26 January 2010
FOURTH SECTION
13 applications against Albania
43628/07 – Dani and Others
46684/07 – Ahmatas and Others
46685/07 – Dvorani and Others (no. 1)
25038/08 – Sharra
27242/08 – Goga and Others
30264/08 – Metalla
30601/08 – Luli
42120/08 – Bushati
54403/08 – Metalla and Others (no. 1)
54411/08 – Metalla and Others (no. 2)
61912/08 – Tartari
15075/09 – Okaj and Others
34770/09 – Muka
STATEMENT OF FACTS
THE FACTS
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Application no. 43628/07: Dani and Others lodged on 4 October 2007
The applicants, Ms Bahrije Dani, Mr Fehmi Dani, Ms Fiqirije Dani, Ms Biserka Dani, Ms Gjylije Dani, Ms Valbona Dani, Mr Arsen Dani and Mr Adrian Dani, are Albanian nationals who were born in 1937, 1941, 1944, 1950, 1936, 1960, 1962 and 1968, respectively. They live in Lezhë and are represented before the Court by Mr S. Puto, a lawyer practising in Tirana.
On 31 October 1994 the Lezhë Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”) recognised the applicants’ inherited title to a plot of land measuring 3,434 sq. m, out of which 713 sq. m were restored. The applicants would be compensated for the remaining 2,721 sq. m in one of the ways provided for by law.
On an unspecified date the applicants challenged the Commission’s decision before the court, claiming that a larger area should be restored to them. On 10 December 1996 the Lezhë District Court decided that an additional plot of 1,187 sq. m should be restored to the applicants. Consequently, a total area of 1,900 sq. m was restored to the applicants. However, to date they have not been provided with compensation in respect of the remainder of the property (1,534 sq. m).
B. Application no. 46684/07: Ahmatas and Others lodged on 9 October 2007
The applicants, Mr Nevrez Ahmatas, Ms Mukades Kreka, Ms Tefta Kadiu, Ms Doloreza Kadiu, Ms Raimonda Kadiu and Mr Ilirian Kadiu, are Albanian nationals who were born in 1928, 1932, 1948, 1949, 1953 and 1957, respectively. They live in different cities in Albania and are represented before the Court by Mr S. Puto, a lawyer practising in Tirana.
On 19 January 1996 the Korçë Commission recognised the applicants’ inherited title to a plot of land measuring 4,000 sq. m. It decided that, since the plot of land was occupied, the applicants would be compensated in one of the ways provided for by law. To date, the applicants have not been provided with any compensation.
On 15 January 1999 the Korçë Commission recognised the applicants’ inherited title over an agricultural plot of land measuring 59,546 sq. m. It decided that the applicants would be compensated in State bonds in the amount of 1,018,236 Albanian leks. To date, the applicants have not been provided with any compensation.
C. Application no. 46685/07: Dvorani and Others (no. 1) lodged on 9 October 2007
The applicants, Mr Valter Dvorani, Mr Shpetim Dvorani, Ms Pranvera Dvorani, Ms Diana Dvorani, Ms Gurie Dvorani, Ms Svjetllana Dume, Ms Besa Dume and Ms Fatbardha Dume, are Albanian nationals who were born in 1952, 1938, 1954, 1958, 1925, 1949, 1952 and 1954, respectively. They live in Korçë and Tirana and are represented before the Court by Mr S. Puto, a lawyer practising in Tirana.
On 12 November 1993 the Korçë Commission recognised the applicants’ inherited title to a plot of land measuring 2,250 sq. m, out of which 278 sq. m were restored. The applicants would be compensated for the remaining 1,972 sq. m in one of the ways provided for by law. To date the applicants have not been provided with any compensation.
D. Application no. 25038/08: Sharra lodged on 15 May 2008
The applicant, Ms Zamira Sharra, is an Albanian national who was born in 1956. She lives in Tirana.
