Communicated on 6 January 2015

FOURTH SECTION

Application no. 33183/07 PRIMA SH.P.K. and Artan KOZMAI against Albania lodged on 25 July 2007

STATEMENT OF FACTS

The applicant company , Prima sh.p.k . , is a limited liability company whose registered office is in Tirana. The applicant, Mr Artan Kozmai , is an Albanian national who was born in 1962 and lives in Tirana. The applicant is the owner and the administrator of the applicant company. The applicants are represented before the Court by Ms E. Kokona , a lawyer practising in Tirana .

A. The circumstances of the case

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

1 . Proceedings concerning the approval of a planning and building permit in favour of the applicant company

On 16 August 1997 the Tirana Municipality ’ s Council for Territorial Planning (“Tirana CTP”) , relying on an agreement concluded between the applicant company and the applicant, granted the applicant company a planning permit . At the time, the applicant company was owned by a third party.

On 14 October 1997 the Tirana CTP granted the applicant company a building permit authorising it to erect an eight -storey building.

2. Judicial p roceedings against the applicant company ’ s construction works

On an unspecified date, most likely in 1998, following the start of construction works by the applicant company, the neighbours of an adjacent house lodged a civil action seeking the cessation of interference with their property rights on account of a new construction and the annulment of the Tirana CTP decision (no other details having been given about which decision). The neighbours, relying, inter alia , on Article 303 of the Civil Code, alleged that the new construction adversely affected the east side of their property.

On 5 May 1998 the Tirana District Court (“the District Court”) decided to stay the construction works.

On 20 November 1998 the District Court , following an expert ’ s report, accepted the part of the civil action which concerned the cessation of interference with, inter alia , the foundations and sewage system of the neighbours ’ house. No decision was taken as regards the annulment of the Tirana CTP decision. The applicant appealed.

On 16 April 1999 the Tirana Court of Appeal (“Court of Appeal”) rejected the appeal and upheld the District Court ’ s decision . The applicant appealed.

On 8 March 2000 the Supreme Court quash ed both lower courts ’ decisions. It held that the lower courts had failed to rule on the annulment of the Tirana CTP decision and the parties ’ obligations to resolve the dispute. It remitted the case to the District Court for a fresh examination by a different bench .

3. Re-hearing proceedings

Following the remittal of the case, according to the applicants forty-six hearing were held before the District Court between 15 May 2000 and 16 April 2002. Both applicants were represented by lawyer E.H.

On 16 April 2002 the District Court partially accepted the civil action . It ordered the applicant company to end the interference with the neighbours ’ property rights . I t further dismissed as ill-founded the part of the civil action concerning the annulment of the building permit .

(a) Appeal proceedings

The applicant company appealed.

On an unspecified date the Court of Appeal decided to re-open the judicial examination and ordered that an experts ’ report be carried out. Both applicants were represented by lawyer E.H.

On 21 July 2003 the Court of Appeal quash ed the District Court ’ s decision and reject ed the neighbours ’ civil action . The court found that the neighbours had not appealed to the higher administrative body, no indication of such body having been made; nor had they introduced the civil action within the thirty-day time-limit as provided for in Article 328 of the Code of Civil Procedure (“CCP”). The court further held that the initial expert ’ s report had been carried out by a surveyor who did not possess sufficient knowledge about urban planning, architecture and construction engineering. As a result, the Court of Appeal had re-opened the judicial examination and ordered a fresh report to be carried out by three experts: an urban planner, a constructor and an architect. The experts ’ report had concluded that the construction project did not pose a risk to the neighbours ’ property as regards the foundations, the sewage system and airing within the meaning of Article 303 of the Civil Code.

(b) Proceedings before the Supreme Court

On an unspecified date in 2003 the neighbours appealed.

On 9 October 2003 the applicants ’ lawyer lodged a counter-appeal complaining, inter alia , that the neighbours ’ civil action had been lodged outside the time-limit prescribed in Article 328 of the CCP.

On 16 November 2004, while the proceedings were pending before the Supreme Court, the applicant became the new owner of the applicant company.

On 23 November 2004 a hearing was held before the Supreme Court . Both applicants were represented by lawyer E.H. On the same day, the Supreme Court quashed the Court of Appeal ’ s decision and found that the new construction posed a risk to the neighbours ’ property within the meaning of Article 303 of the Civil Code. It ordered the applicant company to end the interference with the neighbours ’ property rights

The Supreme Court held that a passageway ( rrugë kalimi ), whose destination could not be altered, bordered the east side of the neighbours ’ property. Furthermore, windows had been installed on the east side of the neighbours ’ property in respect of a toilet, kitchen and a small room ( aneks ). Having regard to their lawful existence, they should have been taken into account in granting the planning permit. The building permit did not contain any mention of urban planning distances, which were adversely affected as a result of construction works. This was precisely noted in the expert ’ s report carried out during the first-instance court proceedings. The experts ’ report carried out on appeal circumvented the neighbours ’ claim and its conclusions did not take account of the overall circumstances of the case.

The Supreme Court further annulled the planning and building permits granted to the applicant company. It held that, since the construction work had been stayed and had never resumed and, since the building permit had been valid only for six months and no renewal requests had been made, the decisions granting those permits were annulled in accordance with sections 60 and 33 of the 1993 Urban Planning Act.

(c) Proceedings before the Constitutional Court

On 26 November 2006 the applicant company lodged a constitutional complaint. It submitted, inter alia , that the Supreme Court had overstepped its competence by conducting an assessment of evidence and examining the merits of the case. It further argued that the Supreme Court ’ s decision lacked reasons as regards breaches of the Urban Planning Act and the fact that the defendants had not lodged a civil action within the thirty-day time-limit as required by Article 328 of the CCP.

On 30 January 2007 the Constitutional Court , sitting as a bench of three judges, rejected the constitutional complaint as inadmissible, no reasons having been given.

B. Relevant domestic law

1. The Urban Planning Act 1993 (Law no. 7693 of 6 April 1993 8405 of 17 September 1998 as amended by Law no. 8015 of 19 October 1995 and Law no. 8249 of 7 October 1997 ) (“The 1993 Act”)

The 1993 Act instituted a two-tier procedure for obtaining the necessary permits. According to the Act, a n application for planning permission ( kërkesa për shesh ndërtimi ) should have initially be en submitted for examination and approval by the Municipal CTP pursuant to section 22 . A building permit ( leje ndërtimi ) should then have been obtained pursuant to section s 28-32 . This was the sole legal document on the basis of which construction work could start .

Under section 33 a building permit was valid for six months. If the construction works lasted more than six months, the building permit was to be granted for the whole duration of the works.

Under section 60, as amended, the building permit would, inter alia , be annulled if the construction works did not start within three months from the date of granting the building permit pursuant to sections 28 and 33.

The 1993 Act did not explicitly provide for a right to appeal against the Municipal CTP ’ s decision to a higher administrative body. Under section 7, as amended, the National Council for Territorial Planning could take reasoned decisions as regards the competences of Municipal CTPs.

The 1993 Act was repealed on 17 September 1998 by the Urban Planning Act 1998, which entered into force on 25 October 1998.

2. Civil Code

Under Article 303 an owner, who has reason to believe that his/her property would be damaged on account of a new construction, may lodge a civil action on the condition that the construction has not finished and that a one-year time-limit does not elapse. The court may order, inter alia , to stop the construction, to demolish it or to reject the civil action.

3 . Code of Civil Procedure (“CCP”)

Under Article 324 of the CCP a claimant may seek the annulment of an administrative act. A claimant may also challenge the authorities ’ refusal to take an administrative act within the prescribed time-limit. In accordance with Article 325 a claimant may also seek payment of damages.

Under Article 328 the time-limit for lodging an action for the annulment of an administrative act is thirty days from the date of delivery or notification of the decision by the highest administrative authority.

With regard to the appeal procedure before the Supreme Court , Article 472 of the CCP states that “ d ecisions of the Court of Appeal and the District Court may be appealed against to the Supreme Court on the following grounds: (a) the law has not been complied with or has been applied erroneously; (b) there have been serious breaches of procedural rules (pursuant to Article 467 of the Code); (c) there have been procedural violations that have affected the adoption of the decision.”

In accordance with Article 485, the Supreme Court may decide to: uphold the decision, quash the appellate court ’ s decision and uphold the first-instance court ’ s decision, quash the appellate court ’ s decision and remit the case for re-hearing by a different bench of the appellate court, quash the appellate court and the first-instance court ’ s decisions and remit the case for re-hearing by a different bench of the first-instance court, alter the appellate court and the first-instance court ’ s decisions, quash all decisions and discontinue the proceedings.

COMPLAINTS

The applicants complain under Article 6 § 1 about the lack of adequate reasons contained in the Supreme Court ’ s decision. They further allege that there has been a breach of Article 1 of Protocol No. 1 to the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a breach of Article 6 § 1 of the Convention? In particular, did the Supreme Court examine the applicants ’ plea that the plaintiffs ’ civil action had been lodged out of time (see, for example, Ruiz Torija v. Spain , 9 December 1994, Series A no. 303 ‑ A )?

2. Has there been a breach of the applicants ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?