CASE OF KALEMI v. ALBANIA

THIRD SECTION

CASE OF KALEMI v. ALBANIA

(Application no. 59222/15)

JUDGMENT
 

STRASBOURG

11 June 2024

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

In the case of Kalemi v. Albania,

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

 Ioannis Ktistakis, President,
 Darian Pavli,
 Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 59222/15) 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 26 November 2015 by three Albanian nationals, whose details are listed in the appended table, (“the applicants”) who were represented by Ms S. Mëneri, a lawyer practising in Tirana;

the decision to give notice of the application to the Albanian Government (“the Government”), represented by Ms B. Lilo and subsequently by Mr O. Moçka, State Advocate General;

the parties’ observations;

Having deliberated in private on 21 May 2024,

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

SUBJECT MATTER OF THE CASE

1.  The applicants jointly owned 1,031 sq.m of land. In 2010 the Municipality of Durrës authorised the asphalt paving of a public avenue (a roadway) which extended to a part of that land (622 sq.m). A private company completed that task. Referring, inter alia, to Articles 199-203 of the Civil Code, the first and second applicants brought proceedings before the Durrës District Court. By judgment of 21 September 2011, it ordered the municipality and the company to vacate and return the parcel to the plaintiffs (the first and second applicants), to remove all modifications made on it and restore it to the initial functional state. On 30 June 2014 the Administrative Court of Appeal of Tirana upheld the judgment. A writ of execution was issued in October 2014.

2.  It appears that other private parties constructed, at different periods of time, properties on the sidewalks, impinging upon other parts of the applicants’ land. It appears that the applicants did not apply to any court in this respect.

3.  The applicants lodged complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, in conjunction with Article 13 of the Convention, about non-enforcement of the above-mentioned judgment.

THE COURT’S ASSESSMENT

4.  The scope of a case referred to the Court in the exercise of the right of individual application is determined by the applicant’s “complaint” or “claim” (see Grosam v. the Czech Republic [GC], no. 19750/13, § 51, 1 June 2023, and Gashi and Gina v. Albania, no. 29943/18, §§ 75 and 79, 4 April 2023). In the present case, the complaints raised in the application form by the applicants’ lawyer in November 2015 concerned the alleged violations of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the then ongoing non-enforcement of the judgment of 21 September 2011, which had been upheld and had become final on 30 June 2014. Thus, the claims concerned the period after that date, namely after a writ of execution was issued in October 2014.

5.  It was not questioned that the judgment remained enforceable in terms of effectively restoring the applicants’ capacity to repossess and use their land. In their submissions made in 2021-23 the applicants alleged, however, that there was no longer a realistic prospect of success for benefiting from that judgment. They referred to unspecified period, presumably after they lodged the present application before the Court in November 2015, as well as to various constructions authorised and pursued around the paved area, including before June 2014 when the judgment became final. It is noted, however, that neither the applicants nor the judgment debtor(s) or any competent public authority obtained substitution for the method of enforcement indicated in the judgment. Nor did any court determine that at some point it had become non-enforceable. It has not been set aside and remains binding (see Voronkov v. Russia, no. 39678/03, § 36, 30 July 2015, and the cases cited therein). The applicants continue to have the ownership title to the land in question. Thus, the Court will proceed on the assumption that the judgment could be enforced as ordered, both between October 2014 and November 2015 and thereafter.

6.  Furthermore, following communication of the complaints to the respondent Government, in 2021-23 the applicants submitted that they (i) had become victims of a “de facto expropriation” that progressively adversely affected their ability to exercise their ownership over that land, for instance, by way of transferring the ownership title to others through sale or another transaction, and (ii) sustained related damage amounting to the market value of their land. The Court notes, first, that those submissions were intended to substantiate their claim for just satisfaction under Article 41 of the Convention in relation to the initial complaints (see paragraph 4 above and paragraph 16 below). Second, in so far as the applicants made a distinct complaint about limitations to their property rights, it is not an elaboration of the complaints raised in 2015 and is outside the scope of the present case, which was communicated to the respondent Government in 2021. Nothing prevented the applicants from promptly amending, between 2015 and 2021, their application pending before the Court in relation to any related contemporaneous circumstances and proceedings. In any event, it remains open to the applicants to lodge a new application before the Court in that regard, in compliance with the admissibility criteria and Rule 47 of the Rules of Court.

7.  The Court only has jurisdiction to examine the admissibility and merits of the initial complaints (see paragraph 4 above).

8.  The Government argued that the third applicant (Flora Kalemi) had not been a party to the court proceedings and thus had no standing to complain about non-enforcement of the final judgment delivered in those proceedings. The third applicant argued that under Article 200 (d) of the Civil Code co-owners could seek restitution in respect of their share as well as in respect of the thing owned jointly and which had to be returned to all co-owners.

9.  The first and second applicants brought court proceedings in their own name with a view to protecting their proprietary rights. It does not appear that they acted on behalf of the third applicant. It is not clear whether they made any specific submission relating to Article 200 of the Civil Code. Nor was the third applicant otherwise involved in the proceedings as an interested party or an intervener (contrast with Mullai and Others v. Albania, no. 9074/07, §§ 65, 100, 102 and 109, 23 March 2010). While all three applicants owned a plot of land of 1,031 sq.m, the domestic courts’ findings only concerned a parcel of 622 sq.m that had to be returned to the plaintiffs (the first and second applicants). It has not been convincingly substantiated that the third applicant’s proprietary interests were directly affected on account of the non-enforcement of the judgment of 21 September 2011 relating to that parcel. It follows that the third applicant’s complaints are incompatible ratione personae and materiae and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

10.  In their submissions in 2024, the Government argued that in the initial proceedings the courts had discontinued, at the applicants’ request, the examination of a pecuniary claim. In view of the findings in paragraphs 4-7 above, the Court finds that this argument is unrelated to the complaints falling within the scope of the present case (on non-enforcement of the final judgment of 21 September 2011).

11.  The Court notes that the first and second applicants’ complaints are not manifestly ill-founded or inadmissible on any other grounds. They must therefore be declared admissible.

12.  Having regard to the findings in paragraph 5 above, the applicable principles and relevant case-law (see, among others, Gjyli v. Albania, no. 32907/07, §§ 43-47, 29 September 2009, and Gerasimov and Others v. Russia, nos. 29920/05 and 10 others, §§ 167-74 and 182-83, 1 July 2014), the Court considers that the respondent State did not deploy all necessary efforts to enforce fully and timely the judgment of 21 September 2011 as upheld on appeal on 30 June 2014, both between October 2014 and November 2015 and thereafter. The Government have not argued otherwise.

13.  There have therefore been violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of the first and second applicants, on account of non-enforcement of the judgment.

14.  Noting the facts of the case, the parties’ submissions and its findings above, the Court has examined the main legal questions raised in the present case and finds that there is no need to give a separate ruling on this complaint as regards the first and second applicants (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

15.  Having regard to the finding in paragraph 9 above, the third applicant’s complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

16.  The applicants claimed jointly 50,000 euros (EUR) in respect of non-pecuniary damage and relying on a valuation report on the market value of their land, EUR 567,400 euros on account of its unlawful expropriation.

17.  The Government argued that before the district court the applicants had withdrawn their pecuniary claim and thus failed to exhaust domestic remedies.

18.  The Court awards the first and second applicants jointly EUR 4,700 on account of non-pecuniary damage because of non-enforcement of the judgment.

19.  The Court considers that the claim in respect of pecuniary damage amounting to the market value of the land has no causal link to the scope of the case (see paragraph 5 above) and the nature and scope of the violations found in relation to non-enforcement of the judgment. The applicants sought no just satisfaction for pecuniary damage or loss (such as lost profit) related to having been unable to regain the effective possession and use in respect of the land they owned and continue to own (see Orlović and Others v. Bosnia and Herzegovina, no. 16332/18, § 75, 1 October 2019).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the first and second applicants jointly, within three months, EUR 4,700 (four thousand seven hundred 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;

Done in English, and notified in writing on 11 June 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Ioannis Ktistakis
 Deputy Registrar President

APPENDIX

List of applicants: