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FOURTH
SECTION
CASE OF
ÇAUSH DRIZA v. ALBANIA
(Application
no. 10810/05)
JUDGMENT
STRASBOURG
15 March
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 Çaush Driza v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Sverre
Erik Jebens,
Päivi
Hirvelä,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. de Gaetano,
judges,
and
Lawrence Early,
Registrar,
Having
deliberated in private on 22 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10810/05) 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 an Albanian national, Mr Çaush Driza
(“the applicant”), on 24 February 2005.
- The
applicant was initially represented by Mr Z. Hajdarmataj and,
subsequently, by Mr A. Shehu, both lawyers practising in Tirana. The
Albanian Government (“the Government”) were represented
by their Agent, Ms S. Meneri and, subsequently, Mrs E. Hajro.
- The
applicant alleged that there had been a breach of Article 6 § 1
of the Convention as regards the unfairness of the domestic
proceedings and the non-enforcement of a final court decision. He
also relied on Article 13 of the Convention as regards the lack of an
effective remedy concerning the non-enforcement of the final court
decision in his favour and Article 1 of Protocol No. 1 to the
Convention as regards a breach of his right to property.
- On
21 November 2006 the President of the Fourth Section of the Court to
which the case was allocated decided to give notice of the
application to the Government. Under the provisions of Article 29 §
1 of the Convention, it was decided to examine the merits of the
application at the same time as its admissibility.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1943 and lives in Fier,
Albania.
- On
20 May 1947 the authorities confiscated the applicant's father's
one-storey villa and the appurtenant plot of land measuring 360 sq. m
which was situated in the city of Fier.
- On
6 June 1953 the authorities transferred the confiscated villa and the
plot of land to S.
- Pursuant
to the 1993 Property Act, on an unspecified date the applicant and
his nine siblings lodged an application with the Fier Commission on
Restitution and Compensation of Properties (“the Commission”)
seeking the restitution of their father's property. On
27 October
1993 the Commission dismissed their request.
- The
applicant lodged an appeal with the Lushnjë District Court (“the
District Court”) claiming that the Commission's decision was
unlawful.
- On
22 February 2000 the District Court recognised the applicant's and
his siblings' inherited property rights over the villa and the plot
of land. However, the District Court found that, in so far as the
plot of land was occupied and in so far as the one-storey villa had
been lawfully transferred to S, they were not recoverable by the
applicant and his siblings. It awarded them compensation in the
amount of 204,902 Albanian leks (“ALL”).
- The
applicant and his siblings appealed arguing that the District Court
had wrongly assessed the evidence.
- On
30 June 2000 the Vlora Court of Appeal (“Court of Appeal”)
awarded the applicant and his siblings compensation in-kind for the
value of the plot of land as opposed to monetary compensation. The
applicant and his siblings appealed.
- On
18 June 2001 the Supreme Court dismissed the appeal, finding that it
did not contain any of the grounds of appeal envisaged by Article 472
of the Code of Civil Procedure. The applicant and his siblings lodged
a constitutional appeal with the Constitutional Court.
- On
10 June 2002 the Constitutional Court, sitting as a bench of three
judges, declared the appeal inadmissible.
- To
date, the Court of Appeal decision has not been enforced.
II. RELEVANT DOMESTIC LAW
A. The Constitution
- The
relevant provisions of the Albanian Constitution read:
Article 42 § 2
“In the protection of his constitutional and legal
rights, freedoms and interests, or in the case of a criminal charge
brought against him, everyone has the right to a fair and public
hearing, within a reasonable time, by an independent and impartial
court established by law.”
Article 142 § 3
“State bodies shall comply with judicial
decisions.”
Article 131
“The Constitutional Court shall decide: ... (f)
Final complaints by individuals alleging a violation of their
constitutional rights to a fair hearing, after all legal remedies for
the protection of those rights have been exhausted.”
B. The Property Act
- The
relevant domestic law as regards property restitution and
compensation in Albania has been described in the judgments of
Gjonbocari and Others v. Albania, no. 10508/02, §§
36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§
36-43, 13 November 2007, Ramadhi and Others v. Albania, no.
38222/02, §§ 23-30, 13 November 2007.
- New
and substantial legislative measures have been enacted amending the
principal 2004 Property Act since the adoption of those judgments.
The principal amendments are as follows:
1. The 2005 Property Act (Law no. 9388 of 4 May 2005)
- Section
3 extended until 31 December 2007 the time-limit for the completion
of the examination of applications for the recognition, restitution
and compensation of immovable properties, with the exception of
payment of the amount of compensation, the time-limit for which was
fixed for 2015.
2. The 2006 Property Act (Law no. 9583 of 17 July 2006)
- Section
13 established the Agency for the Restitution and Compensation of
Properties (“the central Agency”) which replaced the
State Committee on the Restitution and Compensation of Properties
(“the State Committee”). The central Agency, which was
headed by a Director, had its seat in Tirana and was made up of
twelve regional Agency offices.
- According
to section 14, the regional Agency office was responsible for the
initial examination of applications for the recognition of property
rights, in response to which it decided on the restitution of
property and/or compensation in lieu thereof. Section 15 set
the time-limit for the submission of applications for the recognition
of property rights for
1 October 2007.
- Section
16 stipulated that an appeal against a decision of the regional
Agency office could be lodged with the central Agency. The decision
of the central Agency could be appealed against to the Tirana
District Court within thirty days of its notification.
- Section
21 extended until 31 June 2008 the time-limit for the completion of
the examination of applications for the recognition, restitution and
compensation of immovable properties, with the exception of payment
of compensation.
- Section 22 provided for the establishment of the
In-kind Compensation Fund (IkCF) alongside the Financial Compensation
Fund (“FCF”). Within sixty days from the Act's entry into
force, the Government had to approve the list of properties to be
allocated to the IkCF.
3. The 2007 Property Act (Law no. 9684 of 6 February 2007)
- Section
1 provided that the central Agency was responsible for examining
claims for in-kind and financial compensation. The central Agency was
also responsible for examining appeals against the decisions of
regional Agency offices.
- Section
2 reiterated that the regional Agency offices continued to be
responsible for the initial examination of applications for the
recognition of property rights. The claimant or the State Advocate's
Office had the right to appeal against that decision within thirty
days to the central Agency, which was the highest administrative
body. Such an administrative decision was amenable to judicial review
in accordance with the provisions of the Code of Civil Procedure.
The 2008 Property Act (Law no. 9898 of 10 April 2008)
- Section
1 extended until 31 December 2008 the time-limit for the submission
of applications for the recognition of property rights and the
restitution of properties by the regional Agency offices. It also
provided for the possibility for a claimant to be given a new
time-limit by way of a court decision.
- According
to section 2, the completion of the examination of applications for
the recognition of property rights and restitution of properties
would be finalised on 30 June 2009, with the exception of the payment
of the amount of compensation, the deadline for which was fixed for
2015.
- Section
3 extended until 31 December 2008 the deadline for the allocation of
properties to the IkCF.
The 2009 Property Act (Law no. 10095 of 12 March 2009)
- Section
2 provided that in addition to the budgetary appropriations, the
allocations obtained by virtue of this law and other donors, the FCF
would also be made up of proceeds obtained through auctions of State
properties' which had not been the subject of a Commission decision.
6. The 2009 Property Act (Law no. 10207 of 23 December 2009)
- Section
6 abolished the regional Agency offices. It stated that the archives
of those offices would be transferred to the central Agency.
According to section 1, the central Agency would complete the
examination of applications for recognition of property rights and
restitution of properties lodged with the former regional Agency
offices. The central Agency continued to examine appeals lodged with
it against former regional Agency offices' decisions.
- According
to section 5, the claimant or the State Advocate's Office had the
right to appeal against the central Agency's decision within thirty
days of its notification to the Tirana District Court.
- Section
7 set the deadline for the completion of the examination of
applications for the recognition and restitution of properties for
31 December 2011.
7. The 2010 Property Act (Law no. 10308 of 22 July 2010)
- The
2010 Property Act chiefly introduced the possibility of requesting a
revision of decisions of former Commissions / regional Agency
offices.
- Section
4 extended until 31 December 2011 the deadline for the allocation of
properties to the IkCF.
C. Council of Ministers' Decisions (“CMDs”)
- Pursuant
to the Property Act, as amended, the Government have adopted a number
of by-laws, by way of Council of Ministers' Decisions (“CMDs”)
as described below.
1. CMDs on awards from the Financial Compensation Fund (CMD no. 13
of 17 November 2005; CMD no. 758 of 16 November 2006; CMD no. 566 of
5 September 2007; CMD no. 1343 of 4 June 2008 and, CMD no. 487 of 6
May 2009)
- Pursuant to Article 23 of the 2004 Property Act which
established the Financial Compensation Fund, the Government adopted
the
above-mentioned decisions between 2005 and 2009 in respect of
the award of financial compensation to former owners.
- In
2005 financial compensation was awarded in respect of compensation
claims arising out of the Tirana Commission's decisions. In 2006
financial compensation was awarded in respect of compensation claims
arising out of the decisions of the Tirana and Kavaja Commissions. In
2007 the group of beneficiaries was expanded to include former owners
who were in possession of a Commission decision issued with respect
to cities for which a property valuation map had been approved and
issued. In 2008 and 2009 all former owners, who were entitled to
compensation, following a Commission / regional Agency's decision,
were eligible to apply for financial compensation.
- According
to the CMDs adopted between 2005 and 2008, a claimant was required to
lodge a standard application for financial compensation with the
central Agency in Tirana, furnishing, inter alia, the Commission /
regional Agency's decision that recognised his right to compensation.
Only those former owners who had not previously received compensation
were entitled to financial compensation from 2005 to 2008. The 2009
CMD provided that a former owner was entitled to financial
compensation on the condition that he had not benefited from: a)
previous compensation; b) partial restoration/restitution of the
property; c) the right to first refusal; d) the implementation of the
Act on the Distribution of Land (Law no. 7501 of 19 July 1991).
- Applications
were to be examined in chronological order on the basis of the
Commission's / regional Agency's decision date and number. The amount
of financial compensation, which was to be calculated on the basis of
property valuation maps, was limited to a maximum of 200 sq. m.
- The
lodging of an application entailed the payment of a processing fee.
Former owners who had been unsuccessful in their application for
financial compensation in a preceding year could re-submit their
application in the following year(s) once they had paid the
processing fee.
- None
of those decisions provided for the award of compensation to holders'
claims arising out of a final, enforceable court decision.
2. CMDs on property valuation maps (CMD no. 555 of 29 September
2007; CMD no. 653 of 29 August 2007 and CMD no. 139 of
13
February 2008; and CMD no. 1620 of 26 November 2008)
- By
virtue of the above-mentioned decisions, two of which were adopted in
2007 and two in 2008, the Government approved and issued property
valuation maps as listed above. The maps included the reference price
per square metre throughout the country.
- The
first decision fixed the price of land for the regions of Berat,
Gjirokastër, Vlorë and Dibër; the second decision
fixed the price of land for the regions of Lezhë, Dibër,
Korçë and Kukës; the third decision fixed the price
of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës
and Shkodër. The fourth decision contained an updated price list
for certain cities.
3. CMDs on in-kind compensation of former owners
- The
2006 Property Act provided for the establishment of the IkCF (see
paragraph 25 above). The Government have adopted the following CMDs
on the procedures for the allocation of properties covered by the
IkCF.
