SPIRIDONOVSKA AND POPOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

FIRST SECTION

Application no. 40676/11
Biljana SPIRIDONOVSKA and Cedomir POPOVSKI
against the former Yugoslav Republic of Macedonia
lodged on 23 June 2011

STATEMENT OF FACTS

The applicants, Ms Biljana Spiridonovska and Mr Čedomir Popovski, are Macedonian nationals, who were born in 1954 and 1951 respectively and live in Kumanovo.

A. The circumstances of the case

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

1. Restitution proceedings instituted by the applicants

On 27 August 1948 a plot of agricultural land (“the land”) was confiscated from V.R., the applicant’s late grandmother. According to the confiscation order, the total surface area of the land was six шиник (an old unit of land area).

With a final court decision of 19 January 2001, the applicants were declared heirs of one notional half each of the land confiscated from their late grandmother. According to the decision, the surface area of the land in question was six шиник.

On 15 February 2001 the applicants instituted restitution proceedings seeking restoration of the land. A copy of the application for restitution and the accompanying documents were communicated to the Solicitor General (Јавен Правобранител). It appears that the Solicitor General did not submit any observations in reply.

On 14 January 2002 the Restitution Commission of the Ministry of Finance (“Restitution Commission”) accepted the applicants’ restitution claim and restored in their possession the land, the total surface area of which was 8,309m2, which, as stated in the decision, corresponded to six шиник (“restitution order”). It was established that the land in question had been part of a larger undeveloped land, which had been State-owned. An on-site examination pre-dated the restitution order. The Solicitor General did not appeal. In the absence of appeal, the restitution order became final on 18 June 2001.

On 27 June 2002 the land had been transferred in the applicants’ factual possession (владение).

The applicants were registered as co-owners of the land in land registry. With a decision of 15 April 2003, which became final on 16 May 2003, Kumanovo Court of First Instance, in non-contentious proceedings, accepted the applicants’ request submitted against the State, represented by the solicitor General, and ordered physical division of the land.

2. Proceedings post-dating the restitution order

(a) Request for an injunction (времена мерка)

On an unspecified date, the Solicitor General requested that the court prohibit the applicants to further dispose of the land since the land returned in their possession had not corresponded to the land confiscated from their late predecessor in terms of its surface area. On 28 October 2003 Kumanovo Court of First Instance dismissed that request finding that the applicants had obtained the title to the land on the basis of the restitution order. Furthermore, no proceedings had been instituted under section 63 of the Restitution Act (see “Relevant domestic law” below) by a party concerned. That decision was upheld on second instance on 1 July 2004.

(b) Request of the Solicitor General that the restitution order was declared null and void (ништовно)

On 7 October 2003 the Solicitor General sought, in administrative proceedings, that the restitution order was declared, under section 267 § 1 (5) of the Administrative Proceedings Act (see “Relevant domestic law” below), null and void regarding part of the land which had been returned to the applicants and had not been confiscated from their late grandmother. The Solicitor General claimed that the restitution order had been based on the confiscation order of August 1948, which had been invalid since it had neither been signed nor had a stamp been affixed. There existed another order of 17 December 1948, which had been more detailed and had specified that the surface area of the land confiscated from V.R. had been 3,340m2. The Solicitor General requested therefore that the restitution order was partly declared null and void regarding the difference in surface area of the land specified in the confiscation orders of 1948.

On 23 May 2005 the Government Appeal Commission dismissed that request finding that the final restitution order, which had meanwhile been enforced, could not be declared null and void on the basis of section 267 § 1 (5) of the Administrative Proceedings Act. It held that the restitution order had been issued in accordance with the Restitution Act and there were no reasons to declaring it null and void. It further ruled that allegations that the restitution order had been based on an invalid confiscation order could not lead to quashing by reference to the quoted provision. Those allegations could have been raised in the restitution proceedings.

The Solicitor General instituted administrative-dispute proceedings (тужба за управен спор) in which he complained that the restitution order of 14 January 2002 had been based on erroneous facts regarding the surface area of the land. In this connection the Solicitor General referred to an extract from State Archives dated 16 August 2005 according to which the surface area of the land confiscated from late V.R. had been 3,340m2.

On 14 March 2008 the Administrative Court dismissed the appeal finding that the remedy used by the Solicitor General had been inapplicable to the facts of the case. The restitution order had been given in accordance with the Restitution Act, which had not provided for any reason for its nullity, as required in section 267 § 1 (5) of the Administrative Proceedings Act.

(c) Proceedings in which the restitution order was declared null and void (“annulment proceedings”)

On 14 January 2009 the Commission, of its own motion (по службена должност), declared the restitution order null and void. It held that the merits of the case would be decided by a separate decision. Lastly, it issued a provisional measure (привремен заклучок) prohibiting the applicants to further dispose of the land until final resolution of the case.

The Commission ruled that the restitution order had been based on the confiscation order of August 1948 according to which the total surface area of the land, formerly owned by the applicants’ predecessor, had been six шиник. However, a decision dated 17 December 1948, which had provided for further details regarding the confiscation, had specified that the surface area of the land confiscated from V.R. had been 3,349m2. The Commission also referred to evidence submitted on 23 August 2001 by the Land Registry Office, according to which the land, formerly owned by V.R., had been six шиник and had represented a part of a land, which surface area of which was 8,309m2. A further extract from a “Geodetic Review of the Association of land experts of Macedonia” and “Review of old units of land area and their conversion into hectares, ares and m2”, issued on the basis of a letter dated 25 March 1952, specified that one шиник corresponded to 650m2. Lastly, the Commission relied on an expert report drawn up in other restitution proceedings instituted in 2001 by other persons (“third persons”) according to which the surface area of the land, formerly owned by V.R., had been 3,763m2. In such circumstances, the Commission found that the applicants, on the basis of the restitution order, had unlawfully obtained possession of 4,546m2. For those reasons, the Commission held that the restitution order had been contrary to sections 1 and 2 of the Restitution Act and legally unenforceable in view of section 267 § 1 (3) of the Administrative Proceedings Act.

The applicants appealed. In the absence of a decision, on 7 October 2009 the Administrative Court ordered the Appeal Commission to decide the applicants’ appeals. On 13 October 2009 the Appeal Commission dismissed the applicants’ appeals finding no grounds to depart from the reasoning given by the Restitution Commission. It held that the Restitution Commission had been vested, under section 268 of the Administrative Proceedings Act, to declare the restitution order null and void. The restitution order was unenforceable given the fact that part of the land returned to the applicants had not been in possession of their late grandmother at the time of confiscation. The Appeal Commission stated that other persons had had the title to the land in the disputed part. Their legal successors, the third persons, had instituted restitution proceedings regarding that part of the land.

The applicants instituted administrative-dispute proceedings before the Administrative Court. The third persons sought leave to intervene in the proceedings.

On 17 May 2010 the Administrative Court accepted the applicant’s appeal and annulled the decision of the Appeal Commission. The court held that the administrative bodies below had wrongly interpreted and applied section 267 of the Administrative Proceedings Act to the applicants’ case. In this connection it found that the restitution order could not be regarded unenforceable, neither for factual nor legal reasons. It had been issued in accordance with the Restitution Act, in proceedings in which the facts had been correctly established.

The court further rejected as inadmissible the request of the third persons to intervene in the proceedings. Relying on sections 13 and 17 of the Restitution Act, the court held that the third persons had not participated nor they had been entitled to participate in the restitution proceedings instituted by the applicants. They had not had accordingly standing to intervene (немаат легитимација за водење на овој спор) in those proceedings. However, they had been entitled, under section 63 of the Restitution Act, to lodge a civil action before courts of general competence against the applicants in order to vindicate any rights in respect of the land.

On 3 and 4 August 2010 the Solicitor General and the third persons respectively appealed against that decision. The applicants submitted observations in reply.

On 25 October 2010 the Supreme Court accepted the appeal submitted by the Solicitor General and overturned the decision of the Administrative Court. It further endorsed the reasoning of the Administrative Court regarding the lack of standing of the third persons to intervene in the proceedings. As stated by the court, a restitution order would be regarded legally unenforceable if it contained errors that could not be rectified by any other legal means. In the present case, the applicants had obtained possession of the land which had not been owned by their predecessor, but had been registered as State-owned. In support was the evidence admitted in the course of those proceedings. The court instructed the administrative authorities, in the reopened proceedings, to re-establish the facts. This decision was served on Mr Popovski and Ms Siridonovska on 24 December 2010 and 25 January 2011 respectively.

With decisions of 31 January and 28 March 2011 the Supreme Court rejected the applicants’ request for reopening of the proceedings.

B. Relevant domestic law

1. Restitution Act, consolidated version of 2000 (Закон за денационализација, пречистен текст, „Службен весник на Република Македонија„ бр.43/2000)

Section 1 of the Restitution Act provided that it specified the conditions and procedure for restoration of property and award of compensation for property confiscated for interests of the State.

Under section 2, a restoration of property or payment of compensation could be ordered in respect to property confiscated after 2 August 1944.

Section 13 of the Restitution Act entitled former owners and their heirs, recognised under inheritance rules, to claim restitution.

Under section 63 § 2, persons concerned could assert their rights in respect of successful claimants by way of a civil action before courts of general competence within five years after the restitution order would become final.

2. Administrative Proceedings Act of 2005 (Закон за општата управна постапка)

Section 267 § 1 (3) and (5) of the Administrative Proceedings Act, set out under “Extraordinary cases of annulment or modification of a decision”, provided that a decision could be declared null and void if it was unenforceable or it had contained a deficiency which was specified, under an explicit statutory provision, as a ground for nullity.

Under section 268 §§ 1 and 2, a decision could be declared null and void at any time upon a request of a party to the proceedings, the public prosecutor and ex officio. Partial and full nullity could be ordered.

COMPLAINTS

The applicants complain under Article 6 of the Convention about the outcome of the annulment proceedings. They also complain under Article 1 of Protocol No. 1 that the respondent State, many years after the restitution order had become final, deprived them of the peaceful enjoyment of their possessions. Without invoking any Article of the Convention, they complain that the annulment proceedings violated the principle of legal certainty.

QUESTIONS TO THE PARTIES

1. Was the decision of 14 January 2009, by which the Restitution Commission annulled ex officio the final restitution order that had conferred (more than six and a half years before) on the applicants title to the land detailed therein, compatible with the principle of rule of law and legal certainty under Article 6 and Article 1 of Protocol No. 1 (see, mutatis mutandis, Nelyubin v. Russia, no. 14502/04, §§ 28 and 29, 2 November 2006; Bočvarska v. the former Yugoslav Republic of Macedonia, no. 27865/02, 17 September 2009; Protsenko v. Russia, no. 13151/04, 31 July 2008; Lenskaya v. Russia, no. 28730/03, 29 January 2009; and Giuran v. Romania, no. 24360/04, ECHR 2011 (extracts))?

2. Have the applicants been deprived of their possessions, within the meaning of Article 1 of Protocol No. 1? If so, was that interference lawful, justified and proportionate, within the meaning of Article 1 of Protocol No. 1?

 

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