Information Note on the Court’s case-law 195

April 2016

Ivanova and Cherkezov v. Bulgaria - 46577/15

Judgment 21.4.2016 [Section V]

Article 8

Article 8-1

Respect for home

Order, without proportionality assessment, for demolition of applicants’ home for breach of building regulations: demolition would constitute a violation

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Order for demolition of applicants’ home for breach of building regulations: demolition would not constitute a violation

Facts – Section 148(1) of the Territorial Organisation Act 2001 provides that buildings may only be constructed if they have been duly authorised in accordance with the Act. By virtue of section 225(2)(2) a building constructed without a building permit is illegal and subject to demolition. Unless it falls within the Act’s transitional amnesty provisions, an unlawfully construct ed building cannot subsequently be legalised. The Bulgarian Supreme Administrative Court has held that this legislation demonstrates the heightened public interest in controlling construction and that the building-control authorities have no discretion in relation to the removal of illegally constructed buildings, but must order their demolition.

The applicants built a house without obtaining a building permit. The local authority served a demolition order on them. The first applicant sought judicial review arguing that the house was her only home and that its demolition would cause her considerabl e difficulties as she would be unable to secure another place to live. However, the domestic authorities ruled against her after the Supreme Administrative Court found that the house was subject to demolition as it had been built unlawfully and did not be qualify for legalisation under the transitional amnesty provisions.

In the Convention proceedings, the applicants complained that the demolition of the house would breach their right to respect for their home (Article 8 of the Convention). The first applic ant further complained that the demolition would be a disproportionate interference with her right to the peaceful enjoyment of her possessions (Article 1 of Protocol No. 1).

Law – Article 8: Although only the first applicant had legal rights to the house, both applicants had lived in the property for a number of years. It was therefore “home” for both of them. The order for demolition amounted to interference with their right to respect for that home. The interference was in accordance with the law and pur sued the legitimate aims of preventing disorder and promoting the economic well-being of the country as it sought to tackle the problem of illegal construction which appeared to be rife in Bulgaria.

The question whether the loss of the applicants’ home for the promotion of a public interest was necessary in a democratic society involved not only issues of substance but also the procedural question of whether the decision-making process afforded due respect to the interests protected under Article 8. Among t he factors likely to be of prominence in illegal construction cases were whether the home was established unlawfully, whether it was established knowingly, the nature and degree of the illegality, the precise nature of the interest sought to be protected b y the demolition, and the availability of suitable alternative accommodation or of less severe ways of dealing with the case.

The proceedings in the applicants’ case did not meet these procedural requirements. The entire focus of the proceedings was on whe ther the house had been built without a permit and whether it fell within the transitional amnesty provisions. The Supreme Administrative Court did not even mention, let alone substantively engage with, the first applicant’s point that the house was her on ly home and that she would be severely affected by its demolition. None of the remedies that had been suggested by the Government or the Supreme Administrative Court – postponement of the enforcement of the demolition order, an application for judicial rev iew under Article 294 et seq. of the Code of Administrative Procedure 2006 or a claim for declaratory judgment under Article 292 of the Code – appeared to be effective in practice. Likewise, the involvement of the social services could not make good the la ck of a proper proportionality assessment.

In sum, the applicants had not had at their disposal a procedure enabling them to obtain a proper review of the proportionality of the intended demolition of the house in which they lived in the light of their per sonal circumstances.

Conclusion : demolition would constitute a violation (six votes to one).

Article 1 of Protocol No. 1: The first applicant had a “possession” as it was settled law in Bulgaria that illegal buildings could be the object of the right to property and the domestic courts had found that she owned shares in both the land and the house . The demolition order amounted to interference in the form of a “control [of] the use of property”. It had a clear legal basis and was therefore “lawful” and was also “in accordance with the general interest”, as it sought to ensure compliance with the bu ilding regulations.

The salient issue was whether the interference would strike a fair balance between the first applicant’s interest in keeping her possessions intact and the general interest in ensuring effective implementation of the prohibition against building without a permit. The States have a wide margin of appreciation regarding the implementation of spatial planning and property development policies. For that reason, unlike Article 8 of the Convention, Article 1 of Protocol No. 1 did not in such c ases presuppose the availability of a procedure requiring an individualised assessment of the necessity of each measure of implementation of the relevant planning rules.

In the first applicant’s case, the house had knowingly been built without a permit in flagrant breach of the domestic building regulations. That was a crucial consideration under Article 1 of Protocol No. 1. The order that the house be demolished, which was issued a reasonable time after its construction, simply sought to put things back in the position in which they would have been if the first applicant had not disregarded the requirements of the law. The order and its enforcement would also serve to deter other potential lawbreakers. That was a relevant factor in view of the apparent perv asiveness of the problem of illegal construction in Bulgaria. In view of the State’s wide margin of appreciation, none of these considerations could be outweighed by the first applicant’s proprietary interest in the house.

Conclusion : demolition would not constitute a violation (unanimously).

Article 41: Finding of a violation sufficient just satisfaction in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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