AS TO THE ADMISSIBILITY OF
by Katerina TANEVA and Others
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 10 November 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 27 March 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Ms Katerina Taneva (“the first applicant”), Mr Nikola Dzumaliev (“the second applicant”) and Mr Stojčo Dzumaliev (“the third applicant”), are Macedonian nationals who were born in 1941, 1933 and 1945 respectively and live in Strumica. They were represented before the Court by Ms T. Dedejska, a lawyer practising in Strumica. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
In 1959 and 1961 respectively, the then People’s Council of the Municipality of Strumica (Народен Одбор на Општина Струмица) confiscated two adjacent plots of land (former nos. 168 (1,265 m²) and 171 (2,379 m² ) from members of the applicants’ families.
On 30 December 1992 the Ministry of Finance allocated several plots of land (with different numbering), covering an area of 1,582 m², to a construction company, M., for the construction of a residential building. That decision became final on 6 March 1994. The second and third applicants stated that the decision had not concerned plot no. 171. According to the amended urban development plan of 10 December 1999, a larger residential and business complex was intended to be constructed on that land.
By court decisions of 16 March and 30 May 2001 respectively, it was established that the applicants had inherited a restitution claim (наследник на правото на денационализација) in respect of a property confiscated from the members of their families, and that the property included the plots at issue.
On 30 July 2001 the Ministry of Transport and Communication (“the Ministry”) amended the decision of the Ministry of Finance of 30 December 1992, allocating several plots of land (with different numbering from those indicated in the latter decision, with one exception), the total surface area of which was 2,693 m² , to the M. company for the construction of the residential and business complex as specified in the urban development plan of 1999. According to the second and third applicants, 1,111 m² of plot no. 171 was affected by this decision.
2. Restitution proceedings instituted by the first applicant concerning the plot of land no. 168 (“the first set of proceedings”)
On 12 July 2001 the first applicant submitted a request before the Ministry of Finance for restitution of plot no. 168, which was allegedly still undeveloped given that there were only temporary portakabins at the site.
On 15 April 2002 the Restitution Commission of the Ministry of Finance (“the Restitution Commission”) dismissed the request as ill-founded. On 27 June 2003 the Government Appeal Commission (“the Appeal Commission”) upheld an appeal submitted by the first applicant and annulled that decision. It found that the Restitution Commission had incompletely established the facts as to whether plot no. 168 had been undeveloped.
No further decision has been given in these proceedings.
3. The restitution proceedings instituted by the second and third applicants concerning plot no. 171 (“the second set of proceedings”)
On 1 June 2001 the second and third applicants submitted a request to the Ministry of Finance for restitution of plot no. 171, which according to them was still undeveloped.
On 5 November 2001 the Restitution Commission dismissed this request, finding that the second and third applicants had already received compensation for the land in two forms: 600 m² had been restored to them and pecuniary compensation had been paid for the remainder. Referring to an on-site examination of 25 September 2001, it found that there had been a construction site of 800 m² on the relevant land which had been allocated, pursuant to the Ministries’ decisions of 30 December 1992 and 30 July 2001, to the M. company for the construction of the residential and business complex, as specified in the urban development plan of 1999.
On 21 December 2001 the second and third applicants appealed, arguing that, inter alia, 1,215 m² of the land had been undeveloped on 1 June 2001, the date of the submission of their restitution claims, and should have been restored to them accordingly; that the Restitution Commission should have applied section 8(2) of the Restitution Act (see “Relevant domestic law” below); that the on-site examination had not been carried out in good time; and that the temporary portakabins had been dismantled on 1 September 2001, when the M. company had started construction works without any valid documentation.
On 19 June 2002 the Appeal Commission dismissed the appeal, under section 8 of the Restitution Act, stating that the second and third applicants had already received compensation and the purpose of the confiscation had been achieved.
On 16 July 2002 the second and third applicants lodged with the Supreme Court an appeal on points of law (тужба за управен спор), claiming that 1,215 m² of the relevant land had still been undeveloped on the relevant date and should have been restored to them accordingly. They further agreed to return the compensation which they had already received for part of the land.
On 28 November 2002 the Supreme Court, relying on section 8(1) of the Restitution Act, upheld the dismissal of the second and third applicants’ claims for restitution of the relevant land. It further held that the land could not be regarded as undeveloped, given the ongoing construction works in accordance with the urban development plan. In this latter connection, the court referred to a construction contract of 12 November 1998 concluded between the M. company and the Ministry of Urban Planning, according to which the Ministry’s administrative offices had been located on the land in question. The fact that the restitution claim had been submitted when those offices had been demolished and the construction site had been in preparation did not mean that the land at issue had been undeveloped.
