European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

CASE OF ALIÇKA AND OTHERS v. ALBANIA

 

(Applications nos. 33148/11, 33151/11, 33823/11, 46103/11, 72334/11, 78960/11)

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

7 April 2016

 

 

 

 

This judgment is final. It may be subject to editorial revision.




In the case of Aliçka and Others v. Albania,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Kristina Pardalos, President,
          Paul Mahoney,
          Pauliine Koskelo, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 15 March 2016,

Having noted that the underlying legal issue in the applications below is already the subject of well-established case-law of the Court (see Manushaqe Puto and Others v. Albania, nos. 604/07, 43628/07, 46684/07 and 34770/09, 31 July 2012),

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in six applications (nos. 33148/11, 33151/11, 33823/11, 46103/11, 72334/11 and 78960/11), 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 13 Albanian nationals. Details of the applicants and representatives are set out in Appendix No. 1 attached to the judgment.

2.  The Albanian Government (“the Government”) were represented by their Agent, Ms A. Hicka of the State Advocate’s Office.

3.  On 20 December 2013 the applications were communicated to the Government.

4.  As regards applications nos. 33148/11, 33151/11, 33823/11, 46103/11 and 72334/11, the Government failed to submit written observations on the applicants’ claims for just satisfaction by the time-limit allowed.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  Application no. 33148/11: Aliçka and Vasha

5.  On 30 May 2003 the Gjirokastra Commission recognised, amongst others, the applicants’ inherited property rights over an agricultural land measuring 655,400 sq. m. The applicants and other heirs would be awarded compensation in the sum of 2,297,398 Albanian leks (“ALL”) in respect of the entire land.

6.  To date, no compensation has been paid.

B.  Application no. 33151/11: Kreka

7.  On 15 September 1995 the Korça Commission recognised, amongst others, the applicant’s inherited property rights over some land measuring 2,800 sq. m of which 300 sq. m were restored. Since the remaining plot measuring 2,500 sq. m, which was situated within the village boundaries and used to be arable land, was occupied, the applicant and other heirs would be compensated in State bonds in the event the buildings located on the land were not privatised (“u kompensohet me obligacion shtetëror sipërfaqja 2,500 m2 ish tokë arë, brenda vijave kufizuese të Zvarishtit, në rast se objektet (...) nuk do të privatizohen”). The Commission stated that the applicant owned one sixths of the land.

 8.  On 21 December 1998 the Korça Commission recognised, amongst others, the applicant’s inherited property rights over another plot of arable land and meadow measuring 19,796 sq. m. Since the arable land and meadow were occupied, the applicant would be compensated in State bonds equivalent to a financial amount of ALL 36,890.

9.  To date, no compensation has been paid.

C.  Application no. 33823/11: Tahiri

 10.  On 10 April 1996 the Tirana Commission recognised, amongst others, the applicant’s inherited property rights over a plot of land measuring 766 sq. m of which 94 sq. m were restored. Since the remaining plot measuring 672 sq. m was occupied, the applicant and other heirs would be compensated in one of the ways provided by law.

11.  To date, no compensation has been paid.

D.  Application no. 46103/11: Theodhosi

12.  On 28 August 2000 the Kavaja Commission recognised, amongst others, the applicant’s inherited property rights over two plots of land totalling 17,500 sq. m. Since the plots of land were occupied, the applicant and other heirs would be compensated in kind in respect of a plot measuring 10,000 sq. m and in State bonds in respect of another plot measuring 750 sq. m. No decision was taken in respect of any right to compensation as regards the remaining plot measuring 6,750 sq. m.

13.  To date, no compensation has been paid.

E.  Application no. 72334/11: Nishe and Others

14.  On 13 December 1996 the Devoll Commission recognised the applicants’ inherited property rights over an agricultural land measuring 27,200 sq. m. The applicants would be awarded compensation by way of State bonds in the sum of ALL 367,000.

15. To date, no compensation has been paid.

F.  Application no. 78960/11: Benussi

16. On 23 June 1995 the Tirana Commission recognised the applicant’s inherited property rights over a plot of land measuring 836 sq. m of which 513 sq. m were restored. Since the remaining plot was occupied, the applicant would be compensated in one of the ways provided by law.

