Last Updated on December 12, 2023 by LawEuro
CASE OF NASKOV AND OTHERS v. NORTH MACEDONIA – European Court of Human Rights. Applications nos. 31620/15 and 2 others.
The case concerns the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention about a proprio motu quashing of a final restitution order conferring on the applicants’ title to a plot of land, owing to the legal and factual impossibility of enforcing the order on account of third parties having constructed structures on the land in the meantime.
The European Court of Human Rights noted the following: The Court affirms at the outset that it will confine its examination to the complaint as formulated by the applicants, which is limited to the quashing of the order only in respect of the land which had not been returned to them because of the private business premises that had been built on it. They did not complain in respect of the land which had not been returned because there was a structure of public interest, namely a public street, on it.
The Court notes that the 2002 restitution order conferred on the applicants title to part of the plots expropriated from their late predecessors. The applicants’ title was then registered with the Land Registry. The mere fact that the applicants’ property rights were later revoked does not prevent them from having a “possession” within the meaning of Article 1 of Protocol No. 1. The Government acknowledged that the quashing of the restitution order amounted to an interference. The Court sees no reason to find otherwise. It must therefore be ascertained whether the interference complained of was lawful and, if so, whether it was proportionate to the legitimate aim pursued.
In that connection, the Court reiterates that the principle of lawfulness not only presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application but also requires the Court to verify whether the way in which the domestic law is interpreted and applied by the domestic courts produces consequences that are consistent with the principles of the Convention.
Turning to the present case, the Court observes that, while it is true that the private buildings had been already built when the administrative enforcement proceedings were initiated, the domestic law specifies that in restitution proceedings what matters is the situation of the land on the date when a restitution claim is submitted. According to the established facts, the land in question was undeveloped when the applicants submitted their claim. The mere existence of a building permit prior to the restitution claim is irrelevant for the proprietary entitlement to ownership specified under the Restitution Act. On 12 December 2005 the plenary session of the Supreme Court held that preparatory construction work did not mean that the land had been developed within the meaning of the Building Act. Accordingly, as stated by the Administrative Court in the extraordinary proceedings after the 2002 restitution order became final, all subsequent construction work on those plots of land was carried out contrary to section 72 of the Restitution Act. Moreover, in accordance with the provisions of the Restitution Act, the findings of the Supreme Court and the opinion of the Constitutional Court, a property subject to a restitution order cannot be disposed of after the entry into force of that Act. Lastly, it is important to note that in the extraordinary proceedings, the Administrative Court explicitly held that the order could not be declared null and void on the grounds of its unenforceability and that the state of the land on the date when the Restitution Act had come into force had been the relevant criterion for the restitution of the plots in question.
However, notwithstanding the above findings, the Court notes that an alteration in the application of the domestic law took place in the course of the proceedings for the administrative enforcement of the restitution order. Despite the Government’s claim to the contrary, the 2002 restitution order was declared null and void in part by the Restitution Commission proprio motu, in the proceedings for administrative enforcement in 2014 – twelve years after it was first issued – on the grounds of its legal and factual unenforceability. The Court further notes that an on‑site inspection carried out eight years after the submission of the restitution claim served as the basis for the quashing of the order. Such a conclusion, however, ran counter to several judgments of the administrative courts and the Supreme Court in the case and was not foreseeable for the applicants, who could have reasonably expected that in the proceedings for administrative enforcement they would finally have their land returned to them. In this connection the Court cannot but note that the High Administrative Court in its decision of 21 October 2015 disregarded its previous reasoning on the matter without explaining its reasons for doing so. The Court reiterates that its well‑established case-law imposes a duty on the authorities to make a more substantial statement of reasons justifying such a departure from a previous ruling.
It also cannot be overlooked that the applicants made a number of attempts, including some before they lodged the restitution claim, to prevent the construction of the business premises on the land that was to be the subject of the restitution proceedings. Therefore, the authorities could not claim to have been unaware of the ongoing construction on the land. The authorities’ inactivity allowed the construction of the two private structures, owned by the private companies F. and S., despite the fact that there were ongoing restitution proceedings in respect of the land in question and that under the Restitution Act, it therefore should not have been disposed of, as had been clearly established by the Supreme Court. Those companies only had the right to use the disputed plots, which had been transferred to them by G.D. on the basis of an agreement of 7 November 2002, certified by a notary public on 10 December 2002 and 15 February 2003, that is to say, after the 2002 restitution order. It is further to be noted that G.D.’s right to use the land in question was subsequently revoked. In that connection, the Constitutional Court emphasised that the aim of the Restitution Act was to protect the interests of previous owners and their successors, and to protect property that had been confiscated by the State, rather than the interests of the user of the property. It further noted that the right of third parties to use the land could not compete with the property rights of the previous owners, which enjoyed constitutional protection. In that connection, the Restitution Act provided for the opportunity for the interested third parties F. and S. to safeguard their rights if the disputed plots had been returned to the applicants. That was also confirmed by the domestic courts, which emphasised that any unresolved issues between third parties and the owners of the returned plots, such as those arising in the present case, should be resolved in accordance with the Property Act. Thus, the fact that the authorities allowed the business premises to be constructed contrary to the Restitution Act could not be taken to the detriment of the applicants.
The present case contrasts with Vikentijevik, in which the quashing of a restitution order was justified because of fundamental defects in the Restitution Commission’s decision which rendered the restitution order legally unenforceable. The errors cited by the Commission and the Supreme Court in the above-mentioned case concerned the following: (1) the applicant in that case had obtained possession of an entire immovable property and preference shares in a company despite the fact that the company had been in the joint ownership of four individuals, one of whom had been the applicant’s late predecessor; (2) the buildings that had been returned to the applicant had been larger than those confiscated, in terms both of their size and of their value; and (3) there had been development on the land which had been returned to him on the basis of the restitution order.
To conclude, the quashing of the final 2002 restitution order in the present case as a result of the proceedings that were initiated for administrative enforcement frustrated the applicants’ reliance on a binding decision and deprived them of an opportunity to gain possession of the property that they had legitimately expected to receive.
The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicants’ property interests was in breach of the principle of lawfulness and could not be considered foreseeable in accordance with the Convention principles. It is accordingly incompatible with the applicants’ right to the peaceful enjoyment of their possessions. This finding makes it unnecessary to examine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.
There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
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