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 of the above‑mentioned complaints and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
THE CIRCUMSTANCES OF THE CASEBackground 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 courtyard of 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. 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. 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 access to 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 had been 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 December 2010, 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. 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 2004 the 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 by S.B. for legalisation of the unlawfully constructed part of the building was granted and it was entered in the land registry. 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. 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. Proceedings concerning I.F.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. 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 December 2011. 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. 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. 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
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 ...”
Complaint concerning the length of the civil proceedings against S.B. for disturbance of possession and subsequent enforcement proceedingsThe 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.

Outcome for Article 6: violation