CASE OF TOPALLAJ v. ALBANIA
Preliminary objection dismissed (Article 34 - Victim);Remainder inadmissible (Article 35-3 - Ratione personae);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney
7. The applicant was born in 1951 and lives in the United States of America. 8. On 21 December 1995 the Tirana District Court (“the District Court”) acknowledged the inherited property rights of some landowners over a plot of land measuring 24 hectares (vendim për vërtetim fakti). On 13 February 1996 the District Court acknowledged that the landowners also had inherited property rights over installations and fuel tanks of a petrol station located on the land (vendim për vërtetim fakti). 9. In the meantime, on the assumption that the landowners’ properties would be restored in natura by the Commission on Property Restitution and Compensation, in January and February 1996, the applicant concluded two agreements with one of the landowners, who was acting on his own and the remaining heirs’ behalf, whereby the applicant would assist the landowners in the process of the privatisation of installations and fuel tanks on the land (see paragraphs 21-22 below). In May 1996 he concluded a sales contract (see paragraph 23 below). Following the conclusion of these contracts, the validity of which became the object of a dispute (see section B below), all landowners appointed the applicant to act on their behalf in proceedings related to the protection of their property rights. 10. On the strength of the District Court’s decisions, on an unspecified date the landowners lodged a request with the Tirana Commission on Property Restitution and Compensation (“the Commission”) seeking restitution of the above-mentioned property by the domestic authorities. On 7 March 1996 the Commission dismissed the landowners’ request on the grounds that the land was not subject to the Property Act as it was located outside the legal city boundaries (ndodhen jashtë vijave kufizuese). The landowners appealed to the District Court. 11. On 24 April 1996 the District Court quashed the Commission’s decision and allocated the landowners a plot of land measuring 56,500 sq. m. Relying on an expert’s report, the court held that the value of the respective installations and fuel tanks constructed thereon did not exceed 20% of the land’s total value. It therefore ordered that these objects be restored at no cost. The petrol station was situated on the main road between the cities of Tirana and Durrës and it was used and administered by two State-owned oil companies. The judgment became final on 7 May 1996, no appeal having been lodged against it. 12. Subsequent to the above judgment, on 30 May 1996 the Mortgage Office issued a property certificate (vërtetim pronësie – Ipoteka), according to which the landowners had registered title to the plot of land measuring 56,500 sq. m. on which the fuel tanks and installations had been erected (mortgage register entry no. 3350 of 8 May 1996). The petrol station and fuel tanks were subsequently expropriated in the public interest. 13. Between 1996 and 1998 the landowners’ property rights were unsuccessfully challenged by various State institutions. On one occasion the domestic courts dismissed the claim, whereas on four other occasions they discontinued the proceedings on various grounds. The applicant joined the proceedings as a third party. 14. On 25 March 1998 the Ministry of Economy challenged the lawfulness of the District Court’s judgment of 24 April 1996 (see paragraph 11 above) recognising the landowners’ property rights. The action was dismissed by the Supreme Court with final effect on 22 December 1999. 15. On 28 December 1999 and 7 January 2000 the Ministry of Economy and the State-owned oil companies lodged two separate applications for supervisory review of the domestic judgments upholding the landowners’ property rights, namely the District Court’s judgment of 24 April 1996 and the Supreme Court’s judgment of 22 December 1999. 16. On 12 May 2000 the Supreme Court Joint Benches gave two separate decisions by accepting both applications for supervisory review and the reopening of the proceedings. A constitutional appeal lodged by the applicant on 1 August 2000 was declared inadmissible by the Constitutional Court on 7 December 2000. As a result of the remittal of the cases to the District Court, on an unspecified date the court decided to join the proceedings. The applicant took part in them as a third party. 17. In the first set of rehearing proceedings, the case was heard by the District Court, the Tirana Court of Appeal (“the Court of Appeal”) and the Supreme Court, which on 18 March 2003 decided to remit the case to the Court of Appeal for a further rehearing. 18. In the second set of rehearing proceedings, the case was heard by the Court of Appeal and the Supreme Court, which on 27 October 2005 decided to remit the case to the Court of Appeal for fresh consideration. 