European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF SPIRIDONOVSKA AND POPOVSKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA

 

(Application no. 40676/11)

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

19 October 2017

 

 

 

 

This judgment is final but it may be subject to editorial revision.




In the case of Spiridonovska and Popovski v. the former Yugoslav Republic of Macedonia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Aleš Pejchal, President,
          Krzysztof Wojtyczek,
          Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,

Having deliberated in private on 26 September 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 40676/11) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Macedonian nationals, Ms Biljana Spiridonovska and Mr Čedomir Popovski (“the applicants”), on 23 June 2011. The applicants were, exceptionally, granted leave to represent themselves (Rule 36 of the Rules of Court).

2.  The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

3.  The applicants alleged that the extraordinary quashing of a final restitution order rendered in their favour had been in contravention with the principle of legal certainty and in violation of their property rights.

4.  On 7 March 2013 these complaints were communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants were born in 1954 and 1951 respectively and live in Kumanovo.

A.  Background to the case

6.  On 23 August 1948 a plot of agricultural land (“the land”) was confiscated from V.R., the applicants’ late grandmother, on the basis of the Expropriation Act (акт за експропријација - “the first confiscation order”), issued by the Kumanovo Peoples’ City Council (Градски Народен Одбор во гр. Куманово). According to the first confiscation order, the total surface area of the land was six shinik (шиник - an old unit of land area (see paragraph 25 below)).

7.  On 20 October 1948 a second confiscation order was issued concerning a plot of land owned by V.R. The second confiscation order did not specify the surface of the land which was to be confiscated.

8.  On 17 December 1948 the Kumanovo Confiscation Commission adopted a confiscation decision (решение за експропријација), which confirmed the above confiscations of V.R.’s real property. According to the decision, the total area of the confiscated land was 3,349 square metres (sq. m).

9.  In a final court decision in inheritance proceedings of 19 January 2001, each applicant was declared heir of one half of the land confiscated from their late grandmother. According to this decision, the surface area of the land in question was six shinik.

B.  Restitution proceedings

10.  On 15 February 2001 the applicants instituted restitution proceedings under the Restitution Act seeking restoration of the land confiscated from their grandmother. In support of their claim they submitted the first confiscation order (see paragraph 6 above). Copies of the restitution claim and the accompanying documents were communicated to the Solicitor General (Јавен Правобранител). It appears that the Solicitor General did not submit any observations in reply.

11.  On 25 June 2001 the Kumanovo Restitution Commission (part of the Ministry of Finance) (“the Restitution Commission”) made an on-site inspection and found that the land in question had been free of any buildings.

12.  On 14 January 2002 the Restitution Commission accepted the applicants’ restitution claim and decided to restore to their possession the plot of land, the total surface area of which was 8,309 sq. m, which, as stated in the order, corresponded to six shinik (“the restitution order”). The order stated that the plot had been confiscated on the basis of the first confiscation order (see paragraph 6 above). Through a proprio motu investigation it also established that the land in question had been part of a larger undeveloped, State-owned plot.

13.  It appears that the Solicitor General was served with a copy of the order but did not lodge an appeal against it. As a consequence, it became final on 18 June 2002.

14.  On 27 June 2002 the total area of the land was transferred in the second applicant’s possession (воведување во владение). The applicants then had their property rights registered in the relevant Land Registry.

15.  In a decision of 15 April 2003, which became final on 16 May 2003, the Kumanovo Court of First Instance, in non-contentious proceedings, accepted the applicants’ application to have the State, represented by the Solicitor General, delineate the area belonging to them (8,309 sq. m) from a larger plot of land belonging to the State. By this decision the applicants became the owners of a separate plot of land with the total area of 8,309 sq. m.

C.  Proceedings post-dating the restitution order

1.  Application for an injunction (времена мерка)

16.  In October 2003 the Solicitor General applied to have the applicants prohibited from further disposing of the land since the land restored to their possession had not corresponded to the land confiscated from their late predecessor in terms of its surface area.

17.  On 28 October 2003 the Kumanovo Court of First Instance dismissed that application finding that the land had been restored to the applicants’ possession on the basis of the restitution order. Furthermore, no proceedings had been instituted under section 63 of the Restitution Act (see paragraph 37 below) by a third party.

18.  On 1 July 2004 the Skopje Court of Appeal upheld this decision noting that the Solicitor General had furthermore participated in the proceedings concerning the delineation of the land (see paragraph 15 above).

