FIFTH SECTION
DECISION
Application no. 58043/10
Vladimir Slavov VLADIMIROV
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 25 September 2018 as a Chamber composed of:
Angelika Nußberger, President,
Yonko Grozev,
André Potocki,
Síofra O’Leary,
Mārtiņš Mits,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 23 September 2010,
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 Vladimir Slavov Vladimirov, is a Bulgarian national who was born in 1945 and lives in Varna. He was represented before the Court by Mr V. Bachvarov, a lawyer practising in Varna.
2. The Bulgarian Government (“the Government”) were represented by their Agent, Ms I. Nedyalkova, of the Ministry of Justice.
A. The circumstances of the case
1. Background
3. In 1972 the relevant authorities officially recorded a landslide that had occurred in a coastal area, known for its prized beaches and tourist flow, and stretching over 5 hectares and located about 20 kilometres from Varna. Landslide activity affecting soil lying up to 40 metres below the surface has recurred over the years.
2. The plot of land bought by the applicant and related judicial proceedings
4. The applicant bought a plot of agricultural land in 1983 situated in the area affected by the landslide – specifically, next to the Trifon Zarezan bus stop, which in turn was not far from a holiday resort (“the Riviera resort”). In 1995 he applied for and obtained the reclassification of that land, namely from “agricultural” to “zoned for construction”. In December the same year Varna Municipality’s chief architect issued a permit to the applicant for the construction of a hotel and a restaurant on that plot.
5. On 26 July 1996 the mayor of the Primorski district of Varna issued an order suspending the construction works on the applicant’s property for their failure to comply with the parameters stipulated in the 1995 building permit. That order was issued on the basis of (i) section 159 of the Territorial and Planning Act and (ii) a prior act (констативен акт) issued by the authorities on 11 June 1996 and ascertaining the situation on the ground. A further order issued by the mayor of Varna Municipality on 29 July 1996 annulled, on the basis of section 229 of the Regulations for Application of the Territorial and Planning Act (see paragraph 21 below), the building permit issued to the applicant in December 1995.
6. The applicant brought judicial review proceedings before the Varna Regional Court in respect of the two orders. On 15 April 1999 that court rejected his complaint, following which the applicant lodged an appeal with the Supreme Administrative Court (SAC). In a final decision of 15 October 1999, the SAC noted that a technical expert had established that the applicant’s construction had deviated from the parameters stipulated in the building permit. However, the SAC, referring to the lower court’s insufficient reasoning, overturned its judgment in its entirety on procedural grounds, following which it quashed the two mayors’ orders of July 1996 in the same final decision.
3. Ministerial order banning all construction in the affected area
7. On 21 April 1997 the Minister for Territorial Development and Construction (hereafter “the Minister”) issued an order banning all construction in the area affected by the landslide until works on sustainable fortification and drainage had been carried out and their effectiveness verified.
4. Measures pursued by the authorities in relation to the landslide
8. Towards the end of 1997 and the beginning of 1998 landslide activity resumed and some deformation and cracks started appearing in the affected land. The authorities built a land-surveying network in 1997 and carried out measurements in the area of Trifon Zarezan bus stop. Following the resumption of landslide activity in 1998, the Ministry for Territorial Development and Construction (hereafter “the Ministry”) commissioned a specialised agency to undertake ongoing research into, measurements of and analysis of the landslide activity.
9. In 1999, the Ministry commissioned research and design works in respect of the reinforcement of the coast and the area, including the area around the Trifon Zarezan bus stop. An engineering and geological study was conducted and a design project was drafted. The project was not implemented owing to the fact that a fresh resurgence of landslide activity, as well as expansions in the existing deformation, was registered in 2001. Regular annual monitoring indicated constant movement and intensification in landslide activity, which rendered impossible the continuous updating and adjustment of the investment project. In addition, the owners of properties in the area situated between the road and the beach did not allow access to members of the specialised research teams.
10. At the end of February 2005, fresh resurgence and intensification of landslide activity was identified. There was a real danger of damage to the main road in the area, as well as to a sewage collecting facility, water pipes, electricity transmission facilities and telecommunication lines. Eighteen plots of land between the road and the sea were affected and endangered.
11. As a result, expert technical committees were set up. In line with proposals made by those committees aimed at curbing the landslides and ensuring the safety of people and existing infrastructure, traffic in the affected area was stopped, the owners of the properties in the affected area were warned of the potential danger of a further landslide, and the utility companies were asked to suspend the supply of electricity, water and other services to the area.
12. In order to ensure the continued provision of transport services to the area and not to allow environmental pollution in the event of a breakdown of the sewage storage facility, a plan was drawn up by the regional and municipal administrations. A system for observing and recording ongoing deformation was built to monitor the dynamics of the horizontal and vertical deformations on the surface.
13. In addition, the Ministry allocated funding in order to enable further in-depth measurements and the measurement of underwater deformation in the area of the landslide. A working design aimed at draining and implementing reinforcement measures around the Trifon Zarezan bus stop was drawn up; it envisaged the building of reinforcement structures in the vicinity of the road, anti-abrasion coastal protection, the building of a control-and-measurement system and the reconstruction of the infrastructure. In 2006, a number of meetings were held with the aim of ensuring the necessary funds for drainage and reinforcement measures in the area.
14. In 2007, there was a fresh resurgence in landslide activity in the area of the Trifon Zarezan bus stop. As a result, on 2 May 2007 the mayor of Varna Municipality issued an order notifying the owners of property in the area of the resumed activity and ordering the suspension of the water and electricity supply to all utilities customers in the properties endangered by landslide activity. Following the resumption of the landslide in 2007 and 2008, the carrying out of a new engineering and geological study of the area proved necessary. The study required access to the private properties located there. Over the following years, the 27 owners of the real estate in the area of the landslide did not allow the construction on their properties of temporary roads to enable the necessary engineering and geological studies. After numerous conversations and meetings with the relevant authorities, they signed declarations agreeing only to the taking of measurements.
15. In April 2011, the Ministry wrote to the Ministerial Council reporting on the measures it had pursued over the years in connection with the landslide and stating in particular that, despite the 1997 ministerial ban on construction, seven illegal buildings had been erected between 1999 and 2005 and that had placed additional burden on the landslide processes.
5. The applicant’s construction on the plot of land
16. By August 1997 the applicant had constructed a solid building, a hotel with a restaurant, covering about 250 square metres. An act (констативен акт) dated 27 August 1997 issued by the Primorski district council of Varna Municipality recorded that, as at that date, a solid building measuring 248 square metres had been erected featuring one semi-underground and one above-ground floor. The act also stated that construction works had been suspended on the basis of the two July 1996 orders (see paragraph 5 above) and that at the time of the relevant check by Municipality officials no such works were in progress. The works resumed subsequently and on 15 March 2004 the chief municipal architect certified that the building was fit for operation.
17. In the meantime, landslide activity had started on the plot of land on which the applicant’s building stood. The first visible signs of land sliding appeared in 1998, as established in a subsequent expert report accepted by the first instance court seized with proceedings for damages against the State (see paragraph 19 below). Following the continuation of the landslide, in 2005 the applicant’s building suffered damage to its structure, and in 2008 that damage worsened. It appears that the applicant had not contracted out an insurance policy in respect of his property.
6. Proceedings for damages brought by the applicant
18. In 2008 the applicant lodged a claim for damages against the Ministry under the 1988 State and Municipalities Responsibility for Damage Act (“the SMRDA”). He sought compensation for the failure of the authorities to undertake measures aimed at combatting the landslide activity or limiting its destructive effects.