19. In the third set of rehearing proceedings, the case was heard by the Court of Appeal, the Supreme Court and the Constitutional Court, which gave its final decision on 20 September 2009. The domestic courts ruled in favour of the landowners. 20. In the meantime, on 19 June 2007 the Tirana Agency for the Restitution and Compensation of Property, which had replaced the Commission, recognised the landowners’ inherited property rights over the plot of land measuring 24 hectares (240,000 sq. m) and ordered that they be compensated in respect of 183,500 sq. m in one of the forms prescribed by law, the remaining 56,500 sq. m having already been decided upon by the authorities. The authorities’ failure to pay compensation in respect of the 183,500 sq. m is the subject of application no. 5915/14, of which notice was given to the Government as a follow-up to the Court’s pilot judgment in the case of Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, 31 July 2012). 21. On 18 January 1996 one of the landowners, acting on his own and the remaining heirs’ behalf, concluded an agreement (akt marrëveshje) with the applicant’s company, according to which the latter would secure finance for the privatisation of fuel tanks and installations located on the landowners’ plot of land, in respect of which they would exercise their right of first refusal (e drejta e parablerjes) at the time of privatisation. In return, the landowners would transfer ownership rights to the applicant’s company upon privatisation. Subsequent to this transaction, the parties would form a joint company, whose registered capital would be made up of the applicant’s company’s ownership of the fuel tanks and other installations, as well as the landowners’ ownership of the plot of land. 22. On 29 February 1996 the same landowner, again acting on his own and the remaining heirs’ behalf, concluded a similar agreement (akt marrëveshje) with the applicant’s company for the privatisation of the fuel tanks and installations, the difference being that some objects would remain the landowners’ property. 23. On 23 May 1996 the same landowner, again acting on his own and the remaining heirs’ behalf, concluded a notarised sales contract with the applicant for the sale of almost all of the fuel tanks and installations for 100,000 United States dollars (USD), which, according to the contract, was paid by the applicant to the landowners. On the same date the Mortgage Office issued a property certificate (vërtetim pronësie – Ipoteka), according to which the applicant had registered title to the petrol station fuel tanks and installations (mortgage register entry no. 4135 of 23 May 1996). 24. On 23 and 25 May 1996 the same landowner, acting on his own behalf, concluded two loan agreements with the applicant to lend the latter a total of USD 200,000. The agreements contained no details as to the purpose of the loan. 25. On 10 October 2002 the landowners instituted proceedings against the applicant seeking the annulment of the agreements and contract concluded between February and May 1996 (see paragraphs 21-24 above). They requested the court to declare the agreements and contract null and void (pavlefshmëri absolute) without any legal consequences for the parties whatsoever. The claim was signed by their lawyer, to whom they had given power of attorney. 26. Following remittals of the case, on 31 March 2005 the District Court decided to discontinue the proceedings (pushimin e çështjes) as the landowners had failed to attend court without good reason. 27. On 17 April 2005 the landowners instituted a fresh set of proceedings against the applicant seeking the annulment of the agreements and contract concluded between February and May 1996. The claim was signed by only their lawyer. 28. On an unspecified date the landowners requested the District Court to obtain and process all documents from the case-file concerning the first set of proceedings, including the powers of attorney. The court accepted this request. 29. On 27 July 2005 the applicant requested the court to stay the proceedings pending the outcome of a criminal complaint he had lodged with the district prosecutor’s office against the landowners alleging forgery of documents. 30. On 20 October, 11 and 18 November 2005 and 27 February 2006 the applicant, having regard to the number of previous requests that had been rejected, challenged the bench. 31. On 15 November 2005 the presiding judge of the bench withdrew from the case, given the applicant’s repeated requests for withdrawal. On 9 December 2005 the President of the District Court set aside the withdrawal, finding that it did not contain any of the grounds stipulated in Article 72 of the Code of Civil Procedure. 32. On 17 February 2006 the applicant lodged a counterclaim requesting the court to decide the requests he had already submitted for the withdrawal of the bench. According to the counterclaim, the landowners had not authorised their lawyer to represent them in the proceedings and their claim was time-barred. Furthermore, the loan agreements were fictitious and their conclusion with only one of the landowners could not have a bearing on the sales contract of the fuel tanks and installations. The applicant argued that a number of factors pointed to his having lawful property rights over the fuel tanks and installations, such as the fact that all the agreements and contracts were lawful and valid, the property had been registered in his name, he had represented the landowners in the domestic proceedings and he had taken legal action to defend their interests. 33. On 18 April 2006 the District Court declared the agreements and contracts null and void (absolute nullity). It found them to be fictitious on the grounds that they had been concluded at a time when the said property in question was being administered by the State, no property rights having been transferred to the landowners. In accordance with the law, the installations had been privatised at no cost, because their value was less than 20% of the land’s value. Furthermore, no joint company had been set up by the applicant and landowners and no money had been lent to the applicant in accordance with the loan agreements. They had been concluded with a view to having an assurance for the execution of the sales contract, in which the sale price was the same. Despite the property certificate (no. 4135 of 23 May 1996), the fact that no actions had been effected pursuant to the agreements and contracts and that no legal consequences had resulted for the parties, the District Court concluded that the agreements were fictitious in accordance with Article 92(ç) of the Civil Code. It further ordered that the entry of 23 May 1996 (see paragraph 23 above) in the immovable property register be erased. 34. The applicant appealed, arguing that the District Court bench was biased because disciplinary proceedings had been instituted for the dismissal of the presiding judge of the bench for breaches of law. In this connection, the withdrawal of the presiding judge of the bench had not been accepted by the President of the District Court and his four requests for the withdrawal of the bench were rejected, no such mention having been made in the hearing records. The applicant further submitted that the claim had been brought outside the statutory time-limit, and had been signed by only the lawyer and not the landowners, the power of attorney dating back to 2002 and being limited in time and scope, and that the facts of the claim were unrelated. He also objected to the fact that his counterclaims of 28 June 2005 and 17 February 2006 had not been admitted to the case-file. Moreover, he contended that the District Court had not accepted any of the twenty-four requests for pieces of evidence he had produced, and had made findings in excess of the requests contained in the object of the claim. He argued that four hearings had been held between 6 April and 4 July 2005, without the landowners providing any good reason for their non-appearance to supplement the claim. In his view, his spouse, who was a co-owner, should have been invited to attend the hearings. Finally, he claimed that the contracts had been concluded in complete conformity with the domestic law and that there had been no need to summon witnesses. In this connection, the landowners had confirmed the applicant’s ownership of the plot of land by way of specific powers of attorney, while the applicant had lodged numerous procedural requests, applications and appeals and had attended hearings to defend his and their property rights. 35. On 30 November 2006 the applicant challenged the bench in the light of the previous decisions given against him. On the same date he requested that thirty-nine items of evidence and twenty procedural requests absent from the case-file before the District Court be readmitted. 36. On 4 December 2006 the applicant requested that eight additional items of evidence be admitted to the case-file. 37. On 19 February 2007 the Deputy President of the Court of Appeal requested the Minister of Justice to appoint three judges from other appellate courts to hear the case, since all of its judges had sat in the proceedings. 38. On 15 March 2007 the Minister of Justice, following a decision taken by the High Council of Justice (“HCJ”), informed the Court of Appeal that three judges of the Military Court of Appeal would hear the case. 39. On 29 March 2007 the applicant challenged the new composition of the bench, submitting that the HCJ should appoint judges from other ordinary appellate courts instead of the Military Court of Appeal. 40. On 25 May 2007 the Court of Appeal, composed of three judges, upheld the District Court’s judgment of 18 April 2006 (see paragraph 33 above). It transpires that the applicant had withdrawn the request for the exemption of the bench from hearing the case, and that the court had partially reopened the judicial examination and accepted new items of evidence as produced by him. The Court of Appeal held that the objects mentioned in the agreements and contracts of 1996 were, at the time of the judgment, being administered by the State and that their ownership had not yet been transferred to the landowners. Consequently, those contracts and agreements were fictitious under Article 92 (ç) of the Civil Code and were of no legal effect. It rejected all of the applicant’s arguments as unfounded and held that he had failed to adduce evidence to object to or challenge the landowners’ claim, which was supported by the documents contained in the case-file. According to the Court of Appeal, a claim requesting absolute nullity was not subject to a statutory limitation period. 41. The presiding judge of the bench, judge Y.M, dissented. In a separate opinion, he stated that the claim had not been signed by the landowners. The evidence in the case-file was not capable of demonstrating that the agreements were fictitious, since the parties’ intentions had been real and lawful. As a result, the landowners did not have legal standing to bring the claim as they could not prove that there had been a breach of a substantial right (e drejta materiale). Their claim was time-barred and the courts had failed to take into account the statutory limitation period. The evidence produced by the applicant showed that the landowners, by virtue of powers of attorney or other documents issued between 1997 and 2005, had appointed the applicant to act as their representative. This pointed to the fact that the parties had wished their transactions to have legal effect and this, in itself, contradicted the fictitious nature of the agreements and contracts. In his view, the court had rejected all of the applicant’s requests without giving any reasons in the decision. 42. On 9 July 2007 the applicant appealed, raising seventy-two grounds of appeal. In addition to maintaining the same complaints he had raised before the Court of Appeal, he alleged that the composition of the District Court had not been drawn by lots and that the Court of Appeal had not been a “tribunal established by law” as it had been composed of military judges. He claimed that his requests for the withdrawal of the Court of Appeal judges had not been examined and that his requests for the admission of numerous items of evidence had not been processed by the Court of Appeal. He further objected to the lower courts’ application and interpretation of the domestic law since, in his view, he had been authorised by the landowners to act as their representative, had lodged various appeals and other procedural requests and followed the judicial proceedings with the landowners, had requested the enforcement of final decisions on his and the landowners’ behalf and had sought the criminal prosecution of third parties. 43. On 23 November 2007 the Supreme Court decided to stay execution of the Court of Appeal’s judgment of 25 May 2007 pending the outcome of the applicant’s appeal. 44. On 25 January 2010 the Supreme Court declared the applicant’s appeal inadmissible in accordance with Article 472 of the Code of Civil Procedure (no valid grounds of appeal). 45. On 18 March 2010 the applicant lodged an eighty-three page constitutional appeal. On 15 September 2010 he supplemented it with a fifteen-page memorandum. In addition to maintaining the same grounds of appeal he had raised before the lower courts, the applicant also complained of a lack of reasoning in the Supreme Court’s decision and about the length of the proceedings. 46. On 17 September 2010 the applicant requested that judges X.Z, S.B and F.A withdraw from the appeal on the grounds that they had rejected a previous constitutional appeal lodged by him on 20 September 2009 in relation to another unrelated set of proceedings. On 27 September 2010 he requested that judge V.T withdraw from the appeal on the grounds that she had been on the bench that had decided against him in another appeal in 2000. 47. On 17 January 2011 the applicant was informed of the Constitutional Court’s decision of 22 November 2010 rejecting his appeal. It found nothing to suggest a lack of impartiality on the part of the Supreme Court bench and that, even though some of the judges had heard previous appeals lodged by the applicant with the Supreme Court, those appeals concerned different facts, parties and sets of proceedings. It dismissed the remaining complaints, finding that they related to the assessment of facts and the outcome of the proceedings, which was within the lower courts’ jurisdiction.