DIMITROVA AND OTHERS v. BULGARIA
Inadmissible
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
1. A list of the applicants is set out in the appendix. 2. Applicants one to seventeen were represented initially by Mr Adam Weiss, from the AIRE Centre, London and, subsequently, by Mr M. Evans, director of the AIRE Centre, London, and a lawyer practising in London. Applicants eighteen to twenty-three were represented, initially, by Mr Adam Weiss from the AIRE Centre, London and, subsequently, by P. Radev, a lawyer practising in Varna. 3. The Bulgarian Government (“the Government”) were represented by their Agent, Ms D. Dramova, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicants are members of three Roma families from the Varna municipality in Bulgaria. They were represented during the domestic proceedings by association “Obnovlenie” (hereafter “the association”), a nongovernmental organisation based in Varna which deals with Roma issues and whose chair and representative was Ridvan Saly. 6. The three applicant families indicated that they had been living in dwellings at 1 and 1a Borimechkata Street in the Mladost borough of Varna for up to twenty years. Those dwellings were owned by the municipality and were in a serious state of disrepair. 7. On 22 January 2008 an expert committee, tasked by the municipality with verifying the state of repair of municipal buildings, established that the houses at 1 and 1a Borimechkata Street were unfit for use and recommended their demolition. 8. Once the occupants had been formally put on notice, the mayor of Varna issued two orders on 25 May 2008, ordering the houses’ demolition as they were unsafe for occupation and also posed a threat to passers-by. The orders indicated that the first, second, fifth, sixth, seventh, eight, fourteenth, fifteenth, eighteenth, twentieth, twenty-first and twenty-second applicants were occupying the houses at 1 and 1a Borimechkata Street, unlawfully. 9. The mayor contracted a private company to demolish the two houses. A municipal company was tasked with ensuring that the necessary conditions for the demolition were in place. Representatives of the municipality were instructed to be present during the demolition and the police were asked to send officers to ensure that public order was observed. 10. On 21 November 2008, demolition works started on one of the two houses mentioned above. Following an intervention by the association, the municipality orally granted a ten-day postponement for the demolition in order to find alternative housing for the applicants. They also announced on the radio that alternative accommodation would be found, especially for the children, as it was winter. Press reports described how some of the Roma inhabitants had positioned themselves on the roofs of the houses to prevent demolition. 11. On 5 December 2008, without alternative accommodation having been found, the council proceeded with the demolition, with the police entering the houses at 7 a.m. The applicants were evicted by the police with the help of a private security firm. According to the applicants, disputed by the Government, the police destroyed household items with clubs and poured water over the burning stove. All the applicants were ordered to go out into the street. A record, signed 8 December 2008 by a police officer who was present during the demolition, stated that “on 5 December 2008, between 7 a.m. and 1 p.m., teams of police officers from Varna assisted the municipality with the demolition of the buildings at 1 and 1a Borimechkata Street. No disturbance was observed during the demolition.” Another record drawn up by municipal officials on 5 December 2008 indicated that at 7.30 a.m. both houses were free of items and ready to be demolished. 12. The parties dispute whether Sava Zyumbyulkov Savov, aged oneanda-half months at the time of the events, was among those evicted. He was the youngest child of the Savovi family (applicants eighteen to twentythree); his birth certificate indicated that he was born on 20 October 2008 and lived at 1a Borimechkata Street, Varna. 13. According to the applicants, the officials present, including the mayor of Mladost, made insulting remarks to them, such as “Take that back home” and “You are too dirty, go take a shower and then come back”. In addition, the children witnessed their homes being destroyed and their parents’ distress. 14. The Dimitrovi family (applicants one to four) moved into another municipal dwelling situated at 115 Pop Hariton Street, to which they were directed by the borough authorities after the demolition on 5 December 2008. They were left in the street for approximately six hours before this accommodation was made available. The four members of the family were accommodated in one room in which they lived until 2014, at some point in time with an additional baby. Six months after they moved in the roof collapsed in the Dimitrovi family room. They patched it up themselves but the roof continued to leak. 15. The Savovi family (applicants eighteen to twenty-three) were not directed promptly to alternative housing. At approximately noon on 5 December 2008, the eighteenth applicant, Ms Savova, concerned about the situation of her new-born baby, enquired with the borough authorities where her family could move. The