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FOURTH
SECTION
CASE OF
HAMZARAJ v. ALBANIA (no. 1)
(Application
no. 45264/04)
JUDGMENT
STRASBOURG
3 February
2009
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 Hamzaraj v. Albania (no. 1),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Giovanni
Bonello,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 13 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45264/04) 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, Ms Aferdita Hamzaraj
(“the applicant”), on 27 November 2004.
- The
applicant, who had been granted legal aid, was represented by Mr S.
Puto, a lawyer practising in Tirana. The Albanian Government (“the
Government”) were represented by their Agent, Mrs S. Meneri.
- The
applicant alleged under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 to the Convention a violation of her
property rights in view of the authorities' prolonged failure to
enforce an administrative decision ordering compensation in kind or
State bonds. She also complained about the length of the proceedings
under Article 6 § 1 of the Convention.
- On
25 June 2006 the President of the Fourth Section of the Court decided
to give notice of the application to the Government. Under the
provisions of Article 29 § 3 of the Convention, it was decided
to examine the merits of the application at the same time as its
admissibility.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1926 and lives in Vlore.
- On
30 January 1995 the Lushnjë District Court recognised the
existence of the applicant's father's property rights over a plot of
land measuring 576 sq. m. situated in the city of Lushnjë
(vendim për vërtetim fakti). The decision became
binding and final on 13 February 1995.
- The
applicant, pursuant to the Property Restitution
and Compensation Act (hereinafter “the Property Act”),
lodged a request with the Lushnjë Commission on Property
Restitution and Compensation (hereinafter “the Commission”)
seeking restitution of the original property.
- By
a decision of 21 March 1996 the Commission upheld the property rights
of the applicant and the other five heirs of her father over the plot
of land measuring 576 sq. m situated in the city of Lushnjë. On
the basis of the documents in its possession the Commission held that
restitution of the original property was impossible since it was
occupied. Accordingly, the Commission decided that the applicant was
to be compensated in kind or in the form of State bonds pursuant to
section 16 of the Property Act. The Commission ordered the district
authorities to take the necessary measures in order to enforce its
decision.
- In
2004, following the failure of the authorities to enforce the
Commission decision, the applicant requested the district authorities
to decide on the amount of compensation to be awarded to her in
respect of her property.
- The
authorities have still not complied with their obligation.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been described in detail in
Driza v.
Albania (no. 33771/02, §§ 33-44, ECHR 2007 ...
(extracts)) and Ramadhi and Others v. Albania (no. 38222/02,
§§ 22-30, 13 November 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained of the authorities' failure to effectively
enforce the Commission's decision awarding her compensation in kind
or in the form of State bonds. She also raised a new complaint about
the entire length of the non-enforcement proceedings. She relied on
Article 6 § 1 of the Convention which, in so far as relevant,
reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time... by [a] ... tribunal ...”
Non-enforcement of the Commission decision of 21 March 1996
1. Admissibility
(a) The parties' submissions
- The
Government disputed the Court's competence ratione temporis to
examine the applicant's claim in so far as the Commission decision
was taken before the Convention's entry into force in respect of
Albania. They also challenged the applicability of Article 6 § 1
of the Convention to the administrative proceedings as decided upon
by the Commission decision of 21 March 1996.
- The
Government contended that the applicant had not exhausted all
domestic remedies in respect of the non-enforcement of the Commission
decision. They held that the applicant had neither petitioned the
domestic authorities, nor lodged any complaint with the State
Committee for Property Restitution and Compensation (replaced by the
Agency for the Restitution and Compensation of Property by virtue of
the 2006 Property Act), nor initiated any legal proceedings
concerning the non-enforcement of the Commission decision.
- The
applicant maintained that the Commission decision, which upheld her
property right, was akin to a court decision in terms of the
consequences it created. She submitted that there existed no domestic
remedy concerning the enforcement of Commission decisions awarding
compensation in lieu of the original property. She stated that
in 2004 she had unsuccessfully approached the district authorities
about the amount of compensation payable to her by virtue of the
Commission decision.
(b) The Court's assessment
- The
Court reiterates that it is competent to examine events from
2 October 1996 onwards, the date on which the Convention entered
into force in respect of Albania. It may, however, have regard to
facts prior to the date of ratification inasmuch as they could be
considered to have created a situation extending beyond that date or
may be relevant for the understanding of facts occurring after that
date (Broniowski v. Poland (dec.) [GC], no. 31443/96, §
74, ECHR 2002 X).
