The right to private property is one of the fundamental human rights, as a basic economic-legal category dependent on the relevant political and social structure of the state. Freedom of Private Property is a constitutional right that guarantees the inviolability of private property from unjustified interference by state bodies or third parties. The right to property in the Republic of Albania is guaranteed by Article 41 of the Constitution of the Republic of Albania, by Article 1 of Additional Protocol no. 1 of the European Convention on Human Rights, and is governed by the provisions of the Civil Code as well as a host of other legal or subordinate legal acts.

Property rights are one of the most pressing problems facing the Albanian state since the fall of the communist regime. The main problems that the country faces today originate in laws that were passed in the early 1990s. Law No. 7501 dated 19/07/1991 “On Land” is one of them. The law provided for the distribution of agricultural land to individuals and legal entities, which were different from the individuals who owned it before it was seized by the communist.

Meanwhile, the process of restitution and compensation of property seized by the Communist regime began in 1993, and in the following years, several laws and bylaws were adopted aiming at a fair regulation, in accordance with the criteria of Article 41 of the Constitution. Property rights issues arising from expropriations, nationalizations or seizures. [1] This process created a fragmented legal framework that was modified several times and paved the way for informality, overlapping property rights and many litigation. According to data obtained from the European Court of Human Rights Register and used in Amicus Curiae of the Venice Commission, there were 230 cases against Albania pending before the Court and, in October 2016, 15 cases against Albania under the supervision of the Committee of Ministers of the Council of Europe. During this period, there were 40,000 cases pending before the court and administrative court in Albania. [2]

The wording provided for in Article 41 of the Constitution of the Republic of Albania affirms that the right to property may be restricted. Article 41 of the Constitution states that “The right to private property is guaranteed. 2. Property shall be acquired by donation, inheritance, purchase and any other classical means provided for in the Civil Code. 3. The law may provide for expropriations or restrictions on the exercise of property rights only in the public interest. 4. Expropriations or restrictions on the right to property which are equivalent to expropriation shall be allowed only for a fair consideration. 5. Disputes over the amount of remuneration may be appealed in court.

The above right of property is guaranteed, but there are cases of restriction of private ownership (expropriation or restrictions equivalent to expropriation) and the State undertakes to respect the restriction in the fulfillment of a public interest, for a fair remuneration and in respect of the right of the individual concerned to complain about the amount of compensation.

 

According to Article 1 of Protocol no. 1 to the HRCP, restrictions imposed by the state on property rights are justified if they meet three criteria: the restriction must be lawful (to be provided by law and to respect the standards of the rule of law); it must pursue a public or general interest; and it should be commensurate with the aim pursued (necessary in a democratic society).

 

The right of ownership is not absolute and may be restricted. However, the restriction of ownership is permitted only if these conditions are fulfilled jointly:

  • Provided by law
  • It is in the public interest
  • Indispensable in a democratic society

Legislation Restrictions on property rights must meet the requirement of legality and be consistent with legislation, the Constitution and international agreements. The State may restrict the enjoyment of property, but such restriction must have its source in domestic law, which must have certain qualitative characteristics and appropriate procedural safeguards in order to protect against arbitrariness.

General Interest. The entire restriction of an individual’s right of ownership can only be justified if it pursues a legitimate aim in the public interest. The country’s authorities are best placed to determine what is in the public interest until their judgment is manifestly ill-founded and leads to arbitrariness.

Proportionality. The restriction must establish a fair balance between claims about the general interest of the community and claims about fundamental rights of the individual. There will be no fair report in case the individual owner bears an individual and excessive burden.

Limit of Assessment States have a limit of appreciation in establishing a fair relationship between the need and the necessity of limitation. The margin of appreciation is based on the principle of subsidiarity.

Expropriations in the Republic of Albania are regulated by Law No. 8561, dated 22.12.1999 On the Expropriation and Temporary Use of Private Property of Public Interest (Amended by Law No. 20/2016, dated 10.3.2016). According to Article 2 of this law, the expropriation of private property is done only for the public interest, in conditions when the public interest prevails over the private interests of their owners, in accordance with the conditions provided by law and general principles of international law. The right of expropriation and temporary use of private property is exercised for a public interest that cannot be realized or otherwise protected except for reasons and in accordance with the procedures expressly provided for by law, to the extent that is indispensable for the realization of the purpose of the expropriation and in any event for a just reward.

From the foregoing we understand that the Legislature has the right, for reasons of public interest, to restrict the scope of private property disposal. It is imperative that there is a proportional relationship between the means used and the goal that is required to be achieved.

 

 

It is worth noting that the law is intended and subject to the expropriation and compensation of owners when their property is regularly registered with the Immovable Property Registration Office (IPRO). With DCM no. 138/2000 “On the Technical Criteria for Evaluating and Estimating the Amount of Remuneration of Expropriated Private Property, Depreciated Property and Rights of Third Persons for Public Interest”, the scope of the law has also been extended to properties that are in the process of legalization. The law excludes physical property owners, namely persons residing in informal settlements whose legalization has never been applied for, as well as persons who possess illegal constructions for which they have applied to the authorities responsible for legalizing and have been disqualified from the process because the said buildings do not meet the conditions set forth in Law no. 9482, dated 03.04.2006 “On the Legalization, Urbanization and Integration of Illegal Constructions”. While possession is protected by the provisions of the Civil Code as a separate right even when the possessor is different from the owner and even against the owner himself, the law in question does not take into account the compensation of eventual damages. Meanwhile the legislation of developed countries recognizes and compensates for the damage caused, other than the loss of property, moreover, when these damages affect human rights such as the right to housing.

In a series of rulings by the Strasbourg Court, it has become clear that the right to housing also includes the case of illegally constructed or missing property documents. In Affaire Bagdonavicius et autres vs Russie, the Court held that the applicants had suffered a violation of their right to respect for private life, family life and home (Article 8, ECHR). The basis of the Court’s finding was that the State authorities did not consider whether the demolition of the applicants’ houses complied with the principle of proportionality before proceeding with the demolition of the apartments.

 

Expropriation Cases.

Expropriation Cases are set out in Law No. 8561, dated 22.12.1999 On Expropriation and Temporary Use of Private Property for Public Interest (Amended by Law No. 20/2016, dated 10.3.2016), and are exhaustive . Expropriation in the Republic of Albania can be done for the following reasons:

  • Fulfilling state obligations under multilateral treaties and international conventions.
  • For the realization of programs, projects and investments, foreseen in international agreements extending to the territory of some countries, where our state is a party.
  • Implementation of projects and investments that represent national or local territorial interest or extension in the field of transport of all kinds, energy, telecommunications, water works of any kind, in the service and interest of the public.
  • Implementation of national or local projects and investments, aimed at preserving the environment, health, culture and public education, as well as infrastructure, at the service and public interest.
  • Implementation of programs and investments in the field of national defense.
  • For the protection of monuments and immovable objects of an archaeological, historical, cultural and scientific character, when these purposes, by the very nature of these objects, cannot be realized by the private owner due to their objective impossibility or subjective attitude, with consequently the real risk of failure, damage or obstruction of their operation.
  • For the protection of movable objects of historical, archaeological, cultural or scientific value in cases where, even with the fulfillment of the obligations of the competent authorities under the law, these objects are at risk of being damaged or destroyed.
  • In cases where movable and immovable property, for objective reasons or force majeure, creates a permanent risk to public safety and health, to the extent that with the assistance of the State, these risks cannot be prevented by their owner.
  • For the realization of strategic investments, according to the legislation in force.

General procedures applicable to expropriation in the public interest.

The process of expropriation for the public interest is regulated by law no. 8561, dated 22.12.1999 “On the Expropriation and Temporary Use of Private Property of Public Interest Property” (as amended) and the bylaws therefor and for its implementation and shall be governed as follows:

  • According to this law, the entity in favor of expropriation has to submit to the competent ministry according to the law, the request for expropriation, accompanied by the relevant documentation.
  • Upon submission of the request for expropriation in the public interest, the competent minister orders the establishment of a special commission to monitor and execute the expropriation procedures. The special commission shall carry out the necessary verifications for the requesting entity in favor of expropriation, for the documentation submitted, for the purpose of expropriation, and shall administer the acts of ownership of the expropriation facilities, performing, if necessary, also on-the-spot verifications.
  • When the request and the accompanying documentation are not filed within the prescribed deadline or are found unsupported, the request is rejected by the ministry and immediately notified to the expropriation applicant, who has the right to appeal to the court within 30 days of receiving the notification. . When the relevant application and accompanying documentation are found to be based on the conditions and criteria of law no. 8561, dated 22.12.1999, the competent ministry decides to accept the request for expropriation, immediately notifying in writing the requesting entity, with which within 10 days of the notification concludes an agreement on expropriation procedures. The agreement is an executive title.
  • Within 10 days of the conclusion of the Agreement by the competent Ministry, the procedures for the direct notification of each owner or co-owner of the assets required to be expropriated shall be initiated, as well as proceeding with the publication of the expropriation request in the Official Journal in a distributed newspaper throughout the country and in a local newspaper for a week.
  • Third parties, no later than 15 days from the date of publication of the publication deadlines have the right to submit their claims to the competent ministry.
  • Within 15 days from the date of notification, the owner, co-owners or third parties must notify the competent ministry, stating whether they accept voluntary transfer of ownership on the terms provided by it.
  • In this case the competent Ministry in cases when the respondent has accepted the conditions provided by it, within 15 days from receiving the reply from him but in any case not earlier than 1 month from the last date of publication of the request, performs with notified, as the case may be, actions for transfer of ownership in favor of the state against compensation or payment of compensation for the rights of third parties on expropriated private property, as well as depreciation due to expropriation of other private property not subject to expropriation.
  • The competent Minister, after the expiration of one month from the expiry of the publication deadlines, requests the Council of Ministers to take the expropriation decision. The filing of lawsuits or the judicial review of a civil case related to the private property sought to be expropriated does not constitute a legal reason for seeking or ordering the court to terminate or suspend the expropriation proceedings.
  • The special commission, set up by the competent minister, performs the actions for the final identification and evaluation, as well as for the calculation of the remuneration for the expropriated premises. the rights of third parties to be compensated for expropriation, by their nature, are taken into account their initial value, depreciation, destination, location of facility, indexes of market and currency price changes.
  • Upon completion of preliminary expropriation procedures, the competent minister submits the expropriation proposal to the Council of Ministers. The Council of Ministers decides expropriation in cases when the proposal for expropriation is found to be based on law and in fact. When the expropriation is refused by the Council of Ministers for the request accepted by the competent ministry, all the funds deposited for the expropriation procedure shall be returned to the expropriation applicant by the competent ministry. When the request from the Competent Ministry is accepted, the Council of Ministers’ decision on expropriation is notified by the competent ministry directly to the expropriated owners, the owners of the assets being expropriated by the expropriation and to third parties whose rights are compensated by expropriation, who only regarding the amount of remuneration fixed.
  • The owner, co-owners or third parties are entitled to this decision