(a) CMD no. 567 of 5 September 2007
- By
decision no. 567 of 5 September 2007 the Government lay down the
criteria and the procedures for the determination of State properties
covered by the IkCF. Section 1 lists the types of properties, for
example: a) public immovable property which is located in tourist
areas; b) properties of the Ministry of Defence which are not used by
the armed forces and have been approved by the President of the
Republic; c) available agricultural land belonging to the Ministry of
Agriculture; d) forests, pastures and meadows; and e) property of
State institutions which falls outside their intended activity.
- Local
and central State institutions are responsible for identifying and
drawing up a list of immovable properties in their ownership which
could serve as in-kind compensation. The list is submitted to the
Agency and its regional offices which are responsible for checking
the legal status of each property. The Agency submits the final list
of immovable properties for inclusion in the IkCF to the Minister of
Justice. The Government are to approve the list and publish it in the
Official Journal.
(b) CMD no. 868 of 18 June 2008
- By
decision no. 868 of 18 June 2008 the Government allocated 17,335
hectares of agricultural land to the IkCF. The Agency is responsible
for using it for the compensation of owners in accordance with the
criteria prescribed by law.
(c) CMD no. 1077 of 18 June 2008
- By
decision no. 1077 of 18 June 2008 the Government allocated 71,699.3
hectares of forests and pastures to the IkCF. The Agency shall use it
for the compensation of owners in accordance with the criteria
prescribed by law.
(d) CMD no. 1232 of 18 June 2008
- By
decision no. 1232 of 18 June 2008 the Government allocated
twenty-nine objects, mainly warehouses, factories and office
buildings, to the IkCF. The Agency is responsible for using it for
the compensation of owners in accordance with the criteria prescribed
by law.
(e) CMD no. 1696 of 24 December 2008
- By
decision no. 1696 of 24 December 2008 the Government allocated
thirty-two objects, mainly warehouses, office buildings and workshops
to the IkCF. The Agency is in charge of using it for the compensation
of owners in accordance with the criteria prescribed by law.
D. Code of Civil Procedure
- With
regard to the appeal procedure before the Supreme Court, the Code of
Civil Procedure, in so far as relevant, reads as follows:
Article 472
“Decisions of the Court of Appeal and the District
Court may be appealed against to the Supreme Court on the following
grounds: (a) the law has not been complied with or has been applied
erroneously; (b) there have been serious breaches of procedural rules
(pursuant to Article 467 of the Code); (c) there have been procedural
violations that have affected the adoption of the decision. ...”
Article 480
“An appeal [to the Supreme Court] shall be
declared inadmissible if it contains grounds other than those
provided for under the law. The inadmissibility of appeals shall be
decided upon in deliberations in camera.”
THE LAW
I. ADMISSIBILITY OF THE COMPLAINTS
- The
applicant complained under Article 6 § 1 of the Convention that
the proceedings were unfair and that the authorities had failed to
enforce a final decision in his favour. Under Article 13 of the
Convention he complained that there was no effective remedy in
respect of the non-enforcement of a final court decision. He also
made a complaint under Article 1 of Protocol No. 1 to the Convention.
A. Article 6 § 1 complaints
- The
applicant complained that the judicial proceedings had been unfair in
that the courts had wrongly assessed the evidence. He also alleged
that the prolonged non-enforcement of the Court of Appeal's decision
of
30 June 2000 had violated his “right to court”
under Article 6 § 1, which, insofar as relevant, reads as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
1. The unfairness of the proceedings
- The
Government argued that this complaint had been submitted outside the
six-month time-limit prescribed by the Convention, the Constitutional
Court's decision of 10 June 2002 being the last domestic ruling in
the case.
- The
Court observes that this complaint was lodged with it on
24
February 2005. The final judgment for the purpose of calculating the
six-month time-limit was issued on 10 June 2002. The Court notes
that the applicant did not comply with the six-month rule. It follows
that this complaint must be rejected in accordance with Article 35 §§
1 and 4 of the Convention.
2. Non-enforcement of the Court of Appeal decision of 30 June 2000
(a) Complaint lodged out of time
- The
Government argued that this complaint had been submitted outside the
six-month time-limit prescribed by the Convention, the Constitutional
Court's decision of 10 June 2002 being the last domestic ruling in
the case.
- The
applicant submitted that the complaint had been filed within the
time-limit prescribed by the Convention.
- The Court observes that the authorities' failure to
comply with final judgments creates a continuing situation, so that
the six-month rule does not apply (see Marini v. Albania, no.
3738/02, § 95, ECHR 2007 XIV (extracts)). The Government's
objection must therefore be dismissed.
(b) Failure to exhaust domestic remedies
- Without
relying on any particular remedy, the Government contended that the
applicant had not availed himself of all available remedies for the
alleged non-enforcement of the decision of 30 June 2000.
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. The existence of the remedies must
be sufficiently certain, in practice as well as in theory, failing
which they will lack the requisite accessibility and effectiveness;
it falls to the respondent State to establish that these various
conditions are satisfied (see, most recently, Demopoulos
and Others v. Turkey [GC]
(dec.), nos. 46113/99, 3843/02,
13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, §§
69-70, ECHR 2010 ...).
- In
the present case, the Court notes that the Government did not
explicitly rely on any specific remedy to be exhausted by the
applicant. However, the Court considers that the question of the
existence of effective remedies as regards the non-enforcement of the
decision of 30 June 2000, and in particular the effectiveness of the
remedies offered by the Property Act, introduced after the adoption
of this Court's judgment in the case of Driza, cited above,
should be joined to the merits and examined in conjunction with the
applicant's complaint under Article 13 (see paragraphs 72-83 below).
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. Not
being inadmissible on any other grounds, the complaint must therefore
be declared admissible.
B. Article 13 of the Convention
- The
applicant complained under Article 13 of the Convention that there
was no effective remedy to enforce the final Court of Appeal's
decision of 30 June 2000 awarding in-kind compensation.
Article
13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further finds that it is not inadmissible on any other founds. It
must therefore be declared admissible.
Article 1 of Protocol No. 1 to the Convention
- The
applicant alleged that the failure to enforce the Court of Appeal's
decision of 30 June 2000 entailed a breach of Article 1 of Protocol
No. 1, which provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government argued that this complaint had been filed out of time.
- The
applicant submitted that the complaint was filed within the
time-limit prescribed by the Convention.
- The
Court refers to its findings in paragraph 60 above. It results from
the findings that the six-month rule does not apply to the instant
complaint. The Government's objection must therefore be dismissed.
- The
Court further considers that the complaint under this head is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other grounds for declaring this part of the
application inadmissible having been established, the Court therefore
declares this complaint admissible.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The Government submitted that the applicant could have
had recourse to the available remedies to seek the in-kind
compensation to which he was entitled.
- The
Court recalls that in its judgment in the case of Driza it
found as follows:
“118. The Court notes that the Property Act 1993
(which was repealed by the Property Act 2004, which in turn was
amended by the Property Act 2006) provided for various forms of
compensation when the original property could not be returned to the
former owner (...). The Property Act 1993 left the determination of
the appropriate form of compensation to the Council of Ministers,
which was to define the detailed rules and methods applicable to the
provision of compensation. According to the findings of the Supreme
Court in its judgment of 7 December 2000, the bodies competent to
deal with compensation issues had yet to be set up (...).
Notwithstanding the entry into force of the Property Act 2004 the
situation did not change. It was not until 28 April 2005 that
Parliament passed an Act determining the methodology for the
valuation of property for compensation purposes. Section 5 of that
Act left the task of implementing this methodology to the State
Committee on Property Restitution and Compensation, which should have
issued the appropriate site plans to allow the properties to be
valued. However, to date those plans have not been adopted.
119. Consequently, the Court considers that, by not
setting up the appropriate bodies to deal with the compensation
issues or adopting site plans for the valuation of the properties,
the Government failed to establish an adequate procedure in relation
to the compensation claims. Moreover, it is unlikely that the
Government will put in place such a system imminently or within a
span of time sufficiently short to enable the settlement of the
dispute related to the determination of the applicant's rights.”
