SECOND SECTION
\nCASE OF KIPS DOO AND DREKALOVI\u0106 v. MONTENEGRO
\n(Application no. 28766\/06)<\/p>\n
JUDGMENT
\n(Merits)
\nSTRASBOURG
\n26 June 2018<\/p>\n
FINAL
\n26\/09\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of KIPS DOO and Drekalovi\u0107 v. Montenegro,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 5 June 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 28766\/06) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by KIPS DOO, a company registered in Montenegro (\u201cthe first applicant\u201d), and Mr Risto Drekalovi\u0107, a Montenegrin national, (\u201cthe second applicant\u201d), on 16 July 2006.<\/p>\n 2.\u00a0\u00a0The applicants were represented by Mr P. Savi\u0107, a lawyer practising in Belgrade, Serbia. The Montenegrin Government (\u201cthe Government\u201d) were represented by their Agent, Mrs V. Pavli\u010di\u0107.<\/p>\n 3.\u00a0\u00a0The applicants complained, in particular, about the length of administrative and enforcement proceedings, lack of an effective domestic remedy in that regard, and a violation of their property rights.<\/p>\n 4.\u00a0\u00a0On 14 December 2016 those complaints were communicated to the Government. The remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The first applicant was founded in 1990 and has its seat in Podgorica. The second applicant was born in 1952 and lives in Podgorica. The second applicant is the first applicant\u2019s founder, executive director, and the owner of 99.2698 % of its shares. The remaining 0.7302% is owned by the second applicant\u2019s wife and son.<\/p>\n A. Background information<\/strong><\/p>\n 6.\u00a0\u00a0On 3 August and 11 November 1998 respectively the first applicant concluded two contracts with the Development Land Social Fund (Dru\u0161tveni fond za gra\u0111evinsko zemlji\u0161te, poslovni prostor i puteve Podgorica). Under the first contract the first applicant obtained the right to use (pravo kori\u0161\u0107enja) four plots of development land (gra\u0111evinsko zemlji\u0161te) with a total surface of 11,443 m2, on which it planned to build a shopping centre and an office building. The second contract concerned the communal charges for the necessary infrastructure on the land at issue (naknada za ure\u0111enje gra\u0111evinskog zemlji\u0161ta). On an unspecified date thereafter the four plots of land were joined into one, marked as no.\u00a02090\/1036.Pursuant to sections 419 and 420 of the Property Act 2009 (see paragraph 61 below) the first applicant became the owner of the land at issue on 9 December 2011.<\/p>\n 7.\u00a0\u00a0On 15 April 2005 the Property Administration (Uprava za nekretnine) issued a decision by which it divided the cadastral plot of land no.\u00a02090\/1036 into two, one of which kept the number 2090\/1036 and had 11,365 m2, and another one which was registered as no.\u00a02090\/1220 and which had 77 m2.<\/p>\n 8.\u00a0\u00a0On 3 March 2016 the cadastral plot of land no. 2090\/1036 was further split into two, the smaller part of 44 m2 becoming a cadastral plot of land no. 2090\/1581. The bigger part kept the number 2090\/1036 and measured 11,321\u00a0m2.<\/p>\n B. The Detailed Urbanistic Plan and its changes<\/strong><\/p>\n 9.\u00a0\u00a0On an unspecified date in 2004 the first applicant\u2019s plan for the shopping centre and the office building was registered in a Detailed Urbanistic Plan (Detaljni urbanisti\u010dki plan, \u201cDUP\u201d).<\/p>\n 10.\u00a0\u00a0In December 2004 the DUP for the relevant area was changed, one of the changes being that the cadastral plot of land no. 2090\/1036 and an adjacent plot of land of 1,557 m2, owned by the Municipality, were joined into one urban plot (urbanisti\u010dka parcela).<\/p>\n 11.\u00a0\u00a0On 6 June 2005 the President of the Municipality decided to change the relevant DUP further, which decision entered into force on 7 July 2005. Construction in the area was prohibited thereby for the next 90 days except in case of those investors who had already obtained a building permit prior to this decision.<\/p>\n 12.\u00a0\u00a0On 6 October 2005 another decision was issued, providing that the DUP would be changed within 90 days and construction was further prohibited until the adoption of a new DUP but up to one year at most. The ban did not apply to the investors who had already obtained a building permit. This decision entered into force on 14 October 2005.<\/p>\n 13.\u00a0\u00a0On 20 January 2006 a new decision to change the DUP was issued, revoking the previous two decisions. As regards its contents it corresponded to the decision of 6 October 2005. It entered into force on 23 January 2006.<\/p>\n 14.\u00a0\u00a0On 21 July 2006 a new DUP was issued; it entered into force on 29\u00a0July 2006. Thereby the adjacent plot of land that had previously been added to plot no. 2090\/1036 was apparently split into three: two parts became parts of two newly-formed urban plots of land and the third part remained attached to the applicant\u2019s land and would appear to be part of a traffic route (saobra\u0107ajnica). It would also appear that in this urban plot of land the DUP planned the construction of two buildings instead of the shopping centre planned by the first applicant.<\/p>\n 15.\u00a0\u00a0On 28 July 2010 a new decision to change the DUP was issued.<\/p>\n 16.\u00a0\u00a0On 16 May 2013 the DUP was changed again, apparently providing for the construction of buildings similar to those initially planned to be built there by the applicants.<\/p>\n C. The \u201ccompletion\u201d of the urban plot<\/strong><\/p>\n 17.\u00a0\u00a0Following the changes of the DUP in December 2004 (see paragraph\u00a010 above), on 25 January 2005 the first applicant contacted the Property Secretariat (Direkcija za imovinu; \u201cthe Secretariat\u201d) in the Podgorica Municipality. It sought to \u201ccomplete\u201d the urban plot, that is to buy the adjacent cadastral plot of land which had been added to its own land, thus forming one urban plot of land; having received no reply it renewed its request on 23 May 2005 and 2 August 2005.<\/p>\n 18.\u00a0\u00a0On 27 January 2005 the Spatial Planning Secretariat of Podgorica Municipality issued Urban Technical Conditions, which stated that the cadastral plot of land no. 2090\/1036 was smaller than the relevant urban plot and that it needed to be \u201ccompleted\u201d (potrebno je izvr\u0161iti njeno dokompletiranje).<\/p>\n 19.\u00a0\u00a0On 23 February 2005 the Ministry of Environmental Protection and Spatial Planning (\u201cthe Ministry\u201d) granted the first applicant a location for the construction of business premises on plot no. 2090\/1036, in accordance with the 2004 DUP. The decision specified that the Urban Technical Conditions of 27\u00a0January 2005 were a constituent part of this decision.<\/p>\n 20.\u00a0\u00a0On 15 August 2005 the first applicant appealed, having received no reply from the Secretariat. The same day the Secretariat informed the first applicant that no completion of plots could be done given that the revision of the DUP was ongoing at the time, which meant \u201curbanistic re\u2011consideration of the area\u201d at issue.<\/p>\n 21.\u00a0\u00a0By 6 April 2017 there had been at least seven remittals, either by the Municipality\u2019s Chief Administrator (as the competent second-instance body) or the Administrative Court.<\/p>\n 22.\u00a0\u00a0In the course of these proceedings, on 2 September 2016 the Secretariat enquired at the Property Administration if the same urban plot of land, as it had existed at the time when the first applicant had first filed a request for completion, could be formed again. On 23\u00a0September 2016 the Property Administration replied that the size of the said plot of land had been changed in the meantime and that there was no basis for re-forming the urban plot as it once had been.<\/p>\n 23.\u00a0\u00a0On 6 April 2017 the Secretariat dismissed the first applicant\u2019s request again.On 19 May 2017 the Chief Administrator upheld this decision, considering that due to the changes of the planning documents the completion of the said plot of land could not be done and that therefore the first applicant\u2019s request had been correctly dismissed.On 23 June 2017 the first applicant instituted an administrative dispute before the Administrative Court, which would appear to be still pending.<\/p>\n D.\u00a0\u00a0The calculation of the communal charges<\/strong><\/p>\n 1.\u00a0\u00a0Administrative proceedings<\/em><\/p>\n 24.\u00a0\u00a0On 11 July 2005 the first applicant requested the Agency for Construction and Development of Podgorica (Agencija za izgradnju i razvoj Podgorice; \u201cthe Agency\u201d), a legal successor of the Development Land Social Fund, to calculate the final communal charges for the urban plot no.\u00a02090\/1036.<\/p>\n 25.\u00a0\u00a0On 20 July 2005 the Agency replied that the calculation could not be made due to the construction ban.<\/p>\n 26.\u00a0\u00a0On 26 July and 6 September 2005 the first applicant urged the Agency to make the necessary calculation, submitting that the ban applied only to construction and not to the calculation of charges.<\/p>\n 27.\u00a0\u00a0On 13 September 2005 the first applicant made its own assessment of the communal charges in the amount of 131,324.65 euros (EUR) and made the payment. The payment was returned the next day as it had been made \u201cwithout cause\u201d (upla\u0107en bez osnova).<\/p>\n 28.\u00a0\u00a0In the course of the proceedings the applicant repeated its request to the Agency on several occasions, including between 5 and 14 October 2005, submitting that the construction ban as the basis for refusal was unlawful and\/or the ban was not in force at the relevant time.<\/p>\n 29.\u00a0\u00a0By 1 December 2005 the applicant\u2019s request had been refused by the Agency at least four times on the grounds that construction was banned pursuant to either the decision to change the DUP of 6 June 2005 or the decision of 6 October 2005. The Agency also held that the calculation could not be done as the first applicant had no building permit.<\/p>\n 30.\u00a0\u00a0On 1 December 2005 the second-instance body rejected the first applicant\u2019s appeal on the grounds that this was not a matter for administrative proceedings. The first applicant initiated an administrative dispute before the Administrative Court in this regard but in view of the opinion of the second-instance body it withdrew that claim, and instead pursued the proceedings before the Commercial Court.<\/p>\n 2\u00a0\u00a0 Judicial proceedings<\/em><\/p>\n 31.\u00a0\u00a0On 16 September 2005 the first applicant instituted proceedings before the Commercial Court (Privredni sud) in Podgorica against the Agency for refusing to calculate the communal charges.<\/p>\n 32.\u00a0\u00a0On 7 April 2006 the Commercial Court ruled in favour of the first applicant and ordered the Agency to calculate the charges. The court considered in particular that the first decision to change the DUP, which prohibited construction, had entered into force on 7 July and expired on 5\u00a0October 2005, while the next decision had entered into force on 14\u00a0October 2005. Therefore, there had been no construction ban before 7\u00a0July 2005 or between 5 and 14 October 2005, when the first applicant requested the communal charges to be calculated and when the Agency was bound to calculate them. The court also noted that the Agency\u2019s reasoning for refusing the first applicant\u2019s request, notably that \u201cthe calculation [could] not be done as the first applicant had no building permit\u201d was illogical, since the calculation of charges was a pre-condition for getting a building permit.<\/p>\n 33.\u00a0\u00a0The Court of Appeals and the Supreme Court upheld the previous decision on 18 April and 29 December 2008 respectively. The Supreme Court held, inter alia, that the first applicant had been granted the location for construction by the competent Ministry before it was decided that the DUP would be changed and that a decision to change the DUP could not affect the investors who had already been granted a location.<\/p>\n 34.\u00a0\u00a0On 6 August 2008 the Agency calculated the charges. It provided for a new contract to be concluded with the first applicant, which specified that pursuant to the 1998 contract the applicant had already paid a certain amount and that the remaining amount to be paid was EUR\u00a0269,309.83.<\/p>\n 35.\u00a0\u00a0On 13 October 2008, upon the first applicant\u2019s request, the Commercial Court issued an enforcement order, which provided that the Agency would calculate the charges within 30 days or it would face a penalty of EUR 550, and would have to calculate the charges within the following 15 days.<\/p>\n 36.\u00a0\u00a0On 20 October 2008 the first applicant received the above calculation from the Agency.On 22 October 2008 it requested that the contract specify in accordance with which DUP the construction would be undertaken.<\/p>\n 37.\u00a0\u00a0On 27 October 2008 the Agency replied that the first applicant\u2019s request was outside the Agency\u2019s competence and that the first applicant should address bodies in charge of urban planning in that respect. On 28\u00a0October 2008 the Agency notified the Commercial Court that it had complied with its judgment and the enforcement order.<\/p>\n 38.\u00a0\u00a0On 10 November 2008 the first applicant informed the Commercial Court that it did not consider the relevant judgment enforced as it had \u201cserious objections\u201d to the documents submitted by the Agency due to which it had not signed them.<\/p>\n 39.\u00a0\u00a0On 16 February 2009 the Agency informed the Commercial Court that the first applicant had no objections in respect of the calculation itself, and noted that no statute provided for an obligation or a possibility for the first applicant to sign the calculation.<\/p>\n E. Proceedings for a building permit<\/strong><\/p>\n 1.\u00a0\u00a0The first proceedings<\/em><\/p>\n 40.\u00a0\u00a0On 8 July 2005 the first applicant requested a building permit for the shopping centre from the Ministry.<\/p>\n 41.\u00a0\u00a0On 26 July 2005 the first applicant notified the Ministry that the Agency was refusing to calculate the charges and asked the Ministry to urge that the Agency do so. On 12 August 2005 the Ministry responded that it had no competence as regards matters relating to the calculation of the charges.<\/p>\n 42.\u00a0\u00a0On 14 September 2005 the first applicant informed the Ministry that it had done the calculation itself and had made the payment (see paragraph\u00a027 above).<\/p>\n 43.\u00a0\u00a0On 23 September 2005 the Ministry dismissed the first applicant\u2019s request on the grounds that it had not paid the communal charges or completed the urban plot pursuant to the Urban Technical Conditions.<\/p>\n 44.\u00a0\u00a0On 18 November 2005 the first applicant instituted an administrative dispute before the Administrative Court. It submitted, inter alia, that the requirement to buy an adjacent plot of land had been introduced in addition and was unnecessary given that the shopping centre was planned entirely on the cadastral plot of land no. 2090\/1036. It also maintained that the refusal to calculate the charges was groundless as the ban related to construction only and not to the calculation of the charges, and that it was a deliberate obstruction.<\/p>\n 45.\u00a0\u00a0On 29 December 2005 the Administrative Court dismissed the first applicant\u2019s claim on the grounds that there was no contract between the first applicant and the Agency concerning the communal charges, that the first applicant had failed to submit all the evidence required by the relevant statutory provision in order to obtain a building permit, and it had failed to obtain an adjacent plot of land as required by the Urban Technical Conditions. The court did not deal with the first applicant\u2019s explicit submission that the said requirements were unlawful and\/or unnecessary.<\/p>\n 46.\u00a0\u00a0On an unspecified date thereafter the first applicant lodged a request for judicial review before the Supreme Court, maintaining that there was a contract between itself and the Agency concluded in 1998. It also submitted that the courts had blamed the first applicant for not paying the charges and completing the plot, even though it had done everything it could to comply with these requests, and had actually complained about the unlawfulness of the relevant State bodies\u2019 refusal to cooperate in these matters.<\/p>\n 47.\u00a0\u00a0On 2 March 2006 the Supreme Court upheld the previous decision, considering that the first applicant had indeed failed to submit proof that it had paid the communal charges and completed the urban plot as requested.<\/p>\n 2.\u00a0\u00a0The second proceedings<\/em><\/p>\n 48.\u00a0\u00a0On 29 August 2014, following the change of the DUP in 2013, the first applicant requested a building permit for \u201ccentral activities building\u201d (za izgradnju objekta centralnih djelatnosti). On 27 July 2017, after five remittals, the proceedings were still pending.<\/p>\n F. The proceedings before the Constitutional Court<\/strong><\/p>\n 49.\u00a0\u00a0Between 15 August 2005 and 20 September 2006 the first applicant filed three motions with the Constitutional Court for the assessment of the constitutionality and legality of the decisions to change the DUP issued on 6\u00a0June 2005, 20 January and 21 July 2006 respectively.<\/p>\n 50.\u00a0\u00a0On 30 January 2006 the Constitutional Court discontinued the proceedings (obustavlja se postupak) upon the first motion as the impugned decision of 6 June 2005 was no longer in force.<\/p>\n 51.\u00a0\u00a0On 6 December 2006 and 27 June 2007, respectively, the Constitutional Court rejected the other two motions.<\/p>\n G. Other relevant facts<\/strong><\/p>\n 52.\u00a0\u00a0The DUP in the area at issue was subject to changes in 1990, 1996, 1997, 1999 (the changes in 1999 were done pursuant to the first applicant\u2019s request to that effect), 2002 (entered into force in 2003), 2004 (entered into force in 2005), 2006, 2010 and 2013. The purpose of the land also changed over time, from \u201csports and recreation\u201d to \u201ccentral activities\u201d (centralne djelatnosti).<\/p>\n 53.\u00a0\u00a0Between 8 February and 8 July 2005 the first applicant obtained a number of permits related to the planned construction of the shopping centre (electro-energetic, water supply, sanitation, geo-mechanic, urbanistic, as well as those related to fire safety, environmental protection, workplace safety, traffic, etc.).<\/p>\n 54.\u00a0\u00a0Between January and August 2005 there were at least four other requests relating to the land in respect of which the DUP was changed (three of which were also for completion of relevant plots of land). In all four cases the claimants were informed that their requests could not be met in view of the changes which the DUP was undergoing.<\/p>\n 55.\u00a0\u00a0On 14 August 2006 the Ministry sent a letter to the mayors of all Municipalities. The letter stated, in substance, that \u201ccertain local government units\u201d interpreted section 33 of the Spatial Planning and Development Act (Zakon o planiranju i ure\u0111enju prostora) (see paragraph\u00a069 below), which provided for a possibility of a construction ban where appropriate, in a way that was incompatible with its contents, essence and meaning. The Ministry further explained that a decision on \u2018a construction ban\u2019 related exclusively to a ban on issuing a decision granting a location, as a document on the basis of which a building permit was issued, and that in a case where the decision on location had been issued prior to the construction ban, the competent body had a duty to issue a building permit to an investor, provided that the conditions provided in section 34 of the Construction Act (Zakon o izgradnji objekata) were fulfilled, regardless of whether the construction ban in the relevant area was in force.<\/p>\n 56.\u00a0\u00a0Between 1 August and 8 December 2006 the first applicant was granted a location and was issued urban planning conditions for the construction of a warehouse in another part of Podgorica. It also obtained other relevant consents (concerning water supply, electricity, fire protection, traffic, ecology, sanitation, etc.) and the Ministry\u2019s urbanistic consent to technical documentation. On 28 December 2006 it concluded a contract with the Agency concerning the charges, and on 10 January 2007 it obtained a building permit for that location. By 17 December 2007 it had built the warehouse and obtained a permit to use it (upotrebna dozvola).<\/p>\n 57.\u00a0\u00a0On 27 August 2015, following the first applicant\u2019s proposal to that effect, a meeting was held between the representatives of the first applicant and the Agency. The Agency undertook to study the first applicant\u2019s submissions in relation to the urban plot of land no. 2090\/1036, including the one that it had not been allowed to honour all the obligations. It would appear, however, that the first applicant never received any response from the Agency.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n A. Constitution of Montenegro 2007 (Ustav Crne Gore; published in the Official Gazette of Montenegro – OGM – no. 1\/07)<\/strong><\/p>\n 58.\u00a0\u00a0This Constitution entered into force on 22 October 2007. Article 149 thereof provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.<\/p>\n B. Montenegro Constitutional Court Act 2008 (Zakon o Ustavnom sudu Crne Gore; published in OGM no. 64\/08)<\/strong><\/p>\n 59.\u00a0\u00a0This Act entered into force in November 2008. Sections 48-59 provided details as regards the processing of constitutional appeals.<\/p>\n C. Montenegro Constitutional Court Act 2015 (Zakon o Ustavnom sudu Crne Gore, published in the OGM no. 11\/15)<\/strong><\/p>\n 60.\u00a0\u00a0This Act entered into force on 20 March 2015, repealing the Constitutional Court Act 2008. Sections 38 and 68-78 provide details as regards the processing of constitutional appeals.<\/p>\n D. The Property Act 2009 (Zakon o svojinsko-pravnim odnosima; published in the OGM no.\u00a0019\/09)<\/strong><\/p>\n 61.\u00a0\u00a0Sections 419 and 420, taken together, provide, inter alia, that the users of socially-owned, later State-owned land shall become the owners thereof, and that the Real Estate Office shall accordingly make the changes in the Real Estate Registry.<\/p>\n 62.\u00a0\u00a0This Act entered into force on 21 March 2009.<\/p>\n E. The Development Land Act (Zakon o gra\u0111evinskom zemlji\u0161tu; published in the Official Gazette of the Republic of Montenegro – OG RM – no. 55\/00)<\/strong><\/p>\n 63.\u00a0\u00a0Section 10 provided, inter alia, that before building on land urban plots were to be formed.<\/p>\n 64.\u00a0\u00a0Section 17 provided that the communal charges for the development land (naknada za ure\u0111ivanje gra\u0111evinskog zemlji\u0161ta) were to be paid by the investor who was building on it. A local government unit would draw up the criteria necessary to calculate the said charges.<\/p>\n 65.\u00a0\u00a0Section 18 provided that the local government and the investor building on the land would regulate their relations in respect of the infrastructure on the land and the communal charges therefor by a contract.<\/p>\n 66.\u00a0\u00a0Section 22 provided that the user of the development land was bound to tolerate (du\u017ean je da trpi) changes of the boundaries of the urban plot.<\/p>\n F. The Construction Act (Zakon o izgradnji objekata; published in the OG RM no. 55\/00 and OGM no. 40\/08)<\/strong><\/p>\n 67.\u00a0\u00a0Section 34 specified, inter alia, which documents needed to be submitted in order to have a building permit issued, one of them being proof that communal charges for the land at issue had been paid. The proof of completion of a plot of land is not among the documents required.<\/p>\n G. The Spatial Planning and Development Act (Zakon o planiranju i ure\u0111enju prostora; published in OG RM no. 28\/05)<\/strong><\/p>\n 68.\u00a0\u00a0Section 26 set out rules for a detailed urban plan and its contents.<\/p>\n 69.\u00a0\u00a0Section 33 provided that a decision on a detailed urban plan could, when needed, provide also for a construction ban, which could last up to one year at most.<\/p>\n 70.\u00a0\u00a0This Act entered into force on 13 May 2005.<\/p>\n H. The Spatial Planning and Construction Act (Zakon o ure\u0111enju prostora i izgradnji objekata; published in OGM nos. 51\/08, 40\/10, 34\/11, 40\/11, 47\/11, 35\/13, 39\/13, and 33\/14)<\/strong><\/p>\n 71.\u00a0\u00a0Sections 58 and 59 provided that urban plots could consist of one or more cadastral plots of land or parts thereof and that the owners of cadastral plots were bound to tolerate changes of the boundaries of urban plots.<\/p>\n 72.\u00a0\u00a0Section 66 provided, inter alia, that the investor paid for the communal charges of the development land. The conditions, method, time\u2011limits and the procedure for the payment thereof were to be prescribed by the local government, with the Government\u2019s prior consent.<\/p>\n 73.\u00a0\u00a0Section 93 specified the documents on the basis of which a building permit was issued, one of them being proof that the communal charges had been paid. The completion of a relevant plot of land is not mentioned amongst them.<\/p>\n 74.\u00a0\u00a0This Act entered into force on 30 August 2008, repealing the previous three Acts. It was in force until 14 October 2017, when it was repealed by the new Spatial Planning and Construction Act (Zakon o planiranju prostora i izgradnji objekata; published in OGM no. 64\/17).<\/p>\n I. The Obligations Act 1978 (Zakon o obligacionim odnosima; published in the Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29\/78, 39\/85, 45\/89, 57\/89 and the Official Gazette of the Federal Republic of Yugoslavia no. 31\/93)<\/strong><\/p>\n 75.\u00a0\u00a0Sections 154 and 155 set out different grounds for claiming civil compensation, including pecuniary and non-pecuniary damage.<\/p>\n 76.\u00a0\u00a0Section 172 (1) provided that a legal entity, which includes the State, was liable for any damage caused by one of \u201cits bodies\u201d.<\/p>\n J. The Obligations Act 2008 (Zakon o obligacionim odnosima; published in the OGM nos. 47\/08 and 04\/11)<\/strong><\/p>\n 77.\u00a0\u00a0This Act entered into force on 15 August 2008, repealing the Obligations Act 1978. Sections 148, 149 and 166 (1), however, correspond to sections 154, 155, and 172 (1) of the previous Act.<\/p>\n K. Right to a Trial within a Reasonable Time Act (Zakon o za\u0161titi prava na su\u0111enje u razumnom roku; published in the OGM no.\u00a011\/07)<\/p>\n 78.\u00a0\u00a0This Act entered into force on 21 December 2007. It provides, under certain circumstances, the possibility to have lengthy proceedings expedited by means of a request for review (kontrolni zahtjev), as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress (tu\u017eba za pravi\u010dno zadovoljenje).<\/p>\n L. Civil Procedure Act (Zakon o parni\u010dnom postupku; published in the OG RM nos. 22\/04, 28\/05 and 76\/06, and the OGM no. 73\/10, 47\/15, 48\/15, 51\/17, and 75\/17)<\/strong><\/p>\n 79.\u00a0\u00a0Section 352 provides, inter alia, that a judgment becomes final when it can be no longer challenged by an appeal. Section 455 provides that the Civil Proceedings Act shall apply accordingly to commercial disputes.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 THERETO<\/p>\n 80.\u00a0\u00a0The applicants complained under Articles 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1 about an interference with their property rights, notably about not having been issued with a building permit for a shopping centre in the first set of proceedings.They also complained about: (a) the length of the administrative proceedings related to the completion of the urban plot of land (see paragraphs 17-23 above) and lack of an effective domestic remedy in that regard, and (b) the length of the enforcement proceedings pursuant to the Commercial Court\u2019s judgment of 7\u00a0April 2006 (see paragraph 31-39 above), and lack of an effective domestic remedy in that regard.<\/p>\n 81.\u00a0\u00a0The Court reiterates that a complaint consists of two elements: factual allegations and legal arguments. By virtue of the jura novit curia principle the Court is not bound by the legal grounds adduced by the applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant (see Radomilja and Others v. Croatia [GC], nos. 37685\/10 and 22768\/12<\/a>, \u00a7 126, ECHR 2018). The Court considers that the complaints in the present case fall to be examined under Articles 6 and 13 of the Convention, and Article 1 of Protocol No. 1 thereto.The relevant Articles read as follows:<\/p>\n Article 6<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n Article 13<\/p>\n \u201cEveryone 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.\u201d<\/p>\n Article 1 of Protocol No. 1<\/p>\n \u201cEvery 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.<\/p>\n 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.\u201d<\/p>\n 82.\u00a0\u00a0The Government contested the applicants\u2019 complaints.<\/p>\n
\nPaul Lemmens,
\nLedi Bianku,
\nNeboj\u0161a Vu\u010dini\u0107,
\nValeriu Gri\u0163co,
\nJon Fridrik Kj\u00f8lbro,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n