I correctly predicted that there's no violation of human rights in TOLEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA".
Information
- Judgment date: 2017-06-15
- Communication date: 2013-05-24
- Application number(s): 17800/10
- Country: MKD
- Relevant ECHR article(s): 6, 6-1, P1-1
- Conclusion:
No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) - Result: No violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.728217
- Prediction: No violation
Consistent
Legend
Communication text used for prediction
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 restitution 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 of 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 of 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 Ohrid 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 legal 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.
Judgment
FIRST SECTIONCASE OF TOLESKI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA
(Application no. 17800/10)
JUDGMENT
STRASBOURG
15 June 2017
This judgment is final but it may be subject to editorial revision. In the case of Toleski 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, Section Deputy Registrar,
Having deliberated in private on 23 May 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 17800/10) 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 a Macedonian national, Mr Gorgi Toleski (“the applicant”), on 26 March 2010. 2. The applicant was represented by Mr V. Pocevski, a lawyer practising in Skopje. The Macedonian Government (“the Government”) were represented by their Agent, Mr. K. Bogdanov. 3. On 21 November 2013 the Registry received notification that the applicant had died on 23 August 2013. On 10 April 2014 the applicant’s son and daughter, Mr Goce Toleski and Ms Dinela Stankovska, expressed their wish to pursue the proceedings before the Court in their capacity as the applicant’s heirs and designated the same counsel to represent them. For practical reasons, Mr Gorgi Toleski will continue to be called “the applicant” in this judgment. 4. The applicant alleged that the extraordinary quashing of a final restitution order rendered in his favour had contravened the principle of legal certainty and unlawfully interfered with his property rights. He relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. 5. On 24 May 2013 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Restitution proceedings
6. On 9 March 1966 the Municipality of Ohrid appropriated from several individuals the right of use of nationalised building land (одземање од понатамошно користење на градежно национализирано земјиште) located in an area E. The land in question included a plot owned by the applicant’s legal predecessor, measuring 764 sq. m.
7. By a final decision of 1 November 2001, the applicant was declared heir of the right to claim restitution of the land. On 10 October 2002 he requested its restitution. 8. On 1 September 2003 the Ohrid Restitution Commission, operating within the Ministry of Finance (Министерство за финансии на Република Македонија - Комисија за Денационализација со седиште во Охрид – “the Restitution Commission”), accepted the applicant’s request and ordered the restitution of the land (“the restitution decision”). On the basis of documentary evidence of 30 May 2002 obtained from the Ministry of Transport and Communications (Министерство за Транспорт и Врски), the Restitution Commission found that no structures of public interest, but rather “beach service facilities and a leisure centre” (сервис објекти за плажа и центар за забава), were planned to be constructed on the plot in question. An expert had carried out an on-site inspection and had established that the land in question had been undeveloped building land and was part of the Ohrid lakeshore strip (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 as to whether any compensation had been paid to the applicant’s predecessor for the appropriated land. By a letter of 26 August 2003 the Municipality of Ohrid confirmed that neither the applicant nor his predecessor had sought compensation for the appropriated land. 9. A copy of the decision was served on the Solicitor General (Јавен Правобранител) but it appears that no appeal was lodged against the decision. Accordingly, it became final on 29 October 2003. 10. On 9 April 2004 the land was restored to the applicant’s possession (предавање во владение). The minutes drawn by the Restitution Commission stated that, although properly summoned, the Solicitor General did not attend the Commission’s meeting. B. Proceedings for nullity
11. On an unspecified date, A., an association that ran a campsite near the plot in question (“the association”), submitted documentation to the Solicitor General that the plot in question was developed building land and was in use by the campsite. It submitted minutes of a meeting between the association and municipal representatives of 26 April 1978 which showed that the plot in question had been transferred to the association’s possession. As stipulated in the minutes, the plot in question had been given to the association for its use even earlier, on 9 March 1966. The association also submitted a decision from 1981 in which the Municipality was ordered to pay compensation to the applicant’s predecessor for the plot. 12. On an unspecified date in 2004 the Solicitor General requested that the Appeal Commission of the Government, acting as a second-instance body (Комисија на Влада на Република Македонија за решавање во управна постапка во втор степен од областа на денационализацијата – the Appeal Commission), either annul (поништи), declare null and void (огласи за ништовно) or quash through a supervisory-review procedure (укине по право на надзор) the restitution decision of 1 September 2003. The Solicitor General argued that the association had submitted documentary evidence that contradicted the facts established by the Restitution Commission in that the land had been in use by the association and that compensation had been paid to the applicant’s predecessor. That evidence had not previously been submitted to the Restitution Commission. 13. In his reply of 24 September 2004, the applicant submitted that the Solicitor General could not rely on errors of fact as grounds for supervisory review of the final restitution order. He further denied that any compensation had been paid to his predecessor or him. 14. 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 space between Lake Ohrid and the Ohrid-St Naum road” and “it was not used for the servicing of any surrounding structures” (не е во функција на околни објекти). It determined that the land was intended for the construction of “beach service facilities and a leisure centre”, which could not be considered as being of public interest. Accordingly, possession of it could be restored (може да биде предмет на реално враќање). 15. On 11 June 2007 the Appeal Commission accepted the Solicitor General’s request and declared the restitution order null and void finding that, pursuant to section 267(1)(3) of the Administrative Procedure Act (see paragraph 48 below), it could not be enforced. Relying on section 8 of the Restitution Act, the Appeal Commission stated that:
“From all admitted evidence in the proceedings it can be established that the undeveloped building land was appropriated from the [applicant’s] predecessor, that compensation was paid to the latter, and that the land in question is developed building land with playing fields and other leisure and recreational facilities, which are an integral part of camp E.
The [Appeal Commission] established that in the present case the final restitution order was based on a wrong application of the law, which was preceded by erroneous and incomplete establishment of the facts.”
16. On 14 August 2007 the applicant lodged an administrative action, 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 of Finance’s report of 16 March 2005 (see paragraph 14 above) and another on-site report of 13 July 2007 drawn up for the purpose of an “action for disturbance of possession” in which it had been confirmed that the land had been vacant – a fact that had been established by Bitola Court of Appeal in an earlier civil dispute between him and the association (see paragraph 33 below). 17. On 4 September 2009 the Administrative Court (Управен Суд) – which had meanwhile become competent to decide on administrative actions – dismissed the applicant’s action and held that the annulment order of the Appeal Commission had been lawful. It referred to section 267 of the General Administrative Proceedings Act, sections 8(1) and 10 of the Restitution Act, sections 1 and 2 of the Protection of Lakes Ohrid, Prespa and Dojran Act, as well as sections 2, 69(4) and 70 of the Waters Act (see paragraphs 39, 40, and 42-44 below) and relied on the fact that the land in question was part of the shoreline. The relevant part of the judgment reads as follows:
“In the court’s opinion, in deciding the present case, the [Appeal Commission] acted correctly when it declared null and void the final restitution order, in accordance with section 267(1)(3) of the Administrative Proceedings Act, under which a decision whose enforcement is not possible shall be declared null and void. In relation to this, the court emphasises that this provision does not concern only the factual, but also the legal impossibility of enforcement ...
... In view of the above-cited statutory provisions, it is undisputed that Lake Ohrid and its shore are ... of general interest (добро од општ интерес), which is relevant, in the court’s view, for the restitution proceedings, within the meaning of the Restitution Act. ...”
