Communicated on 27 March 2015
FOURTH SECTION
Report
Application no. 34649/14
SH.A. PRODHIM VESHJE NO. 2 and Elisabeta DOSTI against Albania
lodged on 29 April 2014
STATEMENT OF FACTS
The application was lodged with the Court by SH.A. Prodhim Veshje No. 2, a company incorporated under Albanian law (“the applicant company”) and Ms Elisabeta Dosti, the company’s owner and its executive director. She is an Albanian national who was born in 1995 and lives in Tirana. The applicants are represented before the Court by Mr K. Loloci, a lawyer practising in Tirana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date in 2006 a third party started construction works on a plot of land allegedly owned by the applicant company.
On an unspecified date in 2007 the applicant company, relying inter alia on Article 303 of the Civil Code, lodged a civil action seeking the cessation of interference with its property rights on account of the new construction.
On 29 September 2008 the District Court rejected the applicant company’s action. Making an assessment of the written evidence submitted before it, the court held that the applicant company was not the owner of the plot of land on which the construction works had started. That plot of land had been privatised by the authorities by way of an auction in 1996 and it had been excluded from the privatisation process of the applicant company in 2001. The sale contract 1996 was found to be valid by way of a final Supreme Court decision in 1999. The applicant company failed to substantiate any claims that it had de facto possession of the impugned plot of land. The court ruled that the applicant company lacked locus standing to ring such action.
The District Court further held that the applicant company could not substantiate any damage to its property as a result of the construction works. Consequently, no expert’s report was needed to assess the nature and extent of the damage. It noted that the third party had started the construction works on the strength of a building permit, whose lawfulness had not been challenged. As regards the applicant company’s request to question two witnesses (legal entities), the court stated that there was no legal interest in hearing them given that the examination could be carried out on the basis of the official documents already submitted by those entities and the parties’ submissions.
The District Court finally ruled that the applicant company’s action was time-barred as it had been introduced outside the one-year time-limit of the commencement of the construction works, which time-limit had started to run from 20 October 2006.
On 5 February 2010 the Court of Appeal, which was composed of the same judges who gave the decision of 11 November 2009 (see section on “The proceedings concerning an injunction order” below), upheld the decision. The applicant company appealed arguing, inter alia, that: the Court of Appeal’s bench lacked impartiality, because the same judges had given the decision of 11 November 2009; the assessment of evidence and the interpretation of the law was erroneous; two witnesses were not summoned and no expert’s report was carried out.
On 25 March 2011 the Supreme Court dismissed, in camera, the appeal, no reasons having been given.
On 31 October 2013 the applicant company was informed that the Constitutional Court, in a formation of eight out of the nine judges provided for by the relevant law on its functioning and organisation, dismissed its appeal since its vote was tied. The court’s reasoning was limited to the fact that the court could not reach a majority on any of the issues raised in the present case. The applicant was invited by virtue of section 74 of the Constitutional Court Act to lodge a fresh constitutional complaint.
Proceedings concerning an injunction order and its enforcement
On an unspecified date after May 2007 the applicant company requested the adoption of an immediate injunction (masa e sigurimit të padisë) against the third party restraining it from continuing construction works.
On 4 December 2007 the Tirana District Court ruled in favour of the applicant company’s request. The decision was upheld on appeal by the Court of Appeal and the Supreme Court on 20 June 2008 and 26 February 2009, respectively. The injunction was to be valid until the final resolution of the dispute.
On 11 December 2007 an enforcement order was issued.
On 14 May 2008 the District Court rejected the third party’s action against the enforcement proceedings.
On 11 November 2009 the Court of Appeal quashed the decision and accepted the third party’s action. It relied inter alia on the decision of 29 September 2008 which had rejected the merits of the applicant company’s action and had lifted the injunction.
B. Relevant domestic law and practice
Relevant domestic law and practice have been described in detail in the case of Marini v. Albania, no. 3738/02, §§ 68-72, 18 December 2007. Other relevant provisions, in so far as this application is concerned, are as follows.
1. Constitutional Court’s practice
In decision no. 19/14 of 2 April 2014 the Constitutional Court rejected the appellant’s complaint about the lack of impartiality of the domestic courts on account of tied votes.
2. Civil Code
Under Article 303 an owner, who has reason to believe that his/her property would be damaged on account of a new construction, may lodge a civil action on the condition that the construction has not finished and that a one-year time-limit does not elapse. The court may order, inter alia, to stop the construction, to demolish it or to reject the civil action.
3. Code of Civil Procedure (“CCP”)
With regard to the appeal procedure before the Supreme Court, Article 472 of the CCP states that “decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision.”
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention about: (i) the lack of impartiality of the Court of Appeal of 5 February 2010, since the same judges had heard the case on 11 November 2009, (ii) the lack of reasons in the Supreme Court’s decision and (iii) a breach of their right of access to court on account of the Constitutional Court’s tied vote and its inability to finally determine the appeal.
QUESTIONS TO THE PARTIES
Has there been a breach of Article 6 § 1 of the Convention? In particular:
(a) Has there been a breach of the applicants’ right of access to court on account of the Constitutional Court’s tied vote (Marini v. Albania, no. 3738/02, 18 December 2007, and Avdić and Others v. Bosnia and Herzegovina, nos. 28357/11, 31549/11 and 39295/11, 19 November 2013)?
(b) Was the Court of Appeal’s bench of 5 February 2010 impartial?
(c) Did the applicants raise any points of law in their appeal to the Supreme Court as required by Article 472 of the Code of Civil Procedure? If so, was the Supreme Court’s decision adequately reasoned?
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