AS TO THE ADMISSIBILITY OF
by Lyubka YORDANOVA and Others
The European Court of Human Rights (Fifth Section), sitting on 14 September 2010 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 23 June 2006,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Ms Lyubka Yordanova Yordanova, born in 1971, and 22 others listed in the annex, are Bulgarian nationals who live in Sofia. They are represented before the Court by Mrs M. Ilieva, a lawyer practising in Sofia.
The Bulgarian Government (“the Government”) are represented by their Agent, Ms Svetla Atanasova, of the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The relevant background
(a) The applicants' homes
The applicants are residents of Batalova Vodenitsa, a neighbourhood of Sofia. They describe themselves as being of Roma origin.
Some of the applicants or their parents and in some cases their grand parents moved to Batalova Vodenitsa at the end of the 1960s and in the 1970s. Others are more recent arrivals who settled there in the 1990s.
In the 1960s land in the neighbourhood in question was expropriated by the State and cleared in the context of the authorities' housing construction policy. A number of blocks of flats were constructed there, but the plots currently inhabited by the applicants remained vacant, having been earmarked for a green area, which was never landscaped.
The applicants' families built their homes on State land without any authorisation. The area thus gradually developed into a small Roma settlement. It appears that between 200 and 300 persons live there.
Most of the buildings are single-storey shanty houses. There is no sewage or plumbing. The inhabitants use water from two public fountains. Their toilets are wooden cabins covering cesspits.
The applicants have also constructed a small building used as a prayer house. The religious organisation to which at least some of them belong is officially registered at the address of the prayer house.
Most applicants' registered addresses are at their homes in Batalova Vodenitsa. Many of them are registered at one and the same address although they live in separate huts or buildings which do not figure on any official area plan. Most of the applicants live in their houses with their families, including young children or grandchildren.
The applicants never sought to regularise the buildings they had constructed. This was in principle possible through applications for building permits and planning approval. According to the applicants, making such applications was difficult for them as they are poor and live their lives in the Roma community, isolated from the rest of society.
It is undisputed by the parties that the applicants' homes do not meet the basic requirements of the relevant construction and safety regulations and cannot be legalised without substantial reconstruction.
In 1987 the local building plan was amended and the construction of dwellings was envisaged on the plots in question. The plan was never implemented.
Following a legislative reform, in 1996 the land occupied by the applicants became the property of the Sofia municipality.
Until 2005, the State and municipal authorities never took steps to remove the applicants and their families.
Under the relevant law the applicants cannot obtain ownership of the land they occupy. Until 1996 the provisions on acquisitive prescription did not apply in respect of State and municipal land. Since 1996, these provisions, under which a ten-year period of possession may suffice for the acquisition of real property, apply to most categories of municipal land. However, in 2006, shortly before the expiry of ten years after the 1996 amendment, Parliament suspended the running of prescription periods in respect of State and municipal land. The suspension has been extended several times and is currently in force until 31 December 2011 (sections 79 and 86 of the Property Act and the transitional provisions thereto).
(b) Public declarations, protests and media coverage
From the beginning of the 1990s tension grew in several regions of Sofia between the inhabitants of Roma settlements and their non-Roma neighbours.
In March 2000 an unspecified number of individuals, apparently persons who had obtained decisions restoring their property rights over expropriated land in the Batalova Vodenitsa area, complained to the Sofia municipal council that “persons of Roma origin” were unlawfully occupying land in the area. Having examined the matter, on 11 December 2000 the municipal council decided to offer the restored owners other municipal land in exchange for their land. It also invited the mayor of Sofia to develop a plan for the resolution of the “problem as a whole”. No such plan appears to have been adopted.
The issue of Roma settlements, often referred to as “ghettos”, was widely debated in the media. Most commentators urged the emptying of all “Roma ghettos” in Sofia. This line was supported by a number of leading politicians. Occasionally, the views of Roma organisations were also published.
Between 2003 and 2006 several demonstrations were held by non-Roma residents of different areas in Sofia seeking the eviction of their Roma neighbours. Other demonstrations were held by non-Roma persons protesting at news of plans by the authorities to resettle in their neighbourhoods Roma families to be removed from other parts of the city.
Most complaints against the Roma inhabitants of Batalova Vodenitsa concerned sanitary risks and repulsive odours caused by the absence of sewage and the fact that the inhabitants kept animals (allegedly including sheep, pigs, hens and horses). Also, many non-Roma residents of the area believed that the Roma inhabitants were responsible for numerous offences, including physical assault, theft and damage to public and private property. The protesters also resented on aesthetic grounds the presence of unsightly shanty houses in the area.
The municipal authorities in Sofia perceived as a serious problem the fact that since 1990 many Roma had moved to Sofia and settled in illegal Roma settlements, thus increasing their overpopulation and generating more illegal construction and sanitary problems.
The policy of the Sofia municipality at all relevant times has been to seek the removal of recent Roma settlements or even older ones.
2. The decision to remove the applicants and the ensuing judicial proceedings
In 2003 the local building plan in Batalova Vodenitsa was modified by the municipal authorities, who planned to develop the area.
On 2 March 2005 the Sofia municipal council approved in principle the transfer of title to plots of land in Batalova Vodenitsa to Mr K., a private investor. The transfer was effected on 16 May 2006. The plots of land in question were adjacent to the land occupied by the applicants. By 2009 construction work had not yet started.
On 8 September 2005, Ms S., the mayor of the district comprising the Batalova Vodenitsa neighbourhood, served on all its residents – approximately 180 Roma, including the applicants – an order based on section 65 of the Municipal Property Act. The order stated that they should leave their homes within seven days as they were occupying municipal land unlawfully, and that failing that they would be removed by the police.
As the applicants did not leave, the mayor ordered their forcible removal. The mayor also stated her intention to seek the demolition of the applicants' houses in accordance with the Building Planning Act (Закон за устройство на територията).
On 13 September 2005, the applicants appealed and asked the Sofia City Court to stay the order for their removal pending the examination of the case. The court granted their request.
On 28 September 2005 a committee representing the Roma residents of the area signed an agreement with the municipal authorities in Sofia according to which the municipality would offer alternative housing to the persons registered as Batalova Vodenitsa residents, whereupon they would be removed. No action was taken by the municipality in execution of this agreement.
The agreement also provided that the committee of representatives would take measures to improve hygiene and order in the Roma settlement and organise the removal of unauthorised domestic animals kept by residents. According to the Government, the situation did not improve.
In the judicial proceedings against the mayor's order, on 12 January 2006 the Sofia City Court ruled that the removal order was lawful. The applicants appealed. On 12 June 2006, the Supreme Administrative Court upheld the City Court's judgment.
The courts found that the fact that the applicants had not shown a valid legal ground for occupying the land was sufficient to establish that the removal order was lawful. If the applicants considered that they had property rights, it was for them to seek notarial deeds or bring civil proceedings to establish those alleged rights. They had not done so. In these circumstances and having regard to section 92 of the Property Act, their houses were owned by the municipality.
The courts also stated that the applicants' allegations about violations of the Convention and discrimination were groundless.
The courts ignored as irrelevant under domestic law the applicants' argument that they should not be removed because they had lived in the area for decades with the authorities' acquiescence, and their arguments based on the principle of proportionality.
3. Attempt to remove the applicants in 2006
On 21 June 2006, the municipal authorities announced their intention to evict the Batalova Vodenitsa residents, including the applicants, by 28 June and to demolish their homes.
As a result of political pressure, mainly from members of the European Parliament, the authorities did not proceed with the eviction.
In their public declarations the municipal authorities apparently took the stand that the removal of the Batalova Vodenitsa residents was overdue but could not be done immediately because of pressure “from Europe”. Divergent opinions were expressed as to whether the municipality should try to find alternative housing for the residents of Batalova Vodenitsa. In public declarations the mayor of the district stated that this was not possible because the residents concerned had not been registered as persons in need of housing and the municipality could not give them priority over other persons who had been on the waiting list for many years.