17.  On 17 March 2008 the Agency on Restitution and Compensation of Properties amended in part the Commission decision and decided that the applicant would be compensated in one of the ways provided by law even in respect of the plot of land measuring 513 sq. m.

18.  To date, no compensation has been paid.

II.  RELEVANT DOMESTIC LAW

19.  The relevant domestic law and practice has been described in detail in, inter alia, the judgment of Ramadhi v. Albania (no. 38222/02, 13 November 2007); Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, §§ 23-53, 31 July 2012) and, more recently, Sharra and Others v. Albania [Committee] (nos. 25038/08, 64376/09, 64399/09, 347/10, 1376/10, 4036/10, 12889/10, 20240/10, 29442/10, 29617/10, 33154/11 and 2032/12, §§ 33-43, 10 November 2015).

III.  COUNCIL OF EUROPE MATERIALS

20.  Relevant material was referred to in this Court’s judgments of Sharra and Others, cited above, § 44; Metalla and Others v. Albania [Committee] (nos. 30264/08, 42120/08, 54403/08 and 54411/08, §§ 15-17, 16 July 2015); Siliqi and Others v. Albania [Committee] (nos. 37295/05 and 42228/05, §§ 12-13, 10 March 2015); and Karagjozi and Others v. Albania [Committee] (nos. 25408/06, 37419/06, 49121/06, 1504/07, 19772/07, 46685/07, 49411/07, 27242/08, 61912/08 and 15075/09, §§ 36-38, 8 April 2014).

THE LAW

I.  JOINDER OF THE APPLICATIONS

21.  Given that all applications raise the same issue, the Court decides that they should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II.  ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AS WELL AS OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION ON ACCOUNT OF THE NON-ENFORCEMENT OF FINAL DECISIONS

22.  The applicants alleged that there had been a breach of Articles 6 § 1 and 13 of the Convention as well as of Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of final domestic decisions awarding them compensation in lieu of the restitution of their properties.

Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

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.”

Article 1 of Protocol No. 1 to the Convention reads as follows:

“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.”

A.  Admissibility

1.  As regards application no. 33151/11

23.  The applicant’s complaint about the non-enforcement of the Commission decision in respect of the plot of land measuring 300 sq. m is unsubstantiated. Therefore, the Court declares this complaint unsubstantiated and rejects it in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2.  As regards application no. 46103/11

24.  The applicant complained about the lack of compensation in respect of a plot of land measuring 6,750 sq. m (see paragraph 12 above). The Court notes that, in the absence of recognition of the right to compensation by the Commission in respect of that plot, the applicant cannot argue that she has a “claim” within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court declares this complaint incompatible ratione materiae and rejects it in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3.  As regards the remaining complaints

25.  The Government did not raise any objection concerning the admissibility of the remaining complaints.

26.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

27.  The Government did not dispute the merits of the applicants’ complaints and acknowledged that the applications were the subject of well-established case-law in the light of the judgment in the case of Manushaqe Puto and Others, cited above.

28.  Having regard to its findings in previous cases against Albania in respect of which the Government did not put forward any arguments that would warrant a departure therefrom (see, amongst others, Çaush Driza v. Albania, no. 10810/05, §§ 87-89 and §§ 91-94, 15 March 2011; Manushaqe Puto and Others, cited above, §§ 93-97 and the references cited therein; and more recently, Sharra and Others, cited above, §§ 49-51; Metalla and Others, cited above, §§ 29-31; Siliqi and Others, cited above, §§ 19), the Court finds that the domestic authorities’ failure over so many years to enforce the final domestic decisions and, notably, to pay the compensation awarded, breached the applicants’ rights under Article 6 § 1 and under Article 1 of Protocol No. 1 to the Convention.

29.  The Court also concludes that there was, and continue to be, no effective domestic remedy that allowed for adequate and sufficient redress on account of the prolonged non-enforcement of the final domestic decisions awarding compensation. There is accordingly a violation of Article 13 of the Convention (see Manushaqe Puto and Others, cited above, §§ 72-84 and the references cited therein).

III.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF PROCEEDINGS

30.  The applicants in application no. 78960/11 complained under Article 6 § 1 about the length of proceedings as a result of the non-enforcement of the Commission decision.

31.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds and therefore declares it admissible.

32.  The Court considers that, in view of the findings in paragraphs 28-29 above, the issue of the length of proceedings must be regarded as having been absorbed by the issue of non-enforcement (see, for example, Kutić v. Croatia, no. 48778/99, § 34, ECHR 2002-II, and Popova v. Russia, no. 23697/02, § 44, 21 December 2006).  The Court therefore finds that it is not necessary to examine this complaint separately.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  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

1.  The parties’ submissions

(a)  The applicants

(i)  General observations

34.  The applicants made the same submissions as those summarised in this Court’s judgment in the case of Sharra and Others, cited above, §§ 57-58.

 (ii)  Specific claims in respect of each application

35.  The applicants made claims in respect of pecuniary and non-pecuniary damage as tabulated in Appendix No. 2.

36.  As regards application no. 33148/11, relying on an expert’s report the applicants claimed that a reference price of 5 EUR/sq. m should be applied in respect of the agricultural land measuring 600,400 sq. m and a reference price of 7.2 EUR/sq. m in respect of the plot of land measuring 55,000 sq. m. They contended that they owned one quarter of the entire property.

37.  As regards application no. 33151/11, the applicant claimed that a reference price of 1,800 ALL/ sq. m in respect of forest land measuring 8,300 sq. m should be applied. He also claimed the loss of profits in respect of some walnut trees. He contended that he owned one fifths of the entire property.

38.  As regards application no. 33823/11, the applicant claimed that a reference price of 24,754 ALL/sq. m as indicated in the valuation maps 2008 should be applied. He did not make any concrete claim in respect of his share of property.

39.  As regards application no. 78960/11, the applicant claimed that the reference price of 120,000 ALL/sq. m as indicated in the valuation maps 2013 should be applied. The applicant contended that they owned the entire property.

40.  As regards application no. 46103/11, relying on an expert’s report, the applicant claimed that a reference price of 100 EUR/sq. m should be applied. She did not make any specific claim in respect of her share of property.

41.  As regards application no. 72334/11, relying on an expert’s report, the applicants claimed that a reference price of 2,000 ALL/sq. m should be applied. They contended that they owned the entire property.

(b)  The Government

(i)  General observations

42.  The Government made the same submissions as those summarised in this Court’s judgment in the case of Sharra and Others, cited above, §§ 69-71.

(ii)  Specific comments in respect of each application

43.  As regards applications nos. 33148/11, 33151/11, 33823/11, 46103/11 and 72334/11, the Government failed to submit any comments on the applicants’ claims for just satisfaction within the time limit fixed for that purpose (see also paragraph 4 above).

44.  As regards application no. 78960/11, the Government submitted that the applicant should be compensated on the basis of the valuation maps of 2014, according to which the reference price was 57,126 ALL/sq. m. They confirmed that the applicant was entitled to the entire property.

2.  The Court’s assessment

45.  The Court examined the same submissions made by the parties in its judgment in the case of Sharra and Others, cited above, §§ 78-88. It concluded that the pecuniary damage should be determined on the basis of the property valuation maps 2008 (see Sharra and Others, cited above, § 90; Manushaqe Puto and Others, cited above, § 125; and Vrioni and Others v. Albania (just satisfaction), nos. 35720/04 and 42832/06, §§ 33-39, 7 December 2010). The Court sees no reason to depart from those findings.

46.  As regards applications nos. 33148/11 and 72334/11, the Court notes that the Commission decisions had specified the amount of compensation to be awarded in value and by way of State bonds. The Court will thus award the applicants the corresponding amount, it being understood that the applicants in application no. 33148/11 are entitled to one quarter of the amount and the applicants in application no. 72334/11 to the whole sum.

47.  As regards application no. 33151/11, the Court notes that the Commission decisions did not recognise any property rights to forest land and walnut trees (see paragraphs 7-8 above). Therefore, the Court considers that no pecuniary damage should be awarded. However, the Court considers that the respondent Government should ensure the payment of an effective form of compensation to the applicant in respect of the plots of land, in accordance with the Commission decisions and the applicant’s share of property, within three months (see, for example, Vukelić v. Montenegro, no. 58258/09, § 107, 4 June 2013; Mikhaylova and Others v. Ukraine, no. 16475/02, § 40, 15 June 2006; and Lisyanskiy v. Ukraine, no. 17899/02, § 34, 4 April 2006).

48.  As regards application no. 33823/11 the Court considers that the applicants are entitled to one quarter of the entire property and as regards application no. 78960/11 to the entire property.

49.  As regards application no. 46103/11 the Court notes that the Commission awarded compensation by way of State bonds in respect of the plot measuring 750 sq. m on the basis of the Property Act 1993, without quantifying the amount. However, the Court notes that the Property Act 2004, which repealed the Property Act 1993, does not envisage for compensation by way of State bonds. Moreover, financial compensation is the sole form of compensation currently considered to be effective (see Manushaqe Puto and Others, cited above, §§ 77 and 80). Therefore, the Court considers that the applicant should be awarded financial compensation in respect of the plot measuring 750 sq. m.

As regards compensation in kind in respect of the plot measuring 10,000 sq. m, the Court would refer to the Government’s submission made in the context of the proceedings in the case of Manushaqe Puto and Others, cited above, § 68, according to which no in-kind compensation has ever been effected. Moreover, it reiterates its findings in the case of Çaush Driza, cited above, to the effect that this form of compensation was not an effective remedy (see Çaush Driza v. Albania, cited above, §§ 77-83). Therefore, financial compensation should also be awarded in respect of the plot measuring 10,000 sq. m.

The Court finds that the applicant should be awarded compensation in respect of one fifteenths of both plots of land totalling 10,750 sq. m.

50.  Having regard to the material in its possession, the Court considers it reasonable to make the awards in respect of pecuniary and non-pecuniary damage as tabulated in Appendix No. 3.

B.  Costs and expenses

51.  The applicants made claims in respect of costs and expenses as tabulated in Appendix No. 2.

52.  As regards application no. 78960/11, citing Gjyli v. Albania (no. 32907/07, § 72, 29 September 2009), according to which costs and expenses have to be actually and necessarily incurred and reasonable, the Government left the matter to the Court’s discretion to determine the amount to be awarded under this head.

53.  According to the Court’s case-law, “an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum” (see Gjyli v. Albania, cited above, § 72). To this end, Rule 60 §§ 2 and 3 of the Rules of Court provides that applicants must enclose with their claims for just satisfaction “any relevant supporting documents”, failing which the Court “may reject the claims in whole or in part”.

54.  As regards applications nos. 33148/11, 33151/11, 46103/11 and 72334/11, the Court will not make an award in respect of costs and expenses, no supporting documents having been submitted.

55.  Having regard to its findings in paragraphs 28-29, the repetitive nature of the complaints raised in the above applications, the similar submissions made to the Court, the representation of some of the applicants by the same lawyer and the Court’s view that the majority of the costs and expenses claimed were not reasonable as to quantum, the Court considers it reasonable to make awards in respect of costs and expenses as tabulated in Appendix No. 3.

C.  Default interest

56.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

 

2.  Declares inadmissible the complaint concerning the non-enforcement of the decision in respect of plot of land measuring 300 sq. m with reference to application no. 33151/11 and the complaint concerning the lack of compensation in respect of a plot of land measuring 6,750 sq. m with reference to application no. 46103/11;

 

3.  Declares the remaining complaints under Articles 6 § 1 and 13 of the Convention and under Article 1 of Protocol No. 1 as regards the non-enforcement of final domestic decisions and the length of the proceedings admissible;

 

4.  Holds that there has been a breach of Articles 6 § 1 and 13 as well as of Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of final domestic decisions;

 

5.  Holds that it is not necessary to examine the complaint under Article 6 § 1 of the Convention as regards the length of the proceedings;

 

6.  Holds

(a)  that the respondent State must secure, by appropriate means, the enforcement of the Commission decisions given in the applicant’s favour in application no. 33151/11, in respect of his share of property, within three months;

(b)  that the respondent State is to pay the applicants, in applications nos. 33823/11, 46103/11 and 78960/11 within three months, the amounts referred to in paragraphs 50 and 55 of the judgment and tabulated in Appendix 3, plus any tax that may be chargeable, to be converted into the national currency at the rate applicable at the date of settlement;

(c)  that the respondent State is to pay the applicants jointly, in applications nos. 33148/11 and 72334/11 within three months, the amounts referred to in paragraphs 50 and 55 of the judgment and tabulated in Appendix 3, plus any tax that may be chargeable, to be converted into the national currency at the rate applicable at the date of settlement;

(d)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

7.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 7 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach                                                                  Kristina Pardalos
Deputy Registrar                                                                       President




 

APPENDIX 1 - LIST OF APPLICANTS

 

No.	Case name and no.	Name of applicants (year of birth)	Country of residence	Represented by	Introduction date
1.	Aliçka and Vasha, no.  33148/11	Velisha Aliçka (1940) Adriatik Aliçka (1949) Nafije Vasha née Aliçka (1942)	Albania Albania Albania	S. Dodbida, lawyer	17 May 2011
2.	Kreka, no. 33151/11	Selami Kreka (1925)	Albania	None	13 May 2011
3.	Tahiri, no. 33823/11	Dilaver Tahiri (1944)	Albania	V. Gumi, lawyer	24 April 2011
4.	Theodhosi no. 46103/11	Afërdita Theodhosi (1951)	Albania	None	6 July 2011
5.	Nishe and Others, no. 72334/11	Petraq Nishe (1938) Irini Shkurti née Nishe (1936) Josif Nishe (1938) Ilia Çili (1954) Margarita Tola née Çili (1957) Sotir Çili (1962)	Albania Albania Albania Albania Albania Albania	S. Dodbiba, lawyer	5 October 2011
6.	Benussi, no. 78960/11	Anton Benussi (1938)	Albania	S. Puto, lawyer	12 March 2012

 




 

APPENDIX 2 - APPLICANTS’ CLAIMS FOR JUST SATISFACTION AND FOR COSTS AND EXPENSES

 

No.	Application name and no.	Pecuniary damage	Non-pecuniary damage	Costs and expenses
1.	Aliçka and Vasha, no. 33148/11	EUR 849,500 as regards the property value of the land measuring 655,400 sq. m, in respect of the applicants’ share of property, on the basis of an expert’s report	None	EUR 5,000 (no receipts submitted)
2.	Kreka, no. 33151/11	EUR 106,714 as regards the property value of a forest land measuring 8,300 sq. m EUR 3,428 as regards the loss of profits as a result of the cutting of walnut trees EUR 34,285 as regards the loss of profits as a result of illegal constructions	None	EUR 881 (no receipts submitted)
3.	Tahiri, no. 33823/11	EUR 118,819 as regards the property value of the plot of land measuring 672 sq. m on the basis of the valuation maps 2008, no specific claim having been made in respect of his share of property	EUR 10,000	EUR 8,302 (receipts submitted)
4.	Theodhosi, no. 46103/11	EUR 2,975,000 as regards the value of the plot of land measuring 17,500 sq. m on the basis of an expert’s report together with the loss of profits, no specific claim having been made in respect of her share of property	EUR 30,000	EUR 15,000 (no receipts submitted)
5.	Nishe and Others, no. 72334/11	EUR 395,000 as regards the property value of the agricultural land measuring 27,200 sq. m on the basis of an expert’s report	EUR 16,000	EUR 5,000 (no receipts submitted)
6.	Benussi, no. 78960/11	EUR 716,571 as regards the property value of the plot of land measuring 836 sq. m on the basis of the valuation maps 2013	EUR 15,000	EUR 1,000 (receipts submitted)

 




 

APPENDIX 3 - THE COURT’S AWARDS

 

No.	Application name and no.	Pecuniary and non-pecuniary damage	Costs and expenses
1.	Aliçka and Vasha, no. 33148/11	EUR 3,200 (three thousand two hundred)	None (no receipts submitted)
2.	Kreka, no. 33151/11	None	None (no receipts submitted)
3.	Tahiri, no. 33823/11	EUR 34,300 (thirty four thousand three hundred)	EUR 850 (eight hundred and fifty)
4.	Theodhosi, no. 46103/11	EUR 11,800 (eleven thousand eight hundred)	None (no receipts submitted)
5.	Nishe and Others, no. 72334/11	EUR 31,300 (thirty one thousand three hundred)	None (no receipts submitted)
6.	Benussi, no. 78960/11	EUR 719,000 (seven hundred and nineteen thousand)	EUR 850 (eight hundred and fifty)