In the case of Metalla and Others v. Albania,
The European Court of Human Rights
(Fourth Section), sitting as a Committee composed of:
George Nicolaou, President,
Krzysztof Wojtyczek,
Yonko Grozev, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 23 June 2015,
Having noted that the underlying legal issue in the
applications below is already the subject of well-established case-law of the
Court (see Manushaqe Puto and Others v. Albania, nos. 604/07,
43628/07, 46684/07 and 34770/09, § 31 July
2012),
Delivers the following judgment, which was adopted on the
above-mentioned date:
PROCEDURE
The case originated in four applications (nos. 30264/08,
42120/08, 54403/08 and 54411/08) 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 nine Albanian nationals between 13
June 2008 and 8 October 2008. Details of the applications and representatives are
set out in Appendix No. 1 attached to the judgment.
The Albanian Government (“the Government”) were
represented by their then Agents, Ms S. Mëneri of the Ministry of Foreign
Affairs and Mrs E. Hajro of the State Advocate’s Office and, subsequently,
by Ms L. Mandia of the State Advocate’s Office.
On 21 January 2010 the applications were communicated
to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Application no. 30264/08: Metalla
On 9 August 1995 the Shijak Commission recognised
the applicants’ inherited title to a plot of land measuring 1,020 sq. m of
which 747 sq. m were restored. Since the remaining plot of land measuring 272
sq. m was occupied, the applicants would be compensated in one of the ways
provided for by law.
The Commission decision remains unenforced.
B. Application no. 42120/08: Bushati
On 8 February 1995 the Shkodër Commission
recognised the applicant’s and other heirs’ inherited title to a two-storey
building and to a plot of land surrounding the building measuring 500 sq.
m. Since the plot of land measuring 500 sq. m was occupied, the
applicant and the heirs would be compensated in one of the ways provided for by
law. It was also decided that the building should be restored to them.
The applicant claimed that in 1995 and 1997 he
instituted two legal actions against a third party for the vacation and
restoration of his property. However, he decided to discontinue those actions,
having regard to pending judicial proceedings in other cities. It would appear
that the third party has built unauthorised constructions on the applicant’s
plot of land.
The Commission decision remains unenforced.
C. Application no. 54403/08: Metalla and Others
On 12 May 1994 the Shijak Commission recognised
the applicants’ inherited title to a plot of land measuring 5,527 sq. m of
which 5,000 sq. m were restored. Since the remaining plot of land measuring 527
sq. m was occupied, the applicants would be compensated in one of the ways
provided for by law.
The Commission decision remains unenforced.
D. Application no. 54411/08: Metalla and Others
On 13 August 2007 the Durrës Commission
recognised the applicants’ inherited title to a plot of land measuring 65,000
sq. m of which 60,000 sq. m were restored to them. Since the
remaining land measuring 5,000 sq. m consisted of arable land, roads and
channels (“e llojit arë, rrugë e kanale”) was occupied, the applicants
would be compensated in one of the ways provided for by law.
The Commission decision remains unenforced.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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, 13 November 2007).
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 (“the CMD”)
nos. 187 of 6 March 2013 and 514 of 30 July 2014).
III. COUNCIL OF EUROPE MATERIAL
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. This
decision, which was adopted at its 1193th 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;
(...).”
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
1201st 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;
(...).”
. The
Committee of Ministers’ decision of 11 June 2015, which was adopted at its 1230th
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. JOINDER OF THE APPLICATIONS
Given that the four applications raise the same
issue, the Court decides that they should be joined pursuant to Rule 42 § 1 of
the Rules of Court.
II. ADMISSIBILITY OF THE COMPLAINTS
A. As regards all applications
The applicants 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 them compensation in lieu of the restitution of
their properties. In respect of application no. 42120/08, the Court of its own
motion raised the question whether there had been a breach of Articles 6 § 1
and 13 of the Convention.
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.”
. The
Government contended that the applicants had not availed themselves of the
remedies that had been introduced between 2005 and 2011.
. The
applicants contended that the remedies were not effective.
. The
Court considers that the question of the existence of effective remedies as
regards the non-enforcement of final administrative decisions, and, in
particular, of the remedies offered by the 2004 Property Act should be joined
to the merits and examined in conjunction with the applicants’ complaint
under Article 13. In this connection, the Court considers that, since the
applicants’ complaint under Article 6 § 1 of the Convention is “arguable”,
Article 13 is therefore applicable (see, amongst others, Eltari v. Albania, no. 16530/06, § 80, 8 March 2011).
. The
Court considers that these complaints 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. As regards application no.
42120/08
The applicant in application no. 42120/08
claimed that there had been a breach of Article 1 of Protocol No. 1 as it was
impossible for him to take possession of the two-storey house and its
surrounding land measuring 500 sq. m.
The Government argued that the applicant had
failed to institute legal proceedings against the present occupier of the
property.
