CASE OF KOKALARI v. ALBANIA

THIRD SECTION

CASE OF KOKALARI v. ALBANIA

(Application no. 22493/12)

JUDGMENT
 

STRASBOURG

30 January 2024

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

In the case of Kokalari v. Albania,

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

 Georgios A. Serghides, President,
 Darian Pavli,
 Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 22493/12) 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 10 April 2012 by two Albanian nationals, Rozeta Kokalari and Bibika Kokalari (“the applicants”), who were born in 1976 and 1950, respectively, and live in Tirana and are represented by E. Dobjani, a lawyer practising in Tirana;

the decision to give notice of the application to the Albanian Government (“the Government”), represented by their Agent, L. Mandija and subsequently by O. Moçka, of the State Advocate’s Office;

the parties’ observations submitted in 2013 and further submissions in 2023;

Having deliberated in private on 9 January 2024,

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

SUBJECT MATTER OF THE CASE

1.  It appears that in the 1940s several plots of land in Fier were confiscated from the Pesh. family. Legal heirs were E. Pesh., S. Pesh. and Ha. Pesh. (later, Kokalari). P. Kokalari and Pr. Kokalari (brother and sister) were legal heirs of their mother Ha. Kokalari (Pesh.). In 1994 Pr. Kokalari and P. Kokalari, acting upon authority from E. Pesh., lodged a request with the Commission on Restitution and Compensation of Properties in Fier in respect of the confiscated property. After E. Pesh. died, his son He. Pesh. issued an authority form to P. Kokalari, who lodged a further request in 2008. Those requests were registered but were then archived, apparently for lack of certain documents. Pr. Kokalari and P. Kokalari died in 2008-09. The first and second applicants are P. Kokalari’s daughter and wife, and his and Pr. Kokalari’s heirs. He. Pesh. issued an authority to the applicants. The above requests were subsequently merged into a single file no. 17/253 that received no. 341 in 2012. The applicants pursued the proceedings, as it appears, since 2012.

2.  On 10 April 2012 they also lodged the present application to the Court in relation to the above proceedings.

3.  In 2013-14 the first applicant submitted information and documents in the above proceedings.

4.  Under section 34 of Law no. 133/2015, the Agency for Treatment of Property (ATP) had to decide on the untreated applications filed before that Law entered into force, thus making it unnecessary to file a new application with the ATP. Where the ATP failed to examine, by February 2019, already pending applications, claimants could apply to a court (see Beshiri and Others v. Albania (dec.), nos. 29026/06 and 11 others, § 44, 17 March 2020). Since December 2022 the above reference deadline was replaced by 31 December 2024.

5.  The applicants complained under Article 6 § 1 of the Convention about the length of the administrative proceedings initiated in 1994.

THE COURT’S ASSESSMENT

6.  In their observations in 2013, the Government stated that, as legal heirs and having authority to act on behalf of E. Pesh., the applicants shared their claims over property along with many other successors and had to clarify their part in the inherited property. The compensation and restitution process was complex because of the large number of claimants before the agencies that were tasked with assessing their claims. The Government mentioned that the applicants could lodge a civil action under Article 324 of the Civil Procedure Code (CCP) or an action for damages against the State under the State Non-Contractual Liability Act. In their submissions in 2023 in reply to the Court’s request for information, the Government mentioned that due to the changes in the property compensation and restitution legislation, the applicants could have requested a court to decide on the merits of their claim, between February 2019 and December 2022, the assessment of claims thereafter would again be the exclusive competence of the Agency, according to the current legislation, until 31 December 2024. Until that date the applicants’ claim would continue to be assessed by the Agency according to the law.

7.  The applicants maintained their complaint.

(a)   Compatibility ratione materiae and ratione personae

8.  It is common ground between the parties that (i) as to Article 6 of the Convention, those proceedings concerned a “right” which could and still can be said, at least on arguable grounds, to be recognised under Albanian law (see Manushaqe Puto and Others v. Albania, nos. 604/07 and 3 others, §§ 24-29, 31 July 2012, and Beshiri and Others v. Albania, no. 7352/03, §§ 20-28, 22 August 2006); (ii) after becoming legal heirs in the line of succession vis-à-vis persons who had been claimants in the pending administrative proceedings, the applicants clearly had an interest in respect of the subject-matter of those proceedings and their outcome, and (iii) they joined them as claimants and not merely as other people’s (other heirs’) representatives. In the absence of more specific information, the Court presumes that that happened in or around 2012. In so far as the proceedings have been continuously pending when they lodged their complaint before the Court in April 2012 and when they submitted observations in 2013 and reinstated this complaint in 2023, the Court may consider a subsequent period accrued in the present case (see Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 101, 1 June 2021).

9.  The applicability of the civil limb of Article 6 § 1 depends on the existence of a dispute. Thus, the Court has previously calculated the length of “proceedings” – to which the “reasonable time” requirement applied – with reference to the time when applicants challenged, before another administrative authority or a court, an administrative decision taken on their claims, that is when a “dispute” relating to a right arose (see Wcisło and Cabaj v. Poland, nos. 49725/11 and 79950/13, § 173, 8 November 2018; compare Luli and Others v. Albania, nos. 64480/09 and 5 others, §§ 20-21, 84 and 89, 1 April 2014). At the same time, conformity with the spirit of the Convention requires that the word “contestation” (“dispute”) should not be construed too technically and that it should be given a substantive rather than a formal meaning (see Gorou v. Greece (no. 2) [GC], no. 12686/03, § 29, 20 March 2009, and Miessen v. Belgium, no. 31517/12, § 43, 18 October 2016). In assessing whether there is a dispute over a civil right, one must look beyond the appearances and the language used and concentrate on the realities of the situation (see Gorou (no. 2), cited above, § 29).

10.  In the present case the proceedings have been pending before an administrative authority, the ATP most recently, having special, if not exclusive, competence for that type of claim under Albanian law (compare Miessen, cited above, § 46). Those proceedings were decisive for the determination of that claim of a civil nature (see Ramadhi and Others v. Albania, no. 38222/02, §§ 35-37, 13 November 2007). The proceedings concerned the actual existence and scope of the right, namely as regards proprietary claims over the same plots of land asserted by several heirs, including the applicants (compare Omdahl v. Norway, no. 46371/18, § 47, 22 April 2021). The applicants’ civil rights have not been “determined” for years. It does not appear that another authority or a court could determine them instead of the competent administrative authority. At least prior to February 2019 (see paragraph 4 above), the applicants had no possibility to challenge the ATP’s inaction, which would trigger the existence of a “dispute” within the meaning of the above case-law and its determination by a “tribunal”. The Government have not argued otherwise. Furthermore, in their 2023 update on the case, they maintained that the ATP would issue a decision according to the new deadline until December 2024 (see paragraph 4 above).

11.  Having regard to the Government’s submissions, in the specific circumstances of the case the Court is satisfied that the complaint is not incompatible ratione materiae or personae as to the period between 2012 and early 2019 (see, in the same vein, Bici v. Albania, no. 5250/07, §§ 6-11 and 28-29, 3 December 2015; Luli and Others, § 89; and Ramadhi and Others, §§ 35-37, both cited above).

(b)   Exhaustion of domestic remedies

12.  As to the Government’s reference in 2013 to a civil action under Article 324 of the CCP and an action for damages under the Law on State Non-Contractual Liability, the Court has already rejected the Government’s similar objections in Bici (cited above, §§ 32-33). There are no grounds warranting a departure from those findings as regards the present complaint about the length of administrative proceedings and for the period in question (that is, between 2012 and early 2019). The Court is not called to determine in the present case whether a court action under any subsequent legislation such as Law no. 133/2015 (see paragraph 4 above, a remedy that was available after February 2019 and, presumably, until December 2022) was capable of affording adequate redress for the relevant period and/or of speeding up the (administrative) proceedings. The Government’s argument is dismissed.

(c)   Conclusion on admissibility

13.  The Court concludes that as regards the period between 2012 and early 2019, this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. Thus, it should be declared admissible.

14.  In the present case, the Court does not find it necessary to examine the complaint as regards the period before 2012 or the one after early 2019.

15.  Having regard to the applicable principles (see Bici, cited above, § 41), the Court does not rule out that the administrative case was relatively complex. Also, while not disregarding the understandable delay stemming from the respondent State’s decision to implement a comprehensive legislative scheme for the restitution of or compensation for confiscated property and the significant docket of applications before the competent administrative authorities, it remains that it is for the Contracting States to organise their legal systems in such a way that those authorities meet the requirements of Article 6 of the Convention (see Bici, cited above, § 44, and, mutatis mutandis, Bara and Kola v. Albania, nos. 43391/18 and 17766/19, § 70, 12 October 2021). Lastly, it does not appear that between 2012 and early 2019 any significant delay or omission, for instance as to the submission of documents which were essential for the determination of their claim, was attributable to the applicants.

16.  There has accordingly been a violation of Article 6 of the Convention as regards the period between 2012 and early 2019.

17.  The applicants also referred to Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention in relation to the length of the administrative proceedings.

18.  The Court does not need to determine whether these complaints are admissible, in particular ratione materiae under Article 1 of Protocol No. 1 (see Bici, cited above, §§ 49 and 52). Having regard to the facts of the case, the parties’ submissions and its findings above, the Court considers that it has examined the main legal question raised in the present case. It thus finds that there is no need to give a separate ruling on these complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

19.  In 2013 the applicants claimed 9,113,408 euros (EUR) in respect of pecuniary damage, EUR 1,000,000 in respect of non-pecuniary damage and EUR 6,078 in respect of costs and expenses.

20.  The Government contested the claims, inter alia, because the applicants had not received any decision from the administrative authority.

21.  The Court does not discern any causal link between the violation found under Article 6 of the Convention about the length of proceedings between 2012 and 2019 and the pecuniary damage alleged; it therefore rejects this claim. It awards EUR 2,500 to the applicants jointly, in respect of non-pecuniary damage, plus any tax that may be chargeable to them.

22.  Having regard to the documents in its possession, the Court dismisses the claim for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants jointly, within three months, EUR 2,500 (two thousand five hundred euros), 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 30 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Georgios A. Serghides
 Deputy Registrar President