What rights are violated through the expropriation process and how is the effective protection of these rights of individuals or legal entities affected by the expropriation for the public interest guaranteed.

The right to enjoy private property is recognized and guaranteed by the Constitution and the law. This constitutional guarantee allows owners to enjoy full ownership rights to their properties and at the same time protects the private owner from any arbitrary action. The State may not exercise its power to take possession of the property of private entities, except in cases provided for in the Constitution and laws, such as expropriation for the public interest and only against a just, fair and equitable award in accordance with market conditions for property that is expropriated for purposes of wider public interest. The constitutional guarantee for the protection of property right is the basis of any expropriation procedure, otherwise the breach or breach of this guarantee by state authorities within the meaning of Article 41 paragraph 5 of the Constitution may be the subject of a dispute in court where the owner affected by the expropriation , if it finds that the relevant indemnity is not just, it may strike the act of expropriation by court seeking a just award for his property to be transferred to public property.

In the case of “Ramadhi and Others v. Albania”, the Court reiterated that: “States have a wide scope of application of the margin of appreciation to determine what is in the public interest, especially when it comes to compensation for nationalization or expropriation, since the legislature Indigenous peoples have a great deal of discretion in implementing socio-economic policies. However, this margin of appreciation is not unlimited and its exercise is subject to review by the Convention institutions” (§ 79).

The law No. 8561/1999, “On the Expropriation and Temporary Use of Private Property for Public Interest”, regulates in detail the right of the state to expropriate or to take temporary use for the public interest the assets of private natural or legal persons, while protecting the rights and interests of their respective owners. The spirit of the law is that the owner of the property must be compensated with the market value of the property being expropriated (Article 41, paragraph 4 of the Constitution), but that value cannot and cannot be outside the concept of the purpose of the expropriation. This value must be commensurate with the purpose for which the expropriation is effected, as well as the community’s benefit from the expropriation. In this sense, in a dispute arising from the failure to properly apply the legal framework “On public expropriation” the elements to be considered by the courts when adjudicating a dispute are: (i) the legality of the title of owner; benefits to the community and the owner themselves expropriated by the commission of new deeds, such as an increase in the value of his property in the area, an increase in the quality of life, etc., (iii) the value of compensation should be satisfactory to the expropriated, but not extreme.

Which entities qualify for compensation, what criteria must they meet to qualify for compensation?

The right to compensation is granted to the expropriated entities, who by written acts, invoices, court decisions, confiscation documents from the state, etc., prove that the state has taken immovable property unfairly. The entities that are entitled to compensation in case of expropriation in the public interest from the above are the entities that have registered title to the expropriated property.

However, due to the special situation in our country regarding illegal constructions, the legislator has also provided for the inclusion of assets that are in the process of legalization. The process of legalization of informal objects was born as a necessity of the time for legalization of illegal buildings constructed in different territories of the country, in areas with private owner or state, which were built without a previously approved urban plan central or local and where agricultural land, historical, museum and archaeological sites have been occupied, roads, schoolyards, irrigation and drainage canals, public lands, coastal areas, etc. According to Article 3 of the law: no. 9482, dated 03.04.2006 “On Legalization, Urbanization and Integration of Illegal Constructions” Illegal construction is the object for which the carabineer is completed, intended for housing, economic activities and / or other functions for which they are not respecting the procedures set out in the applicable legal framework for territory planning. This law provides for the legalization of informal constructions and buildings with permits, with informal additions to the building, as well as the transfer of ownership of the construction parcel, where unlawful construction has been established, in accordance with the provisions of this law.

