CEDH · CASELAW;STATEMENTOFFACTS;ENG — 23 février 2009

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s22DB1888 { width:273.82pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt }   09 February 2009       FOURTH SECTION Applications no. 7564/07 and 58058/08 by Ilir JELLA and others against Albania lodged on 30 January 2007   STATEMENT OF FACTS THE FACTS The applicants, Mr Ilir Jella, Ms Zamira Jella, Mr Xhemali Nova, Mr Ilir Jella, Mr Besnik Jella and Ms Firdes Jella are Albanian nationals who were born in 1971, 1957, 1949, 1971, 1975 and 1946 respectively. A.     The circumstances of the case in respect of application no. 7564/07 The facts of the case, as submitted by the applicants, may be summarised as follows. 1. Administrative proceedings concerning the applicants' property The applicants' ancestor owned a plot of land measuring 43,100 sq. m, which was nationalised on an unspecified date by the former communist regime. After the fall of communism, on an unspecified date the applicants lodged a request with the Commission on Restitution and Compensation of Property (Komisioni i Kthimit dhe Kompensimit të Pronave) , (“the Commission”), seeking restitution of the original property. On 9 September 1994 the Commission recognised the applicants' property title over 43,100 sq. m. The decision indicated that 25,540 sq. m out of 43,100 sq. m were occupied. It ruled that 13,310 sq. m located within an unoccupied plot of land measuring 17,560 sq. m were to be restored to the applicants; the applicants were to choose the location of the 13,310 sq. m. The Commission also decided to restore the applicants' property rights over a house together with its plot of land measuring 430 sq. m. It also ruled in the applicants' favour by recognising their property rights over another plot of land measuring 400 sq. m. The applicants only entered their ownership of 830 sq. m in the land register. They were unable to register their property rights over 13,310 sq. m as the location of that plot had not been specified in the Commission decision. 2. Judicial proceedings concerning the applicants' property On 6 September 1996 the Commission recognised property rights in favour of a third party, S. On an unspecified date the applicants challenged the Commission's decision, claiming that S.'s plot of land overlapped with theirs. On 19 May 2004, following an expert opinion, the Tirana District Court partially annulled the Commission's decision of 6 September 1996, in so far as 5,500 sq. m overlapped with the applicants' property. That decision became final at the earliest on 27 December 2006, following the dismissal of the defendant party's appeal by the Supreme Court. An enforcement warrant was issued by Tirana District Court on 13 December 2006, ordering the Agency to make the necessary changes. On an unspecified date, the applicants complained to the District Court requesting it to clarify the Commission decision as regards the recognition of title to property, its restitution and compensation. The applicants alleged, amongst other things, that more land should have been restored to them. On 17 May 2005 the District Court held that the case fell outside its jurisdiction. It further found that such an action should have been submitted to the Commission. The District Court decision became final at the latest on 24 June 2005. 3. Proceedings concerning the clarification of the 1994 Commission decision On an unspecified date the applicants requested the Commission to clearly specify and mark the plot of land measuring 13,310 sq. m which had been returned to them by the 1994 Commission decision. In another letter, they invited the Agency to decide on the restitution and/or compensation of the unoccupied plot of land which had not been decided upon by the 1994 Commission decision. They submitted that an application, registered as no. 548, had been lodged with the Commission in 2005. By a letter of 26 June 2007, the Agency responded that the applicants had to make an application to the Tirana District regional office for property restitution and compensation ( Zyra Rajonale e K.K. Pronave Qarkut Tiranë ) in so far as the Commission had not decided on the entirety of the applicants' property. On 6 July 2007 the applicants reminded the Agency that they should take a decision on their request, including their property rights over the plot of land measuring 5,550 sq. m pursuant to the District Court decision of 19 May 2004. To date the Agency has taken no decision. B.     The circumstances of the case in respect of application no. 58058/08 On 30 May 1997 the District Court recognised the existence of the applicants' ancestor's property rights over a plot of land measuring 290,700 sq. m ( vendim për vërtetim i faktit juridik ). The applicants, pursuant to the Property Act (see “Relevant domestic law” below) lodged an application with the regional Agency for Restitution and Compensation of Property (“the Agency”) on 26 September 2007, seeking restitution of their ancestor's original property. Their application was acknowledged and registered by the Agency. To date, the Agency has not taken any decision on their application. B.     Relevant domestic law 1. The Property Act Section 15 of the 2006 Property Act provides that “the Agency for Restitution and Compensation of Property shall not take any decision in relation to requests (applications), whose claims are solely based on a court decision which recognised the existence of a legal fact ( vendim gjyqësor të vërtetimit të faktit juridik të pronës) over an immovable property (real estate), within the meaning of Article 388 of the Code of Civil Procedure. All requests (applications) relied upon in such a decision shall be returned to the parties [without any further action to be taken] within thirty days of submission.” The regional Agency examines an application within three months of its registration. It notifies the applicant, by means of a reasoned decision, of any extension of the time-limit, which should not exceed thirty additional days. Section 16 provides for the appeal procedure that should be followed against a decision of the Agency which recognises an applicant's property rights, its restitution or compensation. The Property Act does not contain any appeal procedure in respect of its section 15, for cases where the Agency has not taken any decision. Other relevant provisions of the Property Act have been described in the judgments in Gjonbocari v. Albania (no. 10508/02, 23 October 2007); Driza v. Albania (no. 33771/02, 13 November 2007); and Ramadhi v. Albania (no. 38222/02, 13 November 2007). (a) Council of Ministers' decision on the organisation and operation of the Agency for Restitution and Compensation of Properties (Decision no. 566 of 23 August 2006) The decision establishes the organisational chart of the Agency. It provides for the appointment procedure for its management staff and their respective duties and responsibilities. (b) Council of Ministers' decision on the collection, processing and administration of requests by expropriated parties during the process of recognition, restitution and compensation of property (Decision no. 747 of 9 December 2006) The decision lists the documents required to be included in the expropriated party's request for the recognition, restitution and compensation of property. If the application is complete the Agency assigns it a registration number. Otherwise, the Agency returns the application to the expropriated party for submission of the missing documents. The decision does not provide for any time-limits within which the Agency must examine a request. 2. The Code of Civil Procedure Section 388 of the Code of Civil Procedure provides that any interested party has the right to request, by a court decision, the recognition ( vërtetimin ) of a fact whose documentary evidence has disappeared, been lost and cannot be created again or cannot be obtained in any other way, provided that such a fact is material to the emergence, change or cessation of personal or property rights. 3. Domestic practice The domestic practice of the Commission on Property Restitution and Compensation (replaced by the Agency) has been uniform in that it used to recognise a claimant's property rights over a plot of land, once the claimant was in possession of a court decision which recognised the legal fact of the existence of property rights. The Supreme Court has enunciated the Commission's practice in some of its recent decisions (for example, decision no 746/2007 of 31 May 2007, decision no. 15/2008 of 18 January 2008; and decision no. 304/1998 of 29 May 2008). In its decisions no. 746/2007 of 31 May 2007 and 98/2008 of 14 February 2008 in relation to a property dispute, the Supreme Court added that “a court decision taken pursuant to Article 388 of the Code of Civil Procedure should not be construed as binding upon the administrative authorities, but as a guiding document to enable them to take a decision in compliance with the law and the documents they possess.” In decision no. 749/2007 of 31 May 2007 the Supreme Court added that “such a court decision shall be examined in combination with additional supporting documents by the Agency, which shall finally decide to uphold or dismiss the applicant's request [about the recognition of his property rights]”. COMPLAINTS In both applications, the applicants complained that Article 1 of Protocol No. 1 to the Convention had been violated, in so far as the authorities had not yet recognised their property rights. They also complained that Article 14 of the Convention had been violated, in that they had been discriminated against in relation to the enjoyment of their properties.