CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 7 décembre 2017

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THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA   (Applications nos. 38024/08 and 54726/08)                     JUDGMENT       STRASBOURG       7 December 2017         This judgment is final but it may be subject to editorial revision In the case of Krstanoski and Others v. the former Yugoslav Republic of Macedonia, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Aleš Pejchal, President,   Krzysztof Wojtyczek,   Jovan Ilievski, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 14 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 38024/08 and 54726/08) against the former Yugoslav Republic of Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by eight Macedonian nationals (“the applicants”) on 25 July and 13 November 2008. The personal details of the applicants are set out in the attached appendix. 2.     The applicants were represented by Mr S. Risteski and Mr   F.   Medarski, lawyers practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr   K.   Bogdanov. 3.     The applicants alleged under Article 6 of the Convention that the restitution authorities had had inconsistent practice in respect of identical claims and that the length of the restitution proceedings had been excessive. They also complained that the authorities’ refusal to order restoration of possession violated their rights under Article 1 of Protocol No. 1. 4.     On 25 February 2014 the above complaints were communicated to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background to the applications 5.     In 1957 several plots of land (agricultural land at the time) were expropriated from the applicants’ legal predecessors. The present cases concern restitution proceedings in which the applicants sought that the plots of land, which, at present, form part of a campsite on the shore of Lake Ohrid, be restored to their possession. B.     Application no. 38024/08 ( Krstanovski and Others ) 6.     On 14 August 2001 the applicants instituted restitution proceedings. On 15 September 2003 the Ministry of Finance’s Restitution Commission (“the Restitution Commission”) granted the applicants’ claims and awarded them compensation, the form of which was to be determined by a separate decision. It established that according to an urban plan of 20   March 2002 the land was designated as a public green zone in a tourist area. Relying on an on-site inspection ( увид ) of 1   September 2002, it further held that the land was developed ( уреден простор ) with access paths and supporting infrastructure. 7.     On 4 December 2003 the applicants appealed, arguing that, inter alia , the land was undeveloped and could be restored to their possession. Were the urban plan to be implemented in the future, the land could be expropriated anew. 8.     On 31 May 2005 the the Second-Instance Administrative-Procedure Commission in the Area of Denationalisation ( Комисија за решавање во управна постапка во втор степен од областа на денационализацијата – “the second-instance commission”) dismissed the applicants’ appeal finding no grounds to depart from the established facts and the reasons given by the Restitution Commission. Relying on section 10 of the Restitution Act (see paragraph 15 below), the second-instance commission held that the land in question was of public interest ( јавен интерес ) and could not be restored to the applicants’ possession, but that compensation should be awarded instead. 9.     On 21 September 2005 the applicants lodged an administrative-dispute claim with the Supreme Court reiterating that the land within the campsite was undeveloped and could therefore be restored to their possession. In submissions lodged subsequently, they further referred to decision no. 44-530/1 of 7 March 2006 in which the second-instance commission had accepted a similar claim and ordered that a neighbouring plot of land located within the same campsite had been restored to possession of the claimants. In that case, the second-instance commission had held, unlike in the applicants’ case, that access paths and supporting infrastructure had not been sufficient for the land in question to be regarded as developed. 10.     On 7 February 2008 the Administrative Court, which had in the meantime become competent to decide administrative-dispute claims, dismissed the applicants’ claim and upheld the findings of the administrative authorities. C.     Application no. 54726/08 ( Gugoski and Others ) 11.     On 28 November 2003 the Restitution Commission upheld the applicants’ restitution claim and awarded them compensation in State bonds. Relying on an on-site inspection of 13 May 2002 and a certificate of 15 September 2002 issued by the competent Ministry, it established that the plot in question was located within the boundaries of the campsite; that it had been designated as a public green zone and that pedestrian paths and other similar infrastructure were planned for construction. It concluded accordingly that the plot could not be restored to the applicants’ possession. 12.     An appeal by the applicants of 7 April 2004 was dismissed by the second-instance commission on 15 November 2005. The latter held that, inter alia , the findings of the Restitution Commission had been based on section 10 of the Restitution Act. 13.     The applicants lodged an administrative-dispute claim in which, alike the applicants in application no. 38024/08, they referred to the second-instance commission’s decision no. 44-530/1 and asked the Administrative Court to ensure consistent application of the law. 14.     On 21 April 2008 the Administrative Court dismissed the applicants’ claim, finding no grounds to depart from the established facts and the reasoning given by the administrative authorities. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Restitution Act, consolidated version (Official Gazette no.   43/2000) 15.     Section 10(1)(1) and (3) of the Restitution Act provides that compensation is to be paid instead of restoration of possession for land that after confiscation became a good in public use ( добро во општа употреба ), such as squares, streets, parks or other objects of a communal nature; оr regarding undeveloped construction land ( градежно неизградено земјиште ) designated by an urban plan for the construction of objects in public use or of public interest. 16.     Section 18(1) of the Act provides for urgent settlement of restitution disputes. 17.     Section 20(1), provides that property is to be restored, fully or in part, in the state which it was in at the date of entry into force of the Act. 18.     Under section 37 specified under the Chapter headed “Compensation” ( надоместок ), compensation can be awarded for property that cannot be restored. The state of the property at the time of confiscation is taken as the basis for calculating the amount of compensation. B.     Relevant practice 19.     On 7 February 2008 the Administrative Court set aside the second-instance commission’s decision no. 44-530/1 of 7 March 2006 (see paragraphs 9 and 13 above). In March 2014 the Restitution Commission awarded the claimants in those proceedings compensation in return for the expropriated land. No further information was provided by the parties regarding these proceedings. 20.     On 7 April 2008 the relevant restitution commission for religious communities restored the title of a claimant (a church) to four plots of land which were located within the campsite, but, as established by the authorities, were “naturally separate from (it)” ( природно одвоени од автокампот ); formed part of a tourist/recreational area “in a strictly protected lakeside zone” ( строго заштитена приобална зона ) intended for forestry; and were vacant. In the absence of an appeal, the decision became final (Dn.no.19-741/03). 21.     By three different decisions (Dn. no. 19-815/02; Dn. no. 19-513/03 and Dn. no. 19-518/03) the Restitution Commission partly restored the claimants’ title to several vacant plots of land in the wider area, but outside the campsite. 22.     By three decisions of 2011 and 2012 (Dn. no. 17-38/01, Dn.   no.   19 ‑ 2619/02 and Dn. no. 19-2584/07), the Restitution Commission awarded compensation with respect to plots of land located within the campsite on which, as in the applicants’ cases, access or pedestrian paths and other structures of a communal nature had been constructed. The latter decision stated that no plot within the campsite had been restored to the claimants’ possession. THE LAW I.     JOINDER OF THE APPLICATIONS 23.     The Court considers that, in accordance with Rule 42 § 1 of the Rules of Court, the applications should be joined, given their similar factual and legal background. II.     ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 24.     The applicants complained under Article 6 § 1 of the Convention that the domestic authorities had had inconsistent practice in respect of restitution claims regarding land located in the campsite and that the length of the restitution proceedings had been incompatible with the “reasonable time” requirement. This Article, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” A.     Alleged inconsistency in the domestic case-law 1.     The Government’s objection as to the alleged abuse of the right of individual application (a)     The parties’ submissions 25.     The Government maintained that the applicants had abused their right of petition by having provided the Court with the not-yet-final decision no. 44-530/1 of the second-instance commission (see paragraphs 9 and 13 above). The fact that the applicants had relied on cases that did not, in the Government’s view, demonstrate the alleged inconsistent practice added further to the argument that this was an abuse of the exercise of their right of petition. 26.     The applicants denied that they had abused their right of petition. They had relied on decisions which, according to them, had supported their allegations of inconsistent practice. (b)     The Court’s assessment 27.     The Court reiterates that incomplete and therefore misleading information may amount to an abuse of the right of application, especially if such information concerns the very core of a case and no sufficient explanation is given for the failure to disclose that information (see Červeňáková v. Czech Republic (dec.), no. 26852/09, §§ 25-27, 23   October 2012, and Lukarev v. the former Yugoslav Republic of Macedonia (dec.), no.   3172/07, ECHR 15 January 2013). 28.     In the present case, the Government’s objection under this head was twofold: that the applicants had based their arguments firstly on a decision that had not been final, and secondly on cases that did not disclose any inconsistent practice on the part of the competent authorities. The Court will focus its examination under this head on the former argument, the latter being relevant for the substantive analysis of the complaint about the alleged inconsistent practice under Article 6 of the Convention (see paragraph 35 below). 29.     The Court recalls that according to Rule 47 § 6 of the Rules of Court applicants must keep the Court informed of all circumstances relevant to the application. The application may be rejected as abusive under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts (see Gorodnyk v. Ukraine (dec.), § 23, no. 4831/09, 21   February 2017). 30.     The Court notes that in the application form the applicants relied on the relevant decision no. 44-530/1 without arguing that it had been final. The fact that the decision in question had been quashed by the Administrative Court was disclosed by the respondent Government after the Court had communicated the case. There is no indication that the applicants knew and withheld from the Court the fact that decision no. 44-530/1, which concerned proceedings regarding third parties, had been set aside by the Administrative Court (see, conversely, Lukarev , cited above). The Government did not provide any evidence proving otherwise. In such circumstances, the Court cannot but find that the applicants’ conduct was not contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention. 