FIRST SECTION

Application no. 17800/10 Gorgi TOLEVSKI against the former Yugoslav Republic of Macedonia lodged on 26 March 2010

STATEMENT OF FACTS

The applicant, Mr Gorgi Tolevski, is a Macedonian national, who was born in 1944 and lives in Village of Peštani. He is represented before the Court by Mr V. Pocevski, a lawyer practising in Skopje.

A. The circumstances of the case

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

1. Restitution proceedings

On 9 March 1966 the then Municipality of Ohrid (“the Municipality”) appropriated from several individuals the right of use of a nationalised construction land ( одземање од понатамошно користење на градежно национализирано земјиште ) located in an area E. The land in question included a parcel owned by the applicant ’ s predecessor, which was a farmland ( нива ) (“the land”). The purpose of the seizure was the construction of a camping site.

With a final court decision of 1 November 2001, the applicant was declared heir of the right to claim restitution of the land. On 10 October 2002 he sought its restoration.

On 1 September 2003 the Restitution Commission within the Ministry of Finance accepted the applicant ’ s claim and ordered that the land is restored into his possession. The Restitution Commission established, on the basis of documentary evidence dated 30 May 2002 obtained from the Ministry of Transportation, that no objects of public interest, but rather supporting beach facilities and a leisure centre ( сервис објекти за плажа и центар за забава) , had been planned to be constructed on the land. An expert carried out an on-site inspection and established that the land in question had been undeveloped and was located at the Ohrid lakeshore ( крајбрежен појас на Охридското езеро ). On 4 and 9 June 2003 the State Archives and the Ohrid Court of First Instance informed the Restitution Commission that they had no information whether any compensation had been paid to the applicant ’ s predecessor for the confiscated land. Lastly, the Municipality confirmed, in a letter of 26 August 2003, that there were no proceedings in which such compensation had been awarded to the applicant. In the proceedings, the State was represented by the Solicitor General who received a copy of the restitution order. It appears that no appeal was lodged against the order. Accordingly, it became final on 29 October 2003.

As evident from a record drawn up by the Restitution Commission, on 9 April 2004 the land was restored in the applicant ’ s actual possession ( предавање во владение ).

On an unspecified date in 2004, the Solicitor General requested that the Appeal Commission of the Government (“the Government Appeal Commission”) either annul ( поништи ) the r estitution order of 1 September 2003 or declare it null and void ( огласи за ништовно ) or quash it through a supervisory review procedure ( укине по право на надзор ). The Solicitor General argued that the beneficiary of the land (a private local company that ran the camp) had submitted documentary evidence that contradicted the facts established by the Restitution Commission. According to the Solicitor General, the new evidence, which had been unknown to the Restitution Commission, confirmed that the land had been a developed construction land within the camp owned by the beneficiary. In this connection the Solicitor General relied on a report of 1978 concerning the transfer of the land into the actual possession of the beneficiary. Furthermore, it submitted a copy of a decision of the Ohrid Court o f First Instances, dated 29 May 1981, ordering the Municipality to pay compensation to the applicant ’ s predecessor for the land taken from him.

In reply, the applicant submitted that the Solicitor General could not rely on errors on the facts as a ground for extraordinary review of the final restitution order. He further denied that any compensation had been paid to his predecessor or him. In any event, the State was entitled to seek, under section 8 of the Restitution Act (see “Relevant domestic law”), reimbursement of any compensation that had been paid for the confiscated land.

On 16 March 2005 the Ministry of Finance carried out an on-site inspection and drew up a report according to which the land was vacant, it was not related to any nearby objects and accordingly could be restored into the applicant ’ s possession.

On 11 June 2007 the Government Appeal Commission accepted the Solicitor General ’ s request and declared the restitution order null and void finding that, under section 267 § 1 (3) of the Administrative Procedure Act (see “Relevant domestic law”), it could not be enforced. Relying on section 8 of the Restitution Act, the court stated that:

“all admitted evidence corroborates that undeveloped construction land was confiscated from [the applicant ’ s] predecessor and that the latter received compensation ... the land in question is a developed construction land with sport terrains and other leisure and recreational facilities, which are part of the camp E.”

