KITANOVSKA AND TRAJKOVSKI v NORTH MACEDONIA - 71657/17 (Article 1 of Protocol No. 1 - Protection of property : Second Section Committee) [2023] ECHR 881 (14 November 2023)

JUDGMENT STRASBOURG 14 November 2023 This judgment is final but it may be subject to editorial revision. In the case of Kitanovska and Trajkovski v. North Macedonia, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Lorraine Schembri Orland , President , Jovan Ilievski, Diana Sârcu , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the applications 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 Ms Nadezhda Kitanovska ("the first applicant") and Mr Radojko Trajkovski ("the second applicant"), both Macedonians/citizens of the Republic of North Macedonia, on the various dates indicated in the appended table; the decision to give notice of the applicants' complaint concerning Article 1 of Protocol No. 1 to the Convention to the Government of North Macedonia ("the Government"), represented by their Agent, Ms D. Djonova, and to declare the remainder of the applications inadmissible; the parties' observations; Having deliberated in private on 17 October 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The applications concern the applicants' complaint that the obligation to pay a private heat supplier a standing charge introduced by the State had violated the peaceful enjoyment of their possessions (flats) under Article 1 of Protocol No. 1 to the Convention. . The applicants are both owners of flats in residential buildings in Skopje which are connected to a district heating network operated by a private heat supplier. Prior to 30 July 2012, when the Heat Energy Supply Regulations ("the 2012 Regulations") were adopted by the Energy Regulatory Commission, their flats were disconnected from the heating network. Under section 53(2) of the 2012 Regulations, disconnected users were required to pay to private heat suppliers an annual standing charge, payable in monthly instalments. By decision U.br.125/2012 adopted on 22 May 2013, the Constitutional Court declared that provision compatible with the Constitution (the 2012 Regulations and the Constitutional Court's decision were summarised in Strezovski and Others v. North Macedonia , nos. 14460/16 and 7 others, §§ 12-13 and 17-19, 27 February 2020). . Following the introduction of the obligation on 1 October 2012 (section 66 of the 2012 Regulations), the private heat supplier issued invoices requiring the applicants to pay the standing charge. When the applicants failed to pay, a notary public granted the supplier's requests for enforcement of the unpaid invoices and issued payment orders regarding the unpaid monthly instalments of the standing charge. 4. The applications lodged by the first applicant concern payment orders for monthly instalments in the range of between 14 and 20 euros (EUR) for the periods from August 2013 to July 2015, November to December 2015, January to April 2016 and August and September 2016. The second applicant's applications concern such orders in the range of between EUR 5 and EUR 12 for the periods from October 2012 to April 2013, for the whole year of 2014, and for the period from February to April 2016. . Both applicants challenged the above-mentioned payment orders before the Skopje Court of First Instance, arguing that: (i) they had not entered into an agreement with the supplier; (ii) the charge had been introduced with the 2012 Regulations, notwithstanding that such an obligation could only be introduced by primary legislation; (iii) the Energy Act did not include the terms "disconnected users" and "indirect consumers" introduced by the 2012 Regulations; (iv) the applicants' flats had been disconnected from the district heating system before the 2012 Regulations had entered into force; (v) the amounts claimed had not been based on an objective assessment of the heat received from other units in the same building; and (vi) their flats received no heat from the district network. Both applicants submitted expert reports stating that their flats did not use any heat from the district heating network: the first applicant's flat had its own heating system, whereas the second applicant's flat was on the top floor of the building with only one neighbouring flat and a disconnected unit below. The second applicant also submitted that the heating pipes in his flat had been dismantled. 6. By separate decisions given between February 2016 and January 2018 (with final judgments given between December 2016 and September 2018), both the Skopje Court of First Instance and the Court of Appeal dismissed the applicants' objections and confirmed the orders. The courts held that the applicants were "indirect consumers" of heat distributed in the building through the district heating network and were accordingly obliged to pay the standing charge as specified in section 53(2) and section 66 of the 2012 Regulations. The expert reports submitted by the applicants (see paragraph 5 above) were dismissed by the courts as irrelevant to the case and no on-site examination was performed. 7. The applicants complained under Article 1 of Protocol No. 1 to the Convention that their right to the peaceful enjoyment of their flats had been violated by the obligation to pay the standing heating charge. THE COURT'S ASSESSMENT JOINDER OF THE APPLICATIONS 8. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. THE GOVERNMENT'S REQUEST TO STRIKE OUT THE APPLICATIONS UNDER ARTICLE § 1 OF THE CONVENTION 9. The Government submitted a unilateral declaration regarding all the applications in which they expressly acknowledged that there had been a violation of the applicants' rights protected by Article 1 of Protocol No. 1 and offered to pay them a certain amount of money in respect of non-pecuniary damage, as well as costs and expenses. 10. The applicants submitted, inter alia , that a strike-out decision by the Court could not be relied on as a ground for the reopening of the domestic proceedings given that section 400 of the Civil Proceedings Act provided that proceedings could be reopened only on the basis of a final judgment finding a violation of the rights and freedoms under the Convention. 11. The Court takes note of the domestic legal provision cited by the applicants and notes that the Government, although invited to do so, have not provided any convincing arguments or an example from the domestic case-law to show that the possibility of reopening civil proceedings exists in the event of a decision by the Court approving a unilateral declaration and striking a case out of its list. Accordingly, it cannot be said with a sufficient degree of certainty that the procedure for reopening civil proceedings would be available were the Court to accept the Government's unilateral declaration (see, mutatis mutandis , Romić and Others v. Croatia , nos. 22238/13 and 6 others, §§ 84-85, 14 May 2020). In such circumstances, the Court accepts the applicants' arguments and finds that the unilateral declaration does not offer a sufficient basis for finding that it is no longer justified to continue the examination of the applications and that respect for human rights as defined in the Convention does not require further examination of the case (Article 37 § 1 (c) and § 1 in fine ; see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95 , § 75, ECHR 2003 - VI). 