FOURTH SECTION

DECISION

Application no. 46287/12 Mladen Stefanov STOYANOV against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 11 May 2021 as a Committee composed of:

Armen Harutyunyan, President, Jolien Schukking , Ana Maria Guerra Martins, judges, and Ilse Freiwirth, Deputy Section Registar ,

Having regard to the above application lodged on 10 July 2012,

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 Mladen Stefanov Stoyanov , is a Bulgarian national, who was born in 1954 and lives in Sofia. He was represented before the Court by Ms N. Sedefova and Mr N. Sedefov , lawyers practising in Sofia.

2 . The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimitrova, from the Ministry of Justice.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . The applicant is the owner of a flat situated on the first floor of a house in Sofia. The flats situated respectively on the ground floor and second floor of the same house are property of other people. The common parts of the house, including the roof, are jointly owned by the co-owners.

5 . In June 2005 the owner of the second-floor flat, D.Y., started renovation works which damaged the roof of the house. The applicant complained to the authorities about it. On 22 June 2005 the head of the regional office of the National Building Control Directorate (hereinafter “the Directorate”) established that the works were unlawful and ordered their immediate discontinuation.

6 . Several days later it rained heavily and the applicant ’ s flat was flooded. The applicant and his family moved out.

7 . On 22 August 2005 a commission appointed by the mayor determined that the house was unsafe in sanitary terms as its roof had been removed and the second-floor walls had been almost entirely demolished. In an order of the same day, the mayor authorised the applicant to carry out the necessary conservation and reconstruction works at the expense of the co-owners. The applicant sought judicial review of that order, arguing in particular that the cost of the works should not be borne by the co-owners but by the perpetrator. The mayor ’ s order was quashed in a final decision of 11 February 2010 by the Sofia City Court on the ground that the applicant ’ s opinion had not been sought in relation to the said authorisation.

8 . On 9 November 2005 the Directorate ordered D.Y. to reconstruct the house to its previous state and set the time-limit for voluntary compliance at 15 January 2006. The order also stated that D.Y. had to build a temporary roof no later than 15 November 2005. If D.Y. failed to comply within the set time-limits, the Directorate would carry out the necessary works at her expense, in accordance with the applicable law (see paragraph 13 below).

9 . D.Y. challenged the order of 9 November 2005 in court. The Sofia City Court upheld the order on 20 November 2008. Relying on expert reports, the court found that, despite the damage caused to the house, it could still be reconstructed to its previous state. That decision became final on 10 July 2009 when it was upheld by the Supreme Administrative Court.

10 . Following a complaint by the applicant to the prosecution, criminal proceedings were opened in May 2006. The authorities charged D.Y. ’ s son, as the person who had allegedly demolished the roof of the house, with unlawful destruction of another person ’ s property (an offence under Article 216 of the Criminal Code). These proceedings ended in January 2011 with a plea bargain agreement between D.Y. ’ s son and the prosecution, approved by the relevant court. The agreement included D.Y. ’ s son ’ s confession to having committed the above offence and his acceptance that he had caused the applicant pecuniary damage, which he had compensated to him. In particular, the damages D.Y. ’ s son paid to the applicant amounted to BGN 1,237 (around EUR 600) in respect of his flat and BGN 1,946 (around EUR 1,000) in respect of the roof of the house.

11 . In 2010 and 2011 the applicant asked the Directorate to enforce the order of 9 November 2005. He pointed out that the house was seriously damaged since no restoration or conservation works had been undertaken. The Directorate replied that it was unable to act, as any reconstruction works necessitated a construction permit, which could be obtained from the municipality only upon a request by an owner. Similarly, it was necessary to produce a technical plan which had to be signed by the co-owners of the house.

12 . In June 2018 the Sofia municipal authorities ordered the demolition of the house where the applicant ’ s flat was located. It was noted that it had remained without a roof, could not be inhabited and had become dangerous. The applicant challenged the order in court and the proceedings are pending.

13 . The general requirements concerning the legality of buildings are contained in the Territorial Organisation Act 2001 ( “the 2001 Act”). In the context of exercising their powers under the 2001 Act, officials from the National Building Control Directorate (“the Directorate”) have the right to access constructions and request and receive information and documents from the administration and relevant individuals (section 221(5) of the 2001 Act). Under section 222(1) of the 2001 Act, the head of the Directorate suspends unlawful constructions; authorises the continuation of suspended constructions after all irregularities have been eliminated; prohibits access to constructions which do not comply with the relevant requirements; orders the implementation of fortifying and reconstructive measures to prevent accidents and damage to constructions which had been suspended or access to which had been prohibited, etc. Under section 225(1) of the 2001 Act, the head of the Directorate issues orders for the removal of unlawful constructions. Under section 225(4) of the 2001 Act, if the addressee of the order does not comply with it within the set time-limit, the Directorate enforces the order, following a procedure set out in an Ordinance of the Minister of Public Works of 2001.

14 . Under section 195(4) of the 2001 Act, when there is a danger of damage to or destruction of immovable property, the mayor issues an order obliging the property ’ s owner to repair or reconstruct the property. Under section 196(5) of the 2001 Act, when a mayor ’ s order under section 195(4) has not been implemented within the set time-limit, the municipality carries out the works at the owner ’ s expense, following a procedure set out in an Ordinance of the municipal council.

15 . Section 1 of the State and Municipality Responsibility for Damage Act 1988 (“the SMRDA”) provides that the State and (as of 2006) municipalities are liable for damage caused to individuals and legal entities as a result of unlawful decisions, acts or omissions on the part of their own authorities or officials while discharging their administrative duties. Section 4 of the SMRDA provides that the State shall be strictly liable for compensation for all damage which is the direct and proximate result of an unlawful act or omission on its part. The lawfulness of an administrative action or failure to act is established by the court during the proceedings for damages (Article 204 (4) of the Code of Administrative Procedure).

16 . The domestic courts have examined cases under section 1 of the SMRDA in which claims for damages were brought against the Directorate or municipal authorities in connection with their respective actions or failure to act in relation to unlawful constructions. In judgment no. 475 of 9 January 2012 (case no. 1922/2010), the Supreme Court of Cassation (“the SCC”) awarded damages to a claimant against the Directorate. The court found that, although the claimant had repeatedly alerted the Directorate to the unlawfulness of a construction by a third party on a neighbouring plot, the Directorate had failed to order the cessation, respectively demolition, of that construction. The Directorate ’ s omission to act had resulted in damage to the claimant ’ s house.

17 . The lower courts have also awarded related damages. In judgment no. 3222 of 13 May 2019 (case no. 5326/2018), the Sofia City Administrative Court awarded damages to a claimant under section 1 of the SMRDA, as a result of the municipality ’ s failure to act in accordance with its prerogatives under the 2001 Act (see paragraph 14 above). In particular, the mayor had failed to exercise control in respect of unlawful works carried out by a third party (including by failing to undertake repair works instead of the third party) and that had resulted in damage for the claimant. In judgment no. 84 of 24 January 2017 (case no. 731/2016), also under section 1 of the SMRDA, the Burgas Administrative Court awarded damages to a claimant against the Directorate as a result of the Directorate having enforced its own order to demolish an unlawful construction in excess of what the order had indicated.

18 . In another case heard under section 1 of the SMRDA, the court, having examined the merits of claim for damages stemming from the Directorate ’ s alleged failure to act in relation to an unlawful construction, rejected that claim as unfounded. In particular, in judgment no. 1291 of 25 February 2013 (case no. 10265/2011), the Sofia City Administrative Court found, among others, that the Directorate had taken the necessary measures by, in the first place, ordering the demolition of an unlawful construction and, subsequently, by initiating a public tender to select a company to carry out the demolition.

19 . In decision no. 417 of 14 September 2010 (case no. 2994/2008), the SCC quashed the lower court ’ s judgment, which had rejected a claim for damages stemming from alleged unlawful failure to act by a municipality, and remitted the case to it for a new examination. The SCC held that the lower court had wrongly concluded that, by issuing an order for repairs to a ruinous building, the municipality had complied with all of its obligations under the law; in addition, the lower court had to pronounce on the claim for damages stemming from the alleged omissions by the municipality to carry out repair works itself.

COMPLAINT

20 . The applicant complained, under Articles 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, of the authorities ’ failure to protect his property by enforcing the order of 9 November 2005 and of the lack of effective remedies in that connection.

THE LAW

21 . In respect of his complaint that the State has failed to protect his right to property, the applicant relied on Article 1 of Protocol No. 1 to the Convention which provides so far as relevant:

“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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

22 . The Government invited the Court to declare the applicant ’ s complaint inadmissible. In particular, he had been compensated for the damage caused in the criminal proceedings against D.Y. ’ s son (see paragraph 10 above). He could also have requested the mayor to empower him to reconstruct the house at the expense of the culprit and that would have been the fastest and most efficient manner to preserve his flat and repair the damage. The fact that he never requested that, but instead challenged such an authorisation (see paragraph 7 above), demonstrated his lack of interest in protecting his own property rights.

