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FOURTH
SECTION
CASE OF DELVINA v. ALBANIA
(Application
no. 49106/06)
JUDGMENT
(merits)
STRASBOURG
8 March
2011
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 Delvina v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Sverre
Erik Jebens,
Päivi
Hirvelä,
Ledi
Bianku,
Vincent
A. de Gaetano,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 15 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 49106/06) 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 three Albanian nationals, Mr Sherif Delvina, Mr
Ahmet Delvina and Ms Fatime Delvina (“the applicants”),
on 23 November 2006.
- The
applicants were represented by Ms L. Suli, a lawyer practising in
Tirana. The Albanian Government (“the Government”) were
represented by their then Agent, Ms S. Meneri.
- The
applicants alleged that there had been a breach of Article 6 § 1
of the Convention as regards the unfairness of the domestic
proceedings and the non-enforcement of a final court decision. They
also relied on Article 13 of the Convention and Article 1 of Protocol
No. 1 to the Convention as regards the lack of an effective remedy
concerning the amount of their compensation.
- On
14 February 2008 the President of the Section to which the case was
allocated 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 further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1932, 1934 and 1942,
respectively, and live in Albania.
A. Background of the case and administrative
proceedings
- In
1950 a plot of land measuring 1,600 sq. m., which belonged to the
applicants' father, was confiscated without compensation by the
State, which subsequently constructed a building on the plot of land.
- On
1 July 1991 the Italian Embassy in Albania purchased two buildings in
Tirana, one of which was situated on the applicants' inherited plot
of land. The transaction was concluded through an inter-State
agreement validated by means of note verbale exchanges between
the two governments. The relevant property titles were not entered in
the Tirana Property Register.
- The
Albanian Government subsequently used the income from the transaction
to purchase the premises of the Albanian Embassy in Rome (see also
Vrioni and Others v. Albania and Italy, nos. 35720/04 and
42832/06, §§ 7-16, 29 September 2009 for a similar
description of facts).
- Under
the Property Restitution and Compensation Act, the applicants lodged
an application with the Tirana Commission on Restitution and
Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të
Pronave – “the Commission”) claiming title to
their father's property.
- On
28 July 1999 the Commission recognised the applicants' father's
property title over 1,600 sq. m. and acknowledged the fact that the
plot of land was occupied by the Italian Embassy in Albania. Since
buildings had been constructed on the land, the Commission ruled that
their owner, the Italian Government, had to pay rent for the land or
repurchase the land by agreement.
- The
applicants were also issued with a certificate of registration of
property by the Registry Office: registration no. 137, dated 9 August
1999.
- The
applicants claimed that they sent letters to the Italian Embassy to
enter into a lease or to sell the plot of land according to the
Commission's decision. However, the Italian Embassy explained that
the property had been transferred to them through the exchange of
notes verbales in 1991.
B. Proceedings for recovery of the property and
compensation
- The
applicants filed an action on 16 January 2003 to recover the property
and to obtain damages from the Italian authorities.
- On
22 June 2004 the Tirana District Court quashed the Commission's
decision as regards the physical return of the property to the
applicants, since that plot of land had been lawfully occupied by the
Italian Embassy since 1991. Instead, it ruled that the applicants
should be compensated for 1,600 sq. m in one of the ways provided for
by law. The Court of Appeal and the Supreme Court, by way of reasoned
decisions, upheld the District Court's decision on 25 March 2005 and
6 June 2006, respectively. On 24 November 2006 the applicants lodged
a constitutional complaint with the Constitutional Court.
- On
8 December 2006 the Constitutional Court, sitting as a bench of three
judges, declared the application inadmissible.
II. RELEVANT DOMESTIC LAW
A. The Constitution
- The
relevant provisions of the Albanian Constitution read as follows:
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 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.”
B. The Property Act
- The
relevant domestic law as regards property restitution and
compensation in Albania has been described in the judgments of
Gjonbocari and Others v. Albania, no. 10508/02, §§
36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§
36-43, 13 November 2007, Ramadhi and Others v. Albania, no.
38222/02, §§ 23-30, 13 November 2007.
- New
and substantial legislative measures have been enacted amending the
principal 2004 Property Act since the adoption of those judgments.
The principal amendments are as follows:
1. The 2005 Property Act (Law no. 9388 of 4 May 2005)
- Section
3 extended until 31 December 2007 the time-limit for the completion
of the examination of applications for the recognition, restitution
and compensation of immovable properties, with the exception of
payment of the amount of compensation, the time-limit for which was
fixed for 2015.
2. The 2006 Property Act (Law no. 9583 of 17 July 2006)
- Section
13 established the Agency for the Restitution and Compensation of
Properties (“the central Agency”) which replaced the
State Committee on the Restitution and Compensation of Properties
(“the State Committee”). The central Agency, which was
headed by a Director, had its seat in Tirana and was made up of
twelve regional Agency offices.
- According
to section 14, the regional Agency office was responsible for the
initial examination of applications for the recognition of property
rights, in response to which it decided on the restitution of
property and/or compensation in lieu thereof. Section 15 set
the time-limit for the submission of applications for the recognition
of property rights for
1 October 2007.
- Section
16 stipulated that an appeal against a decision of the regional
Agency office could be lodged with the central Agency. The decision
of the central Agency could be appealed against to the Tirana
District Court within thirty days of its notification.
- Section
21 extended until 31 June 2008 the time-limit for the completion of
the examination of applications for the recognition, restitution and
compensation of immovable properties, with the exception of payment
of compensation.
- Section 22 provided for the establishment of the
In-kind Compensation Fund (IkCF) alongside the Financial Compensation
Fund (“FCF”). Within sixty days from the Act's entry into
force, the Government had to approve the list of properties to be
allocated to the IkCF.
3. The 2007 Property Act (Law no. 9684 of 6 February 2007)
- Section
1 provided that the central Agency was responsible for examining
claims for in-kind and financial compensation. The central Agency was
also responsible for examining appeals against the decisions of
regional Agency offices.
- Section
2 reiterated that the regional Agency offices continued to be
responsible for the initial examination of applications for the
recognition of property rights. The claimant or the State Advocate's
Office had the right to appeal against that decision within thirty
days to the central Agency, which was the highest administrative
body. Such an administrative decision was amenable to judicial review
in accordance with the provisions of the Code of Civil Procedure.
The 2008 Property Act (Law no. 9898 of 10 April 2008)
- Section
1 extended until 31 December 2008 the time-limit for the submission
of applications for the recognition of property rights and the
restitution of properties by the regional Agency offices. It also
provided for the possibility for a claimant to be given a new
time-limit by way of a court decision.
- According
to section 2, the completion of the examination of applications for
the recognition of property rights and restitution of properties
would be finalised on 30 June 2009, with the exception of the payment
of the amount of compensation, the deadline for which was fixed for
2015.
- Section
3 extended until 31 December 2008 the deadline for the allocation of
properties to the IkCF.
The 2009 Property Act (Law no. 10095 of 12 March 2009)
- Section
2 provided that in addition to the budgetary appropriations, the
allocations obtained by virtue of this law and other donors, the FCF
would also be made up of proceeds obtained through auctions of State
properties' which had not been the subject of a Commission decision.
6. The 2009 Property Act (Law no. 10207 of 23 December 2009)
- Section
6 abolished the regional Agency offices. It stated that the archives
of those offices would be transferred to the central Agency.
According to section 1, the central Agency would complete the
examination of applications for recognition of property rights and
restitution of properties lodged with the former regional Agency
offices. The central Agency continued to examine appeals lodged with
it against former regional Agency offices' decisions.
- According
to section 5, the claimant or the State Advocate's Office had the
right to appeal against the central Agency's decision within thirty
days of its notification to the Tirana District Court.
- Section
7 set the deadline for the completion of the examination of
applications for the recognition and restitution of properties for
31 December 2011.
7. The 2010 Property Act (Law no. 10308 of 22 July 2010)
- The
2010 Property Act chiefly introduced the possibility of requesting a
revision of decisions of former Commissions / regional Agency
offices.
- Section
4 extended until 31 December 2011 the deadline for the allocation of
properties to the IkCF.
C. Council of Ministers' Decisions
1. Council of Ministers' Decisions (“CMDs”) on awards
from the Financial Compensation Fund (CMD no. 13 of 17 November 2005;
CMD no. 758 of 16 November 2006; CMD no. 566 of 5 September 2007; CMD
no. 1343 of 4 June 2008; and, CMD no. 487 of 6 May 2009)
- Pursuant to Article 23 of the 2004 Property Act which
established the Financial Compensation Fund, the Government adopted
the
above-mentioned decisions, between 2005 and 2009, in respect
of the award of financial compensation to former owners.
