SKOKANDIĆ v. CROATIA
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicant, Ms Izabel Skokandić, is a Croatian national who was born in 1965 and lives in Žrnovo. She was represented before the Court by Mr I. Surjan, a lawyer practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 19 April 2004, after obtaining all the relevant permits from the competent domestic authorities, the applicant applied to the Korčula Office of the Dubrovnik State Administration (Ured državne uprave u Dubrovačko-neretvanskoj županiji, Ispostava u Korčuli, hereinafter “the Korčula Office”) for a permit for the construction of a house in Žrnovo. 5. On 3 August 2004 the applicant was granted a construction permit, and this decision became final on 26 August 2004. 6. During the building work, on 24 May 2005, a building inspector of the Ministry of Ecology, Spatial Planning and Construction (Ministarstvo zaštite okoliša, prostornog uređenja i graditeljstva, hereinafter “the Ministry”) carried out an on-site inspection and, after examining the construction permit, found no irregularities in the work. 7. On 21 June 2005 a certain M.C. asked the Ministry to carry out a further inspection of the applicant’s construction work and her construction permit. 8. On 11 July 2005 the construction inspector requested the Ministry to revoke the applicant’s construction permit. He considered that the construction permit had not been properly issued, as it allowed construction in excess of the maximum limit of construction on a single plot of land. The inspector also considered that the construction of a flat roof as authorised by the construction permit would not be permissible under the relevant spatial planning regulations. 9. On 17 August 2005, on the basis of its supervisory review powers, the Ministry revoked the applicant’s construction permit on the grounds that the construction permit had not been issued in accordance with the relevant construction regulations. 10. The applicant challenged this decision before the Administrative Court (Upravni sud Republike Hrvatske) on 26 September 2006, arguing that she had lawfully obtained a construction permit, which had become final and enforceable. The applicant considered that the revocation of the permit was an abuse of powers by the construction inspector, and that there had been no legal grounds to revoke the construction permit for the reasons cited by the Ministry. 11. On 16 May 2007 the Administrative Court dismissed the applicant’s administrative action on the grounds that it appeared from the available evidence that the applicant’s construction permit had been issued contrary to the relevant construction regulations. 12. On 5 October 2007 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), contending that by the revocation of the construction permit the status of her property had become precarious as, although the house could not be demolished, she could never obtain a residential use permit, which was a further permit to be obtained as a necessary condition for a fully lawful use of house. She also considered that she had been made to bear an excessive individual burden as a construction investor. 13. On 25 November 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. 14. On 28 March 2013, following the enactment of the Unlawful Construction Act (Zakon o postupanju s nezakonito izgrađenim zgradama, Official Gazette no. 86/2012), which provided for the possibility of legalisation of unlawful constructions, the applicant requested legalisation of the construction status of her house. 15. In support of that request she submitted a new architect’s plan, for which she paid 15,000 Croatian kunas (HRK; approximately 1960 euros (EUR)). In addition, the Korčula Office ordered her to pay the legalisation fees in the amount of HRK 500 (approximately EUR 60). 16. On 23 October 2014 the Korčula Office granted the applicant’s request and authorised legalisation of her construction. 17. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows: “The right of ownership shall be guaranteed ...“ 18. The relevant provisions of the Construction Act (Zakon o gradnji, Official Gazette nos. 175/2003 and 100/2004) read: “(1) Construction may commence only on the basis of a final construction permit ...” “(1) If an administrative inspection or an inspection conducted by a construction inspector finds that the issuing of a construction permit ... which [is] final ... manifestly breached the substantive provisions of this Act, the Ministry shall revoke that permit on the basis of its supervisory rights ...” “A decision on revocation based on the [Ministry’s] supervisory rights may be issued within one year of the date of finality of the act being revoked.” 19. The relevant provision of the State Administration System Act (Zakon o sustavu državne uprave, Official Gazette nos. 75/1993, 92/1996, 48/1999, 15/2000, 127/2000, 59/2001, 190/2003, 199/2003 and 79/2007), as in force at the material time, read as follows: “Damage caused to a citizen, legal entity or any other party by an illegal or improper act on the part of a State administration body, local administration body or any legal entity with public powers in the exercise of its authority shall be redressed by the Republic of Croatia.” 20. The same provision is contained in section 14 of the amended State Administration System Act (Official Gazette nos. 150/2011 and 12/2013). 21. In decision no. U-III-2314/06 of 21 February 2007 the Constitutional Court stressed: The Constitutional Court points out that the State Administration System Act establishes a system of responsibility of the State on the basis of the principle of causality (causa) and not on the basis of guilt (culpa). The primary and immediate responsibility of the State for damage caused by an illegal or improper conduct on the part of a State administration body or a legal entity with public powers is an expression of the principle of rule of law as one of the highest values of the Croatian constitutional order set out in Article 3 of the Constitution.” 22. On 13 February 2008, in decision no. U-III-822/2005, the Constitutional Court further stated by way of clarification: “[Section 13] provides for primary and immediate responsibility of the Republic of Croatia irrespective of the level of governance (state, county, municipality or legal entity with public powers) at which damage has been caused by illegal or improper conduct. Such a responsibility of the State, which was also accepted in judicial practice (see Supreme Court decision no. Rev-903/03-2 of 4 January 2005), is an expression of the rule of law as one of the highest values of the Croatian constitutional order set out in Article 3 of the Constitution. The Constitutional Court points out that the State Administration System Act establishes a system of responsibility on the basis of the principle of causality and not on the basis of guilt (culpa).” 23. The Government provided a judgment of the Rijeka Municipal Court (Općinski sud u Rijeci), no. P-4553/11 of 30 March 2012, final on 27 February 2014, by which, on the basis of the Constitutional Court’s case-law (see paragraphs 21-22 above), a civil action was allowed and damages awarded under section 13 of the State Administration System Act for the local administration’s errors in authorising a construction permit.