- In
the present case, on 2 October 1996, the Commission's decision of 21
March 1996 had not been complied with. To date, and over twelve years
since the date of its adoption, the Commission decision has still not
been enforced. In so far as the applicant's complaints are directed
against the acts and omissions of the Albanian State in relation to
the implementation of an entitlement to a compensatory measure vested
in him under Albanian law, an entitlement which continued to exist
after 2 October 1996 and still exists today, the Court has temporal
jurisdiction to entertain the application (see Broniowski,
cited above, § 76). The Court therefore rejects the Government's
objection about its incompatibility ratione temporis.
- As
regards the Government's objection in relation to the applicability
of Article 6 § 1 of the Convention, the Court notes that a
similar objection was rejected in the Court's judgment Ramadhi and
Others v. Albania (cited above, §§ 35-37). The Court
sees no reason to reach a different conclusion in the present case.
It therefore rejects the Government's objection.
- As
regards the Government's objection concerning the non-exhaustion of
domestic remedies by the applicant, the Court recalls its findings in
its judgment in Ramadhi and Others (cited above, §§
50-51), to the effect that there exists no effective remedy enabling
the Commission decisions to be enforced. It therefore dismisses the
Government's objection.
- The
Court considers that this complaint is not manifestly ill-founded,
nor is it inadmissible on any other grounds within the meaning of
Article 35 of the Convention. It therefore declares it admissible.
2. Merits
(a) The parties' submissions
- The
Government contended that the property restitution and compensation
process had been fraught with difficulties, particularly when the
expropriated property had been used for public purposes. The
conclusion of such a complex process has been conditioned by and
intertwined with the conclusion of other processes regulating the
property right. They argued that the applicant had remained passive
in her efforts to have the Commission decision enforced and that she
had not exhausted all domestic remedies as provided for in the
Property Act.
- The
applicant maintained that the non-enforcement of the Commission
decision entailed a breach of her right of access to court. She
contended that she was never offered the possibility of compensation
in kind or in the form of State bonds, despite the clear terms of the
Commission decision of 21 March 1996. The applicant added that in
2004 she unsuccessfully contacted the domestic authorities about the
matter of compensation. She, nevertheless, pointed to the fact that a
person who had obtained an enforceable judgment against the State as
a result of successful litigation should not be required to resort to
enforcement proceedings in order to have it executed (see Metaxas
v. Greece, no. 8415/02, § 19, 27 May 2004).
(b) The Court's assessment
- The
general principles under Article 6 § 1 of the Convention
concerning the non-enforcement of Commission decisions are set out in
the Ramadhi and Others judgment (cited above, §§ 45
et seq.).
- The
Court notes that the Commission decision of 21 March 1996 ordered
compensation in kind or State bonds to be paid in lieu of the
original plot of land. That decision has never been challenged before
any courts and is still in force.
- The
Court observes that, irrespective of whether the final decision to be
executed takes the form of a court judgment or a decision by an
administrative authority, domestic law as well as the Convention
require that it be enforced. No steps have been taken to enforce the
Commission decision in the applicant's favour (see Ramadhi and
Others, cited above, § 49).
- The
Court therefore concludes that there has been a violation of the
applicant's right of access to a court under Article 6 § 1 of
the Convention.
Length of proceedings
Admissibility
- On
13 December 2006 the applicant introduced a new complaint under
Article 6 § 1 about the length of the proceedings, particularly
as concerned the non-enforcement of the 1996 Commission decision.
- The
Government submitted that the applicant had never initiated any legal
proceedings before the domestic courts concerning this complaint.
- The
Court recalls the findings in its judgment in Gjonbocari and
Others v. Albania (no. 10508/02, §§ 80-82,
23 October 2007), where it found that there were no effective
remedies in the domestic legal system in relation to a complaint
about the length of proceedings. Therefore, the applicant is absolved
from exhausting domestic remedies.
- 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.
2. Merits
- The
applicant complained about the unreasonable length of the enforcement
proceedings, which have lasted more than twelve years. She attributed
this delay to the domestic authorities, which have failed to provide
her compensation in lieu of the original property.
- The
Court considers that the complaint has already been addressed in the
context of its reasoning and decision under the head of
non-enforcement and finds that there is no need to examine these
facts again through the prism of the “reasonable length”
requirement of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained that the failure to pay her compensation
entailed a breach of Article 1 of Protocol No. 1 to the Convention,
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.”
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 further finds that no other grounds have been
established for declaring this part of the application inadmissible,
and therefore declares it admissible.
B. Merits
1. The parties' submissions
- The
Government maintained that there had been no violation of the
applicant's right to property as the State had not disproportionately
interfered with it. They maintained their position that the applicant
should have exhausted all domestic remedies concerning her right to
compensation.
