TRESKA v. ALBANIA AND ITALY 
Inadmissible
The applicants, Nikolaus and Jurgen Treska, are Albanian nationals who were born in 1934 and 1941 respectively and live in Durrës. They were represented before the Court by Mr M. Lana, a lawyer practising in Rome. s and the Governments of Italy and Albania pursuant to Rule 49 § 2 (a) of the Rules of Court, may be summarised as follows. In 1950 the applicants' father's villa and an adjacent plot of land were confiscated without compensation by the regime. The State subsequently built an annex to the villa. On an unspecified date the Italian Government informed the Albanian Government of their intention to purchase the premises of the Italian Mission in Albania. Accordingly, they requested the Albanian Government to put at their disposal different proposals for the purchase of premises. On 1 July 1991 the Italian Embassy in Albania entered into an agreement to purchase two buildings. One of the buildings, designated for use as the private residence of the head of the Mission, was the villa confiscated from the applicants' father. On 5 August 1991 the applicants informed the Italian Ambassador in Tirana about their property claims to the villa, in view of the fact that it had been illegally confiscated from their father. The transaction was concluded through an inter-State agreement authenticated by note verbale exchanges between the two governments. Pursuant to the relevant provisions of Albanian law, as they stood at the material time, the land was inalienable; consequently the title to the buildings alone was transferred by the Albanian Government to the Italian Government. The relevant property title was not entered in the Tirana Property Register. On an unspecified date the applicants brought civil proceedings in the Tirana District Court claiming their title to the unlawfully confiscated property. On 9 September 1992 the Tirana District Court allocated to the applicants their father's villa and ordered the Ministry of Foreign Affairs to make it possible for the applicants to enter into possession of that property. As the Ministry did not lodge an appeal, the decision became final. Pursuant to the Property Restitution and Compensation Act (“the Property Act”), the applicants lodged an application with the Tirana Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave), claiming their title to their father's property. On 17 December 1994 the Commission, confirming the unlawfulness of the confiscation of the property, allocated to them the villa and the adjacent plot of land measuring 2,573 sq. m. Moreover, the court also allocated to the applicants the annex to the villa as, pursuant to section 13 of the Property Act, the outlay by the State in respect of structural changes and annexes to the original building amounted to less than 20% of the property's original value. In so far as it was impossible for the applicants to have the whole original plot of land returned to them, the Commission held that the State had an obligation to pay them compensation under the Property Act for a plot of land measuring 290 sq. m. and it ordered the restitution of the original plot of land measuring 2,283 sq. m. Lastly, the Commission ordered that the applicants' title to the properties be entered in the Tirana Property Register. The applicants were also provided with a certificate of registration of property issued by the Registry Office, registration no. 5401, dated 20 December 1994. In reply to the applicants' requests for recovery of their property, on 20 January 1995 the Italian Ambassador to Albania informed them that their property claims to the Italian Embassy's premises had to be settled with the Albanian authorities. On an unspecified date the applicants instituted proceedings against the Italian Embassy in Albania, before the Tirana District Court, in order to recover possession of their property. On 31 October 2000 the Tirana District Court held that it did not have jurisdiction to deal with the case. On an unspecified date the applicants brought proceedings in the Tirana District Court seeking damages from the Italian Embassy in Tirana for its occupation of the plot of land measuring 2,283 sq. m. The proceedings were adjourned several times by the District Court because of the absence of the representative of the Italian Embassy in Tirana. On 24 April 1997 the Tirana District Court, in the absence of the Italian Embassy's representative, ordered the Embassy to pay the applicants a monthly rental fee, amounting to 3,424 United States dollars, for use of the plot of land measuring 2,283 sq. m. The decision became final and binding on 2 June 1997. On 10 June 1997 the Tirana District Court, in enforcement proceedings, issued a writ for the enforcement of the Tirana District Court's judgment of 24 April 1997. On 29 May 1998 and 8 November 1999, following the failure of the Italian Embassy in Albania to comply with the District Court's judgment of 24 April 1997 and invoking the inactivity of the Albanian authorities in enforcing a final decision, the applicants lodged two appeals with the Constitutional Court. On 27 October 1998 the Constitutional Court dismissed the first appeal on the ground that the applicants