On 28 December 1994 the Vlorë Commission recognised the applicant’s inherited tile to a number of plots of land measuring in total 47,950 sq. m, out of which 2,100 sq. m were restored. The applicant would be compensated for the remaining 45,850 sq. m in one of the ways provided for by law. To date the applicant has not been provided with any compensation.
E. Application no. 27242/08: Goga and Others lodged on 3 June 2008
The applicant, Mr Çezar Goga, Mr Kristaq Goga, Ms Kostandina Goga, Mr Aleksander Goga, Ms Ilira Goga, Ms Olimbia Goga, Mr Stavri Paço, Ms Mirsa Paço, Ms Danila Paço, Ms Sofija Goga, Ms Aferdita Jani, Ms Ansi Kromidha, Mr Dorian Goga, Ms Sonila Serdani, Mr Viktor Noçka and Mr Albert Noçka, are Albanian nationals who were born in 1955, 1917, 1925, 1948, 1955, 1931, 1952, 1983, 1990, 1916, 1948, 1938, 1973, 1977, 1935 and 1952, respectively. They live in Albania and Italy and are represented before the Court by Mr S. Puto, a lawyer practising in Tirana.
On 9 March 1996 the Durrës Commission recognised the applicants’ inherited title to a plot of land measuring 12,000 sq. m. It decided that the applicants would be compensated in respect of 9,950 sq. m in one of the ways provided for by law. The Commission did not make any decision as regards the remainder of the property.
On 29 January 1997 the Durrës Commission decided to restore to the applicants a plot measuring 600 sq. m. To date no other compensation has been provided to them in respect of the remaining 9,350 sq. m and no other decision has been taken as regards 2,050 sq. m.
F. Application no. 30264/08: Metalla lodged on 13 June 2008
The applicants, Mr Nezmi Metalla and Mr Bujar Metalla, are Albanian nationals who were born in 1943 and 1956, respectively. They live in Durrës and are represented before the Court by Mr E. Muharremaj, a lawyer practising in Tirana.
On 9 August 1995 the Shijak Commission recognised the applicants’ inherited tile to a plot of land measuring 1,020 sq. m, out of which 747 sq. m were restored. The applicants would be compensated in respect of 272 sq. m in one of the ways provided for by law. To date, the applicants have not been provided with any compensation.
G. Application no. 30601/08: Luli lodged on 23 January 2008
The applicant, Mr Pëllumb Luli, is an Albanian national who was born in 1961. He lives in Tirana and is represented before the Court by Mr A. Tartari, a lawyer practising in Tirana.
On 31 May 1996 the Tirana Commission recognised the applicant’s inherited title to a plot of land measuring 23,500 sq. m. It decided that a plot of 5,000 sq. m should be restored to the applicant. The applicant would be compensated in respect of the remaining property in one of the ways provided for by law. To date, the applicant has not been provided with any compensation.
On the same day, the Tirana Commission, by virtue of another decision, recognised the applicant’s inherited title to another plot of land measuring 2,900 sq. m. Since the entire plot was occupied, it decided that the applicant would be compensated in one of the ways provided for by law. To date, the applicant has not been provided with any compensation.
H. Application no. 42120/08: Bushati lodged on 9 August 2008
The applicant, Mr Genc Bushati, is an Albanian national who was born in 1944. He lives in Shkodër.
On 8 February 1995 the Shkodër Commission recognised the applicant’s inherited title to a house and a plot of land measuring 500 sq. m. It decided that the house should be restored to the applicant, whereas the plot of land would be compensated in one of the ways provided for by law. It would appear that, even though the applicant registered the house in his name, he does not enjoy the peaceful possession thereof since it is occupied by a third party. It would further appear that the applicant has not lodged any civil action for the eviction of the occupier. Moreover, the applicant has not been provided with any compensation in respect of the plot of land.
I. Application no. 54403/08: Metalla and Others (no. 1) lodged on 8 October 2008
The applicants, Mr Nezmi Metalla, Mr Bujar Metalla, Mr Shyqyri Metalla, Mr Besnik Metalla Mr Ferik Metalla, Ms Dhurata Metalla, Ms Sanije Metalla and Ms Fiqirete Metalla, are Albanian nationals who were born in 1943, 1956, 1947, 1961, 1969, 1956, 1928 and 1931, respectively. They live in Durrës are represented before the Court by Mr E. Muharremaj, a lawyer practising in Tirana.
On 12 May 1994 the Shijak Commission recognised the applicants’ inherited tile to a plot of land measuring 5,527 sq. m, out of which 5,000 sq. m were restored. They would be compensated in respect of 527 sq. m in one of the ways provided for by law. To date, the applicants have not been provided with any compensation.
J. Application no. 54411/08: Metalla and Others (no. 2) lodged on 8 October 2008
The applicants, Mr Nezmi Metalla, Mr Bujar Metalla, Mr Shyqyri Metalla, Mr Besnik Metalla Mr Ferik Metalla, Ms Dhurata Metalla, Ms Sanije Metalla and Ms Fiqirete Metalla, are Albanian nationals who were born in 1943, 1956, 1947, 1961, 1969, 1956, 1928 and 1931, respectively. They live in Durrës and are represented before the Court by Mr E. Muharremaj, a lawyer practising in Tirana.
On 13 August 2007 the Durrës Agency on Restitution and Compensation of Properties (“the Agency”), which had replaced the Commission, recognised the applicants’ title to a plot of land measuring 60,000 sq. m which was restored to the applicants. It further decided that the applicants would be compensated in one of the ways provided for by law in respect of another plot of land measuring 5,000 sq. m. To date, the applicants have not received any compensation in respect of the second plot of land.
K. Application no. 61912/08: Tartari lodged on 24 November 2008
The applicant, Mr Fatos Tartari, is an Albanian national who was born in 1938. He lives in Durrës and is represented before the Court by Mr A. Tartari, a lawyer practising in Tirana.
On 30 August 1995 the Tirana Commission recognised the applicant’s inherited title to a plot of land measuring 1,100 sq. m, of which 142 sq. m were restored. It decided that, since 958 sq. m were occupied, the applicant would be compensated in one of the ways provided for by law. To date, the applicant has not received any compensation in respect of that plot of land.
It would appear that even though the Commission decided that 958 sq. m were occupied and that the applicants should be provided with compensation in respect of that plot of land, a building permit was awarded to a third party by the Municipality of Tirana (“the Municipality”) on 7 March 1997 for the construction of a 9-storey building. The applicant’s requests of 19 February and 4 April 2008 to the Municipality to be furnished with a copy of the file, on the basis of which the Municipality’s decision was taken, have remained unanswered.
On an unspecified date in 2008 the applicant lodged a compensation claim with the Agency. On 3 March 2009 the Agency dismissed his claim owing to lack of funds.
L. Application no. 15075/09: Okaj and Others lodged on 7 March 2009
The applicants, Mr Gazmend Okaj, Mr Fadil Okaj, Ms Vjollca Okaj and Ms Ardiana Okaj, are Albanian nationals who were born in 1961, 1934, 1958 and 1965, respectively. They live in Shkodër and are represented before the Court by Mr B. Muslija, a lawyer practising in Shkodër.
On 3 October 1995 the Shkodër Commission decided to restore to the applicants three plots of land measuring 4,910 sq. m, 1,880 sq. m and 1,640 sq. m, respectively. It ordered the responsible Mortgage Office to register the land in the applicants’ name. It further decided that the applicants would be compensated in one of the ways provided for by law in respect of a further plot of land measuring 2,833 sq. m. Finally, it recognised the applicants’ right to first refusal of another plot of land measuring 14,537 sq. m.
To date, the applicants have not benefited from any amount of compensation in respect of the plot measuring 2,833 sq. m.
