AS TO THE ADMISSIBILITY OF
by Ali TELHAI
The European Court of Human Rights (Fourth Section), sitting on 17 November 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 11 July 2007,
Having deliberated, decides as follows:
The applicant, Mr Ali Telhai, is an Albanian national who was born in 1945 and lives in Berat.
A. Background to the case
On 15 April 1993 the Property Restitution and Compensation Act (“the Property Act 1993”) came into force. The aim of this legislation was to return immovable property which had been nationalised by the former communist authorities to its former owners or award compensation in lieu.
The main changes to the Property Act 1993 came about as a result of two laws which entered into force respectively in 2004 and 2006 (see, for more details, Gjonbocari and Others v. Albania, no. 10508/02, 23 October 2007; Driza v. Albania, no. 33771/02, 13 November 2007; and Ramadhi and 5 Others v. Albania, no. 38222/02, 13 November 2007).
“The Property Act 2004”, which repealed the Property Act 1993, provided that a new law would be passed in respect of the restitution and compensation of movable property which had been nationalised. However, no such law has been enacted to date.
B. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 1956 the Executive Committee of the Përmet People’s Council (Komiteti Ekzekutiv i Këshillit Popullor të Rrethit Përmet) decided to confiscate the applicant’s family’s movable property, which consisted of livestock (bagëti) and other materials such as gold, copper, silver and tin.
When communist rule ended, the applicant sent numerous letters to State institutions requesting compensation for his family’s confiscated property. On 29 August 1996 the Ministry of Finance informed the applicant that it was the Council of Minister’s responsibility to establish procedures for compensating formerly politically persecuted people for expropriated movable property. By another letter of 9 June 1998 the Ministry of Finance informed the applicant that the information he had submitted was incomplete and that they were unable to examine his claims or determine a means of payment.
On an unspecified date the applicant appears to have made an unofficial request to the Përmet District Court. By a letter of 18 January 2006 the President of the Përmet District Court informed the applicant that a new law on the restitution of and compensation for movable property was expected to be adopted. The President advised the applicant that if he wished to file a civil action, he should do so in compliance with the criteria set out in the Code of Civil Procedure.
C. Relevant domestic law
The Property Act 2004 (Law no. 9235 of 29 July 2004)
Section 5 of the Property Act 2004, which is still in force, provides:
“The restitution and compensation of movable property shall be governed by a separate law (me ligj të veçantë).”
Other relevant provisions of the Property Act have been described in the judgments of Gjonbocari and Others, Driza, and Ramadhi and Others, all cited above.
The applicant complains under Article 1 of Protocol No. 1 to the Convention that he has been deprived of the right to compensation on account of the State’s failure to adopt the relevant domestic laws.
The applicant maintained that the failure of the State to provide him with compensation for the nationalisation of his movable property infringed his right to the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1, 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.”
The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. The concept of “possessions” has an autonomous meaning which is independent of the formal classification in domestic law (Former King of Greece and Others v. Greece [GC], no. 25701/94, § 60, ECHR 2000-XII). “Possessions” can be “existing possessions” or assets, including claims in respect of which an applicant can argue that he has at least a “legitimate expectation” (which must be more concrete than a mere hope) that they will be realised, that is, that he or she will obtain effective enjoyment of a property right (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, ECHR 2002-VII, § 69, and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX). A claim may be regarded as an asset only when it is sufficiently established to be enforceable (see Kopecký, cited above, § 49; and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59). By way of contrast, the hope of recognition of the existence of an old property right which it has long been impossible to exercise effectively cannot be considered as a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001 VIII). In the Court’s view, a claim is conditional when it depends upon an uncertain future event. No “legitimate expectation” can come into play in the absence of a claim sufficiently established to constitute an asset.
Moreover, Article 1 of Protocol No. 1 cannot be interpreted as imposing any general obligation on the Contracting States to return property which was transferred to them before they ratified the Convention. Nor does Article 1 of Protocol No. 1 impose any restrictions on the Contracting States’ freedom to determine the scope of property restitution and to choose the conditions under which they agree to restore property rights of former owners. On the other hand, once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement (see, among many other authorities, Beshiri and Others v. Albania, no. 7352/03, §§ 80-82, 22 August 2006).
In the present case the applicant’s action did not concern “existing possessions” and the applicant did not have the status of an owner but was merely a claimant, like the applicants in the case of Gratzinger and Gratzingerova, cited above.
It therefore remains to be determined whether the applicant could be considered to have had a “legitimate expectation” that a current, enforceable claim amounting to an asset would be determined in his favour.
The Court notes that the claim, as asserted by the applicant, is based on section 5 of the 2004 Property Act. To date the Government have not adopted any laws on the restitution of and compensation for nationalised movable property. Nor does it appear that the domestic courts entertained any claims for the restitution of and compensation for movable property nationalised by the former communist regime.
The applicant’s claim is contingent upon future legislation which may be enacted by the Government on an unspecified date. The belief that a law on the restitution of and compensation for movable property will be enacted cannot be regarded as a legitimate expectation for the purposes of Article 1 of Protocol No. 1. The Court considers that there is a difference between a mere hope of restitution and compensation, however understandable that hope may be, and a legitimate expectation, which must be more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision (see Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, § 31, Series A no. 332).
It results that the applicant has neither a right nor a claim amounting to a legitimate expectation in the sense of the Court’s case-law to obtain restitution of the property in question, and therefore no “possession” within the meaning of Article 1 of Protocol No. 1.
It follows that this part of the application is incompatible ratione materiae and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza