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ELTARI v. ALBANIA - 16530/06 [2011] ECHR 400 (8 March 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/400.html
Cite as:
[2011] ECHR 400
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FOURTH
SECTION
CASE OF
ELTARI v. ALBANIA
(Application
no. 16530/06)
JUDGMENT
(merits)
STRASBOURG
8 March
2011
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 Eltari v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 15 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 16530/06) 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 an Albanian national, Mr Zamira Eltari, née
Sharra, (“the applicant”), on 25 April 2006.
The
applicant, who had been granted legal aid, was initially represented
by Mr F. Braka, who was replaced by Mr A. Tartari and subsequently by
Mr S. Puto, all lawyers practising in Tirana. The Albanian Government
(“the Government”) were represented by their then Agent,
Ms S. Meneri.
The
applicant alleged that there had been a breach of Article 6 § 1
of the Convention as regards the unfairness of the domestic
proceedings and the non-enforcement of a final court decision. She
also relied on Article 13 of the Convention and Article 1 of Protocol
No. 1 to the Convention as regards the lack of an effective remedy
concerning the amount of her compensation.
On
21 November 2006 the President of the Section to which the case was
allocated 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
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings concerning the restitution of property
The applicant was born in 1956 and lives in Tirana.
On
28 December 1994 the Vlora Commission on Property Restitution and
Compensation (“the Commission”) recognised the
applicant's and other heirs' inherited title to a number of plots of
land, amongst which a plot of land measuring 10,500 sq. m. As the
restitution of that plot of land was impossible since it was
occupied, the Commission decided that the applicant and the other
heirs would be compensated in one of the ways provided for by law.
On 11 September 1997, relying on the right of first
refusal, the applicant concluded a sale contract with the Vlora
regional office of the National Privatisation Agency for the purchase
of a pharmacy and its corresponding plot of 79.5 sq. m, which was
allegedly part of the plot of land measuring 10,500 sq. m.
The
chemist of the pharmacy lodged a complaint with the Vlora prosecutor
office alleging that the sale contract was unlawful.
On
12 February 1998 the Vlora prosecutor initiated civil proceedings
with the Vlora District Court (“the District Court”)
seeking the nullity of the sale contract and the nullity of the
Commission decision. The chemist intervened as a third party.
On
15 December 1999 the District Court declared null and void, in part,
the Commission's decision in so far as it had restored to the
applicant the plot of 79.5 sq. m which corresponded to the site of
the pharmacy. Relying on an expert's report, it found that the plot
of 79.5 sq. m had been expropriated in 1920, as a result of which the
Property Act was inapplicable ratione temporis. Thus, the
applicant could not claim a property right over that plot of land
pursuant to the Property Act in so far as it had not been
expropriated by the communist regime. Furthermore, the court decided
to annul the contract for the purchase of the pharmacy since any such
contract was based on the premise that only the owner of the site had
the right of first refusal over the buildings constructed on it.
However, the operative part of the judgment stated that the applicant
would be compensated only in respect of 79 sq. m, the remainder of
the property rights over 10,500 sq. m having been declared null and
void.
On
21 March 2000 the Court of Appeal upheld the District Court's
decision. It found that the prosecutor had locus standi to
lodge a civil action in accordance with the Prosecutor's Office
Organisation and Operation Act. It also held that the civil action
was not time-barred as it had been lodged pursuant to the Property
Act. It further dismissed the applicant's complaint about the
assessment of evidence and the credibility of the expert's report.
On
20 March 2001 the Supreme Court dismissed the applicant's appeal
since it did not contain any lawful ground of appeal in accordance
with Article 472 of the Code of Civil Procedure.
On
21 May 2001 the applicant filed a supervisory review request (rekurs
në interes të ligjit) with the Supreme Court Joint
Benches.
On
28 January 2003 the Supreme Court Joint Benches dismissed the
applicant's supervisory review request in the light of impending
review proceedings that she had instituted (see “The review
proceedings” below).
On
an unspecified date the applicant filed a constitutional appeal.
On
4 November 2005 the Constitutional Court, sitting in plenary session,
dismissed the applicant's appeal finding that there had been no
breach of the right to fair hearing. It found that the prosecutor's
civil action had been supported by the intervention of the chemist
who had full interests in the case and did not disclose any breach of
the applicant's right to a fair trial. It further held that there was
no other compelling evidence that the fairness of the proceedings had
been tainted.
