KATELIEV v. BULGARIA

FOURTH SECTION

DECISION

Application no. 18594/06
Kosyu Todorov KATELIEV
against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 25 June 2013 as a Chamber composed of:

Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Françoise Elens-Passos, Section Registrar,

Having regard to the above application lodged on 4 April 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Kosyu Todorov Kateliev, is a Bulgarian national, who was born in 1953 and lives in Varna. He was represented before the Court by Mr M. Ekimdzhiev and Ms G. Chernicherska, lawyers practising in Plovdiv, and then by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant’s house was built in the first half of the 20th century in Varna. Until 2005, another small building was attached to its side wall, the length of the wall that functioned as a party wall measuring about 5 metres. On the part of the side wall that was not adjoining the other building, the applicant’s house had several windows, including those of the two bedrooms, and a balcony.

1. Construction works in proximity to the applicant’s house

5. On 16 February 2004 the local development plan was amended to permit the construction of a new four-storey building attached to the side of the applicant’s house. The owners obtained all necessary planning permissions and building permits.

6. On 10 January 2005 the construction of a new building began on the neighbouring plot, replacing the old building attached to the applicant’s house, which was demolished. However, as the new building was larger, the length of the party wall shared with the applicant’s house now measured 7 metres. As a result, the house’s bedroom windows were blocked by a blind wall of the new building and the balcony was destroyed.

7. After an enquiry by the applicant, he was informed by the municipality and the building control authorities that he had been notified of an intended amendment to the local development plan, envisaging the construction of the new building, and had not objected to it. The applicant contested this fact, arguing that his signature attesting to the fact that he had received the notification had been forged.

8. In October 2006 the new building was finished and the municipality authorised its use.

9. Following that and because of the damage caused to his house, the applicant and his family moved out to another home.

2. Appeal against the neighbours’ building permit

10. On 1 June 2005 the applicant appealed against his neighbours’ building permit and sought an order that the construction works be ceased. On 9 June 2005 the building control authorities rejected the appeal as inadmissible. The applicant applied for judicial review to the Varna Regional Court.

11. On 22 August 2005 one of the owners of the neighbouring plot asked the Regional Court to authorise the preliminary execution of the building permit, stating that the suspension of the works would inflict contractual penalties and other losses on him. In a final decision issued on the same date the Regional Court authorised the continuation of the construction works, reasoning that their interruption would entail substantial losses for the owners of the plot.

12. By a final decision of 23 May 2006 the Supreme Administrative Court rejected the applicant’s application for judicial review as inadmissible. It held that the applicant had no standing to appeal against the building permit, as it concerned property which did not belong to him.

3. Appeal against the amendment to the local development plan

13. In the meantime, on 13 May 2005 the applicant applied for the judicial review of an order of 16 February 2004 of the Varna deputy mayor, whereby the amendment to the local development plan of the area envisaging the construction of the new building had been approved. The applicant sought to have the construction works ceased pending the resolution of the dispute.

14. On 28 September 2005 the Supreme Administrative Court dismissed the applicant’s application for a suspension order as inadmissible, reasoning that his appeal had suspended the implementation of the local development plan by virtue of law.

15. On an unspecified date one of the owners of the neighbouring plot asked the court to authorise the preliminary implementation of the approved layout pending the outcome of the applicant’s appeal. By a final decision of 5 December 2005 the Regional Court granted the request, reasoning that a delay in implementation would entail losses for the owners of the building.

16. By a final judgment of 20 May 2010 the Regional Court quashed the amendment to the local development plan. It held, in the first place, that it had not been established that the applicant had been informed of the intended amendment (a name different from his had been indicated on the notification papers) and therefore his appeal had been submitted in time. The court noted the disagreement amongst the experts appointed by it as to whether the side of the applicant’s house was officially considered a blind wall, and hence, whether the legislation governing building works had been violated. Without adjudicating on this matter, it held that the order for the amendment did not contain any reasons, which made it impossible to assess its lawfulness. In particular, it was not explained why it was necessary to amend the existing plan. Furthermore, as the applicant had not been duly notified of the amendment, he had not had the opportunity to object to it, which was another violation of the legal requirements.