M. Application no. 34770/09: Muka lodged on 18 June 2009
The applicant, Ms Shqipe Muka, was born in 1926. She lives in Tirana and is represented before the Court by Mr A. Tartari, a lawyer practising in Tirana.
On 7 June 1995 the Tirana Commission recognised the applicant’s inherited title to two plots of land measuring 63 sq. m and 597 sq. m, respectively. It further decided that, since the plots of land were occupied, the applicant would be compensated in one of the ways provided for by law. The Commission recognised the applicant’s right to first refusal of two buildings located on the land.
On 16 August 1995 the Commission recognised the applicant’s inherited title to another plot of land measuring 800 sq. m, of which 178 sq. m were restored. It decided that, since 622 sq. m were occupied, the applicant would be compensated in one of the ways provided for by law.
On an unspecified date the applicant lodged a claim for compensation with the Agency in respect of the Commission’s decision of 7 June 1995.
On 23 February 2009 the Agency dismissed her claim for compensation on the ground that she had already benefitted from the restitution of a plot of land measuring 178 sq. m by virtue of the same Commission’s decision. No appeal was lodged with the Tirana District Court within the statutory 30 days’ period.
N. Relevant domestic law
1. Relevant provisions of the Albanian Constitution
Article 42 § 2
“In the protection of his constitutional and legal rights, freedoms and interests, or in the case of a criminal charge brought against him, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
Article 142 § 3
“State bodies shall comply with judicial decisions.”
Article 131
“The Constitutional Court shall decide: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
2. The Property Act
The relevant domestic law as regards property restitution and compensation in Albania has been described in the judgments of Gjonbocari and Others v. Albania, no. 10508/02, 23 October 2007, Driza v. Albania, no. 33771/02, 13 November 2007, and Ramadhi and Others v. Albania, no. 38222/02, 13 November 2007.
New legal amendments and by-laws have been adopted since those judgments, the most important of which have been described below.
a. The 2007 Property Act
The 2004 Property Act was amended in 2007 by Law no. 9684 of 6 February 2007 (“the 2007 Property Act”).
The 2007 Property Act provides that the Agency for the Restitution and Compensation of Properties (“the Agency”), which by virtue of the 2006 Property Act replaced the State Committee on the Restitution and Compensation of Properties (“the State Committee”), is responsible for examining claims for in-kind and financial compensation. The claimant has the right to lodge an appeal against the Agency’s decision within 30 days with the Tirana District Court.
The regional Agency offices, 12 in total, continue to be responsible for the initial examination of applications concerning the recognition of property rights, in response to which they decide on the restitution of property or compensation in lieu thereof. The claimant or the State Advocate’s Office has the right to appeal against that decision within 30 days to the Agency, which is the highest administrative body. Such an administrative decision is amenable to judicial review in accordance with the provisions of the Code of Civil Procedure.
b. Council of Ministers’ Decisions (“CMDs”) on the award of the financial compensation fund (CMD no. 13 of 17 November 2005; CMD no. 758 of 16 November 2006; CMD no. 566 of 5 September 2007; CMD no. 1343 of 4 June 2008 and, CMD no. 487 of 6 May 2009)
Pursuant to Article 23 of the 2004 Property Act which established the Financial Compensation Fund, the Government adopted five decisions annually, between 2005 and 2009 as listed above, in respect of the award of financial compensation to former owners.
In 2005 financial compensation was awarded in respect of compensation claims arising out of the Tirana Commission’s decisions. In 2006 financial compensation was awarded in respect of compensation claims arising out of the decisions of the Tirana and Kavaja Commissions. In 2007 the group of beneficiaries was expanded to include former owners who were in possession of a Commission decision issued with respect to cities for which a property valuation map had been approved and issued. In 2008 and 2009 all former owners, who were entitled to compensation, following a Commission / regional Agency’s decision, were eligible to apply for financial compensation.
