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FOURTH
SECTION
CASE OF BESHIRI AND OTHERS v. ALBANIA
(Application
no. 7352/03)
JUDGMENT
STRASBOURG
22 August
2006
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 Beshiri and Others v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr J.
Casadevall,
Mr G. Bonello,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović, judges,
and
Mr T.L. Early, Section Registrar,
Having deliberated in private on 11
July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7352/03) 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 four siblings who are all Albanian nationals,
Mr Njazi Beshiri, Ms Liri Kaba, Ms Xhilda Koka and Mr Sair Preza
(“the applicants”), on 16 February 2003.
- The
applicants were represented by Mr A. Tartari, a lawyer practising in
Tirana. The Albanian Government (“the Government”) were
represented by their Agent, Mr S. Puto, of the Ministry of Foreign
Affairs.
- On
3 May 2005 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1931, 1948, 1954 and 1944 respectively and
live in Tirana (Albania) and Varese (Italy).
- The
applicants’ father owned a villa with a surface area of 42.70
sq. m and two adjacent plots of land measuring approximately 46.70
sq. m and 48.55 sq. m respectively. From 1946 to 1978 the applicants’
father rented the villa to B.N.’s father.
- On
an unspecified date, as the villa was uninhabitable, the State
granted the applicants’ father a compulsory loan of 16,204 leks
(ALL) for renovation of the villa.
- In
1976 B.N. constructed two additional buildings on the plot of land
measuring 48.55 sq. m. By a decision of 23 February 1976 the Tirana
District Court allocated the additional buildings to B. N.
- As
a result of the applicants’ father’s failure to repay the
debt, the villa was nationalised by virtue of decision no. 133 of 14
July 1978. From 1978 onwards B.N.’s family continued to live in
the villa as tenants of a State-owned property.
A. Proceedings regarding the restitution of property
- In
1996, pursuant to the Property Restitution and Compensation Act (“the
Property Act”), the applicants lodged a claim with the Tirana
Commission on Property Restitution and Compensation (Komisioni I
Kthimit dhe Kompensimit te Pronave).
- On
22 May 1996 the Tirana Commission, holding that the nationalisation
of the applicants’ father’s villa had been illegal,
awarded the applicants the villa (with a surface area of 42.70 sq. m)
and the plot of land measuring 46.70 sq. m, subject to the repayment
of ALL 1,204 (representing the outstanding amount of their father’s
unpaid debt to the State which had led to the nationalisation of the
properties). With regard to the plot of land measuring 48.55 sq. m,
in view of B.N.’s investment in the additional building, the
Commission upheld his right of first refusal on the purchase of the
land.
B. Judicial proceedings
- On
an unspecified date in 1997, B.N., the tenant of the villa which had
been allotted to the applicants, brought a civil action before the
Tirana District Court, claiming property rights over the villa and
the adjacent plot of land. Moreover, he alleged that the Commission’s
decision of 22 May 1996 should be declared null and void, in so far
as it was in breach of section 13 of the Property Act.
- On
15 July 1997 the Tirana District Court declared the Commission’s
decision of 22 May 1996 null and void. It found that according to an
expert report, the outlays by the State and B.N.’s father on
structural changes and annexes to the original building amounted to
more than 85% of the property’s original value. The
Commission’s decision was therefore held to have been in breach
of section 13 of the Property Act.
- On
7 November 1997 the Tirana Court of Appeal, having examined an appeal
by the applicants alleging a violation of their property rights,
upheld the District Court’s decision and dismissed the appeal.
- The
applicants appealed to the Civil Division of the Supreme Court, which
on 6 May 1998 quashed the decisions of the above courts. It held that
the decisions had been based on an expert report which was illogical
and contained incorrect calculations and accordingly sent the case
back for rehearing.
- On
11 April 2001 the Tirana Court of Appeal, rehearing the case,
declared the Commission’s decision null and void. Relying on a
new expert report, it held that the nationalisation of the
applicants’ father’s villa had been in accordance with
substantive law requirements at the material time and that,
consequently, the applicants could not benefit from the process of
restitution of property. Moreover, the court upheld the applicants’
property rights over the two adjacent plots of land and, pursuant to
section 16 of the Property Act, decided on their right to receive
compensation in one of the forms provided for by law.
- On
15 February 2002 the Civil Division of the Supreme Court dismissed an
appeal by the applicants as being ill-founded.
C. Proceedings before the Constitutional Court
- The
applicants lodged an appeal with the Constitutional Court on the
basis of Article 131 (f) of the Constitution. They alleged that the
Supreme Court’s decision and the Court of Appeal’s
judgment had been unconstitutional.
- On
24 September 2002 the Constitutional Court, in accordance with
section 31 of the Constitutional Court Organisation and Operation Act
(Law no. 8577 of 10 February 2000), decided de plano to
declare the applicants’ complaint inadmissible as being
“outside its jurisdiction”.
D. Compensation
- In
a letter of 22 March 2004 the applicants informed the Registry that
the authorities had failed to comply with the final decision of 11
April 2001 relating to the compensation issue.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution
- The
Albanian Constitution reads as follows:
Article 41
“1. The right of private property is protected by
law.
2. Property may be acquired by gift, inheritance,
purchase, or any other ordinary means provided for by the Civil Code.
3. The law may provide for expropriations or
limitations in the exercise of a property right only in the public
interest.
4. Expropriations, or limitations of a property right
that are equivalent to expropriation, shall be permitted only in
return for fair compensation.
5. A complaint may be lodged with a court to
resolve disputes regarding the amount/extent of compensation due.”
Article 42 § 2
“In the protection of his constitutional and legal
rights, freedoms and interests, and in defence of a criminal charge,
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 on: ...
(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.”
Article 181
“1. Within two to three years from the date when
this Constitution enters into force, Parliament, guided by the
criteria laid down in Article 41, shall pass laws for the just
resolution of different issues relating to expropriations and
confiscations carried out before the approval of this Constitution.
2. Laws and other normative acts relating to
expropriation and confiscation that were passed before the entry into
force of this Constitution shall be applied provided they are
compatible with the latter.”
B. Property Restitution and Compensation Act (Law no.
7698 of 15 April 1993, as amended by Law no. 8084 of 1996 and
abrogated by law no. 9235 dated 29 July 2004)
- The
Property Restitution and Compensation Act (Ligji për kthimin
dhe kompensimin e pronës) underwent several amendments
during the past ten years.
- The
Property Act of 1993 (Law no. 7698 of 15 April 1993, as amended
by Law no. 8084 of 1996), as in force at the time, in its relevant
parts reads as follows:
Section 4(1)
“Former owners and their legal heirs have the
right of ownership. A former owner shall have the right either to
have allocated the original land or to be awarded compensation in
kind if one of the following conditions is met:
(1) the alleged property was pasture, meadow, forestry
land, or agricultural or non-agricultural land;
(2) the alleged property was not subject to Law no. 7501
of 19 July 1991;
(3) the alleged property is currently State-owned;
(4) the alleged property has been designated as suitable
for construction and is situated within the boundaries of a city.
The restitution or compensation in kind shall not exceed
10,000 sq. m pursuant to section 1(4) of Decree no. 1359 of 5
February 1996, as amended by Law no. 8084 of March 7 1996.”
Section 13
“Former owners shall be entitled to restitution of
their former buildings without having to repay outlays made by the
Government or other owners on structural alterations, annexes or
floor additions to former private buildings, where such outlays
amount to up to 20% of the building’s value.
Former owners shall be entitled to restitution of their
former buildings once they have repaid more than 20% of the value of
outlays, where such outlays amount to between 20% and 50% of the
building’s value. The value of the outlays shall be calculated
on the basis of construction prices at the time of the building’s
restitution. A building shall remain in co-ownership where the value
of such outlays is more than 50% of the building’s value. ....
The courts shall have authority to resolve disputes between parties.”
Section 16
“Where a building site or agricultural land that
has been reclassified as a building site is occupied by a permanent
construction, the former owners shall be compensated, within the
limit fixed for expropriation, by one of the following methods:
(a) by means of State bonds, equivalent to the
compensation owed, and with first option of acquiring shares in State
enterprises being privatised by the Government or in other activities
carried out through the granting of loans;
(b) by means of an equivalent plot of land or building
site near to an urban area, in accordance with the general
urban-development regulations;
(c) by means of an equivalent plot of land in a tourist
zone, in accordance with the general urban-development regulations.
Any outstanding amount after the application of (b) and
(c) above shall be compensated according to other methods established
by this Act.
The Council of Ministers shall have the authority to
define more detailed rules for determining the methods and deadlines
for such compensation.”
- The
new Property Act enacted in 2004 provides for two forms of
restitution of property, namely the return, under certain
circumstances, of the original property and compensation in the event
of the impossibility for the authorities to return the original
property. The Act provides for five forms of compensation: (a) a
property of the same kind; (b) a property of any other kind; (c)
shares in State-owned companies; (d) the value of a State-owned
property in the privatisation process, (e) a sum of money (section
11).
- The
Act instituted the State Committee for Property Restitution and
Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e
Pronave), composed of five members elected by Parliament. Its
role is to decide on the lawfulness of district committees’
decisions. At district level decisions on restitution and
compensation claims are to be taken by District Committees for
Property Restitution and Compensation (section 15).
- In
accordance with the Act, the persons entitled to claim restitution or
compensation have to lodge an application for such purpose with the
District Committee by 31 December 2007 (section 19). The Act
grants the committee discretion to decide which one of the forms of
compensation should be granted. The entitled persons have to express
in writing their preferences regarding the form of compensation to be
awarded. The District Committee’s decision may be appealed
against to the State Committee (section 11).
- In
order to comply with the committees’ decisions awarding payment
of pecuniary compensation, section 23 of the above-mentioned Act
provides for the establishment of a ten-year Property Compensation
Fund, whose aim is to provide financial support for such awards.
- The
above-mentioned Act was scrutinised by both the Constitutional Court
and the Supreme Court.
- On
24 March 2005 the Supreme Court, Joint Colleges, concluded that the
Property Act of 2004 had no retroactive effect and that its
provisions could therefore not have any impact on property rights
recognised by administrative or court decisions given before its
entry into force.
29. In
November 2005 the Government (as newly elected on 3 July 2005)
introduced in Parliament a new bill on the Property Restitution and
Compensation Act, which proposes several amendments to the Property
Act of 2004. The bill, which is currently pending before Parliament,
will be discussed in the coming months.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
- The
Government contended that the application was inadmissible as having
been lodged outside the six-month period provided for in Article 35 §
1 of the Convention. Thus, owing to the discretionary character of
proceedings in the Constitutional Court and the latter’s de
plano inadmissibility decision in the present case, the final
effective remedy within the meaning of that provision was in fact the
Supreme Court’s decision of 15 February 2002, whereas the
applicants had lodged the application on 16 February 2003.
- The
applicants submitted in reply, with reference to Article 131 (f) of
the Constitution and the practice of the Constitutional Court, that
in order to exhaust all domestic remedies, individuals had to lodge a
complaint with the Constitutional Court if and when they alleged a
breach of the right to a fair hearing. Moreover, the applicants’
complaint relating to the claimant’s lack of legal standing in
the proceedings concerned was connected to the concept of a fair
hearing as established by the case-law of the Constitutional Court.
The latter had the jurisdiction and the obligation to consider the
case and to decide it, if necessary by means of a judgment.
Accordingly, the applicants claimed that they had lodged their
application with the Court in time, as the Constitutional Court’s
decision was dated 24 September 2002, even if it was a de plano
inadmissibility decision.
- The
Court reiterates its findings in the Balliu v Albania decision
(no. 74727/01, 30 September 2004), in which it held that a
complaint to the Albanian Constitutional Court could be considered an
effective remedy which had to be used for the purposes of Article 35
of the Convention where fair-trial issues arose. It considers that
there are no reasons for it to depart from that finding in the
circumstances of the present case.
- The
applicants did in fact avail themselves of this remedy. The
Constitutional Court’s decision is dated 24 September 2002 and
the applicants lodged their application on 15 February 2002. They
have therefore complied with the six-month time-limit prescribed in
Article 35.
- For
these reasons, the Court dismisses the Government’s objection.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13
OF THE CONVENTION
- The
applicants complained of a breach of Article 6 § 1 of the
Convention in several respects. They also contended that they had no
effective domestic remedy in respect of the alleged violations
(Article 13 of the Convention).
Article
6 § 1, 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...”
Article
13 provides:
“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
1. As to the fairness of the proceedings
- The
applicants complained under Article 6 § 1 of the Convention
about the unfairness of the proceedings, on the ground that B.N.
should not have had standing in the domestic proceedings to contest
their property rights.
- The
Court reiterates that it is not its task to take the place of the
domestic courts. It is primarily for the national authorities,
notably the courts, to resolve problems of interpretation of domestic
legislation (see Edificaciones March Gallego S.A. v. Spain,
judgment of 19 February 1998, Reports of Judgments and
Decisions 1998-I, p. 290, § 33). The Court’s role is
confined to ascertaining whether the proceedings considered as a
whole were fair (see, mutatis mutandis, Edwards v. the
United Kingdom, judgment of 16 December 1992, Series A no. 247-B,
pp. 34-35, § 34, and García Ruiz v. Spain
[GC], no. 30544/96, § 28, ECHR 1999-I).
- Turning to the present case, the Court considers that
the proceedings before the domestic courts fully satisfied the
requirements of Article 6 § 1 of the Convention, allowing the
applicants to effectively use all their procedural rights. The
national courts carefully examined the restitution claims and
delivered reasoned judgments addressing the arguments submitted by
the applicants. The Court does not find any indication of a violation
of Article 6 § 1 of the Convention under this head.
- It
follows that this complaint is manifestly ill-founded and must be
dismissed in accordance with Article 35 §§ 3 and 4 of the
Convention.
- As
to the applicants’ submission that they had no effective remedy
at their disposal in respect of the above complaint, the Court
reiterates that Article 13 applies only where an individual has an
“arguable claim” to be the victim of a violation of a
Convention right (see Boyle and Rice v. the United Kingdom,
judgment of 27 April 1988, Series A no. 131, p. 23,§ 52). The
Court has found above that the applicants’ complaint under
Article 6 § 1 is manifestly ill-founded. The
applicants do not have an arguable claim and Article 13 is therefore
not applicable to the case.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
2. As to the length of the proceedings
- The
applicants also alleged a violation of Article 6 § 1 maintaining
that five years to decide on their property claims could not be
considered a reasonable length of proceedings.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the particular circumstances of the
case and having regard to the criteria laid down in the established
case-law, in particular the complexity of the case and the conduct of
the applicants and of the relevant authorities (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96,
§ 43, ECHR 2000 VII).
- The
Court observes that the period to be taken into consideration began
on an unspecified date in 1997 when proceedings were instituted by
B.N. before the Tirana District Court and ended on 24 September
2002, when the Constitutional Court decision was deposited with the
registry. It therefore lasted approximately five years and eight
months in total for six levels of jurisdiction. It considers that the
case concerned a complex factual situation and that the court had to
ascertain the applicants’ property rights on the basis of
complex expert reports.
- In
these circumstances, the total period at each level of jurisdiction
cannot be considered unreasonably long. Moreover, the applicants
failed to demonstrate any period of substantial inactivity that could
be attributable to the judicial authorities during the conduct of the
proceedings.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
- In
so far as the applicants’ submissions under Article 13 can be
understood as a complaint about the lack of an effective remedy in
respect of the length of their civil proceedings, the Court, for the
same reasons given at paragraph 40 above, finds that Article 13 is
not applicable.
- It
follows that this complaint is manifestly ill-founded and must be
dismissed in accordance with Article 35 §§ 3
and 4 of the Convention.
3. As to the alleged failure to enforce a court
decision
- Under
Articles 6 § 1 and 13 of the Convention, the applicants
complained about the authorities’ failure to comply with the
Tirana Court of Appeal’s judgment of 11 April 2001 relating to
the compensation issue.
- The
Government contested that argument. They maintained that the
applicants were challenging the outcome of the proceedings that had
led to the judgment of 11 April 2001. That being so, they had failed
to initiate enforcement proceedings before the Tirana District Court
in order to request the issuing of a writ for the enforcement of the
judgment in question. Moreover, in the Government’s submission
the applicants had also failed to make use of the remedies introduced
by the new Property Act (Law no. 9235 of 29 July 2004) in
relation to the issue of compensation. Hence, the applicants’
claim under this head should be declared inadmissible for failure to
exhaust domestic remedies.
- The
applicants challenged the effectiveness of the remedies referred to
by the Government. As regards the remedy introduced by the new
Property Act, they argued that it could not provide an effective
remedy within the meaning of the Convention. They further observed
that their property rights had been determined in a final judgment
and that an administrative body could not therefore re-examine the
same issue. Lastly, they maintained that, had the domestic court
awarded compensation in one of the forms provided for by law, the
bailiffs would not have been able to enforce that decision. It was up
to the Government to adopt effective measures, either by classifying
the State properties available for compensation in kind or by
providing sufficient budgetary funds for pecuniary compensation, in
order to make such a means of redress feasible. In conclusion, the
applicants maintained that the Government had so far failed to take
effective steps to find solutions relating to the issue of
compensation.
- 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 Vernillo v. France,
judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27;
Aksoy v. Turkey, no. 21987/93, §§ 51-52,
Reports 1996-VI; and Akdivar and Others v. Turkey,
no. 21893/93, §§ 65-67, Reports 1996-IV).
- The
Court finds that the remedies referred to by the Government were
inadequate to secure redress for the alleged breach.
- In
particular, as to the Government’s argument relating to the
applicants’ failure to initiate enforcement proceedings, the
Court reiterates that a person who has obtained an enforceable
judgment against the State as a result of successful litigation
cannot be required to resort to enforcement proceedings in order to
have it executed (see Cocchiarella v. Italy [GC],
no. 64886/01, § 89, ECHR 2006; Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004; Koltsov v. Russia,
no. 41304/02, § 16, 24 February 2005; and Petrushko v.
Russia, no. 36494/02, § 18, 24 February 2005).
- Moreover,
as to the objection relating to the applicants’ failure to make
use of the remedies introduced by the new Property Act, the Court
observes that the Government did not provide any evidence to
substantiate their effectiveness. They did not prove that the new Act
could effectively have offered redress to the applicants and that the
State could have effectively complied with its obligation to pay
compensation for the original property, as determined by the final
decision in the applicants’ favour.
- Accordingly,
the Court dismisses the Government’s objections relating to the
applicants’ failure to exhaust domestic remedies.
- The
Court considers that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government repeated that the authorities could not be held
responsible for the non-enforcement of the judgment delivered in the
applicants’ favour since its execution depended upon their
taking the appropriate steps, namely by bringing an action seeking
its enforcement. The Government referred to their earlier arguments
on exhaustion of domestic remedies.
- The
applicants contested that argument.
- The
Court reiterates its case-law to the effect that the right of access
to a tribunal guaranteed by Article 6 § 1 of the Convention
would be illusory if a Contracting State’s domestic legal
system allowed a final, binding judicial decision to remain
inoperative to the detriment of one party. Execution of a judgment
given by any court must therefore be regarded as an integral part of
the “trial” for the purposes of Article 6 (see, inter
alia, Hornsby v. Greece, judgment of 19 March 1997,
Reports 1997-II, pp. 510 11, §§ 40 et
seq., and Metaxas, cited above, § 25).
- The
Court considers that the problems involved in the applicants’
case are part of the process of transition from the former communist
legal order and its property regime to one compatible with the rule
of law and the market economy. Such a process, in the very nature of
things, is fraught with difficulties. The Court has held in this
connection that the Convention cannot be interpreted as imposing any
general obligation on the Contracting States to restore property
which was transferred to them before they had ratified the Convention
(see Kopecký v. Slovakia [GC], no. 44912/98, §
35, and von Maltzan and Others v. Germany (dec.) [GC],
nos. 71916/01, 71917/01 and 10260/02, § 74, ECHR 2005-V). Nor is
there any general obligation under the Convention to establish legal
procedures in which restitution of property may be sought. However,
once a Contracting State decides to establish legal procedures of
such a kind, it cannot be exempted from the obligation to honour all
relevant guarantees provided for by the Convention, in particular in
Article 6 § 1.
- The
Court notes that Albanian legislation at the material time left the
determination of the appropriate form of compensation, when
restitution of the original property was impossible, to the
discretion of the administrative authorities. Thus, the judgment of
the Court of Appeal in the instant case can be interpreted as
ordering the authorities to offer the applicants a form of
compensation which would indemnify them in lieu of restitution of
their property rights.
- The
Court does not accept the Government’s view regarding the
applicants’ lack of interest in the enforcement of the
judgment. In fact the applicants challenged the outcome of the
proceedings that had led to the judgment of 11 April 2001 and sought
restitution of the original property instead of receiving a form of
compensation in its stead.
- On
the facts of the case, the Court observes that following the delivery
of the judgment in 2001 the authorities failed to offer the
applicants the option of receiving appropriate compensation, in
compliance with the final court decision (see, by contrast,
Užkurėlienė and Others v. Lithuania, no. 62988/00,
§ 36, 7 April 2005). Thus, the applicants did not even have
the possibility of considering an offer of compensation as opposed to
the restitution of the original property.
- Moreover,
the Court considers that the respondent Government did not provide
any explanation as to why the judgment of 11 April 2001 in
the applicants’ favour has still not been enforced for more
than five years after it was delivered. It does not appear that the
bailiffs or the administrative authorities have taken any measures to
comply with the judgment.
- The
foregoing considerations are sufficient to enable the Court to
conclude that by failing to take the necessary measures to comply
with the judgment of 11 April 2001, the Albanian authorities deprived
the provisions of Article 6 § 1 of the Convention of all useful
effect.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
- The
Court has examined above the applicants’ complaint about the
failure of the authorities to comply with the final decision that
awarded them a form of compensation. It notes that the applicants’
complaint under Article 13 is essentially based on the same lack of
procedural protection which has already been found to have given rise
to a violation of Article 6 (see, mutatis mutandis,
British-American Tobacco Company Ltd. v. the Netherlands,
judgment of 20 November 1995, Series A no. 331, p. 29, § 91).
In these circumstances, the Court considers that it
is not necessary to examine the complaint separately under Article
13.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TAKEN
ALONE AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION
- The
applicants complained of a violation of their rights over their
father’s property. They relied on Article 1 of Protocol No. 1
to the Convention, 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.”
- Invoking Article 14 of the Convention, the applicants
complained that their property rights
had been infringed in the restitution
proceedings on account of their social status. Article 14 reads as
follows:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. Admissibility
1. The parties’ submissions
- The
Government contested the applicants’ complaints under this
head. They maintained that since the Commission’s decision
allocating the applicants their father’s property had been
overturned by court decisions, the applicants could not claim
property rights over the villa. Accordingly, having regard to the
court decision that had determined their property claims, the
applicants were entitled to the guarantees offered by Article 1 of
Protocol No. 1 only in respect of the plots of land measuring 48.55
sq. m and 46.70 sq. m respectively.
