FOURTH SECTION

DECISION

Application no . 4380/06 Kujtim SPAHIU against Albania

The European Court of Human Rights ( Fourth Section ), sitting on 17 June 2014 as a Chamber composed of:

Ineta Ziemele, President, Päivi Hirvelä, Ledi Bianku, Nona Tsotsoria, Paul Mahoney, Krzysztof Wojtyczek, Faris Vehabović, judges and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 21 January 2006 ,

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 FACTS

1. The applicant, Mr Kujtim Spahiu , is an Albanian national, who was born in 1955 and lives in Bologna . He was represented before the Court by Mr M. Salmon , a lawyer practising in Bologna .

2. The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Ms S. Mëneri of the Foreign Affairs Ministry and, subsequently, by Ms L. Mandia of the State Advocate ’ s Office.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

3 . On 9 November 1939 the applicant ’ s father and uncle (A.) jointly bought a plot of land measuring 91,000 sq. m from the Durrës Municipality. On unspecified dates between 1939 and 1941 the applicant ’ s father and A. sold 8,878.59 sq. m to third parties.

4 . On 18 June 1969 the Durrës District Court recognised the joint ownership of a house erected on that plot of land: since the two brothers had jointly erected the frame structure of the house, they owned it in equal shares. It further rejected A. ’ s argument that he was the sole owner of the plot of land as no relevant notary deed had been submitted to the court. On 1 December 1969 the Supreme Court upheld the decision.

5 . By a note of 7 March 1969 the mortgage office certified that the property had been jointly purchased in 1939 by the applicant ’ s father and A. and that it was registered as co-owned.

6 . On an unspecified date the plot of land was nationalised.

7 . On 13 January 1994 the Durrës Commission on Restitution and Compensation of Properties (“the Commission”) recognised A. ’ s heirs property rights to the plot of land measuring 91,000: 5,000 sq. m were to be restored; compensation was to be provided for the remaining 77,120 sq. m and the remaining plot had been previously sold to third parties. The applicant ’ s father ’ s name did not appear on the decision.

1 . Proceedings concerning the right of co-ownership

8 . On an unspecified date in 1995 the applicant challenged the Commission decision before the Durrës District Court (“the District Court”) arguing that A. and his father were co-owners in equal shares of the relevant plot of land.

9 . On 12 December 1996 the head of the State Committee on Property Restitution and Compensation, in a letter addressed to the applicant, stated, inter alia , that the Commission had wrongly taken its decision given that the applicant ’ s father and A. were co-owners.

10 . On 17 February 1997 the Durrës District Court, following the remittal of the case, dismissed the applicant ’ s civil action. Even though the plot of land had been jointly purchased by the applicant ’ s father and A. in 1939, two cadastre documents of 1994 showed that the applicant ’ s father and A. each owned a plot of land, so that A. was the sole owner of the relevant plot of land following the division of the property. Both A. and the applicant ’ s father had paid taxes separately and had registered their titles in the civil registrar ’ s office separately. As to the decision of 18 June 1969 as upheld by the Supreme Court on 1 December 1969 (see paragraph 4 above), the District Court found that it did not change the status of separate property titles that A. and the applicant ’ s father had.

11 . On 19 November 1997 and 6 May 1998 the Court of Appeal and the Supreme Court, respectively, upheld the decision and rejected the applicant ’ s appeals.

2 . Supervisory review proceedings

12 . On 1 October 1999 the applicant filed a supervisory review request with the Supreme Court.

13 . On 26 December 2000 the Supreme Court decided to refer the case to its Joint Benches.