18. On 25 February 2010 the Supreme Court (Врховен суд на Република Македонија) declared inadmissible an appeal against the Administrative Court’s judgment lodged by the applicant. The Supreme Court held that the impugned judgment had predated 25 September 2009, the day when it had become competent to decide administrative actions in the second instance. C. Requests for reopening of the proceedings and for protection of legality
19. On 31 May 2010 the Administrative Court rejected the applicant’s request for reopening of the proceedings on the basis of newly discovered facts. That decision was confirmed on appeal by the Supreme Court in a decision of 23 June 2010. 20. On 19 July 2010 the applicant applied to the public prosecutor (Јавен Обвинител на Република Македонија) seeking that protection of legality proceedings (Барање за заштита на законитост) be instituted regarding the judgment of the Administrative Court of 4 September 2009, as well as regarding the rejection of his request for the reopening of the proceedings. It appears that the public prosecutor accepted the applicant’s application and lodged an application for the protection of legality with the Supreme Court, which the latter rejected as inadmissible on the grounds that the remedy in question was no longer available due to change in legislation. D. Resumed restitution proceedings
21. Following the final decision to declare the restitution decision null and void, on 13 April 2011 the Restitution Commission dismissed the applicant’s request. 22. On 16 June 2011, the applicant lodged an administrative action with the Administrative Court, challenging that decision. 23. On 1 February 2012, the Administrative Court quashed the decision. It found that the facts of the case relating to whether the plot was developed building land or not, as well as the issue of whether the applicant had received compensation, had not been sufficiently well-established. 24. On 25 May 2012 the Restitution Commission, after having made a fresh on-site inspection, upheld the applicant’s restitution request. 25. On 7 June 2012 the Solicitor General, acting on behalf of the State, challenged the latter decision with an administrative action, arguing that the Restitution Commission had failed to obtain information as to whether the land was of public interest owing to its situation on the Ohrid lakeshore. 26. On 10 July 2013 the Administrative Court dismissed the Solicitor General’s action and upheld the decision of the Restitution Commission. 27. On 25 July 2013 the Solicitor General lodged an appeal against the latter judgment with the Higher Administrative Court (Виш Управен Суд). The reasons stated in the appeal were, inter alia, that the Administrative Court had not given appropriate reasons as to whether the land had been of public interest. 28. The applicant died on 23 August 2013. 29. On 26 June 2014 the Higher Administrative Court quashed the judgment and remitted the proceedings. Relying on sections 6, 131 and 132 of the Waters Act, it found that the land in question was part of the Ohrid lakeshore strip and therefore was of public interest. 30. On 30 July 2014 D.S., the applicant’s daughter, asked the Restitution Commission to stay the proceedings. She submitted evidence that inheritance proceedings regarding the legacy of the applicant had been opened. The inheritance proceedings were later stayed due to civil proceedings in which she challenged the alleged existence of a will made by the applicant in favour of G.T., her brother. 31. On 22 September 2014 the Restitution Commission decided to stay the proceedings pending the outcome of the civil and the inheritance proceedings. 32. It appears that the civil and the inheritance proceedings are still pending. E. Other relevant information
33. In a separate set of proceedings concerning the same plot of land on 17 September 2009 the Bitola Court of Appeal overturned the lower court’s decision and finally upheld the applicant’s action for protection from disturbance of possession (смеќавање на владение) against the association which ran the camp regarding the same plot of land. It ordered the association to refrain from further disturbances. 34. According to a document from the Land Registry dated 3 September 2010, the historical records of the plot of land show that the association was granted use of the plot as of 9 March 1966. The State had at the time remained the owner of the plot, which continued to be the case until the day the document was issued. 35. On 30 August and 4 November 2010, and 30 March and 10 August 2011 the applicant made additional submissions to the Court, including evidence, which were added to the case file. This evidence refers to other neighbouring plots of land which, according to the applicant, had been returned to the possession of their respective owners. According to him, it had never been argued by the State that these neighbouring plots had been of public interest. In support he submitted several decisions from several different sets of restitution proceedings. It cannot be ascertained whether any of those proceedings ended finally in the respective plaintiffs’ favour. II. RELEVANT DOMESTIC LAW
A. Restitution Act, consolidated version of 2000 (Закон за денационализација (пречистен текст), Official Gazette no.43/2000)
36. Section 8, paragraph 1 of the Restitution Act provided that confiscated property for which compensation has been paid cannot be the subject of restitution. Under section 8(2), in exceptional cases, property for which compensation had been paid could be restored. The claimant was obliged to return the compensation received, in an amount and in proceedings regulated by a Government decree. 37. Under section 10, compensation (instead of returning to possession) was awarded in respect of property: 1) that was in public use (добра во општа употреба) (public squares, streets, highways, parks, public roads and other communal infrastructure); 2) that served the security and defence of the State; 3) that was undeveloped and intended for the construction under subsections 1 and 2 above; and 4) that was used for purposes of public interest (вршење на дејности во јавен интерес) specified by law. 38. Under section 63, interested persons (заинтересирани лица) could assert their rights in respect of successful restitution claimants by way of a civil action before courts of general competence within five years of the restitution order becoming final. B. Protection of Lakes Ohrid, Prespa and Dojran Act (Закон за заштита на Охридското, Дојранското и Преспанското езеро, Official Gazette nos. 45/77, 8/80, 51/88, 10/90 and 62/93)
39. Pursuant to section 1 of this Act, the lakes, their water and lakeshores (крајбрежја), due to their specific characteristics, natural beauty, scientific and other importance, were declared places of natural heritage of particular importance for society (споменици на природата од особено значење за општествената заедница) and enjoyed special protection accordingly. 40. Section 2 provided that lakes were of public interest and for use by the public and individuals, unless otherwise specified by law. C. Waters Act (Закон за водите, Official Gazette nos. 4/1998, 19/2000, 42/2005 and 46/2006)
41. Pursuant to section 2 of the Waters Act, as valid at the material time, lakes were of public interest (добра од општ интерес), they enjoyed special protection and were State-owned. 42. Pursuant to section 6 of the Waters Act, all bodies of water are the property of the State and they enjoy special protection. 43. Under section 131(4), a lakeshore (крајбрежен појас на езеро) comprises the area from the lake to fifty meters from the highest tideline. 44. Section 132 provided that the access to a lakeshore was free and that the use of land and construction of objects at lakeshores was subject to local (municipal) regulation. D. Ownership and Other Property Rights Act (Закон за сопственост и други стварни права, Official Gazette nos. 18/2001, 92/2008, 139/2009 and 35/2010)
45. Section 16(2) of the Act provides that the State, as well as physical and legal persons, can have title to property of public interest. 46. Pursuant to section 16(4), property in public use (ствари во опшшта употреба) is State-owned and can be used by all physical and legal persons. 47. Sections 16(6) and 16(7) provide that property of public interest enjoys special protection and its use can be subject to restrictions specified by law. Property of public interest owned by the State can be given for use to physical and legal persons (by means of a concession) under conditions specified by law. E. Administrative Proceedings Act 2005 (Закон за општата управна постапка, Official Gazette nos. 38/2005 and 110/2008)
48. Section 267(1)(3) of the Administrative Proceedings Act provided that a decision could be declared null and void if its enforcement was impossible. 49. 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 automatically. Partial and full nullity could be ordered. F. Administrative Disputes Act, 2006 (Закон за управните спорови, Official Gazette no. 62/2006)
50. Under section 37 of the Act, the Administrative Court is not bound by the reasons contained in an administrative action. It reviews on its own motion the nullity of an administrative decision. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
51. The applicant complained that he had been deprived of his property in breach of the principle of legal certainty. He relied on Article 1 of Protocol No. 1 to the Convention 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.”
52. The Court takes note of the applicant’s death and the fact that his children Mr Goce Toleski and Ms Dinela Stankovska have expressed their wish to continue the application before this Court. 53. The Court notes that in several cases in which the applicant died after having lodged an application, it has taken into account the intention of the applicant’s heirs or close members of his or her family to pursue the proceedings (Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014. In this connection, the Court notes that the inheritance proceedings and the related civil proceedings are currently pending between the applicant’s children, as his heirs, in order to determine their inheritance shares (see paragraphs 30-32 above). In these circumstances, it cannot be denied that the applicant’s children have a legitimate interest in having the applicant’s case pursued before the Court (compare Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII,). 54. For the reasons stated above, the Court finds that Mr Toleski and Ms Stankoska have standing to continue the proceedings in the applicant’s stead. A. Admissibility
1. The parties’ arguments
55. The Government submitted that the applicant had not informed the Court about the resumed restitution proceedings which were pending. The decisions issued in the resumed restitution proceedings were in the applicant’s favour. The Court should therefore declare the application inadmissible or strike it out of its list of cases either as premature or because the applicant had abused his right of petition. 56. The applicant submitted in reply that his application concerned only the proceedings which had ended with the judgment of the Administrative Court of 4 September 2009 (see paragraph 17 above). The resumed restitution proceedings referred to by the Government could not be taken into consideration as they had been initiated after the application had been lodged with the Court. Had he not lodged an application after the annulment order had become final, he would have missed the six-month time-limit. 2. The Court’s assessment
