CASE OF ELTARI v. ALBANIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 13+6-1 - Right to an effective remedy (Article 6 - Right to a fair trial;Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
6. The applicant was born in 1956 and lives in Tirana. 7. On 28 December 1994 the Vlora Commission on Property Restitution and Compensation (“the Commission”) recognised the applicant’s and other heirs’ inherited title to a number of plots of land, amongst which a plot of land measuring 10,500 sq. m. As the restitution of that plot of land was impossible since it was occupied, the Commission decided that the applicant and the other heirs would be compensated in one of the ways provided for by law. 8. On 11 September 1997, relying on the right of first refusal, the applicant concluded a sale contract with the Vlora regional office of the National Privatisation Agency for the purchase of a pharmacy and its corresponding plot of 79.5 sq. m, which was allegedly part of the plot of land measuring 10,500 sq. m. 9. The chemist of the pharmacy lodged a complaint with the Vlora prosecutor office alleging that the sale contract was unlawful. 10. On 12 February 1998 the Vlora prosecutor initiated civil proceedings with the Vlora District Court (“the District Court”) seeking the nullity of the sale contract and the nullity of the Commission decision. The chemist intervened as a third party. 11. On 15 December 1999 the District Court declared null and void, in part, the Commission’s decision in so far as it had restored to the applicant the plot of 79.5 sq. m which corresponded to the site of the pharmacy. Relying on an expert’s report, it found that the plot of 79.5 sq. m had been expropriated in 1920, as a result of which the Property Act was inapplicable ratione temporis. Thus, the applicant could not claim a property right over that plot of land pursuant to the Property Act in so far as it had not been expropriated by the communist regime. Furthermore, the court decided to annul the contract for the purchase of the pharmacy since any such contract was based on the premise that only the owner of the site had the right of first refusal over the buildings constructed on it. However, the operative part of the judgment stated that the applicant would be compensated only in respect of 79 sq. m, the remainder of the property rights over 10,500 sq. m having been declared null and void. 12. On 21 March 2000 the Court of Appeal upheld the District Court’s decision. It found that the prosecutor had locus standi to lodge a civil action in accordance with the Prosecutor’s Office Organisation and Operation Act. It also held that the civil action was not time-barred as it had been lodged pursuant to the Property Act. It further dismissed the applicant’s complaint about the assessment of evidence and the credibility of the expert’s report. 13. On 20 March 2001 the Supreme Court dismissed the applicant’s appeal since it did not contain any lawful ground of appeal in accordance with Article 472 of the Code of Civil Procedure. 14. On 21 May 2001 the applicant filed a supervisory review request (rekurs në interes të ligjit) with the Supreme Court Joint Benches. 15. On 28 January 2003 the Supreme Court Joint Benches dismissed the applicant’s supervisory review request in the light of impending review proceedings that she had instituted (see “The review proceedings” below). 16. On an unspecified date the applicant filed a constitutional appeal. 17. On 4 November 2005 the Constitutional Court, sitting in plenary session, dismissed the applicant’s appeal finding that there had been no breach of the right to fair hearing. It found that the prosecutor’s civil action had been supported by the intervention of the chemist who had full interests in the case and did not disclose any breach of the applicant’s right to a fair trial. It further held that there was no other compelling evidence that the fairness of the proceedings had been tainted. 18. On an unspecified date the applicant requested revision of the decision of 15 December 1999. 19. On 6 February 2002 the District Court dismissed the revision request. 20. On 13 May 2003, following the applicant’s appeal, the Court of Appeal upheld the decision of 15 December 1999. 21. It would appear that the applicant’s appeal to the Supreme Court was dismissed on an unspecified date. 22. On 12 January 2005 the applicant lodged a request with the District Court for the interpretation of its decision of 15 December 1999, arguing that there existed a discrepancy between the reasoning and the operative part of the decision. 23. On 18 February 2005 the District Court entertained her request and rectified the operative part of the decision of 15 December 1999. It confirmed that the applicant’s property rights could not be recognised in respect of 79 sq. m and that the applicant should be compensated as regards the plot of land measuring 10,500 sq. m in one of the ways provided for by law. 24. The decision became final and binding on 7 March 2005, no appeal having been filed against it. 25. To date, the authorities have still not complied with the District Court decision of 15 December 1999, as rectified and interpreted by the decision of 18 February 2005. 