THIRD SECTION
CASE OF ZELA v. ALBANIA
(Application no. 33164/11)
 
JUDGMENT
 
Art 6 § 1 (civil) • Reasonable time • Overall length of compensation proceedings, lasting more than eight years at four levels of jurisdiction, not exceeding what may be considered reasonable in case circumstances
Art 1 P1 • Deprivation of property • Demolition of applicant’s building on the ground that its construction was illegal and annulment of his title thereto without compensation • Disproportionate burden on applicant who was made to bear all consequences for creating situation leading to building’s demolition despite shared responsibility for it • Particular importance of the principle of good governance in this context • No indication of bad faith on the applicant’s part • Failure to strike a fair balance between the public interest and applicant’s property rights
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
11 June 2024
 
FINAL
 
11/09/2024
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zela v. Albania,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
 Jolien Schukking, President,
 Darian Pavli,
 Peeter Roosma,
 Ioannis Ktistakis,
 Andreas Zünd,
 Oddný Mjöll Arnardóttir,
 Diana Kovatcheva, judges,
and Milan Blaško, Section Registrar,
Having regard to:
the application (no. 33164/11) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Albanian national, Mr Skënder Zela (“the applicant”), on 5 May 2011;
the decision to give notice to the Albanian Government (“the Government”) of the complaints concerning the unfairness and length of the proceedings under Article 6 § 1 of the Convention, the applicant’s right to respect for his home under Article 8 of the Convention, his right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 to the Convention and his right to an effective remedy under Article 13 of the Convention, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 21 May 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the demolition of the applicant’s building and the length of the proceedings concerning his claim for compensation. THE FACTS
2. The applicant was born in 1953 and lives in Tirana. He was represented by the law office Haxhia and Hajdari, from Tirana. 3. The Government were initially represented by their then Agent, Ms A. Hicka, and subsequently by Mr O. Moçka, General State Advocate. 4. The facts of the case may be summarised as follows. 5. On 10 December 1991 the Executive Committee of Tirana Region No. 2 (“the Executive Committee”) issued a collective authorisation assigning lots on the Lana river bank for construction of various objects, mostly kiosks such as meat and vegetable stalls, and garages. The applicant’s name was not included in that authorisation. 6. On 19 May 1992, the Urban Planning Section of the Executive Committee, referring to the authorisation of 10 December 1991, issued a construction permit to the applicant for a residential building with a surface area of 115.5 square metres per floor (462 square metres in total). The permit was issued for a period of six months starting on 1 June 1992, meaning that construction was to be begun as of 1 June 1992 and completed by 1 December 1992. It appears thar the permit allowed the building to remain in place for one year after construction had finished. It was indicated in the permit itself that it had been issued on the basis of Decree no. 5747 of the Presidium of the People’s Assembly of 29 June 1978, as amended, as well as on the basis of decision no. 255 of the Presidium of the People’s Assembly of 30 June 1980, as amended. 7. The applicant claimed that on 19 May 1992 he had purchased a 218‑square-metre plot of land from the State for the price of 18,000 Albanian lek (ALL). 8. On 28 March 1993 the applicant completed the construction of a building comprising three storeys and a basement. It housed the applicant’s place of residence, as well as a bakery, a warehouse, a tyre shop and offices for his business. The second floor measuring 118.72 square metres, and the attic measuring 93.75 square metres were used as residential area, whereas other parts of the building were used for business purposes. A technical survey report of 28 March 1993 stated that a compliance assessment had been carried out on the building and that the building was built on land in the applicant’s possession in accordance with permits issued by the relevant authorities. The building in issue was residential, had a surface area of 115.5 square metres and was built on 218.7 square metres of land. 9. On an unspecified date the applicant asked the Tirana District Court to acknowledge as a legal fact the existence of both a three-storey residential building with a surface area of 115.5 square metres and a plot of land measuring 218.7 square metres. On 30 July 1997 the Tirana District Court granted the applicant’s request. 10. On 16 August 1997 the applicant registered that building as his property with the Real Estate Registration Office and was provided with an ownership certificate. 11. On 24 May 2002 the Tirana Territory Regulation Council (“the TTRC”), relying on Law no. 8405 of 17 September 1998 on urban planning, ordered the demolition of all unlawful (unauthorised) buildings in the segment running from the bridge near the Vasil Shanto School to the bridge near the Technological School on both sides of the Lana River, regardless of the year of construction. 12. On 16 September 2002 two inspectors from the Construction Police made a police record establishing that the applicant had committed administrative offences under sections 45, 66, 75 and 77(2) of Law no. 8405 of 17 September 1998 on urban planning. 13. On 17 September 2002 the Tirana Construction Police ordered the demolition of the applicant’s building on the basis of the TTRC decision of 24 May 2002 and the police record of 16 September 2002. The applicant was notified of that decision on the same day and was given five days to demolish his building. The applicant lodged a complaint with the Head of the Construction Police and requested that the demolition order be revoked. 