Communicated on 27 April 2016

FIFTH SECTION

Application no. 33586/15 Stoyan Lyubenov AYDAROV and others against Bulgaria lodged on 10 July 2015

STATEMENT OF FACTS

1. The twelve applicants are two families of Bulgarian nationals of Roma ethnic origin: the Aydarovi family and the Ilievi family.

2. The Aydarovi family consists of a husband and a wife, born in 1987 and 1989, and their two children, born in 2006 and 2008. The family were expecting a third child in August 2015. The child born in 2008 has glaucoma and is blind.

3. The Ilievi family consists of a husband and wife, born in 1979 and 1984, and their six children, born in 2001, 2004, 2006, 2009, 2011 and 2013. The child born in 2006 has spastic diplegia – a form of cerebral palsy – and is completely paralysed.

4. A full list of the applicants is set out in the appendix.

A. The circumstances of the case

5. The facts of the case, as submitted by the applicants and established by the Court of its own motion, may be summarised as follows.

1. Background

6 . The two applicant families live near the village of Marchevo , in the municipality of Garmen , in an area known as the settlement of Kremikovtsi , which was apparently established in the 1960s. The settlement consists of one hundred thirty-four houses inhabited by about seven hundred and seventy persons, all of Roma ethnic origin. About three hundred and fifty of those persons are children, one hundred and forty of whom were between one and six years old in August 2015. The land on which the settlement stands is owned by Garmen Municipality and is, according to the local zoning plan, agricultural. Most of the houses in the settlement, including the two houses inhabited by the applicant families, are one-storey brick buildings having one or two rooms.

7 . Between December 2010 and February 2012, the administration of Garmen Municipality issued one hundred fourteen certificates saying that although unlawfully built, the houses in the settlement, including those inhabited by the applicant families, could be tolerated under the transitional amnesty provisions of the Territorial Organisation Act 2001 (see paragraph 38 below). The certificate relating to the house inhabited by the Aydarovi family said that it had been built before 1987. The applicants have not submitted the certificate relating to the house inhabited by the Ilievi family.

8. Between March 2011 and November 2012, the regional office of the National Building Control Directorate set aside one hundred and four of those certificates and upheld the remaining ten. It is unclear whether the certificates relating to the two houses inhabited by the applicant families were set aside or upheld.

9. In 2013-14 Garmen Municipality sold plots of land in the Kremikovtsi settlement to twenty-four persons who lived there. The applicants were not among those. The municipality apparently stated that it intended to continue making such sales, but then halted them.

2. The demolition orders

10. In 2010-11 officers of the National Building Control Directorate inspected one hundred thirty-four houses in the settlement and found that they had been unlawfully built. The house inhabited by the Aydarovi family was inspected on 19 August 2010 and that inhabited by the Ilievi family on 23 August 2010.

11 . In a decision of 22 March 2011, the regional office of the National Building Control Directorate noted that the house inhabited by the Ilievi family had been built in 2002-03 on land owned by Garmen Municipality without the requisite construction papers, in breach of section 148(1) of the 2001 Act, and in the absence of a detailed zoning plan, in breach of section 12(2) of the Act. There was no procedure for its legalisation under the Act ’ s transitional amnesty provisions. It was therefore unlawful and as such subject to demolition.

12 . Mr Krasimir Iliev , to whom the order was addressed, did not seek judicial review. He says that he did not do so because he was illiterate, unaware of the legal options available to him, indigent, and not in a position to seek legal aid.

13 . In a decision of 22 June 2011, the regional office of the National Building Control Directorate noted that the house inhabited by the Aydarovi family had been built in 2002-03 on land owned by Garmen Municipality without the requisite constructio n papers, in breach of sections 137(3) and 148(1) of the 2001 Act; without a right to build, in breach of section 182(1) of the Act; and in the absence of a detailed zoning plan, in breach of section 12(2) of the Act. There was no procedure for its legalisation under the Act ’ s transitional amnesty provisions. It was therefore unlawful and as such subject to demolition.

14 . Mr Stoyan Aydarov sought judicial review of the order, arguing that it did not properly describe the house, that a procedure for its legalisation was pending, and that Garmen Municipality had certified that the house, although unlawfully constructed, could be tolerated (see paragraph 7 above).

15 . On 20 October 2011 the Blagoevgrad Administrative Court dismissed the claim. It held that the order had been issued in due form, with a proper description of the house, and in line with the applicable procedure. The available evidence showed that there was no pending procedure for the legalisation of the house. It did not fall under the transitional amnesty provisions of the 2001 Act either. The certificate issued by Garmen Municipality to that effect could not preclude the court from establishing that point for itself, and had no evidential value in proceedings for judicial review of a demolition order.

16 . Mr Stoyan Aydarov did not appeal against this decision, and it accordingly became final on 11 November 2011.

17. In 2010-12 the regional office of the National Building Control Directorate apparently issued a total of one hundred twenty-four demolition orders in relation to houses in the Kremikovtsi settlement.

3. The proceedings for enforcement of the two demolition orders

18 . In December 2013 the National Building Control Directorate decided to stay the enforcement of the demolition orders relating to the Kremikovtsi settlement pending a solution of the housing problem of the persons living there.

19 . On 25 May 2015 the Blagoevgrad Regional Governor wrote to the National Building Control Directorate and its regional office, inquiring about the steps taken to enforce the demolition orders. He referred to a letter by the inhabitants of Marchevo of 23 February 2015, in which they protested against the “brutal gypsy raids on the property of the villagers [and] the uncontrolled settlement of a large gypsy community” in Kremikovtsi .

20. In reply, the National Building Control Directorate asked the Blagoevgrad Regional Governor and the mayor of Garmen what steps, if any, had been taken to provide housing for the persons concerned by the demolition orders, so that their enforcement could resume.

21. On 27 May 2015 the regional office of the National Building Control Directorate invited Mr Stoyan Aydarov and Mr Krasimir Iliev to comply with the demolition orders in their cases within fourteen days of receiving notice to do so, and advised them that failure to do so would prompt it to enforce the orders at their expense.

22 . On 23 June 2015 the National Building Control Directorate, having noted that the orders had not been complied with, instructed a private company to demolish the houses inhabited by the Aydarovi and Ilievi families between 13 and 24 July 2015.

23 . On 8 July 2015 Mr Stoyan Aydarov and Mr Krasimir Iliev sought judicial review of the orders ’ enforcement. They argued, inter alia , that it would be in breach of Articles 3 and 8 of the Convention because the houses subject to demolition were theirs and their families ’ – which comprised minor children, some of which disabled – only homes. They also argued that enforcement would run counter to the principle of proportionality, enshrined in Article 6 of the Code of Administrative Procedure 2006 as a general rule of Bulgarian administrative procedure. They requested, by way of interim measures, that enforcement be stayed pending the examination of their legal challenges on the merits.

24 . In two decisions of 10 July 2015, the Blagoevgrad Administrative Court found that the claims for judicial review were out of time. In as much as under Bulgarian administrative procedure, a claim that an administrative decision or action is null and void is not limited by time, the court nevertheless examined the basic validity of the steps taken to enforce the demolition orders, and concluded that they were not null and void. Lastly, the court held that the requests for interim measures could only be entertained if they had been made alongside admissible claims for judicial review, which was not the case. They could not therefore be allowed.

25 . Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. In two decisions given respectively on 13 and 21 October 2015 ( опр . № 10577 от 13.10.2015 г. по адм . д. № 10005/2015 г., ВАС, II о., and опр . № 10968 от 21.10.2015 г. по адм . д. № 11571/2015 г., ВАС, II о. ), the Supreme Administrative Court held that in as much as the appeals concerned the refusals to impose interim measures, they were inadmissible because no appeal lay against such rulings. The rulings that the enforcement measures were not null and void were final as well. However, the court found that the rulings that the claims for judicial review were out of time were subject to appeal and were tainted by a procedural irregularity because when making them the lower court had sat in three-judge formations instead of single-judge ones. Accordingly, it remitted these parts of the cases to the lower court.

