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Cite as: [2007] ECHR 883
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FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
|
Application no. 43449/02 |
Application no. 21475/04 |
The European Court of Human Rights (Fifth Section), sitting on 9 October 2007 as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having regard to the above applications lodged on 29 November 2002 and 29 May 2004,
Having deliberated, decides as follows:
THE FACTS
The applicants in the first application (no. 43449/02), Ms Pepa Vladimirova Mileva and Ms Meri Vladimirova Mileva, are Bulgarian nationals who were born in 1934 and 1936 respectively and live in Sofia. They are sisters.
The applicants in the second application (no. 21475/04), Mr Hristo Ivanov Evtimov, Mrs Lilia Kirilova Evtimova and Ms Kalina Hristova Evtimova, are Bulgarian nationals who were born in 1939, 1943 and 1977 respectively and live in Sofia. The first two of them are husband and wife; the third is their daughter.
All applicants are represented before the Court by Mr V. Ivanov, a lawyer practising in Sofia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The applicants and their flats
At the material time the applicants in the first application (no. 43449/02) – the Milevi sisters – owned a flat situated on the first floor of entrance “B” of a U shaped condominium building in the centre of Sofia. Both of them are retired and lived in that flat. As a result of the events which are described below, on 11 March 2004 they sold the flat and on 15 June 2004 moved out of it.
The applicants in the second application (no. 21475/04) – the Evtimovi family – own and live in a flat situated on the second floor of entrance “C” of the same condominium. Ms Kalina Evtimova's child, born in 2000, also lives there. Throughout the events described below Mr Hristo Evtimov was the chairman of the condominium's management council.
2. The flat converted into a computer club
In May 2000 a company rented a flat situated on the ground floor of entrance “B” of the condominium where the applicants lived. It started operating a computer club there, without obtaining the necessary permits.
In March 2002 the club moved into a flat situated opposite the original one, again on the ground floor of entrance “B”. This flat was located diagonally to both the flat of the Milevi sisters and the flat of the Evtimovi family.
The club, which operated about fifty computers and several vending machines, was open to clients twenty-four hours a day, seven days a week. The services it offered were mainly computer gaming and internet surfing. The club's clients, mostly teenagers and young people, often gathered in front of the building, chatting loudly at night, drinking alcohol, and smoking cigarettes and allegedly even narcotic drugs. They were often breaking the entrance doors of the building and were entering in the passageways, where they drank and smoked. The computers and the vending machines inside the club were allegedly generating high levels of noise which penetrated through the walls and the windows of the adjoining flats, including those inhabited by the applicants.
(a) The condominium's resolution to ban the activities of the club
On 28 June 2002 the general meeting of the condominium resolved, by twelve votes and three abstentions, that the club's operations should be stopped. It expressed the view that no commercial activities should be allowed in the condominium. It further stated that the operations of the club caused serious disturbances to all inhabitants. The manager of the club, who was present at the meeting, said that he disagreed and would do everything necessary to continue its operations.
(b) The applicants' attempts to obtain protection of their rights by the police
After having made numerous complaints by telephone, the applicants made written complaints to the police on 28 May, 13 and 20 June, and 19 and 20 November 2002. They submit that these prompted only a cursory verification of the club, which produced no tangible results.
In a letter which he wrote to the applicants on 21 February 2003 the head of the local police station stated that the club had all necessary permits and that no breaches of public order had been found. The club's manager had been warned in writing not to allow breaches of public order and had undertaken to inform the police of any disturbances. The head of the local station further said that the police had no powers to shut down commercial premises. On 26 February 2003 the applicants protested against the passiveness of the police.
On 8 November 2004 the club's manager called at the Evtimovi's flat. There he spoke with Mr Hristo Evtimov and allegedly threatened him with violence if he persisted in his efforts to have the club's operations stopped. The same day Mr Evtimov complained to the police, but apparently nothing ensued.
(c) The applicants' attempts to obtain protection of their rights by the municipal authorities
On 27 May 2002 the applicants asked the precinct mayor to order the cessation of the club's operations. The same day the municipal services wrote to the police, stating that the club was operating without the requisite licence.
On 7 June 2002 municipal inspectors visited the premises and drew up a procès-verbal stating that the club was operating unlawfully. On 24 June 2002 the municipality sent the file to the Sofia Regional Building Supervision Directorate.