Most of the applicants, who believe that they should not be removed from their homes, have not tried to make arrangements to find new homes for their families. Between 2004 and 2007 three of the applicants registered at addresses in other areas of Sofia. In 2005 one of the applicants declared an address in the town of Sandanski as her official address. According to these four applicants, although for short periods they lived outside Batalova Vodenitsa, in dwellings occupied by relatives, their only real home had remained Batalova Vodenitsa.
It appears that after June 2006 negotiations continued between the Roma inhabitants and the municipal authorities regarding possible relocation in temporary municipal housing of those persons in the applicants' position who had been registered as resident in Batalova Vodenitsa before 1996. Non-governmental organisations defending the rights of the Roma and Government representatives also took part.
During the same period, on an unspecified date shortly after 12 June 2006, Ms S., the mayor of the relevant district, participated in a televised debate concerning the fate of the Roma settlement in Batalova Vodenitsa. She stated, inter alia, that the Roma inhabitants there did not have the right to be registered as persons in need of housing because they were occupying municipal land unlawfully. For that reason, she would not offer them the tenancy of municipal dwellings, there being many other families on the waiting list. The district mayor further stated that the agreement of 28 September 2005 between the mayor of Sofia and a committee of representatives of the Roma families “had been concluded in a pre-electoral period” and that she did not consider herself bound by it. She also stated that the removal order had been upheld by the courts and must be enforced; the fact that the persons concerned had nowhere to go was irrelevant. The mayor further stated that she had received complaints by non-Roma inhabitants of the area and was under a duty to act.
Existing plans for the Batalova Vodenitsa residents' resettlement have met with strong opposition from inhabitants of neighbourhoods where such relocation was envisaged. It appears that no viable resettlement plan has ever been elaborated.
In interviews and statements, local officials supported the non-Roma population. In a radio interview in November 2006, the mayor of Ovcha Kupel district in Sofia stated that the nuisance that a Roma settlement would create if Roma families were to move into his district, would surpass by far the inconvenience that a refuse tip would create. He also stated that Roma families could not expect to be allowed to “live among the citizens” as they did not have the necessary culture.
4. Attempt to remove the applicants in 2008 and developments since then
On 27 June 2008 the municipal authorities served a notice on the inhabitants of the area, including the applicants, requiring them to leave their houses by 10 July 2008, failing which they would be evicted forcibly on 11 July 2008.
The notice was issued in execution of the removal order of September 2005, which was final and enforceable.
On 8 July 2008 the Court indicated to the Government of Bulgaria, under Rule 39 of the Rules of Court, that the applicants should not be evicted from their houses until 23 July 2008, pending receipt by the Court of detailed information about any arrangements made by the authorities to secure housing for the children, elderly, handicapped or otherwise vulnerable individuals to be evicted.
The Government submitted a copy of a statement by Ms S., the district mayor, who indicated that two local social homes could provide five rooms each and that several elderly persons could be housed in a third home. There was no information about any possibility to house families together.
Also, it appears that none of the applicants was willing to be separated from the community and housed under such conditions, not least because it was impossible, according to them, to earn a living outside the community.
On 22 July 2008, Ms S., the district mayor, suspended the enforcement of the removal order “pending the resolution of the housing problems of the Batalova Vodenitsa residents”.
In the light of this information, the President of the Court's Fifth Section decided on 23 July 2008 to lift the interim measure of 8 July 2008, specifying that the decision was taken on the assumption that the Court and the applicants would be given sufficient notice of any change in the authorities' position for consideration to be given to a further measure under Rule 39 of the Rules of Court.
On 23 July 2008 the National Council for Cooperation on Ethnic and Demographic Issues, which includes representatives of non-governmental organisations and is presided over by the Director of the Ethnic and Demographic Matters Directorate at the Council of Ministers, discussed the issue. Representatives of the Sofia municipality were advised to refrain from measures seeking to resolve the problem in Batalova Vodenitsa at the expense of creating tension in other areas. The majority view was that the Roma families living in Batalova Vodenitsa should not be evicted and their homes should not be demolished before the finding of a lasting solution.
