Становище на МРРБ относно обстановката в кв. "Кремиковци", община Гърмен
Становище на МРРБ относно обстановката в кв. "Кремиковци", община Гърмен
От Министерство на регионалното развитие и благоустройството
По повод засиления интерес за обстановката в кв. „Кремиковци“, община Гърмен, Министерството на регионалното развитие и благоустройството изразява следното становище:
Further to your inquiry concerning “forced evictions” of Roma families from the area of Kremikovtzi quarter of Gurmen municipality, as well as of the upcoming demolition of 124 structures in the same area, please refer to the following information:
The National Construction Control Directorate (NCCD) is a second-level spender of budgetary appropriations under the authority of the Minister of Regional Development and Public Works, in charge of exercising control over the enforcement of the Spatial Development Act (SDA) and of the normative acts on its implementation in the process of design work and construction, in order to ensure security, safety, accessibility and compliance with other normative requirements in regard to construction projects. NCCD exercises control over the lawfulness of the construction and use of the construction works, while ensuring control over the lawfulness of the construction papers, issued in regard to all categories of construction works.
As to the question raised concerning the illegal construction found in the Padarkata area in the territory of Marchevo village, Kremikovtzi quarter, Gurmen municipality I would like to point out that this is just one of the instances of illegal construction found in the Republic of Bulgaria and that the bodies of NCCD have issued on the legal grounds of Article 225(1) of SDA a total of 124 demolition orders concerning illegal buildings.
Up to date 8 out of the total 124 demolition orders have been put into effect – 4 in a compulsory manner and 4 voluntarily. In 14 cases it would be impossible to execute the orders, because after their entry into force the buildings were extended and heightened. The mayor of the municipality will be notified with the view of taking action to demolish them, taking into consideration the amendments to SDA of 2012. A total of 102 demolition orders concerning illegal buildings remain to be enforced.
All demolition orders have entered into force in the period 2011 and 2014. As a consequence an obligation arose for NCCD, in its capacity of enforcement body in charge, to execute them in the indicated manner.
The demolition orders that have entered into force represent valid enforcement grounds within the meaning of Article 268 of the Code of Administrative Procedure (CAP), subject to enforcement under the procedure, provided by the law; the administrative body that issued the demolition orders, also in its capacity of being in charge of their enforcement by virtue of Article 272(1), item 1 of CAP, has no discretion whether to comply with administrative acts that have entered into force or not, but only the duty to put them into effect. Pursuant to Article 273 of CAP the enforcement body is obliged to put them into effect within the term indicated in the enforcement grounds and in case of non-performance of its duty the officials responsible are liable to a fine.
In the course of the enforcement proceedings the principle of proportionality under Article 6 was developed in the provision of Article 272(1), item 1 of CAP, pursuant to which when carrying out enforcement the administrative body is obliged to apply methods and means, which given the specific circumstances of the individual case would ensure the most effective discharge of the duty and would be most favourable to the citizens or organizations, in regard to or in favour of which the enforcement would be carried out.
On the legal grounds of Article 277(1), item 1 of CAP and pursuant to the demolition orders that were issued and entered into force invitations were forwarded to the recipients for voluntary compliance, which were served on the addressees thereof under the procedure provided for by law. As of the date of receipt of such invitations the perpetrators of illegal construction had the opportunity to comply voluntarily with the effective demolition orders and if they fail to do so, the NCCD bodies would proceed to compulsory enforcement under the procedure of Ordinance No 13/23.07.2001 on compulsory enforcement of demolition orders, concerning illegal buildings or parts of them by the NCCD bodies, issued by the Minister of Regional Development and Public Works.
With the view of enforcement of all demolition orders that entered into effect, issued by the NCCD bodies, after ascertained absence of voluntary compliance on the part of perpetrators of illegal construction, actions for compulsory removal had been taken, in compliance with the terms and procedures for compulsory enforcement of demolition orders concerning illegal buildings or parts thereof by the NCCD bodies, envisaged in the aforementioned Ordinance.
It should be noted that the illegal buildings, the demolition of which was prescribed by the 124 demolition orders that were issued and entered into effect, are by definition buildings, which are dangerous and are actually posing a hazard to the life and health of their inhabitants, minors included. Those buildings do not meet the normative requirements for a “dwelling”, they lack normal hygiene facilities, lavatories and running water and habitation thereof in its legal nature constitutes illegal behaviour, where nobody, including the perpetrators of illegal construction, may derive any rights.
