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BUSHATI AND OTHERS v. ALBANIA - 6397/04 [2009] ECHR 2027 (8 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2027.html
Cite as:
[2009] ECHR 2027
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FOURTH
SECTION
CASE OF
BUSHATI AND OTHERS v. ALBANIA
(Application
no. 6397/04)
JUDGMENT
(merits)
STRASBOURG
8
December 2009
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 Bushati and Others v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Nebojša
Vučinić,
judges,
Markelian
Koca, ad
hoc judge,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 17 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 6397/04) 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 Mrs Ixhlale Bushati, Mr Skender Bushati and
Mr Genc Bushati, Albanian nationals (“the applicants”),
on 8 January 2004.
The first and second applicants were represented before the Court by
Mr Genc Bushati, (“the third applicant”), who, at the
time of the introduction of the application, was himself represented
by Messrs L. Bianku and D. Gjata and, who is currently
represented by Mr P. Kalo, lawyers practising in Tirana. The Albanian
Government (“the Government”) were represented by their
then Agents, Mr S. Puto and Ms S. Meneri.
The
applicants complained under Article 6 § 1 of the Convention of a
violation of the principle of legal certainty, the length of
proceedings and the non-enforcement of a court decision. They also
argued that the authorities had infringed their right to the peaceful
enjoyment of their possessions, as guaranteed by Article 1 of
Protocol No. 1 to the Convention.
The
application was allocated to the Fourth Section (Rule 52 § 1
of the Rules of Court). Within that Section, the Chamber that would
consider the case (Article 27 § 1 of the
Convention) was constituted in accordance with Rule 26 § 1
of the Rules of Court. Mr Ledi Bianku, the judge elected in
respect of Albania, withdrew from sitting in the case (Rule 28).
The Government accordingly appointed Mr Markelian Koça to
sit as an ad hoc judge in his place (Article 27 § 2
of the Convention and Rule 29 § 1).
On
16 September 2005 the President of the Fourth Section of the Court
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 submitted further written
observations (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1918, 1939 and 1944,
respectively, and live in Shkoder.
Following
the conclusion of a purchase contract on 10 July 1940, the
applicants' relative became the owner of a plot of land measuring
5,000 sq. m and situated on the Durrës coast. The applicants'
relative's title to the property was subsequently entered in the
Durrës Land Register.
In
1946 the State nationalised – without compensation – all
the land situated on the Albanian coast, including the applicants'
relative's plot of land.
A. Restitution of property
On
3 February 1994 the Durrës Commission on Restitution and
Compensation of Property (Komisioni i Kthimit dhe Kompensimit të
Pronave – hereafter “the Commission”),
restored the applicants' property rights over
their relative's property pursuant to the Property
(Restitution and Compensation) Act of 1993 (see
“Relevant domestic law”, paragraph 53 below). On
22 February 1994 the applicants' title to the property was entered in
the Durrës Land Register.
Between
1994 and 1995 attempts by the applicants to recover possession of the
property proved unsuccessful because buildings had been illegally
erected on their land by unlawful occupiers.
B. Domestic courts' proceedings
1. Ordinary proceedings
On
an unspecified date in 1995, being unable to recover possession of
their property, the applicants initiated proceedings before the
Durrës District Court (“the District Court”),
seeking an order for three occupiers (M., R. and D.) to cease
occupation of their property and for the illegal buildings to be
demolished.
On
11 April 1995 the District Court confirmed the applicants' property
rights over the plot of land allocated to them by the Commission and
ordered the occupiers to vacate the applicants' property. That
decision became final on 23 May 1995.
2. Supervisory review
On
1 August 1995 one of the occupiers, M., submitted a request to the
President of the then Court of Cassation for supervisory review of
the District Court's decision of 11 April 1995 on the ground that he
had not been notified of the proceedings. On 23 September 1995 the
President of the Court of Cassation endorsed his request by putting
it before the Civil Bench.
On
2 February 1996 the Court of Cassation quashed the District Court's
decision of 11 April 1995 on the ground that none of the three
occupiers had been duly informed of the proceedings before the
District Court, and remitted the case to the same court for fresh
examination.
The
applicants were neither informed of the proceedings nor invited to
attend the hearings before the Court of Cassation.
On 21 June 1996 the District Court decided to dismiss
the case as none of the parties had attended the hearing and none had
given legitimate reasons for their failure to attend.
3. Reopening of proceedings
It
appears that the proceedings were reopened on an unspecified date.