On 7 April 2003 the public prosecutor informed the second and third applicants that there were no grounds for lodging a request with the Supreme Court for the protection of legality.
4. Proceedings concerning the Ministry’s decision of 30 July 2001 (“the third set of proceedings”)
On 28 September 2001 the first applicant appealed against the Ministry’s decision of 30 July 2001. It appears that the second and third applicants appealed against that decision as well. No evidence was provided in this latter connection.
On 29 October 2001 the Ombudsman requested the Appeal Commission, as a supervisory body, to annul the Ministry’s decision as contrary to section 72 of the Restitution Act.
On 5 December 2001 the Appeal Commission, acting of its own motion and exercising its supervisory powers (по службена должност, а по право на надзор), annulled the Ministry’s decision. Referring to the applicants’ appeals, the Appeal Commission found the impugned decision contrary to section 72 of the Restitution Act.
On an unspecified date in 2002, the Attorney-General and the M. company challenged the Appeal Commission’s decision before the Supreme Court. No copy of these appeals was communicated to the applicants.
On 3 October 2002 the Supreme Court annulled the decision of 5 December 2001, finding, inter alia, that the Appeal Commission had wrongly regarded the Ministry’s decision as a legal measure or a unilateral declaration within the meaning of section 72(2) of the Restitution Act (see “Relevant domestic law” below). It further found that the land indicated in the Ministry’s decision could not have been regarded as undeveloped for the reasons stated above (in its decision of 28 November 2002). In addition, it referred to the construction, under the contract of 12 November 1998 (see above), of another administrative building which had accommodated civil servants from the provisional administrative offices that had previously been located on the relevant land. The applicants unsuccessfully requested the public prosecutor to institute legality review proceedings before the Supreme Court. Their requests for the reopening of the proceedings have still not been determined.
On 30 December 2002 the Appeal Commission dismissed the first applicant’s appeal and upheld the Ministry’s decision of 30 July 2001.
On 9 February 2006 the Supreme Court allowed an appeal on points of law by the applicants and annulled the Appeal Commission’s decision. It ruled that the applicants’ claims for restitution should have been decided as a preliminary question (претходно прашање) before the land was allocated for construction. It therefore instructed the Ministry to suspend (прекинување) the proceedings pending the outcome of the restitution proceedings.
No further decision has been given in the course of these proceedings.
B. Relevant domestic law and practice
1. The Restitution Act of 2000 (Закон за денационализација)
Section 8(1) of the Restitution Act provides that confiscated property for which compensation has been paid cannot be the subject of restitution. Under subsection 2, in exceptional cases, property for which compensation has been paid can be restored. The claimant is obliged to return the compensation received, in an amount and according to a procedure regulated by a Government decree.
Section 28(2) of the Restitution Act provides that ownership of building land is to be restored where the purpose of confiscation has not been achieved, as well as when that purpose has been achieved and the land, at the time of submission of the restitution claim, was undeveloped.
Section 72(1) and (2) provides that property that is the subject of restitution cannot be disposed of after the entry into force of the Act. Legal measures and unilateral declarations taken contrary to subsection 1 are null and void.
2. Administrative Proceedings Act of 1986 (Закон за општата управна постапка)
Under section 218(1) and (2) of the Administrative Proceedings Act (“the 1986 Act”), as valid at the material time, an administrative body was obliged to give a decision and serve it on the party concerned within one month after the submission of a request. A party whose request had not been decided within that time-limit could lodge an appeal in the same way as if the request had been dismissed.
Under section 246(2) of the 1986 Act, if an appeal had been submitted in the absence of a decision at first instance, the second-instance body would set a time-limit, of no more than a month, within which the first-instance body should give a decision. In the event of non-compliance, the second-instance body could decide the matter by itself.
3. Administrative Proceedings Act of 2005
The Administrative Proceedings Act of 2005 (“the 2005 Act”), which replaced the 1986 Act, provides for the same rules as the 1986 Act, as indicated above (sections 221(1) and (2) and 246).
4. Administrative Disputes Act of 1977 (Закон за управните спорови)
Section 16 of the Administrative Disputes Act of 1977 (“the 1977 Act”), provided that a third party directly affected by the annulment of an impugned administrative decision (interested party) was to be treated as a party to the proceedings.
Under section 26 (1) of the Act, if the second-instance body did not give a decision within 60 days, an interested party could lodge an appeal on points of law with the Supreme Court in the same way as if his or her appeal had been dismissed.
