CASE OF MANUSHAQE PUTO AND OTHERS v. ALBANIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Pecuniary and non-pecuniary damage - award
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
4. The applicants were born in 1925, 1925, 1929, 1958 and 1964. They all live in Albania. 5. On 27 July 1995 the Vlora Commission recognised the applicants’ inherited property title to a plot of land measuring 5,000 sq. m. It further decided that the applicants would be compensated in one of the ways provided for by law. 6. The applicants sent various letters to the Commission in 1995, 1996 and 2002 about the issue of compensation but did not receive an official response. 7. On 30 March 2007 the Agency informed the applicants that it was in the process of determining the property valuation maps and allocating the appropriate funds. The outcome would pave the way for the establishment of the criteria for compensation claims. 8. On 6 October 2008 the Agency’s director decided proprio motu to verify the lawfulness of the 1995 Vlora Commission decision. To date, no other decision has been taken and the 1995 Commission decision continues to remain unenforced. 9. The applicants were born in 1937, 1941, 1944, 1950, 1936, 1960, 1962 and 1968. They all live in Albania. 10. On 31 October 1994 the Lezhë Commission recognised the applicants’ inherited title to a plot of land measuring 3,434 sq. m, out of which 713 sq. m were restored. The applicants would be compensated for the remaining 2,721 sq. m in one of the ways provided for by law. 11. On an unspecified date the applicants challenged the Commission decision before the court, claiming that a larger area should be restored to them. 12. On 10 December 1996 the Lezhë District Court decided that an additional plot of 1,187 sq. m should be restored to the applicants. Consequently, a total area of 1,900 sq. m was restored to the applicants. 13. However, to date they have not been provided with compensation in respect of the remainder of the property (1,534 sq. m). 14. The applicants were born in 1928, 1932, 1948, 1949, 1953 and 1957. They all live in Albania. 15. On 19 January 1996 the Korçë Commission recognised the applicants’ inherited title to a plot of land measuring 4,000 sq. m. It decided that, since the plot of land was occupied, the applicants would be compensated in one of the ways provided for by law. To date, the applicants have not been provided with any compensation. 16. On 15 January 1999 the Korçë Commission recognised the applicants’ inherited title over an agricultural plot of land measuring 59,546 sq. m. It decided that the applicants would be compensated in State bonds in the amount of 1,018,236 Albanian leks (“ALL”). To date, the applicants have not been awarded any State bonds or any other form of compensation. 17. The Government submitted that in 2009 the applicants applied for and received compensation in the amount of ALL 2,000,000 in respect of 200 sq. m from the Financial Compensation Fund (“FCF”). No supporting document was submitted. 18. The applicant was born in 1926 and lives in Albania. 19. On 7 June 1995 the Tirana Commission recognised the applicant’s inherited title to two plots of land measuring 63 sq. m and 597 sq. m, respectively. It further decided that, since the plots of land were occupied, the applicant would be compensated in one of the ways provided for by law. The Commission recognised the applicant’s right to first refusal of two buildings located on the land. 20. On 16 August 1995 the Commission recognised the applicant’s inherited title to another plot of land measuring 800 sq. m, of which 178 sq. m were restored. It decided that, since 622 sq. m were occupied, the applicant would be compensated in one of the ways provided for by law. 21. On an unspecified date the applicant lodged a claim for compensation with the Agency in respect of the Commission decision of 7 June 1995. 22. On 23 February 2009 the Agency dismissed the claim for compensation on the ground that the applicant had already benefited from the restitution of a plot of land measuring 178 sq. m. No appeal was lodged with the Tirana District Court within the statutory 30 days’ period. 23. The relevant provisions of the Albanian Constitution have been described, inter alia, in the judgment of Qufaj Co. Sh.p.k. v. Albania, no. 54268/00, § 21, 18 November 2004. 24. The first law on property restitution and compensation was enacted in 1993 (Law no. 7698 of 15 April 1993 – “the 1993 Property Act”, as amended). The 1993 Property Act has been described in detail 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. The 1993 Property Act was repealed by the 2004 Property Act. 25. The 2004 Property Act aimed at the restitution of urban, immovable property, which had been expropriated, nationalised or confiscated prior to 29 November 1944. In the impossibility of restoring the original property, it provided for the grant of compensation (sections 1, 2, 3 and 5). 26. Under Article 13 compensation was to be determined on the basis of the property’s market value. The 2004 Property Act, as amended, provided for six forms of compensation: (a) property of the same kind; (b) public property located in tourist areas; (c) property of any other kind; (d) shares in State-owned companies; (e) the value of a State-owned property in the course of privatisation, and (f) a sum of money corresponding to the value attributed to the property at the time of the decision (section 11 as amended). 27. The 2004 Property Act initially instituted local Commissions, whose decisions were amenable to appeal to the State Committee on Property Restitution and Compensation (sections 15-17). In 2006 those institutions were replaced by the Agency for Restitution and Compensation of Properties (“the Agency”) and its regional offices. Decisions of regional Agency offices were open to appeal before the central Agency. Regional Agency offices were subsequently abolished. At present, the Agency is the sole administrative body competent to decide on restitution and compensation claims. 