Published on 11 December 2023
THIRD SECTION
Application no. 4711/20
Elka Ivanova TISHKINA
against Bulgaria
lodged on 15 January 2020
communicated on 23 November 2023
SUBJECT MATTER OF THE CASE
The application concerns damage caused to the applicant’s house by long‑lasting illegal mining beneath it, conducted by private persons.
The applicant’s house is situated in Pernik, a mining town. As reported by the applicant, illegal mining started in 2010 and continued for several years. Groups of people entered an old coal mine through abandoned bunkers in a neighbouring plot, digging tunnels below several houses, including that of the applicant. The latter and her mother (who passed away in 2013 and was inherited by the applicant) filed numerous complaints with the authorities, who, in turn, alerted the company operating a mine nearby and the law enforcement authorities. The entrances were filled in with soil on several occasions, but nonetheless were reopened and the illegal mining continued. In 2013, out of fear for her health and life, the applicant left the house, which had started having cracks. In July 2015 a massive landslide occurred which seriously damaged several houses in the district, including that of the applicant. Following the landslide, the mayor of Pernik announced an emergency, evacuated the affected people, and ordered measures to secure the illegal tunnels – destruction of the bunkers and sealing the entrances with concrete.
In 2017 the applicant filed a claim for damages against the Pernik Municipality arguing that she had suffered moral and pecuniary damage due to the mayor’s failure to protect in due time her property against the illegal mining. She relied on section 90(5) of the Underground Resources Act (“the URA”), according to which the respective mayor is responsible for the control over mining activities without а concession or а permit. The Pernik Administrative Court found that the applicant’s house had been damaged beyond repair and that the damage was the direct result of the illegal mining. However, the domestic court dismissed the claim as unfounded, holding that the mayor bore no responsibility as the area was part of a mining concession granted to a private company, thus section 90(5) of the URA was not applicable. It went on to say that even without having been obliged, the mayor had taken measures, such as declaring emergency or imposing small fines on the perpetrators. Its decision was upheld in a final judgment of the Supreme Administrative Court of 16 July 2019.
The applicant complains under Article 1 of Protocol No. 1 and under Article 8 of the Convention of a violation of her right to peaceful enjoyment of possessions and of her right to respect for her home. She argues that the authorities had an obligation to stop the illegal mining, but failed, and points out that she has received no compensation for the destruction of her house. She further complains under Article 13 in relation to Article 8 of the Convention and Article 1 of Protocol No. 1 that she had no effective domestic remedy for the alleged violations of her rights.
QUESTIONS TO THE PARTIES
1. Were the authorities under a positive obligation under Article 1 of Protocol No. 1 to take measures to protect the applicant’s property against the damage caused by illegal mining conducted by private parties (see, mutatis mutandis, Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004‑XII, Kolyadenko and Others v. Russia, nos. 17423/05 and 5 others, § 213, 28 February 2012, and Dabić v. Croatia, no. 49001/14, §§ 50-52, 18 March 2021)?
What was the legislative and administrative framework in place to control the illegal mining activities in the area and were the applicable rules effectively implemented in the present case? Have the respective authorities complied with their obligation to take action in order to protect the applicant’s property?
2. Given in particular the applicant’s claim that she experienced fear and distress as a result of having lived above an illegal mine until she left her house in 2013 and that she has not since been able to use the house, has there been a breach of the applicant’ right to respect for her home under Article 8 of the Convention?
3. Has there been a violation of the applicant’s rights under Article 13 read in conjunction with Article 8 of the Convention and/or Article 1 of Protocol No. 1 to the Convention?
The parties are requested to present all documents related to the domestic proceedings including claims, counterclaims, protocols of hearings and procedural decisions of the domestic courts.
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