FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 24088/07
by Krešimir PTIČAR
against Croatia
The European Court of Human Rights (First Section), sitting on 6 January 2011 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 2 May 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Krešimir Ptičar, is a Croatian national who was born in 1939 and lives in Zagreb. He was represented before the Court by Ms S. Bezbradica, an advocate practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is the owner of a house in Zagreb. During 1974 and 1975 his neighbours, V.B. and J.Ž., built a house and a garage on the adjacent plot of land, which in his opinion destabilized the foundations of his house.
1. Administrative proceedings
(a) The administrative proceedings concerning the alleged illegal construction
On 10 May 1975 the applicant instituted administrative proceedings before the first instance administrative authority competent for building inspection (hereafter - “the Building Inspectorate”) arguing that: (1) his neighbours had significantly departed from building regulations for row houses in that: (a) their house was not leaning against his, there was a gap between the walls, (b) they had not isolated the foundations of the two houses, and (c) their house was one metre lower than his; and (2) that they had departed from the building permit granted to them on 10 November 1972 by building an underground garage.
It appears that the case-file was lost.
Therefore, on 18 September 1996 the applicant re-submitted his request.
As the Building Inspectorate did not render a decision on his request within the statutory time-limit of sixty days, on 16 January 1997 the applicant lodged an appeal for failure to respond (žalba zbog šutnje administracije) with the competent Ministry.
On 20 February 1997 the Building Inspectorate issued a decision ordering the applicant’s neighbours to make the necessary modifications in order to comply with the building permit or, otherwise, to apply for a new building permit. This decision was not served on the applicant.
Given that the Ministry also failed to decide on the applicant’s appeal for failure to respond within the statutory time-limit of sixty days, on 2 April 1997 the applicant brought an action for failure to respond (tužba zbog šutnje administracije) against the Ministry in the Administrative Court (Upravni sud Republike Hrvatske).
On 10 July 1997 the Ministry issued a decision discontinuing the appellate proceedings because it found that the Building Inspectorate had in the meantime decided on the applicant’s request of 18 September 1996.
On 28 July 1997, the applicant modified his administrative action of 2 April 1997 and challenged the Ministry’s decision of 10 July 1997.
On 4 November 1998 the Administrative Court adopted a judgment whereby it quashed the Ministry’s decision of 10 July 1997. It held that since the Building Inspectorate’s decision of 20 February 1997 had not been served on the applicant, the Ministry could not have dismissed his appeal of 16 January 1997.
Since, following the judgment of the Administrative Court, the Ministry failed to issue a new decision on his appeal of 16 January 1997 within the statutory time-limit of sixty days, on 12 April 1999 the applicant requested the Administrative Court to decide on his appeal, that is to say, act as a court of full jurisdiction and issue its own decision replacing that of the Ministry, in accordance with the relevant provisions of the Administrative Disputes Act.
On 30 April 1999 the Ministry issued a decision ordering the Building Inspectorate to issue a new decision on the applicant’s request of 18 September 1996 and serve it on him.
On 2 October 2000 the Building Inspectorate issued a decision ordering the applicant’s neighbours to demolish the garage and certain parts of the house erected on their land which had been built outside the limits of the building permit. The decision was served on the applicant who did not appeal against it. According to the Construction Act, that decision was immediately enforceable.
On 7 February 2001 the Administrative Court dismissed the applicant’s request of 12 April 1999, finding that the Ministry had in the meantime (on 30 April 1999) issued the decision sought. On 26 March 2001 the applicant lodged a constitutional complaint against the Administrative Court’s decision, which the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed on 11 October 2001.
On 20 July 2002 the competent Ministry issued a decision dismissing an appeal by the applicant’s neighbours and upheld the first-instance decision, which thereby became definitive (konačna). Shortly afterwards, the applicant’s neighbours brought an action in the Administrative Court contesting the Ministry’s decision.
On 4 May 2006 the Administrative Court issued a judgment dismissing the action of the applicant’s neighbours. The first-instance decision of 2 October 2000 thereby became final (pravomoćna). The Administrative Court’s judgment also was served on the applicant as a third (interested) party (zainteresirana strana).
It appears that to date no measures have been taken to enforce the first-instance decision of 2 October 2000.
(b) The proceedings concerning the applicant’s petition for reopening
On 23 October 2000, following the Building Inspectorate’s decision of 20 October 2000, the applicant filed a petition for reopening of the above administrative proceedings, arguing that he had not been heard by the building inspector in those proceedings.
On 25 April 2001 the Building Inspectorate declared inadmissible the applicant’s petition for reopening. On 8 May 2001 the applicant appealed against that decision to the Ministry.
On 14 February 2003 the Ministry allowed the applicant’s appeal of 8 May 2001, quashed the first instance decision of 25 April 2001 and remitted the case to the Building Inspectorate.
On 6 November 2009 the Building Inspectorate again declared the applicant’s petition inadmissible.
Following an appeal by the applicant, on 23 November 2009 the Ministry issued a decision whereby it first quashed the first-instance decision for lack of jurisdiction and then, having found that it was the competent authority to decide on the applicant’s petition for reopening, itself declared that petition inadmissible. The Ministry held that the applicant was not a party to the administrative proceedings and was thus not entitled to lodge a petition for their reopening.
On 7 December 2009 the applicant brought an action in the Administrative Court challenging the Ministry’s decision. It would appear that the proceedings are currently pending before that court.
2. The proceedings following the applicant’s request for the protection of the right to a hearing within a reasonable time
On 25 February 2009 the applicant lodged a request for the protection of the right to a hearing within a reasonable time under the Courts Act with the Supreme Court (Vrhovni sud Republike Hrvatske), complaining about the length of the proceedings concerning his petition to reopen the administrative proceedings.
On 12 November 2009 the Supreme Court declared the applicant’s request inadmissible on the ground that, under the case-law of the European Court of Human Rights, the guarantees of Article 6 § 1 of the Convention, including the right to a hearing within a reasonable time, did not apply to proceedings concerning a petition for reopening of a case.
On 10 December 2009 the applicant lodged a constitutional complaint against the Supreme Court’s decision.
It would appear that the proceedings are currently pending before the Constitutional Court.
3. The applicant’s first application to the Court
On 3 December 2001 the applicant lodged his first application (no. 4016/02) with the Court. He complained under Article 6 § 1 of the Convention about the unfairness of the administrative proceedings concerning the alleged illegal construction. He also complained under Article 13 of the Convention claiming that the Administrative Court’s decision of 7 February 2001 and the Constitutional Court’s decision of 11 October 2001 deprived him of an effective remedy for the protection of his rights. On 8 November 2002 the Court, sitting in a Committee of three Judges, adopted a decision declaring that application inadmissible as manifestly ill-founded.
B. Relevant domestic law and practice
1. The Administrative Procedure Act
(a) Relevant provisions
The relevant provisions of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia 47/1986 (consolidated text), and Official Gazette of the Republic of Croatia no. 53/1991) provide as follows:
Section 49 defines a party to administrative proceedings as a person at whose request the proceedings have been instituted, a person against whom the proceedings have been brought or any other person who is entitled to participate in the proceedings in order to protect his or her rights or interests.
Section 278(1) provides that the authority in charge of administrative enforcement shall, of its own motion or at the request of a party, issue an enforcement order. Such an order shall declare that the decision to be enforced has become enforceable and determine the method of the enforcement.
Section 278(2) provides, inter alia, that the authority in charge of administrative enforcement shall issue an enforcement order with a view to enforcing a decision rendered of its own motion without delay and at the latest within 30 days after such a decision became enforceable.
The other relevant provisions of the Administrative Procedure Act, in particular those governing an appeal for failure to respond (žalba zbog šutnje administracije), are set out in Rauš and Rauš-Radovanović v. Croatia (dec.), no. 43603/05, 2 October 2008.
(b) The case-law of the Administrative Court
In its judgment no. Us-3746/1997 of 11 November 1998 the Administrative Court held that the owner of a neighbouring plot of land who filed a report with the Building Inspectorate had a status of a party in the inspection proceedings within the meaning of section 49 of the Administrative Procedure Act and could, for example, lodge an appeal for failure to respond in accordance with the same Act.
2. The Administrative Disputes Act
(a) Relevant provisions
The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/1977, and Official Gazette of the Republic of Croatia nos. 53/1991, 9/1992 and 77/1992) governing an action for failure to respond, tužba zbog šutnje administracije) are set out in Rauš and Rauš-Radovanović, cited above.
The relevant provisions of the same Act governing an “action against an unlawful act” (tužba za zaštitu od nezakonite radnje) are set out in Hackbarth v. Croatia (dec.), no. 27897/02, 3 November 2005.
(b) The case-law of the Administrative Court and the Supreme Court
In its judgment no. Us-772/81 of 11 November 1981 the Administrative Court held that “a failure to respond” (šutnja administracije) existed in the administrative enforcement proceedings when the competent administrative authority, following an application by the party, did not issue an enforcement order within the statutory time-limit.
