CASE OF BUSHATI AND OTHERS v. ALBANIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil 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);Just satisfaction reserved
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Markelian Koca;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
7. The applicants were born in 1918, 1939 and 1944, respectively, and live in Shkoder. 8. Following the conclusion of a purchase contract on 10 July 1940, the applicants' relative became the owner of a plot of land measuring 5,000 sq. m and situated on the Durrës coast. The applicants' relative's title to the property was subsequently entered in the Durrës Land Register. 9. In 1946 the State nationalised – without compensation – all the land situated on the Albanian coast, including the applicants' relative's plot of land. 10. On 3 February 1994 the Durrës Commission on Restitution and Compensation of Property (Komisioni i Kthimit dhe Kompensimit të Pronave – hereafter “the Commission”), restored the applicants' property rights over their relative's property pursuant to the Property (Restitution and Compensation) Act of 1993 (see “Relevant domestic law”, paragraph 53 below). On 22 February 1994 the applicants' title to the property was entered in the Durrës Land Register. 11. Between 1994 and 1995 attempts by the applicants to recover possession of the property proved unsuccessful because buildings had been illegally erected on their land by unlawful occupiers. 12. On an unspecified date in 1995, being unable to recover possession of their property, the applicants initiated proceedings before the Durrës District Court (“the District Court”), seeking an order for three occupiers (M., R. and D.) to cease occupation of their property and for the illegal buildings to be demolished. 13. On 11 April 1995 the District Court confirmed the applicants' property rights over the plot of land allocated to them by the Commission and ordered the occupiers to vacate the applicants' property. That decision became final on 23 May 1995. 14. On 1 August 1995 one of the occupiers, M., submitted a request to the President of the then Court of Cassation for supervisory review of the District Court's decision of 11 April 1995 on the ground that he had not been notified of the proceedings. On 23 September 1995 the President of the Court of Cassation endorsed his request by putting it before the Civil Bench. 15. On 2 February 1996 the Court of Cassation quashed the District Court's decision of 11 April 1995 on the ground that none of the three occupiers had been duly informed of the proceedings before the District Court, and remitted the case to the same court for fresh examination. 16. The applicants were neither informed of the proceedings nor invited to attend the hearings before the Court of Cassation. 17. On 21 June 1996 the District Court decided to dismiss the case as none of the parties had attended the hearing and none had given legitimate reasons for their failure to attend. 18. It appears that the proceedings were reopened on an unspecified date. They were also directed against another unlawful occupier, B. On 20 January 1997 the District Court confirmed the applicants' title to their relative's plot of land and ordered the four occupiers (M., R., D. and B.) to cease occupation. 19. In February 1997 the applicants sold a plot measuring 500 sq. m to another party. That transaction was entered in the land register. 20. On an unspecified date the occupiers of the applicants' property appealed against the District Court's decision of 20 January 1997, challenging the lawfulness of the applicants' title to the plot of land. On 1 April 1998 the Durrës Court of Appeal (“the Court of Appeal”) dismissed their appeal and upheld the District Court's decision. 21. On 10 November 1998 the Court of Cassation quashed the Court of Appeal's decision on the ground that the latter had not examined the lawfulness of the applicants' relative's title to the property. It remitted the case to the Court of Appeal for fresh examination. 22. On 24 November 1999 the Court of Appeal found that on 30 August 1994 the Commission had allocated to R. (who had subsequently donated his property to G.) a plot of land that overlapped with 720 sq. m of the plot of land allocated to the applicants by the same Commission on 3 February 1994. Moreover, the court declared null and void the Commission's decision of 3 February 1994 in respect of the plot measuring 720 sq. m, finding that the applicants' relative's purchase contract of 10 July 1940 was null and void. It therefore revoked the applicants' title to the entire plot of land measuring 5,000 sq. m. 23. On 2 April 2001, following appeals by the applicants and by three of the four occupiers (M., B. and D.), the Supreme Court, which had replaced the Court of Cassation after the Albanian Constitution's entry into force on 28 November 1998, quashed the Court of Appeal's decision in part. The court dismissed the occupiers' appeals on the ground that, as they occupied the land without title, they lacked standing to challenge the applicants' title to the property. The Supreme Court therefore ordered them to cease their occupation of the land. Moreover, the court upheld G.'s title to the plot measuring 720 sq. m that overlapped with the land allocated to the applicants and confirmed the applicants' property rights over the remaining 4,280 sq. m. 24. On 11 March 2003 the applicants lodged an appeal with the Constitutional Court under Article 131 (f) of the Constitution, arguing that the Supreme Court's judgment of 2 April 2001, which resulted in only partial recognition of their property, was unconstitutional. They complained that as the Supreme Court had wrongly assessed the evidence, its impartiality was open to doubt. 25. The Constitutional Court found that the applicants' constitutional complaint concerned the assessment of evidence, which fell within the jurisdiction of the lower courts and was outside its jurisdiction. It therefore declared the appeal inadmissible by a decision of 10 July 2003, which was served on the applicants on 14 July 2003. 26. On 28 June 2001 the District Court ordered the bailiffs to enforce the Supreme Court's judgment of 2 April 2001. 27. On 31 July 2001 the bailiff sent three separate letters to M., D. and B. to comply with the judgment within 10 days from the notification thereof. The bailiff drew the occupiers' attention to the mandatory enforcement of the judgment, should they fail to comply with the judgment voluntarily. 28. On 25 September 2001 the third applicant requested a stay in the execution of the judgment until 15 October for reasons which he did not disclose. The record states that the applicant would appear at the bailiff's office to request the continuation of the enforcement proceedings. 29. On 26 October 2001 the applicant and occupiers M. and D. appeared before the bailiff. The record states that “the parties agreed to postpone the execution of the judgment until 15 November 2001”. 30. On 16 January 2002 the third applicant requested the bailiff to waive the applicants' right of enforcement of the judgment against B. as both parties would resolve the issue by agreement. It appears that on an unspecified date in 2002 the applicants sold a plot measuring 164 sq. m to B. On the same day the third applicant requested enforcement of the judgment against M. and D. by demolishing their constructions. The bailiff agreed to request the assistance of the police for this purpose. 31. On 22 January 2002 M. and D. were informed that the bailiff would proceed with the mandatory execution of the judgment on 4 February, in the presence of police officers. 32. On 4 February 2002 the bailiff decided to postpone the execution to an unspecified date owing to the applicants' absence. It results from the record that the bailiff did not go to the site to undertake any measures with a view to demolishing M.'s and D.'s constructions. 33. On 9 September 2002 the third applicant requested the bailiff to proceed with the enforcement of the judgment, given the failure of M. and D. to comply with an agreement on the amount of compensation in respect of the plots they had occupied. 34. On 10 September 2002 the bailiff sent two separate letters to M. and D. asking them to comply within 10 days with the agreement entered into with the applicants. The bailiff drew the occupiers' attention to the mandatory enforcement of the judgment, should they fail to comply with the judgment voluntarily. 35. On 16 September 2002 the bailiff had a meeting with M. and D., who informed him that they were unable to pay the price requested by the applicants. The occupiers stated that they would vacate the plot of land on the condition that the applicants compensated them for the construction they had erected or that they provided them with a lawfully constructed flat in another location. The bailiff decided to inform the third applicant of the occupiers' requests. 36. On 4 November 2002 the third applicant requested either the vacation of the plots of land or the payment of compensation by the occupiers at the indicated price. The third applicant consented to having the price paid in instalments over a two-year period. He would come to an agreement with the occupiers as regards the amount of the instalments and the method of payment. Failing an agreement, the third applicant affirmed that he would request that the plot of land be vacated. 37. The bailiff's record of a meeting on 14 February 2003 between the third applicant and both occupiers, states that, “Following a series of discussions the parties did not agree on the price offered by the creditor [the third applicant], who requests [the amount of compensation per sq. m] over a three-year period. The debtors offered to pay a [lower] price at (...). Given this disagreement, it was decided that the creditor would request the mandatory enforcement of the judgment when he was ready (kur të jetë gati)”. 