CASE OF BESHIRI AND OTHERS v. ALBANIA
Violation of Art. 6-1 (non-enforcement);Not necessary to examine Art. 13;Violation of P1-1;Remainder inadmissible;Damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
4. The applicants were born in 1931, 1948, 1954 and 1944 respectively and live in Tirana (Albania) and Varese (Italy). 5. The applicants’ father owned a villa with a surface area of 42.70 sq. m and two adjacent plots of land measuring approximately 46.70 sq. m and 48.55 sq. m respectively. From 1946 to 1978 the applicants’ father rented the villa to B.N.’s father. 6. On an unspecified date, as the villa was uninhabitable, the State granted the applicants’ father a compulsory loan of 16,204 leks (ALL) for renovation of the villa. 7. In 1976 B.N. constructed two additional buildings on the plot of land measuring 48.55 sq. m. By a decision of 23 February 1976 the Tirana District Court allocated the additional buildings to B. N. 8. As a result of the applicants’ father’s failure to repay the debt, the villa was nationalised by virtue of decision no. 133 of 14 July 1978. From 1978 onwards B.N.’s family continued to live in the villa as tenants of a State-owned property. 9. In 1996, pursuant to the Property Restitution and Compensation Act (“the Property Act”), the applicants lodged a claim with the Tirana Commission on Property Restitution and Compensation (Komisioni I Kthimit dhe Kompensimit te Pronave). 10. On 22 May 1996 the Tirana Commission, holding that the nationalisation of the applicants’ father’s villa had been illegal, awarded the applicants the villa (with a surface area of 42.70 sq. m) and the plot of land measuring 46.70 sq. m, subject to the repayment of ALL 1,204 (representing the outstanding amount of their father’s unpaid debt to the State which had led to the nationalisation of the properties). With regard to the plot of land measuring 48.55 sq. m, in view of B.N.’s investment in the additional building, the Commission upheld his right of first refusal on the purchase of the land. 11. On an unspecified date in 1997, B.N., the tenant of the villa which had been allotted to the applicants, brought a civil action before the Tirana District Court, claiming property rights over the villa and the adjacent plot of land. Moreover, he alleged that the Commission’s decision of 22 May 1996 should be declared null and void, in so far as it was in breach of section 13 of the Property Act. 12. On 15 July 1997 the Tirana District Court declared the Commission’s decision of 22 May 1996 null and void. It found that according to an expert report, the outlays by the State and B.N.’s father on structural changes and annexes to the original building amounted to more than 85% of the property’s original value. The Commission’s decision was therefore held to have been in breach of section 13 of the Property Act. 13. On 7 November 1997 the Tirana Court of Appeal, having examined an appeal by the applicants alleging a violation of their property rights, upheld the District Court’s decision and dismissed the appeal. 14. The applicants appealed to the Civil Division of the Supreme Court, which on 6 May 1998 quashed the decisions of the above courts. It held that the decisions had been based on an expert report which was illogical and contained incorrect calculations and accordingly sent the case back for rehearing. 15. On 11 April 2001 the Tirana Court of Appeal, rehearing the case, declared the Commission’s decision null and void. Relying on a new expert report, it held that the nationalisation of the applicants’ father’s villa had been in accordance with substantive law requirements at the material time and that, consequently, the applicants could not benefit from the process of restitution of property. Moreover, the court upheld the applicants’ property rights over the two adjacent plots of land and, pursuant to section 16 of the Property Act, decided on their right to receive compensation in one of the forms provided for by law. 16. On 15 February 2002 the Civil Division of the Supreme Court dismissed an appeal by the applicants as being ill-founded. 17. The applicants lodged an appeal with the Constitutional Court on the basis of Article 131 (f) of the Constitution. They alleged that the Supreme Court’s decision and the Court of Appeal’s judgment had been unconstitutional. 18. On 24 September 2002 the Constitutional Court, in accordance with section 31 of the Constitutional Court Organisation and Operation Act (Law no. 8577 of 10 February 2000), decided de plano to declare the applicants’ complaint inadmissible as being “outside its jurisdiction”. 19. In a letter of 22 March 2004 the applicants informed the Registry that the authorities had failed to comply with the final decision of 11 April 2001 relating to the compensation issue. 20. The Albanian Constitution reads as follows: “1. The right of private property is protected by law. 2. Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided for by the Civil Code. 3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest. 4. Expropriations, or limitations of a property right that are equivalent to expropriation, shall be permitted only in return for fair compensation. 5. A complaint may be lodged with a court to resolve disputes regarding the amount/extent of compensation due.” “In the protection of his constitutional and legal rights, freedoms and interests, and in defence of a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “State bodies shall comply with judicial decisions.” “The Constitutional Court shall decide on: ... (f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” “1. Within two to three years from the date when this Constitution enters into force, Parliament, guided by the criteria laid down in Article 41, shall pass laws for the just resolution of different issues relating to expropriations and confiscations carried out before the approval of this Constitution. 