26. The relevant provisions of the Albanian Constitution read: Article 42 § 2 “In the protection of his constitutional and legal rights, freedoms and interests, or in the case of a criminal charge brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” Article 142 § 3 “State bodies shall comply with judicial decisions.” Article 131 “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.” 27. The relevant domestic law as regards property restitution and compensation in Albania has been described in the judgments of Gjonbocari and Others v. Albania, no. 10508/02, §§ 36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§ 36-43, 13 November 2007, Ramadhi and Others v. Albania, no. 38222/02, §§ 23-30, 13 November 2007. 28. New and substantial legislative measures have been enacted amending the principal 2004 Property Act since the adoption of those judgments. The principal amendments are as follows: 29. Section 3 extended until 31 December 2007 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of the amount of compensation, the time-limit for which was fixed for 2015. 30. Section 13 established the Agency for the Restitution and Compensation of Properties (“the central Agency”) which replaced the State Committee on the Restitution and Compensation of Properties (“the State Committee”). The central Agency, which was headed by a Director, had its seat in Tirana and was made up of twelve regional Agency offices. 31. According to section 14, the regional Agency office was responsible for the initial examination of applications for the recognition of property rights, in response to which it decided on the restitution of property and/or compensation in lieu thereof. Section 15 set the time-limit for the submission of applications for the recognition of property rights for 1 October 2007. 32. Section 16 stipulated that an appeal against a decision of the regional Agency office could be lodged with the central Agency. The decision of the central Agency could be appealed against to the Tirana District Court within thirty days of its notification. 33. Section 21 extended until 31 June 2008 the time-limit for the completion of the examination of applications for the recognition, restitution and compensation of immovable properties, with the exception of payment of compensation. 34. Section 22 provided for the establishment of the In-kind Compensation Fund (IkCF) alongside the Financial Compensation Fund (“FCF”). Within sixty days from the Act’s entry into force, the Government had to approve the list of properties to be allocated to the IkCF. 35. Section 1 provided that the central Agency was responsible for examining claims for in-kind and financial compensation. The central Agency was also responsible for examining appeals against the decisions of regional Agency offices. 36. Section 2 reiterated that the regional Agency offices continued to be responsible for the initial examination of applications for the recognition of property rights. The claimant or the State Advocate’s Office had the right to appeal against that decision within thirty days to the central Agency, which was the highest administrative body. Such an administrative decision was amenable to judicial review in accordance with the provisions of the Code of Civil Procedure. 37. Section 1 extended until 31 December 2008 the time-limit for the submission of applications for the recognition of property rights and the restitution of properties by the regional Agency offices. It also provided for the possibility for a claimant to be given a new time-limit by way of a court decision. 38. According to section 2, the completion of the examination of applications for the recognition of property rights and restitution of properties would be finalised on 30 June 2009, with the exception of the payment of the amount of compensation, the deadline for which was fixed for 2015. 39. Section 3 extended until 31 December 2008 the deadline for the allocation of properties to the IkCF. 40. Section 2 provided that in addition to the budgetary appropriations, the allocations obtained by virtue of this law and other donors, the FCF would also be made up of proceeds obtained through auctions of State properties’ which had not been the subject of a Commission decision. 41. Section 6 abolished the regional Agency offices. It stated that the archives of those offices would be transferred to the central Agency. According to section 1, the central Agency would complete the examination of applications for recognition of property rights and restitution of properties lodged with the former regional Agency offices. The central Agency continued to examine appeals lodged with it against former regional Agency offices’ decisions. 42. According to section 5, the claimant or the State Advocate’s Office had the right to appeal against the central Agency’s decision within thirty days of its notification to the Tirana District Court. 43. Section 7 set the deadline for the completion of the examination of applications for the recognition and restitution of properties for 31 December 2011. 