LULI v. ALBANIA - 30601/08 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section Committee)) [2015] ECHR 789 (15 September 2015)

In the case of Luli v. Albania,

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

          Paul Mahoney, President,
          Ledi Bianku,
          Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 25 August 2015,

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

PROCEDURE

1. The case originated in an application (no. 30601/08) 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 Pëllumb Luli (“the applicant”), on 23 January 2008.

2. The applicant was represented by Mr A. Tartari, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agents of the State Advocate’s Office, Mrs E. Hajro and, subsequently, by Ms L. Mandia.

3. On 25 January 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1961 and lives in Tirana.

5. On 31 May 1996 the Tirana Commission recognised the applicant’s and other heirs inherited title to a plot of land measuring 23,500 sq. m, of which 5,000 sq. m were restored (“the first Commission decision”). They would be compensated by way of an equivalent plot of land within their property (i njihet dhe i kthehet ish pronarit pronësia mbi këtë truall duke kompensuar me truall ekuivalent brenda truallit të tij) in respect of a plot of land measuring 966 sq. m (“the first plot of land”), of which 188 sq. m were occupied with illegal constructions. The occupiers were entitled to buy the plot of land measuring 188 sq. m or rent it on the basis of an agreement to be concluded between the parties. It also recognised the right of first refusal of a public building measuring 444 sq. m situated within the plot of land measuring 966 sq. m. It further decided that the applicant and other heirs would be compensated in one of the ways provided for by law in respect of another plot of land measuring 3,961 sq. m (“the second plot of land”). Finally, it decided to examine the applicant’s and other heirs’ inherited property right in respect of the remaining plot of land measuring 13,454 sq. m at a later stage (“the third plot of land”). To date, no Commission decision has been taken in respect of the remaining plot of land measuring 13,454 sq. m.

6. On 30 April 1997 the applicant’s and other heirs’ inherited title over a plot of land measuring 6,154 sq. m, of which the first plot of land was part, was registered into the land register. The relevant data entered in the land register reads as follows:

“On 30 April 1997 is registered into the land register an unoccupied plot of land measuring 5,000 sq. m; an unoccupied plot of land measuring 966 sq. m, which was compensated by way of an equivalent plot of land within their property ...”

To date, the applicant has not been provided with any compensation concerning the first and second plots of land.

7. On the same day, the Tirana Commission, by virtue of another decision (“the second Commission decision”), recognised the applicant’s and other heirs’ inherited title to another plot of land measuring 2,900 sq. m (“the fourth plot of land”). Since the entire plot of land was occupied, it decided that the applicant and other heirs would be compensated in one of the ways provided for by law. To date, the applicant has not been provided with any compensation.

II. RELEVANT DOMESTIC LAW AND PRACTICE

8. The relevant domestic law and practice have been described in detail in, inter alia, Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, §§ 23-53, 31 July 2012) and Ramadhi v. Albania (no. 38222/02, §§ 22-30, 13 November 2007).

9. On 6 March 2013 and 30 July 2014 the Government approved and issued new property valuation maps, which included the reference price per square metre throughout the country (Council of Ministers’ decisions nos. 187 of 6 March 2013 and 514 of 30 July 2014).

III. COUNCIL OF EUROPE MATERIAL

10. Subsequent to the events described in 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 Committee of Ministers gave a decision on 6 March 2014 on the execution of judgments concerning the Albanian authorities’ failure to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land, which was adopted at its 1193^th meeting, stated, in so far as relevant, the following:

“The Deputies

(...)

2. considered the actions taken since September 2013 and the measures foreseen for the coming weeks and months as encouraging; regretting, however, that the deadline fixed by the pilot judgment will not be met, underlined that in order to fulfill the obligations imposed by the European Court and to introduce the required compensation mechanism without further delay and within the time frame proposed by the action plan, the political commitment expressed in the action plan must be followed by concrete and substantial actions at the domestic level, in particular in the fields identified by the Committee in its Interim Resolution CM/ResDH(2013)115;

(...).”

11. The Committee of Ministers’ decision of 5 June 2014 on the execution of judgments concerning the Albanian authorities’ failure to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land, which was adopted at its 1201^st meeting, stated, in so far as relevant, the following:

“The Deputies

1. welcomed the formal adoption by the Albanian Council of Ministers of the action plan for the establishment of an effective compensation mechanism, thereby rendering the action plan binding, and noted with satisfaction that the measures foreseen are being adopted in conformity with the previsions in that plan;

2. in view of the overall deadline foreseen for the implementation of this mechanism, strongly encouraged the authorities to intensify their efforts with a view to reducing this time-frame as much as possible;

(...).”

12. The Committee of Ministers’ decision of 11 June 2015, which was adopted at its 1230^th meeting, stated, in so far as relevant, the following:

“The Deputies

1. welcomed the commitment showed by the Albanian authorities in the search for an effective and sustainable solution to the important structural problem at stake in this group of cases; welcomed in this regard their presentation of the draft law and their co-operation with the Council of Europe, as well as the close consultations held with the Department for Execution, particularly in Tirana on 23 April 2015;

2. noted that, as requested by the Committee of Ministers and by the pilot judgment Manushaqe Puto, the authorities have conducted a careful review of all of the legal and financial implications and have estimated the overall cost of compensation in order to have a concrete basis for considering the necessary legislative changes;

3. invited the Albanian authorities to submit, as soon as possible, explanations and additional information on the solutions proposed in the draft law ...

(...)”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION AS WELL AS OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

13. The applicant 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 him compensation in lieu of the restitution of his 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 the compensation in respect of the third plot of land

14. The applicant complained about the non-enforcement of the first Commission decision in respect of the remaining plot of land measuring 13,454 sq. m (see paragraph 5 above).

15. The Government contended that the Commission decision did not recognise any right of compensation to that plot of land. It was for the authorities to decide at a later stage.

16. The Court notes that the first Commission decision decided to examine the applicant’s and other heirs’ inherited property right in respect of the third plot of land at a later stage.

17. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Preliminary objections in respect of the remaining plots of land

(a) As regards the compensation in respect of the first plot of land

18. The applicant complained about the non-enforcement of the first Commission decision in respect of the first plot of land. He alleged that, since that plot of land was occupied by third parties, he was entitled to compensation as decided by the first Commission decision. No registration had been made in the land register concerning that plot of land.

19. The Government contended that the first Commission decision awarding compensation in-kind in respect of the first plot of land had already been enforced since that title of property had been registered in the land register (see paragraph 6 above).

20. The Court notes that the Commission decision recognised the right of compensation in-kind in respect of the first plot of land by awarding the same property. However, the Court notes that the domestic law at the material time recognised a right of compensation in-kind by awarding an equivalent plot of land and not the same property (see Gjonbocari and Others v. Albania, no. 10508/02, § 37, 23 October 2007). It further notes that, in the present case it transpires from the wording of the operative part of the first Commission decision, that that plot of land was actually occupied (see paragraph 5 above).

21. The Court also reiterates the Government’s submission made in the context of the proceedings in the case of Manushaqe Puto and Others v. Albania, cited above, § 68, according to which, to date, no in-kind compensation was ever effected. It, moreover, reiterates its findings in the case of Çaush Driza, to the effect that this form of compensation is not an effective remedy (see Çaush Driza v. Albania, no. 10810/05, §§ 77-83, 15 March 2011).

22. Having regard to the above considerations, the Court, dismisses the Government’s objection.

(b) As regards the compensation in respect of the second plot of land

23. The Government submitted that the actual surface of the second plot of land measured only 3,892 sq. m and that, accordingly, compensation should be calculated on that basis.

24. The Court notes that the Government did not submit any documentary evidence to substantiate this claim. Accordingly, it will proceed on the assumption that the applicant is entitled to compensation in respect of a plot of land measuring 3,961 sq. m. as decided by the first Commission decision. Therefore, the Court dismisses the Government’s objection.

3. Conclusion

25. The Court considers that the applicant’s remaining complaints with regard to the first, second and fourth plots of land are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Not being inadmissible on any other grounds, the complaints must therefore be declared admissible.

B. Merits

26. The Court finds that the domestic authorities’ failure over so many years to enforce the final court decision and, notably, to pay the compensation awarded, breached the applicant’s rights under Article 6 § 1 and under Article 1 of Protocol No. 1 to the Convention (see Driza v. Albania, no. 33771/02, ECHR 2007-V (extracts), Vrioni and Others v. Albania and Italy, nos. 35720/04 and 42832/06, 29 September 2009, Manushaqe Puto and Others v. Albania, cited above and, Ramadhi and Others v. Albania, cited above).

27. The Court also concludes that there was no effective domestic remedy that allowed for adequate and sufficient redress on account of the prolonged non-enforcement of the final administrative decisions awarding compensation. There is accordingly a violation of Article 13 of the Convention (see Manushaqe Puto and Others v. Albania, cited above).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

28. 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

29. The applicant and other heirs (the latter not being applicants) relied on an expert’s valuation report claiming 2,937,000 euros (“EUR”) in respect of pecuniary damage. That calculation was based on the property value of the plot of land measuring 18,500 sq. m, as recognised by the first Commission decision, on the basis of the price 21,593 Albanian leks (“ALL”)/sq. m as provided for in the Council of Ministers’ decision (“CMD”) no. 139 of 13 February 2008. No specific claim was made in respect of the applicant’s share of the property. The applicant further made no concrete claim concerning his share of property into the fourth plot of land. He also did not submit any claim in respect of non-pecuniary damage.

30. The Government submitted that the market value of the property was 22,996 ALL/sq. m on the basis of CMD no. 139 of 13 February 2008 as updated by CMD no. 1620 of 26 November 2008.

31. In view of the ineffective nature of the current system of compensation and having regard, in particular, to the fact that it is now over 19 years since the applicant was initially awarded compensation, the Court, without prejudging possible future developments with regard to the establishment of an effective compensation mechanism, considers it reasonable to award the applicant a sum which would represent a final and exhaustive settlement of the case before it.

32. The Court recalls its findings in the case of Vrioni and Others v. Albania (just satisfaction), nos. 35720/04 and 42832/06, §§ 33-39, 7 December 2010 as regards the method of calculation of pecuniary damage. The Court will base its calculation of pecuniary damage on the property valuation maps adopted by the Government in 2008 (see, also, Manushaqe Puto and Others, cited above, § 125), no reliance having been placed by the Government on the recent property valuation maps.

33. Having regard to the parties’ submissions and the material in its possession, the Court considers it reasonable to award the applicant EUR 27,000 in respect of pecuniary damage in respect of the first and second plots of land equivalent to his share of property.

34. The Court also considers that, despite the absence of just satisfaction claims concerning the fourth plot of land, the respondent Government should ensure the payment of an effective form of compensation to the applicant in respect of that plot of land, in accordance with the domestic decision 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).

B. Default interest

35. 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 concerning Articles 6 § 1 and 13 of the Convention as well as Article 1 of Protocol No. 1 as regards the non-enforcement of the Commission decisions in respect of the plots of land measuring 966 sq. m, 3,961 sq. m and 2,900 sq. m admissible and the remainder of the application inadmissible;

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;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 27,000 (twenty-seven thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage as regards his share of property into the plots of land measuring 966 sq. m and 3,961 sq. m, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that the respondent State must secure, by appropriate means, the enforcement of the national decision given in favour of the applicant in respect of the plot of land measuring 2,900 sq. in accordance with his share of property, within three months;

(c) 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 15 September 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Paul Mahoney
Deputy Registrar President

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