Communicated on 8 December 2014

FOURTH SECTION

Application no. 39084/10 Ivelina Stoyanova DIMITROVA and others against Bulgaria lodged on 11 June 2010

STATEMENT OF FACTS

The first to the twenty-third applicants (“the individual applicants”) are members of three Roma families from the Varna municipality in Bulgaria. The twenty-fourth applicant, the association “ Obnovlenie ” (“the applicant association”), is a non-governmental organisation based in Varna which deals with Roma issues and which represented the individual applicants in the domestic proceedings.

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.

1. Planned demolition of the applicants ’ dwellings

The three applicant families mentioned above had lived in dwellings in 1a Borimechkata Street in the Mladost borough of Varna, Bulgaria for twenty years. Those dwellings were dilapidated houses owned by the municipality. The applicants alleged that their homes were in such a state of disrepair that they posed a danger to their inhabitants.

For over fifteen years the individual applicants had been applying for adequate housing without success. The fact that applicants were lodged at 1a Borimechkata Street meant that they could not be included on the waiting list for housing assistance, in accordance with the Ordinance on the Identification of Citizens ’ Housing Needs, Accommodation and Sale of Municipal Houses.

The municipality of Varna planned to demolish the buildings in which the individual applicants lived, along with several other buildings in the street, allegedly to build a kindergarten. The individual applicants were informed of the demolition a year before it was supposed to take place. The applicants, after taking legal advice, did not challenge the demolition order. Based on experience from earlier demolitions of Roma-inhabited municipal housing, however, and with the assistance of the applicant association, the individual applicants explicitly requested the local authority to provide them with alternative housing before their building was to be demolished. The applicants were not directed to alternative accommodation before the demolition began.

2. The eviction and demolition

On 21 November 2008, demolition works started on the first building. Following an intervention by the association applicant, the municipality orally granted a ten-day postponement for the demolition in order to find alternative housing for the individual applicants. This agreement was apparently reported in an article in newspaper “ Pozvanete ” on 22 November 2008. The municipal council also announced on the radio that alternative accommodation would be found, especially for the children, given that it was winter. During the ten-day period, the council refused to meet with the applicant association with a view to solving the accommodation problem. No accommodation was found for the individual applicants.

On 5 December 2008 the council proceeded with the demolition. The applicants were evicted by the police and a private security firm. At 7 a.m. on 5 December 2008 police surrounded the building and entered in it. They destroyed household items with clubs and poured water over the burning stove. The individual applicants were ordered to go out into the street, including the small children. Among them was Sava Zyumbyulkov Savov , born on 20 October 2008 and aged about one-and-a-half months at the time of the events. He was the youngest child of the Savov family.

The building was then demolished by firms hired by the municipality; they did not remove the applicants ’ belongings first, nor did they allow the applicants to remove their chattels themselves. Allegedly, the demolition officials, as well as the mayor of the Mladost borough of Varna who was present, made insulting remarks to the applicants, such as “Take that back home” and “You are too dirty, go take a shower and then come back”. The children witnessed their home being destroyed and their parents ’ distress.

3. Post-demolition situation

Although the municipal council claimed to have had plans for the demolition of multiple buildings in order to make room for a kindergarten and claimed to have demolished the houses which were in the worst shape, the applicant association, which continued to monitor the situation, noted that only buildings inhabited by Roma were demolished. Apparently, other more dilapidated buildings in the street remained standing at the time of lodging the application before the Court.

4. Accommodation of some applicants in shelters after the eviction

The Dimitrova family moved into a dwelling at 115 Pop Hariton Street, where they were directed by the borough authorities after the demolition on 5 December 2008. They were left on the street for approximately six hours. The four members of the family were accommodated in one room in which they have been living ever since, now with an additional baby.

The Savov family were not directed promptly to new housing. At approximately noon on 5 December 2008, the eighteenth applicant, concerned about the situation of her newly-born child, enquired with the borough authorities where her family could move. The borough authorities directed them towards the dwelling on 115 Pop Hariton Street. The Savov family began to move, but it was not until 11 p.m. that they were able to do so. In the meantime they were left in the street for 16 or 17 hours. They took shelter under a block of flats, where they had to change the baby ’ s nappies and clean their children in the open. They were ultimately accommodated in one room of the house on 115 Pop Hariton Street. At that point, ten members of the family occupied the same room (the applicants along with their now-deceased child and some relatives).

The building at 115 Pop Hariton Street is a single storey house with a total of three rooms. On 5 December 2008, the third room was uninhabitable. The Savov family made the room habitable and now three people live in it, while six other (applicants 18 to 23) live in the room in which they were all originally living. When the Dimitrova and Savov families moved into the building, there was no electricity supply and no hot water. The only toilet was an external one which had been destroyed and there was no place to shower or bath. There was only one sink. The applicants attached photographs of the house. Six months after they moved in the roof collapsed in the Dimitrova family room and they patched it up themselves. Now the roof leaks when it rains. They requested on several occasions for the dwelling to be supplied with electricity and it was only done so temporarily.

Although the borough directed the two families to the building, they have not received any documents or written order for accommodation by the borough. They have been informed orally that the building in which they were sent to live could be demolished at any moment because it is not fit for habitation. The families are concerned that they will be made homeless.

The Atanasova family are currently residing in a makeshift home which they put together themselves out of wooden blocks and cardboard they collected from a rubbish dump. They do not have a toilet and use an area behind the house for this purpose. They have no running water and must wash in the sea.

5. Death of a two-months old member of the Savov family

According to the applicants, because their one-and-a-half-months old baby had to remain outside on 5 December 2008 and because of the inadequate accommodation the authorities provided the Savov family after the demolition of their earlier lodging, Sava Zyumbyulkov Savov contracted pneumonia and died of it shortly after the eviction, on 30 December 2008, aged two months and ten days. The applicants submit that the death certificate indicates the cause of death as a bilateral pneumonia and acute respiratory and cardiac failure. The child was apparently healthy at birth.

6. Administrative proceedings brought on behalf of the individual applicants

( a) At first instance

The individual applicants gave the applicant association permission to represent them in domestic proceedings, challenging the way they had been treated. Ridvan Sali , who acted for the applicants in his capacity as the chairman of the applicant association, seized the Varna Administrative Court of the matter on behalf of the individual applicants on 9 October 2009. The association also joined the proceedings as a party. The applicants challenged the actions and omissions of the Varna council during and after the demolition in 1a Borimechkata Street .

By order of 9 October 2009 the Varna Administrative Court suspended the case and requested additional explanations as to the exact subject of the complaint and of the related requests. By a detailed letter of application of 20 October 2009 Ridvan Saly clarified that the core of the complaint concerned a challenge to the actions and omissions of the Varna municipal council officials, the Varna social assistance directorate, police officials, and the private security firm ’ s staff during the demolition of the building on 1a Borimechkata Street in Varna in November and December 2008, and thereafter in relation to provision of suitable dwellings. In particular, the applicants claimed that although the social assistance department staff were informed of the children ’ s imminent eviction, they failed to protect them and as a result a two-month old baby died. Further, the applicants claimed that, during the demolition, municipality officials, together with the police and a private security firm, had used excessive force and humiliating remarks in respect of the applicants, which caused them psychological trauma and feelings of anguish and powerlessness. Only dwellings inhabited by Roma individuals had been demolished and this was discriminatory treatment in respect of the applicants . Also, the shelter provided by the Varna municipality to the applicants had been in disrepair, yet its mere provision automatically led to the applicants ’ removal from the waiting lists for municipal housing. The applicants requested that the Varna municipality provide them with suitable accommodation, pay them compensation for the humiliation and distress to which they had been subjected during the eviction and for the inhuman conditions in which they have been forced to live in thereafter, and for the death of Sava Zyumbyulkov Savov , as well as revise its housing policy of the last 15 years. The applicants relied on the Protection a gainst Discrimination Act, the European Convention on Human Rights, and the United Nations Convention on the Rights of the Child.

On 23 October 2009 the Varna Administrative Court ruled that: a) assuming that the demolition/eviction order was the individual administrative act challenged with the claim, the 14-day period in which that could be done in accordance with Article 149 of the Code of Administrative Procedure (the Code) had expired and the association had not been personally affected by it; and b) the claim against the administrative actions and/or failures to act under Article 250(1)(5) of the Code was out of time, given that the authorities ’ actions complained of had already been discontinued. The court further noted that a claim under section 1(1) of the State and Municipalities Responsibility for Damage Act (the SMRDA) was inadmissible due to the lack of standing of the association and because such a claim would require a prior declaration of illegality according to Article 204 of the Code. The court held that the claims were inadmissible without considering them on the basis of the Protection against Discrimination Act, or asking to see signed forms of authority.

( b) At last instance

The applicants appealed before the Supreme Administrative Court (“SAC”) on 10 November 2009.

On 11 December 2009 the SAC upheld the lower court ’ s decision. It noted that the claim had been brought by the association on behalf of the individual applicants, and on behalf of the association itself, and that in essence it repeated the arguments submitted before the first-instance court. The SAC held in particular that the claim did not refer to a specific administrative act (under Article 145 (2) of the Code), action or omission (Article 250 of the Code) and that, in any event, the 14-day limitation period in respect of acts, actions and omissions related to the demolition and eviction had lapsed. Nor had the applicants made a valid claim for compensation under section 1 of the SMRDA, given that they had failed to specify the concrete acts, actions and omissions in connection with which they claimed compensation, as well as the amount of such compensation sought.

B. Relevant domestic law and practice

1. Protection against Discrimination Act 2004

The Protect ion against Discrimination Act (the Anti-Discrimination Act) is the main anti-discrimination legislation in Bulgaria. It is a single equality law universally banning discrimination on a range of grounds, explicitly including race/ethnicity, sex, religion/belief, sexual orientation, disability and age, and providing uniform standards of protection and remedies. In cases of alleged discrimination the burden of proof is on the defendant. The prohibition of discrimination is proclaimed to be effective erga omnes .

The Anti-Discrimination Act prohibits and defines direct and indirect discrimination, includi ng explicitly discrimination by association and by presumption. The Anti-Discrimination Act explicitly provides that harassment , incitement to discrimination, and victimisation constitute forms of discrimination. The Anti-Discrimination Act further defines racial segregation, explicitly providing that it is a form of discrimination.

Every individual who considers himself or herself a victim of discrimination can bring a claim before the relevant district (first-instance civil) court, seeking in particular that the act of discrimination be established, that the defendant be made to discontinue the discriminatory treatment and to refrain from future discrimination, and that compensation be paid to the victim (section 71). Section 71(2)) of the Anti-Discrimination Act explicitly e ntitles non-governmental organis ations to bring claims on behalf of victims complaining of discriminatory treatment and to seek compensation on their behalf.

When the damage is caused by an act, action or omission of a public official, the claim for compensation is examined under the SMRDA (section 74(2)) within the general civil claims limitations period of five years (section 110 of the Obligations and Contracts Act).

The domestic judicial practice on the question which courts have competence to hear discrimination claims seeking compensation has varied considerably. On the one hand, the Supreme Administrative Court held in a number of cases ( see реш . â„– 2544 от 24.02.2009 г. на ВАС по адм. д. â„– 12827/2008 г., VII о.; реш . â„– 6717 от 22.05.2009 г. на ВАС по адм. д. â„– 1125/2009 г., VII о.; реш . No . 6714 от 22.05.2009 г. на ВАС по адм. д. â„– 717/2009 г., VII о.; реш . â„– 3022 от 06.03.2009 г. на ВАС по адм. д. â„– 716/2009 г., VII о.; реш . â„– 2545 от 24.0 2 .2009 г. на ВАС по адм . д. â„– 14069 / 2008 г., VII о.) that the civil , and not the administrative , courts were competent to examine a claim alleging discrimination under the Anti ‑ discrimination Act. On the other hand, the Supreme Court of Cassation (SCC) held (see реш . â„– 73 от 12.06.2013 г. на ВКС по гр . д. â„– 311 / 2012 г., IV г.о .) that the decisive element was whether the alleged discriminatory action stemmed from a public or a private actor: in the former case, jurisdiction lay with the administrative courts; in the latter case with the civil courts. In a 2014 decision ( реш . â„– 268 от 20 .0 1 .20 14 г. на ВКС по гр . д. â„– 31 98/ 201 3 г., III г.о . ) , referring to the consistent related practice of mixed SAC and SCC benches ( and in particular опр . â„– 169 от 18.12.2008 г. на ВАС по адм. д. â„– 156/2008 г.; опр. â„– 21 от 7.05.2009 г. на ВКС по гр. д. â„– 24/2009 г.; опр. â„– 41 от 23.07.2009 г . на ВКС по гр . д. â„– 20/2009 г.) the SCC found that the lower civil court had no jurisdiction to hear a claim alleging discrimination and seeking compensation under section 71 of the Anti-discrimination Act, because the claim was against the actions/ omissions of a public body. Consequently, the SCC found that competent to examine such a claim was the administrative court and sent the case to it .

