TANEVA & OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
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. The facts of the case, as submitted by the parties, may be summarised as follows. 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. 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. 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. 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. 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. 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. 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). 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. 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). 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. 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)).