However, on 26 June 2002 the precinct mayor approved a project for the conversion of the flat into commercial premises. On 1 July 2002 Mr Hristo Evtimov, acting in his capacity of chairman of the condominium, challenged this decision before the Sofia Regional Building Supervision Directorate. In a decision of 23 July 2002 this body, while noting that section 38 of the Territorial Organisation Act of 2001 had not been complied with, upheld the mayor's decision, reasoning that this omission did not constitute grounds for invalidating the legalisation of the conversion under section 156(2) of the Act (see below, Relevant domestic law and practice).
Despite the applicants' repeated complaints to the municipal authorities, no further action was taken by them.
On 28 September 2003 the precinct mayor permitted the club to operate, on condition that the entry of its clients would be through the back door and not through the passageway used by the inhabitants. On 7 July 2004 the applicants challenged the lawfulness of this permit before the Sofia Regional Directorate for Building Supervision. They argued that the condition posed by the mayor was impossible to comply with, as the only way to the back door was through the staircase. They accordingly requested that the permit be annulled and the club be closed. It does not seem that the permit was quashed.
On 28 November 2003 the chief architect of the municipality issued a use permit for the club, on condition that its clients would have a separate entry.
(d) The building supervision authorities' prohibition to use the flat and the ensuing judicial review proceedings
On 28 May 2002 the applicants asked the Sofia Regional Building Supervision Directorate to prohibit the use of the flat.
In a decision of 2 July 2002 the head of the Directorate prohibited the use of the flat. He also ordered that its electricity and water supplies be cut off. He noted that the flat had been modified into a computer club without a building permit and that the club had started operating without a use permit, in breach of section 178(1) of the Territorial Organisation Act of 2001 (see below, Relevant domestic law and practice). He noted, by reference to section 217(1)(3) of the same Act, that an eventual application for judicial review of the decision would not automatically stay its enforcement.
On an unspecified date the flat's owner appealed to the National Building Supervision Directorate. On 4 November 2002 that Directorate rejected the appeal as inadmissible, noting that the impugned decision was not subject to a hierarchical appeal, but only to judicial review. On 7 November 2002 the National Directorate instructed the Regional Directorate to enforce the decision.
The flat's owner then sought judicial review of the decision. She also asked the court, as an interim measure, to stay its enforcement.
On 15 November 2002 the Sofia City Court stayed the enforcement of the decision. It noted that by law the decision was immediately enforceable, even if an application for its review was pending. However, the court could stay its enforcement. The request for that was well-founded because the file did not contain any indications that the conditions envisaged by section 16 of the Administrative Procedure Act of 1979, which dealt with the immediate enforcement of non final administrative decisions (see below, Relevant domestic law and practice), were in place. The court also allowed the condominium and the company operating the computer club to intervene in the proceedings, and listed a hearing on the merits of the case for 25 February 2003.
On 27 February 2003 applicants appealed to the Supreme Administrative Court. On 19 June 2003 that court reversed, holding that, by section 217(1)(3) of the Territorial Organisation Act of 2001, the administrative decision was immediately enforceable. Its enforcement could be stayed by the court, but only if that would engender irreparable harm or frustrate the object of the proceedings. The owner of the flat had not averred why she thought these prerequisites were in place; nor had the Sofia City Court made such a finding. Instead, it had merely referred to section 16 of the Administrative Procedure Act of 1979. However, that provision was not applicable, as the decision was immediately enforceable by law.
Following that, the applicants requested the Sofia Regional Building Supervision Directorate to enforce the decision. It seems that they did not receive a reply.
On 10 July 2003 the Sofia City Court, acting pursuant to a fresh request by the flat's owner, again stayed the enforcement of the decision. It held that its immediate enforcement would hinder the unfolding of the judicial review proceedings and would result in damage for the owner. There was no indication that the lives and the health of others were at risk or that the enforcement would become more difficult or be blocked, or that important state interests were at stake.
Upon the appeal of the applicants, on 8 October 2003 the Supreme Administrative Court reversed. It held that in principle the immediate enforcement of administrative decisions was done if, inter alia, this was needed for safeguarding the lives and the health of others or for protecting serious state or public interests. However, in those cases where the law, departing from the principle, made provision for the immediate enforcement of an administrative decision, it presumed that this was needed. Staying the enforcement of a decision which was immediately enforceable by operation of law was thus only possible if that would jeopardise an opposing interest of the same intensity as the one sought to be safeguarded, which was not the case. The potential pecuniary damage for the flat's owner, which had not been specified, was not of such a nature, as it could later be fully compensated by the payment of money.
After that the applicants made numerous requests for the decision of 2 July 2002 to be enforced. However, they were informed that on 28 November 2003 the precinct mayor had permitted the use of the club and that therefore the decision could not be enforced. The applicants complained about that to the prosecution authorities, to no avail.
In the meantime, having adjourned the case on 25 February 2003, the Sofia City Court listed a hearing on the merits for 26 March 2004. It seems that during this period the applicants made three complaints about delays under Article 217a of the Code of Civil Procedure of 1952 (see below, Relevant domestic law and practice) to the Supreme Administrative Court. The third one resulted in a decision of 5 February 2004 in which the deputy chairwoman of the Supreme Administrative Court instructed the Sofia City Court to push forward the date of its hearing.
As a result, the Sofia City Court rescheduled the hearing for 9 March 2004. However, it failed to take place on that date, as the flat's owner had not been properly summoned. The next hearing was listed for 6 July 2004.
On 14 April 2004 the applicants made a new complaint about delays. On 17 May 2004 the chairman of the Supreme Administrative Court denied it. He held that the Sofia City Court had made all possible efforts to allow the proper unfolding of the proceedings and that, in view of that court's busy calendar, the scheduling of a hearing for 6 July 2004 did not amount to unjustified delay.
At the hearing on 6 July 2004 the Sofia City Court started to examine the merits of the case, and listed a further hearing for September 2004.
At the hearing, held by the Sofia City Court on 21 September 2004, the flat's owner declared that she withdrew the application for judicial review. The court accordingly discontinued the proceedings.
(e) Further developments
On 8 November 2004 the Sofia Regional Building Supervision Directorate found that the computer club was operating in breach of the permit of 28 November 2003 (see (c) above), as its clients were entering through the passageway used by the inhabitants of the condominium and not through a separate entrance.
On 16 November 2004 the flat's owner informed the authorities that the computer club had ceased its operations. On 25 November 2004 the Sofia Regional Building Supervision Directorate, having found after an inspection on 19 November 2004 that the vending machines and two computers had still not been taken out of the club, again prohibited its use and ordered that its electricity and water supplies be cut off.
At the time of the latest information from the applicants (24 March 2007) the flat had been leased by another company, which was apparently using it as an office.
(f) The Milevi sisters' request for a waiver of the court fees for the tort action which they intended to bring against the operators of the club
In the meantime, on 1 September 2003 the Milevi sisters lodged with the Sofia City Court a request, addressed to the chairman, to be exempted from paying court fees for a tort action which they intended to bring against the persons operating the club. They briefly described the situation and their intention to bring a tort action claiming 100,000 Bulgarian levs (BGN) each in non pecuniary damages and BGN 10,000 each in pecuniary damages. They averred that, since they had no income apart from their retirement pensions amounting respectively to BGN 139 and BGN 77, they could not pay the requisite fees (4% of the amount claimed). They enclosed declarations detailing their income and assets.
On 12 September 2003 the chairman of the court refused to examine the request, holding that it could only be made if an action had already been brought, or if it had been lodged concomitantly with the statement of claim.
Upon the appeal of the Milevi sisters, on 9 October 2003 the Sofia Court of Appeals affirmed.
The Milevi sisters appealed further, arguing that there was nothing in the applicable law which required them to lodge a fees exemption request concurrently with the statement of claim. On the contrary, it was more logical to know whether they needed to pay fees for their action before brining it. In a decision of 12 January 2004 a three member panel of the Supreme Court of Cassation rejected the appeal.
Ms Pepa Mileva appealed, reiterating her arguments. On 7 June 2004 a five member panel the Supreme Court of Cassation upheld the three member panel's decision. It held that the decision of the Sofia City Court's chairman had not been subject to appeal. Only the refusal to waive the fees due under an already commenced action was subject to appeal, because such a refusal would block the unfolding of the proceedings. By making an exemption request before actually bringing an action, the applicants had asked the court to reply prematurely to a question which had not been properly before it. The issue whether a claimant could be exempted from paying court fees and costs for the proceedings could be decided only if the underlying action had already been brought, because the court would only then be aware of the cause of the action, the amount of the fees and the claimant's financial status.
3. The flat converted into an electronic games club
In August 2003, having obtained a building permit on 11 May 2002, the owner of the flat which had been occupied by the computer club until March 2002 (see above) started transforming his flat into an electronic games club. He put high-voltage cables inside the flat and changed its windows.
On 29 August 2003 the Milevi sisters complained to the Sofia Regional Building Supervision Directorate, stating that no assent had been sought from them under section 38 of the Territorial Organisation Act of 2001 (see below, Relevant domestic law and practice). On 29 September 2003 the Directorate replied, stating that the works were lawful, as they had been carried out pursuant to a building permit.
The Milevi sisters complained to the National Building Supervision Directorate, which on 2 December 2003 instructed the Regional Directorate to check the legality of the construction. Apparently nothing ensued.
In the meantime, on 13 October 2003, the Milevi sisters appealed against the building permit to the Sofia Regional Building Supervision Directorate. On 26 November 2003 the Directorate rejected the appeal as being out of time. Upon the appeal of the Milevi sisters, on 5 April 2004 the Sofia City Court quashed that decision and instructed the Directorate to examine the appeal. Upon the appeal of the Directorate the Supreme Administrative Court affirmed on 26 October 2004.
In the meantime the Milevi sisters made numerous complaints about the construction, to both the building supervision authorities and the police, apparently to no avail.
4. The flat converted into an office
In 2002 a company rented a flat immediately adjacent to the flat of the Milevi sisters. It started using that flat as an office. The Milevi sisters submitted that they could overhear loud telephone rings and conversations, loud voices late at night, moving of furniture and banging of doors.
On 18 April 2002 the applicants complained to the municipality, stating that the company had not sought their assent for using the flat as an office, in breach of section 38(3) of the Territorial Organisation Act of 2001, which required the assent of all “immediate” neighbours (see below, Relevant domestic law and practice).
As a result, on 17 June 2002 municipal inspectors visited the building and found that the flat in issue was being used as commercial premises. However, the owner of the flat was not present and the inspectors were not given access to the flat to make more detailed findings. They sent a summary of their findings to the Sofia Regional Building Supervision Directorate.
After the repeated complaints of the Milevi sisters, on 15 November 2002 that Directorate instructed the municipality to prove that the flat was indeed being used as commercial premises entailing regular visits by outsiders.
As a result, on 30 January 2003 the inspectors made a second visit. However, they were refused access to the flat and the police, who had been called in aid, did not show up.
Apparently the office continued operating undisturbed throughout that period.
5. The flat converted into a café
In 1992 a flat situated in entrance “A” of the applicants' condominium was converted into a café. On 22 October 1992 the flat's owner was granted a building permit, which allowed him to make an opening in the external wall of the building, so as to make an entrance to the café. He did so.
However, in a decision of 14 June 1994 the precinct mayor, acting pursuant to a complaint by the condominium, revoked the building permit. The flat's owner sought judicial review. In a judgment of 1 April 1996 the Sofia City Court dismissed his application, holding that the entrance of the café was an opening in the external wall of the building. However, that wall belonged to all co owners of the condominium. It had thus been necessary to obtain the consent of all of them, which had not been done. The revoking of the building permit was therefore lawful.
The owner of the flat lodged a petition for review. In a final judgment of 26 May 1998 the Supreme Administrative Court rejected it, fully agreeing with the lower court's reasoning.
The condominium's manager, having been authorised in writing by the co owners, took part in the proceedings, representing the interests of the condominium.
It seems that despite the above and despite the repeated complaints of the applicants the café continued to operate without hindrance (it was later converted into a bookshop) and that the opening in the wall remained intact. On 8 February 2000 the construction was regularised by the building supervision authorities and on 16 June 2003 the Sofia Regional Building Supervision Directorate allowed its use.
In 2006 the owner of the flat made an unsuccessful attempt to have the 1996 98 judicial review proceedings reopened.
