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FOURTH
SECTION
CASE OF MULLAI AND OTHERS v. ALBANIA
(Application
no. 9074/07)
JUDGMENT
(just
satisfaction – striking out)
STRASBOURG
18 October 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mullai and Others v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9074/07) 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”) by seven Albanian nationals, Mrs Nesime Mullai,
Mr Astrit Daci, Mrs Mediha Hoti, Mrs Suzana Zereliu, Mrs Nermin
Daci, Mrs Etleva Mullai and Mrs Eva Pinguli (“the individual
applicants”), and a limited liability company, Teknoprojekt
sh.p.k. (“the applicant company”), on 1 December 2006.
- The
applicants were represented by Mr S. Puto, a lawyer practising in
Tirana. The Albanian Government (“the Government”) were
represented by their then Agent, Ms E. Hajro.
- In
a judgment delivered on 2 March 2010 (“the principal
judgment”), the Court decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1). It
held that there had been a breach of the principle of legal certainty
under Article 6 § 1 of the Convention as regards the lack of
consistent reasoning in the Supreme Court’s decision of
29 March 2001 regarding the lawfulness of the building permit
granted to the applicant company. It further found a breach of
Article 1 of Protocol No. 1 in that the authorities’
interference with the applicant company’s right and the
proprietary rights of the individual applicants who demolished their
three-storey villa on the strength of the building permit issued by
the authorities was unlawful (see Mullai and Others v. Albania,
no. 9074/07, 23 March 2010).
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it in whole and invited
the Government and the applicants to submit, within three months from
the date on which the judgment became final in accordance with
Article 44 § 2 of the Convention, their written observations on
that issue and, in particular, to notify the Court of any agreement
they might reach (ibid., § 121, and point 5 of the
operative provisions).
- The
applicants and the Government each filed observations.
THE LAW
A. The parties’ submissions
- The
applicants submitted that the continuation of the construction work,
combined with compensation for loss of profits, would put them in a
situation equivalent to the one in which they would have been if
there had not been a breach of the Convention. The individual
applicants sought just satisfaction in the amount of 1,547,037.40
euros (EUR) and the applicant company claimed EUR 10,297,947 in
respect of pecuniary damage. They submitted an expert’s
valuation report which made the above calculations on the assumption
that the construction of the sixteen-storey building on a plot of
land located in one of the most central and lucrative areas of Tirana
would have been completed by 2002 and that the corresponding flats
and commercial premises would all have been either sold or rented to
third parties in the period between 2002 and 2007. The individual
applicants further sought EUR 270,000, and the applicant company also
claimed EUR 1,650,000, in respect of non-pecuniary damage. As
regards legal costs and expenses, the applicants claimed EUR 32,400
for the costs and expenses incurred in the domestic proceedings and
EUR 16,857 for those incurred in the proceedings before the Court.
- The
Government contested the amounts claimed by the applicant company.
They submitted that the pecuniary damage suffered by the applicant
company should be assessed at 23,280,000 Albanian leks (“ALL”
– approximately EUR 161,503), on the basis of the demolition
expenses and the costs of the construction work until 22 January
2000, the date on which the Minister of Public Works ordered the
suspension of the work. In the Government’s view, any claim for
work carried out after 22 January 2000 should be dismissed as male
fide. The Government contested the figures submitted by the
applicant company, arguing that they were inflated. As regards loss
of profits, the Government maintained that the figures were
hypothetical and calculated on the basis of assumptions.
- The
Government submitted that the seven individual applicants should be
awarded ALL 18,104,787 for the reconstruction of their villa. In
addition, they argued that their loss of profits should be calculated
on the basis of the lease they had concluded with their then tenant
until 31 August 1999, by which date they had been informed of the
Prefect’s notice suspending the work. In these circumstances,
the loss of profits would amount to 56,000 United States dollars
(USD). As regards the loss of profits after 31 August 1999, the
Government contended that the applicants should bring a civil action
against the applicant company.
The Government’s unilateral declaration
- On 22 November 2010, after failing to reach a
friendly-settlement agreement with the applicants, the Government
informed the Court that they proposed to issue the following
unilateral declaration with a view to resolving the issue of just
satisfaction (relevant extracts taken from the English version as
submitted by the Government).
“...
3. The Albanian Government guarantees the continuing of
the work according to the project and within the deadline of two
years for the execution of the building permit no. 766, dated
22.2.1998, committing all the state institutions.
4. With reference to moral damages, the Albanian
Government offers to pay ex gratia in total the sum amounting
15,000 (fifteen thousand) Euros, to the applicants ... The aforesaid
sum shall be free from any applicable tax. The payment shall be made
within three months from the date of notification of the judgment to
be taken by the European Court in compliance with Article 37 § 1
of the European Convention. In case of non payment in due time of the
sum concerning the resolution of the dispute in friendly manner,
within three months’ period, [the] Government shall pay a
simple interest for the period from the expiry of the three-month
period until the effective day of full payment of the amount,
according to an interest at a rate equal to the marginal lending rate
of the European Central Bank during the default period plus three
percentage points.
