GALENA VRANISKOSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30844/06
by Galena VRANIŠKOSKA
against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (First Section), sitting on 12 April 2011 as a Chamber composed of:

Nina Vajić, President,
Christos Rozakis,
Peer Lorenzen,
Khanlar Hajiyev,
George Nicolaou,
Mirjana Lazarova Trajkovska,
Julia Laffranque, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 12 July 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Galena Vraniškoska, is a Macedonian national who was born in 1939. The applicant lives in Bitola. She submitted the application in her name and on behalf of Mr Argil Vraniškoski, her late husband, who died on 30 October 2005. The applicant was represented before the Court by Mr V. Georgiev, a lawyer practising in Bitola. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Under a sales agreement of 1980, the applicant obtained title to agricultural land in a place called Kosa Tumba, near Bitola. According to the applicant, in 2002 the land authorities issued a certificate attesting that the plot in issue was outside the area designated for construction (надвор од градежен реон). On that property, the applicant and her husband constructed a weekend house and garage without a building permit, as was the case with houses built by other individuals in Kosa Tumba. The applicant lives in an apartment in Bitola. On an unspecified date in October 2003, they also started constructing a house of worship and supporting walls (hereafter referred to as “the structures”).

1. Decisions of 7 October 2004

On 7 October 2004 an inspector from the Ministry of Transport and Communications (hereafter “the Ministry”) carried out an on-site inspection of the property. A report was drawn up according to which the applicant and her husband had started building the structures without a building permit. The Ministry ordered them to demolish the structures immediately under threat of a forcible demolition (“the demolition order”). Referring to the on-site inspection and the report that had been drawn up, it stated that they had started building the structures without a permit. Under the order, the demolition costs were to be borne by the applicant and her husband. It relied on section 39 § 3 of the Construction Law, as valid at the material time, under which an appeal against the order would not have had suspensive effect (see “Relevant domestic law” below).

In a separate decision, the Ministry decided that the demolition order had become enforceable (“the enforcement order”). It ordered the applicant and her husband to destroy the structures immediately. It reiterated that they were to bear the costs of demolition and that an appeal would not have a suspensive effect. In this context, it referred to section 270 § 2 (3) of the Administrative Proceedings Act of 1986 (“the Act”, see “Relevant domestic law” below), as valid at that time.

2. Delivery of the demolition and enforcement orders

The Government submitted copies of two delivery receipts (“the receipts”, доставници) according to which on 8 October 2004 the demolition and enforcement orders were served, in the applicant’s apartment, on a minister (свештеник) who had refused to identify himself and to give information about the applicant’s whereabouts. The minister had also refused to sign the receipts. Both receipts were dated and signed by a bailiff.

On 14 October 2004 the Ministry issued an announcement informing the applicant that the demolition and enforcement orders were at its premises and that they would be posted on the Ministry’s notice board since she could not be found at her place of residence. On the same day, the bailiff, with a handwritten note on the announcement, indicated that it had been handed over, in the applicant’s apartment, to a minister who had refused to identify himself. The latter did not sign the announcement.

3. Forcible demolition of the structures

According to the applicant, at midnight on 15 October 2004, about 200 armed police officers arrived on her property in Kosa Tumba accompanying workers engaged by the Ministry to enforce the demolition order. Eight police officers, without a court warrant or any other decision, entered the applicant’s weekend house and forced her husband and their son outside. They were allegedly forced to watch the demolition of the structures. The Government contested the applicant’s version of events regarding the demolition of the structures, without giving any further details.

4. Administrative proceedings concerning the Ministry’s decisions of 7 October 2004

On 21 October 2004 the applicant and Mr Argil Vraniškoski requested the Ministry to serve the demolition order on them. They stated that they had never received it and referred to an announcement of 14 October 2004 on the notice board in the Ministry concerning their case.

On 23 November 2004 the Ministry replied that there was evidence in the case file that the demolition order had been served on them and that accordingly there were no grounds for a repeated service.

On 6 December 2004 the applicant and her husband appealed against the demolition and enforcement orders before the Government second-instance Commission (“the Commission”) arguing that they had never been served on them. They complained that even assuming that the announcement posted on the Ministry’s notice board was to be regarded as the equivalent of service, the demolition order could only have become enforceable 15 days after 14 October 2004, as set forth in section 94 of the Act. On 9 February 2005 they requested the Commission to decide, within 7 days, their appeals. On 3 March 2005 the applicant and her husband lodged an appeal on points of law with the Supreme Court complaining about the Commission’s failure to decide their appeals (тужба поради молчење на администрацијата).

On 21 April 2005 the Commission dismissed, by two separate decisions, the appeals, finding that the demolition and enforcement orders had been given in accordance with the law. It stated that the applicant and her husband had started building the structures without a permit, as required under section 39 § 1 of the Construction Act. As to the applicant’s complaints about the improper service of the orders, the Commission stated:

“... the Commission has examined the [applicant’s] arguments in the appeal and finds that they are unsubstantiated and without any legal effect, since no construction work can be undertaken without a building permit being obtained ...”

On 4 June 2005 the applicant and her husband challenged the Commission’s decisions by way of an appeal on points of law in which they reiterated their earlier arguments.

On 21 December 2005 the Supreme Court rendered two decisions dismissing their appeals. It found no force in their arguments that the administrative bodies had ignored their complaints about the alleged failure to serve the demolition order on them. In this connection it stated that “the service was carried out in accordance with the Act”. Referring to the case file, the court held that the inspector responsible had correctly ordered, under section 39 of the Construction Act, the demolition of the structures. The decisions were sent to the applicant on 19 January 2006.

B. Relevant domestic law

1. Administrative Proceedings Act of 1986 (“the Act”, Закон за управната постапка)

Section 81 of the Act, as valid at the material time, provided that a decision should, in principle, be handed over to the individual concerned in person.

Under section 83, the decision was to be served, in principle, at the home of the recipient.

Under section 84, if the recipient was not at home, the decision would be served on an adult member of his or her family or to a housekeeper or neighbour, with their consent.

Under section 86 § 1 of the Act, when the service could not be effected in accordance with section 84, the bailiff would return the decision to the competent body. A written announcement indicating the place where the decision was kept would be posted on the door of the recipient’s home. Under sub-section 2 of this paragraph, such service was regarded lawful and any later damage or destruction of the announcement would not affect the lawfulness of the service.

Section 94 of the Act provided that in the case of multiple unidentifiable recipients a decision would be served by way of a public announcement on the notice board of the competent body. Service would be considered to have been effected 15 days after the posting of the announcement.

Under section 95 of the Act, if the person concerned or an adult member of his or her family refused to be served with a decision without any legal ground, the bailiff would either leave the decision in the recipient’s home or would post it on the door, which would be considered as equivalent to the service. The bailiff would mark the date, hour and reasons for refusal of the service, as well as the place where the decision was put.

Section 270 § 2 (3) provided that a first-instance decision would become enforceable after being served on the interested party. That applied where an appeal did not suspend enforcement.

2. Construction Act of 1990 (Закон за изградба на инвестициони објекти)

Under section 39 (1) and (3) of the Construction Act, as then valid, the competent inspectorate would order immediate demolition of buildings constructed without a building permit. An appeal did not suspend the enforcement of the demolition order.

3. Property Act of 2001 (Закон за сопственост и други стварни права)

Under section 121 of the Property Act, a construction built without a building permit does not confer to an investor title to the unlawfully erected building. Until such building is validated or demolished, the investor, equally to an owner, has a right to judicial protection, unless otherwise regulated by law.

COMPLAINTS

1. The applicant complained that in the domestic proceedings concerning the demolition order she, and her late husband, had not had a fair hearing in that the complaints submitted had not been sufficiently addressed.

2. Further, she complained that the demolition as such had violated her and her late husband’s right to peaceful enjoyment of their possessions protected under Article 1 of Protocol No. 1 to the Convention.

3. Finally, the applicant complained of a violation of Articles 3, 8, 9, 13 and 14 of the Convention.

THE LAW

1. The applicant complained, in her own name and on behalf of her late husband, under Article 6 of the Convention that, in the proceedings concerning the lawfulness of the demolition and enforcements orders, the domestic authorities had not sufficiently addressed her complaints that the demolition order had never been served on her. In so far as relevant, Article 6 of the Convention reads, as follows:

“Article 6 § 1

In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The applicant’s standing to complain on behalf of Mr Argil Vraniškoski

a) The parties’ submissions

The Government submitted that the applicant did not have the requisite standing to complain on behalf of her late husband, who had died before she introduced the application.

The applicant argued that Mr Argil Vraniškoski had also been a party to the impugned proceedings and due to their close relationship she had the requisite standing to bring the application on his behalf. Furthermore, the issues raised by the case transcended the interests of her late husband.

b) The Court’s assessment

The Court normally permits the next of kin to pursue an application provided he or she has sufficient interest, where the original applicant has died after the introduction of the application before the Court (see Malhous v. the Czech Republic [GC] (dec.), no. 33071/96, ECHR 2000-XII). However, the situation varies where the direct victim dies before bringing his or her complaint before the Court. In the Marie-Louise Loyen and Bruneel judgment (see Marie-Louise Loyen and Bruneel v. France, no. 55929/00, § 29, 5 July 2005), the Court accepted the application from the victim’s wife concerning the fairness and length of proceedings under Articles 6 and 13 of the Convention. In contrast, in the Fairfield case (see Fairfield v. the United Kingdom (dec.), no. 24790/04, 8 March 2005), the Court ruled that the victim’s daughter did not have the requisite standing to bring Article 9 complaints of her late father before it. The Court decided similarly in the Dimitrovska case (see Dimitrovska v. the former Yugoslav Republic of Macedonia (dec.), no. 21466/03, 30 September 2008), which concerned Article 6 complaints (length and fairness) in respect of civil proceedings in which the applicant’s late husband was a party. The same decision was reached in the Ivanovski and Others case (see Ivanovski and Others v. the former Yugoslav Republic of Macedonia, no. 34188/03, §§ 2 and 16, 26 November 2009).

In the present case, the Court notes that Mr Argil Vraniškoski was a party to the impugned proceedings, as was the applicant. Apparently, they built the structures jointly. Mr Argil Vraniškoski died on 30 October 2005. On 12 July 2006 the applicant, his wife, lodged the application in her name and on behalf of her late husband. She complained that the demolition of the structures had violated their rights under several Articles of the Convention.

In such circumstances, the Court does not consider that the applicant has the requisite standing to bring the application on behalf of her late husband. The case does not raise an issue of general interest that transcends the applicant’s late husband. In addition, the applicant is a direct victim of the alleged violations and can therefore pursue the application in her name.

It follows that the application, in the part concerning Mr Argil Vraniškoski, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

The applicant’s complaint under Article 6 of the Convention

a) The parties’ submissions

The Government submitted that the applicant had not been denied the right to present her arguments and to propose evidence relevant to the case in adversarial proceedings. The Commission had indeed failed to address explicitly her arguments that the demolition order had never been served on her. However, that had been irrelevant given the fact that its decisions had post-dated the applicant’s appeal to the Supreme Court of 3 March 2005, which had been lodged under the assumption that the Commission had implicitly dismissed her appeals. The Supreme Court had explicitly stated that it had examined the applicant’s complaints, but that the latter could not alter its decision. By stating that “the service had been carried out in accordance with the Act”, the Supreme Court had clearly specified the reasons for its decision. Any further insistence on more detailed reasoning, given the circumstances of the case, would be unnecessary or unsubstantiated.

The applicant submitted that the domestic authorities had not addressed the core arguments of her appeals, namely, that the demolition order had been enforced unlawfully. Apart from a statement to the effect that it had examined her arguments, the Supreme Court had failed to provide any explanation for its decision. She reaffirmed that the demolition and enforcement orders had not been served on her.

b) The Court’s assessment

The Court reiterates that its established case-law on matters linked to the proper administration of justice requires that the judgments of courts and tribunals should adequately state the reasons on which they are based (see Atanasovski v. the former Yugoslav Republic of Macedonia, no. 36815/03, § 36, 14 January 2010). Article 6 § 1 of the Convention obliges courts to give reasons for their judgments, but it cannot be understood as requiring a detailed answer to every argument (see Pronina v. Ukraine, no. 63566/00, § 23, 18 July 2006). The extent to which this duty to give reasons applies may vary according to the nature of the decision. The question of whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (see Hiro Balani v. Spain, 9 December 1994, § 27, Series A no. 303-B; Suominen v. Finland, no. 37801/97, § 34, 1 July 2003; and Tatishvili v. Russia, no. 1509/02, § 58, ECHR 2007-III).

