FOURTH SECTION
CASE OF
LULI AND OTHERS v. ALBANIA
(Applications nos.
64480/09, 64482/09, 12874/10, 56935/10, 3129/12 and 31355/09)
JUDGMENT
STRASBOURG
1 April 2014
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 Luli and Others v. Albania,
The European Court of Human Rights
(Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Paul Mahoney,
Krzysztof Wojtyczek, judges
and Françoise Elens-Pasos, Section Registrar,
Having deliberated in private on 11 March 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in six applications (nos.
64480/09, 64482/09, 12874/10, 56935/10, 3129/12 and 31355/09) 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 Albanian nationals, whose details are specified in the appended table (“the
applicants”).
The Albanian Government (“the Government”) were
represented by their then Agent, Ms L. Mandia of the State Advocate’s Office.
The applicants alleged that their rights under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the
Convention were breached on account of the length of the proceedings.
Notice of the applications was given to the
Government on 7 March 2012 (as regards applications nos.
64480/09, 12874/10, 56935/10 and 3129/12) and on 10 July 2012 (as regards application
no. 64482/09).
It was also decided to rule on the admissibility
and merits of the applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Applications nos. 31355/09, 64480/09 and 64482/09:
Luli and Others
All three applications were lodged with the Court
by the same applicants. They were initially registered under application no.
31355/09 (not communicated to the Government).
After a preliminary examination of the case file
and taking account of the applicants’ additional clarifications as well as the
conduct of the domestic proceedings, it was considered necessary to divide the
case into three applications, two additional application numbers having been
allocated (nos. 64480/09 and 64482/09). These latter two cases have been
communicated to the Government.
The facts in respect of each application have
been described below.
1. Application no. 31355/09: Luli and Others
On 6 March 1996 the Durrës Restitution and
Compensation of Properties Commission (“the Durrës Commission”) recognised the
applicants’ inherited property rights to a plot of land measuring 174,000 sq. m,
4,200 sq. m of which was restored. The applicants would have the right to first
refusal (e drejta e parablerjes) of a further 5,800 sq. m and they would
be compensated in one of the ways provided for by law for the remaining 158,200
sq. m (“the first Commission decision”).
On the same day, the Durrës
Commission, consisting of the same composition, delivered another decision
which bore the same number and Commission stamp (“the second Commission decision”).
According to the second decision, the Durrës Commission recognised the
applicants’ inherited property rights to a plot of land measuring 17,400 sq. m,
4,200 sq. m of which was restored. The applicants would have the
right to first refusal of 5,800 sq. m, no other award having been made.
2. Application no. 64480/09: Luli and Others
11. On 6 December 2005
the Durrës District Court recognised the existence of the applicants’ inherited
property rights to a plot of land measuring 400,000 sq. m situated in the city
of Durrës (vendim për vërtetim fakti). This plot of land was made up of two smaller plots: one measuring
260,000 sq. m (“Plot A”) and the other measuring 140,000 sq. m (“Plot B”).
Proceedings concerning the restitution of
Plot B
. On
an unspecified date the applicants made an application for the recognition of
property rights to Plot B (see paragraph 11 above).
. On
30 July 2007 the Durrës Regional Agency for Compensation and Restitution
of Properties (“the Durrës Regional Agency”) recognised the applicants’
inherited property rights to Plot B, 53,200 sq. m of which was restored. The
applicants would also be compensated in one of the ways provided for by law in
respect of a further 22,960 sq. m, no decision having been taken in
respect of the remaining 63,840 sq. m.
On 15 November 2007, following the applicants’
appeal, the Agency for Compensation and Restitution of Properties in Tirana
(“the Central Agency”) quashed the Durrës Regional
Agency’s decision of 2007 and remitted the case for re-examination.
On 16 May 2008 the Durrës Regional
Agency recognised the applicants’ inherited property rights in respect of only 76,160 sq. m
of Plot B, no decision having been taken in respect of the remaining 63,840 sq.
m. The applicants would be compensated in one of the ways provided for by law in
lieu of restitution of the area of Plot B measuring 76,160 sq. m.
On 28 February 2011 the Central Agency quashed
the Durrës Regional Agency’s decision of 2008. The
applicants were informed of their right to appeal, within 30 days of
notification, to the Tirana District Court.
It would appear that, following the applicants’
appeal, the proceedings are currently pending before the Tirana District Court.
On 29 March 2011 the Central Agency, having
regard to the Constitutional Court’s decision no. 27/2010 (see paragraph 59
below), decided that it was outside of its jurisdiction to examine a decision given
in a separate set of proceedings which, in 2003, had recognised a third party’s
inherited property rights to the plot of land measuring 63,840 sq. m which the
applicants alleged belonged to them.
3. Application no. 64482/09: Luli and Others
Proceedings concerning the restitution of Plot A
. On
an unspecified date, after the Durrës District Court’s decision of 6 December
2005 (see paragraph 11 above), the applicants applied for the recognition of
property rights to a plot of land measuring 242,600 sq. m. This plot
of land, taken together with the plot of land measuring
17,400 sq. m referred to in the second Commission decision (see paragraph 10
above), totalled Plot A.
. On
30 July 2007 the Durrës Regional Agency recognised the applicants’
inherited property rights to the plot of land measuring 242,600 sq. m and
further restored them a plot of land measuring 7,788 sq. m. 4,200 sq. m of Plot
A had already been restored by virtue of the second Commission decision (see
paragraph 10 above). The applicants would be
compensated in one of the ways provided for by law for 245,772 sq. m of Plot A,
no decision having been taken in respect of the remaining 2,240 sq. m.
On 15 November 2007, following the applicants’
appeal, the Central Agency quashed the Durrës Regional
Agency’s decision 2007 and remitted the case for re-examination.
On 30 April 2008 the Durrës
Regional Agency recognised the applicants’ inherited property rights to
the plot of land measuring 242,600 sq. m and further restored them a
plot of land measuring 7,788 sq. m. 4,200 sq. m of Plot A had already
been restored by virtue of the second Commission decision. The applicants would
be compensated in one of the ways provided for by law for 248,012 sq. m of Plot
A.
On 4 July 2008, on his own motion, the Central
Agency’s director quashed the Durrës Regional
Agency’s decision of 2008 and sent the case back for re-examination.
On 23 December 2009 Regional Agency offices were
abolished by law and the Central Agency was entrusted with the examination of
restitution and compensation claims. No further decision appears to have been
taken to date.
B. Application no. 12874/10: Pistulli
On 8 June 1995 the Lezhë Commission recognised
the applicant’s father’s property rights to a plot of land measuring 25,850 sq.
m, 11,500 sq. m of which was restored. The applicant would be
compensated in one of the ways provided for by law in respect of a plot
measuring 5,000 sq. m (t’i kompesohet sipërfaqja prej 5,000 m2me
mënyrat e parashikuara në [këtë] ligj). The Commission further recognised
the applicant’s right to first refusal of the remaining property.
On 19 April 2000 the applicant registered her title
to a plot of land measuring 5,830 sq. m in her name. However, she was unable to
use that land as it was occupied by the Port Authority of Shëngjin (“the Port
Authority”).
On 16 October 2000 the Ministry of Public
Economy and Privatisation ordered the registration of the immovable property of
the Port Authority. However, the Port Authority was unable to register the
immovable property as the property rights had been recognised and registered in
favour of the applicant.
On 3 July 2006 the applicant brought civil
proceedings before the Lezhë District Court (“the District Court”) requesting the
Port Authority to vacate the plot of land measuring 5,830 sq. m.
On 19 February 2007 the District Court accepted the
applicant’s request. The Port Authority appealed.
On 23 October 2007 the Shkodër Court of Appeal
quashed the lower court’s decision on grounds of procedural irregularities and
remitted the case for re-examination by a different bench.
On 19 November 2007 the applicant appealed
against the decision to the Supreme Court.
On 6 November 2009, following the applicant’s
request about the progress of her appeal, the Supreme Court informed her that
the case was still pending for examination before that court.
On 9 April 2010 the Supreme Court dismissed her
appeal.
On 28 March 2011, in the rehearing proceedings,
the District Court discontinued the proceedings (vendosi pushimin e çështjes)
for lack of appearance of the applicant despite notification of the date
and time of the hearing.
C. Application no. 56935/10: Dushallari
On 27 November 2007 the Gjirokastra Regional
Agency recognised the applicant’s inherited property rights to some plots of
land.
On 16 January 2008 the Gjirokastra State
Advocate’s Office (“the State Advocate’s Office”) was informed of the above
decision and, on 11 February 2008, appealed against it arguing that the
decision had been taken in breach of the law.
On 12 September 2011 the Central Agency’s
director stayed the proceedings until the adoption of a decision by the
Constitutional Court in a case concerning the constitutionality of certain
provisions of the Property Act 2004 (see paragraphs 60 and 61 below).
On 28 February 2012 the Central Agency relied on,
inter alia, the Constitutional Court’s decision no. 43/2011 (see
paragraph 62 below) to declare the case outside of its jurisdiction.
The proceedings are currently pending before the
Tirana District Court following an appeal by the State Advocate’s Office on an
unspecified date in March 2012.
D. Application no. 3129/12: Kekenezi
1. Proceedings concerning the vacation of the plot of
land and the house
In 1957 K. bought a plot of land and a
three-bedroom house located thereon from the State. The property had been confiscated
from D. and expropriated by the State in 1948.
On 26 October 1992 the applicant bought the
property from K. and it was entered in the mortgage register.
On 2 August 1993, under the Rehabilitation of
Victims of Political Repression Act (Law no. 7514 of 30 September 1991), the
financial unit of Tirana Municipality allocated to D.’s heir, M., the land and
the house purchased by the applicant.
On 25 August 1993 M. donated the property to her
brother, H.
On an unspecified date in 1996 H. lodged a civil
action against the applicant for the vacation of the land and the house.
By a final decision of 14 January 1998 the Court
of Cassation ruled in favour of H., ordering the vacation of the land and the house.
It upheld the lower court’s decision which had recognised H. as the legal owner
and had declared null and void the sale contract of 26 October 1992.
On 23 September 2000 the Tirana Commission
recognised H.’s title to the above properties.
On 24 September 2002 the applicant’s supervisory
review request was rejected by the Supreme Court Joint Benches.
2. Proceedings concerning the nullity of the Tirana
Municipality’s decision and the donation contract
On an unspecified date, most likely in 2006, the
applicant lodged a civil action seeking the nullity of a number of legal acts
which had affected his property rights.
On 23 October 2007 the Court of Appeal found
that the applicant had no locus standi to bring legal proceedings.
According to the court, the sale contract of 26 October 1992 was null and void
on the following grounds. In the first place, by virtue of the Rehabilitation
of Victims of Political Repression Act 1992, K. was not allowed to transfer
property rights to third parties. Secondly, the sale contract had not been
concluded in accordance with the law (before a notary public). Thirdly, the
Court of Cassation’s decision of 14 January 1998 had ordered the vacation of
the land and the house by the applicant. The applicant appealed to the Supreme
Court within the thirty-day statutory time-limit (see paragraph 55 below).
On 7 April 2011 the Supreme Court, by way of a
reasoned decision, upheld the Court of Appeal’s decision.
On 22 July 2011 the Constitutional Court,
sitting as a bench of three judges, rejected the applicant’s constitutional
appeal, finding that the lower courts had correctly ruled that the applicant
lacked locus standi.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The 2004 Property Act as amended
Section 18 of the 2004 Property Act, as amended
by law no. 9684 of 6 February 2007, provided for the right of a claimant and of
the State Advocate’s Office to appeal against a Regional Agency’s decision
recognising property rights and awarding compensation, as appropriate, within
30 days of its notification, to the Central Agency.
The Central Agency’s director would decide on
the appeal within 30 days of its introduction (jo më vonë se 30 ditë
nga regjistrimi i ankimit, Drejtori i Përgjithshëm merr vendim për objektin e
ankimit).
B. Code of Civil Procedure (“CCP”)
Under Article 324 of the CCP a claimant may seek
the annulment of an administrative decision. A claimant may also challenge the
authorities’ refusal to take an administrative decision within the prescribed
time-limit.
Article 443 of the CCP provides
that the time-limit for lodging an appeal with the Supreme Court is 30 days.
C. High Council of Justice Act (“the HCJ Act”, law No.
8811 dated 17 May 2001, as amended by Law No. 9448 dated 5 December 2005, “On
the organisation and operation of the HCJ”)
Section 1 provides that “the HCJ is ...
responsible for the protection, appointment, transfer, dismissal, education,
moral and professional appraisal, career and the assessment of performance of
judges of first-instance courts and of courts of appeal.”
Under section 2, the HCJ is also empowered to
take disciplinary measures against judges. In this connection, it is assisted
by an Inspectorate as provided for in section 14. Under section 16, the HCJ
Inspectorate verifies complaints submitted by individuals to the HCJ or to the
Minister of Justice against judges’ actions. In the event of good cause for the
institution of disciplinary proceedings, the Inspectorate draws up a report and
submits it to the Minister of Justice who decides on the start of disciplinary
proceedings. The report is also submitted to the HCJ meetings.
D. Domestic case-law
1. Domestic case-law as regards the interpretation of
the 2004 Property Act, as amended
On 26 March and 14 September
2009 the Supreme Court and the Ombudsman requested the Constitutional Court to
examine the constitutionality of some provisions of the 2004 Property Act, as
amended.
On 26 May 2010 the
Constitutional Court declared unconstitutional some provisions of the 2004
Property Act, as amended, which had empowered the Central Agency’s director to
review prior decisions taken by former land Commissions or Regional Agency
offices (decision no. 27/2010). It found that such powers were contrary to
the principle of legal certainty.
On 22 July 2010 Parliament therefore
enacted amendments to the 2004 Property Act which restored the Central Agency’s
director’s powers to review prior decisions taken by land Commissions or
Regional Agency offices.
On 6 December 2010 and 2
February 2011 the constitutionality of these amendments was challenged before
the Constitutional Court.
On 6 October 2011 the
Constitutional Court annulled the provisions of the 2004 Property Act as
introduced on 22 July 2010. It found that the Central Agency did not have the characteristics
of a judicial or quasi-judicial body, so that it could not be empowered to
review decisions of former land Commissions or regional Agency offices. It
further found that such review powers were contrary to the principle of legal
certainty and the protection of property (decision no. 43/2011).
2. Domestic case-law as regards the length of
proceedings
On 7 November 2011 the Constitutional Court
found that there had been a breach of the appellant’s right to a fair hearing
as regards the length of the criminal proceedings (decision no. 47/2011). No award was made to the appellant, nor was any other means of redress
provided.
On 5 March 2012 the
Constitutional Court found that there had been a breach of the appellant’s
right to a fair hearing as regards the length of the civil proceedings
(decision no. 12/2012): the civil action had been pending before the District
Court since 2006. No award was made to the appellant, nor was any other means
of redress provided.
THE LAW
I. JOINDER OF THE APPLICATIONS
Given that applications nos. 64480/09 (Luli
and Others), 64482/09 (Luli and Others), 12874/10 (Pistulli),
56935/10 (Dushallari) and 3129/12 (Kekenezi) raise the same
issue, that is the reasonableness of the overall length of the proceedings
under Article 6 § 1, which was communicated to the parties, the Court decides
that the applications should be joined pursuant to Rule 42 § 1 of the Rules of
Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
As regards application no. 31355/09 (Luli and
Others), the applicants complained under Article 6 § 1 of the Convention
about the non-enforcement of the first Commission decision. As regards the
remaining applications, the applicants complained under Article 6 § 1 of the
Convention about the length of the proceedings.
Article 6 § 1, in so far as relevant, reads as follows:
““In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
A. Admissibility
1. The applicants’ complaint about the non-enforcement
of the first Commission decision in application no. 31355/09 (Luli and Others)
The applicants complained that the first
Commission decision had not been enforced. The Court will determine whether the
applicants have an enforceable right by virtue of that Commission decision.
The Court notes that on 6 March
1996 the Durrës Commission, sitting with the same composition, delivered two
different decisions, each having the same number and bearing the official
stamp. The first Commission decision recognised the applicants’ inherited
property rights to a plot of land measuring 174,000 sq. m and the
second Commission decision to a plot of land measuring 17,400 sq. m.
Despite the applicants’ claim that the first
Commission decision awarded them an enforceable right, it is not the Court’s
task to speculate about the authenticity of either decision, that being the
task of the domestic authorities.
The Court further notes that there was no
mention of the first Commission decision during twenty years of domestic
proceedings which are the subject of application no. 64482/09. Indeed, having
regard to their application for the recognition of the plot of land measuring
260,000 sq. m, the applicants implicitly accepted that the enforceable
decision was the second Commission decision. In this connection, the applicants
sought the recognition of the inherited property rights as regards a plot of
land measuring 242,600 sq. m. This plot of land, taken together with the plot
of land measuring 17,400 sq. m which had been recognised by virtue of the
second Commission decision, totalled the plot of land measuring 260,000 sq.
m which the applicants claimed to be theirs.
In these circumstances, the
Court concludes that the applicants have not provided the Court with any reason
to consider that the first Commission decision was an enforceable one. It
rejects this application as manifestly ill-founded in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
2. The applicants’ complaints about the length of
proceedings
(a) As regards application no. 3129/12 (Kekenezi)
The Government submitted that this applicant
could not claim to be a victim of the unsuccessful length of proceedings.
The applicant did not comment.
The Court recalls that Article 6 § 1 is not
applicable to proceedings concerning an application for a re-opening of civil
proceedings (see, for example, Kaisti v. Finland (dec.), no. 70313/01,
14 September 2004). However, if the proceedings are re-opened, the requirements
of Article 6 must be respected as those proceedings, unlike the re-opening
proceedings, result in a decision which directly affects the civil rights and obligations
of the person concerned.
Turning to the present case, the Court notes
that the final decision regarding the proceedings concerning the vacation of
the plot of land and the house was taken on 14 January 1998, whereas the
application was lodged with the Court on 7 January 2012, that is more than six
months after the date of the final decision. It follows that any complaint
regarding this set of proceedings has been introduced out of time within the
meaning of Article 35 § 1 of the Convention and must be rejected under Article
35 § 4 (see, mutatis mutandis, Rizi v. Albania (dec.), 43-46, 8
November 2011).
As regards the proceedings concerning the
nullity of the Tirana Municipality’s decision and the donation contract, the
Court considers the applicant’s action akin to an action for review and
re-opening of the set of proceedings, which had been decided upon by way of the
final Court of Cassation’s decision of 14 January 1998. In these circumstances,
the Court considers that Article 6 § 1 does not apply to this set of
proceedings and any complaint must be rejected as incompatible ratione
materiae in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(b) As regards non-exhaustion of domestic remedies in
the remaining applications
Relying on Article 324
of the CCP, the Government submitted that the applicants in applications nos.
64480/09 (Luli and Others), 64482/09 (Luli and Others) and
56935/10 (Dushallari) had not exhausted domestic remedies as
regards the length of the proceedings. They further contended, relying on the Constitutional
Court’s decision no. 12/2012 (see paragraph 64 above), that the applicants
in application no. 12874/10 (Pistulli) did not lodge a
constitutional appeal as regards the length of the proceedings. Finally, the
Government maintained that the applicant in application no. 12874/10 (Pistulli)
should have lodged a complaint with the High Council of Justice.
The applicants argued that there was no
effective remedy to exhaust.
i. As regards an application under Article 324 of the
CCP in respect of applications nos. 64480/09 (Luli and Others), 64482/09 (Luli
and Others) and 56935/10 (Dushallari)
The Court reiterates that under Article 35 § 1
it may only deal with a matter after all domestic remedies have been exhausted.
The existence of such remedies must be sufficiently certain not only in theory
but also in practice, failing which they will lack the requisite accessibility
and effectiveness (see, amongst many other authorities, McFarlane v. Ireland [GC], no.
31333/06, § 107, 10 September 2010). Where the Government claims non-exhaustion
it must satisfy the Court that the remedy was an effective one available in
theory and in practice at the relevant time, that is to say, that it was
accessible, was capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success (see, amongst many other
authorities, Scoppola v. Italy (no. 2) [GC], no. 10249/03, §
71, 17 September 2009).
The Court recalls that it has already rejected
the same argument in the case of Mishgjoni v. Albania (no. 18381/05, § 70, 7 December 2010) on the grounds that the
Government failed to provide any relevant domestic decisions which finding in a
claimant’s favour in such situations and capable of providing redress (see also
paragraph 81 below). It sees no
reason to depart from those findings as the Government have still not submitted
relevant case-law. The Court therefore rejects this objection.
ii. As regards an application to the Constitutional
Court in respect of application no. 12874/10 (Pistulli)
The Court notes that the
Constitutional Court’s findings in decision no. 12/2012 were declaratory and
did not offer any redress. In particular, it did not make any awards of
non-pecuniary damage for the delay experienced by the appellant, nor could it
offer a clear prospect of expediting the impending proceedings. The Court
therefore rejects this objection (see, mutatis mutandis, Gjyli v.
Albania, no. 32907/07, § 58,
29 September 2009).
iii. As regards an application to the HCJ in respect
of application no. 12874/10 (Pistulli)
In the first place, the Court notes that the HCJ’s
responsibility extends solely to judges of first-instance courts and to the
courts of appeal, no authority being extended to the measures of appointment,
dismissal, appraisal and discipline of Supreme Court judges. Secondly, while
the HCJ Act empowers the HCJ to institute disciplinary proceedings against a
judge of the first-instance court or of the court of appeal, no provision enables
it to provide redress for excessively long (pending or terminated) proceedings
and the Government submitted no information (relevant case-law) to the
contrary.
. The Court therefore rejects
this objection.
(c) Conclusion
The Court considers that the applicants’
complaints concerning applications nos. 64480/09 (Luli and Others),
64482/09 (Luli and Others), 12874/10 (Pistulli) and
56935/10 (Dushallari) in respect of the length of proceedings are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. Not being inadmissible on any other grounds, the complaints must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The applicants complained that their respective proceedings
were excessively long.
The Government relied on the Constitutional
Court’s decisions, amendments to the Property Act and the process for collecting
and assessing the evidence for the recognition and compensation of property
rights to argue that there had been no breach of Article 6 § 1 of the
Convention.
2. The Court’s assessment
(a) General principles
The Court will assess the reasonableness of the
length of the proceedings in the light of the particular circumstances of the
case and having regard to the criteria laid down in its case-law, in particular
the complexity of the case and the conduct of the applicant and of the relevant
authorities. On the latter point, what was at stake for the applicant has also
to be taken into account (see, amongst others, Vilho Eskelinen and Others v. Finland
[GC], no. 63235/00, § 67, ECHR 2007-II).
