FOURTH SECTION

DECISION

Application no . 6368/10 Tomislav PERME against Slovenia

The European Court of Human Rights (Fourth Section), sitting on 21 February 2017 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 22 January 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Tomislav Perme, is a Slovenian national who was born in 1939 and lives in Ljubljana-Polje.

2. The Slovenian Government (“the Government”) were represented by their Agent, Ms J. Morela, State Attorney.

3. On 16 June 2014 the application was communicated to the Government.

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5 . The applicant is the owner of two plots of land, nos. 716 and 717, within the cadastral community of Stična. Along one side these plots are adjacent to plot no. 718, which is registered in the land register as public property. The applicant claims that he inherited plot no. 718 together with plots nos. 716 and 717, but it appears from the evidence submitted by the Government, namely from copies of historical location plans and copies of extracts from the land register, that the applicant has been listed in the land register as the owner for plots nos. 716 and 717 only, and that plot no. 718, which is administered by the Municipality of Ivančna Gorica, has been used as a public path since at least 1868.

6 . In 2003 the Municipality of Ivančna Gorica (hereinafter “the Municipality”) prepared a development plan for the neighbouring area which provided, among other things, that part of the applicant ’ s plots would be purchased by the Municipality in order to construct a new road and to regularise the records in the land register.

7. In 2005 the Municipality widened the footpath referred to above and covered it with asphalt.

8. On 9 April 2005 the applicant wrote a letter to the Municipality and complained that the new road crossed both of his plots and that a number of fairly large trees that used to grow on the plots had been cut down and removed from his property. The applicant requested that his property be restored to its original state and compensation be paid for the damage, or, alternatively, that compensation be paid to him for the expropriated property and for the disturbance of this property.

9. On 14 April 2005 the Municipality replied that the road in question had been constructed on land corresponding to plot no. 718. The Municipality also assured the applicant that none of his trees had been cut down and removed by their workers in the process of road construction.

10. On 15 April 2005 the applicant lodged a criminal complaint against an unknown perpetrator in connection with the cutting down and theft of approximately ten of his trees, indicating the names of a few possible suspects. However, the police were unable to find the perpetrator.

11. In 2007 the Municipality acknowledged that the public road encroached on the applicant ’ s plots and offered to purchase the land at issue.

12. On 10 November 2007 the applicant wrote a letter to the Municipality, requesting that a land survey be carried out in order to determine the surface area of the land within his plots that had been converted into a road and therefore had to be purchased by the Municipality.

13. On 11 February 2008 the applicant was invited by a land survey company to attend a field inspection in order to establish the precise boundary line between plot no. 718 and his own plots nos. 716 and 717 according to the Municipality development plan adopted in 2003 (see paragraph 6 above).

14. On the same day the applicant replied that such a boundary could no longer be precisely established as the Municipality had in the meantime built a road that crossed his plots of land. The field inspection should accordingly establish the extent to which the road encroached on his property. The applicant did, however, attend the field inspection, but refused to sign the land surveyor ’ s record of demarcation of the boundaries between the plots.

15. On 4 March 2008 the applicant again requested that the Municipality establish the precise surface area of the parts of his plots upon which the road had been laid.

16. On 20 March 2008 the Municipality informed the applicant that according to their data the public road extended over 125 square metres ( sq. m.) of the applicant ’ s plots. However, this estimate was based on the data in the development plan, and not on an actual field measurement. The Municipality also informed the applicant that in order to implement the 200 3 development plan, they would need another 738 sq. m. of his plots.

17. The applicant disagreed with the estimate, having measured the area himself and established that the asphalt part of the road extended over 155 sq. m. of his plots.

18. An appraisal of the value of the land was subsequently made and the Municipality offered the applicant purchase price of 60 euros (EUR) per sq . m. The applicant, however, requested EUR 485 per square metre. The Municipality was not prepared to accept this price, so the sale did not take place.

