by Aferdita HAMZARAJ
The European Court of Human Rights (Fourth Section), sitting on 22 September 2009 as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 27 November 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Ms Aferdita Hamzaraj, is an Albanian national who was born in 1926 and lives in Vlorë. She is represented before the Court by Mrs M. Xibinaku. The Albanian Government (“the Government”) are represented by their Agent, Mrs E. Hajro.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The facts of the case may be summarised as follows.
On 16 February 1995 the Lushnjë District Court recognised the existence of the applicant’s mother’s property rights over a plot of land measuring 13,000 sq. m (vendim për vërtetim fakti).
The applicant alleges that, pursuant to the Property Restitution and Compensation Act (“the Property Act”), she lodged a request with the Lushnjë Commission on Property Restitution and Compensation (replaced by the Agency for the Restitution and Compensation of Property by virtue of the 2006 Property Act) some time in 1995 seeking restitution of her mother’s original property. There is no documented information concerning events from 1995 to 2007.
On 28 September 2007 the applicant lodged another application with the regional Agency for Restitution and Compensation of Property (“the Agency”), again seeking restitution of her mother’s original property.
By a letter of 24 October 2007 the applicant informed the Court that the Agency did not issue any acknowledgment of receipt of her application. Nor did they provide any time frame for examining her application.
To date, the Agency has not taken any decision.
B. Relevant domestic law and practice
1. The Property Act
Section 22 of the 1993 Property Act, subsequently repealed by the 2004 Property Act, provided that the existence of property rights could be recognised by a court decision in the absence of official documents to be submitted by the interested party.
Section 15 of the 2006 Property Acts provides that “the Agency for Restitution and Compensation of Property shall not take any decision in relation to requests (applications), whose claims are solely based on a court decision which recognised the existence of a legal fact (vendim gjyqësor të vërtetimit të faktit juridik të pronës) over an immovable property (real estate), within the meaning of Article 388 of the Code of Civil Procedure. All requests (applications) based on such a decision shall be returned to the parties [without any further action to be taken] within thirty days of submission.” The regional Agency examines an application within three months of its registration. It notifies the applicant, by means of a reasoned decision, of any extension of the time-limit, which should not exceed thirty additional days.
Section 16 provides for the appeal procedure that should be followed against a decision of the regional Agency which recognises an applicant’s property rights, its restitution or compensation. The Property Act does not contain any appeal procedure in respect of its section 15, for cases where the regional Agency has not taken any decision.
Other relevant provisions of the Property Act have been described in the judgments Gjonbocari v. Albania (no. 10508/02, 23 October 2007); Driza v. Albania (no. 33771/02, 13 November 2007); and Ramadhi v. Albania (no. 38222/02, 13 November 2007).
(a) Council of Ministers’ decision on the organisation and operation of the Agency for Restitution and Compensation of Properties (Decision no. 566 of 23 August 2006)
The decision establishes the organisational chart of the Agency, which is composed of 12 regional offices. It provides for the appointment procedure of its management staff and their respective duties and responsibilities.
(b) Council of Ministers’ decision on the collection, processing and administration of requests by expropriated parties during the process of recognition, restitution and compensation of property (Decision no. 747 of 9 December 2006)
The decision lists the documents required to be part of the expropriated party’s request for the recognition, restitution and compensation of property. The request is submitted to the regional office.
If the application is complete the regional office assigns it a registration number. Otherwise, the regional office returns the application to the expropriated party for submission of the missing documents.
The decision does not provide for any time-limits within which the regional office is to examine a request.
2. The Code of Civil Procedure
Section 388 of the Code of Civil Procedure provides that any interested party has the right to request by means of a court decision, the recognition (vërtetimin) of a fact, whose documentary evidence has disappeared, been lost and cannot be created again or cannot be obtained in any other way, provided that such a fact is material to the emergence, change or cessation of personal or property rights.
3. Domestic practice
The domestic practice of the Commission on Property Restitution and Compensation (replaced by the Agency) has been uniform in that it used to recognise a claimant’s property rights over a plot of land, once the claimant was in possession of a court decision which recognised the legal fact of the existence of property rights.
The Supreme Court has enunciated the Commission’s practice in some of its recent decisions (for example, decision no 746/2007 of 31 May 2007, decision no. 15/2008 of 18 January 2008; and decision no. 304/1998 of 29 May 2008). However, in its decisions no. 746/2007 of 31 May 2007 and 98/2008 of 14 February 2008 in relation to a property dispute, the Supreme Court added that “a court decision taken pursuant to Article 388 of the Code of Civil Procedure should not be construed as binding upon the administrative authorities, but as a guiding document to enable them to take a decision in compliance with the law and the documents they possess.” In decision no. 749/2007 of 31 May 2007 the Supreme Court added that “such a court decision shall be examined in combination with additional supporting documents by the Agency, which shall finally decide to uphold or dismiss the applicant’s request [about the recognition of his property rights]”.
Without invoking any particular Convention Article, the applicant seemed to rely on Article 1 of Protocol No. 1 to the Convention in so far as the authorities had not recognised her mother’s property rights on the basis of the Lushnjë District Court decision of 16 February 1995.
By letter dated 15 June 2009 the Government’s observations were sent to the applicant’s representative, who was requested to submit any observations together with any claims for just satisfaction in reply by 25 July 2009.
On 29 July 2009 the applicant’s representative informed the Court by a letter of 14 July 2009 that the applicant wished to withdraw the application as she was unable to substantiate her claim concerning the property rights.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue her application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Early Nicolas Bratza