GALENA VRANISKOSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Christos Rozakis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
The applicant, Mrs Galena Vraniškoska, is a Macedonian national who was born in 1939. The applicant lives in Bitola. She submitted the application in her name and on behalf of Mr Argil Vraniškoski, her late husband, who died on 30 October 2005. The applicant was represented before the Court by Mr V. Georgiev, a lawyer practising in Bitola. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. Under a sales agreement of 1980, the applicant obtained title to agricultural land in a place called Kosa Tumba, near Bitola. According to the applicant, in 2002 the land authorities issued a certificate attesting that the plot in issue was outside the area designated for construction (надвор од градежен реон). On that property, the applicant and her husband constructed a weekend house and garage without a building permit, as was the case with houses built by other individuals in Kosa Tumba. The applicant lives in an apartment in Bitola. On an unspecified date in October 2003, they also started constructing a house of worship and supporting walls (hereafter referred to as “the structures”). On 7 October 2004 an inspector from the Ministry of Transport and Communications (hereafter “the Ministry”) carried out an on-site inspection of the property. A report was drawn up according to which the applicant and her husband had started building the structures without a building permit. The Ministry ordered them to demolish the structures immediately under threat of a forcible demolition (“the demolition order”). Referring to the on-site inspection and the report that had been drawn up, it stated that they had started building the structures without a permit. Under the order, the demolition costs were to be borne by the applicant and her husband. It relied on section 39 § 3 of the Construction Law, as valid at the material time, under which an appeal against the order would not have had suspensive effect (see “Relevant domestic law” below). In a separate decision, the Ministry decided that the demolition order had become enforceable (“the enforcement order”). It ordered the applicant and her husband to destroy the structures immediately. It reiterated that they were to bear the costs of demolition and that an appeal would not have a suspensive effect. In this context, it referred to section 270 § 2 (3) of the Administrative Proceedings Act of 1986 (“the Act”, see “Relevant domestic law” below), as valid at that time. The Government submitted copies of two delivery receipts (“the receipts”, доставници) according to which on 8 October 2004 the demolition and enforcement orders were served, in the applicant’s apartment, on a minister (свештеник) who had refused to identify himself and to give information about the applicant’s whereabouts. The minister had also refused to sign the receipts. Both receipts were dated and signed by a bailiff. On 14 October 2004 the Ministry issued an announcement informing the applicant that the demolition and enforcement orders were at its premises and that they would be posted on the Ministry’s notice board since she could not be found at her place of residence. On the same day, the bailiff, with a handwritten note on the announcement, indicated that it had been handed over, in the applicant’s apartment, to a minister who had refused to identify himself. The latter did not sign the announcement. According to the applicant, at midnight on 15 October 2004, about 200 armed police officers arrived on her property in Kosa Tumba accompanying workers engaged by the Ministry to enforce the demolition order. Eight police officers, without a court warrant or any other decision, entered the applicant’s weekend house and forced her husband and their son outside. They were allegedly forced to watch the demolition of the structures. The Government contested the applicant’s version of events regarding the demolition of the structures, without giving any further details. On 21 October 2004 the applicant and Mr Argil Vraniškoski requested the Ministry to serve the demolition order on them. They stated that they had never received it and referred to an announcement of 14 October 2004 on the notice board in the Ministry concerning their case. On 23 November 2004 the Ministry replied that there was evidence in the case file that the demolition order had been served on them and that accordingly there were no grounds for a repeated service. On 6 December 2004 the applicant and her husband appealed against the demolition and enforcement orders before the Government second-instance Commission (“the Commission”) arguing that they had never been served on them. They complained that even assuming that the announcement posted on the Ministry’s notice board was to be regarded as the equivalent of service, the demolition order could only have become enforceable 15 days after 14 October 2004, as set forth in section 94 of the Act. On 9 February 2005 they requested the Commission to decide, within 7 days, their appeals. On 3 March 2005 the applicant and her husband lodged an appeal on points of law with the Supreme Court complaining about the Commission’s failure to decide their appeals (тужба поради молчење на администрацијата). On 21 April 2005 the Commission dismissed, by two separate decisions, the appeals, finding that the demolition and enforcement orders had been given in accordance with the law. It stated that the applicant and her husband had started building the structures without a permit, as required under section 39 § 1 of the Construction Act. As to the applicant’s complaints about the improper service of the orders, the Commission stated: “... the Commission has examined the [applicant’s] arguments in the appeal and finds that they are unsubstantiated and without any legal effect, since no construction work can be undertaken without a building permit being obtained ...” On 4 June 2005 the applicant and her husband challenged the Commission’s decisions by way of an appeal on points of law in which they reiterated their earlier arguments. On 21 December 2005 the Supreme Court rendered two decisions dismissing their appeals. It found no force in their arguments that the administrative bodies had ignored their complaints about the alleged failure to serve the demolition order on them. In this connection it stated that “the service was carried out in accordance with the Act”. Referring to the case file, the court held that the inspector responsible had correctly ordered, under section 39 of the Construction Act, the demolition of the structures. The decisions were sent to the applicant on 19 January 2006. Section 81 of the Act, as valid at the material time, provided that a decision should, in principle, be handed over to the individual concerned in person. Under section 83, the decision was to be served, in principle, at the home of the recipient. Under section 84, if the recipient was not at home, the decision would be served on an adult member of his or her family or to a housekeeper or neighbour, with their consent. Under section 86 § 1 of the Act, when the service could not be effected in accordance with section 84, the bailiff would return the decision to the competent body. A written announcement indicating the place where the decision was kept would be posted on the door of the recipient’s home. Under sub-section 2 of this paragraph, such service was regarded lawful and any later damage or destruction of the announcement would not affect the lawfulness of the service. Section 94 of the Act provided that in the case of multiple unidentifiable recipients a decision would be served by way of a public announcement on the notice board of the competent body. Service would be considered to have been effected 15 days after the posting of the announcement. Under section 95 of the Act, if the person concerned or an adult member of his or her family refused to be served with a decision without any legal ground, the bailiff would either leave the decision in the recipient’s home or would post it on the door, which would be considered as equivalent to the service. The bailiff would mark the date, hour and reasons for refusal of the service, as well as the place where the decision was put. Section 270 § 2 (3) provided that a first-instance decision would become enforceable after being served on the interested party. That applied where an appeal did not suspend enforcement. Under section 39 (1) and (3) of the Construction Act, as then valid, the competent inspectorate would order immediate demolition of buildings constructed without a building permit. An appeal did not suspend the enforcement of the demolition order. Under section 121 of the Property Act, a construction built without a building permit does not confer to an investor title to the unlawfully erected building. Until such building is validated or demolished, the investor, equally to an owner, has a right to judicial protection, unless otherwise regulated by law.