Last Updated on May 1, 2020 by LawEuro
FIRST SECTION
CASE OF SINADINOVSKA v. NORTH MACEDONIA
(Application no. 27881/06)
JUDGMENT
STRASBOURG
16 January 2020
This judgment is final but it may be subject to editorial revision.
In the case of Sinadinovska v. North Macedonia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Tim Eicke, President,
Jovan Ilievski,
Raffaele Sabato, judges,
and Abel Campos, Section Registrar,
Having deliberated in private on 17 December 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 27881/06) against the Republic of North 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/citizen of the Republic of North Macedonia, Ms Živka Sinadinovska (“the applicant”), on 23 June 2006.
2. The applicant was represented by Mr D. Bileski a lawyer practising in Skopje. The Government of North Macedonia (“the Government”) were represented by former Agent, Mr K. Bogdanov, succeeded by Ms D. Djonova.
3. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 of a lack of reasoning and about the length of proceedings concerning property disputes with her neighbours.
4. On 23 October 2014 the Government were informed ofthe above‑mentioned complaints and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
5. The applicant was born in 1945 and lives in Tetovo. She owns a house with a commercial space (shops) (деловен простор) in its front section, located in the city centre of Tetovo. The applicant’s house on one side is next to the property of S.B. while opposite the house is the property of I.F.
6. In 1996 the applicant’s late husband (who upon his death on 6 August 2000 was succeeded by the applicant) obtained a building permit and soon after began building a commercial space which however remained unfinished. In 2000 the applicant’s late husband also obtained a renewable two-year permit to organise a temporary market and rent out stalls in the front courtyardof the house, adjacent to the shops. It appears that according to the urban plan applicable at the time, it was foreseen to widen the nearby street and remove I.F.’s temporary building. It also appears that had the urban plan been implemented, the applicant’s property would have been easily accessible from the planned street.
B. Proceedings concerning S.B.
7. In 1997 the applicant’s husband concluded a preliminary contract (преддоговор) with S.B. to sell him a shop (part of the commercial space), together with the adjacent part of the plot. On 25 January 2000 the same parties concluded a contract.The contract however remained unsigned by the applicant’s husband.
8. In June 2002 S.B. started construction on his plot, as well as on the area that, as it appears, was sold to him by the applicant’s late husband. In 2003 he completed a building.
1. Civil proceedings initiated by the applicant against S.B.(П.бр. 623/02, И.бр. 2217/02, И.бр. 789/04)
9. On 15 July 2002 the applicant initiated civil proceedings (П.бр. 623/02) against S.B. before the Tetovo Court of First Instance (“the first-instance court”) seeking protection from disturbance of her possession (смеќавање на владение). She claimed that with the construction work in progress, S.B. had unlawfully trespassed, occupied part of her plot, had demolished parts of her building and blocked accessto the electrical mains and to her electricity meter.
10. On 18 July 2002 the first-instance court issued an injunction (времена мерка) with immediate effect ordering S.B. to discontinue any further building work until the end of the proceedings.
11. As S.B. continued with the construction, on 24 July and 6 August 2002, in enforcement proceedings (И. бр.2217/02), the first-instance court ordered him to stop work. As S.B. did not follow the court orders, the court imposed two fines on him in the total amount of 60,000 denars (MKD‑approximately 970 euros (EUR)).
12. After one remittal, on 11 September 2003 the first-instance court upheld the applicant’s claim and found that with his construction activity S.B. had “disturbed the applicant’s possession”, that he had to restore her property as it hadbeen before the disturbance (враќање во поранешна состојба) and that he had to abstain from any future disturbances. The court also issued an injunction.
13. On 4 February 2004 the Skopje Court of Appeal upheld the first‑instance court’s decision in respect of the main claim and remitted it in respect of the injunction, instructing the first-instance court to establish whether the application concerned the same injunction as the one issued on 18 July 2002 (see paragraph 10 above).
14. On 12 May 2004 the applicant withdrew her application for an injunction, as the decision of 11 September 2003, concerning her main claim for disturbance of possession, had become final. On 13 May 2004 the first-instance court accepted that withdrawal.
15. On 10 March 2004 the applicant initiated enforcement proceedings (И. Бр. 789/04)against S.B. concerning the decision of 11 September 2003.
16. Following several procedural decisions by the first-instance court and remittals by the Skopje Court of Appeal, on 5 June 2012 the applicant requested that the enforcement proceedings be transferred to a private bailiff.
17. On 12 June 2012 the first-instance court rejected that request and declared the applicant’s enforcement proposal withdrawn, finding that she had not made a proposal in this connection before 31 December 2011, as required by the relevant domestic law. On 14 December 2012 the Gostivar Court of Appeal (“the Court of Appeal”) confirmed that decision
18. In the meantime, on 6 July 2009 and 18 October 2010 the applicant lodged requests for protection of the right to a hearing within a reasonable time (“length remedy”) with the Supreme Court in respect of the enforcement proceedings (И.бр. 789/04). On 12 January and 21 December2010, respectively, the Supreme Court accepted the length remedy, found that the length of the impugned proceedings (six years, six months and seven days) had been unreasonable and awarded the applicant MKD 40,000 (equivalent to EUR 650) and MKD 20,000 (equivalent to EUR 320), respectively. With the decision of 21 December 2010 it also ordered the first-instance court to complete the proceedings within three months of its decision becoming final. It appears that no appeals were lodged against those decisions. The decision of 21 December 2010 became final on 31 January 2011.
2. Administrative proceedings
19. On 15 July 2002 the relevant Inspectorate issued a decision for demolition (решение за уривање) and a demolition order (заклучок за дозвола за извршување) (hereinafter jointly referred to as “the demolition orders”) regarding the building that S.B. had constructed without a building permit. On 5 June 2003 the Inspectorate again issued a demolition order. The demolition orders were never enforced.
20. On 25 March 2003, the relevant Ministry issued a building permit to S.B. and ordered him to demolish the part of the building non-compliant with the approved technical project and the urban plan for the area. On 23 July 2003 the Government Appeal Commission allowed appeals by the applicant and S.B. and remitted the case for reconsideration, finding that the Ministry erred when it decided on S.B.’s building permit and his building’s compliance with the relevant regulation in a single decision and that it did not establish all relevant facts. On 22 March 2004, the Ministry once again issued a building permit to S.B.
21. On 23 April 2004 the Ministry issued a decision ordering S.B. to demolish the part of the building which was non-compliant with the terms of the building permit. On 30 November 2004 it issued a demolition order.
22. The applicant challenged the Ministry’s decision of 22 March 2004 in which S.B was granted a building permit. On 11 November 2004the Government Appeal Commission dismissed the applicant’s appeal. On 30 November 2005 the Supreme Court, which was at the time competent to adjudicate in administrative disputes, allowed the applicant’s administrative action and remitted the case for reconsideration finding that it was unclear whether a building permit could be issued only for one part of S.B.’s building and that it needed to be reassessed whether the permit had been issued in accordance with the valid urban plan. On 27 February 2006 the Government Appeal Commission, acting in accordance with the Supreme Court’s decision, annulled the decision and remitted the case for reconsideration.
23. In the resumed proceedings, on 12 December 2006, the Tetovo municipality (“the municipality”), which in the meantime had become competent to deal with matters of urban planning, again issued a building permit to S.B. It also noted that the non-compliant parts of his building had been sanctioned with demolition orders. The applicant challenged this decision before the Ministry and the Administrative Court. She submitted that S.B.’s building had been finished in 2002 with greater proportions than allowed and it had caused damage to her property for which she had initiated court and administrative proceedings.
24. On 7 September 2007 the Ministry and on 26 June 2008 the Administrative Court (У.бр. 4748/2007) dismissed the applicant’s complaints and confirmed the validity of the building permit. The Administrative Court held that the building permit had been lawful and that S.B. had submitted all required technical and legal documents which had been correctly assessed by the administrative authorities. The court considered that the arguments regarding the non-compliance with the terms of the building permit concerned a different subject matter and should be resolved in different proceedings. It did not comment further on the applicant’s arguments that S.B. had disturbed her possession with his construction activities.
25. On 14 June 2012 an application byS.B. for legalisation of the unlawfully constructed part of the building was granted and it was entered in the land registry.
3. Civil proceedings initiated by S.B. against the applicant (П.бр. 1387/03, П.бр. 40/15)
26. On 18 December 2003 S.B. lodged a civil claim against the applicant claiming title to the shop and part of the land which he had bought on the basis of the preliminary contract and the unsigned contract concluded with the applicant’s late husband (see paragraph 7 above). The applicant lodged a counter-claim (противтужба) claiming restitutio in integrum and pecuniary damages for damage to her property, loss of property value and loss of income from the inability to lease the terrace and her commercial space because of interference by S.B.’s building.
27. After several remittals, on 15 May 2012 the first-instance court accepted S.B.’s claim and dismissed the applicant’s counter-claim. On 4 June 2013 the Court of Appeal upheld the first-instance court’s judgment, finding that S.B. had the title to the plot because the contract had been fully executed, specifically that as S.B. had paid the price to the applicant and her late husband and he had obtained the property in his factual possession. The applicant’s counter-claim was dismissed on the grounds that the requested restitutio in integrum had already been decided in the proceedings for protection against the disturbance of possession (see above) and because it had been established that the impugned part of the plot had actually been sold to S.B.
28. On 19 November 2014 the Supreme Court partly allowed an appeal on points of law lodged by the applicant and quashed the judgments of 15 May 2012 and 4 June 2013 in their respective parts concerning the applicant’s counter-claim on the grounds that the evidence needed to be re-examined in order to ascertain the identity of actions. The proceedings are pending.
