Communicated on 20 February 2014
FIRST SECTION
Applications nos 38024/08 and 54726/08
Naum KRSTANOSKI and others against the former Yugoslav Republic of Macedonia
and Dragan GUGOSKI and others against the former Yugoslav Republic of Macedonia
lodged on 25 July 2008 and 13 November 2008 respectively
STATEMENT OF FACTS
All the applicants are Macedonian nationals. In application no. 38024/08 the applicants are represented by Ms N. Najdenova Levik, a lawyer practicing in Skopje. The applicants’ personal details are set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background to the applications
In 1957 the plots of land owned by the applicants’ predecessors in the Gradište area on the shore of Lake Ohrid were expropriated by means of a single decision. No compensation was paid to the owners for the expropriation. There is now a campsite on the land in question, operated by I.G., a private company, which has the right to use the land (право на користење).
2. Application no. 38024/08
On 14 August 2001 the applicants claimed restitution of land of a total surface area of 2,400 square metres, within the boundaries of the campsite.
On 15 September 2003 the Restitution Commission within the Ministry of Finance (“the Restitution Commission”) accepted the applicants’ claim, awarded them compensation in the amount of 480,000 Macedonian denars (approximately 8,000 euros (EUR)) and reserved the question of type of compensation, which was to be decided in a separate decision. In its decision, the Restitution Commission, relying on the record of an on-site examination (увид) of 1 September 2002, established that the land was developed (уреден простор), with access paths and supporting infrastructure within the boundaries of the campsite. It also established that according to the urban plan of 20 March 2002 the area was designated as a public green zone in a tourist area. The compensation, in accordance with the applicable legislation, was calculated on the basis of a notification from the Public Revenue Office.
On 4 December 2003 the applicants appealed, claiming that despite the existing urban plan for the area the plot was vacant and undeveloped and could be restored to them. They argued that if the urban plan was one day implemented, the land could be expropriated from them. They also objected to the amount of the compensation and requested an independent expert examination of the plots’ value.
On 31 May 2005 the Government’s Second-Instance Restitution Commission (“the Second-instance Commission”) dismissed the applicants’ appeal. It found that the Restitution Commission had correctly established that the plot was part of a campsite, that the land was developed, and that the amount of the compensation was appropriate. Relying on Section 10 of the Restitution Act, it added that the property in question, which had become a property in public use (добро во општа употреба), could not be returned to the previous owner, and that compensation should be awarded instead.
On 21 May 2005 the applicants lodged an administrative-dispute claim with the Supreme Court, reiterating that the land within the campsite was undeveloped, and that their plot was vacant and could therefore be restored. They further argued that the plot could not be considered a property in public use since the campsite was used by the company I.G., and that the compensation was too low.
In written pleadings of 12 May 2006, the applicants brought to the Supreme Court’s attention that on 7 March 2006 the Second-instance Commission had decided differently in other restitution proceedings concerning neighbouring land (see “Relevant domestic case-law” below).
On 7 February 2008 the Administrative Court, which had in the meantime become the competent court to decide administrative-dispute claims, dismissed the applicants’ administrative-dispute claim. The Administrative Court agreed with the findings of the administrative authorities and concluded that, in view of the circumstances, the plot could not be returned to the applicants.
2. Application no. 54726/08
On 20 March 2002 the applicants claimed restitution of land of a total surface area of 5,541 square metres, within the boundaries of the same campsite.
On 28 November 2003 the Restitution Commission upheld the applicants’ request and awarded them compensation in State bonds in the amount of 1,108,200 Macedonian denars (approximately EUR 18,000). The Restitution Commission, relying on the record of an on-site examination conducted on 13 May 2002, and on a certificate setting out the conditions for building (услови за градба) at the location issued on 15 September 2002 by the Ministry of Transport, established that the plots were located within the boundaries of the campsite and that the land had been designated as a green area for public use and pedestrian paths were planned for it. It therefore concluded that the plots could not be restored to the applicants. In accordance with the applicable legislation, the amount of the compensation was calculated on the basis of a notification from the Public Revenue Office.
On 7 April 2004 the applicants appealed, requesting the restoration of the plots to them.
On 15 November 2005 the Second-instance Commission dismissed the applicants’ appeal, finding that the Restitution Commission had correctly established that the plot could not be restored and that amount of the compensation was appropriate.
