TOPALLAJ v. ALBANIA - 32913/03 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 371 (21 April 2016)

In the case of Topallaj v. Albania,

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

          Mirjana Lazarova Trajkovska, President,
          Guido Raimondi,
          Kristina Pardalos,
          Linos-Alexandre Sicilianos,
          Paul Mahoney,
          Aleš Pejchal, judges,
          Markelian Koça, ad hoc judge,
and Abel Campos, Section Registrar,

Having deliberated in private on 22 March 2016,

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

PROCEDURE

1. The case originated in an application (no. 32913/03) 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 Mr Marketin Topallaj (“the applicant”), on 6 August 2003.

2. On 14 August 2012 the applicant acquired U.S. citizenship and on 6 May 2013 the Albanian authorities accepted his renunciation of Albanian nationality. The applicant was granted leave to represent himself in the proceedings before the Court.

3. The Albanian Government (“the Government”) were represented by their Agent, Ms S. Mëneri of the Ministry of Foreign Affairs, and subsequently by Ms E. Hajro and Ms L. Mandia of the State Advocate’s Office.

4. Judge Ledi Bianku, the judge elected in respect of Albania, was unable to sit in the case (Rule 28). The Government accordingly appointed Markelian Koça to sit as an ad hoc judge (former Article 27 § 2 of the Convention and former Rule 29 of the Rules of Court).

5. The applicant alleged, in particular, 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.

6. On 7 October 2005 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicant was born in 1951 and lives in the United States of America.

8. On 21 December 1995 the Tirana District Court (“the District Court”) acknowledged the inherited property rights of some landowners over a plot of land measuring 24 hectares (vendim për vërtetim fakti). On 13 February 1996 the District Court acknowledged that the landowners also had inherited property rights over installations and fuel tanks of a petrol station located on the land (vendim për vërtetim fakti).

9. In the meantime, on the assumption that the landowners’ properties would be restored in natura by the Commission on Property Restitution and Compensation, in January and February 1996, the applicant concluded two agreements with one of the landowners, who was acting on his own and the remaining heirs’ behalf, whereby the applicant would assist the landowners in the process of the privatisation of installations and fuel tanks on the land (see paragraphs 21-22 below). In May 1996 he concluded a sales contract (see paragraph 23 below). Following the conclusion of these contracts, the validity of which became the object of a dispute (see section B below), all landowners appointed the applicant to act on their behalf in proceedings related to the protection of their property rights.

10. On the strength of the District Court’s decisions, on an unspecified date the landowners lodged a request with the Tirana Commission on Property Restitution and Compensation (“the Commission”) seeking restitution of the above-mentioned property by the domestic authorities. On 7 March 1996 the Commission dismissed the landowners’ request on the grounds that the land was not subject to the Property Act as it was located outside the legal city boundaries (ndodhen jashtë vijave kufizuese). The landowners appealed to the District Court.

11. On 24 April 1996 the District Court quashed the Commission’s decision and allocated the landowners a plot of land measuring 56,500 sq. m. Relying on an expert’s report, the court held that the value of the respective installations and fuel tanks constructed thereon did not exceed 20% of the land’s total value. It therefore ordered that these objects be restored at no cost. The petrol station was situated on the main road between the cities of Tirana and Durrës and it was used and administered by two State-owned oil companies. The judgment became final on 7 May 1996, no appeal having been lodged against it.

12. Subsequent to the above judgment, on 30 May 1996 the Mortgage Office issued a property certificate (vërtetim pronësie - Ipoteka), according to which the landowners had registered title to the plot of land measuring 56,500 sq. m. on which the fuel tanks and installations had been erected (mortgage register entry no. 3350 of 8 May 1996). The petrol station and fuel tanks were subsequently expropriated in the public interest.

A. Proceedings challenging the landowners’ rights over the plot of land

13. Between 1996 and 1998 the landowners’ property rights were unsuccessfully challenged by various State institutions. On one occasion the domestic courts dismissed the claim, whereas on four other occasions they discontinued the proceedings on various grounds. The applicant joined the proceedings as a third party.

14. On 25 March 1998 the Ministry of Economy challenged the lawfulness of the District Court’s judgment of 24 April 1996 (see paragraph 11 above) recognising the landowners’ property rights. The action was dismissed by the Supreme Court with final effect on 22 December 1999.

15. On 28 December 1999 and 7 January 2000 the Ministry of Economy and the State-owned oil companies lodged two separate applications for supervisory review of the domestic judgments upholding the landowners’ property rights, namely the District Court’s judgment of 24 April 1996 and the Supreme Court’s judgment of 22 December 1999.

16. On 12 May 2000 the Supreme Court Joint Benches gave two separate decisions by accepting both applications for supervisory review and the reopening of the proceedings. A constitutional appeal lodged by the applicant on 1 August 2000 was declared inadmissible by the Constitutional Court on 7 December 2000. As a result of the remittal of the cases to the District Court, on an unspecified date the court decided to join the proceedings. The applicant took part in them as a third party.

17. In the first set of rehearing proceedings, the case was heard by the District Court, the Tirana Court of Appeal (“the Court of Appeal”) and the Supreme Court, which on 18 March 2003 decided to remit the case to the Court of Appeal for a further rehearing.

18. In the second set of rehearing proceedings, the case was heard by the Court of Appeal and the Supreme Court, which on 27 October 2005 decided to remit the case to the Court of Appeal for fresh consideration.

19. In the third set of rehearing proceedings, the case was heard by the Court of Appeal, the Supreme Court and the Constitutional Court, which gave its final decision on 20 September 2009. The domestic courts ruled in favour of the landowners.

