KATELIEV v. BULGARIA
Inadmissible
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Ledi Bianku;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicant, Mr Kosyu Todorov Kateliev, is a Bulgarian national, who was born in 1953 and lives in Varna. He was represented before the Court by Mr M. Ekimdzhiev and Ms G. Chernicherska, lawyers practising in Plovdiv, and then by Ms S. Margaritova-Vuchkova, a lawyer practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant’s house was built in the first half of the 20th century in Varna. Until 2005, another small building was attached to its side wall, the length of the wall that functioned as a party wall measuring about 5 metres. On the part of the side wall that was not adjoining the other building, the applicant’s house had several windows, including those of the two bedrooms, and a balcony. 5. On 16 February 2004 the local development plan was amended to permit the construction of a new four-storey building attached to the side of the applicant’s house. The owners obtained all necessary planning permissions and building permits. 6. On 10 January 2005 the construction of a new building began on the neighbouring plot, replacing the old building attached to the applicant’s house, which was demolished. However, as the new building was larger, the length of the party wall shared with the applicant’s house now measured 7 metres. As a result, the house’s bedroom windows were blocked by a blind wall of the new building and the balcony was destroyed. 7. After an enquiry by the applicant, he was informed by the municipality and the building control authorities that he had been notified of an intended amendment to the local development plan, envisaging the construction of the new building, and had not objected to it. The applicant contested this fact, arguing that his signature attesting to the fact that he had received the notification had been forged. 8. In October 2006 the new building was finished and the municipality authorised its use. 9. Following that and because of the damage caused to his house, the applicant and his family moved out to another home. 10. On 1 June 2005 the applicant appealed against his neighbours’ building permit and sought an order that the construction works be ceased. On 9 June 2005 the building control authorities rejected the appeal as inadmissible. The applicant applied for judicial review to the Varna Regional Court. 11. On 22 August 2005 one of the owners of the neighbouring plot asked the Regional Court to authorise the preliminary execution of the building permit, stating that the suspension of the works would inflict contractual penalties and other losses on him. In a final decision issued on the same date the Regional Court authorised the continuation of the construction works, reasoning that their interruption would entail substantial losses for the owners of the plot. 12. By a final decision of 23 May 2006 the Supreme Administrative Court rejected the applicant’s application for judicial review as inadmissible. It held that the applicant had no standing to appeal against the building permit, as it concerned property which did not belong to him. 13. In the meantime, on 13 May 2005 the applicant applied for the judicial review of an order of 16 February 2004 of the Varna deputy mayor, whereby the amendment to the local development plan of the area envisaging the construction of the new building had been approved. The applicant sought to have the construction works ceased pending the resolution of the dispute. 14. On 28 September 2005 the Supreme Administrative Court dismissed the applicant’s application for a suspension order as inadmissible, reasoning that his appeal had suspended the implementation of the local development plan by virtue of law. 15. On an unspecified date one of the owners of the neighbouring plot asked the court to authorise the preliminary implementation of the approved layout pending the outcome of the applicant’s appeal. By a final decision of 5 December 2005 the Regional Court granted the request, reasoning that a delay in implementation would entail losses for the owners of the building. 16. By a final judgment of 20 May 2010 the Regional Court quashed the amendment to the local development plan. It held, in the first place, that it had not been established that the applicant had been informed of the intended amendment (a name different from his had been indicated on the notification papers) and therefore his appeal had been submitted in time. The court noted the disagreement amongst the experts appointed by it as to whether the side of the applicant’s house was officially considered a blind wall, and hence, whether the legislation governing building works had been violated. Without adjudicating on this matter, it held that the order for the amendment did not contain any reasons, which made it impossible to assess its lawfulness. In particular, it was not explained why it was necessary to amend the existing plan. Furthermore, as the applicant had not been duly notified of the amendment, he had not had the opportunity to object to it, which was another violation of the legal requirements. 17. Although the Regional Court’s judgment was not subject to appeal, the owners of the neighbouring building tried to challenge it before the Supreme Administrative Court, which rejected their appeal as inadmissible on 25 October 2011. 18. From the very beginning of the construction works on the neighbouring plot the applicant submitted numerous complaints to the building control authorities, which, however, refused to intervene, pointing out that his neighbours had been issued with all necessary planning permissions and building permits and, later on, that the courts had allowed the building works to be carried out. 19. The applicant also complained to the Ministry of Public Works, the Ombudsman, the National Assembly, the President of Bulgaria, the Varna municipality and other bodies, which all refused to intervene and on most occasions referred the matter back to the building control authorities. 20. On an unspecified date in 2007 the applicant brought an actio negatoria against the owners of the neighbouring building. On 5 December 2008 the Varna District Court dismissed the action. However, in a judgment of 11 May 2010 the Varna Regional Court reversed and allowed the claim, ordering the neighbours to demolish their building. It held, on the basis of two expert reports, that the amendment to the local development plan had breached the applicable legislation. As a result, the newly constructed building had rendered useless two of the applicant’s rooms and had had a detrimental effect on the living conditions in his house. The court held that the violation of the applicable legal provisions had been so serious that it had rendered null and void both the amendment to the local development plan and the building permit. 21. One of the defendants filed an appeal on points of law, pointing out that his wife had not been summoned as a party to the proceedings, although she was a co-owner. 22. In a judgment of 29 June 2011 the Supreme Court of Cassation quashed the judgment of 11 May 2010 and remitted the case to the Regional Court for fresh examination. It established that the appellant’s wife had been an interested party to the proceedings and that it had been necessary to ensure the participation of all interested parties. It further found that it could be inferred from the case file that there were other owners of the building who had not been summoned to the proceedings. 23. After the case was remitted, the applicant identified all owners of the building and notified the Regional Court of their names and addresses. A hearing was scheduled for 25 June 2012. The Court has not been informed of the developments in the proceedings after that date. 24. On an unspecified date in 2005 the applicant complained to the prosecution authorities that the notification sent to him concerning the amendments to the local development plan had been signed on his behalf by an unknown person. Criminal proceedings for forgery were opened against one of the owners of the neighbouring plot, but the investigation was subsequently directed against the applicant. On 23 December 2005 he was charged with perjury, in that he had lied to the investigator when declaring that he had not himself signed the document in question. The applicant was prohibited from leaving his place of residence without permission. 25. On 26 June 2008 the district prosecutor terminated the criminal proceedings against the applicant and cancelled the prohibition on leaving the town. It is unclear whether any investigation against the owner of the neighbouring plot remained underway. 26. Section 50 of the Property Act 1951 (Закон за собствеността) provides that the owner of a piece of immovable property cannot carry out actions which impede, in more than the usual way, the use of neighbouring properties. 27. Under section 109(1) of the same Act, an owner may request the cessation of any “unjustifiable activity” which hinders him in the exercise of his rights. In an interpretative decision (no. 31 of 6 February 1985) the former Supreme Court explained that such a claim (actio negatoria) provided protection against unjustified interference – whether direct or indirect – which might prevent an owner from using his property to the fullest extent. The claim could be used to declare such interference unlawful and enjoin the persons concerned to stop it and remove its effects. The Supreme Court held, in particular, that in cases where buildings have been constructed on a neighbouring property without the necessary documents and permits or in contravention thereof, the owner was not obliged to tolerate any restrictions on his right to use and enjoy his property which such a situation might cause. Thus, the actio negatoria could be used to obtain an order to demolish a building. Lastly, the Supreme Court held that unlike decisions of the building control authorities, the courts’ judgments pursuant to such claims determined with finality disputes between the aggrieved owner and the perpetrator of the interference, and could be enforced as a matter of right. 28. In judgment no. 1291 of 16 November 1992 (case no. 1038/1992) the former Supreme Court of Bulgaria, examining an actio negatoria, held that the very fact of construction in breach of the relevant rules and legal provisions amounted to an impermissible interference with the neighbour’s right to property, which did not thus need to be proven any further. In judgments no. 7 of 24 February 2000 (case no. 1440/1999) and no. 43 of 4 March 2009 (case no. 4983/2007) the Supreme Court of Cassation held in addition that an actio negatoria could be allowed even where the construction or reconstruction works in the neighbouring property had been carried out in accordance with the relevant construction permits, as in issuing them the administrative authorities had not been under an obligation to take into account the neighbour’s interests. 29. In judgment no. 350 of 5 August 2010 (case no. 1269/2009), the Supreme Court of Cassation allowed an actio negatoria brought by the owners of a house whose neighbours had constructed a building in contravention of the construction permit granted, thus occupying a portion of the claimants’ plot and blocking the light. The Supreme Court of Cassation, finding that the situation hindered the effective enjoyment of the claimants’ right to use and enjoy their property, ordered the neighbours to demolish their building. 30. In judgments no. 40 of 31 January 2011 (case no. 296/2010) and no. 46 of 26 May 2011 (case no. 438/2010) the Supreme Court of Cassation also ordered, in actions under section 109 of the Property Act, the demolition of unlawfully constructed buildings. 31. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди, “the SMRDA”) provides that the State and municipalities are liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of an administrative activity. The liability for damages of the municipalities was introduced following legislative amendments of July 2006. 32. The domestic courts have applied this provision in a number of cases concerning the prevention of the effective exercise of the right to use and enjoy property caused by unlawful construction works in neighbouring plots authorised by the authorities. In judgment no. 633 of 19 November 2009 (case no. 2032/2008), the Supreme Court of Cassation upheld a lower court’s judgment allowing such a claim against the building supervision authorities and the Ministry of Public Works, finding that the construction works on a plot neighbouring that of the claimant, although duly authorised by the defendants, had contravened the relevant construction regulations and had, as a result, infringed the claimant’s right to light. The Supreme Court pointed out that the authorities’ liability was engaged even where none of their decisions related to the disputed construction works had been expressly found to be null and void; it was sufficient that the construction works were in breach of the statutory requirements. 33. In another judgment, no. 475 of 9 January 2012 (case no. 1922/2010), the Supreme Court of Cassation awarded damages to a claimant in a similar situation, pointing out that he had on numerous occasions alerted the building control authorities of the unlawfulness of the construction works on the neighbouring plot. Those authorities had not fulfilled their obligation to order the cessation of the unlawful construction works and have the neighbours’ building demolished, which had resulted in damage to the claimant’s house. 34. In another case (see judgment no. 77 of 13 May 2005, case no. 234/2004, the judgment has entered into force), the Plovdiv Court of Appeal awarded damages to claimants whose neighbours had erected a building without the necessary construction permits. The construction had subsequently been retrospectively approved by the municipal authorities, but the approval order had been annulled by the courts. The Court of Appeal took note of the fact that even following these developments the neighbours’ building was still standing and its demolition had been neither ordered, nor undertaken, and therefore held that the municipal authorities had failed in their obligations to protect the claimants’ property. 35. In a similar situation, the Veliko Tarnovo Court of Appeal also awarded damages (judgment no. 361 of 15 January 2009, case no. 606/2008, the judgment has entered into force). In that case, the claimant’s property had been earmarked for expropriation and on that basis the municipal authorities had authorised the construction of a new building in its immediate proximity. However, the intended expropriation had subsequently been abandoned, which had forced the claimant to remain in her house, whose value had already seriously depreciated and which had also been damaged by the construction works close to it.