CASE OF BUSHATI AND OTHERS v. ALBANIA
(Application no. 6397/04)
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:
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:
I. THE CIRCUMSTANCES OF THE CASE
A. Restitution of property
B. Domestic courts' proceedings
1. Ordinary proceedings
2. Supervisory review
3. Reopening of proceedings
4. Enforcement proceedings concerning the Supreme Court's decision of 2 April 2001
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.
“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)”.
“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
6. Injunction proceedings against construction works carried out by G.
7. Proceedings concerning the recovery of property occupied by G.
II. RELEVANT DOMESTIC LAW
A. The Constitution of Albania
B. Code of Civil Procedure
C. The Property Act
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...”
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
Non-enforcement of final court judgments
The length of the proceedings
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
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
2. The Court's assessment
B. The length of the proceedings
1. The parties' submissions
2. The Court's assessment
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
A. The parties' submissions
B. The Court's assessment
“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)
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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
FOR THESE REASONS, THE COURT UNANIMOUSLY
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;
(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