- The
Court observes that, since the date of adoption of the judgment in
Driza, the Government have enacted new legal provisions as
regards the award of financial compensation, the adoption of property
valuation maps and the establishment of the IkCF (see “The
relevant domestic law” section above). The Court must therefore
determine whether the measures adopted constitute an effective remedy
within the meaning of Article 13 of the Convention.
- The
Court reiterates that Article 13 of the Convention gives direct
expression to the States' obligation, enshrined in Article 1 of the
Convention, to protect human rights first and foremost within their
own legal system. It therefore requires that the States provide a
domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate relief
(Burdov v. Russia (no. 2),
no. 33509/04, § 96, ECHR 2009 ...; and, Yuriy
Nikolayevich Ivanov v. Ukraine, no.
40450/04, § 63, ECHR 2009 ... (extracts)).
- The
scope of the Contracting States' obligations under Article 13 of the
Convention varies depending on the nature of the applicant's
complaint; the “effectiveness” of a “remedy”
within the meaning of this provision does not depend on the certainty
of a favourable outcome for the applicant. At the same time, the
remedy required by Article 13 must be “effective” in
practice as well as in law in the sense either of preventing the
alleged violation or its continuation, or of providing adequate
redress for any violation that has already occurred (see Burdov
(no. 2), cited above, § 97; and, Yuriy
Nikolayevich Ivanov, cited above, §
64).
- The
Court has taken note of the significant domestic legal developments
which have taken place in Albania consequent on this Court's
judgments in the cases of Driza, cited above, and Ramadhi
and Others, cited above. However, the question to be addressed by
the Court is whether there exists an effective domestic remedy as
regards the enforcement of final court judgments awarding
compensation in-kind.
- In
the first place, the Court notes that on 17 July 2006 the Property
Act made provision for the establishment of the IkCF. It also
observes that it was not until 5 September 2007 that the Government
adopted a decision on the procedures for the allocation of properties
to the IkCF. The Government allocated properties, namely agricultural
land, forests and pastures, and various buildings to the IkCF
throughout the second half of 2008.
- The
Court further notes that, on at least two occasions, the deadline for
the allocation of properties to the IkCF was extended, the current
deadline being fixed for 31 December 2011. No information was
submitted by the Government about the progress of the allocation of
properties to the IkCF during 2009 and 2010.
- Secondly,
no information has been brought to the Court's attention about the
adoption of any procedures which a claimant, such as the present
applicant, could use to vindicate his right to in-kind compensation
awarded by virtue of a final court ruling.
- Thirdly,
the Court was not provided with documents showing that the Agency has
in fact made any in-kind compensation awards to claimants, such as
the present applicant, who have an enforceable compensation claim by
virtue of a final court decision. Moreover, the Court is unable to
identify any other measures which have been adopted with a view to
securing the enforcement of a final court decision awarding in-kind
compensation to an applicant in lieu of the restitution of the
original property.
- In
the light of the foregoing, the Court considers that the applicant
did not have an effective remedy enabling him to secure the
enforcement of his right to compensation recognised by virtue of a
final court judgment.
- Accordingly, there has been a violation of Article 13
of the Convention. Consequently, the Court dismisses the Government's
objection that the applicant failed to exhaust effective domestic
remedies.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
- The
Government submitted that the applicant had never been interested in
obtaining the in-kind compensation awarded by way of the Court of
Appeal's decision of 30 June 2000. In their view, the applicant
insisted on the restoration of the original property.
- The
applicant maintained that, to date, the decision of 30 June 2000
which recognised his right to compensation has not been enforced.
- The general principles under Article 6 § 1 of the
Convention concerning the non-enforcement of final court judgments
are set out in Gjyli v. Albania (no.
32907/07, §§ 43-44, 29 September 2009) and Beshiri
and Others v. Albania (no. 7352/03, §§ 60-61, 22 August
2006).
