CASE OF KIPS DOO AND DREKALOVIĆ v. MONTENEGRO
Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
5. The first applicant was founded in 1990 and has its seat in Podgorica. The second applicant was born in 1952 and lives in Podgorica. The second applicant is the first applicant’s founder, executive director, and the owner of 99.2698 % of its shares. The remaining 0.7302% is owned by the second applicant’s wife and son. 6. On 3 August and 11 November 1998 respectively the first applicant concluded two contracts with the Development Land Social Fund (Društveni fond za građevinsko zemljište, poslovni prostor i puteve Podgorica). Under the first contract the first applicant obtained the right to use (pravo korišćenja) four plots of development land (građevinsko zemljište) with a total surface of 11,443 m2, on which it planned to build a shopping centre and an office building. The second contract concerned the communal charges for the necessary infrastructure on the land at issue (naknada za uređenje građevinskog zemljišta). On an unspecified date thereafter the four plots of land were joined into one, marked as no. 2090/1036. Pursuant to sections 419 and 420 of the Property Act 2009 (see paragraph 61 below) the first applicant became the owner of the land at issue on 9 December 2011. 7. On 15 April 2005 the Property Administration (Uprava za nekretnine) issued a decision by which it divided the cadastral plot of land no. 2090/1036 into two, one of which kept the number 2090/1036 and had 11,365 m2, and another one which was registered as no. 2090/1220 and which had 77 m2. 8. On 3 March 2016 the cadastral plot of land no. 2090/1036 was further split into two, the smaller part of 44 m2 becoming a cadastral plot of land no. 2090/1581. The bigger part kept the number 2090/1036 and measured 11,321 m2. 9. On an unspecified date in 2004 the first applicant’s plan for the shopping centre and the office building was registered in a Detailed Urbanistic Plan (Detaljni urbanistički plan, “DUP”). 10. In December 2004 the DUP for the relevant area was changed, one of the changes being that the cadastral plot of land no. 2090/1036 and an adjacent plot of land of 1,557 m2, owned by the Municipality, were joined into one urban plot (urbanistička parcela). 11. On 6 June 2005 the President of the Municipality decided to change the relevant DUP further, which decision entered into force on 7 July 2005. Construction in the area was prohibited thereby for the next 90 days except in case of those investors who had already obtained a building permit prior to this decision. 12. On 6 October 2005 another decision was issued, providing that the DUP would be changed within 90 days and construction was further prohibited until the adoption of a new DUP but up to one year at most. The ban did not apply to the investors who had already obtained a building permit. This decision entered into force on 14 October 2005. 13. On 20 January 2006 a new decision to change the DUP was issued, revoking the previous two decisions. As regards its contents it corresponded to the decision of 6 October 2005. It entered into force on 23 January 2006. 14. On 21 July 2006 a new DUP was issued; it entered into force on 29 July 2006. Thereby the adjacent plot of land that had previously been added to plot no. 2090/1036 was apparently split into three: two parts became parts of two newly-formed urban plots of land and the third part remained attached to the applicant’s land and would appear to be part of a traffic route (saobraćajnica). It would also appear that in this urban plot of land the DUP planned the construction of two buildings instead of the shopping centre planned by the first applicant. 15. On 28 July 2010 a new decision to change the DUP was issued. 16. On 16 May 2013 the DUP was changed again, apparently providing for the construction of buildings similar to those initially planned to be built there by the applicants. 17. Following the changes of the DUP in December 2004 (see paragraph 10 above), on 25 January 2005 the first applicant contacted the Property Secretariat (Direkcija za imovinu; “the Secretariat”) in the Podgorica Municipality. It sought to “complete” the urban plot, that is to buy the adjacent cadastral plot of land which had been added to its own land, thus forming one urban plot of land; having received no reply it renewed its request on 23 May 2005 and 2 August 2005. 18. On 27 January 2005 the Spatial Planning Secretariat of Podgorica Municipality issued Urban Technical Conditions, which stated that the cadastral plot of land no. 2090/1036 was smaller than the relevant urban plot and that it needed to be “completed” (potrebno je izvršiti njeno dokompletiranje). 19. On 23 February 2005 the Ministry of Environmental Protection and Spatial Planning (“the Ministry”) granted the first applicant a location for the construction of business premises on plot no. 2090/1036, in accordance with the 2004 DUP. The decision specified that the Urban Technical Conditions of 27 January 2005 were a constituent part of this decision. 20. On 15 August 2005 the first applicant appealed, having received no reply from the Secretariat. The same day the Secretariat informed the first applicant that no completion of plots could be done given that the revision of the DUP was ongoing at the time, which meant “urbanistic reconsideration of the area” at issue. 21. By 6 April 2017 there had been at least seven remittals, either by the Municipality’s Chief Administrator (as the competent second-instance body) or the Administrative Court. 22. In the course of these proceedings, on 2 September 2016 the Secretariat enquired at the Property Administration if the same urban plot of land, as it had existed at the time when the first applicant had first filed a request for completion, could be formed again. On 23 September 2016 the Property Administration replied that the size of the said plot of land had been changed in the meantime and that there was no basis for re-forming the urban plot as it once had been. 23. On 6 April 2017 the Secretariat dismissed the first applicant’s request again. On 19 May 2017 the Chief Administrator upheld this decision, considering that due to the changes of the planning documents the completion of the said plot of land could not be done and that therefore the first applicant’s request had been correctly dismissed. On 23 June 2017 the first applicant instituted an administrative dispute before the Administrative Court, which would appear to be still pending. 24. On 11 July 2005 the first applicant requested the Agency for Construction and Development of Podgorica (Agencija za izgradnju i razvoj Podgorice; “the Agency”), a legal successor of the Development Land Social Fund, to calculate the final communal charges for the urban plot no. 2090/1036. 25. On 20 July 2005 the Agency replied that the calculation could not be made due to the construction ban. 26. On 26 July and 6 September 2005 the first applicant urged the Agency to make the necessary calculation, submitting that the ban applied only to construction and not to the calculation of charges. 27. On 13 September 2005 the first applicant made its own assessment of the communal charges in the amount of 131,324.65 euros (EUR) and made the payment. The payment was returned the next day as it had been made “without cause” (uplaćen bez osnova). 28. In the course of the proceedings the applicant repeated its request to the Agency on several occasions, including between 5 and 14 October 2005, submitting that the construction ban as the basis for refusal was unlawful and/or the ban was not in force at the relevant time. 29. By 1 December 2005 the applicant’s request had been refused by the Agency at least four times on the grounds that construction was banned pursuant to either the decision to change the DUP of 6 June 2005 or the decision of 6 October 2005. The Agency also held that the calculation could not be done as the first applicant had no building permit. 30. On 1 December 2005 the second-instance body rejected the first applicant’s appeal on the grounds that this was not a matter for administrative proceedings. The first applicant initiated an administrative dispute before the Administrative Court in this regard but in view of the opinion of the second-instance body it withdrew that claim, and instead pursued the proceedings before the Commercial Court. 31. On 16 September 2005 the first applicant instituted proceedings before the Commercial Court (Privredni sud) in Podgorica against the Agency for refusing to calculate the communal charges. 32. On 7 April 2006 the Commercial Court ruled in favour of the first applicant and ordered the Agency to calculate the charges. The court considered in particular that the first decision to change the DUP, which prohibited construction, had entered into force on 7 July and expired on 5 October 2005, while the next decision had entered into force on 14 October 2005. Therefore, there had been no construction ban before 7 July 2005 or between 5 and 14 October 2005, when the first applicant requested the communal charges to be calculated and when the Agency was bound to calculate them. The court also noted that the Agency’s reasoning for refusing the first applicant’s request, notably that “the calculation [could] not be done as the first applicant had no building permit” was illogical, since the calculation of charges was a pre-condition for getting a building permit. 33. The Court of Appeals and the Supreme Court upheld the previous decision on 18 April and 29 December 2008 respectively. The Supreme Court held, inter alia, that the first applicant had been granted the location for construction by the competent Ministry before it was decided that the DUP would be changed and that a decision to change the DUP could not affect the investors who had already been granted a location. 34. On 6 August 2008 the Agency calculated the charges. It provided for a new contract to be concluded with the first applicant, which specified that pursuant to the 1998 contract the applicant had already paid a certain amount and that the remaining amount to be paid was EUR 269,309.83. 35. On 13 October 2008, upon the first applicant’s request, the Commercial Court issued an enforcement order, which provided that the Agency would calculate the charges within 30 days or it would face a penalty of EUR 550, and would have to calculate the charges within the following 15 days. 36. On 20 October 2008 the first applicant received the above calculation from the Agency. On 22 October 2008 it requested that the contract specify in accordance with which DUP the construction would be undertaken. 37. On 27 October 2008 the Agency replied that the first applicant’s request was outside the Agency’s competence and that the first applicant should address bodies in charge of urban planning in that respect. On 28 October 2008 the Agency notified the Commercial Court that it had complied with its judgment and the enforcement order. 38. On 10 November 2008 the first applicant informed the Commercial Court that it did not consider the relevant judgment enforced as it had “serious objections” to the documents submitted by the Agency due to which it had not signed them. 39. On 16 February 2009 the Agency informed the Commercial Court that the first applicant had no objections in respect of the calculation itself, and noted that no statute provided for an obligation or a possibility for the first applicant to sign the calculation. 40. On 8 July 2005 the first applicant requested a building permit for the shopping centre from the Ministry. 41. On 26 July 2005 the first applicant notified the Ministry that the Agency was refusing to calculate the charges and asked the Ministry to urge that the Agency do so. On 12 August 2005 the Ministry responded that it had no competence as regards matters relating to the calculation of the charges. 42. On 14 September 2005 the first applicant informed the Ministry that it had done the calculation itself and had made the payment (see paragraph 27 above). 43. On 23 September 2005 the Ministry dismissed the first applicant’s request on the grounds that it had not paid the communal charges or completed the urban plot pursuant to the Urban Technical Conditions. 44. On 18 November 2005 the first applicant instituted an administrative dispute before the Administrative Court. It submitted, inter alia, that the requirement to buy an adjacent plot of land had been introduced in addition and was unnecessary given that the shopping centre was planned entirely on the cadastral plot of land no. 2090/1036. It also maintained that the refusal to calculate the charges was groundless as the ban related to construction only and not to the calculation of the charges, and that it was a deliberate obstruction. 45. On 29 December 2005 the Administrative Court dismissed the first applicant’s claim on the grounds that there was no contract between the first applicant and the Agency concerning the communal charges, that the first applicant had failed to submit all the evidence required by the relevant statutory provision in order to obtain a building permit, and it had failed to obtain an adjacent plot of land as required by the Urban Technical Conditions. The court did not deal with the first applicant’s explicit submission that the said requirements were unlawful and/or unnecessary. 46. On an unspecified date thereafter the first applicant lodged a request for judicial review before the Supreme Court, maintaining that there was a contract between itself and the Agency concluded in 1998. It also submitted that the courts had blamed the first applicant for not paying the charges and completing the plot, even though it had done everything it could to comply with these requests, and had actually complained about the unlawfulness of the relevant State bodies’ refusal to cooperate in these matters. 47. On 2 March 2006 the Supreme Court upheld the previous decision, considering that the first applicant had indeed failed to submit proof that it had paid the communal charges and completed the urban plot as requested. 48. On 29 August 2014, following the change of the DUP in 2013, the first applicant requested a building permit for “central activities building” (za izgradnju objekta centralnih djelatnosti). On 27 July 2017, after five remittals, the proceedings were still pending. 49. Between 15 August 2005 and 20 September 2006 the first applicant filed three motions with the Constitutional Court for the assessment of the constitutionality and legality of the decisions to change the DUP issued on 6 June 2005, 20 January and 21 July 2006 respectively. 50. On 30 January 2006 the Constitutional Court discontinued the proceedings (obustavlja se postupak) upon the first motion as the impugned decision of 6 June 2005 was no longer in force. 51. On 6 December 2006 and 27 June 2007, respectively, the Constitutional Court rejected the other two motions. 52. The DUP in the area at issue was subject to changes in 1990, 1996, 1997, 1999 (the changes in 1999 were done pursuant to the first applicant’s request to that effect), 2002 (entered into force in 2003), 2004 (entered into force in 2005), 2006, 2010 and 2013. The purpose of the land also changed over time, from “sports and recreation” to “central activities” (centralne djelatnosti). 53. Between 8 February and 8 July 2005 the first applicant obtained a number of permits related to the planned construction of the shopping centre (electro-energetic, water supply, sanitation, geo-mechanic, urbanistic, as well as those related to fire safety, environmental protection, workplace safety, traffic, etc.). 54. Between January and August 2005 there were at least four other requests relating to the land in respect of which the DUP was changed (three of which were also for completion of relevant plots of land). In all four cases the claimants were informed that their requests could not be met in view of the changes which the DUP was undergoing. 55. On 14 August 2006 the Ministry sent a letter to the mayors of all Municipalities. The letter stated, in substance, that “certain local government units” interpreted section 33 of the Spatial Planning and Development Act (Zakon o planiranju i uređenju prostora) (see paragraph 69 below), which provided for a possibility of a construction ban where appropriate, in a way that was incompatible with its contents, essence and meaning. The Ministry further explained that a decision on ‘a construction ban’ related exclusively to a ban on issuing a decision granting a location, as a document on the basis of which a building permit was issued, and that in a case where the decision on location had been issued prior to the construction ban, the competent body had a duty to issue a building permit to an investor, provided that the conditions provided in section 34 of the Construction Act (Zakon o izgradnji objekata) were fulfilled, regardless of whether the construction ban in the relevant area was in force. 56. Between 1 August and 8 December 2006 the first applicant was granted a location and was issued urban planning conditions for the construction of a warehouse in another part of Podgorica. It also obtained other relevant consents (concerning water supply, electricity, fire protection, traffic, ecology, sanitation, etc.) and the Ministry’s urbanistic consent to technical documentation. On 28 December 2006 it concluded a contract with the Agency concerning the charges, and on 10 January 2007 it obtained a building permit for that location. By 17 December 2007 it had built the warehouse and obtained a permit to use it (upotrebna dozvola). 57. On 27 August 2015, following the first applicant’s proposal to that effect, a meeting was held between the representatives of the first applicant and the Agency. The Agency undertook to study the first applicant’s submissions in relation to the urban plot of land no. 2090/1036, including the one that it had not been allowed to honour all the obligations. It would appear, however, that the first applicant never received any response from the Agency.