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FOURTH
SECTION
CASE OF RAMADHI AND 5 OTHERS v. ALBANIA
(Application
no. 38222/02)
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 Ramadhi and 5 Others 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. 38222/02) 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 six Albanian nationals, Mr Shyqyri Ramadhi,
Mr Remzi Kapidani, Mrs Rabije Ramadhi, Mrs Xhemile Ramadhi,
Mr Dilaver Ramadhi and Mr Nakib Ramadhi (“the
applicants”), on 9 October 2002. On 1 July 2005, following
Mrs Xhemile Ramadhi's death, her daughter, Mrs Shpresa Idrizi, took
her place in the proceedings before the Court.
- The
applicants, who had been granted legal aid, were represented by Mrs
O. Muçollari, a lawyer practising in Tirana. The Albanian
Government (“the Government”) were represented by their
Agents, Mr S. Puto and Mrs S. Mëneri, of the Ministry of
Foreign Affairs.
- The
applicants alleged a violation of Article 6 § 1, Article 13 and
Article 1 of Protocol No. 1 to the Convention, on account of the
authorities' failure to enforce decisions given pursuant to the
Property Act and the Land Act. The applicants further complained of a
violation of Article 14 of the Convention in conjunction with Article
1 of Protocol No. 1.
- On
19 May 2005 the Court decided to give notice of 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
applicants, all siblings, were born in 1921, 1916, 1927, 1928, 1934
and 1943 respectively and live in Kavaja and Durrës, Albania.
- During
the communist regime several plots of land and two shops owned by the
applicants' father were confiscated by the authorities without
payment of compensation. The property, measuring in total 46,000 sq.
m (the land) and 150 sq. m (the shops) (“the relevant
property”), was situated in the Kavaja region.
A. Proceedings under the Property Act concerning the
shops and the plot of land measuring 15,500 sq. m
- On
an unspecified date the applicants lodged an application with the
Kavaja Property Restitution and Compensation Commission (Komisioni
i Kthimit dhe Kompensimit të Pronave – “the
Commission”) under the Property Act,
seeking to have the relevant property returned to them.
- On
7 June 1995 and 20 September 1996, respectively the Kavaja
Commission upheld the applicants' title as joint owners of
two shops and a plot of land measuring 15,500 sq. m. Not being
able to restore the relevant property in its entirety, the Commission
ruled that 10,000 sq. m of the relevant property was to be returned
to the applicants and that they were entitled to compensation, under
the Property Act, in respect of the remaining 5,500 sq. m of land and
the shops. Moreover, it decided not to rule on the adjacent plot of
land measuring 30,500 sq. m, since agricultural property was outside
its jurisdiction: rather the District Land Commission was the
competent body pursuant to the Land Act (Law no. 7501 of 19 July
1991).
- On
an unspecified date, in compliance with the Kavaja Commission's
decision of 20 September 1996, the applicants took possession of the
plot of land measuring 10,000 sq. m.
- Notwithstanding
the applicants' requests, to date, the authorities have failed to
comply with the parts of the Commission's decisions of 7 June
1995 and 20 September 1996 relating to the payment of compensation in
respect of the shops and the plot of land measuring 5,500 sq. m.
B. Proceedings under the Land Act concerning the plot
of land measuring 30,500 sq. m
1. Proceedings before the Land Commission
- On
an unspecified date the applicants lodged an application with the
Kavaja Land Commission (“the Land
Commission”), attached to the Kavaja Municipality, claiming
property rights in respect of the plot of land measuring 30,500 sq.
m.
- On
11 November 1998 the Land Commission upheld the
property claims of the applicants Sh.
Ramadhi, R. Kapedani and R. Ramadhi (“the
first three applicants”) and dismissed those of the
applicants Xh. Ramadhi, D. Ramadhi and N. Ramadhi (“the last
three applicants”) on the ground that the latter were not
eligible to claim property rights over agricultural land, in so far
as they were not resident in the area where the land was located.