20. In the meantime, on 19 June 2007 the Tirana Agency for the Restitution and Compensation of Property, which had replaced the Commission, recognised the landowners’ inherited property rights over the plot of land measuring 24 hectares (240,000 sq. m) and ordered that they be compensated in respect of 183,500 sq. m in one of the forms prescribed by law, the remaining 56,500 sq. m having already been decided upon by the authorities. The authorities’ failure to pay compensation in respect of the 183,500 sq. m is the subject of application no. 5915/14, of which notice was given to the Government as a follow-up to the Court’s pilot judgment in the case of Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, 31 July 2012).

B. Proceedings concerning the validity of the contracts between the applicants and the landowners

21. On 18 January 1996 one of the landowners, acting on his own and the remaining heirs’ behalf, concluded an agreement (akt marrëveshje) with the applicant’s company, according to which the latter would secure finance for the privatisation of fuel tanks and installations located on the landowners’ plot of land, in respect of which they would exercise their right of first refusal (e drejta e parablerjes) at the time of privatisation. In return, the landowners would transfer ownership rights to the applicant’s company upon privatisation. Subsequent to this transaction, the parties would form a joint company, whose registered capital would be made up of the applicant’s company’s ownership of the fuel tanks and other installations, as well as the landowners’ ownership of the plot of land.

22. On 29 February 1996 the same landowner, again acting on his own and the remaining heirs’ behalf, concluded a similar agreement (akt marrëveshje) with the applicant’s company for the privatisation of the fuel tanks and installations, the difference being that some objects would remain the landowners’ property.

23. On 23 May 1996 the same landowner, again acting on his own and the remaining heirs’ behalf, concluded a notarised sales contract with the applicant for the sale of almost all of the fuel tanks and installations for 100,000 United States dollars (USD), which, according to the contract, was paid by the applicant to the landowners. On the same date the Mortgage Office issued a property certificate (vërtetim pronësie - Ipoteka), according to which the applicant had registered title to the petrol station fuel tanks and installations (mortgage register entry no. 4135 of 23 May 1996).

24. On 23 and 25 May 1996 the same landowner, acting on his own behalf, concluded two loan agreements with the applicant to lend the latter a total of USD 200,000. The agreements contained no details as to the purpose of the loan.

1. First set of proceedings concerning the nullity of the contract and agreements concluded in 1996

25. On 10 October 2002 the landowners instituted proceedings against the applicant seeking the annulment of the agreements and contract concluded between February and May 1996 (see paragraphs 21-24 above). They requested the court to declare the agreements and contract null and void (pavlefshmëri absolute) without any legal consequences for the parties whatsoever. The claim was signed by their lawyer, to whom they had given power of attorney.

26. Following remittals of the case, on 31 March 2005 the District Court decided to discontinue the proceedings (pushimin e çështjes) as the landowners had failed to attend court without good reason.

2. Second set of proceeding concerning the nullity of the contract and agreements concluded in 1996

(a) Proceedings before the District Court

27. On 17 April 2005 the landowners instituted a fresh set of proceedings against the applicant seeking the annulment of the agreements and contract concluded between February and May 1996. The claim was signed by only their lawyer.

28. On an unspecified date the landowners requested the District Court to obtain and process all documents from the case-file concerning the first set of proceedings, including the powers of attorney. The court accepted this request.

29. On 27 July 2005 the applicant requested the court to stay the proceedings pending the outcome of a criminal complaint he had lodged with the district prosecutor’s office against the landowners alleging forgery of documents.

30. On 20 October, 11 and 18 November 2005 and 27 February 2006 the applicant, having regard to the number of previous requests that had been rejected, challenged the bench.

31. On 15 November 2005 the presiding judge of the bench withdrew from the case, given the applicant’s repeated requests for withdrawal. On 9 December 2005 the President of the District Court set aside the withdrawal, finding that it did not contain any of the grounds stipulated in Article 72 of the Code of Civil Procedure.

32. On 17 February 2006 the applicant lodged a counterclaim requesting the court to decide the requests he had already submitted for the withdrawal of the bench. According to the counterclaim, the landowners had not authorised their lawyer to represent them in the proceedings and their claim was time-barred. Furthermore, the loan agreements were fictitious and their conclusion with only one of the landowners could not have a bearing on the sales contract of the fuel tanks and installations. The applicant argued that a number of factors pointed to his having lawful property rights over the fuel tanks and installations, such as the fact that all the agreements and contracts were lawful and valid, the property had been registered in his name, he had represented the landowners in the domestic proceedings and he had taken legal action to defend their interests.

33. On 18 April 2006 the District Court declared the agreements and contracts null and void (absolute nullity). It found them to be fictitious on the grounds that they had been concluded at a time when the said property in question was being administered by the State, no property rights having been transferred to the landowners. In accordance with the law, the installations had been privatised at no cost, because their value was less than 20% of the land’s value. Furthermore, no joint company had been set up by the applicant and landowners and no money had been lent to the applicant in accordance with the loan agreements. They had been concluded with a view to having an assurance for the execution of the sales contract, in which the sale price was the same. Despite the property certificate (no. 4135 of 23 May 1996), the fact that no actions had been effected pursuant to the agreements and contracts and that no legal consequences had resulted for the parties, the District Court concluded that the agreements were fictitious in accordance with Article 92(ç) of the Civil Code. It further ordered that the entry of 23 May 1996 (see paragraph 23 above) in the immovable property register be erased.

