CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 11 octobre 2022

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Hakani, a lawyer practising in Tirana; the decision to give notice of the application to the Albanian Government (“the Government”), initially represented by their Agent, Mrs S. Meneri, and subsequently by Mr O. Moçka, of the State Advocate’s Office; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The application concerns an alleged breach of the principle of equality of arms under Article 6 of the Convention as a result of the applicant’s status as a third party in the domestic court proceedings at issue and the alleged lack of impartiality of the Court of Appeal. It further raises the issue of whether the applicant’s property rights under Article 1 of Protocol No. 1 to the Convention were violated by the domestic courts’ finding that a sale and purchase contract by which the applicant had acquired property rights over an apartment building and land was void. 2.     The applicant and other successors in title obtained ownership of two plots of land and a two-storey building (a former crèche) located on one of the plots, firstly by means of a decision of 8 February 1996 of the Commission on Restitution and Compensation of Properties (“the Commission”) and then by its implementation on 27 April 1999 by the privatisation of the land, when the applicant concluded a notarised contract with the National Housing Authority (hereinafter “the NHA”) for the purchase of a three-bedroom apartment, which was part of the crèche building, and an appurtenant plot of land of 175 sq. m, in accordance with the Privatisation of State-Owned Housing Act. The applicant paid 189,000 Albanian lek (ALL). The purchase contract was registered with the Immovable Property Registration Office (“the IPRO”) as “registration no. 42, dated 28 May 1999”. 3 .     Proceedings were instituted before the Saranda District Court (“the District Court”) against the Commission by L. (a private individual), who claimed competing property rights over the applicant’s above-mentioned plot of land and sought to be recognised as the owner ( restitutio in natura ). The applicant participated in the proceedings as a third party. The District Court (sitting as a panel of judges that included P.K.) found partly in favor for L., thus affecting the applicant’s property rights. On 29 January 2002 the Gjirokastra Court of Appeal, sitting as a panel of three judges, including T.S. and M.Q., upheld the decision of the District Court. The District Court and the Court of Appeal found that the applicant had not acquired the plot of land in question at the time of the privatisation of the crèche. On 17 June 2003 the Supreme Court quashed both lower courts’ decisions and rejected L.’s claim as unfounded. 4.     In subsequent similar proceedings before the Saranda District Court instituted against the Commission by R. (another private individual), who also claimed competing property rights over the applicant’s aforementioned plot of land, the applicant was summoned again to participate as a third party. Throughout the proceedings the applicant was represented by counsel of his own choosing. His counterclaim, which would have involved his participation in the proceedings as a defendant, was dismissed in order to be dealt with in separate proceedings to avoid creating obvious difficulties, according to the words used by the District Court. 5.     On 22 September 2003 the District Court, sitting as a single judge and relying on expert findings about the location of the former crèche on the land inherited by R. of which ownership was contested by the applicant, held that R. had been entitled to a right of first refusal over the two-storey building. It declared the contract for the sale of the property to the applicant void, finding that it had been concluded in breach of the Privatisation of State-Owned Housing Act for the following reasons: (i) the crèche had not been converted into housing units; (ii) the applicant had not been a tenant; and (iii) the relevant legislation had ceased to have legal force by the time the contract of sale and purchase was concluded. It also ordered that the cadastral entry be removed from the IPRO register. 6.     The applicant appealed to the Court of Appeal, where the bench was composed of Judges P.K., T.S. and M.Q. After the applicant unsuccessfully sought the recusal of T.S. and M.Q., the Court of Appeal dismissed his appeal on 4 May 2004. Following the Supreme Court’s dismissal of his subsequent appeal, the applicant lodged a complaint with the Constitutional Court. He reiterated, among other things, that in the above-mentioned proceedings instituted by R. he had been denied defendant party status, in breach of the principle of equality of arms, and that the judges who formed the bench of the Court of Appeal had previously decided against him in another case concerning his property rights (see paragraph 3 above). The applicant also raised a separate complaint that the District Court should not have given its decisions as a single judge. 