By a judgment made public on 25 October of this year, the European Court of Human Rights (“the Court”) has rejected the complaints of the applicants in Aydarov and Others v. Bulgaria (application No. 33586/15).
The applicants – the Aydarov and the Iliev families, Bulgarian nationals of Roma ethnic origin – live in the Kremikovtsi Section, Garmen Municipality. The land on which the neighbourhood is located is municipal and agricultural. In 2011, the National Construction Control Directorate (NCCD) found that the structures in which the applicants lived were illegal and issued orders for their removal. Mr. Aydarov appealed the order. The Blagoevgrad Administrative Court rejected the appeal and ruled that the building had been constructed on municipal land without the necessary construction papers and could not be issued the respective legal documents because the land was agricultural and a detailed urban plan had never been issued for it. The first-instance judgment was not appealed. The other applicant did not submit a complaint before the court.
In 2013, NCCS suspended the execution of the orders until resolving the issue with the overcrowded neighbourhood. In 2015, following the receipt of a letter from the Blagoevgrad Regional Governor prompted by clashes between the Roma population of Kremikovtsi Section and the residents of Garmen, NCCD invited Mr. Aydarov and Mr. Iliev to ensure voluntary execution of the removal orders. After the term for execution expired, NCCD engaged a company to demolish the building between 13 and 24 July 2015.
The applicants contested the activities to execute the orders before the administrative court claiming that the buildings were their only residences and that the demolition would impact in a disproportionate way on their right to respect for their private life and residence. The court rejected the applications. On 7 September 2015, the residence of the Aydarovs was demolished. The demolition of the residence of the Ilievs was postponed repeatedly and has yet to be carried out.
The applicants claim before the European Court of Human Rights that the demolition of their homes would constitute a disproportionate interference in their right to private life, residence and peaceful enjoyment of their possessions and that they did not have an effective remedy. They also claim that the measures taken against them were discriminatory and that the decision to demolish the houses is contrary to the prohibition on inhuman and degrading treatment.
After reviewing the state’s objections of inadmissibility in detail, the Court rejected all complaints as inadmissible. The Court studied in detail the domestic remedies which had been available to the applicants. As regards the appeal against the orders for removal before the administrative courts, the Court notes that it would have been unsuccessful in all cases. This conclusion is reached because, in numerous similar cases, the national court has found that illegal structures such as those in the Kremikovtsi Section were not subject to being made legal, and, according to the established case-law of the Supreme Administrative Court, such structures are subject to demolition regardless of whether the measure was proportionate in the applicants’ specific case.
As regards the appeal against the actions of NCCD in relation to the order for removal of the structures, the Court explicitly states that, in principle, a domestic remedy where the proportionality of measures is examined at the stage of their execution could be effective. In this sense, the Court notes that the administrative courts are starting to create case- where they examine the proportionality of execution measures in similar situations only after 2015, i.e. at the time of the applications against the execution, they were doomed to fail.
Due to the above, the Court takes that the applicants should have lodged their application before the Court as early as 2011 and rejected it as overdue.
As regards the applicants’ claim that the actions of the authorities were caused by protests against Roma in 2015 and discriminatory, the Court is of the opinion that the applicants had a domestic remedy available, namely the submission of a complaint or a claim under the Protection against Discrimination Act, something they did not do.
Finally, the Court takes that the complaint about the demolition of the Aydarovs’ house is overdue. The other actions to execute the orders could not be deemed to be equal to inhuman treatment because the authorities had repeatedly postponed the execution, admitting the serious consequences this would have.