19. On 16 May 2008 the applicant lodged an initiative for review of the constitutionality and legality of the Ordinance on Classification of Municipal Roads of the Municipality of Ivančna Gorica (hereinafter “the Ordinance”) in so far as it determined that the road crossing his land was a public road. He complained that the road extended over his two plots, nos. 716 and 717. Moreover, the applicant alleged tha t it was not clear how plot no. 718 had become public property, as it used to be his private property.

20. Meanwhile, the Municipality continued the process of demarcation of the boundaries between the plots. The applicant disagreed with the boundary as marked by the land surveyor on 11 February 2008; however he did not challenge this demarcation in judicial proceedings.

21. On 23 April 2009 the Municipality submitted its observations on the applicant ’ s initiative for review of the constitutionality and legality of the Ordinance, explaining that while it might be true that the layout of the road had changed slightly over the years and that the road extended over the applicant ’ s plots of land, the Municipality was unable to regularise the situation until the boundaries between the plots were demarcated. The Municipality added that it had already bought all the other private plots on which the public road in question had been built.

22. On 10 June 2009 the regional surveying and mapping authority issued a decision demarcating the boundaries between plot no. 718 and a number of plots adjacent to it, including plots nos. 716 and 717.

23 . On 15 June 2009 the applicant appealed against this decision before the Ministry of the Environment and Spatial Planning (hereinafter “the Ministry”), complaining that the surveying and mapping authority had in fact changed the boundaries between his plots and the public plot no. 718 without any legal basis.

24 . On 9 July 2009 the Constitutional Court, having found that the road at issue crossed the applicant ’ s plots, declared the Ordinance unconstitutional, in so far as the road in question was classified as public in the parts in which it crossed the applicant ’ s plots nos. 716 and 717. Moreover, the court ordered the Municipality to remedy the established unconstitutionality within six months by either concluding a legal transaction to acquire the land from the applicant, or expropriating that land, or amending the Ordinance and annulling the unconstitutional provision.

25 . On 17 December 2009 the Ministry dismissed the applicant ’ s appeal against the decision demarcating the boundaries (see paragraph 23 above). It has not been shown that the applicant challenged this decision in judicial proceedings.

26 . On 25 January 2012 the Ivančna Gorica Municipal Council implemented the decision of the Constitutional Court (see paragraph 24 above) by amending the Ordinance. Under the amended Ordinance, the path was made shorter so that it no longer ran alongside or over the plots nos. 716 and 717.

27 . After demarcating the boundaries, on 19 September 2014 the Municipality started to physically remove the part of the road that encroached on plots nos. 716 and 717 by narrowing the asphalt surface and removing the foundation of the road. The works ended on 6 October 2014, when the plots were returned to their original state and traffic signs notifying users of the road that that part of it was not classified as a public road were installed.

28 . It does not appear that the applicant had at any time used any remedies in an attempt to rectify the alleged error in the land register or requested before the domestic courts damages for the period during which the road extended over plots nos. 716 and 717.

B. Relevant domestic law

29. The relevant provisions of the Constitutional Court Act read:

Article 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.

(2) The review of the constitutionality and legality of regulations and general acts issued for the exercise of public authority also extends to a review of the conformity of laws and other regulations with ratified treaties and with the general principles of international law.”

Article 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 it such in a manner which does not enable annulment or abrogation, a declaratory decision is adopted on such.

(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.”

COMPLAINT

30. The applicant complained that the Municipality of Ivančna Gorica had de facto expropriated his property by failing to amend the Municipal Council Ordinance in conformity with the Constitutional Court decision and by building a public road across his land without awarding him compensation.

THE LAW

31. The applicant complained that the Municipality of Ivančna Gorica interfered with the peaceful enjoyment of his possessions.

32. The Court considers that the applicant ’ s complaint falls to be examined under Article 1 of Protocol No. 1 to the Convention 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.”

A . The parties ’ submissions

33 . The Government submitted that on 25 January 2012 the Ivančna Gorica Municipal Council had amended the Ordinance and had thus implemented the Constitutional Court decision of 9 July 2009. Moreover, on 6 October 2014 at the latest the part of the road that was encroaching on the applicant ’ s plots had been physically removed and the original status of the land was re-established. Finally, traffic signs were installed notifying users of the road that that part of the road was not classified as a public road. The Government argued that since restitutio in integrum affected by these measures was the applicant ’ s primary request, he could no longer claim to be a victim of a violation of his rights.

34 . As to the applicant ’ s complaint that he had not been awarded damages, the Government argued that after the Constitutional Court had declared the Ordinance unconstitutional he could have initiated civil proceedings in which he could have sought compensation for pecuniary damage he had allegedly suffered. Furthermore, in so far as it could be understood that the applicant wanted also compensation for non-pecuniary damage, the Government submitted that the applicant had failed to show any causal link between the alleged violation and any kind of damage on his part and that therefore under the domestic law he was not entitled to any compensation.

35 . As to plot no. 718, the Government argued that it had been designated as a public path since the nineteenth century and had never been owned by the applicant. In support of these arguments they submitted copies of historical extracts from the land register and copies of historical location plans (see paragraph 5 above). They maintained that the applicant had at his disposal a number of domestic remedies for rectifying the allegedly erroneous entry in the land register and that he had failed to avail himself of any of them.

36. Finally, the Government averred that during the proceedings before the Court the applicant had failed to notify the Court of the execution of the Constitutional Court ’ s decision of 9 July 2009 and had therefore abused his right of petition.

37 . The applicant did not contest the Government ’ s submission that the road had been physically removed from plots nos. 716 and 717. However, he argued that the Constitutional Court had not ordered that the road be removed, but rather that the situation be regularised. He submitted that he was the owner of plot no. 718 because it ga ve access to plots nos. 716 and 717 and that this fact had erroneously not been entered into the land register.

B . The Court ’ s assessment

1. Complaint regarding plot no. 718

38 . The Court first notes that it follows from the documents submitted by the Government that plot no. 718 had been designated as a public path since 1868 (see paragraphs 5 and 35 above). The applicant has failed to produce any documents to the contrary. In any event, the applicant never initiated judicial proceedings to challenge the record in the land register or lodged an action for recognition of legal title (see paragraph 28 above).

39. Insofar as the applicant complained that the demarcation of the boundaries between plot no. 718 and plots nos. 716 and 717 interfered with his right to the peaceful enjoyment of his possessions, it must be noted that this complaint was dismissed by the Ministry of the Environment and Spatial Planning on 17 December 2009 and that the applicant failed to show that he has challenged this decision before the competent court (see paragraph 25 above).

40. It follows that the applicant has not exhausted the relevant domestic remedies in respect of his complaints regarding plot no. 718. Accordingly, this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention.

2. Complaint regarding plots nos. 716 and 717

41. The Government raised a number of preliminary objections in respect of this part of the application. The Court finds that it is not necessary to address all the Government ’ s objections, as this complaint is in any event inadmissible for the following reasons.

42. The Government submitted that the Ivančna Gorica Municipal Council had implemented the Constitutional Court ’ s decision by amending its Ordinance and that the part of the road extending over plots nos. 716 and 717 had been physically removed (see paragraphs 27 and 33 above). By doing this, the Municipality no longer encroached upon the applicant ’ s plots in any way.

43. The applicant did not contest these submissions (see paragraph 37 above).

44. Taking account of the domestic decisions given specifically for the purpose of remedying the situation in which the applicant ’ s complaint originated, the Court must examine whether in the particular circumstances of the case the applicant may still claim to be a victim of a violation of Article 1 of Protocol No. 1 within the meaning of Article 34 of the Convention.

45. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Eckle v. Germany , 15 July 1982, § 66, Series A no. 51; Amuur v. France , 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III; and Rotaru v. Romania [GC], no. 28341/95, § 35, ECHR 2000-V). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see, among many other authorities, Jensen and Rasmussen v. Denmark (dec.), no. 52620/99, 20 March 2003).

46. In the present case, the Court notes that in its decision of 9 July 2009 the Constitutional Court held that the Ordinance was unconstitutional in so far as the road in question had been classified as public in respect of the parts of it which crossed the applicant ’ s plots nos. 716 and 717 (see paragraph 24 above). The Court is satisfied that that court thereby expressly acknowledged that there had been a violation of the applicant ’ s rights.

47. As to the second limb of the Eckle principle, namely the nature of redress, the Court reiterates that the question whether an applicant may claim to be a victim depends, as a general rule, on the legal interest which he or she may have in a determination by the Court that his Convention rights have been breached. In assessing this interest, any material or immaterial damage suffered by the applicant as a result of the alleged violation must be taken into account (see, Schlader v. Austria (dec.), no. 30193/96, 7 March 2000, and Auerbach v. the Netherlands (dec.), no. 45600/99, 29 January 2002). The Court has already held that an applicant could no longer claim to be a victim, despite the fact that no compensation was awarded to him or her at the domestic level, having regard to the circumstances of the case seen as a whole and to non-pecuniary measures which have been taken in amends of the violation complained of (see, notably, Auerbach (dec.) , cited above; Goebl v. Hungary (dec.), no. 81097/12, 15 March 2016; Arrigo and Vella v. Malta (dec.), no. 6569/04, 10 May 2005; and M.A. v. the United Kingdom (dec.), no. 35242/04, 26 April 2005).

48. Applying these principles in the context of the present case, the Court notes that the Municipality was required by the Constitutional Court to enact one of three possible measures in order to remedy the situation complained of by the applicant: to buy the land; to carry out expropriation in return for compensation; or to amend the Municipality Ordinance in so far as it provided for public road being built on the applicant ’ s land (see paragraph 24 above). In execution of this decision, on 25 January 2012 the Ivančna Gorica Municipal Council amended the Ordinance by deciding that the part of the road that runs alongside plots nos. 716 and 717 was no longer to be classified as a public road (see paragraph 26 above). Moreover, on 6 October 2014 at the latest the applicant ’ s plots were returned to their original state as the part of the road which encroached on them was physically removed. In addition to this, traffic signs notifying users of the road that that part of the road was not classified as a public road were installed (see paragraph 27 above).

49. Therefore the Court notes that the decision of the Constitutional Court was implemented. The applicant obtained relief by restitutio in integrum which was one of the three possible forms of remedying the situation complained of expressly indicated by that court. It was not argued by the applicant, nor does it follow from the relevant provisions of the domestic law, that in addition to declaring the Ordinance unconstitutional and ordering the situation to be remedied, the Constitutional Court was empowered by law to award him any damages for the loss that he may have suffered. In so far as it can be understood that the applicant was of the view that he should be awarded compensation in addition to the relief obtained by way of the Constitutional Court ’ s decision, as pointed out by the Government (see paragraph 34 above) he could have initiated civil proceedings to seek compensation for pecuniary damage after that decision had been given. No arguments to the contrary were submitted by the applicant. Nor was it argued, let alone shown, that no relevant tort remedies were available under the domestic law.

50. Having regard to these considerations, the Court of the opinion that in the absence of any such civil claim for compensation having been made, or, indeed, of any complaint that the available domestic remedies did not offer a sufficient possibility of redress, the measure ordered by the Constitutional Court and subsequently executed by the Municipality was sufficient to address the essence of the applicant ’ s complaint under Article 1 of Protocol No. 1 to the Convention.

51. In these circumstances, the Court is satisfied that the redress provided by the authorities sufficed to remove the applicant ’ s victim status for the purposes of Article 34 of the Convention.

52. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 March 2017 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President