FIFTH SECTION
\nDECISION<\/p>\n
Application no. 33586\/15
\nStoyan Lyubenov AYDAROV and Others
\nagainst Bulgaria<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 2\u00a0October 2018 as a Chamber composed of:<\/p>\n
Angelika Nu\u00dfberger, President,
\nYonko Grozev,
\nS\u00edofra O\u2019Leary,
\nM\u0101rti\u0146\u0161 Mits,
\nGabriele Kucsko-Stadlmayer,
\nL\u04d9tif H\u00fcseynov,
\nLado Chanturia, judges,
\nand Claudia Westerdiek, Section Registrar,<\/p>\n
Having regard to the above application lodged on 10 July 2015,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,<\/p>\n
Having regard to the submissions by the European Roma Rights Centre, which was given leave to intervene as a third party in the written proceedings,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 33586\/15) against the Republic of Bulgaria lodged with the Court on 10 July 2015 under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by twelve Bulgarian nationals whose names and years of birth are set out in paragraphs 5 and 7 below (\u201cthe applicants\u201d). They were represented by Ms D. Mihaylova and Mr\u00a0A.\u00a0Kashumov, lawyers practising in Sofia.<\/p>\n 2.\u00a0\u00a0The Bulgarian Government (\u201cthe Government\u201d) were represented by their Agent, Ms M. Dimitrova of the Ministry of Justice.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 1.\u00a0\u00a0The applicants<\/em><\/p>\n 4.\u00a0\u00a0The applicants are two families of Bulgarian nationals of Roma ethnic origin: the Aydarovi family and the Ilievi family.<\/p>\n 5.\u00a0\u00a0The Aydarovi family consists of Mr Stoyan Aydarov, born in 1987, and Ms Lilyana Aydarova, born in 1989, and their three children. The first child, Mr Yosif Aydarov, was born in 2006. The second, Mr Mariyan Aydarov, was born in 2008. The third (who is not an applicant in these proceedings), Ms Lidia Aydarova, was born on 21 August 2015.<\/p>\n 6.\u00a0\u00a0Mr Mariyan Aydarov and Ms Lidia Aydarova both suffer from congenital glaucoma in both eyes, for which they have undergone medical treatment and several operations since infancy.<\/p>\n 7.\u00a0\u00a0The Ilievi family consists of Mr Krasimir Iliev, born in 1979, and Ms\u00a0Makedonka Kirilova, born in 1984, and their six children. The first child, Ms Sinema Ilieva, was born in 2001. The second, Ms Elena Kirilova, was born in 2004. The third, Mr Iliya Kirilov, was born in 2006. The fourth, Mr Yoan Iliev, was born in 2009. The fifth, Mr Hristo Iliev, was born in 2011. The sixth, Mr Yosif Iliev, was born in 2013. It appears that after 2015 the family had another child; his or her name was not specified by the applicants, and he or she is not an applicant in these proceedings.<\/p>\n 8.\u00a0\u00a0Mr Iliya Kirilov suffers from spastic diplegia (a form of cerebral palsy) and is completely paralysed.<\/p>\n 2.\u00a0\u00a0Background to the case<\/em><\/p>\n 9.\u00a0\u00a0The two applicant families live near the village of Marchevo, in the municipality of Garmen, in an area known as the Kremikovtsi settlement, which was apparently established in the late 1960s. The settlement consists of 134 houses in which about 770 people reside, all of Roma ethnic origin. About 350 of them are children, 140 of whom were between one and six years old in August 2015. The land in the area on which the settlement stands, known as Padarkata, belongs to the Garmen Municipality and is earmarked as agricultural. Most of the houses in the settlement, including the two houses inhabited by the applicant families, are or were crude one-storey brick buildings with one or two rooms.<\/p>\n 10.\u00a0\u00a0Between December 2010 and February 2012 the Garmen Municipality issued 114 certificates saying that, although they had been unlawfully built, the houses in the Kremikovtsi settlement, including those in which the applicant families resided, could be tolerated under the transitional provisions of the Territorial Organisation Act 2001 (see paragraphs 44 and 45 below). The certificates relating to the houses in which the Aydarovi and Ilievi families lived stated that they had been built before 1987; it appears that this was only based on declarations to that effect by Mr Stoyan Aydarov and Mr Krasimir Iliev.<\/p>\n 11.\u00a0\u00a0Between March 2011 and November 2012 the National Building Control Directorate\u2019s regional office set aside 104 of those certificates and upheld the remaining ten. It is unclear whether the certificates relating to the two houses in which the applicant families lived were set aside or upheld.<\/p>\n 12.\u00a0\u00a0In 2013 and 2014 the Garmen Municipality sold plots of land in Padarkata to twenty-four people who lived there. The applicants were not among those people. The municipality apparently stated that it intended to continue with such sales, but then halted them.<\/p>\n 3.\u00a0\u00a0Demolition orders and proceedings for judicial review of the order addressed to Mr Stoyan Aydarov<\/em><\/p>\n 13.\u00a0\u00a0On various dates in 2010 and 2011 officers of the National Building Control Directorate inspected 134 houses in the Kremikovtsi settlement and found that they had been unlawfully built. The house in which the Aydarovi family lived was inspected on 19 August 2010, and the house in which the Ilievi family live was inspected on 23 August 2010.