14. On 19 September 2002 the applicant brought a civil action in the Tirana District Court against the Tirana Construction Police and the Municipality of Tirana, seeking to have the demolition order of 17 September 2002 set aside and to be recognised as the owner of the three-storey residential building to which it applied. He also sought an interim measure in the form of the suspension of the decision to demolish his building. On that same date, at an unspecified time, the Tirana District Court granted the requested interim measure until the proceedings had been completed, in order to avoid irreparable consequences for the applicant. 15. The applicant’s building was demolished on 19 September 2002. 16. After the demolition, the applicant altered his claim, instead seeking compensation for the demolition of his property, namely a residential building and commercial unit, and for the loss of the land, in the amount of ALL 52,850,000. He relied on Articles 608 and 609 of the Civil Code (see paragraph 29 below). 17. On 16 October 2002 the Head of the Construction Police rejected the applicant’s claim on the grounds that the decision to grant him a construction permit had been unlawful under section 1 of Presidential Decree no. 772 of 14 February 1994 (see paragraph 31 below). 18. In the same decision the Head of the Construction Police amended the decision of 17 September 2002 and ordered the demolition of the applicant’s building on the basis of violations of sections 45 and 77(2) of Law no. 8405 of 17 September 1998 on urban planning. 19. At a hearing held on 18 October 2002 in the Tirana District Court, the applicant requested that the decision of 16 October 2002 be set aside. 20. In a judgment of 15 April 2003 the Tirana District Court dismissed the applicant’s claim for compensation and revoked its interim measure of 19 September 2002. The District Court held that non-contractual damages under Articles 608 and 609 of the Civil Code might be awarded when the following four cumulative conditions had been fulfilled: an unlawful act or omission; the existence of damage; fault; and a causal link between the act or omission and the damage caused. The District Court established that at least one of those elements was missing, namely an unlawful act or omission on the part of the defendants. As regards the applicant’s claim for damages in respect of the demolition of his building, the District Court found that the construction of the building had been unlawful on the grounds that the applicant had not proved that he had bought the land on which the building had been constructed. He had only produced an invoice stating that he had paid ALL 18,000 to the State. However, the purpose of that payment was not clear as it was not specified on the invoice. Furthermore, such an invoice could not in itself serve as proof of purchase of land from the State. For such a purchase to be valid, a written contract needed to be entered into in the form of a notarial deed and that contract had to be properly registered, as required under Article 89 § 2 of the 1981 Civil Code. Since the applicant had not complied with those requirements, he had not proved that he had become the owner of the land in issue, making any building he had constructed thereon unlawful. The construction permit of 19 May 1992 had been issued to the applicant for six months only, meaning that the construction had had to start as of 1 June 1992 and be completed by 1 December 1992. The building constructed under the permit had been allowed to remain in place for one year following the completion of construction. After the expiry of that period, the applicant had had to seek a new permit. However, the applicant had not proved that he had completed construction by 1 December 1992. He had only registered the constructed building on 16 August 1997, following the Tirana District Court’s decision of 30 July 1997. However, under Article 193 of the Civil Code, a judicial decision merely certifying a legal fact (of possession) could not serve as proof of title to property. Furthermore, the applicant had altered the purpose of the building by using it as a commercial property, thereby violating Decree no. 5747 of 29 June 1978 on urban planning, which only allowed dwellings for personal use to be constructed by individuals in urban areas. The Construction Police was entitled to order that any unlawful buildings be demolished. Furthermore, section 77 of Law no. 8405 (1998) on urban planning provided for the demolition of any unlawful building hindering progress on projects under approved studies. The TTRC decision of 24 May 2002 had established that the unlawful buildings on the specified segment of the banks of the Lana River had been an obstacle to the implementation of the Municipality of Tirana’s plans for works on the bed of the Lana River and of one portion of the main wastewater collector in that segment of the river. All the above considerations led the District Court to conclude that the decisions ordering the demolition and the actual demolition of the applicant’s unlawful building had not been unlawful themselves. As regards the applicant’s claim for damages in respect of the loss of the land, the District Court held that the applicant had not proved that he had been the owner of that land. 21. On an appeal by the applicant, the Tirana Court of Appeal on 24 December 2003 upheld in part the first-instance decision in so far as it concerned the claim against the Municipality of Tirana, and reversed it in so far as it concerned the claim against the Head of the Construction Police, ordering that institution to pay the applicant ALL 52,850,000 in respect of the damage caused by the demolition of the residential building and commercial units owned by the applicant. 22. On 6 October 2005 the Supreme Court quashed the Court of Appeal’s decision and remitted the case to it. 23. On 8 May 2007 the Tirana Court of Appeal upheld the Tirana District Court’s decision of 15 April 2003, endorsing its reasoning. 24. On 6 June 2007 the applicant lodged an appeal with the Supreme Court, which dismissed it summarily on 12 June 2009. 25. On 12 April 2010 the applicant lodged a constitutional complaint, providing his lawyer’s address as Rruga Komuna e Parisit, Pall 2/2. 26. On 22 July 2010 a three-judge panel of the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. According to the Government, that decision was sent to the applicant’s lawyer by mail on 20 September 2010 at the address he had provided in the constitutional complaint. 27. On 2 April 2011 the applicant’s lawyer sent a letter to the Constitutional Court asking about the applicant’s case. In that letter he provided the same address. The Constitutional Court answered in a letter of 4 April 2011, sent to the applicant’s lawyer at the address Rruga “Komuna e Parisit”, Pall. 2/2, stating that it had given a decision in the applicant’s case on 22 July 2010 and had already sent it to the applicant’s lawyer on 20 September 2010. The Constitutional Court enclosed the letter of 20 September 2010. RELEVANT LEGAL FRAMEWORK and practice
1981 CIVIL CODE
28. The relevant part of Article 89 of the 1981 Civil Code provides that a contract for the transfer of property is valid only if it is entered into in the form of a notarial deed and subsequently registered.
1994 CIVIL CODE
29. Article 193 § 1 (dh) of the 1994 Civil Code provides, inter alia, that court decisions on recognition of property ownership are registered in the Land Registry as proof of title. Paragraph 2 of that Article provides that court decisions acknowledging the legal fact of ownership are not registered in the Land Registry, which means that they cannot serve as proof of title. Article 608 of the Civil Code provides that anyone who unlawfully causes damage to another person or to that person’s property is obliged to pay compensation for that damage, unless he or she proves that he or she is not at fault. Article 609 provides that the damage must be the result of a person’s direct and immediate act or omission. LAW No. 7693 OF 6 APRIL 1993 ON URBAN PLANNING
30. Under section 29 of Law no. 7693, the time-limit for requesting a construction permit after a construction site had been approved was between three and six months, depending on the size of the construction site. The relevant councils had the power to extend those time-limits; however, the failure to respect the time-limits rendered the initial approval of the construction site invalid. DECREE No. 772 OF 14 FEBRUARY 1994
31. Section 1 of Decree no. 772 of 14 February 1994 (see paragraph 17 above) amended Law no. 7693 of 6 April 1993 on urban planning by adding section 29(a), which provides that the remainder of that section also applies to all construction sites approved by local government bodies after 1 January 1990. It further states that natural or legal persons will be reimbursed the price they paid for a construction site if the decision approving their purchase is revoked. LAW No. 8405 OF 17 SEPTEMBER 1998 ON URBAN PLANNING
32. The relevant parts of Law no. 8405 provide as follows. Section 4 requires all construction in Albania to comply with urban and environmental planning studies, technical norms and conditions, and all laws and by-laws in force. Section 44 requires potential construction sites to be approved or rejected within two months. Section 45 requires a building permit to be obtained for all construction. Section 66 provides that construction in tourist areas must protect the environment and is prohibited if there is no approved engineering infrastructure in place. Section 75 provides that unlawful construction is subject to fines and may lead to demolition. The Head of the Construction Police is competent to impose fines and issue demolition orders, while the Construction Police carries out demolition orders. Section 77 defines the powers of the Council for Adjustment of Territory under the Municipality of Tirana and other first-category cities (CAT) in respect of unlawful buildings constructed before the Law in issue came into force. In particular, subsection 2 provides that where such buildings pose a risk for the environment or occupy public space, immediate demolition is ordered and carried out. PRACTICE OF THE CONSTITUTIONAL COURT ON DELIVERY OF JUDGMENTS
33. Under the Internal Regulations (2009) and relevant practice of the Constitutional Court, as in force at the relevant time, the judgments of the plenary court were announced either at a public hearing, to which the parties were invited, or by delivery of the written judgment to the parties. The decisions of the three-judge panels (kolegj) of the court on the inadmissibility of individual complaints were, as a rule, delivered to the parties by mail. THE LAW
PRELIMINARY REMARKS
Compliance with the six-month rule
The parties’ submissions
34. The Government argued that the application had been lodged outside the six-month time-limit because the Constitutional Court had sent its decision of 22 July 2010 to the applicant’s lawyer on 20 September 2010 at the address indicated in the constitutional complaint. However, since the lawyer had not informed the Constitutional Court of the change of the street name, he could not complain that that decision had not been properly delivered to him. Moreover, even in his letter to the Constitutional Court of 2 April 2011, he had indicated the same address. 35. The applicant argued that the decision of 22 July 2010 had been notified to his lawyer only after he had sent a letter to the Constitutional Court through his lawyer on 2 April 2011 asking about the case. He also pointed out that the Government had not submitted any evidence that the decision had been notified to his lawyer earlier. He further submitted that the name of his lawyer’s street had changed and that the decision had therefore not been sent to the correct address.

Outcome for Article P1-1: violation