Hilda RUPAR v Slovenia - 16480/02 [2010] ECHR 915 (18 May 2010)

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The European Court of Human Rights (Third Section), sitting on 18 May 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Boštjan M. Zupančič,
Alvina Gyulumyan,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

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

1. The applicant, Ms Hilda Rupar, is a Slovenian national who was born in 1927 and lives in DomZale. She was represented before the Court by Mr B. Mrva, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General.

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

3. Since 1975 the applicant has had a foundry in the village of Selo where she has been producing products such as ashtrays and door handles. Her and her daughter's income depends on this business.

4. On the adjoining plot of land, the owner, J.S., built extensions to his building, which had originally been built for a handicraft business. The applicant's plot stands to the west of J.S.'s plot. As a result of the extensions, there is less than ten metres between the applicant's and J.S.'s buildings. The extensions were in the form of eight apartments. They were built without the required building permits and several injunctions were issued prohibiting J.S. from continuing with the building work or from using the unlawfully built constructions (see paragraphs 17-23 below).

5. The applicant submitted that, because of the illegally built extensions, J.S.'s land was practically all built up and there was no space left for the appertaining land. Consequently, the residents, who were mostly families, had been using the applicant's land for parking, playing, etc. An oil-fuel tank had been placed on the terrace of J.S.'s building and was a potential fire risk to the applicant. The rainwater run-off was directed onto the applicant's plot of land. The unlawfully built flats had no proper drainage, which resulted in an intolerable smell and the conditions were against all health and hygiene standards. The new residents were constantly complaining about the foundry's activities, which operate twenty-four hours a day.

6. In 1989 J.S. obtained a site permit (permit for use of land – lokacijsko dovoljenje) for a large extension to his initial construction to convert part of the workshop into an apartment block and for the construction of a building for business and storage purposes. This permit was renewed by a decision of 9 September 1993. Subsequently, J.S. obtained a building permit (gradbeno dovoljenje) on 26 January 1995.

7. On 13 July 1998, following the applicant's successful request for the matter to be reopened, the DomZale Administrative Unit quashed the decisions by which the site and building permits had been granted. The applicant participated as party to these and further proceedings. As regards the site permit, an appeal by J.S. was dismissed by the Ministry of the Environment and Spatial Planning (“the Ministry”) on 18 November 1999. J.S. subsequently applied to the Administrative Court challenging the Ministry's decision. His application was rejected on 24 May 2000. He then appealed to the Supreme Court. His appeal was dismissed on 18 March 2004.

8. As regards the building permit, the Ministry quashed the decision of 13 July 1998 and ordered a re-examination of the application on 22 November 1999. Subsequently, on 16 January 2007, the DomZale Administrative Unit again quashed the decision of 26 January 1995, meaning that J.S.'s request for a building permit was refused. It relied on the fact that, following the above proceedings (see paragraph 7 above), J.S. was not in possession of a valid site permit which was a prerequisite for acquiring a building permit.

9. In 1997 the applicant instituted proceedings against J.S. in the Ljubljana District Court seeking the demolition of the unlawfully built extensions. She claimed that the extensions had been endangering her business and having a negative effect on working conditions.

10. On 10 July and 22 September 1997 respectively, the District Court issued two interim orders prohibiting J.S. from continuing with the illegal construction and selling the apartments. J.S. did not respect the orders and continued with the construction.

11. In the course of the proceedings, the court appointed a construction expert who prepared a report. The court refused the applicant's request for a supplement to the report finding that the request raised issues which should be determined in the administrative proceedings.

12. On 1 June 1998 the court, relying on the expert report, dismissed the applicant's claim. Referring to the conditions laid down in sections 42(1) and 5(1) of the Law on Basic Property Rights and section 156 of the Law on Obligations, it found that the deprivation of sunlight did not exceed the statutory limit and that the behaviour of the new residents could not be considered as a source of danger which could justify demolishing the building. In respect of the smell allegedly arising from the drainage, the court found that, firstly, the applicant had not raised this issue in her claim and secondly, the drainage problems had not been caused by the newly built extensions. The applicant could therefore not expect these extensions to be demolished. Lastly, the court noted that the issue of whether J.S.'s construction complied with statutory requirements was not relevant to the civil proceedings because, even if a construction was legal, an aggrieved party could seek redress in respect of an alleged environmental nuisance (imisije) in civil proceedings. The question of the compliance with statutory requirements was therefore a matter which had to be decided in the administrative proceedings. Consequently, the court also revoked the interim orders of 10 July and 22 September 1997.

13. The applicant lodged an appeal and on 24 February 1999 the Ljubljana Higher Court upheld the first-instance court's judgment. As regards the applicant's argument that she had been refused protection from future interferences by residents of the illegal construction, the Higher Court noted that the potential source of damage would have to be certain and concrete, which could not be established in the present case. In addition, it noted that none of the other issues mentioned by the applicant, namely, how many parking spaces were available to the new residents and where the fuel tank and rubbish bins should be placed, justified the demolition of the extensions and would be more appropriately considered in administrative proceedings.

14. On 30 March 2000 the Supreme Court rejected the applicant's appeal on points of law, finding that the lower courts' conclusions were correct and stressing that the applicant's allegations did not obviously justify the demolition of the disputed construction, which was the only claim pursued by the applicant. It added that demolition could be ordered only when there were no other means to prevent damage.

15. The applicant lodged a constitutional appeal. She disputed the lower court's opinion that she should have used other means in order to protect her right to property. She alleged that, owing to the circumstances of the case, in particular J.S.'s non-compliance with the authorities' orders and the lack of alternative solutions to the problems deriving from the illegal building, demolition was necessary. She submitted that the fact that J.S.'s building did not comply with the building permits should have been taken into account as the aim of such permits was also to protect the neighbours' interests. She further submitted that the Inspectorate could intervene only of its own motion and had been ineffective in her case. She would therefore not be able to gain effective protection of her rights in administrative proceedings.

16. On 18 September 2001 the Constitutional Court rejected the applicant's complaints as inadmissible since it did not find any violation of her human rights. In this connection, it found that the courts, by finding that some issues should be determined in administrative proceedings, had not referred the applicant to administrative proceedings or denied judicial protection in respect of those rights. The Constitutional Court furthermore said that in any event, even when assessing a right in administrative proceedings, a party dissatisfied with the result could subsequently bring a claim before the Administrative Court. Lastly, the Constitutional Court stressed that the applicant's case had been examined by tribunals established by law which had duly considered the applicant's claims and that the decisions issued in the case had been well reasoned. The decision was served on the applicant on 10 October 2001.

4. Measures taken by the Inspectorate of the Ministry of the Environment and Spatial Planning

17. In 1997, the Inspectorate of the Ministry of the Environment and Spatial Planning (“the Inspectorate”) instituted proceedings against J.S. in respect of the construction of an exterior staircase and the illegal extension of the mansard.

18. Due to the non-compliance of J.S.'s construction with the building permit of 26 January 1995, the Inspectorate gave, in 1997, decisions ordering the construction site to be supervised, for it to be brought into compliance with the requirements of the permit (in particular as regards the construction on the mansard and one of the extensions) and, ultimately, for construction to be stopped. On 18 May 1998 the decision allowing the enforcement of the above decisions was given and, in the following two years, a fine of 100,000 Slovenian tolars (SIT), approximately 400 euros (EUR), was repeatedly imposed on J.S.

19. According to the note from the Land Registry concerning J.S.'s real estate, J.S. had been banned from continuing to build or sell the construction since 1997. In 1998 the status of “illegal construction” (črna gradnja) was entered into the registry.

20. On 3 December 1998 the Inspectorate issued a decision ordering the removal of an exterior staircase, for which no permit had ever been issued and which was the only way to enter the apartments situated in the north-west and north sections of the building. By 17 July 1999 this decision had become final and enforceable. On 13 June 2001 the Inspectorate also ordered the removal of an extension of 11m x 2.5m situated in the south section, which consisted of two floors, and of the wall which served to separate J.S.'s land from the neighbouring plots. Since administrative enforcement proceedings were not carried out in Slovenia between 1999 and 2004, which was due to the absence of any authorised operator who could carry out the enforcement, the decisions ordering the enforcement of the above decisions were adopted only on 14 October 2004.

21. In the meantime, J.S. had been using the new extensions, in particular the eight apartments, despite the fact that he had not obtained an operating permit (uporabno dovoljenje). On 15 December 2000, J.S. was banned from making use of the extensions. In 2001, several inspections were carried out of his property. As J.S. had not complied with the decision of 15 December 2000, the Inspectorate fined him 100,000 SIT on 7 May 2004.

22. It would appear from the records concerning the execution of one of the decisions of 14 October 2004 (see paragraph 20 above) that part of the above-mentioned extensions to the south section of the building and the wall were demolished in November 2005.

23. As regards the exterior staircase, J.S. was ordered to remove it on 22 June 2007. Following an objection from the residents of the apartments, who had also invested in the construction of the staircase, the case was reopened in order to allow them to participate in the proceedings. On 24 April 2009, the Inspectorate issued a decision again ordering the removal of the exterior staircase. It noted in its decision that no permit had ever been issued for the construction of the staircase and, furthermore, that the site and building permits for the large extension of the initial building had also been quashed by binding decisions. The case is now pending on appeal.

24. Section 156 of the Law on Obligations (Zakon o obligacijskih razmerjih, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 29/1978) provided, in so far as relevant:

“(1) Everyone can request that another person remove a source of danger which poses a threat of significant damage to him or others, and can ask that person to refrain from activities which cause nuisance or risk of damage, if the nuisance or damage cannot be prevented by appropriate measures.

(2) Further to the request ... the court shall determine the appropriate measures for preventing damage or nuisance or for the removal of the source of danger with the costs being borne by the owner, if the latter does not do this on his own.

25. The relevant provisions of the Law on Basic Property Rights (Zakon o temeljnih lastninskopravnih razmerjih, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 6/1980), read as follows:

“The owner of the real estate must... refrain from the activities and must remove the sources... (smoke, unpleasant smells, heat...etc.) which interfere with their neighbours' enjoyment of their property, if these interferences exceed the level which is normal given the nature and purpose of the estate and the local customs. The same applies when such activities or sources cause significant damage.”

“If a third person unjustifiably disturbs an owner ... in any way other than by taking possession of his property, the owner ... can bring a civil claim demanding that such disturbance discontinue.”

If the disturbance causes damage, the owner can demand compensation in accordance with the general rules...”

26. Section 24 of the Inspection Act (Zakon o inšpekcijskem nadzoru, Official Gazette no. 56/2002) provides in the relevant part:

“The inspector must consider all reports, complaints, notices and any other applications which are within his competence and inform the applicants, upon their request, of the steps taken.

In proceedings before the Inspectorate, the person accused of the alleged misconduct (zavezanec) has the status of party to the proceedings. The applicant who lodged an application ...[with the Inspectorate] is not considered a party to the proceedings.”

27. The Constitutional Court decision of 15 July 1999 (Up-3/97) provides, in so far as relevant, as follows:

“... the persons, whose rights and interests are affected by the decisions of the Inspectorate should have the status of party to the proceedings (...). However, the purpose of supervision by the Inspectorate requires that individuals cannot initiate proceedings before the Inspectorate. ....

.... supervision by the Inspectorate is aimed at protecting public interests; protection of the rights concerning relations between neighbours is afforded in civil proceedings based on the Law on Basic Property Rights and the Law on Obligations.”

28. The applicant complained under Articles 6 and 13 of the Convention that the legal avenues provided in domestic legislation proved ineffective. Given the nature of proceedings before the Inspectorate, which could not be initiated by her and which are conducted solely ex-officio, her only chance to have her claim for demolition considered would have been to institute civil proceedings. However, courts in the civil proceedings had denied her protection and referred her to administrative proceedings, which had been futile. In so far as she could have been expected to modify her claim in the civil proceedings, the applicant submitted that this had been unrealistic given the circumstances, in particular J.S.'s conduct and the fact that the construction was illegal. Had she asked for the construction to be modified, it would ultimately have been her who would have had to pay for it.

29. The applicant further complained that, as a result of her neighbour's illegal building, she was being subjected to a considerable interference with the use of her property, including her business. Under Article 1 of Protocol No. 1 she complained that the Slovenian authorities had failed to protect her right to property.

30. The Government argued that the case should be declared inadmissible as the applicant was merely disagreeing with the outcome of the domestic proceedings. As regards the reference to administrative proceedings made by the court, this had in no way denied the applicant access to court. The reference had been made in respect of certain arguments advanced by the applicant which had not substantiated her request for demolition.

31. The Government submitted that the applicant had won in the administrative proceedings but had lost the civil case as she had wrongly formulated her claim, namely, she had only sought the demolition of the illegal construction. Had demolition been justified, the applicant would have succeeded with her claim and would have subsequently been able to request judicial enforcement. The applicant had had at her disposal a fully effective legal avenue in the context of civil proceedings. It had been open to her to seek a number of different measures in line with section 156 of the Law on Obligations, which would have been more appropriate to redress the situation than the request for demolition. In this connection, the Government submitted a copy of the decisions issued in another similar case, in which the court had awarded the aggrieved party compensation and ordered the investor of the neighbouring construction to, inter alia, obtain all the necessary permits and to provide access and build an entry road for the aggrieved party. Subsequently, enforcement proceedings had been opened in 1999 but the case was eventually settled.

32. As regards the proceedings before the Inspectorate, the Government submitted that their primary purpose was to protect a public interest, namely the compliance with legislation and regulations, and that Article 6 was therefore not applicable to these proceedings. The Inspectorate proceedings should not be seen as a central issue in the applicant's case as the legal system had afforded the protection of property rights by affording a range of remedies within civil proceedings. In any event, since the Constitutional Court's decision of 15 July 1999, persons whose rights could potentially be affected by the Inspectorate's decisions were entitled to participate.

33. The Government further submitted that the applicant's complaint under Article 1 of Protocol No. 1 to the Convention was unsubstantiated, as the mere fact that her claim for demolition had been unsuccessful could not be considered as an interference with her property rights.

34. The applicant submitted that the Inspectorate conducted proceedings ex-officio. Referring to section 24 of the Inspection Act she submitted that a person could only report an illegal act to the Inspectorate, but could not initiate proceedings. The Constitutional Court's decision of 15 July 1999 did not change anything in this respect. The applicant further argued that the only effective measure would be to demolish the illegally built constructions. However, due to ineffective proceedings before the Inspectorate, demolitions were not generally carried out in Slovenia. The applicant also reiterated that civil proceedings did not provide for sufficient redress and that the Inspectorate's decisions taken in the case had not improved her situation.

35. Firstly, the applicant seems to complain that she was denied access to court as she had been advised by the civil court to advance certain arguments in administrative proceedings. Secondly, her complaint concerning her unsuccessful attempt to have the neighbouring illegal construction demolished can be understood, on the one hand, as a complaint of a lack of enforcement of the decisions given in the administrative proceedings, and, on the other hand, as a complaint about the outcome of the civil proceedings.

In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

37. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Golder v. the United Kingdom, 21 February 1975, §§ 35-36, Series A no. 18). This right extends only to disputes (“contestations”) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, Powell and Rayner v. the United Kingdom, 21 February 1990, § 36, Series A no. 172).

38. The Court notes that the applicant lodged a civil claim in which she sought only the demolition of the neighbouring illegal construction. Her claim was fully answered by the domestic courts. It is true that the latter referred the applicant to submit her arguments concerning the constructions' compliance with the applicable regulations and matters such as the positioning of the parking area and fuel tank in the administrative proceedings (see paragraphs 12 and 13 above), which were, at that time, pending and in which the applicant eventually succeeded (see paragraph 8 above). However, given the content of the claim pursued by the applicant, which was limited to the demolition request, the court was not asked to determine issues in connection to which it had made its reference to administrative proceedings. It therefore cannot be said that the applicant was denied access to court in this respect.

39. Moreover, the applicant complained that the administrative proceedings had been ineffective; that although she had succeeded in having her neighbour's site and building permits revoked, she had nevertheless been deprived of the opportunity to have this decision appropriately enforced. The Court finds that these submissions raise a further issue to be examined under Article 6 § 1 of the Convention. It reiterates that the right of access to court also includes the right to be sufficiently protected against the refusal of state authorities to comply with a court judgment (Hornsby v. Greece, 19 March 1997, §§ 40-41, Reports of Judgments and Decisions 1997 II).

