Protection of Property in the light of the Case of Sharxhi and Others v. Albania(

Avrupa İnsan Hakları Mahkemesi’nin Sharxhi ve Diğerleri v. Arnavutluk Kararı

Ahmet Onur GÜRBEY

Abstract: In the decision of European Court of Human Rights Sharxhi and Others v. Albania, Article 6 § 1 (Right to Fair Trial), Article 8 (Right to Respect for Private and Family Life), Article 13 (Right to an Effective Remedy) and Article 1 of Protocol No. 1 (Protection of Property) are related. In this work, protection of property is the main subject. According to this; the decision made by the local court resulted in a violation of rights by non-compliance with public authorities. The ECtHR also expressed its opinion by participating in the decision given by the local court.

Keywords: Protection of Property, Expropriation, Public Interest, Demolition, Rule of Law.

Özet: Avrupa İnsan Hakları Mahkemesi’nin Sharxhi ve Diğerleri v. Arnavutluk kararında, Avrupa İnsan Hakları Sözleşmesi’nin 6.madde 1.fıkra (Adil Yargılanma Hakkı), 8.madde (Özel ve Aile Hayatına Saygı Hakkı), 13.madde (Etkili Başvuru Hakkı) ve 1 No.lu Protokolün 1.maddeleri (Mülkiyetin Korunması Hakkı) söz konusu olup bu çalışma nezdinde mülkiyetin korunması başlığına önem verilmiştir. Buna göre; yerel mahkeme tarafından verilen karara kamu makamlarınca uyulmaması sonucunda hak ihlali gerçekleşmiştir. AİHM de yerel mahkemece verilen karara katılarak kendi görüşünü belirtmiştir.

Anahtar Kelimeler: Mülkiyetin Korunması, Kamulaştırma, Kamu Yararı, Yıkım, Hukukun Üstünlüğü.

1. Introduction

The applicants are 18 Albanian and one Italian.

In August 2010, the local authorities gave permission to construct a building in Vlora, two of the applicants by virtue of their ownership of this plot of land became owners some of the flats and shops in residence and the remaining applicants became an owner with purchase agreements. Upon completion of construction, some of the owners were already moved into their flats and shops which are already furnished and ready to use.

However, on 3 November 2013 without prior notice, authorities with the support of police surrounded and cordoned the building with crime scene tape. They were told the authorities were seizing their residence in order to evaluate the legality of the construction permit and other relevant documents. After that, they allowed entering their flats with an ownership document.

On 7 November 2013, the applicants lodged a claim with the administrative court because of violation of their property rights and in January 2014 the administrative court found that the authorities’ actions on November 2013 had been unlawful.

Despite the interim order, the entire residential building was demolished between 4 and 8 December 2013. While this happening, on 27 November 2013 the government came up with a decision ordering the expropriation of the applicants’ properties for sake of public interest. The applicants challenged the compensation amount on the ground that the expropriation procedure had been carried out in flagrant breach of the law.

Relying on Article 6 § 1 (right to a fair trial), Article 8 (right to respect for private and family life and the home) and Article 1 of Protocol No.1 (protection of property), the applicants complained in particular about the seizure, expropriation and subsequent demolition of their properties, including their personal belongings, despite the administrative court’s interim order. They further complained under Article 13 (right to an effective remedy) that there had been no effective remedy for them to bring these complaints before the domestic courts.

2. The allegation of Article 1 of Protocol No.1 - Protection of Property

All the applicants had complained about the expropriation and demolition of their building without any compensation. And they claimed that it is a violation to their right of enjoyment of possession.² The government submitted there was not any kind of violation, they also claimed all the applicants were awarded a fair compensation.³

The Court declared there has to be a fair balance between public interest and fundamental rights according to its general principles.⁴ The Court also submitted just like the domestic courts, all the applicants' loss their controls on their possessions for a month, also pointed there was not any legal reason for this intervention. The building was surrounded with a yellow crime scene tape and applicants could not enter their flats, Council of Ministers did not follow the domestic court’s decision.⁵

The applicants could not get any compensation for the seizure of their property, so they complained about they could not find an effective remedy what so ever. It means there has been a violation under Article 13 in conjunction with Article 1 of Protocol No. 1 to the Convention.⁶

The government submitted the applicants did not request any compensation from Council of Ministers, the expropriation value was available for applicants for three years but they did not say the which bank account the money should be transferred.⁷ The government also claimed the applicants did not challenge the demolition order in front of domestic courts. The unlawful expropriation was not claimed by the applicants. The government claimed the applicants have been not challenged about a movable property and any compensation about these.⁸

The trial was only about the compensation of unlawful expropriation, not the demolition and violation of respect to their possessions. Secondly trial was pending since 2013 and no matter how many times the applicants requested even the first hearing did not schedule. The applicants have objected to the expropriation decision both materially and procedurally, and the domestic courts have openly admitted that expropriation is invalid under domestic law.⁹

The Court considers that the question of exhaustion of domestic remedies is so closely related to the merits of the applicants’ complaint of a lack of an effective remedy for the alleged interference with their property rights that they can not be detached from it.¹⁰ The Court pointed out both of the courts ordered compensation and the Supreme Court has been raised the amount of compensation. Also in their own case-law, the Court decided without a fair compensation only the acceptance of violation does not affect the applicants’ victim status.¹¹

The Court notes that the applicants have not been awarded so far, even in amounts given by the decision of the Council of Ministers on 27 November 2013. 4 years delay about the compensation violates the applicants’ rights. The Court also notes that in view of the lack of compensation, the applicants were denied an effective remedy for the alleged breach of their rights under Article 1 of Protocol No. 1 to the Convention.¹² The Court notes that the government can not determine any remedies in the domestic law regarding claims of property rights. No authorities inform the applicants of the constructors about the expropriation what so ever so the applicants did not have a chance to obligate this decision.¹³

For the reasons above, the court decided, there has been a violation under Article 13 in conjunction with Article 1 of Protocol No. 1 to the Convention. The Government’s objection about the not exhaustion of domestic law must be rejected. Authorities ignored the interim order and stepped up demolition in name of expropriation. The applicants also claimed the expropriation of Jon Residence had nothing to do with public interest. Because Prime Minister announced they expropriate the building in order to build someplace for entertainment and tourism.¹⁴

About the interference, the Court only looking for if legitimate taking and expropriation caused a deprivation of possessions or not. The only way to justify taking property is the answer or if there is a public interest or not. Regardless of any interference to property must satisfy the requirement of proportionality. As the Court stated there has to be the balance between society’s interests and individual’s fundamental rights.¹⁵ The delay on awarding expropriation compensation to the applicants caused rough circumstances for the applicants.¹⁶

The Court pointed the local authorities ignored domestic court’s temporary protection decision and because of this action applicant’s enjoyment of their property right has been abused and it must be considered as a violation.¹⁷ Taking into consideration the described sequence of events, the Court, just like the domestic courts, pointed out concludes that in the present case the whole procedure on the applicants’ expropriation was carried out hastily and was thus not in accordance with domestic law.¹⁸

The Court considers taking the building wrongly, caused serious consequences for the applicants, therefore the interference in question was manifestly in breach of Albanian law and, unlawful. This conclusion makes it unnecessary whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.¹⁹