FIRST SECTION
Application no. 52471/08
Marjančo TOMOVSKI and others
against the former Yugoslav Republic of Macedonia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
The applicants, Mr Marjančo Tomovski (“the first applicant”), Ms Julijana Tomovska (“the second applicant”) and Mr Boško Tomovski (“the third applicant”), are Macedonian nationals, who were born in 1960, 1964 and 1997 respectively and live in Skopje. The first and second applicants are the parents of the third applicant.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background of the case
In 2001 an armed conflict broke out in the respondent State. At the time, the applicants lived in village Lešok, Tetovo area, which was affected by the conflict. According to the applicants, on 23 July 2001 they were forcefully expelled from their home by armed members of NLA (National Liberation Army of Kosovo[1]). They allegedly owned two houses, various items of movable property, farmland, forestland, poultry, as well as a company, which included a food store that had operated in the village. The property was destroyed and/ or stolen. After their expulsion, they contacted the Red Cross and a Crisis Management Body of the Government of the respondent State. On 25 July 2001 they were declared internally displaced persons (IDPs) and placed in a State-run youth hostel P. in Skopje. They were apparently provided with a humanitarian aid and free medical care. As indicated in a letter of 15 October 2001 of the Government Crisis Management Body, on 10 August 2001 the second applicant’s house in village Lešok had been damaged and robbed.
By certificates issued between 19 May and 29 November 2004, the Ministry of Labour and Social Policy confirmed the applicants’ status of IDPs. It appears that with a letter of 25 December 2006, the Government informed the applicants that they had lost that status in 2003 since their house had meanwhile been reconstructed. In this context was a letter of 6 July 2011, submitted in evidence in the compensation proceedings described below, in which the Ministry of Labour and Social Policy stated that the applicants had lost the status of IDPs on the basis of a decision of the Government of 17 February 2003, which had been allegedly served on them. According to that decision, relevant Ministries were required to take measures in order to secure the return of IDPs in their homes. It appears that they were requested to leave the hostel P. until 12 June 2003. They however deny that they received any such decision. They still live in the hostel.
On 27 October 2006 bankruptcy proceedings regarding the applicants’ company were stayed due to lack of funds. As stated in the court decision of that date, the company was to be deleted from the trade register.
With a decision of 25 February 2011, the first applicant was awarded MKD 4,000[2] as a one-off allowance (право на еднократна парична помош) due to the applicants’ “bad economic situation” (лоша материјална состојба). As stated in the decision:
“... the claimant does not receive any social assistance. He is an IDP since 2001 conflict and lives in the hostel P. in Skopje. Due to the bad economic situation, the family is in a social risk ...”
The first and third applicants submitted medical certificates that they had been hospitalised or asked medical assistance due to alcoholism or mental-related difficulties respectively.
The applicants’ case was followed by the media and the Helsinki Committee in Skopje. In March 2012 a parliamentary question concerning their case was also put the respondent Government.
2. Application no. 52471/08
(a) Compensation proceedings against the respondent State
After having been forcefully expelled from their home, the applicants addressed different State institutions seeking for financial assistance and inspection, valuation and compensation of the damage sustained. They also sought to be exempted from the obligation to pay taxes and other duties related to their company, as well as that the State took measures concerning the personnel working in the company. They further complained that the authorities had pressed them to return to their home despite the fact that it had been inhabitable. It appears that their queries were to no avail.
On 5 February 2004 the applicants instituted civil proceedings against the State seeking compensation of the pecuniary and non-pecuniary loss related to their expulsion from their home in village Lešok. Skopje Court of First Instance (“the first-instance court”) ordered an expert examination of the damage of the applicants’ houses and the food store. According to an expert report of November 2004, the amount of damage was set at Macedonian denars 456,980 (MKD)[3]. With submissions of 13 September 2005, the applicants claimed the payment of MKD 13,276,127[4] in respect of pecuniary damage and MKD 4,800,000[5], in respect of non-pecuniary damage.
On 23 February 2011 the first-instance court rendered a partial judgment (делумна пресуда) in which it accepted the applicants’ claim for reimbursement of pecuniary damage regarding one house (the older house) and the food store and awarded them MKD 438, 098[6]. It dismissed the claim regarding the other (more recent) house since it had not been in the applicants’ possession. The court established that on 23 July 2001 the applicants had been expelled from their home and that they have the status of IDPs since 25 July 2001. Relying on a report of an on-site inspection carried out on 26 August 2003, the first-instance court established that the applicants’ older house and the food store, which were not considered for reconstruction by the State, had been robbed and damaged by intruders (провалници). Referring to Articles 25, 26, 27 and 30 of the Constitution (see “Relevant domestic law” below) the court ruled that the applicants were entitled to receive compensation for the material damage sustained. It rejected the defendant’s objection that the first and second applicants had lacked the required capacity to sue. In so doing, the court stated that:
“... having regard that the plaintiffs are displaced persons with no income, they are not in position to secure any evidence. Since they were forcibly expelled from their home, the court is of the opinion that [the first and second applicant] have the requisite capacity to claim pecuniary damage concerning the older house, as well as the business premises ...”
The court dismissed the claim of the third applicant since he lacked the required capacity to sue.
On 17 May 2011 the applicants appealed against this judgment. It appears that the proceedings are pending before the Skopje Court of Appeal.
(b) Proceedings regarding the applicants’ length remedy
On 13 April 2010 the Supreme Court accepted a length remedy submitted in November 2009 by the applicants and found that the length of the compensation proceedings (over five years and eight months) had been excessive. It set a six-month time-limit for the first-instance court to decide the applicants’ claim. In the absence of a request for just satisfaction, the court did not make any award. On 31 May 2010 this decision was upheld by the second-instance panel of the Supreme Court.
On 13 October 2011 the applicants lodged a fresh length remedy in which they sought EUR 200,000 in just satisfaction for the alleged excessive length of the compensation proceedings. No information has been submitted whether the Supreme Court decided that request.
3. Application no.54201/08
(a) Civil proceedings for social benefits
On 19 January 2004 the first and second applicants instituted civil proceedings claiming that the State pay them EUR 150,000 in compensation for having discontinued the provision of food and other humanitarian aid; for having annulled social benefits; as well as for the failure to “take any measure for (their) rehabilitation; to provide minimum living conditions; for the deteriorated health; trauma and psychological terror and threats for forceful removal from the collective centre (the hostel P.)”. With submissions of 22 June 2004, the first and second applicants specified that their claim concerned the payment of food allowance and other benefits. The value of the dispute was not specified.
On 12 May 2005 the first-instance court rejected the claim due to lack of jurisdiction. According to the judgment, the first and second applicants stated that they had been stripped of the food allowance since January 2003. The court referred to a letter of 21 March 2005 in which the Ministry of Labour and Social Policy submitted that the first and second applicants had lost the IDPs’ status on the basis of the Government’s decision of 17 February 2003 (see above) and the fact that their house had not been damaged in the conflict. Accordingly, they had no longer been entitled to obtain food allowance, which they had received until then. In such circumstances, the court ruled that the first and second applicants could vindicate any rights in this respect in administrative proceedings. The court exempted the first and second applicants from paying court fees due to their status of IDPs. On 21 December 2005 the Skopje Court of Appeal accepted an appeal by the first and second applicants and remitted the case for fresh examination.
On 28 September 2006 the first-instance court dismissed the applicants’ claim, which concerned, as noted in the judgment, compensation of material damage regarding unpaid daily allowance reserved for IDPs, food allowance and other social benefits and medical expenses, as well as compensation of non-pecuniary loss. The court released the applicants from the obligation to pay court fess, but ordered them to pay the trial costs of the defendant. It found that the State, on the basis of a decision of the Government of 9 October 2001, had provided the applicants, who were IDPs, with free accommodation, food, medical care and daily allowance. On the basis of the decision of 17 February 2003 the Government discontinued the provision of those benefits. With judgments of 12 January 2007 and 30 January 2008 the Skopje Court of Appeal and the Supreme Court confirmed that judgment. This latter judgment was served on the applicants on 22 April 2008.
4. Application no. 56066/08
(a) Administrative proceedings for child allowance
On 23 June 2005 the third applicant, represented by the first and second applicants, requested that the Skopje Social Care Centre ("the Centre") award him child allowance (детски додаток) given the poor standard of living of his family. Since the Centre remained inactive, on 12 August 2005 he sought that the Ministry of Labour decides his claim instead. In the absence of any reply, on 25 October 2005 the third applicant complained about the inactivity of the administrative bodies before the Supreme Court. In the appeal, he described their poor financial situation and complained about the State’s reluctance “to ensure minimal living conditions for a decent life”. On 29 June 2006 the Supreme Court accepted the third applicant’s claim and ordered the Ministry of Labour to decide his request for child allowance.
On 4 September and 4 October 2006 the third applicant sought that the Ministry decide his request. In the absence of any reply, on 12 October 2006 he requested that the Supreme Court decide his claim on the merits.
On 29 December 2006 the Ministry of Labour dismissed the third applicant’s appeal finding that he had not submitted any evidence to support the poor standard of living.
On 30 January 2007 the third applicant appealed against that decision before the Supreme Court claiming that the Ministry had been fully aware of the applicants’ status as IDPs; that they had resided in the collective centre (the hostel P.) and that they had no income. In that connection he referred to a letter dated 23 December 2006 in which the Ministry had confirmed that they had been unemployed and had received no income.
On 4 April 2007 the Supreme Court accepted the third applicant’s claim finding no evidence that the administrative authorities had advised him to complete his claim, as required by law. It quashed accordingly the Ministry’s decision.
On 30 May 2007 the Ministry accepted the third applicant’s appeal.
On a meeting held on 10 July 2007 with representatives of the Centre, the third applicant provided certain documents requested by the Centre and stated that he could not obtain the remaining evidence due to his poor financial situation. In any event, the Ministry had a copy of the requisite documents in their records which could be obtained ex officio. On 30 October 2007 the Centre dismissed the third applicant’s claim for child allowance as unsubstantiated.
On 13 November 2007 he complained before the Ministry. On 27 December 2007 the Ministry quashed the decision of the Centre and instructed it to take into consideration all available evidence.
On 26 March 2008 the Centre dismissed the third applicant’s claim finding that the first and second applicants ran and owned the company respectively, as well as that all applicants had still had a registered residence in Tetovo. The third applicant challenged this decision submitting in support the final court decision of 27 October 2006 (see above) under which the company was to be erased from the trade register. On 14 July 2008 the Ministry dismissed the appeal.
On 1 September 2008 the third applicant lodged an appeal with the Administrative Court, which the latter, with a judgment of 3 January 2011, accepted. The court set the Ministry’s decision aside and remitted the case for renewed consideration. It held that the applicants were IDPs, that their company had been erased from the trade register and that they were residents in Skopje. On 27 January 2011 the Ministry quashed the Centre’s decision of 26 March 2008 and remitted the case for fresh examination.
On 6 April 2011 the Centre dismissed the third applicant’s claim holding that his parents had no income and did not meet accordingly the statutory requirements to obtain child allowance. This decision was confirmed on appeal by the Ministry on 25 May 2011.
On 20 July 2011 the third applicant complained before the Administrative Court arguing that the administrative authorities had erred on the law, according to which individuals without any income were entitled to receive child allowance. No information was provided about any further proceedings.
(b) "Length" proceedings
On 4 October 2010 the applicants brought a “length” remedy before the Supreme Court, which the latter, with a decision of 11 January 2011, accepted. The court awarded the third applicant MKD 30,000[7] and ordered the Administrative Court to decide his appeal within three months after the judgment would become final.
It appears that on 21 July 2011 the third applicant submitted a fresh length remedy. No information was provided whether the Supreme Court decided upon it.
5. Application no. 56067/08
(a) Administrative proceedings regarding payment of a social-care allowance
On 23 June 2005 the applicants requested that the Centre award them social-care benefit given the fact that they were unemployed and had no income. Since the Centre remained inactive, on 12 August 2005 they sought that the Ministry of Labour decides their claim on the merits. In the absence of any reply, on 25 October 2005 the applicants complained about the inactivity of the administrative bodies before the Supreme Court. In the appeal, they described their poor financial situation and complained about the State’s reluctance “to provide minimum living conditions for a decent life”. With letters of 18 September, 4 and 12 October and 21 November 2006 they sought that the Supreme Court considers their claim as soon as possible given their “desperate situation”.
On 18 October 2006 the Supreme Court accepted the applicants’ claim and ordered the Ministry of Labour to decide their request.
On 11 January 2007 the Centre carried out on on-site inspection of the premises in the hostel P. in which the applicants have been living since their removal and inter alia stated:
"... (the applicants) live in the hostel P. in one room where conditions and hygiene are poor and inadequate for living."
On 9 March 2007 the Ministry of Labour dismissed the applicants’ appeal finding that they had not submitted their request properly. On 12 April 2007 the applicants sought that the Supreme Court set the Ministry’s decision aside and decide the matter on the merits.
On 9 October 2008 the Administrative Court, which had meanwhile become competent to decide in administrative matters, accepted the applicants’ claim and quashed the Ministry’s decision. The case was remitted for fresh examination.
Since the Ministry did not decide the applicants’ appeal, on 22 April 2009 they requested that the Administrative Court decide their claim. As it appears from the documents submitted in the case-file, on 28 November 2011 the Ministry decided the applicants’ request for social-care allowance. No information was provided what was the decision and whether the impugned proceedings are still pending.
(b) “Length” proceedings
On 27 September 2009 the applicants initiated “length” proceedings before the Supreme Court. With a final judgment of 3 June 2011 the Supreme Court found that the impugned administrative proceedings had been incompatible with the “reasonable-time” requirement and awarded the applicants MKD 45,000[8] in just satisfaction. It also ordered the Ministry to decide their claim within three months after the judgment would become final.
On 13 October 2011 the applicants submitted a fresh length remedy, which the Supreme Court, with a judgment dated 27 March 2012, dismissed since the Ministry had meanwhile (28 November 2011, see above) decided their case.
B. Relevant domestic law
Article 25 of the Constitution provides that everyone has the right to respect for his or her personal and family life, dignity and reputation.
Article 26 provides for the inviolability of home.
Under Article 27, everyone has the right of liberty of movement and freedom to choose his or her place of residence.
Article 30 provides for the right to property.
COMPLAINTS
The applicants complain under Article 3 of the Convention that the respondent State discontinued the provision and payment of social benefits and allowances notwithstanding their status of IDPs. Civil and administrative proceedings instituted with a view to recover those benefits were to no avail. They further complain about the poor living conditions in the collective centre, as well as the alleged threats and pressure to which they were subjected in order to leave the centre. In result, their health deteriorated. That was also in breach of the State’s positive obligations under Article 8 of the Convention to protect their right to respect for the private and family life, their physical and mental integrity. They also complain under Article 6 that the proceedings were too long.
QUESTIONS TO THE PARTIES
1. Was there a violation of Article 3 or/and of Article 8 of the Convention due to the living conditions of the applicants in the State-run youth-hostel P.?
2. Given the applicants’ overall situation since their expulsion in 2001, was there a violation of Article 8 of the Convention?
3. Was the length of the compensation proceedings (application no. 52471/08) in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
APPENDIX
52471/08 Tomovski v. the former Yugoslav Republic of Macedonia54201/08 Tomovski v. the former Yugoslav Republic of Macedonia56066/08 Tomovski v. the former Yugoslav Republic of Macedonia56067/08 Tomovski v. the former Yugoslav Republic of Macedonia
[1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.
[2] Approximately EUR 65.
[3] Approximately EUR 7,500.
[4] Approximately EUR 217,000.
[5] Approximately EUR 78,500.
[6] Approximately 7, 150.
[7] Approximately EUR 490.
[8] Approximately EUR 730.
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