CASE OF SPIRIDONOVSKA AND POPOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)
Aleš Pejchal;Krzysztof Wojtyczek
5. The applicants were born in 1954 and 1951 respectively and live in Kumanovo. 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. 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. 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). 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.” 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. 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.