B. Relevant domestic law and practice
1. The Territorial Organisation Act of 2001
Section 38(3) of this Act provides that a flat situated in a condominium may be used as an office, entailing visits by outsiders, provided that it is on the ground floor and that all sanitary, hygienic, technical, fire protection etc. requirements have been complied with. This provision also necessitates the express written and notarised assent of the “immediate neighbours” of the premises whose conversion is proposed. It further says that, exceptionally, a flat located on a higher floor may also be used as an office, but in that case the conversion must in addition be approved by the general meeting of the condominium.
Section 38(4) of the Act provides that a flat situated on the ground floor of an existing condominium may be converted into commercial premises provided that all sanitary, hygienic, technical, fire protection etc. requirements have been complied with, and provided that a separate entry, which does not affect the passageway to the residential part of the building, is made possible. This provision also requires the conversion to be approved by the general meeting of the condominium and necessitates the express written and notarised assent of the “immediate neighbours” of the premises whose conversion is proposed.
However, section 156(2) of the Act, which sets out an exhaustive list of grounds pursuant to which building permits for already started constructions may be invalidated after they have in fact started, does not include a breach of the assent requirements of section 38 among them.
By section 149(1) and (2) of the Act, building permits have to be brought to the attention of the persons whose assent is needed under section 38. They may appeal against the building permits to the Regional Building Supervision Directorate (section 149(3) of the Act).
By section 178(1) of the Act, as in force at the material time, it was prohibited to use a building or a part of it before the issuing of a use permit. If a building or a part of was used without such a permit, the head of the National Building Supervision Directorate or an official authorised by him made a reasoned decision prohibiting such use and ordering the cutting off of the electricity and water supplies and the heating (section 178(5) of the Act, as in force at the material time). The applications for judicial review of decisions prohibiting the use of buildings or parts of them do not have suspensive effect (section 217(1)(3) of the Act); since these decisions are not subject to appeal before a higher administrative authority, they are therefore immediately enforceable. However, their enforcement may be stayed by the court (section 217(2) of the Act).
By section 219 of the Act, as in force at the material time, the applications for judicial review of decisions prohibiting the use of buildings or parts of them were examined under an accelerated procedure set out in Articles 126b 126e of the Code of Civil Procedure of 1952, which involved short time limits for exchanging observations and for scheduling hearings.
By section 222(2)(2) of the Act, as in force at the material time (presently section 222(2)(4)), the National Building Supervision Directorate enforces decisions for prohibiting the use of buildings or parts of them. In so doing, it may use technical devices and means (section 222(3) of the Act). If it encounters resistance, it may use force, by enlisting the aid of the police (section 222(5) of the Act).
2. The Property Act of 1951
By section 45(1) of this Act, owners of flats in a condominium may be evicted from the building by resolution of the general meeting of the condominium if they, inter alia, systematically breach the internal regulations of the building, the resolutions of the general meeting for the internal order of the building, or the good morals. This eviction may take place only if the owners in issue have been warned in writing by the condominium's manager that they will be evicted and if even after this warning they have not stopped the breach (section 45(2) of the Act). The district court issues a writ execution pursuant to the resolution, once it has entered into force (section 46(2) of the Act). However, the evicted owner may request the district court to annul the resolution (section 46(1)). There is no reported case law on the application of these provisions in recent years.
By section 47(1) of the Act, the manager of the condominium (elected by the general meeting) may, if authorised, represent the co owners in court.
By 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 right of property. The Supreme Court has explained the manner of operation of this action (actio negatoria) in an interpretative decision of 1985 (тълк. реш. № 31 от 6 февруари 1985 г. по гр.д. № 10/1984 Г., ОСГК на ВС). It may be brought by the owner against any person, irrespective of whether they are or not owners of an adjoining property (реш. № 1544 от 30 октомври 2002 г. по гр.д. № 18899/2001 г., ВКС, IV г.о.). It may be brought by the owner of one flat in a condominium against the owner of another flat (реш. № 1818 от 13 ноември 2002 г. по гр.д. № 2183/2001 г., ВКС, ІV г.о.). It may be brought together with a tort action seeking compensation for the hitherto suffered damage (see, as a recent example, реш. № 1272 от 16 септември 2004 г. по гр.д. № 660/2003 г., ВКС, ІV г.о.).
