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Cite as: [2008] ECHR 1133
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13 October 2008
FOURTH SECTION
Application no.
14918/06
by Kristo LEPURI
against Albania
lodged on 25 May
2006
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Kristo Lepuri, is an Albanian national who was born in 1942 and lives in Saranda, Albania. He is represented before the Court by Mr A. Hakani, a lawyer practising in Tirana.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 July 1995 and 29 March 1996 the Commission on Restitution and Compensation of Properties (Komisioni i kthimit dhe Kompensimit të Pronave), hereinafter “the Commission”, recognised P.L.’s inherited property title over a plot of land measuring 250 sq. m. As the original plot of land was occupied, it decided that P.L. should be compensated with an equivalent plot of land in a tourist zone.
On 8 February 1996 the Commission recognised M.L.’s inherited property title over a plot of land measuring 600 sq. m. As the original plot of land was occupied, it decided that M.L.’s heirs should be compensated with an equivalent plot of land in a tourist zone.
On the same day, i.e. 8 February 1996, the Commission recognised the applicant’s inherited property title over two plots of land measuring 750 sq. m. and 350 sq. m. As both plots of land were occupied, it decided that the applicant should be compensated in one of the ways provided for under the law at the material time. It also recognised the applicant’s right of pre-emption over a building located on the land in the event of its privatisation.
By a decision of 11 November 1998 the Saranda City Council initiated the privatisation procedure in respect of the building.
On 27 April 1999 the applicant acquired the second floor of the building and the plot of land measuring 175 sq. m. on which it stood. This was entered into the mortgage register as “registration no 42, dated 28 May 1999”.
a. Proceedings with P.L. as a party
On an unspecified date P.L. filed an action with the District Court to modify the Commission decisions of 26 July 1995 and 29 March 1996 in respect of the plot of land he had been awarded. He claimed that the property he should have been given was the plot of land acquired by the applicant on 27 April 1999.
On 2 November 2001 the Saranda District Court, sitting as a panel of three judges, one of whom was P.K., ruled in favour of P. L., awarding him 130 sq. m. from the applicant’s plot of land. On an unspecified date the applicant filed an appeal.
On 29 January 2002 the Gjirokastra Court of Appeal, sitting as a panel of three judges, two of whom were T.S. and M.Q., upheld the Saranda District Court’s decision. It modified the area to be given to the applicant from 130 sq. m. to 110 sq. m. On an unspecified date the applicant and P.L. filed an appeal with the Supreme Court.
On 17 June 2003 the Supreme Court quashed the decisions of both the Court of Appeal and the District Court and dismissed the case. It thus upheld the applicant’s title to property over 175 sq. m. and the building thereupon.
b. Proceedings with M.L.’s heirs as a party
On 6 February 2003, one of the heirs of M.L., J.R., filed an action with the Saranda District Court to modify the Commission decision of 8 February 1996 in so far as compensation in relation to property was concerned. She claimed that the property awarded to her coincided with the plot of land that had been acquired by the applicant on 27 April 1999. On 23 June 2003 J.R. also requested the annulment of the privatisation contracts in respect of the applicant’s acquired building and plot of land. The applicant was invited to attend the proceedings as a third party.
On 30 June 2003 the Saranda District Court dismissed the applicant’s counter-claim to the proceedings. It found that joining it to the main civil action would cause obvious difficulties. It decided that the counter-claim would be examined separately.
On 22 September 2003 the Saranda District Court, sitting in single-judge formation, ruled in favour of J.R. It annulled the privatisation contracts and awarded the building and the plot of land to J.R. On an unspecified date the applicant lodged an appeal with the Gjirokastra Court of Appeal.
On 23 December 2003 and February 2004 the applicant filed requests with the Gjirokastra Court of Appeal for the removal of two judges sitting on the panel (T.S. and M.Q.), since they had voted against him on the merits of the case on 29 January 2002 in the proceedings with P.L. (see above). On 8 April 2004 the Gjirokastra Court of Appeal dismissed the applicant’s request for the removal of the two judges.
On 4 May 2004 the Gjirokastra Court of Appeal upheld the Saranda District Court’s decision of 22 September 2003 in so far as it dealt with the annulment of the privatisation contract and the repeal of the applicant’s property rights over the building and the land.
On 15 May 2004 the applicant lodged an appeal with the Supreme Court, which declared it inadmissible in accordance with section 472 of the Code of Civil Procedure (no valid grounds of appeal).
c. Constitutional Court proceedings
On 25 January 2005 the applicant filed a constitutional complaint. In his submissions before the Constitutional Court, he complained of procedural violations (the examination of the case by the District Court by a single-judge formation instead of a three-judge formation in light of the value of the civil action and the appointment of experts), lack of impartiality of the Court of Appeal’s bench and breach of the principle of equality of arms.
On 16 January 2006 the Constitutional Court, by means of a reasoned decision, found no violations of the applicant’s constitutional rights by five votes to three. It dismissed the applicant’s complaint about the examination of the District Court by a single-judge formation on grounds of non-exhaustion of domestic remedies. It also found that the appointment of experts had been in accordance with the procedural guarantees.
The relevant parts of the decision read:
“...
Equality of arms, which makes up another complaint, is one of the most important elements of [the right to a] fair trial. In its decisions, also in reliance on the case-law of the European Court of Human Rights, the Constitutional Court has reasoned the necessity of the application of this principle, underlining that no party shall be placed in a position clearly unequal to the other party, which would breach the essence of [the right to a] fair trial. In light of the principles and standards of the equality of arms, the Constitutional Court considers that the appellant’s [the applicant’s] complaint is ill-founded and cannot be considered as grounds which would constitute unfairness in the proceedings. Notably, the appellant alleged that he should have been invited to the proceedings enjoying the same status as the defendant and not that of a third party. Consequently, he claimed that he had been placed in an unequal position compared to that of the plaintiff, as a result of which there had been a breach of the principle of equality of arms. Despite the appellants’ complaint, the process cannot be considered unfair, since the parties have participated in the trial proceedings and have exercised their procedural rights as guaranteed by law.
The appellant’s other complaint that the District Court denied him his rights in terms of procedure as it did not accept his counter-claim by an interim decision, does not render the process unfair in a constitutional sense. The appellant has attended the trial proceedings, making known his views and counter arguments which have been taken into account by the court.
As regards the alleged breaches of law by the Court of Appeal, the Constitutional Court considers that the allegations are unfounded and there has been no breach of [the right to a] fair trial. The appellant claimed that the Court of Appeal continued the trial even though he requested the removal of two judges on grounds of partiality, in accordance with Article 72 of the Code of Civil Procedure. Quite contrary to the applicant’s complaint, the members of the decision-making body tried another case, which differed from the current one in respect of its object and the parties involved. Under these circumstances, there were no legal barriers within the meaning of Article 72 of the Code of Civil Procedure for the judges to sit at the trial.”
In their dissenting opinion, three judges of the Constitutional Court held, amongst other views, that:
“...
The object of the trial was the modification of the Commission decision and the invalidity of the contract of sale. The District Court declared null and void the contract of sale, while it did not summon the appellant to attend as the defendant party. For this reason, the appellant, from the outset of the proceedings, requested not to be invited to join the proceedings as a third party, but as the defendant. The [District] Court dismissed the appellant’s request by an interim decision and ruled to the disadvantage of the appellant. Having adopted its decision, the [District] Court stripped the applicant of his property rights, declaring the contract of sale null and void, without inviting the applicant to the proceedings as the defendant.
The failure to grant the appellant defendant party status, at a time when his property rights were being contested, the refusal to examine his counter-claim which, according to the circumstances of the case was connected to that of the main civil action, as well as the lack of reasoning concerning the dismissal of the counter-claim in the final decision of the District Court, limited the appellant’s right of access to court and placed him in an unequal position compared to that of the plaintiff.
The District Court did not afford all the means available to the appellant in order for him to freely make use of them towards [the right to] a fair trial. Such an approach breached the requirements of Article 42 of the Constitution and Article 6 of the Convention. Such flagrant actions of breaches of the law and the right to a fair trial were not examined by the majority in their decision.
The unfairness of proceedings is also observed in the breach of the principle of impartiality of the court. In the proceedings in the second-instance court [i.e. before the Court of Appeal] the case was heard by three judges, who had already made public their opinion on the applicant’s property rights in other proceedings. Notably, all three members of the bench (one as a judge of the District Court and two others as judges of the Court of Appeal) had expressed their opinion over the same property, with the same parties, but having different objects. All three judges had expressed their opinions against the appellant. It is again, the three of them, acting as Court of Appeal judges, who adopted the same opinion vis-à-vis the appellant. Given that their participation as members of the bench, created a reasonable doubt in the appellant that they would not be impartial, the appellant requested their removal from the proceedings, the request for which was dismissed.
This fact should have been taken into account by the majority as an objective justification for considering the court to be lacking in impartiality.
The argument set out by the majority for the rejection of the appellant’s complaint, is that the case was not the same and therefore there were no breaches of Article 72 of the Code of Civil Procedure. We share the opposite view: Article 72 of the Code of Civil Procedure does not state that a violation of the principle of impartiality can only be by way of the expression of an opinion in the same case, as argued by the majority, and does not relate to the existence of a decision which has the force of res judicata. Serious matters of partiality in the bench which objectively existed make up a constituent element of the breach of this constitutional principle. It is the duty of the court in every trial to inspire trust and confidence and to be impartial in the determination of the case. The trial of the case between the same parties, over the same object, about which the judges had previously expressed an opinion to the disadvantage of the appellant, constituted a reasonable ground for finding a breach of the principle of impartiality.”
B. Relevant domestic law
The relevant parts of the Albanian Constitution read 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 decide: ...
(f) in a ruling that shall be 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.”
The relevant parts of the Code of Civil Procedure read as follows:
Article 28 - The court in civil proceedings
The court must decide on all requests contained in the civil action (padi), without surpassing its limits, conducting a fair, independent and impartial trial within a reasonable time.
Article 72 - Cases for the dismissal of the judge
“The judge is obliged to withdraw from a case when:
(...)
4. he has provided advice or expressed an opinion about the case under examination or has participated in the trial of the case at a different jurisdictional level, has been questioned as a witness, expert or representative of one or other of the parties.
(...)”
Article 74 - Procedure for the dismissal of the judge
“In cases where the resignation of a judge is mandatory, each of the parties may request his dismissal.
The request, signed by the respective party or his representative, should be lodged with the court’s registry when the name(s) of the judge or judges who are to examine the case have been announced, or otherwise immediately after the announcement of the judge or judges who shall examine the case.
A late submission of the request is allowed only when the party has been notified of the grounds of the dismissal at a subsequent time, or when during the exercise of his functions the judge has expressed a biased and inappropriate opinion on the facts and circumstances of the case, but nevertheless not later than three days after receiving notice.
The request must contain the grounds for dismissal, documents and other evidence available.”
Article 160 - Counter-claim
“The defendant has the right to file a counter-claim when the object of the counter-claim is related to that of the civil action (padisë) or when between them compensation may be awarded.
The counter-claim may be presented at any time before the court investigation has ended and is subject to all the rules determined for the lodging of the civil action.
(...)”
Articles 189 – 201 of the Code of Civil Procedure govern the participation of a third party in the civil proceedings. Article 189 stipulates that anyone may intervene in civil proceedings (..), when he has claims concerning the object of the civil action or which are related to the conclusion of the trial, by filing a civil action against both parties or against one of them. Article 190 provides that a third party should appear in a preparatory session or a hearing and submit in writing his/her request or lodge it with the court’s registry. Otherwise, under Article 192 either party to the proceedings may request the summons of a third party with whom they think that they have a case in common or from whom there may be requested a guarantee or compensation related to the conclusion of the case. A written request is notified to the judge, who shall immediately order that the third party be informed. In accordance with Article 193 when the court considers that the proceedings must take place in the presence of a third person, who has an interest in the case, it shall summon him/her to appear and adjourn the hearing for this purpose. By virtue of Article 195 the third party has the right to perform all procedural actions which are allowed to the parties, except those which constitute the possession of the subject of the civil action. Article 196 states that after the final decision in the case has been given, following the summons of a third person, there may be consequences relating both to his relationship with the person who requested his presence and also to his relationship with the defendant.
COMPLAINTS
The applicant complains under Article 6 § 1 of the Convention that he was denied the right to a fair hearing because: (i) his case was tried by a single-judge formation of the District Court; (ii) there was a breach of the principle of equality of arms in his being denied the defendant party status; (iii) there was a breach in relation to the lack of impartiality of the bench of the Court of Appeal in its decision of 4 May 2004.
QUESTIONS TO THE PARTIES