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FOURTH
SECTION
CASE OF DRIZA v. ALBANIA
(Application
no. 33771/02)
JUDGMENT
STRASBOURG
13
November 2007
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 Driza v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P.
Hirvelä, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 16 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33771/02) 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 Ramazan Driza (“the
applicant”), on 4 September 2002.
- The
applicant was represented by Mrs A. Driza-Maurer, his daughter and
lawyer, practising in Geneva. The Albanian Government (“the
Government”) were represented by their Agents, Mr S. Puto and
Mrs S. Mëneri, of the Ministry of Foreign Affairs.
- The
applicant complained, in particular, about a violation of the
fairness aspect of Article 6 § 1 and a failure to enforce a
final judgment and, further, of a violation of Article 1 of Protocol
No. 1 to the Convention. Furthermore, invoking Article 13 he
maintained that he had no effective remedy in the aforementioned
aspects.
- On
5 July 2005 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Tirana.
- The
relevant domestic proceedings concern an application for the
restitution of land.
A. Administrative proceedings for the restitution of
land
- In
pre-war Albania the applicant's father owned a bakery in Tirana and a
plot of land measuring 6,000 sq. m. In 1960 the Albanian authorities
demolished the building and expropriated the land.
- On
27 September 1994 the Tirana District Court restored the applicant's
property rights over his late father's property pursuant to the
Property Restitution and Compensation Act, 1993
(hereinafter, the Property Act). The decision became final and
binding at the latest on 11 October 1994.
- On
30 April 1996, not being able to restore the original property,
the Tirana City Council held that the applicant had a right to
receive compensation in kind for the original property. The plot of
land allocated was situated two kilometres from the centre of Tirana
and measured 5,000 sq. m. and was divided into two plots measuring,
respectively, 1,650 sq. m. (hereinafter, the smaller plot) and 3,350
sq. m. (hereinafter, the larger plot).
- By
a decision no. 621 of 20 June 1996 the Tirana Commission on
Restitution and Compensation of Properties (hereinafter referred to
as “Tirana Commission”) upheld the Tirana City Council's
decision.
- On
15 August 1996 the applicant's title to the property was entered in
the Tirana Land Register.
- In
1996 and 1997 a series of possession orders concerning the two plots
of land were issued by the Tirana City Council and the Tirana
District Court; the applicant was unable to recover possession from
the occupants.
- On
10 September 1997 the applicant concluded a preliminary contract to
sell the smaller plot.
B. Civil proceedings concerning the smaller plot
1. Ordinary proceedings
- F.Z.,
a former member of an agriculture cooperative, had previously been
granted under Law no. 7501 of 19 July 1991 the use of the smaller
plot that was allocated to the applicant.
- On
an unspecified date F.Z. brought a civil action in the Tirana
District Court claiming full title over the smaller plot under Law
no. 8053 of 21 December 1995. She also asked the District Court
to set aside the Commission's decision of 20 June 1996 in so far as
it related to the smaller plot of land.
- On
10 October 1997 the Tirana District Court set aside the Commission's
decision relating to the smaller plot of land on the grounds that the
Commission had first to award compensation to the user and
subsequently to the former owner of the land.
- The
applicant lodged an appeal with the Tirana Court of Appeal claiming
full title to the plot of land. He argued that, when the Commission
reached its decision, the plot was State property that was available
for allocation to former owners in lieu of compensation. He
added that F.Z. was merely a user of the land at the time.
- On
2 June 1998 the Tirana Court of Appeal upheld the applicant's appeal,
it quashed the District Court's decision as defective in law and it
upheld the validity of the Commission's decision concerning the
applicant's title.
- On
17 December 1998 the Supreme Court - Administrative Division,
deciding on the merits, upheld the applicant's right over the smaller
plot of land allocated in compensation of the original property. The
judgment became final and binding on an unspecified date.
2. Supervisory review
- On
an unspecified date, while the enforcement proceedings were in
progress, F.Z. lodged an application with the Supreme Court for
supervisory review (Rekurs në interes të ligjit)
of the merits of the judgments of 17 December 1998 of the
Supreme Court - Administrative Division and 2 June 1998 of the
Court of Appeal, on the grounds that they conflicted with substantive
laws.
- The
application for supervisory review was examined by the Supreme
Court-Joint Colleges. On 5 July 2001, approximately two and a half
years after the final decision, the Supreme Court granted the
application. Moreover, on the same date, the court, by a majority,
quashed the judgments of 2 June 1998 and 17 December 1998 in favour
of the applicant, and upheld the District Court's decision of 10
October 1997 which dismissed the applicant's claims relating to the
smaller plot of land. It found that the
Commission's decision was based on a misinterpretation of substantive
law (Property Act 1993).
- The
applicant was neither informed of the supervisory review proceedings
nor invited to attend the hearings before the Supreme Court. Since he
was not served with the Supreme Court's judgment within six months
after the date of delivery he did not appeal against it.
- Of
the fifteen Supreme Court's judges who decided the case on 5 July
2001, three judges (B. C., N. SH. and M.S.) had been members of the
panel which on 17 December 1998 had decided on the merits of the
case. A further three judges (Th. K., P.Z., and V.K.) had been on the
panel which had decided on the merits of the case on 7 December 2000
(see paragraph 29 below regarding the proceedings concerning both
plots of land). The first three judges were called upon to rule in
the supervisory-review proceedings on their alleged misinterpretation
of substantive law whereas the other three judges were called upon in
the same proceedings to determine, for a second time, the merits of
the same case.
C. Civil proceedings concerning the entire property
(both plots of land)
- In
1997 the State Supreme Audit Institution (Kontrolli i Larte i
Shtetit), acting on its own behalf and at the instance of S. SH.,
the user of the larger plot of land allocated to the applicant,
brought an action before the Tirana District Court for an order
setting aside the Commission's decision of 20 June 1996 in its
entirety, on the ground that it had exceeded its jurisdiction by
allocating land to the applicant.
- On
22 December 1997 the Tirana District Court set aside the Commission's
decision in its entirety as being defective in law. It also held that
the State had an obligation to pay the applicant compensation under
the Property Act for a plot of land measuring 5,000 sq. m.
- On
an unspecified date the applicant lodged an appeal with the Tirana
Court of Appeal seeking the reinstatement of the Commission's
decision allocating him the land.
- On
9 April 1999 the Tirana Court of Appeal dismissed the applicant's
appeal and upheld the District Court's decision.
- On
an unspecified date the applicant lodged an appeal with the Supreme
Court-Civil Division arguing that the lower courts had failed to rule
on the question of the users' title to the land.
- On
7 December 2000 the Supreme Court-Civil Division, deciding on the
merits of the case, upheld the Court of Appeal's judgment on the
ground that the Commission had exceeded its jurisdiction by deciding
on the form of compensation the applicant should receive for the loss
of his original property. It noted that pursuant to a Council of
Ministers' decision of 13 May 1996, Commissions were to be set
up by the municipal councils to assess compensation for land situated
in tourist areas. These Commissions had yet to be established.
Lastly, the court upheld the applicant's right under the Property
Act, to obtain the payment of compensation for a plot of land
measuring 5,000 sq. m.
D. The Constitutional Court proceedings
- The
applicant lodged an appeal with the Constitutional Court under
Article 131 (f) of the Constitution arguing that the Supreme Court's
judgments of 7 December 2000 and 5 July 2001 were unconstitutional.
- The
appeal was declared inadmissible by the Constitutional Court on
8 April 2002 pursuant to Article 31 of the Constitutional Court
Act, as being “outside its jurisdiction”.
E. Recent developments
- The
applicant submitted that at present the larger plot of land was built
on by third parties and that the apartments so built had already been
sold to, and occupied by, the new owners. The smaller plot of land
was occupied by temporary structures. The applicant had not received
any compensation from the authorities in these respects.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution
33. The
Albanian Constitution, in so far as relevant, reads as follows:
Article 41
“1. The right of private property is protected by
law 2. Property may be acquired by gift, inheritance, purchase, or
any other ordinary means provided by the Civil Code. 3. The law
may provide for expropriations or limitations in the exercise of a
property right only in the public interest. 4. The expropriations or
limitations of a property right that are equivalent to expropriation
are permitted only against fair compensation. 5. A complaint may
be filed in court to resolve disputes regarding the amount/extent of
compensation due.”
Article 42 § 2
“In the protection of his constitutional and legal
rights, freedoms and interests, and in defence of a criminal charge,
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.”
Article 181
“1. Within two to three years from the date when
this Constitution enters into force, The Assembly, guided by the
criteria of article 41, shall issue laws for the just resolution of
different issues related to expropriations and confiscations done
before the approval of this Constitution;
2. Laws and other normative acts that relate to the
expropriations and confiscations, adopted before the entry into force
of this Constitution, shall be applied provided they are compatible
with the latter.”
B. Code of Civil Procedure
- Under
the Code of Civil Procedure of 1996, which was in force at the
material time, judgments became final in the following circumstances:
Article 451
“Court judgments shall become legally binding on
the expiration of the time-limit for lodging an appeal if no such
appeal has been lodged. If the judgment is not quashed following an
appeal to a higher court, it shall become legally binding when the
higher court delivers its decision...”
- Pursuant
to the provisions at the material time supervisory-review was an
extraordinary remedy that enabled courts to reopen proceedings on
final judgments (Rekurs në interes të ligjit).
Between 1996 and its abrogation in 2001, by Law no. 8812 of 17 May
2001, the supervisory-review procedure underwent several legislative
changes.
Section 473 – Review in the interests of the
law (Law no. 8431 of 14 December 1998)
“Final judgments, decisions and rulings of the
colleges of the Supreme Court shall be amenable to supervisory review
in the interests of the law for the reasons set forth in section 472
(a), (b) and (c) on an application lodged by the parties to the
proceedings within three years from the moment the decision becomes
binding.
The application for supervisory review will firstly be
examined by a preliminary review panel of five judges and then by the
full Supreme Court (Joint Colleges). ... A judge of the Supreme Court
who sat as a member of the division that delivered the judgment,
decision or ruling or of the preliminary review panel shall not sit
on the panel that conducts the supervisory review of the final
judgment...”
C. Property Restitution and Compensation Act (Law no.
7698 of 15 April 1993, as amended by Laws nos. 7736 and 7765 of
1993, Laws nos. 7808 and 7879 of 1994, Law no. 7916 of 1995, Law no.
8084 of 1996 and abrogated by Law no. 9235 dated 29 July 2004 and
recently amended by Law. no. 9388 of 2005 and Law no. 9583 of 2006)
- The
Property Restitution and Compensation Act (Ligji për kthimin
dhe kompensimin e pronës) underwent several amendments
during the past fourteen years. The main changes to the first
Property Act of 1993 came about as a result of two laws which entered
into force respectively in 2004 and 2006. Thus, hereinafter they will
be referred to as the “Property Act 1993”, the “Property
Act 2004” and the “Property Act 2006”,
respectively.
The
relevant provisions of each of these laws are abridged as follows:
1. The Property Act of 1993
- According
to the Act of 1993 the former owners of properties expropriated by
the relevant regime and their legal heirs had the right to claim the
ownership over the original properties. Upon ownership being
determined they were entitled either to have allocated the original
immovable property or to be awarded compensation in kind (in a
maximum of 10,000 sq. m) or in value if one of the following
conditions was met: the alleged property (1) was pasture, meadow,
forestry land, or agricultural or non-agricultural land; (2) was not
subject to Law no. 7501 of 19 July 1991; (3) was currently
State-owned; (4) had been designated as suitable for construction and
is situated within the boundaries of a city.
Section
16 of the Act provided for the following forms of compensation in
respect of property which could not be restituted: (a) State bonds,
equivalent to the compensation owed, and with a first option of
acquiring shares in State enterprises being privatised by the
Government or in other activities carried out through the granting of
loans; (b) an equivalent plot of land or building site near to an
urban area, in accordance with the general urban-development
regulations; and (c) an equivalent plot of land in a tourist zone, in
accordance with the general urban-development regulations.
The
Council of Ministers had the authority to define detailed rules for
determining the methods and time-limits for such compensation to take
place.
- Moreover,
the 1993 Act instituted the Commission on Restitution and
Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të
Pronave) as the competent administrative body to deal with former
owners' restitution and compensation of property claims. However, it
omitted to provide a time-limit within which a decision could be
appealed, thus preventing it from even becoming binding.
2. The Property Act of 2004
- The
Property Act enacted in 2004, repealing the previous one, provided
for two forms of restitution of immovable properties, namely the
return, under certain circumstances, of the original property and
compensation in the event of the impossibility for the authorities to
return the original property. The restitution was not limited in
size. The Act provided for five forms of compensation: (a) property
of the same kind; (b) property of any other kind; (c) shares in
State-owned companies; (d) the value of a State-owned property in the
privatisation process, and (e) a sum of money corresponding to the
value attributed to the property at the time of the decision (section
11). The Act instituted the State Committee for Property Restitution
and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e
Pronave), composed of five members elected by Parliament. Its
role was to decide on the lawfulness of district committees'
decisions on restitution and compensation claims (sections 15 and
17). The Council of Ministers was to establish the rules and the
criteria of these (sections 13).
- Section
19 provided for the enforcement of the decisions awarding
compensation within the first six months of each financial year. On
its entry into force, persons entitled to claim restitution or
compensation had to lodge applications with the District Committee by
31 December 2007. The Act granted the Committee discretion to
decide which form of compensation should be granted, but applicants
could express in writing their preferred type of compensation. The
District Committee's decision could be appealed to the State
Committee (section 20) and to the district courts within thirty days
of the date of issue of the Committee's decision.
- On
28 April 2005 Parliament adopted an Act, setting down the method by
which immovable property would be valued for compensation purposes.
Its implementation was left to the State Committee for the
Compensation and Restitution of Properties, which was to issue the
appropriate maps for the properties' valuation.
- In
order to comply with the committees' decisions awarding pecuniary
compensation, section 23 of the 2004 Act provided for the
establishment of a ten-year Property Compensation Fund, whose aim was
to provide financial support for such awards. The 2004 Act was
examined by both the Constitutional and the Supreme Courts.
On 24
March 2005 the Supreme Court, Joint Colleges, concluded that the
Property Act of 2004 had no retroactive effect and that its
provisions, could therefore, not have any impact on property rights
recognised by administrative or court decisions given before its
entry into force.
3. The Property Act of 2006
- On
17 July 2006 Property Act of 2004 was amended by means of the
Property Act 2006 which entered into force on 17 August 2006. It
provided, inter alia, for the establishment of the Agency for
the Restitution and Compensation of Properties, a new body competent
to decide restitution and compensation claims (section 15). The new
law repealed sections 11 § 2; 19 and 20 of the previous law
which, inter alia, provided for the procedure for the
enforcement of decisions that awarded compensation.
D. Agriculture Land Act
- Law
no. 8053 of 21 December 1995 conferred on former members of
agricultural cooperatives the right to request the title to land they
were farming.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about a violation of Article 6 § 1 of the
Convention arguing that the annulment of a final judgment was
contrary to the principle of legal certainty,
that the Supreme Court was partial while deciding his case
and that the authorities failed to enforce the final judgments of 17
December 1998 and 7 December 2000. In so far as relevant Article 6 §
1 reads as follows:
“1. In the determination of his civil
rights and obligations ...., everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law....”
A. Admissibility
1. Compliance with the six-month rule
- The
Government contended that all the complaints under Article 6 were
inadmissible as they were lodged outside the six-month period
provided for under Article 35 § 1 of the Convention. Owing to
the discretionary character of the proceedings before the
Constitutional Court and the latter's inadmissibility decision being
de plano, the final effective remedies within the meaning of
Article 35 were in fact the decisions of the Supreme Court of 5 July
2001 (first set of proceedings) and 7 December 2000 (second set of
proceedings), whereas the applicant introduced his application with
the Court on 4 September 2002.
- The
applicant replied, with reference to Article 131 (f) of the
Constitution and the practice of the Constitutional Court, that in
order to exhaust all domestic remedies, individuals had to file a
complaint with the Constitutional Court if and when they alleged a
breach of Article 6 of the Convention. Indeed, the applicant's claims
before the Constitutional Court, namely the impartiality of the
court, the breach of the principle of legal certainty and the lack of
enforcement of a final judgment, fell within the Constitutional
Court's competence as confirmed by its practice. Hence, the
Constitutional Court had the competence and the obligation to
consider the case and to decide on it, if necessary, by means of a
judgment. Accordingly, his claims were introduced in time as the
Constitutional Court's decision was dated 8 April 2002, irrespective
of the fact that it was a de plano inadmissibility decision.
- The
Court notes that the right to fair proceedings and to have final
decisions enforced, which lie at the heart of the applicant's
complaints before the Court, are constitutional rights enshrined in
Articles 31 and 42 of the Constitution.
- The
Court further reiterates its findings in the case-law concerning
Albania to the effect that the Constitutional Court could be
considered an effective remedy, the exhaustion of which is required
according to Article 35 of the Convention, when Article 6 issues
arise. It considers that, in the circumstances of the present case,
there are no reasons for it to depart from those findings (see Qufaj
Co. Sh.p.k. v. Albania, no. 54268/00, § 42, 18 November
2004 and Balliu v. Albania (dec.), no. 74727/01,
ECHR-2004).
- It
follows that the relevant final decision is that of 8 April 2002.
Since the applicant introduced his application on 4 September 2002,
he therefore complied with the six-month time-limit prescribed in
Article 35.
- For
these reasons, the Court dismisses the above-mentioned Government's
objection.
2. Fairness of the proceedings: the breach of the
principle of legal certainty and impartiality of the court
- The
applicant alleged a violation of Article 6 § 1 given the
quashing by the Supreme Court, Joint Colleges of the final judgment
of 17 December 1998 and the Commission's decision of 20 June 1996 by
way, inter alia, of supervisory-review proceedings. He further
complained about the lack of impartiality of the Supreme Court's
panels under two separate heads: three of the Supreme Court judges
(TH.K., P. Z. and V. K.) sat in the decision-bodies which ruled
against him on 5 July 2001 and on 7 December 2000; and he also
referred to the double role of the President of the Supreme Court in
the supervisory-review proceedings.
- The
Government contested that argument.
- The
Court considers that the 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 grounds. It
must therefore be declared admissible.
3. Non-enforcement of final judgments of 17 December
1998 and 7 December 2000
- The
Government further maintained that, while the applicant was
challenging the end result of the proceedings, he did not show any
interest in obtaining the enforcement of the judgment of 7 December
2000: he failed to initiate enforcement proceedings before the Tirana
District Court in order to request the issuing of a writ for the
enforcement of the judgment in question, and he had also failed to
make use of the remedies introduced by the Property Act 2004 in
relation to the issue of compensation. The Government argued that
this complaint of the applicant should be declared inadmissible for
failure to exhaust domestic remedies.
- The
applicant challenged the effectiveness of the remedies relied upon by
the Government. He argued that the remedy introduced by the Property
Act 2004 could not provide an effective remedy within the meaning of
the Convention. He observed that his property rights had been
considered in the final judgments of 17 December 1998 and 7 December
2000 and an administrative body could not therefore re-examine the
same issue. He further maintained that, had the domestic court
awarded compensation in one of the forms provided by law, the
bailiffs would not have been able to enforce that decision. It was up
to the Government to adopt effective measures, either by classifying
the State properties available for compensation in kind or by
providing sufficient budgetary funds for pecuniary compensation, in
order to make such a means of redress feasible. In conclusion, the
applicant maintained that the Government had so far failed to take
effective steps to find solutions relating to the issue of
compensation of properties to the former owners.
- 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 Vernillo v. France, judgment of
20 February 1991, Series A no. 198, pp. 11-12, § 27; Aksoy v.
Turkey, no. 21987/93, §§ 51-52, Reports
1996-VI; and Akdivar and Others v. Turkey, no. 21893/93,
§§ 65-67, Reports 1996-IV).
-
The Court considers that the question of the effectiveness of the
remedies offered by the Property Acts is central to the merits of the
applicant's complaint under Article 13 in conjunction with Article 1
of Protocol No. 1. It holds that both questions should be examined
together on the merits.
B. Merits
1. Fairness of the proceedings
(a) Legal certainty: Quashing of a final
judgment
(i) The parties' submissions
- The
applicant submitted that the domestic courts breached the principle
of legal certainty on two separate occasions. In the first place, by
using a Brumărescu type procedure, ending with the
quashing of the Supreme Court's final judgment of 17 December
1998 that upheld in part the validity of the Commission's decision of
20 June 1996; and secondly, by issuing contradictory decisions in
parallel proceedings in apparent ignorance of previous final
findings. Indeed, the Supreme Court's judgment of 7 December
2000 dealing with the validity of the Commission's decision of 20
June 1996 as a whole failed to take into account the findings in the
Supreme Court's judgment of 17 December 1998.
- In
short, by delivering contradictory decisions in parallel sets of
proceedings which entirely or partly quashed previous final
adjudications, the Albanian legal system showed deficiencies which
breached the principle of legal certainty. Furthermore,
notwithstanding the fact that the supervisory-review remedy had been
repealed he remained a victim of the alleged violations.
- The
Government contested that argument. They maintained that during the
period of June-July 1997 the domestic courts were justified in
initiating two independent civil proceedings to rule on the
lawfulness of the Commission's decision of 20 June 1996 as they had
been introduced by different parties and had dealt with different
matters.
- As
to the supervisory-review (Rekurs në interes të ligjit),
the Government submitted that a review of a final decision, within a
period of three years after which the decision had become final, was
provided for in the domestic law at that time. It was aimed at
redressing decisions issued in breach of domestic law during the
transitional period and thus had temporary effect until 2001, when it
was repealed. Indeed, in the present case, in view of the fact that
that the rulings of the two judgments in question were contradictory,
the review by a higher decision-making body in order to determine the
matter was necessary. This was further confirmed by the fact that the
ruling of the Supreme Court judgment of 5 July 2001 corresponded to
the findings of the judgment of the 7 December 2000.
(ii) The Court's assessment
- The right to a fair hearing before a tribunal as
guaranteed by Article 6 § 1 of the Convention must be
interpreted in the light of the Preamble to the Convention, which, in
its relevant part, declares the rule of law to be part of the common
heritage of the Contracting States. One of the fundamental aspects of
the rule of law is the principle of legal certainty, which requires,
among other things, that where the courts have finally determined an
issue, their ruling should not be called into question (see
Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR
1999-VII; Ryabykh v. Russia, no. 52854/99, §§ 51-56,
ECHR 2003-IX; Roşca v. Moldova, no. 6267/02, § 24,
22 March 2005).
- Legal
certainty presupposes respect for the principle of res judicata
(see Brumărescu v. Romania cited above, § 62), that
is the principle of the finality of judgments. This principle insists
that no party is entitled to seek a review of a final and binding
judgment merely for the purpose of obtaining a rehearing and a fresh
determination of the case. Higher courts' power of review should be
exercised to correct judicial errors and miscarriages of justice, but
not to carry out a fresh examination. The review should not be
treated as an appeal in disguise, and the mere possibility of there
being two views on the subject is not a ground for re-examination. A
departure from that principle is justified only when made necessary
by circumstances of a substantial and compelling character (Roşca
v. Moldova, cited above, § 25).
- Turning
to the present case, the Court notes that on 17 December 1998 the
Supreme Court-Administrative Division upheld the applicant's property
rights over the smaller plot of land. Notwithstanding this, on
7 December 2000 the Supreme Court-Civil Division, in a parallel
set of proceedings, found the recognition of title to be unlawful. In
addition, on 5 July 2001, following the President of the Supreme
Court's request for leave to review the same court's judgment of 1998
(Rekurs në inters të ligjit), the Supreme
Court-Joint Colleges, without making any reference to its findings in
the judgment of 2000, quashed the final judgment of 17 December 1998
to the detriment of the applicant. In short, after 2 years and 7
months the Supreme Court's final judgment of 17 December 1998 was
quashed twice by the Supreme Court, once by a judgment issued in
parallel proceedings and once by means of a supervisory-review
remedy. As a result, the applicant's property issue is still
unresolved.
- The
Court notes that the first judgment was quashed for the first time by
means of a supervisory-review procedure, which enabled the President
of the Supreme Court to challenge any final decision upon the request
of one of the parties to the proceedings. This procedure was provided
for in section 473 of the Code of Civil Procedure which was in force
until 17 May 2001.
- The Court disagrees with the Government's argument as
to the limited effect of the supervisory-review remedy. The fact that
this remedy was revoked after the occurrence of the pertinent facts
of this case is of no relevance: there exist no domestic remedies
capable of remedying the impairment of the principle of legal
certainty brought about by the use of such supervisory-review
procedure and its effects were never redressed in the present case
(see Sardin v. Russia (dec.), no. 69582/01, ECHR
2004-II; Ryabykh v. Russia (dec.), no. 52854/99, 21
February 2002).
- The same judgment was quashed a second time by a
judgment issued in a parallel set of proceedings. The Court rejects
the Government's argument that the authorities were justified in
initiating two parallel sets of proceedings. It recalls that by
virtue of Article 1 the primary responsibility for implementing and
enforcing the guaranteed rights and freedoms is laid on the national
authorities (see Kudła v. Poland [GC], no. 30210/96,
§ 152, ECHR 2000 XI).
- In
this connection, it is the State's responsibility to organise the
legal system in such a way as to identify related proceedings and
where necessary to join them or prohibit further institution of new
proceedings related to the same matter, in order to circumvent
reviewing final adjudications treated as an appeal in disguise, in
the ambit of parallel sets of proceedings (see mutatis mutandis
Roşca v. Moldova, cited above, § 25).
- In
sum, the Court considers that, by granting the President leave to
review a final judgment and by allowing the introduction of parallel
sets of proceedings, the Supreme Court set at naught an entire
judicial process which had ended in a final and enforceable judicial
decision which was thus res judicata. Hence, in the light of
the above circumstances, the Court does not find any reason to depart
from its findings in its established case-law on the matter (see
paragraphs 63-64 above).
- There
has therefore been a violation of Article 6 § 1 of the
Convention on account of the quashing of the final judgment of
17 December 1998 given in the applicant's favour.
(b) Impartiality
(i) The parties' submissions
- The
applicant complained under this Article about the lack of
impartiality in the Supreme Court's panels. In the first place, three
of the Supreme Court's judges (TH.K., P. Z. and V. K.) sat in the
decision-body which ruled on his case on 5 July 2001 and were also
part of the decision-making body which delivered the judgment of
7 December 2000: both ruled against him. Secondly, the President
of the Supreme Court, who lodged the request for a supervisory-review
of the judgment in his favour, also sat as a judge in the two benches
that delivered the judgments against him.
- The
Government contested that argument. They maintained that having
regard to the domestic law provisions as they stood at the material
time, the Supreme Court could be constituted as a five judge panel
(Civil/Criminal College) or as a full court panel (Joint Colleges).
The latter formation was empowered to decide, inter alia, on
supervisory-review requests and on important issues. Therefore, in
the Government's view the functioning of the Joint Colleges would be
affected if the judges who had already participated in the five-judge
panel would not be able to sit on the Joint-Colleges bench. They made
references to the Albanian Constitutional Court judgment of 7 April
2000 which held that the Supreme Court's functioning as a full court,
decision–making body, was in compliance with the fair trial
requirements. Lastly, the Government submitted that the applicant
failed to prove the allegations of bias of the three aforementioned
judges.
(ii) The Court's assessment
- The
Court reiterates that it is of fundamental importance in a democratic
society that the courts inspire confidence in the public (see the
Padovani v. Italy judgment of 26 February 1993, Series A no.
257-B, p. 20, § 27). To that end, Article 6 requires a tribunal
falling within its scope to be impartial. Impartiality normally
denotes absence of prejudice or bias and its existence or otherwise
can be tested in various ways. The Court has thus distinguished
between a subjective approach, that is endeavouring to ascertain the
personal conviction or interest of a given judge in a particular
case, and an objective approach, that is determining whether he or
she offered sufficient guarantees to exclude any legitimate doubt in
this respect (see Piersack v. Belgium, judgment of
1 October 1982, Series A no. 53, § 30 and
Kyprianou v. Cyprus [GC], no. 73797/01, § 118-119,
ECHR 2005-...).
- In
applying the subjective test the Court has consistently held that the
personal impartiality of a judge must be presumed until there is
proof to the contrary (see Hauschildt v. Denmark,
judgment of 24 May 1989, Series A no. 154, p. 21, § 47).
The principle that a tribunal shall be presumed to be free of
personal prejudice or partiality is long established in the case-law
of the Court (see, for example, Le Compte, Van Leuven and De
Meyere v. Belgium, judgment of 23 June 1981, Series A no. 43,
p. 25, § 58).
- As
to the second test, when applied to a body sitting as a bench, it
means determining whether, quite apart from the personal conduct of
any of the members of that body, there are ascertainable facts which
may raise doubts as to its impartiality. In this respect, even
appearances may be of some importance (see Castillo Algar
v. Spain, judgment of 28 October 1998, Reports
1998-VIII, p. 3116, § 45 and Morel v. France, no.
34130/96, § 42, ECHR 2000-VI). When it is being decided
whether in a given case there is a legitimate reason to fear that a
particular body lacks impartiality, the standpoint of those claiming
that it is not impartial is important but not decisive. What is
decisive is whether the fear can be held to be objectively justified
(see Ferrantelli and Santangelo v. Italy, judgment of 7
August 1996, Reports 1996-III, pp. 951-52, § 58, and
Wettstein v. Switzerland, no. 33958/96, § 44, CEDH
2000-XII; Kyprianou v. Cyprus [GC], no. 73797/01,
§§ 118-119, ECHR 2005).
- In
the present case, the applicant disputed both the subjective and the
objective impartiality of the three judges of the Supreme Court and
the Court will examine each in turn.
- With
regard to the personal impartiality of judges P.Z. and V.K., the
Court does not find any evidence to corroborate the applicant's
allegations. As to Th. K., the President of the Supreme Court, the
Court notes that, in accordance with the Albanian legal provisions as
they stood at the material time, the supervisory-review proceedings
were instituted at the request of the President of the Supreme Court,
who had already ruled against the applicant on the same matter
(second set of proceedings). The Supreme Court of which the President
was a member, along with another 14 judges, examined that request and
decided on the merits to quash the final judgment given in the
applicant's favour. The Court is of the opinion that the practice of
the Albanian Supreme Court at the time was incompatible with the
“subjective impartiality” of a judge hearing a particular
case, since no one can be both plaintiff and judge in his own case
(see Svetlana Naumenko v. Ukraine, no. 41984/98, § 97,
9 November 2004).
- As
to objective impartiality, the concerns regarding the Supreme
Court-Joint Colleges' impartiality stemmed from the fact that its
bench was composed of fifteen judges including the same six judges
who had previously heard the merits of the case and adopted the
judgments of 17 December 1998 and 7 December 2000.
- The
Court accepts that the situation could give rise to doubts in the
applicant's mind about the impartiality of the Supreme Court.
However, it has to decide whether those doubts were objectively
justified. The answer to this question depends on the circumstances
of the case.
- In
this connection, the Court observes that, pursuant to the domestic
legal provisions on supervisory-review proceedings, the Supreme Court
had to decide in full-court formation. Three judges who had already
ruled on the case were among the fifteen judges called upon to decide
on the leave request and subsequently, on the merits of the case.
They were therefore required to decide on whether or not they had
erred in their earlier decision. Moreover, three other judges setting
in the same full court formation had to decide on a matter on which
they had already expressed their opinions.
- The
Court therefore finds that the objective impartiality of the Supreme
Court-Joint Colleges was capable of appearing open to doubt. The
applicant's fears in this respect can thus be considered to have been
objectively justified.
- In
the light of the foregoing, the Court finds that the Supreme Court
was not impartial as to the above noted two respects within the
meaning of Article 6 § 1 of the Convention.
(c) Conclusion
- Having
regard to the forgoing considerations, the Court finds that the
applicant's right to have a fair hearing by an impartial tribunal
within the meaning of Article 6 § 1 of the Convention has been
infringed.
2. Non–enforcement of final judgments of 17
December 1998 and 7 December 2000
(a) The parties' submissions
- The
Government repeated that the authorities could not be held
responsible for the non-enforcement of the above mentioned judgments
since their execution depended upon the applicant's taking the
appropriate steps, namely bringing an action seeking their
enforcement. The Government referred to their earlier arguments on
exhaustion of domestic remedies.
- The
applicant contested that argument.
(b) The Court's assessment
- The
general principles concerning the non-enforcement of final judgments
that awarded compensation, including compensation in kind, within the
framework of restitution of properties were set out in the Beshiri
judgment (cited above § 60 et sq).
- The
Court notes that the Supreme Court's judgments of 17 December
1998 and 7 December 2000 can be interpreted as ordering the
authorities to offer the applicant a form of compensation in kind and
in value, respectively which would indemnify him in lieu of
the restitution of his original property rights.
- The
Court does not accept the Government's view regarding the applicant's
lack of interest in the enforcement of the judgments: the applicant
had in fact challenged the outcome of the proceedings that led to the
Supreme Court's judgment of 7 December 2000.
- The
Court observes that, as in the Beshiri judgment, following the
delivery of the judgment in 2000 the authorities failed to offer the
applicant the option of obtaining appropriate compensation, in
compliance with the final court decision (see, by contrast,
UZkurėlienė and Others v. Lithuania, no. 62988/00,
§ 36, 7 April 2005). Thus, the applicant did not even have
the possibility of considering an offer of compensation as opposed to
the restitution of the property previously allocated. Moreover, by
quashing twice the Supreme Court's judgment of 17 December 1998 (see
paragraph 71 above) the authorities failed to honour the obligations
stemming from that final judgment.
- Moreover,
the Court considers that the respondent Government did not provide
any explanation as to why the judgment of 7 December 2000 has still
not been enforced more than six years after it was delivered. It does
not appear that the bailiffs or the administrative authorities have
taken any measures to comply with the judgment.
- Consequently,
the Court ascertains that the problem persists notwithstanding its
indications in the Qufaj Co. Sh.p.k and Beshiri judgments
(see Qufaj Co. Sh.p.k., cited above, § 54-59, and
also, Beshiri and Others, cited above, § 109).
- The
foregoing considerations are sufficient to enable the Court to
conclude that, by failing to take the necessary measures to comply
with the judgments of 17 December 1998 and 7 December 2000, the
Albanian authorities deprived the provisions of Article 6 § 1 of
the Convention of all useful effect.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention in this respect.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant alleged that the annulment of the Commission's decision and
the final judgment of 17 December 1998 without him having received
any compensation 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.”
A. Admissibility
- The
Court considers that the complaint under this head is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It moreover finds that no other grounds for declaring
this part of the application inadmissible have been established and
therefore declares it admissible.
B. Merits
1. The parties' submissions
- Having
regard to the domestic court's judgments on the matter, the
Government considered that the applicant could not claim protection
under this Article since the Commission's decision awarded him two
plots of land in lieu of the original property, which the
applicant had never possessed. Despite the fact that the applicant
entered a title in the Land Register, according to domestic law a
title stemming from the Commissions' decisions was susceptible to
challenge before the courts, without any limit of time. Indeed, the
above decision was contested before the domestic courts which
declared the title null and void and ordered that the applicant be
paid compensation for the original property. Moreover, in the
Government's view the Supreme Court's final judgment that upheld the
validity of his title over the smaller plot of land could not be
considered as generating property rights since the validity of that
title was, in the meantime, the subject of another set of
proceedings.
- Furthermore,
the Government submitted that the fact that the applicant was not
satisfied with the outcome of the civil proceedings relating to the
lawfulness of his title over the two plots of land could not engage
the State's responsibility since the applicant had failed to lodge a
request with the authorities in order to establish the form of
compensation as provided for by the Property Act.
- They
added that the failure to execute the final judgments that awarded
compensation in the framework of the process of restitution and
compensation of property was due to objective circumstances such as
the lack of funds and the general interests of the community.
- The
applicant submitted that the Government's statements were
unsubstantiated. He claimed that the Supreme Court's judgments of
2000 amounted to deprivation of his property which did not pursue a
public interest. Moreover, he submitted that, after over 12 years of
administrative and civil proceedings, his rights guaranteed under
this Article were still not respected. Lastly, he submitted that the
State was liable for the outstanding debts due to them as
compensation and that, having failed to pay those debts for a long
time, the State had deprived him of the actual possession of the
property, in violation of Article 1 of Protocol No. 1.
2. The Court's assessment
- The
Court recalls the principles established in its case-law under
Article 1 of Protocol No. 1 (see among other authorities Kopecký
v. Slovakia [GC], no. 44912/98, § 35; von
Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01,
71917/01 and 10260/02, § 74, ECHR 2005-V and Beshiri
cited above).
- It
reiterates that “possessions” can be “existing
possessions” or assets, including, in certain well-defined
situations, claims. For a claim to be capable of being considered an
“asset” falling within the scope of Article 1 of
Protocol No. 1, the claimant must establish that it has a sufficient
basis in national law, for example where there is settled case-law of
the domestic courts confirming it or whether there is a final court
judgment in the claimant's favour. Where that has been done, the
concept of “legitimate expectation” can come into play
(see Draon v. France [GC], no. 1513/03, § 68,
6 October 2005, ECHR 2005-IX, and Burdov v. Russia, no.
59498/00, § 40, ECHR 2002-III).
- The
Court observes that the applicant brought an action for the recovery
of possession pursuant to the Property Act. The authorities declared
that the nationalisation of his father's property had been unlawful
and allocated to him, in compensation, two plots of land measuring
5,000 sq. m in lieu of 6,000 sq. m of the original land.
Notwithstanding numerous interventions by the authorities, the
applicant did not take possession of that land since it was occupied
by third parties. Neither of the parties commented on events during
the period following the Supreme Court's judgment of 1998 which
upheld the applicants' property right to the plot of land measuring
1,650 sq. m. In 2001 and 2000 two judgments issued in
supervisory-review proceedings and in a parallel set of proceedings,
respectively annulled the applicant's title over the two plots of
land and ordered that he be compensated by one of the means provided
by law. The applicant has not been compensated to date.
- Despite
the fact that both plots of land had been entered in the Land
Register and that his right to property over the smaller plot had
been upheld by a final judgment and later on overturned in
supervisory-review proceedings, the Court cannot speculate as to
whether the applicant had ever possessed any of the plots of land or
not or about their current situation. Thus, for the purposes of the
examination of the complaint it will consider that the applicant had
a “claim” under this Article.
- It
notes that this complaint is linked to the one examined under Article
6 § 1 in relation to the failure to enforce a final decision
(see paragraphs 85-94 above).
- In
the present case, the Court has already found that the authorities
had an obligation under the judgments of 17 December 1998 and
7 December 2000 to offer the applicant compensation in kind and
in value respectively, in lieu of the original property (see
paragraphs 19 and 29 above). Therefore, the applicant had enforceable
claims deriving from the judgments in question.
- The
Court considers that the failure of the authorities to enforce the
judgments of 17 December 1998 and 7 December 2000 amount to an
interference with his right to the peaceful enjoyment of his
possessions within the meaning of Article 1 of Protocol No. 1 to the
Convention.
- As
to the justification advanced by the Government for this
interference, the Court recalls that lack of funds cannot justify a
failure to enforce a final and binding judgment debt owed by the
State (see Pasteli and Others v. Moldova, nos. 9898/02,
9863/02, 6255/02 and 10425/02, § 30, 15 June 2004,
Voytenko v. Ukraine, no. 18966/02, § 55, 29 June
2004; Shmalko v. Ukraine, no. 60750/00, § 57, 20
July 2004).
- Accordingly,
there has been a violation of Article 1 of Protocol No. 1 to the
Convention in this regard.
III. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE
1 OF PROTOCOL NO. 1
- The applicant complained about the lack of effective
remedies to obtain a final determination of his property rights. He
relied on Article 13 of the Convention, which 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 has therefore to examine the complaint under Article 13 in
conjunction with Article 1 of Protocol No.1. To this question, the
Court has joined the issue of whether the applicant exhausted the
domestic remedies as regards his Article 6 non-enforcement complaint
(see paragraph 58 above).
A. Admissibility
- The
Court considers that the complaint under this head is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It moreover finds that no other grounds for declaring
this part of the application inadmissible have been established and
therefore declares it admissible.
B. Merits
1. The parties' submissions
- The
applicant submitted that the only remedy afforded by Albanian law for
restitution and compensation of properties, namely an application
with the competent body provided for by the Property Act, could not
be said to be “effective” within the meaning of Article
13. Even if such an application was successful, the return of and/or
compensation for the original properties was in practice at the
relevant authorities' discretion and depended on their willingness to
implement the relevant provisions on that issue.
- The
Government contested the applicant's view essentially repeating their
arguments concerning the alleged failure to exhaust domestic
remedies. They observed that the Albanian legal system provided for a
specific remedy whereby the applicant could claim the restitution and
compensation of the properties which had been unlawfully nationalised
or confiscated by the State. The legal framework on the restitution
and compensation issue had been the subject of frequent legislative
changes, due to the significant financial and social consequences of
this process. However, despite the legislative changes that aimed at
its improvement, the three remedies introduced by the Property Acts
complied with the requirements of Article 13 of the Convention.
However, the Government suggested without giving further explanations
that the applicant could have filed motions with the competent
authority provided for by the Property Act of 2004 in order to obtain
redress.
2. The Court's assessment
- The
Court notes that the applicant's complaint under Article 1 of
Protocol 1 to the Convention was indisputably an “arguable”
one. He was therefore entitled to an effective domestic remedy within
the meaning of Article 13 of the Convention.
- Moreover,
the Court recalls that the “authority” referred to in
Article 13 may not necessarily in all instances be a judicial
authority in the strict sense. Nevertheless, the powers and
procedural guarantees an authority possesses are relevant in
determining whether the remedy before it is effective (see Klass
and Others v. Germany, judgment of 6 September 1978, Series
A no. 28, p. 30, § 67). The remedy required by Article 13 must
be “effective” in practice as well as in law, in
particular, in the sense that its exercise must not be unjustifiably
hindered by the acts or omissions of the authorities of the
respondent State (see Aksoy v. Turkey, judgment of
18 December 1996, Reports of Judgments and Decisions
1996-VI, p. 2286, § 95 in fine).
- The
Court observes that pursuant to three Property Acts the Albanian
legal system afforded a remedy in the form of an action for
restitution of and compensation for properties lodged with a special
administrative body, which is empowered to decide on the former
owners' title and where possible to allocate to them their original
property or pay them compensation in lieu. The aforementioned
procedure is the only way to generate property rights with respect to
property, which has been unlawfully nationalised. The applicant
availed himself of that remedy and on two occasions the authorities
upheld his right to receive compensation in lieu of the
original property (see paragraphs 9 and 10 above).
- The
Court notes that the Property Act of 1993 (repealed by the Property
Act of 2004 and, in turn, amended by the Property Act 2006) provided
for various forms of compensation when the original property could
not be allocated to the former owner (see paragraphs 36-43 above).
The Court observes that 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 for such
compensation. According to the findings of the Supreme Court's
judgment of 7 December 2000, the competent bodies to deal with the
compensation issues had not been set up at that time (see paragraph
29 above). Notwithstanding the entry into force of the Property Act
2004 the situation did not change. Only on 28 April 2005 did
Parliament adopt an Act, determining the methodology for the
valuation of the property for compensation purposes. Section 5 of
that Act left the implementation of this methodology to the State
Committee for the Compensation and Restitution of Properties, which
should have issued the appropriate maps for the properties'
valuation. However, to date those maps have not been adopted.
- Consequently,
the Court considers that, by not having set up the appropriate bodies
that should have dealt with the compensation issues and by not having
adopted the maps for the properties' valuation, 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 system imminently or within a span of time sufficiently
short to enable the settlement of the dispute related to the
determination of the applicants' rights.
- Consequently
and recalling its findings in the Beshiri judgment, the Court
finds that the applicant was denied an effective remedy for the
alleged breach of his rights under Article 1 of Protocol No 1 (see
Beshiri and Others cited above, §§ 54, 55).
Thus,
there has been a violation of Article 13 of the Convention as regards
the complaint under Article 1 of Protocol No. 1. The Court therefore
dismisses the Government's objection.
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 its conclusions above (see paragraphs 117-120)
demonstrate that the unjustified hindrance in obtaining compensation
pursuant to the Property Act was not attributable to the particular
attitude taken by the applicant. It arose from shortcomings, in the
Albanian legal order, as a consequence of which, an entire category
of individuals have been and are still being deprived of their right
to the peaceful enjoyment of their property, stemming from the
non-enforcement of court judgments that awarded compensation under
the Property Act. Indeed, there are already dozens of identical
applications before the Court. The escalating number of applications
is an aggravating factor as regards the State's responsibility under
the Convention and is also a threat for the future effectiveness of
the system put in place by the Convention, given that in the Court's
view, the legal vacuums detected in the applicant's particular case
may subsequently give rise to other numerous well-founded
applications.
- Before
examining the applicant's individual claims for just satisfaction
under Article 41 of the Convention and in view of the circumstances
of the instant case, 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, 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 – (see among other
authorities Xenides-Arestis v. Turkey, no. 46347/99,
§§ 39, 40, 22 December 2005; Scordino v. Italy
(no. 1) [GC], no. 36813/97, § 233, ECHR 2006
and Broniowski v. Poland [GC], no. 31443/96, § 192,
ECHR 2004-V; Bottazzi v. Italy [GC], no. 34884/97, § 22,
ECHR 1999-V, Di Mauro v. Italy [GC], no. 34256/96, §
23, ECHR 1999-V) 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.
- 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 theory it is not for the Court to determine what
may be the appropriate measures of redress for a respondent State to
perform 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 malfunctioning found in the national
system of human-rights protection. In that connection and having
regard to the systemic situation which it has identified above (see
paragraph 122) the Court considers that general measures at national
level are undoubtedly called for in the execution of the present
judgment.
- In
order to assist the respondent State in complying with its
obligations under Article 46, the Court has attempted to indicate the
type of measures that the Albanian State could take in order to put
an end to the nature and cause of the breaches found in the present
case. It considers that the respondent State should, above all,
remove all obstacles to the award of compensation under the Property
Act by ensuring the appropriate statutory, administrative and
budgetary measures. These measures should include the adoption of the
maps for the property valuation in respect of those applicants that
are entitled to receive compensation in kind and the designation of
an adequate fund in respect of those applicants who are entitled to
receive compensation in value, this in order to make it possible for
all the claimants having successful judgments in their favour
awarding them compensation under the Property Act, to obtain speedily
the sums or the land due. Such measures should be made available as a
matter of urgency.
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
applicant principally claimed the restitutio in integrum of
both plots of land (measuring 5,000 sq. m) and also a sum of EUR
186,000 for the loss of profits. Alternatively, in the event the
restitution was impossible he claimed EUR 5,779,000 in respect of
pecuniary damage and loss of profits in respect of the original
property measuring 6,000 sq. m. He relied on an
expert's valuation report for the purposes of determining the overall
value of the properties and the loss of profits. According to that
report the property at issue was situated in a well developed
urban zone of Tirana. It had very good access to main roads and had
good economic potential had it been used for construction purposes.
The report, inter alia,
stated that in 2005 the market value of the property varied from EUR
400 per sq. m. to EUR 2,000 per sq. m., depending on its designation.
Lastly, the applicant claimed EUR 70,000 in non-pecuniary damage.
- The
Government contested the applicant's claims but did not submit any
argument relating to the amounts claimed by the applicant. They
maintained their commitment to finding a solution for the restitution
of, and compensation for, property. The
Government therefore asked the Court to rule that a finding of a
violation would constitute
in itself
just
satisfaction.
