SINADINOVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Communicated on 23 October 2014

FIRST SECTION

Application no. 27881/06
Živka SINADINOVSKA
against the former Yugoslav Republic of Macedonia
lodged on 23 June 2006

STATEMENT OF FACTS

The applicant, Ms Živka Sinadinovska, is a Macedonian national, who was born in 1945 and lives in Tetovo.

A. The circumstances of the case

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

1. Background to the case

The applicant owns a house with a commercial area (shops) (деловен простор) in its front section, located in the city centre of Tetovo. The applicant’s house on one side is next to the property of S.B. while in front of the house is the property of I.F. In 1996 the applicant’s late husband (who upon his death on 6 August 2000 was succeeded by the applicant) obtained a construction permit and soon after built the commercial area which however appears to be unfinished. In 2000 the applicant’s late husband also obtained renewable permission with two-year validity, to organise a temporary green marketplace and rent stands in the front yard of the house, adjacent to the shops. It appears that according to the urban plan applicable at the time, it was foreseen to widen the nearby street, remove I.F.’s temporary object (времен објект) and place a pedestrian path instead. It also appears that had the urban plan been implemented, the commercial area and the green marketplace would have been easily accessible from the planned street/pedestrian path.

2. Proceedings concerning S.B., the applicant’s neighbour

In 1997 the applicant’s late husband concluded a preliminary contract (преддоговор) with S.B. to sell him a shop (part of the commercial area) of around 21 square meters, located next to S.B.’s property together with the adjacent part of the plot. On 25 January 2000 the same parties apparently concluded a contract for the same purpose, which however remained unsigned by the applicant’s husband (see below). This unsigned contract states that S.B. bought a total surface of 41 sq. m. of the applicant’s yard, composed of 13 sq. m. of the yard itself and 28 sq. m. of covered surface. The contract was not registered in the cadastre records where the applicant remained recorded as the sole owner of the whole plot.

In June 2002 S.B. started construction activities on his plot, as well as on the surface that, as it appears, was sold to him by the applicant’s late husband. In 2003 he completed the building.

a) Civil proceedings for protection from disturbance of possession and subsequent enforcement proceedings initiated by the applicant (П.бр. 623/02, И.бр. 2217/02, И.бр. 789/04)

On 15 July 2002 the applicant initiated civil proceedings against S.B. before the Tetovo Court of First Instance (“the first-instance court”) seeking protection against disturbance of her possession (смеќавање на владение). She claimed that with the construction activities in progress, S.B. unlawfully trespassed, occupied part of her plot, had demolished parts of her construction and blocked the electrical mains, as well as the access to her electric power meter. On 18 July 2002 the first-instance court issued an injunction (времена мерка) with immediate effect ordering S.B. to discontinue any further construction activities until the end of the civil proceedings against disturbance of her possession. The injunction remained unenforced although the applicant initiated separate enforcement proceedings in this regard. The applicant’s claim was finally accepted in 2004 when the Skopje Court of Appeal confirmed the first-instance court’s decision which sets out that with his construction activities S.B. disturbed the applicant’s possession, that he had to restore her property as it was before the disturbance (restitutio in integrum) (враќање во поранешна состојба) and that he must abstain from any future disturbances. The decision about the injunction was remitted and the applicant withdrew her request in this respect since in view of the final decision and the time lapse, the injunction had become obsolete.

The applicant sought enforcement of the final judgment against S.B. On 16 March 2004 the first-instance court allowed the enforcement. During the enforcement proceedings, the court ordered adjournments on different grounds, such as the absence of S.B., impossibility to enforce due to forthcoming winter season , impossibility to serve court summons, requests for exemption etc.

On 5 June 2012 the applicant requested that the enforcement be transferred to a bailiff, who became competent to deal with enforcement matters. Both the first-instance court and the Skopje Court of Appeal rejected the request for transfer as lodged out of time and considered the enforcement request withdrawn.

