FIRST SECTION

DECISION

Applications nos. 50589/09 and 37221/14 Aneta TESER against North Macedonia and Ilko PETROV and Aneta TESER against North Macedonia

The European Court of Human Rights (First Section), sitting on 2 July 2019 as a Committee composed of:

Aleš Pejchal , President, Tim Eicke, Raffaele Sabato, judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above applications lodged on 14 September 2009 and 12 May 2014 respectively,

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

2 . The Government of North Macedonia (“the Government”) were initially represented by their former Agent, Mr K. Bogdanov , succeeded by Ms D. Djonova .

A. The circumstances of the case

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

1. Background to the case

4 . The house in which the applicants were living at the relevant time had been constructed unlawfully in the 1960s. The plot on which the house is located is on a mountain side. At the time of the events it was owned by the State and the applicants ’ neighbour, I.F., had the right to use it ( право на користење ).

5 . In 1999 I.F. obtained a permit and constructed on his land a load bearing wall ( потпорен ѕид ) and a horizontal platform. The construction appeared to be a substantial extension rising above the applicants ’ house.

2. Administrative proceedings (application no. 50589/09)

6 . On 25 May 1999 the first applicant applied to the relevant Ministry for demolition of I.F. ’ s construction. The building inspector ordered the suspension of the construction work for non-compliance with the building permit. I.F. failed to comply, so on 28 June 1999 the Ministry issued a decision on the demolition of his construction, followed by a demolition order of 5 July 1999 (hereinafter jointly referred to as “the demolition order”).

7 . On 21 February 2000 I.F. obtained a permit for urban and reconstruction measures ( одобрение за урбани и санациони мерки ) for his construction.

8 . The demolition order remained unenforced, notwithstanding requests submitted by the first applicant in 2000 and 2006.

9 . On 17 January 2007 the first applicant lodged an application with the Administrative Court, complaining about the non-enforcement of the demolition order.

10 . On 18 May 2009 the Administrative Court dismissed that application, which it qualified as an action for protection against an unlawful activity ( барање за заштита од незаконито дејствие ) under section 56 of the Administrative Disputes Act. The court held that the cumulative statutory requirements had not been met. It found that the non ‑ enforcement of the demolition order could not be considered as an unlawful action attributable to an official and directly affecting a right for which no other judicial protection was envisaged. It further held that the non-enforcement of the demolition order did not amount, in itself, to an interference with the first applicant ’ s property rights, given that those rights could be protected before the (civil) courts of general jurisdiction, whose decisions could then be enforced in enfo rcement proceedings. On 22 June 2009 the Supreme Court upheld that decision.

3. Civil proceedings (application no. 37221/14)

11 . On 2 September 2009 the applicants initiated civil proceedings against I.F. They claimed an easement ( право на службеност ) that would enable them to reconstruct a concrete path and a load-bearing wall next to the house, on land that was in their actual possession, but which I.F. had the right to use. The applicants also asked that the court order I.F. to take measures for the elimination of a risk of damage ( отстранување на опасност од штета ), namely to improve the drainage of rainwater from his construction, to cut down some trees and to refrain from disposing waste next to their house. They contended that they had standing for those claims under sections 17 and 121 of the Ownership and other Property Rights Act (“the Property Act”) and section 143 of the Obligations Act (see paragraphs 19, 20 and 25 below), as the house and the surrounding yard were in their actual possession. They further claimed that I.F. ’ s construction had modified the terrain and allowed rainwater to drain into their house.

12 . On 27 February 2013 the Skopje Court of First Instance ( Основен суд Скопје , “the first-instance court”) dismissed the claims as ill-founded in respect of the second applicant and considered them withdrawn in respect of the first applicant on account of her unjustified absence from the hearing. Relying on a considerable body of evidence, including expert reports, the court found that the poor condition of the applicants ’ house was due to the fact that its construction did not meet the minimum standards, and that it was unsafe to live there. It indicated some measures necessary for improving the condition of the house, some of which included those proposed by the applicants. The court established that rainwater had been draining from I.F. ’ s land into the land around the applicants ’ house as a result of the natural configuration of the terrain and that I.F. ’ s construction and the existing trees on his land actually slowed down the drainage and improved the stability of the steep terrain. The court also found that some trees needed to be cut down as they were unstable.