4. Civil proceedings for damages initiated by the applicant against S.B. and the municipality (П.бр. 821/07, ГЖ.бр.40/10)
29. On an unspecified date the applicant lodged a civil action for damages against S.B. and the municipality before the first-instance court. On 23 September 2009 that court granted, in part, the applicant’s claim
30. On 4 January 2012 the Court of Appeal partly upheld the first‑instance judgment granting the applicant’s claim for damages. The court held that S.B. and the municipality were jointly liable for damage caused to the applicant’s property by S.B.’s unlawful construction activities, which had been sanctioned with final decisions in the civil proceedings for disturbance of possession (see paragraph 9 above) and with demolition orders that had remained unenforced. It ordered compensation in the amount of MKD 677,976 (equivalent to approximately EUR 11,000) plus interest. The court considered that S.B. had damaged the applicant’s property, occupied part of her plot of land and caused the applicant’s property to lose value. The municipality was liable because of its tolerance of S.B.’s unlawful activities.
C. Proceedings concerning I.F.
1. Administrative proceedings
31. In 1990 the municipality issued a permit to I.F. to place a wooden temporary building for commercial activity in front of the applicant’s property. The permission stated that the temporary building could remain no longer than the implementation of the urban plan for that area and that the construction of a permanent building was prohibited.
32. On the basis of a permit for urban and reconstruction measures (одобрение за урбани и санациони мерки) issued by the Ministry in 2002 and later on, following several remittals,annulled by the Appeal Commission, I.F. constructed a permanent building in place of the wooden one.
33. On 10 September 2002 and 5 June 2003 the Inspectorate issued demolition orders against I.F.’s unlawfully constructed building because it had been constructed contrary to the urban plan for the area. The demolition orders remained unenforced.
34. On 15 January 2013 the building constructed by I.F. was legalised. The applicant challenged this decision and the relevant proceedings are pending.
2. Civil proceedings for damages against I.F., the State and the municipality (П.бр. 208/08)
35. On 31 January 2008 the applicant initiated compensation proceedings against I.F., the municipality and the State for her property’s loss of value and loss of income for the period between 2002 and 2008 (monthly rent for her commercial space and for market stalls). She argued that I.F.’s building, which he had constructed unlawfully, had blocked access to her property from the street, while the municipality and the State had failed to stop the construction and to enforce the demolition orders issued in respect of I.F.’s unlawful building (see paragraph 33 above).
36. On 2 July 2008 the court commissioned an expert report to assess the damage claimed by the applicant. The expert report found that the applicant’s property “had no market value” (нема пазарна вредност). At the hearing held on 26 February 2009 the expert was examined in the presence of the parties.
37. On 9 April 2009 the first-instance court dismissed the applicant’s claim as partly groundless and partly time-barred. The court took into account the applicant’s arguments, but considered that the demolition of I.F.’s building would not necessarily provide unfettered access to the applicant’s property from the street given that the implementation of the urban plan concerning the widening of the street concerned separate proceedings and I.F.’s unlawfully constructed building had been positioned on the same place as the temporary building, which had existed before the applicant had obtained the building permit for the commercial area in 1996. Furthermore, even though the applicant’s commercial area had remained unfinished and without an operation permit (употребна дозвола), she had been able to rent part of it as storage space. The market, for which she had had a valid permit between 2000 and 2002, had never become operational. The applicant’s property had not been offered for sale, which had rendered the claim about the loss of its value unsubstantiated. The court noted that the applicant’s property was accessible from a nearby street.
38. On 10 July 2009 the applicant appealed, arguing inter alia that the first-instance court had not commented on the expert report. On 14 June 2011 the Court of Appeal had dismissed her appeal and upheld the first-instance judgment.
39. On 29 September 2011 the applicant lodged an appeal on points of law which was dismissed by the Supreme Court on 27 June 2013.It found that the lower courts had provided sufficient reasons for their decisions and had correctly applied the relevant domestic law.
40. In the meantime, on 21 December 2010 the Supreme Court dismissed a length remedy lodged by the applicant. The decision became final on 7 March 2011.
41. On 15 May 2012 the first-instance panel of the Supreme Court dismissed a fresh length remedy lodged by the applicant on 12 December2011. It noted that the proceedings have been pending for four years (between the lodging of the applicant’s civil claim and the filing of her second length remedy). However, since the period of one year and five months had already been subject of examination in the first set of proceedings upon the applicant’s length remedy (see paragraph 40 above), the Supreme Court limited the period under its consideration to two years and five months, which was not considered as excessive. It further found that the competent courts had acted expeditiously, the applicant had not contributed to the prolongation and that the proceedings had been complex.On 24 September 2012 the second-instance panel of the Supreme Court upheld this decision.
D. Criminal proceedings initiated by the applicant
42. In 2003 and 2010 the applicant lodged criminal complaints with the public prosecutor for abuse of office against officials in the Inspectorate and in the municipality. She also lodged a criminal complaint against S.B. The prosecutor dismissed these complaints.
II. RELEVANT DOMESTIC LAW
43. Section 3 of the Legalisation of Unlawfully Constructed Buildings Act of 2011 (Закон за постапување со бесправно изградени објекти, Official Gazette nos. 23/2011 with further amendments) defines “legalisation of an unlawfully constructed building” as recording of the building in the public registry and including of the building in the urban plan. In accordance with section 11 of the Act the municipality assesses whether the unlawfully constructed building can be incorporated into the urban plan and issues an approval to this effect.
44. Section 31 of the Act provides that all proceedings for demolition of unlawfully constructed buildings as well as all administrative and court proceedings in this connection that began before the entry into force of this Act must be stayed (ќе запрат).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS
45. The applicant complained under Article 6 of the Convention that the length of the following three sets of proceedings had been excessive: (i) the civil proceedings against S.B. for protection against disturbance of possession and subsequent enforcement proceedings (see paragraph 9 above); (ii) the administrative proceedings for S.B.’s building permit (see paragraph 20 above) and (iii) the civil proceedings against I.F., the State and the municipality (see paragraph 35 above).
46. Article 6 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing within a reasonable time by [a] … tribunal …”
A. Complaint concerning the length of the civil proceedings against S.B. for disturbance of possession and subsequent enforcement proceedings
1. The parties’ arguments
47. The Government submitted that the applicant could not claim to have “victim” status since the Supreme Court’s decisions of 12 January and 21 December 2010 in connection with the length remedy had provided her with sufficient and appropriate redress (see paragraph 18 above). They further argued that the applicant had not appealed to the second-instance panel of the Supreme Court. In the alternative, the Government submitted that the applicant had failed to exhaust domestic remedies, since she had not lodged a fresh length-of-proceedings complaint concerning the period after the Supreme Court had found a violation of her right to a hearing within a reasonable time.
48. The applicant maintained that her application was admissible.
2. The Court’s assessment
(a) Admissibility
(i) Victim status
49. The Court notes that for a period of six years and six months of the enforcement proceedings, just satisfaction was awarded at the domestic level in the total amount of MKD 60,000 (equivalent to approximately EUR 970). It does not correspond to what the Court would have been likely to award under Article 41 of the Convention in respect of the same period. Furthermore, the domestic courts did not comply with the time-limit set by the Supreme Court (see paragraphs 16, 17 and 18 above).
50. Thus the compensation awarded cannot be regarded as adequate in the circumstances of the case (see the principles established in the Court’s case-law in Cocchiarella v. Italy [GC], no. 64886/01, §§ 65-107, and Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-213, ECHR 2006‑V). In these circumstances the applicant has not lost her status as a victim within the meaning of Article 34 of the Convention.
(ii) Non-exhaustion of domestic remedies
51. In so far as the Government’s argument that the applicant failed to lodge an appeal with the second-instance panel of the Supreme Court can be interpreted as a non-exhaustion plea, the Court reiterates that as of 3 November 2011 the length remedy provided for by the Courts Act of 2008 has been considered an effective remedy in respect of the length of proceedings in the respondent State (see Adži-Spirkoska and Others v. the former Yugoslav Republic of Macedonia (dec.), nos. 38914/05 and 17879/05, 3 November 2011). Therefore, at the time the applicant used the length remedy in 2010 it was not considered yet as effective and the applicant was not required to use it (see Ogražden Ad and Others v. the former Yugoslav Republic of Macedonia, nos. 35630/04, and 2 others, § 17, 29 May 2012). The Government’s objection must therefore be rejected.
52. With regard to the Government’s argument that the applicant should have lodged a fresh length remedy for the remaining period, after the last decision of the Supreme Court, the Court considers, in view of its findings (see paragraph 50above) that the applicant was not required to use another length remedy (see V.K. v. Croatia, no. 38380/08, §§ 71-73, 27 November 2012). The objection should thus be rejected.
(iii) Conclusion
53. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(b) Merits
54. The Court observes for that, for the purposes of Article 6 § 1 of the Convention, in cases such as the present one where a party to civil proceedings has to institute enforcement proceedings in order to satisfy his or her judicially-determined claim, those proceedings must be regarded as a the second stage of proceedings on the merits and, consequently, an integral part of the original proceedings (see Hałka and Others v. Poland, no. 71891/01, § 20, 2 July 2002, and Wende and Kukówka v. Poland, no. 56026/00, § 61, 10 May 2007).
55. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII).
56. The period to be taken into consideration began on 15 July 2002 when the applicant lodged a claim against S.B. for disturbance of possession. The proceedings on the merits came to an end on 4 February 2004 when the judgment of the Skopje Court of Appeal was delivered. The applicant initiated enforcement proceedings on 10 March 2004. On 14 December 2012 the Gostivar Court of Appeal confirmed the first‑instance decision, declaring the enforcement request withdrawn. Accordingly, the length of the proceedings to be considered is ten years and five months.
57. The Court has no reason to call into question the Supreme Court’s findings that for the period which was susceptible to its scrutiny, the length of the proceedings had been excessive and had failed to meet the “reasonable time” requirement. It necessarily retained that character throughout the subsequent period after the delivery of the last Supreme Court decision (see Ogražden Ad and Others, cited above, § 22).
58. In light of the foregoing, the Court considers that there hasbeen a violation of Article 6 § 1 of the Convention.
B. Complaint concerning the length of the administrative proceedings concerning S.B.’s building permit
1. The parties’ arguments
59. The applicant complained under Article 6 of the Convention that the length of the administrative proceedings concerning S.B.’s building permit, in which she had been an intervening party (see paragraph 20 above) had been excessive.
