CASE OF VIKENTIJEVIK 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)
Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
5. The applicant was born in 1941 and lives in Skopje. 6. On 27 September 1945 V.D.M., the applicant’s late grandfather, together with other individuals, A.J., T.K. and L.L., members of the Executive Board of company T. (“the company”), were convicted of offences against the people and the State since they had put the company T. at the disposal of the enemy forces (during the Second World War). They were all sentenced to a suspended prison term with forced labour. The court also ordered full confiscation of the company’s property. 7. On 9 January 1946 the then Skopje People’s District Court confiscated the company’s immovable property (including residential apartments for workers (работнички станови)) and various items of movable property, which were specified in detail in the decision (“the confiscation order”). The total surface area of the confiscated buildings was 3,496 square metres. Some 60,549 sq. m of land was also subject to confiscation. The confiscated property was to be transferred to the State. The confiscation order referred to V.D.M., A.J., T.K. and L.L., as “convicted shareholders” who had actual possession (фактичка сопственост) of the company. 8. On 29 December 1995 the company decided to restructure itself in accordance with the Law for Reorganisation of Companies with Business Losses (“the Company Restructuring (Business Losses) Act”). 9. On the basis of that decision and at the request of the applicant, who was seeking that the property be retained for restitution, on 18 October 1996 the company entered into a contract (“the 1996 contract”) with the State, represented by the Privatisation Agency, transferring to it the title to specific named buildings (which did not include the residential apartments), the total surface area of which was 1,240 sq. m. It further transferred into the State’s possession preference shares (приоритетни акции), the value of which was 2,158,831 German marks (DEM) (“the shares”). 10. Thereafter, on 28 December 1999 the Skopje Court of First Instance (“the first-instance court”), on the applicant’s request, overturned the 1945 judgment in respect of his late grandfather concerning the confiscation of the company’s property. This judgment became final on 31 January 2000. 11. In a judgment of 6 July 2000, which became final on 10 July 2000, the first-instance court declared the applicant heir to the right to claim restitution (наследник на правото на денационализација) in respect of the property of his late grandfather (V.D.M.). Referring to the 1945 judgment, the confiscation order and the judgment of December 1999 (see paragraphs 6, 7 and 10 above), the inheritance order also concerned the applicant’s right to claim “restoration of possession and payment of compensation” in respect of the company’s immovable and movable property. 12. On 14 August 2000 the applicant instituted restitution proceedings. The parties did not submit a copy of the restitution claim. 13. On 13 September 2000 the Ministry of Finance, represented by two officials, drew up a report concerning an on-site inspection carried out on 12 September 2000. According to the report, which was typed on a computer, V.D.M., A.J., T.K. and L.L. had been the company’s shareholders. The land was in the company’s possession. In 1959 the land in question was divided into two plots, which included buildings with a total surface area of 3,377 sq. m. The entry in the new Land Register indicated that the total surface area of the buildings constructed on the land was 34,617 sq. m. The report further stated that only some of the buildings specified in the confiscation order, including the residential apartments, were still on the land. 14. On 15 September 2000 the Restitution Commission of the Ministry of Finance accepted the applicant’s restitution claim and decided 1) to restore to his possession the buildings specified in the 1996 contract (see paragraph 9 above) and the residential apartments and adjacent buildings (694 sq. m), together with the land underneath, as well as the land described as a courtyard (двор), a total surface area of 60,549 sq. m; 2) to transfer into his possession the preference shares specified in the 1996 contract as compensation for the movable property of the company; and 3) to transfer into his possession State-owned shares in company P. as compensation (the equivalent to approximately 51,400 euros (EUR) for land underneath) for other objects (1,561 sq. m). As stated in the order, the Restitution Commission, assisted by an expert, had carried out an on-site inspection and established that the total surface area of all confiscated buildings at the time of confiscation, was 3,496 sq. m. 15. The restitution order indicates that the applicant’s restitution claim, together with the complete case file, was communicated to the Solicitor General (Јавен Правобранител) (see paragraph 48 below) , who submitted in reply that “there was no statutory provision requiring him or her to comment on the matter” (не бил законски обврзан да се изјасни по барањето). As is evident from a letter of 21 March 2003 from the Ministry of Finance included in the case file, the restitution order was served on the Solicitor General. No appeal having been submitted, the restitution order became final on 13 October 2000. 16. On 13 February 2001 the Restitution Commission rectified the restitution order under sub-heading 3), stating that the applicant would receive State-owned shares in company Z.L. (“the rectifying decision”). 17. Between 21 February and 27 March 2001, the State authorities 1) transferred to the applicant title to the company’s preference shares (which represented 7.84% of the company’s share capital (основна главнина)), and buildings specified in the 1996 contract (on the basis of two separate contracts concluded between the Privatisation Agency and the applicant), and 2) registered him as the owner of the buildings and the land. According to an extract from the land registry dated 25 October 2006, the applicant had title to 62,755 sq. m. The applicant was recorded in the company’s shareholder book (акционерска книга), as well as in the Central Securities Depositary (Централен Депозитар за хартии од вредност), as a shareholder in company T. and company I.G. (apparently instead of company Z.L.) The Privatisation Agency requested that company T. allow the applicant to obtain actual possession (владение) of the immovable property. 18. On 29 November 2003 an expert commission of the Ministry of Finance carried out an on-site inspection and established that the land in question could not be returned to the applicant, since it served the existing buildings (company property and the residential apartments). 19. On 8 December 2003 the applicant requested that the Ministry of Finance enforce the restitution order and asked that the company transfer the “land and buildings” into his actual possession. On 15 January 2004 he repeated his request for enforcement. On 22 April 2004 the Ombudsman also recommended that the Ministry of Finance enforce the restitution order and transfer the land into the applicant’s actual possession. 20. On 21 January 2004 a Coordinating Commission in the Ministry of Finance, having been approached by a group of citizens residing in the apartments located on the land in question, noted that there had been “certain irregularities” in the restitution proceedings, and requested that the Government Appeal Commission (“the Commission”) review the restitution order under the Administrative Proceedings Act. On 22 October 2004 the Commission found no grounds to rescind the restitution order within its powers of supervisory review (укинување по право на надзор). It also stated that the Coordinating Commission should submit the case file to the Restitution Commission, which had the authority to quash the restitution order of its own motion provided the statutory requirements had been met. 21. On 1 December 2004 the Solicitor General requested, under section 267 § 1 (3) and (5) of the Administrative Proceedings Act (see paragraph 44 below), that the Commission declare the restitution order and the rectifying decision null and void (барање за огласување ништовно). He submitted that the applicant had been awarded full restitution of the entire property of the company, despite the fact that, as specified in the confiscation order of 1946, the company had been jointly owned by several persons. Furthermore, the buildings restored to the applicant were not the same in terms of surface area and description as the buildings confiscated in 1946. The current value of the land now by far exceeded its value at the time of confiscation. Furthermore, the land had been developed in the meantime, and buildings with a total surface area of 34.064 sq. m had been constructed. Lastly, he maintained that the preference shares transferred into the applicant’s possession on the basis of the 1996 contract represented over half the value of the entire movable property of the company. 22. On 26 April 2006 the Commission granted the request, quashed the restitution order and the rectifying decision, and remitted the case for re-examination. It ordered the Land Registry and the Central Securities Depositary to amend their records accordingly. It held that the Solicitor General, in what was a manifest omission (очигледен пропуст), had not appealed against the impugned decisions in the ordinary proceedings “despite their apparent unlawfulness”. Referring to the confiscation order of 1946, the Commission stated: “... V.D.M., A.J., T.K. and L.L. were the former owners of the confiscated property of [the company]. ... it is not in doubt that [the applicant] is the heir only of V.D.M., thus of only a notional one-quarter of the confiscated property ... This is sufficient (for the conclusion) that the first-instance commission violated the Restitution Act at the expense of the State, and that it follows that the [restitution order] is invalid. As is evident from the expert report of 13 September 2000 (see paragraph 13 above), which was drawn up only two days before the restitution order, the confiscated property was not at all identical to the existing property, specifically the buildings confiscated in 1946, the total surface area of which was 3,496 sq. m, were supporting objects, while the current buildings, with a surface area of 34,617 sq. m, are modern and solid constructions. Furthermore, the confiscated buildings no longer exist, but completely different buildings, which are ten times bigger, were constructed instead. That was confirmed in the report of 29 November 2003 (see paragraph 18 above). Furthermore, the land (60,549 sq. m) could not be the subject of restitution and it could not be returned under section 28 of the Restitution Act, since buildings (34,617 sq. m) belonging to the company T. had been constructed on that land. It is developed construction land with complete infrastructure, which serves the existing property ... Lastly, the first-instance body wrongly applied sections 33, 34, 35 and 36 of the Restitution Act when it transferred into [the applicant’s] sole possession the entire package of reserved preference shares of all four former owners, actually their heirs, instead of only a notional one-quarter. As a result, the State sustained damages. Accordingly, [the restitution order] cannot be enforced, as specified under section 267 § 1 (3) of the Administrative Proceedings Act ...” 