Section 26(3) provided that an interested party could ask the second-instance body to decide on his or her request if the first-instance body had failed to issue a decision within 60 days from the submission of that request. If the second-instance body failed to give a decision, the interested party could lodge an appeal on points of law under the conditions specified in subsection 1.
5. Administrative Disputes Act of 2006
The Administrative Disputes Act of 2006, which replaced the 1977 Act, provides for the same rules as those laid down in section 26 of the 1977 Act (section 22).
6. Building Land Act of 2001 (Закон за градежното земјиште)
Under section 3(2) of the Building Land Act, developed building land is land on which a structure of a permanent nature has been built in accordance with the law.
7. Relevant jurisprudence relating to restitution of property
Several individuals from Strumica sought restitution of part of a plot of land which was allegedly still undeveloped and, under the relevant urban development plan, was set aside for the construction of a residential building. Their claim was dismissed at first and second instance since they had received compensation for the confiscated property. In a decision of 10 September 2003 the Supreme Court annulled the second-instance decision so that the facts could be established with a view to applying section 8(2) of the Restitution Act (U.br.1125/2002).
In a final decision of 30 June 2004 the Restitution Commission accepted the first applicant’s request and restored to her possession a different plot of undeveloped land in Strumica. She was also ordered to return the compensation which had been paid to her predecessor (Дн.бр.19-76/5 (1708-197)).
The applicants complained under Article 6 of the Convention that they had been denied the right to participate in the third set of proceedings. The first applicant further complained about the length of the first set of proceedings. The applicants also complained under Article 1 of Protocol No. 1 that their right to the peaceful enjoyment of their possessions had been violated since the relevant plots of land had not been restored to them although they had been undeveloped at the time of the submission of their claims.
A. Article 6 complaints
The applicants complained under Article 6 § 1 of the Convention that the principle of equality of arms had been violated in the third set of proceedings since the appeals which had led to the Supreme Court’s decision of 3 October 2002 had not been communicated to them. The first applicant also complained under this head that the first set of proceedings had lasted an unreasonably long time. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
1. Alleged violation of the principle of equality of arms in respect of the third set of proceedings
a) The parties’ submissions
The Government stated that this complaint was inadmissible for non-exhaustion of domestic remedies since this set of proceedings was still pending.
The applicants disputed that they had been given a fair trial since a copy of the appeals on points of law by the Attorney-General and the M. company, which had led to the Supreme Court’s decision of 3 October 2002, had not been communicated to them.
b) The Court’s assessment
The Court notes that the applicants complained that they had been denied the right to participate in one stage of the proceedings, namely before the Supreme Court when it had brought the decision of 3 October 2002. The Court observes that this decision was given upon the appeals on points of law by the Attorney-General and the M. company. There is no evidence that a copy of these appeals was communicated to the applicants for comment. However, it notes that the proceedings did not end by this decision (see, a contrario, Grozdanoski v. the former Yugoslav Republic of Macedonia, no. 21510/03, §§ 22 and 38, 31 May 2007). The case was remitted for a renewed examination before the Appeal Commission which, by the decision of 30 December 2002, dismissed the first applicant’s appeal. The applicants successfully challenged the latter decision before the Supreme Court by way of an appeal on points of law. Indeed, on 9 February 2006 the Supreme Court annulled the decision of 30 December 2002. It also ordered that the proceedings be suspended pending the outcome of the restitution proceedings. The proceedings are still pending given that no further decision was given.
In these circumstances, the Court considers that the applicants’ complaint under this head is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Length of the first set of proceedings
The first applicant complained that the first set of proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention.
The Court reiterates that, according to its established case-law, the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The application of this rule must make due allowance for the context. In this connection, the Court must examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see Aksoy v. Turkey, judgment of 18 December 1996, ECHR 1996-VI, §§ 51-54).
Turning to the present case, the Court notes that the first set of proceedings was instituted on 12 July 2001 and that no decision has been taken since 27 June 2003, when the Appeal Commission upheld the first applicant’s appeal and annulled the decision of the Restitution Commission of 15 April 2002. The case is accordingly awaiting consideration by the Restitution Commission.
It further observes that the first applicant could have requested the Appeal Commission, under section 246 (2) of the 1986 Act, to set a time-limit for the Restitution Commission to decide her claim. Had the latter would remain silent, the applicant could have requested the Appeal Commission, under section 218 (2) of the 1986 Act and section 26 of the 1977 Act, to decide her case on the merits. Lastly, she could have lodged an appeal on points of law requesting the Supreme Court to render a decision on the merits.
The first applicant did not avail herself of any of these remedies, which would have enabled her to pursue her restitution claim. In such circumstances, the Court considers that she failed to exhaust the domestic remedies available to her at the material time (see Sirc v. Slovenia (dec.), no. 44580/98, 16 May 2002).
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Article 1 of Protocol No. 1 complaints
The applicants complained under Article 1 of Protocol No. 1 that their right to the peaceful enjoyment of their possessions had been violated. In this connection, they alleged that part of the plots of land nos. 168 and 171 had been undeveloped at the time of the submission of their restitution claims and should accordingly have been restored to them. Article 1 of Protocol No. 1 to the Convention 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.”
1. The parties’ submissions
The Government stated that the first applicant had failed to exhaust domestic remedies since the first set of proceedings relating to her restitution claim was still pending.
As to the second and third applicants, the Government maintained that they had not had a legitimate expectation to have the relevant land restored to them for the reasons given by the national authorities, namely that part of that land had been already restored to them and compensation had been paid for the remainder.
The first applicant argued that her request for restitution of part of the plot of land no. 168 had lost any prospect of success as the land was no longer undeveloped, given the construction of the residential and business complex in the meantime.
The second and third applicants argued that they had had a legitimate expectation, under section 8(2) of the Restitution Act, to have part of the plot of land no. 171, which had allegedly been undeveloped when they had submitted their claim, restored to them. In support of that argument, they referred to the relevant domestic jurisprudence (see U.br.1125/2002 and Дн.бр.19-76/5 (1708-197), “Relevant domestic law and practice” above).
2. The Court’s assessment
a) General principles emerging in the Court’s case law
The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. The concept of “possessions” has an autonomous meaning which is independent from the formal classification in domestic law. “Possessions” can be “existing possessions” or assets, including claims, in respect of which an applicant can argue that he or she has at least a “legitimate expectation” (which must be of a more concrete nature than a mere hope) that they will be realised, that is, that he or she will obtain effective enjoyment of a property right. No “legitimate expectation” can come into play in the absence of a claim sufficiently established to constitute an asset. Accordingly, a conditional claim cannot be considered an asset (see Gavella v. Croatia (dec.), no. 33244/02, ECHR 2006-XII, and the references cited therein).
Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to restore property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore the property rights of former owners (see Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003). On the other hand, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX).
b) Application of these principles in the present case
The Court notes that the applicants’ actions did not concern their “existing possessions” and they did not have the status of owners, but were merely claimants. It therefore remains to be determined whether they had a “legitimate expectation” that their claim for restitution would be determined in their favour.
(i) As to the first applicant
The Court notes that the first set of proceedings is still pending. The most recent decision was that of the Appeal Commission of 15 April 2002, by which the case was referred back for fresh consideration by the Restitution Commission.
The Court considers that the first applicant’s complaint under this head is closely linked to and dependent on an issue of fact, namely whether the relevant plot of land was undeveloped on 12 July 2001, the date when she had sought restitution of that land. This fact was decisive for the first applicant’s entitlement to claim restitution of the land, under section 28(2) of the Restitution Act. However, the national authorities did not establish that fact, in part as a result of the first applicant’s failure to avail herself of the remedies specified in the legislation applicable at that time (see the discussion above in respect of the length of this set of proceedings). It could neither be established in the proceedings before the Court given its limited competence in this respect.
In these circumstances, the Court considers that the first applicant’s complaint under this head is premature and must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
(ii) As to the second and third applicants
The second and third applicants’ claim was dismissed on two grounds: that they had received compensation and that the plot of land in question had been developed at the time of the submission of their claim. These applicants advanced before the Court the same arguments as those put forward before the national authorities: that part of the land had been undeveloped on 1 June 2001 and should accordingly have been restored to them. Having regard to the information before it and considering that it has only limited power to deal with alleged errors of fact or law committed by the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, and Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II), the Court considers that it cannot substitute its view for that of the national authorities by finding that section 8(2) of the Restitution Act should have applied instead of subsection 1. The Court observes that section 8(2) of this Act was to be applied as an exception to subsection 1 and did not impose an obligation on the relevant authorities to order the restitution of an existing property for which compensation had been paid. The relevant jurisprudence indicated above (see “Relevant domestic law and practice”) is not capable of persuading the Court to conclude otherwise, since the national authorities were entitled, under section 8(2) of the Restitution Act, to assess in each case whether restitution could be ordered.
Thus, under the relevant law, as applied and interpreted by the domestic authorities, the second and third applicants had neither a right nor a claim amounting to a “legitimate expectation”, within the meaning of the Court’s case-law, to have the relevant land restored to them, and therefore did not have a “possession” within the meaning of Article 1 of Protocol No. 1 to the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen