12 The effects of property laws on the process of restitution and compensation in post-communist Albania, under the framework of transitional justice. As for the concept of restitution, according to Tom Allen in “Restitution and Transitional Justice in the European Court of Human Rights”35, in the opinion of some jurists, restitution may jeopardize and undermine the values and condition of a market economy and they are not convinced that the restitution of property can resolve the issue but risks on aggravating it. The rest, however, consider this reason over the restitution of properties exaggerated. They believe, on the contrary, in the idea that opening up the issues of the past can help and serve as an example to strengthen the state of right and the rule of law. So, the restitution of properties is always directly related to the effects they give and therefore the thought can be ambiguous because there is the fear of a negative effect that can be caused in society. The repair of the situation in Albania was severely hampered and damaged over the years by the state party because the “original properties”36, which were foreseen to be returned to the owners in 1993 after being in the state property fund, or were held without legal reason by others were transferred by laws, without remuneration, or against minimum remuneration to third parties.37 Of course, this is a misguided course that in time would have consequences. Restitution and compensation of owners expropriated during the communist regime has already taken an international dimension. Albania became a member of the Council of Europe in October 1996. As a result, it ratified the Convention for the Protection of Human Rights and Fundamental Freedoms. Once a Contracting State, having ratified the ECHR including Protocol No. 1 enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol 1 for persons satisfying the requirements for entitlement.38 Nevertheless, the permanent dilemma has been whether this article serves as a protector of the right to property and its restitution. The Council of Europe was created with the aim of protecting Western States from the spread of communism and shortly thereafter established the ECHR. The idea that this Convention and its articles protect the property that is in the owner’s name and not the property taken away by the owner and its restitution is upheld. The view has always been mixed that in no case does this Convention express property restitution but at the same time speaks of a peaceful enjoyment of the right to property that the individual has and enjoys. The former owners meanwhile claim that they continue to be owners and it is also widely accepted that the acquisition of property during the communist system was made in an unacceptable form by a democratic and respectful human rights system.39 Although property was taken on a legal basis and based on the laws of the time, as the laws were totally contrary to democratic principles and human rights, they lead us to the challenge of considering them legally ineffective.40 This leads us to the idea that they never ceased to be owners and this article protects them with the idea of the right to the peaceful enjoyment of their property. However, according to Tom Allen, the situation seems to have changed after the entry of the former communist states into the Council of Europe. According to him, it seems that the situation was not the same for the restitution of property in the case of Nazi occupation or of people deprived of their land and property. It seems that this situation changed with the entry of the communist states into the Council of Europe with the thought of what effects the return of property would have on these states. However, this article protects property rights and justifies expropriation solely on the basis of the public interest and the principle of proportionality.41 It is more important to note, 35. Indeed, the Court has gone as far as declaring that property rights that were not legally extinguished, but became impossible to exercise under the old regime, are no longer worthy of recognition under human rights law.” Tom Allen, Restitution and Transitional Justice in the European Court of Human Rights.(13 Colum.J. Eur. L. 1 2006).13. 36. The term “original owners” and “original property” - used by the European Court of Human Rights. 37. Bledar Abdurrahmani, Kompensimi i pronës në Shqipëri, sfidë për të drejtat e njeriut. (November.2014). 39 38. European Union.Council of Europe. Handbook on property rights.Effective Exercise of Property Restitution and Compensation Rights in Albania. (Tirana 2017). 98 39. It is alleged that the property was not taken away. So they never ceased to be owners, but only withdrew their right to own the property. 40. Tom Allen, Restitution and Transitional Justice in the European Court of Human Rights. (2006). 10 41. The European Court has largely respected the principle of proportionality, rather than legality, in most expropriation cases where states have found violations of Article 1 of Protocol 1, and in cases where third parties reside in the claimed properties.