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MULLAI AND OTHERS v. ALBANIA - 9074/07 [2010] ECHR 362 (23 March 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/362.html
Cite as:
[2010] ECHR 362
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FOURTH
SECTION
CASE OF
MULLAI AND OTHERS v. ALBANIA
(Application
no. 9074/07)
JUDGMENT
(merits)
STRASBOURG
23
March 2010
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 Mullai and Others v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and
Fatoş
Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 2 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 9074/07) against the Republic
of Albania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by seven Albanian nationals, Mrs Nesime Mullai,
Mr Astrit Daci, Mrs Mediha Hoti, Mrs Suzana Zereliu, Mrs Nermin
Daci, Mrs Etleva Mullai and Mrs Eva Pinguli (“the individual
applicants”) and by Teknoprojekt sh.p.k. (“the applicant
company”), a limited liability company, on 1 December 2006.
The
applicants were represented by Mr S. Puto, a lawyer practising in
Tirana. The Albanian Government (“the Government”) were
represented by their then Agent, Ms S. Meneri.
The
applicants alleged a violation of Article 6 § 1 of the
Convention and of Article 1 of Protocol No. 1 to the Convention on
account of the quashing of a final judgment, the authorities' failure
to enforce a final court judgment and the excessive length of the
proceedings.
On
12 September 2007 the President of the Section to which the case was
allocated decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it was decided to examine the merits of the application
at the same time as its admissibility. On the same date the
application was given priority under Rule 41 of the Rules of Court.
The
applicants and the Government each filed written observations (Rule
59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The individual applicants were born in 1938, 1938,
1926, 1963, 1942, 1970 and 1954 respectively and live in Albania, the
United States of America and Italy.
The applicant company is incorporated under Albanian
law and is registered in Tirana.
A. Proceedings concerning the restitution of property
The
individual applicants are the heirs of a certain Mr M. who, in 1947,
was the owner of a three-storey villa and an adjacent plot of land
situated in the centre of Tirana. On an unspecified date in 1947 the
authorities confiscated the property, which remained in their
possession until 1994.
On
30 December 1994, following the individual applicants' request in
accordance with the Property Act 1993, the Tirana Commission on
Restitution and Compensation of Properties (“the Commission”)
allowed their claim to the villa and 1,100 sq. m of land. The
Commission rectified that decision on 8 August 2002, recognising the
individual applicants' property rights to a plot of land measuring
1,515 sq. m, which corresponded to the original property. The
property title was entered in the Land Register.
From
1996 to 1998 the property concerned was leased by the individual
applicants to the Libyan Embassy in Tirana.
B. Proceedings concerning the building permit
1. Administrative proceedings
On
30 April 1998 the individual applicants entered into an agreement
with the applicant company for the construction of a tower block on
their property. Under that agreement the applicant company was given
authority to obtain the administrative authorisations needed for the
construction. A final contract was to be concluded when the requisite
permit had been obtained.
On 23 October 1998 and 22 December 1998 the Tirana
Municipality's Council for Territorial Planning (Këshilli i
Rregullimit Territorit të Bashkisë së Tiranës –
“the municipal CTP”) granted the applicant company a
planning permit and a building permit authorising it to erect a
sixteen-storey building on the property. Consequently, on
15 July
1999 the Tirana Municipality Technical Council (Këshilli
Teknik i Bashkisë së Tiranës) authorised the
applicant company to demolish the existing three-storey villa and
erect the new construction in its place.
On
an unspecified date in 1999 the applicant company demolished the
villa and developed the site according to the permits and plans
approved by the Tirana Municipality (“the Municipality”).
On
31 August 1999, while the construction work was under way, the
Prefect of Tirana, (“the Prefect”) issued a notice
suspending the work. The notice stated that the building permit
should have been granted by the national Council for Territorial
Planning (“the national CTP”) and that the Municipality
had exceeded its competence by authorising the construction of such a
large building in the centre of Tirana (see paragraph 59 below).
On
6 September 1999 the Municipality informed the Prefect that the
building permit was in order and had been issued on the basis of the
relevant legal provisions. Notwithstanding this, on 4 October 1999,
the Tirana Construction Police (Policia Ndërtimore)
enforced the Prefect's notice and suspended work on the construction
site.
On
12 January 2000, acting on the applicant company's request, the
Prefect annulled his previous notice and the building work resumed.
On 22 January 2000 the Minister of Public Works (“the
Minister”) ordered the suspension of the construction work on
the basis that the municipal CTP's decisions (see paragraph 12 above)
had to be examined and approved by the national CTP. On the same day
the Tirana Construction Police enforced the Minister's order by
suspending the work again.
On
26 January 2000 the applicant company unsuccessfully filed an
application with the Director of the national Construction Police to
have the suspension order lifted.
On
9 February 2000 the national CTP decided that a legal interpretation
of the validity of the building permit was needed, stating that the
permit had been adopted on the basis of the Urban Planning Act 1993,
which had been repealed at the material time. It did not revoke the
suspension order. Nor did the decision explicitly indicate the body
that was to be responsible for the legal interpretation. However, it
appears that the decision was addressed to the Municipality,
requesting it to issue a new urban plan of the area and to inform the
national CTP accordingly.
On
13 March 2000 and 3 May 2000 the Ministry of Public Works requested
the Tirana Municipality to comply with the national CTP's decision.
According
to the individual applicants and the applicant company, on an
unspecified date in 2000 the Municipality confirmed the validity of
its decisions of 23 October 1998 and 22 December 1998. However, no
substantiating document was produced.
2. The judicial proceedings concerning the lawfulness of the
Minister's order and the action of the Construction Police of 22
January 2000
On an unspecified date in 2000 the applicant company
challenged the validity of the above acts (see paragraph 17 above).
On
11 July 2000 the District Court dismissed their application. In its
reasoning it found that the building permit was null and void as it
had been issued on the basis of the Urban Planning Act 1993, which
was not in force at the material time. The operative part of the
judgment did not state that the building permit was null and void.
On
4 January 2001 the Tirana Court of Appeal (“the Court of
Appeal”) quashed the District Court's judgment. It upheld the
applicant company's grounds of appeal and annulled the Minister's
order and the action of the Construction Police.
On 29 March 2001, following an appeal by the
Construction Police, the Supreme Court quashed the Court of Appeal's
judgment and upheld that of the District Court. The Supreme
Court found that the prefect's decision of 12 January 2000 was ultra
vires in so far as the proceedings were pending before the
national CTP. Given the circumstances, the Minister and the Tirana
Construction Police had suspended the work on 22 January 2000. The
judgment stated the following:
“(...) The court notes that the national CTP's
decision is not final. It does not determine the merits of the case
at issue, but it implies that they will be determined once the tasks
emanating from the decision have been completed. Point (a) of the
national CTP's decision [the legal interpretation of the municipal
CTP decision of
22 December 1998] questions the lawfulness of the
building permit issued by the municipal CTP. It does not, however,
take a final decision on the matter, even though it should have done
so. It is not clear as to who is to make the legal interpretation of
the municipal CTP decision. (...)
The contents of points (b) [the preparation of a new
urban plan of the area] and (c) [the Municipality's obligation to
comply with the national CTP decision and inform it accordingly] of
the national CTP decision reinforce the conclusion that the decision
is not final.
The final decision shall be taken after the municipal
CTP issues a new urban plan of the area, which shall be subject to
examination by the national CTP.
(...)
It is incumbent upon the national CTP to fully,
unequivocally and finally address the above issues. Only after the
administrative remedies have been exhausted, with the help of the
national CTP (...), can the matter be referred to the courts for the
protection of property rights and other rights in rem of
parties bordering on the plot of land (...).
The prefect represents the Council of Ministers [the
Central Government] to the local government. He has been invested
with powers by law. However, when an issue has been transferred to
the Central Government, even by his own motion, he cannot exercise
any other right. Otherwise, that would be considered an excess of
powers.”
However, in the same judgment the Supreme Court went
on to declare the building permit null and void for the following
reasons:
“(...) It results that at the time the building
permit was granted, the Urban Planning Act 1993, which redefined the
composition of the municipal CTP, had been repealed. Article 19 of
the new [Urban Planning] Act of 1998 establishes the new composition
of the municipal CTP, made up of 21 members, stipulating the
respective functions and tasks to be carried out.
(...) The new [1998] Act entered into force on 25
October 1998.
Given that the new Act does not contain any transitional
provisions which would render legitimate the continuation of the
municipal CTP's work on the basis of the 1993 Act, the new
[municipal] CTP should have been established in compliance with the
composition and selection criteria of its members laid down in the
new [1998] Act.
Consequently, any decision taken by the previous CTP [on
the basis of the Urban Planning Act 1993] is considered null. A
decision taken by an organ which has been revoked by law and on the
basis of a repealed law is null and, as such, cannot yield any legal
consequences.
That being so, the [applicant company's] building permit
of 22 December 1998 is considered null and void.
In view of the foregoing, the Civil Bench of the Supreme
Court concludes that the District Court's judgment was not ultra
vires when it considered the building permit null and void, even
though this was not part of the object of those proceedings.
[The District Court] did not examine the [applicant
company's] right to continue the building work as this would have
been beyond the scope of the examination of the administrative
dispute before it.”
The operative part of the Supreme Court's ruling did
not contain any mention of the invalidity of the building permit. The
judgment became final on the same day as none of the parties filed a
complaint with the Constitutional Court.
C. The judicial proceedings initiated by the Swiss
Embassy in Tirana (“the Embassy”)
On
19 March 2001 the Embassy, whose premises are adjacent to the
construction site, challenged the validity of the building permit.
The individual applicants intervened in the proceedings as third
parties (ndërhyrës dytësor).
On
28 May 2002 the District Court declared the building permit null and
void. Without explicitly referring to the Supreme Court's ruling of
29 March 2001 (see paragraph 26 above), the reasoning of the
District Court stated that the building permit had been issued on the
strength of the Urban Planning Act 1993, which had been repealed at
the material time.
The
individual applicants and the applicant company appealed. On
3
March 2003 the Court of Appeal requested the national CTP to rule on
the validity of the building permit in the light of the Supreme
Court's finding of 29 March 2001 that all administrative remedies had
to be exhausted (see paragraph 25 above).
