CASE OF METALLA AND OTHERS v. ALBANIA

FOURTH SECTION

CASE OF METALLA AND OTHERS v. ALBANIA

(Applications nos. 30264/08, 42120/08, 54403/08 and 54411/08)

JUDGMENT

STRASBOURG

16 July 2015

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

In the case of Metalla and Others v. Albania,

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

George Nicolaou, President,
Krzysztof Wojtyczek,
Yonko Grozev, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 23 June 2015,

Having noted that the underlying legal issue in the applications 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 the above-mentioned date:

PROCEDURE

1. The case originated in four applications (nos. 30264/08, 42120/08, 54403/08 and 54411/08) 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 nine Albanian nationals between 13 June 2008 and 8 October 2008. Details of the applications and representatives are set out in Appendix No. 1 attached to the judgment.

2. The Albanian Government (“the Government”) were represented by their then Agents, Ms S. Mëneri of the Ministry of Foreign Affairs and Mrs E. Hajro of the State Advocate’s Office and, subsequently, by Ms L. Mandia of the State Advocate’s Office.

3. On 21 January 2010 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Application no. 30264/08: Metalla

4. On 9 August 1995 the Shijak Commission recognised the applicants’ inherited title to a plot of land measuring 1,020 sq. m of which 747 sq. m were restored. Since the remaining plot of land measuring 272 sq. m was occupied, the applicants would be compensated in one of the ways provided for by law.

5. The Commission decision remains unenforced.

B. Application no. 42120/08: Bushati

6. On 8 February 1995 the Shkodër Commission recognised the applicant’s and other heirs’ inherited title to a two-storey building and to a plot of land surrounding the building measuring 500 sq. m. Since the plot of land measuring 500 sq. m was occupied, the applicant and the heirs would be compensated in one of the ways provided for by law. It was also decided that the building should be restored to them.

7. The applicant claimed that in 1995 and 1997 he instituted two legal actions against a third party for the vacation and restoration of his property. However, he decided to discontinue those actions, having regard to pending judicial proceedings in other cities. It would appear that the third party has built unauthorised constructions on the applicant’s plot of land.

8. The Commission decision remains unenforced.

C. Application no. 54403/08: Metalla and Others

9. On 12 May 1994 the Shijak Commission recognised the applicants’ inherited title to a plot of land measuring 5,527 sq. m of which 5,000 sq. m were restored. Since the remaining plot of land measuring 527 sq. m was occupied, the applicants would be compensated in one of the ways provided for by law.

10. The Commission decision remains unenforced.

D. Application no. 54411/08: Metalla and Others

11. On 13 August 2007 the Durrës Commission recognised the applicants’ inherited title to a plot of land measuring 65,000 sq. m of which 60,000 sq. m were restored to them. Since the remaining land measuring 5,000 sq. m consisted of arable land, roads and channels (“e llojit arë, rrugë e kanale”) was occupied, the applicants would be compensated in one of the ways provided for by law.

12. The Commission decision remains unenforced.

II. RELEVANT DOMESTIC LAW AND PRACTICE

13. The relevant domestic law and practice have been described in detail in, inter alia, Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, §§ 23-53, 31 July 2012) and Ramadhi v. Albania (no. 38222/02, 13 November 2007).

14. On 6 March 2013 and 30 July 2014 the Government approved and issued new property valuation maps, which included the reference price per square metre throughout the country (Council of Ministers’ decisions (“the CMD”) nos. 187 of 6 March 2013 and 514 of 30 July 2014).

III. COUNCIL OF EUROPE MATERIAL

15. Subsequent to the events described in 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 Committee of Ministers gave a decision on 6 March 2014 on the execution of judgments concerning the Albanian authorities’ failure to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land. This decision, which was adopted at its 1193th meeting, stated, in so far as relevant, the following:

“The Deputies

(...)

2. considered the actions taken since September 2013 and the measures foreseen for the coming weeks and months as encouraging; regretting, however, that the deadline fixed by the pilot judgment will not be met, underlined that in order to fulfill the obligations imposed by the European Court and to introduce the required compensation mechanism without further delay and within the time frame proposed by the action plan, the political commitment expressed in the action plan must be followed by concrete and substantial actions at the domestic level, in particular in the fields identified by the Committee in its Interim Resolution CM/ResDH(2013)115;

(...).”

16. The Committee of Ministers’ decision of 5 June 2014 on the execution of judgments concerning the Albanian authorities’ failure to enforce final domestic judicial and administrative decisions awarding compensation in one of the ways provided for by law to the applicants in lieu of the physical restoration of their plots of land, which was adopted at its 1201st meeting, stated, in so far as relevant, the following:

“The Deputies

1. welcomed the formal adoption by the Albanian Council of Ministers of the action plan for the establishment of an effective compensation mechanism, thereby rendering the action plan binding, and noted with satisfaction that the measures foreseen are being adopted in conformity with the previsions in that plan;

2. in view of the overall deadline foreseen for the implementation of this mechanism, strongly encouraged the authorities to intensify their efforts with a view to reducing this time-frame as much as possible;

(...).”

17. The Committee of Ministers’ decision of 11 June 2015, which was adopted at its 1230th meeting, stated, in so far as relevant, the following:

“The Deputies

1. welcomed the commitment showed by the Albanian authorities in the search for an effective and sustainable solution to the important structural problem at stake in this group of cases; welcomed in this regard their presentation of the draft law and their co-operation with the Council of Europe, as well as the close consultations held with the Department for Execution, particularly in Tirana on 23 April 2015;

2. noted that, as requested by the Committee of Ministers and by the pilot judgment Manushaqe Puto, the authorities have conducted a careful review of all of the legal and financial implications and have estimated the overall cost of compensation in order to have a concrete basis for considering the necessary legislative changes;

3. invited the Albanian authorities to submit, as soon as possible, explanations and additional information on the solutions proposed in the draft law ...

(...)”

THE LAW

I. JOINDER OF THE APPLICATIONS

18. Given that the four applications raise the same issue, the Court decides that they should be joined pursuant to Rule 42 § 1 of the Rules of Court.

II. ADMISSIBILITY OF THE COMPLAINTS

A. As regards all applications

19. 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 final domestic decisions awarding them compensation in lieu of the restitution of their properties. In respect of application no. 42120/08, the Court of its own motion raised the question whether there had been a breach of Articles 6 § 1 and 13 of the Convention.

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.”

20. The Government contended that the applicants had not availed themselves of the remedies that had been introduced between 2005 and 2011.

21. The applicants contended that the remedies were not effective.

22. The Court considers that the question of the existence of effective remedies as regards the non-enforcement of final administrative decisions, and, in particular, of the remedies offered by the 2004 Property Act should be joined to the merits and examined in conjunction with the applicants’ complaint under Article 13. In this connection, the Court considers that, since the applicants’ complaint under Article 6 § 1 of the Convention is “arguable”, Article 13 is therefore applicable (see, amongst others, Eltari v. Albania, no. 16530/06, § 80, 8 March 2011).

23. The Court considers that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Not being inadmissible on any other grounds, the complaints must therefore be declared admissible.

B. As regards application no. 42120/08

24. The applicant in application no. 42120/08 claimed that there had been a breach of Article 1 of Protocol No. 1 as it was impossible for him to take possession of the two-storey house and its surrounding land measuring 500 sq. m.

25. The Government argued that the applicant had failed to institute legal proceedings against the present occupier of the property.

26. The Court notes that, under Article 35 § 1 of the Convention, it can examine a complaint “after all domestic remedies have been exhausted”. In this connection, it notes that this applicant instituted but discontinued the proceedings for the vacation and restoration of his property. The Court concludes that this complaint should be declared inadmissible for non-exhaustion of domestic remedies and should be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION

27. The Court notes that the question of the existence of effective remedies was examined, in detail, in the applicants’ complaint under Article 13 in the Manushaqe Puto and Others pilot judgment (paragraphs 72-84). In paragraph 84 of the pilot judgment, the Court found “that there was no effective domestic remedy that allowed for adequate and sufficient redress on account of the prolonged non-enforcement of Commission decisions awarding compensation”. There are no reasons to depart from those findings.

28. There is accordingly a violation of Article 13 of the Convention. Consequently, the Court dismisses the Government’s objection that the applicants failed to exhaust effective domestic remedies.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1

29. The applicants complained that the non-enforcement of final decisions in their favour, as accordingly amended, breached their rights under Article 6 § 1 and under Article 1 of Protocol No. 1 to the Convention.

30. The Government made the same arguments raised, examined and rejected in the Manushaqe Puto and Others pilot judgment (cited above, §§ 87-97). The Court sees no reason to reach a different conclusion in these cases.

31. The Court finds that the failure of the domestic authorities over so many years to enforce domestic decisions 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.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. 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.”

1. Damage

(a) The parties’ submissions

33. The applicants, with the exception of the applicant in application no. 42120/08, relied on experts’ valuation reports and made the following claims in respect of pecuniary and non-pecuniary damage.

Application name and number

Pecuniary damage

Non-pecuniary damage

Metalla,

no. 30264/08

EUR 24,908 as regards the property value of the plot of land measuring 272 sq. m on the basis of the 2010 market prices; or EUR 14,280 as regards the value of the plot of land measuring 272 sq. m on the basis of the 1995 prices together with the loss of profits.

EUR 70,000 in respect of all three applications.

Metalla and Others, no. 54403/08

EUR 38,095 as regards the property value of the plot of land measuring 527 sq. m on the basis of the 2010 market prices; or EUR 21,923 as regards the property value of the plot of land measuring 527 sq. m on the basis of the 1994 prices together with the loss of profits.

Metalla and Others, no. 54411/08

EUR 80,586 as regards the property value of the arable land measuring 5,000 sq. m on the basis of the 2010 market prices; or EUR 104,000 as regards the property value of the arable land measuring 5,000 sq. m on the basis of the 2007 prices together with the loss of profits.

Bushati, no. 42120/08

823,000 Albanian Lek (ALL) (EUR 5,772) as regards the value of the plot of land measuring 500 sq. m, on the basis of CMD 139/2008 according to which the reference price in Dajc, Shijak is ALL 1,646, no specific claim having been made in respect of the applicant’s share of property;

ALL 2,500,000 (EUR 17,534) as regards the value of the house;

ALL 900,000 (EUR 6,312) as regards the loss of profits.

None (no claims made).

34. The Government submitted that the valuation maps provided the following prices: ALL 12,200 in respect of applications nos. 30264/08 and 54403/08 based on CMD no. 1620 of 26 November 2008; ALL 632 in respect of application no. 54411/08 based on CMD no. 139 of 13 February 2008 and ALL 1,317 in respect of application no. 42120/08 based on CMD no. 139 of 13 February 2008.

35. Finally, the Government invited the Court to apply for financial compensation in accordance with Council of Minister decisions.

(b) The Court’s assessment

36. In view of the ineffective nature of the current system of compensation and having regard, in particular, to the fact that many years have passed since the applicants were initially awarded compensation, the Court, without prejudging possible future developments with regard to the establishment of an effective compensation mechanism, considers it reasonable to award the applicants a sum which would represent a final and exhaustive settlement of the cases before it.

37. The Court recalls its findings in the case of Vrioni and Others v. Albania (just satisfaction), nos. 35720/04 and 42832/06, §§ 33-39, 7 December 2010 as regards the method of calculation of pecuniary damage. The Court will base its calculation of pecuniary damage on the property valuation maps adopted by the Government in 2008 (see, also, Manushaqe Puto and Others, cited above, § 125), no reliance having been placed by the Government on the recent property valuation maps.

38. Having regard to the parties’ submissions and the material in its possession, the Court considers it reasonable to make the awards in respect of pecuniary and non-pecuniary damage tabulated in Appendix No. 2.

2. Costs and expenses

(a) The parties’ submissions

39. The applicants made the following claims in respect of costs and expenses.

Application name and number

Domestic proceedings

Strasbourg proceedings

Metalla, no. 30264/08

EUR 8,935 in respect of all three applications (receipts submitted)

Metalla and Others, no. 54403/08

Metalla and Others, no. 54411/08

Bushati, no. 42120/08

None (no claims made).

ALL 150,000 (EUR 1,050) (no receipts submitted).

40. The Government argued that the receipts in applications nos. 30264/08, 54403/08 and 54411/08 were not official invoices in accordance with the domestic law. They also rejected the applicants’ claims for costs and expenses as excessive and unreasonable.

(b) The Court’s assessment

41. 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, no. 32907/07, § 72, 29 September 2009). 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”.

42. The Court cannot accept the Government’s suggestion that invoices officially approved by the tax authorities are required: there is no such obligation under the Convention, it not being for this Court to regulate the relationship between a taxpayer and the State (see for example Luli and Others v. Albania, nos. 64480/09, 64482/09, 12874/10, 56935/10, 3129/12 and 31355/09, § 129, 1 April 2014). Having regard to the well-established case-law as a result of the adoption of the Manushaqe Puto and Others pilot judgment, the repetitive nature of the complaints raised in the above applications, the similar submissions made to the Court, 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 decides to jointly award EUR 3,000 in respect of three applications nos. 30264/08, 54403/08 and 54411/08.

43. The Court further observes that the applicant in application no. 42120/08 failed to submit any document to support his claim as required by Rule 60 of the Rules of Court. Therefore, the Court will make no award in respect of costs and expenses in respect of that case.

3. Default interest

44. 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. Decides to join the applications;

2. Decides to join to the merits of the complaint under Article 13 of the Convention the Government’s objection as to the exhaustion of domestic remedies;

3. Declares the applicants’ complaints under Articles 13 and 6 § 1 of the Convention as well as under Article 1 of Protocol No. 1 to the Convention as regards the non-enforcement of final property decisions awarding them compensation in lieu of the physical restoration of their property admissible;

4. Declares the remainder of application no. 42120/08 inadmissible;

5. Holds that there has been a breach of Articles 13 and 6 § 1 of the Convention as well as of Article 1 of Protocol No. 1 to the Convention and, consequently, dismisses the Government’s objection as to the exhaustion of domestic remedies;

6. Holds

(a) that the respondent State is to pay the applicant in application no. 42120/08, within three months, the amount referred to in paragraph 38 of the judgment and tabulated in Appendix 2, plus any tax that may be chargeable to the applicant, to be converted into the national currency at the rate applicable at the date of settlement;

(b) that the respondent State is to pay the applicants in applications nos. 30264/08, 54403/08 and 54411/08, jointly, within three months, the amounts referred to in paragraphs 38 and 42 of the judgment and tabulated in Appendix 2, plus any tax that may be chargeable to the applicants, to be converted into the national currency at the rate applicable at the date of settlement;

(c) 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;

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

Done in English, and notified in writing on 16 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıGeorge Nicolaou
Deputy RegistrarPresident

APPENDIX 1 – LIST OF APPLICANTS

No.

Case name and no.

Name of applicant(s)

(year of birth)

Country of residence

Represented by

Introduction date

1.

Metalla, no. 30264/08

Nezmi Metalla (1943)

Bujar Metalla (1956)

Albania

E. Muharremaj, lawyer

13 June 2008

2.

Bushati, no. 42120/08

Genc Bushati (1944)

Albania

B. Muslija,

lawyer

9 August 2008

3.

Metalla and Others, no. 54403/08

Nezmi Metalla (1943)

Bujar Metalla (1956)

Shyqyri Metalla (1947)

Besnik Metalla (1961)

Ferik Metalla (1969)

Dhurata Metalla, née Duka (1956)

Sanije Sinjari (1928)

Fiqirete Gashi (1931)

Albania

E. Muharremaj, lawyer

8 October 2008

4.

Metalla and Others, no. 54411/08

APPENDIX 2 – PECUNIARY AND NON-PECUNIARY DAMAGE                                           AS WELL AS COSTS AND EXPENSES

Application name and no.

Pecuniary and non-pecuniary damage

Costs and expenses

Metalla, no. 30264/08

EUR 23,200 (twenty-three thousand two hundred euros).

EUR 3,000 (three thousand euros)

Metalla and Others, no. 54403/08

EUR 97,000 (ninety-seven thousand euros)

Metalla and Others, no. 54411/08

Bushati, no. 42120/08

EUR 1,500 (one thousand five hundred euros in respect of the applicant’s share).

None (no receipts submitted).

 

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