ĐUZEL v. CROATIA
Inadmissible
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković
1. The applicant, Mr Veljko Đuzel, is a Croatian national, who was born in 1959 and lives in Zagreb. He was represented before the Court by Ms L. Kušan, a lawyer practising in Ivanić Grad. 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. The applicant is the owner of a hotel, D., in Baška Voda, a municipality in the coastal part of Croatia, which he bought with a view to first reconstructing it and later on using it commercially. The hotel was built in 1962, according to a building permit issued in the same year, and was registered in the Land Registry. 5. At the relevant time the regulations concerning zoning permits in Baška Voda were the Decision on Adoption of the Makarska Municipality Spatial Plan (Odluka o donošenju Prostornog plana općine Makarska, Official Gazette of the Makarska Municipality, nos. 8/85, 10/90, 6/91, 8/91 and 4/92), a larger central municipality from which the Baška Voda municipality was formed, and the Decision on Rules of Development in Constructed Areas in the Baška Voda Municipality (Odluka o odredbama za provođenje u izgrađenim naseljima na području Općine Baška Voda, hereinafter “the Development Rules”) adopted by the Baška Voda Municipality in 1999 and published in the Official Gazette of the Baška Voda Municipality no. 2/99 on 21 April 1999. According to these regulations and the relevant domestic law (see paragraph 23 below), a zoning permit (lokacijska dozvola) was required before any construction could be commenced on the buildings in the area concerned. 6. On the basis of the above zoning documents, on 26 July 2001 and 2 August 2001 the owners of the properties adjacent to the applicant’s hotel obtained zoning permits from the Makarska State Administration Office for Spatial Development, Communal Affairs, Construction and Ecology (hereinafter: the “Makarska State Administration Office”) for renovation and reconstruction of their buildings. 7. On 16 October 2001 the applicant applied to the Makarska State Administration Office for a zoning permit as required by the relevant legislation before reconstruction works could be commenced. The applicant submitted all relevant documents concerning his ownership of the hotel and the reconstruction project. In his project the applicant indicated that the hotel consisted of a ground-floor, three upper floors and in one part an additional fourth floor whereas he wanted to build a basement and a loft and to extend further the fourth floor. 8. On 17 April 2003, while the applicant’s request was still pending, the Ministry of Ecology and Spatial Development (Ministarstvo zaštite okoliša i prostornog uređenja, hereinafter “the Ministry”) ordered the Baška Voda Municipality to set aside (staviti izvan snage) the Development Rules, after finding that they had been adopted contrary to the relevant law. The Ministry found that the Development Rules merely reflected provisions of a similar document of the Makarska Municipality which had been already found by the Ministry to be contrary to the relevant law. 9. On 9 May 2003 the Baška Voda Municipality adopted a Decision setting aside the Development Rules and published it in the Official Gazette of the Baška Voda Municipality no. 5/2003. 10. Thereafter, on 4 July 2003 the Makarska State Administration Office dismissed the applicant’s request for a zoning permit. The relevant part of the decision reads: “Under section 34 § 2 of the Spatial Development Act (Official Gazette nos. 30/94 and 68/98) the zoning permit is an administrative decision which must be issued on the basis of zoning documents, special law and other relevant acts, in accordance with the law. Given that at the moment the Baška Voda Municipality does not have the relevant zoning documents, it follows, and in view of what was said above, that zoning permits for renovation or reconstruction of buildings cannot be issued until the adoption of the municipal spatial plan or some related spatial plan.” 11. On 18 July 2003 the applicant lodged an appeal with the Ministry, pointing out that he had lodged his request for a zoning permit on 16 October 2001 and that his request had been accompanied by all relevant documents, which followed from the fact that the Makarska State Administration Office had not dismissed his request as unsubstantiated or ill-founded. Instead, his request had been dismissed only because the Baška Voda Municipality had not adopted a spatial plan, despite the fact that he had lodged his request when the relevant zoning documents existed. He therefore considered that the law and the zoning documents which existed and were relevant at the time when he had lodged his request, should be applied. 12. On 11 September 2003 the Ministry quashed the first-instance decision and remitted the case. It instructed the Makarska State Administration Office to determine whether a zoning permit could be granted on the basis of the zoning documents adopted for the wider area. 13. In the resumed proceedings, on 18 February 2004 the Makarska State Administration Office again dismissed the applicant’s request. It found that the zoning document for the larger area, that is, the SplitskoDalmatinska County Spatial Plan (Prostorni plan Splitskodalmatinske županije, adopted on 23 July 2002, published in the Official Gazette of Splitsko-Dalmatinska County no. 1/2003), prescribed adoption of the spatial plan of the Baška Voda Municipality, and itself contained no provisions on the basis of which a zoning permit could be granted. 14. On 19 April 2004 the applicant lodged an appeal before the Ministry, arguing that the Makarska State Administration Office had failed to comply with the instruction of the Ministry of 11 September 2003. He considered that it should be established whether a zoning permit could be issued on the basis of a spatial plan which covered an even wider area than that of the county-wide spatial plan. He pointed out that he should not bear burden for the failure of the Baška Voda Municipality to adopt a spatial plan. He also considered that a zoning permit should be issued on the basis of the zoning documents which had existed at the moment when he had lodged his request. 