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FOURTH
SECTION
DECISION
Application no. 6491/06
Dashamir URUÇI
against Albania
The
European Court of Human Rights (Fourth Section), sitting on
24
January 2012 as a Chamber composed of:
Lech
Garlicki,
President,
David
Thór Björgvinsson,
Päivi
Hirvelä,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. De Gaetano,
judges,
Markelian
Koça,
ad hoc
judge,
and Lawrence Early,
Section Registrar,
Having
regard to the above application lodged on 2 February 2006,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Dashamir Uruçi, is an Albanian
national who was born in 1948 and lives in Tirana. He is represented
before the Court by Mr S. Puto, a lawyer practising in Tirana.
The Albanian Government (“the Government”) were
represented by their then Agents, Ms S. Meneri and Ms E. Hajro.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Domestic courts’ proceedings
- On
5 June, 3 July and 14 October 2001 the applicant and his wife were
the subject of articles in the daily newspaper “Rilindja
Demokratike” (“the newspaper”).
- On
29 October 2001 the applicant initiated criminal proceedings against
B. K, the author of the press article which was published on
14
October 2001. On 4 July 2002 the proceedings were
discontinued by a decision of the Tirana District Court (“the
District Court”) pursuant to the Amnesty Act of 2002.
- On
3 October 2002 the applicant lodged a civil action against the
newspaper’s editorial board (redaksia e gazetës)
represented by its editor-in-chief and sought non-pecuniary damage.
On 21 January 2003 the Tirana District Court decided that the
applicant’s personality and honour had been seriously tarnished
by the press articles. It ordered the payment of 1,000,000 Albanian
leks (approximately 7,000 euros at the time) to the applicant.
- On
an unspecified date Rilindja Demokratike sh.p.k. (“the
company”), a limited liability company registered under
Albanian law and which is the owner of the newspaper, filed an
appeal. The appeal was signed by the newspaper’s
editor-in-chief. The company argued, inter alia, that the
editorial board did not constitute a legal entity and could not be a
party to the said legal proceedings. Therefore, the court was under a
duty to replace the defendant by summoning the company in its place,
an act which was never carried out.
- On
22 May 2003 the Tirana Court of Appeal (“the Court of Appeal”)
upheld the District Court’s decision. It held that since the
articles had been selected for publication by the editorial board,
the latter was liable in its obligations towards third parties.
- On
20 June 2003 the company appealed to the Supreme Court, relying on
the same grounds of appeal as before the Court of Appeal. The appeal
was signed by the newspaper’s editor-in-chief. On 23 April 2004
the Supreme Court declared the appeal inadmissible as it did not
include any of the grounds of appeal prescribed by the Code of Civil
Procedure (“CCP”).
2. Enforcement proceedings
- On
11 July 2003 the District Court issued an execution writ in respect
of the District Court’s decision of 21 January 2003. On the
same day the bailiff notified the newspaper’s editorial board
to comply with the judgment within ten days from its notification.
The bailiff drew their attention to the mandatory enforcement of the
judgment, should they fail to comply with the judgment voluntarily.
- On
30 September 2003, following the failure of the editorial board to
comply with the judgment, the bailiff ordered the attachment of the
funds in the newspaper’s bank
accounts.
According to the information received by the banks involved,
it was apparent that the newspaper’s editorial board had no
bank accounts, except for one at the National Commercial Bank, which
had virtually no available funds.
- On
5 July 2004 the bailiff decided to discontinue the enforcement
proceedings (pushojë ekzekutimin) on the ground that the
newspaper’s editorial board had no assets.
- The
applicant contested the order and it would appear that he applied
again to the bailiff. On 18 November 2004 and 21 April 2005,
respectively, the bailiff ordered the seizure of funds in the
newspaper’s editorial board’s bank accounts and served
the order on the banks concerned in the territory of Albania.
- The
banks concerned reconfirmed that the newspaper’s editorial
board did not hold any accounts. On 4 May 2005 the National
Commercial Bank informed the bailiffs that there were no funds in the
newspaper’s editorial board’s bank account.
- On
1 November 2005 the applicant sent a letter to the Minister of
Justice informing him of the continuous non-enforcement of the
District Court’s judgment of 21 January 2003.
- On
17 November 2005 the General Bailiff’s Directorate informed the
applicant that their efforts in 2003 and 2005 had been unsuccessful
owing to the lack of available funds in the newspaper’s
editorial board’s bank account.
- On
an unspecified date it would appear that the applicant lodged a
complaint with the Constitutional Court on account of the
non-enforcement of a final court judgment.
- On
14 December 2005 the Constitutional Court by way of an administrative
letter informed the applicant that it had examined his request and
had decided that the issues raised therein were outside its
jurisdiction.
- On 15 April 2009 the Government informed this Court of
a District Court’s decision of 18 December 2007 which had
declared invalid the writ of execution of 11 July 2003. The
proceedings in question were brought by the newspaper’s
company, following – it would appear – the attempted
enforcement of the decision against the company. The applicant had
been summoned to intervene as a third party to those proceedings. In
its decision, which was given in absentia, the District Court
stated that the writ could not be enforced against the newspaper’s
company as it had never been a party to the domestic legal
proceedings. The District Court further added that, since the
newspaper’s editorial board was neither a legal entity nor a
physical person, having regard to the development and application of
the law as it stood at the material time in 2007, the writ of
execution remained
non-enforceable.
B. Relevant domestic law
1. Constitution
- The
Albanian Constitution, in so far as relevant, reads as follows:
Article 42 § 2
“In the protection of his constitutional and legal
rights, freedoms and interests, or in defending 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 131
“The Constitutional Court shall determine: ... (f)
complaints by individuals alleging a violation of their
constitutional rights to a fair hearing, provided all legal remedies
for the protection of those rights have been exhausted.”
2. The Constitutional Court Act (Law on organisation
and functioning of the Constitutional Court of the Republic of
Albania no. 8577 dated 10 February 2000)
- Section
30 of the Constitutional Court Act stipulates the deadline for the
submission of applications before that court. Individual applications
for alleged violations of constitutional rights must be submitted no
later than two years after the commission of the violation.
- The same time-limit of two years applies in the event
of the notification of a final judicial decision.
3. Case-law of the Albanian Constitutional Court
- The
Constitutional Court first accepted that the non-enforcement of a
final court decision constituted a breach of an appellant’s
right to a fair hearing in judgment no. 6/06 of 31 March 2006. Prior
to that, the Constitutional Court used to dismiss such applications
as falling outside its jurisdiction.
- A
detailed outline of the Constitutional Court’s case-law as
regards the non-enforcement of final court decisions has been
described in this Court’s judgment in Gjyli v. Albania,
no. 32907/07, §§ 21-27, 29
September 2009.
4. Code of Civil Procedure
- Article
451/a of the CCP provides that a final court judgment is binding on
the parties, their heirs, the court that adopted the judgment and
other courts and institutions.
- Article 458 of the CCP provides for the possibility of
a party to seek leave to appeal out of time.
- Article
510 of the CCP stipulates that a judgment can be enforced only on the
basis of an execution title, which includes, inter alia, a
final court judgment. Under Article 511 of the CCP, an execution
title is executed at the request of the creditor. An execution writ
is issued for this purpose. In the wording of Article 515 of the CCP,
an execution writ is enforced by the bailiff at, inter alia,
the request of the creditor. The bailiff invites the debtor to comply
voluntarily with the execution writ in accordance with the
time-limits laid down in Article 517 of the CCP. Should the debtor
fail to comply with a voluntary enforcement within the prescribed
time-limits, the bailiff proceeds with a mandatory enforcement in
accordance with Article 519 of the CCP.
- Under
Article 527 the bailiff is empowered to seize the debtor’s
loans as well as movable and immovable property to the extent
necessary for the enforcement of monetary obligations. At the
debtor’s request, seizure may also be imposed on another
property if the bailiff considers that it satisfies the creditor’s
needs pursuant to Article 528.
- Under
Article 610 of the CCP, the parties may complain to the court of an
act or failure to act by the bailiff within five days of the said act
or omission. There is a right of appeal against the court decision in
accordance with Article 611 of the CCP. The appeal has no suspensive
effect on the execution.
- The bailiff may decide to discontinue execution in
accordance with Article 616 of the CCP if: a) the debtor complies
with the execution writ; b) the creditor renounces, in writing, his
right to the enforcement; c) the execution writ is repealed; ç)
the debtor’s civil action in accordance with Article 610 of the
CCP has been accepted by a final court decision; d) the bailiffs
alone or in cooperation with the creditor do not find any assets
belonging to the debtor within 6 months from the start of the
enforcement proceedings. The parties may challenge the bailiff’s
decision to discontinue enforcement at the district court in
accordance with Article 617 of the CCP.
COMPLAINTS
- The
applicant initially complained under Articles 6 § 1 and 13 of
the Convention that the authorities had not enforced the District
Court’s judgment of 21 January 2003.
- Following
the submission of new information by the Government on 15 April 2009,
without making any specific complaints, the applicant argued that he
had not been informed of the District Court’s decision of
18 December 2007 as a result of which the time-limit for appeal
against it had lapsed. In his opinion, that decision had quashed the
District Court’s decision of 21 January 2003.
- The
relevant parts of Articles 6 § 1 and 13 of the Convention
provide:
“Article 6 § 1
In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
THE LAW
A. Article 6 § 1 complaints
1. As regards the non-enforcement of the District
Court’s judgment of 21 January 2003
(a) The parties’ submissions
- The Government argued that the applicant had failed to
exhaust domestic remedies. In the first place, they maintained that
the applicant did not lodge an action in accordance with Article 610
of the CCP against the bailiff’s actions. Secondly, they
submitted that the applicant’s request to the Constitutional
Court did not contain all the elements of a complaint, which explains
its disposal by an administrative letter.
- The
applicant argued that the Constitutional Court had not considered the
non-enforcement of final court decisions to be part of that court’s
jurisdiction until March 2006, his complaint having therefore been
dismissed. He further contended that the remedy available to him
under Article 610 of the CPP concerned his right to complain about
the bailiff’s actions, which were not in compliance with the
writ of execution. In any case, that remedy would not result in any
changes to the main decision on the merits or the writ of execution.
- The
applicant argued that the authorities’ efforts were ineffective
as they should have seized the immovable property of the newspaper’s
company and that they had not fully enforced the judgment given in
his favour. The newspaper’s company had appealed against the
District Court’s judgment of 21 January 2003 to the Court of
Appeal and the Supreme Court, having thus acknowledged that the case
was directed against them. The very same argument, which had been
raised on appeal, was dismissed by the Court of Appeal and the
Supreme Court on 22 May 2003 and 23 April 2004, respectively.
- The
Government underlined that the District Court’s judgment of
21 January 2003 was given against the editorial board and they
contended that the authorities had taken all the necessary measures
to enforce it. For example, the bailiff had informed the editorial
board of the voluntary compliance. The bailiff then proceeded with
the mandatory enforcement and ordered the seizure of the editorial
board’s bank accounts. On the contrary, the applicant had not
cooperated with the bailiff within the meaning of Article 616 (d) of
the CCP. Thus, the Government blamed the applicant for not having
requested the bailiff to proceed with the seizure of the newspaper’s
company’s immovable property.
(b) The Court’s assessment
- The Court finds it unnecessary to rule separately on
the Government’s objection of non-exhaustion of domestic
remedies, as, in any event, the complaint is inadmissible on the
following grounds.
- The
Court reiterates that execution of a final judgment given by any
court must be regarded as an integral part of the “trial”
for the purposes of Article 6 of the Convention (see Hornsby v.
Greece, 19 March 1997, § 40, Reports 1997-II).
The State has a positive obligation to organise a system for
enforcement of judgments that is effective both in law and in
practice and ensures their enforcement without any undue delays (see
Ruianu v. Romania, no. 34647/97, § 66,
17 June 2003). When the authorities are obliged to act in order
to enforce a judgment and they fail to do so, their inactivity can
engage the State’s responsibility under Article 6 § 1 of
the Convention (see Scollo v. Italy, 28 September 1995,
§ 44, Series A no. 315-C).
- The
right of “access to court” does not impose an obligation
on a State to execute every judgment of a civil character without
having regard to the particular circumstances of a case (see Sanglier
v. France, no. 50342/99, § 39, 27 May
2003). The State’s responsibility for enforcement of a judgment
against a private person extends no further than the involvement of
State bodies in the enforcement procedures (see Fuklev v.
Ukraine, no. 71186/01, § 67 and §§
90-91, 7 June 2005). The Court’s only task is to examine
whether the measures taken by the authorities were adequate and
sufficient. In cases such as the present one, where the debtor is a
private person, the State has to act diligently in order to assist a
creditor in execution of a judgment (see Fociac v. Romania,
no. 2577/02, § 70, 3 February 2005).
- The
Court notes that on 3 October 2002 the applicant lodged an action for
damages against the editorial board. The District Court’s
judgment of 21 January 2003, which became final on 23 April 2004 for
the purposes of Article 6 § 1 of the Convention, accepted the
action and ordered the editorial board to pay damages. On 11 July
2003 an execution writ was issued which was served on the bailiff
responsible for enforcement. The Court will examine whether the
bailiff’s actions were adequate and sufficient and whether he
acted diligently in the enforcement procedure.
