CASE OF MAÇI v. ALBANIA

THIRD SECTION

CASE OF MAÇI v. ALBANIA

(Application no. 21051/10)

JUDGMENT

STRASBOURG

4 July 2024

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

In the case of Maçi v. Albania,

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

 Peeter Roosma, President,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 13 June 2024,

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

PROCEDURE

1.  The case originated in an application against Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 9 April 2010.

2.  The Albanian Government (“the Government”) were given notice of the application.

THE FACTS

3.  The applicants’ details and information relevant to the application are set out in the appended table.

4.  The applicants are heirs of Mr. Sh. M. They complain of the non-enforcement of domestic decisions in favour of their predecessor.

5.  On 5 November 1996 the Tirana Commission on Restitution and Compensation of Properties found that Mr Sh.M. was the former owner of a plot of land which had been confiscated from him during the communist era (“1996 Decision”) (see, for a general context, Beshiri and Others v. Albania (dec.), nos. 29026/06 and 11 others, §§ 2-4, 17 March 2020 with further references). Relying on a field report from its own officers, the Commission found that a two-storey building and a road had been built on the plot.

6.  Under paragraph (a) of the operative clause of the 1996 Decision, the Commission returned to Mr Sh.M. title to one-third of the land plot on which the building had been constructed, and granted him the right to erect an additional, third floor of the building. It also ordered that Mr Sh.M.’s ownership be registered in the land registry of the Immovable Property Registration Office (“IPRO”).

7.  Under paragraph (b) of the operative clause of the same decision, the Commission ruled that Mr Sh.M. should receive compensation in respect of the remainder of the land plot in one of the ways provided for by law.

8.  In absence of any appeal, the 1996 Decision became final on 5 December 1996.

9.  On an unspecified date Mr Sh.M. lodged a claim with the District Court of Tirana against the Ministry of Economy, the Municipality of Tirana and the IPRO, requesting that the court delimit the exact boundaries of the plot that he owned.

10.  The court ordered an expert report in which the plot in question and its boundaries were set and described. The property bordered, in particular, a public property which initially was referred to by the Government as a “public square” and, in their last submissions, as a “public road”.

11.  Mr Sh.M.’s title was confirmed by an ownership certificate of 1994. The total surface of the plot, as per the expert report, was 720 sq. m. The Municipality and the IPRO accepted the claim. The Ministry of Economy did not express any position.

12.  On 27 April 2004 the court upheld Mr Sh.M.’s claim and ordered the IPRO to register his title to the property as defined in the expert report (“2004 Judgment”).

13.  On 17 May 2004 Mr Sh.M. died, and the applicants were recognised by the domestic authorities as his heirs.

14.  On 3 June 2004 the 2004 Judgment became final. Almost two weeks later the same court issued an enforcement writ.

15.  On an unspecified date the IPRO informed the applicants that it had registered 591 out of 720 sq. m of the plot under their name.  As regards the remaining 129 out of 720 sq. m, according to the IPRO, they were a part of the public square owned by the Municipality of Tirana and thus were not part of the applicants’ property. It stated that the court-appointed expert had made a mistake while measuring the plot.

16.  The IPRO asked the State Attorney’s Office to start proceedings to invalidate the applicants’ tittle in the part covering those 129 sq. m. The State Attorney forwarded that request to the Municipality of Tirana asking them to start the proceedings in question. The Municipality responded that it was for the State Attorney to initiate the proceedings. In 2023 the State Attorney stated that they were looking into the possibility of initiating legal proceedings to challenge the 2004 Judgment.

THE LAW

17.  The applicants complained principally of the non-enforcement of the two domestic decisions: the 1996 Decision and 2004 Judgement (see above). They relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

18.  The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6 § 1. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II).

19.  In the leading cases of Qufaj Co. Sh.p.k. v. Albania (no. 54268/00, §§ 38-45, 18 November 2004) and Gjyli v. Albania (no. 32907/07, §§ 55-61, 29 September 2009), the Court already found a violation in respect of issues similar to those in the present case.

20.  Moreover, the Court refers to Beshiri and Others v. Albania (dec.) (cited above, §§ 2-4 and 215) which concerned the issue of the prolonged non-enforcement of the decisions of property restitution commissions ordering compensation in accordance with the law and which also dealt with the effectiveness of a new remedy enacted under the 2015 Property Act in respect of similar complaints.

21.  When addressing that part of the 1996 Decision’s operative clause (see paragraph 6 above), the Government firstly submitted that the applicants had not asked the IPRO to enter their property rights, as established by the 1996 Decision, into the land registry. Had they done so, the IPRO was prepared to comply with the 1996 Decision.

22.  The Court notes in this respect that the casefile contains a number of requests from the applicants to the IPRO seeking the registration in question. Therefore, the Government’s objection should be dismissed.

23.  In alternative, the Government submitted that the IPRO could not record the applicants’ title to the land plot in the land registry as that would collide with the ownership rights of the residents of the building in question who had purchased their flats from state authorities and were ex lege co‑owners of the adjacent land. The Government submitted that it fell on the applicants to bring legal proceedings against the IPRO and the building residents to resolve the alleged conflict. Having failed to initiate those proceedings, the applicants had not exhausted domestic remedies.

24.  The Court accepts that the applicants’ title to the part of the land plot on which the two-storey building had been constructed dilutes the ownership of the building residents to the same part of the plot. However, the domestic authorities did not make any effort to consult the residents of the building in order to ascertain their stance on that matter. The assumption that the building residents oppose to the 1996 Decision is therefore not supported by any document. Indeed, a conflict between the applicants’ property rights and those of the building residents may or may not have existed, in so far as the crux of the latter’s ownership could have only been limited to their individual flats. It is not for the Court to rule as a court of first instance on the issue of how the applicants’ rights should be balanced against those of the building residents as that obligation falls on domestic authorities.

25.  Even assuming that a dispute would arise in the context suggested by the Government, such dispute would appear to be the result of the domestic authorities’ erroneous transfer of property rights over the same object to different private individuals without considering the rights of all parties affected by their actions. The Government did not clarify which transfer occurred first and how it took account, if at all, of the rights of the other party. In this context, the respondent State may not be automatically absolved from their responsibilities to enforce the final decision in the applicants’ favour by a mere plea that they have issued conflicting decisions on the same subject‑matter.

26.  In the specific context of the present case, the Court dismisses the Governments non-exhaustion plea and finds that this part of the applicants’ complaint is admissible.

27.  In view of the Court’s general principles in this matter (see paragraphs 18-19 above), the Court further observes that the Government did not show that it deployed all necessary efforts to enforce fully and in due time paragraph (a) of the operative clause of the 1996 Decision.

2.  Compensation

28.  In connection to the 1996 Decision’s clause that a compensation should be ensured for the remaining part of Mr Sh.M.’s property (see paragraph 7 above), the Government argued that under the 2015 Property Act former owners in possession of a final decision from property commissions were expected to apply to the Agency for Treatment of Property to obtain their compensation and this remedy was found by the Court to be effective (see Beshiri, cited above, § 218). The Court accepts this argument and concludes that the applicants were required under Article 35 § 1 to avail themselves of that domestic remedy.

29.  The Government’s inadmissibility plea in this connection must be upheld and this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

30.  The Government submitted that the applicants’ title to 591 sq. m of the entire surface of the plot of 720 sq. m had been duly registered in the land registry by the IPRO as per the 2004 Judgment.   The remaining 129 sq. m of the land plot, according to the Government, following additional re‑measuring, was attributed to the public property (sometimes referred to as a “road” or a “square”).

31.  The Government further stated that if the applicants wanted to register title to the remaining 129 sq. m, they should have initiated legal proceedings against the IPRO. Having failed to do so, in the Government’s view, the applicants had not exhausted domestic remedies.

32.  The Court, however, is unable to follow that argument as the applicants’ predecessor had already started proceedings against the IPRO and the Tirana Municipality and obtained the final 2004 Judgment in his favour. The applicants were recognised by the domestic authorities as his heirs, including within the respective enforcement proceedings. It is therefore unclear why the applicants should have initiated identical proceedings against the IPRO with the same set of claims, particularly so that the authorities have fully and unequivocally accepted the applicants as Mr Sh.M.’s heirs with the full legal standing in respect of the rights and responsibilities arising through that status.

33.  Moreover, the Court considers that following the adoption of the 2004 Judgment in the proceedings to which the domestic authorities were a party and in which the issue of the size and borders of the land plot had been settled, the authorities were no longer in the position to dispute the expert measurements of the land plot (see paragraph 11 above) . The Government’s non-exhaustion plea in this respect should therefore be dismissed.

34.  Neither can the Court accept the Government’s plea that the 2004 Judgment merely described the factual situation without giving rise to any property right for the applicants, and less so to a right to have the property in question registered with the IPRO (compare with Bici v. Albania, no. 5250/07, §§ 6 and 51, 3 December 2015). This argument goes against the authorities’ own stance given that they registered the applicants’ title to 591 sq. m of the plot on the basis of the 2004 Judgment. Moreover, the operative clause of the 2004 Judgment clearly stated that IPRO was under an obligation to register Mr Sh.M’s title to the entire surface of 720 sq. m of the plot (see paragraph 12 above).

35.  The Court accordingly finds that the applicants’ complaints in this part are also admissible.

36.  Finally, the Court concludes that domestic authorities’ failure to deploy all necessary efforts to enforce the final domestic decisions (see paragraphs 27 and 34 above) breached the applicants’ rights under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1.

37.  Under Article 13 the applicants complained of the lack of an effective remedy in respect of their complaint about the non-enforcement of the final domestic decisions.

38.  Having regard to the facts of the case, the parties’ submissions and its findings above, the Court considers that it has examined the main legal question raised in the present case. It thus finds that there is no need to give a separate ruling on this complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

39.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Qufaj Co. Sh.p.k., cited above, §§ 46-48, and Gjyli, also cited above, §§ 62-76), the Court considers it reasonable to award the sum indicated in the appended table to be paid jointly to the applicants.

40.  The Court further notes that the respondent State has an outstanding obligation to enforce the judgments which remain enforceable. At the same time, the Court reiterates that it is primarily for the respondent State to choose the means to be used in its domestic legal order in order to discharge its legal obligation under Article 46 of the Convention (see Shofman v. Russia, no. 74826/01, § 53, 24 November 2005, with further references). In the present case, should it be unequivocally established by an independent domestic authority that the enforcement of the final domestic decisions is impossible (for instance, on account of compelling and legitimate public or private interests), it falls to the respondent State to swiftly implement appropriate measures to remedy the applicants’ individual situation (see, mutatis mutandis, Tarverdiyev v. Azerbaijan, no. 33343/03, § 66, 26 July 2007).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants, jointly, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 4 July 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Peeter Roosma
 Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of Protocol No. 1

(non-enforcement of domestic decisions and lack of an effective domestic remedy in that regard)

[1] Plus any tax that may be chargeable to the applicants.