26. On 8 and 9 December 2015 the Blagoevgrad Administrative Court, this time sitting in single-judge formations, again found that the claims for judicial review were out of time.

27. Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. On 25 February 2016 the Supreme Administrative Court upheld the lower court ’ s decision in the case of Mr Iliev (see опр . № 2188 от 25 . 02 .2015 г. по адм . д. № 1313/2016 г., ВАС, II о. ), but on 18 March 2016 quashed the lower court ’ s decision in the case of Mr Aydarov , holding that he had not been duly notified of the enforcement as his address had not been correctly set out in the letter informing him of it (see опр . № 3098 от 18 . 03 .2015 г. по адм . д. № 2796/2016 г., ВАС, II о. ).

28 . The proceedings in the case of Mr Stoyan Aydarov are apparently still pending on remittal before the Blagoevgrad Administrative Court.

29 . In the meantime, on 13 July 2015, in connection with a request by the applicants for the indication of interim measures under Rule 39 of the Rules of Court and a request for information sent by this Court in connection with this request, the National Building Control Directorate decided to postpone enforcement of the two demolition orders until the end of July 2015.

30 . On 20 July 2015, Mr Stoyan Aydarov and Mr Krasimir Iliev sought judicial review of the letters informing them of that postponement. In two decisions of 22 July 2015, the Blagoevgrad Administrative Court found that the letters did not amount to an enforcement measure amenable to judicial review, and accordingly declared the claims inadmissible. Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. In two decisions given respectively on 15 and 16 October 2015 ( опр . № 10735 от 15.10.2015 г. по адм . д. № 11498/2015 г., ВАС, II о., and опр . № 10797 от 16.10.2015 г. по адм . д. № 11497/2015 г., ВАС, II о. ), the Supreme Administrative Court quashed those decisions and remitted the cases to the lower court. It held that that court had, in breach of the rules of procedure, sat in a three-judge formation whereas it should have sat in a single-judge one. On 20 and 22 October 2015 the Blagoevgrad Administrative Court, this time sitting in single-judge formations, again held that the letters did not amount to an enforcement measure amenable to judicial review. Its decisions were upheld by the Supreme Administrative Court on 1 and 3 February 2016 (see опр . № 1004 от 01 . 02 .201 6 г. по адм . д. № 14276/2015 г., ВАС, II о. , and опр . № 1099 от 03 . 02 .201 6 г. по адм . д. № 14261/2015 г., ВАС, II о. )

31 . Enforcement of the two demolition orders was later postponed until the end of August 2015, and then until the end of October 2015, because no alternative accommodation had been found for the applicants. It appears that no steps have been taken to enforce the orders until now.

4. Discussions of the applicants ’ situation by various authorities

32 . On 8 July 2015 a commission appointed by the Blagoevgrad Regional Governor on 30 May 2015 and comprising the mayor of Garmen , the regional governor himself, and the heads of the regional offices of the health, social, educational, building control, state property management, and police authorities met to discuss the situation of the persons due to be evicted from the Kremikovtsi settlement. It was noted, inter alia , that the Territorial Organisation Act 2001 did not require that persons whose houses are due to be demolished and who have no other place to live be provided with alternative accommodation. The mayor of Garmen said that the municipality did not have available premises in which to settle those concerned. The possibility was muted of settling them in an abandoned school, but it was noted that this would require works and thus additional funding, which was not forthcoming.

33 . In the meantime, on 1 July 2015 the Blagoevgrad Regional Governor wrote to the mayor of Garmen and the president of the Garmen Municipal Council, advising them that under the requirements of the Convention, as interpreted by this Court, they had to take steps provisionally to accommodate the inhabitants of the Kremikovtsi settlement who would be affected by the demolition of their houses.

34 . On 2 July 2015 the Blagoevgrad Regional Governor asked various authorities about the possibilities for settling the children affected by the demolition.