28. Section 23 of the 2004 Act provided for the establishment of a tenyear Financial Compensation Fund, whose aim was to provide financial compensation. It further recognised the former owner’s right to receive default interest covering the period running from the recognition of the property right until the award of the financial compensation, calculated at the annual median interest rate of the Bank of Albania. Section 28, as amended, provided for the establishment of the In-kind Compensation Fund (“IkCF”). 29. The 2004 Property Act has been amended at least seven times between 2004 and 2010; deadlines have been repeatedly extended. It has been described in further detail in Eltari v. Albania, no. 16530/06, §§ 27-45, 8 March 2011 and in Çaush Driza v. Albania, no. 10810/05, §§ 18-36, 15 March 2011. 30. Statistics concerning the property restitution and compensation process, as provided for by the Government, are annexed to this judgment. 31. In the context of the review of the constitutionality of the legislation after its entry into force, the Constitutional Court has been called upon, on several occasions, to rule on whether some of the 2004 Property Act provisions were compatible with the Constitution. 32. In decisions nos. 27 of 26 May 2010 and 43 of 6 October 2011 the Constitutional Court repealed as incompatible with the Constitution a number of the 2004 Property Act provisions, as amended, which empowered the central Agency’s director to re-examine, annul and repeal ex officio Commission decisions. Having regard, inter alia, to this Court’s judgments in the cases of Ramadhi and Others, cited above, and Hamzaraj v. Albania ((no. 1) (no. 45264/04, 3 February 2009)), the Constitutional Court reaffirmed that “Commission decisions were capable of conferring on individuals legal expectations equal to that created by virtue of a court decision which recognises an individual’s property rights”. Consequently, those decisions, which were not administrative acts within the meaning of that legal notion, were directly amenable to judicial review. Moreover, since such decisions had become “final and enforceable”, they could not be subject to review by the Agency’s director, who did “not embody the characteristics of a judicial body or quasi judicial body”. 33. The Constitutional Court’s Act (law no. 8577 of 10 February 2000) provides that its decision is erga omnes and binding (section 72 § 7). The decision enters into force on the date of its publication in the Official Journal, save as decided otherwise (section 26). As a general rule, the Constitutional Court’s decision, which repealed an act as incompatible with the Constitution or international agreements, produces effect from its date of entry into force (section 76 § 1). The decision applies retrospectively only: (a) in respect of a criminal punishment even while it is being executed, if it is directly connected with the implementation of the repealed act; (b) in respect of cases that are being examined by domestic courts, as long as no final decision has been taken; and (c) in respect of consequences, yet to be produced, of the repealed act. 34. Pursuant to the 2004 Property Act, as amended, the Government have adopted a number of by-laws, by way of Council of Ministers’ Decisions (“CMDs”) as described below. 35. Between 2005 and 2011 the authorities issued 6 CMDs in respect of the award of financial compensation to former owners (see Çaush Driza, cited above, §§ 38-43). In 2005 financial compensation was awarded in respect of compensation claims arising out of the Tirana Commission 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, 2009 and 2011 all former owners, who were entitled to compensation, following a Commission / regional Agency decision, were eligible to apply for financial compensation. It would appear that no decision was adopted in 2010. 36. According to the CMDs adopted between 2005 and 2009, a claimant, whose right to compensation had been recognised in respect of the entire property, was required to lodge a standard application for financial compensation with the central Agency in Tirana, furnishing, inter alia, the Commission / regional Agency decision that recognised his right to compensation. The 2009 CMD further provided that a former owner was entitled to financial compensation on the condition that s/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). The 2011 CMD stated that a claimant, holding a final and enforceable decision, in respect of which no compensation had ever been awarded, was entitled to benefit from the award of compensation. 37. Applications would be examined in chronological order on the basis of the Commission/regional Agency 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 during the period between 2005 and 2009. The 2011 CMD established a tiered system according to which the amount of compensation was to be as follows: (a) the equivalent of 200 sq. m in respect of properties measuring up to 1,500 sq. m; (b) the equivalent of 300 sq. m in respect of properties measuring between 1,500 and 3,000 sq. m; (c) the equivalent of 400 sq. m in respect of properties measuring between 3,000 and 5,000 sq. m; (d) the equivalent of 500 sq. m in respect of properties measuring between 5,000 and 10,000 sq. m; (e) the equivalent of 600 sq. m in respect of properties measuring above 10,000 sq. m. 38. The lodging of an application entailed the payment of a processing fee. Claimants who had been unsuccessful in their application for financial compensation in a preceding year were to re-submit their application in the following year(s) once they had paid the processing fee. The 2011 CMD dispensed claimants from re-paying the processing fee in the event they re-submitted their claim for compensation. 39. Between 2007 and 2008 the Government approved and issued property valuation maps, which included the reference price per square metre throughout the country (see Çaush Driza, cited above, §§ 44-45). These maps are relied upon to calculate the value of expropriated properties and subsequently the amount of financial compensation to be awarded (compare with paragraph 26 above). 40. The 2004 Property Act, as amended, provided for the establishment of the IkCF (see paragraph 28 above). Between 2007 and 2008 the Government have adopted a number of CMDs on the procedures for the allocation of properties covered by the IkCF (see Çaush Driza, cited above, §§ 46-52). 41. In decision no. 350 of 29 April 2011 the Council of Ministers approved an Action Plan to address the issues identified by this Court in its Driza and Ramadhi and Others judgments. The Action Plan attributed the non-enforcement of final decisions to the following: “... the issues faced to date relate to the lack of inter-institutional coordination concerning the exchange of information and the inter-operability of archives of those institution (...). The property legislation is fragmented and needs to be consolidated and simplified in order to provide for simple and transparent compensation procedures. The nationwide process of the first registration of immovable properties has yet to be concluded. There is no unified, national, property map. The Agency lacks a unified database of decisions (...). The process of legalisation has yet to be completed and the identification of properties that would become part of the In-kind Compensation Fund has not finished. `... the [Government] having regard to the legitimate expectations of owners for so many years, expresses their intention to provide the compensation amount at 100 per cent.” 42. The Action Plan described two schemes of compensation. 43. The transitional compensation scheme (skema kalimtare) would apply in 2011 (see paragraph 37 above for more details). 44. The final compensation scheme (skema definitive) would become operational in 2013, upon the estimation of the total financial bill. The final scheme would rely on digital cartographic and juridical data as produced by the Agency for Preparation of Standard Maps. A claimant possessing a final, enforceable decision would have to submit an application form to apply for compensation. The registration of the submitted application form into an electronic database would be in chronological order on the basis of the Commission’s / Agency’s decision date. A claimant holding more than one final, enforceable decision shall have them ranked chronologically. The compensation amount would be paid in full and in instalments. 45. The authorities would retain discretion as regards the type of compensation to be awarded. Claimants would not have the right to choose one type of compensation over another. If a claimant refused the type of compensation awarded, he would forfeit his right to compensation as regards the concerned instalment. Compensation would be automatically carried out by the authorities. In-kind compensation would take priority over financial compensation. Until the total allocation of properties to the IkFC, which would be completed by 2018, in-kind compensation would be distributed as it becomes available. 46. A new directorate, which would coordinate different State bodies, would be established within the Ministry of Justice. 47. The Action Plan did not contain time-limits as regards its implementation. 48. On 25 February 2010 Parliament enacted the Special Compensation Fund Act (Law no. 10239), which is a special fund within the meaning of the budget act. The Special Compensation Fund beneficiaries are two-fold: (1) former owners whose right to compensation was recognised on account of the 1993 and/or 2004 Property Act; and (2) former owners whose right to compensation was recognised on the strength of the Legalisation Act (see “The Legalisation Act” section below). 49. The revenue of the Special Compensation Fund would consist of: (a) annual allocations from the State budget in accordance with the 2004 Property Act as amended; (b) proceeds deriving from the sale at auction of State properties in respect of which no decision on restitution or compensation has been adopted; (c) income generated during the process of the legalisation of unauthorised constructions (see paragraph 51 below); (d) income generated as a result of the implementation of other laws and by-laws; and (e) donations. 50. The Special Compensation Fund will be administered by the Agency. 51. On 3 March 2006 Parliament enacted the Legalisation Act in order to regularise illegal constructions and extensions that had been constructed on public and private land in the 1990s and early 2000s as a result of rapid, profound, internal demographic movements. The Act provided for the transfer of ownership of the plot of land on which unauthorised buildings were constructed, from the original land owner through the State to the owner of the unauthorised building, against the payment of a sale price (sections 19-21) in cash or by way of privatisation vouchers (section 17/1). The formal land owner would receive full compensation in respect of the expropriated plot of land in accordance with the 2004 Property Act. The proceeds obtained by the legalisation process would be transferred to the financial compensation fund as provided for by the 2004 Property Act (section 32 as amended). 52. Statistics concerning the legalisation process, as provided for by the Government, have been annexed to this judgment. 53. In its latest decision of 6 June 2012 concerning the supervision of the execution of this Court’s judgments, at its 1144th meeting, the Committee of Ministers, inter alia, “took note of the elaboration by the Albanian authorities of [a] draft global strategy on property rights.” It further insisted that the Albanian authorities should make concrete progress in order to “establish a list of final decisions, finalise the land value map, calculate the cost of the execution of decisions in order to be able to define the resources needed, adopt the final execution mechanism and execute the decisions at issue.”