38. On the same day the bailiff decided to suspend the enforcement proceedings. The relevant parts of the decision read: “The creditor [the third applicant] has unsuccessfully been trying to resolve the problem by friendly settlement, save with debtor B. Under these circumstances, the creditor requested suspension of the enforcement proceedings until a later appearance before the bailiff at which he would request the mandatory execution as regards the vacation of the plot occupied by M. and D. This has also been reflected in the record of 14 February 2003.” 39. The Durrës Land Registry (“the Land Registry”) entered in the land register, inter alia, G.'s title to a plot of land measuring 975 sq. m, despite the fact that the Supreme Court's judgment of 2 April 2001 had recognised her property rights over a plot of land measuring 720 sq. m (see paragraph 23 above). 40. On an unspecified date the applicants initiated proceedings with the District Court seeking the removal of 255 sq. m from G.'s title of property as entered in the Durrës Land Registry. 41. On 24 December 2003 the District Court decided to suspend the proceedings pending the outcome of the proceedings for recovery of the property (see paragraph 50 below). 42. On 20 April 2004, following an appeal by the applicants, the Court of Appeal quashed the District Court's decision of 24 December 2003 on the ground that there was no connection between the two sets of proceedings as each of them could be decided upon independently, and remitted the case to the same court for continuation of the proceedings. 43. On 7 January 2005 the District Court decided to suspend the proceedings until the parties had provided updated copies of mortgage certificates issued by the Land Registry. 44. On 30 May 2005, following an appeal by the applicants, the Court of Appeal quashed the District Court's decision of 7 January 2005 and remitted the case to the same court for continuation of the proceedings. 45. On 16 January 2006 the District Court, after having received the updated mortgage certificates and the property plans, decided that there was no overlap between the applicants' property and that of G. That decision was upheld by the Court of Appeal on 20 November 2006. 46. On an unspecified date G. commenced construction works, which allegedly encroached upon the plot of land belonging to the applicants. On 17 June 2003, following proceedings initiated by the applicants, the District Court issued an injunction ordering G. to suspend the construction works since the buildings encroached upon the applicants' property. 47. On 20 June 2003 the District Court ordered the bailiffs to enforce the injunction of 17 June 2003. On 30 October 2003 the bailiffs decided not to enforce it because G. had not encroached upon the applicants' property. 48. On 16 December 20003, following an action initiated by the applicants in accordance with Article 610 of the Code of Civil Procedure, the District Court set aside the bailiffs' decision of 30 October 2003. It found that the bailiffs had exceeded their powers as they were not authorised to overrule a court decision. The decision was upheld by the Court of Appeal on 20 April 2004. 49. On an unspecified date in 2004 G. lodged an action with the District Court requesting that the writ of execution of 20 June 2003 be set aside in the light of the District Court's decision of 20 May 2004 (see paragraph 51 below). On 18 March 2005 the District Court dismissed her request on the basis of the Court of Appeal's decision of 24 November 2004, according to which the merits of the case would be heard by a different bench of the District Court (see paragraph 52 below). 50. In view of G's construction works, which had apparently encroached upon the applicants' property, on an unspecified date in 2003 the applicants initiated proceedings for recovery of possession of their property. In the meantime G. filed a counter civil claim requesting the applicants to vacate her plot of land, which was allegedly occupied by their buildings. 51. On 20 May 2004 the District Court concluded, on the basis of an expert valuation concerning the overlap of the properties, that the applicants had occupied a plot of 172.12 sq. m of G.'s property. It also found that G. had occupied a plot of 200.52 sq. m of the applicants' property. The District Court ordered G. to compensate the applicants in the amount of 2,556 United States dollars (USD) for a plot of 28.4 sq. m, which was the difference between the plots of land occupied by each party to the proceedings. Accordingly, it dismissed the applicants' civil claim and also decided to lift the injunction that had been issued on 17 June 2003 (see paragraphs 46 above). 