19 December 2008

FOURTH SECTION

Application no. 18439/05 by Astrit BEJKO against Albania lodged on 2 May 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Astrit Bejko , is an Albanian national who was born in 1950 and has been living in Chiaravalle , Italy , since 2002 . He is represented before the Court by Mr S. Puto , a lawyer practising in Tirana.

A . The circumstances of the case

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

In 1988 the applicant sought to obtain housing from the State. In 1990 his wife was issued with an occupancy authorisation ( autorizim ) by the Neighbourhood People ’ s Council ( Këshilli Popullor i Lagjes ) to a flat in a State-owned building. On 22 May 1990 a secure-tenancy agreement was concluded between the applicant ’ s wife and the State-owned housing maintenance authority ( Ndërmarrja Komunale Banesa ) (see “Relevant domestic law” below) .

On 11 August 1990 the applicant entered into an agreement with the local authority to vacate the flat and exchange it with another flat, whose construction had not been completed. He concluded a provisional secure-tenancy agreement in respect of the new flat on 17 February 1992.

In 1992 the Privatisation of State-Owned Housing Act entered into force. A National Housing Agency (“the Agency”) was also established (see “Relevant domestic law” below).

On 24 February 1994 the municipality of Tirana (“the Municipality”), decided to issue the applicant with an occupancy authorisation to another flat. He was unable to conclude a secure-tenancy agreement with the housing maintenance authority in the light of a letter of 18 April 1994 notifying him of a decision by the Municipality to halt further action.

On 10 May 1994 the Municipality revoked its decision of 24 February 1994.

On 10 October 1996 the Tirana Municipal Council (“the Council”) decided that the applicant should be provided with a new occupancy authorisation for another flat and this was issued on 15 October 1996. It indicated the exact address of the applicant ’ s new two-bedroom flat, which was different from the address of the flat indicated in the Municipality ’ s decision of 24 February 1994.

The building in which the applicant ’ s new flat was located had been constructed with the aid of contributions from a State-owned company. In accordance with the statutory requirements, the State-owned company had submitted a list of its homeless employees to the local authorities in order to be entitled to housing (see “Relevant domestic law” below). Consequently, a third party, R.S ., had been issued with an occupancy authorisation for a one-bedroom flat which it was subsequently discovered coincided with the applicant ’ s flat (see below) and, another party, F.D., had been issued with authorisation for a three-bedroom flat, adjacent to the applicant ’ s [and R.S. ’ s ].

On 6 August 1996 F.D. concluded a provisional contract with the Agency for the purchase of his flat, while the final contract was entered into on 11 March 1997. On 30 January 1997 R.S. concluded a provisional contract with the Agency for the purchase of his flat; the final contract was entered into on 24 February 1997.

Confronted with pressing housing needs, the applicant occupied the flat on an unspecified date in 1996 before its completion. A third party, R.B., occupied the neighbouring flat on the strength of an occupancy authorisation for a two-bedroom flat. The applicant found that the construction company, on instructions from the Agency, had amended the layout of the building so that the flat occupied by the applicant had only one bedroom [corresponding to R.S. ’ s occupancy authorisation]. The neighbouring flat, allocated to R.B., had been modified to a three-bedroom flat instead of the original two-bedroom flat [this corresponded to F.D. ’ s occupancy authorisation]. The applicant and R.B. then converted the flats into two-bedroom flats, with the approval of the Municipality. However, despite the applicant ’ s attempt to conclude a sale contract with the Agency, none was ever signed [as the Agency had concluded a sale contract with R.S.].

By a letter of 6 February 1997 the Agency requested the Municipality and the Council to terminate the applicant ’ s occupancy of the flat since the flat had already been assigned to R.S and F.D. On 15 May 1997 the Council decided to amend the applicant ’ s occupancy authorisation of 10 October 1996 and to grant him a new authorisation in respect of a flat whose construction had not begun.

On an unspecified date the applicant initiated legal proceedings contesting the Council ’ s decision of 15 May 1997. These proceedings, which continued until 27 January 2003 at various levels of jurisdiction, ended with the dismissal of the applicant ’ s claims.

On an unspecified date in May 2001 the applicant began a hunger strike to protest against the injustices he believed he had suffered ( he submitted news paper cuttings as evidence of t his ) . Consequently, o n 20 July 2001 the Council decided to amend his occupancy authorisation of 15 May 1997 by changing the address back to the one indicated in its decision of 10 October 1996.

In October 2001 the applicant was forcibly evicted from his flat by the police.

1. Proceedings by F.D. against the applicant

On 20 January 1998 F.D. initiated legal proceedings against the applicant. He requested that the applicant restore to him the room he had occupied as a result of the modification to the layout of the building. The proceedings, which continued until 7 February 2005 before various levels of jurisdiction, ended in a finding that F.D. had acquired property rights over the flat by virtue of the sale contract of 11 March 1997, while the applicant did not enjoy any property rights since his occupancy authorisation of 1996 had been revoked in 1997. None of the domestic courts ’ decisions disputed the finality of the Council ’ s decision of 20 July 2001 in respect of the applicant ’ s occupancy right recognised therein.

2. Proceedings by R.S. against the applicant

On 25 September 1997 R.S. initiated legal proceedings against the applicant requesting him to vacate the flat, which R.S. alleged he had occupied unlawfully. The proceedings continued until 21 November 2002 before various levels of jurisdiction and resulted in a finding that R.S. had acquired property rights over the flat by virtue of the sale contract of 24 February 1997 and that the applicant did not enjoy any property rights since his occupancy authorisation of 1996 had been revoked in 1997. None of the domestic courts ’ decisions disputed the finality of the Council ’ s decision of 20 July 2001 in respect of the applicant ’ s occupancy right recognised therein.

In September 2002 the applicant initiated legal proceedings against R.S. alleging that the sale contract between R.S. and the Agency was invalid. The proceedings were concluded on 9 December 2004 in favour of R.S.

1. The Constitution

The relevant part of Chapter V of the Constitution, which is entitled “Social Objectives” , reads as follows:

Article 59

“The State, within its constitutional powers and the means available to it, and in the fulfilment of the private initiative and responsibility, aims at:

...

b. the fulfilment of the housing needs of its citizens.

...”

2. The Civil Code

The relevant provisions of the Civil Code read:

Article 419 – Definition of an obligation

“An obligation is a juridical relationship through which a person (“the obligor”) is obligated to give something or to perform or to refrain from performing a certain act on behalf of another person (“the obligee ”), who has the right to request to be given something, or to request the performance or non-performance of the act.”

Article 455

“The obligor and obligee must show proper care and must be punctual in the discharge of the obligation according to its content”.

Article 476

“Any failure to discharge an obligation shall impose a duty on the obligor to provide compensation for the damage caused to the obligee , except if the obligor proves that the failure to comply occurred through no fault of his own.

In such cases the obligee shall have the right to:

a. demand discharge of the obligation in kind, especially by delivery of the object or performance of the works, as well as compensation for the damage caused by the delay;

b. compensation for the damage caused by the failure to discharge the obligation.”

3. The Local Government (Organisation and Operation) Act (Law no. 7572 of 10 June 1992, as amended by Law no. 8652 of 31 July 2000)

The 1992 Act established the organisation of local government in the country. Three administrative units were established: the commune ( komunë ), the municipality ( bashkia ) and the district ( rreth ). The organs of the municipality were the mayor and the municipal council. One of the responsibilities of the municipal council was to take measures to provide employment and housing. It had power to issue ordinances and decisions.

The 2000 Act introduced two administrative units in addition to the commune and municipality: the district ( qarku ) and the sub-division ( nëndarja ). Section 10 recognises the municipality ’ s responsibility for urban planning, land-management and housing as provided for in the relevant legislation.

4. The Privatisation of State-owned Housing ( banesa shtetërore ) Act (Law no. 7652 of 23 December 1992)

This Act aimed at privatising State-owned housing and creating a free housing market, empowering tenants to become owners. It enabled individuals residing, by virtue of a secure-tenancy agreement, in flats owned by the State to transfer their flat into their private ownership, upon compliance with a set procedure, payment of the full privatisation price and registration of the property at the mortgage registry.

5. Decisions and ordinances of the Council of Ministers

(a) Ordinance ( urdhëresë ) on the examination of housing requests and their allocation (Ordinance no. 1, dated 7 July 1989)

Under this ordinance, citizens were entitled to obtain a right of use of flats owned by the State [the property rights remained with the State]. A housing request had to be lodged with the Neighbourhood People ’ s Council ( Këshilli Popullor i Lagjes ), which could grant the right to use the flat by issuing the citizen with an occupancy authorisation ( autorizim ). A secure-tenancy agreement was concluded within ten days between the tenant and the State-owned housing maintenance authority ( Ndërmarrja Komunale Banesa ). At the request of the Neighbourhood People ’ s Council, the tenants or members of their family could be evicted if they were provided with alternative accommodation.

(b) Decision of the Council of Ministers on the construction, allocation and administration of flats built by State-owned companies (Decision no. 577 of 6 December 1993 as amended by Decision no. 527 of 17 October 1994)

The decision provided that State-owned companies and institutions could use their profits to construct flats to accommodate the housing needs of their homeless employees ( punonjësit e pastrehë ). The necessary funding was deposited with the National Housing Agency. The allocation of flats was conducted by the company or the institution itself, according to a list of employees who would benefit from such housing. The list of beneficiaries was deposited with the local authority.

(c) Decision of the Council of Ministers on the establishment of the National Housing Agency ( Enti Kombëtar i Banesave ) (Decision no. 431 of 12 October 1992 as revoked by Decision no. 198 of 4 May 1993)

The decision provided for the establishment of the National Housing Agency, which was responsible for financing, constructing and administering housing ( banesa ) in the country. Some of its responsibilities include the conclusion of contracts for the construction, completion and sale of flats and cooperation with local authorities in fulfilling their housing obligations. As regards the sale of flats, a provisional sale contract was initially concluded with the party concerned, followed by a final sale contract.

The National Housing Agency ’ s funds consist of allocations by the State and local budgets, loans by domestic and international financial institutions, donations and the privatisation of State-owned housing ( banesa ).

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention about the non-enforcement of the Council ’ s decision of 20 July 2001. He also complains about the length of the related proceedings. Under Article 1 of Protocol No. 1 to the Convention, the applicant complains of a violation of his right to property as a result of the non-enforcement of the Council ’ s decision of 20 July 2001.

QUESTIONS TO THE PARTIES

1. Is Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention applicable in the present case? Did the Tirana Municipal Council ’ s decision of 20 July 2001 generate enforceable rights on behalf of the applicant?

2. Did the applicant exhaust all effective domestic remedies, as required by Article 35 § 1 of the Convention, to secure the enforcement of the Tirana Municipal Council ’ s decision of 20 July 2001?

3. Has there been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention by reason of the fact that the Tirana Municipal Council ’ s decision of 20 July 2001 has not been enforced?

4. Has there been a breach in the present case of the “reasonable-time” requirement of Article 6 § 1 of the Convention?