- The
applicant contended that the non-enforcement of the Commission
decision, which had recognised her right to compensation in lieu
of the original property, entailed a violation of her right to
property. She maintained that the Commission decision, which had not
been challenged and had become final, should be considered an asset
and therefore a property right.
2. The Court's assessment
- The
general principles under Article 1 of Protocol No. 1 to the
Convention have been set out in the Ramadhi and Others
judgment (cited above, §§ 67-71 and §§
75-79).
- The
Court observes that the applicant had her right to compensation
recognised by virtue of the 1996 Commission decision which was final.
Hence, for the purposes of the examination of the complaint it
considers the applicant's claim sufficiently established in domestic
law to qualify as an enforceable “asset” under Article 1
of Protocol No. 1.
- It
notes that this complaint is linked to the one examined under Article
6 § 1 in relation to the failure to enforce the Commission
decision (see paragraphs 24-27 above). On the basis of its
established case-law, the Court finds that the interference falls to
be examined under the first sentence of the first paragraph of
Article 1 of Protocol No. 1, which lays down the principle of
peaceful enjoyment of property in general terms (see, for example,
Burdov v. Russia, no. 59498/00, § 40, ECHR
2002-III, Jasiūnienė v. Lithuania, no.
41510/98, § 45, 6 March 2003; Sabin Popescu v.
Romania, no. 48102/99, § 80, 2 March 2004; and Beshiri
and Others v. Albania, no. 7352/03, § 99, 22
August 2006; Ramadhi and Others v. Albania, cited above, §
77).
- The
Court must therefore establish whether a fair balance was struck
between the demands of the general interest of the community and the
requirements of the protection of the individual's fundamental
rights. In the circumstances of the instant case, the Court is called
upon to determine whether the length of time during which the
domestic authorities failed to pay the applicant compensation
disturbed that balance and whether it placed an excessive burden on
her.
- The
Court notes that it has already examined this issue in its judgment
in the case of Ramadhi and Others, cited above, §§
79-84. Noting that the Government have not produced any convincing
evidence to justify the failure of the domestic authorities over so
many years to determine the final amount of compensation due to the
applicant, the Court sees no reason to reach a different conclusion
in the circumstances of the instant case.
- Accordingly,
there has been a violation of Article 1 of Protocol No. 1 to the
Convention in this case.
III. 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 reiterates its findings in Ramadhi and Others (cited
above, §§ 90 – 94) in respect of Article 46 of the
Convention. It urges the respondent State to adopt general measures
as indicated in paragraphs 93 and 94 of the said judgment.
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 claimed 137,100 euros (EUR) in respect of pecuniary damage
and EUR 40,320 in respect of non-pecuniary damage. As regards the
claim for pecuniary damage, the applicant submitted an expert
valuation of the property which assessed its current value at
EUR 68,550, and estimated the loss of profits since 1996 at EUR
68,550.
- The
Government did not submit any arguments relating to the amounts
claimed.
- The
Court recalls the general principles set out in the judgment Ramadhi
and Others (cited above, §§ 98-101) as regards Article
41 claims.
- The
Court considers, in the circumstances of the case, that payment of
compensation corresponding to the value of the plot of land measuring
576 sq. m together with a measure of interest to reflect the
intervening loss of use of the said plot of land, would put the
applicant as far as possible in a situation equivalent to the one in
which she would have been, had there not been a breach of the
Convention.
- Noting
that in the proceedings before the Court the applicant did not act on
behalf of the other five heirs and in the absence of any evidence
that she is the sole heir of the property, and having regard to the
material in its possession and making its assessment on an equitable
basis, the Court awards the applicant the sum of EUR 12,500 in
respect of pecuniary damage.
- As
regards non-pecuniary damage, the Court, ruling on an equitable
basis, awards the applicant the sum of EUR 5,000.
2. Costs and expenses
- The
applicant, who received EUR 850 in legal aid from the Council of
Europe in connection with the presentation of her case, sought
EUR
4,000 for the legal expenses incurred in the domestic proceedings and
the Strasbourg proceedings. She did not provide a detailed breakdown
to substantiate her claim for costs and expenses.
- According
to the Court's case-law, applicants are entitled to the reimbursement
of their 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. 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”. In the present case, noting that the applicant failed to
produce any documents – such as itemised bills or invoices –
in support of her claim, the Court does not make any 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 application admissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention in respect of the failure
to enforce the Commission decision of 21 March 1996;
- Holds that it does not consider it necessary to
examine separately the complaint about the length of the proceedings
under Article 6 § 1 of the Convention;
- Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention on account of the
non-enforcement of the Commission decision of 21 March 1996;
- Holds
(a) 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, the following
amounts to be converted into the currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR
12,500 (twelve thousand five hundred euros), plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 3 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
