CASE OF MAHO v. ALBANIA

THIRD SECTION

CASE OF MAHO v. ALBANIA

(Application no. 24908/18)

JUDGMENT

STRASBOURG

12 December 2024

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

In the case of Maho v. Albania,

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

 Oddný Mjöll Arnardóttir, President,
 Úna Ní Raifeartaigh,
 Mateja Đurović, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 21 November 2024,

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

PROCEDURE

1.  The case originated in an application against Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the three applicants on 24 May 2018.

2.  The applicants were represented by Ms S. Mëneri, a lawyer practising in Tirana.

3.  The Albanian Government (“the Government”) were given notice of the application.

THE FACTS

4.  The applicants’ details and information relevant to the application are set out in the appended table. They complain of the non-enforcement of a domestic judgment in their favour.

5.  On 3 June 1989 A. M. and the then Executive Committee of Tirana, a branch of the local government, signed an agreement providing that A. M. would give up his tenancy over a state-owned flat that he had been leasing. The Executive Committee of Tirana would, in exchange, give him the right to lease a new flat in a building that was under construction.

6.  On 27 July 1999 A. M. died and on 20 September 1999 the Tirana District Court recognised the applicants as his heirs.

7.  On 14 June 2005 the second and third applicants lodged a court action against the Municipality of Tirana, as the successor of the Executive Committee of Tirana. They relied on their standing as heirs of A. M. and asked that the Municipality execute the 1989 agreement in their favour.

8.  The defendant insisted that the claim should be resolved in the light of the new legislation applicable to social housing.

9.  On 8 February 2007 the District Court of Tirana rejected that defence finding that the new legislation applicable to social housing did not overturn the Municipality’s obligation to comply with the 1989 agreement (“2007 judgment”).

10.  The Tirana Court of Appeal and the Supreme Court, on 20 February 2008 and 12 March 2010, respectively, rejected the defendant’s appeals and upheld the 2007 judgment.

11.  On 21 April 2008 the Tirana District Court issued an enforcement writ in respect of the 2007 judgment.

12.  The Constitutional Court, on 23 November 2017, found a violation of the second and third applicants’ right to a fair trial on account of the authorities’ failure to enforce the 2007 judgment.

THE LAW

13.  The applicants complained under Article 6 § 1 of the Convention about the non-enforcement of the 2007 judgment.

14.  The Court notes that the first applicant was not a party to the proceedings before the domestic courts and her rights had never been the subject of the examination at the domestic level, particularly so within the proceedings which led to the 2007 judgment, the enforcement of which is at the heart of the present application (see paragraphs 7 and 12 above). Accordingly, she cannot claim to be a victim of the alleged violation within the meaning of Article 34 of the Convention. It follows that the application, in so far as it has been submitted by the first applicant, is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

15.  The Court further observes that the second and third applicants’ complaint is not manifestly ill-founded or inadmissible on any other grounds. It must therefore be declared admissible.

16.  The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6 § 1 of the Convention. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II).

17.  In the leading cases of Qufaj Co. Sh.p.k. v. Albania (no. 54268/00, §§ 38-45, 18 November 2004) and Gjyli v. Albania (no. 32907/07, §§ 55-61, 29 September 2009), the Court already found a violation in respect of issues similar to those in the present case.

18.  The Government did not dispute the fact that the 2007 judgment remained unenforced. Thy submitted that the current housing programs of the Municipality of Tirana included social housing lease, soft and subsidised loans to purchase a primary residence, and subsidised rents. They stated that the applicants should apply to the Municipality for one of these programs.

19.  The applicants submitted that the current legal framework for social housing did not offer sufficient guarantees for their specific cases.

20.  The Court notes that under the 2007 judgment the Tirana District Court ordered that the Municipality of Tirana should execute the 1989 agreement, without any consideration of the social housing legislation that had been enacted after the 1989 agreement had been concluded (see paragraph 9 above). The Constitutional Court found that the 2007 judgment was not enforced (see paragraph 12 above). The Government also did not dispute that finding. The fact that the applicants may apply for social housing under newly enacted legislation does not affect that conclusion.

21.  The Court therefore finds that since 12 March 2010, when the last cassation appeal was rejected by the Supreme Court (see paragraph 10 above), the 2007 judgment remained unenforced, and the domestic authorities failed to deploy all necessary efforts to enforce it. It follows that there has been a violation of Article 6 § 1 of the Convention.

22.  The applicants also complained under Articles 8 and 13 of the Convention of an alleged breach of their right to home and the lack of an effective remedy in respect of their complaint about the non-enforcement of the final domestic decision.

23.  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).

24.  In respect of a pecuniary damages, the two applicants claimed various amounts depending on a method of the calculation of rent prices in Tirana for similar flats to the one they expected to receive under the 1989 agreement. They also stated that they had missed an opportunity to obtain title to a state-owned flat under specific privatisation laws (see Kasmi v. Albania, no. 1175/06, § 8, 23 June 2020). At the same time, they did not submit any evidence demonstrating the actual rent expenses they had to bear.

25.  The Court cannot speculate on any eventual possibility to obtain title to a flat via the privatisation process and is not ready to award the applicants any compensation for pecuniary damage based on an abstract study of rent prices. It accordingly makes no award under this head.

26.  As regards non-pecuniary damages, the applicants claimed 30,000 euros (EUR). They also claimed EUR 3,000 in respect of costs and expenses incurred before the Court. The Government considered those amounts excessive and unnecessary.

27.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Qufaj Co. Sh.p.k., cited above, §§ 46-48, and Gjyli, also cited above, §§ 62-76), the Court considers it reasonable to award the sums indicated in the appended table to be paid jointly to the second and third applicants.

28.  The Court further notes that the respondent State has an outstanding obligation to enforce the 2007 judgment which remains enforceable. At the same time, the Court reiterates that it is primarily for the respondent State to choose the means to be used in its domestic legal order to discharge its legal obligation under Article 46 of the Convention (see Shofman v. Russia, no. 74826/01, § 53, 24 November 2005, with further references).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay jointly to the second and third applicants, within three months, the amounts indicated in the appended table, 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 amounts 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 12 December 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Oddný Mjöll Arnardóttir
 Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention

(non-enforcement of domestic decisions)

[1] Plus any tax that may be chargeable to the applicants.

[2] Plus any tax that may be chargeable to the applicants.