PAPA v. ALBANIA

THIRD SECTION

DECISION

Application no. 9096/11
Vasiliqi PAPA
against Albania

The European Court of Human Rights (Third Section), sitting on 17 October 2024 as a Committee composed of:

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

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to:

the application (no. 9096/11) 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 8 February 2011 by a Greek national, Ms Vasiliqi Papa (“the applicant”), who was born in 1926 and lived in Athens. She was represented before the Court by S. Neely of Norton Rose Fulbright, lawyers practicing in London;

the decision to give notice of the application to the Albanian Government (“the Government”), represented by their then Agents, Ms L. Mandia, Ms A. Hicka and, subsequently, by Mr O. Moçka, General State Advocate;

the fact that the Greek Government did not seek to exercise their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court);

the parties’ observations;

Having deliberated, decides as follows:

Facts and Procedure

1.  The case concerns the alleged non-enforcement of domestic decisions in the applicant’s favour.

2.  On an unspecified date the applicant asked the Vlora Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave Vlorë) (“the Commission”) to restitute to her a plot of land in Saranda (Ksamil) which had been expropriated from her grandfather during the communist era.

3.  On 31 July 2006 the Commission accepted the request to return the land to the applicant (“2006 Decision”). It found that the applicant’s grandfather had purchased the land from a seller in 1933.

4.  While describing the land plot to be returned to the applicant, the Commission noted that it was composed of a forest (15.8 hectares) and a pasture (43.4 hectares) with the total surface area of 59.13 hectares. The land plot “bordered approximately” (“me kufizime të përgjithshme”) the Dajlan river to the east and north, the Saint George Monastery pastures to the south and the sea to the west.

5.  A handwritten note on the 2006 Decision stated that it became final on 25 September 2006. On 20 November 2006 the Commission confirmed that no appeal had been lodged against it.

6.  On 3 September 2007 the Immovable Property Registration Office (“IPRO”) registered the land plot title in the land registry and issued the relevant attestation (vërtetim nga dokumenti hipotekor) on the basis of the 2006 Decision. It noted that the registration entry was not accompanied by a map because the land plot was located in an area in respect of which the planning map was not up to date (nuk shoqërohet me hartë treguese për asye se ndodhet në zonë të paazhornuar).

7.  On 9 June 2008 the Agency for the Restitution and Compensation of properties (“the Agency”), a successor to the Commission, informed the applicant that since the boundaries of the Land had not been delimited in the 2006 Decision, it was advisable to bring that matter before a court.

8.  On an unspecified date the applicant lodged a court action under Article 388 of the Code of Civil Procedure for the “certification of a fact in respect of which documentary evidence disappeared”. She also asked to appoint an expert to delimit the boundaries of the land plot and to “certify the fact” that those were the land boundaries. The Agency and Saranda Forestry and Pasture Directorate, co-represented by the Office of the State Attorney, were cited as third parties to the matter which had no defendant.

9.  Following a report from a court-appointed expert and given the third parties’ submissions that they left the matter to the court’s discretion, on 31 July 2008 the District Court of Saranda handed a decision delimiting the land boundaries (“2008 Decision”).

10.  On 13 October 2008 the District Court of Saranda issued an enforcement writ in respect of the 2006 and 2008 Decisions.

11.  On 5 November 2008 the bailiff office ordered the IPRO to register the decisions in the land registry.

12.  Two weeks later the IPRO noted that the 2006 Decision had already been registered in the registry.

13.  In connection to the 2008 Decision which “certified a fact”, the IPRO declined to register it on the grounds that Article 193 § 2 of the Civil Code provides that the “judicial certification of the fact of ownership shall not be registered” (“[v]ërtetimi gjyqësor i faktit të pronësisë nuk regjistrohet”).

14.  On 5 January 2009 the bailiff fined the director of the Saranda IPRO because he had impeded the enforcement proceedings.

15.  On 6 February 2012 the Council of Ministers and the State Advocate challenged in court twelve decisions of property restitution commissions in respect of the Ksamil area, including the 2006 Decision. The plaintiffs argued that pursuant to the old cadastral records the Ksamil area had been jointly owned (ab indivisio) by a number of owners, including the State, and that the property commissions had no right to divide the land and return specific sections to former owners.

