FIFTH SECTION

DECISION

Application no. 60633/15 Krume STOJANOVSKI and O thers against North Macedonia

The European Court of Human Rights (Fifth Section), sitting on 3 June 2021 as a Committee composed of:

Mārtiņš Mits , President, Jovan Ilievski, Ivana Jelić , judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 3 December 2015,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants were born in 1943, 1937 and 1965 respectively and live in Skopje. The applicants were represented before the Court by Mr A. Andreevski , a lawyer practising in Skopje. A list of all the applicants is set out in the appendix.

2 . The Government of the Republic of North Macedonia (“the Government”) were represented by their Agent, Ms D. D jonova .

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

4 . On 18 February 2003 the applicants applied to the Restitution Commission claiming restitution of a plot of land that had been allegedly confiscated from K.S., their late predecessor. On 30 May 2008 the Restitution Commission dismissed their claim, holding that the applicants had failed to submit evidence that the land had been confiscated from K.S.

5 . The applicants appealed, and on 14 May 2009 the Government Appeal Commission quashed that decision and remitted the case for a fresh examination. It ordered the Restitution Commission to establish whether K.S. had been compensated for the confiscated land to which, according to the cadastral records, he had held the title.

6 . On 15 October 2010 the Restitution Commission again dismissed the restitution claim. Relying on various documents, including the confiscation decision, it found that the land in question had been owned by a certain C.V.K. and that it had never belonged to K.S.

7 . On 9 March 2011 the Administrative Court dismissed an appeal by the applicants against the above-mentioned decision. The court established that on 16 April 1959 the land in question had been seized from C.V.K. and not from the applicants ’ late predecessor. On 3 April 2013 the Higher Administrative Court upheld that judgment.

8 . In the meantime, on 3 October 2011, the applicants applied for the reopening of the restitution proceedings under section 43 of the Administrative Disputes Act (see paragraph 13 below) on the grounds of a newly discovered fact, namely a decision of 12 April 2004 that the Restitution Commission had given in another set of restitution proceedings concerning the same land. In that decision, the Restitution Commission had established that K.S. had been the owner of the land.

9 . In a judgment of 16 May 2013 the Administrative Court upheld the applicants ’ claim. It reopened the proceedings, declared the decision of 15 October 2010 (see paragraph 6 above) null and void, quashed the decision of 9 March 2011 (see paragraph 7 above) and granted their restitution claim. The Solicitor General ( Државен правобранител ) appealed against that judgment. On 29 August 2013 the Higher Administrative Court rejected the appeal by the Solicitor General as inadmissible in relation to the reopening of administrative proceedings. However, it advised of the possibility of legality review proceedings ( барање за заштита на законитоста ).

10 . The State Public Prosecutor, on a prior application by the Solicitor General, challenged the judgment of 16 May 2013 by means of a legality review request. On 29 April 2014 the plenary ( општата седница ) of the Supreme Court granted the request and remitted the case to the Higher Administrative Court for a retrial, stating, inter alia , that its decision of 16 May 2013 declaring the appeal inadmissible had violated Amendment XXI of the Constitution, which provides for the right to appeal.

11 . On 11 December 2014 the Higher Administrative Court upheld the Solicitor General ’ s appeal and dismissed the applicants ’ request for the reopening of the proceedings. Relying on section 63 of the Restitution Act (see paragraph 12 below), the court found that the rules concerning the restoration of property to its previous state ( враќање во поранешна состојба ) and the reopening of proceedings ( обнова на постапката ) were inapplicable to restitution proceedings. The court further noted that for a judgment to be regarded as constituting new evidence under section 43 of the Administrative Disputes Act (see paragraph 13 below), the lower court should have held a public hearing allowing the new evidence and facts to be presented. The applicants ’ representative received a copy of that judgment on 5 June 2015.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

12 . Section 63(1) of the Restitution Act (consolidated version, published on 22 May 2000) provided that the rules governing the restoration of property to its previous state ( враќање во поранешна состојба ) and the reopening of proceedings ( обнова на постапката ) were inapplicable to restitution proceedings.

13 . Under section 43 of the Administrative Disputes Act (Official Gazette No. 62/2006), a party to proceedings which ended with a judgment or decision could seek to have those proceedings reopened on the basis of new facts or new evidence.

14 . The Government submitted copies of four final judgments ( П1.бр.10/16; Рев2.бр.380/2017; ГЖ-704/17; ГЖ-90/12 ) delivered between April 2012 and November 2017 in which civil courts had decided on the merits in ownership claims. In all those judgments, the civil courts had decided against the respondent State and had conferred on the plaintiffs title to land confiscated under the previous regime from their predecessors . In ГЖ-704/17 the domestic courts ruled for the plaintiffs and conferred on them title to the land in question after the administrative authorities had discontinued the restitution proceedings and had advised the plaintiffs to establish title in judicial proceedings before the civil courts.

15 . The applicants submitted a copy of a first-instance court ’ s judgment of May 2009 in which that court had stated that, inter alia , before lodging a restitution claim with a civil court, plaintiffs were required to exhaust the available remedies before the administrative bodies.

COMPLAINTS

16 . The applicants complained under Article 13 of the Convention and Article 1 of Protocol No. 1 that they had been deprived of the possibility of obtaining title to the land at issue as a result of a factual error by the domestic authorities. They argued that they had had no legal means to obtain title to the land, given the refusal of the domestic authorities to reopen the restitution proceedings. The above-mentioned provisions read as follows:

Article 13

“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.”

Article 1 of Protocol No. 1

“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.”

THE LAW

17 . The Government submitted that the reopening of the proceedings could not be considered an appropriate forum for the applicants ’ grievances. In this connection they noted that the applicants could have availed themselves of a separate civil action seeking to establish title to the land. The available domestic case-law supported the effectiveness of that remedy (paragraph 14 above). In the present circumstances, the applicants had not complied with the six-month time-limit, as the request for reopening of proceedings, which was an ineffective remedy, had not suspended the running of the six-month time-limit.

18 . Alternatively, the Government submitted that the title to the land at issue could not be regarded as “assets” in respect of which the applicants had had a “legitimate expectation of obtaining effective enjoyment”. This was because there had neither been an enforceable judgment in the applicants ’ favour nor established domestic case-law corroborating the applicants ’ claim. Thus, the applicants could not claim to have had a “legitimate expectation” of obtaining title to the land.

19 . The applicants argued that their main grievance before the Court concerned the lack of an effective remedy for the reopening of restitution proceedings. Consequently, the domestic courts ’ decisions submitted by the Government were of no relevance to the present case. Under the Restitution Act, as the lex specialis , the competent bodies to deal with restitution claims were the administrative authorities and not the civil courts.

20 . The applicants further submitted that their restitution claim had met all statutory requirements, specifically that the land had been confiscated from their late predecessor K.S., a fact that had been established by the decision of 14 May 2009 (see paragraph 5 above) and, accordingly, they had had a legitimate expectation of obtaining title to that land.

21 . The general principles regarding the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention are set out in Vučković and Others v. Serbia (preliminary objection) ([GC], nos. 17153/11 and 29 others, §§ 70-77, 25 March 2014, with further references, in particular, to Akdivar and Others v. Turkey , 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV).

22 . In assessing whether an applicant has complied with Article 35 § 1, it is important to reiterate that the requirements set out in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month time-limit. It follows that if an applicant has recourse to a remedy which is doomed to failure from the outset, the decision on that remedy cannot be taken into account for the calculation of the six-month period (see Alekseyev and Others v. Russia , nos. 14988/09 and 50 others , § 12, 27 November 2018).

23 . The Court observes that the present case concerns the inability of the applicants to have their restitution claim re-examined in the light of an alleged new fact, namely that the land in question had been confiscated from their late predecessor, which had been established in an administrative decision delivered in restitution proceedings regarding different claimants (see paragraph 8 above).

24 . The Court takes note of the Government ’ s submission that a civil action seemingly under the Law on Ownership and Other Property Rights had been the appropriate remedy for the applicants ’ ownership claim in respect of the land in question. However it observes that the domestic case-law relied on by the Government concerns ownership claims submitted for judicial adjudication without restitution proceedings having been previously completed on the merits before the administrative authorities, unlike in the present case. The Court does not need to examine the Government ’ s objection on non-exhaustion of domestic remedies, because the application is in any event inadmissible for the following reasons.

25 . The Higher Administrative Court, which is best placed to interpret the provisions of domestic law, dismissed the applicants ’ request for reopening of the proceedings, finding that, under section 63 of the Restitution Act (see paragraph 12 above), as the lex specialis , such a request was inapplicable to restitution proceedings (see paragraph 11 above). The applicants neither argued that such a decision was inconsistent with established practice or was otherwise unforeseeable, nor did they provide any relevant examples of domestic practice. Having regard to its limited jurisdiction as regards the interpretation of the domestic law by the national courts (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007 ‑ I ) and the available material in its possession, the Court considers that the applicants ’ request for the reopening of the restitution proceedings did not constitute an appropriate remedy for vindicating their property rights in the light of the facts established by the Restitution Commission ’ s decision of 12 April 2004 (see paragraphs 8 and 23 above).

26 . Accordingly, the Court considers that the time taken by the reopening proceedings should not be taken into consideration for the calculation of the six-month time-limit. The complaints were therefore lodged more than six months after 3 April 2013, the date when the Higher Administrative Court finally dismissed the applicants ’ claim. As the present application was lodged with the Court on 3 December 2015, this complaint is out of the six-month time-limit and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 24 June 2021 .

Martina Keller Mārtiņš Mits Deputy Registrar President

Appendix

No.

Applicant ’ s Name

Birth year

Nationality

Place of residence

1.Krume STOJANOVSKI

1943Macedonian/ citizen of the Republic of North Macedonia

Skopje

2.Silvana JANEVSKA

1965Macedonian/ citizen of the Republic of North Macedonia

Skopje

3.Branislav JANEVSKI

1937Macedonian/ citizen of the Republic of North Macedonia

Skopje