Communicated on 2 October 2020
Published on 19 October 2020
FOURTH SECTION
Application no. 30782/16
Veska Atanasova SIMONOVA
against Bulgaria
lodged on 25 May 2016
STATEMENT OF FACTS
1. The applicant, Ms Veska Atanasova Simonova, is a Bulgarian national who was born in 1972 and lives in Kuklen. She is represented before the Court by Ms D. Spilkova, a lawyer practising in Plovdiv.
2. The facts of the case, as submitted by the applicant and as appearing from the materials submitted by her, may be summarised as follows.
3. The applicant is a single mother. She has seven children, born in, respectively, 1996, 1997, 1999, 2003, 2006, 2008 and 2011. At the relevant time, five of the children were still minor.
4. In 2007 the applicant, along with another person, acquired two thirds of a plot of 793 square metres of agricultural land near Kuklen. In 2009 the two of them, along with the owner of the remaining one third of the plot, obtained a building permit to erect a service building measuring up to thirty-five square metres in area. The building was completed on an unknown later date, and the applicant and her children began living in it.
5. Following complaints in 2013 by the owner of a neighbouring plot that part of the building stood on his land, in March 2014 a municipal commission inspected the site and noted, in particular, that the building had been put up on land belonging to someone else, that no documents had been drawn up to certify the construction’s conformity with the building regulations, and that the building was being used as accommodation even though when seeking permission to erect it the applicant had declared that it would be used for agricultural purposes.
6. Based on those findings, on 23 May 2014 Kuklen’s deputy-mayor ordered that the building be demolished.
7. The applicant sought judicial review, and in a final judgment of 16 December 2014 the Plovdiv Administrative Court annulled the demolition order (see реш. № 2804 от 16.12.2014 г. по адм. д. № 1737/2014 г., АдмС-Пловдив). It noted that the identification number of the plot on which the building stood according to the minutes drawn up by the commission which had inspected the site was that of the plot owned by the applicant rather than the neighbouring one. No subsequent efforts had been made to elucidate the point. By issuing the demolition order without establishing, if need be of his own motion, the building’s precise location, the deputy-mayor had breached the rules of procedure.
8. Following a further complaint by the owner of the neighbouring plot, on 21 January 2015 a municipal commission again inspected the site and noted, in particular, that the building had been put up on land belonging to someone else, in breach of the building permit obtained by the applicant, and that no documents had been drawn up to certify the construction’s conformity with the building regulations.
9. The following day, 22 January 2015, the municipal authorities informed the social services of the situation, with a view to their taking steps to assist the applicant and her children.
10. On 4 March 2015 Kuklen’s deputy-mayor again ordered that the building be demolished. He briefly noted that it was beyond doubt that it had been erected without the requisite building papers.
11. The applicant sought judicial review.
12. In a final judgment of 25 November 2015 the Plovdiv Administrative Court upheld the deputy-mayor’s order vis-à-vis the applicant (see реш. № 2383 от 25.11.2015 г. по адм. д. № 815/2015 г., АдмС-Пловдив). It noted that the building permit obtained by the applicant had been for a building standing on her plot rather than on the neighbouring one, whereas, according to the evidence obtained in the course of the proceedings, the building stood almost entirely on the neighbouring plot. It was therefore unlawful and subject to demolition. The mayor’s order, being meant to combat illegal construction, pursued a proper aim. In as much as the applicant claimed that she was the mother of several children, it was to be noted that the social services had been invited to intervene as early as January 2015 (see paragraph 9 above).
13. In February 2016 the applicant sought reopening of the judicial review proceedings. On 14 June 2016 the Supreme Administrative Court refused her request (see реш. № 7099 до 14.06.2016 г. по адм. д. № 1458/2016 г., ВАС, II о.).
14. On an unspecified date in 2017 the demolition order was executed, and the roof and one of the walls of the building were pulled down. According to the applicant, this happened without the requisite formalities having been observed.
Relevant domestic law
15. The statutory provisions and case-law relating to the issuing and execution of orders for the demolition of buildings constructed without permit have been set out in detail in Ivanova and Cherkezov v. Bulgaria (no. 46577/15, §§ 25-40, 21 April 2016) and in Aydarov and Others v. Bulgaria ((dec.), no. 33586/15, §§ 41-43, 2 October 2018).
16. In this case, it should additionally be noted that in its case-law under Article 294 of the Code of Administrative Procedure – which provides for judicial review, at one level of court, of the decisions and actions of the authorities enforcing administrative decisions (see Ivanova and Cherkezov, cited above, § 35) – the Plovdiv Administrative Court has held, in line with the traditional position of the Bulgarian administrative courts in this domain (ibid., §§ 36-40), that the demolition of a building which is someone’s only home owing to irregularities is by definition not a disproportionate interference with the rights enshrined by Article 8 of the Convention (see реш. № 1711 от 24.07.2018 г. по адм. д. № 1878/2018 г., АдмС‑Пловдив). That court appears to have started assessing the proportionality of such measures in the light of the individual circumstances of the people concerned by them in proceedings under Article 294 of the Code only in late 2018 (see реш. № 2654 от 13.12.2018г. по адм. д. № 2438/2018 г., АдмС-Пловдив; реш. № 1522 от 11.07.2019 г. по адм. д. № 513/2019 г., АдмС-Пловдив; реш. № 1524 от 11.07.2019 г. по адм. д. № 485/2019 г., АдмС-Пловдив; and реш. № 2589 от 11.12.2019 г. по адм. д. № 512/2019 г., АдмС-Пловдив).
COMPLAINT
17. The applicant complains under Article 8 of the Convention that the demolition of the building in which she lived with her seven children was a disproportionate interference with her right to respect for her home, in particular owing to the absence of any arrangements for accommodating the family.
QUESTIONS TO THE PARTIES
Has there been interference with the applicant’s right to respect for her home, within the meaning of Article 8 § 1 of the Convention? If so, was that interference “necessary in a democratic society” within the meaning of Article 8 § 2 (see Ivanova and Cherkezov v. Bulgaria, no. 46577/15, §§ 52-61, 21 April 2016)?
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