14 . On 18 January 2002 the Supreme Court Joint Benches quashed the decisions on the ground that they had been taken contrary to the law. The courts had not given reasons as to how the property had been voluntarily divided up between the applicant ’ s father and A. No notary deed or other act, as required by law, had been submitted by A. ’ s heirs to the courts. The fact that the applicant ’ s father and A. had been registered separately in the civil registrar ’ s office and that they were economically independent was not sufficient to conclude that the property had been divided or that its co ‑ ownership had ceased to exist. Having regard to the fact that the property certificates submitted by the parties originated from different offices, the Supreme Court directed that only documents originating from the mortgage office ( zyrat e hipotekës ) were to be relied upon. The courts had not taken into account the findings of the decision of 18 June 1969 as upheld by the Supreme Court on 1 December 1969, which not only recognised the co ‑ ownership to the house but also ruled that “the siblings had jointly erected the frame structure of the house on the plot of land”. It finally ordered the remittal of the case to the Court of Appeal for a fresh consideration.

3 . The reopen ed proceedings

15 . On 17 October 2002 the Court of Appeal upheld the applicant ’ s action. It ruled that co-ownership could exist irrespective of the civil status of households. No document had been submitted to the effect that the relevant property had been divided between the parties. While the cadastre documents of 1994 indicated that the applicant ’ s father and A. owned each a separate plot of land, this did not constitute evidence of the transfer of the property title. The lower courts had incorrectly disregarded the court decisions of 1969 which recognised the co-ownership of the house and the plot of land.

16 . On 12 February 2004 the Supreme Court quashed the Court of Appeal decision of 17 October 2002 and upheld the findings of the District Court ’ s decision of 17 February 1997. No arguments had been advanced about the continuation of co-ownership after 1944. Following the conduct of the agrarian reform, A. ’ s heirs had proved that the co-ownership had terminated: the brothers had registered as separate owners of two different plots of land, they had paid taxes and dues separately and their family status had been registered separately. According to the law in force, the division of property was made by oral accord and registered with the competent authority.

17 . The applicant lodged a constitutional appeal arguing that the Supreme Court ’ s decisions of 2004 and 2002 were contradictory. He further complained that the Supreme Court ’ s bench had overstepped its powers by reassessing the evidence and re-examining the merits of his case.

18 . On 2 December 2005 the Constitutional Court, sitting in full bench, dismissed the applicant ’ s appeal. It reasoned that the appeal concerned the interpretation of domestic law, which was outside its competence.

B. Relevant domestic law

1 . The Constitution

19 . Article 141 § 2 of the Constitution states that a Supreme Court ’ s bench may relinquish jurisdiction to the Supreme Court Joint Benches to harmonise or change the legal practice (case-law).

2 . Code of Civil Procedure (“CCP”)

(a) Proceedings before the Supreme Court

20 . Article 35, as in force at the material time, provided that the Supreme Court sat in benches ( kolegje ) of five judges and in Joint Benches ( kolegje të bashkuara ) of all judges. At the material time, the Supreme Court was composed of seventeen judges.

21 . According to Article 481, the President of the Supreme Court may decide that the court sit in Joint Benches as regards appeals submitted by the parties, in so far as there exist conflicting decision s given by the ordinary bench of five judges.

22 . Under Article 485, following the examination of the case, the Supreme Court, sitting as a bench of five judges or as Joint Benches, may decide: to uphold the decision, to quash the Court of Appeal ’ s decision and uphold the District Court ’ s decision, to quash the Court of Appeal ’ s decision and remit the case to that court for fresh examination by a different bench, to quash the Court of Appeal ’ s and the District Court ’ s decisions and remit the case to the District Court for fresh examination by a different bench, to amend the Court of Appeal ’ s and the District Court ’ s decisions, or to quash the decisions and dismiss the case ( pushimin e gjykimit të çështjes ).

(b) Proceedings concerning supervisory review

23 . T he proceedings concerning supervisory review were described in Vrioni and Others v. Albania , no. 2141/03, 24 March 2009 .

“37. According to the provisions in force at the material time, supervisory review was an extraordinary remedy which enabled courts to reopen proceedings following a final judgment ( rekurs në interes të ligjit ). Between 1996 and its repeal in 2001 by Law no. 8812 of 17 May 2001, the supervisory review procedure was the subject of several legislative changes.

Article 473 – Review in the interests of the l aw (Law no. 8431 of 14 December 1998)

‘ Final judgments, decisions and rulings of the divisions of the Supreme Court shall be amenable to supervisory review in the interests of the law for the reasons set forth in section 472(a), (b) and (c) on an application lodged by the parties to the proceedings within three years from the date on which the decision becomes binding.

