Communicated on 23 March 2015
FIFTH SECTION
Application no. 66721/14
Zdenka PERŠUH
against Slovenia
lodged on 6 October 2014
STATEMENT OF FACTS
The applicant, Mrs Zdenka Peršuh, is a Slovenian national, who was born in 1967 and lives in Loče. She is represented before the Court by Mrs M. Končan Verstovšek, a lawyer practising in Trzin.
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 1/3 of the plot of land no. 121/0 in the cadastral municipality of Vrhloga and her mother is the owner of 2/3 of that plot.
On 10 February 1999 the Municipality of Slovenska Bistrica (hereinafter “the Municipality”) issued the Ordinance on Classification of Municipal Roads of the Municipality of Slovenska Bistrica (hereinafter “the Ordinance”) and classified a public road on that plot.
The Municipality neither concluded a contract (of sale) with the applicant or her mother nor instituted expropriation proceedings in order to obtain the ownership of the plot. The applicant was not informed of the Ordinance and the classification of a public road on her land.
On 19 December 2011 the Municipality issued an attestation regarding the plot on the applicant’s request. The attestation showed that a public road crossing her land existed since 1999. Only then did the applicant learn about the Ordinance and the classification.
On 23 January 2012 the applicant sent a letter to the Locality of Črešnjevec requesting the deletion of the classification of the public road in so far as it concerned her land.
On 19 March 2012 the Locality of Črešnjevec informed the applicant that they did not agree with her request, as the road was necessary for access to a neighbouring property.
On 12 September 2012 the applicant lodged an initiative with the Constitutional Court for the review of constitutionality and legality of the Ordinance, in so far as it designated the road, crossing her land, as a public road. She argued that, contrary to Article 33 and 69 of the Constitution and the Law on Public Roads, the Municipality interfered with her right to property, as it failed to conclude a contract (of sale) or carry out expropriation proceedings to obtain the land and offer compensation in kind, or monetary compensation, for the expropriation. Further, she claimed that she first learnt about the adverse consequences of the Ordinance on 19 December 2011 when she obtained the attestation showing that a public road existed on her land.
On 12 August 2013 the Municipality submitted its observations on the applicant’s initiative, admitting that a contract was still not concluded with the applicant and that expropriation proceedings were not carried out. However, the Municipality argued that the initiative could be lodged within one year from when the Ordinance came into force, or from when the applicant found out about its adverse consequences. It argued that the applicant’s initiative was not lodged in time, as the applicant did not explain and prove those adverse consequences. Moreover, it held that the applicant had twelve years, since the enactment of the Ordinance, to obtain information about the state of her land.
On 28 August 2013 the applicant lodged her reply to the above submissions. She argued that she could not have known about the Ordinance before 2011 as the Municipality had been acting unlawfully when enacting it in 1999. They had not informed her and had not offered her any compensation for the taking of the property. She found out about the state of facts only in 2011 when the attestation regarding the land was issued at her request. Only then she found out that a public road was crossing her land and that therefore she could not freely dispose of it, use it in its entirety, or fence it. She alleged that since then she suffered adverse consequences on a daily basis as she had to allow others to walk or drive over that part of her land and she had to maintain the road. She also argued that it was not her duty to check regularly if the Municipality issued any ordinances which would interfere with her property, but it was for the Municipality to conclude an agreement with the owner in such a case. Therefore, the fact that she found out about the Ordinance only twelve years after its enactment should not be to her detriment. She was thus convinced that she had lodged the initiative within the (subjective) one-year term, as she had lodged it within one year since she had found out about the adverse consequences in 2011.
On 7 April 2014 the Constitutional Court rejected the initiative as being lodged out of time. It held that according to Article 24 of the Constitutional Court Act an initiative could be lodged within one year since the enactment of the impugned act (objective term) or within one year since the initiator found out about the adverse consequences of the act (subjective term). It further held that for the use of the subjective term the initiator needed to submit convincing reasons for the allegation about when having found out about the adverse consequences and that the interference could not have been known earlier. It concluded that the applicant, who had claimed to have become aware only in 2011, had not fulfilled the conditions for the application of the subjective term and therefore rejected the initiative.
B. Relevant domestic law
The following provisions of the Constitution of the Republic of Slovenia are relevant to the present case:
Article 33 (Right to private property and inheritance)
“The right to private property and inheritance is ensured.”
Article 69 (Expropriation)
“Ownership of property may be seized or restricted in the public interest for compensation in kind or monetary compensation under the conditions provided for by law.”
The relevant provisions of the Constitutional Court Act read as follow:
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 24
“...
(3) When an executive regulation or a general act issued for the exercise of public authority is effective immediately and interferes with rights, legal interests or legal position of a petitioner, an initiative may be filed within one year after its entry into force or within one year from the date the petitioner learned about its adverse consequences.”
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.”
...”
The relevant provisions of the Spatial Planning Act read as follow:
Article 92
“(1) Ownership of the property may be taken against monetary compensation or compensation in kind...”
Article 97
“(1) The expropriation beneficiary can submit a proposal for expropriation in case of failing to obtain property by entering into a contract, within 30 days after service of the offer for the purchase of the property to the owner.”
...
COMPLAINTS
The applicant complains under Article 1 of Protocol No. 1 to the Convention that the Municipality of Slovenska Bistrica de facto expropriated her property by classifying a public road on her plot of land without awarding her any compensation.
The applicant also complains about the lack of the effective access to court as regards the proceedings before the Constitutional Court.
QUESTIONs TO THE PARTIES
1. Did the classification of a public road on the applicant’s property 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?
2. Did the interference amount to a deprivation of property?
3. Was the interference with the applicant’s right to the peaceful enjoyment of possessions/deprivation of property lawful and proportionate (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999‑II and The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301‑A)?
4. Did the applicant have a fair hearing in accordance with Article 6 § 1 of the Convention? In particular, did the Constitutional Court’s decision amount to a restrictive application of the law to the extent that it breached the applicant’s right to effective access to court?
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