borough authorities directed them to the dwelling at 115 Pop Hariton Street. The Savovi family was only able to move there at 11 p.m. that day. In the meantime they were left in the street for about sixteen 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 finally accommodated in one room of the house at 115 Pop Hariton Street. At that point, ten members of the family occupied the same room. 16. The Atanasovi family (applicants five to seventeen) moved into a makeshift house at 4 Georgi Peyachevich Street which they put together out of wooden blocks and cardboard collected from a rubbish dump. The house did not have a toilet and its inhabitants used an area behind the house for this purpose. There was no running water so they washed in the sea. A certificate provided by the municipal authorities indicated that in 2009 the ninth applicant was listed as an occupant of the house together with the rest of the Atanasovi family. 17. The building at 115 Pop Hariton Street was a single-storey house with a total of three rooms. On 5 December 2008, the third room was uninhabitable. The Savovi family made the room habitable so that three people could live in it, while six others (applicants eighteen to twenty-three) lived in the room to which they originally moved. When the Dimitrovi and Savovi families moved into the house, there was no electricity supply and no hot water. The only toilet was an external one which was extremely dilapidated and there was no place to shower or bath. There was only one sink. The applicants attached photographs of the house to their application. 18. On 8 December 2008 the first and the eighteenth applicants signed typed-up declarations provided by the municipality, stating that they were aware that the dwelling which they occupied at the time, the house at 115 Pop Hariton Street, Varna, was in a state of disrepair and posed a danger to the life and limb of its occupants, and that they undertook to inform the people living with them at that address accordingly. 19. The mayor of Mladost ordered on 22 March 2012 that the house the Atanasovi family occupied be demolished as it posed a danger to human occupation. On 5 November 2013 the municipal authorities proposed to the sixth applicant, Mr Atanasov, to move with his minor children and his wife to a small municipal apartment on the 8th floor of a block of flats. Following hesitations expressed by him, the authorities allegedly informed him that if he refused the offer, something he effectively did, more appropriate housing would be offered to his family. This did not happen. 20. On 21 July 2014 the mayor of Mladost ordered the eviction of the first, third, fourth, eighteenth, nineteenth, twentieth, twenty-first and twentythird applicants from 115 Pop Hariton Street, on the ground that they occupied it unlawfully. On 23 July 2014 the mayor ordered that the Savovi family, plus a baby born on 8 April 2014 to the eighteenth applicant, be allocated subsidised municipal housing. This order was enforced on the same day when the applicants moved into a flat of twenty-three metres squared. 21. The Dimitrovi family was not proposed any shelter after their eviction ordered in July 2014. While officially still registered at 115 Pop Hariton Street, they rented a room in a house at 44 Krayezerna Street where they were living at the time of their last communication with the Court. 22. At about 4 a.m. on 30 December 2008, the eighteenth applicant, the mother of Sava, had called an ambulance as the child was not breathing. Sava Zyumbyulkov Savov, aged two months and ten days, was declared dead by the emergency doctor. A hospital record announcing his death listed 1a Borimechkata Street as his permanent address and another address in Varna as his current address. The same two addresses had been indicated on the hospital record announcing his birth. 23. A preliminary criminal investigation against an unknown perpetrator was immediately opened into his death. A number of investigative measures were carried out. Those included an examination of the dwelling where the child had died and the creation of an album of pictures of the child in his cot, interrogation of the mother, as well as a forensic medical expertise, which comprised an autopsy of the infant’s body. The mother was provided with an ex officio lawyer. 24. The prosecutor terminated proceedings on 24 March 2009 for absence of a crime as the authorities considered that the child had died of natural causes. The death certificate indicated the cause of death as bilateral pneumonia and acute respiratory and cardiac failure. It listed the child’s address as 1 Borimechkata Street, Varna. The child’s mother, the eighteenth applicant, who was provided with legal assistance, did not make of her own motion any explicit complaint before the investigating authorities. Nor did she challenge the termination of the preliminary investigation. 25. On 9 October 2009, the chairman of the association brought an application before the Varna Administrative Court, entitled “complaint”, against Varna municipality. In it he complained of “drastic consequences” endured by the inhabitants of a number of dwellings following their eviction from those dwellings and the latter’s demolition. He claimed that those consequences included the death of one child and the severe psychological traumatism of several other children. He referred to evictions and demolitions carried out by the municipality since November 2008 on six different streets, among which Borimechkata Street, from which the individual applicants in the present case had been evicted. 