The non-execution of decisions to remove illegal constructions was unjustified. Violation of the right to a fair trial and the right to respect of property
JUDGMENT
Vlahović v. Montenegro 22.02.2024 (app. no. 62444/10)
SUMMARY
Failure to enforce a court judgment and administrative decisions in favour of the applicant in relation to a property dispute. The applicant was a co-owner of two plots of land. Another co-owner, without prior approval from the other co-owners, including the applicant, and without the permission of the municipality, constructed a sewage collection system on the two plots and paved the road with concrete. The applicant brought an action against the illegal constructions. An expert witness testified as a witness that these structures would likely cause flooding and soil deposition and thus damage to the plots.
Although the applicant obtained a final court decision and two administrative decisions in its favour, ordering the co-owner to remove the structures in question, these were never enforced due to the existence of a new co-owner of the property (the municipality, which substituted the old co-owner’s property rights) and the ongoing expropriation proceedings. In particular, the domestic authorities and the courts rejected all attempts by the applicant to enforce the decision on the grounds that the decision had been issued in relation to the co-owner and not to the municipality. The ECtHR held that it could legitimately be expected that the transfer by the co-owner of part of his land to the municipality implied the transfer of the obligation relating to those illegal constructions on it.
The Court held that the State’s failure to enforce the final judgment and the relevant decisions violated the right to a fair trial (Article 6 § 1 of the ECHR) and the right to the peaceful enjoyment of property (Article 1 of the First Additional Protocol).
The ECtHR awarded EUR 4,700 for non-pecuniary damage and EUR 1,025 for legalcosts
PROVISIONS
Article 6 par. 1
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant is one of the co-owners of two plots of land, nos. 1084/4 and 1084/10, located in Herceg Novi. He owns one third and one half of the two plots respectively. At the relevant time a certain M.D. owned one eighteenth and one twelfth of the same plots. The land was registered as an uncategorised road.
In June 2005 M.D. constructed a sewage collection system on the two plots of land and paved the road in concrete. He did so without the prior approval of the other co-owners and without the authorisation of a competent body of the municipality of Herceg Novi (“the municipality”).
On an unspecified date thereafter the applicant and one of the other co-owners of the land instituted civil proceedings against M.D. for unlawfully building a sewage collection system and paving the road with concrete. The dispute was entered into the real estate registry (zabilježba spora) in November 2008.
In the course of the proceedings a witness who was a construction expert gave his findings. In particular, he found that the placement of the concrete on the ground to build the road had caused the flow of rainwater to accelerate along the roadway. He stated that the grating and the channel constructed on one part of the road were not sufficient to collect all the surface water from the newly created drainage basin (slivna površina). Therefore, in time, the unregulated drainage of surface water from the road paved in concrete would probably cause flooding and soil deposits (zemljani nanosi), thereby damaging the adjacent plots of land belonging to the claimants. Moreover, if the water from the paved road was not regulated, the water coming from the land of the respondent party would erode even the land on which the road had been constructed. The expert further stated that the sewage collection system had been constructed without the prior authorisation of the relevant administrative body, which also meant that it might not have been constructed in accordance with the relevant construction standards.
On 26 February 2010 the Herceg Novi Court of First Instance (Osnovni sud) found that M.D. had violated the applicant’s rights in respect of plots nos. 1084/4 and 1084/10 by unlawfully paving the entirety of the plots in concrete and constructing a sewage collection system on plot no. 1084/10. It ordered M.D. to remove the above-mentioned objects within fifteen days.
On 29 and 30 March 2010 the municipal police (komunalna policija) issued two decisions ordering M.D. to remove the unlawfully built sewage collection system and the concrete paving respectively. Those decisions were upheld on 27 April 2010 by the municipality Chief Administrator, acting as the second-instance administrative body.
On 18 May 2010 M.D. transferred his ownership rights to the land at issue to the municipality free of charge.
On 9 December 2010 the municipality requested the Real Estate Administration (Uprava za nekretnine) to be allowed to expropriate the plots of land in question.
Between 28 December 2010 and 6 May 2019 the municipal police issued a number of decisions postponing the enforcement of its decisions of March 2010 (see paragraph 10 above) for various reasons; all of those decisions were quashed by the Chief Administrator.
On 8 February 2011 the Podgorica High Court (Viši sud) upheld the first-instance judgment of 26 February 2010 in so far as relevant , rendering that judgment final.
On 15 April 2011 the Court of First Instance issued an enforcement order in respect of its judgment. On 11 October 2011 the High Court quashed it on the grounds that M.D. was no longer a co-owner of the land in question and in view of ongoing expropriation proceedings.
On 19 March 2012 the Court of First Instance dismissed the applicant’s request that the municipality enforce the judgment, on the grounds that a final judgment had been delivered, not in respect of the municipality, but in respect of M.D. That decision was upheld on 24 May 2012 and the applicant was advised to initiate civil proceedings against the municipality.
On 17 April 2012 the Real Estate Administration rejected the municipality’s expropriation request. On 12 November 2012 the municipality submitted another expropriation request to the Real Estate Administration, but, after a remittal, the proceedings were stayed (prekida se postupak) on 29 May 2015.
On 8 April 2015 the Court of First Instance issued an interim measure, on a request by M.D. and a private company, prohibiting the removal of the concrete paving of the road and the sewage collection system, as ordered by the municipal police, until the termination of the expropriation proceedings. The court also found that should the decisions of the municipal police be enforced, the parties who had requested an interim measure and other occupants would not be able to live in their flats, thereby suffering nearly irreparable damage (teško nadoknadivu štetu). Notably, there was no other access road to their homes except the one which would be affected by the enforcement of the decisions and the occupants would not be able to use the water supply or sewage infrastructure necessary for the normal functioning of their households and businesses. On 1 June 2015 the Court of First Instance, as the second-instance enforcement court, rejected the applicant’s objection (odbacuje se prigovor) lodged in respect of the decision on the interim measure.
On 11 April 2017 the Supreme Court, while ruling on one of the claims for fair redress brought by the applicant in respect of lengthy enforcement proceedings, held, inter alia, that the expropriation proceedings could not be an obstacle for the enforcement of decisions ordering the removal of certain objects.
On 19 February 2021 the Real Estate and State Property Administration quashed the decision of 29 May 2015, which had stayed the expropriation proceedings .
On 9 March 2021, after many unsuccessful attempts by the applicant to expedite enforcement of the decisions, the High Court ordered the urgent termination of the enforcement proceedings. It noted that the enforcement was considered final when the relevant decision had either been executed or the enforcement proceedings terminated.
On 27 April 2021 the Court of First Instance terminated the enforcement (obustavlja se izvršenje) of the judgment of 26 February 2010 and cancelled all the actions undertaken in that regard. The court found that there were circumstances entirely preventing enforcement (postoje okolnosti koje u cjelosti sprječavaju sprovođenje rješenja o izvršenju), notably that the respondent named in the judgment was no longer a co-owner of the land in question. The applicant was advised to exercise his right in respect of the municipality in separate civil proceedings, after which, if successful, he could initiate new enforcement proceedings. That decision was upheld on 13 September 2021.
On 12 August 2021, after a remittal, the Real Estate and State Property Administration delivered a decision expropriating the land in question in favour of the municipality so that an access road could be built in accordance with the Detailed Urban Plan. On 14 November 2022, after another remittal, the Ministry of Finance, as the second-instance body, quashed that decision. On 19 December 2022 the applicant contested the Ministry of Finance decision before the Administrative Court.
In the meantime, on 20 January 2022 the Constitutional Court dismissed a constitutional appeal lodged by the applicant on 31 May 2017 in respect of the non-enforcement. The court upheld, in substance, the reasoning given by the courts in the enforcement proceedings .
On 27 May 2022 the State Prosecutor’s Office, while dismissing one of the criminal complaints lodged by the applicant in relation to the expropriation proceedings, held that the administrative (expropriation) proceedings could not in any way obstruct the enforcement of the final court judgment of 2010 ordering the removal of the unlawfully constructed objects.
Over several years the applicant repeated his request for enforcement on several occasions, both against M.D. and the municipality, but to no avail. In doing so he relied on section 28 of the Enforcement Act. In one of its decisions, that of 9 August 2019, the Court of First Instance noted that the applicant had relied on that provision, but nevertheless upheld the previous findings, namely that the municipality had neither been a party to the civil proceedings nor been obliged by the relevant judgment to take any action. It dismissed all the applicant’s other submissions as unfounded.
On 16 June 2023 the Constitutional Court ruled in favour of the applicant and quashed the decision of 9 August 2019. In particular, the Constitutional Court found that the Court of First Instance had failed to address the application of section 28 of the Enforcement Act on which the applicant had explicitly relied. The Constitutional Court found a violation of Article 6 of the Convention due to a lack of sufficient and relevant reasons in the decision of the Court of First Instance.
On 12 December 2023 the expropriation proceedings were pending before the Administrative Court (see paragraph 23 above), the interim measure was still in force (see paragraph 18 above) and the judgment and the two administrative decisions delivered in favour of the applicant (see paragraphs 9, 13 and 14 above) remained unenforced.
THE DECISION OF THE COURT…
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
The Court notes that M.D., one of the co-owners of the land in question at the time, constructed a sewage collection system and paved the road in concrete on the land co-owned by the applicant, not only unlawfully, but also while apparently not respecting the relevant construction standards. Even though the applicant obtained a court judgment and two administrative decisions in his favour ordering M.D. to remove the constructions in question, they have never been enforced on account of (a) there being a new co-owner of the property – the municipality, rather than M.D. , and (b) the ongoing expropriation proceedings. More specifically, the domestic authorities and courts dismissed all the applicant’s requests for enforcement on the grounds that the relevant judgment had been delivered in respect of M.D. and not the municipality. It also issued an interim measure in favour of M.D., prohibiting the enforcement of the municipal police’s decisions pending the conclusion of the expropriation proceedings.
As regards the change of ownership, the Court notes that the High Court upheld the first-instance decision ordering M.D. to remove the objects that he had unlawfully constructed regardless of the change of ownership, which had taken place in the meantime. However, even assuming that the change of ownership was relevant for the purposes of the enforcement, the Court notes that the relevant provisions of both of the Enforcement Acts consistently provided that an enforcement could also be requested against those who were not specified as respondents in the enforceable decisions if the relevant obligation was transferred to them . It is noted in this regard that the dispute between the applicant and M.D. over the constructions on the land in question was duly entered in the real estate registry in 2008, that is, long before the transfer of ownership took place. The municipality, therefore, could not have been unaware of the dispute in question and could be expected to have also been aware of the first-instance judgment in that connection, which had been delivered by that time. It therefore could be legitimately expected that M.D.’s transfer of his part of the land to the municipality also entailed the transfer of the obligation related to the objects unlawfully built on it. If that were not the case, claimants could indeed find themselves in situations where respondents could repeatedly transfer the ownership of the relevant property, obliging the claimants to initiate one set of civil proceedings after another, thus endlessly obstructing the enforcement in respect of the property in question. However, regardless of the relevant legal provision, the domestic courts held that the applicant should have initiated separate civil proceedings against the municipality, even though it had not been the municipality which had unlawfully built the objects in question and even though the applicant had already initiated one set of civil proceedings in that regard and obtained decisions in his favour. In doing so, the lower courts failed to address the applicability of the relevant legal provision as pointed out by the Constitutional Court when it quashed the decision of the Court of First Instance.
As regards the expropriation proceedings, the Court notes that in spite of an alleged public interest, the expropriation proceedings have been pending for several years. It also notes that even though they were already ongoing at the time, the Government nevertheless undertook to enforce the judgment and decisions in question, and it was in view of that assurance that the Court struck the case out of the list of cases in 2016 (see the procedure part above). The Court further observes that the domestic bodies, including the Supreme Court, explicitly held that the expropriation proceedings could not be an obstacle for the enforcement of the decisions. The Government submitted that the relevant decisions would be enforced if the land was not expropriated , meaning that enforcement was still possible. The Court is therefore not convinced that the expropriation proceedings were a preliminary issue, as argued by the Government.