44. The 2010 Property Act chiefly introduced the possibility of requesting a revision of decisions of former Commissions / regional Agency offices. 45. Section 4 extended until 31 December 2011 the deadline for the allocation of properties to the IkCF. 46. Pursuant to Article 23 of the 2004 Property Act which established the Financial Compensation Fund, the Government adopted the above-mentioned decisions, between 2005 and 2009, in respect of the award of financial compensation to former owners. 47. In 2005 financial compensation was awarded in respect of compensation claims arising out of the Tirana Commission’s decisions. In 2006 financial compensation was awarded in respect of compensation claims arising out of the decisions of the Tirana and Kavaja Commissions. In 2007 the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued. In 2008 and 2009 all former owners, who were entitled to compensation, following a Commission / regional Agency’s decision, were eligible to apply for financial compensation. 48. According to the CMDs adopted between 2005 and 2008, a claimant was required to lodge a standard application for financial compensation with the central Agency in Tirana, furnishing, inter alia, the Commission / regional Agency’s decision that recognised his right to compensation. Only those former owners who had not previously received compensation were entitled to financial compensation from 2005 to 2008. The 2009 CMD provided that a former owner was entitled to financial compensation on the condition that he had not benefited from: a) previous compensation; b) partial restoration/restitution of the property; c) the right to first refusal; d) the implementation of the Act on the Distribution of Land (Law no. 7501 of 19 July 1991). 49. Applications would be examined in chronological order on the basis of the Commission’s / regional Agency’s decision date and number. The amount of financial compensation, which was to be calculated on the basis of property valuation maps, was limited to a maximum of 200 sq. m. 50. The lodging of an application entailed the payment of a processing fee. Former owners who had been unsuccessful in their application for financial compensation in a preceding year could re-submit their application in the following year(s) once they had paid the processing fee. 51. None of those decisions provided for the award of compensation to holders claims arising out of a final, enforceable court decision. 52. By virtue of the above-mentioned decisions, two of which were adopted in 2007 and two in 2008, the Government approved and issued property valuation maps as listed above. The maps included the reference price per square metre throughout the country. 53. The first decision fixed the price of land for the regions of Berat, Gjirokastër, Vlorë and Dibër; the second decision fixed the price of land for the regions of Lezhë, Dibër, Korçë and Kukës; the third decision fixed the price of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës and Shkodër. The fourth decision contained an updated price list for certain cities. 54. The 2006 Property Act provided for the establishment of an In-kind Compensation Fund (“IkCF”). The Government would adopt the procedures for the allocation of properties covered by the IkCF. 55. By decision of 5 September 2007 the Government laid down the criteria and the procedures for the determination of State properties covered by the IkCF (CMD no. 567 of 5 September 2007). Section 1 lists the types of properties, for example: a) public immovable property which is located in tourist areas; b) properties of the Ministry of Defence which are not used by the armed forces and have been approved by the President of the Republic; c) available agricultural land belonging to the Ministry of Agriculture; d) forests, pastures and meadows; and e) property of State institutions which falls outside their intended activity. 56. The Agency and its regional offices are responsible for checking the legal status of each property as submitted by the respective State institution. The Agency submits the final list of immovable properties for inclusion in the IkCF to the Minister of Justice. The Government are to approve the list and publish it in the Official Journal. 57. To date, it would appear that no such list has yet been approved. 58. Articles 324-333 govern the adjudication of administrative disputes, following exhaustion of all administrative remedies. Article 324 provides that a party may bring an action before a court with a view to revoking or amending an administrative decision. Under Article 325 a party must argue that the decision is unlawful and that his or her own interests and rights have been violated directly or indirectly, individually or collectively. 59. With regard to the appeal procedure before the Supreme Court, the Code of Civil Procedure, in so far as relevant, reads as follows: Article 472 “Decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision. ...” Article 480 “An appeal [to the Supreme Court] shall be declared inadmissible if it contains grounds other than those provided for under the law. The inadmissibility of appeals shall be decided upon in deliberations in camera.”