- The
Court notes that on 11 July 2003 the bailiff requested the editorial
board to voluntarily comply with the judgment of 21 January 2003. In
the absence of voluntary compliance, on 30 September 2003 the bailiff
ordered the seizure of the editorial board’s bank accounts.
However, only one available bank account existed, which had virtually
no funds. Consequently, on 5 July 2004 the bailiff decided to
discontinue the enforcement owing to the lack of funds.
- The
Court further notes that, at the applicant’s insistence, the
bailiff ordered another seizure of the editorial board’s bank
accounts on 18 November 2004 and 21 April 2005. The banks
reconfirmed that the editorial board had no bank accounts and no
funds in other accounts.
- The
Court cannot accept the applicant’s argument that the
authorities should have seized the newspaper’s company’s
immovable property for the enforcement of the judgment. In this
connection, the Court observes that in all legal systems the
enforcement of a final court decision contains limitations ad
personam and ad rem. The applicant lodged his action
against the editorial board. The domestic courts’ judgments
found in his favour and ordered the editorial board to pay him
damages. Moreover, the domestic courts found that the editorial
board, not the newspaper’s company, was liable in its
obligations towards third parties.
- In these circumstances, the Court considers that the
bailiff took prompt and adequate steps to secure the enforcement of
the District Court’s judgment of 21 January 2003. The applicant
did not indicate any other measure which the bailiff should have
taken. It follows that this complaint must be rejected as manifestly
ill-founded in accordance with Article 35 §§ 3
and 4 of the Convention.
2. As regards a breach of equality of arms on account
of the
non-notification of the District Court’s decision of
18 December 2007
(a) The parties’ submissions
- On
21 July 2009, following the Government’s submission of the
District Court’s decision of 18 December 2007 (see paragraph 18
above), the applicant contended that the District Court’s
decision was given in absentia. He claimed that he was never
notified of its adoption and the name and signature on the
notification form were not his. He therefore could not have made use
of the time-limits which had expired by the time he took cognisance
of the decision.
- The
Government submitted that the applicant had been notified of the
adoption of the District Court’s decision of 18 December 2007
by signing the notification form on 10 January 2008. In addition, he
had attended the hearings of 2 February and 12 March 2007. Moreover,
from May to November 2007 the applicant had been unsuccessfully
summoned four times to appear before the court (on 24 May, 25
September, 9 and
30 November 2007).
(b) The Court’s assessment
- The Court is prepared to assume for the purposes of
the case that the applicant, a third-party intervenor in the
proceedings brought by the newspaper’s company, can, in
principle, rely on Article 6 of the Convention in respect of this
complaint (see, mutatis mutandis, Business Şi
Investiţii Pentru Toţi v. Moldova, no. 39391/04, 13
October 2009; Ziętal v. Poland, no. 64972/01, 12 May
2009; and, Lipatnikova and Rudic v. Moldova, no. 40541/04,
23 October 2007). The same holds for his complaint under point 3
alleging a breach of the principle of legal certainty. The Court
further reiterates that it is master of the characterisation to be
given in law to the facts of the case. It does not consider itself
bound by the characterisation given by an applicant or a Government
(see Guerra and Others v. Italy,
19 February 1998, §
44, Reports of Judgments and Decisions 1998 I). It
considers that it is necessary to examine this complaint from the
perspective of the equality of arms.
- The
principle of equality of arms is only one feature of the wider
concept of a fair trial, which also includes the fundamental right
that proceedings should be adversarial (see Ruiz-Mateos v. Spain,
judgment of 23 June 1993, Series A no. 262, p. 25, § 63).
