KUÇI A OSTATNÍ proti Albánii

THIRD SECTION

DECISION

Application no. 46106/15
Muhamet KUÇI and Others
against Albania

The European Court of Human Rights (Third Section), sitting on 11 June 2024 as a Committee composed of:

Ioannis Ktistakis, President,
Darian Pavli,
Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 46106/15) 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”) on 16 September 2015 by thirty-four Albanian nationals, relevant details listed in the appended table, (“the applicants”) who were represented by Mr R. Malaj, a lawyer practising in Shkodra;

the decision to give notice of the application to the Albanian Government (“the Government”), initially represented by their Agent, Ms A. Hicka, and subsequently by Mr O. Moçka, General State Advocate;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The present application is a follow-up to the Court’s judgment Karagjozi and Others v. Albania [Committee] (nos. 25408/06 and 9 others, 8 April 2014) in so far as that judgment refers to the Okaj family members (application Okaj v. Albania, no. 15075/09). It concerns the applicants’ complaints under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention about the alleged failure of the domestic authorities to enforce a final decision awarding the applicants compensation instead of the restitution of property.

2. On 3 October 1995 the Shkodra Commission on Restitution and Compensation of Property (the “Shkodra Commission”) restored the inherited property title to the heirs of Y.O. on three plots of land measuring 4,910 sq. m, 1,880 sq. m and 1,640 sq. m, respectively, totalling 8,430 sq. m. It further decided that the heirs of Y.O. would be compensated in one of the ways provided for by law in respect of another plot of land measuring 2,833 sq. m. Finally, it recognised the heirs’ right to first refusal of a further plot of land measuring 14,537 sq. m (see Karagjozi and Others, cited above, § 31).

3. On 8 November 2006 the Shkodra District Court granted the claim of the applicants in the present application, members of the Kuçi family, to be recognised as heirs of Y.O., and owners of four-fifths of the property from the above-mentioned decision of the Shkodra Commission of 3 October 1995, and it obliged the members of the Okaj family, also heirs of Y.O., to recognise the present applicants as co-heirs of that property.

4. The judgment of 8 November 2006 was upheld on appeal on 28 June 2007 and then by the Supreme Court on 28 October 2011.

5. On 7 March 2009 the members of the Okaj family brought their application to the Court, claiming the domestic authorities’ failure to enforce the decision of 3 October 1995 of the Shkodra Commission (see paragraph 2 above) - a final administrative decision constituting a property title - restoring to the Okaj applicants certain plots of land.

6. On 8 April 2014 the Court in the above-mentioned judgment of Karagjozi and Others, found, inter alia, that the right to a fair trial and to peaceful enjoyment of their possessions of the applicants in the Okaj case had been violated because of the failure of the domestic authorities over many years to enforce domestic decisions and to pay the compensation awarded to them (see § 54 of the Karagjozi and Others judgment).

7. The Court awarded the applicants in the Okaj case 820,500 euros (EUR) in compensation for the pecuniary and non-pecuniary damage resulting from the violations found, in relation to either resore to them or compensate them for the three plots of land plot measuring in total 8,430 square metres (see Karagjozi and Others, cited above, §§ 31-34, and 58) .

8. On 11 March 2015 the Council of Ministers of Albania approved Decision no. 217 on enforcement of the Court’s judgment in the case Karagjozi and Others v. Albania, including also the case of Okaj v. Albania.

9. On 14 May 2015 the representative of the Kuçi family requested the State Advocate to ask for the suspension of the execution of the Court’s judgment in the case of Karagjozi and Others in so far as it concerned the Okaj family, claiming that it would contravene the final judgment of domestic courts which had recognised the ownership of the Kuçi family members on four-fifths of the contested property, and that it would impose additional obligations on the Albanian State.

10. On 1 July 2015 the State Advocate’s Office lodged with the Court a request for the revision of its judgment in the case Karagjozi and Others v. Albania.

11. On 3 December 2015 the Court dismissed the Government’s request for revision.

12. The judgment Karagjozi and Others, in so far as it concerned the case of Okaj, has been enforced, and in 2015 the members of the Okaj family were paid the compensation awarded by the Court (see the Government communication to the Committee of Ministers in DH-DD(2018)592, and Resolution CM/ResDH(2018)349, adopted by the Committee of Ministers on 20 September 2018 at the 1324th meeting of the Ministers’ Deputies).

RELEVANT DOMESTIC LAW

13. Article 349 of the Civil Code provides that an heir may file a civil claim against anyone who is in possession of any part of his inherited property, seeking his recognition as an heir and that the possession of such property be given to him, as well as all assets (“pasurisë”) acquired from it, under the respective rules concerning possession in good faith or in bad faith.

14. An overview of relevant domestic law and practice concerning Law no. 133/2015 of 5 December 2015 On the Treatment of Property and Finalisation of the Property Compensation Process (“the 2015 Property Act”) is presented in the case of Beshiri and Others v. Albania ((dec.), nos. 29026/06 and 11 others, §§ 29-109, 17 March 2020).

THE COURT’S ASSESSMENT

1. The parties’ arguments

15. In their additional observations submitted in 2024 the Government contended, inter alia, that the applicants had not properly exhausted domestic remedies, as they had not sought from domestic courts a compensation of their share of property as the heirs of Y.O. by the Shkodra Commission decision of 3 October 1995. Furthermore, the applicants had not made use of the remedy under Article 349 of the Civil Code, nor the remedies under the 2015 Property Act.

16. The applicants argued that the domestic courts, or any other domestic authority, did not have the competence to alter or to act in contravention of the Court’s judgment. They further submitted that they had no effective domestic remedy for the recognition of their share of the property concerned.

2. The Court’s assessment

17. The general principles on exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia (preliminary objection) ([GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014, and Gherghina v. Romania ((dec.) [GC], no. 42219/07, §§ 83‑89, 9 July 2015).

18. In the above-cited case of Beshiri and Others, the Court held that the 2015 Property Act had been designed to address the issue of enforcing former owners’ right to compensation in an effective and meaningful manner, taking account of the Convention requirements, and that the 2015 Property Act applied to all individuals who had lodged an application with the Court before the entry into force of the 2015 Property Act (see, in particular, §§ 215 and 217).

19. Turning to the present case, the Court notes that the Shkodra District Court judgment of 8 November 2006, as finally confirmed by the Supreme Court on 28 October 2011, recognised the members of the Kuçi family as co‑heirs to the property subject of the Shkodra Commission Decision of 3 October 1995. Accordingly, on the basis of that judgment the applicants may seek before the domestic courts to recover their share of property at issue from third parties, including their share of any compensation obtained for the State’s failure to enforce the Shkodra Commission decision of 3 October 1995. If they wish to do so, they can also seek any damages that could have arisen in this respect. However, there is no evidence that the applicants have used such remedies.

20. Alternatively, as indicated by the Government in its submissions, they may pursue any remedies under the 2015 Property Act for the authorities’ failure to compensate them for their inherited share of the property subject to the Shkodra Commission Decision of 3 October 1995.

21. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

22. The Court therefore considers that the applicants’ complaint under Article 13 of the Convention is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 July 2024.

Olga Chernishova Ioannis Ktistakis
Deputy Registrar President

APPENDIX

List of applicants

Application no. 46106/15