In the present case, the Court notes that the applicant’s main source of grievance was whether the demolition order had been enforced lawfully. In this connection she complained of improper service of the order. These complaints were clearly relevant for the outcome of the case. The Commission found that they were “unsubstantiated and without any legal effect”. The Supreme Court stated that “the service (of the demolition order) was carried out in accordance with the Act”. This explanation was provided on the basis of the case file, to which the Supreme Court referred in its decision, which included copies of the receipts that the Government submitted to the Court in the course of the proceedings before it (see “The Facts” above). In these circumstances, the Court considers that the applicant’s arguments regarding the service of the demolition order were examined by the competent authorities. Although it would have been desirable for the Supreme Court to provide a more substantial statement of reasons, rather than a mere reference to the Act, the Court does not consider that the reasoning provided by the highest court was so short that would be incompatible with the requirements of a fair trial.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. The applicant further complained that the demolition of the structures had violated her right to peaceful enjoyment of her possessions contrary to Article 1 of Protocol No. 1 to the Convention, which reads:

“Article 1 of Protocol No. 1

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

a) The parties’ submissions

The Government submitted that the structures could not be regarded as “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. They had not been “existing possessions”, nor could the applicant have had a legitimate expectation that she would obtain the right of peaceful enjoyment to them given the fact that they had been constructed without a building permit. That reasoning was in compliance with section 121 of the Property Act (see “Relevant domestic law” above).

They further maintained that the structures had been demolished after the demolition and enforcement orders had been served on the applicant on two occasions, namely on 8 and 14 October 2004 respectively, as evident from the receipts. In this connection they stated that the service had been based on sections 84 and 86 of the Act (see “Relevant domestic law” above). Despite the fact that the minister had refused to identify himself, he had not opposed that the orders be served on him. Given the fact that the applicant’s son had been a bishop in the Macedonian Orthodox Church until February 2002 and continued acting, since then, as a priest of another church, the applicant’s apartment served as a temporary place of residence of his supporters. Consequently, the minister to whom the orders had been served could be regarded a recipient under section 84 of the Act. Furthermore, the demolition had been carried out in compliance with section 39 of the Construction Act and it had aimed at ensuring compliance with the building regulations. In this respect, they referred to the high number of unlawfully erected buildings at the time.

The applicant reiterated that the structures had been unlawfully demolished since she had been never served with the demolition and enforcement orders. Assuming that on 8 and 14 October 2004 respectively there had been attempts at delivery, as argued by the Government, it had not been effected properly since it had not involved any of the recipients specified in section 84 of the Act nor had the alleged minister consented to the service, as evidenced by the fact that he had not signed the receipts. She further reiterated the arguments that she had raised in the appeal of 6 December 2004.

Since the structures had been built for religious purposes, they should not have been treated equally to other unlawfully erected buildings, of which only limited number had been demolished. She maintained that the demolition had not been justified and proportionate.

b) The Court’s assessment

The Court observes that the structures were constructed on the applicant’s property. However, they did not have the necessary planning permission. The Government suggested that an issue would arise as to whether or not the structures may be regarded as “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court need not resolve this matter since the applicant’s complaints under this head are in any event inadmissible for the following reasons.

It is not disputed that the structures were erected without a building permit and therefore in violation of the domestic building regulations. The demolition order rested on section 39 § 1 of the Construction Act, under which a demolition would be immediately ordered regarding a structure erected without a building permit. The demolition order was enforced in compliance with the Act. In this connection the Court relies on the assessment of facts and law made by the domestic authorities and the Government’s arguments (see above), since no material has been adduced before it, which could call into question their findings (see Klaas v. Germany, 22 September 1993, § 30, Series A no. 269). For the reasons advanced by the Government (see above), the Court considers that the demolition pursued a legitimate aim and was not disproportionate. The demolition was accordingly lawful and justified and does not disclose any appearance of a violation of Article 1 of Protocol No. 1 to the Convention (see also Saliba v. Malta, no. 4251/02, §§ 44-47, 8 November 2005).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. The applicant finally complained that the demolition had violated her rights under Articles 3, 8, 9, 13 and 14 of the Convention.

The Court has examined these complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

              André WampachNina Vajić
              Deputy RegistrarPresident

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