had not exhausted all the possible means of recourse available to them in order to challenge the inactivity of the Bailiffs' Office. On 10 March 2000 the Constitutional Court dismissed the applicants' second appeal, the reason being that the immunity of the Italian Embassy and the inviolability of its premises gave rise to a circumstance where the District Court's decision could not be enforced in practice. On 18 June 2003, with a view to having the Tirana District Court judgment of 24 April 1997 validated by the Italian courts and enforced, the applicants applied to the Rome Court of Appeal for a writ of enforcement (delibazione). On 22 December 2004, in a judgment served on the applicant on 24 January 2005, the Rome Court of Appeal rejected the applicants' request, as the proceedings before the Tirana District Court that led to the judgment of 24 April 1997 had been held in breach of the principle of equality of arms, which was an essential requirement for the recognition of a foreign judgment in Italy. According to the court, by sending confused and short-term notifications of hearings, the Albanian court had denied the Italian Embassy in Albania the opportunity to present the case effectively and to be able to enjoy the benefit of an equality of arms. The applicants, anticipating an unsuccessful outcome, did not appeal against the Rome Court of Appeal decision of 22 December 2004. Following a request for factual information under Rule 49 § 2 (a) of the Rules of Court, the Italian Government, on 7 April 2005, having regard to the fact that the premises of the Italian Embassy in Albania had been legally purchased, contested the applicants' allegations of possession sine titulo. They maintained that the lawfulness of the property title to the premises of the Italian Embassy in Albania stemmed from a valid international agreement between the two countries. Furthermore, they stated that the Albanian court judgment, which had decided on the Italian Embassy's obligation to pay the applicants a rental fee for use of their property, had no binding effect in Italy; in fact the Rome District Court had dismissed the applicants' application for the validation of the above-mentioned judgment in Italy. Following a request for factual information under Rule 49 § 2 (a) of the Rules of Court, the Albanian Government stated on 6 April 2005 that in 1991, following a request by the Italian Embassy in Albania, the Albanian Government had put at its disposal three State-owned premises. The Italian Embassy in Albania had arranged to purchase two buildings, one of which had been the former property of the applicants' father. The agreement had been validated by note verbale on 1 July 1991. On 5 November 1991, by note verbale no. 2183, the Albanian Ministry of Foreign Affairs transmitted to the Italian Embassy in Albania the topographic maps of the properties purchased and confirmed the legitimacy of the ownership of the properties. According to the Government, on 2 March 1994, by decision no. 108, the Albanian Council of Ministers had authorised the Ministry of Foreign Affairs to use the income from the transaction (a lump sum of approximately 1,936,713.37 euros) for the purchase of the premises of the Albanian Embassy in Rome. “For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them: (...) (i) the 'premises of the mission' are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.” “1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission. 2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. 3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.” In accordance with its Articles 28 and 33, the Convention was opened for signature from 17 January 2005 and will remain open for signature until 17 January 2007. Neither Albania nor Italy have signed it. In its relevant parts the Convention reads as follows: “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.” “1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected. 2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State: (a) is named as a party to that proceeding; or (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.” “Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the determination of: (a) any right or interest of the State in, or its possession or use of, or any obligation of the State arising out of its interest in, or its possession or use of, immovable property situated in the State of the forum; (b) any right or interest of the State in movable or immovable property arising by way of succession, gift or bona vacantia; or (c) any right or interest of the State in the administration of property, such as trust property, the estate of a bankrupt or the property of a company in the event of its winding up.” “No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that: (a) the State has expressly consented to the taking of such measures as indicated: (i) by international agreement; (ii) by an arbitration agreement or in a written contract; or (iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or (b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or (c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed.” “In the protection of his constitutional and legal rights, freedoms and