Communicated on 27 August 2019

FIFTH SECTION

Application no. 46287/12 Mladen Stefanov STOYANOV against Bulgaria lodged on 10 July 2012

STATEMENT OF FACTS

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

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

The applicant is the owner of a flat situated on the first floor of a house in Sofia. The flats situated on the ground and second floors are the property of other people, with all of them co-owning the common parts of the building, including the roof. Until 2005 the applicant lived in his flat with his family.

In June 2005 the applicant ’ s neighbour owning the second-floor flat, D.Y., started renovation works, which inflicted damage on the house ’ s roof. After the applicant complained to the authorities, on 22 June 2005 the head of the regional office of the National Building Control Directorate (hereinafter “the Directorate”), finding that the construction works were illegal, ordered their immediate cessation.

However, by that time the roof of the house had been removed and the walls of the second floor were almost entirely demolished.

Several days later heavy rain started and the applicant ’ s flat was flooded. The applicant and his family left it.

On 22 August 2005 a commission appointed by the local mayor visited the building and assessed its state. In a decision of the same day the mayor authorised the applicant to carry out the necessary conservation and reconstruction works at the expense of all co-owners. However, after the applicant applied for judicial review, arguing in particular that the cost of the necessary works had not to be borne by all co-owners, that decision was quashed on procedural grounds in a final judgment of the Sofia City Court of 11 February 2010.

In a decision of 9 November 2005 the Directorate, reiterating that the works undertaken by D.Y. had been illegal, and noting in addition that the removal of the roof endangered the solidity of the entire building, ordered D.Y. to reconstruct the building in its previous state. It also ordered her to construct, within a short time-limit, a temporary roof. In case she failed to abide by the above orders, the Directorate would undertake the necessary works on her account, in accordance with Ordinance no. 13 of 23 July 2001 on the enforcement of decisions on the removal of illegal constructions or parts of them by the National Building Control Directorate (hereinafter “the 2001 Ordinance”, see Relevant domestic law below). Lastly, the decision stated that its part concerning the construction of a temporary roof was to be immediately enforced, regardless of any judicial-review proceedings.

That latter part of the decision was upheld on 30 March 2006 by the Sofia City Court. However, no temporary roof was ever constructed, either by D.Y. or by the Directorate.

In a judgment of 20 November 2008 the Sofia City Court upheld the decision of 9 November 2005. It held in particular, relying on expert reports, that the building, albeit already damaged, could still be reconstructed in its previous state.

The above judgment entered into force on 10 July 2009, when it was upheld by the Supreme Administrative Court.

After the prosecution authorities opened criminal proceedings against D.Y. ’ s son – the person who had in fact demolished the roof of the building – on 17 January 2011 the Sofia District Court approved a plea agreement whereby he acknowledged having committed the offence of destruction of the property of another. The applicant was not a party to those proceedings.

In 2010 and 2011 the applicant sent letters to the Directorate, urging it to enforce the decision of 9 November 2005. He noted that the building where his flat was located was already seriously damaged since no restoration or conservation works had been undertaken. He also complained to other State bodies.

In its replies to the applicant and to those bodies the Directorate explained that in the beginning of 2010 it had sent a letter to D.Y., informing her that she was to comply with the above decision, but had been unable to find her on the address which had been indicated. The Directorate was to impose on her an administrative sanction. The decision of 9 November 2005 had also been sent for enforcement to D.Y. ’ s son, seeing that he was the person having in fact carried out the illegal demolition works. In addition, the Directorate argued that it was unable to act because any reconstruction works necessitated a construction permit, which could be obtained from the municipality only upon a request by an owner, and a technical plan, which had to be signed by all co-owners of the building.

The applicant has not informed the Court of any further action taken on his part or on the part of the authorities between 2011 and 2018.

On 25 June 2018 the municipal authorities in Sofia ordered the demolition of the building where the applicant ’ s flat was located. It was noted that it had remained without a roof for many years, that it could not be inhabited, and that it had become dangerous.

The applicant applied for the judicial review of the above decision. The proceedings are still pending.

The general requirements concerning the legality of buildings are contained in the Territorial Organisation Act 2001 ( Закон за устройство на територията ).

The 2001 Ordinance, issued by the Minister of Public Works ( Наредба № 13 за принудителното изпълнение на заповеди за премахване на незаконни строежи или части от тях от органите на Дирекцията за национален строителен контрол ), deals with situations where the person having carried out illegal construction works, or having illegally demolished buildings or parts of them, fails to comply with the decision ordering demolition, respectively reconstruction. In such a case the required works are to be carried out by a person or a company selected by the Directorate after a public tender, their cost to be charged to the person having carried out the illegal works.

COMPLAINTS

The applicant complains, relying on Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1, of the Directorate ’ s failure to enforce the decision of 9 November 2005, including as concerns the urgent construction of a temporary roof, as obliged in particular under the 2001 Ordinance. The applicant complains furthermore of the lack of any effective means at his disposal to bring about the enforcement of the decision at issue.

QUESTIONS TO THE PARTIES

1. Did the respondent State ’ s positive obligations under Article 1 of Protocol No. 1 include an obligation to enforce the administrative decision of 9 November 2005, in particular by constructing a temporary roof and/or reconstructing the applicant ’ s flat, as provided for under domestic law? If so, was the National Building Control Directorate ’ s failure to do so, in view of the reasons given by it, justified? Could the applicant have carried out the necessary conservation and/or reconstruction works himself, possibly after obtaining a fresh authorisation by the authorities to do so?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 1 of Protocol No. 1, as required by Article 13 of the Convention?