B. The review proceedings
On
an unspecified date the applicant requested revision of the decision
of 15 December 1999.
On
6 February 2002 the District Court dismissed the revision request.
On
13 May 2003, following the applicant's appeal, the Court of Appeal
upheld the decision of 15 December 1999.
It
would appear that the applicant's appeal to the Supreme Court was
dismissed on an unspecified date.
C. Proceedings concerning the interpretation of the decision of
15 December 1999
On
12 January 2005 the applicant lodged a request with the District
Court for the interpretation of its decision of 15 December 1999,
arguing that there existed a discrepancy between the reasoning and
the operative part of the decision.
On
18 February 2005 the District Court entertained her request and
rectified the operative part of the decision of 15 December 1999. It
confirmed that the applicant's property rights could not be
recognised in respect of 79 sq. m and that the applicant should be
compensated as regards the plot of land measuring 10,500 sq. m in one
of the ways provided for by law.
The
decision became final and binding on 7 March 2005, no appeal having
been filed against it.
To
date, the authorities have still not complied with the District Court
decision of 15 December 1999, as rectified and interpreted by
the decision of 18 February 2005.
II. RELEVANT DOMESTIC LAW
A. The Constitution
The
relevant provisions of the Albanian Constitution read:
Article 42 § 2
“In the protection of his constitutional and legal
rights, freedoms and interests, or in the case of a criminal charge
brought against him, everyone has the right to a fair and public
hearing, within a reasonable time, by an independent and impartial
court established by law.”
Article 142 § 3
“State bodies shall comply with judicial
decisions.”
Article 131
“The Constitutional Court shall decide: ... (f)
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.”
B. The Property Act
The
relevant domestic law as regards property restitution and
compensation in Albania has been described in the judgments of
Gjonbocari and Others v. Albania, no. 10508/02, §§
36-43, 23 October 2007, Driza v. Albania, no. 33771/02, §§
36-43, 13 November 2007, Ramadhi and Others v. Albania, no.
38222/02, §§ 23-30, 13 November 2007.
New
and substantial legislative measures have been enacted amending the
principal 2004 Property Act since the adoption of those judgments.
The principal amendments are as follows:
1. The 2005 Property Act (Law no. 9388 of 4 May 2005)
Section
3 extended until 31 December 2007 the time-limit for the completion
of the examination of applications for the recognition, restitution
and compensation of immovable properties, with the exception of
payment of the amount of compensation, the time-limit for which was
fixed for 2015.
2. The 2006 Property Act (Law no. 9583 of 17 July 2006)
Section
13 established the Agency for the Restitution and Compensation of
Properties (“the central Agency”) which replaced the
State Committee on the Restitution and Compensation of Properties
(“the State Committee”). The central Agency, which was
headed by a Director, had its seat in Tirana and was made up of
twelve regional Agency offices.
According
to section 14, the regional Agency office was responsible for the
initial examination of applications for the recognition of property
rights, in response to which it decided on the restitution of
property and/or compensation in lieu thereof. Section 15 set
the time-limit for the submission of applications for the recognition
of property rights for
1 October 2007.
Section
16 stipulated that an appeal against a decision of the regional
Agency office could be lodged with the central Agency. The decision
of the central Agency could be appealed against to the Tirana
District Court within thirty days of its notification.
Section
21 extended until 31 June 2008 the time-limit for the completion of
the examination of applications for the recognition, restitution and
compensation of immovable properties, with the exception of payment
of compensation.
Section 22 provided for the establishment of the
In-kind Compensation Fund (IkCF) alongside the Financial Compensation
Fund (“FCF”). Within sixty days from the Act's entry into
force, the Government had to approve the list of properties to be
allocated to the IkCF.
3. The 2007 Property Act (Law no. 9684 of 6 February 2007)
Section
1 provided that the central Agency was responsible for examining
claims for in-kind and financial compensation. The central Agency was
also responsible for examining appeals against the decisions of
regional Agency offices.
Section
2 reiterated that the regional Agency offices continued to be
responsible for the initial examination of applications for the
recognition of property rights. The claimant or the State Advocate's
Office had the right to appeal against that decision within thirty
days to the central Agency, which was the highest administrative
body. Such an administrative decision was amenable to judicial review
in accordance with the provisions of the Code of Civil Procedure.