<\/p>\n 14.\u00a0\u00a0Based on the results of the inspection, in an order of 22 March 2011 the National Building Control Directorate\u2019s regional office noted that the house in which the Ilievi family lived had been built in 2002-03 on land owned by the 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 same Act. There had been no procedure to legalise it under the Act\u2019s transitional provisions. It was therefore unlawful and as such liable to be demolished.<\/p>\n 15.\u00a0\u00a0Mr Krasimir Iliev, who was notified of the order on 14 December 2011, did not seek judicial review, and the order became final on\u00a029\u00a0December 2011.<\/p>\n 16.\u00a0\u00a0In an order of 22 June 2011, the same office noted that the house in which the Aydarovi family lived had been built in 2002-03 on land owned by the Garmen Municipality without the requisite construction papers, in breach of sections 137(3) and 148(1) of the 2001 Act; without a right to build on another\u2019s land, 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 had been no procedure to legalise it under the Act\u2019s transitional provisions. It was therefore unlawful and as such was liable to be demolished.<\/p>\n 17.\u00a0\u00a0Between 2010 and 2012 the National Building Control Directorate\u2019s regional office apparently issued a total of 124 similar demolition orders in relation to houses in the Kremikovtsi settlement.<\/p>\n 18.\u00a0\u00a0Unlike Mr Krasimir Iliev, Mr Stoyan Aydarov sought judicial review of the order relating to the house in which his family lived. He argued that the order did not properly describe the house, that a procedure to legalise the house was pending, and that the Garmen Municipality had certified that the house could be tolerated under the 2001 Act\u2019s transitional provisions (see paragraphs 10 above and 44 below).<\/p>\n 19.\u00a0\u00a0On 20 October 2011 the Blagoevgrad Administrative Court dismissed the claim for judicial review. It found that the order had been issued in the proper form, with a proper description of the house, and in line with the relevant rules of procedure. The available evidence showed that there was no pending procedure to legalise the house. The house had been built on agricultural land belonging to the Garmen Municipality without a building permit or the requisite construction papers, and did not fall under any of the statutory clauses making those requirements less stringent with respect to certain classes of buildings. Nor did it fall within the ambit of the 2001 Act\u2019s transitional provisions, as it was not tolerable under a relevant detailed zoning plan, as required under those provisions \u2013 no such plan existed with respect to the relevant area, which was agricultural land. The certificate issued by the Garmen Municipality confirming that the house was tolerable under those provisions could not preclude the court from determining that point for itself, and had no evidential value in proceedings for judicial review of a demolition order (see \u0440\u0435\u0448. \u2116 1524 \u043e\u0442 20.10.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 652\/2011 \u0433., \u0410\u0434\u043c\u0421-\u0411\u043b\u0430\u0433\u043e\u0435\u0432\u0433\u0440\u0430\u0434).<\/p>\n 20.\u00a0\u00a0Mr Stoyan Aydarov did not appeal against that judgment, and accordingly it became final on 11 November 2011.<\/p>\n 21.\u00a0\u00a0The judgment was nearly identical to a series of judgments given by the Blagoevgrad Administrative Court between July and November 2011 in which it dismissed claims for judicial review of other orders to demolish other houses in the Kremikovtsi settlement (see paragraph 17 above, and \u0440\u0435\u0448. \u2116 1154 \u043e\u0442 18.07.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 425\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1158 \u043e\u0442\u00a018.07.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 416\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1171 \u043e\u0442 19.07.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 418\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1172 \u043e\u0442 19.07.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116\u00a0478\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1214 \u043e\u0442 26.07.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 470\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1329 \u043e\u0442 16.09.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 540\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1330 \u043e\u0442\u00a016.09.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 543\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1331 \u043e\u0442 16.09.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 552\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1332 \u043e\u0442 16.09.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116\u00a0522\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1339 \u043e\u0442 19.09.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 479\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1344 \u043e\u0442 20.09.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 521\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1347 \u043e\u0442\u00a020.09.