According to the CMDs adopted between 2005 and 2008, a claimant was required to lodge a standard application for financial compensation with the central Agency in Tirana, furnishing, inter alia, the Commission / regional Agency’s decision that recognised his right to compensation. Only those former owners who would be compensated for their entire property and who had not received previous compensation were entitled to financial compensation from 2005 to 2008. The 2009 CMD provided that a former owner was entitled to financial compensation on the condition that he had not benefited from: a) previous compensation; b) partial restoration/restitution of the property; c) the right to first refusal; d) the implementation of the Act on the Distribution of Land (Law no. 7501 of 19 July 1991).
Applications would be examined in chronological order on the basis of the Commission’s / regional Agency’s decision date and number. The amount of financial compensation, which would be calculated on the basis of property valuation maps, was limited to a maximum of 200 sq. m.
The lodging of an application entailed the payment of a processing fee. Former owners who had been unsuccessful in their application for financial compensation in a preceding year could re-submit their application in the following year(s) once they paid the processing fee.
c. CMDs on property valuation maps (CMD no. 555 of 29 September 2007; CMD no. 653 of 29 August 2007 and CMD no. 139 of 13 February 2008)
By virtue of three decisions, two of which were adopted in 2007 and one in 2008, the Government approved and issued property valuation maps as listed above. The maps included the reference price per square metre throughout the country.
The first decision fixed the price of land as regards the regions of Berat, Gjirokastër, Vlorë and Dibër; the second decision fixed the price of land concerning the regions of Lezhë, Dibër, Korçë and Kukës; the third decision fixed the price of land in respect of the regions of Fier, Elbasan, Tirana, Vlorë, Durrës and Shkodër.
d. CMDs on in-kind compensation of former owners (CMD no. 567 of 5 September 2007)
The 2006 Property Act provided for the establishment of an In-kind Compensation Fund (“IkCF”). The Government would adopt the procedures for the allocation of properties to be part of the PCF.
By decision of 5 September 2007 the Government laid down the criteria and the procedures for the determination of State properties which would belong to the IkCF (CMD no. 567 of 5 September 2007). Section 1 lists the types of properties, for example: a) the public immovable property which is located in tourist areas; b) properties of the Ministry of Defence which are not used by the armed forces and have been approved by the President of the Republic; c) available agricultural land belonging to the Ministry of Agriculture; d) forests, pastures and meadows; and e) property of State institutions which fall outside of their intended activity.
The Agency and its regional offices are responsible for checking the legal status of each property as submitted by the respective State institution. The Agency submits the final list of immovable properties which would comprise the IkCF to the Minister of Justice. The Government are to approve the list and publish it in the Official Journal.
COMPLAINTS
Application no. 43628/07: Dani and Others
The applicants complain that there has been a violation of Article 6 § 1 of the Convention, Article 13 and Article 1 of Protocol No. 1 to the Convention as a result of the authorities’ failure to provide them with compensation in respect of the plot of 1,534 sq. m.
Application no. 46684/07: Ahmatas and Others
The applicants complain that there has been a violation of Article 6 § 1 of the Convention, Article 13 and Article 1 of Protocol No. 1 to the Convention as a result of the authorities’ failure to provide them with compensation in respect of the Korçë Commission’s decisions of 19 January 1996 and 15 January 1999.
Application no. 46685/07: Dvorani and Others (no. 1)
The applicants complain that there has been a violation of Article 6 § 1 of the Convention, Article 13 and Article 1 of Protocol No. 1 to the Convention as a result of the authorities’ failure to provide them with compensation in respect of the Korçë Commission’s decision of 12 November 1993.
Application no. 25038/08: Sharra
Under Article 1 of Protocol No. 1 the applicant complains about the authorities’ failure to provide compensation in respect of her share of property by virtue of the Vlorë Commission’s decision of 28 December 1994.