5. With reference to moral damages, the Albanian
Government offers to pay ex gratia in total the sum amounting
5,000 (five thousand) Euros, to the applicant company “Teknoproject”
sh.p.k. The aforesaid sum shall be free from any applicable tax. The
payment shall be made within three months from the date of
notification of the judgment to be taken by the European Court in
compliance with Article 37 § 1 of the European Convention. In
case of non payment in due time of the sum concerning the resolution
of the dispute in friendly manner, within three months’ period,
[the] Government shall pay a simple interest for the period from the
expiry of the three month period until the effective day of full
payment of the amount, according to an interest at a rate equal to
the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
6. As far as concern the judicial expenses, the Albanian
Government does not consider to pronounce, meanwhile it has not been
assessed from the Court in its [principal] judgment.
Acceptance of the Government’s offer for the
recommencement of the building work for the construction of the
building with 16 floors, and payment of the abovementioned sum
amounting 15,000 and 5,000 Euros for the applicant parties as it has
been mentioned above, shall constitute the final solution of this
case.”
- By
letter of 10 January 2011 the applicants informed the Court that they
considered the sums proposed in the Government’s declaration
unacceptably low. They expressed the view that the two-year
time-limit for the completion of the construction work constituted an
obstacle, given that no time-limit had been specified in the original
building permit. They maintained the observations and claims which
they had previously submitted to the Court.
B. The Court’s assessment
- The
Court notes that Article 37 of the Convention provides that it may at
any stage of the proceedings decide to strike an application out of
its list of cases where the circumstances lead to one of the
conclusions specified under paragraph 1 (a), (b) or (c). Article 37 §
1 (c) enables the Court to strike a case out of its list in
particular if:
“(c) for any other reason established
by the Court, it is no longer justified to continue the examination
of the application.”
Article
37 § 1 in fine includes the following proviso:
“However, the Court shall continue the examination
of the application if respect for human rights as defined in the
Convention and the Protocols thereto so requires.”
- The Court also notes that under certain circumstances,
it may strike out an application, or part thereof, under Article 37 §
1 (c) of the Convention on the basis of a unilateral declaration by a
respondent Government even if the applicant wishes the examination of
the case to be continued. Moreover, there is nothing to prevent a
respondent Government from submitting a unilateral declaration
relating, as in the instant case, to the reserved Article 41
procedure (see Megadat.com SRL v. Moldova (just satisfaction –
striking out), no. 21151/04, § 10, 17 May 2011; and
Racu v. Moldova (just satisfaction – striking
out), no. 13136/07, § 17, 20 April 2010). To this end, the
Court will examine the Government’s declaration carefully in
the light of the general principles applicable in respect of Article
41 of the Convention (see, for example, Brumărescu v. Romania
(just satisfaction) [GC], no. 28342/95, §§ 19-20, ECHR
2001 I).
- Having regard to the above considerations, the Court
understands the Government’s undertaking to mean that the
validity of the applicant company’s building permit is to be
extended by two years from the date on which this judgment becomes
final. Furthermore, the authorities undertake to ensure that the
applicant company’s construction work will continue
uninterrupted during this period. The applicants argued that the
resumption of the construction work should not be tied to a specific
time-limit, having regard to the absence of any mention of a
time-limit in the building permit. However, the Court does not find
the applicants’ opposition to the time limit persuasive.
In this connection, the Court takes note of the agreement of 30 April
1998 concluded between the applicant company and the individual
applicants, which stated that the construction work would be
completed within twenty-four to thirty months. It further takes
account of a building (sub-contract) agreement (kontratë
sipërmarrje) of 21 June 2007 concluded between the
applicant company and a third party for the completion of the
construction work, according to which the prescribed time-limit was
two years. Moreover, provisions seeking to minimise construction
delays are not, of themselves, unreasonable (see section 52 of the
Urban Planning Act 1998, which provides that “the time-limit of
the building permit is defined in the decision taken by the Council
for Territorial Planning”). In any event, the applicant company
could seek an extension of the building permit’s validity
should the construction work not be completed in time, the decision
resting with the authorities.
- The Court observes that in the principal judgment it
determined whether the domestic proceedings, particularly the manner
in which the litigation was conducted, was Convention compliant.
Accordingly, deeming it inappropriate to speculate on the lawfulness
of the building permit, the matter remaining within the competence of
the domestic authorities, the Court found a breach of the principle
of legal certainty under Article 6 § 1 of the Convention on
account of the Supreme Court’s inconsistent
interpretation. Relying extensively on the reasoning under
Article 6 § 1 of the Convention and without addressing the issue
of the lawfulness of the building permit, the Court further found a
breach of Article 1 of Protocol No. 1 to the Convention.
