CASE OF KRSTANOSKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
Aleš Pejchal;Krzysztof Wojtyczek
5. In 1957 several plots of land (agricultural land at the time) were expropriated from the applicants’ legal predecessors. The present cases concern restitution proceedings in which the applicants sought that the plots of land, which, at present, form part of a campsite on the shore of Lake Ohrid, be restored to their possession. 6. On 14 August 2001 the applicants instituted restitution proceedings. On 15 September 2003 the Ministry of Finance’s Restitution Commission (“the Restitution Commission”) granted the applicants’ claims and awarded them compensation, the form of which was to be determined by a separate decision. It established that according to an urban plan of 20 March 2002 the land was designated as a public green zone in a tourist area. Relying on an on-site inspection (увид) of 1 September 2002, it further held that the land was developed (уреден простор) with access paths and supporting infrastructure. 7. On 4 December 2003 the applicants appealed, arguing that, inter alia, the land was undeveloped and could be restored to their possession. Were the urban plan to be implemented in the future, the land could be expropriated anew. 8. On 31 May 2005 the 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 the applicants’ appeal finding no grounds to depart from the established facts and the reasons given by the Restitution Commission. Relying on section 10 of the Restitution Act (see paragraph 15 below), the second-instance commission held that the land in question was of public interest (јавен интерес) and could not be restored to the applicants’ possession, but that compensation should be awarded instead. 9. On 21 September 2005 the applicants lodged an administrative-dispute claim with the Supreme Court reiterating that the land within the campsite was undeveloped and could therefore be restored to their possession. In submissions lodged subsequently, they further referred to decision no. 44-530/1 of 7 March 2006 in which the second-instance commission had accepted a similar claim and ordered that a neighbouring plot of land located within the same campsite had been restored to possession of the claimants. In that case, the second-instance commission had held, unlike in the applicants’ case, that access paths and supporting infrastructure had not been sufficient for the land in question to be regarded as developed. 10. On 7 February 2008 the Administrative Court, which had in the meantime become competent to decide administrative-dispute claims, dismissed the applicants’ claim and upheld the findings of the administrative authorities. 11. On 28 November 2003 the Restitution Commission upheld the applicants’ restitution claim and awarded them compensation in State bonds. Relying on an on-site inspection of 13 May 2002 and a certificate of 15 September 2002 issued by the competent Ministry, it established that the plot in question was located within the boundaries of the campsite; that it had been designated as a public green zone and that pedestrian paths and other similar infrastructure were planned for construction. It concluded accordingly that the plot could not be restored to the applicants’ possession. 12. An appeal by the applicants of 7 April 2004 was dismissed by the second-instance commission on 15 November 2005. The latter held that, inter alia, the findings of the Restitution Commission had been based on section 10 of the Restitution Act. 13. The applicants lodged an administrative-dispute claim in which, alike the applicants in application no. 38024/08, they referred to the second-instance commission’s decision no. 44-530/1 and asked the Administrative Court to ensure consistent application of the law. 14. On 21 April 2008 the Administrative Court dismissed the applicants’ claim, finding no grounds to depart from the established facts and the reasoning given by the administrative authorities.