The Court notes that, under Article 35 § 1 of
the Convention, it can examine a complaint “after all domestic remedies have
been exhausted”. In this connection, it notes that this applicant instituted
but discontinued the proceedings for the vacation and restoration of his
property. The Court concludes that this complaint should be declared inadmissible
for non-exhaustion of domestic remedies and should be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
III. ALLEGED VIOLATION OF
ARTICLE 13 IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION
The Court notes that the
question of the existence of effective remedies was examined, in detail, in the
applicants’ complaint under Article 13 in the Manushaqe Puto and Others
pilot judgment (paragraphs 72-84). In paragraph 84 of the pilot judgment,
the Court found “that there was no effective domestic remedy that allowed for
adequate and sufficient redress on account of the prolonged non-enforcement of
Commission decisions awarding compensation”. There are no reasons to depart
from those findings.
There is accordingly a violation
of Article 13 of the Convention. Consequently, the Court dismisses the
Government’s objection that the applicants failed to exhaust effective domestic
remedies.
IV. ALLEGED VIOLATION OF ARTICLE
6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
The applicants complained that the
non-enforcement of final decisions in their favour, as accordingly amended,
breached their rights under Article 6 § 1 and under Article 1 of Protocol No. 1
to the Convention.
The Government made the same
arguments raised, examined and rejected in the Manushaqe Puto and Others
pilot judgment (cited above, §§ 87-97). The Court sees no reason to reach
a different conclusion in these cases.
The Court finds that the failure of the domestic
authorities over so many years to enforce domestic decisions and, notably, to
pay the compensation awarded breached the applicants’ rights under Article 6 §
1 and under Article 1 of Protocol No. 1 to the Convention.
V. 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.”
1. Damage
(a) The parties’ submissions
The applicants, with the exception of the
applicant in application no. 42120/08, relied on experts’ valuation reports
and made the following claims in respect of pecuniary and non-pecuniary damage.
|
Application name and number
|
Pecuniary damage
|
Non-pecuniary damage
|
|
Metalla,
no. 30264/08
|
EUR 24,908 as regards the property
value of the plot of land measuring 272 sq. m on the basis of the 2010 market
prices; or EUR 14,280 as regards the value of the plot of land measuring 272
sq. m on the basis of the 1995 prices together with the loss of profits.
|
EUR 70,000 in respect of all three applications.
|
|
Metalla and Others, no.
54403/08
|
EUR 38,095 as regards the property
value of the plot of land measuring 527 sq. m on the basis of the 2010 market
prices; or EUR 21,923 as regards the property value of the plot of land
measuring 527 sq. m on the basis of the 1994 prices together with the loss of
profits.
|
|
Metalla
and Others, no. 54411/08
|
EUR 80,586 as regards the property
value of the arable land measuring 5,000 sq. m on the basis of the 2010
market prices; or EUR 104,000 as regards the property value of the arable land
measuring 5,000 sq. m on the basis of the 2007 prices together with the loss
of profits.
|
|
Bushati, no. 42120/08
|
,000 Albanian Lek (ALL) (EUR 5,772)
as regards the value of the plot of land measuring 500 sq. m, on the basis of
CMD 139/2008 according to which the reference price in Dajc, Shijak is ALL
1,646, no specific claim having been made in respect of the applicant’s share
of property;
ALL 2,500,000 (EUR 17,534) as regards
the value of the house;
ALL 900,000 (EUR 6,312) as regards
the loss of profits.
|
None (no claims made).
|
The Government submitted that the valuation maps
provided the following prices: ALL 12,200 in respect of applications nos.
30264/08 and 54403/08 based on CMD no. 1620 of 26 November 2008; ALL 632 in
respect of application no. 54411/08 based on CMD no. 139 of 13 February 2008
and ALL 1,317 in respect of application no. 42120/08 based on CMD no. 139 of 13
February 2008.
Finally, the Government invited the Court to
apply for financial compensation in accordance with Council of Minister
decisions.
(b) The Court’s assessment
In view of the ineffective nature of the current
system of compensation and having regard, in particular, to the fact that many
years have passed since the applicants were 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 applicants a sum which would represent a final and exhaustive
settlement of the cases before it.
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.
Having regard to the parties’ submissions and
the material in its possession, the Court considers it reasonable to make the awards
in respect of pecuniary and non-pecuniary damage tabulated in Appendix No. 2.
2. Costs and expenses
(a) The parties’ submissions
The applicants made the following claims in
respect of costs and expenses.
|
Application name and number
|
Domestic proceedings
|
Strasbourg proceedings
|
|
Metalla, no. 30264/08
|
EUR 8,935 in respect of all three
applications (receipts submitted)
|
|
Metalla and Others, no.
54403/08
|
|
Metalla and Others, no.
54411/08
|
|
Bushati, no. 42120/08
|
None (no claims made).
|
ALL 150,000 (EUR 1,050) (no receipts
submitted).
|
The Government argued that the receipts in
applications nos. 30264/08, 54403/08 and 54411/08 were not official
invoices in accordance with the domestic law. They also rejected the applicants’
claims for costs and expenses as excessive and unreasonable.
(b) The Court’s assessment
According to the Court’s case-law, an applicant
is entitled to the reimbursement of 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 (see Gjyli v. Albania, no. 32907/07, § 72, 29
September 2009). To this end, Rule 60 §§ 2 and 3 of the Rules of Court provides
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”.
The Court cannot accept the
Government’s suggestion that invoices officially approved by the tax
authorities are required: there is no such obligation under the Convention, it
not being for this Court to regulate the relationship between a taxpayer and
the State (see for example Luli and Others v. Albania, nos.
64480/09, 64482/09, 12874/10, 56935/10, 3129/12 and 31355/09, § 129, 1 April 2014).
Having regard to the well-established case-law as a result of the adoption of
the Manushaqe Puto and Others pilot judgment, the repetitive nature of
the complaints raised in the above applications, the similar submissions made
to the Court, the representation of the applicants by the same lawyer and the
Court’s view that the majority of the costs and expenses claimed were not
reasonable as to quantum, the Court decides to jointly award EUR 3,000 in
respect of three applications nos. 30264/08, 54403/08 and 54411/08.
The Court further observes that the applicant in
application no. 42120/08 failed to submit any document to support his
claim as required by Rule 60 of the Rules of Court. Therefore, the Court will
make no award in respect of costs and expenses in respect of that case.
3. Default interest
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. Decides to join the applications;
2. Decides to join to the merits of the
complaint under Article 13 of the Convention the Government’s objection as to
the exhaustion of domestic remedies;
3. Declares the applicants’ complaints under
Articles 13 and 6 § 1 of the Convention as well as under Article 1 of Protocol
No. 1 to the Convention as regards the non-enforcement of final property
decisions awarding them compensation in lieu of the physical restoration
of their property admissible;
4. Declares the remainder of application no.
42120/08 inadmissible;
5. Holds that there has been a breach of
Articles 13 and 6 § 1 of the Convention as well as of Article 1 of Protocol No.
1 to the Convention and, consequently, dismisses the Government’s
objection as to the exhaustion of domestic remedies;
6. Holds
(a) that the respondent State is to pay the applicant
in application no. 42120/08, within three months, the amount referred to
in paragraph 38 of the judgment and tabulated in Appendix 2, plus any tax
that may be chargeable to the applicant, to be converted into the national
currency at the rate applicable at the date of settlement;
(b) that the respondent State is to pay the applicants in
applications nos. 30264/08, 54403/08 and 54411/08, jointly, within three
months, the amounts referred to in paragraphs 38 and 42 of the judgment and
tabulated in Appendix 2, plus any tax that may be chargeable to the applicants,
to be converted into the national currency at the rate applicable at the date
of settlement;
(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;
7. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified
in writing on 16 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Fatoş Aracı George Nicolaou
Deputy Registrar President
APPENDIX 1 - LIST
OF APPLICANTS
|
No.
|
Case name and no.
|
Name of applicant(s)
(year of birth)
|
Country of residence
|
Represented by
|
Introduction date
|
|
|
Metalla, no. 30264/08
|
Nezmi Metalla
(1943)
Bujar
Metalla (1956)
|
Albania
|
E. Muharremaj,
lawyer
|
June
2008
|
|
|
Bushati, no. 42120/08
|
Genc
Bushati (1944)
|
Albania
|
B.
Muslija,
lawyer
|
August
2008
|
|
|
Metalla
and Others, no. 54403/08
|
Nezmi
Metalla (1943)
Bujar
Metalla (1956)
Shyqyri
Metalla (1947)
Besnik
Metalla (1961)
Ferik
Metalla (1969)
Dhurata
Metalla, née Duka (1956)
Sanije
Sinjari (1928)
Fiqirete
Gashi (1931)
|
Albania
|
E. Muharremaj,
lawyer
|
October
2008
|
|
|
Metalla
and Others, no. 54411/08
|
APPENDIX 2 - PECUNIARY AND NON-PECUNIARY DAMAGE AS
WELL AS COSTS AND EXPENSES
|
Application name and no.
|
Pecuniary and non-pecuniary damage
|
Costs and expenses
|
|
Metalla, no. 30264/08
|
EUR
23,200 (twenty-three thousand two hundred euros).
|
EUR
3,000 (three thousand euros)
|
|
Metalla
and Others, no. 54403/08
|
EUR
97,000 (ninety-seven thousand euros)
|
|
Metalla
and Others, no. 54411/08
|
|
Bushati, no. 42120/08
|
EUR
1,500 (one thousand five hundred euros in respect of the applicant’s share).
|
None
(no receipts submitted).
|