14 . The applicants appealed against the first-instance judgment. The first applicant also complained about the decision to declare the claim withdrawn in respect of her, arguing that she and the second applicant formed a single party to the proceedings ( единствени сопарничари ).

15 . On 13 November 2013 the Skopje Court of Appeal ( Апелационен суд Скопје , “the second-instance court”) dismissed the applicants ’ appeals. It held that the applicants ’ claims regarding the modifications to I.F. ’ s construction and the removal of the trees were to be qualified as “neighbours ’ rights” entitling owners to claim protection, which was not relevant for the applicants ’ case. The court reiterated that as the house had not been built in conformity with construction standards, the applicants should have undertaken measures for its renovation. Moreover, I.F. had not objected to the applicants undertaking the necessary measures regarding the trees.

16 . As of 7 November 2013 the applicants no longer live in the house as they claim that it had been rendered uninhabitable by the damage caused by humidity.

4 . Other information

17 . By a final decision of the Higher Administrative Court of 2 June 2016 the second applicant legalised the house on the basis of the Legalisation of Unlawfully Constructed Buildings Act ( Закон за постапување со бесправно изградени објекти , Official Gazette no. 23/2011 with further amendments).

18 . In 2014 I.F. acquired title to the plot of land on which the applicants ’ house was built, on the basis of a privatisation decision ( решение за приватизација на градежно земјиште ).

B. Relevant domestic law

1. Ownership and other Property Rights Act of 2001 ( Закон за сопственост и други стварни права , Official Gazette nos. 18/2001, 92/2008, 139/2009, 35/2010)

19 . Under section 17(1) neighbours ’ rights are defined as joint and considerate exercise of property rights. They entitle the owner of a property to ask the owner of a neighbouring property to do something or to tolerate something being done on his or her property which is beneficial to the claimant.

20 . Under section 121(1) if a construction is erected without a building permit, an investor does not have title to the unlawfully erected building. Until such building is validated ( легализација ) or demolished, the investor, on the same basis as an owner, has a right to judicial protection, unless otherwise provided for by law.

21 . Section 167 provides that anyone who has control of a property can claim to have possession ( владение ) of it. Section 182(1) provides that a possessor ( владетел ) is entitled to protect his possession from interference or deprivation.

22 . Under section 184, a possessor whose possession has been unlawfully interfered with or seized is entitled to apply to a court to establish that the interference or seizure has taken place, to order reinstatement and to proscribe any such further or similar actions (claim for interference with a possession – “ тужба за заштита на владение ”). Court protection is offered in special proceedings on the basis of the last peaceful possession, regardless of the lawfulness of the possession, the conduct of the possessor and whether the interference was lawful and in the public interest.

23 . Section 195(2) provides for the easement of real property ( куќна службеност ) in respect of the right of drainage of rain and other water through a neighbour ’ s land.

24 . Under section 201 an easement is established by a decision of a court or other State authority, when the owner of the privileged property ( привилегирано добро ) cannot use his property without use of the other property ( послужно добро ).

2. Obligations Act of 2001 ( Закон за облигациони односи , Official Gazette nos. 18/2001, 78/2001, 04/2002, 05/2003, 84/2008, 81/2009)

25 . Under section 143(1) anyone can request that another person remove the source of a risk of significant damage to him or an undetermined number of people, and can ask that person to refrain from actions that cause nuisance or risk of damage, if the latter cannot be prevented by appropriate measures. Under section 143(2) the court, at the request of an interested party, will order appropriate measures to prevent any risk of damage or nuisance or to remove the source of danger, the cost being borne by the person in possession of the source of danger, if the latter does not do this of his own volition.