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 379\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1379 \u043e\u0442 28.09.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 417\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1437 \u043e\u0442 10.10.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116\u00a0590\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1461 \u043e\u0442 12.10.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 672\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1462 \u043e\u0442 12.10.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 654\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1478 \u043e\u0442\u00a014.10.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 554\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1488 \u043e\u0442 17.10.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 539\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1491 \u043e\u0442 17.10.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116\u00a0673\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1543 \u043e\u0442 21.10.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 377\/2011 \u0433.; \u0440\u0435\u0448. \u2116 1585 \u043e\u0442 27.10.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 653\/2011 \u0433.; and \u0440\u0435\u0448. \u2116 1718 \u043e\u0442\u00a011.11.2011 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 759\/2011 \u0433., \u0410\u0434\u043c\u0421-\u0411\u043b\u0430\u0433\u043e\u0435\u0432\u0433\u0440\u0430\u0434). In all but two of those judgments the court examined whether the houses were tolerable under the 2001 Act\u2019s transitional provisions and found that they were not, because no urban zoning plan with respect to the area covered by the Kremikovtsi settlement, which was agricultural, had ever existed. It does not appear that any of those judgments was appealed against.<\/p>\n 4.\u00a0\u00a0Proceedings to enforce the demolition orders and related judicial review proceedings<\/em><\/p>\n (a)\u00a0\u00a0Unfolding of the enforcement proceedings until July 2015<\/p>\n 22.\u00a0\u00a0In December 2013 the National Building Control Directorate decided to stay the enforcement of the demolition orders relating to the Kremikovtsi settlement pending a solution to the housing problem of the people living there.<\/p>\n 23.\u00a0\u00a0About a year and a half later, on 25 May 2015, Blagoevgrad\u2019s regional governor wrote to the National Building Control Directorate and its regional office, enquiring about the steps taken to enforce the orders. He referred to a letter of 23 February 2015 written by the inhabitants of Marchevo in which they protested against the \u201cbrutal gypsy raids on the property of the villagers [and] the uncontrolled settlement of a large gypsy community\u201d in Kremikovtsi.<\/p>\n 24.\u00a0\u00a0It appears that the governor\u2019s letter was triggered by an incident on\u00a023\u00a0May 2015 in which a fight had erupted between a few Roma from the Kremikovtsi settlement and ethnic Bulgarians from Garmen. As a result of the incident, in the few days which followed police forces from the whole region had had to intervene and block the roads between the settlement and Garmen to prevent inter-ethnic clashes, and the Bulgarian inhabitants of Garmen had held several rallies, requesting the eviction of the Roma living in the settlement. The incident and the rallies had been widely reported by the national media.<\/p>\n 25.\u00a0\u00a0In reply to the governor\u2019s letter, the National Building Control Directorate asked the governor and Garmen\u2019s mayor what steps, if any, had been taken to provide housing for the people concerned by the demolition orders, so that the enforcement of those orders could resume.<\/p>\n 26.\u00a0\u00a0On 27 May 2015 the National Building Control Directorate\u2019s regional office 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.<\/p>\n 27.\u00a0\u00a0On 23 June 2015 the National Building Control Directorate, having noted that the orders had not been complied with, retained a private company to demolish the houses in which the applicant families lived between 13 and 24 July 2015.<\/p>\n 28.\u00a0\u00a0In a letter of 6 July 2015 the Social Protection Agency informed the Blagoevgrad Building Control Directorate that children with disabilities lived in both houses.<\/p>\n 29.\u00a0\u00a0In a letter of 16 July 2015 to all other authorities concerned by the case, the National Building Control Directorate noted, inter alia, that the houses in the Kremikovtsi settlement whose demolition had been ordered were buildings which were unsafe and had no sanitation facilities, and so put at risk the life and health of those living in them, especially the young children.<\/p>\n (b)\u00a0\u00a0First set of proceedings for judicial review of the enforcement of the demolition orders<\/p>\n 30.\u00a0\u00a0Meanwhile, on 8 July 2015 Mr Stoyan Aydarov and Mr Krasimir Iliev had sought judicial review of the enforcement of the orders. They argued, inter alia, that enforcement would be in breach of Articles 3 and 8 of the Convention because the houses liable to be demolished were their and their families\u2019 only homes, and their families included children who were minors, some of whom were disabled. 