FIRST SECTION
DECISION
Application no. 3172/07
Simeon LUKAREV
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (First Section), sitting on 15 January 2013 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 11 December 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Simeon Lukarev, is a Macedonian national, who was born in 1941 and lives in Skopje. He is represented before the Court by Ms S. Serafimova, a lawyer practising in Skopje.
2. The Macedonian Government (“the Government”) are represented by their Agent, Mr K. Bogdanov.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background of the case
4. On 18 April 1952 a plot of land was confiscated from R.L., the applicant’s mother, and M.M. and V.K., the applicant’s aunts. The decision stated that the land, specified as farmland (нива), was being confiscated for the construction of residential buildings.
5. With three separate decisions that became final between 18 September 2000 and 16 March 2001 the courts established that the applicant had inherited a restitution claim (наследник на правото на денационализација) in respect of property confiscated from R.L., M.M. and V.K. and that the property included the plot at issue.
2. Restitution proceedings
6. On 13 December 2000 the applicant instituted restitution proceedings. After the communication of the case and in reply to the Government’s observations, the applicant stated that a staff member of the Restitution Commission had purportedly instructed him to insert only the name of R.L. in the application form.
On 8 May 2003 the Restitution Commission granted his request and awarded him compensation in State bonds (обврзници) in return for the part of the plot confiscated from R.L.
7. On 24 June 2003 the applicant appealed against that decision, arguing that the award concerned only the third of the plot owned by his late mother, but not the remaining parts confiscated from the late M.M. and V.K., even though, by final court decisions that he submitted in support (see paragraph 5 above), he had inherited the right to claim restitution of those parts as well. He further complained that the land had been undervalued. In this connection, he referred to an expert report of 13 May 2002, which he had submitted to the Restitution Commission, according to which the market value of the plot, being in a central urban area, was seven times higher than the sum actually awarded to him.
8. On 28 December 2005 the Government Appeal Commission dismissed the applicant’s appeal, finding that the plot had been, indeed, agricultural land, as specified in the confiscation decision of 1952, and that the amount of compensation had been determined in accordance with the applicable rules. It did not comment on the applicant’s arguments regarding the parts of the plot formerly owned by M.M. and V.K.
9. On 7 February 2006 the applicant challenged that decision before the Supreme Court by means of an appeal on points of law (тужба за управен спор), reiterating firstly that the compensation awarded to him concerned only one-third of the plot (formerly owned by R.L.), whereas he had been entitled to receive compensation for the entire plot, and secondly that the plot should have been considered as construction land and the compensation should have corresponded to its market value.
10. On 29 June 2006 the Supreme Court dismissed the applicant’s appeal on points of law, upholding the reasoning of the administrative bodies. As regards his arguments that he had been declared the only heir to the entire plot, the court held that the confiscation decision of 1952 had specified that the plot had been confiscated from R.L., M.M. and V.K. Relying only on the court decision naming the applicant as heir to one-third of the plot formerly owned by R.L. (see paragraph 5 above), the court confirmed that the amount of compensation awarded to him had been correct. The applicant was served with that decision on 25 July 2006.
3. Further developments
11. In his letter of 31 May 2011, the applicant informed the Court that on 22 June 2007 he had instituted another set of proceedings in which he had claimed restitution of the parts of the plot formerly owned by M.M. and V.K. He also submitted copies of the relevant documents and decisions.
12. From these documents it appears that on 3 April 2008 and 18 June 2009 the Restitution Commission decided to grant the applicant’s request and awarded compensation in return for the land confiscated from M.M. and V.K., which it regarded as agricultural. The type of compensation was to be decided separately.
13. On 5 March and 17 December 2009 the Government Appeal Commission annulled those decisions, finding that at the time of confiscation, the land in question had been construction land, and ordered the Restitution Commission to value it as such.
14. On 24 February 2011 the Restitution Commission again awarded the applicant the same compensation as in its previous decisions of 3 April 2008 and 18 June 2009. It also referred to the decisions dated 28 December 2005 and 29 June 2006 in which the plot had been regarded as agricultural land (see paragraphs 8 and 10 above).
15. On 26 April 2011 the applicant lodged an appeal before the Administrative Court in which he complained that the plot should have been considered as construction land. The proceedings are still pending.
COMPLAINTS
16. The applicant complained under Article 6 of the Convention that the Supreme Court’s decision 29 June 2006 had not been sufficiently reasoned, in that it had not addressed his arguments concerning parts of the plot formerly owned by M.M. and V.K. He further alleged lack of impartiality and a violation of the principle of equality of arms, because his appeal before the Supreme Court had concerned a decision of the Appeal Commission, a State body. Relying on Article 13 of the Convention, he alleged that he had lacked an effective remedy against the Supreme Court’s decision.
17. Lastly, he complained under Article 1 of Protocol No. 1 that the amount of compensation awarded to him in the restitution proceedings of 2000 had not corresponded to the market value of the plot at issue and that he had not received any compensation for the two-thirds of the plot formerly owned by M.M. and V.K.
THE LAW
18. The applicant alleged that Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 had been violated in connection with the restitution proceedings instituted in 2000.
19. On 14 April 2011 the applicant’s complaints under Article 6 and Article 1 of Protocol No. 1 regarding the parts of the plot formerly owned by M.M. and V.K. were communicated to the respondent Government.
20. In their observations, the Government referred to the restitution proceedings that the applicant had instituted in June 2007 and suggested that the Court declare the application inadmissible either because the applicant had lost the status of a victim or because he had abused his right of petition.
21. The applicant submitted in reply that, after he had brought the application before the Court, there had been statutory changes, on the basis of which he had instituted the restitution proceedings in 2007. That had not released the State from its responsibility concerning the restitution proceedings in 2000.
22. The Court reiterates that according to Rule 47 § 6 of the Rules of Court, applicants must keep the Court informed of all circumstances relevant to the application. It further reiterates that an application may be rejected as abusive under Article 35 § 3 of the Convention if, among other reasons, it was knowingly based on untrue facts (see Červeňáková v. Czech Republic (dec.), no. 26852/09, § 25, 23 October 2012).
23. Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Predescu v. Romania, no. 21447/03, § 25, 2 December 2008; Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007; and Hadrabová and Others v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007).
24. In the circumstances of the present case, the Court notes that the applicant informed it about the restitution proceedings regarding the parts of the land formerly owned by M.M. and V.K. only about four years after they had been instituted. That fact was disclosed after the Court had communicated the applicant’s complaints regarding that land to the respondent Government. The applicant gave no explanation as to why he had not informed the Court earlier about that fact, which was crucial and concerned the core of the application. Moreover, the applicant revealed the fact that his restitution claim of 2000 had actually concerned only the part of the land formerly owned by R.L. solely in reply to the Government’s observations. The applicant did not present the Court with any explanation, and the Court considers that, given that he was represented by legal counsel, he could have had no doubts about the relevance of revealing the existence of those facts immediately after they became available.
25. Having regard to the importance of the information at issue for the proper determination of the present case, the Court finds that the applicant’s conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.
26. In view of the above, it is appropriate to reject the application as a whole as an abuse of the right of application, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André WampachIsabelle Berro-Lefèvre
Deputy RegistrarPresident
Full & Egal Universal Law Academy