CASE OF DRIZA v. ALBANIA
Violations of Art. 6-1;Violation of P1-1;Violation of Art. 13+P1-1;Pecuniary and non-pecuniary damage - financial awards (global) and Government to return the plot of land;Costs and expenses - claim dismissed
Josep Casadevall
5. The applicant was born in 1941 and lives in Tirana. 6. The relevant domestic proceedings concern an application for the restitution of land. 7. In pre-war Albania the applicant’s late father had owned a bakery in Tirana and a plot of land measuring 6,000 square metres In 1960 the Albanian authorities demolished the building and expropriated the land. 8. On 27 September 1994 the Tirana District Court restored the applicant’s property rights over his late father’s property pursuant to the Property Restitution and Compensation Act 1993 (hereinafter, the Property Act). The decision became final and binding at the latest on 11 October 1994. 9. As it was unable to return the original property, the Tirana City Council decided on 30 April 1996 that the applicant had a right to receive compensation in kind for the original property. It allocated him a piece of land situated two kilometres from the centre of Tirana and measuring 5,000 sq. m. The land was divided into two plots measuring, respectively, 1,650 sq. m. (hereinafter, the smaller plot) and 3,350 sq. m. (hereinafter, the larger plot). 10. By decision no. 621 of 20 June 1996 the Tirana Commission on the Restitution of Properties and Compensation (hereinafter referred to as the “Tirana Commission”) upheld the Tirana City Council’s decision. 11. On 15 August 1996 the applicant’s title to the land was entered in the Tirana Land Register. 12. In 1996 and 1997 a series of possession orders concerning the two plots of land were issued by the Tirana City Council and the Tirana District Court. However, the applicant was unable to recover possession from the occupants. 13. On 10 September 1997 he concluded a preliminary contract to sell the smaller plot. 14. F.Z., a former member of an agricultural cooperative, had previously been granted under Law no. 7501 of 19 July 1991 the right to use the smaller of the two plots allocated to the applicant. 15. On an unspecified date she brought a civil action in the Tirana District Court claiming full title over the smaller plot under Law no. 8053 of 21 December 1995. She also asked the District Court to set aside the Commission’s decision of 20 June 1996 in so far as it related to that plot. 16. On 10 October 1997 the Tirana District Court set aside the Commission’s decision relating to the smaller plot on the grounds that the Commission had first to award compensation to the user and to the former owner of the land. 17. The applicant lodged an appeal with the Tirana Court of Appeal claiming full title to the plot. He argued that, when the Commission reached its decision, the plot was State property that was available for allocation to former owners in lieu of compensation. He added that F.Z. was merely a user of the land at the time. 18. On 2 June 1998 the Tirana Court of Appeal allowed the applicant’s appeal, quashed the District Court’s decision as being defective in law and upheld the validity of the Commission’s decision concerning the applicant’s title. 19. On 17 December 1998 the Supreme Court (Administrative Division) deciding on the merits, upheld the applicant’s rights over the smaller plot of land that had been allocated as compensation for the original property. The judgment became final and binding on an unspecified date. 20. On an unspecified date, while the enforcement proceedings were in progress, F.Z. lodged an application with the Supreme Court for supervisory review (Rekurs në interes të ligjit) of the merits of the Supreme Court (Administrative Division’s) judgment of 17 December 1998 and of the Court of Appeal’s judgment of 2 June 1998, on the grounds that they conflicted with substantive law. 21. The application for supervisory review was examined by the Supreme Court (Joint Colleges). On 5 July 2001, approximately two and a half years after the final decision, the Supreme Court granted the application. On the same date, it quashed, by a majority, the judgments of 2 June 1998 and 17 December 1998 in favour of the applicant, and upheld the District Court’s decision of 10 October 1997 dismissing the applicant’s claims relating to the smaller plot of land. It found that the Commission’s decision had been based on a misinterpretation of the substantive law (Property Act 1993). 22. The applicant was neither informed of the supervisory-review proceedings nor invited to attend the hearings before the Supreme Court. He was not served with the Supreme Court’s judgment within the six-month time-limit for appealing and so did not appeal against it. 23. Of the fifteen Supreme Court judges who decided the case on 5 July 2001, three (B. C., N. SH. and M.S.) had been members of the panel which on 17 December 1998 had decided the merits of the case. A further three (Th. K., P.Z., and V.K.) had sat on the panel which on 7 December 2000 had decided the merits of the case in the proceedings concerning both plots of land (see paragraph 29 below). The first three judges were called upon to rule in the supervisory-review proceedings on their alleged misinterpretation of substantive law while the other three judges had to determine the merits of the case for the second time in the same proceedings. 24. In 1997 the State Supreme Audit Institution (Kontrolli i Larte i Shtetit), acting on its own behalf and at the instance of S. SH., the user of the larger plot of land allocated to the applicant, brought an action in the Tirana District Court for an order setting aside the Commission’s decision of 20 June 1996 in its entirety, on the ground that it had exceeded its jurisdiction by allocating land to the applicant. 25. On 22 December 1997 the Tirana District Court set aside the Commission’s decision in its entirety as being defective in law. It also held that the State had an obligation to pay the applicant compensation under the Property Act for a plot of land measuring 5,000 sq. m. 26. On an unspecified date the applicant lodged an appeal with the Tirana Court of Appeal seeking the reinstatement of the Commission’s decision allocating him the land. 27. On 9 April 1999 the Tirana Court of Appeal dismissed the applicant’s appeal and upheld the District Court’s decision. 28. On an unspecified date the applicant lodged an appeal with the Supreme Court (Civil Division) arguing that the lower courts had failed to rule on the question of the users’ title to the land. 29. On 7 December 2000 the Supreme Court (Civil Division), deciding the merits of the case, upheld the Court of Appeal’s judgment on the ground that the Commission had exceeded its jurisdiction by deciding on the form of compensation the applicant should receive for the loss of his original property. It noted that pursuant to a Council of Ministers’ decision of 13 May 1996, Commissions were to be set up by the municipal councils to assess compensation for land situated in tourist areas. These Commissions had yet to be established. Lastly, the Supreme Court upheld the applicant’s right under the Property Act to obtain the payment of compensation for a 5,000 sq. m. plot of land. 30. The applicant lodged an appeal with the Constitutional Court under Article 131 (f) of the Constitution, arguing that the Supreme Court’s judgments of 7 December 2000 and 5 July 2001 were unconstitutional. 31. The appeal was declared inadmissible by the Constitutional Court on 8 April 2002 pursuant to Article 31 of the Constitutional Court Act, as being “outside its jurisdiction”. 32. The applicant says that an apartment block has now been built on the larger plot of land by third parties and the apartments sold to, and occupied by, new owners. The smaller plot is occupied by temporary structures. The applicant has not received any compensation from the authorities. 33. The Albanian Constitution, in so far as relevant, 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 are permitted only if fair compensation is provided. 5. A complaint may be filed in court to resolve disputes regarding the amount or extent of compensation due.” “In order to protect their constitutional and legal rights, freedoms and interests, or to defend criminal charges, everyone shall have 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: ... (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 this Constitution enters into force, the Assembly, guided by the criteria of Article 41, shall issue laws for the just resolution of various issues relating to expropriations and confiscations that were effected before the approval of this Constitution. 2. Laws and other normative acts relating to expropriations and confiscations enacted before the entry into force of this Constitution shall continue to apply provided they are compatible with the Constitution.” 34. Under the Code of Civil Procedure 1996, which was in force at the material time, judgments became final in the following circumstances: “Court judgments shall become legally binding on the expiration of the time-limit for lodging an appeal if no such appeal has been lodged. If the judgment is not quashed on an appeal to a higher court, it shall become legally binding when the higher court delivers its decision...” 35. Pursuant to the provisions in force at the material time supervisory review (Rekurs në interes të ligjit) was an extraordinary remedy that enabled courts to reopen proceedings after a judgment had become final. Between 1996 and its abrogation by Law no. 8812 of 17 May 2001 the supervisory-review procedure underwent several legislative changes. “Final judgments, decisions and rulings of the colleges 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 moment the decision becomes binding. The application for supervisory review will firstly be examined by a preliminary review panel of five judges and then by the full Supreme Court (Joint Colleges). ... Judges of the Supreme Court who sat as members of the division that delivered the judgment, decision or ruling or of the preliminary review panel shall not sit on the panel that conducts the supervisory review of the final judgment...” 36. The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) has undergone several amendments during the past fourteen years. The main changes to the first Property Act of 1993 came about as a result of two laws which entered into force respectively in 2004 and 2006. The original Act and these two amending Acts will hereinafter be referred to as the “Property Act 1993” the “Property Act 2004” and the “Property Act 2006” respectively. The relevant provisions of each of these laws can be summarised as follows: 37. Under the Property Act 1993 former owners of properties expropriated by the relevant regime and the legal heirs of such owners had the right to claim ownership of the original properties. Upon ownership being determined they were entitled either to the restitution of the original immovable property or to an award of compensation either in kind (up to a maximum of 10,000 sq. m) or in value if any of the following conditions was met: the alleged property (1) was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) was not subject to Law no. 7501 of 19 July 1991; (3) was currently State-owned; or (4) had been designated as suitable for construction and was situated within the boundaries of a city. Section 16 of the Act provided for the following forms of compensation in respect of property which could not be returned: (a) State bonds, equivalent to the compensation owed, with a first option over shares in State enterprises being privatised by the Government or in other activities carried on through the granting of loans; (b) an equivalent plot of land or a building site near to an urban area, in accordance with the general urban-development regulations; and (c) an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations. The Council of Ministers had power to define detailed rules for determining how such compensation should be provided and the applicable time-limits. 38. The 1993 Act also instituted the Commission on the Restitution of Properties and Compensation (Komisioni i Kthimit dhe Kompensimit të Pronave) as the competent administrative body to deal with former owners’ claims to restitution and compensation. However, it did not provide a time-limit within which a decision could be appealed against, so preventing it from even becoming binding. 39. The Property Act 2004, which repealed the previous version, provided for two forms of restitution of immovable property, namely the return, under certain circumstances, of the original property and compensation in the event of the authorities being unable to return the original property. Restitution was not limited in size. The Act provided for five forms of compensation: (a) property of the same kind; (b) property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the course of privatisation, and (e) a sum of money corresponding to the value attributed to the property at the time of the decision (section 11). The Act instituted the State Committee on Property Restitution and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e Pronave), composed of five members elected by Parliament. Its role was to decide on the lawfulness of district committees’ decisions on restitution and compensation claims (sections 15 and 17). The Council of Ministers was to establish the rules and the criteria to be applied (sections 13). 40. Section 19 provided for the enforcement of decisions awarding compensation within the first six months of each financial year. Following its entry into force, anyone entitled to claim restitution or compensation was required to lodge an application with the District Committee by 31 December 2007. The Act granted the Committee a discretion to decide which form of compensation should be granted, but applicants could express their preference in writing. An appeal lay against the District Committee’s decision to the State Committee (section 20) and to the district courts within thirty days of the date of issue of the Committee’s decision. 41. On 28 April 2005 Parliament enacted legislation setting out the method by which immovable property would be valued for compensation purposes. Its implementation was left to the State Committee on Property Restitution and Compensation, which was to issue the site plans allowing the properties to be valued. 42. In order to comply with the committee’s awards of pecuniary compensation, section 23 of the 2004 Act provided for the establishment of a ten-year Property Compensation Fund, whose aim was to provide financial support for such awards. The 2004 Act was examined by both the Constitutional and the Supreme Courts. 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 dating from before its entry into force. 43. On 17 July 2006 the Property Act 2004 was amended by the Property Act 2006, which entered into force on 17 August 2006. It provided, inter alia, for the establishment of the Agency for the Restitution of Properties and Compensation, a new body competent to decide restitution and compensation claims (section 15). The new law repealed sections 11 (2), 19 and 20 of the 2004 Act which, inter alia, laid down the procedure for the enforcement of compensation awards. 44. Law no. 8053 of 21 December 1995 conferred on former members of agricultural cooperatives the right to request the title to land they were farming.