(b) Proceedings before the Court of Appeal

34. The applicant appealed, arguing that the District Court bench was biased because disciplinary proceedings had been instituted for the dismissal of the presiding judge of the bench for breaches of law. In this connection, the withdrawal of the presiding judge of the bench had not been accepted by the President of the District Court and his four requests for the withdrawal of the bench were rejected, no such mention having been made in the hearing records. The applicant further submitted that the claim had been brought outside the statutory time-limit, and had been signed by only the lawyer and not the landowners, the power of attorney dating back to 2002 and being limited in time and scope, and that the facts of the claim were unrelated. He also objected to the fact that his counterclaims of 28 June 2005 and 17 February 2006 had not been admitted to the case-file. Moreover, he contended that the District Court had not accepted any of the twenty-four requests for pieces of evidence he had produced, and had made findings in excess of the requests contained in the object of the claim. He argued that four hearings had been held between 6 April and 4 July 2005, without the landowners providing any good reason for their non-appearance to supplement the claim. In his view, his spouse, who was a co-owner, should have been invited to attend the hearings. Finally, he claimed that the contracts had been concluded in complete conformity with the domestic law and that there had been no need to summon witnesses. In this connection, the landowners had confirmed the applicant’s ownership of the plot of land by way of specific powers of attorney, while the applicant had lodged numerous procedural requests, applications and appeals and had attended hearings to defend his and their property rights.

35. On 30 November 2006 the applicant challenged the bench in the light of the previous decisions given against him. On the same date he requested that thirty-nine items of evidence and twenty procedural requests absent from the case-file before the District Court be readmitted.

36. On 4 December 2006 the applicant requested that eight additional items of evidence be admitted to the case-file.

37. On 19 February 2007 the Deputy President of the Court of Appeal requested the Minister of Justice to appoint three judges from other appellate courts to hear the case, since all of its judges had sat in the proceedings.

38. On 15 March 2007 the Minister of Justice, following a decision taken by the High Council of Justice (“HCJ”), informed the Court of Appeal that three judges of the Military Court of Appeal would hear the case.

39. On 29 March 2007 the applicant challenged the new composition of the bench, submitting that the HCJ should appoint judges from other ordinary appellate courts instead of the Military Court of Appeal.

40. On 25 May 2007 the Court of Appeal, composed of three judges, upheld the District Court’s judgment of 18 April 2006 (see paragraph 33 above). It transpires that the applicant had withdrawn the request for the exemption of the bench from hearing the case, and that the court had partially reopened the judicial examination and accepted new items of evidence as produced by him. The Court of Appeal held that the objects mentioned in the agreements and contracts of 1996 were, at the time of the judgment, being administered by the State and that their ownership had not yet been transferred to the landowners. Consequently, those contracts and agreements were fictitious under Article 92 (ç) of the Civil Code and were of no legal effect. It rejected all of the applicant’s arguments as unfounded and held that he had failed to adduce evidence to object to or challenge the landowners’ claim, which was supported by the documents contained in the case-file. According to the Court of Appeal, a claim requesting absolute nullity was not subject to a statutory limitation period.

41. The presiding judge of the bench, judge Y.M, dissented. In a separate opinion, he stated that the claim had not been signed by the landowners. The evidence in the case-file was not capable of demonstrating that the agreements were fictitious, since the parties’ intentions had been real and lawful. As a result, the landowners did not have legal standing to bring the claim as they could not prove that there had been a breach of a substantial right (e drejta materiale). Their claim was time-barred and the courts had failed to take into account the statutory limitation period. The evidence produced by the applicant showed that the landowners, by virtue of powers of attorney or other documents issued between 1997 and 2005, had appointed the applicant to act as their representative. This pointed to the fact that the parties had wished their transactions to have legal effect and this, in itself, contradicted the fictitious nature of the agreements and contracts. In his view, the court had rejected all of the applicant’s requests without giving any reasons in the decision.

42. On 9 July 2007 the applicant appealed, raising seventy-two grounds of appeal. In addition to maintaining the same complaints he had raised before the Court of Appeal, he alleged that the composition of the District Court had not been drawn by lots and that the Court of Appeal had not been a “tribunal established by law” as it had been composed of military judges. He claimed that his requests for the withdrawal of the Court of Appeal judges had not been examined and that his requests for the admission of numerous items of evidence had not been processed by the Court of Appeal. He further objected to the lower courts’ application and interpretation of the domestic law since, in his view, he had been authorised by the landowners to act as their representative, had lodged various appeals and other procedural requests and followed the judicial proceedings with the landowners, had requested the enforcement of final decisions on his and the landowners’ behalf and had sought the criminal prosecution of third parties.

43. On 23 November 2007 the Supreme Court decided to stay execution of the Court of Appeal’s judgment of 25 May 2007 pending the outcome of the applicant’s appeal.

44. On 25 January 2010 the Supreme Court declared the applicant’s appeal inadmissible in accordance with Article 472 of the Code of Civil Procedure (no valid grounds of appeal).

(d) Proceedings before the Constitutional Court

45. On 18 March 2010 the applicant lodged an eighty-three page constitutional appeal. On 15 September 2010 he supplemented it with a fifteen-page memorandum. In addition to maintaining the same grounds of appeal he had raised before the lower courts, the applicant also complained of a lack of reasoning in the Supreme Court’s decision and about the length of the proceedings.

46. On 17 September 2010 the applicant requested that judges X.Z, S.B and F.A withdraw from the appeal on the grounds that they had rejected a previous constitutional appeal lodged by him on 20 September 2009 in relation to another unrelated set of proceedings. On 27 September 2010 he requested that judge V.T withdraw from the appeal on the grounds that she had been on the bench that had decided against him in another appeal in 2000.

47. On 17 January 2011 the applicant was informed of the Constitutional Court’s decision of 22 November 2010 rejecting his appeal. It found nothing to suggest a lack of impartiality on the part of the Supreme Court bench and that, even though some of the judges had heard previous appeals lodged by the applicant with the Supreme Court, those appeals concerned different facts, parties and sets of proceedings. It dismissed the remaining complaints, finding that they related to the assessment of facts and the outcome of the proceedings, which was within the lower courts’ jurisdiction.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Bringing a civil claim

48. Under Article 153 of the Code of Civil Procedure (“CCP”), judicial proceedings commence when a written claim is lodged. In accordance with Article 154, it should be drawn up in Albanian and submitted to the court by the plaintiff or a representative duly authorised by power of attorney. Article 154/a states that if the requirements for bringing the claim are not satisfied, the court, sitting in a single-judge formation, must return the claim to the plaintiff, indicating a time-limit by which he is required to comply with the requirements. Under Article 158/a, preliminary procedural measures may include, inter alia, the joining of claims (bashkimin e padive) into a single set of proceedings. In accordance with Article 300, a plaintiff may lodge a fresh new claim after the court decides to discontinue the proceedings. The court may re-consider all evidence collected during the discontinued set of proceedings.

B. Supervisory review procedure

49. The Code of Civil Procedure 1996 defined supervisory review (rekurs në interes të ligjit) as an extraordinary remedy enabling the Supreme Court (the new name for the Court of Cassation) to reopen proceedings where judgments had become final. Between 1996 and its abolition in 2001 by virtue of Law no. 8812 of 17 May 2001, the supervisory review procedure underwent several legislative changes.

Article 473 - Review in the interests of the law
(Law no. 8431 of 14 December 1998)

“Final judgments, decisions and rulings of the divisions of the Supreme Court shall be amenable to supervisory review in the interests of the law for the reasons set forth in Article 472(a), (b) and (c) on application of the parties to the proceedings within three years of the date the decision becomes binding.

The application for supervisory review will first be examined by a preliminary review panel of five judges and then by the full Supreme Court (Joint Benches) ... A judge of the Supreme Court who sat on the bench that delivered the judgment, decision or ruling or on the preliminary review panel may not sit on the panel conducting the supervisory review of the final judgment ...”

C. Nullity and invalidity of a transaction

50. Article 92 of the Civil Code states that transactions which are null and void do not have any legal consequences (“absolute nullity”). Such transactions include, inter alia, those which are concluded by way of an agreement between the parties not aimed at having any legal consequences (fictitious or simulated transactions). Article 94 lists the transactions which are valid until the court, at the request of a party, annuls and declares them invalid (“relative nullity”). Article 103 provides for a five-year limitation period on court claims to have a transaction declared invalid (“relative nullity”). Articles 107-10 provide for the consequences of a transaction which has been declared invalid.

Supreme Court’s case-law

(a) Ordinary decisions

51. In decision no. 734 of 28 April 2005 the Supreme Court, in a set of proceedings concerning the nullity of a sales contract, quashed the lower courts’ decisions dismissing the claim as time-barred without examining the type of invalidity of the transaction. It held, inter alia, that a transaction which was null and void did not have any legal consequences and, as a result, was not subject to a statutory limitation period. However, transactions annulled by the court and declared invalid at the request of a party were subject to the statutory limitation period provided for in Article 103 of the Civil Code.

(b) Unifying decisions

52. The Supreme Court’s unifying decision no. 13 of 9 March 2006 described the difference between transactions that are found to be null and void (konstatohen të pavlefshme), which have often been referred to as “absolutely null and void” (absolutisht të pavlefshme), and those that are declared invalid (shpallen të pavlefshme), which have often been referred to as “relatively invalid” (relativisht të pavlefshme). Transactions that are declared invalid can only be annulled by the court; transactions that are null and void are so from their inception, so it is unnecessary for the court to annul them. Transactions that are declared invalid continue to have legal value until the court annuls them; transactions that are null and void have no legal value, irrespective of the fact that they may have produced results. Transactions that are null and void have no legal consequences. Any transaction concluded subsequent to and on the strength of a transaction that is found to be null and void is also null and void. Transactions that are declared invalid have legal consequences until their annulment. The consequences of their invalidity are to be addressed from their conclusion. Transactions can be declared invalid at the request of one of the parties; however, anyone may apply for absolute nullity of a transaction in so far as they have a legitimate interest. It may also be examined by the court of its own initiative within the course of a set of proceedings.

D. Procedural role of a third party in civil proceedings

53. Articles 189 to 201 of the Code of Civil Procedure (“CCP”) govern third-party participation in civil proceedings. Articles 195 and 196 of the CCP state as follows:

Article 195 - Procedural rights of a third party

“A third party has the right to undertake all the procedural measures permitted to the parties except those which alter the object of the claim.

Upon the parties’ consent, a third party who has intervened of his own motion or has been summoned by one of the main parties to the proceedings, may replace the main party on whose behalf he intervened, whereas the main party shall withdraw from the proceedings.”

Article 196

“The decision which has been given in a case following ... the summons of a third party has consequences for the third party, both in terms of his relationship with the person who requested his presence or on whose behalf he intervened, as well as his relationship with the defendant.”

E. Immovable Property Registration System

54. Article 83 of the Civil Code, which entered into force on 1 November 1994, provides that for a transfer of ownership of immovable property to be valid, all rights in rem should be carried out by notarised deed and be registered. Articles 192 and 193 provide that all contracts which create, alter, transfer, and revoke property rights over immovable property must be entered in the immovable property register.

55. On 13 July 1994 Parliament enacted the Immovable Property Registration Act (“the IPRA”), which created local registration offices (“IPRO”) in each administrative district, as well as a central registration office. It delegated the registration of all contracts related to the transfer of property rights (section 2) and issuance of certificates of ownership (certifikate pronësie - section 5) to local IPROs. All existing records in connection with immovable property, including mortgage entries in respect of urban property, which in the 1990s were kept by the mortgage offices, would be transferred to local IPROs on their creation (section 57).

56. The IPRA 1994 was repealed by the IPRA no. 33 of 21 March 2012.

F. Transfer of judges

57. Relevant provisions about the transfer of judges are described in Kaçiu and Kotorri v. Albania (nos. 33192/07 and 33194/07, §§ 76-77, 25 June 2013).

G. Constitutional Court’s case-law as regards the length of proceedings

58. In addition to the domestic judgments mentioned in the Court’s judgment in the case of Luli and Others v. Albania (nos. 64480/09, 64482/09, 12874/10, 56935/10, 3129/12 and 31355/09, §§ 63-64, 1 April 2014), the Constitutional Court has delivered three subsequent judgments finding a breach of the appellants’ rights on account of the length of terminated court proceedings (decisions nos. 3/15 of 26 January 2015, 56 of 21 July 2015 and 69/15 of 17 November 2015). No award was made to the appellants in those judgments.

59. Furthermore, the Constitutional Court has reaffirmed its long-established practice of finding a breach of the appellants’ rights on account of the length of non-enforcement proceedings (decisions nos. 9/14 of 27 February 2014; 16/14 of 21 March 2014; 32/14 of 26 May 2014; 46/14 and 47/14 of 30 July 2014; 14/15 of 30 March 2015; 24/15 of 27 April 2015; 25/15 of 22 May 2015; 52/15 of 20 July 2015; 61/15 of 23 September 2015; 72/15 of 27 November 2015). No award was made to the appellants in those judgments, nor was any other means of redress provided in relation to the continued non-enforcement.

THE LAW

60. The applicant complained under Articles 6 § 1 and 13 of the Convention as well as under Article 1 of Protocol No. 1 to the Convention and Article 13 of the Convention.

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

61. In the applicant’s submission, there had been a breach of Article 6 § 1 of the Convention as regards the length of the proceedings challenging the landowners’ property rights (see paragraphs 15-19 above). 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... hearing within a reasonable time ...”

A. Admissibility

1. As regards the length of the proceedings concluded between 1996 and 1998

62. The applicant appears to be complaining about the length of the various sets of proceedings which were concluded between 1996 and March 1998 (see paragraph 13 above). Insofar as the Court is competent ratione temporis, the Convention having entered into force in respect of Albania on 2 October 1996, that complaint must in any event be considered to have been lodged out of time, that is to say, more than six months after the date of the relevant final domestic decision. Accordingly, this part of the complaint must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

2. As regards the length of the proceedings instituted in 1998

(a) Applicability of Article 6 § 1 to the Convention and the applicant’s “victim” status

63. The Government submitted that the applicant, having been a third party to the proceedings, could not rely on Article 6 § 1 and claim to be a victim of a violation of that provision for the purposes of Article 34 of the Convention.

64. The applicant replied that he had joined the domestic proceedings instituted against the landowners in order to protect the property rights he had acquired by virtue of lawful sales contracts. He could therefore claim to be a victim in respect of those proceedings.

65. The Court would recall that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether it is also protected under the Convention (see Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009). In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure or proceedings (see Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010).

66. According to the Court’s case-law, Article 6 does not normally apply to proceedings concerning a failed request to reopen a case which has been terminated by a final decision (see, most recently, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 44, ECHR 2015 and the references cited there). In contrast, the new proceedings, after re-opening has been granted, are capable of being regarded as involving the determination of “civil rights and obligations” or of a “criminal charge” (see, for example, Stepanyan v. Armenia, no. 45081/04, §§ 30-32, 27 October 2009; Alekseyenko v. Russia, no. 74266/01, §§ 55-57, 6 July 2009; Vanyan v. Russia, no. 53203/09, §§ 56-58, 15 December 2005; and Nikitin v. Russia, no. 50178/99, § 60, ECHR 2004-VIII).

67. Turning to the present case, it is to be noted that, while on 12 May 2000 the Supreme Court examined and ruled in favour of the applications by the Ministry of the Economy and the State-owned oil companies for supervisory review, it did not determine the merits of the case but remitted the case for reconsideration to the District Court (see paragraph 16 above). In the Court’s view, the supervisory review proceedings opened the way to a fresh “determination” and reconsideration of the landowners’ property rights. That being so, the Court finds that Article 6 § 1 under its “civil” head applies to the rehearing proceedings at the close of which the domestic courts ruled in favour of the landowners (see paragraphs 17-19 above).

68. The domestic law entitles a third party to avail himself of all procedural measures, including the right to lodge appeals and make other procedural requests (see paragraph 53 above). Furthermore, a decision given in a case has an effect on any third party which has joined the proceedings. In the present case, the applicant, who had joined preceding proceedings as a third party, continued to intervene in the reopened proceedings as a third party. Their outcome was such as to directly affect and prejudice the property rights the applicant claimed to have acquired and which he allegedly continued to enjoy at the material time. In these circumstances, it would be formalistic not only to deny the applicability of Article 6 § 1 to the applicant’s asserted property rights - given that his intervention as a third party to defend his alleged property rights formed an integral part of the reopened proceedings seen as a whole - but also to decline to acknowledge his “victim” status in this regard. Consequently, the applicant’s intervention as a third party must be taken to attract the application of Article 6 § 1 of the Convention in its “civil” limb (see, mutatis mutandis, Perez v. France [GC], no. 47287/99, § 66, ECHR 2004-I) and he can thus claim to be a “victim” of a breach of that provision for the purposes of Article 34 of the Convention (see also Ziętal v. Poland, no. 64972/01, §§ 57-59, 12 May 2009).

69. Accordingly, the Court rejects the Government’s objection.

(b) Exhaustion of domestic remedies

70. The Government submitted that the applicant had not availed himself of the remedies afforded by the domestic law to third parties. Having regard to the fact that the domestic proceedings were still pending before the courts at the time of communication, they requested that the application be declared premature.

71. In the recent case of Luli and Others v. Albania (cited above, §§ 77-84, 1 April 2014), the Court examined and rejected several objections raised by the Government as regards the applicants’ failure to exhaust domestic remedies in respect of the length of terminated or pending proceedings. It further observes that the Constitutional Court, other than making a declaratory finding of a breach of an appellant’s right on account of the length of proceedings (see paragraphs 58-59 above), is unable to offer any means of redress to remedy the situation. Moreover, referring to its previous judgments in the case of Gjonbocari and Others v. Albania (no. 10508/02, §§ 73-82, 23 October 2007) and Marini v. Albania (no. 3738/02, §§ 147-158, ECHR 2007-XIV (extracts)), the Court found that there was no effective remedy in Albania in respect of the length of pending or terminated proceedings at the material time. In such circumstances, the Court finds that there was, and still is, no effective remedy available to the applicant in respect of the length of terminated or pending proceedings. It therefore rejects this Government’s objection.

72. The Court considers that the complaint of the length of the proceedings is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

73. The Government submitted that the legal proceedings had been complex, since they had involved an assessment of facts and evidence that had occurred more than fifty years ago. They attributed their length to the parties’ actions and the problems related to the property restitution and compensation process. They maintained that the proceedings had been conducted within a reasonable time in the light of the reasons provided above.

74. The applicant maintained that the length of the proceedings had been excessive.

75. The Court would recall that the “reasonableness” of the length of proceedings is to be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

76. The proceedings about which the applicant complained started on 12 May 2000 (see paragraph 67 above) and ended on 20 September 2009; they lasted 9 years, 4 months and 8 days. The Court accepts that the nature of the problem in the case was of some complexity. However, this fact alone cannot, in the Court’s view, justify a period of more than 9 years. As to the conduct of the applicant, the Court considers that he cannot be reproached for causing any periods of delay or inactivity. The fact that he appealed to higher courts to defend his interests cannot be held against him (see Svetlana Orlova v. Russia, no. 4487/04, § 46, 30 July 2009).

77. Regarding the conduct of the domestic authorities, the Court notes that the courts examined the case in three sets of proceedings. It stresses that it is of vital importance that the domestic courts be the ultimate guarantor of the rule of law. However, in the instant case, they contributed to the delay by repeatedly referring the case back to lower courts for fresh examination. In this respect, the right to have one’s claim examined within a reasonable time would be devoid of all sense if domestic courts examined a case numerous times, by shifting it from one court to another, even if at the end the length of proceedings at each instance did not appear particularly excessive. The Court reiterates that it is incumbent on respondent States to organise their legal systems in such a way that their courts can meet the requirements of Article 6 of the Convention, including the obligation to hear cases within a reasonable time (see Svetlana Orlova, cited above, § 47, and Sürmeli v. Germany [GC], no. 75529/01, § 129, 8 June 2006).

78. Given that the remittal of the case for re-examination was frequently ordered as a result of errors committed by the lower courts, the repetition of such remittal orders discloses a deficiency in the judicial system, which deficiency alone prevented the applicant from having his “civil rights and obligations”, as at issue in the proceedings in question, determined within a reasonable time (see Wierciszewska v. Poland, no. 41431/98, § 46, 25 November 2003; Matica v. Romania, no. 19567/02, § 24, 2 November 2006; and Falimonov v. Russia, no. 11549/02, § 58, 25 March 2008). The fact that the domestic courts heard the case several times did not absolve them from complying with the reasonable-time requirement of Article 6 § 1 (see Litoselitis v. Greece, no. 62771/00, § 32, 5 February 2004).

79. In sum, in view of the foregoing, the Court concludes that the length of the proceedings was excessive and failed to meet the reasonable-time requirement under Article 6 § 1 of the Convention. There has accordingly been a breach of that provision in the present case.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

80. Under Article 13 of the Convention the applicant argued that he had no effective remedy in respect of his length-of-proceedings complaint under Article 6 § 1 of the Convention. Article 13 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.”

A. Admissibility

81. The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

82. The Court reiterates the findings at which it has arrived, on the basis of previous cases concerning Albania, in respect of exhaustion-of-domestic remedies in relation to an applicant’s complaint of unreasonable length of proceedings, contrary to Article 6 § 1 of the Convention (see paragraph 71 above). It follows from that finding that in the present case there has been a violation of Article 13 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 AND OF ARTICLE 13 OF THE CONVENTION

83. The applicant initially argued that the authorities’ interference, by maintaining control over the petrol station and, subsequently, expropriating it breached his right to the peaceful enjoyment of his possessions as guaranteed by Article 1 of Protocol No. 1 to the Convention. Throughout the proceedings concerning the nullity of the contract and agreements concluded in 1996 and following the conclusion of those proceedings, the applicant maintained that, as a result of the outcome of those proceedings, there had been an unjustified interference with his right of property under Article 1 of Protocol No. 1, which 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.”

84. He also claimed that no effective remedy within the meaning of Article 13 of the Convention (cited above) was available to him in relation to this alleged unjustified interference with his right of property.

A. The parties’ observations

1. The Government

85. The Government submitted that the applicant had never effectively enjoyed possession of the installations in question. Furthermore, the contracts, on the basis of which the applicant had allegedly acquired property rights, had been declared null and void by the domestic courts. In their view, the nullity proceedings had been fair. In these circumstances, the Government contested that any claim under Article 1 of Protocol No. 1 existed, as well as disputing the applicant’s legal standing to bring the proceedings before this Court as an alleged “victim” of a violation of that provision.

2. The applicant

86. The applicant argued that he had acquired property rights over the installations by virtue of lawful sales contracts concluded in 1996, as further confirmed by the property certificate issued by the Mortgage Office in May 1996. The domestic law did not require a physical handover of objects for a transfer of ownership. The fact that the landowners had not been in possession of the property did not prevent the parties from concluding a sales contract for future objects. In his view, the State-owned oil companies had controlled his property unlawfully and in bad faith. They had never complied with the court decisions ordering that the property be vacated.

87. He further argued that the proceedings concerning the nullity of the sales contracts had been instigated and encouraged by the authorities and that they had been tainted by manifest arbitrariness. He had acted on behalf of the landowners on the basis of valid powers of attorney; from 1996 to 2006 he had participated in domestic proceedings instituted by or against the landowners; he and they had addressed the authorities as regards breaches of their property rights and the landowners had never complained about his actions during this time.

B. The Court’s assessment

1. Article 1 of Protocol No. 1 to the Convention

88. Article 1 of Protocol No. 1 applies only to a person’s existing possessions. Thus, future income thus cannot be considered to constitute “possessions” unless it has already been earned or is definitely payable. Furthermore, the hope that a long-extinguished property right may be revived cannot be regarded as a “possession”, nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII). However, in certain circumstances, a “legitimate expectation” of obtaining an “asset” may enjoy the protection of Article 1 of Protocol No. 1. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is sufficient basis for the interest in national law, for example where there is settled domestic case-law confirming its existence (see Kopecký v. Slovakia [GC], no.44912/98, § 52, ECHR 2004-IX). However, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký, cited above, § 50).

89. In this connection, it is in the first place for the national authorities, and in particular the courts, to construe and apply the domestic law. The Court’s jurisdiction to verify that domestic law has been correctly interpreted and applied is limited, and it is not its function to take the place of the national courts; rather, its role is to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable (see Weitz v. Poland (dec.), no. 37727/05, 23 June 2009).

90. The Court notes that the applicant’s complaint under this head is not about an alleged breach of the Convention in regard to the landowners’ property rights over their plot of land, the landowners having never claimed such a breach or joined the applicant in lodging the present application. Nor is it about the applicant’s inability to take possession of the plot of land. The applicant is claiming that he was the victim of a violation of Article 1 of Protocol No. 1 in connection with his own property rights over the installations and fuel tanks, as allegedly acquired by way of agreements and contracts concluded with the landowners in 1996.

91. However, the Court is not persuaded that the circumstances of the case, considered as a whole, conferred on the applicant a “possession” within the meaning of Article 1 of Protocol No. 1. In the first place, the Court notes that in January and February 1996 the applicant and the landowners concluded agreements, according to which the former would assist the latter in the privatisation of installations and fuel tanks found on the petrol station. These agreements were contingent on the restoration of the landowners’ property rights over the installations and fuel tanks and on their privatisation (see paragraphs 9, 21 and 22 above). By that time, the landowners’ property rights had not yet been recognised, let alone restored, by the domestic authorities.

92. Secondly, in April 1996 the District Court allocated the landowners a plot of land and ordered that the installations and fuel tanks constructed thereon be restored at no cost, there being no mention of privatisation of those objects (see paragraph 11 above). The property certificate of 30 May 1996 indicated the landowners’ title over of the plot of land, no entry having been made about their title over the installations and fuel tanks (see paragraph 12 above). In fact, the landowners never had control or possession of the installations and fuel tanks.

93. Thirdly, in spite of the absence of the exercise of property rights by the landowners over the installations and fuel tanks, in May 1996 in the hope that one day he would gain possession of those objects, the applicant concluded a sales contract with the landowners (see paragraph 23 above). The applicant also managed to have the title registered with the Mortgage Office (see paragraph 23 above). In reality, the installations and fuel tanks were at all times administered and exploited by two State oil companies (see paragraphs 11, 33 and 40 above).

94. Fourthly, in the domestic proceedings concerning the validity of the agreements and contracts concluded in 1996 between the landowners and the applicant, the applicant himself admitted that the loan agreements were fictitious (see paragraph 32 above). The domestic courts endorsed the arguments adduced by the landowners about the absolute nullity of the sales contracts. In doing so they noted that the contracts were fictitious, in that no sale price had been paid by the applicant and no loan had been made by the landowners to the applicant. Furthermore, no joint company had been established between the applicant and landowners (see paragraphs 33 and 40 above). The applicant never argued before the domestic courts and this Court that he, indeed, had ever paid the contracted sale price (see paragraphs 32, 34, 42 and 45 above). The Court has no evidence before it which would allow it to depart from the domestic courts’ findings.

95. For these reasons, the Court considers that the applicant never had an existing “possession”. The contracts he concluded were conditional on the fulfilment of events which never came to fruition. They were based on the premise that he would, one day, acquire effective possession of those objects, while there was no basis for this premise in the realities of the situation or in national law.

96. The Court further observes that in the proceedings concerning nullity of the agreements and contracts concluded in 1996, the applicant had the benefit of adversarial proceedings. He participated in them, made various requests of a procedural nature and had ample opportunity to advance all arguments he regarded as pertinent for the outcome of the case (see paragraphs 32, 34, 42 and 45 above). The Court considers that the District Court’s decision to admit to the case-file all the documents lodged by the landowners during the first set of proceedings concerning nullity of the contracts and agreements, including the powers of attorney, was in line with the provisions of Article 300 of the CCP (see paragraphs 28 and 48 above). The composition of the Court of Appeal that heard the case was constituted in accordance with the domestic law (see Kaçiu and Kotorri, cited above, § 142). The Court of Appeal also decided to partially reopen the judicial examination and accepted new items of evidence as produced by the applicant (see paragraph 40 above). That the judges of the Supreme Court and the Constitutional Court had already heard and decided appeals previously lodged by the applicant in relation to unrelated, distinct sets of proceedings does not suffice to put into question their impartiality in the context of the current proceedings in the absence of any substantiation. The applicant did not point to other procedural shortcomings in his submissions to the Court.

97. The foregoing considerations are sufficient to enable the Court to conclude that the applicant did not have any “existing possessions” or “claims” susceptible of attracting the application of Article 1 of Protocol No. 1. It follows that this complaint must be rejected as incompatible ratione materiae in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Article 13 of the Convention

98. The applicant contended that there was no effective remedy as required by Article 13 of the Convention in relation to his rights under Article 1 of Protocol No. 1.

99. According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see, amongst many other authorities, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131; more recently, Nada v. Switzerland [GC], no. 10593/08, § 208, ECHR 2012, and Othymia Investments BV v. the Netherlands (dec.), no. 75292/10, § 34, 16 June 2015).

100. Having regard to the above conclusion rejecting the complaint under Article 1 of Protocol No. 1 as inadmissible on the ground of being incompatible ratione materiae, the Court considers that there is no “arguable claim” of an unjustifiable interference with the applicant’s right of property such as to enable Article 13 to have any application in the instant case (see Vasilchenko v. Russia, no. 34784/02, § 54, 23 September 2010 and, more recently, Rukavina v. Croatia (dec.), no. 770/12, § 75, 6 January 2015). It follows that this complaint is likewise inadmissible under Article 35 § 3 (a) of the Convention and must therefore be rejected pursuant to Article 35 § 4 thereof.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

101. In the applicant’s submission, the proceedings challenging the landowners’ property rights were unfair and in breach of Article 6 § 1 of the Convention on account of the quashing of final decisions and of the lack of impartiality of Supreme Court’s bench of 12 May 2000.

102. The Government argued that supervisory review had been available under the Code of Civil Procedure and every party to proceedings was entitled to have recourse to it. Its use did not constitute a breach of the principle of legal certainty.

103. As the Court has noted on previous occasions, the quashing of a final judgment is an instantaneous act which does not create a continuing situation, even if, as in the instant case, it entails the reopening of the proceedings (see Khanyan v. Armenia (dec.), no. 19065/05, 5 July 2007; Gargali v. Bulgaria (dec.), no. 67670/01, 5 June 2006; Nosov v. Russia (dec.), no. 30877/02, 20 October 2005; Sardin v. Russia (dec.), no. 69582/01, 12 February 2004; Stanca v. Romania (dec.), no. 59028/00, 27 April 2004; and Sitokhova v. Russia (dec.), no. 55609/00, 2 September 2004). Furthermore, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within a period of six months from the date of the “final” domestic decision. If there is no adequate remedy against a particular act which is alleged to be in breach of the Convention, the date when that act takes place is taken to be “final” for the purposes of the six-month rule (see, for example, Valašinas v. Lithuania (dec.), no. 44558/98, 14 March 2000).

104. In the instant case, the applicant lodged a constitutional appeal against the Supreme Court’s judgments of 12 May 2000. The appeal was declared inadmissible by the Constitutional Court on 7 December 2000. Consequently, even assuming that the constitutional appeal was an effective remedy for the purposes of those proceedings, the final decision was given on 7 December 2000, that is to say more than six months before the date the application was lodged on 6 August 2003.

105. Accordingly, these complaints must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

V. APPLICATION OF ARTICLE 46 AND 41 OF THE CONVENTION

A. Application of Article 46 of the Convention

106. 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.”

107. The Court refers to and reiterates its findings in Luli and Others (cited above, §§ 114-19) in respect of Article 46 of the Convention. It urges the respondent State, as a matter of priority, to adopt general measures as indicated in paragraph 118 of that judgment, and to introduce an effective domestic remedy for the excessive length of proceedings.

B. Application of Article 41 of the Convention

108. 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

109. The applicant claimed 1,186,088,150 euros (EUR) in respect of pecuniary damage and EUR 100,000,000 in respect of non-pecuniary damage.

110. The Government contested the applicant’s claim.

111. The Court does not discern any causal link between the essentially procedural violations of Articles 6 § 1 and 13 which it has found and the pecuniary damage alleged by the applicant; it therefore rejects this claim. On the other hand, it awards the applicant EUR 1,000 in respect of non-pecuniary prejudice sustained by him by reason of the violations found.

2. Costs and expenses

112. In the absence of any claim made by the applicant for reimbursement of costs and expenses, the Court awards no sum under this head.

3. Default interest

113. 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 admissible the complaint concerning Article 6 § 1 of the Convention and the related complaint under Article 13 as regards the length of the proceedings, which started on 12 May 2000 and ended on 20 September 2009;

2. Declares inadmissible the complaint under Article 1 of Protocol No. 1 and the related complaint under Article 13 as well as the remaining complaints under Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 6 § 1 of the Convention in regard to the length of the proceedings which started on 12 May 2000 and ended on 20 September 2009;

4. Holds that there has been a violation of Article 13 of the Convention by reason of the lack of an effective remedy in regard to the length of the proceedings in question;

5. 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, EUR 1,000 (one thousand euros), plus any tax that may be chargeable in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

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

Done in English, and notified in writing on 21 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Mirjana Lazarova Trajkovska
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> TOPALLAJ v. ALBANIA - 32913/03 (Judgment (Merits and Just Satisfaction) : Court (First Section)) [2016] ECHR 371 (21 April 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/371.html Cite as: [2016] ECHR 371