SECOND SECTION
DECISION
Application no. 17218/17
Dragica VANGELOVA and Others
against North Macedonia
The European Court of Human Rights (Second Section), sitting on 17 May 2022 as a Committee composed of:
Branko Lubarda, President,
Jovan Ilievski,
Diana Sârcu, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 17218/17) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 February 2017 by the applicants listed in the appended table (“the applicants”), who were represented before the Court by Ms H. Shterjova‑Simonovikj, a lawyer practising in Skopje, and the Helsinki Committee for Human Rights based in Skopje;
the decision to give notice of the complaint concerning Article 1 of Protocol No. 1 to the Convention to the Government of the Republic of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova, and to declare the remainder of the application inadmissible;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applicants complained that they had been deprived of their possessions, in breach of Article 1 of Protocol No. 1 to the Convention.
2. The applicants discovered that a municipal road had been built on plots of land which they owned and that several cables for the distribution of electricity were passing over those same plots of land, without any prior proceedings having been conducted regarding expropriation or compensation. As they submitted to the Court, they had not been informed about the building permit issued in respect of the road that was to pass through their land, or about the contract signed between the municipality and an electricity distribution company concerning the relocation of a transmission line, in accordance with which electrical cables would be installed over their land. The applicants submitted a civil claim under the Property Act against the municipality in which their plots of land were situated and against the electricity distribution company. They requested the domestic courts to establish that the opposing parties had disturbed their peaceful enjoyment of their possessions, to oblige the opposing parties to “return the possession” (владението да им го вратат), to forbid any further disturbance of their possessions by ordering the removal of the road and the cables from the land, and to award the applicants compensation for the damage suffered.
3. On 14 December 2012 the Skopje Court of First Instance dismissed the applicants’ claims. On 27 March 2013 the Skopje Court of Appeal quashed the first-instance decision and held that the nature of the applicants’ main complaint (that there had been a disturbance of their possessions) did not allow the courts to decide on their compensation claim in the same proceedings. In particular, under section 412 of the Civil Proceedings Act, in cases in which claimants alleged that there had been a disturbance of their possessions, the courts’ assessment was limited to examining “the last condition of the possession” and whether the alleged disturbance had occurred. In line with that same legal provision, such proceedings could not determine, among other issues, any claims for compensation. The Skopje Court of Appeal remitted the case to the first-instance court for a fresh examination. Subsequently, the applicants withdrew the compensation claim.
4. The applicants also challenged the permit for the construction of the municipal road by means of an administrative action, which was rejected for “not being in order” (неуредна) by a final decision of the Higher Administrative Court on 18 December 2014.
5. After the remittal of the case, on 14 October 2014 the Skopje Court of First Instance acknowledged that the road had been built partly on the applicants’ land and that the electric cables passed over part of the land. However, it dismissed the claim, finding that the construction of the road and the installation of the cables had been lawful and in accordance with a valid building permit and a valid contract respectively. The court held that, under section 181(3) of the Property Act, where an action entailing obstruction or confiscation of a possession had been permitted by law or by a lawful decision of a court or another authority, it was not considered an unauthorised obstruction of that possession. In that connection, the court observed that the applicants’ challenge to the building permit had been unsuccessful (see paragraph 4 above), and that they had not provided any evidence that the contract with the electricity distribution company had been annulled.
6. Following an appeal by the applicants, on 4 February 2016 the Skopje Court of Appeal, in a final decision, reiterated the reasoning of the first-instance court. It held that the applicants had learned about the actions of the opposing parties in good time, but had not used the appropriate legal remedies. In particular, the applicants could have instituted expropriation proceedings in order to vindicate their rights.
THE COURT’S ASSESSMENT
7. The applicants complained that they had been deprived of their possessions, in violation of their rights guaranteed under Article 1 of Protocol No. 1 to the Convention. In particular, they acknowledged that the building of the road had been in the public interest, but they argued that they should have been adequately compensated for the interference with their property rights.
8. The Government argued that the applicants’ claim in respect of the disturbance of their possessions had not been the appropriate legal avenue. Instead, the applicants should have claimed compensation for damage caused by the de facto partial expropriation of their property. The Government emphasised that although the domestic legislation did not specify the principle of “de facto expropriation”, the domestic courts had developed consistent case-law. They provided examples of relevant cases which had both preceded and followed the proceedings in the applicants’ case. The Government argued that circumstances such as those in the present case, in which the opposing parties, without instituting proceedings for expropriation, had deprived the owners of part of their property in such a way that the owners could no longer use that part for their own needs, amounted to de facto expropriation, for which the owners were entitled to a certain amount of compensation.
9. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after the effective domestic remedies have been exhausted. The general principles regarding the exhaustion of domestic remedies have been summarised in Gherghina v. Romania ((dec.) [GC], no. 42219/07, §§ 83-89, 9 July 2015, with further references).
10. Turning to the circumstances of the present case, the Court observes that, in the remitted proceedings, the applicants mainly asked the courts to establish that there had been a disturbance of their peaceful enjoyment of their property rights over the plots of land. In view of the limited nature of such a claim under domestic law and the issues which could be decided when examining it (see paragraph 3 above), the Court considers that this remedy was neither capable of preventing or putting a swift end to the alleged violation, nor of affording adequate redress for any violation that had occurred, conditions that the Court requires to be fulfilled in order for a remedy to be deemed “effective” for the purposes of Article 35 § 1 of the Convention (see Gherghina, cited above, § 91, with further references).
11. Furthermore, the domestic courts established that the building of the road and the installation of the electrical cables on the applicants’ land had been lawful (see paragraph 5 above). In addition, the applicants themselves acknowledged that the building of the road had served the public interest (see paragraph 7 above). In such circumstances, the Court considers that a compensatory remedy would have provided the applicants with adequate redress for the interference with their property rights. Thus, the applicants could, as indicated by the domestic court (see paragraph 6 above) and as argued by the Government (see paragraph 8 above), have initiated proceedings for compensation for the damage they had suffered as a result of the de facto expropriation. In the light of the domestic case-law provided by the Government, the Court is satisfied that instituting such proceedings would have amounted to an effective remedy in their situation, in accordance with Article 35 § 1 of the Convention. However, after the applicants withdrew their initial compensation claim (see paragraph 3 above), they did not institute any other proceedings requesting compensation. The applicants did not submit any evidence that this remedy was for some reason inadequate or ineffective in the particular circumstances of the case, or that there existed special circumstances exempting them from the requirement to avail themselves of it (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 77, 25 March 2014).
12. In conclusion, the Court considers that the applicants did not provide the national courts with the opportunity to prevent or put right Convention violations through their own legal system (see Gherghina, cited above, §115). Accordingly, the Government’s objection of failure to exhaust domestic remedies must be upheld.
13. It follows that the application must be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 in fine of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 9 June 2022.
Hasan Bakırcı Branko Lubarda
Registrar President
Appendix
List of applicants
No.
Applicant’s Name
Year of birth/registration
Nationality
Place of residence
1.
Dragica VANGELOVA
1937
Macedonian/ citizen of the Republic of North Macedonia
Skopje
2.
Natasha BREZOVSKA-VUCHKOVSKA
1978
Skopje
3.
Dejan BREZOVSKI
1976
Skopje
4.
Pavle BREZOVSKI
1944
Skopje