The 2008 Property Act (Law no. 9898 of 10 April 2008)
Section
1 extended until 31 December 2008 the time-limit for the submission
of applications for the recognition of property rights and the
restitution of properties by the regional Agency offices. It also
provided for the possibility for a claimant to be given a new
time-limit by way of a court decision.
According
to section 2, the completion of the examination of applications for
the recognition of property rights and restitution of properties
would be finalised on 30 June 2009, with the exception of the payment
of the amount of compensation, the deadline for which was fixed for
2015.
Section
3 extended until 31 December 2008 the deadline for the allocation of
properties to the IkCF.
The 2009 Property Act (Law no. 10095 of 12 March 2009)
Section
2 provided that in addition to the budgetary appropriations, the
allocations obtained by virtue of this law and other donors, the FCF
would also be made up of proceeds obtained through auctions of State
properties' which had not been the subject of a Commission decision.
6. The 2009 Property Act (Law no. 10207 of 23 December 2009)
Section
6 abolished the regional Agency offices. It stated that the archives
of those offices would be transferred to the central Agency.
According to section 1, the central Agency would complete the
examination of applications for recognition of property rights and
restitution of properties lodged with the former regional Agency
offices. The central Agency continued to examine appeals lodged with
it against former regional Agency offices' decisions.
According
to section 5, the claimant or the State Advocate's Office had the
right to appeal against the central Agency's decision within thirty
days of its notification to the Tirana District Court.
Section
7 set the deadline for the completion of the examination of
applications for the recognition and restitution of properties for
31 December 2011.
7. The 2010 Property Act (Law no. 10308 of 22 July 2010)
The
2010 Property Act chiefly introduced the possibility of requesting a
revision of decisions of former Commissions / regional Agency
offices.
Section
4 extended until 31 December 2011 the deadline for the allocation of
properties to the IkCF.
C. Council of Ministers' Decisions
1. Council of Ministers' Decisions (“CMDs”) on awards
from the Financial Compensation Fund (CMD no. 13 of 17 November 2005;
CMD no. 758 of 16 November 2006; CMD no. 566 of 5 September 2007; CMD
no. 1343 of 4 June 2008 and, CMD no. 487 of 6 May 2009)
Pursuant to Article 23 of the 2004 Property Act which
established the Financial Compensation Fund, the Government adopted
the
above-mentioned decisions, between 2005 and 2009, in respect
of the award of financial compensation to former owners.
In
2005 financial compensation was awarded in respect of compensation
claims arising out of the Tirana Commission's decisions. In 2006
financial compensation was awarded in respect of compensation claims
arising out of the decisions of the Tirana and Kavaja Commissions. In
2007 the group of beneficiaries was expanded to include former owners
who were in possession of a Commission decision issued with respect
to cities for which a property valuation map had been approved and
issued. In 2008 and 2009 all former owners, who were entitled to
compensation, following a Commission / regional Agency's decision,
were eligible to apply for financial compensation.
According
to the CMDs adopted between 2005 and 2008, a claimant was required to
lodge a standard application for financial compensation with the
central Agency in Tirana, furnishing, inter alia, the Commission /
regional Agency's decision that recognised his right to compensation.
Only those former owners who had not previously received compensation
were entitled to financial compensation from 2005 to 2008. The 2009
CMD provided that a former owner was entitled to financial
compensation on the condition that he had not benefited from: a)
previous compensation; b) partial restoration/restitution of the
property; c) the right to first refusal; d) the implementation of the
Act on the Distribution of Land (Law no. 7501 of 19 July 1991).
Applications
would be examined in chronological order on the basis of the
Commission's / regional Agency's decision date and number. The amount
of financial compensation, which was to be calculated on the basis of
property valuation maps, was limited to a maximum of 200 sq. m.
The
lodging of an application entailed the payment of a processing fee.
Former owners who had been unsuccessful in their application for
financial compensation in a preceding year could re-submit their
application in the following year(s) once they had paid the
processing fee.
None
of those decisions provided for the award of compensation to holders
claims arising out of a final, enforceable court decision.
2. CMDs on property valuation maps (CMD no. 555 of 29 September
2007; CMD no. 653 of 29 August 2007 and CMD no. 139 of 13 February
2008; and CMD no. 1620 of 26 November 2008)
By
virtue of the above-mentioned decisions, two of which were adopted in
2007 and two in 2008, the Government approved and issued property
valuation maps as listed above. The maps included the reference price
per square metre throughout the country.