19. The Varna Administrative Court dismissed his claim on 6 November 2009. The court first established that the applicant’s building was constructed in an area prone to landslides which had activated in 1998 and later in 2005, when the building’s structure had suffered deformations. Those worsened seriously in 2008 when the building was gravely damaged and became unusable. The court then found that the Ministry in question had failed in its legal obligations to take preventive measures with a view to controlling the landslide activity and avoiding accidents and damage to property. Concretely, the analyses and reports that the Ministry had ordered in this connection had constituted solely preparatory steps, as opposed to effective measures aimed at limiting the destructive geodynamic activity, which the Ministry had been bound to undertake under section 96 of the Territorial Organisation Act. However, the court also held that the landslide had not constituted a direct consequence of the Ministry’s conduct. In particular, the landslide was a natural phenomenon whose emergence and activation was not related to human activity. In that sense the landslide could not be considered a direct and typical consequence of the Ministry’s failure to act, given that it could have activated irrespective of whether the latter had failed in its obligations to undertake certain actions or whether it had effectively pursued actions aimed at countering the landslide. Similarly, the landslide could have not activated, even in the absence of measures pursued by the Ministry. Furthermore, it had not been demonstrated nor established during the proceedings that concrete technical steps existed which, if carried out, would have prevented the landslide from activating and the damage on the building from occurring. The court concluded that there had been no causal link between the damage to the applicant’s building and the Ministry’s unlawful failure to act.
20. These findings were fully upheld by the Supreme Administrative Court on 13 May 2010 in a final decision.
B. Relevant domestic law and practice
21. Under section 96 of the Territorial Organisation Act 2001, terrain prone to landslides is subject to detailed development plans, which include engineering and geological and hydrogeological studies concerning the overall stability and sustainability of the territory in question and its suitability for construction. In addition, measures have to be put in place for stabilising terrain prone to landslides. Under section 229 of the Regulations for Application of the Territorial and Planning Act 1973, as applicable at the relevant time (1996), a building permit could be annulled as unlawful when (1) it has been issued on the basis of a plan drawn up in contravention of the relevant requirements, or (2) the actual construction has deviated from the parametres of the approved building permit.
22. The relevant provisions governing State responsibility for unlawful acts and omissions under the SMRDA have been summarised in Dimitar Yanakiev v. Bulgaria (no. 2), no. 50346/07, §§ 36-37, 31 March 2016. In particular, a claim for damages can be made after the administrative decision allegedly causing the damage has been quashed in prior judicial review proceedings (Article 204 § 1 of the Code). As to administrative measures or failure of the administration to act, their lawfulness can be reviewed by the court in the same proceedings in which it hears the claim for damages (Article 204 § 4 of the 2006 Code).
COMPLAINT
23. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the authorities had failed to take measures to prevent damage to his property.
THE LAW
Alleged violation of Article 1 of Protocol No. 1 to the Convention
24. In respect of his complaint regarding the damage sustained by him, the applicant relied on Article 1 of Protocol No. 1, the relevant part of which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
1. The parties’ submissions
(a) The Government
25. The Government submitted, firstly, that they did not contest the applicant’s right to property in respect of the hotel (containing a restaurant) which he had built on his own plot.
26. Secondly, they emphasised that, given that the landslide was a natural process and not one that could be managed by the authorities, the rules and obligations for the State in respect of the control of dangerous activities did not apply. Consequently, the positive obligations incumbent on the State were not of the same type and intensity as those in cases of gross negligence on the part of the State in the context of the control it had to exercise over the operation and management of dangerous activities. They referred in this respect to the case of Budayeva and Others v. Russia (nos. 15339/02 and 4 others, ECHR 2008 (extracts)), where the Court, reiterating that the right to property was not absolute, had found that the State obligations could not be expected to go beyond what was reasonable in the circumstances.
27. Furthermore, the Government pointed out that, unlike the situation in Budayeva, (cited above), the building in the present case had constituted commercial premises and not the applicant’s only dwelling, and that his life had not been placed in danger.
28. The Government then stressed that although the applicant had managed to partially construct his hotel by 21 April 1997, when the relevant Minister had banned all construction in the area affected by the landslide (see paragraph 7 above), he had continued to build thereafter. They emphasised the fact that the applicant had been aware of the risks of constructing within the above-mentioned boundaries.
29. Lastly, the Government acknowledged that the State had not only a duty to provide remedial first aid to victims of disaster, but that it also had to pursue preventive measures in order to avoid damage to the infrastructure that it had built. However, it was up to the State, and within its margin of appreciation, to prioritise the resources and policies it would employ to that effect, and it could not be expected to determine those solely on the basis of an individual proprietary interest. Even in cases where the State was guilty of negligence, the Court had held that it could not be considered responsible for all such damage, precisely because the main cause of it had been the natural disaster itself.
(b) The Applicant
30. The applicant in his reply stated that he did not contest the Government’s submissions regarding the general situation in respect of the landslide. He pointed out that ever since 1972 the authorities had been aware that landslide activity existed in the area in question and had known about the destructive processes arising therefrom and the unlawful constructions erected there. The landslide had not been extraordinary, sudden and unpredictable. Referring to the measures pursued by the authorities in connection with the landslide, as listed in paragraphs 8 to 15 above, the applicant stated that it was evident that the authorities had not carried out adequate, timely and sufficient measures in order to deal with the landslide and to prevent the damage that it had ultimately caused.
31. As to the measures pursued by the authorities after 2008, the applicant stated that they had been irrelevant, given the serious damage sustained by his property by that time.
32. In relation to the ministerial order of 21 April 1997 banning all construction in the area, the applicant pointed out that that order had not had retroactive effect and had not annulled the valid building permit issued to him in 1995. The applicant furthermore stressed that the two 1996 orders, respectively suspending construction and annulling his building permit, had been repealed by the SAC in October 1999 in a final decision (see paragraph 6 above) and that, in any event, he had suspended the construction works during the period between when those orders had been issued and when they had been annulled by the SAC.
33. The applicant also pointed out that, contrary to the situation in Budayeva and Others, cited above, where the State had on its own initiative paid financial compensation to the injured parties and taken other measures to remedy the damage, he had not received equitable compensation for his right to peaceful enjoyment of his possessions.
2. The Court’s assessment
34. According to the Court’s case-law, genuine, effective exercise of the right protected by Article 1 of Protocol No. 1 does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, particularly where there is a direct link between the measures that an applicant may legitimately expect from the authorities and the effective enjoyment of his or her possessions (see Hadzhiyska v. Bulgaria (dec.), no. 20701/09, 15 May 2012). Allegations of a failure on the part of the State to take positive action to protect private property should be examined in the light of the general rule specified in the first sentence of the first paragraph of Article 1 of Protocol No. 1, which lays down the right to the peaceful enjoyment of possessions (see Budayeva and Others, cited above, § 172, with further references).
35. The obligation to protect the right to the peaceful enjoyment of possessions is not absolute and cannot extend further than what is reasonable in the circumstances. Accordingly, in deciding what measures to take in order to protect private possessions from natural hazards, the authorities enjoy a wider margin of appreciation than when, for example, deciding on the measures needed to protect lives. Furthermore, natural disasters, which are by their very nature beyond human control, do not call for the same extent of State involvement as dangerous activities of a man‑made nature. Accordingly, the State’s positive obligations to protect property against the former do not necessarily extend as far as those in the sphere of the latter (see Hadzhiyska, cited above, § 15).
36. Turning to the present case, the Court observes that the applicant’s hotel building was damaged as a result of a landslide and not man-made activities. The case should therefore be distinguished from that of Kolyadenko and Others v. Russia (nos. 17423/05 and 5 others, § 215, 28 February 2012) where the disaster in question had been triggered by a human-controlled release of water from a reservoir, as well as from that of Öneryıldız v. Turkey [GC] (no. 48939/99, § 18, ECHR 2004‑XII) where deaths and property destruction had been caused by a methane explosion at a rubbish tip constructed and overseen by the authorities.
37. Furthermore, the Court notes that it is undisputed by the parties that the landslide was officially recorded by the relevant authorities as early as 1972. The applicant did not argue that relevant information about it was unavailable. It was about a decade later, namely in 1983, that the applicant bought the plot of land on which he later built, and over a further decade later when he initiated and obtained the reclassification of the land from “agricultural” to “zoned for construction” and when, in December 1995, he was issued with a building permit for a hotel and a restaurant (see paragraph 4 above). Therefore, the applicant pursued those steps with the aim of carrying out his business activity in the full knowledge of the landslide activity in the surrounding area and the potential danger that this represented. Under such circumstances, the Court finds that it is the role of a competent entrepreneur to ensure that he or she is in possession of all relevant information before investing or conducting transactions, as well as to ensure that such an investment is fit for purpose (see, similarly, Crash 2000 OOD and Others v. Bulgaria (dec.), § 63, no. 49893/07, 17 December 2013). What is more, it does not appear from the documents in the case file that, even though the applicant was fully aware of the latent hazard in respect of the land on which he built his business premises, he took out an insurance policy to offset the risk represented by that hazard (see in particular paragraph 17 above). The applicant’s own responsibility in this respect cannot be transferred to the State.
38. In addition, the Court observes that about seven months after the building permit had been issued to the applicant, namely in July 1996, the local authorities issued two orders suspending building activity and annulling the permit (see paragraph 5 above). In that connection, on the basis of the documents in the file, it finds it difficult to understand the conclusion of the SAC in 1999 (see paragraph 6 above) that the mayors’ orders had to be invalidated, given that the SAC had previously established in the same decision that the actual construction had deviated from the building permit, and that was a ground for annulling such permit. The applicant submitted that he had suspended the construction works during the period when those orders had been issued and when they had been annulled by the SAC in October 1999 (see paragraph 32 above). This was confirmed in an act (констативен акт) issued by the Primorski district municipal authorities in August 1997, which noted that construction works had been suspended on the basis of the two July 1996 orders and that at the time when the relevant check by Primorski district officials had been made no such works had been in progress (see paragraph 16 above).
39. Independently of all specific orders of the municipal authorities and judicial decisions in relation to the building constructed by the applicant (see paragraphs 5, 6 and 16 above), the Minister’s order of April 1997 banned all construction in the area until the completion of the necessary fortification and drainage works and the verification of their efficacy. Thus, any construction works have been unlawful ever since April 1997, given that the relevant fortification and drainage have not effectively taken place yet. Consequently, it appears that the only time that the applicant undertook construction in a lawful manner was during the period between December 1995 and the end of July 1996; moreover on the basis of the documents in the case file, it is not possible to determine how far that construction progressed during that period.
40. The Court notes that since at least 1997 the relevant authorities pursued a number of practical measures aimed at assessing the magnitude and nature of the landslide activity and at identifying adequate preventive and damage-limitation steps. While those measures were of a preparatory nature and did not result in actual effective fortification and drainage, there were numerous objective reasons why the plans that were drawn up were not implemented (see for details paragraphs 8–14 above). Furthermore, the ministerial order of April 1997 banning construction served as an additional practical measure aimed at halting the influence of external factors contributing to the aggravation of the landslide activity, given that according to the uncontested report of the Ministry of 2011 (see paragraph 15 above), construction in the area was provoking activation of the landslide.
41. The Court then observes that, in the proceedings for damages which the applicant brought in 2008 against the State, the domestic courts concluded that there had been no causal link between the damage to the applicant’s building and the Ministry’s failure in its legal obligations to undertake measures. The reason was that the landslide had not constituted a direct consequence of the Ministry’s conduct and that it could have happened irrespective of whether the latter had failed to undertake any action or whether it had pursued effective action aimed at countering the landslide (see paragraph 19 above). Therefore, as in the case of Hadzhiyska (cited above, § 16), no causal link was established between the authorities’ actions or omissions and the property damage sustained by the applicant. In such circumstances, the Court has already held that Article 1 of Protocol No. 1 does not go as far as requiring States to take preventive measures to protect private possessions in all situations and all areas prone to flooding or other natural disasters (ibid.). In view of the operational choices which must be made in terms of priorities and resources, any obligations arising under this provision must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Thus, in the absence of sufficient information or evidence showing that the authorities’ actions or omissions caused or contributed to the damage sustained by the applicant, the Court considers that he has failed to make out an arguable claim under Article 1 of Protocol No. 1 (contrast with Budayeva, cited above, §§ 179 and 182, where the Court found that the State’s negligence was an aggravating factor contributing to the damage caused by natural forces and where the applicants had all been granted free substitute housing and a lump-sum emergency allowance at the domestic level).
42. In view of all of the above, the Court considers that there is no appearance of a violation of Article 1 of Protocol No. 1. It follows that this complaint 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.
Done in English and notified in writing on 18 October 2018.
Claudia WesterdiekAngelika Nußberger
RegistrarPresident
Full & Egal Universal Law Academy