CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 janvier 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 25 January 2018   FOURTH SECTION Application no. 36035/16 Dušan PETEK against Slovenia lodged on 21 June 2016 STATEMENT OF FACTS 1.     The applicant, Mr Dušan Petek, is a Slovenian national, who was born in 1977 and lives in Bohinjska Bistrica. He is represented before the Court by Odvetniška družba Čeferin in partnerji, a law firm from Grosuplje. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     The applicant is the owner of several plots of land in Bohinj Municipality. On 26 April 2012 the said municipality adopted the Ordinance on Classification of Municipal Roads and Cycling Lanes (hereinafter “the Ordinance”) and classified a road on one of the applicant’s plots of land as public. The Ordinance came into force on 26 May 2012. 4 .     In April 2015 the local authorities carried out a land survey ( geodetska izmera ) in the area where the respective plot of land owned by the applicant was situated. It would appear that this was related to the draft municipal land use planning which had been in the process of public consultation from 23 February 2015 to 27 March 2015. 5 .     On 16 April 2015 the applicant send a form with his comments in relation to the aforementioned land use planning (see paragraph 4 above). He stated that he had learned of the problem, presumably of the public road running over his land, when invited to attend the land survey on 3 April 2015. He disagreed with the municipality’s proposal to maintain the public road over his land and stated that the situation should be resolved so that the road would run over the municipal land. He also mentioned that he had had two meetings concerning this matter with the local authorities, the last one on 15 April 2015. 6 .     On 18 April 2015 the applicant sent a letter to the Bohinj Municipality in which he emphasized that (i) since the road which the municipality wished to use as a public road ran over the private land the municipality should had bought it or instituted expropriation proceedings and (ii) the municipality could have constructed the public road over its own land and thereby avoided interfering with the applicant’s rights. 7 .     On 7 May 2015 the Bohinj Municipality sent the applicant a draft agreement, by email, concerning the changes made to the plots of land surrounding the public road and other issues such as installing kerbs and fences. 8.     On 29 July 2015 the Land Authority of the Ministry for Spatial Planning (“the Land Authority”) held an oral hearing with the applicant and some other parties to discuss the changes needed to be done to the plots of land concerned. 9 .     On 19 August 2015 the Municipality sent a letter to the applicant inviting him to sign the draft agreement concerning the regulation of the boarders between the plots of land, including his. 10.     On 15 September 2015 the Land Authority issued a decision by which it accepted certain changes done to, inter alia , the border of the applicant’s plot of land. 11 .     On 28 December 2015 the applicant lodged a petition with the Constitutional Court for the review of the constitutionality and legality (hereinafter “petition for constitutional review”) of the Ordinance, in so far as it designated the road, crossing his plot of land, as a public road. He argued, inter alia , that the Ordinance lacked precisions and that it interfered with his right to property because the local authorities had failed to conclude a contract of sale or carry out expropriation proceedings to obtain the land. He also referred to several decisions in which the Constitutional Court had found such ordinances to be in breach of the Constitution. Furthermore, he claimed that he had first learnt of the Ordinance in April 2015 when the land survey in the area, where his respective plot of land is situated, had been carried out. In this connection he enclosed a copy of the form of 16   April 2015 (see paragraph 5 above), his letter of 18 April 2015 (see paragraph 6 above), and an email of 7 May 2015 by which the draft agreement, which, as he pointed out, explicitly mentioned that a public road had been registered over his land, had been sent to him (see paragraph   7 above) as well as the letter by the Municipality of 19 August 2015 (see paragraph 9 above). 12.     On 7 March 2016 the Constitutional Court rejected the petition for constitutional review as being lodged out of time. It held that the applicant, relying on the subjective time-limit, should have proved that he had learned of the adverse consequences only a certain time after the adoption of the Ordinance and proved why this (him learning of the adverse consequences) could not have happened during the one year from the adoption of the Ordinance. The Constitutional Court was of the view that the applicant, by submitting the documents, such as the form of 16 April 2015 and his letter of 18 April 2015 (see paragraph 11 above), had failed to satisfy the aforementioned requirement. B.     Relevant domestic law and practice 13.     The relevant provisions of the Constitutional Court Act read as follows: Section 22 “(1) The procedure for the review of the constitutionality and legality of regulations and general acts issued for the exercise of public authority is initiated by the submission of the written request of an applicant or by a Constitutional Court order on the acceptance of a petition to initiate a review procedure. ...” Section 24 “... (3) When an executive regulation or a general act issued for the exercise of public authority is effective immediately and interferes with rights, legal interests or legal position of a petitioner, a petition may be filed within one year after its entry into force or within one year from the date the petitioner learned about its adverse consequences.” Section 48 “(1) If the Constitutional Court deems a law, other regulation, or general act issued for the exercise of public authority unconstitutional or unlawful as it does not regulate a certain issue which it should regulate or it regulates such an issue in a manner which does not enable annulment or abrogation, a declaratory decision is adopted. (2) The legislature or authority which issued such unconstitutional or unlawful regulation or general act issued for the exercise of public authority must remedy the established unconstitutionality or unlawfulness within a period of time determined by the Constitutional Court.” 14.     The Constitutional Court has found in numerous cases that some municipal ordinances classifying as public the roads on private land failed to comply with the Constitution (see, for example, decision no. U-I-208/10 of 20 January 2011 and decision no. U-I-289/12 of 24 January 2013). 15.     The relevant provisions of the Spatial Planning Act (Official Gazette no. 110/02 with relevant amendments) read as follows: Section 92 “(1) Ownership of the property may be taken against monetary compensation or compensation in kind ...” Section 97 “(1) The expropriation beneficiary can submit a proposal for expropriation in case of failing to obtain property by entering into a contract, within 30 days after service of the offer for the purchase of the property to the owner. ...” COMPLAINTS 16.     The applicant complains under Articles 6 and 13 of the Convention that by refusing to consider his petition for constitutional review on the merits, the Constitutional Court arbitrarily adopted a restrictive interpretation of the Constitutional Court Act and thereby denied him access to court and to the only remedy available in his case. The applicant further complains of a violation of Article 1 of Protocol No. 1 because the Bohinj Municipality classified the road on his plot as a public road without instituting expropriation proceedings and paying him compensation. QUESTIONS TO THE PARTIES 1.     Has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol   No.   1?   2.     If so, has this interference been lawful and proportionate (see Iatridis v. Greece [GC], no. 31107/96, §   58, ECHR 1999 ‑ II)?   3.     Did the applicant have a fair hearing in accordance with Article 6 § 1 of the Convention in the proceedings before the Constitutional Court? In particular, having regard to the documents submitted by the applicant together with his petition for the review of the constitutionality and legality and to the reasoning of the Constitutional Court, did the latter’s decision amount to an excessive restriction on the applicant’s right of access to court (see Blumberga v. Latvia , no. 70930/01, § 78, 14 October 2008; De Geouffre de la Pradelle v. France , 16 December 1992, § 34, Series   A no.   253 ‑ B; and Neshev v. Bulgaria , no. 40897/98, §§ 37 and 38, 28 October 2004). Furthermore, when did the applicant have a reasonable possibility to learn of the Ordinance of 26 April 2012 by which the road running over his land was classified as a public road ( Neshev , cited above, § 38)?   4.     Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 1 of Protocol No. 1, as required by Article   13 of the Convention? In particular, did the applicant have a practical and effective opportunity to challenge the ordinance in question?