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Besnik SHARRA v Albania - 29975/06 [2011] ECHR 2209 (6 December 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/2209.html
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[2011] ECHR 2209
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FOURTH
SECTION
DECISION
Application no.
29975/06
by Besnik SHARRA
against Albania
The
European Court of Human Rights (Fourth Section), sitting on
6 December 2011 as a Chamber composed of:
Lech
Garlicki,
President,
David
Thór Björgvinsson,
George
Nicolaou,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. De Gaetano,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
regard to the above application lodged on 19 July 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 Besnik Sharra, is a Belgian national who was born in
1959 and lives in Brussels. He was represented before the Court by
Mr A. Hajdari, a lawyer practising in Tirana. The Albanian
Government (“the Government”) were represented by their
then Agents, Ms S. Mëneri and Mrs E. Hajro.
The
facts of the case, as submitted by the parties, may be summarised as
follows.
A. Proceedings relating to the recovery of the
applicant’s money
On
7 September 1995 the applicant entered into a loan contract with a
private company, UCMK, through one of its shareholders, G.M. He
agreed to lend the amount of 250,000 US dollars from 7 September 1995
to 7 December 1995, with an interest rate of six per cent per
month. When the company defaulted, the applicant lodged an action
with the Vlora District Court to recover the debt under the loan
contract.
On
13 August 1996 the Vlora District Court (“the District Court”)
ordered UCMK, which was represented by G.M. to pay back the principal
amount, including the interest accrued. In the absence of an appeal,
the District Court’s decision became final and enforceable.
A
writ of execution was issued for the enforcement of the District
Court decision on 3 September 1996, as a result of which UCMK’s
property – a light bulb factory – was seized by the Vlore
Bailiff’s Office. There is no information regarding any
developments in the proceedings following the seizure.
On
an unspecified date in the beginning of 1997 the applicant fled the
country and was granted political asylum in Belgium. He did not
return to Albania until 2002.
B. Bankruptcy proceedings against the private company
By
a request of UCMK shareholders which had reached the registry on 29
September 1997, the District Court declared bankruptcy proceedings
open in respect of UCMK on 3 March 1998. In the light of reports and
inspections conducted by the general assembly of creditors, the court
decided that no reorganisation plan could be considered viable as the
company did not have the financial means by which to satisfy the
requests of its creditors.
By
a decision of 17 April 1998, the District Court approved the list of
creditors that had been drawn up by the assembly of creditors,
including the outstanding amounts due. It would appear that UCMK
shareholders omitted the applicant’s name from the list of
creditors that they had submitted to the District Court pursuant to
section 6 of the Bankruptcy Act 1995. Consequently, the applicant’s
name was not included in the list of creditors approved by the
District Court.
The
District Court further declared the company bankrupt and recognised
the creditors as the shareholders of its assets. It assigned an
administrator (administrator), who, together with the
creditors, was to proceed with the assessment of the company’s
assets.
C. Enforcement of the District Court decision of 13
August 1996
In
2002 the applicant returned to Albania for a visit and enquired about
the enforcement of the District Court decision. He was informed that
none of UCMK’s property had been seized on his behalf and that,
consequently, the 1996 decision had not been enforced. The applicant
returned to Belgium on an unspecified date without taking any action.
In
2005 the applicant returned to Albania and on 5 September lodged a
request for the enforcement of the District Court decision.
On
6 October 2005 the bailiff ordered the seizure of G.M.’s
property without specifying it.
On
13 October 2005 UCMK’s property, the light bulb factory, was
seized.
On
23 November 2005 the bailiff attempted to sell the light bulb factory
at a public auction. It transpires that the bailiff’s office
was not aware of the District Court’s decision of 17 April 1998
regarding the bankruptcy of the company and the appointment of an
administrator.
A
letter of 23 December 2005 was sent by a lawyer to the Vlora tax
authorities enquiring about UCMK’s registration as a commercial
entity. A handwritten note in the bottom right-hand corner indicated
that no such company was registered with the tax authorities.
D. Administrator’s action for leave to appeal out
of time
On
an unspecified date the administrator lodged a complaint with the
Vlora District Court requesting leave to appeal out of time to enable
him to challenge the District Court decision of 13 August 1996. The
administrator maintained that he had not been aware of that court
decision or of the fact that the applicant was one of UCMK’s
creditors, since the applicant’s name did not appear on the
list of creditors drawn up by UCMK’s shareholders.
By
a decision of 30 March 2006 the District Court granted the
administrator’s action for leave to appeal out of time in
accordance with section 16 § 2 of the 1995 Bankruptcy Act. After
having initially summoned him to attend the proceedings, the District
Court proceeded in the applicant’s absence pursuant to Article
192 of the Code of Civil Procedure (“CCP”) as he was not
resident in Albania. The applicant became aware of the decision on an
unspecified date in 2006 and alleged that all time-limits for lodging
an appeal had expired by that time.
On
16 May 2006 the bailiff’s office decided to discontinue
enforcement of the writ of execution of 3 September 1996 on the
ground that the granting of leave to appeal out of time in the
administrator’s favour had stripped the District Court’s
1996 decision of its res judicata effect. The bailiff’s
office indicated that the District Court’s 1996 decision did
not constitute an enforceable title under the CCP.
E. The rehearing proceedings
On
12 April 2006 the administrator lodged an appeal with the Vlora Court
of Appeal (“the Court of Appeal”), claiming that there
had been serious procedural irregularities in the proceedings that
had led to the 1996 court decision.
Unable
to locate the applicant in order to summon him to the hearing, on 2
March 2007 the Court of Appeal issued a public notice for the hearing
of 30 March 2007 pursuant to Article 133 of the CCP.
On
30 March 2007 the Court of Appeal decided to quash the District Court
decision of 18 March 1996 on account of serious procedural
irregularities. It found that the District Court had failed to notify
and summon the other two shareholders of the company. It finally
remitted the case for fresh examination. The relevant parts of the
decision read as follows.
“By not properly determining the parties to the
proceedings and by not notifying the parties of the time and date of
the hearing, the examination of this case was in serious breach of
procedural rules and violated the provisions of Article 467 (ç)
and (d) of the CCP.
The first-instance court started the examination of the
case without notifying the defendant [that is, the company]. It erred
in the determination of the parties to the proceedings, because it
failed to obtain important evidence such as the [company’s]
articles of association, its statute and the court decision, from
which it could have found out who to summon to the hearing and the
exact address of the company’s seat. The court only summoned
G.M., who was one of the shareholders. There is no evidence in the
case file that he was authorised, or had any other prerogative, to
represent the company or take actions in its name.”
On
21 June 2007 the Court of Appeal issued a public notice stating the
outcome of its decision.
Following
three unsuccessful attempts to summon the applicant to a hearing, on
19 November 2007 the District Court issued a public notice to notify
the applicant of the hearing of 3 December 2007 pursuant to Article
133 of the CCP.
On
3 December 2007 the District Court decided in the applicant’s
absence to terminate the proceedings in accordance with
Article 179 § 1 of the CCP.
F. Administrator’s action for the criminal
prosecution of G.M.
On
9 March 2006 the administrator requested the prosecutor’s
office to institute criminal proceedings against G.M. for the
criminal offence of drawing up false statements, having regard to the
incorrect information he had submitted in the course of the
bankruptcy proceedings (see paragraph 7 above).
On
13 March 2006 the prosecutor’s office declined the request on
the strength of the statute of limitations and the Amnesty Act 2002.
G. Derogation of Albania from its obligations under the
Convention
By
note verbale of 4 March 1997, which was registered at the
Secretariat General on 10 March 1997, the Albanian Ministry of
Foreign Affairs, in accordance with Article 15 of the Convention,
informed the Secretary General of the Council of Europe of the
Government’s intention to derogate from its obligations under
the Convention. The relevant parts of the note verbale read as
follows (extracted from the original in English).
“I. In compliance with Article 16 of Law No
7491, dated 29.04.1991, "On Principal Constitutional
Provisions", on the proposal of the Government, the People’s
Assembly of the Republic of Albania took the decision to declare a
state of public emergency. Such a situation will be general, covering
the entire territory of the Republic of Albania. It started from
March 2nd, 1997, 17.35 hours, and will continue up to the moment of
the full reinstatement of constitutional and public order.
II. The imposition of the state of public emergency was
forced because of the very extraordinary situation that was created
in recent days in Albania. Some forces, making use of the protests
and the despair of citizens who lost their money from the failure of
financial pyramid schemes, organised groups of terrorists to perform
violent actions. Without organising peaceful gatherings, these groups
violated the law, the constitutional order, the life of the citizens,
institutions and the territorial integrity of the country, creating
thereby conditions to plunge Albania into a civil war. Being faced
with these attacks of extreme violence, the police forces have
preserved self control, by taking only defensive positions and
making no use of firearms, which avoided the prospect of a conflict
with unpredictable consequences. A few days later, the situation had
become extremely complicated, and reached a climax at the moment when
the imposition of the state of emergency was being discussed.
Though the Government made a proposal, the People’s
Assembly, after a wide and public discussion, with the intervention
of the President of the Republic, refused the proclamation of a
public emergency and ordered the temporary placement of some army
troops to help the police forces. With a view to having a dialogue
and awaiting the response of the protestors, the Government resigned.
On March 1st, 1997, a communist armed rebellion broke
out in Vlora and adjacent regions organised by the former Albanian
communists and the former Albanian secret police, in collaboration
with foreign secret services. Terrorist groups attacked the Southern
cities to take power by force of arms. The target of their attacks
were innocent people, municipalities, and the headquarters of the
police; jails were broken and ordinary criminals and killers were
armed, hundred of thousands millions of Leks were robbed from the
banks; the houses of citizens and the shops of the businessmen were
attacked. The clear aim was to terrorise the population, to paralyse
and to take over power by force.
...
IV. According to the Law No. 8194, dated
02.03.1997 ‘For the State of Public Emergency in Case of Grave
Infringement of the Constitutional and Public Order’, in the
event that the state of public emergency is announced, a regime of
special measures is to be established. The Council of Defence lead
all State activity to be aimed at dealing with the state of public
emergency. Under that state of public emergency, the Republic of
Albania took several measures derogating from its international
obligations. Those derogations are made to the extent strictly
required by the exigency of the situation, not inconsistent with our
constitutional law ‘For the Principal Constitutional
Provisions’, nor with international treaties to which the
Albanian State is a party, in particular the ‘Convention for
the Protection of Human Rights and Fundamental Freedoms’ and
the ‘International Covenant on Civil and Political Rights’.
They were made only for a restricted period of time. These
derogations consist of restricting some human rights and fundamental
freedoms of individuals. With regard to that issue, Article 41 of Law
No. 7692, dated 31.03.1993 "For the Human Rights and
Fundamental Freedoms", provides that "The exercise of some
specific rights may be temporarily restricted by law in a situation
of national emergency or war, with the exclusion of the rights
provided for in Articles 1 (right to life) ..., 3 (abolition of
torture), 6 (no enforcement to confess one’s guilt), 19
(freedom of conscience and religion), 25 (equality before the law),
39 (judicial restitution of the right), and 40 (guarantee of a fair
trial)".
According to the Law No. 8194, dated
02.03.1997 ‘For the State of Public Emergency in Case of Grave
Infringement of the Constitutional and Public Order’, as well
as the Law ‘On Some Measures in the Context of the State of
Emergency’, the specific restrictions on human rights and
fundamental freedoms, entailed by these derogations from our
international legal obligations, are as follows:
1. All armed rebels must hand over arms, munitions and
explosives by March 3, 1997, 14.00 hours. After this deadline, the
armed rebels in the battlefield will be shot without warning (Article
1).
2. All the gatherings in public places are forbidden
(Article 6)
3. All activities of political, sport, cultural or trade
union nature are forbidden (Article 6).
4. The free movement of people is forbidden during
defined hours of the day (between 20.00 and 07.00 hours) (Article 7).
5. Illegal gatherings in public places shall be
dispersed. In the event that it is impossible to carry out such
dispersal by other means, the police units are entitled to use
tear-gas, as well as firearms, to the extent indispensable to carry
out their own duty according to the law (Article 6).
6. Limits are imposed on the freedom of press and
information. Publication and distribution in the press and broadcasts
on the radio of reports which stir up and call for violent actions
against national security, the constitutional law, public security
and the life of the individual are prohibited. Daily press and media
are obliged to publish the full text of the official reports which
are directly related to the state of emergency. Press organs are
obliged to obtain an approval, prior to sale, of the material
intended to be published, from the local staff responsible for
execution of the state of emergency. The local staff has the right to
suspend any publication which violates this provision (Article 4).
...”
By
note verbale of 26 July 1997, which was registered at the
Secretariat General on 24 October 1997, the Albanian Ministry of
Foreign Affairs informed the Secretary General of the Council of
Europe that the Government were withdrawing their notice of
derogation under Article 15 of the Convention. The relevant parts of
the note verbale read as follows.
