EHRM, 21-04-2016, nr. 46577/15

By Article 278 § 1 of the Code of Administrative Procedure 2006, the enforcement of a final administrative decision may be fully or partly postponed by the competent administrative enforcement authority if it cannot be enforced immediately by reason of the financial situation of the person against whom it is directed or another objective impediment. By Article 278 § 2, enforcement may be postponed fully for fourteen days, and partly for a maximum of two months. By Article 278 § 3, the decision to postpone the enforcement or refuse to do so is not subject to legal challenge.

With one exception (see pеш. № 98 oT 05.06.2012 г. пo адm. д. № 147/2012 г., АC-CTаpа 3агopа, upheld by pеш. № 15346 oT 04.12.2012 г. пo адm. д. № 9645/2012 г., BАC, II o.), the administrative courts have consistently refused to examine such challenges in relation to proceedings for the enforcement of demolition orders (see oпp. № 2989 oT 06.03.2009 г. пo адm. д. № 2480/2009 г., BАC, II o.; oпp. № 3298 oT 11.03.2009 г. пo адm. д. № 2921/2009 г., BАC, II o.; oпp. № 3768 oT 20.03.2009 г. пo адm. д. № 2481/2009 г., BАC, II o.; oпp. № 12660 oT 15.10.2012 г. пo адm. д. № 10151/2012 г., BАC, II o.; oпp. № 13269 oT 06.11.2014 г. пo адm. д. № 13375/2014 г., BАC, II o.; oпp. № 14149 oT 26.11.2014 г. пo адm. д. № 14120/2014 г., BАC, II o.; oпp. № 149 oT 08.01.2015 г. пo адm. д. № 15083/2014 г., BАC, II o.; and oпp. № 965 oT 27.01.2015 г. пo адm. д. № 12327/2014 г., BАC, II o.).

By Article 292 of the Code, it is possible to contest the enforcement by way a claim for a judicial declaration on the basis of new facts which have emerged after the decision which is due to be enforced.

Under the Supreme Administrative Court’ case-law, to be regarded as new, the facts must have occurred after the close of the proceedings for judicial review of the demolition order (see pеш. № 1317 oT 02.02.2010 г. пo адm. д. № 11193/2009 г., BАC, II o.; pеш. № 669 oT 15.01.2013 г. пo адm. д. № 11464/2012 г., BАC, II o.; and pеш. № 3285 oT 10.03.2014 г. пo адm. д. № 14922/2013 г., BАC, II o.) or, if the order has not been contested in such proceedings, the close of the administrative proceedings leading to its issuing (see pеш. № 6059 oT 08.05.2014 г. пo адm. д. № 248/2014 г., BАC, II o.). That court has held that the lapse of the limitation period for enforcement is a new fact (see pеш. № 9071 oT 30.06.2010 г. пo адm. д. № 5508/2010 г., BАC, II o.; pеш. № 2536 oT 21.02.2012 г. пo адm. д. № 13701/2011 г., BАC, II o.; pеш. № 3039 oT 4.03.2013 г. пo адm. д. № 14984/2012 г., BАC, II o.; pеш. № 8567 oT 14.06.2013 г. пo адm. д. № 5906/2013 г., BАC, II o.; pеш. № 3288 oT 10.03.2014 г. пo адm. д. № 15163/2013 г., BАC, II o.; pеш. № 6291 oT 12.05.2014 г. пo адm. д. № 507/2014 г., BАC, II o.; pеш. № 6973 oT 26.05.2014 г. пo адm. д. № 859/2014 г., BАC, II o.; pеш. № 7224 oT 28.05.2014 г. пo адm. д. № 342/2014 г., BАC, II o.; pеш. № 15428 oT 17.12.2014 г. пo адm. д. № 11539/2014 г., BАC, II o.; and pеш. № 11888 oT 10.11.2015 г. пo адm. д. № 6136/2015 г., BАC, II o.), as is the legalisation of a building by the competent authorities (see pеш. № 944 oT 27.01.2015 г. пo адm. д. № 8411/2014 г., BАC, II o.), but that the issuing of a certificate that a building can be tolerated under the amnesty provisions of the 2001 Act (see paragraphs 28 and 29 above) is not (see pеш. № 6023 oT 26.05.2015 г. пo адm. д. № 11540/2014 г., BАC, II o.).