interests, and in defending a criminal charge, everyone is entitled to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “(1) Any international agreement that has been ratified constitutes part of the domestic legal system after it is published in the Official Gazette of the Republic of Albania. It is implemented directly, except in cases where it is not self-executing and its implementation requires enactment of a law. The amending, supplementing and repealing of laws approved by the majority of all members of the Assembly, with the purpose of ratifying an international agreement, require the same majority. (2) An international agreement that has been ratified prevails over national laws that are incompatible with it. (3) In case of conflict, the norms issued by an international organisation prevail over the national laws if the agreement ratified by the Republic of Albania for its participation in the organisation expressly contemplates their direct applicability.” “The Constitutional Court shall determine: ... (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.” “State bodies shall comply with judicial decisions.” The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) has undergone several amendments over the past ten years. The new Property Act enacted in 2004 provides for two forms of restitution of property, namely the return, under certain circumstances, of the original property and compensation in the event of impossibility for the authorities to return the original property. The Act provides 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 privatisation process, (e) a sum of money (section 11). The Property Act of 1993 (Law no. 7698 of 15 April 1993, as amended by Law no. 8084 of 1996), as in force at the time, in its relevant parts reads as follows: “Former owners and their legal heirs have the right of ownership. A former owner of property shall have the right either to restitution of the original land or to compensation in kind if one of four conditions is met: (1) the land formerly owned was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) the land is not subject to Law no. 7501 of 19 July 1991; (3) the land is currently State-owned; or (4) the land has now been designated as being suitable for construction and lies within the boundaries of a town or city. The extent of restitution or compensation in kind shall not exceed 10,000 square metres in accordance with Article 1 § 4 of Decree no. 1359 of 5 February 1996, as amended by Law no. 8084 of March 7 1996.” “Former owners shall be entitled to restitution of their former buildings without having to repay any outlay by the Government or other owners for structural changes, annexes, or floor additions to former private buildings where such outlay does not exceed 20% of the building's value. Former owners shall be entitled to restitution of their former buildings once they have repaid more than 20% of the value of the outlay, where such outlay amounts to between twenty percent 20% and 50% of the building's value. The value of the outlay shall be calculated on the basis of construction prices at the time of the building's restitution. A building shall remain in co-ownership where the value of such outlay exceeds 50% of the building's value. ... The courts shall have authority to resolve disputes between parties.” “When building land or agricultural land that has become building land is occupied by a permanent structure, compensation will be provided to the former owner within the limits of expropriation in one of the following forms: (a) state bonds of an equivalent value and the right of pre-emption of the holders to be exercised in the process of the privatisation of state enterprises, and in other activities funded by loans; (b) an equivalent plot or building land near to land designated as an urban area in the general development plans; (c) an equivalent plot of land designated as a tourist area in the general development plans. The remaining portion for items (b) and (c) will be subject to other methods of compensation established under this Law.” Section 64 of Law no. 218 of 31 May 1995 (Reform of the Italian system of International Private Law) provides that a foreign court's judgment shall be recognised in Italy without formal proceedings if it complies with the following requirements: “(a) the judgment had been delivered by the competent court; (b) the other party had been informed promptly of the civil claim in accordance with the domestic laws of the State where the proceedings had been held and the guarantee of defence rights had not been breached; (c) the parties to the proceedings had been duly notified of the hearings or formally declared in absentia pursuant to the laws of the State in which the proceedings took place; (d) the judgment had become final according to the laws of the State in which it had been issued; (e) it did not contain provisions which ran counter to a final decision delivered by an Italian judge; (f) proceedings are not in progress in Italy in respect of the same act and between the same parties; (g) the judgment did not contain provisions which ran counter to the principles of the rule of law as applied by the Italian State; ...”