60. The Government did not make any observations regarding this complaint.
2. The Court’s assessment
(a) Admissibility
61. The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(b) Merits
62. The Court observes that the administrative proceedings were instituted in 2003 following S.B.’s request for a building permit. On an unspecified date, the applicant lodged an appeal with the Government Appeal Commission. It was then that a “dispute” within the meaning of Article 6 § 1 arose (see Mitkova v. the former Yugoslav Republic of Macedonia, no. 48386/09, § 49, 15 October 2015). In the absence of any evidence about the exact date on which the applicant lodged her appeal, the Court, on the basis of the material in its possession, will proceed on the assumption that the date marking the beginning of the impugned proceedings was at the latest 23 July 2003, when the Appeal Commission allowed her appeal and remitted the case for reconsideration (see paragraph 20 above). Thus the period to be taken into consideration started to run, at the latest, on 23 July 2003 and ended on 26 June 2008, when the Administrative Court dismissed the applicant’s administrative action. They therefore lasted about four years and eleven months at two levels of jurisdiction.
63. The Court considers that the impugned proceedings did not require the examination of issues of particular complexity. Nor, having regard to the material before it, does it consider that the applicant contributed to the length of the proceedings. On the other hand, it finds that significant delays were attributable to the authorities. Two remittal orders were given during the proceedings (see paragraphs 20 and 22 above). In this context, the Court reiterates that although it is not in a position to analyse the juridical quality of the decisions of the domestic authorities, it considers that, since the remittal of cases for re-examination is usually ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings discloses a serious deficiency in the judicial system (see Nankov v. the former Yugoslav Republic of Macedonia, no. 26541/02, § 48, 29 November 2007).
64. Having regard to the criteria described in paragraph 55 above, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement (see, mutatis mutandis, Ivanov and Dimitrov v. the former Yugoslav Republic of Macedonia, no. 46881/06, § 28, 21 October 2010).
65. There has accordingly been a violation of Article 6 § 1 of the Convention.
C. Complaint concerning the length of the civil proceedings for damages against I.F., the State and the municipality
1. The parties’ arguments
66. The applicant complained under Article 6 of the Convention that the length of the civil proceedings (see paragraph 35 above) had been excessive.
67. The Government submitted that the length of the proceedings examined by the Supreme Court in its two decisions on the applicant’s length remedy had not been excessive. As to the remaining period, the applicant should have lodged a fresh length remedy and the Government considered that in this part the complaint was inadmissible for non-exhaustion of domestic remedies.
2. The Court’s assessment
(a) Admissibility
68. The Court finds that the question of exhaustion of domestic remedies is inextricably linked to the merits of this complaint. Thereforeit should be joined to the merits.
69. The Court considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(b) Merits
70. At the outset, the Court observes thatwhen the Supreme Court dismissed the applicant’s length remedy for the second time in 2012 (see paragraph 41 above) it was already regarded as an effective remedy as regards complaints about length of proceedings (see Adži-Spirkoska and others, cited above). In these circumstances, the Court is required to verify whether the way in which the Supreme Court applied the relevant provisions of the domestic law produces consequences that are consistent with the principles of the Convention as interpreted in the light of the Court’s case-law (see Nogolica v. Croatia (no. 3), no. 9204/04, § 23, 7 December 2006). In doing so, the Court has to examine the period between the date the applicant lodged her civil claim and the date of the Supreme Court’s decision upon her second length remedy. If the Supreme Court’s decision is consistent with Convention principles, the Court will, when examining the questionof exhaustion of domestic remedies, refrain from dealing with the length of the proceedings subsequent to that decision. Otherwise, a genuine examination of the total length is warranted (ibid.).
71. The Court notes that the proceedings have lasted in total about five years and five months at three levels of jurisdiction (between 31 January 2008 and 27 June 2013, see paragraphs 35 and 39 above). The case was still pending on 15 May 2012, when the Supreme Court gave its decision on the second length remedy used by the applicant. On that date the proceedings had lasted some four years and three months and were still pending.During this period there was one substantial period of inactivity amounting to one year and eleven months (from 10 July 2009 until 14 June 2011, see paragraph 38 above) when the applicant’s appeal was pending for examination before the Court of Appealwhich affected the overall length of the proceedings. The Court finds that this delay is solely attributable to the authorities and that the applicant did not contribute to the length of the proceedings. It further notes that although the case was of some level of complexity, all of the procedural actions were already completed before the first-instance court. Furthermore, at the time of the Supreme Court’s decision on the applicant’s second length remedy her appeal on points of law was already pending for review for about seven months. The review proceedings before the Supreme Court regarding the applicant’s appeal on points of law lasted for one year and nine months in total (from29 September 2011 and 27 June 2013, see paragraph 39 above), which is another delay attributable to the authorities that ultimately affected the overall length of the proceedings.
72. Having examined the material submitted to it, and having regard to its case-law on the subject, the foregoing considerations are sufficient to enable the Court to conclude that already in the period which was susceptible to the Supreme Court’s scrutiny the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. It necessarily kept such character throughout the subsequent period. In these circumstances, to require the applicant to lodge a third length remedy, would overstretch her duties under Article 35 § 1 of the Convention (see Kozlica v. Croatia, no. 29182/03, § 28, 2 November 2006, andNogolica, cited above, § 29).
73. In conclusion, the Court rejects the Government’s objection as to the exhaustion of domestic remedies and finds that there was a breach of Article 6 § 1 of the Convention on account of the excessive length of the proceedings(see, mutatis mutandis, Naumoski v. the former Yugoslav Republic of Macedonia, no. 25248/05, § 39, 27 November 2012).
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTIONON ACCOUNT OF UNFAIRNESS OF THE PROCEEDINGS
74. The applicant complained under Article 6 of the Convention that the domestic courts had not provided sufficient reasoning regarding her arguments in the following two sets of proceedings: (i) the administrative proceedings concerning S.B.’s building permit (see paragraph 20 above) and (ii) the civil proceedings initiated by the applicant against I.F., the State and the municipality (see paragraph 35 above).
A. Complaint of a lack of reasoning in the administrative proceedings concerning S.B.’s building permit
1. The parties’ arguments
75. The applicant submitted that the Administrative Court had not provided sufficient reasoning with regard to her arguments that S.B.’s unlawfully constructed building had interfered with her property rights (see paragraphs 23 and 24 above).
76. The Government argued that the applicant had only been an intervener (вмешувач) in these proceedings, which had concerned exclusively S.B.’s building permit and not the proprietary rights of the applicant or the fact that S.B. had constructed a building whichhad not been compliant with the subsequently issued building permit. That court had thus provided sufficient reasons for deciding the lawfulness of the building permit.
2. The Court’s assessment
77. The Court reiterates that Article 6 § 1 obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288). The principle of fairness enshrined in Article 6 of the Convention would be disturbed where domestic courts ignore a specific, pertinent and important point made by an applicant (see, for example, Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006, and Mala v. Ukraine, no. 4436/07, § 48, 3 July 2014). Otherwise, it is in the first place for the national courts to interpret domestic law, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness (see Mala, cited above, § 47).
78. Turning to the facts of the present case, the Court notes that the subject matter of the impugned proceedings was the lawfulness of S.B.’s building permit. Those proceedings did not concern the issue of whether the applicant had sustained any damage and whether any of her rights had been interfered with. The non-compliance of S.B.’s building with the terms of the building permit was examined in separate proceedings in which the Ministry issued a demolition order on 23 April 2004 (see paragraph 21 above). In a judgment of 4 January 2012 of the Gostivar Court of Appeal, the applicant was awarded redress for the interference with her property rights and the damage caused by S.B.’s unlawful construction activities (see paragraph 30 above). In such circumstances, the Court does not find any deficiency in the Administrative Court’s reasoning when dismissing the applicant’s claim.
79. It concludes that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Complaint of a lack of reasoning in the civil proceedings against I.F., the State and the municipality
1. The parties’ arguments
80. The applicant contended that the domestic courts did not properly assess the findings of the court-ordered expert report and the liability of the State and the municipality for the non-enforcement of the demolition orders against I.F.’s unlawfully constructed building (see paragraph 37 above).
81. The Government considered that the domestic courts have provided sufficient reasons for dismissing the applicant’s claim. They maintained, with reference to the Court’s case-law, that it was primarily for the domestic courts to assess the evidence before them. The courts examined all the evidence and established the relevant facts on which they based their assessment, providing sufficient reasons for their decisions.
2. The Court’s assessment
82. The Court notes at the outset that the applicant’s complaint essentially concerns the assessment of evidence by the domestic courts and the interpretation of the domestic law with regard to her claim for damages. Pursuant to Article 19 of the Convention, the duty of the Court is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Carmel Saliba v. Malta, no. 24221/13, § 62, 29 November 2016). Therefore, the Court will not in principle intervene unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015), and provided that the proceedings as a whole were fair as required by Article 6§ 1 (see Khamidov v. Russia, no. 72118/01, § 170, 15 November 2007).
83. The Court notes that the domestic courts, at three levels of jurisdiction, after having found that the applicant’s claim for damages was unsubstantiated in the particular circumstances of the case, provided sufficiently clear reasons for their decisions. There is nothing to suggest that their decisions are manifestly unreasonable or arbitrary. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.1 TO THE CONVENTION
84. The applicant complained that owing to the lengthy non-enforcement of the decisions in her favour, the State had failed to protect her property rights and her investment in the commercial space from the disturbances caused by the construction work of her two neighbours. She 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.”
1. The parties’ arguments
(a) The applicant
85. The applicant complained of the lengthy non-enforcement of several demolition orders against her neighbours and other court decisions in her favour. I.F.’s unlawfully constructed building had occupied an area which, according to the urban plan, had been foreseen for an extension of the street. With his building, S.B. had occupied part of the land owned by the applicant and destroyed the border wall and part of the applicant’s terrace, thus causing damage to her property. The applicant argued that her property and her investment in the commercial space had lost value.She alleged loss of income from the rent of the premises in the commercial space and the stalls in the market because her property had not had access to the street.
86. In her observations submitted on 8 June 2015, the applicant informed the Court that she had obtained compensation in the amount of EUR 11,000 on the basis of the Gostivar Court of Appeal’s final judgment of 4 January 2012 (see paragraph 30 above). In her subsequent observations, the applicant maintained that she could still be considered as a victim as regards the alleged violations of her property rights. She noted that the neighbours’ unlawfully constructed buildings had been legalised and included in the new urban plan thus causing irreparable damage to her property.
(b) The Government
87. The Government considered that, in view of the domestic courts’ findings (see paragraph 35 above) the applicant had had no legitimate expectations within the meaning of Article 1 of Protocol No.1 in respect of the business undertaking. They argued that no causal link existed between the implementation of the applicant’s business plans and the non-enforcement of the decisions regarding her two neighbours. The applicant’s permit had been of two-year durationand had expired without the market ever having become operational, even though both neighbours did not begin with construction activities until the summer of 2002. Shehad obtained some income from leasing the commercial space as storage space; even though it had remained unfinished. I.F.’s right to maintain the temporary building had not been affected by the demolition orders. Given the applicant’s withdrawal of the injunction against S.B. and the decision declaringher enforcement request withdrawn (see paragraphs 14 and17 above), the State did not have any positive obligations under Article 1 of Protocol No.1 to the Convention. They noted that S.B.’s building had been legalised and the proceedings against S.B. in respect of the applicant’s counter-claim were pending (see paragraph 28 above). In view of the pending legalisation proceedings for I.F.’s building, any demolition would have been unwarranted.
88. In their additional observations and comments on the just satisfaction claims of15 July 2015, the Government raised several objections regarding the applicant’s complaints concerning the decisions against S.B. Firstly, they argued that in view of Gostivar Court of Appeal’s judgment of 4 January 2012 the applicant could no longer be considered a “victim”, as the violations of her Convention rights had been remedied at the domestic level. In the alternative, the Government argued that the applicant’s complaint was premature in view of the pending proceedings on the applicant’s counter-claim against S.B. Lastly, they argued that the applicant had lost her “victim status” given her withdrawal of the injunction against S.B. and the decision to declare the enforcement request withdrawn.
2. The Court’s assessment
(a) Complaint about the applicant’s business undertaking
89. The Court reiterates that Article 1 of Protocol No.1 applies only to a person’s existing possessions; it does not guarantee the right to acquire possessions (see Malik v. the United Kingdom, no. 23780/08, § 88, 13 March 2012, with further references). Future income can only be considered to constitute a “possession” if it has already been earned or where an enforceable claim to it exists (see Ian Edgar [Liverpool] Ltd. v. the United Kingdom (dec.), no. 37683/97, 25 January 2000, and Denimark Limited and 11 Others v. the United Kingdom (dec.), no. 37660/97, 26 September 2000),
90. In the present case, the applicant complained that she had sustained loss of future income which she had expected to obtain from the lease of the commercial space in her courtyardand the operation of the marketplace. The Court reiterates that in the civil proceedings against I.F., the State and the municipality (see paragraph 35 above) the domestic courts dismissed the applicant’s claim for damages for loss of income and established that the commercial space on the applicant’s property had remained unfinished and without an operation permit. They also established that the market, for which the applicant had had a permit of twoyear’s duration, had never become operational. The Court finds no indication that in the instant case, the domestic courts’ conclusion was arbitrary or manifestly unreasonable.
91. It follows from the above that the applicant pursued an economic objective, namely future financial gain, which had not been earned and to which an enforceable claim did not exist. The Court accordingly considers that the applicant’s hope of seeing her commercial venture come to fruition cannot be regarded as having been a “legitimate expectation” within the meaning of the case-law relating to Article 1 of Protocol No.1 to the Convention. It follows that the complaint in this part is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a).
(b) Complaints concerning the non-enforcement of the decisions against the applicants’ neighbours
(i) Complaints concerning the enforcement of the decisions against S.B.
92. The Court notes that in their additional observations of 15 July 2015 the Government raised for the first time several objections regarding this complaint. It reiterates that, under Rule 55 of the Rules of Court, any plea of inadmissibility must have been raised by the respondent Contracting Party‑in so far as the nature of the objection and the circumstances so allowed – in its written or oral observations on the admissibility of the application (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 52, 15 December 2016).
93. As regards the first objection raised by the Government, concerning the applicant’s victim status in relation to the redress afforded at domestic level by the Gostivar Court of Appeal’s final judgment of 4 January 2012, the Court notes that it was only in her observations submitted in June 2015 that the applicant brought to its attention the fact that she had claimed and had been awarded compensation amounting to EUR 11,000 in those proceedings and enclosed a copy of that judgment(see paragraph 86above). At the time of making their initial observations the Government were not aware of this fact on which they based their first objection. Therefore, they were not in a position to comply with the time-limit established in Rule 55.
94. Furthermore, the Court sees no need to determine whether the Government are now estopped from making this objection since it finds in any event that it concerns a matter which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016, and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, §§ 89-93, 27 June 2017).
95. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Eckle v. Germany, 15 July 1982, § 66, Series A no. 51;Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996‑III; and Rotaru v. Romania [GC], no. 28341/95, § 35, ECHR 2000‑V).
96. In the present case, the Court notes that in a final judgment of 4 January 2012 the Gostivar Court of Appeal held that the applicant had suffered a breach of her property rights because of S.B.’s unlawful building and the failure of the municipal authorities to enforce the decisions in favour of the applicant and to protect her property rights (see paragraph 30 above). The Court is satisfied that the domestic courts thereby expressly acknowledged that there had been a violation of the applicant’s rights.
97. As to the nature of redress, the Court reiterates that the question of whether an applicant may claim to be a victim depends, as a general rule, on the legal interest which he or she may have in a determination by the Court that his or her Convention rights have been breached. In assessing this interest, any material or non-pecuniary damage suffered by the applicant as a result of the alleged violation must be taken into account (see Schlader v. Austria (dec.), no. 30193/96, 7 March 2000, and Auerbach v. the Netherlands (dec.), no. 45600/99, 29 January 2002).
98. Turning to the present case, the Court notes the domestic courts awarded the applicant approximately EUR 11,000 as compensation for the pecuniary damage caused by S.B.’s unlawful construction work and the lengthy non-enforcement of the demolition orders against him (see paragraph 30 above). The awarded amount was not disputed by the applicant and does not seem unreasonable or insufficient. The Court notes that S.B.’s building was legalised and incorporated into the newly adopted urban plan. It further notes that the civil proceedings in respect of the applicant’s counter-claim seeking restitutio in integrum and pecuniary damages with respect to S.B.’s building are pending (see paragraph 28 above). In view of these circumstances the Court is satisfied that the compensation awarded by the domestic courts was sufficient to remove the applicant’s victim status in respect of her complaint under Article 1 of Protocol No.1 regarding S.B.’s building. It follows that the applicant’s complaint must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
99. In view of this conclusion, the Court finds that there is no need to examine the remaining objections made by the Government.
(ii) Complaints concerning the enforcement of the demolition orders against I.F.
100. The Court notes that 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 April2012).
101. The Court reiterates that the applicant’s claim for damages in the civil proceedings against I.F., the State and the municipality, was dismissed by the domestic courts (see paragraph 37 above) on grounds that she had not substantiated that I.F.’s construction had led to a loss of value of her property and loss of income. The Court further observes that I.F. had a right to maintain a temporary building at the location until the implementation of the urban plan for the area and that, as established in the domestic proceedings, the demolition of I.F.’s building would not necessarily have provided unfettered access to the applicant’s property from the street. The Court also notes that the proceedings for legalisation of I.F.’s building are pending (see paragraph 34 above) and that pursuant to section 31 of the Legalisation of Unlawfully Constructed Buildings Act of 2011 (see paragraph 44 above) all administrative and court proceedings in relation to unlawful construction of buildings that began before the entry into force of this Act must be stayed.
102. In view of the domestic courts’ findings, which the Court does not consider arbitrary or manifestly unreasonable, the Court finds that the applicant has not sufficiently substantiated that I.F.’s construction work led to a loss of value of her property and that on that account she had suffered any financial loss (compare Fuchs v. Poland,(dec.), no. 33870/96, 11 December 2001, and Rupar v. Slovenia, (dec.), no. 16480/02, §§ 46-48, 15 May 2010). Accordingly, the remainder of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
103. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
104. The applicant claimed 188,176 euros (EUR) in respect of pecuniary damage and EUR 30,000 in respect of non-pecuniary damage.
105. The Government contested those claims.
106. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,830 in respect of non-pecuniary damage for the violations found, plus any tax that may be chargeable.
B. Costs and expenses
107. The applicant also claimed a total sum of 672,752(denars) MKD (approximately EUR 10,855) for the costs and expenses incurred both before the domestic courts and for those incurred before the Court. From this amount, the applicant claimed MKD 36,285 (approximately EUR 585) for the legal fees incurred in the proceedings before the Court, for which she submitted an invoice specifying the amount due.
108. The Government contested the claims.
109. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Petreska v. the former Yugoslav Republic of Macedonia, no. 16912/08, § 40, 21 July 2016). In view of the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 700 covering costs and expenses under all heads, plus any tax that may be chargeable to the applicant.
C. Default interest
110. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins to the meritsthe Government’s objection as to the exhaustion of domestic remedies regarding the complaint under Article 6 § 1 of the Convention concerning the length of the civil proceedings against I.F., the State and the municipality and dismisses it;
2. Declares the complaints under Article 6 § 1 of the Convention concerning the length of the three sets of proceedings admissible, and the remainder of the application inadmissible;
3. Holdsthat there has been a violation of Article 6 § 1 of the Convention on account of the excessive length of the three sets of proceedings;
4. Holds
(a) that the respondent State is to pay the applicant, within three monthsthe following amounts,to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 3,830 (three thousand eight hundred and thirty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 700 (seven hundredeuros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 16 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Abel Campos Tim Eicke
Registrar President
Leave a Reply