According to a letter from the Director of Ethnic and Demographic Matters, sent in January 2009 in connection with the present application, the Sofia municipality is working on a programme for the revitalisation of Roma neighbourhoods. It is envisaged to construct temporary housing on several municipal plots of land. Partial initial financing of the construction work could be provided by the Government but other sources must be found as well. It is envisaged to encourage the Roma applying for housing to take jobs in the construction work under the relevant social employment schemes. The project's elaboration, including architectural plans, is under way. The project concerns Roma families who moved to Batalova Vodenitsa before 1996. Those who settled there more recently must return to their previous homes.
According to the applicants, there has been no real progress in the resettlement plans, which they see as nothing more than empty promises.
On 12 January 2010, in reply to a letter from residents protesting against the authorities' failure to evict their Roma neighbours from Batalova Vodenitsa, Ms S., the district mayor, stated that the enforcement of the 2005 eviction order had been postponed under pressure from members of the European Parliament and that the applicants had started proceedings in the European Court of Human Rights. The letter did not mention plans to secure alternative housing for the persons to be evicted.
5. Other relevant facts
In March 2006 a ten-year National Programme for the Improvement of the Housing Conditions of Roma in Bulgaria was adopted.
In September 2007, the Sofia municipal council adopted a plan for the implementation of the ten-year national programme in Sofia for the period 2007-2013. The document includes an analysis of the existing situation in respect of housing.
According to this analysis, overpopulated Roma settlements had formed over the years in Sofia and nothing had been done by the authorities in the past to address the ensuing problems. Having always been a marginalised group with minimal resources, the Roma cannot in practice acquire real property. Traditionally they occupy vacant land and construct makeshift huts. Although most of them, being persons in need of housing, meet the relevant criteria for tenancy of municipal housing, this option does not work in practice owing to several factors, including the limited number of available municipal dwellings and unwillingness on the part of many Roma families to resettle in municipal flats. Their unwillingness could be explained partly by the lack of the necessary resources to cover the related expenses, such as utility bills, and partly by the animosities which often erupt between non-Roma residents of blocks of flats and Roma families moving in.
The ten-year National Programme and the 2007-2013 Sofia plan provide for the following actions, among others: elaborating municipal housing programmes, legalising buildings if they meet the relevant construction standards, constructing sewage and water-supply facilities in Roma neighbourhoods and providing information and assistance to those who apply for municipal housing.
B. Relevant domestic law
Section 65 of the Municipal Property Act empowers the mayor to order the repossession of real property belonging to the municipality and occupied by others if they have no legal right to occupy it. The mayor's order is amenable to judicial appeal. Its enforcement is effected by the police.
The new paragraph 5 of section 65, added in May 2008, provides that persons occupying municipal real property without a legal basis cannot avail themselves of sections 72-74 of the Property Act, which bestow certain rights on holders of property belonging to another (under certain conditions, the right to reimbursement for improvements, and to withhold the property pending such reimbursement).
According to section 92 of the Property Act, read in conjunction with its other provisions, buildings belong to the owner of the land except where the right to construct a building has been lawfully conveyed by the owner to another person. In the context of the present case it follows from this provision that the applicants' houses built by them are the property of the municipality.
The categorisation of persons in need of housing and the possibility of applying for municipal housing are governed by municipal regulations issued by each municipality in accordance with section 45a of the Municipal Property Act. These regulations, which differ from city to city, typically require candidates to have had their registered address in the town for more than five years, to have no real property of their own, and to have resources that do not exceed a certain maximum. Typically the application must be made in writing on a form and be accompanied by a number of documents. The decision whether to recognise the need is taken by a municipal commission and is amenable to judicial appeal. Among the candidates recognised as being in need of housing, homeless persons and those living in dangerous and unhealthy conditions have priority.