In its judgment Us-2387/1995 of 7 May 1998 the Administrative Court held that a party could rely on the relevant provisions of the Administrative Disputes Act governing an action for failure to respond, in case the competent administrative authority did not issue an enforcement order within the statutory time-limit.
In its judgments nos. Us-1865/1979 of 28 November 1979 and Us-2099/89 of 21 September 1989 the Administrative Court held that failure of the administrative authorities to carry out their own enforcement order constituted an “unlawful factual act” within the meaning of the Administrative Disputes Act against which the aggrieved party could bring an “action against an unlawful act”. In its decision no. Gž-9/1993 of 6 April 1993 the Supreme Court reached the same conclusion.
3. The Construction Act
The Construction Act (Zakon o gradnji, Official Gazette nos. 52/1999, 75/1999, 117/2001 and 47/2003), which was in force at the material time, provided as follows:
Section 85 provided that when a building inspector found a breach of the relevant regulations, it could issue a decision even without hearing the parties.
Section 96(7) provided that an appeal lodged against a decision of a building inspector did not postpone its enforcement.
Section 99(1) provided that a decision of a building inspector could not be enforced ten years after it had become definitive.
4. The Courts Act
The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007 and 113/2008), which entered into force on 29 December 2005, governing a request for the protection of the right to a hearing within a reasonable time are set out in Pavić v. Croatia, no. 21846/08, § 16, 28 January 2010.
COMPLAINTS
1. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 thereto about the length of the above administrative proceedings.
2. He further complained, also under Article 6 § 1 of the Convention, about the unfairness of the above administrative proceedings concerning the alleged illegal construction.
3. The applicant also complained under Article 13 of the Convention that he had not had an effective remedy to challenge the Administrative Court’s decision of 7 February 2001 nor to enforce the Building’s Inspectorate decision of 2 October 2000.
4. Lastly, the applicant complained under Article 3 and Article 8 of the Convention that he could not live in his house for a long time because of the hostile behaviour of his neighbours.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention on account of the length of proceedings
The applicant complained that the length of the administrative proceedings concerning the alleged illegal construction as well as the length of the proceedings concerning his petition for reopening, had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
On 9 April 2010, in his reply to the Government’s observations, the applicant also complained that the length of the proceedings complained of had infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1. That Article reads as follows:
“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.”
The Government contested these arguments.
The Court considers, having regard to its case-law (see Zanghì v. Italy, 19 February 1991, § 23, Series A no. 194‑C), that the applicant’s length complaint falls to be examined under Article 6 § 1 of the Convention only.
1. The parties’ arguments
(a) The Government
The Government first submitted that Article 6 of the Convention was not applicable to the proceedings concerning the applicant’s petition for reopening of the proceedings of 23 October 2000.
Even if Article 6 was applicable to those proceedings, the Government noted that the Constitutional Court had not yet decided on the applicant’s constitutional complaint lodged against the Supreme Court’s decision of 12 November 2009 and that therefore the proceedings following the applicant’s request for protection of the right to a hearing within a reasonable time were still pending. The applicant’s length complaint was therefore premature.
In the Government’s view, Article 6 of the Convention applied only to the administrative proceedings concerning the alleged illegal construction, which had ended on 4 May 2006 by the judgment of the Administrative Court dismissing the action of the applicant’s neighbours. However, that was more than six months before the applicant lodged his application with the Court on 2 May 2007.
(b) The applicant
The applicant submitted that, since he had filed his petition for reopening of the proceedings within the statutory time-limit for an appeal against the first-instance decision of 2 October 2000, the competent administrative authorities should have examined his petition as an appeal. That being so, Article 6 was applicable to the proceedings instituted by his “petition for reopening” of 23 October 2000.
As regards the proceedings concerning the illegal construction, the applicant submitted that the Building Inspectorate’s decision of 2 October 2000, ordering the applicant’s neighbours to demolish the garage and certain parts of the house erected on their land which had been built outside the limits of the building permit, had never been enforced. In these circumstances, it could not have been argued, as the Government did, that the proceedings complained of had ended on 4 May 2006. Consequently, he had indeed complied with the six-month rule.
2. The Court’s assessment
(a) The proceedings concerning the applicant’s petition for reopening
The Court reiterates that, according to the established case-law, Article 6 of the Convention does not apply to the proceedings concerning a petition for reopening of a case (see, for example, Rudan v. Croatia (dec.), no. 45943/99, 13 September 2001). As to the applicant’s argument that his petition for reopening should have actually been examined as an appeal against the first-instance decision of 2 October 2000, the Court reiterates that it is in the first place for the national authorities to interpret domestic law and that the Court will not substitute its own interpretation for theirs in the absence of arbitrariness (see, for example, Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII).
