Rejection of an appeal due to the time limit. The time limit must start from the knowledge of the adverse consequences of the decisions under appeal. Violation of access to court

JUDGMENT

Gros v. Slovenia 07.07.2020 (app. no.  45315/18)

see here  

SUMMARY

Right of access to a Court and procedural deadlines. The case concerned his complaint of having been denied access to a court to challenge municipal decisions to classify paths crossing his land as “public roads”.The Constitutional Court dismissed his appeal as out of time.

The Court reiterated that the right of access to the courts may be subject to restrictions, which, however, should not restrict access in such a way or to such an extent that the very essence of the right is affected.

In the present case the ECtHR found that the period of one year from the issuance of the decision to appeal to the Constitutional Court had expired, but the applicant was not in a position to be aware of the adverse consequences of the decision, except when these were implemented in practice. In view of the fact that no evidence was adduced in the domestic courts confirming the applicant’s practical knowledge, the ECtHR held that the rejection of the action by the Constitutional Court had placed an excessive burden on the applicant and disturbed the equilibrium. Violation of article 6 § 1 of the ECHR.

With regard to its complaint under Article 1 of the First Additional Protocol, the ECtHR ruled that it was inadmissible because domestic court decisions had not yet been issued.

PROVISIONS

Article 6§1,

Article 1 of the First Additional Protocol

PRINCIPAL FACTS

The applicant, Vitomir Gros, is a Slovenian national who was born in 1942 and lives in Kranj
(Slovenia).

The case concerned his complaint of having been denied access to a court to challenge municipal
decisions to classify paths crossing his land as “public roads”.

In 2016 the applicant, acting as a trustee for the unidentified heirs of denationalised property,
sought to challenge Ordinances adopted by the Municipality of Kranj which had classified roads
running over two plots of land as “public roads”. The Ordinances, one of which had been in force
since 2004, had led to the annulment in 2016 of decisions to denationalise the plots, which the
applicant was managing and alleged to have owned.

In February 2018 the Constitutional Court rejected his application for a review of the Ordinances as
having been lodged outside the time-limit of one-year since the Ordinances had entered into force
(objective time-limit) or since he had become aware of the adverse impact of the Ordinances
(subjective time-limit).

The court reasoned that he should have known about the classification of the roads, which had
dated from the early 2000s, and had not explained why he could not have learned of the
classification before being served with the annulment decision of 2016. He had thus not met the
required time-limit for his application.

An appeal against the annulment decision of 2016 having been granted, the relevant proceedings
are still ongoing.

The applicant complained under Article 6 § 1 (right to a fair trial) that he had been denied the right
of access to a court by the Constitutional Court.

THE DECISION OF THE COURT

Article 6 par. 1 

The relevant principles concerning the right of access to a court – and in particular, access to superior courts – are summarised in the case of Zubac v. Croatia . The Court reiterates that the right of access to courts may be subject to limitations, which, however, must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved .

Turning to the present case, the Court notes that the Constitutional Court rejected the applicants application for constitutional review as being out of time on the basis of section 24 of the CCA, which provides that such an application has to be lodged within one year of the moment that the challenged regulation entered into force or the person lodging the application learned of the occurrence of adverse consequences . The applicant argued that he had learned of the adverse consequences arising from the Ordinances on 6 August 2016  and that, by lodging his application for constitutional review on 19 August 2016 , he had complied with the aforementioned subjective time-limit. The Government, conversely, maintained that the applicant had failed to explain why he could not have learned of the adverse consequences earlier and that his application had thus been rightly rejected.

The Court observes that for his part, the applicant tried to demonstrate his compliance with the subjective criteria by adducing arguments that cannot be considered unreasonable. In particular, in his application for constitutional review, the applicant specifically mentioned and submitted evidence related to the fact that the challenged 2004 Ordinance had been adopted while the denationalisation proceedings had been pending and that the land at issue had been restored on the basis of denationalisation decisions that had already taken final effect. In his additional submissions to the Constitutional Court he referred to the status of the disputed plots of land according to the land register and to the fact that the plots of land that had been subject to denationalisation proceedings had been divided into those that were classified as “public” and would not be returned to the denationalisation beneficiaries and those that were not classified as public (including the disputed plots of land). He also referred to the urban plan of 2002, which had been in force at the relevant time and had not envisaged in the area a road classified as “public”. In its decision the Constitutional Court held that the applicant should have proved that he had learned of the adverse consequences only after a certain period of time had elapsed since the entry into force of the challenged Ordinances and that he should have substantiated why that period could not have fallen within the time-limit of one year following those regulations entering into force. The Constitutional Court noted that the local roads or public paths in question had been classified as such since the entry into force of the 2004 Ordinance and before that by another Ordinance from 2000. In the light of that fact, it considered that the applicant had failed to explain why he could not have learned of the classification before being served with the decision of 19 July 2016 and that, by referring to the fact that he had relied on the urban plan of 2002, the applicant had “not properly substantiated the timelines” of the application. 

In this connection the Court observes that the relevant provisions of the CCA  do not require from an appellant relying on the subjective criteria defining the beginning of the relevant one-year-period to demonstrate that he or she could not have learned of the adverse consequences at any earlier time. Likewise, the Constitutional Courts case-law relied upon by the Government  provides only very limited support for the introduction of such a requirement. The Court also observes that in numerous decisions, the Constitutional Court has accepted appellants statements regarding the moment at which they learned of the adverse consequences of challenged regulations . Against that background, the Court accepts that it was difficult for the applicant to foresee what evidence could be considered sufficient for the purpose of meeting the subjective criteria defining time-limits for introducing such an application with the Constitutional Court and, in particular, that he would be expected to explain why he could not have done so earlier.

Reiterating that it is primarily the role of the relevant national authorities to decide upon the admissibility and relevance of evidence, the Court is in no position to assess when the applicant should be considered to have “learned” of the adverse consequences in question. However, the Court observes that the Constitutional Court expected the applicant to show that he could not have done so earlier, even in the absence of statements or evidence contradicting the timeline he had established in the application for constitutional review . Furthermore, this particular expectation appears not to have been based on any statutory requirement regulating access to the Constitutional Court in such type of proceedings. Therefore, the Court considers that the Constitutional Court imposed an excessive burden on the applicant that was, furthermore, unforeseeable, given the circumstances of the present case, thus upsetting the requisite fair balance between, on the one hand, the legitimate aim of ensuring compliance with the formal conditions for applying, and on the other, the right of access to that court.

There has accordingly been a violation of Article 6 § 1 of the Convention.

Article 1 of the First Additional Protocol 

The applicant complained that the State had nationalized his land in breach of Article 1 of the First Protocol.

The Court noted that it did not consider it appropriate to deal with the matter before an irrevocable domestic decision was rendered. The Court considered that his denunciation under Article 1 of the First Additional Protocol was premature.

This complaint must therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Just satisfaction: EUR 1,500 (non-pecuniary damage) and EUR 2,860 (costs and expenses).

 

 


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