17. Although the Regional Court’s judgment was not subject to appeal, the owners of the neighbouring building tried to challenge it before the Supreme Administrative Court, which rejected their appeal as inadmissible on 25 October 2011.

4. Other complaints to the national authorities

18. From the very beginning of the construction works on the neighbouring plot the applicant submitted numerous complaints to the building control authorities, which, however, refused to intervene, pointing out that his neighbours had been issued with all necessary planning permissions and building permits and, later on, that the courts had allowed the building works to be carried out.

19. The applicant also complained to the Ministry of Public Works, the Ombudsman, the National Assembly, the President of Bulgaria, the Varna municipality and other bodies, which all refused to intervene and on most occasions referred the matter back to the building control authorities.

5. Actio negatoria

20. On an unspecified date in 2007 the applicant brought an actio negatoria against the owners of the neighbouring building. On 5 December 2008 the Varna District Court dismissed the action. However, in a judgment of 11 May 2010 the Varna Regional Court reversed and allowed the claim, ordering the neighbours to demolish their building. It held, on the basis of two expert reports, that the amendment to the local development plan had breached the applicable legislation. As a result, the newly constructed building had rendered useless two of the applicant’s rooms and had had a detrimental effect on the living conditions in his house. The court held that the violation of the applicable legal provisions had been so serious that it had rendered null and void both the amendment to the local development plan and the building permit.

21. One of the defendants filed an appeal on points of law, pointing out that his wife had not been summoned as a party to the proceedings, although she was a co-owner.

22. In a judgment of 29 June 2011 the Supreme Court of Cassation quashed the judgment of 11 May 2010 and remitted the case to the Regional Court for fresh examination. It established that the appellant’s wife had been an interested party to the proceedings and that it had been necessary to ensure the participation of all interested parties. It further found that it could be inferred from the case file that there were other owners of the building who had not been summoned to the proceedings.

23. After the case was remitted, the applicant identified all owners of the building and notified the Regional Court of their names and addresses. A hearing was scheduled for 25 June 2012. The Court has not been informed of the developments in the proceedings after that date.

6. Criminal proceedings against the applicant and the owner of the neighbouring plot and prohibition on the applicant leaving the town

24. On an unspecified date in 2005 the applicant complained to the prosecution authorities that the notification sent to him concerning the amendments to the local development plan had been signed on his behalf by an unknown person. Criminal proceedings for forgery were opened against one of the owners of the neighbouring plot, but the investigation was subsequently directed against the applicant. On 23 December 2005 he was charged with perjury, in that he had lied to the investigator when declaring that he had not himself signed the document in question. The applicant was prohibited from leaving his place of residence without permission.

25. On 26 June 2008 the district prosecutor terminated the criminal proceedings against the applicant and cancelled the prohibition on leaving the town. It is unclear whether any investigation against the owner of the neighbouring plot remained underway.

B. Relevant domestic law and practice

1. Actio negatoria

26. Section 50 of the Property Act 1951 (Закон за собствеността) provides that the owner of a piece of immovable property cannot carry out actions which impede, in more than the usual way, the use of neighbouring properties.

27. Under section 109(1) of the same Act, an owner may request the cessation of any “unjustifiable activity” which hinders him in the exercise of his rights. In an interpretative decision (no. 31 of 6 February 1985) the former Supreme Court explained that such a claim (actio negatoria) provided protection against unjustified interference – whether direct or indirect – which might prevent an owner from using his property to the fullest extent. The claim could be used to declare such interference unlawful and enjoin the persons concerned to stop it and remove its effects. The Supreme Court held, in particular, that in cases where buildings have been constructed on a neighbouring property without the necessary documents and permits or in contravention thereof, the owner was not obliged to tolerate any restrictions on his right to use and enjoy his property which such a situation might cause. Thus, the actio negatoria could be used to obtain an order to demolish a building. Lastly, the Supreme Court held that unlike decisions of the building control authorities, the courts’ judgments pursuant to such claims determined with finality disputes between the aggrieved owner and the perpetrator of the interference, and could be enforced as a matter of right.

28. In judgment no. 1291 of 16 November 1992 (case no. 1038/1992) the former Supreme Court of Bulgaria, examining an actio negatoria, held that the very fact of construction in breach of the relevant rules and legal provisions amounted to an impermissible interference with the neighbour’s right to property, which did not thus need to be proven any further. In judgments no. 7 of 24 February 2000 (case no. 1440/1999) and no. 43 of 4 March 2009 (case no. 4983/2007) the Supreme Court of Cassation held in addition that an actio negatoria could be allowed even where the construction or reconstruction works in the neighbouring property had been carried out in accordance with the relevant construction permits, as in issuing them the administrative authorities had not been under an obligation to take into account the neighbour’s interests.

29. In judgment no. 350 of 5 August 2010 (case no. 1269/2009), the Supreme Court of Cassation allowed an actio negatoria brought by the owners of a house whose neighbours had constructed a building in contravention of the construction permit granted, thus occupying a portion of the claimants’ plot and blocking the light. The Supreme Court of Cassation, finding that the situation hindered the effective enjoyment of the claimants’ right to use and enjoy their property, ordered the neighbours to demolish their building.

30. In judgments no. 40 of 31 January 2011 (case no. 296/2010) and no. 46 of 26 May 2011 (case no. 438/2010) the Supreme Court of Cassation also ordered, in actions under section 109 of the Property Act, the demolition of unlawfully constructed buildings.

2. Claims under the State and Municipalities Responsibility for Damage Act

31. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди, “the SMRDA”) provides that the State and municipalities are liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of an administrative activity. The liability for damages of the municipalities was introduced following legislative amendments of July 2006.

32. The domestic courts have applied this provision in a number of cases concerning the prevention of the effective exercise of the right to use and enjoy property caused by unlawful construction works in neighbouring plots authorised by the authorities. In judgment no. 633 of 19 November 2009 (case no. 2032/2008), the Supreme Court of Cassation upheld a lower court’s judgment allowing such a claim against the building supervision authorities and the Ministry of Public Works, finding that the construction works on a plot neighbouring that of the claimant, although duly authorised by the defendants, had contravened the relevant construction regulations and had, as a result, infringed the claimant’s right to light. The Supreme Court pointed out that the authorities’ liability was engaged even where none of their decisions related to the disputed construction works had been expressly found to be null and void; it was sufficient that the construction works were in breach of the statutory requirements.

33. In another judgment, no. 475 of 9 January 2012 (case no. 1922/2010), the Supreme Court of Cassation awarded damages to a claimant in a similar situation, pointing out that he had on numerous occasions alerted the building control authorities of the unlawfulness of the construction works on the neighbouring plot. Those authorities had not fulfilled their obligation to order the cessation of the unlawful construction works and have the neighbours’ building demolished, which had resulted in damage to the claimant’s house.

34. In another case (see judgment no. 77 of 13 May 2005, case no. 234/2004, the judgment has entered into force), the Plovdiv Court of Appeal awarded damages to claimants whose neighbours had erected a building without the necessary construction permits. The construction had subsequently been retrospectively approved by the municipal authorities, but the approval order had been annulled by the courts. The Court of Appeal took note of the fact that even following these developments the neighbours’ building was still standing and its demolition had been neither ordered, nor undertaken, and therefore held that the municipal authorities had failed in their obligations to protect the claimants’ property.

35. In a similar situation, the Veliko Tarnovo Court of Appeal also awarded damages (judgment no. 361 of 15 January 2009, case no. 606/2008, the judgment has entered into force). In that case, the claimant’s property had been earmarked for expropriation and on that basis the municipal authorities had authorised the construction of a new building in its immediate proximity. However, the intended expropriation had subsequently been abandoned, which had forced the claimant to remain in her house, whose value had already seriously depreciated and which had also been damaged by the construction works close to it.

COMPLAINTS

36. The applicant complained under Article 1 of Protocol No. 1 and Articles 8 and 13 of the Convention that by authorising unlawful construction works on the neighbouring plot and by failing to take any action during and after the erection of his neighbours’ building, the authorities had violated his rights to the peaceful enjoyment of his property and to respect for his home, personal and family life, and that he had had no effective remedies in respect thereof.

37. The applicant also complained under Article 6 § 1 of the Convention that he had been denied effective access to court because the national courts had not examined his appeal against his neighbours’ building permit (see paragraph 12 above). In addition, the applicant complained under Article 6 § 1 that the building control authorities had failed to implement the decision of 28 September 2005 of the Supreme Administrative Court (see paragraph 14 above).

