BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
DECISION
Application no.
20701/09
Magdalena Angelova HADZHIYSKA
against Bulgaria
The
European Court of Human Rights (Fourth Section), sitting on 15 May
2012 as a Chamber composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Päivi
Hirvelä,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. De Gaetano,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
regard to the above application lodged with the European Commission
of Human Rights on 19 February 2009,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Ms Magdalena Angelova Hadzhiyska, is a Bulgarian national
who was born in 1933 and lives in Lesichovo. She was represented
before the Court by Mr M. Ekimdzhiev, Ms K. Boncheva and
Ms G. Chernicherska, lawyers practising in Plovdiv.
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- The
applicant’s village is situated on the banks of Topolnitsa
river, at about fifteen kilometres downstream from Topolnitsa Dam.
- On
5 and 6 August 2006, following heavy rain, the river broke its banks
and flooded the applicant’s house. The water ruined a stone
fence, a shed and a summer kitchen, and carried away furniture, wood,
home-canned food, and other chattels. The house’s cellar and
basement were damaged by dampness.
- On
18 April 2007 the applicant brought a claim for damages under section
1 (1) of the State Responsibility for Damage Act 1988 against the
Ministry of Environment and Waters and the Governor of Pazardzhik
Region. She alleged that the flood water had carried away trees and
branches which had cluttered the riverbed. As the defendants had
failed to clean it, this had impeded the flow of water and had caused
flooding. She also alleged that no embankments or other protective
facilities had been built to protect her village from flooding, and
that no monitoring or alert systems had been put in place. She
claimed that those omissions had been in breach of the defendants’
obligations under several provisions of the Waters Act 1999 that
expressly envisaged such measures.
- Having
initially decided to proceed with the case, in a decision of 4 August
2008, the Pazardzhik Administrative Court dismissed the applicant’s
claim as inadmissible. It held that the administrative courts were
not competent to examine it because the alleged omissions of the
defendants did not constitute administrative action within the
meaning of Article 203 § 1 of the Code of
Administrative Procedure and section 1 (1) of the 1988 Act. The
relations between the applicant and the authorities in connection
with the flood were not characterised by an exercise of authority and
were therefore not governed by the rules of administrative law. The
impugned omissions of the authorities did not form part of their
administrative activities.
- On
appeal, on 11 November 2008 the Supreme Administrative Court upheld
that decision, with almost identical reasoning. It went on to say
that the applicant could bring a claim before the civil courts.
COMPLAINTS
- The
applicant complained under Article 1 of Protocol No. 1 that the
damage to her house and possessions had been a direct consequence of
the authorities’ failure to take measures to prevent and
mitigate floods, and that as a result of the dismissal of her claim
she had not received any compensation for that damage.
- The
applicant further complained under Article 6 § 1 of the
Convention that (a) she had not had effective access to a court in
respect of her claim for damages against the authorities, (b) the
proceedings before the Supreme Administrative Court had taken place
in private, and (c) the courts had not given sufficient reasons for
their ruling that the authorities’ omissions had not
constituted administrative action.
- Lastly,
the applicant complained under Article 13 of the Convention that the
Supreme Administrative Court had examined her case in private and
without dealing with the merits of the case.
THE LAW
A. Alleged violation of Article 1 of Protocol No. 1
- In
respect of her complaints about the damage sustained by her and the
lack of compensation, the applicant relied on Article 1 of Protocol
No. 1, which provides:
“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.”
12. The
Court notes that following the decision of the Supreme Administrative
Court of 11 November 2008 the applicant did not bring a claim under
the general law of tort (see paragraph 7 above). Therefore a question
about exhaustion of domestic remedies arises. However, the Court does
not find it necessary to determine this point, as, for the reasons
which follow, it considers that this complaint is in any event
manifestly ill founded.
