Communicated on 8 October 2015
FOURTH SECTION
Application no. 46577/15
Mavruda Dimitrova IVANOVA and Ivan Yankov CHERKEZOV
against Bulgaria
lodged on 15 September 2015
STATEMENT OF FACTS
1. The applicants, Ms Mavruda Dimitrova Ivanova and Mr Ivan Yankov Cherkezov, are Bulgarian nationals who were born in 1959 and 1947 respectively and live in Sinemorets. They are represented before the Court by Ms A. Kachaunova, a lawyer practising in Sofia.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The two applicants have lived as a family since 1989. At that time, they resided in the town of Burgas.
4. In 1999, the first applicant acquired from her mother part of a plot of land in the village of Sinemorets, at the Black Sea coast. After the death of her mother, the first applicant inherited a further part of the plot, of which she now owns 77.5%. On the plot, there existed a dilapidated one-storey cabin.
5. In 2004 the second applicant, who had been employed as a driver, suffered a myocardial infraction and was no longer able to work. In 2005 he was recognised as a disabled person and has since then been in receipt of a disability pension. At about that time, the two applicants moved from Burgas to Sinemorets, allegedly because they were no longer able to afford living in Burgas. They submit that they put all of their savings into the reconstruction of the cabin, converting it into a solid one-storey brick house. They did not apply for a building permit. The reconstruction took place in 2004-05. Since that time, the two applicants have lived in that house. In 2006, two of the other co-owners of the plot formally notified the first applicant that they did not agree with the reconstruction.
6. For most of the year, the first applicant is unemployed. Her only source of income comes from servicing vacation houses in Sinemorets during the late spring and summer.
7. In September 2011, prompted by some of the other co-owners of the plot, municipal officers inspected the house and found that it had been constructed illegally. They notified their findings to the first applicant in October 2011. In July 2012 the municipality brought the matter to the attention of the regional office of the National Building Control Directorate. In October 2012 that office informed the first applicant that proceedings had been started for the demolition of the house. In November 2012 officers of the Directorate inspected the building and likewise found that it was illegal as it had been constructed without a building permit.
8. In a decision of 30 September 2013 the head of the regional office of the Directorate noted that the house had been constructed in 2004-05 without a building permit, in breach of section 148(1) of the Territorial Organisation Act 2001, and was as such subject to demolition under section 225(2)(2) of that Act (see paragraphs 15 and 16 below). The first applicant had not put forward any arguments or evidence to show otherwise. The house was therefore to be demolished. Once the order had become final, the first applicant was to be invited to comply with it voluntarily. If she failed to do so in good time, the competent authorities would enforce it at her expense.
9. The first applicant sought judicial review of that decision.
10. In a judgment of 10 December 2014, the Burgas Administrative Court dismissed the claim. It held that the demolition order was lawful. The evidence clearly showed that the applicants had constructed the house in 2004-05 without obtaining a building permit, which under section 225(2)(2) of the 2001 Act (see paragraph 16 below) was grounds for its demolition. The house could not be exempted from demolition under paragraph 16 of the transitional provisions of the 2001 Act or paragraph 127 of the transitional and concluding provisions of a 2012 Act for the amendment of the 2001 Act (see paragraphs 17 and 18 below).
11. The first applicant appealed on points of law. She submitted, inter alia, that the house was her only home and that its demolition would cause her considerable difficulties as she would be unable to acquire another place to live.
12. In a final judgment of 17 March 2015 (реш. № 2900 от 17.03.2015 г. по адм. д. № 1381/2015 г., ВАС, II о.), the Supreme Administrative Court upheld the lower court’s judgment. It agreed that the house was illegal as it had been constructed without a building permit, that it was as such subject to demolition, and that, having been constructed in 2004-05, it could not be legalised under the transitional amnesty provisions of the 2001 Act or the 2012 Act for its amendment.
13. In a notice issued on 15 April 2015 the regional office of the National Building Control Directorate invited the first applicant to comply voluntarily with the demolition order within fourteen days of receiving the notice. It advised her that failure to do so would prompt it to enforce the order at her expense.
