CASE OF FORTUZI v. ALBANIA

THIRD SECTION

CASE OF FORTUZI v. ALBANIA

(Application no. 29237/18)

JUDGMENT
 

STRASBOURG

22 April 2025

This judgment is final but it may be subject to editorial revision.

In the case of Fortuzi v. Albania,

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

 Lətif Hüseynov, President,
 Darian Pavli,
 Úna Ní Raifeartaigh, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 29237/18) 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”) on 12 June 2018 by an Albanian national, Mr Gazmend Fortuzi (“the applicant”), who was born in 1937, lives in Tirana and was represented by Ms S. Mëneri, a lawyer practising in Tirana;

the decision to give notice of the complaints concerning the length of proceedings concerning the applicant’s property rights, and the applicant’s right of access to the Constitutional Court to the Albanian Government (“the Government”), represented by their Agent, Mr O. Moçka, General State Advocate, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 18 March 2025,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns administrative proceedings and a civil claim by which the applicant challenged an administrative decision dismissing his claim for restitution of property. The applicant complained about the length of these proceedings and his lack of access to the Constitutional Court.

2.  In 1995 the applicant submitted a request with the Durrës Regional Office for Restitution and Compensation of Property (hereinafter the Durrës Office), seeking restitution of some property his father had sold to third parties. The applicant’s request was denied on 28 June 2007, and in July 2007 the applicant lodged an appeal with the Tirana Agency for the Restitution and Compensation of Property (hereinafter the “Tirana Agency”). On 13 September 2007 the Tirana Agency denied the applicant’s request as well.

3.  On 10 May 2010 the applicant brought a civil action in the Tirana District Court, asking for the annulment of the above-mentioned administrative decisions, and recognition of his ownership on the property at issue. The Tirana District Court dismissed the applicant’s claim on 21 October 2011.

4.  On 4 November 2011 the applicant lodged an appeal against the first instance decision. In the proceedings before the Tirana Court of Appeal the applicant asked for adjournments of hearings on 17 May, 7 and 20 June and 17 July 2012 because of his lawyer’s absence. On 20 November 2012 the Tirana Court of Appeal upheld the contested decision.

5.  On 20 September 2014 the applicant lodged a further appeal with the Supreme Court, which dismissed it on 8 December 2015. The Supreme Court’s decision was not served on the applicant.

6.  On 8 November 2016 Law no. 99/2016 of 6 November 2016 was published in the Official Journal. It shortened the time-limit for lodging a constitutional complaint from two years to four months “of obtaining knowledge of the interference [with a constitutional right or freedom]” (konstatimi i cënimit). It also provided that the new time-limit should enter into force on 1 March 2017.

7.  The applicant learned of the Supreme Court’s decision on 22 June 2017 when he obtained the decision from the Registry of the Tirana District Court.

8.  On 21 October 2017 the applicant lodged a constitutional complaint. It was dismissed by the Constitutional Court on 7 December 2017 as being lodged outside the four-month time-limit, counting from the date the contested Supreme Court’s decision had been adopted.

9.  The Government claimed that the applicant had received the Constitutional Court’s decision on 7 December 2017. The applicant claimed that he had received it on 12 December 2017, and submitted a notification of the Constitutional Court that the decision of 7 December 2017 was sent to the applicant on 12 December 2017.

10.  On 28 March 2023 the applicant died, and his wife, Ildika Fortuzi, and his children, Gledion Fortuzi, Eldira Fortuzi and Adhurin Fortuzi, expressed a wish to pursue the application.

THE COURT’S ASSESSMENT

ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION

11.  The Court notes that the complaints concerning the length of proceedings and the applicant’s right of access to the Constitutional Court are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

12.  The general principles concerning the length of proceedings have been summarised in the case of Frydlender v. France ([GC], no. 30979/96, § 43, ECHR 2000-VII).

13.  The proceedings in question commenced in 1995. However, for the purposes of the length of the proceedings the period to be taken into consideration started to run in July 2007 when the applicant lodged an appeal against the Agency’s decision dismissing his request and when a “dispute” arose within the meaning of Article 6 § 1 (see, for example, Bara and Kola v. Albania, nos. 43391/18 and 17766/19, § 64, 12 October 2021, and Mitkova v. the former Yugoslav Republic of Macedonia, no. 48386/09, § 49, 15 October 2015). The proceedings before the administrative authorities were concluded by the Tirana Agency’s decision of 13 September 2007, thus lasting for about three months which cannot be seen as excessive.

14.  On 10 May 2010 the applicant brought court proceedings, seeking the annulment of the administrative decisions in question. These proceedings were finally concluded by the Constitutional Court’s decision of 12 December 2017. They therefore lasted about seven years and seven months before four levels of jurisdiction.

15.  The Court notes that the case concerned a dispute about the applicant’s property rights. Even though these proceedings were not of any urgency, they nevertheless kept the applicant in a state of uncertainty as regards the property at issue for a long period of time.

16.  The Court notes that the applicant contributed to some extent to the length of the proceedings by asking for adjournment of the hearings before the Tirana Court of Appeal in May, June and July 2012 (see paragraph 4 above).

17.  As to the conduct of the domestic authorities, the Court notes that the Tirana Court of Appeal adopted its decision on 20 November 2012. However, it appears that it had not been served on the applicant before August 2014, since his further appeal with the Supreme Court, lodged on 20 September 2014, was not declared inadmissible as being lodged out of time, and the time-limit for lodging an appeal with the Supreme Court in civil matters was thirty days from the date a party had received the contested decision (Article 443 of the Civil Procedure Code).

18.  Likewise, the decision of the Supreme Court, adopted on 8 December 2015, was not served on the applicant, and he learned of it only on 22 June 2017.

19.  Given the overall length of the proceedings, and the delays in serving the applicant with the Tirana Appeal Court’s judgment and the fact that the Supreme Court’s decision was not served on him, the Court considers that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings at issue.

20.  The general principles concerning access to the Albanian Constitutional Court as regards the newly introduced four-month time-limit for lodging a constitutional complaint have been summarized in Supergrav Albania Shpk v. Albania (no. 20702/18, §§ 16 and 22, 9 May 2023). In that case the Court found a violation of Article 6 § 1 of the Convention where the time-limit for lodging a constitutional complaint had been counted from the date when the contested decision of the Supreme Court had been adopted and not from the date when it had been served on the applicant (ibid., §§ 17-31).

21.  In the present case the applicant learned of the Supreme Court’s decision on 22 June 2017, and lodged his constitutional complaint on 21 October 2017, within the four-month time-limit.

22.  The Constitutional Court held that the stamp on the Supreme Court’s decision bearing the date of 22 June 2017 could not be seen as proof that that decision had been served on the applicant on that date because every time a party sought to be served with the Supreme Court’s decision, a stamp was put on that decision with the date of service. However, the Constitutional Court did not clarify in what way a party could provide positive proof of the date of first notification (compare Aždajić v. Slovenia, no. 71872/12, § 69, 8 October 2015) or why a party alone should bear the burden of proof in this respect. The Court considers that it is primarily on the Supreme Court to ensure that there is evidence in its case file of the date of service of its decision to the parties (see, mutatis mutandis, Zela v. Albania, no. 33164/11, § 38, 11 June 2024).

23.  Given the above circumstances, the Court concludes that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant’s right of access to the Constitutional Court.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  The applicant did not submit a specific claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 22 April 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Lətif Hüseynov
 Deputy Registrar President