Application no. 27242/08: Goga and Others
The applicants complain that there has been a violation of Article 6 § 1 of the Convention, Article 13 and Article 1 of Protocol No. 1 to the Convention as a result of the authorities’ failure to provide them with compensation in respect of the Durrës Commission’s decision of 9 March 1996.
Application no. 30264/08: Metalla
The applicants complain that there has been a violation of Article 6 § 1 of the Convention, Article 13 and Article 1 of Protocol No. 1 to the Convention as a result of the authorities’ failure to provide them with compensation in respect of the Shijak Commission’s decision of 9 August 1995.
Application no. 30601/08: Luli
The applicant complains that there has been a violation of Article 6 § 1 of the Convention, Article 13 and Article 1 of Protocol No. 1 to the Convention as a result of the authorities’ failure to provide him with compensation in respect of both Tirana Commission’s decisions of 31 May 1996.
Application no. 42120/08: Bushati
Under Article 1 of Protocol No. 1 the applicant complains about his inability to obtain compensation in respect of the plot of land measuring 500 sq. m and his inability to enjoy the peaceful possession of the house.
Application no. 54403/08: Metalla and Others (no. 1)
The applicants complain that there has been a violation of Article 6 § 1 of the Convention, Article 13 and Article 1 of Protocol No. 1 to the Convention as a result of the authorities’ failure to provide them with compensation in respect of the Shijak Commission’s decision of 12 May 1994.
Application no. 30264/08: Metalla and Others (no. 2)
The applicants complain that there has been a violation of Article 6 § 1 of the Convention, Article 13 and Article 1 of Protocol No. 1 to the Convention as a result of the authorities’ failure to provide them with compensation in respect of the Durrës Commission’s decision of 13 August 2007.
Application no. 61912/08: Tartari
The applicant complains that there has been a breach of Article 10 of the Convention as a result of the authorities’ failure to respond to his requests of 19 February and 4 April 2008 and impart information with him. He alleges that there has been a breach of Article 1 of Protocol No. 1 as a result of the authorities’ failure to provide him with compensation in respect of the Tirana Commission’s decision of 30 August 1995.
Application no. 15075/09: Okaj and Others
The applicants complain that there has been a violation of Article 6 § 1 of the Convention, Article 13 and Article 1 of Protocol No. 1 to the Convention as a result of the authorities’ failure to provide them with compensation in respect of the plot of 2,833 sq. m. They also complain that they have been unable to enjoy the peaceful possession of the other three plots of land that were restored to them, since they have been occupied by third parties.
Application no. 34770/09: Muka
The applicant complains that there has been a violation of Article 1 of Protocol No. 1 to the Convention as a result of the authorities’ failure to provide her with compensation in respect of the Tirana Commission’s decision of 7 June 1995.
QUESTIONS TO THE PARTIES
1. In respect of each application, has there been a violation of Article 6 § 1 of the Convention as regards the authorities’ failure to enforce the decision of the Commission on the Restitution and Compensation of Properties in respect of the applicants’ entitlement to compensation?
2. In respect of each application, has there been a violation of Article 1 of Protocol No. 1 taken separately or together with Article 13 of the Convention? In particular, the parties should address as relevant the following questions:
a. Do the authorities distinguish among different sizes of plots of land whose property rights have been recognised by the Commission / regional Agency in the award of financial compensation (see Thlimmenos v. Greece [GC], no. 34369/97, ECHR 2000‑IV)?
b. Are payments enforced speedily and timeously in the event of an award of financial compensation?
c. Is interest payable on late payments of financial compensation?
d. Do the applicants who have already been awarded other forms of compensation benefit from financial compensation? If not, what provision has been made for their entitlement to such compensation?
e. How often would an applicant be required to lodge a compensation claim, assuming that he was unsuccessful in his previous attempt(s)?
f. What are the public procedural rules for the award of compensation under the In-kind Compensation Fund? What awards have been made to date?
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