On 18 June 2003 the national CTP upheld the validity
of the building permit issued by the Municipality. In its letter to
the Court of Appeal the Minister of Territorial Planning, acting as
the deputy chairman of the national CTP, indicated that the judicial
proceedings pending before the Court of Appeal would examine and
finally resolve the dispute (është procesi gjyqësor
që do të bëjë vlerësimin dhe do të
zgjidhë përfundimisht konfliktin e paraqitur në lidhje
me këtë objekt).
On 3 October 2003 the Court of Appeal quashed the
District Court's judgment and dismissed the case. In its reasoning,
it stated that the Embassy had lodged its action outside the
time-limits prescribed by the Code of Civil Procedure. It appears
that the building permit was declared lawful, although no mention of
this was made in the operative part of the judgment. The Court of
Appeal did not make any reference to the reasoning of the Supreme
Court's judgment of 29 March 2001, which had declared the building
permit null and void (see paragraph 26 above). There was no order in
the judgment for the construction work to be resumed.
1. Developments following the Court of Appeal's judgment of 3
October 2003
On
15 September 2003 the applicant company requested the Construction
Police to cancel the order for the suspension of building work on the
strength of the national CTP's decision of 18 June 2003 (see
paragraph 31 above).
The
Construction Police requested the applicant company to update the
file relating to the work by presenting ex novo the necessary
documents in order for them to consider the request. The applicant
company submitted the documents as requested. No response from the
police was received.
On
29 December 2004, following the applicant company's request for
intervention, the Albanian Ombudsperson (Avokati i Popullit)
acknowledged that the building permit had been declared null and void
by the Supreme Court's judgment of 29 March 2001 and refused to
intervene.
2. Proceedings before the Supreme Court
On 20 April 2005, following an appeal by the Embassy,
the Supreme Court upheld the Court of Appeal's judgment of 3 October
2003. It found that the Embassy did not have locus standi to
challenge the impugned building permit and reasoned, in so far as
relevant, as follows.
“The building permit relates to an
administrative-legal relationship between the construction company
[the applicant company] and the national CTP. The action filed by the
plaintiff [the Embassy] cannot pertain outside the context of an
action concerning the cessation of interference with its property
rights (...)
Article 32 (a) of the Code of Civil Procedure
stipulates: “A civil legal action is lodged in order to seek
the restoration of a right or legitimate interest that has been
violated.” (...)
In the instant case, no legitimate interest within the
meaning of the provision cited above has been invoked. [The Embassy]
has not argued any violation or denial of a right directly caused to
it by the defendant's building permit. Since the lodging of the civil
action and throughout the [court] proceedings, [the Embassy] has
merely set out some procedural violations associated with the
granting of the building permit. The existence or otherwise of these
violations cannot impinge upon a claimant's subjective right. The
claimant would have locus standi if it alleged that the
company's construction work resulted in an infringement of its
property rights. Even though [the Embassy] initially introduced such
a claim, it subsequently withdrew it and did not refer it to the
court.
(...) the court concludes that [the Embassy] lacks a
legal interest and therefore lacks locus standi to lodge the
civil action.
(...)
The claimant argued that the Court of Appeal had been
wrong to accept that the national CTP had ruled on the validity of
the building permit as no decision had been issued by that authority.
This complaint relates to the determination of the merits of the
case, on which the court deems it inappropriate to rule one way or
the other.
In the light of the above conclusions, there are no
other legal grounds to challenge the Court of Appeal's judgment.”
In its ruling, the Supreme Court did not examine the
lawfulness of the building permit. The judgment became final on the
same day, as none of the parties filed a complaint with the
Constitutional Court.
3. Developments following the Supreme Court's judgment
of 20 April 2005
On
22 June 2005 the applicant company, considering that the lawfulness
of the building permit had been upheld by the Supreme Court's
judgment of 20 April 2005, and given the inactivity of the
Construction Police, informed the Municipality that it had decided to
resume the construction notwithstanding the fact that a suspending
order was still in force.
On 23 June 2005 the Municipal Police (Policia
Bashkiake) inspected the construction site and ordered the
suspension of work until such time as security measures were properly
observed.
On 29 June 2005 the Municipal Police extended the
suspension order on account of some breaches of urban planning rules.
In a letter of 4 July 2005 the applicant company provided
explanations concerning the alleged breaches.
On
30 November 2005, following the applicant company's request for
permission to resume the building work, the Construction Police
informed them that the request concerning the dispute between the
applicant company and the Municipal Police was outside their
jurisdiction.
D. The second set of judicial proceedings initiated by
the Embassy
On
an unspecified date in 2005 the Embassy initiated another set of
proceedings with the District Court alleging that the new
construction breached its property rights.
On 14 December 2005 the District Court delivered its
judgment finding that the new building would not comply with urban
planning distances and therefore breached the Embassy's property
rights. The District Court ordered the suspension of construction
work until the final determination of the dispute. It relied on the
Supreme Court's judgment of 29 March 2001, which had declared the
building permit null and void.
On
an unspecified date between 2005 and 2006 the applicant company
challenged the lawfulness of the District Court's judgment before the
Court of Appeal, arguing that the Court of Appeal's judgment of
3
October 2003, which had become final, confirmed the validity of the
building permit (see paragraph 32 above). The District Court's
judgment of 14 December 2005 had quashed that final ruling, thereby
contravening the principle of legal certainty.
