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Arnavutluk 07.04.2016 EN

CASE OF KARAGJOZI AND OTHERS v. ALBANIA

Avrupa İnsan Hakları Mahkemesi

Karar Metni

FIRST SECTION

(Application no. 32382/11)

JUDGMENT

This version was rectified on 26 April 2016

under Rule 81 of the Rules of Court.

STRASBOURG

7 April 2016

This judgment is final. It may be subject to editorial revision.

In the case of Karagjozi and Others v. Albania,

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

Kristina Pardalos, President,
Paul Mahoney,
Pauliine Koskelo, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 15 March 2016,

Having noted that the underlying legal issue in the application 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 that date:

PROCEDURE

1. The case originated in an application (no. 32382/11) 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 21 Albanian nationals. Details of the applicants are set out in Appendix No. 1 attached to the judgment.

2. The applicants were represented by Mr S. Puto, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their Agent, Ms A. Hicka of the State Advocate’s Office.

3. On 20 December 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. On 28 July 2006 the Vlora Commission recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 640,000 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law. The Commission stated that the land had changed its destination from agricultural land to construction land. A handwritten note signed by the chairman of the Commission states that the decision became final on 2 October 2006. On 18 February 2013, following the applicants’ request for information about whether their property was still occupied, the Ministry of Defence affirmed that the plot was occupied by the army.

5. To date, no compensation has been paid.

II. RELEVANT DOMESTIC LAW

6. The relevant domestic law and practice has been described in detail in, inter alia, the judgment of Ramadhi v. Albania (no. 38222/02, 13 November 2007); Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, §§ 23-53, 31 July 2012) and, more recently, Sharra and Others v. Albania [Committee] (nos. 25038/08, 64376/09, 64399/09, 347/10, 1376/10, 4036/10, 12889/10, 20240/10, 29442/10, 29617/10, 33154/11 and 2032/12, §§ 33-43, 10 November 2015).

III. COUNCIL OF EUROPE MATERIALS

7. Relevant material was referred to in this Court’s judgments of Sharra and Others, cited above, § 44; Metalla and Others v. Albania [Committee] (nos. 30264/08, 42120/08, 54403/08 and 54411/08, §§ 15-17, 16 July 2015); Siliqi and Others v. Albania [Committee] (nos. 37295/05 and 42228/05, §§ 12-13, 10 March 2015); and 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 LAW

I. ALLEGED VIOLATIONS 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 DECISIONS

8. 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 a final domestic decision awarding them compensation in lieu of the restitution of their property.

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.”

A. Admissibility

9. The Government submitted that the applicants had sought the review of the Commission decision and those proceedings were still pending. They disputed the application of the well-established case-law procedure. The applicants contended that following the Ministry of Defence’s letter of 18 February 2013 the plots of land were occupied and, accordingly, used for military purposes.

10. It transpires from the case file that in February 2013 the applicants lodged a request for information with the authorities. A letter of 7 November 2014 from the director of the Agency Restitution and Compensation of Properties (“the Agency’s director”), which was submitted by the Government and stated that a new case file no. 404 dated 5 May 2011 relating to the Commission decision of 28 July 2006 was pending for examination, is not capable of constituting adequate proof that any proceedings were pending in the absence of relevant supporting documents. The Government failed to expand on this statement and submit sufficient evidentiary basis in their further observations dated 12 January 2015. Furthermore, the Court reiterates that in 2010 and 2011 the Constitutional Court repealed as incompatible with the Constitution a number of the 2004 Property Act provisions, as amended, which empowered the Agency’s director to re-examine, annul and repeal ex officio Commission decisions (see Manushaqe Puto and Others v. Albania, nos. 604/07, 43628/07, 46684/07 and 34770/09, § 32, 31 July 2012). In such circumstances, the Court considers that the Commission decision of 28 July 2006, of which the applicants complain, remains unchanged and unenforced. The Court therefore rejects this objection and considers that the issues raised by this application are the subject of well-established case-law.

11. The Court notes that the remaining complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

12. The Government did not dispute the merits of the applicants’ complaints.

13. Having regard to its findings in previous cases against Albania in respect of which the Government did not put forward any arguments that would warrant a departure therefrom (see, amongst others, Manushaqe Puto and Others, cited above, §§ 93-97 and the references cited therein; and more recently, Sharra and Others, cited above, §§ 49-51; Metalla and Others, cited above, §§ 29-31; Siliqi and Others, cited above, §§ 19), the Court finds that the domestic authorities’ failure over so many years to enforce the final domestic decision 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.

14. The Court also concludes that there was, and continues to be, no effective domestic remedy that allowed for adequate and sufficient redress on account of the prolonged non-enforcement of the final domestic decisions awarding compensation. There is accordingly a violation of Article 13 of the Convention (see Manushaqe Puto and Others, cited above, §§ 72-84 and the references cited therein).

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS

15. The applicants complained under Article 6 § 1 about the length of proceedings as a result of the non-enforcement of the Commission decision.

16. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds and therefore declares it admissible.