23 . Finally, the applicant had failed to exhaust domestic remedies. Since he claimed unlawful omissions on the part of the State, he had failed to bring a claim for damages against the authorities under section 1 of the SMRDA (see paragraph 15 above).

24 . According to the applicant, the remedies suggested by the Government were ineffective. The reason was that there had been no remedy at his disposal via which he could have compelled the authorities to enforce the order of 9 November 2005 (see paragraphs 8 and 9 above). In particular, once D.Y. had failed to reconstruct the house within the set time ‑ limit, it had been up to the authorities, namely the Directorate, to act in order to protect his property.

25 . The Court reiterates that under Article 1 of Protocol No. 1 to the Convention the State must ensure in its domestic legal system that property rights are sufficiently protected by law and that adequate remedies are provided whereby the victim of an interference can seek to vindicate his rights, including, where appropriate, by claiming damages in respect of any loss sustained (see Blumberga v. Latvia , no. 70930/01 , § 67, 14 October 2008, and Chadzitaskos and Franta v. the Czech Republic , nos. 7398/07 , 31244/07 , 11993/08 and 3957/09 , § 48, 27 September 2012). The measures which the State can be required to take in such a context can therefore be preventive or remedial ( Kurşun v. Turkey , no. 22677/10 , § 114, 30 October 2018).

26 . It is also a well-established part of the Court ’ s case-law that States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70 and the authorities cited therein, 25 March 2014).

27 . The Court observes that the essence of the applicant ’ s complaint in the present case is about the failure of the State to protect his property from the damage caused to it by a third party. The Court considers that it is not necessary to deal with all of the parties ’ related arguments, as it finds that the application is inadmissible for failure to exhaust domestic remedies.

28 . In an earlier case against Bulgaria related to a complaint about the failure of the authorities to take any action in connection with an unlawful construction by the applicant ’ s neighbours (see Kateliev v. Bulgaria ( dec. ), no. 18594/06, decision of 25 June 2013), the Court examined whether domestic law had afforded the applicant procedures for protection and, concluding that the available procedures had been effective in those circumstances, found the application inadmissible. In particular, the Court held that a claim for damages against the building control authorities, or the municipality, under the SMRDA could have provided effective redress (ibid., § 51). The Court also noted that the domestic courts had awarded damages in similar cases on a number of occasions, having found among other things that the authorities ’ inactivity in the face of unauthorised constructions had effectively led to damage of the claimants ’ properties (ibid., § 53).

29 . The Court observes that, in addition to the domestic case-law delivered prior to 2012 (see, in particular, § 33 in Kateliev , cited above, and paragraph 16 above), the courts have since continued to examine claims for damages against the authorities, including the Directorate, for their actions or omissions related to unlawful buildings by third parties (see paragraphs 17 and 18 above).

30 . In the circumstances, the Court finds that, while the applicant complained that the Directorate had failed to act in order to protect his flat from further deterioration following unlawful demolition by his neighbour, he did not pursue proceedings for damages under the SMRDA against the same Directorate in relation to its alleged omission. As seen above, that remedy was not obviously futile and the applicant failed to make use of it. In view of the importance of the principle of subsidiarity (see Burmych and Others v. Ukraine (strike-out) [GC], nos. 46852/13 et al. , § 218, 12 October 2017), the Court finds that he has not exhausted the available domestic remedies and there do not appear to be any exceptional circumstances capable of exempting him from the obligation to do so.

31 . It follows that his complaint under Article 1 of Protocol No. 1 must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

32 . The applicant also complained that he had not had an effective domestic remedy for his complaint examined above. The relevant provision of Article 13 of the Convention reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

33 . In view of its finding above (see paragraph 30 above), the Court finds that the applicant ’ s complaint under Article 13, taken in conjunction with Article 1 of Protocol No. 1, is manifestly ill-founded.

34 . It follows that this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

35 . Finally, the applicant complained of a violation of his right to a fair trial, because the authorities had failed to implement the final domestic decision which had upheld the Directorate ’ s order of 9 November 2005. He relied on Article 6, the relevant part of which reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. ...”

36 . Having regard to all the materials in its possession, and in so far as this complaint falls within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in this provision in that respect. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to 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 10 June 2021 .

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Ilse Freiwirth Armen Harutyunyan Deputy Registrar President