THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13191/02 by Cvetan TRAJKOSKI and Others against the former Yugoslav Republic of Macedonia

The European Court of Human Rights (Third Section), sitting on 1 December 2005 as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr C. Bîrsan , Mrs M. Tsatsa-Nikolovska , Mrs R. Jaeger , Mr E. Myjer , Mr David Thór Björgvinsson, judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 26 September 2001 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Cvetan Trajkoski (“the first applicant”), Mr Nikola Trajkoski, Mrs Snez a na Trajkoska, Mr Igorče Simonoski, Mrs Ratka Simonoska and Mr Cvetan Simonoski, are Macedonian nationals who live in Prilep . They are represented before the Court by a lawyer practising in Prilep, the former Yugoslav Republic of Macedonia .

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

In a number of administrative proceedings, the applicants challenged the lawfulness of the administrative decisions concerning the construction and operation of a petrol station that was located a few metres from their homes.

They also brought criminal charges against the state officials who took the relevant decisions; against the manager of the petrol station and against police officers for alleged ill-treatment inflicted over the first applicant. Each of the criminal complaints was rejected by the Public prosecutor and subsequently dismissed by the court.

The applicants also applied to the Constitutional Court challenging the constitutionality and legality of the urban master plan of the city of Prilep .

A. Administrative proceedings

1. Administrative proceedings concerning the operating licence

On 27 July 1998 the Ministry of Urbanism and Construction granted Mr A.G. a permit containing the conditions for construction of a petrol station. On 25 February 1999 the Ministry issued him a construction permit. As he had not complied with these conditions when constructing the petrol station, on 23 July 1999 the Ministry issued a decision by which it endorsed the relocation of the station.

On 10 February 2000 the said Ministry issued Mr A.G. with an operating licence.

On 3 March 2000 the Ministry rejected the applicants ’ complaint as inadmissible. It found that the applicants were not entitled to appeal the decision as the Law on Construction ( Закон за изградба на инвестициони објекти ) did not entitle any other parties, except for investor and the company responsible for the construction, to intervene as parties concerned.

On 8 May 2001 the Government ’ s Appeal Commission (“Appeal Commission”) dismissed the applicants ’ appeal and upheld the Ministry ’ s decision.

On 19 September 2002 the Supreme Court (with two separate decisions taken consecutively) declared the Appeal Commission ’ s decisions null and void and remitted the case for re-examination. It found that the applicants ’ houses were located close to the petrol station and that the applicants could not be denied the right to appeal administrative decisions which concerned their rights and interests.

On 9 May 2003 the Government ’ s Appeal Commission, following the Supreme Court ’ s instructions, set aside the operating licence. The applicants did not provide any information whether the operating licence was re-issued, but it appears that the petrol station continued to operate.

2. Administrative proceedings concerning the re-opening of the proceedings against the Ministry ’ s endorsement of the on-site changes in the construction of the petrol station

On 20 August and 15 December 1999 the applicants requested re-opening of the administrative proceedings against the Ministry ’ s decision of 23 July 1999 by which it had approved the on-site changes made during the construction of the petrol station and modified the construction permits of 1998 and 1999, respectively.

On 3 February 2000 the respondent Ministry dismissed the requests due to insufficient evidence of any basis to alter the decision.

On 8 May 2001 the Appeal Commission dismissed the applicants ’ complaints as they were not parties to the administrative proceedings in which the impugned decision was taken. Moreover, the Commission found that they could have protected their rights in the proceedings concerning the adoption of the urban master plan.

On 3 October 2002 the Supreme Court annulled the Appeal Commission ’ s decision. It found that the applicants ’ houses adjoined the petrol station in question and that, for this reason, the applicants could be considered as parties concerned. The court established that the impugned decision was taken contrary to the statutory provisions and that the applicants should have been given access to the proceedings as they pertained to the approval of the petrol station ’ s relocation to the applicants ’ detriment. Therefore, the court found the applicants ’ request for the re-opening of the proceedings well-founded.

On 9 May 2003 the Appeal Commission annulled the Ministry ’ s decision of 3 February 2000 and remitted the case for re-examination.

As the administrative bodies remained inactive, in January 2004 the applicants instituted administrative contentious proceedings before the Supreme Court to decide the case on the merits.

On 15 January 2004 the Ministry of Transport and Communications upheld and declared valid the permits of 1998 and 1999 as well as the impugned decision of July 1999 which endorsed the on-site changes concerning the relocation of the petrol station.

On 2 February 2004 the applicants appealed this decision, but the second-instance Appeal Commission remained inactive.

The applicants opened administrative contentious proceedings before the Supreme Court and asked the latter to close the petrol station as an interim measure.

3. Administrative proceedings concerning the certificate on technical compliance issued to the petrol station

On 8 March 2000 the then Ministry of Trade issued a certificate according to which the petrol station complied with the technical requirements.

On 9 October 2000 the Appeal Commission dismissed the applicants appeal as ill-founded.

On 15 November 2001 the Supreme Court declared the Appeal Commission ’ s decision null and void and remitted the case for re-examination. It found that the administrative bodies had erred when issuing the certificate, as the operating licence was not final (the proceedings upon the applicant ’ s complaints were pending).

On 28 January 2002 the applicants asked the Ministry of Economy/ the State Market Inspectorate to close the petrol station as it operated without a certificate of technical compliance.

On 19 March 2002 the Appeal Commission set aside the Ministry ’ s decision of 8 March 2000 .

On 26 March 2002 the applicants asked the Ministry of Economy/ the State Market Inspectorate to close the petrol station.

On 3 April 2002 the Ministry of Economy re-issued the certificate on technical compliance.

On 30 May 2002 the Appeal Commission set aside this decision and remitted the case for re-examination.

On 6 June 2002 the applicants asked the Ministry of Economy/ the State Market Inspectorate to close the petrol station.

On 14 June 2002 the Ministry re-issued the certificate for the third time.

On 25 September 2002 the Appeal Commission dismissed the applicants ’ appeal as ill-founded.

It appears that the applicants instituted administrative contentious proceedings before the Supreme Court challenging this decision. No further information was provided concerning these proceedings.

B. Criminal proceedings

a) The applicants brought criminal charges for “abuse of an official duty” against the State officials who had rendered or otherwise participated in the adoption of the decisions which were subsequently challenged in the administrative proceedings. In each of the criminal proceedings, after the Public Prosecutor had rejected their complaints, they took over the prosecution as subsidiary complainants. Their complaints were ultimately dismissed after they were reviewed on two levels. The Public Prosecutor refused their initiative to lodge with the Supreme Court a request for the protection of legality.

b) The applicants also instituted criminal proceedings against the manager of the petrol station for “unlawful production and trade with dangerous substances”. Their criminal complaint was ultimately dismissed after it had been reviewed on two levels of the court. The Public Prosecutor also refused to lodge with the Supreme Court a request for the protection of legality.

c) On 15 May 2001 the Public Prosecutor rejected the criminal complaint filed by the first applicant against police officers who had allegedly ill-treated him on occasion of his visit to a police station to discuss the issue of the petrol station. It found the first applicant ’ s complaint unsubstantiated.

On 22 May 2001 the first applicant lodged a subsidiary criminal complaint before the Basic Court of Prilep. He complained that he was shouted, insulted, beaten and dragged on the floor and that as a result he sustained light bodily injury and bruises. The criminal complaint was filed against one identified and four other unidentified police officers. The medical certificate indicated “no heavy bodily injury”.

On 20 June 2001 the Basic Court of Prilep asked the first applicant to provide the names of the unidentified police officers.

After he had informed the court that, inter alia , he was unable to discover the identity of the other police officers, on 2 July 2001 the Basic Court of Prilep rejected the applicant ’ s subsidiary criminal complaint on admissibility grounds, i.e. because he failed to identify the four police officers.

On 7 November 2001 the Appellate Court upheld this decision.

On 25 December 2001 the Public Prosecutor informed the applicant that there were no grounds for lodging a request for the protection of legality with the Supreme Court.

C. Proceedings before the Constitutional Court

On 20 March 2002 the Constitutional Court rejected the applicants ’ application challenging the constitutionality and legality of the Municipality ’ s Council decision adopting the urban master plan of the city of Prilep . They had argued that it did not provide measures for environmental and health protection. The court found that the decision impugned had been adopted in a procedure complying with the regulations valid at the time of its adoption.

COMPLAINTS

The applicants complain under Article 6 of the Convention about the criminal proceedings they had instituted against State officials and the manager of the petrol station. They allege that the national courts were not impartial and independent and that they decided under political pressure. Referring to the outcome of the proceedings, they argued that they could not claim damages against the State officials. They also complain about the administrative proceedings and the decision of the Constitutional Court .

They invoke Article 13 of the Convention in respect of the criminal proceedings instituted against State officials and the manager of the petrol station. They complain about ineffectiveness of the administrative proceedings as the petrol station continued to operate despite the fact that it was constructed contrary to well-established standards. They also invoked Article 13 in respect of the decision of the Constitutional Court

They complain, under Article 1 of Protocol No. 1, that they were exposed to constant noise, smell and polluting fumes from the petrol station which affected the quality of their life and deteriorated their health. They allege fears of fire and explosion.

The first applicant complains under Article 3 of the Convention that he was subjected to ill-treatment by the police officers. He alleges that he was beaten, pushed, shouted at and insulted by police officers.

THE LAW

1. The first applicant complained under Article 3 of the Convention that he was subjected to ill-treatment by the police officers at the occasion of his visit to a police station to discuss the issue of the petrol station. Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants complained under Article 6 of the Convention about the criminal proceedings they had instituted against State officials and the manager of the petrol station, and about their outcome. They allege a lack of impartiality and independence on the part of the national courts. They also complain about the administrative proceedings and the decision of the Constitutional Court . Article 6, in so far as relevant, provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Court considers the applicants ’ complaints concerning the criminal proceedings instituted against the State officials and the manager of the petrol station to be incompatible ratione materiae with the Convention as the latter does not provide for a right of prosecution of third parties. Assuming that they complain about the outcome of the proceedings, the Court recalls that such complaints are manifestly ill-founded as being of a fourth-instance nature. The Court also considers as unsubstantiated the applicants ’ allegations that the negative outcome of the criminal proceedings deprived them of the possibility to claim damages as they did not provide evidence that they had presented their claim for damages in the criminal proceedings or that they had instituted separate civil proceedings claiming damages (see a contrario Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 62 , ECHR 2002 ‑ I ) .

The applicants ’ complaints about the unfairness, the lack of impartiality and independence of the courts in the administrative and criminal proceedings are manifestly ill-founded as being clearly unsubstantiated.

The applicants ’ complaints concerning the proceedings before the Constitutional Court are manifestly ill-founded as these proceedings were not decisive for their civil rights and obligations.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicants further complained under Article 13 of the Convention that they had not had an effective remedy in respect of the decisions rendered in the criminal and administrative proceedings and by the Constitutional Court . Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

According to the Court ’ s case-law, this provision applies only where an individual has an “arguable claim” to have been the victim of a violation of a Convention right (see, among other authorities, Boyle and Rice v. the United Kingdom , judgment of 27 April 1988 , Series A no. 131, § 52).

The Court has found above that the substantive complaints are manifestly ill-founded. Therefore, the applicants did not have an “arguable claim”, and Article 13 is inapplicable to their case.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicants complained under Article 1 of Protocol No. 1 about the noise, smell and polluting fumes emitted from the petrol station which affected the quality of their life and deteriorated their health. Article 1 of Protocol No. 1 provides 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.”

I t appears that the applicants did not ask for damages against the petrol station.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

Even assuming that the applicants ’ complain t about the negative effect of the construction and the operation of the petrol station could be examined under Article 8 of the Convention protecting private and family life and the home , the Court observes that it lacks substantiation because the applicants failed to provide any (medical) evidence showing the damage they might had sustained on account of the petrol station (see, a contrario , López Ostra v. Spain , judgment of 9 December 1994 , Series A no. 303 ‑ C) .

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the first applicant ’ s complaint concerning the alleged ill-treatment by the police officers ;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič Registrar President