35 . On 8 July 2015 the Minister of Regional Development and Urbanisation, noting that the demolition of the houses inhabited by the applicant families would affect two disabled children, who were entitled to special protection under the child protection legislation, asked the mayor of Garmen , the Child Protection Agency and the Social Assistance Agency to take steps to provide social services to the affected families before the demolition was due to start.

36 . On 10 July 2015 social workers visited the applicants, informing them that they could be accommodated in a shelter for homeless people for a maximum period of three months, or have the children accommodated in a special centre or in a child-care institution. The applicants stated that they were not interested because they wanted to remain in the neighbourhood and did not wish to be separated from their children.

37 . On 16 July 2015 the National Building Control Directorate asked the mayor of Garmen what steps were being envisaged provisionally to settle the applicants, so that it could resume enforcement of the demolition orders.

B. Relevant domestic law

38 . The transitional amnesty provisions of the Territorial Organisation Act 2001 relating to unlawful buildings put up before 2001 are set out in paragraphs 28-29 of the Court ’ s judgment in the case of Ivanova and Cherkezov v. Bulgaria (no. 46577/15, 21 April 2016).

39 . The statutory provisions and case-law of the administrative courts relating to orders for the demolition of unlawfully constructed buildings and legal challenges to such orders by way of claims for judicial review of the demolition orders themselves, claims for judicial review of steps taken for the orders ’ enforcement, or claims for a declaratory judgment with respect to facts intervening between the issuing of the orders and their enforcement are set out in paragraphs 25-27 and 30-40 of the same judgment.

COMPLAINTS

40. The applicants complain under Article 3 of the Convention that the proceedings intended to result in the demolition of the houses in which they live, in the course of which the authorities did not discuss with them any alternative accommodation, and which unfolded against the backdrop of racial tensions against Roma in the local community, amounted to inhuman and degrading treatment.

41. The applicants complain under Article 8 of the Convention that the demolition of the houses in which they live would not serve a legitimate aim and would be disproportionate.

42. The applicants complain under Article 1 of Protocol No. 1 that the demolition of the houses in which they live would be an unjustified interference with the peaceful enjoyment of their possessions.

43. The applicants complain under Article 13 of the Convention that they do not have an effective domestic remedy in respect of the breaches alleged above.

44. Lastly, the applicants complain under Article 14 of the Convention that the measures against them are discriminatory because (a) the authorities took them under the influence of anti-Roma protesters; (b) the authorities did not take steps to demolish other unlawfully constructed buildings, such as seaside hotels; (c) the authorities did not take into account that the houses subject to demolition were the applicants ’ only homes, in which they had lived for a long time; (d) the authorities did not act consistently throughout the procedure; and (e) the authorities pressed on with their plan to demolish the houses while aware that no alternative accommodation would be available to the applicants.

QUESTIONS TO THE PARTIES

1. 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?

2. Would such eviction and demolition give rise to a breach of Article 1 of Protocol No. 1, taken alone or in conjunction with Article 14 of the Convention?

3. Have the applicants been subjected to inhuman or degrading treatment in connection with the procedure for the demolition of the houses in which they live, in breach of Article 3 of the Convention?

4. Do the applicants have at their disposal an effective domestic remedy for the above complaints, as required by Article 13 of the Convention?

APPENDIX

M r Stoyan Lyubenov Aydarov , born in 1987

Ms Lilyana Mariyanova Aydarova , born in 1989

Mr Yosif Stoyanov Aydarov , born in 2006

Mr Mariyan Stoyanov Aydarov , born in 2008

Mr Krasimir Hristov Iliev , born in 1979

Ms Makedonka Aneva Kirilova , born in 1984

Ms Sinema Krasimirova Ilieva , born in 2001

Ms Elena Makedonkova Kirilova , born in 2004

Mr Iliya Makedonkov Kirilov , born in 2006

Mr Yoan Krasimirov Iliev , born in 2009

Mr Hristo Krasimirov Iliev , born in 2011

Mr Yosif Krasimirov Iliev , born in 2013