SILIQI AND OTHERS v. ALBANIA - 37295/05 42228/05 - Committee Judgment [2015] ECHR 263 (10 March 2015)

In the case of Siliqi and Others v. Albania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          George Nicolaou, President,
          Ledi Bianku,
          Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 17 February 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in two applications (nos. 37295/05 and 42228/05) 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 four Albanian nationals. Application no. 37295/05 was lodged by Ms Drita Siliqi née Shundi, Ms Mariana Shundi and Mr Andrea Shundi, on 3 October 2005 and application no. 42228/05 was lodged by Ms Gjenovefa Mihali née Shundi and Ms. Drita Siliqi née Shundi, on 14 October 2005.

2. The applicants were represented by Mr A. Tartari, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agent, Ms S. Mëneri of the Ministry of Foreign Affairs.

3. On 6 December 2007 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1937, 1933, 1941 and 1934, respectively, and live in Albania and the United States of America.

5. On 30 December 1994 the Tirana Restitution and Compensation of Properties Commission (“the Commission”) recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 2,461.97 sq. m and decided to restore the property. Since buildings had been constructed on the land by a third party, the Commission ruled that the third party should pay rent for the land or re-purchase the land pursuant to an agreement to be entered into between the parties. It also recognised the applicants’ right to first refusal of the buildings.

6. On 18 February 1997 the applicants lodged a civil claim with the Tirana District Court seeking the annulment of a 1996 sale contract entered between the State and the third party over two plots of lands measuring 197 sq. mand 195 sq. m, which they claimed to own. The applicants also sought the payment of rent by the third party pursuant to the 1993 Property Act. In the same set of proceedings, the third party lodged a counter action requesting the partial annulment of the Commission decision.

7. On 24 April 2002 the Supreme Court gave a final decision dismissing the applicants’ claims. It also dismissed their right to first refusal as regards the buildings on the plots of land which had been granted by the Commission. It decided that the applicants are entitled to compensation in respect of the plot of land measuring 2,461.97 sq. m to be determined in accordance with the 1993 Property Act.

8. On 22 October 2004 the Constitutional Court, sitting as a full bench, found no violation of the applicants’ right to a fair trial.

9. To date, no compensation has been paid.

II. RELEVANT DOMESTIC LAW AND PRACTICE

10. The relevant domestic law and practice has been described in detail in, inter alia, the judgment of Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, §§ 23-53, 31 July 2012) and Ramadhi v. Albania (no. 38222/02, 13 November 2007).

11. On 6 March 2013 and 30 July 2014 the Government approved and issued new property valuation maps, which included the reference price per square metre throughout the country (Council of Ministers’ decisions nos. 187 of 6 March 2013 and 514 of 30 July 2014).

III. COUNCIL OF EUROPE MATERIAL

12. Subsequent to the events described in the judgment Karagjozi and Others v. Albania [Committee], nos. 25408/06, 37419/06, 49121/06, 1504/07, 19772/07, 46685/07, 49411/07, 27242/08, 61912/08 and 15075/09, §§ 36-38, 8 April 2014, the Committee of Ministers gave a decision on 6 March 2014 on the execution of judgments concerning the Albanian authorities’ failure to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land, which was adopted at its 1193^th meeting, stated, in so far as relevant, the following:

“The Deputies

(...)

2. considered the actions taken since September 2013 and the measures foreseen for the coming weeks and months as encouraging; regretting, however, that the deadline fixed by the pilot judgment will not be met, underlined that in order to fulfill the obligations imposed by the European Court and to introduce the required compensation mechanism without further delay and within the time frame proposed by the action plan, the political commitment expressed in the action plan must be followed by concrete and substantial actions at the domestic level, in particular in the fields identified by the Committee in its Interim Resolution CM/ResDH(2013)115;

(...).”

13. The Committee of Ministers’ decision of 5 June 2014 on the execution of judgments concerning the Albanian authorities’ failure to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land, which was adopted at its 1201^st meeting, stated, in so far as relevant, the following:

“The Deputies

1. welcomed the formal adoption by the Albanian Council of Ministers of the action plan for the establishment of an effective compensation mechanism, thereby rendering the action plan binding, and noted with satisfaction that the measures foreseen are being adopted in conformity with the previsions in that plan;

2. in view of the overall deadline foreseen for the implementation of this mechanism, strongly encouraged the authorities to intensify their efforts with a view to reducing this time-frame as much as possible;

(...).”

THE LAW

I. JOINDER OF THE APPLICATIONS

14. Given that the two applications concern the same facts and complaints, the Court decides that they should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AS WELL AS OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

15. The Court raised of its own motion the question whether there had been a breach of Articles 6 § 1 and 13 of the Convention as well as of Article 1 of Protocol No. 1 to the Convention on account of the authorities’ failure to pay compensation to the applicants pursuant to the Supreme Court’s decision of 24 April 2002.

Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

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.”

Article 1 of Protocol No. 1 to the Convention reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

16. The Court notes that this part of the applications is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

17. The Government submitted that the applicants never sought compensation as awarded by the Supreme Court’s decision of 24 April 2002. They insisted on having the property physically restored. The authorities could not be held responsible for the non-enforcement of the decision, no steps for its enforcement having been taken by the applicants.

18. The Court has already examined and, subsequently, rejected the Government’s argument in the case of Beshiri and Others v. Albania, no. 7352/03, §§ 62-66, 22 August 2006. The Court sees no reason to reach a different conclusion in this case.

19. The Court finds that the domestic authorities’ failure over so many years to enforce the final court decision and, notably, to pay the compensation awarded, breached the applicants’ rights under Article 6 § 1 and under Article 1 of Protocol No. 1 to the Convention (see Driza v. Albania, no. 33771/02, ECHR 2007-V (extracts), Vrioni and Others v. Albania and Italy, nos. 35720/04 and 42832/06, 29 September 2009, Manushaqe Puto and Others v. Albania, cited above and, Ramadhi and Others v. Albania, cited above).

20. The Court also concludes that there was no effective domestic remedy that allowed for adequate and sufficient redress on account of the prolonged non-enforcement of the final court decision awarding compensation. There is accordingly a violation of Article 13 of the Convention (see Manushaqe Puto and Others v. Albania, cited above).

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

21. The applicants also complained under Article 6 § 1 about the unfairness of the domestic proceedings as regards the interpretation of domestic law and the outcome of those proceedings.

22. In the light of all the material in its possession and, in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

23. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

24. The applicants relied on an expert’s valuation report claiming 1,639,000 euros (“EUR”) in respect of pecuniary damage, which was made up of EUR 1,480,000 as regards the property value of the plot of land measuring 2,467.97 sq. m and EUR 159,000 concerning the loss of profits. They also claimed EUR 200,000 in respect of non-pecuniary damage.

25. The Government did not submit an expert’s report owing to the complexity of the applicants’ claims and the lack of time. However, they reserved the right to do so at a later stage. To date, no such report has been submitted to the Court.

26. In view of the ineffective nature of the current system of compensation and having regard, in particular, to the fact that it is now over 13 years since the applicants were initially awarded compensation, the Court, without prejudging possible future developments with regard to the establishment of an effective compensation mechanism, considers it reasonable to award the applicants a sum which would represent a final and exhaustive settlement of the cases.

27. The Court recalls its findings in the case of Vrioni and Others v. Albania (just satisfaction), nos. 35720/04 and 42832/06, §§ 33-39, 7 December 2010 as regards the method of calculation of pecuniary damage. Therefore, the Court will base its calculation of pecuniary damage on the property valuation maps adopted by the Government in 2008 (see, also, Manushaqe Puto and Others, cited above, § 125), no reliance having been placed by the Government on the recent property valuation maps.

28. Having regard to the parties’ submissions and the material in its possession, the Court considers it reasonable to award the applicants EUR 1,498,400 in respect of pecuniary and non-pecuniary damage.

B. Costs and expenses

29. The applicants claimed EUR 10,000 for costs and expenses incurred before the Court. They did not provide a detailed breakdown to substantiate their claim for costs and expenses.

30. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see Gjyli v. Albania, no. 32907/07, § 72, 29 September 2009). To this end, Rule 60 §§ 2 and 3 of the Rules of Court provides that applicants must enclose with their claims for just satisfaction “any relevant supporting documents”, failing which the Court “may reject the claims in whole or in part”.

31. The Court observes that the applicants failed to submit any supporting documents to support their claims. Therefore, the Court will not make an award in respect of costs and expenses.

C. Default interest

. The Court considers it appropriate that the default interest rate 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,

1. Decides to join applications nos. 37295/05 and 42228/05;

2. Declares the complaints concerning Articles 6 § 1 and 13 of the Convention as well as Article 1 of Protocol No. 1 as regards the non-enforcement of the Supreme Court’s decision of 24 April 2002 admissible and the remainder of the application inadmissible;

3. Holds that there has been a breach of Articles 6 § 1 and 13 as well as of Article 1 of Protocol No. 1 to the Convention;

4. Holds

(a) that the respondent State is to pay the applicants, jointly, within three months, EUR 1,498,400 (one million, four hundred and ninety-eight thousand, four hundred euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage to all applicants as regards both applications, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 10 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı George Nicolaou
Deputy Registrar President

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