12. Accordingly, the Court rejects the request to strike out the applications of the list of cases under Article 37 of the Convention. ALLEGED VIOLATION OF ARTICLE 1 of procotol n o . 1 to THE CONVENTION Admissibility 13. In Strezovski and Others v. North Macedonia (nos. 14460/16 and 7 others, § 64, 27 February 2020), the Court held that the obligation to pay the standing charge constituted in itself an interference with the applicants' right to the peaceful enjoyment of their flats. Furthermore, the Court is not persuaded that the objections to the payment orders and subsequent civil proceedings in which the applicants sought to prove that their flats did not use any heat from the district heating network (see paragraph 5 above) were, on their face, ineffective remedies, and therefore the applicants cannot be faulted for using them (see Gherghina v. Romania (dec.) [GC], no. 42291/07 , §§ 84-89, 9 July 2015, and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 221-26, ECHR 2014 (extracts)). Therefore, the Government's objections that the applicants did not have a legitimate expectation of having their objections upheld and that they had availed themselves of an ineffective remedy and, accordingly, had failed to bring the applications within the six-month time-limit must be dismissed. 14. The Court further notes that the applicants' complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. Merits 15. The general principles concerning the applicants' rights under Article 1 of Protocol No. 1 to the Convention have been summarised in Strezovski and Others (cited above, §§ 61-62). 16. In the present case, the imposition of the standing charge for heating on the applicants, as owners of flats disconnected from the district heating system, amounted either to an interference with their right to the peaceful enjoyment of their flats or its compatibility with Article 1 of Protocol No. 1 is to be assessed under the State's positive obligations under that provision (see Strezovski and Others , cited above, §§ 64-65). Furthermore, the impugned measure was provided for by law (see paragraphs 2-3 above and also Strezovski and Others , cited above, §§ 68-69) and it pursued the legitimate aim of ensuring a safe, secure and efficient heat supply (see also Strezovski and Others , cited above, §§ 70-75). 17. As to whether a fair balance was struck between the competing interests of the individual and the community as a whole, however, in the impugned proceedings the domestic courts did not objectively assess all the relevant factors of the cases, including the applicants' arguments and evidence as to the specific details of their flats (see paragraph 5 above). They applied the same blanket approach which the Court has found to be at odds with the respondent State's obligation to ensure adequate protection of the applicants' property rights, and to be tantamount to a failure to strike the requisite fair balance between the interests involved (ibid., §§ 76-89). 18. There has accordingly been a violation of the applicants' right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1 to the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 19. The first applicant claimed 2,255 euros (EUR) in respect of pecuniary damage, EUR 86,000 in respect of non-pecuniary damage and EUR 8,173 in respect of the costs and expenses incurred before the domestic courts and the Court. The second applicant claimed EUR 15,000 in respect of non-pecuniary damage and EUR 8,453 in respect of the costs and expenses incurred before the domestic courts and the Court. 20. The Government contested these claims. 21. The Court is unable to assess the first applicant's claim in respect of pecuniary damage and refers to the possibility available to her of requesting the reopening of the proceedings in accordance with section 400 of the Civil Proceedings Act (see Strezovski and Others , cited above, § 95). 22. On the other hand, making its assessment on an equitable basis, it awards the first applicant EUR 4,000 and the second applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 23. As for the costs and expenses incurred in the domestic proceedings and before the Court, regard being had to the documents in its possession, the Court awards EUR 1,200 to the first applicant and EUR 1,100 to the second applicant, plus any tax that may be chargeable to them. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Rejects the Government's request for the applications to be struck out of its list of cases; Declares the applications admissible; Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of both applicants; Holds (a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement: (i) in respect of all the applications by the first applicant: - EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; - EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable to the first applicant, in respect of costs and expenses; (ii) in respect of all the applications by the second applicant: - EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; - EUR 1,100 (one thousand and one hundred euros), plus any tax that may be chargeable to the second 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; Dismisses the remainder of the applicants' claims for just satisfaction. Done in English, and notified in writing on 14 November 2023, pursuant to Rule §§ 2 and 3 of the Rules of Court. Dorothee von Arnim Lorraine Schembri Orland Deputy Registrar President APPENDIX List of cases: No. Application no. Case name Lodged on Applicant Year of birth Place of residence Represented by 1. 71657/17 Kitanovska v. North Macedonia 27/09/2017 Nadezhda KITANOVSKA Skopje Dime GJORCHEVSKI 2. 78391/17 Trajkovski v. North Macedonia 07/11/2017 Radojko TRAJKOVSKI Skopje 3. 82519/17 Trajkovski v. North Macedonia 23/11/2017 Radojko TRAJKOVSKI Skopje 4. 84547/17 Kitanovska v. North Macedonia 11/12/2017 Nadezhda KITANOVSKA Skopje 5. 15680/18 Trajkovski v. North Macedonia 27/03/2018 Radojko TRAJKOVSKI Skopje Dime GJORCHEVSKI 6. 15682/18 Trajkovski v. North Macedonia 27/03/2018 Radojko TRAJKOVSKI Skopje 7. 15683/18 Trajkovski v. North Macedonia 27/03/2018 Radojko TRAJKOVSKI Skopje 8. 41061/18 Kitanovska v. North Macedonia 09/08/2018 Nadezhda KITANOVSKA Skopje 9. 3956/19 Kitanovska v. North Macedonia 11/01/2019 Nadezhda KITANOVSKA Skopje 10. 15098/19 Kitanovska v. North Macedonia 13/03/2019 Nadezhda KITANOVSKA Skopje BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII