VALIO SHIPPING COMPANY v. ALBANIA - 34230/07 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section Committee)) [2015] ECHR 840 (06 October 2015)

In the case of Valio Shipping Company v. Albania,

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

          Nona Tsotsoria, President,
          Ledi Bianku,
          Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 15 September 2015,

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

PROCEDURE

1. The case originated in an application (no. 34230/07) 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 a Greek company, Valio Shipping Company (“the applicant company”), on 1 August 2007.

2. The applicant company was represented by Mr G. Papadimitriou and Mr C. Tzimas, lawyers practising in Athens. The Albanian Government (“the Government”) were represented by their then Agents, Ms S. Mëneri of the Ministry of Foreign Affairs and, subsequently, by Mrs E. Hajro of the State Advocate’s Office.

3. On 8 December 2008 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant company is a shipping company in liquidation incorporated under Greek Law in 1991, with its legal seat in Kallithea, Greece.

A. The proceedings concerning the compensation of damages

5. On 13 March 1995 the Vlora District Court decided that the applicant company’s vessel had been unlawfully seized. This decision was upheld on appeal and it became final at the latest on 1 August 1995.

6. On 1 December 1995 the applicant company brought a civil action against the local Treasury office (“Seksioni i Financës - Dega e Thesarit Vlorë”), the district prosecutor’s office (“Prokuroria e Rrethit Vlorë”) and the local Customs Administration (“Dogana e Rrethit Vlorë”), seeking compensation in respect of the damage caused by the unlawful seizure. The Customs Administration lodged a counter action requesting payment of expenses for keeping the vessel.

7. On 4 July 1996 the Vlora District Court dismissed both civil actions.

8. On 14 November 1996 the Tirana Court of Appeal quashed that decision. It ordered the local Treasury office to pay the applicant company 1,621,575 United States dollars (“USD”) for damages. It further ordered the applicant company to pay the Customs Administration USD 333,120 to cover the expenses incurred for the keeping of the vessel.

9. On 30 July 1997 the Supreme Court upheld the Court of Appeal’s decision. After this had become final, on 27 October 1997 an enforcement writ was issued at the request of the applicant company.

10. On 22 April 1999 the Customs Administration and the district prosecutor lodged a request for supervisory review (“rekurs në interes të ligjit”) against the Supreme Court’s decision. On 29 March 2000 the Supreme Court requested the appellants to resubmit the request as well as supplementary documents. On 28 April 2000 the appellants resubmitted the request. It would appear that the request was never examined by the Supreme Court.

B. Enforcement proceedings

11. On three occasions, namely on 10 November 1999, in 2003 and on 21 June 2006 the applicant company requested the bailiff to enforce the Court of Appeal’s decision, as upheld by the Supreme Court. It accordingly paid the bailiff tax in part.

12. On 8 August 2000 the bailiff discontinued the enforcement proceedings, having regard to the impossibility of the Savings Bank to freeze the local Treasury’s bank account.

13. On 3 February 2005 the applicant company withdrew its enforcement request.

14. From 2006 to 2008 the bailiff unsuccessfully sought the enforcement of the decision from the local Treasury office and the Ministry of Finance. The bailiff further fined the director of the local Treasury office for failure to enforce the decision. On 10 March 2008 it discontinued the enforcement on the grounds that the enforcement writ did not specify the nature of the obligation that had to be enforced and the applicant company had failed to pay the bailiff tax in full.

15. To date, the final decision remains unenforced.

II. RELEVANT DOMESTIC LAW AND PRACTICE

16. Article 525 of the Code of Civil Procedure (“CCP”) provides that the expenses relating to enforcement of a decision should be borne by the creditor. The expenses are subsequently recoverable through payment of the debt by the debtor. Article 616 of the CCP enumerates instances when the bailiff may discontinue the enforcement. Under Article 617 the bailiff’s decision to discontinue the proceedings is amenable to appeal before a court.

17. Articles 320 of the Criminal Code (“CC”) provides for the criminal offence of obstructing the enforcement of a court decision, which is punishable by a fine or imprisonment of up to two years.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

18. The applicant company alleged that the non-enforcement of the Court of Appeal’s decision of 14 November 1996, as upheld by the Supreme Court, breached its rights under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, read as follows:

Article 6 § 1

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

Article 1 of Protocol No. 1

“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 compliance with the six-month time-limit

19. The Government submitted that the application had been introduced outside the six-month time-limit, the final decision having been taken by the bailiff on 8 August 2000.