The application for supervisory review will first be examined by a preliminary review panel of five judges and then by the full Supreme Court (Joint Benches). ... Judges of the Supreme Court who sat as members of the division that delivered the judgment, decision or ruling or as members of the preliminary review panel shall not sit on the panel that conducts the supervisory review of the final judgment... ’ ”

COMPLAINTS

The applicant complained that there had been a breach of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the unfairness and the length of the domestic proceedings .

THE LAW

A. As regards an alleged breach of Article 6 § 1 of the Convention

24 . The applicant complained about the unfairness and length of the domestic proceedings under Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time... by [a] ... tribunal ...”

1. The unfairness of the reopened proceedings

25 . The applicant maintained that the relevant property was jointly purchased and jointly co-owned by his father and uncle, as recognised by the Court of Appeal ’ s decision of 17 October 2002 (see paragraph 15 above) . Consequently, his co-ownership right to the plot of land should have been finally upheld. He argued that the Supreme Court ’ s decisions of 18 January 2002 and 12 February 2004 were contradictory.

26 . The Government contended that the present application concerned a complicated assessment of evidence which dated back as far as 1930s and resulted in conflicting rulings. The conflicting domestic findings were finally dispelled by the Supreme Court ’ s 2004 decision, which concluded that the applicant ’ s father and uncle had voluntarily divided the relevant plot of land.

27 . The Court notes that, the Supreme Court Joint Benches ’ decision of 18 January 2002, which allowed the applicant ’ s request for supervisory review, opened the way to the re-examination of the merits of the applicant ’ s case. Starting with that decision, the reopened proceedings concerned the determination of civil rights and Article 6 is therefore applicable (see, amongst others, Sablon v. Belgium , no. 36445/97, §§ 88-89, 10 April 2001).

28 . On 17 October 2002 the Court of Appeal, following the remittal of the case, applied directions given by the Supreme Court Joint Benches and upheld the applicant ’ s civil action. However, on 12 February 2004 the Supreme Court quashed that decision and ordered the reinstatement of the District Court ’ s decision of 17 February 1997. In so doing, it found that the division of property had been conducted by way of oral agreement and had been the result of the payment of separate taxes, the registration of separate households in the civil registrar ’ s office and the ownership of two separate plots of land by the brothers.

29 . Throughout these proceedings, the Court observes that the applicant had the benefit of adversarial proceedings, in which he was able to adduce evidence and freely formulate his defence and in which his arguments appear to have been properly examined by the national courts. The applicant did not point to any failure on the part of the domestic courts to apply and respect any specific procedural guarantees under Article 6 § 1 of the Convention or show that the proceedings as a whole were unfair (see Sarkisova v. Georgia (dec.), no. 73239/01, 6 September 2005).

30 . The Supreme Court gave detailed reasons as to the conclusions it reached in the applicant ’ s case on 12 February 2004. The Court cannot accept that the Supreme Court ’ s findings could be considered manifestly arbitrary or unreasonable (see, amongst others, Ä€damsons v. Latvia , no. 3669/03, § 118, 24 June 2008), regard being had to the fact that it is primarily for the domestic courts to resolve problems of interpretation of national legislation and to weigh the evidence before them (see, among many other authorities, Perez v. France [GC], no. 47287/99, § 82, ECHR 2004 ‑ I; Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999 ‑ I; and, Brualla Gómez de la Torre v. Spain , 19 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII). This is also in keeping with the principle of subsidiarity at the basis of the Convention system.

31 . The Court further considers that there were no conflicting Supreme Court decisions in the present case (see, conversely, Nejdet Åžahin and Perihan Åžahin v. Turkey [GC], no. 13279/05 , 20 October 2011) . In this connection, it notes that the Supreme Court Joint Benches ’ decision of 18 January 2002 was taken in the context of supervisory review proceedings instituted by the applicant. It was adopted in accordance with Article 473 of the CCP as in force at the material time (see paragraph 23 above). The decision was not given with a view to harmonise or settle divergent case ‑ law. It did not decide the merits of the applicant ’ s case by way of a final ruling (see paragraph 13 above).

