CASE OF JELLA AND OTHERS v. ALBANIA

THIRD SECTION

CASE OF JELLA AND OTHERS v. ALBANIA

(Application no. 7564/07)

JUDGMENT
 

STRASBOURG

5 March 2024

This judgment is final but it may be subject to editorial revision.

In the case of Jella and Others v. Albania,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Georgios A. Serghides, President,
 Darian Pavli,
 Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 7564/07) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 January 2007 by five Albanian nationals (“the applicants”) who were represented by Ms E. Kurteshi and Mr B. Boçari, lawyers practising in Tirana;

the decision to give notice of the application to the Albanian Government (“the Government”), represented by their then Agent Ms E. Hajro and subsequently by Mr O. Moçka, General State Advocate.

the parties’ observations;

Having deliberated in private on 6 February 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. The case concerns alleged violation of the applicants’ right to peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 to the Convention because of the non-enforcement of the domestic decisions in their favour.

2. The list of applicants and their particulars are set out in the Appendix.

3. The applicants’ ancestor’s land was nationalised on an unspecified date by the former communist regime. After the fall of communism, on an unspecified date the applicants lodged a request with the Commission on Restitution and Compensation for Property (“the Commission”), seeking restitution of the said plot of land.

4. On 9 September 1994 the Commission recognised the applicants’ property title on a plot of land measuring 43,100 square metres (sq. m) of which 25,540 sq. m were occupied. It ruled that 13,310 sq. m located within the unoccupied plot measuring 17,560 sq. m were to be restituted to the applicants. The applicants were to choose the location of these 13,310 sq. m. That decision has never been challenged before any courts and is still in force. Up to this date, this plot of land has not come into the applicants’ possession, nor has it been registered in their name.

5. The Commission also decided to restore the applicants’ property rights over a house together with adjacent plot of land measuring 430 sq. m and another plot of land measuring 400 sq. m, located within the plot measuring 43,100 sq. m. The applicants’ ownership of these plots was registered in the Land Register.

6. On an unspecified date the applicants lodged a court action against the Commission, seeking clarification of its decision regarding the recognition of the title to property, as well as its restitution and/or compensation. Among other things, the applicants alleged that a plot measuring 290,700 sq. m should have been restored to them. On 17 May 2005 the Tirana District Court dismissed the claim, accepting the Commission’s contention that this was an issue of administrative jurisdiction. That decision became final.

7. In 2005 and in 2007 the applicants lodged requests with the Commission’s successor, the Agency for Restitution and Compensation of Property (“the Agency”), asking for the plot measuring 13,310 sq. m to be delimited and seeking restitution of the remaining unoccupied land. On 26 June 2007 the Agency instructed the applicants to submit a new application with its local office.

8. The applicants’ objection to that letter was dismissed by the Agency’s director. On 24 December 2009 the Tirana District Court ruled in favour of the applicants, stating that the Agency had a duty to give a decision. That decision became final.

9. On 25 October 2011 the Agency dismissed the applicants’ request for enforcement of the District Court’s decision of 24 December 2009, on the grounds that it was for the applicants to choose the exact location of the plot of land. The Agency also contended that it lacked jurisdiction to review a Commission’s decision and the applicants should lodge a civil action.

10. In 2015 the applicants’ civil action was dismissed by the Tirana District Court which found no conclusive evidence regarding the applicants’ right to property on the plot measuring 13,310 sq. m. In 2017 the Tirana Appeal Court quashed that decision and remitted the case to the District Court, holding that the analysis of the relevant evidence was incomplete, and that the Agency had not questioned the applicants’ ownership over the plot measuring 13,310 sq. m. In 2023 the case remained pending before the Supreme Court after an appeal on points of law by the Agency.

11. On 11 July 2018 the applicants filed a new request with the Land Registry for the registration of their ownership of the plot measuring 13,310 sq. m. It was rejected on the basis that the property plan did not clearly define the boundaries of that plot.

12. On 6 September 1996 the Commission recognised property rights in favour of a private party, the family S., on a plot of land. On an unspecified date the applicants challenged the Commission’s decision, claiming that S.’s plot of land overlapped with theirs.

13. On 19 May 2004 the Tirana District Court annulled in part the Commission’s decision of 6 September 1996, insofar as the plot measuring 5,500 sq. m overlapped with the applicants’ property. That decision became final on 27 December 2006, following the dismissal of the defendant’s appeal by the Supreme Court.

14. On 17 October 2011 the District Court dismissed a claim lodged by the applicants against several private parties concerning another overlap with the plot measuring 13,310 sq. m, finding that at the time of the Commission’s decision in 1994 (see paragraph 4 above), the plot of land in question had been occupied in part by one Z.B.

THE COURT’S ASSESSMENT

15. The Government objected to the admissibility of this complaint on two grounds.

16. Firstly, they argued that the applicants’ complaint fell out of the scope of Article 1 of Protocol No. 1 because they did not have a legitimate expectation to acquire possession of the plot measuring 290,700 sq. m, in so far as no rights in respect of that plot had been recognised by a final decision.

17. The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision (see, among others, Manushaqe Puto and Others v. Albania, nos. 604/07, 43628/07, 46684/07 and 34770/09, § 92, 31 July 2012, and Luli and Others v. Albania, nos. 64480/09 and 5 others, § 104, 1 April 2014). For the plot measuring 290,700 sq. m no enforceable final decision has yet been adopted. The proceedings concerning the recognition of the applicants’ property rights on that plot are still pending before the domestic authorities (see paragraph 10 above).

18. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

19. As for the plot measuring 13,310 sq. m, the Court observes that the applicants had their right to restitution recognised by the 1994 Commission decision, which is final. Hence, it considers the applicants’ claim over that plot of land sufficiently established in domestic law to qualify as an enforceable “asset” under Article 1 of Protocol No. 1 (see, for example, Ramadhi and Others v. Albania, no. 38222/02, § 71, 13 November 2007).