15. On 2 June 2004 the Ministry dismissed the applicant’s appeal and upheld the first-instance decision. It endorsed the finding of the Makarska State Administration Office, that at present there was no zoning document on the basis of which a zoning permit for property located in Baška Voda could be granted. 16. The applicant then brought an action in the Administrative Court (Upravni sud Republike Hrvatske) on 27 July 2004 contesting the decisions of the administrative authorities. 17. On 3 July 2008 the Administrative Court dismissed the applicant’s action. It held that the Splitsko-Dalmatinska County Spatial Plan provided for an obligation to prepare and adopt a spatial plan for the Baška Voda Municipality, but that such plan had not yet been adopted, and that therefore the applicant’s request for a zoning permit could not be granted. 18. On 23 October 2008 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske). He pointed out that he had submitted his request for a zoning permit at the time when the zoning documents had existed for the Baška Voda Municipality. However, it had taken the administrative authorities almost two years to decide on his request, and in the meantime the zoning documents had been set aside and a spatial plan had not yet been adopted. Therefore, given that there had been a legal gap, the administrative authorities had been obliged to apply the law and the zoning documents which had existed at the time when he had lodged his request. He contended that this had done significant damage to his legitimate interests and that there had been no legitimate public interest justifying the refusal to grant him a zoning permit, since such permits had been issued for a number of properties adjacent to his hotel. 19. In the meantime, the Baška Voda Municipality had proceeded with the adoption of a spatial plan. It first initiated a public debate in which various experts, public officials and interested citizens were able to put forward all their arguments, proposals and objections. The municipal executive authorities then accepted or rejected the proposals and objections and drafted a provisional spatial plan. The provisional draft was afterwards submitted for approval to the Ministry, the competent Splitsko-Dalmatinska County authorities, the State Administration for the Ecology (Državna uprava za zaštitu prirode), the Ministry of Culture (Ministarstvo kulture), the Defence Ministry (Ministarstvo obrane), the public water utilities authorities, the Ministry of Agriculture, Fishing and Rural Development (Ministartsvo poljoprivrede, ribarstva i ruralnog razvoja), the Ministry of Regional Development (Ministarstvo regionalnog razvoja) and the competent seaport authority. Only after all the approvals were obtained the final draft spatial plan was submitted to the Baška Voda Municipal Assembly which adopted it on 2 April 2009 (Official Gazette of the Baška Voda Municipality no. 4/2009). 20. After the adoption of the spatial plan the applicant did not submit a new request for a zoning permit. 21. On 18 March 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The Constitutional Court’s decision was served on the applicant’s representative on 28 April 2010. 22. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010) read as follows: “The right of ownership shall be guaranteed ...“ 23. The relevant provisions of the Spatial Development Act (Zakon o prostornom uređenju, Official Gazette nos. 30/1994, 68/1998, 61/2000, 32/2002 and 100/2004) read: Section 24 “(1) A municipal spatial plan shall be adopted by the municipal council, after the state administration office has confirmed that it is compatible with the county spatial plan ... Section 34 “(1) Any spatial intervention must be in accordance with zoning documents, relevant law and any zoning permit. (2) A zoning permit is an administrative decision which must be issued on the basis of zoning documents, special law and other relevant acts, in accordance with the law ...” Section 47 “The inspection of individual and general acts, conditions and manner of work of relevant legal and physical persons, and the enforcement of measures under this Act, shall be conducted by an Inspection of the Ministry [of Ecology, Spatial Development and Construction].” Section 49 “(1) The inspector shall order the local authority to correct irregularities and/or any unlawfulness in the report or planning [of spatial development], found in the inspection. (2) If the local administration fails to comply with the order under paragraph 1 of this section, the Ministry shall, upon a request of the Inspector, set aside the report or plan of measures [for spatial development].” 24. The Spatial Development Act enacted on 14 April 1994 (Official Gazette no. 30/1994), in section 57 provided for municipal spatial plans adopted under the previous legislation to be applied until new zoning documents were adopted, and in any event no longer than five years from the moment when the Act entered into force. This time-limit elapsed on 23 April 1999. 25. The Amendments to the Spatial Development Act of 20 May 1998 (Zakon o izmjenama i dopunama Zakon o prostornom uređenju, Official Gazette no. 68/1998) in section 52 extended the period for adoption of municipal spatial plans to 31 December 2000. 26. The Amendments to the Spatial Development Act of 1 July 2000 (Zakon o izmjenama i dopunama Zakon o prostornom uređenju, Official Gazette no. 61/2000) in section 3 extended the period for adoption of municipal spatial plans to 30 March 2002. 27. Section 37 of the Amendments to the Spatial Development Act of 28 July 2004 (Zakon o izmjenama i dopunama Zakon o prostornom uređenju, Official Gazette no. 100/2004) extended the period for adoption of municipal spatial plans to 31 December 2005. 28. Section 347 of the Spatial Development and Construction Act of 1 October 2007 (Zakon o prostornom uređenju i gradnji, Official Gazette no. 76/2007) extended the period for adoption of municipal spatial plans to 31 December 2007, and expressly prohibited the grant of zoning permits in the absence of relevant zoning documents.