16.  On 9 June 2015 the applicant died.

17.  On 7 June 2019 the Saranda District Court dismissed the claim against the 2006 Decision as ill-founded.

18.  On 5 December 2022 the Gjirokastra Cour of Appeal overturned that court decision and upheld the authorities’ plea regarding the land’s ab indivisio ownership. The court also found that the person who had sold his ab indivisio share to the applicant’s grandfather had, in fact, owned a smaller share compared to the one he had sold (see paragraph 3 above). Lastly, it found that in 2003 the property commission had issued another decision restoring the same land to the heirs of the person who had sold the land to the applicant’s grandfather. Accordingly, the court annulled the applicant’s land title and ordered the Cadastral Agency (successor of the IPRO) to delete from the land registry the entry related to the 2006 Decision which was thereby quashed. The court further noted that its judgment on the merits was enforceable and therefore the plaintiffs’ request for an interim measure preserving the disputed properties’ ownership status was void.

19.  On 23 February 2023 the applicant’s heirs lodged a cassation appeal before the Supreme Court where the case is currently pending.

THE law

A.  Standing of the heirs

20.  On 17 July 2015 and 7 June 2016 the heirs of the applicant, Mr Michail Angelos Pappas and Ms Evrydiki Prapopoulou (Papa), expressed their wish to pursue the proceedings on her behalf.

21.  The Court accepts that Mr Michail Angelos Pappas and Ms Evrydiki Prapopoulou (Papa) have a legitimate interest in pursuing the application in the late applicant’s stead.  For practical reasons, it will continue to refer to Ms Vasiliqi Papa as the applicant (see Isayeva v. Azerbaijan, no. 36229/11, § 62, 25 June 2015).

B.  Alleged violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the non-enforcement of the 2006 and 2008 Decisions

22.  The applicant complained that the 2006 and 2008 Decisions issued in her favour had remained unenforced. She relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.

23.  The Court notes, and the parties did not dispute, that the 2006 Decision was registered in the land registry on 3 September 2007, as confirmed by the IPRO (see paragraphs 6 and 12 above). However, the 2006 Decision was not enforceable in the part which related to the applicant’s full ownership of the land plot given that that decision did not determine the actual boundaries of the land plot. The applicant was fully aware of the limited enforceability of the 2006 Decision at least since June 2008 (see paragraph 7 above). Moreover, the 2006 Decision was quashed by the Gjirokastra Court of Appeal on 5 December 2022 (see paragraph 18 above). Although a cassation appeal is pending before the Supreme Court, the court of appeal decision is legally binding. Therefore, under the domestic law, the 2006 Decision is no longer in force.

24.  As regards the 2008 Decision, the Court has already held in the past that a court decision “acknowledging a legal fact whose documentary evidence has disappeared”, taken pursuant to Article 388 of the Code of Civil Procedure, is of a declaratory nature (see Bici v. Albania, no. 5250/07, § 51, 3 December 2015). Moreover, under Article 193 § 2 of the Civil Code such decisions should not be registered in the land registry (see paragraph 13 above). Lastly, the 2008 Decision concerns an ancillary aspect of the subject matter that was decided in the 2006 Decision. Since the latter is no longer binding or enforceable under domestic law, that conclusion necessarily extends to the 2008 Decision too.

25.  It follows that the complaint is manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

26.  The applicant’s complaint under Article 13 of the Convention about the alleged lack of an effective remedy to raise her Convention complaints before domestic authorities is inextricably linked to the complaints examined above and must therefore likewise be declared manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention and be rejected under Article 35 § 4 of the Convention (see Ljubičić v. Croatia (dec.), no. 17338/05, 10 May 2007).

For these reasons, the Court, unanimously,

Decides that the applicant’s heirs, Mr Michail Angelos Pappas and Ms Evrydiki Prapopoulou (Papa), have standing to pursue the application in the applicant’s stead;

Declares the application inadmissible.

Done in English and notified in writing on 14 November 2024.

 Viktoriya Maradudina Peeter Roosma
 Acting Deputy Registrar President