The
first decision fixed the price of land for the regions of Berat,
Gjirokastër, Vlorë and Dibër; the second decision
fixed the price of land for the regions of Lezhë, Dibër,
Korçë and Kukës; the third decision fixed the price
of land for the regions of Fier, Elbasan, Tirana, Vlorë, Durrës
and Shkodër. The fourth decision contained an updated price list
for certain cities.
3. CMDs on in-kind compensation of former owners (CMD no. 567 of 5
September 2007)
The
2006 Property Act provided for the establishment of an In-kind
Compensation Fund (“IkCF”). The Government would adopt
the procedures for the allocation of properties covered by the IkCF.
By
decision of 5 September 2007 the Government laid down the criteria
and the procedures for the determination of State properties covered
by the IkCF (CMD no. 567 of 5 September 2007). Section 1 lists the
types of properties, for example: a) public immovable property which
is located in tourist areas; b) properties of the Ministry of Defence
which are not used by the armed forces and have been approved by the
President of the Republic; c) available agricultural land belonging
to the Ministry of Agriculture; d) forests, pastures and meadows; and
e) property of State institutions which falls outside their intended
activity.
The
Agency and its regional offices are responsible for checking the
legal status of each property as submitted by the respective State
institution. The Agency submits the final list of immovable
properties for inclusion in the IkCF to the Minister of Justice. The
Government are to approve the list and publish it in the Official
Journal.
To
date, it would appear that no such list has yet been approved.
D. Code of Civil Procedure
Articles
324-333 govern the adjudication of administrative disputes, following
exhaustion of all administrative remedies. Article 324 provides that
a party may bring an action before a court with a view to revoking or
amending an administrative decision. Under Article 325 a party must
argue that the decision is unlawful and that his or her own interests
and rights have been violated directly or indirectly, individually or
collectively.
With
regard to the appeal procedure before the Supreme Court, the Code of
Civil Procedure, in so far as relevant, reads as follows:
Article 472
“Decisions of the Court of Appeal and the District
Court may be appealed against to the Supreme Court on the following
grounds: (a) the law has not been complied with or has been applied
erroneously; (b) there have been serious breaches of procedural rules
(pursuant to Article 467 of the Code); (c) there have been procedural
violations that have affected the adoption of the decision. ...”
Article 480
“An appeal [to the Supreme Court] shall be
declared inadmissible if it contains grounds other than those
provided for under the law. The inadmissibility of appeals shall be
decided upon in deliberations in camera.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the judicial review proceedings concerning
the nullity of the sale contract of 11 September 1997 had been
unfair. She also alleged that the authorities had failed to enforce
the District Court's judgment of 15 December 1999, as rectified and
interpreted on
18 February 2005.
Article
6 § 1 of the Convention, in so far as relevant, reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. The unfairness of the proceedings concerning the
nullity of the sale contract
The
Government contended that the domestic proceedings had been fair. In
their view, the applicant's arguments were adequately addressed by
the domestic courts. She was given the possibility of being heard
before the courts, which had, in turn, summoned witnesses and ordered
experts' reports. The Government contended that the applicant's
complaint concerned the outcome of the proceedings.
In
so far as the applicant complains about the assessment of evidence
and the interpretation of the domestic law, the Court reiterates that
it is not within its province to substitute its own assessment of the
facts for that of the domestic courts and, as a general rule, it is
for these courts to assess the evidence before them and interpret the
domestic law. The Court's task is to ascertain whether the
proceedings in their entirety, including the way in which evidence
was taken, were fair (see Jakupi v. Albania (dec.), no.
11186/03, 1 December 2009).
The
Court considers that, in the present case, the applicant was duly
represented before the domestic courts. She was afforded the
possibility of submitting her arguments and defending her views. The
domestic courts, after ordering experts' reports and assessing all
the evidence, gave reasoned decision and dismissed her claim. The
Court is unable to discern any arbitrariness in the domestic courts'
decisions.
For
the above reasons, the Court considers that this complaint under
Article 6 § 1 of the Convention is manifestly ill-founded within
the meaning of Article 35 § 3 and therefore inadmissible in
accordance with Article 35 § 4 of the Convention.
Non-enforcement of the decision of 15 December 1999 as
interpreted by the decision of 18 February 2005
1. Admissibility
Without
relying on any particular remedy, the Government contended that the
applicant had not availed herself of all available remedies for the
alleged non-enforcement of the decision of 15 December 1999.