7.     On 16 January 2006 the Constitutional Court, by a reasoned majority decision, found no violation of the applicant’s constitutional rights. It dismissed the applicant’s complaint about his case in the District Court being heard by a single judge on the grounds of non-exhaustion of domestic remedies. It also found that the applicant had had a fair hearing, had fully participated in the proceedings as prescribed by domestic law and had had his claims heard and examined by the relevant courts. In particular, the complaint alleging bias on the part of the judges of the Court of Appeal had been dismissed on the grounds that the proceedings had different parties and concerned different subject matter from the proceedings instituted by L. 8 .     In subsequent proceedings for compensation following the declaration that the applicant’s contract for the purchase of the apartment and appurtenant land had been void, on 15 June 2006 the District Court accepted the applicant’s claim for, amongst other things, the reimbursement of the purchase price. Consequently, the court ordered the Saranda Municipality to pay the applicant the purchase price of ALL 189,000 as well as ALL   4,134,900 (approximately 31,960 euros at the time), in respect of costs incurred for work done and maintenance of the flat. It further decided that the applicant would remain in the flat until the above amounts were paid in full. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 9.     The applicant raised several complaints under Article 6 § 1 of the Convention. In connection with the proceedings instituted by L. and R., he complained that his being denied defendant party status had been in breach of the principle of equality of arms. In respect of the proceedings brought by R., he complained that, given the value of his claim, the District Court had not been competent to hear the case as a single judge. He also complained of bias on the part of the bench of the Court of Appeal that had reached the decision of 4 May 2004, because of the judges’ previous involvement in the proceedings instituted by L. Alleged breach of the right to be tried by a tribunal “established by law” 10.     Reiterating that it can only deal with an issue after all domestic remedies have been exhausted, the Court notes, as did the Constitutional Court in its decision of 16 January 2006, that the applicant did not raise any objection before the District Court to the examination of his case by a single judge. 11.     It follows that this complaint must be rejected, pursuant to Article 35 §§   1 and 4 of the Convention, for failure to exhaust domestic remedies. Alleged breach of equality of arms 12.     The general principles relevant to the guarantee of equality of arms apply in principle to civil as well as to criminal cases and have been established in Kress v. France ([GC], no. 39594/98, § 72, ECHR 2001-VI), Yvon v. France (no. 44962/98, § 31, ECHR 2003-V), Gorraiz Lizarraga and Others v. Spain (no. 62543/00, § 56, ECHR 2004 III) and Gregačević   v.   Croatia (no. 58331/09, § 50, 10 July 2012). 13.     Regarding the applicant’s complaint of a breach of equality of arms in the proceedings brought by L., the final decision within the meaning of Article 35 § 1 of the Convention is that of the Supreme Court dated 17   June   2003, whereas his application to the Court was lodged on 5   April   2006. Therefore, this complaint was lodged outside the six-month time-limit and accordingly should be dismissed as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. 14.     Regarding the complaint of a breach of equality of arms in the proceedings brought by R., the Court observes that the applicant participated in the proceedings against the Commission and later against the NHA as a third party, given that those institutions were in the position of defendant. The applicant had access to the case file and all the documents in it, was represented by counsel of his choosing, lodged appeals to higher courts and challenged experts’ reports which were unfavourable to him. 15.     Taking into account the relevant circumstances – namely that the applicant availed himself of the procedural steps available to third parties, that the procedural law, as interpreted by the Supreme Court, prevented the domestic courts from joining and summoning a party as a defendant, and that the procedural law provided for the opportunity for a third party to intervene as a principal intervener and lodge a claim against one or both of the original parties to the proceedings – the Court finds, as did the Constitutional Court, that it cannot be said that the applicant was placed at a substantial disadvantage vis-à-vis the plaintiff. The mere fact that the District Court considered whether the applicant’s counterclaim should be joined and dismissed his request in the same proceedings does not of itself alter the above conclusion. 16.     Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Alleged lack of impartiality of the Court of Appeal’s bench that reached the decision of 4 May 2004 17.     The Court reiterates the general principles that were summarised in Morice v. France ([GC], no. 29369/10, §§ 73-78, 23 April 2015). 18.     Turning to the present case, the Court considers it important to address the scope of the decisions taken by Judges P.K, T.S. and M.Q in the two relevant sets of proceedings instituted by L. and R. respectively. 19.     In the proceedings instituted by L., both in the first-instance court and on appeal, the three judges determined the merits of L.’s claims for the restitution in natura of a plot of land surrounding the former crèche. They ruled in favour of L.’s claims, finding that the applicant had not acquired the plot of land in issue at the time of the privatisation of the crèche. Although the timing of the privatisation was relevant in that set of proceedings, the Court notes that the applicant’s ownership of the apartment (which was part of the crèche building) and the appurtenant land was not the subject of the proceedings. In a separate set of proceedings, in the decision of 4 May 2004, the Court of Appeal, composed of those same judges, P.K., T.S. and M.Q, determined the merits of R.’s claim over the former crèche and the appurtenant plot of land. The bench upheld R.’s claims and decided against the applicant (see paragraphs 3 and 6 above). 20.     In these circumstances, the Court agrees with the Constitutional Court that the two sets of proceedings were instituted by different plaintiffs and concerned distinct subject matter. In the Court’s view, the specific decisions given by Judges P.K., T.S. and M.Q. in the first set of proceedings, lodged by L., cannot be considered to objectively justify the applicant’s apprehensions of bias with respect to the judges in the second set of proceedings, instituted by R. (compare and contrast Golubović v. Croatia , no. 43947/10, §§ 53-60, 27 November 2012). 21.     In conclusion, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL N o . 1 TO THE CONVENTION 22.     The Court finds that the domestic decisions, which declared the purchase contract concluded by the applicant to be void, constituted an interference with the applicant’s property rights. This amounted to a “deprivation” of property within the meaning of the second sentence of Article 1 of Protocol No. 1 to the Convention. 23.     The Court notes that the purchase contract was declared void because it had been concluded in breach of the relevant housing legislation, for reasons detailed in the domestic decisions and which the applicant did not dispute in the domestic proceedings or in the Strasbourg proceedings. In such circumstances, the Court does not have any reason to question the lawfulness of the domestic courts’ decisions or their findings and interpretation of domestic law. The Court of Appeal further recognised R.’s right of first refusal over the two-storey building. In the Court’s view, this was in accordance with the legitimate aim of protecting legitimate owners’ rights and interests. 24.     As regards the issue of whether the applicant was required to bear a “disproportionate burden”, the Court notes that the applicant did not complain that, as the sale was declared void, he found himself in a particularly vulnerable housing situation (see Padalevičius v. Lithuania , no. 12278/03, §   71, 7 July 2009), nor did he raise any complaint as to the inadequacy of compensation (see, mutatis mutandis , Mohylova v. the Czech Republic (dec.), no. 75115/01, 6   September 2005). Indeed, in a subsequent set of proceedings the applicant was reimbursed the purchase price, received damages, and was authorised to remain in possession of the apartment until the full payment of the sums awarded (see paragraph 8 above). As regards the procedural protection of the applicant’s interests, the Court observes that in the domestic proceedings he had the benefit of adversarial proceedings. The applicant was duly represented during the proceedings and had ample opportunities to advance all arguments which he regarded as pertinent for the outcome of the case. The interference with the applicant’s property rights was therefore proportionate (see Bogdel v. Lithuania , no. 41248/06, §§ 63-68, 26   November   2013). 25.     Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3   (a) and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 10 November 2022.     Olga Chernishova   Andreas Zünd   Deputy Registrar   President