Communicated on 8 October 2015
FOURTH SECTION
Application no. 18076/12
VJOLA SH.P.K. and DE SHPK
against Albania
lodged on 2 March 2012
STATEMENT OF FACTS
The applicants, Vjola Sh.p.k. and D.E. Sh.p.k, are limited liability companies incorporated under Albanian laws (“the applicant companies”). They are represented before the Court by Mr J. Daci, a lawyer practising in Tirana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant companies, may be summarised as follows.
On 24 December 1998 and 29 August 2000, the applicant companies concluded two lease contracts concerning the right to use two forests measuring 15,000 sq. m and 4,500 sq. m, respectively, in Golem, for a period of twenty-five years, with the Kavaja Forest Service Directorate (“the Forest Service” – kontratë qiraje për dhënien në përdorim të fondit pyjor/kullosor kombëtar). Both contracts were registered in the land register.
In February 2004 a third party concluded two agreements with the Ministry of Territorial Planning and Tourism (“the Ministry”) concerning the development and lease of a forest measuring 24,000 sq. m in Golem with the purpose of constructing a tourist village. It would appear that this plot of land overlapped with the two plots of land leased by the applicant companies.
On 18 May 2004 the third party demolished the fence which surrounded the plot of land and commenced construction works.
1. Proceedings concerning the applicant companies’ enjoyment of possessions
On 27 May 2004 the applicant companies lodged a civil action under Articles 310 and 312 of the Civil Code (“CC”) requesting the third party to cease the interference with their legal possession of the plots of land which they had leased in 1998 and 2000 (pushimin e cënimit të posedimit). They further requested the restoration of the land to its previous state, the payment of damages and the stay of construction works.
In October 2004 the Ministry directed the Forest Service to annul the lease contracts concluded with the applicant companies and maintain the contracts concluded with the third party.
On 14 February 2005 the Kavaja District Court discontinued the examination of the case on the ground that the applicant companies should have first requested the nullity of the agreements concluded in 2004 between the third party and the Ministry and, then, cessation of the interference with their legal possession of the plots of land.
On 31 May 2005 the Durrës Court of Appeal, following the applicant companies’ appeal, decided to remit the case for fresh examination to the Kavaja District Court on the ground that the decision lacked a legal basis.
On 27 March 2006 the Supreme Court dismissed the third party’s appeal.
2. Rehearing proceedings
On 26 December 2006 the Kavaja District Court decided to dismiss the applicant companies’ civil action. The court stated that the applicant companies had legal standing to seek the protection of their possessions on the basis of the lease contracts (paditësit legjitimohen në mbrojtjen e posedimit pasi provojnë posedimin e ligjshëm). Those contracts continued to remain in force and their validity had never been challenged before the courts. Relying on an expert report, the court found that the construction of the tourist village overlapped considerably with the applicant companies’ plots of land, insofar as 12,592 sq. m were concerned. It further acknowledged that, at the time of lodging the civil action, the construction works had already commenced. However, the court stated that given the changing circumstances, namely the fact that the construction works had been completed in May 2006, the applicant companies could no longer rely on Article 312 of the CC. That article applied insofar as the interference with the possession was continuous.
The court stated that the applicant companies should have lodged an action under Article 313 of the CC. However, since the statutory six-month time-limit for lodging such an action had elapsed, it was not an effective remedy. It suggested that, in the light of the new circumstances, the applicant companies could lodge an action for the payment of damages against the Forest Service and the Ministry.
On 23 April 2007 the Durrës Court of Appeal upheld, with the same reasoning, the District Court’s decision.
On an unspecified date the applicant companies lodged an appeal with the Supreme Court complaining, amongst others, about the lower courts’ failure to examine their case against the circumstances which existed at the time they had lodged the civil action.
On 8 July 2010 the Supreme Court upheld the lower courts’ decisions. It stated that the applicant companies had lost their possession over the plots of land from the moment the third party had finished constructing the tourist village. Unlike the lower courts’ finding, it found, without giving reasons, that the authorities had unilaterally breached the lease contracts concluded with the applicant companies. The Supreme Court considered that the complaint about the examination of the case in the light of the new circumstances did not raise any valid statutory grounds of appeal in accordance with the law.
On an unspecified date in 2011 the applicant companies lodged a constitutional complaint. They submitted, amongst others, that the lower courts had failed to examine the case on the basis of facts which existed when the civil action had first been lodged. They contended that the length of proceedings had contributed to the continuation and completion of the construction works by the third party.
On 26 September 2011 the Constitutional Court, sitting as a bench of three judges, rejected the constitutional complaint on the ground that it concerned the assessment of evidence. It further reasoned that the lower courts had adequately reasoned their decisions.
On 19 December 2011 the Forest Service concluded a lease contract with one of the applicant companies, Vjola sh.p.k, for the lease of the remaining plot of land measuring 3,673 sq. m.
It would appear that the applicant company Vjola sh.p.k paid rent until 2010 in accordance with the lease contract of 1998.
B. Relevant domestic law
Article 310 of the Civil Code states that any possessor is entitled to challenge instantly, by way of an appropriate means of defence, any act whose purpose is the interference with or striping of his possession.
Under Article 312 of the Civil Code any person who has been subjected to an interference with his possession may seek, within six months, the cessation of the interference as well as an injunction preventing its reoccurrence in the future.
Under Article 313 of the Civil Code a possessor who has unlawfully been stripped of his possession may seek, within six months, the restoration of that possession.
COMPLAINTS
The applicant companies complain under Article 6 § 1 of the Convention about a breach of their right of access to court as a result of the domestic courts’ failure to examine their civil action in the lights of facts that had existed at the time of its lodging. They also complain under Article 6 § 1 of the Convention that the length of proceedings was unreasonable. Under Article 1 of Protocol No. 1 to the Convention they complain about a disproportionate interference with their property rights.
QUESTIONS TO THE PARTIES
1. Did the domestic courts’ failure to examine the applicant companies’ civil action under Article 312 of the Civil Code in the light of circumstances obtained at the time of its lodging amount to a disproportionate interference with their right of access to court under Article 6 § 1 of the Convention?
2. Was the length of the civil proceedings, notably the proceedings before the Supreme Court, in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
3. Has there been a breach of Article 1 of Protocol No. 1 to the Convention?
Full & Egal Universal Law Academy