The refusal to grant permission to build a shopping center by the authorities violates the right to property
JUDGMENT
KIPS DOO and Drekalović v. Montenegro 26.06.2018 (no. 28766/06)
SUMMARY
Refusal by the authorities to grant a building permit to a shopping mall while all the necessary procedures had been initiated by the applicants. Infringement of Article 1 of the First Protocol (protection of property) for non-issuance of a building permit, Article 6 § 1 (right to review within a reasonable time) and Article 13 (right to an effective remedy) concerning the duration of the administrative procedure and the lack of national legal remedies.
PROVISIONS
Article 1 of the First Protocol
Article 6 § 1
Article 13
PRINCIPAL FACTS
The applicants are KIPS DOO, a company based in Podgorica, and its founder and principal owner, Risto Drekalović, a Montenegrin national, who was born in 1952 and lives in Podgorica.
The case concerned the authorities’ refusal to issue the applicants a building permit for a shopping centre.
In 1998 KIPS DOO obtained the right to use four plots of land on which it planned to build a shopping centre. Their request for a building permit was refused in 2006 because they had failed to meet two requirements, namely they had to buy the plot of land next to its own land under a revised urban plan and to pay the communal charges.
The applicants had earlier made a request to the local authorities to buy the adjacent plot of land and then, on not receiving a reply, had lodged an administrative appeal before the courts in 2005.
The appeal was however dismissed because changes to urban planning were ongoing. The applicants then instituted an administrative dispute which is apparently still pending.
They had also requested that the relevant authorities calculate the communal charges for their plot of land. The request was refused because a construction ban was in force as long as urban planning changes were under way and the applicants had no building permit. In the ensuing judicial review proceedings, the commercial courts ruled in the applicants favour in 2006 and the authorities calculated the charges in 2008. By that time, however, the request for the building permit had been rejected due to non-payment of the charges.
Further proceedings for a building permit are currently still pending.
Relying in particular on Article 1 of Protocol No. 1 (protection of property), the applicants complained about not being issued with a building permit in the first set of proceedings. They also complained under Article 6 § 1 (right to a fair hearing within a reasonable time) and Article 13 (right to an effective remedy) about the length of the administrative proceedings to buy the adjacent plot of land and of the proceedings to enforce the commercial court judgment, as well as the lack of domestic remedies in that regard.
THE DECISION OF THE COURT
Violation of Article 6 § 1 (length of the administrative proceedings)
Violation of Article 13 taken together with Article 6 § 1
Violation of Article 1 of Protocol No. 1
Just satisfaction: EUR 1,500 to Mr Drekalović for non-pecuniary damage and EUR 7,500 to the applicants jointly for costs and expenses. The Court further held that the question of the application of Article 41 (just satisfaction) of the Convention in so far as pecuniary damage was concerned was not ready for decision and reserved it for examination at a later date(echrcaselaw.com editing).
