QESKA v. ALBANIA
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Mr Pëllumb Qeska, is an Albanian national, who was born in 1945 and lives in Korça. He was represented before the Court by Mr A. Tabaku, a lawyer practising in Korça. 2. The Albanian Government (“the Government”) were represented by their then Agents, Ms S. Mëneri and Ms E. Hajro of the State Advocate’s Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was one of the co-owners of two plots of land situated in the city of Korça. The first plot of land (“plot A”) measured approximately 182.7 sq. m and the second plot of land (“plot B”) approximately 84 sq. m. 5. On an unspecified date the applicant initiated civil proceedings with the Korça District Court (“District Court”) seeking the partition of both plots of land in order to determine the shares of each of the co-owners. The co-owners agreed to the request. 6. On 27 July 2001 the District Court ruled in favour of the partition of both plots of land. It found that the applicant’s share consisted of thirty-three thirty-sixths of plot A and eleven twenty-fourths of plot B. That decision became final on an unspecified date in August 2001, no appeal having been lodged against it. 7. On an unspecified date in 2002 the applicant instituted a second set of proceedings for the partition of both plots of land, requesting allocation of both plots of land to him in view of the fact that he was the owner of the majority of shares. The co-owners contested the applicant’s request to have both plots of land allocated to him. 8. On 15 July 2002, having regard to the fact that the applicant was the owner of the largest portion of both combined plots of land upon which a multi-storey building could be erected in accordance with the urban study plans, the District Court allocated him both plots of land. The District Court rejected the other co-owners’ request to have plot B awarded to them. Moreover, the court ordered that the applicant pay compensation to all co-owners, in respect of their property shares, in accordance with an expert’s report. 9. On an unspecified date, V.Q., one of the fifteen co-owners of plot B, lodged an appeal with the Korça Court of Appeal (“Court of Appeal”) challenging the amount of the compensation paid to him as well as the part of the decision which awarded the applicant plot B. He alleged that since the other co-defendants owned thirteen twenty-fourths of plot B, they should have been awarded plot B. No appeal was lodged by the three co-owners of plot A. 10. On an unspecified date the Court of Appeal gave notice of the proceedings to the other fourteen co-owners of plot B who were involved as parties to the proceedings before the District Court. 11. On 9 October 2012 the court adjourned the hearing, none of the parties having shown up. Only the representative of three co-owners, who also had shares in plot A, was present. 12. On 22 October 2002 the court adjourned the hearing, V.Q. being absent on the strength of a (medical) report. According to the record, three co-owners as well as the representative of three co-owners, who also had shares in plot A, were present at the hearing. 13. On 1 November 2002 the court decided to continue the proceedings. Five co-owners as well as the representative of three co-owners, who also had shares in plot A, were present. The court decided to hear the expert and the parties’ lawyers at the next hearing. 14. On 6 November 2002 almost all parties, save one co-owner, were present. The court fined the expert for non-appearance at the hearing. 15. On 10 December 2002 five co-owners as well as the representative of three co-owners, who also had shares in plot A, were present at the hearing. The expert, who was questioned by the parties, stated that the two plots of land were not connected to each other. 16. On the same day the Court of Appeal, having heard the co-owners, dismissed the grounds of appeal of V.Q. in respect of plot B and upheld the District Court’s decision as regards both plots. According to the Court of Appeal V.Q.’s share was so small (2.60 sq. m.) that the award of that property to him would be against its purpose. It pointed to the fact that he had lodged an appeal alone, without being joined by the other co-owners who were parties to the proceedings before the District Court. The relevant parts of the decision read as follows: “All parties consented, on the whole, to the [District Court’s] decision, with the exception of V.Q., who appealed against it only in so far as the first part of the decision is concerned [that is plot B], to which he is a party and has a [legitimate] interest (me këtë vendim të gjykatës, përgjithësisht kanë qenë dakort të gjithë palët përjashto të paditurin V.Q., i cili ka ankimuar vendimin vetëm për pjesën e parë të tij, ku është pale dhe ka interes). ... The remaining defendants did not join their forces to claim the plot of land jointly, not least that the remaining defendants, 14 of them, lodged no appeal (të paditurit nuk i bashkuan pjesët dhe ta kërkonin këtë sipërfaqe të përbashkët, për më tepër të paditurit e tjerë që në numër janë 14 persona, nuk kanë bërë ankim). Out of all defendants, only V.Q. who owns 2.60 sq. m, lodged an appeal (prej tyre është ankuar vetëm i padituri V.Q. që si person ka ... dy metra dhe gjashtëdhjetë centimetra katrorë).” 17. In compliance with the Court of Appeal’s decision, on 26 March 2003 the applicant paid all fifteen co-owners compensation corresponding to their respective shares in plots A and B. He entered his property titles over both plots in the Land Registry on 31 July 2003. 18. On 7 January 2003 V.Q., joined by thirteen co-owners of plot B, appealed to the Supreme Court. One co-owner did not sign the appeal. The appellants argued that, even though they had attended the hearings before the Court of Appeal, this had not been reflected in that court’s judgment. That the appeal was signed only by V.Q. was to be attributed to the lawyer who had lodged the appeal. No appeal was lodged by the three co-owners, in respect of plot A, with the Supreme Court. 19. On 18 March 2004 the Supreme Court, sitting as a bench of five judges, by majority, quashed the Court of Appeal decision in respect of plot B and found, inter alia, as follows: “It follows, as also accepted by the courts, that the defendants have sought to retain this plot of land. Their appeal to the Court of Appeal states that they have the same interest and they jointly claim the plot of land. The appellants own the majority of the plot (thirteen twenty-fourths). Under these circumstances, contrary to the Court of Appeal’s finding, the appellants own the majority of the plot and share the same interest. As they do not seek the partition of that plot, on the basis of the foregoing provision [referring to Article 207 of the Civil Code], the plot should be awarded to the [fifteen] appellants (siç ka rezultuar dhe siç pranojnë dhe vetë gjykatat, të paditurit e kanë kërkuar ta mbajnë këtë sipërfaqe. Edhe në kërkesën ankimore, Gjykatës së Apelit i është parashtruar se ata i kanë interest e njëjta dhe e duan pjesën bashkarisht. Gjithashtu, të gjithë të paditurit zotërojnë në këtë sipërfaqe pjesën më të madhe (13/24 pjesë). Në këto rrethana, kur ndryshe nga sa pranon gjykata e Apelit, të paditurit kanë pjesën më të madhe dhe interest e njëjta si dhe nuk kërkojnë t’u pjesëtohet trualli ... pjesa u duhet lënë këtyrë të fundit).” The Court of Appeal’s reasoning that, since Pëllumb [the applicant] owns the majority of the plot of land measuring 182.7 sq. m, the other plot of land measuring 84 sq. m should be awarded to him for the purpose of constructing a multi-storey building, is erroneous. These plots of land, irrespective of their neighbouring position and of the fact that they have the same owners, should be treated as two separate objects which have been subject to the partition proceedings for the sake of judicial economy (Arsyetimi i gjykatës se paditësi Pëllumb ka në pronësi pjesën më të madhe të truallit me sipërfaqe 182.7 m2 prandaj dhe trualli me siperfaqe 84 m2I duhet lënë atij për t’u përdorur me qëllim ndërtimin e pallateve shumëkatëshe është i gabuar. Këto troje, pavarësisht nga pozicioni kufi me njëri-tjetrin dhe nga fakti se kanë pjesërisht të njëjtët bashkëpronarë, duhen trajtuar si dy sende te veçanta që janë pjesëtuar në të njëjtin gjykim vetëm për ekonomik gjyqësore.)” 20. As regards plot A, the Supreme Court upheld the Court of Appeal decision and found that, “In respect of the other plot [referring to plot A], the court’s decision is just and should be upheld. The applicant obviously owns the majority of the plot, thirty-three thirty-sixths. Even if matters stood differently, any appeal by the other three co-owners [to the Supreme Court] would be time-barred (rënë në dekadencë) as they had not lodged an appeal with the Court of Appeal. In light of the above, plot [A] should be allocated to the applicant.” 21. The Supreme Court held that the appellants in whose favour plot B was allocated were to compensate the applicant in cash for his share. There was no dissenting opinion. 