CCPR/C/121/D/2837/2016
principle of security of tenure and the provision of judicial protection in cases of forced
eviction. In the interests of transparency, legal counsel for the authors note that one of them
was commissioned by the Council of Europe as an expert in the context of the progress
review report on the Council of Europe Programmatic Cooperation Document for Albania,
2015−2017, and contributed to the drafting of the law which aims at introducing into the
Albanian legal system key elements and standards contained in general comment No. 4
(1991) on the right to adequate housing of the Committee on Economic, Social and Cultural
Rights.
5.3
On 3 May 2017, the authors submitted further information on available domestic
remedies in relation to forced evictions. They report that on 12 April 2017, the Council of
Ministers adopted the draft law on social housing as proposed by the Ministry for Urban
Development. They consider that through this draft law, the Ministry acknowledges the
Council of Europe’s input in introducing for the first time in the Albanian legal order an
express prohibition of forced evictions if not accompanied by the provision of alternative
housing. The authors believe that the documents submitted constitute the most conclusive
evidence that at the time of the events described in their communication, they did not have
access to a remedy insofar as the right to housing and its concomitant entitlement to
protection from forced eviction did not exist in the Albanian legal order.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 93 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
6.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of
international investigation or settlement.
6.3
The Committee takes note of the State party’s argument that domestic remedies have
not been exhausted because, after receiving the notifications and information from the
Municipality of Tirana, the authors could have challenged the acts undertaken by the
municipality, pursuant to the Code of Administrative Procedures. The Committee notes the
State party’s assertion that in connection with the present communication, no petition,
request or claim has been submitted by the authors before the municipality. It takes note
also of the authors’ argument that these administrative law proceedings would be
ineffective. The authors have argued, in particular, that there does not exist in the domestic
legal order a remedy that would allow them to challenge their forced eviction or to request
the immediate provision of housing. The Committee notes the authors’ claim that the right
to housing is not justiciable in the Albanian legal order and that the State party still has not
enacted legislation that guarantees and promotes the right to housing. It also notes that, in
the meantime, on 12 April 2017, the law on social housing, which provides for the express
prohibition of forced evictions if not accompanied by the provision of alternative housing,
was adopted.
6.4
The Committee recalls its jurisprudence stating that, although there is no obligation
to exhaust domestic remedies if they have no chance of being successful, authors of
communications must exercise due diligence in the pursuit of available remedies and that
mere doubts or assumptions about their effectiveness do not absolve the authors from
exhausting them.24 In the present case, the Committee notes the State party’s argument that
the authors should have submitted a complaint to the municipality against their eviction and
that they should have appealed further through the administrative court in place. The
Committee further notes that the information provided by the authors in that regard does
24
8
See, inter alia, communications Nos. 2072/2011. V.S. v. New Zealand, decision of inadmissibility
adopted on 2 November 2015, para. 6.3; No. 1639/2007, Vargay v. Canada, decision of
inadmissibility adopted on 28 July 2009, para. 7.3.; No. 1511/2006, García Perea et al. v. Spain,
decision of inadmissibility adopted on 26 March 2009, para. 6.2; and No. 560/1993, A v. Australia,
Views adopted on 3 April 1997, para. 6.4.