It follows that in so far as the applicant complains about the length of the proceedings concerning his petition for reopening of 23 October 2000, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 thereof and must be rejected pursuant to Article 35 § 4.
(b) The proceedings concerning the alleged illegal construction
The Court notes that these proceedings ended on 4 May 2006 by the judgment of the Administrative Court dismissing the action of the applicant’s neighbours whereas the applicant lodged his application with the Court on 2 May 2007, that is, more than six months later. As to the applicant’s argument that he had complied with the six-month rule because the Building Inspectorate’s decision of 2 October 2000 had never been enforced, the Court’s notes that while enforcement proceedings must normally be regarded as the second stage of the proceedings (see Di Pede v Italy, 26 September 1996, § 24, Reports of Judgments and Decisions 1996‑IV; and Zappia v. Italy, 26 September 1996, § 20, Reports of Judgments and Decisions 1996‑IV) this is so only when the enforcement proceedings were actually instituted. However, in the present case the Building Inspectorate has never issued an enforcement order with a view to carrying out its decision of 2 October 2000, nor did the applicant ever request it to do so. What is more, before the Court the applicant never complained about the non-enforcement of the decision in question.
It follows that in so far as the applicant complains about the length of the proceedings concerning the alleged illegal construction, this part of the application is inadmissible for non-compliance with the six-month rule under Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4 thereof.
B. Alleged violation of Article 6 § 1 of the Convention on account of the unfairness of proceedings
The applicant further complained, also under Article 6 § 1 of the Convention, that the administrative proceedings concerning the alleged illegal construction had been unfair. In particular, he complained that he had not been heard in those proceedings.
The Court notes that this complaint is substantially the same as the one raised by the same applicant in the application no. 4016/02, which was declared inadmissible as manifestly ill-founded by the Court on 8 November 2002, and that it contains no relevant new facts. It is therefore inadmissible under Article 35 § 2 (b) of the Convention and must be rejected pursuant to Article 35 § 4 thereof.
C. Alleged violations of Article 13 of the Convention
The applicant also complained that he did not have an effective remedy against the Administrative Court’s decision of 7 February 2001 or against the failure of the administrative authorities to enforce the Building Inspectorate’s decision of 2 October 2000.
The Court notes that in so far as this complaint concerns the alleged lack of an effective remedy to contest the Administrative Court’s decision of 7 February 2001, it is substantially the same as the one raised by the same applicant in the application no. 4016/02, which was declared inadmissible as manifestly ill-founded by the Court on 8 November 2002, and that it contains no relevant new facts. It is therefore inadmissible under Article 35 § 2 (b) of the Convention and must be rejected pursuant to Article 35 § 4 thereof.
To the extent that this complaint concerns the alleged lack of effective remedies to enforce the Building Inspectorate’s decision of 2 October 2000, the Court first reiterates that Article 13 may not be relied on in isolation but only in relation to some other right or freedom set forth in the Convention. However, in the present case the applicant did not claim that any of his rights or freedoms guaranteed by the Convention has been violated by non-enforcement of the decision of 2 October 2000.
In any event, the Court notes that under section 278(1) of the Administrative Proceedings Act the applicant could have applied to the Building Inspectorate to issue an enforcement order with a view to enforcing the decision of 2 October 2000. It further notes that under the case-law of the Administrative Court the failure of administrative authorities to issue an enforcement order within the statutory time-limit constitutes “a failure to respond” against which an aggrieved party may rely on remedies provided in the Administrative Disputes Act, and that the failure to carry out the enforcement order once issued amounts to “an unlawful factual act” within the meaning of the same Act against which a specific action lies. The Court has already found these remedies to be effective (see Rauš and Rauš-Radovanović, cited above, and Hackbarth, cited above). However, the Court notes that the applicant never asked the Building Inspectorate to enforce its own decision of 2 October 2000. He can still do so because the enforcement will, pursuant to section 99(1) of the Construction Act, become time-barred only on 20 July 2012. In these circumstances, it cannot be argued that the applicant did not have at his disposal an effective remedy against the non-enforcement of the decision in question. It follows that this complaint is inadmissible under Article 35 § 3 of the Convention as manifestly ill-founded and must therefore be rejected pursuant to Article 35 § 4 thereof.
D. Other alleged violations of the Convention
Lastly, the applicant complained under Article 3 and Article 8 of the Convention that he had been subject to inhuman treatment leading to a violation of his right to home. He explained that he had been molested and verbally abused by his neighbours and thus had not lived in his house for a long time.
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 considers that the present case does not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible under Article 35 § 3 as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy