CASE OF LULI AND OTHERS v. ALBANIA
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
6. All three applications were lodged with the Court by the same applicants. They were initially registered under application no. 31355/09 (not communicated to the Government). 7. After a preliminary examination of the case file and taking account of the applicants’ additional clarifications as well as the conduct of the domestic proceedings, it was considered necessary to divide the case into three applications, two additional application numbers having been allocated (nos. 64480/09 and 64482/09). These latter two cases have been communicated to the Government. 8. The facts in respect of each application have been described below. 9. On 6 March 1996 the Durrës Restitution and Compensation of Properties Commission (“the Durrës Commission”) recognised the applicants’ inherited property rights to a plot of land measuring 174,000 sq. m, 4,200 sq. m of which was restored. The applicants would have the right to first refusal (e drejta e parablerjes) of a further 5,800 sq. m and they would be compensated in one of the ways provided for by law for the remaining 158,200 sq. m (“the first Commission decision”). 10. On the same day, the Durrës Commission, consisting of the same composition, delivered another decision which bore the same number and Commission stamp (“the second Commission decision”). According to the second decision, the Durrës Commission recognised the applicants’ inherited property rights to a plot of land measuring 17,400 sq. m, 4,200 sq. m of which was restored. The applicants would have the right to first refusal of 5,800 sq. m, no other award having been made. 11. On 6 December 2005 the Durrës District Court recognised the existence of the applicants’ inherited property rights to a plot of land measuring 400,000 sq. m situated in the city of Durrës (vendim për vërtetim fakti). This plot of land was made up of two smaller plots: one measuring 260,000 sq. m (“Plot A”) and the other measuring 140,000 sq. m (“Plot B”). 12. On an unspecified date the applicants made an application for the recognition of property rights to Plot B (see paragraph 11 above). 13. On 30 July 2007 the Durrës Regional Agency for Compensation and Restitution of Properties (“the Durrës Regional Agency”) recognised the applicants’ inherited property rights to Plot B, 53,200 sq. m of which was restored. The applicants would also be compensated in one of the ways provided for by law in respect of a further 22,960 sq. m, no decision having been taken in respect of the remaining 63,840 sq. m. 14. On 15 November 2007, following the applicants’ appeal, the Agency for Compensation and Restitution of Properties in Tirana (“the Central Agency”) quashed the Durrës Regional Agency’s decision of 2007 and remitted the case for re-examination. 15. On 16 May 2008 the Durrës Regional Agency recognised the applicants’ inherited property rights in respect of only 76,160 sq. m of Plot B, no decision having been taken in respect of the remaining 63,840 sq. m. The applicants would be compensated in one of the ways provided for by law in lieu of restitution of the area of Plot B measuring 76,160 sq. m. 16. On 28 February 2011 the Central Agency quashed the Durrës Regional Agency’s decision of 2008. The applicants were informed of their right to appeal, within 30 days of notification, to the Tirana District Court. 17. It would appear that, following the applicants’ appeal, the proceedings are currently pending before the Tirana District Court. 18. On 29 March 2011 the Central Agency, having regard to the Constitutional Court’s decision no. 27/2010 (see paragraph 59 below), decided that it was outside of its jurisdiction to examine a decision given in a separate set of proceedings which, in 2003, had recognised a third party’s inherited property rights to the plot of land measuring 63,840 sq. m which the applicants alleged belonged to them. 19. On an unspecified date, after the Durrës District Court’s decision of 6 December 2005 (see paragraph 11 above), the applicants applied for the recognition of property rights to a plot of land measuring 242,600 sq. m. This plot of land, taken together with the plot of land measuring 17,400 sq. m referred to in the second Commission decision (see paragraph 10 above), totalled Plot A. 20. On 30 July 2007 the Durrës Regional Agency recognised the applicants’ inherited property rights to the plot of land measuring 242,600 sq. m and further restored them a plot of land measuring 7,788 sq. m. 4,200 sq. m of Plot A had already been restored by virtue of the second Commission decision (see paragraph 10 above). The applicants would be compensated in one of the ways provided for by law for 245,772 sq. m of Plot A, no decision having been taken in respect of the remaining 2,240 sq. m. 21. On 15 November 2007, following the applicants’ appeal, the Central Agency quashed the Durrës Regional Agency’s decision 2007 and remitted the case for re-examination. 22. On 30 April 2008 the Durrës Regional Agency recognised the applicants’ inherited property rights to the plot of land measuring 242,600 sq. m and further restored them a plot of land measuring 7,788 sq. m. 4,200 sq. m of Plot A had already been restored by virtue of the second Commission decision. The applicants would be compensated in one of the ways provided for by law for 248,012 sq. m of Plot A. 23. On 4 July 2008, on his own motion, the Central Agency’s director quashed the Durrës Regional Agency’s decision of 2008 and sent the case back for re-examination. 24. On 23 December 2009 Regional Agency offices were abolished by law and the Central Agency was entrusted with the examination of restitution and compensation claims. No further decision appears to have been taken to date. 25. On 8 June 1995 the Lezhë Commission recognised the applicant’s father’s property rights to a plot of land measuring 25,850 sq. m, 11,500 sq. m of which was restored. The applicant would be compensated in one of the ways provided for by law in respect of a plot measuring 5,000 sq. m (t’i kompesohet sipërfaqja prej 5,000 m2me mënyrat e parashikuara në [këtë] ligj). The Commission further recognised the applicant’s right to first refusal of the remaining property. 26. On 19 April 2000 the applicant registered her title to a plot of land measuring 5,830 sq. m in her name. However, she was unable to use that land as it was occupied by the Port Authority of Shëngjin (“the Port Authority”). 27. On 16 October 2000 the Ministry of Public Economy and Privatisation ordered the registration of the immovable property of the Port Authority. However, the Port Authority was unable to register the immovable property as the property rights had been recognised and registered in favour of the applicant. 28. On 3 July 2006 the applicant brought civil proceedings before the Lezhë District Court (“the District Court”) requesting the Port Authority to vacate the plot of land measuring 5,830 sq. m. 29. On 19 February 2007 the District Court accepted the applicant’s request. The Port Authority appealed. 30. On 23 October 2007 the Shkodër Court of Appeal quashed the lower court’s decision on grounds of procedural irregularities and remitted the case for re-examination by a different bench. 31. On 19 November 2007 the applicant appealed against the decision to the Supreme Court. 32. On 6 November 2009, following the applicant’s request about the progress of her appeal, the Supreme Court informed her that the case was still pending for examination before that court. 33. On 9 April 2010 the Supreme Court dismissed her appeal. 34. On 28 March 2011, in the rehearing proceedings, the District Court discontinued the proceedings (vendosi pushimin e çështjes) for lack of appearance of the applicant despite notification of the date and time of the hearing. 35. On 27 November 2007 the Gjirokastra Regional Agency recognised the applicant’s inherited property rights to some plots of land. 36. On 16 January 2008 the Gjirokastra State Advocate’s Office (“the State Advocate’s Office”) was informed of the above decision and, on 11 February 2008, appealed against it arguing that the decision had been taken in breach of the law. 37. On 12 September 2011 the Central Agency’s director stayed the proceedings until the adoption of a decision by the Constitutional Court in a case concerning the constitutionality of certain provisions of the Property Act 2004 (see paragraphs 60 and 61 below). 38. On 28 February 2012 the Central Agency relied on, inter alia, the Constitutional Court’s decision no. 43/2011 (see paragraph 62 below) to declare the case outside of its jurisdiction. 39. The proceedings are currently pending before the Tirana District Court following an appeal by the State Advocate’s Office on an unspecified date in March 2012. 40. In 1957 K. bought a plot of land and a three-bedroom house located thereon from the State. The property had been confiscated from D. and expropriated by the State in 1948. 41. On 26 October 1992 the applicant bought the property from K. and it was entered in the mortgage register. 42. On 2 August 1993, under the Rehabilitation of Victims of Political Repression Act (Law no. 7514 of 30 September 1991), the financial unit of Tirana Municipality allocated to D.’s heir, M., the land and the house purchased by the applicant. 43. On 25 August 1993 M. donated the property to her brother, H. 44. On an unspecified date in 1996 H. lodged a civil action against the applicant for the vacation of the land and the house. 45. By a final decision of 14 January 1998 the Court of Cassation ruled in favour of H., ordering the vacation of the land and the house. It upheld the lower court’s decision which had recognised H. as the legal owner and had declared null and void the sale contract of 26 October 1992. 46. On 23 September 2000 the Tirana Commission recognised H.’s title to the above properties. 47. On 24 September 2002 the applicant’s supervisory review request was rejected by the Supreme Court Joint Benches. 48. On an unspecified date, most likely in 2006, the applicant lodged a civil action seeking the nullity of a number of legal acts which had affected his property rights. 49. On 23 October 2007 the Court of Appeal found that the applicant had no locus standi to bring legal proceedings. According to the court, the sale contract of 26 October 1992 was null and void on the following grounds. In the first place, by virtue of the Rehabilitation of Victims of Political Repression Act 1992, K. was not allowed to transfer property rights to third parties. Secondly, the sale contract had not been concluded in accordance with the law (before a notary public). Thirdly, the Court of Cassation’s decision of 14 January 1998 had ordered the vacation of the land and the house by the applicant. The applicant appealed to the Supreme Court within the thirty-day statutory time-limit (see paragraph 55 below). 50. On 7 April 2011 the Supreme Court, by way of a reasoned decision, upheld the Court of Appeal’s decision. 51. On 22 July 2011 the Constitutional Court, sitting as a bench of three judges, rejected the applicant’s constitutional appeal, finding that the lower courts had correctly ruled that the applicant lacked locus standi. 52. Section 18 of the 2004 Property Act, as amended by law no. 9684 of 6 February 2007, provided for the right of a claimant and of the State Advocate’s Office to appeal against a Regional Agency’s decision recognising property rights and awarding compensation, as appropriate, within 30 days of its notification, to the Central Agency. 53. The Central Agency’s director would decide on the appeal within 30 days of its introduction (jo më vonë se 30 ditë nga regjistrimi i ankimit, Drejtori i Përgjithshëm merr vendim për objektin e ankimit). 54. Under Article 324 of the CCP a claimant may seek the annulment of an administrative decision. A claimant may also challenge the authorities’ refusal to take an administrative decision within the prescribed time-limit. 55. Article 443 of the CCP provides that the time-limit for lodging an appeal with the Supreme Court is 30 days. 56. Section 1 provides that “the HCJ is ... responsible for the protection, appointment, transfer, dismissal, education, moral and professional appraisal, career and the assessment of performance of judges of first-instance courts and of courts of appeal.” 57. Under section 2, the HCJ is also empowered to take disciplinary measures against judges. In this connection, it is assisted by an Inspectorate as provided for in section 14. Under section 16, the HCJ Inspectorate verifies complaints submitted by individuals to the HCJ or to the Minister of Justice against judges’ actions. In the event of good cause for the institution of disciplinary proceedings, the Inspectorate draws up a report and submits it to the Minister of Justice who decides on the start of disciplinary proceedings. The report is also submitted to the HCJ meetings. 58. On 26 March and 14 September 2009 the Supreme Court and the Ombudsman requested the Constitutional Court to examine the constitutionality of some provisions of the 2004 Property Act, as amended. 59. On 26 May 2010 the Constitutional Court declared unconstitutional some provisions of the 2004 Property Act, as amended, which had empowered the Central Agency’s director to review prior decisions taken by former land Commissions or Regional Agency offices (decision no. 27/2010). It found that such powers were contrary to the principle of legal certainty. 60. On 22 July 2010 Parliament therefore enacted amendments to the 2004 Property Act which restored the Central Agency’s director’s powers to review prior decisions taken by land Commissions or Regional Agency offices. 61. On 6 December 2010 and 2 February 2011 the constitutionality of these amendments was challenged before the Constitutional Court. 62. On 6 October 2011 the Constitutional Court annulled the provisions of the 2004 Property Act as introduced on 22 July 2010. It found that the Central Agency did not have the characteristics of a judicial or quasi-judicial body, so that it could not be empowered to review decisions of former land Commissions or regional Agency offices. It further found that such review powers were contrary to the principle of legal certainty and the protection of property (decision no. 43/2011). 63. On 7 November 2011 the Constitutional Court found that there had been a breach of the appellant’s right to a fair hearing as regards the length of the criminal proceedings (decision no. 47/2011). No award was made to the appellant, nor was any other means of redress provided. 64. On 5 March 2012 the Constitutional Court found that there had been a breach of the appellant’s right to a fair hearing as regards the length of the civil proceedings (decision no. 12/2012): the civil action had been pending before the District Court since 2006. No award was made to the appellant, nor was any other means of redress provided.