- The
first three applicants entered their ownership of the property in the
Land Register. According to the ownership certificates, the
applicants' titles nos. 462, 460 and 461 corresponded to the plots of
land registered in the Register as nos. 89/15, 89/16 and 89/17
respectively.
- On
7 April 1999 the Land Commission, further to a request by the
Ministry of Justice, declared the first three applicants' titles void
on the basis that the decision of 11 November 1998 conflicted with
substantive laws.
2. Ordinary proceedings
- On
25 November 1999 the first three applicants initiated proceedings in
the Durrës District Court, claiming property rights over the
relevant property.
- On
4 February 2000 the Durrës District Court annulled the Land
Commission's decision of 7 April 1999 and ordered the Land
Commission to examine de novo the first three applicants' claim to be
given title to the plot of land measuring 30,500sq.m. The judgment
became final at the latest on 6 March 2000.
3. Enforcement proceedings
- On
an unspecified date the Kavaja District Court issued a writ for the
enforcement of the judgment of 4 February 2000.
- On
14 February 2001, by letter no. 151/h, the Bailiff's Office ordered
the Kavaja Municipality to comply with the District Court's decision
of 4 February 2000.
- On
7 May 2001, by decision no. 366, the Kavaja Municipality held that it
had no jurisdiction to enforce the decision on the ground that the
Kavaja Land Commission, which would originally
have had jurisdiction, had been dissolved pursuant to the
Instruction of 8 November 1999 by the city's mayor.
- On
8 January 2003, the newly established Kavaja Land Commission, in
compliance with the District Court's judgment of 4 February
2000, upheld the validity of the first three applicants' titles nos.
462, 460 and 461.
- The
applicants maintained that the property issue was still unresolved
since the local authorities had transferred the above-mentioned plots
of land to third parties, so that the Commission decision was thus
ineffective in practice. Entries in the Land Register indicate that
the plots of land registered as nos. 89/15 and 89/16 (corresponding
to the applicants' titles nos. 462, 460) are currently owned by third
parties and the applicants maintained that third parties had built on
the third plot of land corresponding to title no. 461. The Government
maintained that the applicants had failed to register their title to
the relevant property in the Land Register in order to take
possession of the property in question and did not comment on the
applicants' submission concerning the transfer of the property to
third parties.
II. RELEVANT DOMESTIC LAW
A. Constitution
22. 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. 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13
OF THE CONVENTION
- The
applicants complained of the authorities' failure to effectively
enforce three final decisions given in their favour. Moreover, they
complained about the lack of remedies to enforce the Commission's
decisions awarding them compensation. They relied on Article 6 §
1, which, in so far as relevant, read as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair... hearing within a
reasonable time by [a] ... tribunal...”
They
also invoked Article 13 of the Convention, which, provides 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.”
A. Enforcement of the Commission's decisions concerning
the payment of compensation in respect of the shops measuring 150 sq.
m and the plot of land measuring 5,500 sq. m
1. Admissibility
(a) The parties' submissions
- The
applicants complained that by decisions of 7 June 1995 and
20 September 1996 the compensation awarded to them had not been
paid for a prolonged period of time.
- The
Government contested that argument. The guarantees enshrined in
Article 6 were not applicable to the enforcement of decisions which
according to domestic law were not final and binding, as was the case
with the Commission's decisions. Consequently, the complaint should
be declared inadmissible as being incompatible ratione materiae.
Furthermore, the Government maintained that in the event that the
Court found Article 6 applicable in this respect, the complaint
should be declared inadmissible in so far as the applicants had
failed to exhaust the domestic remedies offered by the Property Act
2004 in seeking redress for the failure to pay compensation for their
property.
- The
applicants contested the Government's view, submitting that the
relevant domestic law provided that the Commission's decisions, like
the District Court's decisions, generated enforceable property
titles. Moreover, the applicants submitted that after more than
twelve years the decisions at issue had not been challenged before
the domestic courts so they were clearly final. The domestic courts
had already ruled that the Property Act 2004 did not have
retrospective effect. Moreover, they were satisfied with the merits
of the decisions and the remedies mentioned by the Government were
inadequate to offer them redress, given that they offered only an
appeal against the Commission's decisions and not a remedy for their
enforcement.
(b) The Court's assessment
(i) Applicability of Article 6 § 1
- The
Court reiterates that for Article 6 § 1, in its “civil”
limb, to be applicable there must be a dispute (contestation)
over a “right” that can be said, at least on arguable
grounds, to be recognised under domestic law. The dispute must be
genuine and serious. It may relate not only to the actual existence
of a right but also to its scope and the manner of its exercise.
Moreover, the outcome of the proceedings must be directly decisive
for the civil right in question (see, among many other authorities,
Frydlender v. France [GC], no. 30979/96, § 27, ECHR
2000-VII).
- The
Court notes that in the present case it was not contested that there
was a “dispute” over a right recognised under domestic
law, that the dispute was genuine and serious or that the outcome of
the proceedings was directly decisive for the right concerned. It
further observes that the dispute related to a right which was civil
by its very nature, since it was a dispute between the State and the
applicants as to the determination of the latter's property rights
under the Property Acts. Through the competent Commission's decisions
at issue, the State recognised that the applicants were entitled to
receive compensation. Notwithstanding the fact that domestic law
omitted to specify a time for their becoming final, the Court
observes that, after more than twelve years, the merits of such
decisions were not challenged before any court and, in law, nothing
therefore prevented their immediate enforcement. Consequently, the
Court will consider the rights thus generated to be final and
enforceable. In addition the rights arising from such decisions and
the subsequent enforcement proceedings were closely bound up with
each other (the effectiveness of the former ultimately depended on
the success of the latter).
- The
Court thus considers that the proceedings before the Commission
described above fall within the scope of Article 6 § 1 of the
Convention and it dismisses the Government's objection.
(ii) Exhaustion
of domestic remedies offered by the Property Act 2004
- 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 of
Judgments and Decisions 1996-VI; and Akdivar and Others v.
Turkey, no. 21893/93, §§ 65-67, Reports
1996-IV).
- The
Court observes that the same argument raised by the Government in the
Beshiri and Others case was dismissed since the Government
failed to provide any evidence to substantiate the effectiveness of
the remedies introduced by the Property Act 2004 (see Beshiri and
Others, cited above, §§ 54-55).
- However,
the Court observes that the present case differs from Beshiri and
Others, since the latter case concerns the enforcement of
judgments awarding compensation which concern the Code of Civil
Procedure rather than the Property Act 2004.
- The
Court considers that the question of the effectiveness of the
enforcement proceedings is central to the merits of the applicants'
complaints under this title. It holds that both questions should be
examined together on the merits.
(iii) Admissibility of the complaint under
Article 6 § 1 in conjunction with Article 13 of the
Convention
- The
Court considers that the complaints under these heads are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further finds that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
2. Merits
(a) The parties' submissions
- In
the applicants' opinion, the authorities' failure to provide for
procedures to be followed for the enforcement of the Commission's
decisions had violated their right of access to court as guaranteed
under Article 6 and also amounted to a violation of Article 13 of the
Convention.
- The
Government contested the applicants' submissions, maintaining that
the remedies offered by the Property Act 2004 were effective. They
were committed to finding a solution for the restitution of
properties and the award of compensation in compliance with the
relevant statutory provisions.
(b) The Court's assessment
- The
Court reiterates that Article 6 § 1 secures to everyone the
right to have any claim relating to his civil rights and obligations
brought before a court or tribunal; in this way it embodies the
“right to a court”, of which the right of access
constitutes one aspect (see Golder v. the United Kingdom,
judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36;
and Osman v. the United Kingdom, judgment of 28 October 1998,
Reports 1998-VIII, p. 3166, § 136, and p. 3169, §
147).