In view of the above, the Court considers that the failure of the State to enforce the final judgment and the relevant decisions amounts to a violation of Article 6 § 1 of the Convention.
It also considers that the non-enforcement at issue constitutes an interference with the applicant’s right to the peaceful enjoyment of his possessions, which was not justified in the present case. There has, accordingly, been a separate violation of Article 1 of Protocol No. 1.
OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The Court notes that, after the application was restored and re-communicated to the respondent Government, the applicant repeated other complaints he had initially lodged under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 thereto concerning: (a) real estate administration officials not being prosecuted and sentenced following his criminal complaints, and (b) the length of the expropriation proceedings and not having an effective domestic remedy in that respect.
The Court reiterates that on 14 April 2021 the Government was notified of some of the applicant’s complaints, while the remainder of the application, including the complaints mentioned in the preceding paragraph, was declared inadmissible. That being so, the Court no longer has jurisdiction to examine them (see KIPS DOO and Drekalović v. Montenegro, no. 28766/06, § 139, 26 June 2018).
The applicant also implicitly complained that some real estate administration officials had not been prosecuted and sentenced following his criminal complaints lodged in May 2021 and June 2022. This complaint is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
The applicant also complained about the outcome of various other legal remedies he had used in order to have the judgment and the decisions in question enforced and, in particular, about the length of the proceedings before the Constitutional Court. Having regard to its findings in paragraph 49 above, the Court considers that it is not necessary to examine separately the admissibility or the merits of the applicant’s complaints in this regard (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and the authorities cited therein; see, also, mutatis mutandis, Hajnal v. Serbia, no. 36937/06, § 137, 19 June 2012).
APPLICATION OF ARTICLE 46 OF THE CONVENTION
The Court reiterates that Article 46 of the Convention, as interpreted in the light of Article 1, imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention (ibid.; see also Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV).
However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court may propose various options and leave the choice of measure and its implementation to the discretion of the State concerned or the nature of the violation found may be such as to leave no real choice as to the measures required to remedy it and the Court may decide to indicate only one such measure (see Öcalan, cited above, § 210). The specific remedial measures, if any, required of a respondent State in order to discharge its obligations under Article 46 of the Convention must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court’s judgment in that case, and with due regard to the above case-law of the Court (ibid.).
The violation which the Court has found in the present case is still affecting the applicant – he is in a situation where the relevant judgment and decisions delivered in his favour as early as in 2010 have never been enforced and where the domestic courts, after more than ten years of not enforcing the decisions in question, terminated the enforcement proceedings, thus allowing the objects, which had not only been constructed unlawfully but also not in compliance with the relevant standards, to remain on the property co-owned by the applicant.
The Court has already held that the right of access to a court would be illusory if a Contracting State’s domestic legal system allowed a final, binding judicial decision to remain inoperative to the detriment of one party. However, the Court cannot ignore the domestic courts’ findings that the objects in question, unlawfully constructed as they were and not in compliance with the relevant standards, provided the only access to the surrounding houses and their connection to the sewage system. The Court also observes that the land was registered as an uncategorised road even before the time of the events. The Government submitted that there was therefore a public interest in expropriating the land in question. The Court reiterates that it is not for it to speculate whether or not there is public interest in expropriating the land in question. This question should be resolved in the expropriation proceedings. Having regard to the specific circumstances of the present case, the fact that the expropriation proceedings were initiated in 2010 and the alleged public interest in having an access road and sewage collection system on the relevant plots of land, the Court finds it particularly important that appropriate arrangements be made in order to ensure that the expropriation proceedings are conducted and concluded without any further unnecessary delays, at the latest within one year from the date when this judgment becomes final. Should the expropriation proceedings not be completed within that time-limit or should the land not be expropriated, the judgment and the decisions delivered in favour of the applicant should be enforced within three months after that date, at the latest.
Just Satisfaction:
The ECtHR awarded 4,700 euros for moral damages and 1,025 euros for legal costs (edited by echarcaselaw.com).