40. In this connection it observes that in the case Ortenberg v. Austria (25 November 1994, § 28, Series A no. 295 B) the Court recognised that proceedings for granting a building permit to a particular person could also involve consideration of the civil rights of the neighbour opposing the building permit. The Court found that, in such proceedings, the pecuniary interests of the opposing neighbour could be at stake and found the civil-right limb of Article 6 to be applicable. Noting that under the Slovenian law the right of a neighbour to be a party to proceedings regarding site and building permits is recognised (see paragraph 7 above), the Court will assume that these proceedings involved consideration of the applicant's civil rights in the present case. It will do so because the complaints should be, in any event, dismissed for the following reasons.

41. The Court observes that the applicant was successful in the administrative proceedings concerning her neighbour's application for site and building permits, which resulted in those permits being refused (see paragraphs 6-8 above). It cannot find, however, that this should automatically give the applicant the right to have the building destroyed. Demolition would only be one way of enforcing the decision rendered in the proceedings concerning the site and building permits. The Court further notes that the relevant Slovenian law does not provide for an individual right of a neighbour to have demolition proceedings instituted before the Inspectorate (see paragraphs 26, 27 and 34 above, and also a similar case Krickl v. Austria, no. 21752/93, Commission decision of 21 May 1997, Decisions and Reports 89). Another possibility would be to request the elimination of the environmental nuisance by undertaking certain material steps, such as fixing the drainage or altering the construction, and for pecuniary compensation to be paid to the applicant for the alleged damage caused by the unlawfully erected building. Thus, the applicant could have instituted civil proceedings against her neighbour seeking elimination of the alleged environmental nuisance in ways other than demolition or could have sought compensation if she had actually sustained damage as a result of the illicit construction. The applicant, however, did not choose these avenues (see, for example, Emsenhuber v. Austria (dec.), no. 54536/00, 11 September 2003). Her mere doubts as to the prospects of success of these other avenues cannot lead the Court to reach a different conclusion in this case.

42. Finally, as the applicant essentially calls into question the assessment of facts and the application of law by the domestic courts deciding the civil proceedings, she in fact requests the Court to act as an appeal court of “fourth instance”. She submitted her arguments and complaints to the competent domestic courts, which were best placed to assess the evidence and to interpret and apply the rules of substantive and procedural law. The Court does not find any manifestly arbitrary reasoning in the relevant court decisions.

43. Taking these circumstances into account, the Court cannot find that there is any appearance of a violation of the applicant's rights under Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

44. The applicant maintained that the same facts constituting the alleged violation of Article 6 also gave rise to a breach of Article 13, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

45. In view of its decision concerning Article 6, the Court notes that the requirements of Article 13 are less strict than those of Article 6 and are in this instance absorbed by them (see, among many other authorities, De Geouffre de la Pradelle v. France, 16 December 1992, § 37, Series A no. 253 B). It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

46. The applicant complained that the Slovenian authorities failed to protect her right to property. She relied on Article 1 of Protocol No. 1, which provides:

“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.”

47. The Court observes that the applicant was not prevented by law from using her land as she wished as she had still been able to build on it or sell it. The Court therefore finds that the situation complained of did not amount to a deprivation of the applicant's possessions within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. Nor did it constitute the control of the use of the applicant's property, which would have to be examined under the second paragraph of Article 1. It remains to be ascertained whether the situation complained of amounts to an unjustified interference with the rights guaranteed to the applicant in the first sentence of the first paragraph of Article 1 of Protocol No. 1.

48. The applicant argued that she was subject to a considerable interference with the use of her property, including her business, because of the authorities' failure to have the illegal extensions to the building on her neighbour's land demolished. The Court finds, however, that the applicant has not sufficiently substantiated that the illegal construction on the neighbouring land led to a loss of value of her land or that she had suffered any financial loss. Moreover, she has not demonstrated that she could not be compensated for the unpleasant consequences of the illegal construction by instituting civil proceedings to that effect (see paragraph 41 above). Accordingly, there is no appearance of a violation of the applicant's right to the peaceful enjoyment of her possessions as guaranteed by Article 1 of Protocol No. 1. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Hilda RUPAR v Slovenia - 16480/02 [2010] ECHR 915 (18 May 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/915.html Cite as: [2010] ECHR 915