BEJKO v. ALBANIA
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev
1. The applicant, Mr Astrit Bejko, was an Albanian national, who was born in 1950. He was represented before the Court by Mr. S. Puto, a lawyer practising in Tirana. 2. On 29 December 2014 the applicant’s lawyer informed the Court of the applicant’s death and of the wish of his heirs, namely his spouse, Ms Ornela Kotherja, and his children, Mr Etis Bejko and Ms Lorena Bejko, to pursue the application. For practical reasons, use will however continue to be made of the initial applicant for the purpose of this decision, although his heirs are now to be regarded as having that status (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999VI and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 97-101, ECHR 2013).. 3. The Albanian Government (“the Government”) were represented by their then Agent, Ms E. Hajro of the State Advocate’s Office. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In 1988 the applicant sought to obtain housing from the State. At the time, housing units were owned and managed by the State. They were allocated to households by the local authorities. 6. On 18 April 1990 his spouse was issued with an occupancy authorisation for a two-bedroom flat by the Neighbourhood People’s Council in Tirana (autorizim nga Këshilli Popullor i Lagjes Tiranë). The authorisation also indicated the address of the flat. As a result, on 22 May 1990 a tenancy agreement (kontratë qiraje) for a State-owned flat was concluded between the applicant’s wife and the State-owned housing maintenance authority (Ndërmarrja Komunale Banesa). 7. On 11 August 1990 the applicant concluded an agreement (akt marrëveshje) with the local authority to vacate the flat and exchange it for another two-bedroom flat which was in the process of being constructed by the State-owned Forest Service (ndërmarrja pyjore) at an indicated address. 8. On 12 May 1991 the applicant’s spouse was issued with another occupancy authorisation for a two-bedroom flat. The authorisation also indicated the address of the flat and the fact that, if a contract were not concluded within ten days, the authorisation would cease to have effect. On 17 February 1992 a provisional tenancy agreement was concluded. It would appear that the applicant never occupied the flat. 9. On 24 February 1994, further to a decision of the municipality of Tirana (“the Municipality”), the applicant was issued with an occupancy authorisation for a two-bedroom flat that had been constructed by the Forest Service. The authorisation also indicated the address of the flat. However, the applicant was unable to occupy the flat and conclude a privatisation agreement in the light of a Municipality’s letter of 18 April 1994, which stated as follows: “No action should be taken for the privatisation of Astrit Bejko’s flat [address indicated] until further notice (të mos veprohet për privatizimin e apartamentit të Astrit Bejkos ... deri në një urdhër të dytë). 10. On 10 May 1994 the Municipality revoked its decision of 24 February 1994, no reason having been given. 11. On 17 September 1996 the National Housing Agency (“NHA”), pursuant to an agreement it had concluded with a State-owned company, Petrolimpeks, for the construction of a block of flats through the aid of its funding, requested the Municipality and the municipal council (Këshilli Bashkiak) not to allocate, amongst others, flats nos. 7 and 8 to anyone on their list of homeless households, because those flats would be made available to employees of the State-owned company (see paragraph 20 and 25 below). 12. In the meantime, on 10 September 1996 an inspection report by the Ministry of Public Works and Territorial Planning found that Petrolimpeks’ funds had been erroneously used for the construction of a block of flats belonging to the Ministry of Defence. Pursuant to a Government decision the block of flats had been made available to the municipal council, which was responsible for the allocation of flats to homeless households. 13. On 10 October 1996 the municipal council decided to include the applicant’s name on the list of households to be provided with an occupancy authorisation in respect of flat no. 8. The relevant part of the decision reads as follows: “...the council...decided to provide the following citizen[s] with authorisation: ... 7. Astrit Bejko in respect of flat no. 8 (a two-bedroom flat)”. 14. On 15 October 1996 the applicant was issued with a fresh occupancy authorisation for a two-bedroom flat. The authorisation, in so far as relevant, read as follows: “Pursuant to council’s decision of ... 10 October 19996 Mr Astrit Bejko is allocated a two-bedroom flat located at [address indicated] flat no. 8.” 15. Confronted with pressing housing needs, the applicant occupied flat no. 8 immediately, no tenancy agreement having been concluded. A third party, R.B, occupied the neighbouring flat on the strength of an occupancy authorisation for a two-bedroom flat. However, upon entering the flat, the applicant found that the construction company, on instructions from the NHA, had amended the layout of the flats so that the flat occupied by the applicant had only one bedroom. The neighbouring flat, occupied by R.B, had been modified to a three-bedroom flat contrary to his occupancy authorisation for a two-bedroom flat. The applicant and R.B, following the Municipality’s approval, then converted the flats into two two-bedroom housing units. 16. By a letter of 6 February 1997 the municipal council was asked to transfer the applicant’s authorisation to another flat located at a difference address, because flat no. 8 had already been allocated to other households (see paragraph 20 and 25 below). Consequently, on 15 May 1997 the municipal council decided to amend the applicant’s occupancy authorisation of 15 October 1996 by allocating the applicant another flat whose construction had not yet started. The decision reads, in so far as relevant, as follows: “The council, [which was] convened on 15 May 1997, (...) decided: 1. The authorisation issued in respect of apartment[s] ... 8 [address indicated] pursuant to the decision ... of 10 October 1996 should be transferred to [address indicated] whose construction will commence [shortly] (autorizimet e dhëna për apartamentet nr ... 8 sipas vendimit ... dt 10.10.1996 ... të transferohen në seksionin ... që do të fillojë së ndërtuari). (...) 3. The decision enters into force immediately.” 17. On an unspecified date the applicant instituted legal proceedings seeking the nullity of the municipal council’s decision of 15 May 1997. These proceedings, which continued until 27 January 2003 at various levels of jurisdiction, ended with the dismissal of the applicant’s claims. 18. On an unspecified date in May 2001 the applicant began a hunger strike to protest against the injustices he believed he had suffered. He submitted newspaper clips as evidence of this. 19. On 4 September 2001 the applicant was informed of the municipal council’s decision of 20 July 2001, which had decided to allocate the applicant the flat indicated in its decision of 10 October 1996 and the authorisation of 15 October 1996. The relevant parts of the decision read as follows: “The council, [which was] convened on 20 July 2001, ... decided: 1. The authorisations issued by way of the council’s decision ... of 15 May 1997 should be transferred to apartment[s] nos. ... 8 at [address indicated] (autorizimet e dhëna me Vendim të Këshillit Bashkiak nr ... dt. 15.05.1997 të transferohen në apartamentet nr. ... 8 në seksionin ...).” 20. In the meantime, on 28 January 1997 R.S, who was an employee of the State-owned company Petrolimpeks, was issued with an occupancy authorisation for a one-bedroom apartment in respect of flat no. 8. On 30 January 1997 R.S concluded a provisional contract with the NHA for the sale of the flat, while the final contract of sale by way of payment of instalments (kontratë për shitje apartamenti me pagesë me këste) was concluded on 24 February 1997. 21. On 25 September 1997 R.S initiated legal proceedings against the applicant requesting him to vacate the flat, which the applicant had allegedly occupied unlawfully since 15 October 1996. R.S relied on the authorisation granted to him and the provisional and final sale contracts of 30 January and 24 February 1997. 22. The domestic proceedings continued before various levels of jurisdiction. On 21 November 2002 the Supreme Court finally found that R.S had acquired property rights over the flat by virtue of the sale contract of 24 February 1997 and the payment of the sale price. The applicant could not be regarded as a lawful occupant, because the occupancy authorisation of 1996 had been revoked in 1997. Furthermore, the domestic courts had ruled against the applicant in the proceedings he had instituted in relation to the nullity of the municipal council’s decision 1997 (see paragraph 17 above). 23. In October 2001 the applicant was forcibly evicted from his flat by the police. In 2002 he left the country for Italy. 24. In September 2002 the applicant instituted legal proceedings against R.S alleging that the sale contract between R.S and the NHA was null. The proceedings were concluded on 9 December 2004 in favour of R.S. 25. On an unspecified date either in 1995 or 1996 F.D, who was an employee of the State-owned company Petrolimpeks, was issued an occupancy authorisation for a three-bedroom apartment in respect of flat no. 7. On 6 August 1996 F.D concluded a provisional contract with the NHA for the sale of the flat, while the final contract was concluded on 11 March 1997. 26. On 20 January 1998 F.D instituted legal proceedings against the applicant and R.B. He requested that the applicant vacate and restore him the room he had occupied as a result of the modification to the layout of the flat (see paragraph 15 above). 27. On 10 December 2002 the Supreme Court held that the municipal council should not have allocated flats, which had been constructed with the funding of State-owned companies, to homeless households found on its lists. F.D, being an employee of the State-owned company Petrolimpeks, was entitled to the allocation of flat no. 7. The Supreme Court considered that the sale contract was lawful and stated that the flat had also been registered in the immovable property register. It further held that the municipal council had annulled its authorisation of 1996. As regards the nature of the authorisation, it stated as follows: “The authorisation to a flat merely serves planning purposes; as long as no consequences have derived therefrom, it may be revoked, as in the instant case, by the authority that adopted it (autorizimi për banesë është thjesht një akt planifikimi dhe deri sa nuk ka sjellë pasoja mund të revokohet nga vetë organi që e ka dhënë si kundër është vepruar edhe në rastin konkret). 28. The applicant’s constitutional complaint, a copy of which was not submitted to this Court, was dismissed by the Constitutional Court on 3 February 2005 as follows: “The only ground of appeal related to F.D’s lack of standing, which was rejected by the ordinary courts, including the Supreme Court. The Constitutional Court considers that the claim raises no legal argument so as to examine the complaint.” 29. The relevant part of Chapter V of the Constitution, which is entitled “Social Objectives”, reads as follows: Article 59 “The State, within its constitutional powers and the means available to it, and in the fulfilment of the private initiative and responsibility, aims at: ... b. the fulfilment of the housing needs of its citizens. ...” 30. The 1992 Act established the organisation of local government in the country. Three administrative units were established: the commune (komunë), the municipality (bashkia) and the district (rreth). The organs of the municipality were the mayor and the municipal council. One of the responsibilities of the municipal council was to take measures to provide employment and housing (section 14 § 14). It had power to issue orders (urdhëresa) and decisions (vendime) (section 14 § 21). 31. The 2000 Act, which repealed the 1992 Act, introduced two administrative units in addition to the commune and municipality: the region (qarku) and the sub-division (nëndarja). Section 10 recognises the municipality’s responsibility for urban planning, land-management and housing as provided for in the relevant legislation. 32. This Act aimed at privatising State-owned housing units and creating a free housing market, empowering tenants to become owners. It enabled individuals residing, by virtue of a tenancy agreement, in flats owned by the State to transfer their flat into their private ownership, upon compliance with a set procedure, payment of the full privatisation price and registration of the property at the mortgage registry. 33. Under Council of Ministers’ ordinance no. 1 of 7 July 1989, one of the spouses or another adult member of the household had the right to lodge a housing request with the Neighbourhood People’s Council (Këshilli Popullor i Lagjes – sections 1, 4 and 7) or the City People’s Council, which had authority to provide that person with an occupancy authorisation (autorizim). The authorisation indicated the number of the flat as well as its location. 34. State companies or institutions, which had contributed by way of their funding to the construction of a block of flats, could issue an occupancy authorisation to their homeless employees (sections 9-11). A commission for the allocation of housing units was established for this purpose (komisioni i shpërndarjes së banesave në qendrën e punës – “the Commission”). The local government councils had the right to withhold approval of the Commission’s decisions if they were considered unjust (section 12). 35. A tenancy agreement was to be concluded, within ten days from the date of the authorisation, between the tenant and the State-owned housing maintenance authority (Ndërmarrja Komunale Banesa). Failing the conclusion of the tenancy agreement within the prescribed time-limit, the authorisation became invalid. 36. The decision provided for the establishment of the NHA, which was responsible for financing, constructing and administering housing units (banesa) in the country. Some of its responsibilities included the conclusion of contracts for the construction, completion and sale of flats and cooperation with local authorities in fulfilling their housing obligations. The NHA’s funds consisted of allocations by the State and local budgets, loans by domestic and international financial institutions, donations and revenues resulting from privatisation of State-owned housing units. 37. The decision determined the criteria for the classification of homeless citizens. The commune or city councils were tasked to draw up local lists of homeless citizens. The lists would be deposited with the NHA. 38. The decision provided that State companies and institutions could use their profits to construct flats to accommodate the housing needs of their homeless employees (punonjësit e pastrehë). The funding would be transferred to the NHA, which constructed housing units in accordance with the domestic legislation. The allocation of flats by way of an authorisation was carried out by the Commission set up within the State company or institution, according to a list of homeless employees. The list of beneficiaries was deposited with the local authority. The NHA was responsible for concluding sale contracts with the homeless employees who had been provided with an authorisation. 39. The decision provided that the NHA would conclude a sale contract with a homeless citizen, who was required to make a down payment, the remaining amount to be paid in instalments over a twenty-five-year period with zero interest rate. The upfront payment of the entire sale price resulted in a reduction of the total price. 40. The decision provided that the NHA would conclude a provisional sale contract with a homeless citizen within one month from the commencement of construction works. At the time of the conclusion of the provisional sale contract, the homeless citizen was required to make a down payment. Failure to make the down payment would result in the loss of use of the authorisation. A final sale contract would be concluded at the completion of the construction works. 41. The decision reiterated that the lists of homeless citizens were drawn up by local authorities and were deposited with the NHA. State companies and institutions would transfer their funding to the NHA for the construction of blocks of flats. State companies and institutions would draw up lists of homeless citizens to be housed in these blocks of flats. The lists would be deposited with the NHA, which would conclude sale contracts with those citizens.