17. The Court considers that, in view of the findings in paragraphs 13-14 above, the issue of the length of proceedings must be regarded as having been absorbed by the issue of non-enforcement (see, for example, Kutić v. Croatia, no. 48778/99, § 34, ECHR 2002‑II, and Popova v. Russia, no. 23697/02, § 44, 21 December 2006). The Court therefore finds that it is not necessary to examine separately this complaint.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

18. 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.”

A. Damage

1. The parties’ submissions

(a) The applicants

19. The applicants made the same submissions as those summarised in this Court’s judgment in the case of Sharra and Others, cited above, §§ 57‑58. More specifically, they claimed 7,054,285 Euro (“EUR”) as regards the property value of the plot of land measuring 640,000 sq. m, in respect of the applicants’ share, on the basis of the valuation maps 2013. They claimed that the reference price of 1,646 Albanian leks (“ALL”)/sq. m as indicated in the valuation maps 2013 should be applied. They submitted that they owned fifteen sixteenths of the plot of land measuring 640,000 sq. m. They claimed EUR 315,000 in respect of non-pecuniary damage.

(b) The Government

20. The Government made the same submissions as those summarised in this Court’s judgment in the case of Sharra and Others, cited above, §§ 69‑71. Having regard to the fact that at the time of confiscation the plot of land had been agricultural, the Government proposed that the reference price for agricultural land on the basis of the valuation maps of 2014 should be applied, that is 281 ALL/sq. m. The Government confirmed that the applicants were entitled to fifteen sixteenths of the property.

2. The Court’s assessment

21. The Court examined the same submissions made by the parties in its judgment in the case of Sharra and Others v. Albania, cited above, §§ 78‑87. It concluded that the pecuniary damage should be determined on the basis of the property valuation maps 2008 (see Sharra and Others v. Albania, cited above, § 90; Manushaqe Puto and Others, cited above, § 125; and Vrioni and Others v. Albania (just satisfaction), nos. 35720/04 and 42832/06, §§ 33-39, 7 December 2010). The Court sees no reason to depart from those findings.

22. The Court notes that the authorities had recognised the applicants’ right to compensation in respect of construction land and not of agricultural land as contested by the Government.

23. Having regard to the material in its possession, the Court considers it reasonable to award the applicants EUR 5,919,000 (five million nine hundred and nineteen thousand) in respect of pecuniary and non-pecuniary damage.

B. Costs and expenses

24. The applicants claimed EUR 1,000 in respect of costs and expenses. They submitted relevant receipts.

25. Citing Gjyli v. Albania (no. 32907/07, § 72, 29 September 2009), according to which costs and expenses have to be actually and necessarily incurred and reasonable, the Government left the matter to the Court’s discretion to determine the amount to be awarded under this head.

26. 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, cited above, § 72). 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”.

27. Having regard to its findings in paragraphs 13-14, the repetitive nature of the complaints raised in the above application, 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 considers it reasonable to award the applicants EUR 850 in respect of costs and expenses.

C. Default interest

28. 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 the complaints concerning Articles 6 § 1 and 13 of the Convention as well as Article 1 of Protocol No. 1 as regards the non‑enforcement of final domestic decision and the length of the proceedings admissible;

2. Holds that there has been a breach of Articles 6 § 1 and 13 as well as of Article 1 of Protocol No. 1 to the Convention on account of the non‑enforcement of final domestic decision;

3. Holds that it is not necessary to examine the complaint under Article 6 § 1 of the Convention as regards the length of the proceedings;

4. Holds

(a) that the respondent State is to pay the applicants jointly, within three months,[1] the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,919,000 (five million nine hundred and nineteen thousand), plus any tax that may be chargeable,[2] in respect of pecuniary and non-pecuniary damage;

(ii) EUR 850 (eight hundred and fifty), plus any tax that may be chargeable, in respect of costs and expenses;

(b) 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;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 7 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André WampachKristina Pardalos
Deputy RegistrarPresident

APPENDIX 1 – LIST OF APPLICANTS

Case name and no.

Name of applicants

(year of birth)

Country of residence

Represented by

Introduction date

Karagjozi and Others, no. 32382/11

Eni Kokona (1976)

Lindita Kokona (1948)

Xhejni Kokona (1978)

Nirvana Rradheshi (1951)

Shpresa Halimi (1969)

Dhurata Bungo née Karagjozi (1937)

Dëshira Efovia née Karagjozi (1936

Suzana Gjebrea née Çami (1958)

Hiqmet Çami (1924)

Hasibe Kulla née Çami (1966)

Besnik Çami (1961)

Agim Karagjozi (1927)

Albert Karagjozi (1934)

Vesim Karagjozi (1931)

Bukuroshe Dobi née Karagjozi (1929)

Armand Viçani (1958)

Miranda Viçani née Telegrafi (1949)

Diana Kaltani née Halimi (1936)

Ermal Halimi (1959)

Karolina Halimi (1935)

Ariel Halimi (1963)

Albania

United States of America

Albania

Canada

United States of America

Albania

United States of America

Canada

Albania

S. Puto, lawyer

14 March 2011

[1]. Rectified on 26 April 2016: “from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention” has been deleted.

[2]. Rectified on 26 April 2016: “plus any tax that may be chargeable” has been added.

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