- While
it is clear that in the instant case the applicants were not
prevented from commencing proceedings for the recognition of their
property rights under the Property Acts, that does not suffice, as
the right of access to a court includes not only the right to
institute proceedings but also the right to obtain a determination of
the dispute by a court (see, mutatis mutandis, Kutić
v. Croatia, no. 48778/99, § 25, ECHR 2002-II; Lungoci
v. Romania, no. 62710/00, § 35, 26 January 2006; and
Yanakiev v. Bulgaria, no. 40476/98, § 68,
10 August 2006). Moreover, the determination of civil rights
corresponds with the time when the right asserted actually becomes
effective (see Di Pede v. Italy, judgment of 26 September
1996, Reports 1996 IV, p. 1384, §§ 22–24,
and Zappia v. Italy, judgment of 26 September 1996,
Reports 1996 IV, p. 1411, §§ 18–20),
regardless of the form of the authority to execute (see Estima
Jorge v. Portugal, judgment of 21 April 1998, Reports
1998 II, pp. 772–73, §§ 37–38).
- However,
the core of the applicants' complaint under Article 6 concerns the
non-existence of any remedy for the failure to enforce the
Commission's decisions awarding compensation under the Property Acts,
which the Court considers is more appropriately examined under
Article 13.
- As
to the authorities' compliance with the general obligation under
Article 13 to provide effective remedies in respect of the
substantive rights guaranteed under the Convention, the Court recalls
the following principles:
“(...) Article 13 guarantees the availability at
national level of a remedy to enforce the substance of the Convention
rights and freedoms in whatever form they might happen to be secured
in the domestic legal order. The effect of this Article is thus to
require the provision of a domestic remedy allowing the competent
national authority both to deal with the substance of the relevant
Convention complaint and to grant appropriate relief, although
Contracting States are afforded some discretion as to the manner in
which they conform to their obligations under this provision (see
Chahal v. United Kingdom, judgment of 15 November 1996,
Reports 1996-V, pp. 1869-70, § 145). The scope of the
obligation under Article 13 varies depending on the nature of the
applicant's complaint under the Convention (ibid., pp. 1870-71, §§
150-51). Nevertheless, 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
among other authorities Aksoy v. Turkey, judgment of 18
December 1996, Reports 1996-VI, p. 2286, § 95 and Cobzaru
v. Romania, no. 48254/99, § 80, 26 July
2007)”.
- 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
provides that it is to be enforced. No steps have been taken to
enforce the Commission's decisions in the applicants' favour.
- The
Court notes that none of the Property Acts or any related domestic
provision governed the enforcement of the Commission's decisions. In
particular, the Property Acts did not provide either for any
statutory time-limit for appealing against such decisions before the
domestic courts or for any specific remedy for their enforcement. The
Court further notes that the Property Acts left the determination of
the appropriate form and manner of compensation to the Council of
Ministers, which was to define the detailed rules and methods for
such compensation. To date no such measures have been adopted (as
described in “Relevant domestic law” above) and the
Government proffered no explanation for this.
- That
the authorities are committed, as the Government maintained, to the
restitution of property and the payment of appropriate compensation
did not lead to the enforcement of the decisions in the applicants'
favour, now unenforced for 12 and 11 years, respectively. Moreover,
the Government have not submitted any evidence that relevant measures
are imminent.
- The
foregoing considerations are sufficient to enable the Court to
conclude that, by failing to take the necessary measures to provide
for the means to enforce the Commission's decisions, the applicants
were deprived of their right to an effective remedy enabling them to
secure the enforcement of their civil right to compensation. It
therefore dismisses the Government's objection (see paragraph 41
above).
- Accordingly,
there has been a violation of Article 13 in conjunction with Article
6 § 1.
B. Enforcement of the District Court's judgment
concerning the plot of land measuring 30,500 sq. m
1. Admissibility
(a) The parties' submissions
- The
applicants complained about a violation of Article 6 § 1 given
the authorities' failure to enforce in practice the Kavaja District
Court's judgment of 4 February 2000 that ordered the issuance of a
decision on their property rights ( see paragraph 16 above).
- The
Government contested the applicants' argument, maintaining that the
Kavaja District Court's judgment of 4 February 2000 had been enforced
on 8 January 2003, when the Land Commission had delivered a
decision on their title to the relevant property. Moreover, they
contended that the applicants lacked victim status since they had
failed to take the necessary administrative steps to enter their
titles in the Land Register and accordingly to claim possession of
the property. According to the Government, the applicants had also
failed either to prove that the properties allocated to them had
already been sold to third parties and, if so, to raise that issue
with the domestic courts.
(b) The Court's assessment
- The
Court notes that the applicants' complaint under this head concerned
the failure to enforce the District Court's judgment of 4 February
2000. Since only the first three applicants were parties to the
proceedings at issue, the Court considers that the last three
applicants have not demonstrated that they can claim to be victims of
a failure to enforce the above-mentioned judgment.
- Moreover,
the Court considers that the Government's objection concerning the
first three applicants' victim status is related to the merits of
their complaint and that both questions should be examined together
on the merits.
-
It follows that the last three applicants' complaint is incompatible
ratione personae with the provisions of the
Convention within the meaning of Article 35 § 3, and therefore
inadmissible pursuant to Article 35 § 4 of the Convention. The
first three applicants' complaint under this head 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.
2. Merits
(a) The parties' submissions
- The
first three applicants submitted that, after more than seven years,
the District Court's judgment of 4 February 2000 had not been
enforced.
- The
Government argued that the authorities could not be held responsible
for the non-enforcement of the above-mentioned decision since its
execution depended upon the applicants taking the appropriate steps,
namely bringing an action seeking the entry of their titles in the
Land Register.
(b) The Court's assessment
- The
general principles concerning the non-enforcement of final judgments
are set out in the Beshiri and Others judgment (cited above,
§§ 60 et seq.).
- The
Court observes that on 4 February 2000 the District Court ordered the
issuance of a fresh decision on the first three applicants' property
claims. On 8 January 2003, after two years of inactivity, the
Land Commission upheld their title to three specific plots of land
(see paragraph 14 above), by which date the land was owned by third
parties. The latter argument was supported by the Land Register
evidence submitted by the relevant applicants. The Government did not
comment on this evidence and indeed submitted no substantiated
material to the contrary.
- Finding
that the State has not discharged the onus on it to prove the
effectiveness of the remedies invoked (see paragraph 55 above) and
noting that the first three applicants' property rights are far from
being determined, the Court finds that the State authorities have
failed to enforce the District Court's judgment of 4 February
2000. It therefore dismisses the Government's objection (see
paragraph 57 above).
- There
has therefore been a violation of Article 6 § 1 of the
Convention as regards the first three applicants.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicants complained of a violation of their property rights over
the relevant property. They relied on Article 1 of Protocol No. 1 to
the Convention.
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
Government contested that argument.
A. Admissibility
- The
Court 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 where 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, § 65,
6 October 2005, ECHR 2005-IX).
- The
Court notes that the complaint is linked to those examined under
Article 6 § 1 in relation to the authorities' failure to enforce
the decisions given in the applicants' favour.
- Since
the Court has declared inadmissible the last three applicants'
complaint as regards the non-enforcement of the judgment of 4
February 2000, these applicants have had no “legitimate
expectation”, based either on the provisions of the Land Act or
on the decisions given in relation to their claim for restitution of
the plot of land measuring 30,500 sq. m. Accordingly, the last three
applicants' complaint about the judgment of 4 February 2000 is
incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 35 § 3 and
must be rejected in accordance with Article 35 § 4.
- However,
the first three applicants complaints under Article 1 of Protocol No.
1 as regards the failure to enforce the judgment of 4 February 2000
and all the applicants' complaint as regards the failure to enforce
the Commission decisions of 1995 and 1996 are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention.
- In
this respect, the Court notes that ever since the applicants'
relevant property had been nationalised, pursuant to the Property
Acts and the Land Act in conjunction with the decisions given in
their favour, they had a claim to compensation in value and kind
which was clearly established in domestic law. It was certain that,
at the time of the decisions of 7 June 1995 and 20 September
1996, the applicants were entitled to pecuniary compensation in
accordance with the Property Act, and that at the time of the court
judgment of 4 February 2000 the first three applicants were entitled
to restitution of the original property in accordance with the Land
Act. In these circumstances, the Court considers the applicants'
claim sufficiently established to qualify as an “asset”
for the purposes of Article 1 of Protocol No. 1. The Court further
finds that their complaints are not inadmissible on any other grounds
and they must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government contended that the Commission's decisions and the court's
decision in the present case could not attract the guarantees of this
Article since, in order to secure their property rights, the
applicants should have raised the matter with the competent
authorities in accordance with the Property Act 2004. They maintained
that any failure to execute the Commission's decisions awarding
compensation to the applicants had been due to objective
circumstances such as the lack of funds and the general interests of
the community.
- With
reference to the plot of land measuring 30,500 sq. m, the Government
submitted that the State should not be considered responsible for the
applicants' failure to take the necessary steps with the Land
Registry Office and to take possession of the property allocated to
them. In the Government's submission, this would have been the only
way to attract the protection of the Convention and to enable the
applicants to claim property rights under Article 1 of Protocol No.
1.
- The
applicants contested the Government's arguments, claiming they were
unsubstantiated. They maintained that their property rights were
still unresolved after a prolonged period of time.
2. The Court's assessment
- The
Court reiterates that Article 1 of Protocol No. 1 comprises three
distinct rules: the first rule, set out in the first sentence of the
first paragraph, is of a general nature and enunciates the principle
of the peaceful enjoyment of property; the second rule, contained in
the second sentence of the first paragraph, covers deprivation of
possessions and subjects it to certain conditions; the third rule,
stated in the second paragraph, recognises that the Contracting
States are entitled, amongst other things, to control the use of
property in accordance with the general interest (see, among other
authorities, Pressos Compania Naviera S.A. and Others v.
Belgium, judgment of 20 November 1995, Series A no. 332,
§ 33, and Draon,
cited above, §
69).
- In
the present case, the Court observes that the interference with the
applicants' right to the enjoyment of their possessions stems from
the continuing failure to pay them the compensation stemming from the
Commission's decisions and to return to the first three applicants
the property of which they had been recognised as the owners by the
Land Commission.
- The
Court observes that in its established case-law it has examined the
non-enforcement of a decision recognising title to property under the
first sentence of the first paragraph of Article 1 of Protocol No. 1
(see 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, cited above, § 99). The circumstances of
the present case are similar to those of the cases mentioned above
and therefore 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.
- 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 time necessary for the domestic
authorities to pay the applicants compensation and to effectively
return to the first three applicants the properties to which they
were entitled disturbed that balance and whether it placed an
excessive burden on them.
- The
Court reiterates that States have a wide margin of appreciation to
determine what is in the public interest, especially where
compensation for nationalisation or expropriation is concerned, as
the national legislature has a wide discretion in implementing social
and economic policies. However, that margin of appreciation is not
unlimited and its exercise is subject to review by the Convention
institutions (see Lithgow and Others v. the United Kingdom,
judgment of 8 July 1986, Series A no. 102, pp. 50 51,
§§ 121-22).
- In
the present case, twelve and eleven years have passed since the
Commission's decisions of 1995 and 1996 respectively without the
applicants having been paid any compensation. Moreover, the situation
arising from the combination of the sale of the relevant property
(measuring 30,500 sq. m) and the Land Commission's decision of 8
January 2003 had the effect of depriving the applicants of the
benefit of the enforcement of that decision (see paragraph 63 above).
- The
Court considers that by failing to comply with the Commission's
decisions of 1995 and 1996 and the District Court's of 4 February
2000, the national authorities left the applicants in a state of
uncertainty with regard to the realisation of their property rights.
Furthermore, for a considerable period of time, the authorities
prevented them from enjoying the possession of their money and land.
- The
Government submitted that notwithstanding the administrative
authorities' commitment to the implementation of the Property and
Land Acts, the proceedings were very complex because the authorities
were called upon to determine the manner and the funds for the
fulfilment of their obligations pursuant to those Acts. Given that
there existed no clear legal rules in domestic law governing the
calculation of compensation or any other similar procedure for
enforcing the Commission's decisions awarding compensation (see
paragraph 24 above), the Court does not find this argument
particularly convincing, bearing in mind that it was the authorities'
inactivity that caused the interference at issue. In any event, the
applicants should not be prevented from benefiting from the success
of their litigation on the ground of alleged difficulties experienced
by the State (see mutatis mutandis Jeličić v.
Bosnia and Herzegovina, no. 41183/02,
§ 42, ECHR 2006 ....).
- In
conclusion, 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 the compensation due or to return to
the first three applicants the plot of land now allocated to third
parties. This has resulted in an interference with the applicants'
property rights, which in the Court's view is such as to have placed
an excessive burden on them.
- In
the light of all the circumstances, the Court considers that there
has therefore been a violation of Article 1 of Protocol No. 1 as
regards all the applicants in respect of the issue of compensation
and as regards the first three applicants in respect of the issue of
restitution.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the last three applicants complained that the domestic courts had
discriminated against them on the ground of their place of residence,
in apparent breach of their property rights. They relied on Article
14 of the Convention in conjunction with Article 1 of Protocol No. 1.
- The
Government contested that argument.
- The
Court observes that in its decision of 11 November 1998 the Land
Commission dismissed the claims of the last three applicants on the
ground that they were not resident in the region where the relevant
property they were claiming was situated. The applicants failed to
appeal against that decision.
- The
Court considers that by failing to raise the issue of their
discrimination with the domestic courts, the applicants failed to
exhaust domestic remedies for the purposes of Article 35 § 1. It
follows that this complaint must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
IV. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
89. 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.”
- It
is inherent in the Court's findings above that the violation of the
applicants' rights guaranteed by Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1 originated in a widespread problem
affecting large numbers of people, namely the unjustified hindrance
of their right to the peaceful enjoyment of their property, stemming
from the non - enforcement of Commission decisions that awarded them
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
applicants' particular case may subsequently give rise to other
numerous well-founded applications.
- Before
examining the applicants' individual claims for just satisfaction
under Article 41 of the Convention and in view of the circumstances
of the 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. Subject to
supervision by the Committee of Ministers, the national authorities
have the task of taking – retrospectively if needs be –
(see among other authorities 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 90
above) 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,
introduce a remedy which secures genuinely effective redress for the
Convention violations identified in the instant judgment as well as
in respect of all similar applications pending before it, in
accordance with the principles for the protection of the rights laid
down in Articles 6 § 1 and 13 of the Convention and Article 1 of
Protocol No. 1. By introducing the relevant remedy, the State should,
inter alia, designate the competent body, set out the
procedural rules, ensure compliance with such rules in practice and
remove all obstacles to the award of compensation under the Property
Act. These objectives can be achieved 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 who are entitled to receive compensation
in kind and the designation of an adequate fund in respect to those
applicants who are entitled to receive compensation in value, this in
order to make it possible for all the claimants having successful
Commission's decisions in their favour to obtain speedily the lands
or the sums 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
- As
regards pecuniary damage, the applicants claimed 590,000 euros (EUR)
for the plots of land measuring a total of 36,000 sq. m and EUR
65,500 for the shops. In assessing the above mentioned sums the
applicants took account of the current market value of the properties
at issue, i.e EUR 2,000 per sq. m. in respect of the land and
EUR 2,200 per sq. m. in respect of the shops. Moreover, they left it
to the Court's discretion to determine the relevant rate of interest
for the period during which the authorities had failed to pay them
the compensation due. Lastly, the applicants claimed EUR 12,000 in
non-pecuniary damage.
- The
Government contested the applicants' claims but did not submit any
argument relating to the amounts claimed by the applicants. However,
they maintained their commitment to the finding of a solution to the
problem of restitution of property and payment of compensation in
compliance with the relevant statutory provisions. Accordingly,
the Government 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).
- The
Court further reiterates that the most appropriate form of redress in
respect of a violation of Article 6 is to ensure that the
applicant as far as possible is put in the position in which he or
she would have been had the requirements of Article 6 not been
disregarded (see Teteriny v. Russia, no. 11931/03, § 56,
30 June 2005). Having regard to the nature of the violations found,
the Court considers therefore that the applicants have suffered
considerable pecuniary and non-pecuniary damage as a result of the
breach of their 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.
- 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 view
of the Government's failure to follow the indications given by the
Court in the last mentioned judgments to provide for the relevant
regulations allowing the enforcement of 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 plots of land measuring 30,500 sq. m as ordered in the Land
Commission's decision of 8 January 2003 and the payment of the
compensation corresponding to the value of the plots of land
measuring 5,500 sq. m and 150 sq. m, at the time of the relevant
decisions, together with a measure of interest to reflect the
intervening loss of use of the said plots of land would put the first
three applicants and all the applicants, respectively, as far as
possible, in a situation equivalent to the one in which they would
have been if there had not been a breach of the Convention.
- Having
regard to the material in its possession and the fact that the
Government did not furnish any objection to the method of calculation
of the compensation submitted by the applicants and making an
assessment on an equitable basis, the Court awards jointly to all the
applicants a lump sum of EUR 64,000 in respect of pecuniary and
non-pecuniary damage relating to the plots of land measuring 5,500
sq. m and 150 sq. m.
- Moreover,
it awards jointly to the first three applicants a global sum of EUR
25,000 together with the restitution of the plot of land measuring
30,500 sq. m. Failing the restitution of the said plot of land 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 jointly to the first three applicants, an amount of EUR
120,000 in respect of pecuniary and non-pecuniary damage relating to
that property.
2. Costs and expenses
- The applicants, who received EUR 824 in legal aid
from the Council of Europe in connection with the presentation of
their case, sought EUR 2,800 and EUR 2,500 for the costs and expenses
incurred before the domestic courts and before the Court
respectively. They did not provide a detailed breakdown to
substantiate their claim for costs and expenses before the domestic
courts.
- The Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum.
- In the present case, regard being had to the
information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,676, in addition to
the sum already granted in legal aid by the Council of Europe, for
costs and expenses incurred in the proceedings before the Court, but
dismisses the claim for costs in the domestic proceedings for lack of
substantiation.
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 under Article 6 § 1
of the Convention, Article 13 of the Convention and Article 1 of
Protocol No. 1 to the Convention as regards the Commission's
decisions of 7 June 1995 and 20 September 1996 admissible;
- Declares the complaints under Article 6 § 1
and Article 1 of Protocol No. 1 as regards the Kavaja District Court
judgment of 4 February 2000 admissible in respect of the first three
applicants and declares the remainder of the complaints inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the failure to enforce the
Commission's decisions of 7 June 1995 and 20 September 1996 and the
Kavaja District Court judgment of 4 February 2000;
- Holds that there has been a violation of Article
13 of the Convention in conjunction with Article 6 § 1 of the
Convention in respect of the ineffectiveness of the remedies at the
applicants' disposal to secure the enforcement of the Commission's
decisions of 7 June 1995 and 20 September 1996;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention in respect of all the
applicants as regards the plot of land measuring 5,500 sq. m and the
shops, and in respect of the first three applicants as regards the
plot of land measuring 30,500 sq. m;
- 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 the plot
of land measuring 30,500 sq. m belonging to the first three
applicants and to pay them jointly EUR 25,000 (twenty five 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 jointly to
the first three applicants, within six months from the date on which
the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 120,000 (one
hundred and twenty 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;
(c) that
the respondent State is to pay jointly to all 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 amounts, 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:
(i) EUR
64,000 (sixty four thousand euros) in respect of pecuniary and
non-pecuniary damage relating to the plots of land measuring 5,500
sq. m and 150 sq. m;
(ii) EUR
1,676 (one thousand six hundred and seventy six euros) in respect of
costs and expenses;
(d) that
from the expiry of the above-mentioned six months (as regards points
(a) and (b)) and three months (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 applicants' 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