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation to put an end to the
breach and make reparation for its consequences in such a way as to
restore as far as possible the situation existing before the breach
(see Former King of Greece and Others v. Greece [GC]
(just satisfaction), no. 25701/94, § 72). If the
domestic law allows only partial reparation to be made, Article 41 of
the Convention gives the Court the power to award compensation to the
party injured by the act or omission that has led to the finding of a
violation of the Convention. The Court enjoys a certain discretion in
the exercise of that power, as the adjective “just” and
the phrase “if necessary” attest.
- Among
the matters which the Court takes into account when assessing
compensation are pecuniary damage (the loss actually suffered as a
direct result of the alleged violations) and non-pecuniary damage
(reparation for the anxiety, inconvenience and uncertainty caused by
the violation) and other non-pecuniary loss (see, among other
authorities, Ernestina Zullo v. Italy, no. 64897/01, §
25, 10 November 2004). In addition, if one or more heads of damage
cannot be calculated precisely or if the distinction between
pecuniary and non-pecuniary damage proves difficult, the Court may
decide to make a global assessment (see Comingersoll v. Portugal
[GC], no. 35382/97, § 29, ECHR 2000-IV).
- Turning
to the present case, the Court observes that the final judgment of 7
December 2000 recognised the applicant as the owner of a plot of
land, measuring 5,000 sq. m. Thus, his claim for damage relating to
properties other than those allocated to him are to be considered as
ultra petitum and therefore, should be dismissed.
- The
Court further observes that in the present case, it found a violation
of Article 6 § 1, Article 1 of Protocol No. 1 and Article 13 of
the Convention, finding that the applicant was prevented from
enjoying his property or compensation in lieu. It considers
therefore that the applicant has suffered considerable pecuniary and
non-pecuniary damage as a result of the breach of his rights under
the Convention, which is why a finding of a violation alone would
clearly not constitute sufficient just satisfaction within the
meaning of Article 41.
- Moreover,
having regard to its findings in the judgments recently delivered by
the Court, in which it held that the Albanian authorities had to take
the appropriate measures in order to comply with final judgments (see
Qufaj Co. Sh.p.k., cited above, § 54-59, and also,
Beshiri and Others, cited above, § 109) and in the
absence of any domestic measures adopted since then allowing the
enforcement of the compensation awards, the Court considers that it
has no other option than to make an award which would constitute a
full and final settlement of the property dispute (see among other
authorities Plotnikovy v. Russia, no. 43883/02,
§ 33, 24 February 2005 and OOO Rusatommet v.
Russia, no. 61651/00, § 33, 14 June 2005).
- The
Court considers, in the circumstances of the case, that the return of
the smaller plot of land, as ordered in the final judgment of the
Supreme Court of 17 December 1998, together with the payment of the
loss of profits, and the payment of the compensation corresponding to
the value of the larger plot of land at the time of the judgment of 7
December 2000, together with a measure of interest to reflect the
intervening loss of use of the larger plot of land, would put the
applicant as far as possible, in a situation equivalent to the one in
which he would have been if there had not been a breach of the
Convention.
- As
to the determination of the amount of that compensation, the Court
notes that the Government neither submitted a method of its
calculation nor furnished any objection to the method of calculation
of the compensation submitted by the applicant (see paragraph 128
above).
- Having
regard to the information available to it on prices on the Tirana
property market at the time of the relevant judgments and making an
assessment on an equitable basis, the Court awards the applicant a
lump sum of EUR 500,000 in respect of
pecuniary and non-pecuniary damage on account of the larger plot of
land.
- Moreover,
it awards the applicant a global sum of EUR 50,000 together
with the restitution of the smaller plot of land. Failing
such restitution by the respondent State, within three months from
the date on which this judgment becomes final, the Court holds that
the respondent State is to pay the applicant, an amount of EUR
280,000 in respect of pecuniary and non-pecuniary damage relating to
that property.
2. Costs and expenses
- The
applicant also claimed EUR 5,000 for the costs and expenses incurred
before the domestic courts and EUR 1,000 for those incurred before
the Court. He did not provide a detailed breakdown to substantiate
his claim for costs and expenses.
- The
Government contested the claim considering it exaggerated.
- The
Court reiterates that costs and expenses will not be awarded under
Article 41 unless it is established that they were actually incurred,
were necessarily incurred and were also reasonable as to quantum (see
The Sunday Times v. the United Kingdom (Article 50),
judgment of 6 November 1980, Series A no. 38, p. 13, § 23).
Furthermore, legal costs are only recoverable in so far as they
relate to the violation found (see Beyeler v. Italy, (just
satisfaction) [GC], no. 33202/96, § 27, 28 May 2002).
- The
Court observes that it has not been provided with relevant
documentation showing that the expenses claimed were in fact
incurred. It will not, therefore, make an award under this head.
3. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares
the complaints concerning Article 6 § 1 of the Convention (in
respect of the breach of the principle of legal certainty, the
impartiality of a tribunal and the non-enforcement of a final
judgment) and Article 1 of Protocol No. 1 to the Convention alone and
in conjunction with Article 13 of the Convention, admissible;
- Holds
that there has been a violation of Article 6 § 1 of the
Convention, in respect of the principle of legal certainty, as a
consequence of the quashing by the Supreme Court of the final
judgment of 17 December 1998 in supervisory-review proceedings
and in a parallel set of proceedings;
- Holds,
as regards the Supreme Court's decision of 5 July 2001 on the
merits of the case, that there has been a violation of Article 6 §
1 of the Convention in respect of the lack of subjective impartiality
of the President of the Supreme Court and the lack of objective
impartiality of the Supreme Court;
- Holds
that there has been a violation of Article 6 § 1 of the
Convention in respect of the non-enforcement of the final judgments
of 17 December 1998 and 7 December 2000;
- Holds
that there has been a violation of Article 1 of Protocol No. 1 to the
Convention as regards the authorities' failure to enforce the final
judgments of 17 December 1998 and 7 December 2000;
- Holds
that there has been a violation of Article 13 of the Convention in
conjunction with Article 1 of Protocol No. 1 to the Convention in
respect of the ineffectiveness of the remedies introduced by the
Property Act;
- Holds
(a) that the respondent State,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, is to
return to the applicant the plot of land measuring 1,650 sq. m
together with the payment of EUR 50,000 (fifty thousand euros) in
respect of pecuniary and non-pecuniary damage, to be converted into
the national currency of the respondent State at the rate applicable
on the date of settlement, plus any tax that may be chargeable;
(b) that, failing such restitution,
the respondent State is to pay the applicant, within six
months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 280,000 (two hundred and
eighty thousand euros) in respect of
pecuniary and non-pecuniary damage regarding the plot of land
measuring 1,650 sq. m, to be converted into the national currency of
the respondent State at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
(c) that the respondent State is to
pay the applicant, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 500,000 (five
hundred thousand euros) in respect of
pecuniary and non-pecuniary damage regarding the plot of land
measuring 3,350 sq. m, to be converted into the national currency of
the respondent State at the rate applicable on the date of
settlement, plus any tax that may be chargeable:
(d) that from the expiry of the above-mentioned six months
period (as regards points (a) and (b)), and three months period (as
regards point (c)) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep
Casadevall
Registrar President
