asen Zyumbyulkov SAVOV was born on 17 January 2005Dragan Zyumbyulkov SAVOV was born on 23 May 2002
Full & Egal Universal Law Academy