20. The Court notes that, despite the bailiff’s decision of 8 August 2000, the enforcement proceedings continued until 2008. Furthermore, the Court of Appeal’s decision of 14 November 1996, which became final on 30 July 1997, remains unenforced. Consequently, the situation complained of was still continuing at the time when the application was lodged, so that the six-month rule does not apply (see Puto and Others v. Albania, no. 609/07, § 24, 20 July 2010).

2. As regards the non-exhaustion of domestic remedies

21. The Government submitted that no appeal had been lodged against the bailiff’s decisions of 8 August 2000 and 10 March 2008. Also, it had been open to the applicant company to lodge a complaint with the Constitutional Court or a criminal complaint under Article 320 of the CC.

22. The applicant company argued that there was no domestic remedy to exhaust.

23. The Court has found that a constitutional complaint with the Constitutional Court is not an effective remedy as regards non-enforcement of a final decision (Gjyli v. Albania, no. 32907/07, §§ 58-60, 29 September 2009). Furthermore, having regard to the bailiff’s repeated inability to enforce the final decision in the applicant company’s favour, an appeal against its decisions discontinuing the enforcement would not have been capable of remedying the situation. Finally, the Court is not convinced that a criminal complaint under Article 320 of the CC would have provided redress or compensation to the applicant company. In fact, not even the imposition of a fine on the director of the local Treasury office resulted in a favourable outcome to the applicant company.

24. Having regard to these findings, the Court rejects the Government’s objections.

3. Conclusion

25. The Court concludes that these complaints, not being manifestly ill-founded or inadmissible on any other grounds under Article 35 §§ 1 to 3 of the Convention, must be declared admissible.

B. Merits

26. The applicant company maintained that there had been a breach of its rights under the Convention on account of the non-enforcement of the final decision in its favour.

27. The Government submitted that the final decision had not been enforced because not only had failed the applicant company to pay the bailiff tax in full, but also the enforcement writ failed to indicate the applicant company’s obligation to pay the Customs Administration the fee for keeping the vessel. Furthermore, the proceedings concerning the request for supervisory review were still pending before the Supreme Court.

28. The Court reiterates the general principles contained in Burdov v. Russia (no. 59498/00, §§ 37, 41, ECHR 2002-III), Raylyan v. Russia (no. 22000/03, §§ 31, 37, 15 February 2007), Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004).

29. The Court cannot accept the arguments put forward by the Government for the non-enforcement of the final decision. The debtor in this case was the local Treasury office. That being so, the bailiff tax is to be entirely recovered by the debtor at the end of the enforcement proceedings. Any omissions or mistakes found in the enforcement writ must be borne by the State and any errors must not be remedied at the expense of the individual concerned (see Gjyli, cited above, § 45). Furthermore, Article 616 of the CCP does not allow the discontinuation of enforcement on such grounds. It would also appear that the request for supervisory review was never examined by the Supreme Court (see paragraph 10 above).

30. Following the adoption of an enforcement writ for the execution of the Court of Appeal’s decision of 14 November 1996, as upheld by the Supreme Court, the applicant company unsuccessfully requested the enforcement on three occasions, namely in 1999, 2003 and 2006. The Court observes that the State authorities concerned, namely the local Treasury office and/or the Ministry of Finance, failed to enforce the decision despite the bailiff’s repeated requests to do so. The Government did not provide any plausible reasons for this failure, which still continues. Nor did they offer the applicant company any alternative solution.

31. The Court therefore concludes that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. 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

33. The applicant company claimed USD 1,295,455 in respect of pecuniary damage, which consisted of the amount of the debt as established by the Court of Appeal’s decision (USD 1,288,455) plus the bailiff tax it had paid (USD 7,000). No claim was submitted in respect of non-pecuniary damage.

34. The Government did not submit any comment.

35. Having regard to the violations found, the Court considers that the respondent State must pay the applicant company the sum awarded by way of the Court of Appeal’s decision of 14 November 1996, less any amount which is owed by the applicant company to the State as ordered by the Court of Appeal’s decision. The Court makes no award for non-pecuniary damage since the applicant company made no such claim.

B. Costs and expenses

36. Given that the applicant company made no claim in respect of costs and expenses, the Court makes no award.

C. Default interest

37. 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 application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of the Court of Appeal’s decision of 14 November 1996;

3. Holds

(a) that the respondent State is to pay the applicant company, within three months, the sum awarded by way of the Court of Appeal’s decision of 14 November 1996, less any amount which is owed by the applicant company to the State as ordered by the Court of Appeal’s decision, in respect of the pecuniary damage;

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

Done in English, and notified in writing on 6 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Nona Tsotsoria
Deputy Registrar President

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