“The Ministry for Foreign Affairs of the Republic
of Albania presents its compliments to the Secretary General of the
Council of Europe and, referring to the content of Article 15.3 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms, has the honour of informing him that the People’s
Assembly of the Republic of Albania, when adopting the Law No. 8225
of 24 July 1997 ‘On the lifting of the state of public
emergency in the Republic of Albania’, decided to put an end to
the state of public emergency in the whole territory of the country.
As from that date, all the measures taken in application of the state
of public emergency have ceased to have effect.”
H. Relevant domestic law and practice
1. The Constitution
The
relevant parts of the Albanian Constitution read as follows.
“Article 142 § 3
State bodies shall comply with judicial decisions.”
2. The relevant case-law of the Constitutional Court
The
relevant case-law of the Constitutional Court concerning the breach
of an appellant’s right of access to court on account of the
non enforcement of a final court ruling has been described in
detail in the case of Gjyli v. Albania, no. 32907/07, §§
21–27, 29 September 2009.
3. Code of Civil Procedure (“CCP”)
The
relevant parts of the CCP read as follows.
Article 133
“In the event that the receiver [of the summons]
does not have a living abode, residence or temporary home in the
Republic of Albania or has not provided an address or appointed a
representative ..., he shall be notified of the [hearing] by way of
posting a copy of the document at the tribunal of the location where
the dispute shall be heard as well as on the notice board of the
administrative entity where he used to reside and, when that is
unknown, of that of his place of birth.
In the event that Albania has entered into bilateral or
multilateral agreements, the above-cited provision shall apply only
in so far as the notification is not possible in one of the ways
envisaged in those agreements.”
Article 179 – Legal consequences in the event
of default
“If the plaintiff or any of the parties do not
attend either the preparatory meeting or the hearing after having
been duly notified and without reasonable grounds, the court or the
single judge shall decide to terminate the proceedings (vendos
pushimin e gjykimit).
...”
Article 192 – Summoning a third party
“Each party may summon to the trial of the case a
person with whom he or she believes he or she has a shared interest
in the case or from whom a guarantee or compensation may be requested
if necessary for the completion of the case.
....
A third party can be summoned when he or she has a known
place of abode within the borders of the Republic of Albania and as
long as the trial of the case is still pending at first instance.”
Article 458 – Leave to appeal out of time
“A party which has forfeited the right to appeal
on reasonable grounds may submit a request to the court which adopted
the decision for leave to appeal out of time. ...”
Article 467 – Remittal of the case
The Court of Appeal may quash the decision of the
first-instance court and remits the case for fresh examination in the
event that:
...
ç) the case was heard in the absence of parties
to the proceedings, without having been informed of the date of
hearing;
d) the parties to the proceedings were improperly
identified and determined;
...”
Article 510 – Enforceable title (titujt
ekzekutivë)
“Execution of a decision may only be enforced on
the basis of an enforceable title. Enforceable titles include
...
(a) civil court’s decisions that have become
final. ...”
Article 511 – Writ of execution
“A valid title shall be executed at the request of
the creditor. A writ of execution shall be issued for this purpose.
It is issued
by the
court which made the decision in the cases provided for in
sub-sections (a) ... of the foregoing Article.”
Article 515 - Enforcement
“The writ of execution shall be enforced by the
bailiff at the request of the creditor ...”
Article 560 – Seizure of the property
“A court decision or other valid title shall be
enforced against the debtor’s immovable property by seizure of
the property.
The seizure shall be registered at the Office for
Registration of Immovable Property for the area where the writ of
execution was issued. The entry in the register shall indicate the
type, nature and [a description of] at least three borders of the
immovable property, its location and any mortgage or other property
rights attached to it.
A copy of the writ of execution shall be communicated to
the debtor.”
Article 567 – Sale by auction
“Once the property has been seized, the bailiff’s
office shall inform the debtor that the property will be sold [at
auction], if he does not fulfil his obligation within ten days. ....”
Article 568
“The announcement for the sale at auction shall be
posted at the bailiff’s office and at the site of the immovable
property. ...”
Article 610 – Challenging the bailiff’s
acts
“The parties may apply to the court executing the
decision in order to challenge an act or failure to act by the
bailiff’s office, within five days of the said act or omission
where the parties were present or summoned when the act was committed
and in other cases from the date when they were notified or received
knowledge of the act or refusal to act.”
Article 617 – Appeal against the suspension and
discontinuation of execution
“The suspension of the enforcement, unless ordered
by the court, as well as its discontinuation, shall be decided by the
bailiff.
An appeal may be lodged against such decisions to the
first-instance court ...”
4. The Bankruptcy Act 1995 (Law on Bankruptcy
Procedures, no. 8017, dated 25 October 1995)
The
Bankruptcy Act 1995, as in force at the material time, provided that
bankruptcy proceedings were to be conducted in court (section 3).
Were the proceedings to start on the strength of a legal action by
the creditor, he would need to prove that the debtor had defaulted on
payment. In any event, the debtor could also file a similar action
(section 5).
During
the proceedings, the court could question witnesses, summon experts
and hear evidence from the debtor (sections 5 and 7), who was obliged
to submit to the court, inter alia, an accurate list of all
his assets and their corresponding value, a list of creditors with
their names and addresses and the amount owed to each of them and a
list of any debtors with the corresponding amounts they owed to him.
The debtor assumed criminal responsibility for the veracity of the
lists (section 6).
The
opening of bankruptcy proceedings took place on the strength of a
court decision, which would, inter alia, fix a time-limit by
which all creditors could submit their claims and the respective sums
in Albanian leks, state the grounds that gave rise to their
participation in the bankruptcy proceedings as well as give their
accord for the distribution of sums obtained from the bankruptcy
proceedings (section 9). The district court would also decide to
place the debtor under compulsory administration by appointing an
administrator.
By
virtue of the opening of bankruptcy proceedings, the debtor lost the
right to possess and administer all his present and future property.
Any civil and arbitration proceedings in which the debtor was a party
were suspended on the initiation of bankruptcy proceedings. Judicial
rulings given before the initiation of bankruptcy proceedings in
respect of the enforcement of a court decision were no longer binding
at the start of bankruptcy proceedings (section 11).
In
the course of the discharge of his duties, the administrator acted
under the supervision of the court, which was empowered to replace
him, stating reasons (section 14). In accordance with section 16, the
administrator could lodge a civil claim against the debtor’s
legal actions in the event that the debtor had intentionally made the
position of one of the creditors worse and when this was known to the
third party; or if, in the year preceding the opening of the
bankruptcy proceedings, the debtor had intentionally made [the
creditors’] position worse in favour of other persons, in so
far as this can be proved and in so far as the administrator was
unaware of the disadvantage suffered.
The
Bankruptcy Act 1995 provided for the possibility of drafting a
restructuring plan (plani i riorganizimit), with a view to
final liquidation of the debtor. Such a plan required the court’s
approval (section 26-32). The administrator then proceeded with the
liquidation of the debtor and the distribution of the sums collected
to the creditors in accordance with the table of outstanding dues
that had been approved by the court (section 32).
The
Bankruptcy Act 1995 was repealed by Law no. 8901, dated 23 May
2002.
COMPLAINTS
The
applicant complained that the Court of Appeal decision of 30 March
2007 had effectively quashed the District Court final decision of
13 August 1996 and breached the principle of legal certainty
under Article 6 § 1 of the Convention. He further
complained that the authorities had failed to enforce the District
Court decision of 13 August 1996 within a reasonable time. He alleged
that the rehearing proceedings had been unfair.
The
applicant further complained under Article 1 of Protocol No. 1 that
he had been unable to recover the money awarded to him on account of
the District Court decision of 13 August 1996.
THE LAW
A. The complaints under Article 6 § 1 of the
Convention
The
applicant made three essential complaints under Article 6 of the
Convention namely, that there had been a breach of the principle of
legal certainty, that a final court decision in his favour had not
been enforced and that the rehearing proceedings had been unfair.
Article 6 § 1 of the Convention, in so far as relevant, reads as
follows.
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ...”
1. The alleged breach of the principle of legal
certainty
(a) The parties’ submissions
The
Government submitted that the authorities had been justified in
quashing a final and binding decision.
The
applicant complained that the authorities had quashed the final
decision of 13 August 1996 after eleven years. He alleged that the
Court of Appeal decision of 30 March 2007 had been arbitrary in that
the court had erred in the assessment of the facts. He maintained
that in 1996 the company had been duly represented by G.M.
In
the applicant’s view the domestic authorities had issued
confusing and contradictory judgments, which gave rise to a situation
of legal uncertainty. They had failed to secure his rights under the
Convention.