57. The Court reiterates that incomplete and therefore misleading information may amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, §§ 35 - 37, ECHR 2014; see also, Lukarev v. the former Yugoslav Republic of Macedonia (dec.), no. 3172/07, 15 January 2013). 58. Turning to the present case, the Court notes that the applicant’s complaints concerned the quashing of the final restitution order. The issue in the present case is whether the principle of legal certainty was infringed as a result of the quashing of the final restitution order, which is, according to the Court’s case-law, an instantaneous act and did not create a continuing situation, even if it entailed a reopening of the proceedings (see Klimenko and Ostapenko v. Russia, nos. 30709/03 and 30727/03, § 24, 23 July 2009). 59. In this connection the applicant submitted all necessary information regarding the proceedings in which the final restitution order had been quashed. The Court therefore considers that the failure of the applicant to inform it of the resumed restitution proceedings is not decisive. It cannot thus be interpreted as an abuse of the right of application. Accordingly, the Government’s objection must thus be rejected. 60. Similar considerations apply to the Government’s argument that the applicant’s complaint was premature. In this connection, the Court notes that it has found that even in situations when the applicants’ claims were upheld after a final judgment in their favour had been quashed, that fact did not by itself efface the effects of legal uncertainty they had had to endure (see Roseltrans v. Russia, no. 60974/00, § 27, 21 July 2005, and Zasurtsev v. Russia, no. 67051/01, § 51, 27 April 2006). Lastly, the Court considers it irrelevant that some of the decisions adopted in the resumed restitution proceedings were to the applicant’s advantage given that those proceedings have not been finally concluded. In these circumstances, the Government’s objection that the complaint is premature should also be dismissed. 61. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
(a) The applicant
62. The applicant stated that there had been no public interest pursued by the domestic authorities, given that camp E. had been entirely privately owned. Following this, the decision to annul a final decision in his favour had only served the interests of the association. The land in question had been in his possession all along, a fact supported by the findings of Bitola Court of Appeal in a separate set of proceedings (see paragraph 33 above). 63. The quashing of the final restitution order under the provisions provided in domestic law meant that proceedings could always be reopened, which introduced permanent uncertainty into the legal system. (b) The Government
64. The Government submitted that the domestic authorities had acted in accordance with domestic law, especially the Administrative Proceedings Act and the Restitution Act. 65. They further submitted that the impugned actions (the annulment order) had served a legitimate aim (namely the public interest and the interests of third parties). 2. The Court’s assessment
(a) General Principles
66. The Court reiterates that as a general rule, the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that the States have the right to control the use of property by enforcing “laws” (see, among other authorities, Moskal v. Poland, no. 10373/05, § 49-52, 15 September 2009). 67. The Court reiterates that the existence of a claim confirmed by a binding and enforceable judgment or an administrative decision furnishes the beneficiary with a “legitimate expectation” that the claim will be enforced, and constitutes the beneficiary’s “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing such a judgment or decision amounts to an interference with his or her right to peaceful enjoyment of possessions. The requisite “fair balance” will not be struck where the person concerned bears an individual and excessive burden (see, for example, Vikentijevik v. the former Yugoslav Republic of Macedonia, no. 50179/07, § 59, 6 February 2014, with further references). 68. Moreover, the principle of “good governance” requires that where an issue in the general interest is at stake it is incumbent on the public authorities to act in good time, in an appropriate manner and with utmost consistency (see Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000‐I). (b) Application of the Convention principles to the instant case
(i) Whether the applicant had a possession
69. In the present case, the Court observes that on 1 September 2003 the Restitution Commission upheld the applicant’s restitution request and this decision became final on 29 October 2003 (see paragraphs 8 and 9 above). The applicant’s property right was therefore generated by the favourable evaluation of his restitution request by the Restitution Commission in that he was provided with an enforceable claim to title to the plot of land, which was later enforced (see paragraph 10 above). The mere fact that his property rights were later revoked does not prevent them from being a “possession” within the meaning of Article 1 of Protocol No. 1 (see Vikentijevik, cited above, § 60). 70. Accordingly, in the Court’s view, that right constituted a “possession” within the meaning of Article 1 of Protocol No. 1. (ii) Whether there has been an interference with the applicant’s possessions
