FOURTH SECTION
DECISION
Application no. 11994/05
Besnik XHEMALAJ and Others
against Albania
The European Court of Human Rights (Fourth Section), sitting on 27 January 2015 as a Committee composed of:
Päivi Hirvelä, President,
George Nicolaou,
Nona Tsotsoria, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 25 March 2005,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicants, Besnik Xhemalaj, Shkelqim Bici, Luan Duka, Feleke Kraja, Nazmi Laze, Zenel Laze and Fatos Shkurta are Albanian nationals and live in Tirana. They were represented before the Court by Mr B. Asllanaj, a lawyer practising in Tirana.
2. The Albanian Government (“the Government”) were represented by their then Agent, Ms E. Hajro of the State Advocate’s Office.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The administrative decision ordering the demolition of the buildings
4. On 18 August 2000, in response to a single application for a planning permit and a building permit, the Tirana municipality’s Council for Territorial Planning (“the municipality’s CTP”) granted a construction company, Hawai-Alb Ltd, a planning permit to build two ten-storey buildings.
5. In the meantime, construction work had started, in spite of the absence of a building permit. At some point in 2001 the construction company concluded a contract for the sale of apartments with the applicants.
6. On 21 October 2002, relying on inspection reports, the municipality’s CTP decided that both buildings had been constructed without a building permit and in violation of the urban-planning conditions specified in the planning permit. The municipality’s CTP further decided to demolish both buildings and ordered the Construction Police to enforce the decision.
2. Judicial proceedings for the annulment of the administrative decision
7. On 26 November 2002 the construction company, joined by 141 petitioners as third parties – including the applicants – who had acquired flats in the buildings, brought a civil action in the Tirana District Court (“the District Court”) for the annulment of the CTP’s decision of 21 October 2002. They also requested the stay of its enforcement until a final ruling by the domestic courts.
8. On 21 January 2003 the District Court dismissed the construction company’s and the applicants’ actions. It found that the construction company had not filed a separate application for a building permit in accordance with the domestic law. The District Court further found that the construction work had started even before the planning permit had been obtained. The Court reasoned that the municipality’s CTP had thus decided that the buildings should be demolished.
9. On 16 May 2003, following an appeal by the construction company and the applicants, who intervened collectively as a third party, the Court of Appeal quashed the District Court’s decision and annulled the municipality’s CTP’s decision. It found that the construction company had made an application for a building permit and the municipality’s CTP was required by law to expressly approve or reject it. Its failure to take an administrative decision within the prescribed time-limit was to be taken as tacit approval.
10. On 30 September 2004, following an appeal by the municipality of Tirana, the Supreme Court quashed the Court of Appeal’s decision and upheld the District Court’s initial decision. Therefore, the CTP’s decision of 21 October 2002 was still in force. The Supreme Court found that the construction company had not submitted a separate application for a building permit as required by law. It further found that even though the illegal construction work had started, many breaches of the requirements of the Urban Planning Act had been committed.
11. On 19 April 2005, following the applicants’ constitutional complaint, the Constitutional Court decided de plano to declare it inadmissible as being outside its jurisdiction. No further reasons were given.
3. Events subsequent to the communication of the application to the Government
12. In their further comments of 25 June 2009 the Government submitted that the buildings which housed the applicants’ flats were subject to the process of legalisation.
13. On 2 July 2014 the Government adopted decision no. 439 on the procedure for the legalisation of buildings and additions thereto constructed unlawfully by Hawai-Alb ltd. According to the decision, all buildings and additions thereto unlawfully constructed by Hawai-Alb ltd., in respect of which no self-declaratory statements had been made or no request had been submitted within the time-limits prescribed by the Legalisation, Urbanisation and Integration of Unauthorised Buildings Act, would be subject to the process of legalisation. The Agency for Legalisation, Urbanisation and Integration of Unauthorised Areas/Buildings (“the Agency”) was tasked with the compilation and publication of the lists of unlawfully constructed buildings and additions. The residents of the flats would bear the financial costs for the process. The decision entered into force after its publication in the Official Journal (no. 107 of 10 July 2014).
B. Relevant domestic law
1. Urban Planning Act (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 by Law no. 9843 of 17 December 2007)
14. The Urban Planning Act defines the general rules governing the location and architecture of constructions in Albania.
15. The 1998 Act instituted a two-tier system in respect of the procedure for obtaining the necessary permits. An application for a planning permit (kërkesa për shesh ndërtimi) should initially be submitted for examination and approval by the district CTA pursuant to section 39.
16. Section 45 makes a construction project conditional on obtaining a building permit (leje ndërtimi). This is the sole legal document on the basis of which construction works may start. The application for a building permit is submitted on the basis of an application form annexed to the Act.
2. Legalisation, Urbanisation and Integration of Unauthorised Buildings Act (Law no. 9482 of 3 April 2006)
17. The Act instituted the Agency for Legalisation, Urbanisation and Integration of Unauthorised Areas/Buildings (“the Agency”), with branch offices at district level. Section 7 provides that any interested party, whose building was constructed without a permit, is required to make a self-declaratory statement within four months after the first 60 days following the Act’s entry into force. The interested party is to indicate the buildings that have been constructed without a permit and the site of the construction, appending supporting documents as specified under the law. The Agency would then assess the self-declaratory statements and award legalisation permits. The legalised property would thereafter be entered in the registers of immovable property at the office for registration of immovable property.
COMPLAINTS
18. The applicants complained under Article 6 § 1 of the Convention of the lack of impartiality of the Supreme Court, resulting both from a media campaign mounted against the unlawful buildings and from the assessment of evidence. Under Article 1 of Protocol No. 1 to the Convention, they complained that the eventual demolition of the buildings breached their right of property. They also relied on Article 14 in conjunction with Article 1 of Protocol No. 1, alleging that they suffered unfair discrimination compared with many other people whose unlawfully constructed buildings had not been demolished.
THE LAW
A. The applicants’ complaint under Article 1 of Protocol No. 1 to the Convention
19. The applicants complained about a breach of Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
20. The Court observes that under Article 37 § 1 (b) of the Convention it may “at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved.” To find that this provision applies, the Court must be satisfied that the circumstances complained of no longer obtain and that the effects of a possible violation of the Convention on account of those circumstances have been redressed. In the present case, this entails establishing, firstly, whether the risk of demolition of the applicants’ flats persists and, secondly, whether the measures taken by the authorities adequately redressed their complaint (see Sisojeva and Others v. Latvia, [GC], no. 60654/00, § 97, ECHR 2007‑...; Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007; Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 48, 7 December 2007; S. v. Finland (dec.), no. 48736/06, 26 February 2008; Khirvonen v. Finland (dec.), no. 10939/07, 29 April 2008; and Kordoghliazar v. Romania (dec.), no. 8776/05, 20 May 2008).
21. In this connection, the Court observes that on 2 July 2014 the Government paved the way for the legalisation of all buildings and additions constructed unlawfully by the construction company, including the applicant’s building. According to the decision, the legalisation process is open to all residents occupying the flats in the buildings and additions constructed unlawfully by the construction company, in spite of their failure to comply with the procedure under the Legalisation, Urbanisation and Integration of Unauthorised Buildings Act. The Agency has been entrusted with the task of compiling and publishing a list of all buildings and residents occupying the apartments in those buildings. In view of this decision, there is therefore no remaining risk of the buildings being demolished. The Court therefore considers that, in the special circumstances of the present case, the eventual legalisation of the applicants’ flats constitutes adequate and sufficient redress for their complaint under Article 1 of Protocol No. 1.
22. In view of the foregoing, the Court concludes that both conditions for the application of Article 37 § 1 (b) are met. The matter giving rise to the complaint can therefore be considered to have been “resolved” within the meaning of this provision. Moreover, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the complaint under Article 37 § 1 in fine. This complaint should accordingly be struck out of the list of cases.
B. Other alleged violations of the Convention
23. The applicants also complained about a breach of Article 6 § 1 of the Convention about the lack of impartiality of the Supreme Court and of Article 14 about the unjustified discrimination suffered as regards the demolition of their buildings. The Court has examined these complaints. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the provisions invoked. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Application of Rule 43 § 4 of the Rules of Court
24. Rule 43 § 4 of the Rules of Court provides:
“When an application has been struck out, the costs shall be at the discretion of the Court. ...”
25. The applicants claimed reimbursement of 10,000 euros (“EUR”) as regards legal costs. No invoice was submitted in support of this claim.
26. The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 of the Rules of Court are essentially the same as under Article 41 of the Convention (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, § 276, 3 October 2008; and, most recently, O.G.O. v the United Kingdom (dec.), no. 13950/12, 18 February 2014). According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum.
27. In the present case, in the absence of any supporting documents, the Court rejects the applicants’ claim under this head.
For these reasons, the Court, unanimously,
Decides to strike out of its list the applicants’ complaint under Article 1 of Protocol No. 1;
Declares inadmissible the remainder of the application.
Done in English and notified in writing on 19 February 2015.
Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident
Full & Egal Universal Law Academy