MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-14

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-14 Yordanova and Others group v. Bulgaria (Application No. 25446/06) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1176, DH-DD(2024)767, CM/ResDH(2020)357, CM/Del/Dec(2022)1443/H46-8

 

Application	Case	Judgment of	Final on	Indicator for the classification
25446/06	YORDANOVA AND OTHERS	24/04/2012	24/09/2012	Complex problem
46577/15	IVANOVA AND CHERKEZOV	21/04/2016	21/07/2016
30782/16	SIMONOVA	11/04/2023	11/07/2023

Case description

This group of cases concerns interferences with the applicants’ right to respect for their home or their private and family life as a result of eviction or demolition orders issued and reviewed under a domestic legal framework which did not require any proportionality assessment (potential violations of Article 8).

The Yordanova and Others case concerns the planned eviction of the applicants, of Roma^[1] origin, from an unlawful settlement in Sofia (Batalova Vodenitsa) based on an eviction confirmed by the Supreme Administrative Court (“SAC”) in 2006. The Ivanova and Cherkezov case concerns the planned demolition of the applicants’ house, built without a building permit, based on a demolition order confirmed by the SAC in 2015. The Simonova case concerns the demolition of the applicant’s unlawfully constructed house in November 2017, without comprehensive proportionality review and without offering the applicant a comprehensive solution to avoid leaving the family homeless.

In the case of Yordanova and Others, the European Court indicated, under Article 46 of the Convention, that the general measures should include amendments to the relevant domestic law and practice to ensure that orders to recover public land or buildings “identify clearly the aims pursued, the individuals affected and the measures to secure proportionality” even in cases of unlawful occupation, thus enabling a proportionality review. It also indicated certain individual measures (the repeal of the order or its suspension pending measures to ensure proportionality).

Status of execution

Individual measures

At its previous meetings in September 2022 and December 2020, the Committee noted that the individual measures concerning any possible new removal order[2] in respect of the applicants in the Yordanova and Others and the Ivanova and Cherkezov cases are closely linked to the general measures.

In its Simonova judgment, the European Court indicated that in 2018 the applicant rebuilt her house and resumed living in it.

General measures:  

1)     Current framework and legislative proposals of 2019 on proportionality review^[3]

The current framework enshrines generally the proportionality principle in administrative proceedings. Persons occupying unlawfully municipal, or State property must be evicted (Section 65 of the Municipal Property Act; Section 80 of the 1996 State Property Act). Any building constructed without a permit is illegal and subject to demolition (Sections 225 and 225a of the Territorial Planning Act 2001 (“TPA 2001”)); the courts started to regularly review  the proportionality of such orders as of October 2018. Other provisions provide for demolition of dangerous buildings or prohibition on use of constructions before an authorisation is issued (Sections 195 and 178 TPA).

A draft bill was prepared in 2019, providing for specific obligation, tailored to the relevant procedures, to carry out proportionality assessment of eviction orders and abrogation of the rule on immediate enforcement of such orders (concerning municipality- and State-owned dwellings) and proportionality assessment of demolition orders concerning illegal dwelling, which is the only home of persons who have property rights or have carried out the construction work.

During its September 2022 meeting, the Committee strongly urged the authorities to rapidly finalise the legislative process, and to ensure that all persons affected by a demolition order (or by administrative acts that have similar effects to demolition or eviction orders) can benefit from a proportionality assessment, even if they or their household members have no property rights and have not carried out construction work.

In July 2024 (DH-DD(2024)767) the authorities indicated that due to the political instability in the country, the 2019 draft bill has not yet undergone a public consultation procedure, but the authorities will attempt to start such procedure when a regular Government is formed.

In a communication of 11 October 2024 (DH-DD(2024)1224), the Bulgarian Helsinki Committee (BHC) indicated that the 2019 draft bill concerns only demolition of illegal buildings, but not the eviction from municipal property or the demolition of dangerous constructions. In their reply of 22 October 2024
(DH-DD(2024)1224) the authorities indicated that the draft bill foresees also amendments concerning eviction from municipal property. An interministerial expert group has moreover agreed to introduce proportionality assessment covering all provisions of the Territorial Planning Act, which have a “similar demolition effect”.

2)     Analysis prepared in the first half of 2024

Following the last examination of these cases, the Ministry of Justice implemented a project under the Norwegian Financial Mechanism, which resulted in the preparation by independent external legal experts of a detailed analysis, published in the first half of 2024 (“the NFM-funded analysis”) and an action plan.[4] The authorities presented to the Committee the substantive findings and the technical recommendations of this analysis, such as drafting of a precise definition for “sole dwelling” and exploring the possibility of a procedure for legalisation of viable buildings. The main other recommendations of this analysis are presented under the relevant headings below. 

3)     Administrative practice concerning proportionality review

The NFM-funded analysis revealed that the administration did not consistently carry out a proportionality analysis when issuing a demolition order. It identified a need for adopting a co-ordination mechanism to give all institutions tools for action and cooperation when making a proportionality assessment or a preliminary assessment of rehousing options. It also proposed a first draft of such a mechanism and an action plan.

4)     Availability of municipal housing or other type of shelter

There are no statistics on municipal housing at national level, but data for 2016 obtained by the World Bank from the National Association of Municipalities (NAM) indicated that at that time 33% of the municipalities had no such housing, 41% of them could house up to 10 people and 15% of them could house more than 10 people. According to online research^[5] cited in the NFM-funded analysis, at the end of 2022 there were 32 225 municipal dwellings accommodating 82 240 persons. There were only 395 vacant dwellings (many in poor condition) for a total of 8 988 persons on a waiting list for municipal housing in the 30 most concerned municipalities. The availability of vacant municipal housing in relation to the persons awaiting such housing was very low in some cities, particularly Sofia. Since the contracts of the already housed persons often allowed indefinite use of municipal housing, it was unlikely that persons on a waiting list would receive housing in the foreseeable future. There were also no sufficient additional social services to shelter homeless persons (shelters or crisis centres).

The authorities provided information on plans to provide modern and affordable municipal housing for vulnerable groups financed by the Regional Development Programme 2021-2027; and social housing rehabilitated under the Operative Programme "Regions in Growth" 2014-2020.^[6] The draft National Housing Strategy for 2017-2030 also sets out measures for provision of housing to vulnerable persons.^[7]

The rules for distribution of municipal housing are set out autonomously by municipalities in regulations. The Ministry of Regional Development has issued non-binding instructions for the governance of the municipal housing. There is no legal requirement for municipalities to maintain a minimum number of municipal dwellings to meet emergency housing needs. The NFM-funded analysis identified the need to develop measures for more efficient management of municipal property; update the municipal regulations on establishing housing needs and accommodation; ease the procedures and ensure their publicity, while making the criteria for housing stricter to cover those most in need, limit the duration of tenancy, etc.^[8]

5)     Domestic case-law concerning proportionality review

-  Judicial review of the demolition of unlawful dwellings: In July 2024 the authorities indicated that most often the administrative courts carried out an analysis in compliance with Article 8 of the Convention concerning demolition orders and that in several rulings between 2016 and 2022 the SAC afforded the right to appeal to persons who did not prove property rights to a given dwelling. In their communication of October 2024, the BHC contested the authorities’ assessment, stating that many judgments only recognised protection under Article 8 to owners who strictly complied with the regulations on construction of buildings.

The NFM-funded analysis indicates that most often the courts carry out the proportionality analysis and reach a conclusion that the demolition is proportionate, as the illegal buildings pose a threat to the lives and health of their residents.^[9] In some judgments the courts granted standing to appeal to persons because their rights were affected by a demolition order, but the prevailing judicial practice allows an appeal only by addressees of the demolition order (the builders of a construction) and excludes persons who reside in the building but are not addressees of the demolition order.^[10]

The analysis also mentions isolated domestic judgments where it was considered that a local authority could not assess the proportionality of the demolition of unlawful building, because it lacked any discretion under the law.^[11]

- Judicial review ofeviction from unlawfully occupied State or municipal property: The authorities indicated that in the period 2017-2023 several court decisions analysed the situation of the user of the unlawfully occupied dwelling and applied Article 8 of the Convention. The NFM-funded analysis clarifies that more often courts did not consider aspects related to the personal situation of the users of the respective property,^[12] while the SAC interpreted Article 8 as offering protection only to tenants of municipal property who have strictly abided by the law and the rent contract.^[13] In their communication of October 2024, the BHC made similar observations and provided examples of case-law.