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 that enforcement be stayed by way of interim measures pending the examination of their claims on the merits.<\/p>\n 31.\u00a0\u00a0On 10 July 2015 the Blagoevgrad Administrative Court found that the claims for judicial review were out of time. Since, under Bulgarian law, a claim that an administrative decision or action is null and void is not limited by time, the court nevertheless examined the fundamental 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 applications for interim measures could only be entertained if they had been made alongside admissible claims for judicial review, which was not the case. Therefore, they could not be allowed (see \u0440\u0435\u0448. \u2116 1124 \u043e\u0442 10.07.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116\u00a0535\/2015 \u0433., and \u0440\u0435\u0448. \u2116 1125 \u043e\u0442 10.07.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 536\/ 2015\u00a0\u0433., \u0410\u0434\u043c\u0421-\u0411\u043b\u0430\u0433\u043e\u0435\u0432\u0433\u0440\u0430\u0434).<\/p>\n 32.\u00a0\u00a0MrStoyanAydarovandMrKrasimirIlievappealed. On 13 and 21\u00a0October 2015 the Supreme Administrative Court held that, in so far 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 rulings that the claims for judicial review were out of time were open to appeal and had been tainted by a procedural irregularity, because, when making the rulings, the lower court had sat in three-judge rather than single-judge formations. Accordingly, the Supreme Administrative Court remitted those parts of the cases (see \u043e\u043f\u0440. \u2116 10577 \u043e\u0442\u00a013.10.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 10005\/2015 \u0433., \u0412\u0410\u0421, II \u043e., and \u043e\u043f\u0440.\u00a0\u2116\u00a010968 \u043e\u0442 21.10.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 11571\/2015 \u0433., \u0412\u0410\u0421, II \u043e.).<\/p>\n 33.\u00a0\u00a0On 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 (see \u043e\u043f\u0440. \u2116 1924 \u043e\u0442 08.12.2015 \u0433. \u043f\u043e \u0430\u0434\u043c.\u00a0\u0434. \u2116 862\/2015 \u0433., and \u043e\u043f\u0440. \u2116 1928 \u043e\u0442 09.12.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116\u00a0861\/2015 \u0433., \u0410\u0434\u043c\u0421-\u0411\u043b\u0430\u0433\u043e\u0435\u0432\u0433\u0440\u0430\u0434).<\/p>\n 34.\u00a0\u00a0Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. On 25 February 2016 the Supreme Administrative Court upheld the lower court\u2019s decision in the case of Mr Krasimir Iliev (see \u043e\u043f\u0440. \u2116 2188 \u043e\u0442 25.02.2015 \u0433. \u043f\u043e \u0430\u0434\u043c.\u00a0\u0434. \u2116 1313\/2016 \u0433., \u0412\u0410\u0421, II \u043e.), but on 18 March 2016 quashed the lower court\u2019s decision in the case of Mr Stoyan 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 \u043e\u043f\u0440. \u2116 3098 \u043e\u0442\u00a018.03.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 2796\/2016 \u0433., \u0412\u0410\u0421, II \u043e.).<\/p>\n 35.\u00a0\u00a0Following the remittal, the Blagoevgrad Administrative Court dismissed Mr Stoyan Aydarov\u2019s claim on the merits in a judgment of\u00a024\u00a0March 2016. It held, inter alia, that the principle of proportionality did not apply to the removal of an unlawful building, unless the demolition order only concerned a part of it, and that it was immaterial how many people lived in the building. Demolition did not amount to inhuman or degrading treatment or to an unjustified interference with the right to respect for one\u2019s home. People who did not have a home could rent a dwelling or build one in a lawful way. No one could derive rights from his or her own\u00a0unlawful conduct (see \u0440\u0435\u0448. \u2116 441 \u043e\u0442 24.03.2016 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116\u00a0861\/2015 \u0433., \u0410\u0434\u043c\u0421-\u0411\u043b\u0430\u0433\u043e\u0435\u0432\u0433\u0440\u0430\u0434). That judgment was not amenable to appeal (see paragraph 41 below).<\/p>\n (c)\u00a0\u00a0Intervening developments<\/p>\n 36.\u00a0\u00a0Meanwhile, on 13 July 2015, citing 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 adjourn enforcement of the two demolition orders until the end of July 2015.<\/p>\n (d)\u00a0\u00a0Second set of proceedings for judicial review of the enforcement of the demolition orders<\/p>\n 37.\u00a0\u00a0On 20 July 2015 Mr Stoyan Aydarov and Mr Krasimir Iliev sought judicial review of the letters informing them of that adjournment. On\u00a022\u00a0July 2015 the Blagoevgrad Administrative Court found that the letters did not amount to an enforcement measure amenable to judicial review, and declared the claims inadmissible (see \u043e\u043f\u0440. \u2116 1234 \u043e\u0442 22.07.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 560\/2015 \u0433., and \u043e\u043f\u0440. \u2116 1238 \u043e\u0442 22.07.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 559\/2015 \u0433., \u0410\u0434\u043c\u0421-\u0411\u043b\u0430\u0433\u043e\u0435\u0432\u0433\u0440\u0430\u0434). Mr Stoyan Aydarov and Mr Krasimir Iliev appealed. On 15 and 16 October 2015 the Supreme Administrative Court quashed those decisions and remitted the cases, as it found that the lower 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 (see \u043e\u043f\u0440. \u2116 10735 \u043e\u0442 15.10.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 11498\/2015 \u0433., \u0412\u0410\u0421, II \u043e., and \u043e\u043f\u0440. \u2116 10797 \u043e\u0442 16.10.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 11497\/2015 \u0433., \u0412\u0410\u0421, II\u00a0\u043e.). 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 (see \u043e\u043f\u0440. \u2116 1541 \u043e\u0442\u00a020.10.2015 \u0433., \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 760\/2015 \u0433., and \u043e\u043f\u0440. \u2116 1560 \u043e\u0442\u00a022.10.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 769\/2015 \u0433., \u0410\u0434\u043c\u0421-\u0411\u043b\u0430\u0433\u043e\u0435\u0432\u0433\u0440\u0430\u0434). Its decisions were upheld by the Supreme Administrative Court on 1 and 3\u00a0February 2016 (see \u043e\u043f\u0440. \u2116 1004 \u043e\u0442 01.02.2016 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116\u00a014276\/2015 \u0433., \u0412\u0410\u0421, II \u043e., and \u043e\u043f\u0440. \u2116 1099 \u043e\u0442 03.02.2016 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 14261\/2015 \u0433., \u0412\u0410\u0421, II \u043e.).<\/p>\n (e)\u00a0\u00a0Intervening and subsequent developments in the applicants\u2019 cases<\/p>\n 38.\u00a0\u00a0In the meantime, the building control authorities had adjourned enforcement of the two demolition orders until the end of August 2015, and then until the end of October 2015, on the basis that no alternative accommodation had been found for the applicants.<\/p>\n 39.\u00a0\u00a0However, on 7 September 2015 the house in which the Aydarovi family lived was demolished. The Aydarovi family submitted that they had been informed of the demolition just minutes before it had taken place, and that after that they had spent several nights out in the open, until they had been accommodated in the house of Ms Aydarova\u2019s mother. They did not provide further particulars. From the documents in the case file it is clear that, at the time of the demolition, the family\u2019s youngest child, who is not an applicant in these proceedings, was seventeen days old (see paragraph 5 above).<\/p>\n 40.\u00a0\u00a0According to a register available on the National Building Control Directorate\u2019s website on 24 September 2018, the order to demolish the house in which the Ilievi family live has not yet been carried out, the matter having been formally adjourned until the end of March 2018. Its enforcement had previously been adjourned until the end of November 2015, then the end of January, April, June and September 2016, and then the end of January, May, June, July, August and October 2017.<\/p>\n B.\u00a0\u00a0Relevant domestic law and practice<\/strong><\/p>\n 1.\u00a0\u00a0Unlawful buildings and their demolition<\/em><\/p>\n 41.\u00a0\u00a0The Court\u2019s judgment in Ivanova and Cherkezov v. Bulgaria (no.\u00a046577\/15, \u00a7\u00a7 25-27 and 33-40, 21 April 2016) set out the provisions of the Territorial Organisation Act 2001 and the 2006 Code of Administrative Procedure and the case-law of the administrative courts relating to the demolition of unlawful buildings and legal challenges against building control authorities\u2019 orders to that effect by way of (a) claims for judicial review of the demolition orders themselves; (b) claims under Article 294 of the Code for judicial review of the enforcement of the orders (which are examined at one level of court only \u2013 Article 298 \u00a7 4 of the Code); and (c)\u00a0claims under Article 292 of the Code for a judicial declaration that enforcement should not proceed owing to newly emerged facts.<\/p>\n 42.\u00a0\u00a0An examination of the Supreme Administrative Court\u2019s case-law since that judgment shows that that court has fully adhered to its position that the building control authorities have no discretion in relation to the removal of unlawful buildings; that the only course of action open to them in such cases is to order their demolition; and that, in such cases, those authorities are not bound by the general requirement of proportionality laid down in Article 6 of the 2006 Code, because it only applies when the relevant authority has a discretion (see the following judgments given in proceedings for judicial review of demolition orders: \u0440\u0435\u0448. \u2116 5103 \u043e\u0442\u00a027.04.2016 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 8537\/2015 \u0433., \u0412\u0410\u0421, II \u043e.; \u0440\u0435\u0448. \u2116 8956 \u043e\u0442\u00a018.07.2016 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u21163380\/2016 \u0433., \u0412\u0410\u0421, II \u043e.; and \u0440\u0435\u0448. \u2116 8713 \u043e\u0442 05.07.2017 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 773\/2017 \u0433., \u0412\u0410\u0421, II \u043e., and the following judgments given in proceedings for a judicial declaration under Article 292 of the 2006 Code: \u0440\u0435\u0448. \u2116 7893 \u043e\u0442 29.06.2016 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 14264\/ 2015\u00a0\u0433., \u0412\u0410\u0421, II \u043e., and \u0440\u0435\u0448. \u2116 12463 \u043e\u0442 16.11.2016 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116\u00a04802\/2016 \u0433., \u0412\u0410\u0421, II \u043e.).