(b) Application of those principles to the present
cases
i. As regards applications nos. 64480/09 and 64482/09
(Luli and Others)
The Court notes that the proceedings in
application no. 64480/09 started on an unspecified date in, most likely, 2007
and appear to be currently pending before the Tirana District Court. They have
thus lasted for more than 6 years before two levels of jurisdiction.
The Court notes that the proceedings in
application no. 64482/09 started on an unspecified date in, most likely, 2007
and appear to be currently pending before the Central Agency. They have thus
lasted for 6 years before one level of jurisdiction.
The Court could agree that the determination of
the applicants’ property rights was somewhat complex, but it does not consider
that this explains the overall length of the proceedings. As to the applicants’
appeals, the Court recalls that applicants are entitled to make use of all
relevant domestic procedural steps, but they should do so with diligence and
must bear the consequences when such procedural applications result in delay
(see McFarlane, cited above, § 148).
The Court considers that the
length of the proceedings is, in fact, to be attributed to the repeated
referrals for fresh examination by the administrative body, which action reveals
“a serious deficiency in the Albanian legal system” (see Marini, cited
above, § 145; and, mutatis mutandis, Kaçiu and Kotorri v. Albania, nos. 33192/07 and 33194/07, § 154, 25 June 2013 in the
context of criminal proceedings). In view of what was and, continues to
be, at stake for the applicants, that is the recognition of their property
rights, the Court recalls that it is for the Contracting
States to organise their legal systems in such a way that the competent
authorities can meet the requirements of Article 6 of the Convention, including
the obligation to hear cases within a reasonable time and, where necessary,
join them, suspend them or reject the further institution of new proceedings (see
also Mishgjoni, cited above, § 59; and Gjonbocari and Others,
cited above, § 67).
The Court concludes that there has been a
violation of Article 6 § 1 of the Convention.
ii. As regards application no. 12874/10 (Pistulli)
The Court notes that the proceedings concerning
the vacation of the land started on 3 July 2006 and ended on 28 March 2011.
They lasted for 4 years, 8 months and 25 days before three levels of
jurisdiction.
The Court recognises that the overall length of
proceedings may not at first sight appear unreasonable. However, in the present
circumstances, the Court is concerned with the period between 19 November 2007,
when the applicant lodged an appeal with the Supreme Court, and 9 April 2010,
when that court dismissed the appeal. That period totalled 2 years, 4 months
and 21 days.
In the particular circumstances of the present
case, it transpires from the case-file that no procedural steps were ever taken
by the Supreme Court during that period. It would seem that the Supreme Court
was totally inactive. The Government did not provide any explanations
whatsoever for such an excessive period of inactivity and delay before the
Supreme Court. The Court again recalls that the Convention places a duty on the
Contracting States to organise their legal systems so as to allow the courts to
comply with the requirements of Article 6 § 1 including that of “a hearing...within
a reasonable time” (see paragraph 91 above). Furthermore, there is no
indication that the inactivity and delay was due to the complexity of the case
or the applicant’s conduct. On the contrary, on 6 November 2009 the applicant
enquired of the progress of her appeal before the Supreme Court.
The Court further notes that it has already
found a breach of Article 6 § 1 of the Convention on account of the length of
proceedings before one instance or level of jurisdiction (see, for example, Paulsen-Medalen
and Svensson v. Sweden, 19 February 1998, §§ 38-42, Reports of Judgments
and Decisions 1998-I; Bunkate v. the Netherlands, 26 May 1993,
§§ 22-23, Series A no. 248-B; Abdoella v. the Netherlands,
25 November 1992, §§ 18-25, Series A no. 248-A; Zimmermann and Steiner
v. Switzerland, 13 July 1983, § 32, Series A no. 66; and, Guincho
v. Portugal, 10 July 1984, § 41, Series A no. 81). Having regard
to the particular circumstances of the present case, the unreasonable delay
before the Supreme Court which accounted for half of the overall proceedings
and the lack of explanations justifying such delay, the Court considers that
the authority concerned failed to act with the required diligence under Article
6 § 1 of the Convention. Accordingly, there has been a violation of Article 6 § 1
of the Convention on account of the excessive period of delay before the
Supreme Court.
iii. As regards application no. 56935/10 (Dushallari)
The Court notes that the proceedings started on
an unspecified date in, most likely, 2007 and appear to be currently pending
before the Tirana District Court. They have thus lasted for 6 years before two
levels of jurisdiction.
The Court notes that this case, like
applications nos. 64480/09 and 64482/09 (Luli and Others), concerned the
determination of the applicant’s property rights. As to the conduct of the
applicant, she cannot be blamed for the length of the proceedings. As concerns
the conduct of the authorities, following the lodging of the appeal by the State
Advocate’s Office’s on 11 February 2008, it took more than 3 years and 6 months
for the Central Agency’s director to stay the proceedings on 12 September 2011.
While this lapse of time could, to a certain extent, be explained by the
waiting period for the outcome of the constitutionality proceedings between
March 2009 and October 2011, no argument was advanced by the Government as to
why the Central Agency’s director had not taken any decision prior to 12 September
2011. In this connection, the Court recalls that the domestic law requires the
Central Agency’s director to examine the appeal within 30 days of its introduction.
Furthermore, the Court notes that, since March 2012, the proceedings have still
been pending before the District Court.
The Court finds no sufficient explanation for
the delays experienced before the Central Agency and the District Court. There
has therefore been a violation of Article 6 § 1 of the Convention on account of
the length of the proceedings.
IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.
1 TO THE CONVENTION
The applicants complained that there had been a
breach of Article 1 of Protocol No. 1 to the Convention, which reads as
follows:
“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.”
A. As regards applications nos. 64480/09 (Luli and Others),
64482/09 (Luli and Others) and 56935/10 (Dushallari)
The Government submitted that this complaint
should be declared incompatible ratione materiae, the applicants’
property rights not having been recognised by a final domestic decision.
The Court reiterates that an applicant may
allege a violation of Article 1 of Protocol No. 1 only in so far as the
impugned decision related to his “possessions” within the meaning of this
provision. “Possessions” can be either “existing possessions” or assets,
including claims, in respect of which the applicant can argue that he or she
has at least a “legitimate expectation” of obtaining effective enjoyment of a
property right (see, amongst others, Manushaqe Puto and Others v. Albania,
nos. 604/07, 43628/07, 46684/07 and 34770/09, § 92, 31 July 2012).
Where there is a dispute as to whether an
applicant has a property interest which is eligible for protection under
Article 1 of Protocol No. 1, the Court is required to determine the legal
position of the applicant (see J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford)
Land Ltd v. the United Kingdom [GC], no. 44302/02, § 61, ECHR 2007-III).
No legitimate expectation can be said to arise where there is a dispute as to
the correct interpretation and application of domestic law and the applicant’s
submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia
[GC], no. 44912/98, § 50, ECHR 2004-IX).
The Court notes that the domestic proceedings
for the recognition of the applicants’ inherited property rights are still
pending. No final decision having been taken, it cannot be said that the
applicants have “existing possessions” within the meaning of Article 1 of
Protocol No. 1. The belief that, in the future, the authorities may issue a
decision recognising the applicants’ inherited property rights cannot be
regarded as a form of “legitimate expectation” for the purposes of Article 1 of
Protocol No. 1. The Court recalls that there is a difference between a mere
hope of restitution, however understandable that hope may be, and a legitimate
expectation, which must be of a more concrete nature than a mere hope and be
based on a legal provision or a legal act such as a judicial decision (see Kopecký,
cited above, § 49; and Gratzinger and Gratzingerova v. the Czech Republic
(dec.), no. 39794/98, § 73, ECHR 2002-VII ).
The Court therefore rejects this complaint as
being premature in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. As regards application no. 12874/10 (Pistulli)
The Government submitted that this complaint
should be declared inadmissible for a failure to exhaust domestic remedies.
The applicant did not comment.
The Court recalls that Article 35 § 1 of the
Convention provides, inter alia, that it may only deal with an
application after all domestic remedies have been exhausted.
In the instant case, the applicant instituted
proceedings for the vacation of her plot of land. On 28 March 2011 those
proceedings were discontinued by the District Court on account of the applicant’s
failure to appear. There is no indication that the applicant lodged an appeal
against the District Court’s decision or instituted fresh legal proceedings to
pursue her claim. The Court therefore concludes that, irrespective of the
outcome of the applicant’s complaint concerning the length of those proceedings
under Article 6 § 1 of the Convention, the complaint under Article 1 of
Protocol No. 1 should be rejected for non-exhaustion of domestic remedies in
accordance with Article 35 §§ 1 and 4 of the Convention.
C. As regards application no. 3129/12 (Kekenezi)
The applicant complained under Article 1 of
Protocol No. 1 that the domestic courts’ interpretation of the domestic law in
the proceedings concerning the vacation of the plot of land and the house had
unfairly dispossessed him of his property rights.
Having regard to the findings in paragraphs
74-76 above, the Court notes that the applicant’s property rights were finally adjudicated
upon by way of the Supreme Court’s final decision of 14 January 1998, whereas
the application was lodged with the Court on 7 January 2012, that is more than
six months after the date of the final decision. The applicant’s unsuccessful
request for review cannot alter the running of the six-month time-limit (see, inter
alia, Rizi v. Albania (dec.), no. 49201/06, §§ 42-46, 8 November 2011).
Neither does the second set of proceedings concerning the nullity of legal
acts, which was rejected on the ground that the applicant lacked locus
standi, affect the previous determination of his property rights. Indeed,
in the second set of proceedings the domestic courts referred to the Supreme
Court’s final decision of 14 January 1998 concerning the determination of the
applicant’s property rights.
In these circumstances, the Court considers
that this complaint was lodged beyond the six-month time-limit. It should be rejected
in accordance with Article 35 §§ 1 and 4 of the Convention.
IV. APPLICATION OF ARTICLES 46 AND 41 OF THE
CONVENTION
A. Article 46 of the Convention
Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to abide
by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
The Court observes that it
found a breach of Article 6 § 1 as regards the length of proceedings on account
of frequent remittals by a higher court to a lower one in the case of Marini,
cited above. In Gjonbocari and Others, cited above, the Court found a breach
of Article 6 § 1 as regards the length of proceedings on account of the failure
of the judicial system to manage properly the multiplication of proceedings on
the same issue. The Court further found a breach of Article 6 § 1 as regards
the length of proceedings on account of the HCJ’s failure to examine the
applicant’s case in the case of Mishgjoni, cited above.
Furthermore, the Court held in
the cases of Gjonbocari and Others and Marini, cited above, that
there existed no domestic remedy as regards the length of proceedings. In the
instant case, it rejected the Government’s objections as regards the applicant’s
failure to exhaust domestic remedies. The Court notes that these conclusions
demonstrate that excessive length is becoming “a serious deficiency in domestic
legal proceedings”. There are already dozens of similar
applications before the Court. The growing number of applications is not only an
aggravating factor as regards the State’s responsibility under the Convention, but
also represent a threat to the future effectiveness of the system put in place
by the Convention, given that in the Court’s view, the legal deficiency identified
in the applicants’ particular cases may subsequently give rise to other
numerous well-founded applications.
Before examining the applicants’ individual
claims for just satisfaction under Article 41 of the Convention and in view of
the circumstances of the present cases, the Court wishes to consider what consequences
may be drawn for the respondent State from Article 46 of the Convention. It
reiterates that, under Article 46, the High Contracting Parties undertake to
abide by the final judgments of the Court in any case to which they are
parties, with execution being supervised by the Committee of Ministers. One of
the effects of this is that where the Court finds a violation, the respondent
State has a legal obligation not just to pay those concerned the sums awarded
by way of just satisfaction under Article 41, but also to select, subject to
supervision by the Committee of Ministers, the general and/or, if appropriate,
individual measures to be adopted in their domestic legal order to put an end
to the violation found by the Court and to redress so far as possible the
effects. Furthermore, once a deficiency in the legal system has been identified
by the Court, the national authorities have the task, subject to supervision by
the Committee of Ministers, of taking within a determined period of time -
retrospectively if needs be - the necessary measures of redress in accordance
with the principle of subsidiarity under the Convention, so that the Court does
not have to reiterate its finding of a violation in a long series of comparable
cases (see, among other authorities, Scordino v. Italy (no. 1) [GC], no.
36813/97, § 233, ECHR 2006; Xenides-Arestis v. Turkey, no. 46347/99, §§
39, 40, 22 December 2005; Broniowski v. Poland [GC], no. 31443/96,
§ 192, ECHR 2004-V; Bottazzi v. Italy [GC], no. 34884/97, §
22, ECHR 1999-V; and Di Mauro v. Italy [GC], no.
34256/96, § 23, ECHR 1999-V).
In this respect, as part of the measures
designed to guarantee the effectiveness of the machinery established by the
Convention, the Court draws attention to the Resolution (Res(2004)3) and
Recommendation (Rec(2004)6) of the Committee of Ministers of the Council of
Europe both adopted on 12 May 2004.
In principle, it is not for the Court to
determine what may be the appropriate measures of redress for a respondent
State to adopt in accordance with its obligations under Article 46 of the
Convention. However, the Court’s concern is to facilitate the rapid and effective
suppression of a malfunction found in the national system of human-rights
protection. In that connection and having regard to the systemic situation
which it has identified (see paragraphs 114 and 115 above), the Court considers
that general measures at the national level are undoubtedly called for in the
execution of the present judgment including, in particular, introducing a domestic
remedy as regards undue length of proceedings. The Court would point to its
findings in Scordino (no. 1), [GC], cited above, as regards the required
elements of an effective remedy for excessive length of proceedings.
“182. In so far as the parties appear to link the
issue of victim status to the more general question of effectiveness of the
remedy and seek guidelines on providing the most effective domestic remedies
possible, the Court proposes to address the question in a wider context by
giving certain indications as to the characteristics such a domestic remedy
should have, having regard to the fact that, in this type of case, the
applicant’s ability to claim to be a victim will depend on the redress the
domestic remedy will have afforded him or her.
183. The best solution in absolute terms is
indisputably, as in many spheres, prevention. The Court observes that it has
stated on many occasions that Article 6 § 1 imposes on the Contracting States
the duty to organise their judicial systems in such a way that their courts can
meet each of its requirements, including the obligation to hear cases within a
reasonable time (references omitted). Where the judicial system is deficient in
this respect, a remedy designed to expedite the proceedings in order to prevent
them from becoming excessively lengthy is the most effective solution. Such a
remedy offers an undeniable advantage over a remedy affording only compensation
since it also prevents a finding of successive violations in respect of the
same set of proceedings and does not merely repair the breach a posteriori,
as does a compensatory remedy of the type provided for under Italian law for
example.
184. The Court has on many occasions acknowledged
that this type of remedy is “effective” in so far as it hastens the decision by
the court concerned (references omitted).
185. It is also clear that for countries where
length-of-proceedings violations already exist, a remedy designed to expedite
the proceedings - although desirable for the future - may not be adequate to
redress a situation in which the proceedings have clearly already been
excessively long.
186. Different types of remedy may redress the
violation appropriately. The Court has already affirmed this in respect of
criminal proceedings, where it was satisfied that the length of proceedings had
been taken into account when reducing the sentence in an express and measurable
manner (reference omitted).
Moreover, some States, such as Austria, Croatia, Spain, Poland
and Slovakia, have understood the situation perfectly by choosing to combine
two types of remedy, one designed to expedite the proceedings and the other to
afford compensation (references omitted).
187. However, States can also choose to introduce
only a compensatory remedy, as Italy has done, without that remedy being
regarded as ineffective (reference omitted).
188. In Kudła (cited above, §§ 154-55)
the Court already had occasion to reiterate that, subject to compliance with
the requirements of the Convention, the Contracting States are afforded some
discretion as to the manner in which they provide individuals with the relief
required by Article 13 and conform to their Convention obligation under that
provision. It has also stressed the importance of the rules relating to the
subsidiarity principle so that individuals are not systematically forced to
refer to the Court in Strasbourg complaints that could otherwise, and in the
Court’s opinion more appropriately, have been addressed in the first place
within the national legal system.
189. Accordingly, where the legislature or the
domestic courts have agreed to play their proper role by introducing a domestic
remedy, the Court will clearly have to draw certain conclusions from this.
Where a State has taken a significant step by introducing a compensatory
remedy, the Court must leave a wider margin of appreciation to the State to
allow it to organise the remedy in a manner consistent with its own legal
system and traditions and consonant with the standard of living in the country
concerned. It will, in particular, be easier for the domestic courts to refer
to the amounts awarded at domestic level for other types of damage - personal
injury, damage relating to a relative’s death or damage in defamation cases,
for example - and rely on their innermost conviction, even if that results in
awards of amounts that are lower than those fixed by the Court in similar cases.”
In the same connection of effectiveness of
remedies, the Court would likewise refer to its findings in the cases of Vassilios
Athanasiou and Others v. Greece (no. 50973/08, §§ 55-56, 21 December 2010), Dimitrov and Hamanov v.
Bulgaria (nos. 48059/06 and 2708/09, §§ 125-29,
10 May 2011), Ümmühan Kaplan v. Turkey
(no. 24240/07, §§ 68-72, 20 March
2012), Michelioudakis v. Greece (no. 54447/10, §§ 75-77, 3 April 2012) and Glykantzi
v. Greece (no. 40150/09, §§
78-80, 30 October 2012).
B. 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.”
1. Damage
The applicants made the following claims in
respect of pecuniary and non-pecuniary damage.
|
Application no. and name
|
Pecuniary damage
|
Non-pecuniary damage
|
/09 - Luli and Others
|
EUR 8,990,000 in respect of the plot
of land measuring 179,800 sq. m
|
EUR 70,000 per applicant
|
/09 - Luli and Others
|
EUR 12,535,768 in respect of the plot
of land measuring 158,200 sq. m (EUR 5,537,000 in respect of the value of the
plot of land and EUR 6,998,768 in respect of the loss of interest)
|
EUR 70,000
|
/10 - Pistulli
|
None (no claims made).
|
None (no claims made).
|
/10 - Dushallari
|
,661 United States dollars (“USD”)
|
None (no claims made).
|
The Government submitted that the calculation
in respect of pecuniary damage was hypothetical.
The Court finds that there is no causal link
between the violation found concerning the length of the proceedings and the
alleged pecuniary damage. Consequently, there is no justification for making
any award under this head.
However, the Court accepts that the applicants
have certainly suffered non-pecuniary damage, such as distress and frustration
resulting from the excessive length of the proceedings, which is not
sufficiently redressed by the finding of a violation of the Convention. Making
its assessment on an equitable basis, the Court jointly awards EUR 1,500 in
respect of non-pecuniary damage to the applicants in each of the applications
nos. 64480/09 and 64482/09 (Luli and Others).
The Court makes no award for non-pecuniary
damage in respect of applications nos. 12874/10 (Pistulli) and 56935/10
(Dushallari), since, as noted in the table above, those applicants made
no claim in that respect.
2. Costs and expenses
The applicants made the following claims in
respect of costs and expenses incurred in the Strasbourg proceedings and the domestic
proceedings.
The Government argued that the receipts in
application no. 64480/09 (Luli and Others) were not official invoices in
accordance with the domestic law. They also submitted that the claims in
application no. 56935/10 (Dushallari) were unsubstantiated.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum (see Gjyli v. Albania, no. 32907/07, § 72, 29
September 2009). To this end, Rule 60 §§ 2 and 3 of the Rules of Court
stipulates that applicants must enclose with their claims for just satisfaction
“any relevant supporting documents”, failing which the Court “may reject the
claims in whole or in part”.
The Court cannot accept the Government’s suggestion
(in applications nos. 64480/09 and 64482/09 (Luli and Others)) that
invoices officially approved by the tax authorities are required: there is no
such obligation under the Convention, it not being for this Court to regulate
the relationship between a taxpayer and the State. The Court further notes that
the applicants in applications nos. 64480/09 and 64482/09 (Luli and Others)
were represented by the same lawyer, that the facts of those cases were of
average complexity and that the issues raised therein were straightforward and
identical. Furthermore, the majority of the costs and expenses claimed were excessive
as to quantum. In conclusion, the Court decides to jointly award EUR 1,500 in
respect of both applications.
As regards application no. 56935/10 (Dushallari),
the Court awards EUR 500 in respect of the domestic proceedings.
The Court makes no award for costs and expenses
in respect of application no. 12874/10 (Pistulli), since that applicant
made no such claim.
3. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to join applications nos.
64480/09, 64482/09, 12874/10, 56935/10 and 3129/12;
2. Declares application no. 31355/09 inadmissible;
3. Declares application no. 3129/12
inadmissible;
4. Declares the applicants’ complaint concerning
applications nos. 64480/09, 64482/09, 12874/10 and 56935/10 in respect of the
length of proceedings under Article 6 § 1 of the Convention admissible and the
remainder of those applications inadmissible;
5. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the length of the proceedings (in
applications nos. 64480/09, 64482/09 12874/10, and 56935/10);
6. 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, the
following amounts, to be converted into the currency
of the respondent State at the rate applicable at the date of settlement;
(i) EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage to all applicants
as regards application no. 64480/09;
(ii) EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage to all
applicants as regards application no. 64482/09;
(iii) EUR 1,500 (one thousand five hundred euros) in respect
of costs and expenses as regards both applications nos. 64480/09 and 64482/09;
(iv) EUR 500 (five hundred euros) in respect of
costs and expenses as regards application no. 56935/10;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
7. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 1 April 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Ineta
Ziemele
Registrar President
APPENDIX: LIST OF APPLICANTS
|
No.
|
Application no. and date of introduction
|
Applicant’s name and date of birth (if known)
|
Represented by (as applicable)
|
|
/09
/06/2009
|
Aferdita
Luli, 18/11/1949
Yllka Zhupa, 03/06/1947
Leticja Mujo, 15/08/1968
Ruben
Celkupa, 14/04/1935
Dora
Celkupa, 28/07/1936
Xhani
Celkupa, 23/03/1942
Belino
Voshtina (who succeeded Saimir Voshtina)
|
Elira
Kokona
Erinda
Meli, lawyers
|
|
/09
/06/2009
|
|
/09
/06/2009
|
|
/10
/02/2010
|
Rita
Pistulli
/05/1938
|
None.
|
|
/10
/09/2010
|
Eda
Dushallari
|
Violeta
Dushallari, applicant’s relative
|
|
/12
/01/2012
|
Hodo
Kekenezi
/09/1939
|
None.
|