A public hearing is scheduled to take place in November 2014 in a pending case aimed at adopting an interpretative decision by a joint bench of SAC and SCC judges on the question which courts, the administrative or the civil ones, have jurisdiction to hear claims about discriminatory treatment. The case was opened following a request by deputy presidents of the two Supreme Courts who referred to the existing diverging practice, in particular decisions finding that competent were the administrative courts (see опр . № 22 от 01.04.2010 по адм. дело № 10/2010 г., опр. № 40 от 09.07.2013 по адм. дело № 33/2013 г., опр. № 21 от 31.03.2010 по адм. дело № 16/2010 г., опр. №143 от 25.09.2008 по адм. дело № 129/2008 г., опр. №45 от 16.07.2013 по адм . дело № 42/2013 г .) and decisions finding that competent were the civil courts (see опр . № 54 от 27.07.2009 г . по адм . дело № 15/2009 г ., опр . № 55 от 27.07.2009 г . по адм . дело № 35/2009 г ., опр. № 147 от 05.12.2007 г . по адм . дело № 147/2007 г ., опр. № 50 от 22.08.2013 г . по адм . дело № 31/2013 г . по описа на ВАС ).

2. State and Municipalities Responsibility for Damage Act (the SMRDA)

Section 1(1) of the SMRDA provides, as of July 2006, that the municipalities, and not only the State as was the case until then, are liable for damage caused to individuals and legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while dischargi ng their administrative duties. Section 4 of the Act 1988 provides that compensation is due for all damage which is the direct and proximate result of the unlawful act or omission. The State ’ s liability is strict, i.e. no intent or knowledge is required on the part of the civil servants in the commission of the unlawful acts.

A claim for damages could be made after the administrative act in question had been quashed in prior proceedings (Article 204 (1) of the Code of Administrative Procedure (the Code)). However, t he lawfuln ess of administrative actions or failure to act is established by the court in the context of the same proceedings for damages ( Article 204 (4) of the Code).

Persons seeking redress for damage occasioned in circumstances falling within the scope of SMRDA have no claim under the general law of tort, as SMRDA is a lex specialis and excludes the application of the general regime (section 8(1) of SMRDA ; реш . № 1370/1992 г. от 16 декември 1992 г. по гр.д . № 1181/1992 г. на ВС, І V г.о .; реш . от 29 юли 2002 г. по гр.д . № 169/2002 г. на СГС, ГК, І V б отд.).

3. Code of Administrative Procedure (the Code)

Individuals can seek protection against actions and omissions of administrative bodies under Chapter 11 of the Code. Article 250 of the Code stipulates in particular that everyone with a legal interest can bring a claim before the respective administrative court, seeking that the administrative body be ordered to discontinue an action which is not based on an administrative act or on the law.

According to Article 21, an individual administrative act is an explicit declaration of will or a declaration of will expressed by an action or omission of an administrative authority or another authority or organis ation empowered to do so by a law, whereby rights or obligations are created or rights, freedoms or legitimate interests of particular individuals or organizations are affected, as well as the refusal to issue any such act.

Individual administrative acts can be challenged within 14 days of their communication to those concerned. The tacit refusal of an administrative body to issue an administrative act is considered by the courts an individual administrative act; it can be challenged within a month from the day on which a decision was due by the administrative body (Article 149).

All claims for damages stemming from unlawful acts, actions or omissions by public bodies or officials are heard at first instance by the respective administrative court (Article 128 (1) (5) of the Code).

If an irregular claim has been made challenging an individual administrative act before a court, the court specifies the irregularity and invites the party to correct it and resubmit the claim within seven days (Article 158).