COMPLAINTS

26 . The applicants complained that the State had failed to protect their proprietary rights in respect of their house and that as a result, they had had to abandon it. In particular, the first applicant complained, under Article 6 § 1, Article 13 and Article 1 of Protocol No. 1, of the non-enforcement of the demolition order of 1999. Relying on Article 1 of Protocol No. 1, both applicants complained that they had not been allowed to improve the condition of their house as a result of the domestic courts ’ decisions in the civil proceedings against I.F. In comments submitted in reply to the Government ’ s observations (December 2015), the applicants complained about the privatisation decision by which I.F. had acquired title to the land (see paragraph 18 above), alleging that it had been unlawful.

THE LA W

A. Joinder of the applications

27 . Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision ( Rule 42 § 1 of the Rules of Court ) .

B. Alleged violations of Article 6 § 1, Article 13 and Article 1 of Protocol No. 1

28 . Relying on Article 6 § 1, Article 1 3 and Article 1 of Protocol No. 1, the applicants complained that the State authorities had failed to protect their proprietary rights in respect of their house and that as a result, they had had to abandon it. The Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC] , nos. 37685/10 and 22768/12 , § 126, 20 March 2018), will consider these complaints solely under Article 1 of Protocol No. 1 to the Convention. It will confine its examination to the complaints as submitted by the applicants in the application forms, and as notified to the respondent Government. It will not address the issues that the applicants raised in their comments on the Government ’ s observations (see paragraph 26 above), which are outside the scope of the case. Article 1 of Protocol No. 1 to the Convention 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.”

1. The parties ’ submissions

29 . The Government objected that the applications were incompatible ratione materiae with the Convention; the applicants had failed to exhaust domestic remedies and to comply with the six-month rule.

30 . The Government maintained that the demolition order had concerned only the part of I.F. ’ s construction which did not comply with the building permit. However, soon after that order had been issued, notably in February 2000, I.F. had obtained another permit that had effectively legalised the whole construction (see paragraph 7 above), which the applicants had failed to challenge. The time between the issuance of the order and that of the subsequent permit had been too short. Not only had it been impossible to enforce the order after 2000, but its enforcement would have imposed a disproportionate burden on I.F. They concluded that the State had provided the applicants with legal and judicial protection of their property rights. The applicants had not attempted to use any of the compensatory remedies (against the State, the local authority or I.F.) which had been available to them.

31 . The applicants contested the Government ’ s objections. They argued that I.F. ’ s construction, built very close to their house, had interfered with the peaceful enjoyment of their possession. As regards the demolition order, they maintained that it had been valid. The subsequent permit obtained by I.F. had been unlawful and of temporary validity. They argued that they had been unable to claim damages from the State, since the damage had been caused by I.F. Furthermore, in view of the findings of the domestic courts in the civil proceedings, any compensation claim against I.F. would have had no prospect of success. The State had failed to protect their house, as the domestic courts had refused to order the measures sought by them in the civil proceedings.

2. The Court ’ s assessment

32 . The Court firstly notes that at the time of the events the applicants had been living undisturbed in a house that had been built unlawfully in the 1960s, with access to water and electricity. Subsequently, the second applicant had been successful in legalising the construction of the house (see paragraph 17 above). In such circumstances, the Court considers that the applicants had sufficiently established proprietary interests in respect of the house, which was de facto acknowledged by the authorities, to constitute a substantive interest and hence a “possession” within the meaning of the rule laid down in the first sentence of Article 1 of Protocol No. 1, which provision is therefore applicable (see Öneryıldız v. Turkey ([GC], no. 48939/99, §§ 127-29, ECHR 2004 ‑ XII). It finds that it does not need to examine the remaining objections raised by the Government (see paragraph 28 above), as the applications are in any event inadmissible for the reasons stated below.

33 . The relevant general principles in respect of the State ’ s positive obligations in the context of Article 1 of Protocol No. 1 are set out in the case of Kotov v. Russia [GC], no. 54522/00, §§ 109-15, 3 April 2012 ). In particular, the nature and extent of the State ’ s positive obligations vary depending on the circumstances. When an interference with the right to peaceful enjoyment of possessions is perpetrated by a private individual, a positive obligation arises for the State to ensure in its domestic legal system that property rights are sufficiently protected by law and that adequate remedies are provided whereby the victim of an interference can seek to vindicate his rights, including, where appropriate, by claiming damages in respect of any loss sustained. It follows that the measures which the State can be required to take in such a context can be preventive or remedial. As to the remedial measures which the State can be required to provide in certain circumstances, they include an appropriate legal mechanism allowing the aggrieved party to assert its rights effectively (ibid., §§ 111 ‑ 14).

34 . Having regard to the applicants ’ complaints, the Court will examine whether the domestic law afforded the applicants effective avenues by which to protect their house, as required by the State ’ s positive obligation under Article 1 of Protocol No. 1.

35 . The Court notes that the applicants ’ house was situated on a plot of land which, at the time of the events, was owned by the State and which their immediate neighbour, I.F., had the right to use. In 1999 he erected a construction (on adjacent land in his possession) that was not compliant with the previously issued building permit. The authorities issued a demolition order, which remained unenforced (see paragraph 6 above). In 2000 the authorities issued another permit, which according to the Government, effectively legalised the whole construction and rendered the enforcement of that order impossible. In the civil proceedings against I.F., the applicants sought, inter alia , court-ordered measures which I.F. was supposed to implement on his construction, alleging that the increased drainage of rainwater had put their house at risk. The Court takes note of the domestic courts ’ ruling that the second applicant lacked standing to lodge those claims, as he was not recognised under domestic law as the owner of the house (see paragraphs 13 and 15 above). However, it gives weight to their finding (based on considerable evidence) that the condition of the house had been a consequence of its poor construction and that the drainage of rainwater from I.F. ’ s plot to the applicants ’ plot had been the result of the natural configuration of the terrain. In other words, the domestic courts found no causal link between any damage to the house and I.F. ’ s construction, as claimed by the applicants. On the contrary, they established that I.F. ’ s construction had actually slowed down the drainage of rainwater and that the trees had contributed to the stability of the terrain (see paragraph 12 above).

36 . Having regard to those findings, which do not appear arbitrary or manifestly unreasonable, and even assuming that I.F. ’ s construction had not been legalised on the basis of the 2000 permit, as claimed by the applicants, the Court concludes the applicants have not sufficiently substantiated their claim that the neighbour ’ s construction on his land had led to a loss of value of their property or that they had suffered any financial loss (see Fuchs v. Poland ( dec. ), no. 33870/96, 11 December 2001; Rupar v. Slovenia ( dec. ), no. 16480/02, § 48, 18 May 2010; and Krickl v. Austria , no. 21752/93, Commission decision of 21 May 1997, DR 89).

37 . As to the applicants ’ claim seeking to have I.F. remove the trees, the Court observes that in the course of the civil proceedings it had been established that that measure had been warranted and that I.F. had not objected to the applicants taking the necessary steps (see paragraphs 12 and 15 above). However, it appears that the applicants made no attempt to undertake those actions.

38 . Lastly, with regard to the applicants ’ claim for an easement that would have enabled them to take certain measures on the land around the house that had been in their actual possession, the Court notes that it was dismissed by the domestic courts for lack of standing, as neither party was the owner of the properties concerned (see paragraph 13 above). As it was not disputed that the land had been in the actual possession of the applicants, the Court cannot see how the applicants were prevented from undertaking the required measures. Assuming that I.F., who had the right to use the land, had opposed any construction activities being undertaken by the applicants, it would have been open to them to seek judicial protection under section 184 of the Ownership and other Property Rights Act (see paragraph 22 above). The Court was not presented with any argument as to why such a claim would have lacked prospects of success.

39 . Taking into consideration all of the above circumstances, the Court finds that in this case there is no appearance of a violation of the applicants ’ right to peaceful enjoyment of their possession as guaranteed by Article 1 of Protocol No. 1 to the Convention. It follows that these complaints are 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 join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 25 July 2019 .

Renata Degener Aleš Pejchal Deputy Registrar President

APPENDIX

No

Application No

Lodged on

Applicant

Date of birth

Place of residence

50589/09

14/09/2009

Aneta TESER

09/08/1972

Skopje

37221/14

12/05/2014

Ilko PETROV

18/08/1947

Skopje

Aneta TESER

09/08/1972

Skopje