CASE OF TOLESKI 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 - Peaceful enjoyment of possessions)
Aleš Pejchal;Krzysztof Wojtyczek
6. On 9 March 1966 the Municipality of Ohrid appropriated from several individuals the right of use of nationalised building land (одземање од понатамошно користење на градежно национализирано земјиште) located in an area E. The land in question included a plot owned by the applicant’s legal predecessor, measuring 764 sq. m. 7. By a final decision of 1 November 2001, the applicant was declared heir of the right to claim restitution of the land. On 10 October 2002 he requested its restitution. 8. On 1 September 2003 the Ohrid Restitution Commission, operating within the Ministry of Finance (Министерство за финансии на Република Македонија - Комисија за Денационализација со седиште во Охрид – “the Restitution Commission”), accepted the applicant’s request and ordered the restitution of the land (“the restitution decision”). On the basis of documentary evidence of 30 May 2002 obtained from the Ministry of Transport and Communications (Министерство за Транспорт и Врски), the Restitution Commission found that no structures of public interest, but rather “beach service facilities and a leisure centre” (сервис објекти за плажа и центар за забава), were planned to be constructed on the plot in question. An expert had carried out an on-site inspection and had established that the land in question had been undeveloped building land and was part of the Ohrid lakeshore strip (крајбрежен појас на Охридското езеро). On 4 and 9 June 2003 the State Archives and the Ohrid Court of First Instance informed the Restitution Commission that they had no information as to whether any compensation had been paid to the applicant’s predecessor for the appropriated land. By a letter of 26 August 2003 the Municipality of Ohrid confirmed that neither the applicant nor his predecessor had sought compensation for the appropriated land. 9. A copy of the decision was served on the Solicitor General (Јавен Правобранител) but it appears that no appeal was lodged against the decision. Accordingly, it became final on 29 October 2003. 10. On 9 April 2004 the land was restored to the applicant’s possession (предавање во владение). The minutes drawn by the Restitution Commission stated that, although properly summoned, the Solicitor General did not attend the Commission’s meeting. 11. On an unspecified date, A., an association that ran a campsite near the plot in question (“the association”), submitted documentation to the Solicitor General that the plot in question was developed building land and was in use by the campsite. It submitted minutes of a meeting between the association and municipal representatives of 26 April 1978 which showed that the plot in question had been transferred to the association’s possession. As stipulated in the minutes, the plot in question had been given to the association for its use even earlier, on 9 March 1966. The association also submitted a decision from 1981 in which the Municipality was ordered to pay compensation to the applicant’s predecessor for the plot. 12. On an unspecified date in 2004 the Solicitor General requested that the Appeal Commission of the Government, acting as a second-instance body (Комисија на Влада на Република Македонија за решавање во управна постапка во втор степен од областа на денационализацијата – the Appeal Commission), either annul (поништи), declare null and void (огласи за ништовно) or quash through a supervisory-review procedure (укине по право на надзор) the restitution decision of 1 September 2003. The Solicitor General argued that the association had submitted documentary evidence that contradicted the facts established by the Restitution Commission in that the land had been in use by the association and that compensation had been paid to the applicant’s predecessor. That evidence had not previously been submitted to the Restitution Commission. 13. In his reply of 24 September 2004, the applicant submitted that the Solicitor General could not rely on errors of fact as grounds for supervisory review of the final restitution order. He further denied that any compensation had been paid to his predecessor or him. 14. On 16 March 2005 the Ministry of Finance carried out an on-site inspection and drew up a report according to which the land “was vacant space between Lake Ohrid and the Ohrid-St Naum road” and “it was not used for the servicing of any surrounding structures” (не е во функција на околни објекти). It determined that the land was intended for the construction of “beach service facilities and a leisure centre”, which could not be considered as being of public interest. Accordingly, possession of it could be restored (може да биде предмет на реално враќање). 15. On 11 June 2007 the Appeal Commission accepted the Solicitor General’s request and declared the restitution order null and void finding that, pursuant to section 267(1)(3) of the Administrative Procedure Act (see paragraph 48 below), it could not be enforced. Relying on section 8 of the Restitution Act, the Appeal Commission stated that: “From all admitted evidence in the proceedings it can be established that the undeveloped building land was appropriated from the [applicant’s] predecessor, that compensation was paid to the latter, and that the land in question is developed building land with playing fields and other leisure and recreational facilities, which are an integral part of camp E. The [Appeal Commission] established that in the present case the final restitution order was based on a wrong application of the law, which was preceded by erroneous and incomplete establishment of the facts.” 16. On 14 August 2007 the applicant lodged an administrative action, arguing that the Restitution Commission, in its decision of 1 September 2003, had established the facts correctly. In this connection he referred to the Ministry of Finance’s report of 16 March 2005 (see paragraph 14 above) and another on-site report of 13 July 2007 drawn up for the purpose of an “action for disturbance of possession” in which it had been confirmed that the land had been vacant – a fact that had been established by Bitola Court of Appeal in an earlier civil dispute between him and the association (see paragraph 33 below). 17. On 4 September 2009 the Administrative Court (Управен Суд) – which had meanwhile become competent to decide on administrative actions – dismissed the applicant’s action and held that the annulment order of the Appeal Commission had been lawful. It referred to section 267 of the General Administrative Proceedings Act, sections 8(1) and 10 of the Restitution Act, sections 1 and 2 of the Protection of Lakes Ohrid, Prespa and Dojran Act, as well as sections 2, 69(4) and 70 of the Waters Act (see paragraphs 39, 40, and 42-44 below) and relied on the fact that the land in question was part of the shoreline. The relevant part of the judgment reads as follows: “In the court’s opinion, in deciding the present case, the [Appeal Commission] acted correctly when it declared null and void the final restitution order, in accordance with section 267(1)(3) of the Administrative Proceedings Act, under which a decision whose enforcement is not possible shall be declared null and void. In relation to this, the court emphasises that this provision does not concern only the factual, but also the legal impossibility of enforcement ... ... In view of the above-cited statutory provisions, it is undisputed that Lake Ohrid and its shore are ... of general interest (добро од општ интерес), which is relevant, in the court’s view, for the restitution proceedings, within the meaning of the Restitution Act. ...” 18. On 25 February 2010 the Supreme Court (Врховен суд на Република Македонија) declared inadmissible an appeal against the Administrative Court’s judgment lodged by the applicant. The Supreme Court held that the impugned judgment had predated 25 September 2009, the day when it had become competent to decide administrative actions in the second instance. 19. On 31 May 2010 the Administrative Court rejected the applicant’s request for reopening of the proceedings on the basis of newly discovered facts. That decision was confirmed on appeal by the Supreme Court in a decision of 23 June 2010. 20. On 19 July 2010 the applicant applied to the public prosecutor (Јавен Обвинител на Република Македонија) seeking that protection of legality proceedings (Барање за заштита на законитост) be instituted regarding the judgment of the Administrative Court of 4 September 2009, as well as regarding the rejection of his request for the reopening of the proceedings. It appears that the public prosecutor accepted the applicant’s application and lodged an application for the protection of legality with the Supreme Court, which the latter rejected as inadmissible on the grounds that the remedy in question was no longer available due to change in legislation. 21. Following the final decision to declare the restitution decision null and void, on 13 April 2011 the Restitution Commission dismissed the applicant’s request. 22. On 16 June 2011, the applicant lodged an administrative action with the Administrative Court, challenging that decision. 23. On 1 February 2012, the Administrative Court quashed the decision. It found that the facts of the case relating to whether the plot was developed building land or not, as well as the issue of whether the applicant had received compensation, had not been sufficiently well-established. 24. On 25 May 2012 the Restitution Commission, after having made a fresh on-site inspection, upheld the applicant’s restitution request. 25. On 7 June 2012 the Solicitor General, acting on behalf of the State, challenged the latter decision with an administrative action, arguing that the Restitution Commission had failed to obtain information as to whether the land was of public interest owing to its situation on the Ohrid lakeshore. 26. On 10 July 2013 the Administrative Court dismissed the Solicitor General’s action and upheld the decision of the Restitution Commission. 27. On 25 July 2013 the Solicitor General lodged an appeal against the latter judgment with the Higher Administrative Court (Виш Управен Суд). The reasons stated in the appeal were, inter alia, that the Administrative Court had not given appropriate reasons as to whether the land had been of public interest. 28. The applicant died on 23 August 2013. 29. On 26 June 2014 the Higher Administrative Court quashed the judgment and remitted the proceedings. Relying on sections 6, 131 and 132 of the Waters Act, it found that the land in question was part of the Ohrid lakeshore strip and therefore was of public interest. 30. On 30 July 2014 D.S., the applicant’s daughter, asked the Restitution Commission to stay the proceedings. She submitted evidence that inheritance proceedings regarding the legacy of the applicant had been opened. The inheritance proceedings were later stayed due to civil proceedings in which she challenged the alleged existence of a will made by the applicant in favour of G.T., her brother. 31. On 22 September 2014 the Restitution Commission decided to stay the proceedings pending the outcome of the civil and the inheritance proceedings. 32. It appears that the civil and the inheritance proceedings are still pending. 33. In a separate set of proceedings concerning the same plot of land on 17 September 2009 the Bitola Court of Appeal overturned the lower court’s decision and finally upheld the applicant’s action for protection from disturbance of possession (смеќавање на владение) against the association which ran the camp regarding the same plot of land. It ordered the association to refrain from further disturbances. 34. According to a document from the Land Registry dated 3 September 2010, the historical records of the plot of land show that the association was granted use of the plot as of 9 March 1966. The State had at the time remained the owner of the plot, which continued to be the case until the day the document was issued. 35. On 30 August and 4 November 2010, and 30 March and 10 August 2011 the applicant made additional submissions to the Court, including evidence, which were added to the case file. This evidence refers to other neighbouring plots of land which, according to the applicant, had been returned to the possession of their respective owners. According to him, it had never been argued by the State that these neighbouring plots had been of public interest. In support he submitted several decisions from several different sets of restitution proceedings. It cannot be ascertained whether any of those proceedings ended finally in the respective plaintiffs’ favour.