- In
2005 financial compensation was awarded in respect of compensation
claims arising out of the Tirana Commission's decisions. In 2006
financial compensation was awarded in respect of compensation claims
arising out of the decisions of the Tirana and Kavaja Commissions. In
2007 the group of beneficiaries was expanded to include former owners
who were in possession of a Commission decision issued with respect
to cities for which a property valuation map had been approved and
issued. In 2008 and 2009 all former owners, who were entitled to
compensation, following a Commission / regional Agency's decision,
were eligible to apply for financial compensation.
- According
to the CMDs adopted between 2005 and 2008, a claimant was required to
lodge a standard application for financial compensation with the
central Agency in Tirana, furnishing, inter alia, the Commission /
regional Agency's decision that recognised his right to compensation.
Only those former owners who had not received previous compensation
were entitled to financial compensation from 2005 to 2008. The 2009
CMD provided that a former owner was entitled to financial
compensation on the condition that he had not benefited from: a)
previous compensation; b) partial restoration/restitution of the
property; c) the right to first refusal; d) the implementation of the
Act on the Distribution of Land (Law no. 7501 of 19 July 1991).
- Applications
would be examined in chronological order on the basis of the
Commission's / regional Agency's decision date and number. The amount
of financial compensation, which was to be calculated on the basis of
property valuation maps, was limited to a maximum of 200 sq. m.
- The
lodging of an application entailed the payment of a processing fee.
Former owners who had been unsuccessful in their application for
financial compensation in a preceding year could re-submit their
application in the following year(s) once they had paid the
processing fee.
- None
of those decisions provided for the award of compensation to holders
claims arising out of a final, enforceable court decision.
2. CMDs on property valuation maps (CMD no. 555 of 29 September
2007; CMD no. 653 of 29 August 200; CMD no. 139 of 13 February 2008;
and CMD no. 1620 of 26 November 2008)
- By
virtue of the above-mentioned decisions, two of which were adopted in
2007 and two in 2008, the Government approved and issued property
valuation maps as listed above. The maps included the reference price
per square metre throughout the country.
- The
first decision fixed the price of land for the regions of Berat,
Gjirokastër, Vlorë and Dibër; the second decision
fixed the price of land for the regions of Lezhë, Dibër,
Korçë and Kukës; the third decision fixed the price
of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës
and Shkodër. The fourth decision contained an updated price list
for certain cities. According to that decision, the reference price
per square metre for the area in which the applicants' property was
located was valued at
ALL 180,000.
3. CMDs on in-kind compensation of former owners (CMD no. 567 of 5
September 2007)
- The
2006 Property Act provided for the establishment of an In-kind
Compensation Fund (“IkCF”). The Government would adopt
the procedures for the allocation of properties covered by the IkCF.
- By
decision of 5 September 2007 the Government laid down the criteria
and the procedures for the determination of State properties covered
by the IkCF (CMD no. 567 of 5 September 2007). Section 1 lists the
types of properties, for example: a) public immovable property which
is located in tourist areas; b) properties of the Ministry of Defence
which are not used by the armed forces and have been approved by the
President of the Republic; c) available agricultural land belonging
to the Ministry of Agriculture; d) forests, pastures and meadows; and
e) property of State institutions which falls outside their intended
activity.
- The
Agency and its regional offices are responsible for checking the
legal status of each property as submitted by the respective State
institution. The Agency submits the final list of immovable
properties for inclusion in the IkCF to the Minister of Justice. The
Government are to approve the list and publish it in the Official
Journal.
- To date, it would appear that no such list has yet
been approved.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained that the judicial proceedings had been unfair.
They also alleged that the enforcement of the Court of Appeal
decision of 25 March 2005 had taken an unreasonable period of time.
Article
6 § 1 of the Convention, in so far as relevant, reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time... by [a] ... tribunal ...”
A. The unfairness of the judicial proceedings
- The
applicants alleged that the domestic courts had wrongly assessed the
evidence and misinterpreted domestic law. The Government contended
that the domestic proceedings had been fair. In their view, the
applicants' arguments had been adequately addressed by the domestic
courts.
- In
so far as the applicants complain about the assessment of evidence
and the interpretation of the domestic law, the Court reiterates that
it is not within its province to substitute its own assessment of the
facts for that of the domestic courts and, as a general rule, it is
for these courts to assess the evidence before them and interpret the
domestic law. The Court's task is to ascertain whether the
proceedings in their entirety, including the way in which evidence
was taken, were fair (see Jakupi v. Albania (dec.), no.
11186/03, 1 December 2009; Beshiri and Others v. Albania, no.
7352/03, § 37, 22 August 2006).
- The
Court considers that it has not been demonstrated that the
proceedings before the domestic courts were not in accordance with
the requirements of Article 6 § 1 of the Convention. The
applicants were legally represented. They had the possibility of
submitting their arguments and defending their views. The domestic
courts, after assessing all the evidence, gave reasoned decisions and
dismissed their claim. The Court is unable to discern any
arbitrariness in the domestic courts' decisions. It does not find any
indication of a violation of Article 6 § 1 of the Convention
under this head.
- It
follows that this complaint is manifestly ill-founded and must be
dismissed in accordance with Article 35 §§ 3 and 4 of the
Convention.
B. Non-enforcement of the Supreme Court's decision of 6
June 2006
1. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further finds that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
- The
applicants submitted that the authorities had not taken any measures
to enforce the Court of Appeal's decision of 25 March 2005.
- The
Government argued that the applicants never sought compensation
before the domestic authorities. In their view, the authorities were
not obliged to make an offer given that the applicants disputed the
domestic courts' findings.
- As
regards the scope of this complaint, the Court notes at the outset
that Article 6 protects the enforcement of final and binding judicial
judgments, and not judgments which may be subject to subsequent
control of a higher instance court and, eventually, quashed (see, for
example, Ouzounis and Others v. Greece, no. 49144/99, §
21, 18 April 2002; Ioannis Karahalios v. Greece (dec.), no
62499/00, 26 September 2002; Xheraj v. Albania, no. 37959/02,
§ 70, 29 July 2008). On that understanding, the Court finds that
this complaint must be taken to concern the
non-enforcement of
the Supreme Court's decision of 6 June 2006, which finally recognised
the applicants' right to compensation in lieu of the
restitution of property, even if the Court of Appeal, to the
disappointment of the applicants, reached the same conclusion on 25
March 2005.
- The general principles under Article 6 § 1 of the
Convention concerning the non-enforcement of final court judgments
are set out in Gjyli v. Albania, no.
32907/07, §§ 43-44, 29 September 2009 and Beshiri
and Others, cited above, §§ 60-61.
- The
Court observes that the Supreme Court's decision ordered compensation
to be paid to the applicants in respect of their plot of land
measuring 1,600 sq. m. To date, the authorities have failed to take
any measure to enforce that decision in the applicants' favour.
- The
Court further reiterates that a person who has obtained an
enforceable judgment against the State as a result of successful
litigation cannot be required to resort to enforcement proceedings in
order to have it executed (see Beshiri and Others, cited
above, § 54).
- Moreover,
the Court has already found a violation of Article 6 § 1 of the
Convention on account of the non-enforcement of a final court
decision awarding compensation in lieu of restitution in the
cases of Beshiri and Others (cited above, §§ 62–66);
Driza (cited above, §§ 87–94); and Vrioni
and Others v. Albania and Italy (nos. 35720/04
and 42832/06, §§ 54-61,
29 September 2009). It
sees no reason to depart from those findings in the present case.
- The Court therefore concludes that there has been a
violation of the applicants' right of access to a court under Article
6 § 1 of the Convention.
C. The length of the proceedings
- The
Court considers that the complaint under this head is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It moreover finds that no other grounds for declaring
this part of the complaint inadmissible have been established and
therefore declares it admissible.
- However,
the Court further considers that in the light of its finding of a
violation under Article 6 § 1 of the Convention as regards the
non-enforcement of the Supreme Court's decision of 6 June 2006, it
does not have to rule separately on the merits of the length of
proceedings complaint (see Vrioni and Others v. Albania and Italy,
cited above, § 66; Lizanets
v.
Ukraine, no. 6725/03, § 48, 31 May 2007).
II. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH
ARTICLE 6 § 1 OF THE CONVENTION
- The
applicants complained under Article 13 of the Convention that there
was no effective remedy to enforce the final judgment in their
favour.
Article
13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further finds that it is not inadmissible on any other founds. It
must therefore be declared admissible.
B. Merits
- The Court recalls that in its judgment in the
above-mentioned case of Driza it found the following:
“118. The Court notes that the Property Act 1993
(which was repealed by the Property Act 2004, which in turn was
amended by the Property Act 2006) provided for various forms of
compensation when the original property could not be returned to the
former owner (...). The Property Act 1993 left the determination of
the appropriate form of compensation to the Council of Ministers,
which was to define the detailed rules and methods applicable to the
provision of compensation. According to the findings of the Supreme
Court in its judgment of 7 December 2000, the bodies competent to
deal with compensation issues had yet to be set up (...).
Notwithstanding the entry into force of the Property Act 2004 the
situation did not change. It was not until 28 April 2005 that
Parliament passed an Act determining the methodology for the
valuation of property for compensation purposes. Section 5 of that
Act left the task of implementing this methodology to the State
Committee on Property Restitution and Compensation, which should have
issued the appropriate site plans to allow the properties to be
valued. However, to date those plans have not been adopted.
119. Consequently, the Court considers that, by not
setting up the appropriate bodies to deal with the compensation
issues or adopting site plans for the valuation of the properties,
the Government failed to establish an adequate procedure in relation
to the compensation claims. Moreover, it is unlikely that the
Government will put in place such a system imminently or within a
span of time sufficiently short to enable the settlement of the
dispute related to the determination of the applicants' rights.”
- In
the instant case, the Court observes that, since the date of adoption
of the judgment in Driza, the Government have enacted new
legal provisions as regards the award of financial compensation, the
adoption of property valuation maps and the establishment of the IkCF
(see “The relevant domestic law” section above). The
Court must therefore determine whether the measures adopted
constitute an effective remedy within the meaning of Article 13 of
the Convention.
- The
Court reiterates that Article 13 of the Convention gives direct
expression to the States' obligation, enshrined in Article 1 of the
Convention, to protect human rights first and foremost within their
own legal system. It therefore requires that the States provide a
domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate relief
(Burdov v. Russia (no. 2),
no. 33509/04, § 96, ECHR 2009 ...; and, Yuriy
Nikolayevich Ivanov v. Ukraine, no.
40450/04, § 63, ECHR 2009 ... (extracts)).
- The
scope of the Contracting States' obligations under Article 13 of the
Convention varies depending on the nature of the applicant's
complaint; the “effectiveness” of a “remedy”
within the meaning of this provision does not depend on the certainty
of a favourable outcome for the applicant. At the same time, the
remedy required by Article 13 must be “effective” in
practice as well as in law in the sense either of preventing the
alleged violation or its continuation, or of providing adequate
redress for any violation that has already occurred (see Burdov
(no. 2), cited above, § 97; and, Yuriy
Nikolayevich Ivanov, cited above, §
64).
- In
the instant case the Court observes at the outset that the Government
decisions on the award of financial compensation explicitly stipulate
that a claimant could vindicate his right to compensation on the
basis of a Commission decision. The provisions on financial
compensation do not apply to claimants, like the applicants in the
instant case, who have an enforceable compensation claim by virtue of
a final court decision.
- Having
regard to the information in its possession, the Court further notes
that, in practice, the Agency has awarded compensation only to
claimants who are in possession of a Commission decision. There have
been no awards to a claimant possessing a final, enforceable court
decision.
- Moreover,
the Court is unable to identify any other measures which have been
adopted with a view to securing the enforcement of a final court
decision awarding compensation to an applicant in lieu of the
restitution of property. The Government have not submitted any
evidence to the contrary.
- In
the light of the foregoing, the Court considers that the applicants
did not have an effective remedy enabling them to secure the
enforcement of their right to compensation recognised by virtue of a
final court judgment.
- Accordingly,
there has been a violation of Article 13 in conjunction with Article
6 § 1 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicants alleged that the failure to pay them compensation as
ordered by the Supreme Court's decision of 6 June 2006 entailed a
breach of Article 1 of Protocol No. 1, which provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
Admissibility
- The
Court considers that the complaint under this head is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It moreover finds that no other grounds for declaring
this part of the application inadmissible have been established and
therefore declares it admissible.
B. Merits
- The
Government submitted that there was no causal link between this
complaint and the authorities' obligation to provide compensation.
- The
Court reiterates that a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 if it is sufficiently established to be enforceable (see Stran
Greek Refineries and Stratis Andreadis v. Greece, judgment of 9
December 1994, Series A no. 301-B, p. 84, § 59).
- The
Court observes that the Supreme Court's decision of 6 June 2006
provided the applicants with an enforceable claim to compensation in
lieu of the restitution of property.
- The
Court recalls its case-law that the impossibility for an applicant to
obtain the execution of a final court judgment in his or her favour
constitutes an interference with the right to the peaceful enjoyment
of possessions, as set out in the first sentence of the first
paragraph of Article 1 of Protocol No. 1 (see, among other
authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR
2002-III).
- The
Court notes that it has already found a violation of Article 6 §
1 of the Convention because of the authorities' failure to enforce a
final court decision awarding compensation (see paragraphs 58-62
above).
- The
Court further notes that it has already found a violation of an
applicant's property rights on account of the authorities' failure to
provide compensation arising out of a final court decision in the
cases of Beshiri and Others, cited above, §§ 95-103;
Driza, cited above, §§ 101-109; and Vrioni and
Others v. Albania and Italy, nos. 35720/04 and
42832/06, §§ 71-77,
29 September 2009. The Court
sees no reason to reach a different conclusion in the circumstances
of the instant case.
- There has accordingly been a violation of Article 1 of
Protocol No. 1 to the Convention.
IV. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
- The
Court notes that in the instant case it has identified shortcomings
in the Albanian regulatory framework as regards the lack of machinery
to secure the enforcement of a final court decision awarding
compensation in lieu of the restitution of property. Such
shortcomings should be addressed as a matter of urgency having regard
to the number of persons in the applicants' situation and to the
scope for further applications to the Court raising the same issues
(see Driza, cited above, § 122).
- Whereas
the respondent State remains free to choose the means by which it
will discharge its legal obligations under Article 46 of the
Convention, provided that such means are compatible with the
conclusions set out in the Court's judgment (see Burdov
v. Russia (no. 2), cited above, §
136), the Court considers that general measures at national level are
undoubtedly called for in the execution of the present judgment.
- The
Court observes that the problems at the root of the violations of
Article 6, Article 13 in conjunction with Article 6 and Article 1 of
Protocol No. 1 found in this case are complex and structural. They
require the adoption and implementation of measures of a legislative
and administrative character, involving various authorities. The
Court considers that the respondent State should take adequate
legislative, administrative and financial measures in order to
provide for awards of compensation, without undue delay, ordered by a
final court decision in lieu of the restitution of property.
The respondent State should, for example, designate a competent
enforcement body, provide sufficient human and material resources,
establish clear and simplified rules of procedure for the collection
of claims, lay down realistic and binding time-limits for their
processing and enforcement, allocate the necessary budgetary funds,
and remove all obstacles with a view to securing the expedient award
of financial or in-kind compensation, having regard to the principles
established in the Court's case-law.
- The
Court recalls that it is of crucial importance that a court decision
against the State, having acquired the force of res judicata,
should be enforced without undue delay. The applicant should not be
required to bear the burden for the execution of res judicata
judgments given in his favour against the State (see, mutatis
mutandis, Metaxas v. Greece, no. 8415/02, § 49, 27 May
2004). The State's failure to enforce res judicata judgments
undermines public confidence in the judiciary and respect for the
rule of law, which is one of the fundamental principles of a
democratic society and an inherent element in all the Articles of the
Convention (see, mutatis mutandis, Stere and Others v.
Romania, no. 25632/02, § 53, 23 February 2006).
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.”
- The
applicants claimed EUR 3,210,240 in respect of pecuniary damage,
which consisted of EUR 2,640,000 as regards the value of the land and
EUR 570,240 as regards the loss of profits for a period of ten years.
They relied on an expert report for determining the overall value of
land and the loss of profits, according to which the market price of
the property was EUR 1,650 per sq. m and the market price of the rent
was EUR 5,280 per month. Lastly, the applicants claimed EUR 100,000
in respect of non-pecuniary damage.
- The
Government did not submit any observations in this respect.
- The
Court considers that the question of the application of Article 41 is
not ready for decision. The question must accordingly be reserved and
the further procedure fixed with due regard to the possibility of
agreement being reached between the Albanian Government and the
applicants.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the applicants' complaint concerning
the unfairness of the judicial proceedings inadmissible and the
remainder of the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the non-enforcement of the
Supreme Court's decision of 6 June 2006;
- Holds that it is not necessary to examine the
applicants' complaint under Article 6 § 1 concerning the length
of the non-enforcement of the Supreme Court's decision of 6 June
2006;
- Holds that there has been a violation of
Article 13 taken in conjunction with Article 6 § 1 of the
Convention;
- Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
- Holds that the question of the application of
Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written
observations on the matter and, in particular, to notify the Court of
any agreement that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be;
Done in English, and notified in writing on 8 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence
Early Nicolas Bratza
Registrar President
