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FOURTH
SECTION
CASE OF
VRIONI AND OTHERS v. ALBANIA
(Application
no. 2141/03)
JUDGMENT
STRASBOURG
24 March
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 Vrioni and Others v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and
Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 3 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2141/03) 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 five Albanian nationals, Mrs Valeria Vrioni
(Benusi), Mr Julian Benusi, Mrs Cecili Benusi, Mrs Hartina Benusi and
Mrs Klara Benusi (“the applicants”), on 21 December 2002.
- The
applicants were represented by Ms L. Sula, a lawyer practising in
Tirana. The Albanian Government (“the Government”) were
represented by their former Agents to the European Court of Human
Rights, Mr S. Puto and Ms S. Meneri.
- The
applicants alleged that there had been a breach of Article 6 § 1
of the Convention on account of the quashing of a final decision in
supervisory review proceedings and of the length of civil proceedings
to which they had been a party. They also relied on Article 1 of
Protocol No. 1, complaining of a violation of their right to the
peaceful enjoyment of their possessions.
- On
5 July 2005 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
applicants and the Government each filed written observations (Rule
59 § 1 of the Rules of Court). The parties replied in writing to
each other's observations. In addition, third-party comments were
received from K.G's heir, who had been given leave by the President
to intervene in the written procedure (Article 36 § 2 of the
Convention and Rule 44 § 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1936, 1934, 1930, 1971 and 1973 respectively,
and live in Rome (Italy) and Tirana (Albania).
- In
pre-war Albania, the applicants' father owned a villa and adjacent
land measuring 1,377 square metres situated in Tirana.
- In 1941 the Bank of Naples (“the Bank”)
took a mortgage
on the property, including the plot of land and the villa, as
security for a loan the applicant had obtained from the bank. In 1945
the ownership of the Bank was transferred to the State, including the
Bank's liabilities, amongst which was the applicant's loan.
- On 21 April 1948 the Military Supreme Court found the
applicants' father guilty of political offences, sentenced him to
seven years' imprisonment and ordered confiscation
of half of his property which had been deposited as a mortgage. The
confiscation was carried out by a decision of the Executive Committee
of Tirana City Council (Komiteti Ekzekutiv i K.P. Qytetit Tiranë)
of 20 July 1948.
- It
transpires from the documents that ownership of the property was
transferred to the State on 16 July 1957. On 4 September 1957,
pursuant to Law no. 419 of 16 April 1947, the Ministry of Finance
ordered the Mortgage Office to discharge the mortgage debt in
relation to the applicants' father's property. On 5 October 1957 the
applicants' father sold his part of the property to P.D.
- In
1959 the State sold its part of the property to K.G. Consequently, in
1959 the villa and its adjacent land were co-owned by P.D. and K.G.
A. First set of proceedings concerning restitution of the property
- On
8 October 1992, under the Rehabilitation
of Victims of Political Repression Act (Law no. 7514 of 30 September
1991), the financial unit of Tirana municipality allocated to the
applicants the part of the villa owned at the material time by K.G.,
and half of the adjacent land. The municipality held that the
property had been illegally confiscated and that consequently the
applicants' property rights should be restored in respect of that
part of the property. Moreover, it ordered that the applicants' title
to the property be entered in the Tirana Land Registry.
1. Ordinary proceedings relating to the order granting title to
the property
- On
an unspecified date K.G. lodged a civil action with the Tirana
District Court, seeking to have the order granting title to the
property annulled on the ground that he had been a bona fide
purchaser. He maintained that the Rehabilitation
of Victims of Political Repression Act was not applicable to private
properties. Moreover, K.G. submitted that the villa had been
transferred to the State because of the failure of the applicants'
father to pay off the mortgage.
- On
16 February 1995 the Tirana District Court rejected K.G.'s claim as
ill-founded.
- On
26 April 1995, following K.G.'s action, the Tirana Court of Appeal
quashed the District Court's judgment and, deciding on the merits,
declared the order granting title to the property null and void since
it had been issued by an authority not competent to decide on the
matter. Moreover, the court designated the Commission on the
Restitution and Compensation of Property (“the Commission”)
as the competent authority to rule on restitution of property issues.
- On
an unspecified date the applicants lodged an appeal with the Supreme
Court. On 7 July 1995 the Civil Division of the Supreme Court quashed
the Court of Appeal judgment, finding that the order granting title
to the property had been issued in 1992, that is to say, one year
before the Commission was established. Consequently, the court held
that the order should be considered as certifying lawful title.
2. Supervisory review
- On
an unspecified date the President of the Supreme Court lodged an
application for supervisory review. He alleged that the Supreme
Court's judgment of 7 July 1995 had not been based on the law and
that the Restitution and Compensation of Property Act should apply.
On 22 May 1996 the Supreme Court (Joint Bench) quashed the
Supreme Court judgment of 7 July 1995 and remitted the case to the
Tirana District Court for fresh examination.
- On
7 October 1996 the Tirana District Court rejected K.G.'s claim,
upholding the applicants' property rights over the villa on the
ground that their ownership rights in relation to the villa had the
force of res judicata: the matter had been ruled on firstly in
the Supreme Court judgment of 7 July 1995, in so far as it
upheld the validity of the order granting title to the property, and
secondly in the Commission decision of 29 August 1996 (see
paragraphs 20-21 below).
- On
2 December 1996 and 5 February 1998 respectively, the Tirana Court of
Appeal and the Supreme Court rejected K.G.'s claim, upholding the
Tirana District Court's judgment.
B. Second set of proceedings concerning restitution of the
property
- On
an unspecified date, while the proceedings on the validity of the
order granting title to the property were pending before the Tirana
Court of Appeal, the applicants lodged an application with the
Commission claiming property rights over the confiscated part of the
villa.
- On
29 August 1996 the Commission allocated the confiscated part of the
villa to the applicants.
1. First set of judicial proceedings relating to the Commission
decision
- On
an unspecified date K.G. brought a civil action before the Tirana
District Court seeking to have the Commission decision of 29 August
1996 declared null and void. According to K.G.'s submissions, his
part of the villa had been confiscated by the State on the ground
that the applicants' father had failed to pay off the mortgage in
1947.
- On
19 May 1997 the Tirana District Court declared null and void the
Commission decision of 29 August 1996 on the ground that K.G. had
been a bona fide purchaser. The court held that the
confiscation of the applicants' father's property had been due to the
failure of the latter to pay off the mortgage and had not been
carried out in execution of the Military Criminal Court sentence.
- On
1 August 1997 and 16 January 1998 respectively, the Tirana Court of
Appeal and the Civil Division of the Supreme Court rejected the
applicants' appeals as ill-founded.
2. The Constitutional Court proceedings
- The
applicants lodged an appeal with the Constitutional Court on the
basis of Article 131 § f of the Constitution, arguing that the
above courts' judgments were unconstitutional on grounds of estoppel
per rem judicatam.
- In
that connection the applicants maintained that the issue of title to
the villa had been decided in their favour by the Tirana municipality
decision of 8 October 1992, which had become final and enforceable
firstly by reason of the Supreme Court's judgment of 7 July 1995 in
the ordinary proceedings, and then as a result of the same court's
judgment of 5 February 1998 in the supervisory review
proceedings.
- On
29 October 1998 the Constitutional Court quashed the courts'
judgments relating to the validity of the Commission decision of
29 August 1996 as unconstitutional. The court found as follows:
“The proceedings were unfair on two counts:
Firstly, the Commission violated the rules on
jurisdiction set forth in Article 36 of the Code of Civil Procedure.
According to this provision the Commission, as a non judicial
institution, was not empowered to examine this civil dispute and
adopt a decision, in so far as the issue was pending before the
courts.
Secondly, ... the Commission was not authorised to
examine this issue, as it had been decided upon some years ago by the
financial unit of Tirana municipality. In 1992 the financial unit, by
means of a decision, awarded this part of the house to the heirs of
... [that is, the applicants].
...
Under these circumstances, the court considers the 1996
Commission decision to be null and void. As such, it cannot produce
any effects, even though the financial unit of the municipality of
Tirana had previously addressed the issue and reached the same
conclusion.
By ruling in favour of K.G., the District Court and the
Court of Appeal denied the applicants their property rights and
conducted an unfair trial.
The violation of this constitutional right, which
occurred at the three instances, consisted in the violation of the
salient procedural principle according to which final judicial
rulings are binding on the court and the parties to the proceedings
and cannot be reviewed unless they are quashed by a higher court, or
other requests for judicial review or challenges by third parties are
being examined.
... the courts that examined this action by the
interested party were not mindful of the fact that the claims in
question were also the subject of another action against the
applicant. The District Court rejected the other action as
ill-founded and its judgment was upheld by the Court of Appeal in
December 1996, thus becoming final.
Despite the fact that the court does not consider the
judgment in question to have the force of res judicata, in
the light of the differences in the constituent elements of the
actions, their object in the material sense was nevertheless the
same, namely the challenging of the applicants' property rights by
the defendant ...
... the court was not empowered to examine the merits of
the case and reach a different conclusion from that of the first
court, since in the instant case it was not examining any special
request for judicial review.”
3. Second set of judicial proceedings relating to the Commission
decision
- On
an unspecified date K.G. brought a civil action in the Tirana
District Court seeking to have the Commission decision of 29 August
1996 set aside in compliance with the Constitutional Court's judgment
of 29 October 1998.
- On
4 June 1999 the Tirana District Court declared the Commission
decision of 29 August 1996 null and void.
- On
10 February 2000 and 24 July 2000 respectively the Tirana Court of
Appeal and the Civil Division of the Supreme Court dismissed the
applicants' appeals as ill-founded.
4. Second supervisory review
- On
an unspecified date K.G. lodged an application with the Supreme Court
for supervisory review of the Tirana District Court's judgment of
7 October 1996, the Tirana Court of Appeal judgment of 2
December 1996 and the Supreme Court's judgment of 5 February 1998, as
being in breach of the substantive laws.
- On
12 May 2000 the Supreme Court (Joint Bench), ruling in supervisory
review proceedings, quashed the above-mentioned judgments and,
deciding on the merits, declared null and void the order of 8 October
1992 granting title to the property.
- The
applicants lodged an appeal with the Constitutional Court on the
basis of Article 131 § f of the Constitution.
- On
3 July 2002 the Constitutional Court decided de plano to
declare the applicants' appeal inadmissible as being “outside
its jurisdiction”.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant domestic law
- The
Albanian Constitution provides:
Article 42 § 2
“In the protection of his constitutional and legal
rights, freedoms and interests, or in the case of a criminal charge
brought against him, everyone has the right to a fair and public
hearing within a reasonable time by an independent and impartial
court established by law.”
Article 131
“The Constitutional Court shall decide:
...
(f) in a ruling that shall be final, complaints by
individuals alleging a violation of their constitutional right to a
fair hearing, after all legal remedies for the protection of those
rights have been exhausted.”
- 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
expiry 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 judgment...”
- According
to the provisions in force at the material time, supervisory review
was an extraordinary remedy which enabled courts to reopen
proceedings following a final judgment (Rekurs
në interes të ligjit).
Between 1996 and its repeal in 2001 by Law no. 8812 of 17 May 2001,
the supervisory review procedure was the subject of several
legislative changes.
Article 473 – Review in the interests of the
law (Law no. 8431 of 14 December 1998)
“Final judgments, decisions and rulings of the
divisions 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 date on which the
decision becomes binding.
The application for supervisory review will first be
examined by a preliminary review panel of five judges and then by the
full Supreme Court (Joint Bench). ... Judges of the Supreme Court who
sat as members of the division that delivered the judgment, decision
or ruling or as members of the preliminary review panel shall not sit
on the panel that conducts the supervisory review of the final
judgment...”
- The
relevant sections of the Property (Restitution and Compensation) Act
have been described in Beshiri and Others v. Albania (no. 7352/03,
§§ 21-29, 22 August 2006), Driza v. Albania
(no. 33771/02, §§ 36-43, ECHR 2007 ...
(extracts) and Ramadhi and Others v. Albania (no. 38222/02,
§§ 23-30, 13 November 2007).
- Section
5(d) of the Rehabilitation of Victims of Political Repression Act
(Law no. 7514 of 30 September 1991) enabled the victims of repression
under the dictatorship to claim back their properties which had been
confiscated or nationalised.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention
about a violation of the principle of legal certainty, in so far as
the final judgment in their favour had been quashed in supervisory
review proceedings. They also complained about the length of the
proceedings, which had lasted approximately eight years, with the
case being considered by courts at sixteen instances.
The
relevant parts of Article 6 § 1 of the Convention provide:
““In the determination of his civil rights
and obligations ..., everyone is entitled to a fair ... hearing
within a reasonable time... by [a] ... tribunal...”
Admissibility
- The
Government contended that the Constitutional Court decision of 3 July
2002 declaring the applicants' appeal inadmissible as being “outside
its jurisdiction” could not be considered an effective remedy
to be exhausted. Therefore, the final effective remedy within the
meaning of Article 35 of the Convention was the Supreme Court's
judgment of 24 July 2000. The Government submitted that the
application should be declared inadmissible as out of time, having
been lodged on 21 December 2002.
- The
applicants submitted in reply that they had had recourse to the
Constitutional Court twice, in 1998 and 2002. Their application had
been declared admissible and a judgment had been given in their
favour by the Constitutional Court in 1998 in respect of the first
three sets of proceedings. However, their constitutional application
of 2002 had been declared inadmissible by the Constitutional Court
the same year, even though their complaints contained arguments on
points of law and concerned proceedings that had called into question
the force of the 1998 Constitutional Court judgment. The applicants
maintained that the 2002 Constitutional Court inadmissibility
decision should be considered as the final domestic judgment.
- The
Court reiterates its findings in Balliu v. Albania (dec.),
no. 74727/01, 30 September 2004, subsequently confirmed in the
Beshiri and Others v. Albania judgment (no. 7352/03,
§ 32, 22 August 2006), in which it held that a complaint to
the Albanian Constitutional Court could be considered an effective
remedy which had to be used for the purposes of Article 35 of the
Convention where fair-trial issues arose. It considers that there are
no reasons for it to depart from that finding in the circumstances of
the present case.
- The
applicants did in fact avail themselves of this remedy. The
Constitutional Court decision is dated 3 July 2002 and the applicants
lodged their application with the Court on 21 December 2002. They
have therefore complied with the six-month time-limit prescribed in
Article 35 in respect of fair-trial issues.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
Merits
1. Legal certainty: quashing of a final judgment
(a) The parties' submissions
- The
applicants challenged the fact that a final court judgment had been
quashed in supervisory review proceedings in 2000. They considered
this to be in breach of the principle of legal certainty.
- The
Government argued that the supervisory review procedure was
guaranteed by law at the material time and was considered a necessary
measure in the process of administering justice during the
transitional period the country was going through. With a view to
guaranteeing a fair trial, the request for supervisory review was
examined by a selection panel which did not include any of the judges
who had previously examined the case on one of the benches of the
Supreme Court.
- In
the Government's opinion, two sets of proceedings had been conducted
against two administrative decisions recognising the applicants'
property rights. The first set of proceedings concerned the nullity
of the 1992 decision by the financial unit of Tirana municipality
which had recognised the applicants' property rights. The second set
of proceedings concerned the nullity of the 1996 Commission decision
which had also recognised the applicants' property rights.
- The
existence of two contradictory rulings – the Supreme Court's
judgment of 5 February 1998 and the Supreme Court's judgment of
16
January 1998 – necessitated a review by a higher
decision-making body in order to determine the matter. This had led
to the adoption of a judgment by the Supreme Court (Joint Bench) on
12 May 2000 by means of supervisory review.
- Finally,
the Government maintained that the right to supervisory review had
applied for five years, between 1996 and 2001, when it had been
repealed by law.
(b) The third party's submissions
- The
intervening third party, K.G's heir (see paragraph 5 above),
contended that there had been no breach of the principle of legal
certainty. Consequently, there had been no violation of the right to
a fair hearing under Article 6 § 1 of the Convention.
(c) 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; and Roşca
v. Moldova, no. 6267/02, § 24, 22 March
2005).
- Legal
certainty presupposes respect for the principle of res judicata
(see Brumărescu, 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 (see
Roşca, cited above, § 25).
- The
Court is competent to examine events from 2 October 1996 onwards,
when the recognition by Albania of the right of individual petition
took effect. It may, however, have regard to the facts prior to
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 (see Broniowski
v. Poland (dec.) [GC], no. 31443/96, § 74, ECHR
2002 X). Turning to the present case, on 7 July 1995 the Civil
Division of the Supreme Court upheld the applicants' property rights.
Supervisory review proceedings were initiated at the request of the
President of the Supreme Court on 22 May 1996. The case was remitted
for retrial and the proceedings concluded with a final judgment of
the Supreme Court on 5 February 1998 upholding the applicants'
property rights. The Court considers that the judgment of 5 February
1998 is the final ruling for the purposes of its compatibility
ratione temporis, after the Convention's entry into force with
regard to Albania on 2 October 1996.