31.     The Government’s objection therefore must be rejected. 2.     Whether there was an inconsistent domestic practice (a)     The parties’ submissions 32.     The applicants reiterated that the domestic authorities had had inconsistent practice in respect of similar restitution claims regarding plots of land located within the campsite. 33.     The Government maintained that the principle of legal certainty had been respected and that the restitution authorities had not taken different approaches to similar cases. (b)     The Court’s assessment 34.     The general principles regarding inconsistent domestic practice and the resulting legal uncertainty in violation of the fair-trial requirement enshrined in Article 6 § 1 of the Convention were set out in the case Nejdet Şahin and Perihan Şahin v. Turkey ([GC] no. 13279/05, §§ 49-58, 20   October 2011). 35.     In the present case, the restitution authorities accepted the applicants’ claims and awarded them compensation for the plots of land confiscated from their predecessors. The relevant decisions were based on facts established by prior on-site inspection and with regard to the plots’ intended use specified in the relevant urban plans. The authorities found that the plots in question could not be restored to the applicants’ possession since they had been developed and designated as a public green zone in a tourist area. Such findings were in compliance with the practice of the competent authorities in similar restitution claims (see paragraph 22 above). The remaining examples of domestic case-law in which the restitution authorities ordered restoration of possession concerned claims based on different facts (see paragraphs 20 and 21 above) and cannot accordingly support the applicants’ allegations. 36.     Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B.     Alleged violation of the “reasonable time” requirement under Article 6 of the Convention 1.     Admissibility 37.     The Government did not raise any objection as regards the admissibility of this complaint. 38.     The Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. It must therefore be declared admissible. 2.     Merits (a)     The parties’ submissions 39.     The applicants maintained that the impugned proceedings had been excessively lengthy. They asserted that the proceedings had not been complex and that no delays could be attributed to themselves. Furthermore, the national legislation required restitution disputes to be conducted with special diligence. 40.     The Government submitted that the proceedings had complied with the reasonable-time requirement. (b)     The Court’s consideration 41.     The Court observes that the restitution proceedings were instituted on 14 August 2001 (regarding application no. 38024/08) and 28   November 2003 (regarding application no. 54726/08). However, the period to be taken into consideration began only on 4 December 2003 and 7   April 2004 (see paragraphs 7 and 12 above), respectively, when the applicants appealed against the Restitution Commission’s decisions. It was at that point that a “dispute” within the meaning of Article 6 § 1 arose (see Božić v. Croatia , no.   22457/02, § 26, 29 June 2006; Počuča v. Croatia , no.   38550/02, § 30, 29   June 2006; and Janssen v. Germany , no.   23959/94, §   40, 20 December 2001). Given the dates when the proceedings were completed (7 February and 21 April 2008, respectively), the Court finds that they lasted over four years at two levels of jurisdiction. 42.     The Court considers that the applicants’ cases were not particularly complex. Nor, having regard to the material before it, does it consider that the applicants contributed to the length of the proceedings. On the other hand, it finds that the time that lapsed for judicial review of the applicants’ claims was excessive (see paragraphs 9, 10, 12 and 14 above). During this time, the Administrative Court only reviewed the cases on points of law and did not take any evidence or perform any other procedural activity (see, mutatis mutandis , Ličkov v. the former Yugoslav Republic of Macedonia , no.   38202/02, § 30, 28 September 2006). Lastly, the Court considers it noteworthy that domestic law (see paragraph 16 above) required restitution disputes to be conducted with special diligence. 43.     Having regard to the criteria laid down in its case-law for assessing the reasonable-time requirement contained in Article 6 § 1 of the Convention (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII; Comingersoll S.A. v. Portugal [GC], no. 35382/97, ECHR 2000-IV; and Philis v. Greece (no.   1) , 27   August 1991, § 35, Series A no. 209), the Court considers that the length of both sets of proceedings was excessive and failed to meet the “reasonable-time” requirement. 44.     There has accordingly been a violation of Article 6 § 1 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 TO THE CONVENTION 45.     The applicants also complained that the refusal of the domestic authorities to restore the plots of land to their possession had violated their rights under Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Admissibility 1.     The parties’ submissions 46.     The applicants submitted that the domestic authorities had violated their property rights when they had refused to restore the plots in natura and instead had set compensation at a much lower level than the plots’ market value. 47.     The Government argued that the applicants, although entitled to restitution, had had no legitimate expectations to obtain title to the plots in question. 2.     The Court’s assessment 48.     