- The
Court observes that the flood destroyed or damaged real property and
belongings of the applicant; those were clearly her “possessions”
within the meaning of Article 1 of Protocol No. 1. It must therefore
be examined to what extent the authorities were under an obligation
to take measures to protect those possessions, and whether this
obligation was complied with in the present case (see Budayeva and
Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 11673/02 and
15343/02, § 171, ECHR 2008 (extracts), and Kolyadenko
and Others v. Russia, nos. 17423/05, 20534/05, 20678/05,
23263/05, 24283/05 and 35673/05, § 214, 28 February 2012
(not final)).
- According
to the Court’s case-law, genuine, effective exercise of the
right protected by Article 1 of Protocol No. 1 does not depend merely
on the State’s duty not to interfere, but may require positive
measures of protection, particularly where there is a direct link
between the measures an applicant may legitimately expect from the
authorities and the effective enjoyment of his or her possessions.
Allegations of a failure on the part of the State to take positive
action to protect private property should be examined in the light of
the general rule in the first sentence of the first paragraph of
Article 1 of Protocol No. 1, which lays down the right to the
peaceful enjoyment of possessions (see Budayeva and Others,
cited above, § 172, with further references).
- That
said, a distinction needs to be drawn between the positive
obligations under Article 2 of the Convention and those under Article
1 of Protocol No. 1. Because of the fundamental importance of the
right to life, the positive obligations under Article 2 include a
duty to do everything within the authorities’ power in the
sphere of disaster relief for the protection of that right. By
contrast, the obligation to protect the right to the peaceful
enjoyment of possessions is not absolute, and cannot extend further
than what is reasonable in the circumstances. Accordingly, in
deciding what measures to take in order to protect private
possessions from weather hazards the authorities enjoy a wider margin
of appreciation than in deciding on the measures needed to protect
lives. Furthermore, natural disasters, which are as such beyond human
control, do not call for the same extent of State involvement as
dangerous activities of a man-made nature. Accordingly, the State’s
positive obligations to protect property against the former do not
necessarily extend as far as those in the sphere of the latter
(ibid., §§ 173-75).
- Turning
to the present case, the Court notes that the applicant’s
property was damaged as a result of heavy rainfall causing the nearby
river to overflow, and not by man-made activities. The case should
therefore be distinguished from Kolyadenko (cited above, §
215), where a similar overflow was triggered by the human-controlled
release of water from a reservoir, and from Öneryıldız
[GC] (no. 48939/99, § 18, ECHR 2004 XII), where deaths
and property destruction were caused by a methane explosion at a
rubbish tip constructed and controlled by the authorities.
Furthermore, unlike the situation obtaining in Kolyadenko, in
the instant case the applicant has neither alleged that the
authorities could have foreseen or prevented the consequences of the
rain, nor provided any details of the scale of the flooding. She
rather claimed that the authorities should have built
flood-protection facilities, maintained the riverbed, and put in
place a warning system to protect her village from weather hazards.
However, it remains unclear whether the measures suggested by the
applicant could have prevented or mitigated the damage that the flood
caused to her possessions, or, in other words, whether the damage
sustained by her may be attributed, wholly or partly, to State
negligence. From the documents made available to the Court it appears
that the scale of the calamity was not such as to cause a serious
damage to the applicant’s house or threaten her life.
Furthermore, unlike Öneryıldız (cited above, §
135), no causal link was established between any acts or omissions of
the public authorities and the property damage sustained by her.
Article 1 of Protocol No. 1 does not go as far as requiring the
Contracting States to take preventive measures to protect private
possessions in all situations and all areas prone to flooding or
other natural disasters. In view of the operational choices which
must be made in terms of priorities and resources, any obligations
arising under this provision must be interpreted in a way which does
not impose an impossible or disproportionate burden on the
authorities. Thus, in the absence of sufficient information or
evidence showing that the authorities’ actions or omissions
caused or contributed to the damage sustained by the applicant, the
Court considers that she has failed to make out an arguable claim
under Article 1 of Protocol No. 1.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
B. Other alleged violations of the Convention
- The
applicant raised a number of other complaints under Articles 6 § 1
and 13 of the Convention.
- The
Court has examined the remainder of the applicant’s complaints
as submitted by her. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they 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 must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı Lech
Garlicki
Deputy Registrar President