(b) The Court’s assessment
The
Court reiterates that the right to a fair hearing before a tribunal
as guaranteed by Article 6 § 1 of the Convention must be
interpreted in the light of the Preamble to the Convention, which
declares, in its relevant part, the rule of law to be part of the
common heritage of the Contracting States. One of the fundamental
aspects of the rule of law is the principle of legal certainty, which
requires, among other things, that where the courts have finally
determined an issue, their ruling should not be called into question
(see Brumărescu v. Romania, 28 October 1999, § 61,
Reports of Judgments and Decisions 1999-VII).
This
principle insists that no party is entitled to seek a reopening of
proceedings merely for the purpose of obtaining a rehearing and a
fresh decision in the case. Higher courts’ power to quash or
alter binding and enforceable judicial decisions should be exercised
for the purpose of correcting fundamental defects. The mere
possibility of two views on the subject is not a ground for
re-examination. Departures from that principle are justified only
when made necessary by circumstances of a substantial and compelling
nature (see, mutatis mutandis, Ryabykh v. Russia, no.
52854/99, § 52, ECHR 2003-X, and Pravednaya v. Russia,
no. 69529/01, § 25, 18 November 2004).
The
Court observes that the final decision of 13 August 1996 in the
applicant’s favour was set aside by way of the Court of Appeal
decision of 30 March 2007. The Court has to assess whether in the
present case the quashing of the final judgment in the applicant’s
favour was justified in the circumstances and whether a fair balance
was struck between the interests of the applicant and the need to
ensure the proper administration of justice.
The
Court notes that in the present case the Court of Appeal did not base
its assessment for quashing the decision of 13 August 1996 on an
erroneous application or interpretation of the substantive law by the
lower courts (contrast, for example, Vrioni and Others v. Albania,
no. 2141/03, §§ 52-60, 24 March 2009, and Driza v.
Albania, no. 33771/02, §§ 63-71, ECHR 2007 XII
(extracts)).
The
Court has previously found that a fundamental defect in the
proceedings, such as, in particular, a jurisdictional error, serious
breaches of court procedure, abuse of power, manifest errors in the
application of substantive law or any other weighty reasons stemming
from the interests of justice could, in principle, justify a
departure from the principle of legal certainty (see, in the context
of civil proceedings, Tolstobrov v. Russia, no. 11612/05,
§§ 17-20, 4 March 2010; Tishkevich v.
Russia, no. 2202/05, §§ 23-27,
4 December 2008; Protsenko v. Russia, no. 13151/04, §§
25-34, 31 July 2008; and Luchkina v. Russia, no. 3548/04,
§ 21, 10 April 2008; in the context of criminal proceedings, see
Lenskaya v. Russia, no. 28730/03, §§ 36-44,
29 January 2009; Fadin v. Russia, no. 58079/00, §§
33–36, 27 July 2006; Radchikov v. Russia, no.
65582/01, § 48, 24 May 2007; and Bratyakin v. Russia
(dec.), no. 72776/01, 14 April 2001). The Court notes that the Court
of Appeal found that the District Court’s decision had been
given in serious violation of procedural law. The District Court had
neglected to examine whether G.M. was empowered to represent the
company or act on its behalf and whether other defendants had been
properly identified and summoned to the proceedings. This omission
was serious and akin to failings which have previously disclosed
breaches of the principle of a fair trial (see Tishkevich,
cited above, § 25).
The
Court observes that the administrator became aware of the decision of
13 August 1996 long after it had become final. Through no fault of
his own, he had not been told of its existence. In order to protect
the interests of the debtor company’s creditors, whose list had
been finalised by virtue of the bankruptcy decision of 17 April 1998,
he decided to challenge the decision in the applicant’s favour.
In this connection, the Court also refers to section 11 of the
Bankruptcy Act 1995, which prevented the enforcement of a final court
decision given before the initiation of bankruptcy proceedings
against the debtor.
In
so far as the applicant contends that the Court of Appeal incorrectly
assessed the facts, the Court reiterates that the admissibility of
evidence is primarily a matter for regulation by national law and
that, as a general rule, it is for the national courts to assess the
evidence before them. The Court’s task under the Convention is
rather to ascertain whether the proceedings as a whole, including the
way in which evidence was taken, were fair (see Elsholz v. Germany
[GC], no. 25735/94, § 66, ECHR 2000 VIII).
In
this connection, following the administrator’s appeal of
12 April 2006, the applicant was invited to attend the
hearing of 30 March 2007. However, he could not be traced.
The domestic courts took further measures by issuing public notices
to notify the applicant of the hearing. When the applicant failed to
attend the hearing, they proceeded in absentia. The Court
finds that the domestic courts acted in accordance with the domestic
law and did what was reasonably expected of them, affording the
applicant the procedural safeguards of Article 6 § 1 of the
Convention. The applicant failed to specify any other lack of
procedural guarantee.
Having
regard to the foregoing, the Court considers that the circumstances
referred to were in their nature and significance such as to justify
the quashing of the final judgment and that this was not inconsistent
with the principle of legal certainty.
53. It
follows that this complaint is manifestly ill-founded within the
meaning of Article 35 § 3 and therefore inadmissible in
accordance with Article 35 § 4 of the Convention.
2. The alleged delayed non-enforcement of the District
Court’s decision of 13 August 1996
(a) The parties’ submissions
The
Government submitted that there had been no violation of the
applicant’s rights on three grounds. In the first place, the
enforcement of the decision of 13 August 1996 had been hampered by
the 1997 crisis that had negatively affected the proper
administration of justice and the bailiff system in Albania.
Secondly, in their view the final court decision could not have been
enforced in the light of bankruptcy proceedings having been brought
against the debtor company. The Government argued that the applicant
could not have legitimately expected to have the final court decision
enforced once the debtor company had been declared bankrupt. Thirdly,
the Government contended that the bailiff had taken the necessary
measures to enforce the final court decision by, for example, seizing
the debtor company’s assets.
The
applicant submitted that to date the decision of 13 August 1996 had
not been enforced. Whereas the bailiff had started its execution on
3 September 1996, no action had been taken from that date until
3 March 1998, when the company was declared bankrupt. The
applicant alleged that the Government had not derogated from their
obligations to respect the individual’s rights under Article 15
of the Convention.
The
applicant maintained that the execution of the court decision in his
favour had not been a complex matter. All the bailiff had had to do
was to seize the company’s assets and sell them at an auction.
In his view, the Government had failed to demonstrate any
justification for the authorities’ failure to enforce the
decision of 13 August 1996.
(b) The Court’s assessment
At
the outset the Court observes that where an applicant complains about
an inability to enforce a final court award in his or her favour, the
extent of the State’s obligations under Article 6 varies
depending on whether the debtor is a High Contracting Party within
the meaning of Article 34 of the Convention or a private person. In
the former case, the Court’s case-law usually insists on the
State complying with the respective court decision both fully and
timeously (see, for example, Burdov v. Russia, no. 59498/00,
§§ 33-42, ECHR 2002-III). When the debtor is a private
person, the position is different since the State is not, as a
general rule, directly liable for the debts of private persons and
its obligations under the relevant Convention provisions are limited
to providing the necessary assistance to the creditor in the
enforcement of the respective court awards, for example, through a
bailiff service or bankruptcy procedures (see, for example,
Shestakov v. Russia (dec.), no. 48757/99, 18 June
2002; Krivonogova v. Russia (dec.), no. 74694/01, 1
April 2004; and Kesyan v. Russia, no. 36496/02,
19 October 2006). Thus, when the authorities are obliged to act
in order to enforce a final judgment and they fail to do so, their
inactivity may, in certain circumstances, engage the State’s
responsibility under Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 (see Scollo v. Italy, 28 September
1995, § 44, Series A no. 315-C, and Fuklev v. Ukraine,
no. 71186/01, § 84, 7 June 2005).
In
the instant case, the applicant entered a loan agreement with a
private company. Following the company’s default, on 13 August
1996 the District Court found in the applicant’s favour and
ordered the recovery of money from the company. The Court will
examine whether the measures applied by the authorities were adequate
and sufficient and whether they acted diligently in order to assist
the applicant in the execution of the District Court decision of 1996
(see Fociac v. Romania, no. 2577/02, § 70, 3 February
2005, and Fuklev, cited above, § 84).
Following
the adoption of the writ of execution on 3 September 1996, the
bailiff took prompt action to enforce the decision of 13 August 1996
by seizing the company’s property. However, those efforts were
hampered by the overall situation that adversely affected the normal
operation of State structures in Albania in 1997. The Government had
documented the situation in the 1997 declaration for the derogation
of their obligations under the Convention. Having in mind the
public-order problems that Albania undoubtedly faced in 1997 and,
taking into account the Government’s declaration made in
accordance with Article 15 § 3 of the Convention, the Court
considers that the delay, at least as regards the period after 2
October 1996 – the date of the Convention’s entry into
force in respect of Albania – until the lifting of the state of
public emergency, was justified (see, mutatis mutandis,
Shestakov (dec.), cited above).
Furthermore,
the Court notes that in September 1997 bankruptcy proceedings were
opened in respect of the private company. In April 1998 the private
company was declared bankrupt. In this regard, the Court notes that
the authorities displayed due diligence in dealing with the
insolvency proceedings. It further notes that the respondent State
cannot be held liable for default of payment arising from an
enforceable claim owing to the bankruptcy of a “private”
debtor (see Sanglier v. France, no. 50342/99, § 39,
27 May 2003; contrast Cone v. Romania,
no. 35935/02, § 31, 24 June 2008).
It
is to be regretted that the applicant’s name was not included
in the debtor company’s list of creditors, particularly having
regard to the fact that all domestic proceedings were instituted
before the Vlora District Court. In this connection, it notes that
the administrator unsuccessfully lodged a criminal complaint about
the prosecution of G.M. for making false statements. Furthermore, at
no stage of the proceedings did the applicant complain of any
restrictions of his rights to challenge the insolvency proceedings,
including the decision of 17 April 1998, or to be included in the
company’s list of creditors (contrast Saggio v. Italy,
no. 41879/98, §§ 42-44, 25 October 2001).
The
Court further notes that the applicant left Albania on an unspecified
date in 1997. It was only in September 2005 that he attempted to set
the enforcement machinery in motion in respect of the decision of
13 August 1996. The applicant did not refer to any other measure
that the authorities should have taken during that time but failed to
do. Moreover, nothing in the case file leads the Court to conclude
that the company has been replaced by a similar structure, which
would make an equivalent enforcement possible, or that the bankruptcy
procedure has not been concluded or that there is money available for
the applicant’s compensation. The applicant has not furnished
any documents or proof to the contrary.
The
fact that the bailiff took action in 2005 at the request of the
applicant does not alter the Court’s conclusions that the
company had been declared bankrupt in 1998 and that the decision in
the applicant’s favour could not be enforced. The Court further
points to section 11 of the Bankruptcy Act 1995, which provided that
court rulings that had been handed down against a party before the
initiation of its bankruptcy proceedings were no longer binding after
the commencement thereof.
In
these circumstances, taking into account that the enforcement
proceedings were opened, that the bailiff’s actions to enforce
the District Court decision of 1996 were justifiably hindered by the
exceptional public order problems in Albania in 1997, that the
respondent State had derogated from its obligations in accordance
with Article 15 of the Convention, that the company went bankrupt and
that the applicant failed to show due diligence in connection with
the enforcement of a final court decision in his favour, the Court
considers that the events could not be said to have deprived the
applicant’s right of access of all useful effect.
As
to the non-enforcement after the quashing of the decision, the Court
considers that no separate issue arises in this connection, having
regard to its finding concerning the quashing of the decision of 13
August 1996 (see paragraphs 44–53
above).
66. It
follows that this complaint is manifestly ill-founded within the
meaning of Article 35 § 3 and therefore inadmissible in
accordance with Article 35 § 4 of the Convention.
3. The alleged unfairness of the rehearing proceedings
before the District Court
In
his submissions of 17 December 2009 the applicant, relying on Article
6 § 1 of the Convention, complained that the District Court had
arbitrarily and unjustifiably dismissed the case.
The
Court notes that the rehearing proceedings were ended by the decision
of 3 December 2007 in which it was decided to terminate the
proceedings. Whereas it does not appear that the applicant lodged an
appeal against that decision or sought leave to appeal out of time,
the Court further notes that this complaint was lodged outside the
six-month time-limit laid down by Article 35 § 1 of the
Convention.
The
Court therefore decides to reject this complaint in accordance with
Article 35 §§ 1 and 4 of the Convention.
B. The complaint under Article 1 of Protocol No. 1 to
the Convention
The
applicant complained that his right to the peaceful enjoyment of his
property had been breached as a result of the non-enforcement of the
District Court’s decision of 13 August 1996.
Article
1 of Protocol No. 1 provides that:
“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.”
The
Court considers that, having regard to its findings concerning the
non-enforcement of the District Court’s decision of 13 August
1996 (see paragraphs 57–66
above), this complaint is manifestly ill-founded
within the meaning of Article 35 § 3 and therefore inadmissible
in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı Lech Garlicki Deputy Registrar President
