AS TO THE ADMISSIBILITY OF
by Qerim JAKUPI
The European Court of Human Rights (Fourth Section), sitting on 1 December 2009 as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 17 March 2003,
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, Mr Qerim Jakupi, is an Albanian national who was born in 1937 and lives in Lushnjë. He is represented before the Court by Mr A. Shehu, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agents, Mr S. Puto and Ms B. Bulica.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 16 April 1992 the Lushnjë City Council granted the applicant a building permit to erect a temporary construction. The applicant used it to establish a café-bar. The permit, however, did not stipulate the duration of its validity.
In 1993 the Urban Planning Act (“the 1993 Act”) was enacted. It provided that building permits for temporary constructions had a validity of one year. The 1993 Act was repealed by the Urban Planning Act 1998 (“the 1998 Act”), which made the same provision for the validity of building permits in relation to temporary constructions.
On 23 December 1999 the Fier District Construction Police (Policia Ndërtimore – “the DCP”) decided to institute administrative proceedings against the applicant for alleged breaches of the 1998 Act’s provisions. Consequently, on 2 February 2000 the DCP found that the one-year validity period of the applicant’s building permit had been considerably exceeded, in violation of the 1998 Act. It also found that it was located on a green public area in breach of the 1998 Act. Finally, the DCP ordered the demolition of the applicant’s construction.
On an unspecified date in February 2000 the applicant filed a motion against the DCP’s decision with the National Construction Police (“the NCP”) – the highest competent administrative body. He argued that the building permit issued in 1992 was for an unlimited duration. Furthermore, he contended that the construction was lawful and that the uninterrupted running of the business should be regarded as an implicit renewal of the permit by the authorities.
On 23 February 2000 the DCP requested the applicant to demolish the building voluntarily within 5 days from the date of its decision in accordance with the 1998 Act.
On 1 March 2000 the NCP rejected the applicant’s motion and upheld the DCP’s demolition order. The applicant was ordered to demolish the café-bar within five days. The respondent Government maintained that the order had been served on the applicant on an unspecified date by surface mail.
In the applicant’s submission, he stayed from 1 to 14 March 2000 in the former Yugoslav Republic of Macedonia for family reasons and was not served with, or notified of, either the decision or the order of the NCP.
On 10 March 2000, while the applicant was in the former Yugoslav Republic of Macedonia, the DCP demolished his café-bar. The police record (proces-verbal), in so far as relevant, stated:
“the DCP (...) closely followed [and inspected] the applicant’s employees’ voluntary execution [of the demolition order].”
The police record was not signed by the applicant’s employees. Neither did the document make reference to any stocktaking of the equipment present inside the café-bar before, during or after its demolition.
Judicial proceedings relating to the applicant’s property rights
On an unspecified date in 2000 the applicant lodged a claim with the Lushnjë District Court (“the District Court”). He challenged the lawfulness of the NCP’s demolition order and complained of arbitrariness on the part of the police force as he had not been informed of the demolition. Moreover, the applicant requested compensation for pecuniary loss in respect of the café-bar’s equipment, which amounted to 3 million Albanian leks (approximately 24,032 euros).
On 30 March 2001 the District Court held that the demolition order was lawful in so far as the applicant had failed to apply to the competent authority for renewal of the building permit to erect a temporary construction. The court found that no automatic renewal had been recognised by the 1998 Act and that the demolition of the building was also in accordance with the Construction Police Act. Moreover, the District Court dismissed as unsubstantiated his claims relating to the arbitrariness of the police force and their responsibility for the alleged damage caused by the demolition of the café-bar. With regard to the loss of the café-bar’s equipment, it found the applicant partly responsible. By failing to comply with the police order, he had contributed to the damage caused to his property. Lastly, the court found that responsibility for the damage caused by the loss of the café-bar’s equipment lay with the employees who had carried out the demolition.
On an unspecified date in 2001 the applicant appealed to the Fier Court of Appeal (“the Court of Appeal”).
On 8 June 2001 the Court of Appeal upheld the District Court’s judgment. It found that the applicant had been responsible for causing the damage in so far as he had decided to go abroad on 1 March 2000 at the time when he had had notification of the impending demolition of the bar. Moreover, the court held that the applicant had not demonstrated any direct liability on the part of the police force for pecuniary loss.
The applicant appealed to the Supreme Court. He claimed that his premises had been erected on the strength of a temporary building permit which did not stipulate the period of validity. Consequently, he had been a bona fide owner and user of the café-bar throughout this time. The applicant alleged that the Construction Police had overstepped its powers in that they had acted in the place of the Council for Territorial Planning as regards the issuance of a demolition order for the premises. The applicant also submitted that the lower courts had not examined whether the demolition order had been duly served on him. Finally, the applicant questioned the Construction Police’s actions resulting in his dispossession of the café-bar’s equipment and the total lack of compensation.
On 20 May 2002 the Supreme Court decided to dismiss his appeal, stating that the grounds of the appeal fell outside the scope of Article 472 of the Code of Civil Procedure (“the CCP”).
On 23 July 2002 the applicant appealed to the Constitutional Court. He relied on the same grounds of appeal as before the Supreme Court.
On 27 September 2002 the complaint was declared inadmissible by a bench of three judges of the Constitutional Court, for failure to comply with Article 131 (f) of the Constitution.
B. Relevant domestic law and practice
The relevant domestic legal provisions read as follows:
1. The Constitution
“1. The right of private property is guaranteed.
“1. The freedom, property and rights recognised in the Constitution and by law may not be withdrawn without due process.
2. In the protection of his constitutional and legal rights, freedoms and interests, or in defending against 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.”
“The Constitutional Court decides 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.”
Article 134 §§ 1 (f) and 2
“1. The Constitutional Court may initiate proceedings only at the request of:
(f) political parties and other organisations;
2. The entities designated in the first paragraph, letters ... (f) and (g), may lodge applications only on issues connected with their interests.”
The Constitutional Court’s case-law on the right to a fair hearing
An individual may lodge a complaint with the Constitutional Court on the basis of Article 131 (f) of the Constitution alleging a breach of his right to a fair hearing. The Constitutional Court has interpreted the right to a fair hearing as encompassing the right of access to a court (see, for example, decisions nos. 4/05, 10/07, 7/08); the right to enjoy equality of arms and the right to notification of acts of a court (see, for example, decisions nos. 11/05, 12/05, 8/06, 5/07, 6/07, 80/07, 1/08); the right to an independent and impartial tribunal (see, for example, decisions nos. 16/05, 36/05, 12/07); and, the right to reasoned judgments (see, for example, decision no. 33/05).
the event the Constitutional Court finds a violation of the right to
a fair hearing, it quashes the lower courts’ judgments and
remits the case for
2. Code of Civil Procedure
Articles 324-333 govern the adjudication of administrative disputes, following exhaustion of all administrative remedies. Article 324 provides that a party may bring an action before a court with a view to revoking or amending an administrative decision. Under Article 325 a party must argue that the decision is unlawful and that his or her own interests and rights have been violated directly or indirectly, individually or collectively.
With regard to the appeal procedure before the Supreme Court, the Code of Civil Procedure, in so far as relevant, reads as follows:
“Decisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision. ...”
“An appeal [to the Supreme Court] shall be declared inadmissible if it contains grounds other than those provided for under the law. The inadmissibility of appeals shall be decided upon in deliberations in camera.”
3. Code of Administrative Procedure (“CAP”)
Articles 78 and 79 of the CAP govern the adoption of interim measures.
Article 78 of the CAP provides that the administrative body responsible for taking the final decision may impose interim measures when it considers that the failure to take certain actions would cause serious and irreparable damage to public interests. Interim measures may be adopted on the initiative of the administrative body or at the request of the complainant. The decision should be reasoned and contain a fixed timeframe.
Article 79 of the CAP provides for the grounds on which an interim measure is lifted.
4. The Urban Planning Act 1998 (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, recently, by Law no. 9843 of 17 December 2007) (“The 1998 Act”)
The 1998 Act, which repealed the 1993 Act, entered into force on 25 October 1998. It lays down the general rules governing the location and architecture of constructions in Albania. It provides for the establishment of the district Councils for Territorial Planning (“CTPs”) and the National CTP.
Section 58 provides that permits to erect temporary buildings have a one-year validity. Such permits are issued only in the event of natural disasters or similar occurrences. Section 62 stipulates that district CTAs are not empowered to authorise temporary constructions in green public areas. Under section 75 the Construction Police is empowered to impose fines and order the demolition of unlawful buildings. Moreover, the Act provides for the immediate destruction of illegal buildings in public areas.
Section 82, as in force at the material time, stated that the DCP’s decision could be appealed against within five days to the NCP, which was obliged to decide within ten days. The NCP’s decision could be appealed against to the District Court within five days from its notification. Section 83 provided that an appeal to the court did not have suspensive effect for the execution of administrative decisions.
The 1998 Act does not contain a provision to the effect that it is applicable to events prior to its entry into force.
The case-law of the Albanian Constitutional Court on the Urban Planning Act
In its decision no. 2 of 25 January 1999 about the unconstitutionality of certain articles of the 1998 Urban Planning Act, the Constitutional Court found, inter alia, that Articles 58 and 75 were not unconstitutional and did not breach constitutional principles.
decision no. 32 of 24 November 2003, referring to the suspension of
the execution of administrative acts of, inter alia, the
Construction Police, as provided for in the 1998 Act, the
Constitutional Court held that the suspension of the execution of
administrative acts was amenable to judicial review. The domestic
courts may decide on the suspension of the execution of
administrative acts, provided that the petitioner brings an action
against the administrative act and simultaneously requests the
suspension of execution thereof, in compliance with the relevant
324-326 and 329) of the CCP.
5. The Construction Police Act 1998 (Law no. 8408 of 25 September 1998
The Construction Police Act 1998 established the Construction Police who were responsible for supervising compliance with and the lawfulness of the urban planning legislation. The Construction Police was empowered to impose fines, decide on the suspension of construction work and order the demolition of unlawful constructions (section 3 and 5).
The Construction Police Act 1998 was repealed in 2007.
The applicant complained under Article 6 § 1 of the Convention that the proceedings before the domestic courts had been unfair in so far as they had failed to address his grounds of appeal and give reasoned decisions. Under Article 1 of Protocol No. 1 to the Convention, the applicant complained about a violation of his right to the peaceful enjoyment of his possessions given the loss of the equipment from his café-bar.
The relevant part of Article 6 § 1 of the Convention reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Government argued that the applicant’s constitutional appeal
contained mostly points of fact, relying on the assessment of
evidence. It did not refer to any fair hearing issues as provided for
in Article 42 § 2 of the Constitution or under Article 6 §
1 of the Convention. It was for these reasons that the Constitutional
Court declared the applicant’s constitutional appeal
inadmissible as being “outside
its jurisdiction”. Accordingly, the final decision of the
domestic courts is the Supreme Court’s decision of
20 May 2002. Consequently, they maintained that the application should be declared inadmissible for having been submitted beyond the six-month time-limit, its date of introduction having been 17 March 2003.
The applicant submitted that in compliance with the domestic legislation, he was obliged to exhaust all domestic remedies before having recourse to this Court. As such, he appealed to the Constitutional Court for the breach of his right to a fair hearing. The Constitutional Court’s inadmissibility decision, in the applicant’s opinion, cannot shift the date of the last domestic court’s decision to 20 May 2002.
The Court must, in the first place, determine whether the Constitutional Court constitutes an available and effective remedy for the purpose of Article 6 of the Convention.
The Court notes that under Article 131 (f) of the Constitution, the Constitutional Court is called upon to examine alleged violations of the right to a fair hearing in respect of a petitioner’s constitutional rights. This remedy is exceptional in that the Constitutional Court is not called upon to examine the merits of a Convention right, but rather to examine an alleged breach of the right to a fair hearing about a particular constitutional right. Within this limited scope the Constitutional Court is called upon to examine the entirety of the proceedings, from the proceedings before the court of first instance up to the proceedings before the Supreme Court. The decision of the Constitutional Court, which has the competence to quash decisions of the lower courts, is legally binding and enforceable (see Balliu v. Albania (dec.), no. 74727/01, 30 September 2004). The Court therefore concludes that for the purposes of Article 35 § 1 of the Convention a constitutional appeal is an effective remedy and is thus required for exhaustion purposes in respect of an applicant’s right to a fair hearing under Article 6 of the Convention.
The Court reiterates that it is not, however, within its province to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see, for example, Grayson and Barnham v. the United Kingdom, nos. 19955/05 and 15085/06, § 42, 23 September 2008).
Assessing the circumstances of the instant case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly.
It transpires from the case file that the applicant had the benefit of adversarial proceedings. He made his submissions to the domestic courts in person and the national courts decided on the merits of the case after examining and assessing all the evidence before them. In so far as the applicant contended that he had not been served with a copy of the demolition order, the Court notes that he was informed of the DCP’s order of 2 February 2000, as a result of which he appealed to the NCP. Since an appeal to the NCP does not have automatic suspensive effect for the execution of the demolition order, the applicant should have been capable of envisaging the course of the impending action instead of allegedly leaving the country. Moreover, the applicant did not seek that the NCP adopt interim measures in accordance with Article 78 of the CAP, as a result of which the NCP would have been prompted to consider and examine the existence of “a serious and irreparable damage”.
The domestic courts interpreted and applied the 1998 Act in respect of temporary constructions as it stood at the time. In this respect, the Court considers that, under the circumstances, the domestic courts’ decisions to address the alleged unlawfulness of a temporary construction was in accordance with the requirements of urban planning legislation, including the obligation to obtain a valid one-year building permit. It can be said that the domestic courts’ decisions in the applicant’s case served the interests of the rule of law, which is one of the fundamental principles of a democratic society and is inherent in all the Articles of the Convention (see Amuur v. France, 25 June 1996, § 50, Reports of Judgments and Decisions 1996 III).
The Court considers that the factual and legal reasons for the national courts’ findings were set out in the judgments of the District Court of 30 March 2001 and the Court of Appeal of 8 June 2001. The limited reasons given by the Supreme Court in its decision of 20 May 2002, however, implicitly indicated that the applicant had not raised one of the points of law provided for in the relevant domestic provision, which is an admissibility requirement for leave to appeal to be granted. The Court observes that where a Supreme Court refuses to accept a case on the basis that the legal grounds for such a case are not made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention (see, mutatis mutandis, Nerva v. the United Kingdom (dec.), no. 42295/98, 11 July 2000). Moreover, since the applicant’s constitutional appeal contained the same grounds of appeal as those relied upon before the Supreme Court, the same reasoning could be said to apply in respect of the Constitutional Court’s decision of 27 September 2002.
Finally, the Court notes that the applicant failed before the national courts to raise, at least in substance, any complaint concerning the retrospectiveness of the 1998 Act.
For the above reasons, the Court considers that the applicant’s complaint under Article 6 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 and therefore inadmissible in accordance with Article 35 § 4 of the Convention.
Article 1 of Protocol No. 1 to the Convention reads:
“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.”
In the light of its findings under Article 6 § 1 of the Convention, the Court reiterates that for the purposes of Article 35 § 1 of the Convention a constitutional appeal is not an effective remedy and is thus not required for exhaustion purposes in respect of an applicant’s right to the peaceful enjoyment of his possessions. The Supreme Court’s ruling would be considered final for the purposes of Article 35 § 1 of the Convention. Therefore, applications must be lodged within six months from the date of such decision.
The Court considers that the final domestic court’s judgment in respect of the applicant’s complaint under Article 1 of Protocol No. 1 is the Supreme Court’s decision of 20 May 2002. The applicant lodged this complaint on 17 March 2003, that is more than six months after that decision. It should therefore be declared inadmissible in accordance with Article 35 §§ 1 and 4 of the Convention for having been lodged out of time.
For these reasons, the Court unanimously
Declares the application inadmissible.
Aracı Nicolas Bratza
Deputy Registrar President