26. He emphasised, without further detail and without listing the names of the individual applicants, that the actions of the municipality breached the affected persons’ human rights. He submitted that, while those persons would bring proceedings before the Commission for Protection Against Discrimination, that process would take too long and the families under threat of being evicted at that time risked being left in the street without shelter during the winter. He asked the court to order the municipality to provide shelter to the people facing eviction or to halt the planned eviction until shelter was secured. 27. By an order of 9 October 2009 the Varna Administrative Court found that the application did not meet the requirements of Article 150 of the Code of Administrative Procedure (“the 2006 Code”, see paragraph 40 below) and that it was necessary for the representative of the association to correct the irregularities in it. More specifically, the court order stated that he had to clarify the object of his application. If it was a complaint against an individual administrative act then he needed to specify the act, the body which had issued it and in what way the act was unlawful. Similarly, if he was complaining about actions or omissions on the part of an administrative body, then those had to be specified, together with their alleged unlawfulness. Further, it was necessary to indicate what he was asking of the court: the quashing of an unlawful administrative act or the discontinuation of actions or omissions by an administrative body. If he was asking for the latter, then he had to state whether those actions were carried out on the basis of an administrative act, or whether they were carried out without a lawful basis. He further had to provide proof of a paid state fee (of about 5 EUR), as well as of the existence of the association and of its valid representation. The court suspended the case so that the association’s representative could comply with the above instructions. 28. On 21 October 2009 the association’s representative filed a submission entitled “clarifying application” in response to the Varna Administrative Court’s order of 9 October 2009. It indicated that it was brought by Ridvan Sali, acting as a head and representative of association “Obnovlenie”. The modified application specified that it was a complaint representing, on the one hand, a challenge to the implementation by Varna municipality of the ordinance on people’s housing needs. On the other hand, the complaint was a challenge to the authorities’ actions and omissions relating to the eviction of the individual applicants in November and December 2008 from 1a Borimechkata Street in Varna and the authorities’ continued failure thereafter to provide the evicted Roma people with adequate shelter. He identified the authorities in question as Varna municipal council officials, the Varna social assistance directorate, police officials and the private security firm’s staff hired by the municipality to assist during the above-mentioned eviction and demolition. He further complained about the inaction of the social assistance department which, despite having been repeatedly informed by the association of the children’s imminent eviction in November 2008, had contented themselves with the drawing up of a report concluding that it was beyond their mandate to act. 29. The association’s representative further listed the names of the individual members of the Roma families who he claimed had suffered damage as a result of the authorities’ actions and inactions. The latter were enumerated as follows: the forced removal of the named individuals from their dwellings by the police; the humiliating treatment of the former by authorities involved in the eviction and demolition; the selective demolition of dwellings occupied by Roma only; forcing a one-month-old baby to spend a whole winter day in his cot in the open in the street, as a result of which he had died several weeks later from double-sided pneumonia; psychological harassment of the children from the demolished homes and failure to provide them with psychological support for the shock of witnessing their homes being destroyed and the helplessness of their parents; subsequent housing of the Roma families in conditions unsuitable for human occupation; unfair and discriminatory treatment during the last fifteen years of Roma in need of social housing including the families listed; and discriminatory treatment on the basis of people’s social status in the distribution of municipal dwellings. The association’s representative stated that those actions and inactions had breached the Protection Against Discrimination Act (hereafter “the PADA”), the human rights and freedoms provided for in the Convention for the Protection of the Child and the Convention for the Protection of Human Rights and Freedoms and, in particular, Articles 2, 3, 13 and 14. 30. He asked the court to order the municipality to audit its municipal housing policy as regards the ethnicity and social status of the people given municipal dwellings. In addition, he asked the court to compel the municipality to provide normal living conditions to the applicant families. He also asked the court to order the municipality to pay just compensation to them for the humiliating living conditions in which they had been forced to live after the eviction and demolition, as well as for having discriminated against them as regards the provision of housing. He also sought compensation for the family of the dead child, Sava Zyumbyulkov Savov, and for all three families for the insufficient protection provided to the children during the demolition and thereafter. He sought costs and expenses and submitted proof of payment of the state tax due and of the existence of the association. He also listed the written items of evidence which he submitted together with his application. 31. The Varna Administrative Court examined the clarified application on 23 October 2009. The court found, in the first place, that this application had made it clear that the complaint was against the actions and inactions of municipal officials from Varna municipality, of police officers and private contractors at the time of the demolition of dwellings in November-December 2008. The court further concluded that the complaint was against the inaction of the social assistance department for having refused to draw up a report on the living conditions of the children in the Savovi family during the said period. It then observed that the association was seeking, on behalf of three families, pecuniary and non-pecuniary damages stemming from the actions and omissions of the municipal administration in relation with the demolition of the municipal houses in which those families had been living and damages for placing those individuals in inappropriate municipal dwellings. 32. The court noted that the aforementioned actions and omissions had been presented as being unlawful and in breach of the Convention for the Protection of the Child, the Convention for the Protection of Human Rights and Fundamental Freedoms and the PADA. 33. The Varna Administrative Court decided that it had not been seized with a complaint against a specific individual administrative act under Article 145 § 2 of the 2006 Code, nor with a proper complaint against specific actions or omissions under Article 250 of the 2006 Code (see paragraph 37 below), or with a proper claim for damages under the State and Municipalities Responsibility for Damage Act 1988 (hereafter “the SMRDA”, see paragraphs 42-43 below). In particular, neither in the initial application of 9 October 2009 nor in the clarified application thereafter had the association representative specified an individual administrative act against which judicial review proceedings could be brought. Even assuming that this act was the eviction and demolition order in respect of the dwelling at 1a Borimechkata Street, the association was not a party to, or personally affected by, that order and the fourteen-day statutory period for judicial review of such orders had long expired. Furthermore, the claim against the administrative actions or omissions under Article 250 §§ 1 and 5 of the 2006 Code was likewise out of time, given that the authorities’ actions complained of had taken place in November-December 2008. The court further noted that a claim under section 1(1) of 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 in accordance with Article 204 of the 2006 Code. The court declared the application inadmissible. 34. Apart from the restating the complaint made by the association that the actions and omissions in question had been unlawful and in breach of the PADA, among other legal instruments (see paragraph 32 above), at no point in its decision did the Varna Administrative Court refer to the PADA – the legislative act to which the association had made explicit reference –, examine the procedural regularity or irregularity of the application from the perspective of the PADA or explain why, for all or any of the association’s complaints made in it, the PADA could not constitute an effective remedy. 35. On 11 December 2009, in the context of a cassation review, the SAC upheld the lower court’s decision in its entirety. 36. It found that the application before it was admissible as submitted within the statutory limitation period. However, it was not well-founded. In particular, the lower court had correctly established that it had not referred to a specific administrative act under Article 150 of the 2006 Code. Neither had it pointed out specific actions or omissions under Article 250 of the 2006 Code. Given that from the applicant association’s submissions it had been clear that the events complained of had taken place in NovemberDecember 2008, it was indisputable that the statutory limitation period had lapsed, which in turn was an additional ground for not examining the application on its merits. Finally, the applicants had not 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 compensation was being sought, or its amount. The SAC did not address the applicability of the PADA either. 37. Individuals can seek protection against actions and omissions of administrative bodies under Chapter 11 of the 2006 Code. Article 250 stipulates that everyone with a legal interest can bring a claim before the administrative court, seeking the discontinuation by an administrative body of an action not based on an administrative act or in the law. 38. According to Article 145 §§ 1 and 2 an administrative act may be contested before a court within fourteen days of its communication. 39. All claims for damages stemming from unlawful acts, actions or omissions by public bodies or officials are heard at first instance by the competent administrative court (Article 128 §§ 1 and 5). 40. According to Article 150 § 1, judicial review of an individual administrative act has to be lodged in writing and must indicate, inter alia, the court, personal and contact data of the applicant, the administrative act which is contested and the essence of the request. The administrative court may collect evidence admissible under the Code of Civil Procedure 2007 (Article 171 § 2) and it assists the parties in proceedings before it to correct formal errors and lack of clarity in their submissions (Article 171 § 4). 41. If an irregular application 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 application (Article 158). Thus, in two decisions, the Sofia Administrative Court, referring to the latter provision, returned an application twice to the claimant, indicating each time its irregularities and how to correct them (see опр. на адм. съд София град от 14.05.2010 и 26.06.2010 по адм. д. № 3537/2010). 42. Section 1(1) of the SMRDA provides that the State and, as of July 2006, the municipalities 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 discharging administrative duties. Pursuant to Article 204 (4) of the 2006 Code, the lawfulness of administrative actions or omissions is established by the court in the context of the same proceedings for damages. 43. Persons seeking redress for damage resulting from acts or omissions falling within the scope of the SMRDA have no claim under general tort law as the SMRDA is a lex specialis and excludes the application of the general regime (section 8(1) of the SMRDA; see also реш. от 29 юли 2002 г. по гр.д. № 169/2002 г. на СГС, ГК, ІVб отд., as well as реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о., referred to in, among others, the case of Iovchev v. Bulgaria, no. 41211/98, § 80, 2 February 2006). 44. Article 6 § 2 of the Constitution bans discrimination on the grounds of race, national origin, ethnicity, sex, religion, education, conviction, political affiliation, personal or public status and property status. 45. The PADA, which was adopted in 2003 and came into force on 1 January 2004, transposes Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, p. 22) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, p. 16). 46. It prohibits discrimination on grounds of sex, race, national origin, ethnicity, human genome, nationality, origin, religion or faith, education, beliefs, political affiliation, personal or public status, disability, age, sexual orientation, family status, property status, or any other ground provided for by law or an international treaty to which Bulgaria is a party. The Act also defines racial segregation, explicitly providing that it is a form of discrimination. 47. The PADA is a lex specialis in relation to general administrative and civil law. 48. Section 9 provides for the shifting of the burden of proof in discrimination cases. Under that section, where a claimant is able to prove facts from which an inference may be drawn that there has been discriminatory treatment, it is incumbent on the defendant to prove that there has not been a violation of the right to equal treatment. 49. A complainant may first file a complaint with the Commission for Protection against Discrimination (section 50 of the PADA) or instead bring an action directly in court (section 71 of the PADA). 50. According to section 71(1) of the PADA, every individual who considers himself or herself to be a victim of discrimination can bring a claim before the first-instance civil court, seeking in particular to establish that he or she has been discriminated against, that the defendant be made to discontinue the discriminatory treatment and to refrain for the future from it, and that compensation be paid to the victim. 51. Section 71(2) of the PADA entitles non-governmental organisations to bring claims on behalf of victims complaining of discriminatory treatment and seek compensation on their behalf. Section 71(3) of the PADA authorises non-governmental organisations to bring such proceedings in their own name when a high number of individuals is concerned. In such cases the compensation sought by the non-governmental organisation is in the interest of the individuals allegedly discriminated. 52. Domestic judicial practice on the question which courts have competence to hear discrimination claims under section 71(1) of the PADA has varied considerably in the past. An interpretative decision of a joint bench of judges from the SCC and SAC decided on 19 May 2015 that the administrative, and not civil, courts were competent to hear discrimination claims against public bodies or officials under section 71(1) of the PADA. This decision put an end to the lack of clarity regarding which courts – civil or administrative – were competent to hear such claims.