Communicated on 22 September 2014
FOURTH SECTION
Application no. 44789/07
‘REXHEPI’ SH.P.K.
against Albania
lodged on 29 September 2007
STATEMENT OF FACTS
The applicant company, Rexhepi sh.p.k, is a limited liability company, whose registered office is in Tirana. It is represented before the Court by Mr K. Puto, a lawyer practising in Tirana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
1. Proceedings concerning the approval of a planning and building permit in favour of the applicant company
On 7 June 1996 the applicant company entered into a building agreement (kontratë sipërmarrje) with B. and S. for the construction of a building on their plots of land.
On 26 November 1997 the Tirana Municipality’s Council for Territorial Planning (“Tirana CTP”) granted the applicant company a planning permit.
On 22 December 1997 the Tirana CTP granted the applicant company a building permit authorising it to erect an eight-storey building on B.’s and S.’s properties.
On 24 August 1998 the Tirana CTP renewed the building permit and modified it to authorise the construction of a ten-storey building.
On 23 June 2000 the validity of the building permit was extended to 23 June 2005 in order to allow for the demolition of an unlawful building that had been erected on one of the plots of land by B.
On 2 July 2002 a municipal unit confirmed that, owing to the unlawful building erected by B., no construction works had started.
On 28 January 2003 the Tirana Court of Appeal rejected B.’s heir’s action for the annulment of the building agreement, finding that the agreement of 7 June 1996 was still valid.
2. Proceedings concerning the approval of a planning and building permit in favour of a third party
In March 2003 D., a construction company, entered into an agreement with A., K. and T. for the construction of a building on their plots of land.
On 9 May 2003 the Tirana CTP granted company D. a planning permit. It would appear that the plots of land owned by A., K. and T. overlapped with the plots of land owned by B. and S.
On 4 June 2003 the Directorate of Urban Policy at the Tirana Municipality, in response to an enquiry by the Citizens’ Advocacy Centre, replied that the Tirana CTP had not been aware of the building permit granted to the applicant company when it awarded company D. the planning permit (ky institucion ka proceduar me dhënien e sheshit të ndërtimit pa e ditur problemin që ekziston, pra lejen e ndërtimit të miratuar më parë).
On 28 May 2004 the Tirana CTP granted company D. a building permit authorising it to erect a ten-storey building.
3. Judicial proceedings against the planning and building permit granted to company D.
On an unspecified date between May and September 2004 the applicant company lodged a civil action with the Tirana District Court (“the District Court”) requesting the annulment of D.’s planning and buildings permits.
As a result of company D.’s planning and building permits, on 11 September 2004 the National CTP annulled the planning and building permits that had been granted to the applicant company between 1997 and 2000.
On 22 October 2004 the Ombudsman sent a letter to the Prime Minister in his position as the Chairman of the National CTP. The Ombudsman was critical of the unfair procedure followed by the National CTP for granting the planning and building permits to company D. In the Ombudsman’s opinion, the National CTP should not have intervened, because the case was pending before the courts and because there was no legal basis for the intervention.
An expert report of 23 December 2004 concluded that there was a complete overlap between the properties of A., K. and T. and those of B. and S.
On 27 January 2005 the District Court ruled in favour of the applicant company and annulled the planning and building permits awarded to company D. The District Court found that the applicant company had a legitimate interest to lodge the civil action, because the permits granted to company D. concerned the same plots of land in respect of which permits had previously been awarded to the applicant company. As regards the exhaustion of administrative remedies, the District Court stated that the applicant company, not having been a party to the proceedings concerning the award of permits to company D., complained to the Tirana Municipality as soon as it had learned of company D.’s construction works. Failing a response from the Tirana Municipality to its last complaint of 16 June 2004, the applicant company lodged a civil action. As regards the applicant company’s building permit, the court held that it was lawful and its quashing by the National CTP was to be declared null and void (veprim juridik absolutisht i pavlefshëm).
The Tirana CTP and company D. appealed against the decision.
On 12 May 2005 the Court of Appeal quashed the District Court’s decision and rejected the applicant company’s action. It held that the new owners of the plots of land in respect of which permits had been granted to the applicant company were A., K. and T. instead of B. and S. Consequently, the Tirana CTP had awarded permits to company D., having regard to the agreements concluded between A., K. and T on one hand and company D on the other. Furthermore, the applicant company had lodged its civil action beyond the thirty-day time-limit to appeal against the administrative acts of the Tirana CTP. The applicant company did not have locus standi as it had been stripped of its permits by way of the National CTP decision of 11 September 2004. Any complaints against the National CTP decision should have been the subject of a new set of proceedings.
On 8 June 2005 the applicant company appealed. It submitted that the National CTP had interfered in a case which was pending before the national courts. Furthermore, the National CTP had overstepped its competence in taking the decision of 11 September 2004 in breach of sections 7 and 10 of the Urban Planning Act since there were no lawful grounds for its decision. Company D.’s building permit had been granted in breach of the time-limits fixed in sections 46 and 85 of the Urban Planning Act. The applicant company maintained that, on the basis of the documents in the case file, B. and S. were the legitimate owners of the plots of land.
