FOURTH SECTION

DECISION

Application no. 10843/14 GBM METAL EOOD and NOREX TK OOD against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 17 May 2022 as a Committee composed of:

Tim Eicke, President, Faris Vehabović, Pere Pastor Vilanova, judges, and Ludmila Milanova, Acting Deputy Section Registrar,

Having regard to:

the application (no. 10843/14) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 January 2014 by two Bulgarian limited liability companies, GBM Metal EOOD and Norex TK OOD, which were set up in 1992 and 1997 respectively and have their registered offices in Sofia (“the applicant companies”), and were represented before the Court by Mr G. Dobrev and Mr U. Kärgel, lawyers practising in Sofia and Berlin respectively;

the decision to give notice of the complaints concerning access to a court and the redesignation of the applicant companies’ land as a “green zone” to the Bulgarian Government (“the Government”), represented by their Agent, Ms I. Nedyalkova of the Ministry of Justice, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns town planning which restricted the use of land owned by the applicant companies, allegedly rendering the investment for the purchase of that land meaningless. The two plots of land situated in the outskirts of Sofia were bought by the applicant companies in 1997 and 2002. Under the General Urban Development Plan (hereinafter “the GUDP”) for Sofia, as in force at the time, the plots were designated for “low-rise construction”.

2. In 1997 the Sofia Municipal Council initiated a procedure for the adoption of a new GUDP. The draft GUDP was prepared in 2002 and in the next years was subject to consultations with the public and non-governmental organisations, to coordination with other State bodies, and to environmental assessment. It was finally adopted in 2006: part of it was approved in a Council of Ministers decision of 17 March 2006, and another part was included in an Act passed by Parliament. Both instruments entered into force on 28 January 2007. Under the new GUDP, about 30,000 square metres of the applicant companies’ land was included in a “green zone”, meaning that no construction was allowed on it except on a small scale and for recreational purposes.

3. In 2006 and 2007 the applicant companies contacted the municipal authorities, expressing their dissatisfaction with the inclusion of their land in the “green zone”, but were informed that at this stage changes to the draft GUDP were no longer possible. At the beginning of 2013, the applicant companies applied to the Supreme Administrative Court for judicial review of the Council of Ministers’ decision of 17 March 2006 in so far as it concerned their land. Their application was declared inadmissible on 2 August 2013.

4. The applicant companies complained under Article 1 of Protocol No. 1. They complained further under Article 6 § 1 of the Convention that they had been refused access to a court for the examination of their application for judicial review.

THE COURT’S ASSESSMENT

5. The Government argued that the complaint under Article 1 of Protocol No. 1 was time-barred, as it had been submitted more than six months after the decision which had to be considered “final” for the purposes of Article 35 § 1 of the Convention, namely the new GUDP for Sofia that entered into force in the beginning of 2007.

6. The date of the GUDP’s entry into force is not in dispute, nor is it contested that in 2006-07 at the latest the applicant companies were aware of the inclusion of their land in the “green zone”. The salient question is thus whether the applicant companies’ subsequent application for judicial review had sufficient prospects of success, thus justifying a conclusion that the relevant six-month period started to run after their application had been dismissed with final effect on 2 August 2013.

7. At the relevant time, GUDPs were not subject to judicial review, in accordance with an express provision of the Urban Development Act 2001. According to the Constitutional Court, which in a decision of May 2006 found that provision to be in compliance with the Constitution, GUDPs provided the general framework for urban development and did not directly affect individual items of property. In contending that their application for judicial review nevertheless fell to be examined, the applicant companies relied on Article 9 § 2 of the 1998 United Nations Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”), which provided for access to justice. They also relied on a previous decision, given on 28 September 2012, in which the Supreme Administrative Court had found admissible an application for judicial review of the GUDP for a small seaside town, lodged by a non-governmental organisation which had relied on Article 9 § 2 of the Aarhus Convention.

8. The Court has held that the six-month period under Article 35 § 1 of the Convention runs from the date of the final decision in the process of exhaustion of domestic remedies. However, only remedies which are normal and effective are to be taken into account in that respect, as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies which cannot offer effective redress (see, among other authorities, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 131-32, 19 December 2017).

9. In the present case, the Government argued that the applicant companies’ application for judicial review in 2013 had been “clearly futile” and incapable of providing redress for their grievances. This was so because not only was judicial review of GUDPs expressly barred by domestic law, but such a conclusion was even more valid with regard to Sofia, as parts of its GUDP were approved in an Act of Parliament, not amenable to be challenged by individuals. In addition, provisions of that Act prohibited the redesignation of territories in the “green zone” for other purposes, depriving the application for judicial review of any meaningful purpose. Furthermore, the application for judicial review had been lodged seven years after the adoption of the impugned decision. As to the applicant companies’ argument under the Aarhus Convention, according to the Government it was obviously misplaced, since the applicant companies had not sought judicial review in the assertion of their right to an adequate environment. The previous decision of the Supreme Administrative Court on which they had relied had been an isolated case, which, moreover, had concerned environmental issues raised by a non-governmental organisation.

10. In the Court’s view, the Government’s arguments raise serious doubts as to the effectiveness of the remedy pursued by the applicant companies in 2013 and as to whether it could have provided adequate redress. However, the applicant companies have not responded to those arguments; in particular, in their submissions after the Government had been given notice of the application they no longer sought to rely on the Aarhus Convention, which, at the domestic level, had represented their main argument as to the admissibility of their application for judicial review.

11. In view of the above, the Court sees no reason to conclude that the remedy pursued by the applicant companies in 2013 was an effective and normal one; on the contrary, their application for judicial review appears to have been inappropriate and likely to fail.

12. Thus, the “final decision” in the case for the purposes of Article 35 § 1 of the Convention and the starting-point of the six-month time-limit was the GUDP for Sofia placing parts of the applicant companies’ plots of land in a “green zone” and potentially impeding their economic use. The GUDP entered into force on 28 January 2007. The applicant companies had no effective means at their disposal to remedy the situation and have not shown that any other relevant developments took place after that date; in particular, the authorities have not expressed any intention to modify the status of the plots, to expropriate them or to award any type of compensation.

13. The complaint under Article 1 of Protocol No. 1, as indicated above, was lodged in January 2014. It has therefore been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

14. In a final decision of 2 August 2013 the Supreme Administrative Court dismissed the applicant companies’ application for judicial review of the GUDP of Sofia as inadmissible. In particular, it pointed out that domestic law did not provide for the judicial review of GUDPs, and found the applicant companies’ arguments based on the Aarhus Convention unconvincing.

15. In view of the analysis above under Article 1 of Protocol No. 1 and the principles developed in its case-law (see, for example, Obermeier v. Austria , 28 June 1990, § 68, Series A no. 179, and Konkurrenten.no AS v. Norway (dec.), no. 47341/15, §§ 46-48, 5 November 2019), the Court finds that the national courts genuinely examined the admissibility of the application for judicial review and gave adequate reasons. Therefore, the complaint concerning access to a court 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 16 June 2022.

Ludmila Milanova Tim Eicke Acting Deputy Registrar President