- Proportionality review in enforcement proceedings under the Administrative Procedure Code (APC): Courts may make a proportionality assessment also in the context of the enforcement of eviction or demolition orders. Entering one’s home requires judicial authorisation (Article 272, § 2 APC). Only persons identified as addressees by the administration can challenge the lawfulness of the enforcement order or lodge an appeal based on new facts (Article 292 APC). Appeals to stay the execution for up to two months, to prevent substantial and hardly reparable damage, can be lodged by both addressees of a removal order and other affected persons (Article 278 APC). A court may annul enforcement action(s), but such decisions do not invalidate the eviction or demolition order itself.^[14] When the execution authority establishes that the construction is a sole dwelling for a person it can terminate the execution, applying the Convention directly.

- Proposals formulated in the NFM-funded analysis: The analysis recommended to consider making a request to the SAC for an interpretative decision to unify the courts’ practice on proportionality review; and to envisage granting standing to lodge judicial appeal to a wider circle of persons.

6)     Legislative amendments on address registration adopted in September 2024

In September 2024, parliament adopted amendments to the Civil Registration Act (CRA) to allow homeless persons or those living in unlawful dwellings to obtain an address registration and thus obtain identity documents, apply for municipal housing and use social services.

The amendments allow for registration (ex officio or at the request of the person) at a municipality-owned address, if a person is unable to register an address otherwise. From 8 October 2024 registration at a municipal address shall be allowed in the municipality where the persons had their last registered permanent address. From 10 April 2025 these rules shall apply also if an address is deleted from the National Classification of the Current and Permanent Addresses. The law contains time-limits for designation of ex officio address (within one month) and for generating a list of citizens whose permanent address is erased and for their ex officio registrations (within two months) following the entry into force of the amendments.  

7)     Co-operation with the Congress of Local and Regional Authorities  

On 25 June 2024 a delegation of the Congress, accompanied by a representative of the Department for the Execution of Judgments, held a meeting with the Minister of Justice and representatives of local authorities to discuss potential measures and a roadmap for local authorities to help execute these judgments. Online meetings took place on 30 September 2024 with the Deputy Minister of Regional Development and a senior officer of the Sofia Municipality. The authorities indicated that the Ministry of Regional Development is awaiting the action plan, which is being prepared by the experts of the Congress and is expected to be executed together with the National Association of Municipalities. They indicated that the Deputy Minister of Regional Development assured that the amendments elaborated in 2019 will be submitted for discussion and adoption in Parliament after the upcoming pre-term elections. The Action Plan is intended to streamline existing good practice at central and local level and to serve as an interim tool for an effective proportionality assessment procedure, pending the adoption of legislative changes.

It proposes actions to be undertaken by municipalities and their national association, in particular to raise awareness and encourage mobilisation of municipalities on the rule of law at local level, with particular attention to vulnerable groups, as well as specific actions to be undertaken by local governments to provide new housing opportunities and promote social inclusion.

8)     Fifth Opinion on Bulgaria by the Advisory Committee on the Framework Convention for the Protection of National Minorities (29 May 2024)^[15] 

The Advisory Committee noted that forced removals of Roma remained a serious issue in Bulgaria. It indicated having witnessed an eviction of Roma families in the neighbourhood of Orlandovtsi, Sofia, without a proper legal notice^[16], and the placement of some families in temporary accommodation where the conditions were inhumane. The Advisory Committee underlined the urgent need for addressing the wide-spread problem of impossibility to obtain identity documents because of the lack of registered address. It called on the authorities to ensure that removals of Roma from informal housing are carried out only as a last resort; to adopt legislation containing all the relevant legal safeguards and to ensure decent alternative and permanent accommodation for affected persons.

Analysis of the Secretariat

Individual measures

The individual measures in both Yordanova and Others and Ivanova and Cherkezov still appear closely linked to the general measures, as previously indicated by the Committee. As regards the Simonova case, it is necessary to provide information on the current situation of the applicant.