- In
accordance with the provisions of domestic law, it being impossible
to return the original property to them, the court had upheld the
applicants’ rights to compensation in one of the forms provided
for by section 16 of the Property Act of 1993.
- They
submitted that, like numerous former owners of property in Albania
who had received binding court decisions determining the issue of
compensation, the applicants could not blame the State for their
inactivity to initiate enforcement proceedings either in the Albanian
courts or by means of the new remedies introduced by the Property Act
of 2004, in order to recover their property and to seek redress.
- The
applicants contested the Government’s submissions.
2. The Court’s assessment
(a) Recapitulation of the relevant principles
- The
Court reiterates the following principles established in its case-law
under Article 1 of Protocol No. 1 (see von Maltzan and
Others, cited above, and Kopecký, cited above, §
35).
- (a)
Deprivation of ownership or of another right in rem is in
principle an instantaneous act and does not produce a continuing
situation of “deprivation of a right” (see Malhous v.
the Czech Republic (dec.) [GC], no. 33071/96,
ECHR 2000-XII, with further references).
- (b)
Article 1 of Protocol No. 1 does not guarantee the right to acquire
property (see Van der Mussele v. Belgium, judgment of 23
November 1983, Series A no. 70, p. 23, § 48, and Slivenko and
Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR
2002-II).
- (c) An
applicant can allege a violation of Article 1 of Protocol No. 1 only
in so far as the impugned decisions related to his “possessions”
within the meaning of this provision. “Possessions” can
be either “existing possessions” or assets, including
claims, in respect of which the applicant can argue that he or she
has at least a “legitimate expectation” of obtaining
effective enjoyment of a property right. By way of contrast, the hope
of recognition of a property right which it has been impossible to
exercise effectively cannot be considered a “possession”
within the meaning of Article 1 of Protocol No. 1, nor can a
conditional claim which lapses as a result of the non-fulfilment of
the condition (see Prince Hans-Adam II of Liechtenstein v. Germany
[GC], no. 42527/98, §§ 82 and 83, ECHR 2001-VIII, and
Gratzinger and Gratzingerova v. the Czech Republic (dec.)
[GC], no. 39794/98, § 69, ECHR 2002-VII).
- (d)
Where the proprietary interest is in the nature of a claim it may be
regarded as an “asset” only where it has a sufficient
basis in national law, for example where there is settled case-law of
the domestic courts confirming it or whether it takes the form of a
final enforceable judgment in an applicant’s favour (see
Draon v. France [GC], no. 1513/03, § 68, 6 October
2005 and Burdov v. Russia, no. 59498/00, § 40,
ECHR 2002 III).
- (e) Article
1 of Protocol No. 1 cannot be interpreted as imposing any general
obligation on the Contracting States to return property which was
transferred to them before they ratified the Convention. Nor does
Article 1 of Protocol No. 1 impose any restrictions on the
Contracting States’ freedom to determine the scope of property
restitution and to choose the conditions under which they agree to
restore property rights of former owners (see Jantner v. Slovakia,
no. 39050/97, § 34, 4 March 2003).
- In
particular, the Contracting States enjoy a wide margin of
appreciation with regard to the exclusion of certain categories of
former owners from such entitlement. Where categories of owners are
excluded in this way, their claims for restitution cannot provide the
basis for a “legitimate expectation” attracting the
protection of Article 1 of Protocol No. 1 (see, among other
authorities, Gratzinger and Gratzingerova, cited above, §§
70-74).
- On
the other hand, once a Contracting State, having ratified the
Convention including Protocol No. 1, enacts legislation providing for
the full or partial restoration of property confiscated under a
previous regime, such legislation may be regarded as generating a new
property right protected by Article 1 of Protocol No. 1 for persons
satisfying the requirements for entitlement. The same may apply in
respect of arrangements for restitution or compensation established
under pre-ratification legislation, if such legislation remained in
force after the Contracting State’s ratification of Protocol
No. 1 (see Broniowski v. Poland [GC], 31443/96, § 125,
ECHR 2004-V).
(b) Application of the relevant principles
- The
Court observes that under this head the applicants complained about
two different matters. Firstly, they complained of a violation of
their property rights over the villa. Secondly, they complained of a
breach of their property rights in so far as the authorities had
failed to execute the court judgment of 11 April 2001. The Court will
examine each of these complaints separately.
(i) Property claims over the villa
- As
regards the alleged violation of Article 1 of Protocol No. 1 relating
to the villa, the Court recalls that there is no right to restitution
under the Convention and its case-law.
- Since
the villa in question was expropriated in 1978, it is clear that it
could not be said that the applicants had “existing
possessions” within the meaning of Article 1 of Protocol No. 1.
- It
thus remains to be examined whether the applicants could have any
“legitimate expectation” of realising their claim to
restitution on the basis of the provisions of the Property Act.
- The
Court observes that the proceedings complained of concerned the
question of whether or not the requirements set forth in the Property
Act had been fulfilled. The judicial authorities found that this was
not the case with regard to the applicants’ claims in respect
of the villa.
- The
applicants’ complaint therefore essentially amounts to an
objection to the outcome of the proceedings before the domestic
courts and to the errors of interpretation and application of
domestic law allegedly committed by those authorities.
- The
Court notes in this connection that the fact that the State, through
its judicial system, provided a forum for the determination of the
applicants’ rights and obligations does not automatically
engage its responsibility under Article 1 of Protocol No. 1. While
the State could be held responsible for losses caused by such
determinations if the court decisions amounted to an arbitrary and
disproportionate interference with possessions, this is not the case
here. Referring to its above findings under Article 6 § 1 of the
Convention (in relation to a fair hearing) that the national courts
proceeded in accordance with domestic law, dealing with the
applicants’ case in detail and giving full reasons for their
decisions, the Court finds that the assessment made by the domestic
courts cannot be regarded as having been arbitrary or manifestly
unreasonable.
- The
Court finds that the applicants could therefore have had no
“legitimate expectation”, based either on the provisions
of the Property Act or on the Commission’s decision of 1996
recognising their title to the villa, of realising their claim for
restitution of the villa. It follows that this part of the complaint
is incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 35 § 3 and
must be rejected in accordance with Article 35 § 4.
- Having
regard to the fact that Article 14 of the Convention is not
autonomous and to the conclusion that Article 1 of Protocol No. 1 is
not applicable under this head, the Court considers that Article 14
cannot apply with respect to this complaint (see, mutatis
mutandis, Polacek and Polackova v. the Czech Republic
(dec.) [GC], no. 38645/97, §§ 61-70, 10 July 2002).
- It
follows that this complaint must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
(ii) Property claims over the plots of land
- The
Court observes that the complaint under this head is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It moreover observes that no other grounds for declaring
this part of the application inadmissible have been established and
therefore declares it admissible.
- As
to the applicants’ complaint that their property rights over
the plots of land had been infringed on account of their social
status in breach of Article 14, the Court finds no indication that
the applicants have been discriminated against on any ground
specified in Article 14 of the Convention. Accordingly, the
applicants’ complaint under Article 14 of the Convention in
conjunction with Article 1 of Protocol No. 1 (related to their claims
over the plots of land) is manifestly ill-founded and must be
dismissed in accordance with Article 35 §§ 3
and 4 of the Convention.
B. Merits
- The
Government maintained that the fact that the applicants were not
satisfied with the outcome of the court proceedings relating to their
claims to their father’s properties in general, and their claim
for restitution of the original property in particular, could not
engage the State’s responsibility.
- The
Government added that the failure to execute the final judgments that
awarded compensation in the framework of the restitution and
compensation of properties process was due to objective circumstances
such as the lack of funds and its impact on the general interest of
the community.
- The
applicants claimed that the Government’s statements were
unsubstantiated. They submitted that the State was liable for the
outstanding debts due to them as compensation and that, having failed
to pay those debts for a long time, the State had deprived them of
the actual possession of their property, in violation of Article 1 of
Protocol No. 1.
- The
Court notes that this complaint is linked to the one examined under
Article 6 § 1 in relation to the failure to enforce a final
decision.
- The
Court reiterates that “possessions” can be “existing
possessions” or assets, including, in certain well-defined
situations, claims. For a claim to be capable of being considered an
“asset” falling within the scope of Article 1 of
Protocol No. 1, the claimant must establish that it has a sufficient
basis in national law, for example where there is settled case-law of
the domestic courts confirming it or whether there is a final court
judgment in the claimant’s favour. Where that has been done,
the concept of “legitimate expectation” can come into
play (see Draon, cited above, § 65 and Burdov
cited above).
- In
the present case, it has already found that the authorities had an
obligation under the judgment of 11 April 2001 to offer the
applicant a form of compensation in lieu of restitution of the two
plots of land. Therefore, the applicants had enforceable claims
deriving from the judgment in question.
- The
Court considers that the failure of the authorities to enforce the
judgment in the applicants’ favour amounts to an interference
with their right to the peaceful enjoyment of their possessions
within the meaning of Article 1 of Protocol No. 1 to the Convention.
- By
failing to comply with the judgment of the Tirana Court of Appeal,
the national authorities left the applicants in a state of
uncertainty with regard to the chances of reacquiring their property
rights. Furthermore, for a considerable period of time, they
prevented them from having their compensation paid and from enjoying
the possession of their money. As to the justification advanced by
the Government for this interference, the Court recalls that lack of
funds cannot justify a failure to enforce a final and binding
judgment debt owed by the State (see Pasteli and Others v.
Moldova, nos. 9898/02, 9863/02, 6255/02 and 10425/02, § 30,
15 June 2004, Voytenko v. Ukraine, no. 18966/02, § 55,
29 June 2004; Shmalko v. Ukraine, no. 60750/00, § 57,
20 July 2004).
- Accordingly,
there has been a violation of Article 1 of Protocol No. 1 to the
Convention with regard to the matter of compensation.
IV. APPLICATION OF 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.”
A. Damage
- The
applicants claimed 564,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. They relied on an expert’s valuation
report for the purposes of determining the overall value of their
father’s properties and the loss of profits.
- The
Government contested the applicants’ claims since in their view
the application was inadmissible. They did not submit any arguments
relating to the amounts claimed for pecuniary and non-pecuniary
damage.
- The
Court finds that the applicants’ claim for damage relating to
properties other than those allocated to them by the domestic courts
are ultra petita and consequently dismisses this claim.
- The
Court refers to its findings in the Qufaj v Albania case, in
which it held that the Albanian authorities had to take the
appropriate measures in order to comply with a final judgment and to
make reparation for any past or future damage caused to the
individuals by that failure. It further held that in the execution of
judgments in which the State was ordered to make a payment, a person
who had obtained a judgment debt against the State should not be
required to bring enforcement proceedings in order to recover the sum
due (see Qufaj Co. Sh.p.k. v. Albania, no. 54268/00,
§ 54-59, 18 November 2004, and also Metaxas, cited
above, § 49).
- The
Court considers that there are no reasons to depart from the above
finding in relation to final judgments that order restitution of
and/or compensation for properties.
- The
Court reiterates that a judgment in which it finds a breach imposes
on the respondent State a legal obligation under the Convention to
put an end to the breach and make reparation for its consequences. If
the domestic law allows only partial reparation to be made, Article
41 of the Convention gives the Court the power to award compensation
to the party injured by the act or omission that has led to the
finding of a violation of the Convention. The Court enjoys a certain
discretion in the exercise of that power, as the adjective “just”
and the phrase “if necessary” attest.
- Among
the matters which the Court takes into account when assessing
compensation are pecuniary damage, that is, the loss actually
suffered as a direct result of the alleged violation, and
non-pecuniary damage, that is, reparation for the anxiety,
inconvenience and uncertainty caused by the violation, and other
non-pecuniary loss (see, among other authorities, Ernestina Zullo
v. Italy, no. 64897/01, § 25, 10 November 2004).
- In
addition, if one or more heads of damage cannot be calculated
precisely or if the distinction between pecuniary and non-pecuniary
damage proves difficult, the Court may decide to make a global
assessment (see Comingersoll v. Portugal [GC], no. 35382/97, §
29, ECHR 2000-IV).
- The
Court considers, in the circumstances of the case, that by failing to
take the appropriate measures to award the applicants compensation
for the impossibility of returning the original property to them, the
State is to pay the applicants, in respect of pecuniary damage, an
amount corresponding to the current value of the property concerned –
that is, the plots of land measuring 48.55 sq. m and 46.70 sq. m.
- Moreover,
the Court considers that the events in question entailed a serious
interference with the applicants’ right to the peaceful
enjoyment of their possessions, in respect of which a sum of money
would represent fair compensation for the non-pecuniary damage
sustained.
- Making
its assessment on an equitable basis, as required by Article 41
of the Convention, the Court awards the applicants a lump sum of EUR
120,000 in respect of pecuniary and non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 36,000 for the costs and expenses
incurred before the domestic courts and before the Court. They did
not provide a detailed breakdown to substantiate their claim costs
and expenses.
- The
Government contested the claim.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum.
- The
costs claimed have not been substantiated, as the applicants failed
to submit itemised particulars of all the various amounts incurred in
respect of court fees, postage, telephone calls and the photocopying
of documents.
- Having
regard to the information in its possession and to the criteria set
out above, the Court considers it reasonable to award the sum of EUR
6,000 covering costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Dismisses the Government’s preliminary
objections;
2. Declares the complaints concerning Article 6 §
1 (as regards the non-enforcement of a final decision), Article 13
and Article 1 of Protocol No. 1 admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need to examine the
complaint under Article 13 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, 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 national currency of the respondent
State at the rate applicable on the date of settlement, plus any tax
that may be chargeable:
(i)
EUR 120,000 (one hundred and twenty thousand euros) in respect of
pecuniary and non-pecuniary damage;
(ii)
EUR 6,000 (six thousand euros) 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;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 22 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
