ARB SH.P.K. v. ALBANIA and 4 other applications

 Published on 29 January 2024

THIRD SECTION

Application no. 39860/19
ARB SH.P.K. against Albania
and 4 other applications
(see list appended)
communicated on 10 January 2024

SUBJECT MATTER OF THE CASES

The applications concern the length of civil proceedings and the effectiveness of the 2017 domestic remedy enacted to address complaints about the length of proceedings as per Articles 399/1 et seq. of the Code of Civil Procedure (“CCP”).

The main disputes started and ended, or are pending, as per the dates set forth in column no. 3 of the appended table.

The first and second application concerned two actions for damages against local banks.

The third application concerned a dispute over the ownership of a plot of land.

In the fourth application, the applicant lodged a claim for unlawful dismissal from work.

The fifth application concerned the determination of the applicant’s old age/mineworker’s pension.

As regards the domestic complaint about the length of proceedings, the procedure is divided into two principal phases: (i) a finding of a violation of the “reasonable time” requirement and, subject to the relevant conditions, (ii) the determination of damages to be paid to the complainant (see Bara and Kola v. Albania, nos. 43391/18 and 17766/19, § 111, 12 October 2021).

The outcome of the applicants’ actions in this respect is summarized in columns 4 to 6 of the appended table.

With particular regard to the first and second applications, brought by the same applicant company, the Constitutional Court noted that the Supreme Court had failed to rule in a timely way on the applicant’s complaints about the length of the respective proceedings, therefore it declared the complaints admissible as legal remedies had been exhausted. As regards the merits, the court relied on the fact that main actions concerned claims for damages and the delays in adjudicating the cases did not pose a significant danger to the applicant’s interests. It accordingly dismissed the complaint about the length of proceedings.

In connection to the third application, the Constitutional Court found that the applicant’s complaint about the length of proceedings under Articles 399/1 et seq. of the CCP was still pending before the Supreme Court, therefore legal remedies had not been exhausted.

As regards the fourth application, the Supreme Court dismissed the complaint on the grounds that the delays were caused by the judicial reform. The applicant did not lodge a constitutional appeal.

Lastly, in respect of the fifth application, the Constitutional Court found a violation of the “reasonable time” requirement which allowed the applicant to initiate the second phase of the proceedings aiming to determine the amount of the damages he was entitled to receive. Those proceedings are also pending.

Under Articles 6 § 1 and 13 of the Convention, the applicants complain that there has been a breach of their right to trial within a reasonable time and that the domestic remedy in respect of such complaints was ineffective.

QUESTIONS TO THE PARTIES

COMMON QUESTIONS

1.  Was the length of the main proceedings involving the applicants in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 24, ECHR 2000-IV)?

2.  Did the applicants have at their disposal an effective domestic remedy for their complaints regarding the length of proceedings under Article 6 § 1, as required by Article 13 of the Convention?

QUESTIONS SPECIFIC TO THE FIRST AND SECOND APPLICATIONS

3.  Further to Question no. 2 above, did the Supreme Court and the Constitutional Court provide adequate reasons for their findings that the length of the respective civil proceedings had not been unreasonable? Were those findings, especially as to the consideration of “what was at stake” for the applicant company, consistent with the Court’s jurisprudence (see Sürmeli v. Germany [GC], no. 75529/01, § 133, ECHR 2006-VII)?

QUESTIONS SPECIFIC TO THE THIRD APPLICATION

4.  Further to Question no. 2 above, did the third applicant exhaust effective domestic remedies? In view of the Constitutional Court’s case-law that complaints for length of proceedings before it are admissible when a related and undecided complaint to the Supreme Court had ceased to be an effective remedy, how long should the third applicant have waited before lodging her complaint with the Constitutional Court?

QUESTIONS SPECIFIC TO THE FOURTH APPLICATION

5.  Did the fourth applicant exhaust domestic remedies, as required by Article 35 § 1 of the Convention? In particular, following the Supreme Court’s decision dismissing his complaint about the length of proceedings, was the applicant required to lodge an appeal with the Constitutional Court? In this respect:

(i)  Does the Constitutional Court have the authority to direct the Supreme Court to speed up the hearing of appeals pending before the latter court?

(ii)  Would a favourable decision of the Constitutional Court have enabled the fourth applicant to seek compensation, whether through a separate action under the CCP or any other compensatory remedy?

The Government are invited to present examples of relevant domestic practice on the above questions.

QUESTIONS SPECIFIC TO THE FIFTH APPLICATION

6.  Further to Question no. 2 above, did the domestic authorities act swiftly in respect of each phase of the fifth applicant’s actions under Articles 399/1 et seq. of the CCP (determination whether there had been a violation, determination of the damages and payment of the relevant sum) (see Bara and Kola, cited above, §§ 107 and 115)?

The Government are further invited to provide updates on each proceeding.

APPENDIX