Two
months later, the District Court's judgment had not yet been served
on the applicant company. On 15 March 2006, following complaints by
the applicant company, the High Council of Justice informed them that
the case had been sent to the Ministry of Justice for the appropriate
disciplinary proceedings to be taken against the District Court
judges who had failed to deliver the judgment. In a letter of 5
April 2006 the applicant company complained to the Court of Appeal
that they had not yet been served with a copy of the District Court's
judgment. The case file indicates that the judgment was served on
them at some point after 5 April 2006.
On 13 June 2007 the Court of Appeal quashed the
District Court's judgment. It found that there had been no
interference with the Embassy's property rights since the
construction had barely started, so there was no building to comply
with urban planning distances. It further held that as the Supreme
Court had found in its judgment of 29 March 2001 that the building
permit was not valid, there could be no interference with the
Embassy's property rights. It finally dismissed the case.
On an unspecified date in 2007 the Embassy appealed to
the Supreme Court. On 14 July 2009 the Supreme Court declared the
appeal inadmissible in accordance with Article 472 of the Code of
Civil Procedure (no valid grounds of appeal).
Developments following the Court of Appeal's judgment of
13 June 2007
On 1 August 2007 the Tirana Construction Police
informed the Embassy and the Ministry of Public Works that they would
comply with the Court of Appeal's judgment of 13 June 2007, which, in
their opinion, had confirmed the lawfulness of the applicant
company's building permit.
On
21 August 2007, at the applicant company's request, the District
Court issued a writ of execution in respect of the Court of Appeal's
judgment of 13 June 2007.
On
an unspecified date in 2007 the applicant company resumed the
construction work, which was subsequently suspended by the
Construction Police on 11 September 2007 with the cooperation of the
police.
On
13 September 2007 the Municipal Construction Inspectorate (“MCI”)
requested the applicant company to provide some missing technical
documents.
On 19 September 2007, at the applicant company's
request, the Tirana prosecutor's office enquired about the lawfulness
of the action of the Construction Police of 11 September 2007 in the
absence of any written notice of the suspension of construction work.
The applicant company maintained that the validity of the building
permit had been acknowledged by the national CTP and confirmed by the
judgments of the Court of Appeal and the Supreme Court of 3 October
2003 and 20 April 2005, respectively.
On 24 September 2007 the MCI ordered the suspension of
the construction work because certain technical documents were
missing from the file. On 1 October 2007 the applicant company
appealed to the National Construction Inspectorate (“the NCI”).
On 30 October 2007 the NCI informed the applicant company that they
should submit their concerns to the MCI.
On
5 January 2008, noting that some technical documents were missing,
the MCI decided to suspend the work. There is no indication that an
appeal was filed against that decision. On 16 January 2008 the MCI
extended the suspension order for a period of sixty days.
On 18 March 2008 the MCI decided to stop the
construction work altogether and demolish what had already been
built. There is no indication that an appeal was filed against that
decision. Nor is there any information that the existing construction
has been demolished.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
56. The
Albanian Constitution, in so far as relevant, reads as follows:
Article 131
“The Constitutional Court shall decide: ... (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.”
B. 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, more recently, Law no. 9843 of 17 December
2007) (“The 1998 Act”)
The
1998 Act defines the general rules governing the location and
architecture of constructions in Albania. The Act entered into force
on 25 October 1998. Section 7 provides for the establishment of
the national CTP, presided over by the Prime Minister. Its
composition is determined by decision of the Council of Ministers
(section 8). The Ministry responsible for territorial planning
coordinates the work of the national CTP (section 12). Section 14
provides for the establishment of municipal CTPs.
The
1998 Act instituted a two-tier procedure for obtaining the necessary
permits. An application for planning permission (kërkesa për
shesh ndërtimi) should initially be submitted for
examination and approval by the Municipal CTP pursuant to section 39.
A building permit (leje ndërtimi) should then be obtained
pursuant to section 45. This is the sole legal document on the basis
of which construction work may start.
Section 9 of the 1998 Act empowered the national CTP,
amongst other things, to approve the urban study and building permits
in respect of constructions located in city centres. Under section 10
of the 1998 Act the national CTP was empowered to quash decisions
adopted by the municipal CTPs. By decision no. 29 of 21 December 2006
the Constitutional Court declared unconstitutional these parts of
section 9 and section 10, since they breached the constitutional
principle of decentralisation and local government autonomy.
C. The Construction Police Act 1998 (“the 1998 Police Act”)
as amended by the Construction Inspection Act 2007 (“the 2007
Police Act”) (Law no 8408 of 25 September 1998 as repealed by
Law no. 9780 of 16 July 2007)
The
1998 Police Act established the Construction Police, responsible for
supervising compliance with urban planning legislation. The
Construction Police were empowered to impose fines, decide on the
suspension of construction work and order the demolition of unlawful
constructions.
The
2007 Police Act repealed the 1998 Police Act and introduced the
Construction and Urban Planning Inspectorate, which operates at
municipal/communal level (“Municipal Construction Inspectorate
– the MCI”), at district (qark) level and at
national level (“National Construction Inspectorate – the
NCI”) (sections 3, 7 and 8).
The
duties of the MCI include the imposition of fees, the suspension of
construction work and the demolition of unlawful constructions
(section 5). The inspectors have the right to access and inspect
construction sites (section 12 and Council of Minister's decision no.
862 of 5 December 2007).
MCI
decisions are open to appeal before the NCI. An interested party may
take court action against a decision of the NCI. The court action
does not have suspensive effect on the execution of the impugned
administrative decision (section 14).
D. The Act on the Organisation and Operation of the Municipal and
Commune Police (“The Municipal Police Act”) (Law no. 8224
of 15 May 1997 as amended by Law no. 8335 of 23 April 1998)
The
Municipal Police Act provides for the establishment of the Municipal
Police, who answer to the Mayor and operate under the supervision of
the Prefect. Under section 8, the Municipal Police ensure the
effective implementation of acts and decisions of the Mayor and the
city council which relate to public order and maintenance of public
infrastructure. They prevent, stop or demolish unlawful
constructions, and prevent the unlawful occupation of plots of land,
buildings and property belonging to the municipality and ensure their
immediate evacuation (section 8 § 6).
E. Code of Civil Procedure
Articles
189-201 govern the participation of third parties in civil
proceedings. Article 195 provides that a third party has the right to
undertake all the same procedural steps as the main parties to the
proceedings, save for steps that concern the disposal of the object
of the civil action. Article 196 provides that the effect of a
decision taken after a third party's intervention extends equally to
the relationship between the third party and the claimant or the
defendant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants alleged a number of violations of Article 6 § 1 of
the Convention, including failure to enforce the Court of Appeal's
final judgment of 3 October 2003, a breach of the principle of legal
certainty as a result of the quashing of that final judgment and the
excessive length of the proceedings.
Article
6 § 1 of the Convention, in so far as relevant, reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time ... by [a] ... tribunal ...”
Admissibility
1. The parties' submissions
The
applicants complained about the non-enforcement of the Court of
Appeal's judgment of 3 October 2003, which they alleged had
established that the building permit was valid and that the building
work should continue.
The
Government submitted that the applicants had not complained before
the domestic courts about the non-enforcement of a final court
judgment, and that there had been no violation on account of the
authorities' failure to enforce a final court judgment.
The
applicants argued that the Court of Appeal's judgment of 3 October
2003 was a final judgment but had been quashed by the District
Court's judgment of 14 December 2005, violating the principle of
legal certainty.
The
Government contended that the object of the second and third sets of
proceedings differed. The validity of the building permit had been
finally determined by the Supreme Court's judgment of 29 March 2001.
The second set of proceedings had been dismissed by the domestic
courts because the Embassy did not have locus standi.
In
the applicants' view, the domestic proceedings had exceeded the
reasonable time requirement within the meaning of Article 6 § 1
of the Convention.
The
Government did not raise any objections concerning the admissibility
of this complaint.
The Court's assessment
a. The lack of legal certainty as regards domestic
courts' decisions
The
Court reiterates that it is master of the characterisation to be
given in law to the facts of the case. It does not consider itself
bound by the characterisation given by an applicant or a government
(see Guerra and Others v. Italy, 19 February 1998, § 44,
Reports of Judgments and Decisions 1998 I).
The
Court notes that the parties did not dispute the applicability of
Article 6 of the Convention. In the Court's view, having regard to
the circumstances of the case, the applicants' complaints about the
non-enforcement of the Court of Appeal's judgment of 3 October
2003 and its alleged quashing are essentially linked to the
lawfulness of the building permit, which constitutes the core issue
of the complaints. It therefore considers that it is necessary to
examine both complaints from the perspective of the principle of
legal certainty, notably whether the domestic courts pursued a
uniform line of reasoning concerning the lawfulness of the building
permit.
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
b. The length of the proceedings
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. As regards the lack of legal certainty concerning domestic
courts' decisions
a. The parties' submissions
The
Government contended that the building permit had been declared null
and void by the Supreme Court in its judgment of
29 March 2001,
which had acquired the force of res judicata. They argued that
the case was complex, as demonstrated by the need for three different
sets of proceedings.
The
applicants argued that the lawfulness of the building permit had been
upheld by the Court of Appeal's judgment of 3 October 2003, which had
become final. They maintained that the case was not complex and that
the authorities were to blame for having made the proceedings
unnecessarily complicated.
b. The Court's assessment
The right to a fair hearing before a tribunal as
guaranteed by Article 6 § 1 of the Convention must be
interpreted in the light of the Preamble to the Convention, which, in
its relevant part, declares the rule of law to be part of the common
heritage of the Contracting States. One of the fundamental aspects of
the rule of law is the principle of legal certainty, which requires,
among other things, that where the courts have finally determined an
issue, their ruling should not be called into question (see
Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR
1999 VII).
Turning
to the present case, the Court must determine whether a final and
binding decision was adopted as regards the lawfulness of the
building permit. It reiterates that it is primarily for the
national authorities, notably the courts, to interpret and apply
domestic law. It is not for the Court to assess the facts on the
basis of which the national courts adopted their decision, provided
that it is compatible with the articles of the Convention. The Court
shall, within the framework of Article 6 of the Convention, examine
applications which allege a breach of specific procedural guarantees
or allege that the conduct of the procedure, as a whole, did not
provide the guarantees of the right to a fair hearing to the
applicant (see Schwarzkopf and Taussik v. the Czech Republic
(dec.), no. 42162/02, 2 December 2008).
The
Court notes that three sets of proceedings were conducted in the
present application, spanning a period of almost ten years. Whereas
the object of each set of proceedings was to some degree different,
the essence of all of them, taking account of the domestic courts'
judgments, was the lawfulness of the applicant company's building
permit.
