HADZHIYSKA v. BULGARIA
Inadmissible
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicant, Ms Magdalena Angelova Hadzhiyska, is a Bulgarian national who was born in 1933 and lives in Lesichovo. She was represented before the Court by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv. 3. The applicant’s village is situated on the banks of Topolnitsa river, at about fifteen kilometres downstream from Topolnitsa Dam. 4. On 5 and 6 August 2006, following heavy rain, the river broke its banks and flooded the applicant’s house. The water ruined a stone fence, a shed and a summer kitchen, and carried away furniture, wood, home-canned food, and other chattels. The house’s cellar and basement were damaged by dampness. 5. On 18 April 2007 the applicant brought a claim for damages under section 1 (1) of the State Responsibility for Damage Act 1988 against the Ministry of Environment and Waters and the Governor of Pazardzhik Region. She alleged that the flood water had carried away trees and branches which had cluttered the riverbed. As the defendants had failed to clean it, this had impeded the flow of water and had caused flooding. She also alleged that no embankments or other protective facilities had been built to protect her village from flooding, and that no monitoring or alert systems had been put in place. She claimed that those omissions had been in breach of the defendants’ obligations under several provisions of the Waters Act 1999 that expressly envisaged such measures. 6. Having initially decided to proceed with the case, in a decision of 4 August 2008, the Pazardzhik Administrative Court dismissed the applicant’s claim as inadmissible. It held that the administrative courts were not competent to examine it because the alleged omissions of the defendants did not constitute administrative action within the meaning of Article 203 § 1 of the Code of Administrative Procedure and section 1 (1) of the 1988 Act. The relations between the applicant and the authorities in connection with the flood were not characterised by an exercise of authority and were therefore not governed by the rules of administrative law. The impugned omissions of the authorities did not form part of their administrative activities. 7. On appeal, on 11 November 2008 the Supreme Administrative Court upheld that decision, with almost identical reasoning. It went on to say that the applicant could bring a claim before the civil courts.