CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 19 juin 2007

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Casadevall ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Ms   L. Mijović ,   Mr   J. Šikuta ,   Mrs   P. Hirvelä, judges , and Mr T. L. Early, Section Registrar , Having regard to the above application lodged on 27 September 2002, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The first applicant, Mr Ján Palisko, and the second applicant, Mrs   Mária   Palisková, are a married couple. They are Slovakian nationals who were born in 1954 and 1958 respectively and live in Kapušany pri   Prešove. The respondent Government were represented by Ms   A.   Poláčková, their Agent, who was subsequently succeeded in that function by Ms M. Pirošíková. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Factual background In 1989 the applicants were granted the “right of personal use” ( právo osobného užívania ) of a plot of land. Following changes in property law, this right was later transformed into the right of ownership. The plot is located in the municipality of Drieňov and registered as no.   871/2. The nearest public road is Mlynská Street. Another nearby public road is Okružná Street. The municipality is connected to the electricity and gas networks but has no access either to a public water supply or to sewage and water cleansing systems. The area where the plot is located was subject to a   development plan ( zoznam pozemkov na výstavbu ) issued in 1985 under the 1976 Decree on territorial-planning documentation (Decree no. 84/1976 Coll.). This plan was later transformed into a zoning plan ( územný plán ) under the Construction Code (Law no. 50/1976 Coll., as amended). It designated the relevant area for systematic individual construction of residential houses. The   construction of a public road to connect Mlyská Street and Okružná Street and a connection to the public utility system were envisaged on land that had previously been expropriated and purchased for that purpose. If constructed, the road would provide access to the applicants’ house and the electricity and gas networks would run as close as 6 metres from the house. Later in 1989 the applicants were granted a permit to construct ( stavebné povolenie ) a family house on the assigned plot and commenced the construction work. On 13 February 1992 the Drieňov Municipal Office ( Obecný úrad ) held a public meeting to debate the issue of the construction of the new road. The owners of all the plots concerned were invited to attend and the majority of them stated that they were not interested in having the road constructed. The applicants were advised to seek access to their house by way of an easement through the neighbouring property of the first applicant’s family which they were using de facto for the construction work. On 2 April 1992 the Drieňov Municipal Council ( Obecné zastupiteľstvo ) passed a resolution instructing the mayor to reconsider the existing zoning plan in the light of the changing circumstances and approving the sale of the land adjacent to the applicants’ plot to several individuals. The land included the plots on which the new road and the public utility connection were to be located. The sale deprived the applicants’ plot of direct access to Mlynská Street. The road and utility connections envisaged in the original plan have never been constructed. Alternative solutions were explored instead (see below). The applicants requested to be granted, by way of an administrative decision, a right of access to their plot via the plots separating their house from Mlynská Street. In a letter of 1 June 1992 the Prešov County Environmental Office ( Obvodný úrad životného prostredia ) informed the applicants that in the circumstances no such right could be granted in administrative proceedings and that they should assert it in the ordinary courts. There is no indication that the applicants have done so. They received a similar response from the Prešov District Office in a letter of 17   December 2002. In the meantime the applicants finished the construction of their house and requested that the construction be approved ( kolaudačné rozhodnutie ). In a letter of 23   October 1992 the County Environmental Office “returned” the request to the applicants and informed them that the construction could not be approved as, contrary to sections 6 and 7 of the 1976 Decree on general technical requirements for constructions (Decree no. 83/1976 Coll.), the house was not connected to the land communications or public utilities networks. There is no indication that the applicants formally pursued the request after receiving this letter. Since then the applicants have been unable to use the house. In order to   minimise its dilapidation they have had to carry out maintenance work. They had to stay in another flat which they eventually had to sell to be able to pay the costs of maintenance of the house. At the same time, the applicants have been liable to pay real-estate ownership tax in respect of the plot of land, but not in respect of the house. On 8 November 1994 the Municipal Council passed a resolution approving a new zoning plan for the period until 2010. It does not envisage the construction of any land communications or utilities connections in the area and is still in place. The applicants eventually acquired title to the property of the first applicant’s family and acquired consent from the owner of another neighbouring plot which allows their plot to be connected to the gas and electricity networks from another street a distance of more than 100 metres away. They had the gas and electricity connection installed at their own expense, the cost being substantially higher than it would have been under the old zoning plan. 2.     Various remedies attempted Between May 1992 and April 2002 the applicants on numerous occasions raised the issue of the construction of the access road and the connection to the public utility system with the Ministry of Audit ( Ministerstvo kontroly ), the County Environmental Office, the Prešov District Environmental Office ( Okresný úrad životného prostredia ), the Prešov District Office ( Okresný úrad ) and the Ministry of the Environment ( Ministerstvo životného prostredia ). In response, they were informed that the matter primarily fell within the responsibility of the Drieňov municipal authorities and that they were free to bring their claims before a court. On 16 July 1992 a commission convened under the auspices of the Prešov Land Office ( Pozemkový úrad ) observed that it was the duty of the Drieňov municipal authorities to construct an access road to the applicants’ plot of land and called on the Municipal Council to reconsider its above resolution of 2 April 1992. On 23 September 1993, at the applicants’ request, the Prešov District Prosecutor lodged a complaint against the resolution of 2 April 1992. He considered that the municipality was under an obligation to construct an   access road to the applicants’ plot and to secure a   connection to the public utility system for them. The 1992 sale was arbitrary and had prevented the construction of the applicants’ house from being approved. Further to the complaint, on 6   December 1993 the Prešov District Office quashed the resolution of 2   April 1992 but its decision was later overturned by the Ministry of the Interior on appeal. On 16 December 1993 the applicants brought a civil action challenging the 1992 sale of the land adjacent to the applicants’ plot to third parteis. On 23 May 1994 and 18 December 1995 respectively the Prešov District Court and, on appeal, the Košice Regional Court dismissed the action. They concluded that the applicants did not have a “pressing legal interest” in accordance with Article 80 (c) of the Code of Civil Procedure in having the action determined because it did not directly concern their legal position. On 14 October 1996 the applicants submitted a request to the municipal authorities for the construction of an access road and a connection to the utilities network. The Municipal Council took notice of the request and advised the applicants to seek access to their plot by way of an agreement with the owners of the land concerned. In response the applicants applied to the Constitutional Court ( Ústavný súd ), challenging the way in which the municipal authorities had handled their request and claiming a violation of their property rights as protected under the Constitution. On 8   October 1997 the Constitutional Court declared the complaint inadmissible. It held that the Municipal Council’s reaction to the applicants’ request did not take the form of a decision and, as such, could not constitute a violation of individual rights. The Constitutional Court nevertheless observed that “the obligation on the [Drieňov] municipal authorities to secure an access road [for the applicants] remained undisputed” ( nie je dotknutá ). The applicants also lodged a petition under Article 130 of the Constitution with the Constitutional Court, alleging that the municipal authorities’ inactivity in respect of the construction of the road amounted to a violation of their property rights under the Constitution. On 22   July 1999 the Constitutional Court declared the petition inadmissible, observing that the applicants had asserted their property rights in court proceedings and that their action was still pending (see below). In view of the subsidiary role of the Constitutional Court, a simultaneous assertion of the applicants’ rights before the Constitutional Court was not appropriate. 3.     The action brought in 1993 and related facts On 5 May 1993 the applicants brought an action against the municipality. They supplemented the action several times, ultimately seeking a judicial order for the municipal authorities to plan and construct an access road to their plot of land. They relied on Article 417 § 2 of the Civil Code, section   4(1) and (3)(e) of the Municipalities Act (Law no. 369/1990 Coll., as amended) and sections 2(3), 3(6), 3d and 4b of the Land Communications Act (Law no. 135/1961 Coll., as amended). The applicants also sought a ruling establishing an easement in their favour against the owners of the neighbouring plots. However, they later withdrew this claim. The Prešov District Court determined the action for the first time on 29   May 1996 but the judgment was quashed on appeal. On 12 December 1996 the District Court granted the action and ordered the municipal authorities to plan and construct an access road for the applicants within 60 days from the date on which the judgment became final. It was observed that the applicants had lawfully constructed a house. The municipal authorities had an obligation to provide an access road. Their failure to do so prejudiced the applicants’ rights and exposed them to an   imminent risk of substantial damage. In these circumstances the applicants were entitled to   have their interests safeguarded under Article   417 § 2 of the Civil Code. The municipal authorities were to choose the means of complying with the ruling, for example by buying out or expropriating the land concerned or establishing an easement in the applicants’ favour. The municipal authorities appealed ( odvolanie ). On 26 January 2000 the Prešov Regional Court ( Krajský súd ) overturned the judgment of 12 December 1996 and dismissed the action. The Regional Court held that there was no legislation providing a basis for a   private ‑ law obligation to construct a road. The construction of roads fell within the field of construction law and, as such, could not be ordered under the general civil law. The applicants challenged the judgment of 26 January 2000 by means of an appeal on points of law ( dovolanie ). They argued that the municipality was the sole entity responsible for the construction of local communications facilities on its territory. The applicants relied on Article 108 of the Constructions Code and maintained that the municipal authorities had the power to initiate expropriation proceedings in respect of the land for the access road and proceedings for establishing an easement in their favour. The applicants also relied on the protection of their property rights under the Constitution. On 27 March 2002 the Supreme Court ( Najvyšší súd ) dismissed the appeal on points of law. It held that the ordinary courts could not issue enforceable orders in matters within the field of construction law. Article   417 § 2 of the Civil Code did not support the applicants’ request for a construction order, which could only be carried out in accordance with construction law. The applicants challenged the judgments of 26 January 2000 and 27   March 2002 by lodging a complaint under Article 127 of the Constitution alleging a   violation of their property rights and discrimination. On 1   October 2002 the Constitutional Court declared the complaint inadmissible, having found no constitutionally relevant illegality, arbitrariness or unfairness. B.     Relevant domestic law 1.     Municipalities Act (as in force at the relevant time) The Act regulates the legal and economic status of municipalities and their self-governance and cooperation (section 1). General rules concerning municipal self-governance are laid down in section 4. Unless provided otherwise by statute, municipalities are independent in taking decisions and actions in respect of the administration of their property and all affairs falling within their competence (subsection   1). In particular, municipalities are self-governed in respect of the construction, maintenance and administration of local communications ( miestne komunikácie ) (subsection 3 (e)). 2.     Construction Code The Code lays down general rules concerning territorial planning, construction activities and expropriation in the context of construction activities and defines the status of construction authorities. Under Article 29 § 3, as applicable at the relevant time, approved territorial-planning documentation ( územno-plánovacia dokumentácia ) provides a   binding basis for the preparation of other categories and levels of territorial-planning documentation, for decisions concerning the use of areas and for documentation concerning specific constructions. Expropriation is dealt with in Part 4. Land and buildings which are necessary for construction purposes may be expropriated and rights in respect of them may be restricted (“expropriation”) (Article 108 § 1). Expropriation may take place only in the public interest in specified circumstances, for example where it is necessary for creating conditions for ensuring access to a plot of land or a construction (Article 108 § 2 (d)). The aim of expropriation is to transfer or restrict the right of ownership or to establish, cancel or restrict easements (Articles 109 § 1). Expropriation can take place only if its aim cannot be attained by consent or by other means (Articles 109 § 2). Expropriation is subject to a procedure before the construction authority. The procedure commences on an application by, inter alia , the individual who is to   benefit from the expropriation (Article 112 §§ 1 and 2). The expropriation procedure is concluded by means of an administrative decision on expropriation (Article 114 § 1) and, unless provided otherwise, is governed by the general rules on administrative proceedings (Article   140). 3.     Land Communications Act The Act regulates the construction, use and protection of land communications, the rights and duties of owners, administrators and users of land communications, and State administration and supervision of land communications (section 1(1)). Land communications are divided according to their importance, purpose and technical nature into: (a) highways ( dialnice ); (b) roads ( cesty ); (c) local communications; and (d) utility connections ( účelové komunikácie ) (section   1(2)). Local communications include streets that are generally accessible to and used by local transport and belong to the local communications network (section 4b(1)). They are the property of municipalities (section 3d(3)) and their planning, preparation and construction is the responsibility of the municipal authorities (section 2(3)). Utility connections serve, inter alia , to connect production facilities or constructions and real estate with other land communications. They are divided into public and private (section 22(1) and (3)), may be owned by the State or other legal entities or individuals (section 3d(4)) and their planning, preparation and construction is in general the responsibility of the owners (section 2(3)). 4.     Civil Code (Law no. 40/1964 Coll., as amended) In the event of a serious threat, the person threatened may seek a judicial order for appropriate and adequate measures to be taken in order to avert any impending damage (Article 417 § 2). 5.     