- Having
regard to the above considerations and without prejudice to other
possible measures remedying at the domestic level the violations of
the applicants’ rights under the Convention and bearing in mind
the Government’s undertaking, the Court considers that the most
appropriate form of redress would be to have the construction work
resumed. Indeed, the Government’s undertaking to extend the
building permit’s validity by two years would put the
applicants as far as possible in a situation equivalent to the one in
which they would have been if there had been no breaches of the
Convention.
- As
regards the applicants’ claims for pecuniary damage, the Court
notes that they were based on assumptions and involved a significant
degree of speculation. Even taking for granted the development of the
area in which the building would be situated, the assumption that the
property would have been sold and/or rented at the expected prices is
open to question, having regard to the fluctuation of the prices in
the property market. In addition, under Article 498 of the Code of
Civil Procedure (“CCP”), as amended on 29 December 2008,
a final domestic court decision may be reviewed, at the interested
party’s request, when this Court finds a breach of the
Convention and its Protocols, as ratified by the respondent State.
More importantly, the Court reiterates that it has never pronounced
on the lawfulness of the building permit issued to the applicants.
Having regard to the nature of the violations found in the principal
judgment and the reasons for such findings (see paragraph 14 above),
and in the light of Article 498 of the CCP, the Court considers that
the applicants’ claims for pecuniary damage must be rejected
(see Vinčić and Others v. Serbia, nos. 44698/06,
44700/06, 44722/06, 44725/06, 49388/06, 50034/06, 694/07, 757/07,
758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07, 9262/07,
9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07, 20379/07,
20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08, 4021/08,
29758/07 and 45249/07, § 61, 1 December 2009). Moreover,
the Court considers that the Government’s undertaking may be
considered sufficient to cover any prior loss of opportunities.
- The
Court further considers the applicants’ claims in respect of
non pecuniary damage to be excessive. It is of the view that the
Government’s proposal as regards the award for non-pecuniary
damage is equitable in the present case.
1. Costs and expenses
- As regards legal costs and expenses, the Court notes
that it has a discretion to award legal costs when it strikes out an
application (see Rule 43 § 4 of the Rules of Court
and, for example, M.C.E.A. Voorhuis v. the Netherlands
(dec.), no. 28692/06, 3 March 2009; Shevanova v. Latvia
(striking out) [GC], no. 58822/00, §§ 52-56, 7 December
2007; Sisojeva and Others v. Latvia [GC], no. 60654/00,
§§ 130-133, ECHR 2007 I; and Meriakri v. Moldova
(striking out), no. 53487/99, § 33, 1 March 2005). The Court
has no reason to doubt that the applicants’ expenses were
actually incurred since it is in possession of the corresponding
vouchers. As to whether they were necessarily incurred and were
reasonable as to quantum, the Court finds that the amount of the
costs and fees is high. For example, the invoices submitted by the
applicants in respect of the domestic proceedings contained lump
sums, without a detailed breakdown of expenses for different items.
The Court considers that the expenses incurred during the Convention
proceedings were not reasonable as to quantum. Making its own
estimate based on the information contained in the case file, the
Court considers it reasonable to award EUR 14,000 in respect of legal
costs and expenses.
- The
Court would point out that in the event that the Government fail to
pay the sum referred to in paragraph 18 above, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, simple interest will be
payable at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points.
2. The Court’s conclusion
- In
the light of all the above considerations, the Court is satisfied
that respect for human rights as defined in the Convention and the
Protocols thereto does not require it to continue the examination of
the remainder of the case. Accordingly, it should be struck out of
the list.
- In
accordance with Rule 43 § 3 of the Rules of Court, the present
judgment will be forwarded to the Committee of Ministers in order to
allow the latter to supervise, in accordance with Article 46 § 2
of the Convention, the execution of the Government’s
undertakings.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Takes
note of the respondent Government’s unilateral declaration
and of the arrangements for ensuring compliance with the undertakings
referred to in paragraphs 9 and 13 above and, directs in
consequence:
(a)
that the respondent State shall extend the validity of the applicant
company’s building permit by two years from the date on which
this judgment becomes final and that it shall ensure the
uninterrupted continuation of construction work during that period;
(b)
that the respondent State is to pay the individual applicants jointly
EUR 15,000 (fifteen thousand euros) and the applicant company EUR
5,000 (five thousand euros), within three months from the date on
which the judgment becomes final, in accordance with Article 44 §
2 of the Convention, in respect of non-pecuniary damage, plus any tax
that may be chargeable, to be converted into the national currency of
the respondent State at the rate applicable on the date of payment;
(c)
that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points.
2. Holds
(a)
that the respondent State is to pay the applicants jointly, within
three months from the date on which the judgment becomes final, in
accordance with Article 44 § 2 of the Convention, EUR 14,000
(fourteen thousand euros) in respect of costs and expenses, plus any
tax that may be chargeable, to be converted into the national
currency of the respondent State at the rate applicable on the date
of payment;
(b)
that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points.
3. Decides to strike the application out of its list of
cases as regards the reserved Article 41 procedure.
Done in English, and notified in writing on 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence
Early Nicolas Bratza
Registrar President