52. On 24 November 2004, following an appeal by the applicants, the Court of Appeal found that the District Court had not examined the parties' updated property titles, particularly in the light of some changes that had taken place to their properties over the years. Accordingly, it quashed the District Court's decision and remitted the case to the same court for a fresh examination by a different bench. 53. On 10 June 2005 the Supreme Court declared G.'s appeal inadmissible in accordance with Article 472 of the Code of Civil Procedure (no valid grounds of appeal). It accordingly upheld the Court of Appeal's decision. 54. On 25 April 2006, on the basis of an expert valuation, the District Court found that the properties overlapped in respect of a plot of 255 sq. m. It concluded that that plot of land belonged to the applicants. The District Court did not find any occupation of G.'s property by the applicants, but ruled that G. had occupied a plot of 347 sq. m that belonged to the applicants. It rejected G's request to pay compensation for the occupation of that plot of land as this was not envisaged under the law. It ordered G. to vacate and return the plot of 347 sq. m to the applicants. The decision was upheld by the Court of Appeal on 5 March 2007. 55. On 25 April 2007 the District Court ordered the bailiffs to enforce its judgment of 25 April 2006. By a letter of 7 June 2007 the applicant informed the Court that the writ of execution of 25 April 2007 was unlikely to be enforced given the presence of two apartment blocks on the occupied plot of land. 56. On an unspecified date G. lodged an action with the District Court requesting the suspension of the writ of execution in respect of one of the illegal buildings, whose status she was trying to legalise. No further information about the enforcement proceedings has been submitted to the Court. 57. The relevant sections of the Constitution of Albania have been set out in Beshiri and Others v. Albania (no. 7352/03, § 20, 22 August 2006). 58. Article 171 of the 1981 Code of Civil Procedure (“the CCP”), which was in force until 1 June 1996, provided that decisions could be quashed for serious procedural violations, inter alia, when the case was tried in the absence of other parties without their having been informed of the hearing dates. 59. Section 9 of Law no. 7574 of 24 June 1992, which amended the Code of Civil Procedure of 1981 in force at the material time, provided that the Court of Cassation was empowered to examine the lawfulness of court decisions by way of an application for supervisory review (kërkesë për mbrojtje ligjshmërie) lodged by the President of the Court of Cassation or the General Prosecutor. The provision did not impose time-limits for applying for such a review. 60. As provided by the 1996 CCP, which abrogated the Code of Civil Procedure of 1981, supervisory review (rekurs në interes të ligjit) was an extraordinary remedy that enabled the Supreme Court (the new name for the Court of Cassation) to reopen proceedings where judgments had become final. Between 1996 and its abolition in 2001, by virtue of Law no. 8812 of 17 May 2001 the supervisory-review procedure underwent several legislative changes. 61. Article 451/a of the CCP provides that a final court judgment is binding on the parties, their heirs, the court that adopted the judgment and other courts and institutions. 62. Article 510 of the CCP stipulates that a judgment can be enforced only on the basis of an execution title, which includes, inter alia, a final court judgment. Under Article 511 of the CCP, an execution title is executed at the request of the creditor. An execution writ is issued for this purpose. In the wording of Article 515 of the CCP, an execution writ is enforced by the bailiff at, inter alia, the request of the creditor. The bailiff invites the debtor to comply voluntarily with the execution writ in accordance with the time-limits laid down in Article 517 of the CCP. Should the debtor fail to comply with a voluntary enforcement within the prescribed time-limits, the bailiff proceeds with a mandatory enforcement in accordance with Article 519 of the CCP. 63. Under Article 610 of the CCP, the parties may complain to the court of an act or failure to act by the bailiff within five days of the said act or omission. There is a right of appeal against the court decision in accordance with Article 611 of the CCP. The appeals has no suspensive effect on the execution. 64. The bailiff may decide to suspend execution at the request of the creditor in accordance with Article 615 of the CCP. The parties may challenge the bailiff's decision to suspend enforcement at the district court in accordance with Article 617 of the CCP. 65. The relevant sections of the Property (Restitution and Compensation) Act have been set out in Beshiri and Others v. Albania (no. 7352/03, §§ 21-29, 22 August 2006); Driza v. Albania (no. 33771/02, §§ 36-43, ECHR 2007... (extracts); and Ramadhi and Others v. Albania (no. 38222/02, §§ 23-30, 13 November 2007).