3. The Regulation for Management, Order and Supervision in Condominiums
This Regulation (“Правилник за управлението, реда и надзора в етажната собственост”), which was adopted in 1951 and whose latest amendments date from 2002, deals with the internal organisation of condominiums. It contains detailed provisions on the internal order of the buildings and the use of the common parts.
Its section 12(1) provides that the resolutions of the general meeting of the condominium are immediately enforceable. The chairman of the condominium's management council may apply in writing to the competent district court to obtain a writ of execution. The resolutions for evicting an owner under section 45 of the Property Act of 1951 (see above) are not immediately enforceable. In order to obtain a writ of execution, the condominium must first produce to the district court the warning which it gave to the owner under section 45(2) of that Act (section 12(2) of the Regulation).
4. The Ministry of Internal Affairs Act of 1997
By section 268 of this Act, the organs of the Ministry of Internal Affairs may stop the use of buildings, installations, etc., as well as to stop all other activities which, inter alia, pose a risk for public order.
5. Regulation no. 1 on Public Order and the Preservation of Municipal Property on the Territory of the Municipality of Sofia
This Regulation, issued by the Sofia City Council in 1993, deals with public order on the territory of the Municipality of Sofia. Its section 3(1) prohibits noisy social events in residential buildings. By its section 3(3), noisy commercial activities in residential buildings are allowed only if their inhabitants agree in writing. By section 3(4), if no effective noise protection can be secured, the use of noisy devices and machines is allowed only from 9 a.m. to 2 p.m. and from 4 p.m. to 9 p.m.
Breaches of the Regulation are punishable by a fine (section 24(1) of the Regulation). Repeat offenders are liable to a heighten fine (section 24(4) of the Regulation). If the repeated offence is connected to a profession or a trade, the penalty may also be occupational disbarment for a period ranging from one month to two years (section 24(4) of the Regulation). The employees of entertainment establishments or companies are liable for the breaches committed by them in the course of the activity of the organisations; managers are liable for breaches ordered or tolerated by them (section 28(3) of the Regulation).
The control organs, which include the police and officials authorised by the mayor (section 29(1) of the Regulation), are under the duty to note down every breach of the Regulation (section 29(2) of the Regulation).
6. Regulation on the Manner of Carrying Out Commercial Activities on the Territory of the Municipality of Sofia
This Regulation, issued by the Sofia City Council in 2001 and superseded by a new regulation in 2005, subjected the commercial operations on the territory of Sofia to a licence requirement.
7. Other relevant law
Section 16 of the Administrative Procedure Act of 1979, as in force at the material time, provided that administrative authorities could make their decisions immediately enforceable if this was necessary for protecting the life or the health of the citizens, for preventing losses for the economy, or for safeguarding other material state or public interests, as well as if there existed a risk that the enforcement of the decision would be frustrated or seriously hindered.
Article 63(1)(b) of the Code of Civil Procedure of 1952, as in force at the material time, provided that litigants certified by the chairperson of the respective regional court or by the competent district court judge as indigent, on the basis of a declaration about their financial status, were exempted from paying court fees and costs for the proceedings.
Article 217a of the same Code, as in force at the material time, provided for a “complaint about delays” whereby a litigant faced with unjustified delays could request the chairperson of the higher court to instruct the court dealing with the case to accelerate certain procedural actions.
COMPLAINTS
THE LAW
“1. Everyone has the right to respect for his private ... life [and] his home...
2. There 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.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
“Everyone whose rights and freedoms as set forth in [the] 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.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
According the Convention organs' settled case law, Article 6 § 1 is applicable, under its civil limb, only to proceedings in which civil rights and obligations are being determined. This provision does not therefore apply to proceedings which concern interim measures that do not affect the merits of the case (see, among others, Gallogly v. the United Kingdom, no. 7990/77, Commission decision of 11 May 1981, Decisions and Reports (DR) 24, p. 57, at p. 61; Ribstein v. France, no. 31800/96, Commission decision of 16 April 1998, unreported; and Apis a.s. v. Slovakia (dec.), no. 39754/98)
The Court notes that in the proceedings in issue, which took place within the framework of the proceedings on the merits, the Sofia City Court did not determine the lawfulness of the decision prohibiting the use of the flat; the only issue on which it ruled was whether this decision was to be enforced or not pending the outcome of the main proceedings. These proceedings were therefore not determinative of the applicants' civil rights and obligations.