General measures

1)     Draft legislative amendments to ensure proportionality review

Regrettably, the legislative amendments announced in 2019 have not yet been brought forward, inter alia because of the political instability in Bulgaria. The authorities have nevertheless taken other steps in the right direction, particularly the preparation of the Norwegian Financial Mechanism (NFM) funded analysis, which could facilitate future legislative work. It is therefore proposed to the Committee to urge again the authorities to rapidly adopt the necessary legislative amendments, while involving relevant stakeholders and considering the indications set out in the decisions of September 2022. A legislative reform appears achievable even without a regular government, since after the adoption of constitutional amendments in December 2023, the Bulgarian parliament is no longer dissolved during parliamentary election campaign.

2) Proportionality review by the courts

While it appears that there is a growing tendency for courts to refer to Article 8 of the Convention, the case-law remains not entirely settled in some respects, as the personal situation of the persons affected by a removal order is not always sufficiently discussed. Moreover, standing to appeal is granted most often only to persons who have property rights or have carried out constructions works, but not to persons who merely use an illegal dwelling as their only home. The progress achieved with judicial review is therefore still insufficient to create a clear legal framework, while the recent Simonova judgment confirms the importance of a formal procedure for comprehensive proportionality assessment. It appears therefore necessary to further improve the judicial practice; in this context, the proposal in the NFM-funded analysis for an interpretative decision of the SAC to unify and guide the courts practice could be explored.

3)     Accessibility and availability of municipal housing or other type of shelter

It should be recalled that the accessibility and availability of municipal housing are of crucial importance for the authorities’ capacity to adopt measures to ensure the proportionality of removal orders.

Therefore, the recent legislative amendments on address registration are a step in the right direction, as they should allow thousands of persons, who were for many years unable to register at any address, to obtain address registration at a municipal address, identity documents and apply for municipality housing.

However, the rule providing for registration at a municipal address in the municipality of the person's last registered permanent address may raise questions in certain situations. If applied in an inflexible manner, this rule could mean that persons affected by a removal order can seek social housing only in a municipality where they had their permanent address (including as a minor), even where they never had or no longer have any connection with it. The authorities can be invited to clarify this issue and also to confirm what municipal address will be attributed to persons who had never had a registered address.

As regards municipal housing and additional social services for the shelter of homeless persons, it is concerning that they are either unavailable or very limited in many municipalities, despite the efforts reported by the authorities in this regard. The authorities could be invited to reflect on ways to increase the available options for ensuring comprehensive rehousing solutions, where this is needed to ensure the proportionality of an eviction or demolition order, bearing in mind also that one of the main reasons for the finding of the violation in Simonova was the failure to provide such solution.

4)     Other regulatory and administrative measures to ensure proportionality assessment

The NFM-funded analysis contains useful proposals for a co-ordination mechanism between institutions to ensure proportionality assessment and, where appropriate, alternative accommodation. It needs to be clarified whether these proposals are expected to be formally adopted.

It is moreover proposed to the Committee to welcome and encourage the ongoing dialogue between the Bulgarian Government, the National Association of Municipalities and the delegation of the Congress of the Local and Regional Authorities, aimed at developing and adopting an action plan for municipalities to prepare regulations on proportionality assessment and practical measures to ensure proportionality and, if needed alternative accommodation, when persons need to be removed from an unlawful or municipality-owned dwelling. Such an initiative could allow the municipal level to fill, to some extent, the gaps in the existing safeguards.

5)     Conclusions and next examination

Based on the progress achieved so far, the authorities ask the Committee to continue its examination of this group of cases under the standard procedure.

A transfer of this group under the standard procedures appears premature despite the recent progress achieved with the adoption of new rules on address registration. The reason is that more than twelve years after the Yordanova judgment became final, the main legislative measures required for ensuring comprehensive proportionality review have not yet been adopted and the judicial practice is not sufficiently settled in some respects. Moreover, many uncertainties remain regarding the capacity for ensuring the proportionality of a removal order, in the cases where rehousing solutions are necessary.

Financing assured: YES