The
applicant stated that she had exhausted all domestic remedies.
The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. The existence of the remedies must
be sufficiently certain, in practice as well as in theory, failing
which they will lack the requisite accessibility and effectiveness;
it falls to the respondent State to establish that these various
conditions are satisfied (see, most recently, Demopoulos
and Others v. Turkey [GC]
(dec.), nos. 46113/99, 3843/02,
13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, §§
69-70, ECHR 2010 ...).
In
the present case, the Court notes that the Government did not
explicitly rely on a specific remedy to be exhausted by the
applicant. However, the Court considers that the question of the
existence of effective remedies as regards the non-enforcement of the
decision of 15 December 1999, as rectified and interpreted by the
decision of 18 February 2005, and in particular the effectiveness of
the remedies offered by the Property Act, notably those introduced
after the adoption of this Court's judgment in the case of Driza,
should be joined to the merits and examined in conjunction with the
applicant's Article 13 complaint (see paragraphs 78-86 below).
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further finds that it is not inadmissible on any other founds. It
must therefore be declared admissible.
2. Merits
(a) The parties' submissions
The
Government pointed out that the operative part of the decision of 15
December 1999 had revoked the applicant's property rights over the
plot of land measuring 10,500 sq. m. Consequently, the applicant had
no interest in the enforcement of the above judgment. It was not
until
18 February 2005 that the District Court interpreted the
1999 decision and recognised the applicant's right to compensation in
respect of the said plot. For this reason, the Government claimed
that the non-enforcement period, which started to run from 18
February 2005, had not been excessive.
The
applicant maintained that, to date, the decision of 15 December 1999
which recognised her right to compensation has not been enforced.
(b) The Court's assessment
The general principles under Article 6 § 1 of the
Convention concerning the non-enforcement of final court judgments
are set out in Gjyli v. Albania, no.
32907/07, §§ 43-44, 29 September 2009; and Beshiri
and Others v. Albania, no. 7352/03, §§ 60-61, 22 August
2006.
The
Court notes that there was an initial confusion over the enforcement
of the decision of 15 December 1999, which arose from the discrepancy
between the reasoning of the District Court and the operative part of
the said decision. The situation was remedied by virtue of the
decision of 18 February 2005, which ordered compensation to be paid
to the applicant in respect of the plot of land measuring 10,500 sq.
m.
The
Court further observes that the decision of 18 February 2005 became
final and binding and, to date, the authorities have failed to take
any measures to enforce that decision in the applicant's favour.
Moreover, it recalls that it has already found a violation of Article
6 § 1 of the Convention on account of the non-enforcement of a
final court decision awarding compensation in lieu of
restitution in the cases of Beshiri and Others, cited above,
§§ 62–66; Driza, cited above, §§
87–94; and Vrioni and Others v. Albania and Italy, nos.
35720/04 and 42832/06, §§ 54-61,
29 September
2009. It sees no reason to depart from those findings in the present
case.
The Court therefore concludes that there has been a
violation of the applicant's right of access to a court under Article
6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH
ARTICLE 6 § 1 OF THE CONVENTION
The
applicant complained under Article 13 of the Convention that there
was no effective remedy to enforce a final court decision awarding
compensation in lieu of the restitution of property.
Article
13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further finds that it is not inadmissible on any other founds. It
must therefore be declared admissible.
B. Merits
The Court recalls that in its judgment in the case of
Driza it found the following:
“118. The Court notes that the Property Act 1993
(which was repealed by the Property Act 2004, which in turn was
amended by the Property Act 2006) provided for various forms of
compensation when the original property could not be returned to the
former owner (...). The Property Act 1993 left the determination of
the appropriate form of compensation to the Council of Ministers,
which was to define the detailed rules and methods applicable to the
provision of compensation. According to the findings of the Supreme
Court in its judgment of 7 December 2000, the bodies competent to
deal with compensation issues had yet to be set up (...).
Notwithstanding the entry into force of the Property Act 2004 the
situation did not change. It was not until 28 April 2005 that
Parliament passed an Act determining the methodology for the
valuation of property for compensation purposes. Section 5 of that
Act left the task of implementing this methodology to the State
Committee on Property Restitution and Compensation, which should have
issued the appropriate site plans to allow the properties to be
valued. However, to date those plans have not been adopted.
