Communicated on 29 January 2015
FOURTH SECTION
Application no. 43928/13
Eglantina BAKIU and Others against Albania
and 16 other applications
(see list appended)
STATEMENT OF FACTS
The applicants, whose personal details are set out in the appended table, are Albanian nationals. They have been grouped according to the household they constitute. They all face eviction from their flats on the strength of eviction orders and enforcement writs issued against them. They are represented before the Court by Mr D. Matlija and Mr T. Alexandridis, two lawyers practising in Tirana.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Relevant background
During the communist period, households used to live, pursuant to lease agreements, in State-owned housing units. Private dwellings, which passed into State ownership through legislation on nationalisation, were occupied by households pursuant to lease agreements.
In 1992, following the end of communist rule, the Privatisation of the State-owned Housing Units Act provided for the privatisation of all State-owned housing units in favour of occupying households. No provision was made for the privatisation of private dwellings which had been nationalised from former owners and were occupied by households (see the Privatisation of the State-owned Housing Units Act below for detailed information).
In 1993 the Property Restitution and Compensation Act was enacted. Former owners or their heirs were entitled to claim restitution of the expropriated properties. The restitution of dwellings occupied by a tenant did not affect the leases concluded in the meantime, which remained controlled by law (see “the Property Act 1993” section below for detailed information).
In 2004 and 2006 the legislature introduced a time-limit within which tenants had to vacate the dwellings restored to former owners. The said provisions were repealed by the Constitutional Court in 2005 and 2007, respectively (see Constitutional Court’s decisions nos. 26/05 and 11/07 below for detailed information).
2. The circumstances of the following applications
On 1 August 2012 the Government adopted a normative act ordering tenants to vacate dwellings which had been restored to former owners (“the Normative Act 2012”).
On 13 September 2012 parliament enacted a law endorsing the Normative Act 2012 (see “Parliamentary hearing of 13 September 2012” section below for more information).
On 20 August 2012 the Association of Tenants living in Expropriated Properties (“the Association”) challenged the constitutionality of the Normative Act 2012.
On 31 October 2012 the Constitutional Court rejected the Association’s constitutional complaint and declared the Normative Act 2012 constitutional. The reasoned decision became public on 6 February 2013 (see “Domestic Proceedings” under the “Normative Act 2012” section below for detailed information).
Pursuant to the Normative Act 2012, eviction orders as well as enforcement writs were issued against the applicants.
None of the applicants possess real estate or other alternative housing. Their economic status has been briefly described in the appended table.
B. Relevant domestic law and practice
1. Constitution of Albania
Article 101 of the Constitution empowers the Council of Ministers to adopt normative acts in case of necessity and urgency. Normative acts have the force of law and they contain provisional measures. They have to be endorsed by parliament in order to preserve the force of law.
2. The Privatisation of State-owned Housing Units Act (Law no. 7652 of 23 December 1992, as amended)
The Act intended to privatise State-owned housing units and to create a free housing market, thus empowering tenants to become owners. Households living in State-owned flats, pursuant to a tenancy/lease agreement, could purchase those flats and become owners subject to completion of a set of actions, such as payment of the full privatisation price and registration of the property at the relevant property office.
Section 16 of the Act provided that homeless citizens were entitled to receive loans from financial institutions to resolve their housing needs. The interest payments would be borne by the State budget through the National Housing Agency (“NHA”). Section 19 stated that rents for housing units which had previously been private property would be liberalised as from December 1995. Section 25 stated that the State would provide rental housing, which would be constructed in the future, to, inter alia, tenants living in housing units belonging to former owners.
The Constitutional Court’s decision no. 11/93
In decision no. 11 of 27 August 1993 the Constitutional Court held, inter alia, that no discrimination resulted from the existence of two categories of tenants, as provided for under domestic laws. The decision, in so far as relevant, reads:
“The [Constitutional] Court observes that Law no. 7652, dated 23 December 1992, “On the Privatisation of State-owned Housing Units” and Law no. 7698, dated 15 April 1993, “On Property Restitution and Compensation”, govern the problems of the privatisation of State-owned housing units and of the restitution of properties to former owners and compensation for them.
Under both laws, tenants of State-owned housing units have the right to privatise them in compliance with the conditions prescribed under the law. In order to resolve their housing needs, tenants of dwellings that have been restored to former owners have been granted the right to receive loans from financial institutions, the interest payments of which [loans]... are to be borne by the State budget, as expressly provided for in section 16 of the Act, or, alternatively, are to be accommodated as tenants in housing units to be constructed by the State under section 25 of the said Act.
The different solutions to the housing problems that concern these categories of tenants do not arise from any type of discrimination between them, but are a result of the different status they enjoy: the first are tenants of State-owned housing units, the second are tenants of dwellings that have been restored to former owners.”
3. The State Contribution to Homeless Families Act (Law no. 8030 of 15 November 1995, as amended by Law no. 8647 of 24 July 2000)
According to the Act, homeless households are entitled to a loan to be given by the then Savings Bank. The list of loan recipients is prepared by the local government and approved by a Council of Ministers’ decision.
Section 10 determined the amount of rent to be paid by tenants living in dwellings which belonged to former owners.
Section 11 of the 1995 Act introduced the notion of liberalisation of rents that tenants would be obliged to pay. It established the ratio of the rent payable by the tenant and the State. By decision no. 5 of 27 February 1997, the Constitutional Court declared unconstitutional section 11. It found that, in view of the financial circumstances experienced by Albanian households, the ratio of the rent payable by tenants placed a disproportionately heavy financial burden on them. It recommended that the Government fill the resulting legal vacuum.
On 24 July 2000 Parliament amended section 10 of the Act in order to read as follows:
“... homeless citizens who live in housing belonging to former owners shall pay a rent on the basis of the rates that they were paying at the time of entry into force of Law no. 7698 of 15 April 1993 ‘On Property Restitution and Compensation’.”
The amendments enacted in 2000 stated that the State would secure homeless households, living in dwellings restored to former owners, housing through the NHA. The privatisation of such housing units would be carried out in accordance with the Privatisation of State-owned Housing Units Act 1992, the sale price to be indexed.
4. Property Restitution and Compensation Act (Law no. 7698 of 15 April 1993, as amended by Laws nos. 7736 and 7765 of 1993, Laws nos. 7808 and 7879 of 1994, Law no. 7916 of 1995 and Law no. 8084 of 1996 and abrogated by Law no. 9235 of 29 July 2004, and recently amended by Law. no. 9388 of 2005 and Law no. 9583 of 2006)
The Property Act has been described in detail in Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, 31 July 2012), Driza v. Albania (no. 33771/02, ECHR 2007‑... (extracts)) and Ramadhi and others v. Albania (no. 38222/02, 13 November 2007). The relevant provisions in relation to the present applications are set out below.
a) The Property Act 1993
The relevant provision of the Property Act 1993 provided:
Section 14
“The relationship between tenants and former owners who become owners pursuant to this law shall be governed by Law no. 7652, dated 23 December 1992, “On the privatisation of State-owned Housing Units”.
If ... the landlord provides the tenant with housing within the same local government unit, consisting of a surface area in accordance with the housing norms in force, ... the tenant shall be obliged to vacate the dwelling.
The State is obliged to resolve the housing needs of current tenants in accordance with the current housing norms, by giving priority to families with limited financial means.
At their request former owners may be compensated in one of the forms determined by this law.”
b) The Property Act 2004
In so far as relevant, the Property Act 2004, repealing the 1993 Property Act, provided:
Section 9
“1. Houses, which are the property of former owners, shall be vacated by the tenant(s) within three years. The tenants shall continue to pay the rent set by the Council of Ministers for two years after the entry into force of this Act. The Council of Ministers shall be responsible for housing homeless tenants, by providing a dwelling at a low rent, a low-interest loan or a dwelling whose rent is borne by the State.”
The Constitutional Court’s decision no. 26/05
In its decision no. 26 of 2 November 2005, the Constitutional Court repealed section 9 § 1 of the Property Act 2004. It attached importance to the fact that the relevant provision had worsened the status of tenants compared to the provisions that existed before the Property Act 2004 entered into force. It found that the amendment to the legislation did not respect the principle of legal certainty. It concluded that a limitation on tenants’ right to shelter could not be justified by the public interest of upholding former owners’ property rights.
c) The Property Act 2006
Following the Constitutional Court’s decision no. 26/05, in 2006 the legislature amended section 9 of the 2004 Act to read as follows:
Section 9
“1. Houses, which are the property of former owners and which were leased to tenants by the State before the entry into force of Law no. 7652 of 23 December 1992, 1992, ‘On Privatization of State-owned Housing Units’, which are used for housing needs shall be transferred to the possession of the former owner(s), when one of the following conditions is met:
a. The housing needs of the tenants have been met in any other lawful way;
b. The former owner provides the tenants with a dwelling that has a surface area no smaller than the dwelling they already use and which is in an approximately similar condition and within the same local government unit, until such time as the tenants’ housing needs are met in one of the other ways provided for by this section.
c. The tenants conclude a loan contract with a financial institution, in accordance with the first and second paragraphs of section 25 of Law no. 9232 of 13 May 2004, ‘On social programmes for the housing of inhabitants of urban areas’;
d. (ç) The tenants benefit from housing or a plot of land as provided for by section 25 (13) of Law no. 9232 of 13 May 2004, ‘On social programmes for the housing of inhabitants of urban areas’;
The Constitutional Court’s decision no.11/07
In decision no. 11 of 4 April 2007 the Constitutional Court repealed section 9 § 1 of the Property Act 2006. It followed the same line of reasoning as in its decision no. 26/05. It recommended that the Council of Minister adopt new legislative measures to fill the legal vacuum.
5. The Normative Act 2012
On 1 August 2012 the Government adopted the Normative Act for the vacation of former owners’ houses which were occupied by tenants. Only those tenants whose names had been transferred to the National Commercial Bank (“the Bank”) to obtain a zero-interest loan for a period of 30 years to buy a flat would be evicted. The list of homeless tenants to obtain a loan would be drawn up by the NHA and submitted to the Bank by 5 September 2012. The deadline to voluntary vacate the flats was fixed on 1 November 2012.
In the event of failure to voluntary vacate the flat by the prescribed time-limit, the NHA, upon written notification of the former owner, would issue an eviction order, which would be considered an executive title within the meaning of the Code of Civil Procedure. The NHA would then request the District Court to adopt an enforcement writ for the vacation of the flat. Section 3 bars a stay of execution of the enforcement writ.
In addition to a zero-interest loan for a period of 30 years, section 4 of the Normative Act also envisages for rental social housing provided by municipal councils and placement of old people who are unable to care for themselves or who do not have the means to pay rental social housing at elderly homes.
a) The People’s Advocate’s (Ombudsperson) opinion
On 10 September 2012 the People’s Advocate (Ombudsperson) issued a public opinion in relation to the Normative Act 2012. He opined that the legal vacuum resulting from the repeal of section 9 of the Property Act 2006 should have been filled by Parliament instead of by the Government, that there was no detailed study as regards the status of homeless households, that the time-limits fixed by the Normative Act were extremely short, that no stay of execution was allowed and that no public interest justified a breach of the principle of legal certainty. In the end, he concluded that the Normative Act 2012 was incompatible with the Constitution.
b) Parliamentary hearing of 13 September 2012
On 13 September 2012 parliament endorsed the Normative Act. According to the hearing record of the same day, ruling majority members of parliament (MPs) stated that there were over 3,000 households living as tenants in dwellings belonging to former owners, 1,000 of whom had applied for a loan at the Bank, out of whom 285 had already obtained a loan. The program of granting a zero-interest loan, meaning that interest payments were to be borne by the State budget, had been in existence since 2009.
According to opposition MPs, the adoption of the Normative Act was hasty and required specialised and broader discussions. They requested that the People’s Advocate’s opinion be circulated to the MPs.
c) Proceedings before the Constitutional Court
On 20 August 2012 the Association lodged a constitutional complaint with the Constitutional Court, challenging the constitutionality of the Normative Act 2012. The Association submitted that the solutions provided for by the Normative Act 2012 were incompatible with the principle of legal certainty. They disfavoured the tenants by displacing the State’s obligation to provide housing for this category. They were further discriminated by comparison to those tenants who had obtained housing under the State Contribution to Homeless Families Act 1995.
The Association also contested the fact that this situation should have been governed by a law adopted by parliament instead of a normative act adopted by the Government. It further took issue with the lack of a possibility to challenge the stay of the enforcement and the fact that tenants had to voluntary vacate the flats within a short time-limit, i.e. by 1 November 2012.
In their additional submissions of 23 October 2012 the Association stated that the Normative Act 2012 did not provide effective solutions on the following grounds: the local government units did not possess necessary funds and means to provide social housing, the Bank did not possess sufficient funds to deliver loans to every homeless household, the majority of the applicants, owing to their age, insufficient earnings, previous criminal records and the lack of collaterals, would not become eligible for a loan.
In their written submissions of 23 October 2012 to the Constitutional Court, the Ministry of Public Works and Transportation (“the Ministry”) submitted that, since 2008, the Government had been implementing a financing scheme of zero interest loans to homeless households living in housing belonging to former owners. The statistics showed that out of 3,157 registered homeless households, 999 of them had applied for zero-interest loans, out of which only 285 had concluded contracts for disbursement with the Bank. Even though loans were approved in respect of the remaining homeless households, they delayed signing the paperwork for their disbursements. Having regard to the delays by homeless households to apply for zero-interest loans and to subsequently sign the paperwork for their disbursement, the Government adopted the Normative Act as a matter of urgency. The Normative Act remedied the former owners’ property rights in accordance with Article 1 of Protocol No. 1 to the Convention and avoided making the State liable to payment of high reparation claims. In their view, there was no breach of the principle of legal certainty, since the problem of homeless households had been the subject of discussions for the past twenty years. Moreover, the Normative Act provided for rental social housing provided by local government units or for accommodation at elderly homes as regards old people who did not meet the requirements to obtain a loan.
The Constitutional Court’s decision no. 1/13
On 31 October 2012 the Constitutional Court informed the Association that it had unanimously dismissed the constitutional complaint. The reasoned decision became available on 6 February 2013 (decision no. 1/13).
The Constitutional Court found that, in accordance with Article 101 of the Constitution, there was a necessity and urgency to adopt the Normative Act 2012. This was dictated by the fact that former owners had been waiting for twenty years to have the dwellings restored. It had also been conditioned by the implementation of the Strasbourg Court’s pilot judgment in the case of Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, 31 July 2012) as regards the enforcement of final decisions recognising former owners’ right of restitution of their properties or compensation in lieu. In further reference to the Strasbourg Court’s findings in the cases of Beshiri and Others v. Albania (no. 7352/03, 22 August 20060), Driza, cited above and Ramadhi and Others, cited above, the court noted the systemic failures of the domestic system to respect former owners’ right of peaceful enjoyment of possessions. It therefore considered that the Normative Act struck a right balance between the tenants’ right and the former owners’ right of property.
As to the proportionality test, the Constitutional Court held that the Normative Act provided for a 30-year long loan, with a zero interest rate, whose payments would be borne by the State. The amount of the interest rate would exceed the principal amount to be taken as a loan by a tenant. Furthermore, the Normative Act laid down other positive obligations for the State, such as the provision of social housing to such tenants by local government units, priority to be given to rental social housing, as well as placement of old people, who were not capable of taking care of themselves or had no one else to attend to them, at elderly homes. In the court’s view, this showed that the State had made sufficient provision for vulnerable groups. Housing these individuals was a shared task between the State and themselves. The proposed measures could not be said to be arbitrary, unfair or based on unreasonable assessment. Neither could they be considered more stringent; on the contrary, they were more favourable. The obligation for tenants to vacate the dwellings was necessary and the interference was justified by the public interest.
The Constitutional Court rejected the Association’s complaint that the courts could not stay the enforcement on the ground that its constitutional review did not extend to issues concerning the interpretation, implementation and harmonisation of domestic laws.
6. Agreement between the National Commercial Bank and the Government
On 18 February 2009 the National Commercial Bank (“the Bank”) concluded an agreement with the Ministry of Finance and the Ministry of Public Works, Transport and Telecommunications. According to the agreement, the Bank would deliver loans subsidised by the State to homeless people, whose names appeared on the lists of recipients drawn up by the Government or local government units and who satisfied the Bank’s conditions for lending.
COMPLAINT
The applicants complain that their eviction violates their right to respect for home under Article 8 of the Convention. In particular, they complain that they authorities did not conduct an individualised assessment of their situation in ordering their eviction and that the measures contained in the Normative Act 2012 are ineffective.
QUESTIONS
1. In view of the fact that the constitutional complaint was lodged by the Association of Tenants, did the applicants exhaust domestic remedies, as required by Article 35 § 1 of the Convention? Moreover, can a constitutional complaint be considered an effective remedy in the present case? Did the applicants have at their disposal other legal remedies in order to seek redress in respect of their individual situations? If so, did they make use of those remedies?
2. Has there been a breach of the applicants’ right to respect for their home, contrary to Article 8 of the Convention? In particular, has the applicants’ eviction been compatible with Article 8 of the Convention?
a) Did the manner in which the authorities ordered eviction comply with the requirement to establish proper justification for the interference with their right to respect for home?
b) How did the authorities assess the specificity of the applicants’ situations’ household? Did they conduct any (economic or social) study to determine the situation of each household?
c) What arrangements did the authorities make for providing alternative housing to vulnerable applicants? In this connection:
i) Did the applicants, notably those who were retired or incapacitated for work, obtain a loan?
ii) Were the applicants accommodated in social housing?
iii) Which applicants were offered housing at elderly homes?
iv) What other measures could the authorities have adopted in order to protect vulnerable tenants?
d) What weight did the authorities attach to the timing of the applicants’ eviction, having regard to the approach of the winter season?
e) Were the applicants afforded procedural guarantees to challenge their eviction before national courts?
f) Did members of the applicants’ households own other real estate?
3. What steps did the applicants take throughout the years to seek alternative housing? What steps did the applicants take to make use of the avenues offered by the authorities throughout the years in order to seek alternative housing? The applicants are requested to provide information in support of their claims.
Factual information
1. The applicants are requested to provide information as regards: the size of the dwelling, the estimated value of the dwelling, the location of the dwelling, the monthly rent paid, the market monthly rent as well as the monthly earnings.
2. The applicants are requested to inform the Court whether eviction orders have been enforced. They are requested to provide information about their actual housing and how they intend to find long-term housing.
3. The parties are invited to provide statistics about:
a) the number of households evicted to date and the number of households to be evicted in the future;
b) the number of households that have applied for a loan, the number of households that have obtained a loan and the number of households whose application for a loan was rejected;
c) the number of social housing units built throughout the years, the number of households accommodated in social housing units and the availability of existing social housing units;
d) the total capacity of elderly homes, the number of tenants accommodated at such homes and the number of existing places available.
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
Applicant’s social status
Eviction order
Enforcement writ
Other information
43928/13
30/04/2013
Eglantina BAKIU
27/07/1959
Employed, earning EUR 390 per month.
NHA’s eviction order of 15/11/2012
District Court’s decision of 23/11/2012
Bailiff’s letter of 27/12/2012 to voluntary comply with the enforcement writ;
no possession of real estate.
Ilir BAKIU
15/02/1967
Residing in Italy.
Vezire BAKIU
05/02/1935
Retired.
43934/13
30/04/2013
Fatbardh TOQI
26/09/1969
Employed, earning EUR 360 per month.
NHA’s eviction order of 07/11/2012
District Court’s decision of 21/11/2012
Living in the flat since 1974;
no possession of real estate.
Evis TOQI
17/04/1976
Employed, earning EUR 330 per month.
Nimet ALLUSHI
28/09/1945
Retired.
44107/13
30/04/2013
Fire BATKU
09/12/1946
Retired, earning EUR 55 per month.
NHA’s eviction order of 15.11.2012
District Court’s decision of 04.02.2013
Bailiff’s letter of 27/12/2012 to voluntary comply with the enforcement writ;
no possession of real estate.
Julian BATKU
09/12/1946
Employed.
Suela BATKU
17/10/1975
Unemployed.
44132/13
30/04/2013
Nikolina KOVAÇI
07/12/1942
Retired, earning EUR 100 per month.
NHA’s eviction order of 08/11/2012
District Court’s decision of 21/11/2012
No possession of real estate.
44136/13
30/04/2013
Gjyze META
05/03/1937
Retired.
NHA’s eviction order of 26/12/2012
District Court’s decision of 22/01/2013
No possession of real estate.
44140/13
30/04/2013
Daniela NIKOLLA
16/12/1964
Earning a disability allowance.
NHA’s eviction order of 23/11/2012
District Court’s decision of 04/12/2013
No possession of real estate.
44147/13
30/04/2013
Foto XHILLARI
03/05/1923
Retired, earning EUR 115 per month
NHA’s eviction order of 18/01/2013
District Court’s decision of 29/01/2013
No possession of real estate.
44150/13
30/04/2013
Gezim VINÇANI
22/05/1956
No information.
NHA’s eviction order of 07/11/2012
District Court’s decision of 20/11/2012
No possession of real estate.
44152/13
30/04/2013
Bujar SUBASHI
16/10/1962
Tirana
Employed, earning EUR 225 per month.
NHA’s eviction order of 27/11/2012
District Court’s decision of 10/12/2012
Living in the flat since 1959;
no possession of real estate.
Anila SUBASHI
30/09/1968
Unemployment allowance of EUR 50 per month.
44153/13
30/04/2013
Sabrije SUBASHI
19/05/1927
Retired.
NHA’s eviction order of 27/11/2012
District Court’s decision of 10/12/2012
Living in the flat since 1959;
no possession of real estate.
Ilirjan SUBASHI
01/08/1953
Unemployed.
Kreshnik SUBASHI
11/07/1983
Student.
Drini SUBASHI
27/10/1985
Employed, earning EUR 708 per month.
Nexhmije SUBASHI
21/05/1960
Employed, earning EUR 57 per month.
44522/13
30/04/2013
Burhan SPAHIU
05/01/1943
Retired; EUR 165 per month; no property
NHA’s eviction order of 07/11/2012
District Court’s decision of 21/11/2012
Living in the flat since 1991;
no possession of real estate.
Dorjan SPAHIU
15/03/1969
Unemployed.
44526/13
30/04/2013
Bukurosh RECI
11/07/1954
No information.
NHA’s eviction order of 15/11/2012
District Court’s decision of 27/11/2012
Living in the flat since 1945;
no possession of real estate.
44535/13
30/04/2013
Ermira PAJA
29/07/1959
Employed, earning EUR 265 per month
NHA’s eviction order of 23/11/2012
District Court’s decision of 04/12/2013
Living in the flat since 1988;
no possession of real estate.
44542/13
30/04/2013
Lulzim DHIMITRI
22/04/1952
Employed, earning EUR 290 per month.
NHA’s eviction order of 08/11/2011
District Court’s decision of 04/12/2012
Living in the flat since 1948;
no possession of real estate.
Bukurie DHIMITRI
05/11/1956
Retired, earning EUR 141 per month.
44548/13
30/04/2013
Brahim FIKAJ
26/07/1944
Retired, earning EUR 156 per month.
NHA’s eviction order of 01/03/2012
District Court’s decision of 29/01/2013
Living in the flat since 1973;
no possession of real estate.
Lirije FIKAJ
29/08/1949
Retired, earning EUR 100 per month
Brunilda FIKAJ
18/07/1982
No information.
44611/13
30/04/2013
Vladimir DHIMITRI
19/01/1949
Employed, earning EUR 340 per month;
NHA’s eviction order of 08/11/2011
District Court’s decision of 04/12/2012
Living in the flat since 1948;
no possession of real estate.
Tania DHIMITRI
16/02/1952
Retired, earning EUR 162 per month.
Olta DHIMITRI
28/03/1985
Employed, earning EUR 175 per month; No property; no other info;
44632/13
30/04/2013
Fadile KADAREJA
13/02/1958
Unemployed.
NHA’s eviction order of 18/01/2013
District Court’s decision of 29/01/2013
No possession of real estate.
Besnik KADAREJA
18/06/1954
Employed, earning EUR 220 per month.
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