14. As the first applicant did not comply with the notice, on 6 August 2015 that office made a call for tenders from private companies willing to carry out the demolition; the deadline for submitting such offers was 15 September 2015.
B. Relevant domestic law
15. Section 148(1) of the Territorial Organisation Act 2001 provides that buildings may only be constructed if they have been authorised in accordance with the Act.
16. Section 225(2)(2) of the Act provides that a building or a part of a building constructed without a building permit is illegal and subject to demolition. The Supreme Administrative Court has held that the building control authorities do not have discretion in relation to the demolition of illegally constructed buildings, that the only course of action lawfully open to them in such cases is to order the demolition of those buildings, and that in such cases those authorities are not bound by the general requirement of proportionality laid down in Article 6 of the Code of Administrative Procedure 2006, because it only applies to situations in which the administrative authorities have discretion (see реш. № 4035 от 22.03.2013 г. по адм. д. № 632/2013 г., ВАС, II о.). It has also held that under the Territorial Organisation Act 2001 it is irrelevant whether the demolition of an illegally constructed building would cause harm to those concerned (see реш. № 13426 от 10.11.2014 г. по адм. д. № 10090/ 2014 г., ВАС, II о.).
17. Paragraph 16(1) of the Act’s transitional provisions says that buildings constructed before 7 April 1987 without the requisite papers but not in breach of the building and zoning regulations applicable at the time of their construction are not subject to demolition. Paragraph 16(2) provides that buildings constructed between 8 April 1987 and 30 June 1998 but not legalised before the Act’s entry into force on 31 March 2001 are likewise not subject to demolition if they were not in breach of the building and zoning regulations applicable at the time of their construction and were declared by their owners before the end of 1998. Paragraph 16(3) provides the same with respect to buildings whose construction has started after 30 June 1998, but only if their owners have declared them before the competent authorities within six months after the Act’s entry into force.
18. Paragraph 127(1) of the transitional and concluding provisions of a 2012 Act for the amendment of the 2001 Act provides that buildings constructed before 31 March 2001 without the requisite papers but tolerable under the regulations applicable at the time of their construction or under the current regulations are not subject to demolition either.
COMPLAINTS
19. Both applicants complain under Article 8 of the Convention that the enforcement of the demolition order would be in breach of their right to respect for their home. In particular, they complain that in issuing and upholding that order the administrative authorities and the courts did not take into account that the applicants do not have another place to live and cannot financially afford one, and that the second applicant is disabled.
20. The first applicant further complains under Article 1 of Protocol No. 1 that the demolition of the house would be a disproportionate measure because in issuing and upholding the demolition order the administrative authorities and the courts did not take into account her and the second applicant’s health and financial situation, or the nature of the illegality tainting the construction.
21. Lastly, both applicants complain under Article 13 of the Convention that they did not have an effective domestic remedy in respect of their complaint under Article 8, because under Bulgarian law all arguments relating to their health and vulnerable situation, including the lack of enough means to secure another place to live, or the nature of the illegality tainting the construction, were irrelevant to the lawfulness of the demolition order.
QUESTIONS TO THE PARTIES
1. Is the impending demolition of the house inhabited by the two applicants since 2005 necessary in terms of Article 8 § 2 of the Convention? In particular, were the applicants able to have the proportionality of the measure reviewed by an independent tribunal in the light of the relevant principles under Article 8 of the Convention (see, mutatis mutandis, McCann v. the United Kingdom, no. 19009/04, § 50, ECHR 2008; Ćosić v. Croatia, no. 28261/06, § 22, 15 January 2009; and Brežec v. Croatia, no. 7177/10, § 45, 18 July 2013)?
2. Is the demolition necessary to control the use of property in accordance with the general interest, within the meaning of Article 1 of Protocol No. 1? In particular, will it impose an excessive individual burden on the first applicant?
3. Do the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention?
Full & Egal Universal Law Academy