Regarding the preparations for the removal of illegal buildings and prior to taking action, with letter under its ref. No RD-258-03-647/25.05.2015 to the governor of Blagoevgrad region and the mayor of Gurmen municipality, the NCCD formally requested exhaustive information concerning the feasibility of providing a social service to the Roma population affected. A reply with ref. No 24-00-267/29.05.2015 by the mayor of Gurmen municipality informed MRDPW that the municipality had no municipal housing and therefore was not in a position to provide the social service – namely to provide municipal housing.
On 03.07.2015 NCCD received information via e-mail from the director of the Social Assistance Directorate – the town of Gotse Delchev. In it it is stated that the four families, whose buildings were torn down by the NCCD bodies, had refused to be accommodated at a municipal housing. Such accommodation at social homes was also offered to both families, whose houses were about to be demolished on 13.07.2015. However, they had refused that proposal and protocols were drawn up as evidence of their refusal. It should be noted that social services are provided by request of the citizens and not as a compulsory administrative measure.
The enforcement actions under two of the demolition orders, planned for 13.07.2015, were opposed by the perpetrators – Stoyan Lyubenov Aydarov and Krassimir Hristov Iliev, by petitions submitted directly to the Administrative Court – Blagoevgrad on 08.07.2015, acting by Daniela Mikhaylova, attorney-at-law. In accordance with the provision of Article 297(4) of CAP the petitions lodged against the actions of the enforcement body do not lead to suspension of such actions, but the court is entitled to suspend them pending resolution of the dispute by a final court act. The petitions contained allegations that the actions challenged of the enforcement body violated human rights, material norms of procedural law and the principle of proportionality under Article 6 of CAP, as well as that the same were null and void, because the NCCD bodies were not competent to put into effect demolition orders that were issued and entered into force. The petitions also contained allegations that the compulsory demolition would place in an exceptionally unfavourable situation the petitioners and their families, who would remain homeless, which would be constitute a disproportionate damage for them and in this connection a request was addressed to the court to suspend the enforcement proceedings on the legal grounds of Article 280(1) of CAP. The administrative correspondence files completed, along with the motives of the actions challenged under Article 297(3) of CAP and detailed opinions concerning the allegations in the petitions were submitted to the Administrative Court – Blagoevgrad on 09.07.2015.
In regard to the petition by Stoyan Lyubenov Aydarov, acting by Daniela Mikhaylova, attorney-at-law, against the actions of the enforcement body, objectified in letter of assignment No BD-1944-04-374/23.06.2015 of NCCD, administrative case No 536/2015 was instituted at the Administrative Court – Blagoevgrad, in which the court rejected by Ruling No 1125/10.07.2015 the petition as procedurally inadmissible and the proceedings under the case were dismissed in this specific part. By the same Ruling the petition of Stoyan Lyubenov Aydarov, acting by Daniela Mikhaylova, attorney-at-law, was rejected in its part claiming that the actions challenged were null and void and his request to suspend them was rejected and in this part the Ruling was final on the legal grounds of Article 298(4) of CAP. The notification of Ruling No 1125/10.07.2015, issued in administrative case No 536/2015 of the Administrative Court – Blagoevgrad, was received by NCCD on 10.07.2015.
In regard to the petition by Krassimir Hristov Iliev, acting by Daniela Mikhaylova, attorney-at-law, against the actions of the enforcement body, objectified in letter of assignment No BD-1946-04-375/23.06.2015 of NCCD, administrative case No 535/2015 was instituted at the Administrative Court – Blagoevgrad, in which the court rejected by Ruling No 1124/10.07.2015 the petition as procedurally inadmissible and the proceedings under the case were dismissed in this specific part. By the same Ruling the petition of Krassimir Hristov Iliev, acting by Daniela Mikhaylova, attorney-at-law, was rejected in its part claiming that the actions challenged were null and void and his request to suspend them was rejected and in this part the Ruling was final on the legal grounds of Article 298(4) of CAP. The notification of Ruling No 1124/10.07.2015, issued in administrative case No 535/2015 of the Administrative Court – Blagoevgrad, was received by NCCD on 10.07.2015.
On 13.07.2015 NCCD was informed by the Ministry of Justice that a request was received at the European Court of Human Rights (ECHR) in Strasbourg on the part of the families of the individuals Krassimir Hristov Iliev and Stoyan Lyubenov Aydarov to impose an interim measure against the Bulgarian side, on the legal grounds of Article 39 of the Rules of ECHR. It was noted that the request for interim measure may be upheld in case the Bulgarian side would fail to provide without delay guarantees in favour of the vulnerable people, whose houses were to be torn down on 13.07.2015. It was noted that pursuant to the European Convention for the Protection of Human Rights and Fundamental Freedoms and the ECHR case law, the absence of measures taken by the authorities in such a situation would likely lead to a violation of Article 8 of the Convention (right to respect for private and family life and housing).
The Ministry of Regional Development and Public Works (MRDPW) received via unofficial channels a letter from a secretary of chamber at ECHR in Strasbourg to Daniela Mikhaylova, attorney-at-law, in connection with a petition submitted by her, whereby a request was made for submission of additional information by the Government of Bulgaria, in relation to measures taken to ensure accommodation and support for the vulnerable individuals among them, as well as information whether the measures planned envisaged separation of children from their parents. Letters were also received from the Ministry of Labour and Social Policy and the State Agency for Child Protection containing requests not to proceed with the compulsory demolition of illegal buildings in Kremikovtzi quarter of Gurmen municipality, until the problem with accommodation of the families with children would be resolved. With regard to this the NCCD was ordered to postpone temporarily the actions for compulsory demolition of illegal buildings.
In view of the above, the start of the actions on enforcement of both orders referred to was postponed by letters under NCDD ref Nos BD-1944-04-855/13.07.2015 and BD-1946-04-854/13.07.2015 pending the receipt of information on accommodation of the families affected from the competent bodies – the mayor of Gurmen municipality, the Ministry of Labour and Social Policy and the State Agency for Child Protection and the deadline for enforcement thereof was set at 31.07.2015.
In view of the lack of legal competence on the part of MRDPW and NCCD for providing information to the European Court, a letter was sent on 13.07.2015 to the competent institutions with a request to provide information in accordance with their legally prescribed responsibilities and duties.
By letter of 17.07.2015 the European Court of Human Rights refused to impose an interim measure for suspending enforcement of the order to demolish the dwellings/houses of the petitioners and ordered them to inform it by 31.07.2015 whether they would like to keep their petitions. Failing to do so the petitions would be dropped without further notice.
By the end of July 2015 a total of 22 demolition orders were planned for enforcement, including both postponed demolition orders, the enforcement deadline for which had been extended until 31.07.2015. In view of the fact that those illegal buildings might be the only dwellings owned by the families occupying them and the addressees of the demolition orders were locals – individuals, whose permanent address registration is in Gurmen municipality, it is within the competence of the municipality mayor to ensure an adequate social service, by making available accommodation for temporarily housing to the residents of the illegal buildings.
To date NCCD has not received the data requested from the mayor of Gurmen municipality concerning the accommodation of the residents of the illegal buildings in alternative houses. Therefore the enforcement deadline for the demolition orders related to the illegal buildings was extended until 17:30 hrs. on 31.08.2015.
In connection with the upcoming enforcement of the 22 demolition orders referred to above the NCCD requested by letter under its reg. No BD-1242-04-926/16.07.2015 from the mayor of Gurmen municipality to submit without delay to NCCD a time schedule for providing temporary accommodation of residents of the illegal buildings, in order to specify the starting date for compulsory demolition of the illegal buildings.
Upon receipt of the information, requested from the mayor of Gurmen municipality, NCCD will specify the dates and hours for enforcement of the orders.
A report by the Minister of Regional Development and Public Works was reviewed at a working meeting of the Council of Ministers, held on 22.07.2015 and a decision in principle was made concerning the actions, which should be taken in connection with the illegal construction found in the Padarkata area on the territory of Marchevo village, Kremikovtzi quarter, Gurmen municipality, namely:
1. In view of the enforcement of the demolition orders concerning illegal buildings that have entered into effect and with the aim to protect to a maximum degree the safety and health of the people affected by the process, the mayor of Gurmen municipality must take immediate action for ensuring housing and accommodation of the residents of the illegal buildings and their families in appropriate living and healthy conditions.
2. The Ministry of Labour and Social Policy, the State Agency for Child Protection and the regional governor of Blagoevgrad region must render to the mayor of Gurmen municipality full support for taking the actions under item 1.
3. After completing the actions under item 1 the director of NCCD must proceed with the compulsory demolition of the buildings erected illegally in the Padarkata area on the territory of Marchevo village, Kremikovtzi quarter, Gurmen municipality.
A new report was presented by the Minister of Regional Development and Public Works at a working meeting of the Council of Ministers, held on 29.07.2015, whereby information and a report were provided under ref. No 06-00-57/28.07.2015 from the governor of Blagoevgrad region concerning the actions taken in connection with accommodation of the residents of the illegal buildings in appropriate living and healthy conditions in the Padarkata area in the territory of Marchevo village, Kremikovtzi quarter, Gurmen municipality, in fulfilment of item 2 of the decision of the Council of Ministers as of 23.07.2015. The following decisions in principle were taken at the meeting on 29 July:
1. The mayor of Gurmen municipality must ensure housing and accommodation of the residents of the illegal buildings and their families in appropriate living and healthy conditions and if necessary to take into account the real properties, offered by the governor of Blagoevgrad region in Skrebatno village, Gurmen municipality and Debren village, Gurmen municipality.
2. The mayor of Gurmen municipality must offer accommodation to the individuals affected in accordance with the declarations, approved by the municipal council and submit without delay written evidence thereof to the governor of Blagoevgrad region and the director of NCCD in order to be proceeded with the compulsory demolition of the buildings erected illegally in the Padarkata area in the territory of Marchevo village, Kremikovtzi quarter, Gurmen municipality,
In regard to the allegations of premeditation in the actions of NCCD and discriminatory attitude vis-a-vis the Roma community, it must be noted that the information about all demolition orders concerning illegal buildings that have entered into effect, issued by NCCD bodies, as well as of the actions taken to enforce them is publicly available at the NCCD website.
With the view of ensuring transparency of the actions of NCCD for demolition of illegal buildings, since 10.10.2012 a public register of the demolition orders issued by NCCD bodies and concerning illegal buildings that have entered into effect, has been set up and is regularly updated by the 10th day of each new month.
As evident from the public register, out of a total of 6,080 demolition orders that have entered into effect more than 4,530 illegal buildings were torn down and about 1,550 have not been enforced yet.
When instituting proceedings for demolition of illegal buildings the NCCD as an administrative body has no purpose in ascertaining the origin or ethnic background of the perpetrators of illegal construction, but aims exclusively and only to uphold the legal order, established in the interests of society and the state.
In view of the above allegations an analysis was made of the 6,080 demolition orders that have entered into effect and it was found that only about 530 of them concern illegal construction by perpetrators of Roma origin. 260 of these demolition orders were enforced and a relatively small portion of demolished illegal buildings were positioned into differentiated Roma neighbourhoods.
As evident from the above, the allegations concerning premeditation in the actions of the Bulgarian side and of discriminatory attitude vis-a-vis the Roma community in this country are groundless and not backed by any evidence.
The actions of NCCD are in compliance with upholding the legal order, established in the interests of society and the state, where the NCCD is obliged to enforce all demolition orders concerning illegal buildings that have entered into effect, irrespective of their locations and of the ethnic background of the perpetrators.
When discharging their duties the bodies of the executive authority and the citizens must refrain from behaviour which is aimed at circumventing and non-performaning of applicable legal provisions, because in its legal nature that would constitute illegal behaviour, any tolerance of which would have a negative impact on the disciplining effect of the law achieved, which in turn would create an attitude of disrespect for the same and prerequisites for its violation by the citizens and society.
MRDPW and NCCD firmly reject any allegations of “forced evictions” and refute any suggestions of forethought and bias in the lawful execution of the activities, assigned to them in accordance with applicable Bulgarian legislation. Our opinion is that the information provided is incorrect and aimed at undermining the image of NCCD and MRDPW, as bodies of the executive authority in the Republic of Bulgaria, in respect of the lawful execution of the functions and responsibilities, assigned to them.