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FOURTH
SECTION
CASE OF
NURI v. ALBANIA
(Application
no. 12306/04)
JUDGMENT
STRASBOURG
3 February
2009
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 Nuri v. Albania,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Giovanni
Bonello,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 13 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 12306/04) 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, Ms Tefta Nuri
(“the
applicant”), on 18 February 2004.
- The
applicant, who had been granted legal aid, was represented by Mr S.
Puto, a lawyer practising in Tirana. The
Albanian Government
(“the Government”) were
represented by their Agent, Ms S. Meneri.
- The
applicant alleged a violation of Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1 to the Convention on account of a
breach of her property rights caused by the authorities’
failure to enforce an administrative decision awarding her
compensation in lieu of the physical restitution of her property.
- On
5 June 2006 the President of the Fourth Section of the Court decided
to give notice of the application to the Government. Under the
provisions of Article 29 § 3 of the Convention, it was decided
to examine the merits of the application at the same time as its
admissibility.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1948 and lives in Tirana.
- On
an unspecified date the applicant lodged an application with the
Lushnja Property Restitution and Compensation Commission (Komisioni
i Kthimit dhe Kompensimit të Pronave – “the
Commission”), seeking to have the property of her deceased
relative, confiscated in 1949, returned to her.
- On
22 April 1994 the Commission upheld the application and recognised
the applicant’s property rights over two villas and a
three-storey building measuring 1,380 sq. m and a plot of land
measuring 540 sq. m.
- As
regards the three-storey building and one of the villas, the
Commission decided to return the property to the applicant. As
regards the other villa, the Commission recognised the applicant’s
co-ownership with its existing occupier. However, as it was
impossible to allocate the original plot of land measuring 540 sq. m
to the applicant, the Commission ordered the payment of compensation
in State bonds equivalent to the value of the plot. Lastly,
the Commission ordered the authorities to enforce the decision.
- On
an unspecified date the applicant lodged a civil action with the
Lushnjë District Court challenging the part of the Commission’s
decision that recognised one of the villas as being jointly owned and
claiming full ownership thereof. Notice of the proceedings was given
to the existing occupier and the Commission.
- On
23 January 1996 the court upheld the applicant’s civil claim
and granted her full ownership of the villa. The court did not rule
on the part of the Commission’s decision relating to the
compensation issue.
- On
10 May 1996, following an appeal by the defendant party, the Tirana
Court of Appeal upheld the District Court’s decision. As no
appeal was lodged with the Supreme Court, that decision became final
and binding.
- On
an unspecified date, following the enforcement of the court’s
decision, the applicant took possession of the properties allocated
to her, that is to say, the two villas and the three-storey
building.
- In
2004, as no State bonds had been issued, the applicant wrote a letter
to the Commission seeking a solution to the compensation issue in
respect of his plot of land measuring 540 sq. m. She did not receive
a reply to her letter.
- To
date, the authorities have not provided compensation in respect of
the plot of land measuring 540 sq. m, in spite of the Commission’s
decision.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law has been described in detail in
Driza v.
Albania (no. 33771/02, §§ 33-44, ECHR 2007 ...
(extracts)) and Ramadhi and Others v. Albania (no. 38222/02,
§§ 22-30, 13 November 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained of the authorities’ failure to effectively
enforce the Commission’s decision awarding her compensation.
She relied on Article 6 § 1 of the Convention which, in so far
as relevant, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
Admissibility
1. The parties’ submissions
- The
Government challenged the applicability of
Article 6 § 1 of
the Convention to the administrative proceedings as indicated in the
instant case.
- They
submitted that the applicant had not exhausted all domestic remedies
in respect of the non-enforcement of the
Commission’s
decision. They held that the applicant should have lodged a complaint
with the State Committee for Property Restitution and Compensation
(replaced by the Agency for the Restitution and Compensation of
Property by virtue of the 2006 Property Act) and requested the
enforcement of the Commission’s decision. As part of the
Commission’s decision had been upheld by the domestic courts,
the Government maintained that the applicant should have availed
herself of the enforcement procedures in accordance with the Code of
Civil Procedure.
- In
so far as the Government’s objection regarding the
non exhaustion of domestic remedies is concerned, the applicant
contended that the Property Act did not provide a remedy in the event
of non enforcement of a Commission decision concerning the award
of compensation in lieu of the physical restitution of property.
2. The Court’s assessment
- As
regards the Government’s objection in relation to the
applicability of Article 6 § 1 of the Convention, the Court
notes that a similar objection was rejected in the Court’s
judgment Ramadhi and
Others v. Albania (cited above, §§
35-37). The Court sees no reason to reach a different conclusion in
the present case. It therefore rejects the Government’s
objection.
- As
regards the Government’s objection concerning the
non-exhaustion of domestic remedies by the applicant, the Court
recalls its findings in its judgment Ramadhi and Others (cited
above, §§ 50-51), to the effect that there exists no
effective remedy enabling the Commission’s decisions to be
enforced. It therefore dismisses the Government’s objection.
- The
Court considers that this complaint is not manifestly ill-founded,
nor is it inadmissible on any other grounds within the meaning of
Article 35 of the Convention. It therefore declares it admissible.
Merits
1. The parties’ submissions
-
The Government contended that the compensation process had been
complex and that the difficulties with it were attributable to
massive demographic movements, drastic changes to property titles
during the previous communist regime, lack of experience and the
transition process. They submitted that efforts were under way for
the adoption of maps for property valuation. The Government failed to
submit any figures as to the number of citizens who had benefited
from the compensation process.
- The
applicant argued that the non-enforcement of the Commission’s
decision had breached her right of access to a court. She maintained
that the authorities had never issued State bonds as a means of
compensation to property owners, despite the issuance of treasury
bonds by the State. The applicant alleged that she had not remained
inactive in seeking enforcement of the Commission’s decision.
She pointed to her letter of 2004 to the Commission (see paragraph 14
above). Relying on the Court’s case-law, she maintained that
she was not required to resort to enforcement proceedings in respect
of a decision against the authorities (see Metaxas v. Greece,
no. 8415/02, § 19, 27 May 2004).
2. The Court’s assessment
- The
general principles under Article 6 § 1 of the Convention
concerning the non-enforcement of Commission decisions are set out in
the Ramadhi and Others judgment (cited above, §§ 45
et seq.).
- The
Court notes that the Commission’s decision of 22 April 1994
ordered compensation to be paid in respect of the plot of land
measuring 540 sq. m. That decision has never been challenged and is
still in force.
- The
Court observes that, irrespective of whether the final decision to be
executed takes the form of a court judgment or a decision by an
administrative authority, domestic law as well as the Convention
require that it be enforced. No steps have been taken to enforce the
Commission‘s decision in the applicant’s favour (see
Ramadhi and Others, cited above, § 49).
- The
Court therefore concludes that there has been a violation of the
applicant’s right of access to a court under Article 6 § 1
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE
CONVENTION
- The
applicant complained that the failure to pay her compensation
entailed a breach of 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.”
A. Admissibility
- The
Court considers that the complaint under this head is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further finds that no other grounds have been
established for declaring this part of the application inadmissible,
and therefore declares it admissible.
B. Merits
1. The parties’ submissions
- The
Government contended that the applicant had never had effective
possession of the property. Consequently, there had never been a
breach of her right of property. They admitted that the process of
restitution and compensation could not occur overnight and
spontaneously, and that the delays associated therewith were related
to the transition process the country was going through.
- The
Government maintained that the applicant had never complained that
the delays in execution had caused her financial or social
difficulties. Since the rest of the Commission’s decision had
been enforced, the non-enforcement of the compensation claim had not
aggravated her situation or imposed a disproportionate burden on her.
- The
applicant stressed the fact that the non-enforcement of the
Commission’s decision concerning compensation for the plot of
land measuring 540 sq. m, which had not been challenged, infringed
her right to property.
2. The Court’s assessment
- The
general principles under Article 1 of Protocol No. 1 to the
Convention have been set out in the Ramadhi and Others
judgment (cited above, §§ 67-71 and §§
75-79).
- The
Court observes that the applicant had her right to compensation
recognised by virtue of the 1994 Commission decision which was final.
Hence, for the purposes of the examination of the complaint it
considers the applicant’s claim sufficiently established in
domestic law to qualify as an enforceable “asset” under
Article 1 of Protocol No. 1 (see, for example, Ramadhi and Others,
cited above, § 71).
- It
notes that this complaint is linked to the one examined under Article
6 § 1 in relation to the failure to enforce the Commission’s
decision (see paragraphs 26-29 above). On the basis of its
established case-law, the Court finds that the interference falls to
be examined under the first sentence of the first paragraph of
Article 1 of Protocol No. 1, which lays down the principle of
peaceful enjoyment of property in general terms (see, for example,
see Burdov v. Russia, no. 59498/00, § 40, ECHR
2002-III, Jasiūnienė v. Lithuania, no.
41510/98, § 45, 6 March 2003; Sabin Popescu v.
Romania, no. 48102/99, § 80, 2 March 2004; and Beshiri
and Others v. Albania, no. 7352/03, § 99, 22
August 2006; Ramadhi and Others v. Albania, cited above, §
77).
- The
Court must therefore establish whether a fair balance was struck
between the demands of the general interest of the community and the
requirements of the protection of the individual‘s fundamental
rights. In the circumstances of the instant case, the Court is called
upon to determine whether the length of time during which the
domestic authorities failed to pay the applicant compensation
disturbed that balance and whether it placed an excessive burden on
her.
- The
Court notes that it has already examined this issue in its judgment
in the case of Ramadhi and Others, cited above, §§
79-84. Noting that the Government have not produced any convincing
evidence to justify the failure of the domestic authorities over so
many years to determine the final amount of compensation due to the
applicant, the Court sees no reason to reach a different conclusion
in the circumstances of the instant case.
- Accordingly,
there has been a violation of Article 1 of Protocol No. 1 to the
Convention in this case.
III. APPLICATION OF ARTICLES 46 and 41 OF THE CONVENTION
A. Article 46 of the Convention
- Article
46 of the Convention provides:
“1. The High Contracting Parties undertake to
abide by the final judgment of the Court in any case to which they
are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
- The
Court reiterates its findings in Ramadhi and Others (cited
above, §§ 90 – 94) in respect of Article 46 of the
Convention. It urges the respondent State to adopt general measures
as indicated in paragraphs 93 and 94 of the said judgment.
B. Article 41 of the Convention
- The
applicant claimed 141,910 euros (EUR) in respect of pecuniary damage
and EUR 40,320 in respect of non-pecuniary damage. As regards the
claim for pecuniary damage, the applicant submitted an expert
valuation of the property which assessed its current value at
EUR 64,500, and estimated the loss of profits since 1994 at EUR
77,410.
- The
Government did not submit any arguments relating to the amounts
claimed.
- The
Court recalls the general principles set out in the judgment Ramadhi
and Others (cited above, §§ 98-101) as regards Article
41 claims.
- The
Court considers, in the circumstances of the case, that payment of
the compensation corresponding to the value of the plot of land
measuring 540 sq. m, together with a measure of interest to reflect
the intervening loss of use of the said plot of land, would put the
applicant as far as possible in a situation equivalent to the one in
which she would have been if there had not been a breach of the
Convention.
- Having
regard to the material in its possession and making its assessment on
an equitable basis, the Court awards the applicant the sum of EUR
71,500 in respect of pecuniary damage.
- As
regards non-pecuniary damage, the Court, ruling on an equitable
basis, awards the sum of EUR 5,000 to the applicant.
1. Costs and expenses
- The
applicant, who received EUR 850 in legal aid from the Council of
Europe in connection with the presentation of her case, sought
EUR
4,000 for the legal expenses incurred in the domestic proceedings and
the Strasbourg proceedings. She did not provide a detailed breakdown
to substantiate her claim for costs and expenses.
- According
to the Court’s case-law, applicants are entitled to the
reimbursement of their costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. To this end, Rule 60 §§ 2 and
3 of the Rules of Court stipulates that applicants must enclose with
their claims for just satisfaction “any relevant supporting
documents”, failing which the Court “may reject the
claims in whole or in part”. In the present case, noting that
the applicant failed to produce any documents – such as
itemised bills or invoices – in support of her claim, the Court
does not make any award under this head.
2. 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the failure to enforce the
Commission decision of 22 April 1994;
3. Holds that there has been a violation of Article 1 of
Protocol No. 1 to the Convention on account of the non-enforcement of
the Commission decision of 22 April 1994;
- 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
71,500 (seventy one thousand five hundred euros) in respect of
pecuniary damage;
(ii) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