32 . By way of contrast, the Court notes that on 12 February 2004 the Supreme Court decided the merits of the applicant ’ s case at last instance. The decision was adopted further to the exhaustion of domestic remedies by a higher court with jurisdiction to examine and rule on the applicant ’ s case. Under Article 485 of the CCP, the Supreme Court was empowered to quash the Court of Appeal ’ s decision and uphold the District Court ’ s decision (see paragraph 22 above).

33 . Having regard to the above considerations, namely the different nature of the Supreme Court ’ s decisions, their content and reasoning, the Court finds that there were no conflicting decisions given by the Supreme Court in the applicant ’ s case. The applicant did not provide the Court with the existence of divergent Supreme Court ’ s decisions which had been given in other similar cases. He further failed to show any inconsistencies within the Supreme Court ’ s decision of 12 February 2004 (see, conversely, Mullai and Others v. Albania , no. 9074/07, § 83, 23 March 2010).

34 . In light of the foregoing conclusions, the Court finds that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.

2. The length of the reopened proceedings

35 . The applicant did not submit any comments.

36 . The Government submitted that the length of proceedings was reasonable and no delays could be attributed to the authorities.

37 . The Court considers it appropriate to take into account only the periods when the case was actually pending before the courts, that is the periods when there was no effective judgment in the determination of the merits of the applicant ’ s dispute and when the authorities were under an obligation to pass such a judgment. The periods during which the domestic courts decided whether or not to grant the supervisory-review request should be excluded (see, mutatis mutandis , Irina Fedotova v. Russia , no. 1752/02, § 30, 19 October 2006 ).

38 . The Court considers that the proceedings were pending during two periods. The first period commenced on an unspecified date in 1995 and ended on 6 May 1998 when the Supreme Court rejected the applicant ’ s appeal. The second period began on 18 January 2002 with the supervisory ‑ review decision and ended on 2 December 2005 with the Constitutional Court ’ s decision.

39 . However, the Court observes that the period to be taken into consideration began on 2 October 1996, when the Convention entered into force in respect of Albania. Therefore, at least five years and five months are in the Court ’ s competence ratione temporis . During this period the case was determined by the courts of four instances. In assessing the reasonableness of the length of the proceedings account must be taken of, in particular, the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, what was at stake for the applicant has also to be taken into account (see, amongst others, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 67, ECHR 2007 ‑ II).

40 . The Court would agree that the overall proceedings were complex as they involved assessment of evidence dating back to the 1930s. The domestic courts were active and speedily conducted the proceedings. There appears to be no period of inactivity and the applicant did not point to any evidence to the contrary. The domestic decisions were taken at regular intervals by the first instance court and on appeal. Thus, having regard to the proceedings as a whole, the Court finds that they did not exceed a “reasonable time” within the meaning of Article 6 § 1 of the Convention.

41 . Consequently, the Court considers that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.

B. As regards an alleged breach of Article 1 of Protocol No. 1 to the Convention

42 . The applicant complained that the unfairness of the domestic proceedings had breached his property rights under Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

43. The Court observes that the fact that the State, through its judicial system, provided a forum for the determination of the applicant ’ s rights and obligations does not automatically engage its responsibility under Article 1 of Protocol No. 1 (see , amongst others, Melnychuk v. Ukraine (dec.), no. 28743/03, 5 July 2005 ). In exceptional circumstances, the State might be held responsible for losses caused by arbitrary determinations. However, the Court refers to its findings in paragraphs 25-34 above , under Article 6 § 1 of the Convention, that in the present case the national courts proceeded in accordance with domestic law, giving full reasons for their decisions. Thus, their assessment was not flawed by arbitrariness or manifest unreasonableness contrary to Article 1 of Protocol No. 1.

44. It follows that this complaint must be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention .

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Françoise Elens-Passos Ineta Ziemele Registrar President