Communicated on 16 June 2014
FIFTH SECTION
Application no. 6368/10
Tomislav PERME
against Slovenia
lodged on 22 January 2010
STATEMENT OF FACTS
The applicant, Mr Tomislav Perme, is a Slovenian national, who was born in 1939 and lives in Ljubljana - Polje.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the owner of two plots of land, nos. 716 and 717, in the cadastral municipality of Stična. These plots are on one side adjacent to plot no. 718 recorded in the land register as public property. The applicant claims that plot no. 718 was part of his property, but it was used as a public footpath and administered by the Municipality of Ivančna Gorica.
In 2003 the Municipality of Ivančna Gorica (hereinafter “the Municipality”) prepared a development plan for the neighbouring area which provided, among other, that a part of the applicant’s plots would be purchased by the Municipality in order to construct a new road and to regularise the records in the land register.
In 2005 the Municipality widened the path and covered it with asphalt.
On 9 April 2005 the applicant wrote a letter to the Municipality and complained that the new road crossed both of his plots and that a number of bigger trees that used to grow on the plots had been cut and removed from his property. The applicant requested that his property be restored to its original state and compensation paid for the damage, or, alternatively, that compensation be paid to him for the expropriated property, as well as for disturbing this property.
On 14 April 2005 the Municipality replied that the road in question had been constructed on the land corresponding to plot no. 718. The Municipality also assured the applicant that none of his trees had been cut and removed by their workers in the process of road construction.
On 15 April 2005 the applicant lodged a criminal complaint against an unknown perpetrator in connection with the cutting and theft of approximately ten of his trees, indicating the names of a few possible suspects. However, the police were unable to find the perpetrator.
However, in 2007 the Municipality acknowledged that the public road extended to the applicant’s plots and offered to purchase the land at issue.
On 10 November 2007 the applicant wrote a letter to the Municipality, requesting that a land survey be made in order to determine the surface area of his plots that had been converted to the road and thus had to be purchased by the Municipality.
On 11 February 2008 the applicant was invited by a land survey company to attend a field inspection in order to establish the precise boundary line between plot no. 718 and his own plots nos. 716 and 717 according to the Municipality development plan from 2003.
On the same day the applicant replied that such a boundary could no longer be precisely established as the Municipality had meanwhile built a road crossing his plots of land. The field inspection should accordingly establish the extent to which the road interfered with the applicant’s property. The applicant did, however, attend the field inspection, but refused to sign the land surveyor’s record of marking out of the boundaries between the plots.
On 4 March 2008 the applicant again requested the Municipality to establish the precise surface area of the parts of his plots on which the road had been laid.
On 20 March 2008 the Municipality informed the applicant that according to their data the public road extended to 125 m2 of the applicant’s plots. However, this estimate was based on the data in the development plan, and not on an actual field measurement. The Municipality also informed the applicant that in order to implement the 2003 development plan, they would need another 738 m2 of his plots.
The applicant disagreed with the estimate, having measured the area himself and established that only the asphalt part of the road extended to 155 m2 of his plots.
An appraisal of the value of the land was subsequently made and the Municipality offered the applicant purchase price of 60 euros (EUR) per square metre. The applicant, however, requested EUR 485 per square metre. The Municipality was not prepared to accept this price, so the sale did not take place.
On 16 May 2008 the applicant lodged an initiative for the review of constitutionality and legality of the Ordinance on Classification of Municipal Roads of the Municipality of Ivančna Gorica (hereinafter “the Ordinance”) in so far as it determined that the road crossing his land was a public road. He complained that the road extended to his two plots nos. 716 and 717. Moreover, the applicant alleged that it was not clear how plot no. 718 had become public property, as it used to be his private property.
Meanwhile, the Municipality continued the process of demarcation of the boundaries between the plots. The applicant disagreed with the boundary as marked by the land surveyor on 11 February 2008, however he refused to challenge this demarcation in judicial proceedings.
On 23 April 2009 the Municipality submitted their observations on the applicant’s initiative for the review of constitutionality and legality of the Ordinance, explaining that while it could be true that the layout of the road had slightly changed during the years and the road extended to the applicant’s plots of land, the Municipality was unable to regularise the situation until the boundaries between the plots were demarcated. The Municipality added that it had already bought all the other private plots on which the public road in question was built.
On 10 June 2009 the regional surveying and mapping authority issued a decision demarcating the boundaries between plot no. 718 and a number of its adjacent plots including plots nos. 716 and 717.
On 15 June 2009 the applicant appealed against the decision before the Ministry of the Environment and Spatial Planning (hereinafter “the Ministry”), complaining that the surveying and mapping authority had in fact changed the boundaries between his plots and the public plot no. 718 without any legal basis.
On 9 July 2009 the Constitutional Court, having found that the road at issue crossed the applicant’s plots, declared the Ordinance unconstitutional, in so far as the road in question was classified as public in the parts in which it crossed the applicant’s plots nos. 716 and 717. Moreover, the court ordered the Municipality to remedy the established unconstitutionality within six months by either concluding a legal transaction to acquire the land from the applicant, expropriate that land or amend the Ordinance and annul the unconstitutional provision.
On 17 December 2009 the Ministry dismissed the applicant’s appeal against the decision demarcating the boundaries.
B. Relevant domestic law
The relevant provisions of the Constitutional Court Act
Article 22
“(1) The procedure for the review of the constitutionality and legality of regulations and general acts issued for the exercise of public authority is initiated by the submission of the written request of an applicant or by a Constitutional Court order on the acceptance of a petition to initiate a review procedure.
(2) The review of the constitutionality and legality of regulations and general acts issued for the exercise of public authority also extends to a review of the conformity of laws and other regulations with ratified treaties and with the general principles of international law.”
Article 48
“(1) If the Constitutional Court deems a law, other regulation, or general act issued for the exercise of public authority unconstitutional or unlawful as it does not regulate a certain issue which it should regulate or it regulates such in a manner which does not enable annulment or abrogation, a declaratory decision is adopted on such.
(2) The legislature or authority which issued such unconstitutional or unlawful regulation or general act issued for the exercise of public authority must remedy the established unconstitutionality or unlawfulness within a period of time determined by the Constitutional Court.”
COMPLAINT
The applicant complains under Article 1 of Protocol No. 1 to the Convention that the Municipality of Ivančna Gorica had de facto expropriated his property by building a public road across his plots of land without awarding him any compensation.
QUESTION TO THE PARTIES
Did the construction of a road crossing the applicant’s property and its subsequent classification as a public road give rise to an interference with the applicant’s right to the peaceful enjoyment of possessions, in breach of Article 1 of Protocol No. 1 to the Convention?
Full & Egal Universal Law Academy