20. In addition, the Government invited the Court to reject the application on the grounds that the applicants had not exhausted domestic remedies, because they should have addressed the issue with the Land Registry. The Court notes that the applicants have instituted several proceedings, including before the Land Registry, complaining about the authorities’ failure to enforce the Commission’s decision. Therefore, and without prejudice to the question of effectiveness of the claimed remedies, the Government’s objection as regards the requirement to exhaust domestic remedies should be dismissed.

21. The Court notes that this complaint is not inadmissible on any other grounds and that, therefore, it has to be declared admissible.

22. The Court has already found similar violations of Article 1 of Protocol No. 1 to the Convention in other cases concerning delays in enforcing final administrative property decisions in respect of the respondent State (see, among other authorities, Ramadhi and Others, cited above, §§ 45-53 and 75-84; Hamzaraj v. Albania (no. 1), no. 45264/04, §§ 24-27 and 38-43, 3 February 2009; and Nuri v. Albania, no. 12306/04, §§ 26-29 and 35‑40, 3 February 2009). It will, therefore, examine whether the Government have made new and relevant submissions in the present case.

23. The Government submitted that the applicants, by not cooperating with the Land Registry and by not complying with relevant legal procedures, had hindered the implementation of their property rights. The Court does not find this argument persuasive, bearing in mind that the main cause for the non-enforcement was the absence of the property’s delimitation in the Commission’s original decision (see paragraphs 4, 7 and 11).

24. The risk of any mistake made by a State authority must be borne by the State and errors must not be remedied at the expense of the individual concerned (see Lelas v. Croatia, no. 55555/08, § 74, 20 May 2010). In the present case, the applicants initiated several proceedings against third parties or public authorities to protect and enforce their property rights. Despite these efforts, the decision has not been enforced so far. The Court considers that the State’s obligation to secure to the applicants effectively their right to peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1, required the national authorities to take practical steps to ensure that their own decision concerning the return of ownership was enforceable. It does not appear that such steps have been taken, despite the applicants’ efforts (see Nuri, cited above, § 28).

25.  The Court considers that by failing to comply with the Commission’s decisions of 1994, without any compelling reasons, the national authorities left the applicants in a state of uncertainty for 29 years by now, with regard to the realisation of their property rights. Furthermore, the Court notes that the Government have not argued that the applicants have failed to take any steps under Law no. 133/2015 (the Property Act) (compare Beshiri and Others v. Albania (dec.), no.29026/06 and 11 other applications, §§ 216-18, 17 March 2020).

26.  Having regard to the above, the Court concludes that the applicants had to bear a disproportionate and excessive burden. There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.

27. The applicants raised a complaint under Article 14 of the Convention claiming that they have been discriminated against in the enjoyment of their property rights.

28. The Court finds no indication that the applicants were discriminated against on any ground under Article 14 of the Convention. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

29. The applicants claimed 810,579 euros (EUR) which corresponded to the value of the property, as well as EUR 533,326 for loss of profit. They claimed EUR 20,000 in respect of non-pecuniary damage. Lastly, they claimed EUR 4,770 in respect of costs and expenses incurred before the domestic courts and for those incurred before the Court.

30. The Government submitted that the valuation maps based on CMD no. 139 of 13 February 2008 provided lower prices.

31. First, the Court notes that, notwithstanding the Government’s assertion that a part of the plot measuring 17,560 sq. m, where the applicants’ plot of 13,310 sq. m should be delimited, was occupied by third parties, there is no conclusive information about the extent of that occupation.

32.  Having regard to its findings in the instant case, the Court considers that the most appropriate form of redress would be to delimit the land plot and register the applicants’ ownership title (see paragraphs 24-25 above; see also Ramadhi and Others, cited above, §§ 98-101; Tchitchinadze v. Georgia, no. 18156/05, § 69, 27 May 2010; Fener Rum Patrikliği (Ecumenical Patriarchy) v. Turkey (just satisfaction), no. 14340/05, § 35, 15 June 2010; and Stoycheva v. Bulgaria, no. 43590/04, §§ 75-76, 19 July 2011). Thus, the applicants would be put as far as possible in a situation equivalent to the one in which they would have been had there not been a breach their rights under the Convention (compare with Gladysheva v. Russia, no. 7097/10, § 106, 6 December 2011). If the Government cannot ensure such registration, either in whole or in part, the applicants should receive adequate compensation (compare with Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, §§ 19‑24, ECHR 2001‑I, and see Beshiri and Others, cited above, §§ 189-203, for the assessment of adequacy of the compensation).

33.  The Court considers that the applicants’ claim for loss of profits should be rejected, as they failed to elaborate that claim and to specify what type of profits they had lost (compare Vrioni and Others, cited above, § 38).

34. The Court also accepts that the applicants must have suffered non-pecuniary damage and finds it appropriate to award them EUR 3,000 jointly under this head, plus any tax that may be chargeable.

35. As regards the costs and expenses before the domestic courts and the Court, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 2,000, jointly, for the proceedings before the Court, plus any tax that may be chargeable to the applicants.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State shall ensure within three months the registration of the applicants’ ownership title. Failing such registration, either in total or in part, the respondent State is to pay jointly to the three applicants, within twelve months, adequate compensation;

(b)  that the respondent State is to pay the applicants jointly, within three months, the following amounts, to be converted into the currency of the respondent State, at the rate applicable at the date of settlement:

(i)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicants, in respect of cost and expenses;

(c)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 5 March 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Georgios A. Serghides
 Deputy Registrar President

APPENDIX

List of applicants:

Application no. 7564/07