In 2010 and 2011 the Supreme Court accepted the applicant’s two separate complaints about the length of this set of proceedings, awarded her 1,000 euros (EUR) in just satisfaction and set a three-month time-limit to the first-instance court to complete the enforcement proceedings.

b) Administrative proceedings

On 15 July 2002 the State Construction and Urban Planning Inspectorate (Државен инспекторат за градежништво и урбанизам) (“the Inspectorate) issued a decision for demolition (решение за уривање) and a demolition order (заклучок за дозвола за извршување) (hereinafter jointly referred to as “demolition orders”) regarding the building that S.B. had constructed without having obtained a construction permit. On 5 June 2003 and 23 April 2004 the Inspectorate again issued demolition orders. However, the demolition was never enforced by the Inspectorate notwithstanding the applicant’s repeated requests in this respect.

On 25 March 2003 the Ministry of Transport and Communications issued a construction permit to S.B. for part of the building. Upon the applicant’s and S.B.’s appeals and after a number of remittals by the Government Appeal Commission and the Supreme Court, this set of proceedings finally ended on 26 June 2008 when the Administrative Court dismissed the applicant’s administrative action and confirmed the construction permit for part of the building (У.бр. 4748/2007). The Administrative Court dismissed the applicant’s argument that the building had been fully constructed already in 2002 with proportions greater than those allowed with the urban plan and that the construction permit had been issued ex post facto. The Administrative Court found that the non-compliance with the terms of the construction permit had been a different subject-matter to be resolved in other proceedings and before other administrative bodies. It did not comment on the applicant’s argument that with his construction activities S.B. disturbed her possession and that enforcement proceedings were pending in this regard.

On 1 July 2005 as part of the process of administrative decentralisation, the competencies in urban planning and construction were transferred from the central authorities to the municipalities.

In 2009 S.B. was elected mayor of the municipality of Tetovo.

In 2011, relying on the 2011 Legalisation of Unlawfully Constructed Buildings Act, S.B. requested, and in a capacity of mayor, allowed legalisation of the remaining part of the unlawfully constructed building (“legalisation decision”). He also entered the legalisation decision in the cadastre records. As it appears from the file, the applicant appealed against the legalisation decision which was then annulled as was the entry in the cadastre records. There is no information whether these proceedings continued. S.B.’s term of office ended in 2013.

c) Civil proceedings initiated by S.B. against the applicant (П.бр. 1387/03)

On 18 December 2003 S.B. lodged a civil claim against the applicant claiming title to the shop and part of the land which he had bought on the basis of the preliminary contract and the unsigned contract concluded with the applicant’s late husband (see above). The applicant lodged a counter-claim (противтужба) claiming restitutio in integrum and pecuniary damages. After several remittals, the first-instance court accepted S.B.’s claim and dismissed the applicant’s counter-claim. On 4 June 2013 the Gostivar Court of Appeal confirmed the first-instance court’s judgment finding that S.B. had the title to the plot because the contract had been fully executed, namely S.B. had paid the price to the applicant and her late husband and had obtained the property in his factual possession. The contract was therefore valid despite the lack of prescribed form. The applicant’s counter-claim was dismissed (одбиено) since the requested restitutio in integrum had already been decided in the proceedings for protection against the disturbance of possession (see above) and because it was established that the impugned part of the plot had actually been sold to S.B.

3. Proceedings concerning I.F., the applicant’s neighbour

a) Administrative proceedings

In 1990 municipality of Tetovo issued permission to I.F. to place a wooden temporary object for commercial activity in front of the applicant’s house. The permission stated that the temporary object could remain no longer than the implementation of the urban plan for that area and that any construction of a building of permanent character was prohibited.

On 20 August 2002 the Ministry of Transport and Communications issued a permit to I.F. allowing him to undertake urban and reconstruction measures (одобрение за урбани и санациони мерки) for improvements of the existing temporary object. I.F. was allowed to reconstruct the temporary object by enlarging it and by constructing walls and concrete columns (армирано-бетонски столбови). Upon the applicant’s appeal and after several remittals by the Government Appeal Commission and by the Supreme Court, this set of proceedings finally ended on 6 April 2006 when the Government Appeal Commission dismissed I.F.’s request for urban and reconstruction measures for improvements of the temporary object.

On 10 September 2002 and 5 June 2003 the Inspectorate issued demolition orders against I.F.’s unlawfully constructed building, which had already been completed by then. The demolition orders remained unenforced, notwithstanding the applicant’s repeated requests in this respect.

b) Civil proceedings (П.бр. 208/08)

On 31 January 2008 the applicant initiated compensation proceedings against I.F., the municipality of Tetovo and the respondent State. She claimed damages for loss of property’s value and loss of income (monthly rents) because I.F.’s unlawfully constructed building had blocked the access to her property, while the municipality and the State had failed to stop the construction activities and to enforce the demolition orders issued in respect of I.F.’s unlawful building.

With judgments of 9 April 2009, 14 June 2011 and 27 June 2013 the courts, on three levels of jurisdiction, dismissed the applicant’s claim as partly ill-founded and partly time-barred. They concluded that the applicant had not sustained any damage since I.F.’s unlawfully constructed building had been positioned same as the previous temporary object, the commercial area on the applicant’s property had some access from the nearby street, the commercial area remained unfinished and without an operation permit (употребна дозвола), part of it in 2007 had been rented as a storage space and the property had not been offered on sale thus the claim about the loss of property’s value had been unsubstantiated. Although admitted as evidence, the courts did not comment on court-ordered expert report of 4 November 2008 according to which the applicant’s property, being completely blocked by I.F.’s building, “had no market value” (нема пазарна вредност). Likewise, the courts did not comment about the liability of the State and of the municipality for the non-enforcement of the demolition orders.

In 2010 and 2011 the Supreme Court dismissed the applicant’s two complaints about the length of this set of proceedings.

4. Criminal proceedings initiated by the applicant

On 14 July 2003 the applicant lodged a criminal complaint with the public prosecutor for abuse of office (злоупотреба на службената положба и овластување) against K.P who was director of the Inspectorate at that time. On 5 May 2005 the public prosecutor rejected the criminal complaint and instructed the applicant about the possibility to proceed as a private prosecutor within eight days.

On 14 December 2010 the applicant lodged a criminal complaint for abuse of office against N.A. (municipal inspector) and N.F. (head of the municipality’s inspection department). It appears that at some point the criminal complaint was also extended against S.B.

On 22 March 2013 the public prosecutor informed the applicant that no information could be provided to her regarding the case since it was pending in investigation.

COMPLAINTS

The applicant complains under Article 6 of the Convention about lack of reasoning, and length of the proceedings. The applicant also complains under Article 1 of Protocol No. 1 that the State did not enforce the decisions in her favour and by failing to do so, did not protect her property rights, including the business undertaking that she intended to pursue in the commercial area of her house.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular:

(a) Was sufficient reasoning provided in the administrative proceedings for S.B.’s construction permit (ended with the Administrative Court’s judgment У.бр. 4748/2007) regarding the applicant’s objection that S.B.’s unlawfully constructed building occupied part of a land which at that time legally belonged to her?

(b) Was sufficient reasoning provided by the courts in the civil proceedings initiated by the applicant against I.F., the State and the municipality (П.бр. 208/08) regarding the findings of the court-ordered expert report of 4 November 2008 and the liability of the State/municipality for the non-enforcement of the demolition orders against I.F.’s unlawfully constructed building?

(c) Was the “reasonable time” requirement fulfilled in respect of:

- the civil proceedings relating to the protection against disturbance of her possession taken together with the subsequent enforcement proceedings against S.B. (П.бр. 623/02, И.бр. 789/04);

- the administrative proceedings relating to S.B.’s construction permit in which the applicant intervened (judgment of the Administrative Court У.бр. 4748/2007);

- the civil proceedings initiated by the applicant against I.F., the State and the municipality (П.бр. 208/08)?

2. In view of the circumstances of the case and the applicant’s investments in the commercial area of her house, did she have a legitimate expectation within the meaning of Article 1 of Protocol No. 1 in respect of the business undertaking that she intended to pursue on her property?

If so and additionally, regarding the applicant’s property, was there a positive obligation for the respondent State under Article 1 of Protocol No. 1 to protect the applicant’s proprietary rights by way of enforcing the demolition orders of 2002, 2003 and 2004, the court injunction of 18 July 2002 and the decision establishing that there had been a disturbance to her possession (see Kostić v. Serbia, no. 41760/04, §§ 68 and 74, 25 November 2008)? If so, did the respondent State discharge its positive obligation in relation to the applicant’s rights under this head?

 

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