European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

CASE OF HALIMI AND OTHERS v. ALBANIA

 

(Application no. 33839/11)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

7 April 2016

 

 

 

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




In the case of Halimi 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 application 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 an application (no. 33839/11), 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 9 Albanian nationals. Details of the applicants are set out in Appendix No. 1 attached to the judgment.

2.  The applicants were represented by Mr S. Puto, a lawyer practising in Tirana. 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 application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  On 30 May 1995 the Vlora Commission recognised the applicants’ inherited property rights over a plot of land measuring 10,000 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law.

5.  To date, no compensation has been paid.

II.  RELEVANT DOMESTIC LAW

6.  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

7.  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.  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 DECISION

8.  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 a final domestic decision awarding them compensation in lieu of the restitution of their property.

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

9.  The Government did not contest the admissibility of these complaints.

10.  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

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

12.  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, 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 decision 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.

13.  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).

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

14.  The applicants complained under Article 6 § 1 about the length of proceedings as a result of the non-enforcement of the Commission decision.

15.  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.

16.  The Court considers that, in view of the findings in paragraphs 12-13 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.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

17.  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

18.  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. More specifically, they claimed 823,071 Euro (“EUR”) as regards the property value of the plot of land measuring 10,000 sq. m on the basis of the valuation maps 2013. They claimed that the reference price of 11,523 Albanian Leks (“ALL”)/sq. m as indicated in the valuation maps 2013 be applied. They submitted that they owned the entire property. They claimed EUR 135,000 in respect of non-pecuniary damage.

(b)  The Government

19.  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. Having regard to the fact that at the time of confiscation the plot of land had been agricultural, the Government proposed that the reference price for agricultural land on the basis of the valuation maps of 2014 should be applied. Since the cadastral area where the property was situated did not indicate any reference price in respect of agricultural land, the reference price for agricultural land in respect of another closer cadastral area should be applied, that is 280 ALL/sq. m. The Government confirmed that the applicants were entitled to the entire property.

2.  The Court’s assessment

20.  The Court examined the same submissions made by the parties in its judgment in the case of Sharra and Others, cited above, §§ 78-87. 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.

21.  The Court notes that the authorities recognised the applicants’ right to compensation in respect of construction land and not of agricultural land as argued by the Government. The Court considers that the applicants are entitled to the entire property.

22.  Having regard to the material in its possession, the Court considers it reasonable to award the applicants EUR 754,300 (seven hundred and fifty four thousand three hundred) in respect of pecuniary and non-pecuniary damage.

B.  Costs and expenses

23.  The applicants claimed EUR 1,000 in respect of costs and expenses. They submitted relevant receipts.

24.  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.

25.  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”.

26.  Having regard to its findings in paragraphs 12-13, the repetitive nature of the complaints raised in the above application, the representation 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 award the applicants EUR 850 in respect of costs and expenses.

C.  Default interest

27.  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.  Declares the 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 decision and the length of the proceedings admissible;

 

2.  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 decision;

 

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

 

4.  Holds

(a)  that the respondent State is to pay the applicants jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 754,300 (seven hundred and fifty four thousand three hundred) in respect of pecuniary and non-pecuniary damage;

(ii)  EUR 850 (eight hundred and fifty), plus any tax that may be chargeable, in respect of costs and expenses;

(b)  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;

 

5.  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

 

 

Case name and no.	Name of applicants (year of birth)	Country of residence	Represented by	Introduction date
Halimi and Others, no. 33839/11	Eni Kokona (1976) Lindita Kokona (1976) Xhejni Kokona (1978) Nirvana Rradheshi (1951) Shpresa Halimi (1969)   Diana Kaltani née Halimi (1936) Ermal Halimi (1959) Karolina Halimi (1935) Ariel Halimi (1963)	Albania Albania Albania Albania United States of America Canada   Albania Albania Albania	S. Puto, lawyer	14 March 2011