PTICAR v. CROATIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.