2.  Application of the Solicitor General to have the restitution order partially declared null and void (огласување за ништовно)

19.  On 7 October 2003 the Solicitor General sought, in administrative proceedings, that the restitution order be declared, under section 267(1)(5) of the Administrative Procedure Act (see paragraph 37 below), partially null and void in respect of the part of the land which had been returned to the applicants but allegedly had not been confiscated from their predecessor. The Solicitor General argued that the restitution order had been based on the first confiscation order, which had been invalid since it had neither been signed nor stamped and it had specified the surface of the confiscated land in shinik. He had submitted the second confiscation order, which had specified that the surface area of the confiscated land had been 3,340m². The Solicitor General therefore lodged an application to have the restitution order declared partially null and void regarding the difference in surface area of the land specified in the first confiscation order of 23 August 1948 and the confiscation decision of 17 December 1948.

20.  On 23 May 2005 the Second-Instance Administrative-Procedure Commission in the Area of Denationalisation (Комисија за решавање во управна постапка во втор степен од областа на денационализацијата - “the second-instance commission”) dismissed that application finding that the final restitution order, which had meanwhile been enforced, could not be declared null and void on the basis of section 267(1)(5) of the Administrative Procedure Act because the sections of the Restitution Act on the basis of which the restitution order had been made had not contained any explicit provisions allowing for its nullification, as required under that subparagraph. As for the argument that the confiscation order had been neither signed nor stamped, is was stated that this could have been put forward before the finality of the restitution order, and could not have led to declaring the order null and void on the basis of section 267(1)(5).

21.  The Solicitor General challenged the latter decision by lodging an administrative action (тужба за управен спор) with the Administrative Court in which he complained that the restitution order of 14 January 2002 had been based on a confiscation order which had not been signed and stamped and on erroneous facts regarding the surface area of the land. In this connection the Solicitor General referred to an extract from the State Archives dated 16 August 2005 which indicated that the land had been expropriated on the basis of a confiscation order of 20 October 1948. In this submission the Solicitor General noted that his claims regarding the differences in the surface areas had been substantiated by documents supplied to him by “interested parties” according to which the accurate area of the land could be established.

22.  On 14 March 2008 the Administrative Court upheld the decision of the second-instance commission, finding that the remedy under section 267(1)(5) relied on by the Solicitor General had been inapplicable to the facts of the case. It further stated that the missing stamp and signature were not sufficient reasons to declare the restitution order null and void. Under the terms of the relevant domestic law applicable at the time, this was the final decision. With regard to the differences in surface areas the judgment stated:

“The court, in deciding, assessed the arguments of the [Solicitor General] put forward in the claim, but it did not accept them as bases to decide differently, because none of the conditions under [section] 267 of the Administrative Procedure Act for declaring the order null and void had been fulfilled.”

3.  Proceedings for nullity of the restitution order

23.  On 14 January 2009 the Restitution Commission, acting on its own motion (по службена должност) and relying on section 267(1)(3) of the Administrative Procedure Act, found that the restitution order was unenforceable and declared it null and void in full (“the nullity decision”). It further held that the merits of the case would be decided in a separate decision. It also issued a provisional measure (привремен заклучок), prohibiting the applicants from selling the land until the final resolution of the case.

24.  The Restitution Commission indicated that in the course of examining a separate restitution claim submitted by the heirs of a certain G.T, it had reviewed the documents concerning the applicants’ restitution application.

25.  The Restitution Commission held that under the applicable law in 1948, a confiscation order (акт за експропријација) had had to precede a confiscation decision (решение за експропријација). It found that the restitution order had been based on the confiscation order of August 1948, according to which the total surface area of the land formerly owned by the applicants’ predecessor had been six shinik. However, the confiscation decision dated 17 December 1948, on the basis of which the plot had been confiscated, had specified that the surface area of the confiscated land had been 3,349 sq. m. The Restitution Commission also referred to evidence submitted on 23 August 2001 by the Land Registry Office, according to which the area of the plot had been six shinik and had represented a part of a larger plot of land, the total surface area of which was 8,309 sq. m. A further extract from a “Geodetic Review of the Association of Land Experts of Macedonia” and “Review of old units of land area and their conversion into hectares, areas and sq. m”, issued on the basis of a letter dated 25 March 1952, specified that one shinik corresponded to 650 sq. m. Lastly, the Commission relied on a cadastral plan drawn up by a licenced surveyor (катастарска скица изработена од геометар) made for a separate set of restitution proceedings (instituted by the heirs of G.T.), according to which the surface area of the land, formerly owned by the applicants’ predecessor, had been 3,763 sq. m. In such circumstances, the Commission found that the applicants had unlawfully obtained possession of 4,546 sq. m of land, on the basis of the restitution order. For those reasons, the Commission held that the restitution order had been contrary to sections 1 and 2 of the Restitution Act and was legally unenforceable pursuant to section 267(1)(3) of the Administrative Procedure Act. In respect of the latter section, the Commission held that the unenforceability of a decision concerned not only the factual (фактичка), but also the legal (правна) impossibility of enforcement.

26.  Both applicants appealed, arguing that the restitution order was a final decision which could not be altered. They also referred to the judgement of the Administrative Court of 14 March 2008, which had stated that none of the conditions for nullity under section 267 of the Administrative Procedure Act had been fulfilled (see paragraph 22 above).

27.  On 13 October 2009 the second-instance commission dismissed the applicants’ appeals, endorsing the reasoning given by the Restitution Commission. It held that the Restitution Commission had been obliged, pursuant to section 268 of the Administrative Procedure Act, to declare the restitution order null and void.

28.  The applicants lodged an administrative action against the latter decision before the Administrative Court. They again referred to the judgement of the Administrative Court of 14 March 2008 (see paragraph 22 above). They further stated that the issue of nullity had already been finally resolved following the application lodged by the Solicitor General (see paragraphs 19-22 above).

29.  On 17 May 2010 the Administrative Court upheld their action and annulled the decision of the second-instance commission. The court further rejected as inadmissible an application by R.T. and B.T., the legal successors of G.T. (“the third persons”), to intervene in the proceedings. The relevant part of the judgment reads as follows:

“... In the court’s opinion, there has been no breach of section 267(1)(3) of the Administrative Procedure Act ... This section concerns the impossibility for factual enforcement and the legal impossibility for enforcement which would be in contravention of ... legislation. In the present case there is no such situation and therefore it cannot be considered that section 2 of the Restitution Act has been breached ... This is so because the evidence admitted in the course of the proceedings provides a certain basis for the court to conclude that in the present case the restitution order ... was adopted in accordance with the Restitution Act, which had been preceded by a correct and full establishment of the facts, thereby leading to the conclusion that in that case all statutory conditions had been fulfilled for [the return of] the property concerned.

With regard to the application lodged by R.T. and B.T. ... it is clear that [they] did not participate, nor could they have participated in the administrative proceedings initiated by other persons who claimed a right to restitution of a part of the property which had indisputably been in the possession of their legal predecessors. In view of that ... in the present case there is no possibility that third persons (interested persons) can have standing as parties to the restitution proceedings. However, that does not mean that those persons will be deprived of the right to protect their rights and interests ... a possibility remains for them to establish their rights by lodging a civil claim before a competent court within five years of the finalisation of the restitution order (section 63, paragraph 2 of the Act), against the persons to whom possession was restored or compensation was paid in accordance with the provisions of the Act.”

30.  On 3 and 4 August 2010 the Solicitor General and the third persons respectively appealed against that judgment before the Supreme Court, which had in the meantime become competent to act upon appeals against judgments of the Administrative Court. In the appeal the third persons argued that the difference between 3,349 sq. m and the surface originally granted to the applicants belonged to them and adduced evidence to this end. The applicants submitted observations in reply.

31.  On 25 October 2010 the Supreme Court accepted the appeal submitted by the Solicitor General and overturned the decision of the Administrative Court. The relevant part of the judgment reads as follows:

“In the Supreme Court’s opinion, which has been stated in several of this court’s cases, a restitution order can be considered as legally impossible to enforce, if there are breaches of the law which cannot be remedied with the application of other legal means, as is the situation in the present case. In particular, with the [restitution] order more was restored to the [applicants] than what they had been entitled to, having in mind the surface of the property which was in their legal predecessor’s possession. In support of this, the State organs submit ‘Geodetic Review of the Association of Land Experts of Macedonia’ and ‘Review of old units of land area and their conversion into hectares, areas and sq. m’ as evidence that one shinik in the city of Kumanovo amounted to 650 sq. m. This finds support in the expropriation decision of 17 December 1948 where it was noted that the expropriated land had had a surface of 3,349 sq. m, which had been preceded by an accurate determination of the object of expropriation. The finding is further supported by a cadastral plan done by a licenced surveyor (катастарска скица изработена од геометар) on the basis of the limits and boundaries of the plots of land as laid out in the expropriation decision.

... [T]he conclusion is correct that in the present case, with the restitution order, the property registered as property of the State was restored contrary to the conditions specified in the Restitution Act, sections 1 and 2. Since the State organs established that part of the concerned property was not in possession of the legal predecessor [of the applicants], there is a legal obstacle for the exercise of a restitution right over that part of the property. Hence, such an order cannot be enforced, which is grounds for the application of paragraph 1 subparagraph 3 of section 267 of the Administrative Procedure Act, meaning that the decision is null and void (ништовно) ...

... In respect of the third persons, or the interested persons, the Restitution Act excludes the possibility for them to appear as parties to the restitution proceedings, but what remains for them is the possibility to claim their rights in a civil suit before a competent court within five years after the finalisation of the restitution order (section 63 paragraph 2 of the Act), against the persons to whom possession was restored or compensation was paid in accordance with the provisions of this Act.”

32.  This decision was served on the applicants on 24 December 2010 and 25 January 2011 respectively. By decisions of 31 January and 28 March 2011 the Supreme Court rejected as inadmissible their applications for the reopening of the proceedings.

D.  Other relevant information

33.  On 19 December 2012, in civil proceedings initiated by the second applicant against the Land Registry, the Kumanovo Court of First Instance issued an injunction banning the respondent State from disposing of the plot of land. On 1 March 2013 the latter decision was annulled (става вон сила) as the applicant had withdrawn the action against the Land Registry.

34.  Acting upon the initial restitution application, the Restitution Commission requested clarification from the Land Registry regarding the historical records of the plot of land in question on 27 March 2013. The Land Registry confirmed that the plot which had been taken from the applicants’ predecessor was now a part of a plot owned by the State with an area of 8,309 sq. m.

35.  On 29 October 2013 the Restitution Commission accepted the applicants’ restitution claim and decided to restore to their possession a plot of land with an area of 2,460 sq. m and to award them financial compensation for the remaining part of the plot with an area of 889 sq. m which could not be restored, in total amounting to a total surface area of 3,349 sq. m.

36.  On 5 December 2013 the second applicant challenged the latter decision with an administrative action. It appears that the proceedings are still pending.

II.  RELEVANT DOMESTIC LAW

A.  Restitution Act, consolidated version of 2000 (Закон за денационализација, пречистен текст, Official Gazette no. 43/2000)

37.  The relevant sections of the Restitution Act are summarised in the case of Vikentijevik v. the former Yugoslav Republic of Macedonia, no. 50179/07, §§ 31-42, 6 February 2014.

B.  Administrative Procedure Act of 2005 (Закон за општата управна постапка, Official Gazette nos. 38/2005 and 110/2008)

38.  Section 267(1)(3) of the Administrative Procedure Act provided that a decision could be declared null and void if its enforcement was impossible.

39.  Section 267(1)(5) provided that a decision which contained an irregularity, which is specifically provided as grounds for nullity, could be relied on as grounds for declaring a decision null and void.

40.  Under section 268(1)(2), a decision could be declared null and void at any time upon a request of a party to the proceedings, the public prosecutor and by the body which had adopted the decision or the second-instance body of its own motion. Partial and full nullity could be ordered.

C.  Solicitor General Act (Закон за јавното правобранителство, Official Gazette no. 47/1997)

41.  The relevant sections of the Solicitor General Act are summarised in the case of Vikentijevik, cited above, §§ 46-49.

D.  Administrative Disputes Act of 2006 (Закон за управните спорови, Official Gazette no. 62/2006)

42.  Under section 37 of the Act, the Administrative Court is bound by the request contained in an action, but is not bound by the grounds presented therein. It reviews on its own motion whether an administrative decision is null and void.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

43.  The applicants complained that they had been deprived of their property in breach of the principle of legal certainty. They relied on 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.  Admissibility

1.  The parties’ arguments

44.  The Government objected that the application concerned restitution proceedings which were pending. The Court should therefore declare the application inadmissible as premature.

45.  The Government further objected that the applicants had not been deprived of their property because the difference between the size of the plot which they were granted initially and that which they obtained in the continuing restitution proceedings had never been owned by their predecessor.

46.  The applicants maintained their complaints arguing that the Government’s objections were unfounded.

2.  The Court’s assessment

47.  With regard to the first objection of the Government the Court notes that the applicants’ complaints concerned the quashing of the final restitution order. The issue in the present case is whether the principle of legal certainty was infringed as a result of the quashing of the final restitution order, which is, according to the Court’s case-law, an instantaneous act and did not create a continuing situation, even if it entailed a reopening of the proceedings (see Klimenko and Ostapenko v. Russia, nos. 30709/03 and 30727/03, § 24, 23 July 2009).

48.  In this connection, the Court notes that it has found that even in situations when the applicants’ claims were upheld after a final judgment in their favour had been quashed, that fact did not by itself efface the effects of the legal uncertainty they had had to endure (see Roseltrans v. Russia, no. 60974/00, § 27, 21 July 2005, and Zasurtsev v. Russia, no. 67051/01, § 51, 27 April 2006). In these circumstances, the Government’s objection that the complaint is premature should be dismissed.

49.  With regard to the second objection, the Court reiterates that the concept of “possessions” in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is not limited to the ownership of material goods and is independent from the formal classification in domestic law. In the same way as material goods, certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision. In each case the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see, for instance, Broniowski v. Poland [GC], no. 31443/96, § 129, ECHR 2004-V, with further references).

50.  In the case at issue, the Court notes that for about seven years the applicants were in possession of a plot with a surface area of 8,309 sq. m and they were considered its owners for all legal purposes, which was also recorded in the Land Registry (see paragraph 14 above). Accordingly, the Court considers that the applicants had a “possession” within the meaning of Article 1 of Protocol No. 1 even if their title was later rendered null and void by the effect of the impugned nullity decision. In this connection, it should be stressed that it would be unreasonable to accept that a State may enact legislation which allows nullification of titles to property and thus escape responsibility for an interference with property rights under the Convention (compare Gashi v. Croatia, no. 32457/05, § 22, 13 December 2007). It follows that the Government’s second objection must likewise be rejected.

51.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

52.  The applicants argued that the findings contained in the nullity decision regarding the measurements were incorrect. Their predecessor had owned 8,309 sq. m, not less. Given that the applicants had already taken possession of the land, the propio motu quashing was not in the public interest, but in the interest of the State, much like the expropriation which took place in 1948. Lastly, they stated that the second confiscation order and the confiscation decision (see paragraphs 7 and 8 above) were false.

53.  The Government argued that it was clear from the evidence provided by the Land Registry, which had pre-dated the restitution order, that the part which had been confiscated from the applicants’ grandmother had only been a fraction of the land which had been restored to the applicants. The very fact that a bigger plot of land had been restored to the applicants signified that the restitution had been in breach of the Restitution Act. Moreover, under the relevant legislation at the time of confiscation, a confiscation act had had to precede a confiscation decision, the latter being more specific. The Solicitor General, in the interests of the State, had sought an annulment of the incorrect restitution order. The decision of 14 January 2009 had been lawful and aimed at protecting the public interest and the rights of third parties. In the fresh restitution proceedings following the quashing of the restitution order, the plot of land confiscated from the applicants’ predecessor had been identified as covering an area of 3,349 sq. m. Furthermore, at a certain point in the proceedings there had been an interim measure imposed by one of the applicants and the State had continued to process their application for restitution. All of this pointed to the fact that the State had had no intention to unduly interfere with the property interests of the applicants.

2.  The Court’s assessment

(a)  General Principles

54.  The Court reiterates that as a general rule, the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II); the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that the States have the right to control the use of property by enforcing “laws” (see, among other authorities, Moskal v. Poland, no. 10373/05, § 49-52, 15 September 2009).

55.  The Court reiterates that the existence of a claim confirmed by a binding and enforceable judgment or an administrative decision furnishes the beneficiary with a “legitimate expectation” that the claim will be enforced, and constitutes the beneficiary’s “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing such a judgment or decision amounts to an interference with his or her right to peaceful enjoyment of possessions. The requisite “fair balance” will not be struck where the person concerned bears an individual and excessive burden (see, for example, Vikentijevik, cited above, § 59, 6 February 2014, with further references).

56.  Moreover, the principle of “good governance” requires that where an issue in the general interest is at stake it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000-I).

(b)  Application of the Convention principles to the instant case

(i)  Whether the applicant had a possession

57.  The Court reaffirms that the question whether a possession existed in the present case was already dealt with under the head of admissibility (see paragraphs 49 and 50 above).

58.  Accordingly, in the Court’s view, the applicants had a “possession” within the meaning of Article 1 of Protocol No. 1.

(ii)  Whether there has been an interference with the applicants’ possessions

59.  The Court considers that the quashing of the restitution order which had become final amounted to an interference with the applicants’ possessions (see Nelyubin v. Russia, no. 14502/04, § 32, 2 November 2006, and Vikentijevik, cited above, §61).

60.  It must therefore ascertain whether the interference complained of was lawful and whether it was proportionate to the legitimate aim pursued.

(iii)  Lawfulness of the interference

61.  The nullity decision was based on section 267(1)(3) of the Administrative Procedure Act, which provided that a final administrative decision could be set aside if it was impossible to enforce. As interpreted by the Supreme Court, enforcement of an order could be impossible both factually and legally. It is therefore not in doubt that, as the Supreme Court established in its decision of 25 October 2010 (see paragraph 31 above), the measure complained of was based on valid statutory provisions.

62.  The Court, noting that its power to review compliance with domestic law is limited (see, among other authorities, Allan Jacobsson v. Sweden (no. 1), 25 October 1989, Series A no. 163, p. 17, § 57), accepts that the proceedings in the applicants’ case had been reopened as a consequence of the discovery of a mistake in the original assessment of the applicants’ application for restitution, which made the enforcement of the first restitution decision impossible and thus liable to revision, as required under the relevant domestic law.

63.  The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicants’ property rights was provided for by law, as required by Article 1 of Protocol No. 1.

(iv)  Legitimate aim

64.  The Court reiterates that the national authorities, because of their direct knowledge of society and its needs, are in principle better placed than an international court to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation. The Court will respect the judgment of the national authorities as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 52, ECHR 2006-VI; see also Vikentijevik, cited above, § 68).

65.  With regard to the instant case, the Court accepts that the interference in question pursued a legitimate aim, namely to ensure that the public purse was not called upon to subsidise undeserving claimants (compare Moskal, cited above, § 63). The Court also notes that the proceedings in which the restitution order was declared null and void were initiated by the Restitution Commission on its own motion when it was assessing the written evidence in the separate restitution proceedings initiated by G.T.’s heirs (see paragraph 24 above). The Court therefore also accepts that the interference in question had the aim of protecting third parties’ rights (see Romankevič v. Lithuania, no. 25747/07, § 35, 2 December 2014, and Vikentijevik, cited above, § 70).

(v)  Proportionality

66.  The Court must next examine whether the interference with the peaceful enjoyment of possessions strikes a fair balance between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights, or whether it imposes a disproportionate and excessive burden on the applicant (see Moskal, cited above, § 64, with further references).

67.  In the circumstances of the instant case the Court firstly notes that the Restitution Commission as well as the Supreme Court, as the highest judicial authority in the State, exercised their power of review in order to correct certain fundamental defects committed earlier by the Restitution Commission, which had been the first and only instance in the ordinary restitution proceedings that had examined the merits of the applicants’ claim on the basis of the documents submitted to it by the applicants alone. The Court also takes note that in support of their application for restitution the applicants submitted only the first confiscation order, which stipulated the area of the plot in shinik alone.

68.  Although the quashing of the final decision was done in accordance with domestic law, the Court notes that the use of such an extraordinary remedy had been envisaged in cases where remedying of fundamental defects had been necessary, and was not to be confused with an appeal, which the Solicitor General had not made use of in the instant case. Indeed, according to the Court’s case-law, correcting a fundamental defect can be considered as “exceptional grounds” for setting aside a finally determined matter (compare Giuran v. Romania, no. 24360/04, § 48, ECHR 2011 (extracts), and Vikentijevik, cited above, § 72).

69.  The drastic difference in surface areas between what the applicants had initially been granted (8,309 sq. m) and what it was later established they should have been granted (3,349 sq. m) is of great significance for the Court’s assessment. Given the limited evidence which was presented to the Restitution Commission upon its initial evaluation of the case, such a defect in the Restitution Commission’s decision, granting the applicants 8,309 instead of 3,349 sq. m, was not unforeseeable by the applicants.

70.  Furthermore, considering that the evidence in question which brought upon the quashing of the final restitution order only surfaced after the restitution order had become final (see paragraphs 21 and 24 above), the Court considers that the fact that the Solicitor General had failed to lodge an appeal against the final restitution order cannot be seen as a decisive element for the Court’s assessment. Moreover, the Court notes that upon receipt of such evidence, the Solicitor General had acted promptly, although relying on the wrong domestic provisions and consequently without any success (see paragraphs 19-22 above). Therefore, given the particular circumstances of the case, the Court does not consider that the measures later applied with an aim of correcting the errors in the Restitution Commission’s decision were unjustified and disproportionate (compare Vikentijevik, cited above, § 73).

71.  In this connection, the Court would stress that the fact that the quashing was done seven years after the decision had become final is an important fact to be taken into account, but in view of the Court’s case law, and taking into account the above-noted circumstances of the case, it cannot be taken as crucial (compare Vikentijevik, cited above, §§ 71-76).

72.  Turning to the reasons provided by the Supreme Court, the Court observes that the quashing was done because of fundamental errors in the calculation of the surface area of the plot in question. These differences were brought to the attention of the Restitution Commission for the first time when it assessed another restitution application, namely that of R.T. and B.T., who had competing property interests to those of the applicants (see paragraph 27 above). In these circumstances, the Court finds that the Supreme Court upheld the nullity decision first and foremost with the aim of protecting of the rights of third parties which were not parties to the proceedings. The Court has held before that such grounds for quashing of a final judgment are justified (see Vikentijevik, cited above, §§ 69 and 72; see also Protsenko v. Russia, no. 13151/04, § 30, 31 July 2008, and, Karen Poghosyan v. Armenia, no. 62356/09, § 47, 31 March 2016) and that the principle extends to any final legal situation (see Moskal, cited above, § 82).

73.  Furthermore, the fact that the expropriation decision of 17 November 1948, which was the only one which specified the exact surface area of the land in question, was not submitted to the Restitution Commission when deciding on restitution for the first time is a crucial consideration for the Court. In this sense the Court notes that when deciding the Supreme Court had several pieces of evidence which had not been made available to the Restitution Commission when it had initially decided and which confirmed the surface area of the land in question as being 3,349 sq. m (see paragraph 31 above). From the above, it is clear that the Supreme Court exercised its power of review in order to correct the fundamental defect made by the Restitution Commission, which had made a restitution order that had not been possible to legally enforce as it had been contrary to the provisions of the Restitution Act as well as the interests of third parties which had not been party to the proceedings. In so doing the Supreme Court advanced reasons of a substantial and compelling character that justified the extraordinary quashing of the final restitution order (compare Vikentijevik, cited above, § 72, and contrast, Bočvarska v. the former Yugoslav Republic of Macedonia, no. 27865/02, §§ 82, 83, 17 September 2009).

74.  Lastly, the Court considers that the implications of the quashing of the restitution order are not without relevance in the present case. In this connection it notes that on the basis of the errors specified above, the case was returned to the Restitution Commission for a fresh examination and the applicants were granted restitution of a plot of land as well as monetary compensation for a plot of 3,349 sq. m (see paragraph 35 above). Lastly, in the event that third parties obtain possession of the plot of land which the applicants had erroneously obtained before, the applicants will still have the legal possibility to claim their property rights under section 63 of the Restitution Act (see paragraph 37 above).

75.  The foregoing considerations thus lead the Court to conclude that the extraordinary quashing of the order did not amount in the present case to an unjustified interference with the applicants’ property rights as guaranteed by Article 1 of Protocol No. 1.

76.  There has accordingly been no violation of that Convention provision.

II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

77.  The applicants also complained that the State’s reopening of the restitution proceedings, which had resulted in the quashing of the final decision granting them title to the plot of land, had been in breach of Article 6 § 1 of the Convention.

Article 6 § 1 of the Convention in its relevant part reads as follows:

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

78.  The Government maintained that the reopening had been done in accordance with domestic law.

79.  It follows that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

80.  However, having regard to the reasons which led the Court not to find a violation of Article 1 of Protocol No. 1 to the Convention, the Court finds that the applicants’ complaint under Article 6 regarding the principle of legal certainty of the Convention does not require a separate examination (see, for instance, Iwaszkiewicz v. Poland, no. 30614/06, § 70, 26 July 2011).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the application admissible;

 

2.  Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention;

 

3.  Holds that it is not necessary to examine separately the complaint under Article 6 of the Convention.

Done in English, and notified in writing on 19 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Renata Degener                                                                   Aleš Pejchal
Deputy Registrar                                                                     President