Due to the high number of entities that have properties in the legalization process, to secure their rights in case of expropriation for public interest, DCM no. 138, dt. 23.03.2000, provides “Technical Criteria for Evaluating and Estimating the Amount of Remuneration of Expropriated Private Property, Depreciated Property and Third Party Rights for Public Interest”, as amended, Article 7/1 for investments in national road axes, and stipulates that expropriated private owners of immovable objects / immovable property in the public registers of the Immovable Property Registration Office. Property, in cases when:

 

  • Owners of the facility are in administrative process with ALUIZNI according to law no. 9482, dated 3.4.2006 “On the legalization, urbanization and integration of illegal constructions, as amended;
  • Unauthorized construction or unauthorized additions, owned by the expropriated entity, enjoys self-declared and previously qualified status for legalization permit by ALUIZNI, according to all criteria of decision no. 438, dated 28.6.2006 of the Council of Ministers “On the definition of criteria, procedures and applicable documentation, to qualify the construction objects, whether legalized or not”, as amended;
  • The owners of the facility are in the process of being granted legalization permission after an act of the Council of Ministers, published in the Official Journal, is implemented pursuant to law no. 9482, dated 3.4.2006, as amended, identifying their object and this entity (natural / legal person) as owners of the unauthorized object or the unauthorized addition to the building parcel;
  • The possessor has raised the object on his / her land / state and has not been disqualified from the legalization procedure.

From the moment the decision of the Council of Ministers enters into force and the owner of the facility without a permit or an additional permit with the competent Ministry performs the actions for the transfer of ownership in favor of the state against the compensation, the above expropriation procedures are called completed.

All liabilities to other persons and to third parties regarding property rights are settled by the owner. Exceptionally, Central ALUIZNI, for all files of self-declared, qualified entities, archives the file with a separate note and suspends any further administrative action upon receipt of a suspension order from the line ministry. These files of ALUIZNI are archived as separate practices after submission by the Ministry of Public Works and Transport of the list of assets and serial number of the entity in the respective decisions of the Council of Ministers and are subject to deposit in the State Archives. ”

There is no specific legal regulation in the Albanian legislation regarding the manner of compensation or housing for those entities living in unregistered informal buildings and whose dwellings are affected by infrastructure developments of public interest.

Calculation of the amount of compensation in cases of expropriation in the public interest.

The basis on which the expropriation of property is based is the public interest and their just compensation (Article 41.1 of the Constitution). It is up to the bodies authorized by the law “On Expropriation and Temporary Use of Private Property for Public Interest” to make, on a case-by-case basis, an assessment as to the existence of a public interest problem justifying the restriction of property rights and the measures to be taken to remedy the situation through fair compensation of property. The issue of indemnity in itself and its limits are determined by the circumstances of each individual case.

Specifically Article 19 of the law states that “On the basis of the value that, as a result of the final appraisal of the expropriated objects, the amount of the relevant remuneration shall be calculated equal to its full value”.

The entire legal and sub-legal framework for the implementation of the Albanian Constitution is based on the assumption that expropriation will take place at market value as an indicator of fair remuneration and market value is determined by Council of Ministers decisions based on value maps prepared by the Council of Ministers. Property Restitution and Compensation Agency with information obtained from the Immovable Property Registration Office. Price determination of land in Albania is governed by DCM no. 658, dated 26.9.2012 “On the approval of the methodology for valuation of immovable property in the Republic of Albania” which is the only official source for the calculation of the value of immovable property. ”

This DCM stipulates that: The property value is calculated according to the international standards of real estate valuation, set out in annex 1/1 of this methodology, where: property value (VP) = contract price of sale. The price of sales contracts means the market price, according to the type of property and the purpose of its use. The market price is derived from the official records of the sales contracts registered with the Immovable Property Registration Office. The methodology also specifies the types of assets that will be subject to this methodology, the market value of which is determined by the purchase and sale contracts. The above valuation of property prices is done using mass valuation techniques, taking into account mortgage-backed contracts of similar properties located in the same location. Given that our country is known for a culture of declaring real estate transaction prices (but not only) lower than the actual price in order to avoid paying taxes and taxes in the state, the standardization of similar contracts registered in the IPRO is problematic with regard to the expropriation of real estate at a fair value.

For the foregoing, expropriations in the public interest are sensitive restrictions on constitutional property rights that must be dealt with with due care and attention by state authorities in order not to be perceived arbitrarily by individuals.