(Application no. 7352/03)
22 August 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Beshiri and Others v. Albania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 11 July 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings regarding the restitution of property
B. Judicial proceedings
C. Proceedings before the Constitutional Court
II. RELEVANT DOMESTIC LAW AND PRACTICE
“1. The right of private property is protected by law.
2. Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided for by the Civil Code.
3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest.
4. Expropriations, or limitations of a property right that are equivalent to expropriation, shall be permitted only in return for fair compensation.
5. A complaint may be lodged with a court to resolve disputes regarding the amount/extent of compensation due.”
Article 42 § 2
“In the protection of his constitutional and legal rights, freedoms and interests, and in defence of a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
Article 142 § 3
“State bodies shall comply with judicial decisions.”
“The Constitutional Court shall decide on: ...
(f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
“1. Within two to three years from the date when this Constitution enters into force, Parliament, guided by the criteria laid down in Article 41, shall pass laws for the just resolution of different issues relating to expropriations and confiscations carried out before the approval of this Constitution.
2. Laws and other normative acts relating to expropriation and confiscation that were passed before the entry into force of this Constitution shall be applied provided they are compatible with the latter.”
B. Property Restitution and Compensation Act (Law no. 7698 of 15 April 1993, as amended by Law no. 8084 of 1996 and abrogated by law no. 9235 dated 29 July 2004)
“Former owners and their legal heirs have the right of ownership. A former owner shall have the right either to have allocated the original land or to be awarded compensation in kind if one of the following conditions is met:
(1) the alleged property was pasture, meadow, forestry land, or agricultural or non-agricultural land;
(2) the alleged property was not subject to Law no. 7501 of 19 July 1991;
(3) the alleged property is currently State-owned;
(4) the alleged property has been designated as suitable for construction and is situated within the boundaries of a city.
The restitution or compensation in kind shall not exceed 10,000 sq. m pursuant to section 1(4) of Decree no. 1359 of 5 February 1996, as amended by Law no. 8084 of March 7 1996.”
“Former owners shall be entitled to restitution of their former buildings without having to repay outlays made by the Government or other owners on structural alterations, annexes or floor additions to former private buildings, where such outlays amount to up to 20% of the building’s value.
Former owners shall be entitled to restitution of their former buildings once they have repaid more than 20% of the value of outlays, where such outlays amount to between 20% and 50% of the building’s value. The value of the outlays shall be calculated on the basis of construction prices at the time of the building’s restitution. A building shall remain in co-ownership where the value of such outlays is more than 50% of the building’s value. .... The courts shall have authority to resolve disputes between parties.”
“Where a building site or agricultural land that has been reclassified as a building site is occupied by a permanent construction, the former owners shall be compensated, within the limit fixed for expropriation, by one of the following methods:
(a) by means of State bonds, equivalent to the compensation owed, and with first option of acquiring shares in State enterprises being privatised by the Government or in other activities carried out through the granting of loans;
(b) by means of an equivalent plot of land or building site near to an urban area, in accordance with the general urban-development regulations;
(c) by means of an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations.
Any outstanding amount after the application of (b) and (c) above shall be compensated according to other methods established by this Act.
The Council of Ministers shall have the authority to define more detailed rules for determining the methods and deadlines for such compensation.”
29. In November 2005 the Government (as newly elected on 3 July 2005) introduced in Parliament a new bill on the Property Restitution and Compensation Act, which proposes several amendments to the Property Act of 2004. The bill, which is currently pending before Parliament, will be discussed in the coming months.
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION
Article 6 § 1, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair... hearing within a reasonable time by [a] ... tribunal...”
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
1. As to the fairness of the proceedings
2. As to the length of the proceedings
3. As to the alleged failure to enforce a court decision
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
“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.”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
1. The parties’ submissions
2. The Court’s assessment
(a) Recapitulation of the relevant principles
(b) Application of the relevant principles
(i) Property claims over the villa
(ii) Property claims over the plots of land
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
2. Declares the complaints concerning Article 6 § 1 (as regards the non-enforcement of a final decision), Article 13 and Article 1 of Protocol No. 1 admissible and the remainder of the application inadmissible;
(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention the following amounts, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement, plus any tax that may be chargeable:
(i) EUR 120,000 (one hundred and twenty thousand euros) in respect of pecuniary and non-pecuniary damage;
(ii) EUR 6,000 (six thousand euros) in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 22 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza