BICI v. ALBANIA - 5250/07 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2015] ECHR 1057 (03 December 2015)

In the case of Bici v. Albania,

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

          Mirjana Lazarova Trajkovska, President,
          Päivi Hirvelä,
          Ledi Bianku,
          Paul Mahoney,
          Aleš Pejchal,
          Robert Spano,
          Armen Harutyunyan, judges,

and André Wampach, Deputy Section Registrar,

Having deliberated in private on 10 November 2015,

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

PROCEDURE

1. The case originated in an application (no. 5250/07) 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 Xhaferr Bici (“the applicant”), on 4 December 2006.

2. The applicant was represented by Mr S. Puto, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agent, Ms E. Hajro of the State Advocate’s Office.

3. On 5 February 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Proceedings concerning the restitution of a property

4. The applicant was born in 1926 and lives in Durrës.

5. The applicant’s father was the owner of two plots of agricultural land, which, at some point, were expropriated by the communist regime.

6. On 19 September 1996 the Durrës District Court acknowledged the existence of the applicant’s inherited property rights to a plot of agricultural land measuring 72,000 sq. m in accordance with Article 388 of the Civil Code (vërtetim fakti juridik). The operative provision reads as follows:

“the court accepts the plaintiff’s civil action and acknowledges the existence of the legal fact that his father possessed an agricultural plot of land measuring 72,000 sq. m (...). This recognition is made for compensation purposes (“pranimin e kërkesë padisë së paditësit Xhaferr Bici duke vërtetuar faktin juridik të pronësisë së babait të tij mbi një sipërfaqe toke bujqësore 72,000 sq. m (...). Kjo njohje bëhet për efekt kompensimi).”

7. On 26 September 1996 the applicant, relying on the District Court’s decision, lodged an application with the Durrës Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave - “the Commission”) seeking the recognition, restitution and/or compensation of the property.

8. From 2001 to 2008, the applicant requested several authorities to recognise his property right and restore the property to him.

9. On 11 March and 19 November 2002 the Durrës Prefecture (Prefektura e Qarkut Durrës) and the Commission stated that the application had been pending since 1996. The Commission also stated that the application was to be examined on the basis of the 1993 Property Act, as amended.

10. On 28 August 2007 the Commission confirmed that no decision had been taken in relation to the application of 26 September 1996. The letter included a list of documents that were part of the applicant’s file.

B. Events disclosed subsequent to the communication of the case

11. On 14 July 2008 the Commission returned the applicant his application of 26 September 1996. It stated that no decision could be taken on the strength of the District Court’s decision of 19 September 1996 on the basis of section 17 of the 2004 Property Act, as amended (see paragraph 16 below). It further noted that the 1993 Property Act and the subsequent statutory legal acts, which provided for the recognition of the property rights on the basis of a decision acknowledging the existence of a legal fact about alleged property rights (vërtetim fakti juridik), had been repealed.

12. There is no acknowledgment of receipt of the Commission’s letter of 14 July 2008 by the applicant.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Property Acts (Ligji për kthimin dhe kompensimin e pronës - Property Restitution and Compensation Act)

13. The Property Acts are described in detail in the judgments of Gjonbocari v. Albania (no. 10508/02, 23 October 2007); Driza v. Albania (no. 33771/02, 13 November 2007); Ramadhi v. Albania (no. 38222/02, 13 November 2007); Hamzaraj v. Albania (no. 2) (no. 45265/04, 22 September 2009); Luli and Others v. Albania (nos. 64480/09, 64482/09, 12874/10, 56935/10, 3129/12 and 31355/09, 1 April 2014); and, Manushaqe Puto and Others v. Albania, nos. 604/07, 43628/07, 46684/07 and 34770/09, 31 July 2012.

14. The relevant provisions, in so far as this case is concerned, are as follows:

15. Section 22 of the 1993 Property Act provided that, the recognition of a property right was based on official documents to be submitted by a former owner. In the absence of such official documents, the existence of alleged property rights could be acknowledged by a court decision in the presence of the defendant party. Consequently, a former owner was entitled to lodge an application with the Commission for the recognition of his alleged inherited property rights based on such a court decision. The 2004 Property Act repealed the 1993 Property Act.

16. Under section 17 of the 2004 Property Act, as amended, the time-limit for submitting new applications was extended. It was also provided that the Agency for Compensation and Restitution of Properties in Tirana (Agjencia e Kthimit dhe Kompensimit të Pronave ish - pronarëve - “the Central Agency”) would not take any decisions in relation to applications whose claims were solely based on a court decision which acknowledged the existence of a legal fact in accordance with Article 388 of the Code of Civil Procedure. All applications based on such a decision would be returned to the claimant within thirty days of submission and no further action would be taken.

17. Section 19 § 1 of the 2004 Property Act provided for the possibility of submitting new applications for the recognition, restitution and compensation of a property. In accordance with section 22, a former owner could make a new application for the recognition, restitution or compensation of the remainder of the property which had not been previously decided upon by the Commission.

B. Other relevant domestic law

18. Under Article 324 of the Code of Civil Procedure (“CCP”) a claimant may seek the annulment of an administrative decision. A claimant may also challenge the authorities’ refusal to take an administrative decision within the prescribed time-limit.

19. Article 388 of the CCP provides that any interested party has the right to request that the first-instance court acknowledges a fact whose documentary evidence has disappeared, been lost and cannot be created again or cannot be obtained in any other way, provided that such a fact is material to the emergence, change or cessation of personal or property rights.

20. Article 77 of the Code of Administrative Procedure (“CAP”) provides for the tacit refusal by a State authority in case no decision has been taken within ninety days in respect of an application. Under Article 137 of the CAP, an interested party may appeal, inter alia, against the refusal to take an administrative decision to a court, after having exhausted the respective administrative remedy.

21. Under the State’s extra-contractual liability Act (law no. 8510 of 15 July 1999), a State entity is obliged to compensate the damage caused to a third party during the exercise of its public functions, provided that such damage and compensation was recognised by that entity.

C. Domestic practice

22. In 2007 and 2008 the Supreme Court finally clarified the practice of the domestic courts in respect of the application of Article 388 of the Code of Civil Procedure. More specifically, in its decisions no. 746/2007 of 31 May 2007 and 98/2008 of 14 February 2008 in relation to a property dispute, the Supreme Court stated that “a court decision taken pursuant to Article 388 of the Code of Civil Procedure should not be construed as binding upon the administrative authorities, but as a guiding document to enable them to take a decision in compliance with the law and the documents they possess.” In decision no. 749/2007 of 31 May 2007 the Supreme Court added that “such a court decision shall be examined in combination with additional supporting documents by the Agency, which shall finally decide to accept or dismiss the applicant’s request [about the recognition of his property rights]”.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

23. The Court raised of its own motion the question whether there had been a breach of Article 6 § 1 of the Convention on account of the authorities’ failure to decide on the applicant’s application of 1996.

24. In his observations, the applicant complained that the length of the proceedings before the Commission had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which, in so far as relevant, read as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by a ... tribunal...”

A. Admissibility

1. Applicability of Article 6 § 1

25. The Government contested the applicability of Article 6 § 1 of the Convention to the enforcement of a court decision acknowledging the existence of a legal fact. They maintained that in the present case there was no dispute over a civil right. It was open to the applicant to submit a fresh application to the administrative authorities upon the introduction of new time-limits.

26. The applicant submitted that he complained about the length of proceedings before the administrative authorities instead of the non-enforcement of the court decision of 19 September 1996 which acknowledged the existence of a legal fact. Relying on the judgment in the case of Ramadhi and Others v. Albania, no. 38222/02, 13 November 2007, he argued in favour of the applicability of Article 6 § 1 of the Convention.

27. For Article 6 § 1 of the Convention, in its “civil” limb, to be applicable there must be a dispute (contestation) over a “right” that can be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious. It may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Moreover, the outcome of the proceedings must be directly decisive for the civil right in question (see, among many other authorities, Gorou v. Greece (no. 2) [GC], no. 12686/03, § 27, 20 March 2009).

28. In the present case, the applicant indeed complained about the length of proceedings before the administrative authorities. In accordance with the domestic law, he lodged an application for the recognition, restitution and/or compensation of his property. Irrespective of the absence of a decision in relation to his application, the proceedings before the administrative authorities were decisive for the determination of the applicant’s inherited property right, which is civil by its very nature (see, also, Ramadhi and Others v. Albania, no. 38222/02, §§ 35-37, 13 November 2007 in which the Court found Article 6 § 1 to apply to the proceedings before the Commission, which had recognised the applicant’s property rights and awarded compensation in lieu of the restoration of the land).

29. In these circumstances, the Court finds that Article 6 § 1 of the Convention applies in the present case, and, consequently, dismisses the Government’s objection.

2. Exhaustion of domestic remedies

(a) The parties’ submissions

30. The Government raised a number of objections as regards the applicant’s failure to exhaust domestic remedies. In their view, the applicant failed to lodge: i) an administrative complaint under Article 137 of the CAP, and subsequently, a civil action under Article 324 of the CCP; ii) an action for damages against the State under the State’s extra-contractual liability Act; iii) a fresh request with the Commission in accordance with sections 17 and 19 of the 2004 Property Act; iv) a request under section 22 of the 2004 Property Act; and, v) a request to appeal out of time. They further submitted that the applicant’s application had been tacitly rejected on the strength of Article 77 of the CAP.

31. The applicant argued that there was no effective remedy to exhaust.

(b) The Court’s assessment

(i) As regards an administrative complaint under Article 137 of the CAP and a civil action under Article 324 of the CCP

32. The Court has already rejected the Government’s objection concerning a failure to lodge an application under Article 137 of the CAP and Article 324 of the CCP in the case of Luli and Others v. Albania, cited above, §§ 79-80. There are no grounds warranting a departure from those findings. The Court therefore rejects this objection.

(ii) As regards an action for damages under the State’s extra-contractual liability Act

33. The Court notes that the Government did not provide any relevant domestic case-law supporting their argument that an application under the State’s extra-contractual liability Act had any prospect of success in a similar situation where the authorities acknowledged their extra-contractual responsibility and accordingly awarded compensation (see, for example, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 71, 17 September 2009). The Court therefore rejects this objection.

(iii) As regards a fresh request under sections 17 and 19 of the 2004 Property Act

34. In the Court’s view, requiring the applicant to lodge a fresh application under sections 17 and 19 of the 2004 Property Act would not be tantamount to deciding his impending application before the Commission, which had not taken a decision since 1996. The Court therefore rejects this objection.

(iv) As regards a request under section 22 of the 2004 Property Act

35. An application under section 22 of the 2004 Property Act was necessary on condition that a former owner’s property rights had been previously recognised by a Commission decision. In the present case, no such decision had been taken in the applicant’s favour. The Court therefore rejects the Government’s objection.

(v) As regards a request to appeal out of time

36. The Court notes that the Government failed to indicate the time-limit which the applicant had failed to observe, in respect of which he should have lodged a request to appeal out of time.

(vi) As regards the application of Article 77 of the CAP

37. The Court notes that the Property Act, constituting lex specialis, did not provide for tacit rejection at the expiry of time-limits. The authorities’ responses of 2002 confirmed the fact that the application was still pending for a decision (see paragraph 9 above). The Court therefore rejects the Government’s objection.

3. Conclusion

38. The Court concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Not being inadmissible on any other grounds, the complaint must therefore be declared admissible.

B. Merits

39. The Government maintained that the Commission had conducted the proceedings in accordance with law. On 19 November 2002 it had informed the applicant that his application would be examined upon the entry into force of the new Property Act. The Agency had informed the applicant of its decision of 14 July 2008. In their view, the applicant had not acted with due diligence.

40. The applicant complained that the administrative proceedings had taken excessively long time. He stated that he had been diligent in sending several requests to the authorities. He alleged that he had never been informed of the Commission’s decision of 14 July 2008.

41. The Court will assess the reasonableness of the length of the proceedings in the light of the particular circumstances of the case and having regard to the criteria laid down in its case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities. On the latter point, what was at stake for the applicant has also to be taken into account (see, amongst others, Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 67, ECHR 2007-II).

42. The Court notes that the proceedings started on 26 September 1996 and ended on 14 July 2008. They have thus lasted for 11 years, 9 months and 18 days before one level of jurisdiction.

43. There is no indication that the determination of the applicant’s property rights was complex. The Government gave no explanation whatsoever for the Commission’s failure to examine the applicant’s request during this time. No delay could be attributed to the applicant who, on several occasions, enquired about the progress of the proceedings before the Commission.

44. In view of what was at stake for the applicant, that is the recognition of his inherited property rights, the Court recalls that it is for the Contracting States to organise their legal systems in such a way that the competent authorities can meet the requirements of Article 6 of the Convention, including the obligation to take a decision within a reasonable time (see, mutatis mutandis, Mishgjoni v. Albania, no. 18381/05, § 59, 7 December 2010; and Gjonbocari and Others, cited above, § 67).

45. The Court concludes that there has been a violation of Article 6 § 1 of the Convention as regards the length of proceedings.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.1 TO THE CONVENTION

46. The applicant complained that there had been a breach of Article 1 of Protocol No. 1 to the Convention, which read 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.”

47. The Government submitted that this complaint should be declared incompatible ratione materiae, the applicant’s property rights not having been recognised by the Commission. The applicant did not have any legitimate expectation under the domestic law but only a mere hope for the recognition of his property rights. The submission of documents did not automatically confer a property right. It was for the authorities to decide, upon the submission of documents and with due regard to the public interest, whether the applicant’s property rights would be recognised.

48. The applicant considered that he had a “legitimate expectation” that the authorities would recognise his property right. He had submitted all the necessary documents in accordance with the law. The authorities’ failure to inform the applicant about the impending proceedings led the applicant to believe that he had complied with the statutory requirements and that there was no reason that his request would be refused.

49. The Court reiterates that an applicant may allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions relate to his or her “possessions” within the meaning of that provision. The concept of “possessions” has an autonomous meaning which is independent of the formal classification in domestic law (Former King of Greece and Others v. Greece [GC], no. 25701/94, § 60, ECHR 2000-XII). “Possessions” can be “existing possessions” or assets, including claims in respect of which an applicant can argue that he has at least a “legitimate expectation” (which must be more concrete than a mere hope) that they will be realised, that is, that he or she will obtain effective enjoyment of a property right (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, ECHR 2002-VII, § 69, and Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004-IX). A claim may be regarded as an asset only when it is sufficiently established to be enforceable (see Kopecký, cited above, § 49; and Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59). By way of contrast, the hope of recognition of the existence of an old property right which it has long been impossible to exercise effectively cannot be considered as 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, § 83, ECHR 2001-VIII). In the Court’s view, a claim is conditional when it depends upon an uncertain future event. No “legitimate expectation” can come into play in the absence of a claim sufficiently established to constitute an asset.

50. In the present case, the applicant was a claimant who lodged an application for the recognition, restitution and/or compensation of property rights. By making the application, the applicant relied on a court decision acknowledging the existence of the legal fact that his late father allegedly owned a plot of agricultural land (see paragraph 6 above). Consequently, the application did not concern “existing possessions” of the applicant himself. It therefore remains to be determined whether the applicant could be considered to have had a “legitimate expectation” that a claim, on the basis of a court decision acknowledging a legal fact, amounted to an asset that would be determined in his favour.

51. In this connection, the Court notes that a court decision acknowledging a legal fact whose documentary evidence has disappeared, taken pursuant to Article 388 of the CCP is of a declaratory nature (also see Marku v. Albania, no. 54710/12, §§ 19 and 37, 15 July 2014). Such a decision does not of itself confer on a claimant property rights or any other rights whatsoever. Under domestic law, the recognition of a claimant’s property rights was contingent upon the Commission, which was the competent administrative authority to deal with former owners’ restitution and compensation of property claims (see Ramadhi and Others, cited above, § 25). The Commission did not automatically allow a claimant’s application for the restoration and/or compensation of his alleged property rights, which had been acknowledged by a court pursuant to Article 388 of the CCP. It had to ensure that the application complied with the statutory requirements as laid down in the Property Act. The Supreme Court’s subsequent case-law lends support to the view that such a court decision did not suffice to recognise automatically a claimant’s property rights (see paragraph 22 above).

52. It results that the applicant has neither a right nor a claim amounting to a “legitimate expectation” in the sense of the Court’s case-law to obtain restitution of the property in question, and therefore no “possession” within the meaning of Article 1 of Protocol No. 1. It follows that this complaint is incompatible with the Convention ratione materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

53. 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

54. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage.

55. The Government contested the claim on the ground that it was not detailed and founded in any document.

56. The Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards him EUR 7,000 under that head.

B. Costs and expenses

57. The applicant claimed EUR 2,600 in respect of costs and expenses incurred before the Court, which consisted of EUR 130 for the submission of the application, EUR 1,900 for the submission of the observations, EUR 290 for legal consultation and EUR 280 for administrative and translation expenses.

58. The Government contested the claim on the ground that the applicant failed to substantiate and specify those expenses in accordance with Rule 60 § 2 of the Rules of Court.

59. The Court reiterates that costs and expenses will not be awarded under Article 41 unless it is established that they were actually incurred, were necessarily incurred and were also reasonable as to quantum (see Driza, cited above, § 141). Furthermore, legal costs are only recoverable in so far as they relate to the violation found (see Vistiņš and Perepjolkins v. Latvia (just satisfaction) [GC], no. 71243/01, § 50, ECHR 2014).

60. The Court observes that it has not been provided with supporting invoices to prove that all expenses claimed were in fact incurred. It further questions whether the remaining expenses were reasonable as to quantum. Having regard to the documents in its possession and its findings, the Court awards the applicant EUR 850 in respect of the Strasbourg proceedings.

C. Default interest

61. 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 complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings;

3. Holds

(a) that the respondent State is to pay the applicant, 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 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, 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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Mirjana Lazarova Trajkovska
Deputy Registrar President

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