On 14 August 2007 the applicant lodged with the Supreme Court an administrative-dispute claim arguing that the Restitution Commission, in its decision of 1 September 2003, had established the facts correctly. In this connection he referred to the Ministry ’ s report of 16 March 2005 (see above) and another on-site report of 13 July 2007 drawn up for the purpose of a claim for disturbance of his possession in which it had been confirmed that the land had been vacant (these proceedings ended in September 2009 by a court judgment ordering that the disturbance of the applicant ’ s possession of the land is brought to an end). The Government Appeal Commission had not relied on any evidence that the land had been developed. Furthermore, it could not be claimed that the enforcement of the restitution order had been impossible since the land had already been restored into his actual possession. The beneficiary was a private company that had not used the land in question.

The Administrative Court has meanwhile become competent to decide administrative-dispute claims. Consequently, the applicant ’ s claim was transferred to that court for consideration. On 4 September 2009 the Administrative Court dismissed the applicant ’ s claim and held that the annulment order of the Government Appeal Commission had been lawful. Relying on section 10 of the Restitution Act, section 1 of the Law on protection of the Ohrid, Prespa and Dojran Lakes, as well as sections 2, 69 and 70 of the Waters Act (see “Relevant domestic law”), the court stated that:

“In view of the above cited statutory provisions, it is undisputed that the Ohrid Lake and its shore are goods of public interest ( добро во општ интерес ), which is relevant, in the court ’ s view, for the restitution proceedings ... ”

The applicant was served with this judgment on 2 October 2009.

2. Appeal against the Administrative Court ’ s judgment of 4 September 2009

On 25 February 2010 the Supreme Court rejected the applicant ’ s appeal as inadmissible holding that the impugned judgment had pre-dated 25 September 2009, the day when it had become competent to decide in second instance regarding administrative-dispute claims.

3. Requests for re-opening and review of legality

On 31 May 2010 the Administrative Court rejected the applicant ’ s request for re-opening of the proceedings. That decision was confirmed on appeal by a decision of the Supreme Court dated 23 June 2010.

On 19 July 2010 the applicant applied to the public prosecutor seeking that it institute legality review proceedings regarding the judgment of the Administrative Court of 4 September 2009, as well as the rejection of his request for reopening of the proceedings. Apparently, the public prosecutor accepted the applicant ’ s application and lodged a legality review request with the Supreme Court, which the latter, with a decision o f 28 December 2010, rejected as inadmissible since that remedy was no longer available.

4. Other relevant information

The applicant submitted an extract from the Land Register of 26 August 2010, according to which the company had the right to use the land. It further stated that a public enterprise for pastures administered the land, which was State-owned.

He also provided extracts from O hrid town plan (24-1036/2 of 22 November 2005) and the Land Registry (29 March 2010) according to which physical persons were registered as co-owners of a neighbouring plot of land (parcel no. 1175/2) located, as the applicant ’ s land, at the Ohrid lakeshore.

According to a copy of a decision in which the Government Appeal Commission accepted an appeal by claimants who had sought restoration of plots of land confiscated with the Municipality ’ s order of 1966 ( see above). The decision concerned a similar land, which was located in the area E. The Appeal Commission remitted the case for a renewed examination and ordered the Restitution Commission to establish the facts as to whether any compensation had been paid to the claimants ’ predecessor and whether the land could be returned in the possession of the claimants (Up.br.44-2286/09 of 2 November 2009).

The applicant further submitted a copy of a judgment of the Administrative Court concerning a request for restitution of a land, which had been confiscated with the Municipality ’ s order of 1966 and located, at present, within the camp E. The court ordered remittal since it had not been established whether the land in question had been developed and whether any compensation had been paid to the claimants ’ predecessors (U ‑ 2.br.171/2010 of 2 February 2011).

No information was provided whether those proceedings have ended and what was their outcome.

B. Relevant domestic law and practice

1. Restitution Act , consolidated version of 2000 (Закон за денационализација, пречистен текст, „Службен весник на Република Македонија„ бр.43/2000)

Section 8(1) of the Restitution Act provides that confiscated property for which compensation has been paid cannot be the subject of restitution. Under subsection 2, in exceptional cases, property for which compensation has been paid can be restored. The claimant is obliged to return the compensation received, in an amount and according to a procedure regulated by a Government decree.

Under section 10 of the Restitution Act, no restoration into possession, but compensation shall be awarded in respect of a property: 1) that is in public use ( добра во општа употреба ) (public squares, streets, highways, parks, public roads and other communal infrastructure; 2) that serves the security and defence of the State; 3) that is undeveloped and intended for the construction of objects under subsections 1 and 2 above; and 4) that is used for activities of public interest ( вршење на дејности во јавен интерес ) specified by law.

Under section 63, persons concerned ( заинтересирани лица ) could assert their rights in respect of successful claimants by way of a civil action before courts of general competence within five years after the restitution order would become final.

2. Law on Protection of Ohrid, Prespa and Dojran Lakes (Official Gazette no. 45/77; 8/80; 51/88; 10/90 and 62/93)

Under section 1 of this Act, the lakes, their water and lakeshores ( крајбрежја ) are declared, due to their specific characteristics and natural beauty, their scientific and other importance, natural heritage of a particular importance for the society ( споменици на природата од особено значење за општествената заедница) and enjoy accordingly a special protection.

Section 2 of the Act provides that lakes are of public interest and used for public and individual needs unless it is otherwise specified by law.

3. Waters Act (Official Gazette no. 4/1998)

According to section 2 of the Waters Act, as valid at the material time, lakes are of public interest ( добра од општ интерес ), they enjoy special protection and are State owned.

Under section 69 (4), a lakeshore ( крајбрежен појас на езеро ) comprises the area of fifty meters of the highest tide mark.

Section 70 of the Act provides that the access to a lakeshore is free and that the use of land and construction of objects at lakeshores is subject to local (municipality) regulation.

4. Ownership and other Property Rights Act ( Закон за сопственост и други стварни права) (Official Gazette no. 18/2001; 92/2008; 139/2009 and 35/2010)

Section 16 (2) of the above Act provides that the State, as well as physical and legal persons, can have title to goods of public interest. Under subsection 4, goods in public use ( ствари во опшшта употреба ) are State owned and can be used by all physical and l egal persons. Subsections 6 and 7 provide that goods of public interest enjoy special protection and their use can be subject to restrictions specified by law. Goods of public interest owned by the State can be given for use to physical and legal persons (concession) under conditions specified by law.

5. Administrative Proceedings Act of 2005

Section 267 § 1 (3) of the Administrative Proceedings Act provided that a decision could be declared null and void if it was unenforceable.

Under section 268 §§ 1 and 2, a decision could be declared null and void at any time upon a request of a party to the proceedings, the public prosecutor and ex officio . Partial and full nullity could be ordered.

6. Administrative Disputes Act of 2006

Under section 37 of the Act, the Administrative Court is not bound with the grounds of the claim. It reviews ex officio the nullity of an administrative decision.

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 that he was deprived of the right to the peaceful enjoyment of his possessions conferred on him with the final restitution order, which has already been enforced. In ordering renewed confiscation of the land, the State exceeded its margin of appreciation. Relying on both Article 6 and Article 1 of Protocol No. 1 he also alleges that the authorities violated the principle of legal certainty.

QUESTIONS TO THE PARTIES

Was there a breach of the applicant ’ s rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, as a result of declaring the restitution order of 1 September 2003 null and void, made on the basis of an extraordinary request submitted by the Solicitor General? In particular, was the Administrative Court ’ s judgment of 4 September 2009 compatible with the principle of rule of law and legal certainty under Article 6 and Article 1 of Protocol No. 1 to the Convention (see, mutatis mutandis , Nelyubin v. Russia , no. 14502/04, §§ 28 and 29, 2 November 2006; Bočvarska v. the former Yugoslav Republic of Macedonia , no. 27865/02, 17 September 2009; Kumkin and Others v. Russia , no. 73294/01, § 35, 5 July 2007; and Radchikov v. Russia , no. 65582/01, § 48, 24 May 2007) ? Has the interference with the applicant ’ s proprietary rights, for the reasons given in the Administrative Court ’ s judgment, been necessary and justified within the meaning of Article 1 of Protocol No. 1?