The applicants lodged an administrative-dispute claim with the Supreme Court. In their written pleadings of 8 May 2006 they brought to the Supreme Court’s attention that, in the meantime, on 7 March 2006, the Second-instance Commission in another set of proceedings, in relation to a neighbouring plot also within the boundaries of the campsite, had decided to restore the plot to the claimants (see “Relevant domestic case-law” below). The applicants asked the Administrative Court to ensure the consistent application of the law and accept their administrative-dispute claim.
On 21 April 2008 the Administrative Court dismissed the applicants’ administrative-dispute claim, reiterating that the plots were within the campsite and the land had been designated as a green area for public use with pedestrian paths planned for it; therefore the plots could not be restored.
3. Relevant domestic case-law regarding restitution of land located within the Gradište campsite
The applicants submitted copies of the following decisions by which the national authorities decided restitution claims concerning plots of land located in the campsite.
On 7 March 2006 the Second-instance Commission, acting upon an appeal by T.B and J.B. (“the claimants”) quashed the Restitution Commission’s decision awarding them compensation in respect of a plot of land in the campsite expropriated from the claimants’ predecessors by the same single decision of 1957 as in the applicants’ cases. The Second‑instance Commission decided to restore the plot to the claimants, finding that the land was State property, that the “mere existence of pedestrian paths, a camping infrastructure and street lights [could] not change its character as developed but still unbuilt (градежно неизградено)”, and that the company I.G.’s right to its use was of no relevance to the outcome. It added that there was no urban plan and concluded that the Restitution Commission had applied the Restitution Act erroneously when it had awarded compensation to the claimants instead of restoring the plots to them.
On 7 April 2008 the First-Instance Commission for Restitution of Property to Religious Communities within the Ministry of Finance, following a request lodged in 2003, restored to a religious community four plots of land within the boundaries of the campsite which had been expropriated by the same single decision of 1957 as in the applicants’ cases. The Commission, relying on an on-site examination and the urban plan of 2008, established that the plots claimed were in a tourist/recreation area within a national park, in a strictly protected lakeside zone (строго заштитена приобална зона), that they were vacant, and that the existence of temporary objects on some of the plots was not an obstacle to the plots’ restoration in natura.
4. Legislative developments
Section 9 of the Restitution Act of 1997 (Section 10 of the consolidated text published in 2000) stipulates that developed but still unbuilt land (градежно неизградено земјиште) designated by an urban plan for the construction of objects in the public interest cannot be restored to the claimants in natura and compensation must be paid instead.
On 27 January 2009 Parliament adopted an authentic interpretation of the provision, according to which it was to be applied taking into account the urban plan applicable on the date when the restitution claim was lodged.
COMPLAINTS
The applicants complain under Article 6 of the Convention about divergent practice by the domestic authorities with regard to the restitution of similar plots of land located within the same campsite. They also complain about the length of the proceedings. Relying on Article 1 of Protocol No. 1 the applicants complain that the restitution decisions infringed their property rights.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of legal certainty respected by the authorities, which, according to the applicants, applied different case‑law to identical claims (see Stoilkovska v. the former Yugoslav Republic of Macedonia, no. 29784/07, §§ 48-49, 18 July 2013 and, mutatis mutandis, Moskal v. Poland, no. 10373/05, § 51, 15 September 2009)?
The Government are invited to provide evidence whether the decisions regarding the neighbouring plots of land relied on by the applicants had become final.
2. Was the length of the restitution proceedings in compliance with the “reasonable time” requirement contained in Article 6 § 1?
3. With regard to the authorities’ decisions, did the applicants have a legitimate expectation of having the land in question restored into their possession? If so, was the refusal of the authorities to accommodate such a claim lawful and proportionate, within the meaning of Article 1 of Protocol No. 1 to the Convention?
APPENDIX
Application no. 38024/08
No.
Firstname LAST NAME
Birth year
Place of residence
Naum KRSTANOSKI
1942
Peštani, Ohrid
Krste CANOSKI
1948
Peštani, Ohrid
Slavka LATKOSKA
1950
Ohrid
Jordan CANOSKI
1937
Ohrid
Application no. 54726/08
No.
Firstname LASTNAME
Birth year
Place of residence
Dragan GUGOSKI
1954
Ohrid
Liljana MOSTROVA
1955
Ohrid
Pirinka PALOSKA
1953
Peštani, Ohrid
Duško GUGOSKI
1953
Ohrid
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