38. Lastly, in a letter of 7 October 2010 the applicant complained that the prohibition on leaving his place of residence without permission imposed on him in the period from 23 December 2005 to 27 June 2008 had been in violation of Article 2 of Protocol No. 4.

THE LAW

A. Complaints under Article 1 of Protocol No. 1 and Articles 8 and 13 of the Convention

1. Preliminary issue

39. Following the present application’s communication, by letter of 26 May 2012 the applicant’s wife and son, Ms Daniela Ivanova Yotova and Mr Georgi Hristov Zahariev, who had lived with the applicant at the time of the events in question, expressed their wish to join his complaint under Article 8 of the Convention.

40. The Court, however, considers that it is unnecessary to decide on whether it is permissible for them to join at this stage, as, for the reasons set out below, it considers the complaint under Article 8 inadmissible.

2. Admissibility

41. The Government urged the Court to dismiss the complaints under Article 1 of Protocol No. 1 and Articles 8 and 13 of the Convention as inadmissible, pointing out that the applicant had failed to exhaust available domestic remedies. They noted, firstly, that the proceedings initiated pursuant to the applicant’s actio negatoria (see paragraphs 20-23 above) were still pending and that they could effectively lead to restitutio in integrum. The Government pointed out, secondly, that the applicant had failed to bring an action for damages under the SMRDA against the building control authorities, the Varna municipality or any other bodies he considered responsible.

42. The applicant disputed these arguments. He pointed out that even in the event that he was successful in the actio negatoria proceedings, the enforcement of the courts’ decisions would be costly and cumbersome and the defendants would refuse to comply. He pointed out in addition that the proceedings were already lengthy and would take additional time.

43. The applicant considered that he had no case under the SMRDA because his neighbours’ construction works had had all necessary planning permissions and building permits and he had only obtained the annulment of the amendment to the local development plan, not the building permit. He argued in addition that he had no chance of establishing the direct and proximate link required by law between the damage to his house and any decisions, actions or inactions of the authorities, and that in any event such an action could not lead to the termination of the breach of his rights.

44. The applicant indicated that he had on numerous occasions sought the assistance of the administrative authorities, who had been in a position to react in a quicker and more effective manner. However, they had refused to intervene. Lastly, as concerns domestic remedies, the applicant pointed out that he had not been able to challenge his neighbours’ building permit.

45. The Court highlights that, in accordance with Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. The purpose of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). Thus, the complaint submitted to the Court must first have been made before the appropriate national courts. The rule of exhaustion of domestic remedies requires an applicant to have normal recourse to remedies within the national legal system which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Micallef v. Malta [GC], no. 17056/06, § 55, ECHR 2009).

46. In the case at hand, the Government argued, in the first place, that the applicant’s actio negatoria, which was still pending, represented an effective remedy which needed to be exhausted, as it could lead to restitutio in integrum. The applicant objected that the enforcement of any final judgment in his favour in these proceedings would be complicated and that the proceedings had already been very lengthy.

47. The Court notes that an actio negatoria is aimed at stopping any “unjustifiable activity” hindering the exercise of the claimant’s property rights. It can be used to enjoin the persons responsible for that activity to stop it and to remove its effects, including by requiring the defendant to demolish a building (see paragraph 27 above). The remedy has been successfully used in numerous cases similar to the present one (see paragraphs 28-30 above) and, moreover, the Varna Regional Court allowed such an action in the present applicant’s case, although its decision was subsequently quashed and the proceedings are still pending (see paragraphs 20-23 above).

48. In view of the above, the Court considers that the remedy in question can effectively lead to a court order enjoining the owners of the building neighbouring that of the applicant and blocking two of his windows to demolish their building. This, as pointed out by the Government, would lead to restitutio in integrum and the cessation of the alleged breaches of the applicant’s rights. The Court is not prepared at this stage to discuss the applicant’s argument that the owners of the neighbouring building would refuse to comply with any court order given in the actio negatoria proceedings and render the remedy ineffective. It notes that Bulgarian law provides for mechanisms by which final court judgments may be enforced in respect of private parties and that it is not called upon to review their effectiveness in abstracto.

