Communicated on 9 January 2018
FIFTH SECTION
Application no. 30472/17
Zatie Yuseinova YUSEINOVA and others
against Bulgaria
lodged on 25 April 2017
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The six applicants are members of six different families, comprising altogether 21 persons, of Bulgarian nationals who are of Roma ethnicity. They all live in the same neighbourhood “Hadzhi Dimitar” in the city of Plovdiv, in several solid brick houses, all of which are situated and registered at No. 4 and No. 6, Pavel Bobekov Street. The applicants built their houses unlawfully on municipal land at different times between 1991 and 2005. The houses are connected to water and electricity supplies. All six applicants have their address registration at those houses and four of them have been paying local taxes. The municipal authorities have been knowingly tolerating the applicants living there throughout the years.
The houses described above are the applicants’ only dwelling. Three of the applicants are unemployed, as are most of the members of their families, who include a total of six children the youngest of whom is a few months old. The applicants and their families live under the poverty threshold for the country.
It transpires from the documents in the file that on 12 February 2015 the municipal authorities informed the applicants that the mayor of the Plovdiv “North” district had issued orders on 30 January 2015 for the demolition of their houses. The indicated grounds for demolition were that the houses had been built unlawfully, in particular, without a permit in breach of sections 148(1) and 137(3) of the Territorial Organisation Act 2001 (“the Act”), and without a right to build on a third party’s estate, in breach of section 182(1) of the Act, and because of that had to be demolished in accordance with section 223(1)(8) of the Act. The mayor’s orders gave the applicants thirty days for voluntary compliance, specifying that failure to do so would result in the municipality pursuing demolition of the houses fourteen days after the expiry of the thirty-day period.
The applicants did not comply with the mayor’s orders.
The first, second and third applicants, and the husband of the sixth applicant (who died in December 2016), brought judicial review proceedings challenging the demolition orders. These plaintiffs claimed that their houses were stable and did not represent danger for the life or limb of their inhabitants, and that they had applied to have the houses legalised and declared “tolerable constructions”. The plaintiffs complained in particular that demolishing the houses would make the members of their families homeless and expose them all to precarious living conditions. They submitted that the demolition orders were in breach of their human rights and, in particular, of Article 8 of the Convention, as the authorities had not examined the proportionality of such a measure and had not provided the affected persons with alternative shelter in advance of scheduling the demolition.
Having declared the challenges admissible and examined them on the merits, the Plovdiv Administrative Court (“the PAC”) rejected them all.
As regards the case of the first applicant, the PAC found in a decision of 8 February 2016 that the house had been built around 1995 without the requisite permits and no evidence had been presented that the applicant had attempted legalisation of the building or its classification as a “tolerable construction” within the meaning of domestic law. In respect of the reliance by the applicant on the case-law of the European Court of Human Rights and, in particular, on its judgment in the case of Yordanova and Others v. Bulgaria (no. Yordanova and Others v. Bulgaria, no. 25446/06, judgment of 24 April 2012), the PAC found that it was not applicable, given that the ground for the intended demolition of the buildings in the present case was different from that indicated in Yordanova and Others.
In respect of the challenge brought by the second applicant, the PAC found in a decision of 13 May 2016 that the house had been built without the requisite permits and on municipal land and, as such, was subject to removal. The applicant had not demonstrated that it met the conditions for being considered a “tolerable construction” within the meaning of the law.
As regards the challenge brought by the third applicant, in a decision of 26 November 2015 the PAC found that the house had been built unlawfully. The applicant’s assertions that the house was stable there being no risk of it crumbling down were irrelevant for the legal dispute at stake. The third applicant had not demonstrated that it met the conditions for being considered a “tolerable construction” within the meaning of the law. As regards the claim that the order for demolition was in breach of Article 8 of the Convention, the PAC held that no one could derive rights from his or her own unlawful conduct. More specifically, no proof had been presented by the applicant that he had paid local taxes or utility bills in respect of the house in question in order to demonstrate its actual usage over the last 20 years. Similarly, no evidence had been presented that he attempted legalisation of the building, which was one of the alternative means discussed in the case of Yordanova and Others v. Bulgaria. Consequently, the facts of this case were not identical to those in Yordanova and Others.
In respect of the challenge brought by the spouse of the sixth applicant, in a decision of 12 November 2015 the PAC held that the house had been built unlawfully. The arguments advanced by the plaintiff that the house was solid and built before many years and did not represent a danger for the health or life of anyone could not overcome the fact that it was built unlawfully, and the plaintiff had not demonstrated that it met the conditions for being considered a “tolerable construction” within the meaning of the law. The PAC added that, solely for the purposes of thoroughness of the examination and in view of the explicit complaints of a breach of Article 8 of the Convention made by the plaintiff, it considered necessary to signal the following. The right to home had to be protected by balancing between that right and the provisions of the relevant law. As the administrative body had done precisely that in the face of an unlawful construction, the challenge was to be rejected.
Following an appeal by the first applicant against the PAC’s decision in her case, in a final decision of 20 December 2016 the Supreme Administrative Court (“the SAC”) upheld the lower court’s findings. In the case of the second applicant, on 14 August 2017 the SAC quashed the PAC’s decision and returned the case to it for a new examination. In particular the SAC found that the PAC had not provided reasons for its finding that the legal provisions governing “tolerable constructions” were not applicable to the applicant’s case. The third applicant and the spouse of the sixth applicant did not appeal against the first instance administrative court decisions in their cases.
The fourth and fifth applicants did not bring judicial review proceedings in respect of the mayor’s demolition orders at all. These two applicants were not in possession of the actual orders for demolition issued in their name on 30 January 2015 and did not submit those to the Court. According to them, the orders issued in their name had identical grounds as that in respect of the first applicant.
On 4 April 2017 the mayor informed all six applicants in separate letters that their houses would be forcefully demolished on 26 April 2017. The letters referred to the six orders for demolition, issued on 30 January 2015 in respect of each of the six applicants and identified by a different number.
The applicants did not challenge the enforcement attempts domestically.
On 24 April 2017 the six applicants asked the Court to indicate to the Government, as an interim measure under Rule 39 of the Rules of Court, that they should not proceed with the demolition. On the basis of the provision of relevant information by the Government, including an undertaking that the local authorities would not proceed with the demolition until the situation of all applicants was clarified and an appropriate solution was found, the Court decided not to indicate an interim measure to the Government.
In July 2017 the authorities offered the fourth applicant and his family of four the possibility to be lodged in one of two social dwellings with subsidised rent. The first dwelling comprised 21 metres square of living space (and 41 metres square of total space) and the second one, which the fourth applicant’s family had to share with another four-member family, measured about 34 metres square of living space (and about 64 and a half metres square of total space). On 14 July 2017, the municipality’s mayor, referring to a record of 7 July 2017 in which the fourth applicant is recorded to have expressed his preference to be lodged in the second dwelling, ordered in writing that the fourth applicant’s family be accommodated for a period of two years in the second dwelling described above. His family was listed as comprising the father and his three children. The fourth applicant was informed of that order on 18 July 2017 and on 28 July 2017 he refused in writing the dwelling as unsuitable. In particular he pointed out that two rooms, a kitchen and a bathroom could not lodge two families of four. In addition, he specified that his family consisted of five persons, and not four as indicated in the mayor’s order, given that he lived with the mother of his three children together as a family, despite not being married to her.
The first, second, third and sixth applicants have not applied for accommodation in municipal housing. According to them they did not do so as they did not expect that their only dwelling in which they had been living for over twenty years would be demolished; in addition, it was difficult for them to collect all the necessary documents required in order to apply.
The fourth and fifth applicants applied for municipal housing, respectively on 31 August 2015 and on 5 January 2016. They have not been offered a dwelling so far.
On 12 September 2017 the third applicant requested the Court to order the Bulgarian authorities, as an interim measure under Rule 39 of the Rules of Court, to stop the planned demolition of his house, scheduled for the morning of the following day. In view of the exceptional circumstances, namely the presence of a very young child in the applicant’s household, and in the interest of the parties and the proper conduct of the proceedings before it, the Court granted this request until 15 September 2017 and then extended it further until 29 September 2017. The Court invited the Government to provide information whether they had offered any alternative accommodation to the third applicant’s family since April 2017. Following the provision of information showing that concrete offers of temporary accommodation have been made to the third applicant’s family and were still available to him and his family, subject to their application, the Court lifted the interim measure previously imposed.
B. Relevant domestic law and practice
The statutory provisions and case-law of the administrative courts concerning orders for demolition of buildings constructed without a permit, as well as legal challenges to such orders and to their enforcement have been set out in paragraphs 25–40 of the Court’s judgment in the case of Ivanova and Cherkezov v. Bulgaria (no. 46577/15, 21 April 2016).
COMPLAINTS
The applicants complain under Article 8 of the Convention that, if they were evicted and their homes demolished, there would be a violation of their right to respect for their family life and home, unless the authorities found a permanent adequate alternative solution to accommodate them without delay by keeping the members of each family together. The applicants complain of a separate breach of Article 8 as a result of the deficiencies in the domestic procedure for deciding on eviction and demolition, and enforcing such decisions, which they claim lacks a proper proportionality analysis.
The applicants also allege that their collective forced eviction and the demolition of their homes, in an arbitrary fashion after having tolerated them for many years and without accounting for the vulnerability of the families or providing them with an adequate shelter, would constitute an act of racial discrimination against them, of Roma ethnic origin, given that other Bulgarian non-Roma families would not be treated similarly. They allege in that connection a breach of Article 14 in conjunction with Article 8 of the Convention.
QUESTIONS TO THE PARTIES
Would the eviction of the applicants from the houses in which they live and the demolition of those houses amount to a breach of Article 8 of the Convention, taken alone or in conjunction with Article 14 of the Convention? In particular, would those measures be proportionate in terms of Article 8 § 2?
Appendix
Zatie Yuseinova YUSEINOVA is a Bulgarian national who was born in 1963, lives in Plovdiv and is represented by M. Ilieva Georgi Dimitrov ASENOV is a Bulgarian national who was born in 1967, lives in Plovdiv and is represented by M. Ilieva German Dimitrov ASENOV is a Bulgarian national who was born in 1965, lives in Plovdiv and is represented by M. Ilieva Yordan Dimitrov ASENOV is a Bulgarian national who was born in 1977, lives in Plovdiv and is represented by M. Ilieva Emil Aleksiev KOCHEV is a Bulgarian national who was born in 1972, lives in Plovdiv and is represented by M. Ilieva Danka Yordanova KOCHEVA is a Bulgarian national who was born in 1959, lives in Plovdiv and is represented by M. Ilieva
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