The general principles relevant for the applicants’ complaint as communicated to the respondent Government were summarised in Stojanoski and Others (no. 14174/09, §§ 46 and 47, 23 October 2014). 49.     The Court notes that the present case concerns the applicants’ restitution claim in which they sought to recover possession of plots of land confiscated from their late predecessors. It needs to determine whether or not that claim constituted an “asset”, that is to say whether it was sufficiently established to attract the guarantees of Article 1 of Protocol   No.   1. 50.     The Restitution Act, on which the applicants’ claim was based, provided for an entitlement to compensation or ownership of property subject to restitution. The “restoration of ownership” entitlement was subject to certain conditions. In this connection section 10 of the Act provided that land designated by an urban plan for the construction of objects in public use or of public interest could not be restored into possession, but that compensation would be paid instead. The domestic authorities relied on that provision in order to refuse to restore the plots of land to the applicants’ possession and awarded them compensation instead (see paragraph 10 above). Having regard to the information before it and considering that it has only limited power to deal with alleged errors of fact or law committed by the national courts (see García Ruiz v. Spain [GC], no.   30544/96, § 28, ECHR 1999-I), the Court is satisfied that the domestic authorities established convincingly that the applicants’ claim for restoration in possession had not satisfied a statutory requirement in that it concerned a land designated with a valid legal instrument for the construction of objects of public interest. Such an approach, as noted above (see paragraph 35 above), the national authorities consistently applied to all similar restitution claims. 51.     In such circumstances, the Court considers that the State’s refusal to grant the applicants’ claim to title to the property did not amount to an interference with their property rights and the facts of the case do not fall within the ambit of Article 1 of Protocol No. 1 (see, conversely, Stojanovski and Others, § 50). 52.     Accordingly, this complaint under this head is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35   §   3 (a) and must be rejected in accordance with Article 35   §   4 (see, mutatis mutandis, Gratzinger and Gratzingerova v. the Czech Republic (dec.), no. 39794/98, § 75, ECHR 2002 ‑ VII). IV.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 53.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 54.     The applicants claimed 659,200 euros (EUR) in respect of pecuniary damage. This figure corresponded to the market value of the plots of land and the loss of income. They also claimed EUR 56,500   for non-pecuniary damage. 55.     The Government contested these claims as unsubstantiated and excessive. 56.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects those claims. On the other hand and ruling on an equitable basis, it awards each applicant EUR 750 for the non-pecuniary damage sustained on account of the excessive length of the proceedings. B.     Costs and expenses 57.     The applicants in application no. 38024/08 also claimed EUR 3,500 for the costs and expenses incurred in the domestic proceedings and EUR   1,040 for those incurred before the Court. This latter figure concerned EUR 500 for legal fees for their representation before the Court (a receipt was given in support) and the remainder concerned costs for an expert examination, translation and postal expenses (no supporting documents). The applicants in application no. 54726/08 claimed EUR 1,500 for the costs and expenses incurred before the Court. They have submitted no documents in support of their claims. 58.     The Government contested those sums as excessive and unsubstantiated. 59.     According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that those have been actually and necessarily incurred and are reasonable as to quantum (see Editions Plon v. France , no.   58148/00, §   64, ECHR   2004 ‑ IV). In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants in application no. 38024/08 the sum of EUR 200 for the costs of the proceedings before the Court; it further rejects the remainder of the applicants’ claims under this head. As regards application no.   54726/08, having regard to the lack of any supporting documents the Court makes no award under this head. C.     Default interest 60.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Decides to join the applications;   2.     Declares the applicants’ complaint concerning the length of the proceedings admissible and the remainder of the applications inadmissible;   3.     Holds that there has been a violation of Article 6 § 1 of the Convention on that account;   4.     Holds (a)     that the respondent State is to pay the applicants, within three months, the following amounts , to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     as regards both applications, EUR 750 (seven hundred and fifty euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     as regards application no. 38024/08, EUR 200 (two hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 7 December 2017, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Renata Degener   Aleš Pejchal   Registrar   President APPENDIX Application no. 38024/08   Naum KRSTANOSKI born on 15/05/1942 Jordan CANOSKI born on 05/01/1937 Krste CANOSKI born on 26/08/1948 Slavka LATKOSKA born on 03/02/1950   All applicants live in Ohrid and are represented by Mr S. Risteski, a lawyer practising in Skopje.   Application no. 54726/08   Dragan GUGOSKI born on 15/06/1954 Duško GUGOSKI born on 04/10/1953 Liljana MOSTROVA born on 08/11/1955 Pirinka PALOSKA born on 24/03/1953   All applicants live in Ohrid and are represented by Mr F. Medarski, a lawyer practising in Skopje.