The principle of equality of arms – in the sense of a “fair
balance” between the parties – requires that each party
should be afforded a reasonable opportunity to present his case under
conditions that do not place him at a substantial disadvantage
vis-à-vis his opponent (see, among other authorities,
Dombo Beheer B.V. v. the Netherlands, judgment of
27 October 1993, Series A no. 274, p. 19, § 33).
- The principle of equality of arms would be devoid of
substance if a party to the case were not notified of the hearing in
such a way as to have an opportunity to attend it, should he or she
decide to exercise a right to appear established in domestic law (see
Zagorodnikov v. Russia, no. 66941/01, § 30,
7 June 2007). Defective notification of court decisions
can, in principle, raise an issue under Article 6 § 1
(see, inter alia, generally Hennings v. Germany,
judgment of 16 December 1992, Series A no. 251-A, and
Sukhorubchenko v. Russia, no. 69315/01, §§ 53-54,
10 February 2005). At the same time, Article 6 cannot be
construed as conferring on litigants an automatic right to obtain a
specific form of service of court documents, such as by registered
mail (see Bogonos v. Russia (dec.), no. 68798/01,
5 February 2004).
- As regards the factual circumstances of the case, the
Government produced seven summonses of the District Court, by which
the applicant was invited to intervene as a third party in the
proceedings. The summonses covered the period between 22 December
2006 and 30 November 2007. At least four summonses were signed either
by the applicant, his wife or son. One summons was unsigned; the
signature on another summons appeared illegible; a note, stating that
the applicant refused to sign, appeared on another summons. In
addition, the records of 2 February and 12 March 2007 stated that the
applicant attended the hearings on those dates.
- In
the absence of a challenge by the applicant to the authenticity of
any of the above documents, the Court finds no reason not to rely on
them. Given the summonses and his attendance at two hearings at
least, the applicant could reasonably have been expected to make any
submissions, as appropriate, and enquire about the progress of the
proceedings. Furthermore, the Court considers that it is incumbent on
the interested party to display appropriate diligence in the defence
of his interests and to take the necessary steps to apprise himself
of developments in the proceedings (see, among other authorities,
Teuschler v. Germany (dec.), no. 47636/99,
4 October 2001; Trukh v. Ukraine (dec.),
no. 50966/99, 14 October 2003; and Aleksandr Shevchenko
v. Ukraine, no. 8371/02, § 27, 26 April 2007).
- The
Court further notes that a form of service (dëftesë
komunikimi) of 8 January 2008 informed the applicant of
the judgment of 18 December 2007. It would appear that the
form was mailed on 9 January 2008 and delivered by
registered mail on 10 January 2008 to the applicant’s address.
A stamp, bearing the inscription “paid postage, registered
mail”, appears on the lower, left-hand side. Another stamp,
indicating the date of 9 January 2008 and the name of the post
office, appears on the upper, right-hand side. The date of
acknowledgment of receipt read 10 January 2008.
- Even
assuming that the acknowledgment slip had not been signed by the
applicant, the Court considers that he had an opportunity to raise
all the above issues before the national courts by seeking leave to
appeal out of time in accordance with Article 458 of the Code of
Civil Procedure (see paragraph 25 above). However, the applicant
failed to do so.
- In these circumstances, the Court finds that the
applicant was notified of the proceedings, was kept duly informed of
the dates of hearings and was served with a copy of the judgment. It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of
the Convention.
3. As regards a breach of the principle of legal
certainty
- On
21 July 2009, following the Government’s submission of the
District Court’s decision of 18 December 2007 (see paragraph 18
above), the applicant further submitted that the domestic courts had
previously decided that the editorial board, as opposed to the
newspaper’s company, was responsible for obligations to third
parties. The decision of 18 December 2007 contradicted this
finding, setting at naught an entire legal process.
- The
Government contended that the applicant had identified and continued
legal proceedings against the wrong defendant, which was the
editorial board. The applicant did not apply to have the mistake
remedied, unlike other plaintiffs. Moreover, they argued that the
applicant should have pressed charges against the author of the press
article.
- The
Court considers that, regardless of whether the applicant complied
with the six-month time-limit in the introduction of this complaint,
it is inadmissible on the following grounds. The District Court’s
decision of 18 December 2007 did not question the finality of its
decision of 21 January 2003. It simply stated that the execution
writ, in so far as it was directed against the editorial board, could
not be enforced against the newspaper’s company. The Court
considers that the District Court’s finding that the editorial
board was neither a legal entity nor a physical person reflected the
development, the interpretation and application of the law at the
material time in 2007. The Court would further point to its findings
in paragraphs 37-44 above as regards the authorities’ actions
for the enforcement of the final court decision of 21 January 2003.
- It
follows that this complains is manifestly ill-founded and that it
should be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
D. Article 13 complaint
- The
applicant complained under Article 13 of the Convention that there
was no effective remedy to request the enforcement of the District
Court’s judgment of 21 January 2003.
- Having
regard to the material in its possession, the findings in paragraphs
37-44 above and, in so far as this complaint falls within its
competence, the Court finds that the facts of the case do not
disclose any appearance of a violation of the applicant’s right
to an effective remedy. It follows that this complaint must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence
Early Lech Garlicki
Registrar President