- Notwithstanding
the above set of proceedings, in a parallel set of proceedings
challenging a 1996 Commission decision recognising the applicants'
property rights, the Constitutional Court on 29 October 1998
recognised the Supreme Court's judgment of 5 February 1998 as res
judicata and declared the Supreme Court's judgment of 16 January
1998 unconstitutional.
- The
Court disagrees with the Government's argument that the supervisory
review remedy was necessary during the transitional period and that
the discrepancy between two final court judgments could be rectified
by means of another supervisory review judgment.
- Firstly,
it recalls that the Supreme Court's judgment of 16 January 1998
had been declared unconstitutional by the Constitutional Court's
judgment of 29 October 1998. As such, the Supreme Court's judgment
did not have any legal force and could not contradict any other
judgment. The Court fails to see how the 2000 supervisory review
proceedings could have rectified the existence of two contradictory
rulings at a time when no discrepancy whatsoever existed, in the
light of the 1998 Constitutional Court's judgment. The fact that the
third party had another view on the court judgments could not serve
as a ground for re-examination.
- Secondly,
the Court reiterates 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 avoid the adoption
of discordant judgments in parallel proceedings and to uphold the
principle of legal certainty of final judgments, which was impaired
by the use of the supervisory review procedure in the instant case
(see, in relation to the quashing of a final judgment, Driza v.
Albania, no. 33771/02, § 69, ECHR 2007 ...
(extracts).
- The
Court considers that, by using the supervisory review procedure to
quash the final judgment adopted on 5 February 1998, the Supreme
Court set at nought an entire judicial process which had ended in a
final and enforceable judicial decision, which thus had the force of
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 52-53 above).
- There has therefore been a violation of Article 6 §
1 of the Convention on account of the quashing of the final judgment
of 5 February 1998 given in the applicants' favour, in that
the domestic authorities infringed the principle of legal certainty
and the applicants' “right to a court” under Article 6 §
1 of the Convention.
2. Length of proceedings
(a) The parties' submission
- The
applicants submitted that three sets of proceedings had been
conducted over eight years concerning the same property, on almost
identical grounds and involving the same parties.
-
The Government argued that two separate sets of proceedings had been
conducted, extending over five years. No unjustified delays had been
observed by the judicial authorities at any level of jurisdiction. In
the Government's opinion, the fact that the two sets of proceedings
had been conducted independently of each other did not constitute
grounds for a complaint concerning the length of proceedings, since
they had both concluded at the same time. The Government contended
that despite the outcome of the domestic courts' judgments, the
applicants had never had actual possession of their property. For
that reason the length of proceedings could not be considered a
decisive and essential factor for the applicants.
(b) The Court's assessment
- The
Court notes that the applicants' title to the property was recognised
by the Supreme Court's judgment of 5 February 1998 which had obtained
the force of res judicata. The enjoyment of that right was
thwarted by the initiation of the parallel proceedings and the
supervisory review proceedings.
- On
that latter account, the Court considers that it does not have to
rule separately on the merits of the length of proceedings complaint.
In the circumstances, it is more appropriate to address the matter in
the context of its Article 41 award.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicants alleged that they had been the victims of a breach of
Article 1 of Protocol No. 1 to the Convention on account of the
quashing of a final judgment in their favour.
Article
1 of Protocol No. 1 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 notes that the complaint under this head is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
Merits
The parties' submissions
- The
applicants contended that the Supreme Court's 2000 judgment given by
means of supervisory review had deprived them of their property
rights.
- The
Government argued that the Supreme Court's 2000 supervisory review
judgment had not infringed the applicants' right to property under
Article 1 of Protocol No. 1 to the Convention. That judgment had
rectified the unlawfulness of previous judgments resulting from
erroneous application of the law.
- In
the Government's opinion the principle of the peaceful enjoyment of
one's possessions applied to cases where the owner was in possession
of his property without any de jure or de facto
barriers. In the instant case, the applicants had had a court
judgment in their favour, but another court judgment had existed at
the same time declaring the 1996 Commission decision null and void.
Under these circumstances, in view of the fact that the rulings of
the two judgments in question were contradictory, Article 1 of
Protocol No. 1 to the Convention did not apply.
The third party's submissions
- The
intervening third party, K.G's heir (see paragraph 5 above), disputed
the applicants' right to property, claiming that K.G. had owned the
house since 1959.
3. The Court's assessment
- The
Court reiterates that “possessions” can be “existing
possessions” or assets, including, in certain well-defined
situations, claims. A final court judgment which recognises one's
title to property may be regarded as a “possession” for
the purposes of Article 1 of Protocol No. 1 (see Brumărescu,
cited above, § 70).
- The
Court observes that the applicants had their title to the property
recognised by a final judgment of the Supreme Court on 5 February
1998. It appears that the applicants did not take possession of the
property since it was occupied by third parties. In 2000 a judgment
issued in supervisory review proceedings annulled the applicants'
title to the property.
- Given
the fact that the property had been entered in the Land Register
under the applicants' name and that the applicants' property rights
had been upheld by the final judgment of the Supreme Court of 5
February 1998, subsequently overturned in supervisory review
proceedings, the Court finds that the applicants had a “possession”
for the purposes of Article 1 of Protocol No. 1 to the Convention.
- The
Court notes that this complaint is linked to the one examined under
Article 6 § 1 in relation to the quashing of a final court
judgment (see paragraphs 52-60 above). Having found that the
authorities acted in breach of Article 6 § 1 of the Convention,
the Court observes that the applicants had enforceable claims
deriving from the judgment in question. As a result of the
supervisory review proceedings, the quashing of the enforceable
judgment frustrated the applicants' reliance on a binding judicial
decision and deprived them of an opportunity of enforcing their title
to their property.
- In
these circumstances the Court considers that the quashing of the
judgment of 5 February 1998 was incompatible with Article 1 of
Protocol No. 1. There has therefore been a violation of that Article.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed 1,047,678 euros (EUR) in respect of pecuniary
damage and EUR 450,000 in respect of non-pecuniary damage. As regards
the claim in respect of pecuniary damage, the applicants submitted an
expert valuation of the property, consisting of the house measuring
244.12 sq. m and the surrounding plot of land measuring
400 sq.
m, which assessed its value at EUR 800,000, and estimated the
loss of profits between 1992 and 2005 at EUR 247,678.
- The
Government submitted that a finding of a violation in respect of the
applicants' complaints would constitute adequate satisfaction.
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation under the Convention to
put an end to the breach and make reparation for its consequences. 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 certain
discretion in the exercise of that power, as the adjective “just”
and the phrase “if necessary” attest (see Driza,
cited above, § 130.)
- 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 S.A. v. Portugal [GC],
no. 35382/97, § 29, ECHR 2000 IV).
- The
Court recalls that in the instant case it has found a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1 on account of the quashing of a final court judgment which
recognised the applicants' property rights. There is therefore a
causal link between the violations found and the applicants' claim
for pecuniary damage.
- The
Court considers that the very nature of the final judgments in the
applicants' favour and the fact that the property is still occupied
by a bona fide third party mean that restitutio in integrum
is impossible. Consequently, compensation should be awarded in
lieu.
- The
Court considers it reasonable to compensate the applicants for
pecuniary damage in relation to their half of the property and to the
loss of profits by awarding a lump sum. The Court cannot accept the
amounts presented by the applicants and, in particular, considers it
speculative to attempt to assess what the applicants' loss of profits
might have been.
- Having
regard to the material in its possession and making an assessment on
an equitable basis, the Court awards the applicants a lump sum of EUR
450,000 in respect of pecuniary and non-pecuniary damage relating to
the property.
B. Costs and expenses
- The
applicants claimed a lump sum of EUR 20,000 for legal expenses
incurred in the domestic proceedings and the Strasbourg proceedings.
They did not provide a detailed breakdown to substantiate their 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 applicants have
failed to produce any documents – such as itemised bills or
invoices – in support of their claim, the Court does not make
any award under this head.
C. 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 as regards the quashing of
the Supreme Court's judgment of 5 February 1998;
- Holds that no separate issue arises under
Article 6 § 1 of the Convention in relation to the length of the
proceedings;
- Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amount, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement;
EUR
450,000 (four hundred and fifty thousand euros), plus any tax that
may be chargeable, in respect of pecuniary and non-pecuniary damage;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's
claims for just satisfaction.
Done in English, and notified in writing on 24 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Nicolas Bratza
Deputy Registrar President