They were also directed against another unlawful occupier, B. On
20
January 1997 the District Court confirmed the applicants' title to
their relative's plot of land and ordered the four occupiers (M., R.,
D. and B.) to cease occupation.
In
February 1997 the applicants sold a plot measuring 500 sq. m to
another party. That transaction was entered in the land register.
On
an unspecified date the occupiers of the applicants' property
appealed against the District Court's decision of 20 January 1997,
challenging the lawfulness of the applicants' title to the plot of
land. On 1 April 1998 the Durrës Court of Appeal (“the
Court of Appeal”) dismissed their appeal and upheld the
District Court's decision.
On
10 November 1998 the Court of Cassation quashed the Court of Appeal's
decision on the ground that the latter had not examined the
lawfulness of the applicants' relative's title to the property. It
remitted the case to the Court of Appeal for fresh examination.
On
24 November 1999 the Court of Appeal found that on 30 August 1994
the Commission had allocated to R. (who had subsequently donated his
property to G.) a plot of land that overlapped with 720 sq. m of the
plot of land allocated to the applicants by the same Commission on
3 February 1994. Moreover, the court declared null and void the
Commission's decision of 3 February 1994 in respect of the plot
measuring 720 sq. m, finding that the applicants' relative's purchase
contract of 10 July 1940 was null and void. It therefore revoked
the applicants' title to the entire plot of land measuring 5,000 sq.
m.
On 2 April 2001, following appeals by the applicants
and by three of the four occupiers (M., B. and D.), the Supreme
Court, which had replaced the Court of Cassation after the Albanian
Constitution's entry into force on 28 November 1998, quashed the
Court of Appeal's decision in part. The court dismissed the
occupiers' appeals on the ground that, as they occupied the land
without title, they lacked
standing to challenge the applicants' title to the property. The
Supreme Court therefore ordered them to cease their occupation of the
land. Moreover, the court upheld G.'s title to the plot measuring 720
sq. m that overlapped with the land allocated to the applicants and
confirmed the applicants' property rights over the remaining 4,280
sq. m.
On
11 March 2003 the applicants lodged an appeal with the Constitutional
Court under Article 131 (f) of the Constitution, arguing that the
Supreme Court's judgment of 2 April 2001, which resulted in only
partial recognition of their property, was unconstitutional. They
complained that as the Supreme Court had wrongly assessed the
evidence, its impartiality was open to doubt.
The
Constitutional Court found that the applicants' constitutional
complaint concerned the assessment of evidence, which fell within the
jurisdiction of the lower courts and was outside its jurisdiction. It
therefore declared the appeal inadmissible by a decision of 10 July
2003, which was served on the applicants on 14 July 2003.
4. Enforcement proceedings concerning the Supreme Court's decision
of 2 April 2001
On
28 June 2001 the District Court ordered the bailiffs to enforce the
Supreme Court's judgment of 2 April 2001.
On
31 July 2001 the bailiff sent three separate letters to M., D. and B.
to comply with the judgment within 10 days from the notification
thereof. The bailiff drew the occupiers' attention to the mandatory
enforcement of the judgment, should they fail to comply with the
judgment voluntarily.
On
25 September 2001 the third applicant requested a stay in the
execution of the judgment until 15 October for reasons which he did
not disclose. The record states that the applicant would appear at
the bailiff's office to request the continuation of the enforcement
proceedings.
On
26 October 2001 the applicant and occupiers M. and D. appeared before
the bailiff. The record states that “the parties agreed to
postpone the execution of the judgment until 15 November 2001”.
On
16 January 2002 the third applicant requested the bailiff to waive
the applicants' right of enforcement of the judgment against B. as
both parties would resolve the issue by agreement. It appears that on
an unspecified date in 2002 the applicants sold a plot measuring 164
sq. m to B.
On
the same day the third applicant requested enforcement of the
judgment against M. and D. by demolishing their constructions. The
bailiff agreed to request the assistance of the police for this
purpose.
On
22 January 2002 M. and D. were informed that the bailiff would
proceed with the mandatory execution of the judgment on 4 February,
in the presence of police officers.
On
4 February 2002 the bailiff decided to postpone the execution to an
unspecified date owing to the applicants' absence. It results from
the record that the bailiff did not go to the site to undertake any
measures with a view to demolishing M.'s and D.'s constructions.
On
9 September 2002 the third applicant requested the bailiff to proceed
with the enforcement of the judgment, given the failure of M. and D.
to comply with an agreement on the amount of compensation in respect
of the plots they had occupied.
On
10 September 2002 the bailiff sent two separate letters to M. and D.
asking them to comply within 10 days with the agreement entered into
with the applicants. The bailiff drew the occupiers' attention to the
mandatory enforcement of the judgment, should they fail to comply
with the judgment voluntarily.
On
16 September 2002 the bailiff had a meeting with M. and D., who
informed him that they were unable to pay the price requested by the
applicants. The occupiers stated that they would vacate the plot of
land on the condition that the applicants compensated them for the
construction they had erected or that they provided them with a
lawfully constructed flat in another location. The bailiff decided to
inform the third applicant of the occupiers' requests.
On
4 November 2002 the third applicant requested either the vacation of
the plots of land or the payment of compensation by the occupiers at
the indicated price. The third applicant consented to having the
price paid in instalments over a two-year period. He would come to an
agreement with the occupiers as regards the amount of the instalments
and the method of payment. Failing an agreement, the third applicant
affirmed that he would request that the plot of land be vacated.
The
bailiff's record of a meeting on 14 February 2003 between the third
applicant and both occupiers, states that,
“Following a series of discussions the parties did
not agree on the price offered by the creditor [the third applicant],
who requests [the amount of compensation per sq. m] over a three-year
period.
The debtors offered to pay a [lower] price at (...).
Given this disagreement, it was decided that the
creditor would request the mandatory enforcement of the judgment when
he was ready (kur të jetë gati)”.
On
the same day the bailiff decided to suspend the enforcement
proceedings. The relevant parts of the decision read:
“The creditor [the third applicant] has
unsuccessfully been trying to resolve the problem by friendly
settlement, save with debtor B.
Under these circumstances, the creditor requested
suspension of the enforcement proceedings until a later appearance
before the bailiff at which he would request the mandatory execution
as regards the vacation of the plot occupied by M. and D. This has
also been reflected in the record of 14 February 2003.”
5. Proceedings concerning the removal of 255 sq. m from the Land
Register
The
Durrës Land Registry (“the Land Registry”) entered
in the land register, inter alia, G.'s title to a plot of land
measuring 975 sq. m, despite the fact that the Supreme Court's
judgment of 2 April 2001 had recognised her property rights over a
plot of land measuring 720 sq. m (see paragraph 23 above).
On
an unspecified date the applicants initiated proceedings with the
District Court seeking the removal of 255 sq. m from G.'s title of
property as entered in the Durrës Land Registry.
On
24 December 2003 the District Court decided to suspend the
proceedings pending the outcome of the proceedings for recovery of
the property (see paragraph 50 below).
On
20 April 2004, following an appeal by the applicants, the Court of
Appeal quashed the District Court's decision of 24 December 2003 on
the ground that there was no connection between the two sets of
proceedings as each of them could be decided upon independently, and
remitted the case to the same court for continuation of the
proceedings.
On
7 January 2005 the District Court decided to suspend the proceedings
until the parties had provided updated copies of mortgage
certificates issued by the Land Registry.
On
30 May 2005, following an appeal by the applicants, the Court of
Appeal quashed the District Court's decision of 7 January 2005 and
remitted the case to the same court for continuation of the
proceedings.
On
16 January 2006 the District Court, after having received the updated
mortgage certificates and the property plans, decided that there was
no overlap between the applicants' property and that of G. That
decision was upheld by the Court of Appeal on 20 November 2006.
6. Injunction proceedings against construction works carried out
by G.
On an unspecified date G.
commenced construction works, which allegedly encroached upon the
plot of land belonging to the applicants. On 17 June 2003, following
proceedings initiated by the applicants, the District Court issued an
injunction ordering G. to suspend the construction works since the
buildings encroached upon the applicants' property.
On
20 June 2003 the District Court ordered the bailiffs to enforce the
injunction of 17 June 2003. On 30 October 2003 the bailiffs decided
not to enforce it because G. had not encroached upon the applicants'
property.
On 16 December 20003, following an action initiated by
the applicants in accordance with Article 610 of the Code of Civil
Procedure, the District Court set aside the bailiffs' decision of 30
October 2003. It found that the bailiffs had exceeded their powers as
they were not authorised to overrule a court decision. The decision
was upheld by the Court of Appeal on 20 April 2004.
On
an unspecified date in 2004 G. lodged an action with the District
Court requesting that the writ of execution of 20 June 2003 be set
aside in the light of the District Court's decision of 20 May 2004
(see paragraph 51 below). On 18 March 2005 the District Court
dismissed her request on the basis of the Court of Appeal's decision
of 24 November 2004, according to which the merits of the case would
be heard by a different bench of the District Court (see paragraph 52
below).
7. Proceedings concerning the recovery of property occupied by G.
In view of G's construction works, which had
apparently encroached upon the applicants' property, on an
unspecified date in 2003 the applicants initiated proceedings
for recovery of possession of their property. In the meantime G.
filed a counter civil claim requesting the applicants to vacate her
plot of land, which was allegedly occupied by their buildings.
On 20 May 2004 the District
Court concluded, on the basis of an expert valuation concerning the
overlap of the properties, that the applicants had occupied a plot of
172.12 sq. m of G.'s property. It also found that G. had occupied a
plot of 200.52 sq. m of the applicants' property. The District Court
ordered G. to compensate the applicants in the amount of 2,556 United
States dollars (USD) for a plot of 28.4 sq. m, which was the
difference between the plots of land occupied by each party to the
proceedings. Accordingly, it dismissed the applicants' civil claim
and also decided to lift the injunction that had been issued on 17
June 2003 (see paragraphs 46 above).
On 24 November 2004, following an appeal by the
applicants, the Court of Appeal found that the District Court had not
examined the parties' updated property titles, particularly in the
light of some changes that had taken place to their properties over
the years. Accordingly, it quashed the District Court's decision and
remitted the case to the same court for a fresh examination by a
different bench.
On
10 June 2005 the Supreme Court declared G.'s appeal inadmissible in
accordance with Article 472 of the Code of Civil Procedure (no valid
grounds of appeal). It accordingly upheld the Court of Appeal's
decision.
On
25 April 2006, on the basis of an expert valuation, the District
Court found that the properties overlapped in respect of a plot of
255 sq. m. It concluded that that plot of land belonged to the
applicants. The District Court did not find any occupation of G.'s
property by the applicants, but ruled that G. had occupied a plot of
347 sq. m that belonged to the applicants. It rejected G's request to
pay compensation for the occupation of that plot of land as this was
not envisaged under the law. It ordered G. to vacate and return the
plot of 347 sq. m to the applicants. The decision was upheld by the
Court of Appeal on 5 March 2007.
On
25 April 2007 the District Court ordered the bailiffs to enforce its
judgment of 25 April 2006. By a letter of 7 June 2007 the applicant
informed the Court that the writ of execution of 25 April 2007 was
unlikely to be enforced given the presence of two apartment blocks on
the occupied plot of land.
On
an unspecified date G. lodged an action with the District Court
requesting the suspension of the writ of execution in respect of one
of the illegal buildings, whose status she was trying to legalise. No
further information about the enforcement proceedings has been
submitted to the Court.
II. RELEVANT DOMESTIC LAW
A. The Constitution of Albania
The
relevant sections of the Constitution of Albania have been set out in
Beshiri and Others v. Albania (no. 7352/03, § 20,
22 August 2006).
B. Code of Civil Procedure
Article
171 of the 1981 Code of Civil Procedure (“the CCP”),
which was in force until 1 June 1996, provided that decisions could
be quashed for serious procedural violations, inter alia, when
the case was tried in the absence of other parties without their
having been informed of the hearing dates.
Section
9 of Law no. 7574 of 24 June 1992, which amended the Code of Civil
Procedure of 1981 in force at the material time, provided that the
Court of Cassation was empowered to examine the lawfulness of court
decisions by way of an application for supervisory review (kërkesë
për mbrojtje ligjshmërie)
lodged by the President of the Court of Cassation or the General
Prosecutor. The provision did not impose time-limits for applying for
such a review.
As
provided by the 1996 CCP, which abrogated the Code of Civil Procedure
of 1981, supervisory review (rekurs në interes të
ligjit) was an extraordinary remedy that enabled the Supreme
Court (the new name for the Court of Cassation) to reopen proceedings
where judgments had become final. Between 1996 and its abolition in
2001, by virtue of Law no. 8812 of 17 May 2001 the supervisory-review
procedure underwent several legislative changes.
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
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 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 appeals has no suspensive
effect on the execution.
The bailiff may decide to suspend execution at the
request of the creditor in accordance with Article 615 of the CCP.
The parties may challenge the bailiff's decision to suspend
enforcement at the district court in accordance with Article 617 of
the CCP.
C. The Property Act
The
relevant sections of the Property (Restitution and Compensation) Act
have been set out in Beshiri and Others v. Albania (no. 7352/03,
§§ 21-29, 22 August 2006); Driza v. Albania
(no. 33771/02, §§ 36-43, ECHR 2007 ...
(extracts); and Ramadhi and Others v. Albania (no. 38222/02,
§§ 23-30, 13 November 2007).
THE LAW
The
applicants complained under Article 6 § 1 of the Convention of a
violation of the principle of legal certainty as a result of the
quashing of a final judgment, the non-enforcement of a final court
decision and the length of the proceedings.
The
relevant parts of Article 6 § 1 of the Convention provide:
““In the determination of his civil rights
and obligations ..., everyone is entitled to a fair ... hearing
within a reasonable time... by [a] ... tribunal...”
They
also complained that after eleven years of proceedings they are still
not able to recover possession of the property allocated to them by
virtue of the Supreme Court's decision of 2 April 2001.
Article
1 of Protocol No. 1 to the Convention 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.”
I. ADMISSIBILITY OF THE COMPLAINTS
Legal certainty: quashing of the final Durrës District
Court's judgment of 11 April 1995
The
applicants complained that, under the supervisory-review procedure,
the then Court of Cassation's decision of 2 February 1996 quashed the
Durrës District Court's final decision of 11 April 1995, thereby
breaching the principle of legal certainty.
The
Government argued that this complaint was incompatible ratione
temporis with the provisions of the Convention in so far as the
Court of Cassation's decision of 2 February 1996 was adopted at a
time when the Convention had not entered into force in respect of
Albania.
In
this connection the Court reiterates that it is competent to examine
events from 2 October 1996 onwards, when the recognition by Albania
of the right of individual petition took effect. The Court therefore
finds that the above complaint, relating to facts prior to 2 October
1996, is incompatible ratione temporis with the provisions of
the Convention and must be rejected in accordance with
Article 35 § 4.
Non-enforcement of final court judgments
The
Court notes that the enforcement proceedings in respect of the
District Court's decision of 25 April 2006 are still pending. It
further notes that the applicants have raised no specific complaint
in respect of the conduct of these proceedings. The Court does not
see any reason to do so of its own motion.
The
Court notes that the applicants' complaint also concerns the
non-enforcement of the Supreme Court's decision of 2 April 2001.
It considers that the applicants may legitimately claim to be victims
in light of the continuing violation of the Convention, given the
prolonged non-enforcement of the Supreme Court's decision of 2 April
2001. The six-month rule is therefore not applicable in this
situation (see Karpova v. Ukraine, no. 12884/02, § 23,
29 November 2005). This complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. The
Court further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
The length of the proceedings
The
Court notes that a number of proceedings concerned the applicants'
title to the same property. While the judicial authorities could have
joined the proceedings, they were nevertheless different, involving
different parties and concerning different legal arguments.
The
Court further notes that the parties' arguments focused on the length
of the reopening proceedings which ended on 14 July 2003, the date on
which the applicants were informed of the Constitutional Court's
decision.
The
Court considers that this complaint 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 complaint
inadmissible have been established and therefore declares it
admissible.
The applicants' complaint under Article 1 of Protocol No. 1 to
the Convention concerning the non-enforcement of the Supreme Court's
decision of 2 April 2001
The
Court considers that this complaint 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.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
A. Non-enforcement of the Supreme Court's decision of 2 April 2001
1. The parties' submissions
The
applicants observed that the Supreme Court's decision of 2 April
2001 had not yet been enforced. Even though on paper they owned 3,616
sq. m, they did not exercise effective possession of their property
as it was still occupied.
The
Government contended that the enforcement proceedings of the Supreme
Court's decision of 2 April 2001 had been adjourned on several
occasions at the applicants' requests. Despite negotiations conducted
between the private parties concerning the amount of compensation, at
the applicants' request the bailiffs had decided to suspend the
enforcement proceedings until further notice. The Government
therefore concluded that the delays in the enforcement proceedings
could be attributed to the applicants, who continued to negotiate the
amount of compensation with the occupiers and did not raise any
complaints against the bailiffs' decision.
2. The Court's assessment
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 on the ground of
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 the applicants' attitude to enforcement appears to
have been influenced by the negotiations with the occupiers on the
amount of compensation. They requested a delay in the enforcement in
September and October 2001. Following a deadlock in the negotiations
with the occupiers, on 16 January 2002 the applicants requested the
bailiff to proceed with the enforcement of the judgment in respect of
M. and D. On 4 February 2002 the bailiff decided to adjourn the
forced execution owing to the applicants' absence.
The
Court doubts whether the bailiff's decision of 4 February 2002 was
reasonable. In the first place, it transpires from the record that
the bailiff did not go to the site to undertake any action for the
demolition of the occupiers' buildings with a view to ensuring
enforcement. Secondly, the Court does not find the bailiff's
reasoning about the absence of the applicants a relevant
justification: no legal ground was invoked or relied upon to require
the presence of the applicants in the course of mandatory enforcement
proceedings. Thirdly, no other objectively justified limitations on
the bailiff's ability to act have been put forward by the Government.
On
9 September 2002 the applicants reiterated their wish to proceed with
the enforcement of the final judgment. The Court considers
ineffectual the bailiff's decision of 10 September 2002 to attempt
another voluntary enforcement. Such measure had previously proved
unsuccessful. Rather, the bailiff should have proceeded with coercive
measures to enforce the judgment.
Furthermore,
the Court finds the occupiers' requests of
16 September 2002
unreasonable given that it had been decided by the Supreme Court's
decision of 2 April 2001 that they were unlawfully occupying the
applicants' property. The existence of a final and enforceable
judgment in the applicants' favour is indicative of the fact that
their litigation was meritorious (see Cebotari and Others v.
Moldova, nos. 37763/04, 37712/04, 35247/04, 35178/04 and
34350/04, § 45, 27 January 2009). The applicants
cannot be held responsible for any costs that could have resulted
from, or been associated with, the occupiers' eviction. The Court
notes that the applicants were consistent from 16 January 2002 to 14
February 2003 in their requests about the enforcement of the Supreme
Court's decision of 2 April 2001.
Confronted
with the occupiers' unreasonable requests, the bailiff should have
taken immediate steps to secure mandatory enforcement. On the
contrary, on 14 February 2003 he decided to suspend the enforcement
again. The decision of 14 February 2003, of which the applicants took
cognisance by signing it, constituted an act that could have been
challenged before the domestic courts (see paragraphs 48 and 64
above). In the present case, the applicants failed to do so and,
accordingly, they cannot be regarded as having exhausted the domestic
remedies available to them under the Albanian law.
Having regard to the above considerations, the Court
finds that there has been a breach of Article 6 § 1 of the
Convention on account of the
non-enforcement of the Supreme
Court's decision of 2 April 2001 between 28 June 2001 and 14
February 2003.
B. The length of the proceedings
1. The parties' submissions
The
applicants complained of the unreasonable length of the domestic
proceedings, which started on an unspecified date in 1995 and
concluded with the Constitutional Court's decision of 10 July 2003.
They lasted over eight years for eight levels of jurisdiction. The
applicants contended that, considering what was at stake for them,
namely the cessation of their property's occupation, the domestic
courts did not hear their case within a reasonable time.
The
Government argued that in the light of the complexity of the case,
the attitude and conduct of the authorities, the applicants'
behaviour, and other elements, the proceedings had been conducted
within a reasonable time. The Government also pointed to the
dismissal of the case by the District Court on 21 June 1996 owing to
the applicants' failure to appear, which had contributed to the
length of the proceedings (see paragraph 17 above).
2. The Court's assessment
The
Court reiterates that it is competent to examine events from
2
October 1996 onwards, when the recognition by Albania of the right of
individual petition took effect. It may, however, have regard to
facts prior to ratification inasmuch as they could be considered to
have created a situation extending beyond that date or may be
relevant for the understanding of facts occurring after that date
(see Broniowski v. Poland (dec.) [GC], no. 31443/96, §
74, ECHR 2002 X).
However,
in the light of its finding of a violation under Article 6 § 1
of the Convention about the non-enforcement of the Supreme Court's
decision of 2 April 2001 between 28 June 2001 and 14 February 2003,
it does not have to rule separately on the merits of the length of
proceedings complaint (see Lizanets v. Ukraine, no. 6725/03, §
48, 31 May 2007).
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
A. The parties' submissions
The applicants submitted that they had recovered possession of a plot
measuring only 664 sq. m through selling it to other parties. They
maintained that the non-enforcement of the Supreme Court's decision
of 2 April 2001 had adversely affected their right to effective
enjoyment of their possessions, which were occupied by other parties.
The
Government, referring to the applicants' conduct during the
enforcement proceedings in respect of the Supreme Court's decision of
2 April 2001, contended that their right of property had not
been disproportionately infringed. The domestic proceedings had been
fair and the applicants had obtained a ruling on their right of
property in the Supreme Court's decision.
B. The Court's assessment
The
Court notes that it has already established in its case-law the
principles relating to the alleged violation of an applicant's
property rights owing to the State's failure to ensure the
enforcement of a final judgment issued against a private party. In
particular, in the case of Fuklev v. Ukraine the Court found
as follows:
“89. The Court reiterates that by
virtue of Article 1 of the Convention, each Contracting Party 'shall
secure to everyone within [its] jurisdiction the rights and freedoms
defined in ... [the] Convention'. The obligation to secure the
effective exercise of the rights defined in that instrument may
result in positive obligations for the State. In such circumstances,
the State cannot simply remain passive and 'there is ... no room to
distinguish between acts and omissions'....
91. As regards the right guaranteed by
Article 1 of Protocol No. 1, those positive obligations may entail
certain measures necessary to protect the right to property even in
cases involving litigation between private individuals or companies.
This means, in particular, that States are under an obligation to
ensure that the procedures enshrined in the legislation for the
enforcement of final judgments... are complied with.
92. The Court considers that the failure of
the bailiffs to act and the domestic courts' failure to exercise
appropriate control over the situation, created permanent uncertainty
as to the enforcement of a judgment in the applicant's favour and as
to the payment of the debt owed to him. Consequently, the applicant
had to cope with that uncertainty during a lengthy period of time...
93. Having regard to the foregoing
considerations and to its findings in respect of Article 6 § 1
of the Convention, the Court is of the view that the manner in which
the enforcement proceedings were conducted, their total length and
the uncertainty in which the applicant was left, upset the 'fair
balance' that had to be struck between the demands of the public
interest and the need to protect the applicant's right to the
peaceful enjoyment of his possessions. Consequently, the State failed
to comply with its obligation to secure to the applicant the
effective enjoyment of his right of property, as guaranteed by
Article 1 of Protocol No. 1.” (no. 71186/01, 7 June 2005)
Applying
these principles and having regard to the findings set out in
paragraphs 79-86 above, the Court considers that owing to the
bailiffs' failure to take adequate and sufficient measures with a
view to securing enforcement of the Supreme Court's decision of 2
April 2001 in favour of the applicants from 28 June 2001 to 14
February 2003, they were left in a situation of uncertainty and have
been unable to fully enjoy their possessions. Accordingly, there has
been a violation of Article 1 of Protocol No. 1.
IV. APPLICATION OF 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.”
A. Damage, costs and expenses
The
applicant claimed 2,036,211 euros (EUR) in respect of pecuniary
damage and EUR 10,000 in respect of non-pecuniary damage. As regards
the claim for pecuniary damage, the applicant estimated the value of
the property at EUR 236,211 and the loss of investment he would have
made at EUR 1,800,000.
In
addition, the applicants claimed 650,000 leks (approximately 5,542
euros) and 334,600 leks (approximately 2,853 euros) for the costs and
expenses incurred before the domestic courts and those incurred
before this Court. They failed to submit supporting documents in
relation to the expenses incurred in the domestic proceedings.
The
Government did not submit any comments.
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 inadmissible the complaints about the
quashing of a final judgment under Article 6 § 1 of the
Convention and the non-enforcement from 14 February 2003 onwards of
the Supreme Court's decision of 2 April 2001 and the remainder of the
application admissible;
Holds that there has been a violation of
Article 6 § 1 of the Convention as regards the non-enforcement
of the Supreme Court's decision of 2 April 2001 between 28
June 2001 and 14 February 2003;
3. Holds that it does not consider it necessary to
examine the complaint about the length of the proceedings under
Article 6 § 1 of the Convention;
4. Holds that there has been a violation of Article 1 of
Protocol No. 1 to the Convention as regards the failure to enforce
the Supreme Court's decision of 2 April 2001 between 28 June 2001
and 14 February 2003;
5. Holds that the question of the application of Article 41 is
not ready for decision;
accordingly,
(a) reserves
the said question as a whole;
(b) invites
the Government and the applicants to submit, within the forthcoming
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 December 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