By Articles 294 et seq. of the Code, the decisions, actions or omissions of an administrative enforcement authority are subject to judicial review by the competent first-instance administrative court at the instance of the parties to the enforcement proceedings or any third parties whose rights, freedoms or lawful interests have been affected by them. By Article 298 § 4, the court's judgment is not subject to appeal.

The Supreme Administrative Court has held that persons who are not addressees of a demolition order and whose property rights would not be affected by its enforcement are not entitled to challenge its enforcement under those provisions (see oпp. № 7946 oT 16.06.2009 г. пo адm. д. № 3935/2009 г., BАC, II o.). However, in a more recent case the Lovech Administrative Court found, in a final judgment, that persons claiming that the enforcement of a demolition order would affect their right to respect for their home within the meaning of Article 8 § 1 of the Convention are entitled to challenge that enforcement under Article 294 et seq. of the Code (see pеш. № 7 oT 13.01.2016 г. пo адm. д. № 156/2015 г., АC-Лobеч).

In three final judgments given in March and July 2013 and February 2014 (pеш. № 749 oT 22.03.2013 г. пo адm. д. № 911/2013 г., АC-Bаphа; pеш. 1782 oT 04.07.2013 г. пo адm. д. № 1650/2013 г., АC-Bаphа; and pеш. № 929 oT 17.04.2014 г. пo адm. д. № № 911/2013 г., АC-Bаphа), the Varna Administrative Court dismissed claims under Article 294 of the Code in relation to the demolition of a building which was the claimants' only home. It examined the matter by reference to the principle of proportionality, as enshrined in Article 6 of the Code (see paragraph 27 above) and Article 8 of the Convention, but held that even though the building was the claimants' only home, it was still subject to demolition because it was illegal and because there were no alternative means of combatting illegal construction, especially considering that the claimants had knowingly erected the building in a zone where construction was prohibited. Any arguments relating to their poor health or lack of means were irrelevant. The balance between the competing interests had been resolved at the legislative level. Holding otherwise would mean that illegal buildings inhabited by persons in poor health or persons who had no other place to live could not be demolished, which would render building regulations nugatory. The claimants then managed, on the basis of the same arguments, to obtain the discontinuance by the building control authorities of the proceedings for the enforcement of the demolition order. However, in a final judgment of 22 June 2015 (pеш. № 1399 oT 22.06.2015 г. пo адm. д. № 1230/2015 г., АC-Bаphа), the Varna Administrative Court, acting pursuant to a claim brought by the Sofia City Prosecutor's Office, declared that discontinuance null and void on the basis that it had impermissibly been based on arguments already examined and rejected in a final judgment.

In a final judgment of 6 March 2015 (pеш. № 6 oT 06.03.2015 г. пo адm. д. № 47/2015 г., АC-Xаcкobo), the Haskovo Administrative Court dismissed a claim under Article 294 of the Code in relation to the demolition of a building which was the claimants' only home. It held that it could not discuss the claimants' arguments relating to the proportionality of the demolition because they did not concern the lawfulness of the enforcement but the lawfulness of the demolition order, which had already been upheld in prior judicial review proceedings.

In two final judgments given in January 2016 (pеш. № 5 oT 06.01.2016 г. пo адm. д. № 112/2015 г., АC-Лobеч, and pеш. № 7 oT 13.01.2016 г. пo адm. д. № 156/2015 г., АC-Лobеч), the Lovech Administrative Court dismissed claims under Article 294 of the Code in relation to the demolition of buildings which were the claimants' only home. Like the Varna Administrative Court and unlike the Haskovo Administrative Court, it examined the matter by reference to the principle of proportionality, as enshrined in Article 6 of the Code (see paragraph 27 above) and Article 8 of the Convention, but held that even though the buildings were the claimants' only home, they were still subject to demolition because they were illegal and because there were no alternative means of combatting illegal construction.

In four final decisions of 15 September 2015 (oпp. № 995 oT 15.09.2015 г. пo адm. д. № 705/2015 г., АC-Па3аpджик; oпp. № 996 oT 15.09.2015 г. пo адm. д. № 707/2015 г., АC-Па3аpджик; oпp. № 997 oT 15.09.2015 г. пo адm. д. № 708/2015 г., АC-Па3аpджик; oпp. № 1002 oT 15.09.2015 г. пo адm. д. № 706/2015 г., АC-Па3аpджик), the Pazardzhik Administrative Court imposed interim measures in proceedings under Article 294 of the Code relating to houses inhabited by a number of Roma families on the basis that the immediate enforcement of the orders for their demolition would render those families homeless. However, when it later examined the legal challenges under Article 294 of the Code on their merits, the court declared the steps taken to enforce the demolition orders null and void on the basis that they had not been taken by a competent authority (see pеш. № 599 oT 13.10.2015 г. пo адm. д. № 708/2015 г., АC-Па3аpджик; pеш. № 617 oT 22.10.2015 г. пo адm. д. № 705/2015 г., АC-Па3аpджик; pеш. № 624 oT 23.10.2015 г. пo адm. д. № 707/2015 г.; and pеш. № 728 oT 10.12.2015 г. пo адm. д. № 706/2015 г., АC-Па3аpджик).

The complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.

49. Although only the first applicant has legal rights to the house, both applicants have in fact lived in it for a number of years (see paragraphs 8 and 11 above). It is therefore ‘home’ for both of them (see, among other authorities, Buckley v. the United Kingdom, 25 September 1996, § 54, Reports of Judgments and Decisions 1996-IV; Prokopovich v. Russia, no. 58255/00, §§ 36–39, ECHR 2004-XI (extracts); McCann v. the United Kingdom, no. 19009/04, § 46, ECHR 2008; Yordanova and Others v. Bulgaria, no. 25446/06, §§ 102–03, 24 April 2012; and Winterstein and Others v. France, no. 27013/07, § 141, 17 October 2013), and the order for its demolition amounts to an interference with their right to respect for that home (see, mutatis mutandis, Ćosić v. Croatia, no. 28261/06, § 18, 15 January 2009; Yordanova and Others, cited above, § 104; and Winterstein and Others, cited above, § 143).

The interference was lawful. The demolition order had a clear legal basis in section 225(2)(2) of the Territorial Organisation Act 2001 (see paragraphs 12 and 26 above). It was upheld, following fully adversarial proceedings, by two levels of court (see paragraphs 14 and 16 above), and there is nothing to suggest that it was not otherwise ‘in accordance with the law’ within the meaning of Article 8 § 2 of the Convention.

The Court is satisfied that the demolition would pursue a legitimate aim. Even if its only purpose is to ensure the effective implementation of the regulatory requirement that no buildings can be constructed without permit, it may be regarded as seeking to re-establish the rule of law (see, mutatis mutandis, Saliba v. Malta, no. 4251/02, § 44, 8 November 2005), which, in the context under examination, may be regarded as falling under ‘prevention of disorder’ and as promoting the ‘economic well-being of the country’. This is particularly relevant for Bulgaria, where the problem of illegal construction appears to be rife (see paragraphs 41–43 above).

Thus, the salient issue is whether the demolition would be ‘necessary in a democratic society’. On this point, the case bears considerable resemblance with cases concerning the eviction of tenants from public housing (see McCann, cited above; Ćosić, cited above; Paulić v. Croatia, no. 3572/06, 22 October 2009; Kay and Others v. the United Kingdom, no. 37341/06, 21 September 2010; Kryvitska and Kryvitskyy v. Ukraine, no. 30856/03, 2 December 2010; Igor Vasilchenko v. Russia, no. 6571/04, 3 February 2011; and Bjedov v. Croatia, no. 42150/09, 29 May 2012), and cases concerning the eviction of occupiers from publicly owned land (see Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001-I; Connors v. the United Kingdom, no. 66746/01, 27 May 2004; Yordanova and Others, cited above; Buckland v. the United Kingdom, no. 40060/08, 18 September 2012; and Winterstein and Others v. France, no. 27013/07, 17 October 2013). An analogy may also be drawn with cases concerning evictions from properties previously owned by the applicants but lost by them as a result of civil proceedings brought by a private person, civil proceedings brought by a public body, or tax enforcement proceedings (see, respectively, Zehentner v. Austria, no. 20082/02, 16 July 2009 (proceedings brought by a creditor); Brežec v. Croatia, no. 7177/10, 18 July 2013 (proceedings brought by the true owner of the premises); Gladysheva v. Russia, no. 7097/10, 6 December 2011 (proceedings brought by a municipal body); and Rousk v. Sweden, no. 27183/04, 25 July 2013 (tax enforcement proceedings)).

Under the court's well-established case-law, as expounded in those judgments, the assessment of the necessity of the interference in cases concerning the loss of one's home for the promotion of a public interest involves not only issues of substance but also a question of procedure: whether the decision-making process was such as to afford due respect to the interests protected under Article 8 of the Convention (see Connors, § 83; McCann, § 49; Kay and Others, § 67; Kryvitska and Kryvitskyy, § 44; and Yordanova and Others, § 118 (iii), all cited above). Since the loss of one's home is a most extreme form of interference with the right to respect for the home, any person risking this — whether or not belonging to a vulnerable group — should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under that Article (see, among other authorities, McCann, § 50; Ćosić, § 22; Zehentner, § 59; Kay and Others, § 68; Buckland, § 65; and Rousk, § 137, all cited above). The factors likely to be of prominence in this regard, when it comes to illegal construction, are whether or not the home was established unlawfully, whether or not the persons concerned did so knowingly, what is the nature and degree of the illegality at issue, what is the precise nature of the interest sought to be protected by the demolition, and whether suitable alternative accommodation is available to the persons affected by the demolition (see Chapman, cited above, §§ 102–04). Another factor could be whether there are less severe ways of dealing with the case; the list is not exhaustive. Therefore, if the person concerned contests the proportionality of the interference on the basis of such arguments, the courts must examine them carefully and give adequate reasons in relation to them (see Yordanova and Others, § 118 (iv) in fine, and Winterstein and Others, § 148 (δ) in fine, both cited above); the interference cannot normally be regarded as justified simply because the case falls under a rule formulated in general and absolute terms. The mere possibility of obtaining judicial review of the administrative decision causing the loss of the home is thus not enough; the person concerned must be able to challenge that decision on the ground that it is disproportionate in view of his or her personal circumstances (see McCann, §§ 51–55; Ćosić, §§ 21–23; and Kay and Others, § 69–74, all cited above). Naturally, if in such proceedings the national courts have regard to all relevant factors and weigh the competing interests in line with the above principles — in other words, where there is no reason to doubt the procedure followed in a given case — the margin of appreciation allowed to those courts will be a wide one, in recognition of the fact that they are better placed than an international court to evaluate local needs and conditions, and the Court will be reluctant to gainsay their assessment (see Pinnock and Walker v. the United Kingdom (dec.), no. 31673/11, §§ 28–34, 24 September 2013).

The Court cannot agree with the position, expressed by some Bulgarian administrative courts, that the balance between the rights of those who stand to lose their homes and the public interest to ensure the effective implementation of the building regulations can as a rule properly be struck by way of an absolute rule permitting of no exceptions (see paragraphs 26 and 37 above). Such an approach could be sustained under Article 1 of Protocol No. 1, which gives the national authorities considerable latitude in dealing with illegal construction (see paragraphs 73–76 below), or in other contexts (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, §§ 106–09, ECHR 2013 (extracts), with further references). But given that the right to respect for one's home under Article 8 of the Convention touches upon issues of central importance to the individual's physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community, the balancing exercise under that provision in cases where the interference consists in the loss of a person's only home is of a different order, with particular significance attaching to the extent of the intrusion into the personal sphere of those concerned (see Connors, cited above, § 82). This can normally only be examined case by case. Moreover, there is no evidence that the Bulgarian legislature has given active consideration to this balance, or that in opting for a wholesale rather than a more narrowly tailored solution it has taken into account the interests protected under Article 8 of the Convention (see, mutatis mutandis, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 89, ECHR 2013 (extracts), and contrast, mutatis mutandis, Animal Defenders International, cited above, §§ 114–16). On the contrary, the Ombudsman of the Republic has repeatedly expressed concern in that regard (see paragraphs 41–43 above).

Nor can the Court accept the suggestion that the possibility for those concerned to challenge the demolition of their homes by reference to Article 8 of the Convention would seriously undermine the system of building control in Bulgaria (see paragraph 37 above). It is true that the relaxation of an absolute rule may entail risks of abuse, uncertainty or arbitrariness in the application of the law, expense, and delay. But it can surely be expected that the competent administrative authorities and the administrative courts, which routinely deal with various claims relating to the demolition of illegal buildings (see paragraphs 26, 27, 34 and 37–39 above), and have recently showed that they can examine such claims in the light of Article 8 of the Convention (see paragraph 30 above), will be able to tackle those risks, especially if they are assisted in this task by appropriate parameters or guidelines. Moreover, it would only be in exceptional cases that those concerned would succeed in raising an arguable claim that demolition would be disproportionate in their particular circumstances (see, mutatis mutandis, McCann, § 54; Paulić, § 43; and Bjedov, § 67, all cited above).

The proceedings conducted in this case did not meet the above-mentioned procedural requirements, as set out in paragraph 53. The entire focus of those proceedings, in which the first applicant sought judicial review of the demolition order — the second applicant, not having any property rights over the house and not being an addressee of the order, would not have even had standing to take part in them (see paragraph 26 in fine above) — was whether the house had been built without a permit and whether it was nevertheless exempt from demolition because it fell within the transitional amnesty provisions of the relevant statute (see paragraphs 14 and 16 above). In her appeal, the first applicant raised, albeit briefly, the points that the applicants now put before the Court: that the house was her only home and that she would be severely affected by its demolition (see paragraph 15 above). The Supreme Administrative Court did not even mention, let alone substantively engage with this point (see, mutatis mutandis, Brežec, cited above, § 49). This is hardly surprising, as under Bulgarian law it is not relevant for the demolition order's lawfulness. Under the applicable statutory provisions, as construed by the Supreme Administrative Court, any building constructed without a permit is subject to demolition, unless it falls under the transitional amnesty provisions of the 2001 Act, and it is not open to the administrative authorities to refrain from demolishing it on the basis that this would cause disproportionate harm to those affected by that measure (see paragraphs 25–27 above).

The possibility, adverted to by the Government (see paragraphs 46 above and 78 below), to seek postponement of the enforcement of the demolition order under Article 278 of the Code of Administrative Procedure 2006 (see paragraph 31 above) could not have remedied that (see, mutatis mutandis, Paulić, § 44, and Bjedov, § 71, both cited above). All the applicants could have obtained in proceedings under that provision — which are conducted solely before the administrative enforcement authority rather than an independent tribunal, with no possibility for judicial review of the decisions taken in their course — would have been a temporary reprieve from the effects of the demolition order rather than a comprehensive examination of its proportionality (see paragraph 32 above).

Nor does it appear that, as suggested by the Supreme Administrative Court in its judgment of 1 June 2015 in a similar case (see paragraph 30 above), it would have been possible, as matters stand, to obtain a proper examination of the proportionality of the demolition by seeking judicial review of the enforcement of the demolition order under Article 294 et seq. of the 2006 Code (see paragraph 35 above). Such examination could in principle be carried out in proceedings for judicial review of enforcement (see J.L. v. the United Kingdom (dec.), no. 66387/10, §§ 44–46, 30 September 2014). But the case-law under these provisions shows that the Bulgarian administrative courts generally decline to examine arguments relating to the individual situation of the persons concerned by the demolition. They do so either on the basis that the proper balance between their rights under Article 8 of the Convention and the countervailing public interest to combat illegal construction has been resolved at the legislative level and that demolition is the only means of tackling illegal construction, or that such points can only be examined in proceedings for judicial review of the demolition order itself (see paragraphs 37–39 above). The only court that appears to have shown some willingness to entertain such arguments in proceedings under Article 294 et seq. of the Code is the Pazardzhik Administrative Court, which however did so when imposing interim measures in such proceedings rather than when dealing with the merits of the cases (see paragraph 40 above). It is also unclear whether persons in the position of the second applicant, who is not the addressee of the demolition order and has no property rights over the house, would have standing to bring such a challenge (see paragraph 36 above).

The applicants could not have obtained a proper examination of the proportionality of the demolition by bringing a claim for declaratory judgment under Article 292 of the 2006 Code either (see paragraph 33 above). The case-law under that provision, which is only intended to prevent the enforcement of administrative decisions where newly emerged facts militate against it, shows that in such proceedings the Bulgarian administrative courts just check whether facts which have come to pass after the issuing or the demolition order or its upholding by the courts — such as a lapse of the limitation period for enforcement or an intervening legalisation of the building — could preclude enforcement (see paragraph 34 above). There appears to be no case in which the courts have allowed such a claim, and thus blocked the enforcement of a demolition order, on the basis of arguments relating to the personal circumstances of those concerned. Moreover, in the applicants' case the enforcement proceedings started less than one month after the demolition order was upheld by the courts (see paragraphs 16 and 17 above).

The involvement of the social services, which only occurred after notice of the application had been given to the Government (see paragraph 21 above), could not make good the lack of a proper proportionality assessment. It did not take place within the framework of a procedure capable of resulting in a comprehensive review of the proportionality of the demolition (see, mutatis mutandis, Yordanova and Others, cited above, §§ 136–37). In any event, even though the first applicant stated that she was not interested in social services, the Government emphasised that the authorities had no obligation to provide the applicants with alternative accommodation and did not clearly explain in what way those services would have provided the applicants with a satisfactory solution.

In sum, the applicants did not have at their disposal a procedure enabling them to obtain a proper review of the proportionality of the intended demolition of the house in which they live in the light of their personal circumstances.

The Court therefore finds that there would be a breach of Article 8 of the Convention if the order for the demolition of the house in which the applicants live were to be enforced without such review.

It should be noted at the outset that this complaint was only raised by the first applicant. It is therefore not necessary to rule on the Government's objection in relation to the second applicant.

The parties have diverging views on whether the first applicant has a ‘possession’ within the meaning of Article 1 of Protocol No.1 and whether that provision is thus applicable. But in this case it is more appropriate to examine this question on the merits (see, mutatis mutandis, Depalle v. France (dec.), no. 34044/02, 29 April 2008, and Yordanova and Others v. Bulgaria (dec.), no. 25446/06, 14 September 2010). The complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.

Since in Bulgaria it is settled law that illegal buildings can be the objects of the right to property, and since the Burgas Regional Court held that the first applicant is the owner of 484.43 out of the 625 shares of both the plot and the house built on it (see paragraph 9 above), there can be no doubt that she has a ‘possession’ and that Article 1 of Protocol No. 1 is applicable.

The intended demolition of the house will in turn amount to an interference with the first applicant's possessions (see Allard v. Sweden, no. 35179/97, § 50, ECHR 2003-VII, and Hamer v. Belgium, no. 21861/03, § 77, ECHR 2007-V (extracts)). Being meant to ensure compliance with the general rules concerning the prohibitions on construction, this interference amounts to a ‘control [of] the use of property’ (see Hamer, cited above, § 77, and Saliba, cited above, § 35). It therefore falls to be examined under the second paragraph of Article 1 of Protocol No. 1.

The demolition order had a clear legal basis in section 225(2)(2) of the Territorial Organisation Act 2001 (see paragraphs 12 and 26 above). It was upheld, following fully adversarial proceedings, by two levels of court (see paragraphs 14 and 16 above). The interference is therefore lawful for the purposes of Article 1 of Protocol No. 1.

It can also be accepted that the interference, which seeks to ensure compliance with the building regulations, is ‘in accordance with the general interest’ (see Saliba, cited above, § 44). At the same time, it should be noted that the demolition order, although the product of a denunciation by the first applicant's co-owners (see paragraph 11 above), was not premised on the first applicant's failure to obtain their assent for the construction of the house. It cannot therefore be regarded as intended to protect their interests (contrast Allard, cited above, § 52). It follows that the weight of those interests is not a pertinent consideration in this case (contrast Allard, cited above, § 60).

The salient issue is whether the interference would strike a fair balance between the first applicant's interest to keep her possessions intact and the general interest to ensure effective implementation of the prohibition against building without a permit.

According to the court's settled case-law, the second paragraph of Article 1 of Protocol No. 1 must be read in the light of the principle set out in the first sentence of the first paragraph: that an interference needs to strike a fair balance between the general interest of the community and the individual's rights. This means that a measure must be both appropriate for achieving its aim and not disproportionate to that aim (see, among other authorities, James and Others v. the United Kingdom, 21 February 1986, § 50, Series A no. 98). However, the High Contracting Parties enjoy a margin of appreciation in this respect, in particular in choosing the means of enforcement and in ascertaining whether the consequences of enforcement would be justified (see, as a recent authority, Depalle v. France [GC], no. 34044/02, § 83, ECHR 2010). When it comes to the implementation of their spatial planning and property development policies, this margin is wide (see Saliba, cited above, § 45, with further references).

For that reason, unlike Article 8 of the Convention, Article 1 of Protocol No. 1 does not in such cases presuppose the availability of a procedure requiring an individualised assessment of the necessity of each measure of implementation of the relevant planning rules. It is not contrary to the latter for the legislature to lay down broad and general categories rather than provide for a scheme whereby the proportionality of a measure of implementation is to be examined in each individual case (see James and Others, cited above, § 68, and Allen and Others v. the United Kingdom (dec.), no. 5591/07, § 66, 6 October 2009). There is no incongruity in this, as the intensity of the interests protected under those two Articles, and the resultant margin of appreciation enjoyed by the national authorities under each of them, are not necessarily co-extensive (see Connors, cited above, § 82). Thus, although the Court has in some cases assessed the proportionality of a measure under Article 1 of Protocol No. 1 in the light of largely the same factors as those that it has taken into account under Article 8 of the Convention (see Zehentner, §§ 52–65 and 70–79; Gladysheva, §§ 64–83 and 90–97; and Rousk, §§ 108-27 and 134–42, all cited above, as well as Demades v. Turkey, no. 16219/90, §§ 36–37 and 44–46, 31 July 2003), this assessment is not inevitably identical in all circumstances.

In the first applicant's case, the house was knowingly built without a permit (contrast N.A. and Others v. Turkey, no. 37451/97, § 39 in fine, ECHR 2005-X, and Depalle, cited above, § 85), and therefore in flagrant breach of the domestic building regulations. In this case, regardless of the explanations that the first applicant gave for this failure, this can be regarded as a crucial consideration under Article 1 of Protocol No. 1. The order that the house be demolished, which was issued a reasonable time after its construction (contrast Hamer, cited above, § 83), simply seeks to put things back in the position in which they would have been if the first applicant had not disregarded the requirements of the law. The order and its enforcement will also serve to deter other potential lawbreakers (see Saliba, cited above, § 46), which must not be discounted in view of the apparent pervasiveness of the problem of illegal construction in Bulgaria (see paragraphs 41-43 above). In view of the wide margin of appreciation that the Bulgarian authorities enjoy under Article 1 of Protocol No. 1 in choosing both the means of enforcement and in ascertaining whether the consequences of enforcement would be justified, none of the above considerations can be outweighed by the first applicant's proprietary interest in the house.

The implementation of the demolition order would therefore not be in breach of the first applicant's rights under Article 1 of Protocol No. 1.

The Government submitted that the applicants could have sought postponement of the enforcement of the demolition order under Article 278 of the Code of Administrative Procedure 2006 on the basis of arguments relating to their financial situation and the impossibility to obtain alternative accommodation. That did not of course mean that the authorities had an unconditional obligation to provide them such accommodation. That said, there was no evidence that the applicants had taken steps to be settled in a municipal flat.

The applicants submitted that a request under Article 278 of the 2006 Code was not an effective remedy. All it could achieve was a short postponement of the enforcement. The law did not envisage any way of dealing with unlawful construction other than its demolition, regardless of the degree or nature of the illegality, or the effects of the measure on the personal situation of those affected by it.

The complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on other grounds. It must therefore be declared admissible.

However, in as much as the finding of a breach of Article 8 of the Convention was premised on the absence of a procedure in which the applicants could challenge the demolition of the house on proportionality grounds (see paragraphs 56-61 above), no separate issue arises under Article 13 of the Convention (see, mutatis mutandis, Stanková v. Slovakia, no. 7205/02, § 67, 9 October 2007, and Yordanova and Others, cited above, § 152).

The applicants jointly claimed 2,000 euros (EUR) in respect of the distress experienced by them as a result of the alleged breaches of Articles 8 and 13 of the Convention and Article 1 of Protocol No. 1.

The Government submitted that the claim was exorbitant.

In this case, the award of compensation can only be based on the breach of Article 8 of the Convention. However, that breach will only take place if the decision ordering the demolition of the house in which the applicants live were to be enforced, which has for the time being not happened (see paragraph 22 above). The finding of a violation is therefore sufficient just satisfaction for any non-pecuniary damage suffered by the applicants (see Yordanova and Others, cited above, § 171).

The applicants claimed EUR 3,280 in respect of forty-one hours of work by their legal representative on the proceedings before the Court, billed at EUR 80 per hour, plus EUR 13.73 for postage. They requested than any award made under this head be made payable to the BHC, with which their legal representative worked (see paragraph 2 above). In support of this claim, the applicants submitted two agreements between them, their legal representative and the BHC in which it was stipulated that the applicants did not have to pay any remuneration to their representative up-front but that the representative would claim her fees, plus any related expenses, in the event of a successful outcome of the case; that, in the event of a successful outcome, the fees would in fact be paid by the BHC; and that the representative agreed that any award in respect of costs and expenses could be made payable to the BHC. The applicants also submitted a time-sheet and postal receipts.

The Government disputed the number of hours spent by the applicants' legal representative on the case, saying that they were excessive in view of its low complexity and the length of the submissions that she had made on the applicants' behalf. The sum claimed in that respect was many times higher than those envisaged for similar work in domestic proceedings and out of tune with economic realities in the country. The Government also pointed out that there was no evidence, such as an invoice or a payment document, showing that the BHC had actually paid any remuneration to the applicants' representative.

According to the court's settled case-law, costs and expenses are recoverable under Article 41 of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum.

The first point in dispute was whether the costs claimed by the applicants were actually incurred. The applicants made an agreement with their representative and the BHC that is comparable to a contingency fee agreement whereby a client agrees to remunerate his lawyer only in the event of a successful outcome of the case. If legally enforceable, such agreements may show that the sums claimed are payable and therefore actually incurred (see Kamasinski v. Austria, 19 December 1989, § 115, Series A no. 168). This being the case in Bulgaria (see paragraph 44 above, and compare Saghatelyan v. Armenia, no. 7984/06, § 62, 20 October 2015, and contrast Dudgeon v. the United Kingdom (Article 50), 24 February 1983, § 22, Series A no. 59, and Pshenichnyy v. Russia, no. 30422/03, § 38, 14 February 2008), the Court accepts that the costs claimed were actually incurred by the applicants, even if for the time being no payments have taken place.

The second disputed point was whether the costs were reasonable as to quantum. The Court is not bound by domestic scales or standards in that assessment (see Dimitrov and Others v. Bulgaria, no. 77938/11, § 190, 1 July 2014, with further references). It simply notes that the hourly rate charged by the applicants' representative is comparable to that charged in a recent case against Bulgaria involving similar issues (see Yordanova and Others, cited above, § 172). It can thus be regarded as reasonable. However, having regard to the submissions made on behalf of the applicants, the Court finds that the number of hours claimed is excessive.

Taking into account all these points and the materials in its possession, the Court awards the applicants a total of EUR 2,013.73, plus any tax that may be chargeable to them.

As requested by the applicants, this sum is to be paid directly to the BHC, with which their representative works. The court's practice has been to accede to such requests (see Neshkov and Others v. Bulgaria, nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, § 309, 27 January 2015, with further references).

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.