On 14 April 2006 the Supreme Court declared the appeal inadmissible in accordance with Article 472 of the Code of Civil Procedure (no valid grounds of appeal).
Two copies of mortgage certificates of 9 June 2006 issued by the Office for the Registration of Immovable Properties showed that B. and S. were the owners of two plots of land, which were encumbered (barrë mbi pasurinë) as a result of the agreement concluded with the applicant company.
On an unspecified date the applicant company lodged a constitutional complaint.
In their intervention before the Constitutional Court, the State Advocate’s Office submitted that the applicant company’s property rights had been breached as a result of the unlawful administrative acts. Having failed to obtain an answer from the Tirana Municipality in response to its complaints, the applicant company had a legitimate interest in lodging a civil action in accordance with Article 324 § 2 of the Code of Civil Procedure. The State Advocate’s Office further submitted that the National CTP had overstepped its competence in taking the decision of 11 September 2004, which was in breach of section 10 of the Urban Planning Act.
On 9 July 2007 the Constitutional Court, sitting as a full court, rejected the applicant company’s constitutional complaint finding that there had been no breach of its right to a fair hearing.
4. Judicial proceedings the review of the Court of Appeal decision of 12 May 2005
On an unspecified date in 2005 criminal proceedings were instituted against J., an official at the Tirana Municipality, for the charge of abuse of power and forgery of official documents, notably the Tirana CTP’s decision of 23 June 2000.
On 8 February 2006 the Court of Appeal discontinued the case (pushimi i çështjes penale) against J., finding that the Tirana CTP decision of 23 June 2000 had not been forged but had been issued in accordance with the law. That decision became final on 6 November 2006, following the rejection of the prosecutor’s appeal by the Supreme Court.
In the light of this decision, the applicant company lodged an application for review of the Court of Appeal decision of 12 May 2005, since the alleged forgery of the Tirana CTP’s decision of 23 June 2000 had been one of the grounds for the rejection of the applicant company’s appeal.
On 20 November 2009 the Supreme Court rejected the applicant company’s request for review, because it did not contain any grounds for appeal.
On 26 July 2011 the Constitutional Court quashed the Supreme Court’s decision on account of the lack of impartiality of the bench and remitted the case for re-examination.
According to the last communication of 27 September 2011 between the Registry and the applicant company, the case was still pending before the Supreme Court.
B. Relevant domestic law and practice
1. The Urban Planning Act 1998 (Law no. 8405 of 17 September 1998 as amended by Law no. 8501 of 16 June 1999, Law no. 8991 of 23 January 2003 and, more recently, Law no. 9843 of 17 December 2007) (“The 1998 Act”)
A brief description of the Urban Planning Act was set out in Mullai and Others v. Albania, no. 9074/07, 23 March 2010.
“57. The 1998 Act defines the general rules governing the location and architecture of constructions in Albania. The Act entered into force on 25 October 1998. Section 7 provides for the establishment of the national CTP, presided over by the Prime Minister. Its composition is determined by decision of the Council of Ministers (section 8). The Ministry responsible for territorial planning coordinates the work of the national CTP (section 12). Section 14 provides for the establishment of municipal CTPs.
58. The 1998 Act instituted a two-tier procedure for obtaining the necessary permits. An application for planning permission (kërkesa për shesh ndërtimi) should initially be submitted for examination and approval by the Municipal CTP pursuant to section 39. A building permit (leje ndërtimi) should then be obtained pursuant to section 45. This is the sole legal document on the basis of which construction work may start.
59. Section 9 of the 1998 Act empowered the national CTP, amongst other things, to approve the urban study and building permits in respect of constructions located in city centres. Under section 10 of the 1998 Act the national CTP was empowered to quash decisions adopted by the municipal CTPs. By decision no. 29 of 21 December 2006 the Constitutional Court declared unconstitutional these parts of section 9 and section 10, since they breached the constitutional principle of decentralisation and local government autonomy.”
2. Code of Civil Procedure
Under Article 324 of the CCP a claimant may seek the annulment of an administrative act. A claimant may also challenge the authorities’ refusal to take an administrative act within the prescribed time-limit. In accordance with Article 325 a claimant may also seek payment of damages. Under Article 328 the time-limit for lodging an action for the annulment of an administrative act is thirty days from the date of delivery or notification of the decision by the highest administrative authority.
COMPLAINTS
The applicant company complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that there has been an unjustified interference with its property rights as a result of the unfair domestic proceedings.
QUESTIONS TO THE PARTIES
1. Did the applicant company have a fair hearing in the determination of its civil rights and obligations in accordance with Article 6 § 1 of the Convention? In particular, has there been a breach of the principle of legal certainty on account of the authorities’ granting a building permit to company D. in relation to the same plots of land?
2. Has there been an interference with the applicant company’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? Is so, which rule of Article 1 of Protocol No. 1 to the Convention applies in the instant case? If so, was the interference lawful (see, amongst others, Mullai and Others v. Albania, no. 9074/07, 23 March 2010)? If so, was the interference necessary?
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