SPAHIU v. ALBANIA
Inadmissible
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Mr Kujtim Spahiu, is an Albanian national, who was born in 1955 and lives in Bologna. He was represented before the Court by Mr M. Salmon, a lawyer practising in Bologna. 2. The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Ms S. Mëneri of the Foreign Affairs Ministry and, subsequently, by Ms L. Mandia of the State Advocate’s Office. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 9 November 1939 the applicant’s father and uncle (A.) jointly bought a plot of land measuring 91,000 sq. m from the Durrës Municipality. On unspecified dates between 1939 and 1941 the applicant’s father and A. sold 8,878.59 sq. m to third parties. 4. On 18 June 1969 the Durrës District Court recognised the joint ownership of a house erected on that plot of land: since the two brothers had jointly erected the frame structure of the house, they owned it in equal shares. It further rejected A.’s argument that he was the sole owner of the plot of land as no relevant notary deed had been submitted to the court. On 1 December 1969 the Supreme Court upheld the decision. 5. By a note of 7 March 1969 the mortgage office certified that the property had been jointly purchased in 1939 by the applicant’s father and A. and that it was registered as co-owned. 6. On an unspecified date the plot of land was nationalised. 7. On 13 January 1994 the Durrës Commission on Restitution and Compensation of Properties (“the Commission”) recognised A.’s heirs property rights to the plot of land measuring 91,000: 5,000 sq. m were to be restored; compensation was to be provided for the remaining 77,120 sq. m and the remaining plot had been previously sold to third parties. The applicant’s father’s name did not appear on the decision. 8. On an unspecified date in 1995 the applicant challenged the Commission decision before the Durrës District Court (“the District Court”) arguing that A. and his father were co-owners in equal shares of the relevant plot of land. 9. On 12 December 1996 the head of the State Committee on Property Restitution and Compensation, in a letter addressed to the applicant, stated, inter alia, that the Commission had wrongly taken its decision given that the applicant’s father and A. were co-owners. 10. On 17 February 1997 the Durrës District Court, following the remittal of the case, dismissed the applicant’s civil action. Even though the plot of land had been jointly purchased by the applicant’s father and A. in 1939, two cadastre documents of 1994 showed that the applicant’s father and A. each owned a plot of land, so that A. was the sole owner of the relevant plot of land following the division of the property. Both A. and the applicant’s father had paid taxes separately and had registered their titles in the civil registrar’s office separately. As to the decision of 18 June 1969 as upheld by the Supreme Court on 1 December 1969 (see paragraph 4 above), the District Court found that it did not change the status of separate property titles that A. and the applicant’s father had. 11. On 19 November 1997 and 6 May 1998 the Court of Appeal and the Supreme Court, respectively, upheld the decision and rejected the applicant’s appeals. 12. On 1 October 1999 the applicant filed a supervisory review request with the Supreme Court. 13. On 26 December 2000 the Supreme Court decided to refer the case to its Joint Benches. 14. On 18 January 2002 the Supreme Court Joint Benches quashed the decisions on the ground that they had been taken contrary to the law. The courts had not given reasons as to how the property had been voluntarily divided up between the applicant’s father and A. No notary deed or other act, as required by law, had been submitted by A.’s heirs to the courts. The fact that the applicant’s father and A. had been registered separately in the civil registrar’s office and that they were economically independent was not sufficient to conclude that the property had been divided or that its coownership had ceased to exist. Having regard to the fact that the property certificates submitted by the parties originated from different offices, the Supreme Court directed that only documents originating from the mortgage office (zyrat e hipotekës) were to be relied upon. The courts had not taken into account the findings of the decision of 18 June 1969 as upheld by the Supreme Court on 1 December 1969, which not only recognised the coownership to the house but also ruled that “the siblings had jointly erected the frame structure of the house on the plot of land”. It finally ordered the remittal of the case to the Court of Appeal for a fresh consideration. 15. On 17 October 2002 the Court of Appeal upheld the applicant’s action. It ruled that co-ownership could exist irrespective of the civil status of households. No document had been submitted to the effect that the relevant property had been divided between the parties. While the cadastre documents of 1994 indicated that the applicant’s father and A. owned each a separate plot of land, this did not constitute evidence of the transfer of the property title. The lower courts had incorrectly disregarded the court decisions of 1969 which recognised the co-ownership of the house and the plot of land. 16. On 12 February 2004 the Supreme Court quashed the Court of Appeal decision of 17 October 2002 and upheld the findings of the District Court’s decision of 17 February 1997. No arguments had been advanced about the continuation of co-ownership after 1944. Following the conduct of the agrarian reform, A.’s heirs had proved that the co-ownership had terminated: the brothers had registered as separate owners of two different plots of land, they had paid taxes and dues separately and their family status had been registered separately. According to the law in force, the division of property was made by oral accord and registered with the competent authority. 17. The applicant lodged a constitutional appeal arguing that the Supreme Court’s decisions of 2004 and 2002 were contradictory. He further complained that the Supreme Court’s bench had overstepped its powers by reassessing the evidence and re-examining the merits of his case. 18. On 2 December 2005 the Constitutional Court, sitting in full bench, dismissed the applicant’s appeal. It reasoned that the appeal concerned the interpretation of domestic law, which was outside its competence. 19. Article 141 § 2 of the Constitution states that a Supreme Court’s bench may relinquish jurisdiction to the Supreme Court Joint Benches to harmonise or change the legal practice (case-law). 20. Article 35, as in force at the material time, provided that the Supreme Court sat in benches (kolegje) of five judges and in Joint Benches (kolegje të bashkuara) of all judges. At the material time, the Supreme Court was composed of seventeen judges. 21. According to Article 481, the President of the Supreme Court may decide that the court sit in Joint Benches as regards appeals submitted by the parties, in so far as there exist conflicting decisions given by the ordinary bench of five judges. 22. Under Article 485, following the examination of the case, the Supreme Court, sitting as a bench of five judges or as Joint Benches, may decide: to uphold the decision, to quash the Court of Appeal’s decision and uphold the District Court’s decision, to quash the Court of Appeal’s decision and remit the case to that court for fresh examination by a different bench, to quash the Court of Appeal’s and the District Court’s decisions and remit the case to the District Court for fresh examination by a different bench, to amend the Court of Appeal’s and the District Court’s decisions, or to quash the decisions and dismiss the case (pushimin e gjykimit të çështjes). 23. The proceedings concerning supervisory review were described in Vrioni and Others v. Albania, no. 2141/03, 24 March 2009. “37. According to the provisions in force at the material time, supervisory review was an extraordinary remedy which enabled courts to reopen proceedings following a final judgment (rekurs në interes të ligjit). Between 1996 and its repeal in 2001 by Law no. 8812 of 17 May 2001, the supervisory review procedure was the subject of several legislative changes. Article 473 – Review in the interests of the law (Law no. 8431 of 14 December 1998) ‘Final judgments, decisions and rulings of the divisions of the Supreme Court shall be amenable to supervisory review in the interests of the law for the reasons set forth in section 472(a), (b) and (c) on an application lodged by the parties to the proceedings within three years from the date on which the decision becomes binding. The application for supervisory review will first be examined by a preliminary review panel of five judges and then by the full Supreme Court (Joint Benches). ... Judges of the Supreme Court who sat as members of the division that delivered the judgment, decision or ruling or as members of the preliminary review panel shall not sit on the panel that conducts the supervisory review of the final judgment...’”