Communicated on 3 May 2017
FIRST SECTION
Application no. 37948/13
FINE DOO and others
against the former Yugoslav Republic of Macedonia
lodged on 7 June 2013
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant is a limited liability company. The second and third applicant are its founders and sole owners. After obtaining a construction permit from the municipality on an unspecified date between 2010 and 2011, the first applicant initiated the construction of a commercial building in Skopje. It was planned to be 60 metres high with a total usable area of 2,315 square metres.
On 30 and 31 May 2011 the building (which was still under construction at the time) was subject to a site inspection by the municipal building control department (Одделение за урбанистично – градежна инспекција, Општина Кисела Вода), which commissioned an expert report from a private company to verify its findings (“the expert report”).
On 15 July 2011 a follow-up site inspection took place and notes were compiled by a certified building inspector (овластен градежен инспектор) from the department. The notes stated that the building in question had been constructed in violation of the construction permit. In particular, the foundations of the building were 1.43 metres higher than that permitted under the construction permit and as a consequence all the floors were 1.43 metres higher than originally planned. Furthermore, the investor had added several concrete pillars and made other changes in violation of the permit. This was confirmed by the expert report and the follow-up site inspection.
On the same day, two orders were issued by building control department: one for the first applicant to demolish the building within five days and another for the construction work to be brought to a complete halt. Both orders provided that an appeal without suspensive effect could be lodged within fifteen days.
On 21 July 2011 the first applicant lodged a request with the municipal authority for changes to be made to the construction permit with regard to the difference in height of the building.
On 25 July 2011 the first applicant appealed against the two orders. In the appeals it explained that the discrepancies between the permit and the actual building existed because of the unexpected presence of underground water.
With additional submissions made on 19 August 2011 the first applicant submitted another expert report, which said that the measurements taken as part of the expert report had been done using an inappropriate method. The later expert report did not contain any new measurements, and only contested the method used to obtain the existing ones.
Between 1 and 17 August 2011 the building was demolished by the building control department.
On 23 August 2011 both appeals were dismissed by a second-instance administrative municipal commission, on the grounds that it could be seen from one of the appeals lodged that the facts in question were not disputed because the first applicant had admitted to the differences in height. The fact that it had requested changes to the construction permit also supported this assessment.
The first applicant lodged an action before the Administrative Court challenging the demolition order of 23 September 2011.
On 26 September 2011 it lodged a second administrative action challenging the order to close the construction site.
On 6 April 2012 the Administrative Court dismissed both actions. It held that the building had indeed been constructed in violation of the construction permit. In this regard it also stated that the first applicant had not challenged the discrepancies but had attempted to provide justification for them. Regarding the method used, it found that the findings of building control department were confirmed by the expert report compiled by the independent private company at its request. Lastly, it found that due to the nature of the discrepancies between the building and the construction permit, rectification of the building work had been impossible.
The first applicant appealed against both decisions before the Higher Administrative Court. It stated that rectification of the building work in line with the construction permit had been possible but had never really been examined by the building control department. It held that it was the duty of every State organ to apply the measure which was least damaging for the party concerned. It also contested the factual findings of the Administrative Court and the State institutions by relying on the expert report which it had submitted.
On 22 November 2012 the Higher Administrative Court dismissed both appeals, reiterating the same reasoning as the Administrative Court.
Both decisions were served on the first applicant on 13 December 2013.
COMPLAINTS
The applicants complain under Article 1 of Protocol No. 1 to the Convention that the demolition of their commercial building constituted an unjustified interference with the peaceful enjoyment of their property.
QUESTIONS TO THE PARTIES
Did the demolition of the applicants’ building constitute an interference with the peaceful enjoyment of their possession within the meaning of Article 1 of Protocol No. 1? If so, was the demolition imposed in accordance with the conditions provided for by law and in the public interest? Was it necessary and proportionate, within the meaning of Article 1 of Protocol No. 1?
Appendix FINE DOO is a company whose registered office is in Skopje. Nedzibe CANOSKA is a Macedonian national who was born in 1961 and lives in Struga. Fijat CANOSKI is a Macedonian national who was born in 1960 and lives in Struga.
All three applicants were represented by V. Pepeljugoski, a lawyer practising in Skopje.
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