REXHEPI SH.P.K. v. ALBANIA

THIRD SECTION

DECISION

Application no. 44789/07
REXHEPI SH.P.K.
against Albania

The European Court of Human Rights (Third Section), sitting on 13 February 2024 as a Committee composed of:

 Georgios A. Serghides, President,
 Darian Pavli,
 Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 44789/07) 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 29 September 2007 by Rexhepi SH.P.K. (“the applicant”), a limited liability company whose seat is in Tirana, and who was represented by Mr K. Puto, a lawyer practising in Tirana;

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

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged violation of the applicant company’s right to a fair trial and its right to peaceful enjoyment of its possessions.

2.  The applicant company entered into a building agreement (kontratë sipërmarrje) with private persons B. and S. for the construction of a building on their plots of land. Thereafter, the Tirana Municipality’s Council for Territorial Planning (hereinafter “Tirana CTP”) issued the applicant with a planning permit (on 26 November 1997) and a building permit (on 22 December 1997). The validity of the building permit was subsequently extended on two occasions (on 24 August 1998 and on 23 June 2000) until 23 June 2005.

3.  In March 2003 another company D. entered into an agreement with A., K. and T. for the construction of a building on their plots of land. Subsequently, the Tirana CTP granted the company D. a planning permit (on 9 May 2003) and a building permit (28 May 2004).

4.  It would appear that the plots of land owned by A., K. and T. overlapped with those owned by B. and S.

5.  It is not clear when the applicant company learned about the permits issued to company D. However, on 14 July 2004 the applicant company lodged an action with the Tirana District Court (“the District Court”) against the Tirana CTP and D. requesting the annulment of the latter’s planning and building permits.

6.  On 11 September 2004 the National Council for Territorial Planning (hereinafter “National CTP”) annulled the planning and building permits that had been issued to the applicant company between 1997 and 2000. The National CTP considered that the renewal of the validity of the applicant’s building permit and further extension of its validity had been unlawful.

7.  On 27 January 2005 the Tirana District Court ruled in favour of the applicant company and annulled the planning and building permits issued to company D. The court found, inter alia, that the applicant company’s building permit had been lawful and its quashing by the National CTP had to be declared null and void (veprim juridik absolutisht i pavlefshëm). The Tirana CTP and company D. appealed against that decision.

8.  On 12 May 2005 the Court of Appeal quashed the District Court’s decision and rejected the applicant company’s action. It held, referring to some earlier court proceedings dealing with this matter, 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 issued permits to company D., having regard to its agreements with A., K. and T. 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. The appellate court disagreed with the District Court’s reasoning behind declaring the decision of the National CTP null and void. It found that any complaints against the decision of the National CTP should have been lodged in a separate set of proceedings.

9.  On 14 April 2006 the Supreme Court declared the applicant’s further appeal inadmissible and 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.

10.  On an unknown date the applicant company lodged an application for review of the Court of Appeal decision of 12 May 2005. This application was prompted by discontinued criminal proceedings against an official of the Tirana Municipality who had been suspected of abuse of power and forgery of official documents, notably the Tirana CTP’s decision of 23 June 2000 (see paragraph 2 above). When deciding to discontinue the criminal proceedings, the Court of Appeal had found that the Tirana CTP decision of 23 June 2000 had not been forged but had been issued in accordance with the law. The Supreme Court rejected the applicant company’s request for review.

THE COURT’S ASSESSMENT

11.  The applicant company complained, firstly, that the issuing of the planning and building permits to company D., and secondly, that the annulment of its planning and building permits by the National CTP had violated its rights under Article 1 of Protocol No. 1 to the Convention.

12.  The Government argued that the applicant company had failed to exhaust domestic remedies. It asserted that the domestic court proceedings which the applicant had pursued had concerned the rights of company D. to build on the plot of land in question. The applicant had not appealed against the National CTP decision which it considered to have interfered with its rights. In any event, the annulment decision of the National CTP had merely rectified the earlier unlawful situation and had thus not interfered with the applicant’s rights under Article 1 of Protocol No. 1 or, alternatively, the interference had been justified.

13.  The applicant company, in turn, argued that the decision of the National CTP had to be considered “absolutely invalid”. It asserted that it had raised this argument before the domestic courts.

14.  The Court finds that the planning permit coupled with the subsequently issued building permit constituted “possessions” for the applicant company (see Mullai and Others v. Albania, no. 9074/07, §§ 98-99, 23 March 2010).

15. Even assuming that the issuing of planning and building permits to company D. constituted a separate ground of interference with the applicant company’s proprietary interest (compare Mullai and Others, cited above, § 111), the Court considers, owing to the specific set of facts of the case at hand, that the crux of the applicant’s complaint under Article 1 of Protocol No. 1 is the fact that its planning and building permits were annulled by the National CTP. The Court cannot help but note, as did the Court of Appeal (see paragraph 8 above), that the applicant company’s permits were in any event annulled soon after the company D. was granted planning and building permits.

16.  As for the decision of the National CTP to annul the applicant’s planning and building permits, the Court agrees with the Government that the applicant, by not bringing any action against this decision, has failed to exhaust domestic remedies. Although the applicant considered the impugned decision to be null and void (and indeed argued that before the domestic courts), the Court has no reason to question the finding of the Court of Appeal according to which any arguments against the decision of the National CTP should have been lodged in separate proceedings against the act in question.

17.  It follows that the applicant company’s complaint concerning the interference arising out of its planning and building permits having been annulled must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

18.  The applicant company alleged a violation of Article 6 § 1, expressing its dissatisfaction with the reasoning of the domestic courts and with the outcome of the proceedings against the Tirana CTP and the company D. It considered that the National CTP had unlawfully intervened in its case by way of annulling its planning and building permits. The applicant also challenged the independence and impartiality of the Court of Appeal judges and considered that it had lacked access to court given the judgment of the Court of Appeal.

19.  The Government argued that the domestic court proceedings had met the fair trial guarantees offered by Article 6 of the Convention.

20.  As for the complaint concerning the alleged partiality and lack of independence of the judges of the Court of Appeal, the applicant company appears to base this contention on the allegations that the Court of Appeal had acted hastily, that it had accepted the appeal submitted by the representative of the opposing party without the latter having a valid power of attorney, and that it had refused to suspend the impugned proceedings pending the outcome of criminal proceedings against an official of the Tirana Municipality (see paragraph 10 above). The Court does not discern how the above-described allegations – even if they were found to be true – could tarnish the impartiality and independence of the judges of the Court of Appeal.

21.  As to the claim related to the access to court, the Court considers that the applicant company had a possibility to submit its claims to the domestic courts and that that these courts indeed examined them. Noting that the core of the applicant’s complaint seems to be related to the decision of the Court of Appeal, the Court observes that although that court rejected its claims for a lack of legal standing and for having submitted the claims out of time, it nonetheless addressed the merits of the applicant’s claims (see paragraph 8 above). As noted above, any arguments against the decision of the National CTP should have been lodged against that act in a separate set of proceedings.

22.  As regards the reasons relied on by the domestic courts and noting that the applicant company’s action was rejected (see paragraph 10 above), it does not give grounds for the finding of a violation of Article 6 of the Convention. Noting that it is not, a as rule, its function to deal with alleged errors of law or fact committed by the national courts (see De Tommaso v. Italy [GC], no. 43395/09, § 170, 23 February 2017), the Court finds that the domestic courts in the present case gave reasons to their judgments, which do not appear to be arbitrary or manifestly unreasonable. Since the Court of Appeal found that any complaints against the National CTP decision should have been the subject of a separate set of proceedings against that decision (see paragraph 8 above), it cannot be considered unreasonable that the appellate court did not subsequently express itself further on the reasons of annulment of the applicant company’s planning and building permits. Moreover, the decision of the Supreme Court to reject de plano the applicant company’s appeal on points of law without giving extended reasons does not amount to a violation of Article 6 § 1 (see Marini v. Albania, no. 3738/02, § 106, 18 December 2007).

23.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

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

 Olga Chernishova Georgios A. Serghides
 Deputy Registrar President