23. On 22 June 2006 the applicant lodged an administrative-dispute claim (тужба за управен спор) with the Supreme Court, in which he argued that the restitution order and the rectifying decision had already been enforced. They had been rendered in proceedings in which the Solicitor General had failed to lodge an ordinary appeal, although entitled to do so. The quashing of the order had been based on alleged errors in the facts, which could not serve as a ground for the extraordinary remedy used in his case. Furthermore, the Solicitor General had not been entitled to intervene in the proceedings in order to protect the interests of third parties. The applicant argued that the Commission, by quashing the relevant decisions over five years after they had been adopted, had violated the principle of legal certainty and irrevocability of final decisions. Lastly, he complained that the expert report of 13 September 2000, to which the Commission referred in the impugned decision, carried no stamp; it had not been drawn up on the form in use at the time; and the Restitution Commission had not quoted it in the restitution order of 15 September 2000. That raised doubts about the reliability of that document. 24. On 16 March 2007 the Supreme Court dismissed the applicant’s appeal. It stated that section 267 § 1 (3) of the Administrative Proceedings Act concerned both the factual (фактичка) and legal (правна) impossibility of enforcement. The restitution order and the rectifying decision were contrary to sections 13, 21 § 1 (1), 28 § 2, 33 and 36 of the Restitution Act (see paragraphs 31-38 below), and were accordingly legally unenforceable. The court further stated: “... According to [the 1945 judgment], the confiscation concerned the convicted shareholders T.K., A.J. and L.L., who were (in addition to V.D.M.) the owners of [company T.]. Having regard to section 13 of the Restitution Act, [the applicant] applied as heir to the property of his legal predecessor, V.D.M. Consequently, he could inherit only V.D.M.’s share and not the entire property of [the company]. Having regard to the transcript of the hearing of 13 September 2000 ... the court finds that there has been a violation of section 21 of the Restitution Act, since it has not been established whether the value of the confiscated property has increased. ... there has been a violation of section 28 § 1 (2) of the Restitution Act, since land which has been developed and built upon (60,549 sq. m), as established on 29 November 2003 by a commission, has been restored [on the basis of the restitution order] to the possession of the applicant. On the basis of the material in the case file it has been established beyond any doubt that the property subject to restitution had previously been owned by four persons, who were the shareholders. Consequently, there has been a violation of sections 33 and 36 of the Restitution Act, since the entire package of reserved preference shares for all four former shareholders was transferred to [the applicant’s] sole possession ... ... In the present case, the court underlines once more that there has been a violation of the imperative provisions of the Restitution Act, which made the enforcement of the final restitution order legally impossible, as specified under section 267 § 1 (3) of the Administrative Proceedings Act. The court has examined [the applicant’s] allegations that there was a violation of the fundamental principle of finality of decisions in administrative proceedings, as well as that the impugned decision contained no reasons that could fall within the ambit of section 267 (of the Administrative Proceedings Act), but it considers them ill-founded. The Administrative Proceedings Act provides for the extraordinary remedy of declaring a decision null and void (section 267). [The Commission] is the competent body to decide, and the (impugned) decision clearly states that the decision was given under section 267 § 1 (3) of the Administrative Proceedings Act. Furthermore, the decision contains adequate reasoning.” 25. This judgment was served on the applicant on 11 May 2007. 26. On 3 July 2007 the public prosecutor found that there were no grounds to institute legality review proceedings (постапка по барање за заштита на законитоста) against the Supreme Court’s judgment. 27. On the basis of a request by the Restitution Commission, on 26 May 2008 an expert commission of the Ministry of Finance carried out an on-site inspection and found that construction of collective residential buildings had been planned under the town plan of May 2008 on the land in question. It further established that the part of the land on which roads, car parks and green space were planned could not be returned (не може да биде предмет на реално враќање). Over 42,600 sq. m of the land, the part on which construction of collective residential buildings was planned, could be restored. 28. On 7 December 2010 the Restitution Commission suspended the proceedings (прекинува) and instructed the applicant to institute, within fifteen days of service of that decision, separate civil proceedings in order to establish, as a preliminary question (претходно прашање), the amount of the share of V.D.M., his legal predecessor, in the company’s property. In the reasoning, it noted that on 9 May 2008 the applicant had submitted written evidence that T.K., A.J. and L.L. were not shareholders in the company. It also observed that five other requests for restitution of the company’s property had been submitted for consideration between 7 May 2003 and 15 May 2008. The claimants in those cases had provided documents indicating that their predecessors had been shareholders, dividing between them the entire property of the company. 29. The Government stated that most of the restitution claims concerning the property at issue which had been submitted by third parties had been dismissed. 30. On 22 December 2010 the applicant brought a civil action against T.K., A.J. and L.L., whose whereabouts were unknown, in which he sought to have the first-instance court declare V.D.M., his legal predecessor, the sole shareholder of the company. Those proceedings are still pending before the first-instance court.