2. Laws and other normative acts relating to expropriation and confiscation that were passed before the entry into force of this Constitution shall be applied provided they are compatible with the latter.” 21. The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) underwent several amendments during the past ten years. 22. The Property Act of 1993 (Law no. 7698 of 15 April 1993, as amended by Law no. 8084 of 1996), as in force at the time, in its relevant parts reads as follows: “Former owners and their legal heirs have the right of ownership. A former owner shall have the right either to have allocated the original land or to be awarded compensation in kind if one of the following conditions is met: (1) the alleged property was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) the alleged property was not subject to Law no. 7501 of 19 July 1991; (3) the alleged property is currently State-owned; (4) the alleged property has been designated as suitable for construction and is situated within the boundaries of a city. The restitution or compensation in kind shall not exceed 10,000 sq. m pursuant to section 1(4) of Decree no. 1359 of 5 February 1996, as amended by Law no. 8084 of March 7 1996.” “Former owners shall be entitled to restitution of their former buildings without having to repay outlays made by the Government or other owners on structural alterations, annexes or floor additions to former private buildings, where such outlays amount to up to 20% of the building’s value. Former owners shall be entitled to restitution of their former buildings once they have repaid more than 20% of the value of outlays, where such outlays amount to between 20% and 50% of the building’s value. The value of the outlays shall be calculated on the basis of construction prices at the time of the building’s restitution. A building shall remain in co-ownership where the value of such outlays is more than 50% of the building’s value. .... The courts shall have authority to resolve disputes between parties.” “Where a building site or agricultural land that has been reclassified as a building site is occupied by a permanent construction, the former owners shall be compensated, within the limit fixed for expropriation, by one of the following methods: (a) by means of State bonds, equivalent to the compensation owed, and with first option of acquiring shares in State enterprises being privatised by the Government or in other activities carried out through the granting of loans; (b) by means of an equivalent plot of land or building site near to an urban area, in accordance with the general urban-development regulations; (c) by means of an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations. Any outstanding amount after the application of (b) and (c) above shall be compensated according to other methods established by this Act. The Council of Ministers shall have the authority to define more detailed rules for determining the methods and deadlines for such compensation.” 23. The new Property Act enacted in 2004 provides for two forms of restitution of property, namely the return, under certain circumstances, of the original property and compensation in the event of the impossibility for the authorities to return the original property. The Act provides for five forms of compensation: (a) a property of the same kind; (b) a property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the privatisation process, (e) a sum of money (section 11). 24. The Act instituted the State Committee for Property Restitution and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e Pronave), composed of five members elected by Parliament. Its role is to decide on the lawfulness of district committees’ decisions. At district level decisions on restitution and compensation claims are to be taken by District Committees for Property Restitution and Compensation (section 15). 25. In accordance with the Act, the persons entitled to claim restitution or compensation have to lodge an application for such purpose with the District Committee by 31 December 2007 (section 19). The Act grants the committee discretion to decide which one of the forms of compensation should be granted. The entitled persons have to express in writing their preferences regarding the form of compensation to be awarded. The District Committee’s decision may be appealed against to the State Committee (section 11). 26. In order to comply with the committees’ decisions awarding payment of pecuniary compensation, section 23 of the above-mentioned Act provides for the establishment of a ten-year Property Compensation Fund, whose aim is to provide financial support for such awards. 27. The above-mentioned Act was scrutinised by both the Constitutional Court and the Supreme Court. 28. On 24 March 2005 the Supreme Court, Joint Colleges, concluded that the Property Act of 2004 had no retroactive effect and that its provisions could therefore not have any impact on property rights recognised by administrative or court decisions given before its entry into force. 29. In November 2005 the Government (as newly elected on 3 July 2005) introduced in Parliament a new bill on the Property Restitution and Compensation Act, which proposes several amendments to the Property Act of 2004. The bill, which is currently pending before Parliament, will be discussed in the coming months.