Decree of 1976 on general technical requirements for constructions (as in force at the relevant time) The Decree was issued by the Ministry for Technical and Investment Development and published in the Collection of Laws as no. 83/1976. Pursuant to section 6(1), all constructions must be accessible from public land communication facilities by means of a communication node or a   utility connection which must be completed before the construction is approved. Constructions must have adequate access to the water, energy and sewage systems prior to their approval (section 7(1)). COMPLAINTS 1.     The applicants complained under Article 1 of Protocol No. 1 to the Convention that the State had allocated land to them, had allowed them to   build a house on it and had refused them protection in respect of the municipal authorities’ failure to secure access and a connection to public utilities for the house. As a consequence, the house could not be inhabited and the applicants had to live elsewhere and still had to pay real-estate ownership tax in respect of the plot. They had extra upkeep expenses and the value of the house had decreased and continued to do so. 2.     Relying on Article 14 of the Convention, the applicants further complained that they could not have their property rights effectively protected as their complaints were against the municipal authorities. 3.     Finally, in a letter dated 10 June 2004, the applicants further complained, under Article 6 § 1 of the Convention, of the unfairness of the proceedings relating to their action of 1993, arguing that it had been arbitrarily dismissed. THE LAW 1.     The applicants alleged a violation of their property rights on account of their inability to have the road and the connection to public utilities constructed in accordance with the original zoning plan and the related facts. They relied on Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Government objected first of all that the applicants had failed to   satisfy the requirement under Article 35 § 1 of the Convention to exhaust domestic remedies in that they had failed to claim access to their plot in an   expropriation procedure under Article 108 of the Construction Code. The Government further argued that, were the Court to dismiss the above objection, the application had in any event been submitted out of time. In the present case the six-month time-limit was to be counted from the moment when the new zoning plan had been adopted in 1994. Since then, there had no longer been any legally relevant plans for the construction of a road and there were no direct legal remedies in that respect. Lastly, the Government considered that this complaint was in any event manifestly ill-founded. Zoning plans defined the spatial and functional development of a territory in general terms but did not confer any legally enforceable individual rights. The original zoning plan had envisaged the construction of a publicly accessible street (a “local communication”), whereas there could be no legitimate interest in having such a street constructed for the mere purpose of affording individual access to a private house. Access to a   dwelling was a   separate category and could be achieved by means of a utility connection. Unlike in the case of local communications, the construction of which was the responsibility of the municipality, the construction of utility connections was the responsibility of the owners. The applicants had actually obtained access to their house and a connection to the electricity and gas networks. In so far as they were claiming more than this, their claims had no basis in domestic law. The applicants disagreed and submitted that the municipal authorities had been legally obliged to   construct the road and the utilities connection pursuant to the original zoning plan and had failed to discharge this obligation. For practical reasons it was not possible for them to obtain satisfactory access to their house from Mlynská Street by way of an   agreement with the owners of the plots concerned, and the solutions which they had reached had been belated and incomplete. This was so in particular because access to the house was currently from the rear and was not suitable for all types of motor vehicles. The applicants further emphasised that the whole situation had caused them considerable consequential damage. The Court observes that the applicants, who have title to a plot of land, were permitted to construct a house on that plot. It is a general condition for a construction to be approved that it must be connected to land communications and must have access to the water, energy and sewage systems. To secure such a connection and access to the water, energy and sewage systems is the individual responsibility of the owner and so is the construction of land communications at the level of utility connections. If there is no other solution to the problem of connection to land communications and public utilities, the owner can claim title to real property belonging to others that is necessary to ensure such a connection. Such a claim is to be determined in an expropriation procedure under Articles 108 et seq. of the Construction Code which is specifically designed for that purpose and which, unless provided otherwise, is subject to the general rules on administrative proceedings. Most notably, decisions in the expropriation procedure are reviewable by the courts and, ultimately, by the Constitutional Court. Despite varying views expressed by the construction authorities in the letters of 1 June 1992 and 17   December 2002 in response to the applicants’ requests for expropriation, it is a fact that the applicants have not pursued their expropriation requests any further by means available in administrative proceedings so as to have the requests determined through formal decisions. They have likewise failed to pursue to the stage of a formal administrative decision their request for the approval of the construction of their house. Such administrative decisions would be subject to judicial review. Furthermore, it is a fact that the applicants have not raised their expropriation claims before the courts as advised by the construction authorities in the above-mentioned letters. The above facts may be interpreted as implying that the problem at the core of the present application is not access to land communications and public utilities as such, which the applicants in fact obtained in the end by alternative means and in respect of which they did not in any event exhaust domestic remedies, but the construction of the access road and the utilities connection in accordance with the 1985 development plan. The Court observes that no right to the construction of a specific road or utilities connection can as such be inferred from the Convention and/or its Protocols. It therefore remains to be ascertained whether the applicants had any right under domestic law that could constitute a   “possession” under Article 1 of Protocol No. 1 and thus attract ratione materiae the protection of that provision. The development plan of 1985 and the original zoning plan set out the territorial development envisaged in the area in question. To the extent that they may be understood as having any legally binding effect, it can be inferred that construction activities should be in line with and not contrary to them. However, these instruments fall within the realm of construction law and have the status of public law. In so far as the application has been substantiated, there is no indication that they gave the applicants any enforceable individual private-law right to have any road and utility connection constructed. This is so despite the worryingly differing information which was supplied officially at national level on the matter, but which has never been confirmed by the courts in a final decision. Furthermore, there is no indication that the applicants have ever acquired any such right by way of a contract or otherwise. Therefore, in respect of the development plan of 1985 and the original zoning plan, the applicants cannot be said to   have any “possession” falling within the ambit of Article 1 of Protocol No. 1 (for a summary of the relevant principles, see Kopecký v.   Slovakia [GC], no.   44912/98, §   35, ECHR 2004 ‑ IX). In this context, the present case must be distinguished from cases such as, for example, Pine Valley Developments Ltd and Others v. Ireland (judgment of 29 November 1991, Series A no. 222, p. 23, § 51). In that case the applicant company was able to rely on a legitimate expectation that it would be able to develop the site which it had purchased. It had obtained outline planning permission for this purpose, which permission had been duly recorded in a public register. The subsequent quashing of the permission directly affected the legal position of the applicant company which could no longer develop the land in the manner which had been expressly envisaged under the outline permission and was held in that case to be an interference with the applicant’s right to property protected by Article 1 of Protocol No. 1. By contrast, the 1985 development plan and the original zoning plan gave rise to no such legitimate expectation on the part of the applicants and the change in the planning documentation in the present case had no direct effect on the applicants’ own construction plans but only on construction plans by the municipality. The applicants could and in fact did fulfil the direct purpose of connecting their house to land communications and public utilities on their own by alternative means. Finally, it must be noted that in so far as the applicants alleged that they had sustained any damage, they have not claimed compensation before the courts from those responsible. It follows that, to the extent that this part of the application falls within the Court’s jurisdiction ratione materiae and domestic remedies have been exhausted, it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     The applicants complained of discrimination contrary to Article 14 of the Convention, which reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a   national minority, property, birth or other status.” In so far as this complaint has been substantiated, the Court has found no appearance that the applicants were treated differently from others in an   analogous situation or similarly to others in a different situation (see, among many other authorities, Thlimmenos v. Greece [GC], no. 34369/97, §   44, ECHR 2000-IV). It follows that this complaint is manifestly ill-founded and must be   rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 3.     The applicants complained that the proceedings relating to their action of 1993 had fallen short of the requirements of fairness in Article 6 § 1 of the Convention, which, in so far as relevant, provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a   fair ... hearing ... by [a] ... tribunal...” The proceedings as such ended with the Supreme Court’s judgment of 27   March 2002. The applicants’ constitutional complaint was dismissed on 1 October 2002. The complaint under Article 6 § 1 of the Convention was submitted to the Court in 2004, after the six-month time-limit under Article   35 § 1 of the Convention. It follows that this complaint has been lodged out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. 4.     Having regard to the above conclusions, the application of Article 29 § 3 of the Convention to the case should be discontinued. For these reasons, the Court unanimously. Declares the application inadmissible.   T.L. Early   Nicolas B ratza   Registrar   President