The
first set of proceedings, which examined the lawfulness of the
Minister's order and the action of the Construction Police, addressed
the lawfulness of the building permit. The Court finds the reasoning
in the Supreme Court's judgment of 29 March 2001 inconsistent. The
Supreme Court declared that the prefect's decision of 12 January 2000
was ultra vires on account of non-exhaustion of domestic
administrative remedies in respect of the validity of the building
permit. In the same judgment, the Supreme Court overruled this
finding and proceeded to declare the building permit null and void.
The
Court considers that such inconsistencies within the same judgment of
the Supreme Court are incompatible with its judicial function. The
role of a higher court in a Contracting Party is precisely to resolve
conflicts, avoid divergences and be consistent. In fact, in the
present case, the Supreme Court itself became the source of
uncertainty undermining public confidence in the judiciary and the
rule of law (see, mutatis mutandis, Beian v.
Romania (no. 1), no.
30658/05, §§ 37-39, ECHR 2007 ...).
The
ensuing judicial proceedings considerably added to that general
climate of legal uncertainty. It was during those proceedings that
the Embassy essentially sought to have the building permit revoked.
The fact that the District Court examined the Embassy's action
suggested that the validity of the building permit had not been
definitively established in the first set of proceedings. Moreover,
the Court of Appeal's judgment of 3 October 2003 appeared to
recognise the lawfulness of the building permit, whereas the Supreme
Court's judgment of 20 May 2005 left the issue of its lawfulness
unanswered (see paragraphs 32 and 36–37 above).
In
the third set of judicial proceedings, the domestic courts recognised
the invalidity of the building permit.
The
Court notes that the Contracting States have the obligation to
organise their legal system so as to allow the courts to identify
related proceedings and, where necessary, avoid the adoption of
discordant judgments. It considers that the underlying problem in the
present case has resulted from the multiplicity of legal proceedings,
which could have been better managed so as to contribute to the
speedy clarification of the issues involved. For the Court, the
existence of multiple parallel and interrelated proceedings raising
substantially the same legal issue cannot be considered to be in
compliance with the rule of law. By giving a number of contradictory
decisions at several levels of jurisdiction the Albanian authorities
demonstrated a shortcoming in the judicial system for which they are
responsible (see, mutatis mutandis, Gjonbocari and
Others v. Albania, no. 10508/02, §§ 66-67, 23 October
2007; Marini v. Albania, no. 3738/02, § 145, ECHR
2007 ... (extracts); and Driza v. Albania, no. 33771/02,
§ 69, ECHR 2007 XII (extracts)).
Moreover, the manner in which the other domestic
authorities proceeded was far from consistent with the State's
obligation to deal with the applicants' situation in as clear and
coherent a manner as possible and with utmost consistency (see
Beyeler v. Italy [GC], no. 33202/96, § 120, ECHR 2000 I).
The domestic authorities' letters of 1 August and
19 September
2007 added further confusion to this continuous lack of clarity and
certainty (see paragraphs 48 and 52 above). Furthermore, none of the
suspension orders issued after 29 March 2001 mentioned the invalidity
of the building permit as their main ground of justification (see
paragraphs 39–40 and 53–55 above).
Having regard to the combination of the above reasons,
the Court considers that there has accordingly been a breach of the
principle of legal certainty as regards the lack of consistent
reasoning in the domestic courts' decisions about the lawfulness of
the building permit.
2. As regards the length of the proceedings
The
Court considers that in the light of its finding of a violation under
Article 6 § 1 of the Convention about the breach of the
principle of legal certainty, it does not have to rule separately on
the merits of the length of proceedings complaint.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
The
individual applicants and the applicant company alleged that their
right to the peaceful enjoyment of their possessions had been
breached. They further complained that they were unlawfully deprived
of the use of their property for a long period of time.
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.”
Admissibility
1. The parties' submissions
The
Government maintained that the applicant company did not have
“possessions” within the meaning of Article 1 of Protocol
No. 1 as the Supreme Court's decision of 29 March 2001 had declared
the building permit null and void. They requested the Court to
declare this complaint incompatible ratione materiae.
The
Government submitted that the individual applicants' property rights
were limited by the contractual agreement they had concluded with the
applicant company. The individual applicants' complaint about a
breach of their property rights should have been directed towards the
applicant company within the framework of the agreement they had
concluded with it. Consequently, in the Government's view, the seven
individual applicants could not be considered victims within the
meaning of Article 34 of the Convention. Furthermore, the individual
applicants had not instituted any legal proceedings concerning the
alleged violation of their property rights.
The
individual applicants contended that they were “victims”
within the meaning of Article 34 of the Convention. They recalled
that Article 1 of Protocol No. 1 entitled owners to the peaceful
enjoyment of their possessions, which entailed, inter alia,
the right to conclude agreements with third parties in order to
freely dispose of their property by selling and renting it or
constructing buildings on it in full compliance with the relevant
domestic law provisions. The individual applicants had concluded an
agreement with the applicant company as part of the requirements for
obtaining a building permit. In the individual applicants' view, the
fact that the municipality granted the building permit for the
construction work on their property was not, in principle, sufficient
to deprive them of victim status.
The applicant company argued that the building permit constituted a
possession within the meaning of Article 1 of Protocol No. 1.
2. The Court's assessment
The
first question that arises is whether the applicant company and the
individual applicants had a “possession” within the
meaning of Article 1 of Protocol No. 1 to the Convention.
The
Court recalls that the notion “possessions” in Article 1
of Protocol No. 1 has an autonomous meaning which is certainly not
limited to ownership of physical goods and is independent from the
formal classification in domestic law: certain other rights and
interests constituting assets can also be regarded as “property
rights” and thus as “possessions”. The issue that
needs to be examined in each case is whether the circumstances of the
case, considered as a whole, conferred on the applicants title to a
substantive interest protected by Article 1 of Protocol No. 1 (see
Beyeler [GC], cited above, § 100, ECHR 2000 I;
Broniowski v. Poland [GC], no. 31443/96, § 129, ECHR
2004 V; and Anheuser-Busch Inc. v. Portugal [GC], no.
73049/01, § 63, ECHR 2007 ...).
In the case of non-physical assets, the Court has
taken into consideration, in particular, whether the legal position
in question gave rise to financial rights and interests and thus had
an economic value (see, for example, Anheuser-Busch Inc.,
cited above, where intellectual property constituted possessions;
Paeffgen GMBH v. Germany (dec.), no. 25379/04, 21688/05,
21722/05 and 21770/05, 18 September 2007, in which the right to use
or dispose of internet domains constituted possessions; Pine
Valley Developments Ltd and Others v. Ireland, 29 November 1991,
Series A no. 222, where the granting of a commercial operating
licence by the authorities constituted possessions; and Tre
Traktörer AB v. Sweden, 7 July 1989, Series A no. 159, in
which licences to serve alcoholic beverages constituted possessions).
The
Court will examine whether the circumstances of the case, considered
as a whole, conferred on the applicant company and the individual
applicants an interest protected by Article 1 of Protocol No. 1. In
that connection, it notes that an application for a building permit
cannot give rise to a well-defined proprietary interest. Such an
interest would materialise if the application, after having been
examined and found to satisfy the relevant formal and procedural
conditions, was accepted by the relevant authority by issuing a
building permit.
In
the present case, the Court notes that a building permit was granted
to the applicant company by the municipality of Tirana on 22 December
1998 to build on the individual applicants' plot of land.
Consequently, the building permit constituted “possessions”
for the applicant company. On that account, the Government's
objection concerning the applicant company's lack of “possessions”
should be dismissed.
In
itself, the building permit also gave rise to the benefits of the
contract negotiated between the applicant company and the individual
applicants for the construction of the tower block. It therefore
generated a capital asset and had a definite economic value for the
individual applicants. It was on the strength of the building permit
that the individual applicants' then existing three-storey villa was
demolished. Moreover, it has not been disputed that the individual
applicants continued to have property rights over the plot of land,
which is an “existing possession” within the meaning of
Article 1 of Protocol No. 1 to the Convention. Therefore, the
Government's submission based on the lack of victim status of the
individual applicants must be dismissed.
As
regards the Government's submission that the individual applicants
did not exhaust domestic remedies, the Court reiterates that in the
context of the machinery for the protection of human rights the rule
on exhaustion of domestic remedies must be applied with some degree
of flexibility and without excessive formalism. At the same time it
requires in principle that the complaints intended to be made
subsequently at international level should have been aired before
[the appropriate domestic] courts, at least in substance and in
compliance with the formal requirements and time-limits laid down in
domestic law (see, among many other authorities, Azinas v. Cyprus
[GC], no. 56679/00, § 38, ECHR 2004-III, and Fressoz and
Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I).
The
applicant company was a partner with whom the seven individual
applicants agreed to make use of their proprietary interest. The
applicant company was the main party to the domestic proceedings,
with the individual applicants acting as interveners, notably in the
first set of proceedings initiated by the Swiss Embassy, which, in
their opinion, resulted in the acknowledgement of the building
permit's validity. In the Court's view, the domestic proceedings must
be regarded as an examination of the respective proprietary rights of
the individual applicants and the applicant company, since the
lawfulness of the building permit was interlinked with the individual
applicants' enjoyment of their proprietary interest. Consequently,
the Government's objection based on non-exhaustion of domestic
remedies by the individual applicants must be dismissed.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
The
Government contended that the applicant company's behaviour prevented
the authorities from examining the lawfulness of the building permit.
They argued that in its decision no. 1 of 27 April 2004 the National
CTP had envisaged the construction of buildings no higher than three
storeys in the city centre.
The
individual applicants and the applicant company maintained that the
authorities had interfered with their possessions by preventing the
applicant company from constructing a building on the individual
applicants' plot of land.
The
applicants submitted that the crux of their complaint concerned the
non-enforcement of the Court of Appeal's judgment of 3 October 2003.
They maintained that the legal uncertainty surrounding the reluctance
of the executive authorities to comply with a valid building permit
and the lack of any effective domestic remedy, combined with the
absence of any compensation, meant that they had been made to bear an
excessive burden.
Additionally,
they claimed that the authorities' interference with the construction
of a building adjacent to a foreign Embassy's property did not pursue
a general interest, nor did it strike a fair balance. They also
mentioned that high-rise buildings already existed in the immediate
vicinity of their property.
The Court's assessment
a. Whether there was an interference
Article
1 of Protocol No. 1 comprises three distinct rules. The first rule,
which is of a general nature, enounces the principle of peaceful
enjoyment of property; it is set out in the first sentence of the
first paragraph. The second rule covers deprivation of possessions
and subjects it to certain conditions. The third rule recognises that
the States are entitled, amongst other things, to control the use of
property in accordance with the general interest, by enforcing such
laws as they deem necessary for the purpose (see Sporrong and
Lönnroth v. Sweden, 23 September 1982, § 61, Series A
no. 52).
The
Court notes that for many years the individual applicants and the
applicant company have been unable to enjoy and freely dispose of
their contractual benefits as a result of the suspension of the
construction work arising out of the disputed lawfulness of the
building permit. The multiplicity of legal proceedings has failed to
remedy the situation. There has accordingly been an interference with
their right of property.
In
the Court's opinion there was no formal expropriation of the property
in question, that is to say a transfer of ownership. Nor can it be
said that there was a de facto deprivation. The impugned
measures imposed limitations on the individual applicants' and the
applicant company's enjoyment of their proprietary interests.
The
Court finds that the interference must be considered as a control of
the use of the applicants' property falling within the scope of the
second paragraph of Article 1 of Protocol No. 1 (see, for example,
Sporrong and Lönnroth, cited above, §§ 62 –
64; Tre Traktörer AB, cited above, § 55; and Allan
Jacobsson v. Sweden (no. 1), 25 October 1989, § 54, Series A
no. 163).
b. Whether the interference was lawful
The
Court reiterates that the first and most important requirement of
Article 1 of Protocol No. 1 is that any interference by a public
authority with the peaceful enjoyment of someone's possessions should
be lawful (Iatridis v. Greece [GC], no. 31107/96, § 58,
ECHR 1999 II).
The
Court considers that when speaking of “law”, Article 1 of
Protocol No. 1 alludes to the same concept to be found elsewhere in
the Convention, a concept which comprises statutory law as well as
case-law. It refers to the quality of law in question, requiring that
it be accessible to the persons concerned, precise and foreseeable
(see Špaček, s.r.o., v. the Czech
Republic, no. 26449/95, § 54, 9 November 1999; Carbonara
and Ventura v. Italy, no. 24638/94, § 64, ECHR 2000 VI;
Baklanov v. Russia, no. 68443/01, §§ 40-41, 9
June 2005).
The
Court accepts that its power to review compliance with domestic law
is limited as it is in the first place for the national authorities
to interpret and apply that law. In the instant case, the Court is
required to verify whether the way in which the domestic law was
interpreted and applied produces consequences that are consistent
with the principles of the Convention.
The
Court notes that this complaint is closely linked to the complaint
under Article 6 § 1 of the Convention in which it found a
violation of the principle of legal certainty (see paragraphs 79–88
above). In that connection, the Court notes that the case-law of the
domestic courts has led to inconsistent decisions on the lawfulness
of the building permit. The case-law lacked the required precision to
enable the applicant company and the individual applicants to
foresee, to a degree that was reasonable in the circumstances, the
consequences of their actions and the State's interference (see,
mutatis mutandis, Sierpiński v. Poland, no.
38016/07, §§ 74-76,
3 November 2009 and Plechanow v.
Poland, no. 22279/04, § 105-107,
7 July 2009). Such
confusion and lack of foreseeability, leading to arbitrariness,
continues to prevail even to date.
It follows that the interference with the applicant
company's right and the proprietary rights of the individual
applicants' who demolished their three-storey villa on the strength
of the building permit issued by the authorities, cannot be
considered lawful within the meaning of Article 1 of Protocol No. 1.
This conclusion makes it unnecessary to ascertain whether a fair
balance has been struck between the demands of the general interest
of the community and the requirements of the protection of the
applicants' fundamental rights (see Iatridis, cited above, §
62).
There
has, accordingly, been a breach of Article 1 of Protocol No. 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“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.”
A. Damage
The
individual applicants claimed 1,547,037.4 euros in respect of
pecuniary damage and 270,000 euros in respect of non-pecuniary
damage. The applicant company claimed 10,297,947 euros in respect of
pecuniary damage and 1,650,000 euros in respect of non-pecuniary
damage. In support of their claim for pecuniary damage, they
submitted an expert's valuation report.
The
Government submitted that the individual applicants and the applicant
company had not exhausted the domestic remedies in respect of their
claims for pecuniary and non-pecuniary damage. However,
the Court would point out that the rule of exhaustion of domestic
remedies does not apply in connection with Article 41 claims (see
Matache and Others v. Romania (just satisfaction), no.
38113/02, § 16, 17 June 2008).
The
Court considers that the question of the application of Article 41
is not ready for decision. The question must accordingly be reserved
and the further procedure fixed with due regard to the possibility of
agreement being reached between the Albanian Government and the
applicant company and the individual applicants.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds
that there has been a violation of Article 6 § 1 of the
Convention as regards a breach of the principle of legal certainty;
3. Holds that it
does not consider it necessary to examine the complaint about the
length of the proceedings under Article 6 § 1 of the Convention;
Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
Holds that the question of the application of
Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicants to submit, within the forthcoming
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
their written observations on the matter and, in particular, to
notify the Court of any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 23 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Nicolas Bratza
Deputy
Registrar President