<\/p>\n 43.\u00a0\u00a0By contrast, contrary to its earlier rulings under Article 294 of the 2006 Code (see \u0440\u0435\u0448. \u2116 1791 \u043e\u0442 20.11.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 869\/2015 \u0433., \u0410\u0434\u043c\u0421-\u0411\u043b\u0430\u0433\u043e\u0435\u0432\u0433\u0440\u0430\u0434), in a recent case the Blagoevgrad Administrative Court examined, for the first time, the proportionality of the intended demolition of a house by reference to Article 8 of the Convention, as construed in Yordanova and Others v. Bulgaria (no. 25446\/06, 24 April 2012) and Ivanova and Cherkezov (cited above), and in view of the individual circumstances of the woman living in the house. The court found, inter alia, that the building control authorities had not duly elucidated whether the house was her only home, even though she had expressly made that point in the course of the proceedings to enforce the demolition order, and had not properly assessed whether the measure would be proportionate in the light of that fact. The court therefore annulled the steps taken to enforce the order and referred the case back to the building control authorities (see \u0440\u0435\u0448.\u00a0\u2116\u00a01072 \u043e\u0442 30.06.2017 \u0433. \u043d\u0430 \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 316\/2017 \u0433., \u0410\u0434\u043c\u0421-\u0411\u043b\u0430\u0433\u043e\u0435\u0432\u0433\u0440\u0430\u0434). A few similar decisions have recently been given in such proceedings by other first-instance administrative courts (see \u0440\u0435\u0448. \u2116 72 \u043e\u0442\u00a005.10.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 47\/2015 \u0433., \u0410\u0434\u043c\u0421-\u0421\u0438\u043b\u0438\u0441\u0442\u0440\u0430; \u0440\u0435\u0448. \u2116 52 \u043e\u0442\u00a002.03.2016 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 42\/2016 \u0433., \u0410\u0434\u043c\u0421-\u0414\u043e\u0431\u0440\u0438\u0447; \u0440\u0435\u0448. \u2116335 \u043e\u0442\u00a029.08.2017 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 485\/2017 \u0433., \u0410\u0434\u043c\u0421-\u0414\u043e\u0431\u0440\u0438\u0447; \u0440\u0435\u0448.\u2116502 \u043e\u0442\u00a027.10.2017 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 271\/2016 \u0433., \u0410\u0434\u043c\u0421-\u041f\u0430\u0437\u0430\u0440\u0434\u0436\u0438\u043a; and\u0440\u0435\u0448.\u00a0\u2116\u00a0467 \u043e\u0442 24.11.2017 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 34\/2017 \u0433., \u0410\u0434\u043c\u0421-\u0414\u043e\u0431\u0440\u0438\u0447).<\/p>\n 2.\u00a0\u00a0The possibility of not demolishing unlawful buildings erected before the end of March 2001<\/em><\/p>\n 44.\u00a0\u00a0The Court\u2019s judgment in Ivanova and Cherkezov (cited above, \u00a7\u00a7\u00a028-29) also set out paragraph 16(1)-(3) of the transitional provisions of the 2001 Act and paragraph 127(1) of a 2012 Act for its amendment \u2013 according to which buildings erected before end of March 2001 without construction papers are not liable to be demolished if they were tolerable under the zoning plans and building regulations in force at the time of their construction, or under the corresponding plans and regulations issued under the 2001 Act.<\/p>\n 45.\u00a0\u00a0Here, it should be added that by paragraph 16(1) in fine of the 2001 Act\u2019s transitional provisions and paragraph 127(1) in fine of the 2012 Act\u2019s transitional provisions, such buildings may be conveyed to others on the basis of certificates issued by municipalities\u2019 chief architects confirming that the buildings can be tolerated.<\/p>\n 46.\u00a0\u00a0In accordance with the Supreme Administrative Court\u2019s established case-law, those certificates do not legalise the buildings; their sole purpose is to permit the buildings\u2019 notarised conveyance. Nor do the certificates bind the building control authorities when they seek to determine whether a building is unlawful and as such liable to be demolished, or the courts reviewing their orders. In such proceedings, the building control authorities and the courts must ascertain a building\u2019s legality for themselves (see \u0440\u0435\u0448.\u00a0\u2116 12649 \u043e\u0442 18.12.2006 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 8560\/2006 \u0433., \u0412\u0410\u0421, II \u043e.; \u0440\u0435\u0448. \u2116 3440 \u043e\u0442 25.03.2008 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 415\/2008 \u0433., \u0412\u0410\u0421, II \u043e.; \u0440\u0435\u0448.\u00a0\u2116 2122 \u043e\u0442 16.02.2009 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 13312\/2008 \u0433., \u0412\u0410\u0421, II\u00a0\u043e.;\u00a0\u0440\u0435\u0448. \u2116 13141 \u043e\u0442 05.11.2010 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 9816\/2010 \u0433., \u0412\u0410\u0421, \u043f\u0435\u0442\u0447\u043b. \u0441-\u0432; \u0440\u0435\u0448. \u2116 466 \u043e\u0442 10.01.2012 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 12702\/2011 \u0433., \u0412\u0410\u0421, II \u043e.; \u0440\u0435\u0448. \u2116 11348 \u043e\u0442 09.08.2013 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 5892\/2013 \u0433., \u0412\u0410\u0421, II \u043e.; \u0440\u0435\u0448. \u2116 6287 \u043e\u0442 12.05.2014 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 10208\/2013 \u0433., \u0412\u0410\u0421, II \u043e.; \u0440\u0435\u0448. \u2116 4949 \u043e\u0442 04.05.2015 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 2346\/2015, \u0412\u0410\u0421, II \u043e.; \u0440\u0435\u0448. \u2116 6537 \u043e\u0442 02.06.2016 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 12664\/2015 \u0433., \u0412\u0410\u0421, II\u00a0\u043e.; and \u0440\u0435\u0448. \u2116 7677 \u043e\u0442 19.06.2017 \u0433. \u043f\u043e \u0430\u0434\u043c. \u0434. \u2116 11244\/2016 \u0433., \u0412\u0410\u0421, II \u043e.).<\/p>\n 3.\u00a0\u00a0Protection against discrimination<\/em><\/p>\n 47.\u00a0\u00a0The Protection Against Discrimination Act was enacted in 2003 and came into force on 1 January 2004. It prohibits, in section 4(1), any direct or indirect discrimination on the basis of gender, race, nationality, ethnicity, human genome, citizenship, origin, religion or belief, education, convictions, political affiliation, personal or social status, disability, age, sexual orientation, marital status, property status, or on any other grounds established by law or by an international treaty to which Bulgaria is party. In paragraph 1(6) of its additional provisions, the Act also defines racial segregation, and provides, in section 5, that it is a form of discrimination.<\/p>\n 48.\u00a0\u00a0The authority responsible for ensuring compliance with the Act is the Commission for Protection Against Discrimination (section 40). It can act of its own motion or pursuant to complaints by those concerned (section\u00a050). If the Commission finds a breach of the Act, it can order that it be averted or brought to an end, or that the status quo ante be restored (section 47(2)). It can also impose sanctions or order coercive measures, or give compulsory directions (section 47 (3) and (4)). The Commission\u2019s decisions are subject to judicial review (section 68(1)).<\/p>\n 49.\u00a0\u00a0People who have obtained a favourable decision by the Commission and wish to obtain compensation for damage suffered as a result of the breach established by the Commission can bring a claim for damages against the people or authorities that have caused the damage (section\u00a074(1)). If the damage stems from unlawful decisions, actions or omissions of public authorities or officials, the claim must be brought under the State and Municipalities Liability for Damage Act 1988 (section 74(2)).<\/p>\n 50.\u00a0\u00a0Alternatively, those complaining of discrimination can directly bring court proceedings and seek declaratory or injunctive relief or an award of damages (section 71(1)). The claim can be brought on behalf of the aggrieved party by a non-governmental organisation (section 71(2)). If the alleged discrimination affects many people, the non-governmental organisation can even bring the claim in its own name, in which case those directly affected can join the proceedings as third parties (section 71(3)).<\/p>\n 51.\u00a0\u00a0Claims for damages under section 71(1) directed against public authorities or officials fall under the jurisdiction of the administrative courts (see \u0442\u044a\u043b\u043a. \u043f. \u2116 2 \u043e\u0442 19.05.2015 \u0433. \u043f\u043e \u0442\u044a\u043b\u043a. \u0434. \u2116 2\/2014 \u0433., \u041e\u0421\u0421 \u043d\u0430 \u0413\u041a \u043e\u0442 \u0412\u041a\u0421 \u0438 \u041e\u0421\u0421 \u043d\u0430 I \u0438 II \u043a. \u043d\u0430 \u0412\u0410\u0421, \u0442. 4).<\/p>\n COMPLAINTS<\/strong><\/p>\n 52.\u00a0\u00a0The applicants complained under Article 8 of the Convention that the demolition of the houses in which they lived would be disproportionate.<\/p>\n 53.\u00a0\u00a0They further complained under Article 1 of Protocol No. 1 that this would be an unjustified interference with the peaceful enjoyment of their possessions.<\/p>\n 54.\u00a0\u00a0They also complained under Article 13 of the Convention that they had not had an effective domestic remedy in that respect.<\/p>\n 55.\u00a0\u00a0They in addition complained under Article 14 of the Convention that the measures against them had been discriminatory because: (a) the authorities had taken those measures under the influence of anti-Roma protesters; (b) the authorities were not seeking to demolish other unlawful buildings, such as seaside hotels; (c) the authorities had not taken into account the fact that the houses liable to be demolished were their only homes; (d) the authorities had not acted consistently throughout the proceedings; and (e) the authorities had pressed on with their intention to demolish the houses while being aware that no alternative accommodation was available to the applicants.<\/p>\n 56.\u00a0\u00a0Lastly, the applicants raised two complaints under Article 3 of the Convention. In their initial application, they complained that the proceedings meant to result in the demolition of the houses in which they lived, during which the authorities had not discussed with them any alternative accommodation, and which had unfolded against the backdrop of racial tensions against Roma in the local community, had amounted to inhuman and degrading treatment. In their observations in reply to those of the Government, filed with the Court on 29 November 2016, the applicants from the Aydarovi family further complained about the actual demolition of the house in which they had lived.<\/p>\n THE LAW<\/strong><\/p>\n A.\u00a0\u00a0Complaints under Articles 8 and 13 of the Convention and Article\u00a01 of Protocol No. 1<\/strong><\/p>\n 57.\u00a0\u00a0In respect of their complaint concerning the proportionality of orders for the demolition of the houses in which they lived and their enforcement, the applicants relied on Article 8 of the Convention and Article 1 of Protocol No. 1, which provide, so far as relevant:<\/p>\n Article 8 of the Convention<\/p>\n \u201c1.\u00a0\u00a0Everyone has the right to respect for his private and family life [and] his home\u00a0…<\/p>\n 2.\u00a0\u00a0There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n Article 1 of Protocol No. 1<\/p>\n \u201cEvery natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.<\/p>\n The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.\u201d<\/p>\n 58.\u00a0\u00a0In respect of their complaint concerning the alleged lack of an effective remedy in that respect, the applicants relied on Article 13 of the Convention, which provides:<\/p>\n \u201cEveryone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n (a)\u00a0\u00a0The Government<\/p>\n 59.\u00a0\u00a0The Government submitted that the applicants had not exhausted domestic remedies. Although Mr Stoyan Aydarov had sought judicial review of the order to demolish the house in which his family lived, he had not appealed against the first-instance judgment of 20 October 2011 dismissing his claim. As for Mr Krasimir Iliev, he had not sought judicial review of the order to demolish the house in which his family lived at all. It had been open to them to challenge the orders on two grounds: (a) that the houses were not liable to be demolished under the 2001 Act\u2019s transitional provisions, and (b) that the demolition of the houses would be disproportionate, given the applicants\u2019 individual circumstances. It was true that the Bulgarian administrative courts normally refused to quash demolition orders on the latter basis. However, those courts were capable of dealing with such cases in the light of Article 8 of the Convention, as noted by the Court with reference to the way in which the Supreme Administrative Court in 2015 had examined a claim for damages against the building control authorities by a woman whose house had been demolished on their orders. The principle of subsidiarity demanded that the courts be given an opportunity to do so. The fact that the applicants were poorly educated and did not know the law did not exempt them from the requirement to exhaust domestic remedies.<\/p>\n 60.\u00a0\u00a0The Government alternatively submitted that the complaint was out of time. If judicial review of the orders was not an effective remedy, then the six-month time-limit under Article 35 \u00a7 1 of the Convention had started to run in 2011, when the orders, which were instantaneous acts, had become final. Their proportionality could not be properly reviewed in the course of the proceedings for enforcement of the orders. Nor was it possible to challenge them by way of a claim for a judicial declaration under Article\u00a0292 of the Code of Administrative Procedure, because such a claim was only possible if new circumstances had emerged since the orders had been issued, which did not appear to be the case.<\/p>\n (b)\u00a0\u00a0The applicants<\/p>\n 61.\u00a0\u00a0With respect to the first point made by the Government, the applicants submitted that claims for judicial review of the demolition orders would have been bound to fail, since the 2001 Act clearly provided that demolition was the only way to deal with unlawful construction and did not enable the courts to assess the individual proportionality of such measures. Mr Stoyan Aydarov had argued that the house in which his family lived was not liable to be demolished under the Act\u2019s transitional provisions, but the Blagoevgrad Administrative Court had found that the house did not meet those requirements, and that it was not bound by the certificate issued by the Garmen Municipality to that effect. Moreover, at the time when the demolition orders had been issued, the applicants had not received any information about possible avenues of redress, or legal aid. A claim for a judicial declaration under Article 292 of the 2006 Code of Administrative Procedure could only be based on newly emerged facts relating to the legality of a construction, and would not have helped the applicants either. They had properly resorted to claims for judicial review under Article 294 the Code instead.<\/p>\n 62.\u00a0\u00a0The applicants went on to say that the complaint was not out of time. They pointed out that they did not complain of the demolition orders themselves, but of the enforcement of the orders, which was the real interference with their rights under Article 8 of the Convention. The Bulgarian courts could have examined the compatibility of the enforcement with that provision in the proceedings under Article 294 of the 2006 Code of Administrative Procedure, which had been concluded after the application with the Court had been lodged.<\/p>\n