- The
Court observes that the Court of Appeal decision of 30 June 2000
became final and binding on 10 June 2002. To date, the authorities
have failed to take any measures to enforce that decision in the
applicant's favour.
- The
Court recalls that it has already found a violation of Article
6
§ 1 of the Convention on account of the non-enforcement of a
final court decision in the cases of Beshiri and Others, cited
above, §§ 62–66; Driza, cited above, §§
87–94; and Vrioni and Others v. Albania and Italy
(nos.
35720/04 and 42832/06, §§ 54-61, 29 September 2009).
It sees no reason to depart from those findings in the present case.
- The Court therefore concludes that there has been a
violation of the applicant's right of access to a court under Article
6 § 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
Government submitted that the applicant's interest lay in the return
of the original property instead of the award of in-kind
compensation.
- The
Court reiterates that a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 if it is sufficiently established to be enforceable (see Stran
Greek Refineries and Stratis Andreadis v. Greece, judgment of 9
December 1994, Series A no. 301-B, p. 84, § 59).
- The
Court observes that the Court of Appeal decision of
30 June 2000
provided the applicant with an enforceable claim to in-kind
compensation in lieu of the restitution of property. The
applicant therefore has “possessions” within the meaning
of Article 1 of Protocol No.1.
- The
Court recalls its case-law to the effect that the impossibility for
an applicant to obtain the execution of a final court judgment in his
or her favour constitutes an interference with the right to the
peaceful enjoyment of possessions, as set out in the first sentence
of the first paragraph of Article 1 of Protocol No. 1 (see, among
other authorities, Burdov v. Russia, no. 59498/00, § 40,
ECHR 2002-III).
- The
Court notes that it has already found a violation of Article 6 §
1 of the Convention because of the authorities' failure to enforce a
final court decision awarding in-kind compensation (see paragraphs
86-89 above).
- Furthermore,
the Court has already found a violation of an applicant's property
rights on account of the authorities' failure to provide compensation
arising out of a final court decision in the cases of Beshiri and
Others (cited above, §§ 95-103); Driza (cited
above, §§ 101-109); and Vrioni and Others (cited
above §§ 71-77). The Court sees
no reason to reach a different conclusion in the circumstances of the
instant case.
- There
has accordingly been a violation of Article 1 of Protocol No. 1 to
the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The applicant, relying on an expert's report, sought
451,365 euros (“EUR”) in respect of pecuniary damage. He
did not make any claims in respect of non-pecuniary damage, nor for
costs and expenses.
- The Government rejected the applicant's claims as
having been submitted out of time.
- The
Court notes that the applicant's just satisfaction claim was indeed
submitted on 8 July 2009, more than two years after the expiry of the
original deadline on 23 April 2007. The Court further notes that the
applicant has advanced no reasons justifying his failure to comply
with the requirements of Rule 60 § 2 of the Rules of Court. In
these circumstances, the Court considers that his claim should be
dismissed.
-
The Court notes that the applicant remains entitled to the award of
in-kind compensation pursuant to the Court of Appeal's decision in
his favour (see Cooperativa Agricola Slobozia-Hanesei v. Moldova,
no. 39745/02, § 32, 3 April 2007), and that the authorities are
required to take the necessary steps to secure the enforcement of
that decision.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits of the complaint
under Article 13 of the Convention the Government's objection as to
the exhaustion of domestic remedies in respect of the non-enforcement
of the Court of Appeal's decision of 30 June 2000;
- Declares the complaint concerning the unfairness
of the proceedings under Article 6 § 1 inadmissible and the
remainder of the application admissible;
- Holds that there has been a violation of
Article 13 of the Convention and, consequently, dismisses
the Government's objection as to the exhaustion of domestic remedies;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the non-enforcement of the
Court of Appeal's decision of
30 June 2000;
- Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention on account of the
non-enforcement of the Court of Appeal's decision of 30 June 2000;
- Dismisses the applicant's claim for
just satisfaction.
Done in English, and notified in writing on 15 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