COMPLAINTS

Those of the individual applicants who are members of the Savov family (applicants 18 to 23 in the appendix) , complain under Article 2 of the Convention that the death of Sava Zyumbyulkov Savov resulted from discriminatory administrative actions. Relying on the same Article, they complain about the authorities ’ failure to take measures to establish the circumstances of the child ’ s death and attribute responsibility for it.

All the individual applicants also complain under Article 3 about having been subjected to treatment contrary to this provision during the demolition and their forced eviction on 5 December 2008. They submit that they were treated in that manner because of their race, which they note can in itself amount to degrading treatment within the meaning of Article 3 ( Moldovan and Others v. Romania (no. 2) , nos. 41138/98 and 64320/01, § 111 , ECHR 2005 ‑ VII (extracts) ).

All individual applicants further rely on Article 6 § 1 of the Convention, complaining that they did not have a fair trial in the proceedings which the applicant association brought on their behalf for establishing discrimination and seeking compensation for it. In particular they complain that this was because the courts refused to examine their allegations that the treatment to which they had been subjected was the result of racial discrimination. Relying on Article 13 in conjunction with Article 6 § 1, the applicants claim that they did not have an effective remedy in connection with this complaint.

The individual applicants complain also under Article 8 of the Convention that their right to moral and physical integrity, both aspects of private life, as well as for respect for their family life and home was breached as a result of the manner in which they were evicted from their home, as well as of the inadequate living conditions in which they were made to live subsequently.

Finally, the individual applicants complain under Article 14 in conjunction with Articles 2, 3, 6 § 1 and 8 of the Convention that the authorities treated them in the manner described above as a result of racially discriminating against them.

QUESTIONS TO THE PARTIES

1. Have the individual applicants exhausted domestic remedies in relation to their complaints under Articles 2, 3, 6 § 1 and 8 and Article 14 in connection with Articles 2, 3 and 8 before applying to the Court, as required under Article 35 § 1 of the Convention? In particular, was the claim for establishing discriminatory treatment and receiving compensation, which the applicant association brought before the administrative courts on behalf of the individual applicants in relation to the eviction, to the infant ’ s death and to the living conditions in which the individual applicants found themselves thereafter, an effective domestic remedy?

2. Has the right to life of the Savovi family members , protected by Article 2 of the Convention, been violated in the present case as a result of the infant ’ s death ? In particular, did the authorities act adequately and in good time in order to protect the child ’ s life, in accordance with their positive obligation to take appropriate steps to safeguard the lives of those within their jurisdiction (see, for example , Öneryıldız v. Turkey [GC], no. 48939/99, § 71 , ECHR 2004 ‑ XII ) ? Having regard to the procedural obligation under Article 2 of the Convention, did the domestic authorities satisfy it, or has there been a breach of Article 2 of the Convention on that count?

3 . Have the individual applicant s been subjected to inhuman or degrading treatment in breach of Article 3 of the Convention as a result of the manner in which the demolition and eviction was conducted on 5 December 2008 and of the living conditions provided by the authorities thereafter ?

4. Did the individual applicants have a fair trial, as required under Article 6 § 1 of the Convention, in the proceedings brought on their behalf alleging discriminatory treatment during and after their eviction, and seeking compensation for it?

5. Did the authorities respect the individual applicants ’ right to protection of their home as well as private and family life under Article 8 of the Convention? In particular, was the individual applicants ’ treatment during the demolition and eviction necessary in a democratic society? Were the authorities under a positive obligation under Article 8 to provide the applicants with adequate shelter in good time? If yes, did they breach this obligation?

6. Did the individual applicants have an effective domestic remedy, as required under Article 13, in connection with their complaints under Articles 2, 3 , 6 § 1 and 8?

7 . Has there been a violation of the prohibition of discrimination under Article 14 of the Convention taken in conjunction with Articles 2, 3 and 8 of the Convention, in respect of the individual applicants?

The parties are invited to submit a copy of the death certificate of Sava Zyumbyulkov Savov as well as any documents indicative of the manner in which the eviction and demolition on 5 December 2008 was carried out.

Appendix

The individual applicants are all Bulgarian nationals who live in Varna. They are members of three families each of which consists of two parents and their children. They are listed below by family and the parents ’ names are underlined for easy reference.