Under sections 4 and 5 of the Protection against Discrimination Act, racially offensive statements may be considered discriminatory. The victim may file a complaint with the Commission for Protection against Discrimination or bring an action in court. Racially offensive statements may be criminally punishable under Articles 146 and 148 of the Criminal Code. The proceedings must be initiated by the victim. Incitement to racial hatred is an offence punishable under Article 162 of the Criminal Code.
C. Relevant international material
1. The Council of Europe
On 18 October 2006 the Council of Europe's European Committee of Social Rights delivered a decision on the merits of a complaint against Bulgaria brought by the European Roma Rights centre, a non-governmental organisation. The Committee found, inter alia, that “the lack of legal security of tenure and the non-respect of the conditions accompanying eviction of Roma families from dwellings unlawfully occupied by them constitute[d] a violation of Article 16 of the Revised European Social Charter, taken together with Article E”. Article 16 concerns the right of families to “appropriate social, legal and economic protection” and Article E prohibits discrimination in the enjoyment of the rights set forth in the Charter.
To reach its conclusion, the Committee found that the Bulgarian legislation allowing the legalisation of illegal constructions set conditions “too stringent to be useful in redressing the particularly urgent situation of the housing of Roma families”, a situation recognised by the Bulgarian Government. The Committee also considered that the authorities had tolerated the unlawful Roma settlements for long periods and were accordingly obliged to carefully balance town planning measures against “the right to housing and its corollary of not making individual[s] homeless”. The Committee further found that by failing to take into consideration the specificity of the living conditions of Roma and strictly applying the rules on legalisation of buildings to them, Bulgaria had discriminated against Roma families, whose situation differed not least as a consequence of State non-intervention over a certain period. Similarly, there was discrimination on account of the authorities' failure to take into account that Roma families ran a higher risk of eviction, and the authorities' failure systematically to find alternative accommodation for the evicted families.
On 5 September 2007 the Committee of Ministers of the Council of Europe adopted a resolution in the case in which it noted, inter alia, the Bulgarian delegation's statement before it that Bulgaria intended to amend the Territorial Planning Act to allow for easier legalising of existing buildings and construction of social housing.
In its 2005 Recommendation on improving the housing condition of Roma the Committee of Ministers of the Council of Europe called upon Member States, inter alia, to use proportionate response to illegal Roma settlements and seek, where possible, solutions acceptable for all parties. Also, eviction measures should include consultation with the community or individual concerned, reasonable notice, provision of information, a guarantee that the eviction will be carried out in a reasonable manner and alternative housing measures. As to daily life in existing settlements, the authorities should provide the same level of services as to other groups of the population and should, beyond that, promote better management including adequate management of neighbourhood conflicts. Housing policies should be tailored to the specific situations of the Roma communities.
In its 2008 Recommendation on policies for Roma and/or Travellers in Europe, the Committee of Ministers of the Council of Europe called upon Member States, inter alia, to ensure that decisions adopted by local authorities in the relevant area would not have a discriminatory effect on Roma.
2. The European Union
In October 2009 the EU Agency for Fundamental Rights issued a comparative report on the housing conditions of Roma and travellers in the EU.
According to the report, significant numbers of Roma in Europe live in unauthorised settlements. For example, in 2002 an estimated 70% of houses in urban Romani developments in Bulgaria were illegally built, in 1999 in Greece approximately 63,000 Roma lived in unregulated encampments and in 2008 in France most Roma groups lived in squalid shantytowns.
The report also mentioned cases of forced evictions of such encampments, in particular in Italy and Greece.
3. The United Nations Organisation
The United Nations Committee on Economic, Social and Cultural Rights, in its General Comment no. 7 concerning forced evictions and the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights, stated, inter alia, that evictions should not render persons homeless or more vulnerable to human rights violations. Also, evictions must meet a number of conditions such as prior consultation with the persons to be evicted, the giving of adequate and reasonable notice as to when the eviction will take place and the availability of judicial remedies. If those evicted cannot provide for themselves, States should take all reasonable measures, utilising all available resources, to ensure the provision of adequate alternative housing.
In particular, the decisions to expel them collectively from their only homes at extremely short notice exposed the applicants to becoming homeless, together with their children and the elderly and ailing members of their families. Such expulsion, if carried out, would violate Article 3.
Furthermore, even if the removal has been temporarily stayed, the applicants have already been subjected to degrading treatment, having regard to the unjust and arbitrary manner in which the authorities approached the issue – seeking summarily to remove them after decades of tolerating their presence, acting without considering all the relevant problems and in violation of signed agreements, moving on the basis of racially biased complaints by non-Roma inhabitants and demonstrating clear indifference to the applicants' becoming homeless.
Relying on Article 8, the applicants submitted that their expulsion from their homes, if the removal order were to be enforced, would constitute an interference which could not be seen as lawful in the sense of the Convention and was in any event disproportionate. That was so because the relevant domestic law authorised unconditional removal without setting out any criteria and any safeguards against arbitrariness. It treated as irrelevant the individual circumstances of each person's case, the fact that the authorities had tolerated the applicants' presence for many years and the absence of alternative shelter for persons as poor as the applicants and for their children. Under such a legal regime, the door was wide open for selective and arbitrary action to deprive members of outcast minorities such as the applicants summarily of their homes. No requirement of proportionality or duty to take into consideration the legitimate interests of all persons concerned and consider all options could be found in the relevant law. It thus failed to meet the relevant standards.
Referring to Article 13, the applicants alleged that the national courts and other authorities treated as being irrelevant the fact that the applicants had lived in Batalova Vodenitsa for many years and had no other place to live.
Under Article 14 the applicants alleged that their removal was motivated by racially biased attitudes. Alternatively, they stated that the authorities' failure to take into consideration that the applicants were an extremely poor and outcast community, and their approach, treating the Batalova Vodenitsa issue as an “ordinary” case of removal of unlawful buildings, despite the applicants' desperate situation, was discriminatory as it consisted in applying equal treatment to essentially different situations.
A. Alleged violations of Articles 3 and 8 of the Convention, taken alone and in conjunction with Articles 13 and 14
The applicants alleged that their removal from their homes and the demolition of their houses, if effected, would constitute inhuman and degrading treatment contrary to Article 3 of the Convention and would violate their right to respect for their homes under Article 8. They also complained, relying on Article 13, that the authorities failed to consider proportionality issues and, relying on Article 14, that the authorities' actions were discriminatory.
The provisions relied upon by the applicants read, in so far as relevant:
“No one shall be subjected to ... inhuman or degrading treatment ...”
“1. Everyone has the right to respect for his private and family life, 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.”
“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 enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
1. The Government's position
The Government submitted that while for many years nothing was done to remove the Roma families who started settling in Batalova Vodenitsa towards the end of the 1960s, it had always been clear that they were occupying State and municipal land unlawfully. They did not own the land and could not claim ownership on the basis of the fact that they had built makeshift houses without authorisation and in violation of building rules. The applicants could not claim, therefore, that they had an expectation to be allowed to remain in Batalova Vodenitsa. For long periods the authorities had not implemented the urbanisation plans for the area, other matters having had priority. This delay did not mean that the applicants' illegal presence was tolerated. The matter had become urgent when citizens living in the neighbourhood had started complaining about the Roma families' behaviour. Having considered the matter, the Sofia municipality had decided to remove the Roma settlement and go ahead with the plans to construct blocks of flats in the area.
In support of the above, the Government submitted copies of complaints by non-Roma residents of Batalova Vodenitsa. Most of them were addressed personally to the Government's agent in the proceedings before the Court and were apparently drafted for the purposes of the present proceedings on unspecified dates at the end of 2008 or the beginning of 2009. They were entitled “complaints by the Bulgarians living in Batalova Vodenitsa” and started with the following words: “We complain against the Roma ...”. The grievances made were that the Roma disposed of their waste in various places, thus littering the area, kept animals, dried their laundry by hanging it out for everyone to see, engaged in stealing and disorderly and aggressive behaviour, drank and used drugs. The signatories appealed to have the Roma removed and “returned to their native places”.
Noting that for short periods four of the applicants had registered at addresses outside Batalova Vodenitsa, the Government submitted that such changes could also be observed in respect of other Roma inhabitants. Therefore, in the Government's view, the supposition could be made that some of the persons concerned had “acquired flats”, sold them and then again registered in Batalova Vodenitsa with the aim of obtaining municipal flats.
The Government further stated that problems in the integration of the Roma population were not uncommon and Bulgaria was not alone in this respect. The authorities had demonstrated their determination to secure equal rights for all citizens, irrespective of their origin. The National Council for Cooperation on Ethnic and Demographic Issues, which included representatives of non-governmental organisations and was presided over by the Director of Ethnic and Demographic Matters at the Council of Ministers, had dealt with the problems in Batalova Vodenitsa. Detailed plans to help Roma families find housing and jobs existed and were in the process of implementation in many towns in the country, including districts of Sofia. A relevant example was the creation in June 2008 of a special working group at the Sofia municipality to deal with the demolition of buildings in the area known as Selishte na Stroitelia and Vietnamski Obshtezhitia. The buildings had been damaged by their lawful and unlawful occupants, predominantly of Roma origin, and the working group was seeking possibilities of finding housing for them in separate districts of Sofia, “in order to avoid large concentrations of Roma people”.
The Government thus stated that the relevant authorities were working to find a lasting solution to the housing problem of the Roma families concerned before reclaiming the municipal land they occupied in Batalova Vodenitsa.
The Government also submitted that the decision to remove the applicants' houses was motivated solely by the need to enforce the law on illegal constructions and put an end to a situation which posed a sanitary risk and disfigured the city landscape. The authorities in any European capital would do as much. The applicants were not entitled to privileged treatment because of their ethnic origin or traditional lifestyle. They were not being treated in a discriminatory manner, measures against illegal constructions being undertaken regardless of the ethnicity of the persons concerned. Moreover, the one-sided presentation of the problems of the Roma population in Bulgaria by their self-appointed representatives seeking popularity stirred tension and provoked reactions from other ethnic groups. The Government was against such attempts to incite ethnic hatred.
The Government also appealed to the Court to take into account, in deciding the case, the reaction a finding of a violation of the Convention would prompt in Bulgarian society, precisely because Bulgarian society expected to see the law applied equally to persons from all ethnic groups.
2. The applicants' reply
Noting the Government's concession that nothing had been done for decades to remove them, the applicants submitted that the reasons for this inactivity were irrelevant – what mattered was that for people as desperately poor and outcast as them the expectation that the inactivity would last was sufficient to build lives on.
In the applicants' view, the Government's attempt to use the neighbours' protests to justify the eviction order was based on the fallacious assumption that the disorder and lack of sanitation complained of could not be remedied as long as the applicants' community was present. This was to assume that a Roma community such as the applicants' inherently produced disorder and pollution and could not be controlled by ordinary policing. The racist nature of this assumption which underlay the Government's argument was evident. While the issues raised in complaints by ethnic Bulgarian neighbours were serious and a cause for concern, it was unacceptable to seek to solve them through collective expulsion, without regard to individual conduct. That would be nothing less than collective punishment on the basis of ethnic origin.
The applicants protested against the Government's reliance on private complaints in terms that disclosed clear racist prejudice, presenting the problems in the neighbourhood as rooted in the racial opposition between Roma and Bulgarians and seeking the unconditional “return of the Roma to their native places”. Moreover, in the applicants' view, the Government's submissions were replete with statements disclosing racial prejudice, such as their admission that the authorities sought to avoid “concentration of large groups of Roma population” as if Roma people were a pest of sorts which needed to be kept to a minimum. The Government assumed gratuitously that Roma people had fraudulently taken advantage of municipal housing, or would do so. They relied on racist initiatives such as a petition condemning “discrimination against the Bulgarians”. The Government's appeal to the Court to bow to majority public opinion, which was in favour of evicting the applicants, not only conflicted with fundamental human rights principles but also showed that the Bulgarian authorities were sensitive to, if not supportive of, public prejudice against the Roma.
In the applicants' view, the Government's argument that demolition of illegal constructions happened everywhere in Bulgaria, regardless of ethnic origin, was not convincing. The examples given by the Government concerned business properties or holiday retreats owned by persons far wealthier than the applicants, not poor persons' only homes. The relevant question was whether the authorities would order the collective eviction of a non-Roma community of two hundred persons, including children, without compensation and without alternative shelter, leaving them on the street. In the applicants' view, it was inconceivable that this should happen. The manner in which the applicants were being treated was clearly linked to their ethnic origin.
The applicants also submitted that they continued to live under the threat of unconditional expulsion from their homes. On two occasions, in 2006 and in 2008, the authorities had sought to evict them, despite the September 2005 agreement under which they had undertaken to provide shelter to the families concerned. That agreement had always remained a dead letter. The history of the problem and the authorities' actions since 2005 had shown beyond doubt that the majority public opinion and the authorities were in favour of eviction, and that talk about a consensus towards helping the Roma families concerned was without substance.
3. The Court's decision on admissibility
The Court considers, in the light of the parties' submissions, that the above complaints raise serious issues of fact and law, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
B. Alleged violation of Article 1 of Protocol No. 1, taken alone and in conjunction with Articles 13 and 14 of the Convention
The applicants stated that their eviction, were it to happen, would constitute an unlawful, unjustified and discriminatory deprivation of property.
Article 1 of Protocol No. 1 to the Convention reads:
“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.”
The Government stated that the applicants did not own the land and, since they had built their houses without authorisation and in breach of elementary construction rules, could not claim ownership rights.
The applicants replied that the houses they had built and their belongings were “possessions” within the meaning of Article 1 of Protocol No. 1 despite the fact that they did not own the land. As regards the alleged unlawfulness and discriminatory nature of the authorities' actions endangering their possessions, the applicants referred to their submissions under Articles 3, 8, 13 and 14.
The Court considers, in the light of the parties' submissions, that the above complaints raise serious issues of fact and law, the determination of which requires an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
C. Alleged violations of Article 6 and of Article 9, taken alone and in conjunction with Articles 13 and 14 of the Convention
The applicants complained that in the 2005-2006 judicial proceedings the courts refused to hear witnesses concerning their alleged property rights.
The applicants also complained under Articles 9 and 13 that their eviction would result in them being unable to attend the small prayer house they had built in Batalova Vodenitsa and would disperse their religious community.
Having examined all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the above complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
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
Declares admissible, without prejudging the merits of the case, the applicants' complaints under Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1, taken alone and in conjunction with Articles 13 and 14.
Declares the remainder of the application inadmissible.
Claudia Westerdiek Peer Lorenzen
Application no. 25446/06
YORDANOVA and OTHERS v. Bulgaria
LIST OF APPLICANTS
YORDANOVA Lyubka Yordanova
TODROVA Rosa Alexandrova
GEORGIEVA Yordanka Marinova
ILIEV Georgi Dimchev
GEORGIEVA Nadka Dimchova
ATANASOVA Maya Georgieva
ILIEV Asen Dimchov
ILIEV Krasimir Dimchov
KRASTEVA Jana Dimcheva
ANGELOVA Katya Hristova
ARGIROVA Tsetsa Ankova
HRISTOV Yordan Stoychev
ILIEVA Angelina Kotseva
KODJAGYAUROVA Yovka Vasileva
IVANOVA Boyka Tsvetanova
GEORGIEV Georgi Stanchev
GEORGIEVA Nikolina Mitkova
METODIEV Yordan Atanasov
DIMITROV Dimo Iliev
GEORGIEV Kalitko Georgiev
ILIEVA Stanka Yordanova
HRISTOVA Elena Stoycheva
Argirova Vasilka Georgieva