COKARIC AND OTHERS v. CROATIA
Inadmissible
Christos Rozakis
The applicants are 72 inhabitants of the coastal town of Stobreč (see Appendix I), of whom 35 claim to be the owners of real property in the area (see Appendix II). They are represented before the Court by an environmental association named Association for Preserving the Cultural and Natural Heritage Stobreč Epetium (Udruga za očuvanje kulturne i prirodne baštine Stobreč “Epetium”), with its seat in Stobreč and the aim to promote preservation of the environment and of cultural and historical monuments. The respondent Government are represented by their Agent, Ms Š. Stažnik. The facts of the case, as submitted by the parties, may be summarised as follows. Within the framework of a project to protect the Kaštel Bay of the Adriatic Sea, the State is constructing a sewer network, with an outlet near the coastal town of Stobreč. On 12 November 2001 the Ministry of Environment and Zoning (Ministarstvo zaštite okoliša i prostornog uređenja; “the Ministry”) granted the company V.K. a building permit for constructing the sewer outlet in Stobreč. On 29 April 2002 the applicants filed a motion for re-opening of the above administrative proceedings (prijedlog za obnovu postupka) with the Ministry. They claimed not to have been afforded the opportunity to participate in those proceedings, which had violated their constitutional rights and international environmental treaties as the sewer would not be equipped with a proper biological purification system. On 2 August 2002 the Ministry requested the applicants to substantiate their complaints and submit additional documents. The applicants replied on 27 August 2002. On 30 April 2003 the Ministry dismissed the applicants’ motion, finding that they had failed to prove their locus standi or to substantiate their allegations as required by the relevant legislation. On 27 June 2003 the applicants brought an action in the Administrative Court (Upravni sud Republike Hrvatske) against the Ministry’s decision. On 13 January 2005 the Administrative Court quashed the Ministry’s decision. In its judgment, the Administrative Court stated that, due to the fact that they lived in the area of possible negative impact of the building works, the applicants could not have been denied locus standi in the case. Currently, the proceedings concerning the applicants’ request to reopen the administrative proceedings are again pending before the Ministry. On 29 April 2002 the applicants lodged a constitutional complaint, seeking to have the building permit quashed. They submitted that the permit violated some of their constitutional rights, including freedom of movement, as well as the right to work and to protection of health. Moreover, in their constitutional complaint the applicants requested an interim measure in order to stop the ongoing building works. On 30 January 2003 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicants’ constitutional complaint inadmissible for non-exhaustion of legal remedies. On 13 March 2003 the applicants requested the Split Municipal Court (Općinski sud u Splitu) to issue an interim measure in order to stop the building works. On 22 May 2003 the court scheduled an on-site inspection for 29 May 2003. Following the inspection, on 31 July 2003 the court experts submitted an offer, charging 42,000 Croatian kunas (HRK) for their opinion. The applicants never advanced the amount sought; the proceedings are still pending. Sometime in 2003, three of the 72 applicants lodged a civil action with the Split Municipal Court seeking compensation for damage resulting from the construction of the sewer outlet. The proceedings are still pending before the first-instance court. With a view to securing the building site, the police cordoned off the area. On 23 July 2002 several applicants, while swimming, approached the visibly marked area. The police intervened, preventing the applicants from approaching the site. Section 156 of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/91, 73/91, 3/94, 7/96 and 112/99), provides for a so-called ecological action and, insofar as relevant, reads as follows: 1. Everyone may request another person to remove a source of danger, which might cause substantial damage to him or to other persons or to sustain from an activity which causes disturbance or might cause damage... 2. The court shall, at the request of an interested person, order appropriate measures to be undertaken, for prevention of damage or disturbance or removal of the source of danger, at the expense of the possessor of the source of such danger... 3. If damage occurs while performing an activity in the general interest, for which a permit of the competent authority has been obtained, one may seek compensation for such damage as exceeds only the usual limits...” In its decisions Rev 1681/1998-2 of 11 July 2001, the Supreme Court found that the owner of agricultural land near a factory chimney had the right to compensation for damage to his products ruined due to chimney emissions. In its decision Rev 1711/1996-2 of 16 December 1999, the Supreme Court ruled that the owners of a house had the right to compensation for damage suffered due to the construction of a nearby road. The damage they sustained included the drop of the value of their property. Section 49 of the Administrative Procedure Act (Zakon o općem upravnom postupku, Official Gazette nos. 53/1991 and 103/1996) provides that a party to the administrative proceedings is a person, at whose request the proceedings have been instituted, or a person against whom the proceedings have been instituted, or any other person who can participate in the proceedings with a view to protecting his or her rights or interests. Section 218 § 1 of the Administrative Procedure Act provides that in simple matters an administrative body is obliged to issue a decision within a period of one month following the lodging of the party’s request. In more complex cases, an administrative body is obliged to issue a decision within a period of two months after the request was lodged. Section 218 § 2 of the same Act enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal, as if his or her request had been denied. Section 26 § 1 of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/1992 and 77/1992) provides that, if a second-instance authority fails to issue a decision on an appeal by the party within 60 days, and within an additional period of seven days following the repeated request, the party may lodge an action with the Administrative Court as if his or her request had been dismissed. The same applies to the failure of a first-instance authority to issue a decision, if no appeal against that decision is allowed. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows: “(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ... (2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits... (3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”