By a similar token, the proceedings in which the Supreme Administrative Court quashed the impugned decisions of the Sofia City Court did not involve a determination, within the meaning of Article 6 § 1, of the applicants' civil rights and obligations.
It follows that these complaints are incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
Article 6 § 1 of the Convention
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 1 of Protocol No. 1
“Every 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.
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.”
Concerning Article 6 § 1 of the Convention, the Court observes that the Milevi sisters, acting through the manager of the condominium, were successful in the proceedings for revoking their neighbour's building permit: this revocation was upheld by means of a final judgment of the Supreme Administrative Court of 26 May 1998. However, the Court cannot find that this should have automatically given the applicants a right to have their neighbour's construction eliminated. Such elimination would be only one of the possible ways of giving effect to the final judgment delivered in the proceedings for revoking the building permit. Another way would be pecuniary compensation to the applicants for the alleged damage caused by the unlawful construction. Thus, the applicants, if they had actually sustained prejudice because of this construction, could have brought a civil action against their neighbour for compensation. However, they did not resort to this avenue of redress, but insisted on the immediate elimination of the construction (see Krickl v. Austria, no. 21752/93, Commission decision of 21 May 1997, DR 89, p. 5, at p. 14; and, more recently, Emsenhuber v. Austria (dec.), no. 54536/00, 11 September 2003). In view of these considerations, the Court cannot find that there is any appearance of a violation of their rights under Article 6 § 1 of the Convention.
As regards Article 1 of Protocol No. 1, the Court finds that the applicants have not sufficiently substantiated that the non elimination of the unlawful construction, which consisted in an opening in the outside wall of the building and was not directly adjacent to their flat, led to a loss of value of their property, or that they could not be compensated for such loss if any (see Krickl, cited above, at p. 16). There is therefore no appearance of a violation of the applicants' right to peaceful enjoyment of their possessions as guaranteed by Article 1 of Protocol No. 1.
It follows that this part of the application is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court notes that the domestic courts held that a request for exemption from court fees could only be made once an action had been commenced. While the applicants submit that this construction of the applicable texts was erroneous, the Court reiterates that it is for the national courts to interpret and apply domestic law (see, among many other authorities, Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports of Judgments and Decisions 1997 VIII, p. 2955, § 31). Its function is limited to verifying whether their interpretation leads to results which are at odds with the provisions of the Convention.
It is apparent from the decisions of the national courts that it was open to the Milevi sisters to request a fee waiver once they had commenced a tort action against the persons operating the computer club which disturbed them. It is a matter of speculation whether such a request, when made, would have been denied, as the applicants did not in fact attempt to bring a tort action and request an exemption from court fees, as directed by the domestic courts.
It follows that this complaint is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The Court notes that in these proceedings the national courts determined solely whether the appeal which the Milevi sisters had lodged against the building permit had been timely and thus admissible. The issue thus arises whether they were determinative of their civil rights and obligations. However, the Court can leave that question open, as even assuming that Article 6 § 1 of the Convention was applicable, the applicants' complaints are inadmissible for the reasons set out below (see Levages Prestations Services v. France, judgment of 23 October 1996, Reports 1996 V, p. 1541, §§ 32 36).
The Court notes that the proceedings ended in favour of the applicants. They cannot, therefore, claim to be victims of a violation of Article 6 § 1 of the Convention in respect of the fairness of these proceedings.
As regards the length of the proceedings, the Court notes that their overall duration was less than a year for two levels of court (26 November 2003 – 26 October 2004). It did not therefore exceed the reasonable time requirement of Article 6 § 1.
It follows that this part of the application is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Decides to adjourn the examination of the applicants' complaints concerning the alleged failure of the authorities to take measures to protect their private lives and homes from the nuisances coming from third parties (complaint no. 1) and the alleged lack of effective remedies in this respect (complaint no. 2), as well as of the complaint concerning the length of the proceedings for judicial review of the decision of 2 July 2002 (complaint no. 4);
Declares the remainder of the applications inadmissible.
Claudia Westerdiek Peer Lorenzen
Registrar President