Communicated on 28 January 2016
FIRST SECTION
Application no. 4616/09
Janulla RRAPI against Albania
lodged on 6 January 2009
STATEMENT OF FACTS
The applicant, Ms Janulla Rrapi, is an American and Albanian national, who was born in 1944 and lives in New York.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Administrative proceedings concerning the recognition of property rights
On 8 February 1996 the Saranda Commission on Restitution and Compensation of Properties (hereinafter “the Commission”) recognised the applicant’s and her sister’s inherited property title over a plot of land measuring 600 sq. m. As the original plot of land was occupied, it decided that the applicant and her sister would be compensated with an equivalent plot of land in a tourist zone.
2. Judicial proceedings concerning the restoration of land in natura
On an unspecified date in 2002 the applicant instituted proceedings at the District Court seeking to have the Commission decision modified. She claimed that a part of the plot was vacant and that it should be restored to her in natura. She further claimed that she was entitled to the right of first refusal (e drejta e parablerjes) over a former crèche which had been built on the inherited land. She subsequently supplemented her claim asking to have a contract of sale concluded between a third party and the local office of the National Housing Authority declared null and void.
On 4 May 2004 the Gjirokastra Court of Appeal found that 350 sq. m, on which the former crèche had formerly stood, did not overlap with anyone’s plot of land. Section 21 of the Property Act 1993 entitled the applicant to avail herself of the right of first refusal over the buildings constructed on that land, including the former crèche, whose second floor had been privatised by a third party. It therefore recognised the applicant’s right of first refusal over that two-storey building. The court further found that the privatisation had been carried out in breach of domestic law. It therefore declared the contract of sale null and void.
On 24 December 2004 and 16 January 2006 the Supreme Court and the Constitutional Court, respectively, upheld the Court of Appeal’s decision.
3. Judicial proceedings concerning the enforcement of the right of first refusal
On 30 March 2006 the applicant, relying on the right of first refusal as recognised by the Court of Appeal’s decision of 4 May 2004, requested the Saranda Municipality (Bashkia Sarandë, hereinafter “the Municipality”) to conclude an agreement for the privatisation of the former primary health care facility.
Owing to the local authorities’ lack of a decision, the applicant instituted proceedings at the Saranda District Court (hereinafter “the Distrcit Court”) seeking that the Municipality evict the third party from the crèche and that the Municipality conclude a contract of sale with her for the crèche.
On 4 April 2007 the District Court ruled in her favour and ordered the Municipality to take a decision in respect of the applicant’s request.
On 22 October 2008 the Municipal Council decided that the former primary health care facility would remain in the ownership of the Municipality and would be administered, for public and community purposes, by the Municipality.
4. Proceedings instituted by the third party for the reimbursement of the sale price
On an unspecified date in 2006 the third party instituted proceedings seeking, among other goals, the reimbursement of the sale price.
On 15 June 2006 the District Court accepted his claim. It found that the third party had purchased the flat in good faith. Consequently, the court ordered Saranda Municipality to pay the third party the sale price as well as costs incurred for work done on and maintenance of the flat. It further decided that the third party would remain in the flat until the complete payment.
B. Relevant domestic law and practice
The right of first refusal
(a) Civil Code
The right of first refusal is provided for by Article 204 of the Civil Code (“the CC”) according to which a co-owner who intends to sell his or her share to a third party is obliged to inform the other co-owners in writing to give them an option to purchase his share of the immovable property.
(b) The Property Act 1993
Section 21 of the Property Act 1993 (Law no. 7698 of 15 April 1993, as amended by Laws nos. 7736 and 7765 of 1993, 7808 and 7879 of 1994, 7916 of 1995 and 8084 of 1996 – “the Property Act 1993”) stated that former owners were entitled to the right of first refusal over State-owned buildings, such as shops, warehouses and workshops constructed on their plots of land.
(c) Domestic decisions
On 25 April 1997 the Constitutional Court stated, insofar as section 21 of the Property Act 1993 was concerned, as follows:
“It appears from section 21 that the lawmaker envisaged securing to former owners the right of first refusal over small- and medium-sized buildings, such as shops, warehouses, workshops and similar, in the event of their privatisation. More importantly, the right of first refusal was recognised when privatisation of such buildings was carried out in line with “the prices determined in accordance with legal provisions”. It is a fact that a number of by-laws that were adopted in the application of the [Property] Act provided former owners’ with the right of first refusal during the privatisation of small and medium enterprises.”
The Constitutional Court further stated that in the event of a State-owned company, of which the State was the only shareholder, becoming a private enterprise the privatisation of shares, in part or in full, would not be akin to the privatisation of objects. As such, it was at the State’s discretion to freely dispose of those shares, there being no legal obligation to be bound by former owners’ right of first refusal.
The Supreme Court Joint Benches in its unifying decision no. 23 of 1 April 2002 stated, insofar as section 21 of the Property Act 1993 was concerned, as follows:
“The right of first refusal, as provided for by section 21 of the Property Act 1993, is a potential right which will materialise in relation to those objects built by the State on a former owner’s land in respect of which the State continues to be the owner at the time of the Act’s entry into force – that is to say, the ownership has not been lawfully transferred to a third party – and which the State decides to privatise (E drejta e parablerjes, e parashikuar ne nenin 21 te Ligjit te mesiperm, eshte nje e drejte e mundeshme per t`u realizuar ne potence per ato objekte qe jane ndertuar nga shteti ne token e ish-pronarit e qe vazhdojne te jene ne pronesi te tij ne kohen e hyrjes ne fuqi te ketij ligji (d.m.th. qe nuk rezultojne te kene kaluar ne menyre te ligjeshme ne pronesi te te tjereve) dhe qe shteti vendos t`i privatizoje).
COMPLAINT
The applicant complains under Article 1 of Protocol No. 1 about a breach of her property right on account of her inability to exercise the right of first refusal.
QUESTIONS TO THE PARTIES
1. Does Article 1 of Protocol No. 1 apply in the instant case?
2. If so, has there been an unjustified interference with the applicant’s peaceful enjoyment of possessions on account of the authorities’ failure to enforce her right of first refusal?
3. Is the crèche (the former primary health care facility) still occupied by third parties? If not, is it used by the local authorities? If so, for what purpose? Has it been subject to a privatisation procedure?
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