49. The applicant argued, in addition, that the remedy in question was ineffective because the proceedings had already taken a lengthy period of time and are still pending. However, the Court notes that the applicant only brought an action in 2007, whereas the construction works hindering the exercise of his property rights started towards the beginning of 2005 (see paragraphs 6 and 20 above). In addition, the Varna Regional Court’s judgment allowing the claim was invalidated because the interested parties had not been duly summoned for the proceedings. It had been the applicant’s task to identify all such parties (see paragraphs 22 and 23 above). Thus, the Court cannot conclude that the delays and the remedy’s failure, up to now, to lead to any effective redress, are imputable to the authorities.

50. Accordingly, the Court concludes that the remedy in question is effective, in so far as it can provide for restitutio in integrum and the termination of the breach of the applicant’s rights as a result of acts of private parties.

51. As to any pecuniary or non-pecuniary damage suffered by the applicant in the meantime, the Court is of the view that the second remedy suggested by the Government, namely an action for damages against the building control authorities or the Varna municipality under the SMRDA, could in fact provide effective redress on the basis of these authorities’ decisions to authorise the construction works and/or their failure to order their cessation once they were alerted to the damage caused to the applicant’s house. This remedy is independent from the possibility of seeking damages from the neighbours themselves. The applicant has not brought an action under the SMRDA.

52. The Court notes that the State and, as of 2006, the municipalities, are liable under the SMRDA for damage caused to individuals through unlawful decisions, actions or omissions of their bodies and officials (see paragraph 31 above). The applicant argued on this basis that his claim for damages was not actionable, as in his case there had been no unlawful decisions, actions or omissions. However, the Court notes that the applicant obtained the invalidation of the amendment to the local development plan, on the basis of which the neighbours’ building had been constructed (see paragraphs 16-17 above), which could imply that all the subsequent permits were issued unlawfully. Moreover, the Court refers to the reasoning of the Supreme Court of Cassation in a similar case that it was not necessary for a claimant to show that a decision, action or inaction of the authorities had been null and void and it was sufficient to establish that the construction works had been carried out in breach of the relevant requirements (see paragraph 32 above).

53. The applicant argued, secondly, that in proceedings under the SMRDA he would not be able to establish a causal link between the authorities’ behaviour and the damage caused to him. The Court does not accept this argument. It notes, in the first place, that in the absence of any attempt on the part of the applicant to employ the remedy it is pure speculation to envisage what the courts would have found. In addition, the Court observes that the domestic courts have awarded damages in cases similar to that of the applicant on a number of occasions, finding, in particular, that the authorities’ decisions to authorise unlawful construction, or their inactivity in the face of unauthorised construction, had effectively led to the damage to the claimants’ properties (see paragraphs 32-35 above).

54. In view of the above, the Court concludes that the applicant had at his disposal effective remedies he failed to make use of. He has brought an actio negatoria, which is still pending and which might lead to restitutio in integrum. In addition to that claim, he could bring an action for damages under the SMRDA so as to obtain compensation from the authorities for their contribution to the prolonged inability for him to use his house. As already mentioned, this is independent of any claims for damages he may bring against his neighbours.

55. The Court does not consider that in addressing the administrative authorities in the case the applicant used a remedy that was effective and sufficient, given that from the very beginning he faced refusals on their part to intervene (see paragraph 18 above; contrast Mileva and Others v. Bulgaria, nos. 43449/02 and 21475/04, §§ 25 and 81, 25 November 2010, where the applicants obtained an order from the building control authorities prohibiting the use of a computer club causing a nuisance). Moreover, as already discussed, it does not appear that the judicial remedies mentioned above had similarly feeble chances of success; on the contrary, the Court has already found that, in combination, they could lead to effective redress.

56. The Court considers that the above considerations are valid for all complaints under examination here, namely under Article 1 of Protocol No. 1 and Articles 8 and 13 of the Convention, as they all concern the construction of the applicant’s neighbours’ building, the effects it had on the applicant’s house and the authorities’ behaviour in the situation (see paragraph 36 above).

57. It follows that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Remaining complaints

58. The applicant raised a number of other complaints under Article 6 § 1 of the Convention and Article 2 of Protocol No. 4 (see paragraphs 37-38 above).

59. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

60. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

              Françoise Elens-PassosIneta Ziemele
RegistrarPresident

 

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