71. There is no dispute between the parties that the decision of the Appeal Commission of 11 June 2007, upheld by the Administrative Court, which divested the applicant of title to the plot of land amounted to an interference with his possessions within the meaning of Article 1 of Protocol No. 1. The Court sees no reason to hold otherwise (compare Vikentijevik, cited above, § 61). (iii) Lawfulness of the interference
72. The Court observes that the extraordinary proceedings that led to the quashing of the restitution decision were initiated under section 267(1)(3) and section 268 of the Administrative Proceedings Act (see paragraphs 48 and 49 above) by the Solicitor General, who had been a party to the restitution proceedings (see paragraph 9 above). The intervention of the Solicitor General can be considered to have been taken in the light of his or her right and duty to protect the proprietary rights and interests of the State. The quashing of the decision was based on section 267(1)(3) of the Administrative Proceedings Act, which provided that a final administrative decision could be set aside if it was impossible to enforce. It is therefore not in doubt that the measure complained of was based on valid statutory provisions. 73. The Court, noting that its power to review compliance with domestic law is limited (see, among other authorities, Allan Jacobsson v. Sweden (no. 1), 25 October 1989, Series A no. 163, p. 17, § 57), accepts that the proceedings in the applicant’s case had been reopened as a consequence of the discovery of a mistake in the original assessment of the applicant’s request for restitution, which made the enforcement of the first restitution decision impossible and thus liable to a revision as required under the relevant domestic law. 74. The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicant’s property rights was provided for by law, as required by Article 1 of Protocol No. 1. (iv) Legitimate aim
75. The Court reiterates that the national authorities, because of their direct knowledge of society and its needs, are in principle better placed than an international court to appreciate what is “in the public interest”. Under the system of protection established by the Convention, it is thus for the national authorities to make the initial assessment as to the existence of a problem of public concern warranting measures of deprivation of property. Here, as in other fields to which the safeguards of the Convention extend, the national authorities accordingly enjoy a certain margin of appreciation. The Court will respect the judgment of the national authorities as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation (see, among other authorities, Vikentijevik, cited above, § 68). 76. The Court accepts that the aim of the interference in question was to correct errors on the part of the Restitution Commission, which adopted an allegedly erroneous restitution decision. Those errors, as argued by the Government, affected the rights and interests of the State, as well as the interests of third parties, namely the association. 77. Moreover, having regard to the reasons given by the domestic courts, the Court considers accepts that the applicant was divested of his property “in the public interest”. It observes that it was common ground that the land in issue was on the shore and formed part of the beach, a public area open to all. The interference in question therefore pursued a legitimate aim (see, for instance, N.A. and Others v. Turkey, no. 37451/97, § 40, ECHR 2005‐X). (v) Proportionality
78. The Court must next examine whether the interference with the peaceful enjoyment of possessions strikes a fair balance between the demands of the general interest of the public and the requirements of the protection of the individual’s fundamental rights, or whether it imposes a disproportionate and excessive burden on the applicant (see Moskal, cited above, § 64, with further references). 79. In the circumstances of the instant case the Court firstly notes that once the association drew the attention of the Solicitor General to the possible violations of its property rights, the authorities acted without undue delay (see paragraphs 11-15 above). Furthermore, it is to be noted that the Solicitor General initially acted upon the request of the association, which had not been a party to the restitution proceedings, and in his request he relied on new evidence provided by the association (see paragraphs 11-12 above). In view of the fact that the interests of third parties can be an important consideration when deciding on the reopening of proceedings which have become final, the Court considers it important that the acceptance of the Solicitor General’s request by the Appeal Commission and the quashing of the final restitution decision was aimed at the protection of the rights of third parties (compare Protsenko v. Russia, no. 13151/04, §§ 32 and 33, 31 July 2008). 80. The Court further observes that the reasons provided by the Administrative Court (see paragraph 17 above) differ from those raised by the Solicitor General and accepted by the Appeal Commission. Acting on the notice of the association, the Solicitor General argued that the land should not have been restored to the applicant’s possession since it had been developed building land and the applicant’s predecessor had obtained compensation (see paragraph 12 above). The applicant’s observations submitted in reply did not go beyond these grounds (see paragraph 13 above). The Administrative Court, on the other hand, found that there was a legal obstacle to the enforcement of the restitution order, given that the land in question was situated on the lakeshore and it was to be considered, accordingly to be “of general interest” (see paragraph 17 above). Such property, as provided by section 10 of the Restitution Act, cannot be restored into possession but compensation should be awarded (see paragraph 37 above). 81. It is therefore clear that the Administrative Court exercised its power of review in order to correct the fundamental defect made by the Restitution Commission, which made a restitution order that could not be legally enforced as it was contrary to the provisions of the Protection of Lakes Ohrid, Prespa and Dojran Act and the Waters Act. In so doing the Administrative Court advanced reasons of a substantial and compelling character that justify the extraordinary quashing of the final restitution order (compare Vikentijevik, cited above, § 72). 82. For these reasons the Court is prepared to accept that the circumstances referred to by the Restitution Commission and the Administrative Court, although different, were both in their nature and significance such as to justify the quashing of the final restitution order. 83. Having said that, the Court observes that the deficiencies noted by the review bodies could have been prevented had the Solicitor General’s Office properly intervened before the Restitution Commission and availed itself of the available remedies in the ordinary restitution proceedings. The reasons for its inactivity remain unclear. However, the Court is of the opinion that the “manifest omission” of the Solicitor General in the ordinary restitution proceedings cannot be interpreted, in the present case, as a bar to the impugned intervention, the aim of which was to correct fundamental errors. To consider otherwise would be contrary to the principle of the proper administration of justice. Given the particular circumstances of the case, the Court is not convinced that the errors of the Restitution Commission could be neutralised or corrected by any other means than those applied therein (compare Vikentijevik, cited above, § 74). 84. The Court further considers that the implications of the quashing of the restitution order are not without relevance in the present case. In this connection it notes that on the basis of the errors specified above, the case was returned to the Restitution Commission for a fresh examination and, following further developments in the case, the restitution proceedings have been pending before that body since 2014, when the applicant’s heirs initiated inheritance proceedings. These proceedings were also stayed because the applicant’s heirs were instructed to initiate separate civil proceedings in order to establish their respective shares in their late father’s inheritance (see paragraphs 30-32 above). The applicant’s heirs may therefore either recover possession of parts of the property and/or, if appropriate, obtain monetary compensation following the termination of the resumed restitution proceedings. 85. In view of the foregoing considerations, the Court finds that the extraordinary quashing of the restitution order did not amount in the present case to an unjustified interference with the applicant’s property rights. 86. There has therefore been no violation of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
87. The applicant also complained that the State’s reopening of the restitution proceedings, which had resulted in the quashing of the final decision granting him title to the plot of land, was in breach of Article 6 § 1 of the Convention. Article 6 § 1 of the Convention in its relevant part reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
88. The Government maintained that the reopening had been done in accordance with domestic law. 89. The Court considers that the principle of legal certainty applies to a final legal situation, irrespective of whether it was brought about by a judicial act or an administrative act which, on the face of it, is final in its effects (see Moskal, cited above, § 82). 90. It follows that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 91. However, having regard to the reasons which led the Court not to find a violation of Article 1 of Protocol No. 1 to the Convention, the Court finds that the applicant’s complaint under Article 6 regarding the principle of legal certainty of the Convention does not require a separate examination (see, for instance, Iwaszkiewicz v. Poland, no. 30614/06, § 70, 26 July 2011). III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
92. Lastly, the applicant raised a number of complaints under Articles 6 and 13 of the Convention. 93. The Court has examined these complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 94. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the applicant’s complaints under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention of a violation of the principle of legal certainty and deprivation of property admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 1 of Protocol No. 1 to the Convention;
3. Holds that it is not necessary to examine separately the complaint under Article 6 of the Convention. Done in English, and notified in writing on 15 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Renata DegenerAleš PejchalDeputy RegistrarPresident