Communicated on 3 March 2015
FIRST SECTION
Applications nos 50589/09 and 37221/14
Aneta TESER against the former Yugoslav Republic of Macedonia
and Ilko PETROV and Aneta TESER against the former Yugoslav Republic of Macedonia
lodged on 14 September 2009 and 12 May 2014 respectively
STATEMENT OF FACTS
The applicant in the first case (application no. 50589/09, lodged on 14 September 2009) as well as in the second case (application no. 37221/14, lodged on 12 May 2014), Ms Aneta Teser (“the first applicant) and the other applicant in the second case, Mr Ilko Petrov (“the second applicant”), are Macedonian nationals, who were born in 1972 and 1947 and live in Skopje.
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 case
The applicants live in an unlawfully constructed house built in the 1960s. The house is located on a hilly (mountainous) terrain on a land owned by the State to which I.F., the applicants’ immediate neighbour, has the right to use. In 1999 I.F. constructed a load bearing wall (потпорен ѕид) (“the wall”) as a barrier to keep the steep terrain still. In his yard, I.F. also built a horizontal platform (terrace) on which a swimming pool and other amenities were installed. The whole construction, which relies on the wall, modified the terrain so that it now appears as an additional extension (hill-alike) above the applicants’ house.
2. Administrative proceedings concerning the construction permit and enforcement of demolition order (application no. 50589/09)
On 25 February 1999 the Ministry of Urban Planning and Construction (“the Ministry”) issued a construction permit to I.F. for the wall, fence and accompanying amenities (партерно уредување).
On 25 May 1999 the first applicant requested the Ministry to demolish I.F.’s construction.
On 4 June 1999 the Ministry informed the first applicant that on 27 May 1999 it had conducted an on-site inspection (увид) and established that I.F. had not complied with the terms of the construction permit, namely, the wall had exceeded the proportions allowed with the construction permit of 25 February 1999, plus a horizontal platform had been unlawfully constructed above it.
On 9 July 1999 the Ministry informed the first applicant that a decision for demolition of I.F.’s construction had been issued on 28 June 1999 followed by a demolition order of 5 July 1999 (hereinafter jointly referred to as “demolition order”).
On 14 July 1999 the Ministry dismissed I.F.’s fresh request for construction permit (that would have ex post facto legalised the whole construction) because the request had not complied with the terms of the urban plan for the area.
The demolition order remained unenforced notwithstanding the first applicant’s requests of 2000 and 2006.
On 17 January 2007 the first applicant lodged an application before the Administrative Court claiming administrative inactivity and a court decision for demolition of I.F.’s unlawfully constructed wall.
On 18 May 2009 the Administrative Court dismissed the first applicant’s application. It qualified this application as an action seeking protection against an unlawful act (барање за заштита од незаконито дејствие) under section 55 of the Administrative Disputes Act and that the cumulative statutory requirements for protection against unlawful act had not been met. It found that the non-enforcement of the demolition order could not be considered as an unlawful action attributable to an official person directly affecting a constitutional right for which no other judicial protection was envisaged. The Administrative Court held that the non-enforcement of the demolition order could not be taken as a limitation of the first applicant’s property right having in mind that the property rights could be on various grounds protected before ordinary (civil) court whose decisions could then be enforced in enforcement proceedings.
On 22 June 2009 the Supreme Court dismissed the first applicant’s appeal finding that other judicial protection had been provided for under the Enforcement Proceedings Act.
3. Civil proceedings against I.F. (application no. 37221/14)
On 2 September 2009 the applicants initiated civil proceedings against I.F. They claimed an encumbrance (право на службеност) that would enable them to reconstruct a path in their part of the plot and next to the wall, in order to prevent the direct drainage of atmospheric waters into their house. They further claimed that I.F. be ordered to open a small hole of 10 centimetres diameter, as well as to undertake some other improvements for drainage of the atmospheric waters of the wall, to remove trees from the delimitation between the two parts of the plot and to restrain from disposing waste next to their house. They made these claims “until the house exists”. The applicants argued that the whole plot was owned by the State and that I.F. had the right to its use, but in fact part of the plot (their house and the adjacent surrounding yard) had always been in their actual possession. With the unlawful construction, the configuration of the terrain was modified, the atmospheric waters drained into their house, the humidity was very high and as a result the house became almost uninhabitable.
On 27 February 2013 the Skopje Court of First Instance (“the first-instance court”) dismissed the claims as ill-founded in respect of the second applicant and considered them withdrawn in respect of the first applicant due to her unjustified absence from a hearing. The first-instance court established inter alia that the applicants’ house had been in a poor condition and needed a reconstruction, that living there had been unsafe, that the water had been draining from I.F.’s into the applicants’ part of the plot, that the trees close to the delimitation of the two parts of the plot had been unstable and could easily fall and that a concrete-made path (заштитен тротоар) had been necessary to prevent the drainage of the waters into the house. It also found that I.F.’s construction and the existing trees actually slow down the drainage of the waters and provide for stability of the steep terrain. It further established that in 2009 I.F. had been issued a permit for urban reconstruction measures for the wall and that in other, separate sets of proceedings, the applicants’ claim for title had already been dismissed, as had been the case with I.F.’s claim against the applicants for transfer of the actual possession (предавање во владение). However, the first-instance court, having established that the applicants’ house had been unlawfully constructed on a plot owned by the State on which I.F. had the right to use, concluded that the second applicant had no requisite standing to sue while at the same time I.F. had no standing to be sued in the proceedings.
On 13 November 2013 the Skopje Court of Appeal (“the second-instance court”) did not accept the applicants’ appeals and confirmed the first-instance court’s judgment reiterating that the protection claimed by the applicants had been reserved only for owners.
COMPLAINTS
The first applicant (application no. 50589/09) complains under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention about the lengthy non-enforcement of the demolition order and no access to court thereof. Both applicants (application no. 37221/14) complain under Article 1 of Protocol No. 1 that the State did not protect their possession and that in result they are de facto forced to abandon their home.
QUESTIONS TO THE PARTIES
1. Having in mind the circumstances of the case (both applications), was there a positive obligation for the respondent State to protect the applicants’ possession within the meaning of Article 1 of Protocol No. 1? If so, did the respondent State discharge its positive obligation in relation to the applicants’ rights under this head (see Öneryıldız v. Turkey [GC], no. 48939/99, §§ 127-129, ECHR 2004‑XII, Kotov v. Russia [GC], no. 54522/00, §§ 111-115, 3 April 2012, Kostić v. Serbia, no. 41760/04, §§ 68 and 74, 25 November 2008 and Jankulovski v. the former Yugoslav Republic of Macedonia, no. 6906/03, § 39, 3 July 2008)?
2. As regards the application no. 50589/09, was an effective access to court available for the enforcement of the demolition order of 1999, in accordance with Articles 6 § 1 and 13 of the Convention?
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