22. On an unspecified date the applicant lodged a constitutional complaint with the Constitutional Court. He complained that he had been deprived of his right to a fair trial, referring to the incoherent reasoning in the Supreme Court’s decision. While the Supreme Court had ruled that any possible action by the three co-owners in respect of plot A would be considered time-barred as they had failed to avail themselves of the appeal to the Court of Appeal, it had not adopted the same approach with respect to the fourteen co-owners as regards plot B, who had not lodged an appeal with the Court of Appeal, but whose appeal before the Supreme Court had been declared admissible and decided in their favour. 23. On 21 December 2004 the Constitutional Court, sitting as a bench of three judges, declared the applicant’s complaint inadmissible. It found that: “the [applicant’s] claims do not concern violations that would render the process unfair. They relate to aspects of proof and the determination of the merits of the case, which fall within the jurisdiction of the lower courts.” 24. On 24 June 2005, the Supreme Court refused a request by the applicant for a review of the same court’s decision of 18 March 2004. 25. Article 161 states that a civil action may be jointly brought by co-claimants against co-defendants provided that they have joint rights and obligations, which have the same basis on points of fact or law. 26. Article 162 reads, in so far as relevant, as follows: “Each party acts on his/her own against the opposing party provided that his/her procedural actions or omissions result in neither damage nor profit to the other parties. If, owing to the nature of the legal relationship in dispute or because of a legal provision, the effect of the decision to be adopted is to be extended onto all parties, the procedural actions which were carried out by one party shall have effect also on other parties who did not appear before the court or did not undertake such actions within the prescribed time-period.” 27. Articles 369-374 of the Code of Civil Procedure regulate the partition of common or inherited property by virtue of a court decision. The first phase of the partition proceedings consists of a court interim decision which determines the identity of the joint owners, the object to be partitioned and the corresponding parts belonging to each owner. In the second phase of the partition proceedings, the court determines the value of the various objects to be partitioned, after having received a prior opinion of experts. Any inequality in the value of the objects included in the shares is to be compensated in money. The court decides on the financial relationship of the parties arising from their joint ownership. 28. The relevant provision of the Civil Code reads as follows: Article 207 “The partition of the co-owned object shall be effected by the agreement of all of the co-owners... When the object is real property, the partition shall be effected by a notarial deed. The partition of the co-owned object corresponds to its division in kind, proportionate to the shares of each co-owner, provided that the partition is possible and does not damage the relevant purpose of the object... ...When some of the co-owners make a request [that the object be allotted exclusively to them], the court may so order, obliging those co-owners to reimburse other co-owners in relation with the partitioned property the cash amount equivalent to the value of their shares. ...” 29. In unifying decision no. 628 of 15 May 2000 the Supreme Court Joint Benches clarified the nature of the interim decision given at the conclusion of the first phase of the partition proceedings. It ruled that, given its sui generis nature, the interim decision concerning the first phase of the partition proceedings was final and could not be revisited by the court deciding on the second phase of the partition proceedings. 30. In decision no. 18 of 18 July 2009 (18/09), relying on Article 162 of the CCP, the Constitutional Court ruled that a civil action contesting the amount of compensation in an expropriation case, lodged by only one co-owner, had effect on all co-owners who did not initially join the co-owner in the first-instance court proceedings or did not carry out procedural acts within prescribed time-limits. In that case, the Court of Appeal accepted a co-owner’s civil action, but rejected the appellants’ action on the ground that it had been lodged out of time. The Constitutional Court, relying on Article 162 of the CCP, found a breach of the appellants’ right to a fair hearing and reasoned, inter alia, that the co-owner’s action should have been regarded as carried out by the appellants, who were the remaining co-owners.