119. Consequently, the Court considers that, by not
setting up the appropriate bodies to deal with the compensation
issues or adopting site plans for the valuation of the properties,
the Government failed to establish an adequate procedure in relation
to the compensation claims. Moreover, it is unlikely that the
Government will put in place such a system imminently or within a
span of time sufficiently short to enable the settlement of the
dispute related to the determination of the applicant's rights.”
In
the instant case, the Court observes that, since the date of adoption
of the judgment in Driza, the Government have enacted new
legal provisions as regards the award of financial compensation, the
adoption of property valuation maps and the establishment of the IkCF
(see “The relevant domestic law” section above). The
Court must therefore determine whether the measures adopted
constitute an effective remedy within the meaning of Article 13 of
the Convention.
The
Court reiterates that Article 13 of the Convention gives direct
expression to the States' obligation, enshrined in Article 1 of the
Convention, to protect human rights first and foremost within their
own legal system. It therefore requires that the States provide a
domestic remedy to deal with the substance of an “arguable
complaint” under the Convention and to grant appropriate relief
(Burdov v. Russia (no. 2),
no. 33509/04, § 96, ECHR 2009 ...; and, Yuriy
Nikolayevich Ivanov v. Ukraine, no.
40450/04, § 63, ECHR 2009 ... (extracts)).
The
scope of the Contracting States' obligations under Article 13 of the
Convention varies depending on the nature of the applicant's
complaint; the “effectiveness” of a “remedy”
within the meaning of this provision does not depend on the certainty
of a favourable outcome for the applicant. At the same time, the
remedy required by Article 13 must be “effective” in
practice as well as in law in the sense either of preventing the
alleged violation or its continuation, or of providing adequate
redress for any violation that has already occurred (see Burdov
(no. 2), cited above, § 97; and, Yuriy
Nikolayevich Ivanov, cited above, §
64).
In
the instant case the Court observes at the outset that the Government
decisions on the award of financial compensation explicitly stipulate
that a claimant could vindicate his right to compensation on the
basis of a Commission decision. The provisions on financial
compensation do not apply to claimants, like the applicant in the
instant case, who have an enforceable compensation claim by virtue of
a final court decision.
Having
regard to the information in its possession, the Court further notes
that, in practice, the Agency has awarded compensation only to
claimants who are in possession of a Commission decision. There have
been no awards to a claimant possessing a final, enforceable court
decision.
Moreover,
the Court is unable to identify any other measures which have been
adopted with a view to securing the enforcement of a final court
decision awarding compensation to an applicant in lieu of the
restitution of property. The Government have not submitted any
evidence to the contrary.
In
the light of the foregoing, the Court considers that the applicant
did not have an effective remedy enabling her to secure the
enforcement of her right to compensation recognised by virtue of a
final court judgment.
Accordingly, there has been a violation of Article 13
in conjunction with Article 6 § 1 of the Convention.
Consequently, the Court dismisses the Government's objection that the
applicant failed to exhaust effective domestic remedies.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO 1 TO
THE CONVENTION
The
applicant alleged that the failure to pay her compensation as
interpreted by the decision of 18 February 2005 entailed a breach of
Article 1 of Protocol No. 1, which 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.”
Admissibility
The
Court considers that the complaint under this head 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.
B. Merits
The
Government submitted that the applicant's right to compensation was
recognised only by virtue of the decision of 18 February 2005. The
Government relied on an official document which outlined the process
of property restitution and compensation. According to the document,
the process of restitution and compensation could not occur
overnight. The delays associated therewith were related to the
transitional process which the country was going through. Any delays
were not due to negligence or unwillingness on the part of the
respondent State, but to the complex nature of the reforms undertaken
in the property field.
The
applicant maintained that she had an asset in the form of
compensation awarded by a final court decision. However, during all
these years she had been unable to enjoy possession thereof.
The
Court reiterates that a “claim” can constitute a
“possession” within the meaning of Article 1 of Protocol
No. 1 if it is sufficiently established to be enforceable (see Stran
Greek Refineries and Stratis Andreadis v. Greece, judgment of 9
December 1994, Series A no. 301-B, p. 84, § 59).
The
Court observes that the District Court's decision of
15 December
1999 as interpreted by the decision of 18 February 2005 provided the
applicant with an enforceable claim to compensation in lieu of
the restitution of property.
The
Court recalls its case-law that the impossibility for an applicant to
obtain the execution of a final court judgment in his or her favour
constitutes an interference with the right to the peaceful enjoyment
of possessions, as set out in the first sentence of the first
paragraph of Article 1 of Protocol No. 1 (see, among other
authorities, Burdov v. Russia, no. 59498/00, § 40, ECHR
2002-III).
The
Court notes that it has already found a violation of Article 6 §
1 of the Convention because of the authorities' failure to enforce a
final court decision awarding compensation (see paragraphs 72-75
above).
The
Court further notes that it has already found a violation of an
applicant's property rights on account of the authorities' failure to
provide compensation arising out of a final court decision in the
cases of Beshiri and Others, cited above, §§ 95-103;
Driza, cited above, §§ 101-109; and Vrioni and
Others v. Albania and Italy, nos. 35720/04 and
42832/06, §§ 71-77,
29 September 2009. The Court
sees no reason to reach a different conclusion in the circumstances
of the instant case.
There has accordingly been a violation of Article 1 of
Protocol No. 1 to the Convention.
IV. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
The
Court notes that in the instant case it has identified shortcomings
in the Albanian regulatory framework as regards the lack of machinery
to secure the enforcement of a final court decision awarding
compensation in lieu of the restitution of property. Such
shortcomings should be addressed as a matter of urgency having regard
to the number of persons in the applicant's situation and to the
scope for further applications to the Court raising the same issues
(see Driza, cited above, § 122).
Whereas
the respondent State remains free to choose the means by which it
will discharge its legal obligations under Article 46 of the
Convention, provided that such means are compatible with the
conclusions set out in the Court's judgment (see Burdov
v. Russia (no. 2), cited above, §
136), the Court considers that general measures at national level are
undoubtedly called for in the execution of the present judgment.
The
Court observes that the problems at the root of the violations of
Article 6, Article 13 in conjunction with Article 6 and Article 1 of
Protocol No. 1 found in this case are complex and structural. They
require the adoption and implementation of measures of a legislative
and administrative character, involving various authorities. The
Court considers that the respondent State should take adequate
legislative, administrative and financial measures in order to
provide for awards of compensation, without undue delay, ordered by a
final court decision in lieu of the restitution of property.
The respondent State should, for example, designate a competent
enforcement body, provide sufficient human and material resources,
establish clear and simplified rules of procedure for the collection
of claims, lay down realistic and binding time-limits for their
processing and enforcement, allocate the necessary budgetary funds,
and remove all obstacles with a view to securing the expedient award
of financial or in-kind compensation, having regard to the principles
established in the Court's case-law.
The
Court recalls that it is of crucial importance that a court decision
against the State, having acquired the force of res judicata,
should be enforced without undue delay. The applicant should not be
required to bear the burden for the execution of res judicata
judgments given in his favour against the State (see, mutatis
mutandis, Metaxas v. Greece, no. 8415/02, § 49, 27 May
2004). The State's failure to enforce res judicata judgments
undermines public confidence in the judiciary and respect for the
rule of law, which is one of the fundamental principles of a
democratic society and an inherent element in all the Articles of the
Convention (see, mutatis mutandis, Stere and Others v.
Romania, no. 25632/02, § 53,
23 February 2006).
B. 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.”
The applicant did not specify a total claim in
respect of pecuniary damage. She claimed that she owned one twentieth
of the property and sought compensation in respect of 525 sq. m. She
submitted that the average price of the land was between 550 and 700
euros per sq. m, whereas the price of the plot of land belonging to
the pharmacy was between 2,500 and 3,000 euros. She further sought
100,000 euros in respect of the value of pharmacy's building. She did
not submit any claim in respect of
non-pecuniary damage.
The Government rejected the applicant's claims.
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 applicant.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Joins to the merits the Government's preliminary
objection regarding the applicant's failure to exhaust domestic
remedies in respect of the decision of 15 December 1999 as
interpreted by the decision of
18 February 2005;
Declares the complaint concerning the unfairness
of the proceedings under Article 6 § 1 inadmissible 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
decision of 15 December 1999 as interpreted by the decision of 18
February 2005;
Holds that there has been a violation of
Article 13 in conjunction with Article 6 § 1 of the
Convention and dismisses in consequence the Government's
above-mentioned preliminary objection;
Holds that there has been a violation of
Article 1 of Protocol No. 1 to the Convention;
Holds that the question of the application of
Article 41 is not ready for decision;
accordingly,
(a) reserves
the said question in whole;
(b) invites
the Government and the applicant to submit, within 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 March 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
