THIRD SECTION
CASE OF PRODHIM VESHJE No. 2 SH.A. v. ALBANIA
(Application no. 34649/14)
JUDGMENT
STRASBOURG
17 October 2023
This judgment is final but it may be subject to editorial revision.
In the case of Prodhim Veshje No. 2 SH.A. 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. 34649/14) 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 29 April 2014 by Prodhim Veshje No. 2 SH.A., a company incorporated in Albania (“the applicant company”) which was represented by Mr B. Rusi, a lawyer practising in Tirana;
the decision to give notice to the Albanian Government (“the Government”), represented by their then Agent Ms A. Hicka and subsequently by Mr O. Moçka, General State Advocate, of the complaints under Article 6 § 1 of the Convention concerning access to a court, lack of impartiality, and lack of reasoning, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 26 September 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged violation of the applicant company’s right of access to the Constitutional Court, lack of impartiality of the Appeal Court, and lack of reasoning of the Supreme Court’s decision, under Article 6 § 1 of the Convention.
2. In 2006 a private party started construction on a plot of land claimed by the applicant company. In 2007 the applicant company lodged a civil claim seeking protection of its alleged property rights and an injunction against any further construction on its land, relying on Article 303 of the Civil Code. On 4 December 2007, the Tirana District Court (the District Court) granted immediate injunction (masa e sigurimit të padisë), halting the construction. That decision was upheld by the Appeal Court on 20 June 2008 and by the Supreme Court on 26 February 2009. After an enforcement order had been issued the applicant company, initiated enforcement proceedings. On 14 May 2008 the District Court dismissed the opposing side’s civil action brought against the applicant company and seeking that the enforcement proceedings be terminated.
3. On 29 September 2008 the District Court dismissed the applicant company’s claim and lifted the injunction, holding that it was not the owner of the land at issue and that it therefore lacked locus standi. The District Court also held that the applicant company’s civil action was time-barred since it had been lodged out of the one-year time limit, provided in Article 303 of the Civil Code.
4. On 11 November 2009 the Court of Appeal, composed of three judges, accepted the opponent’s action concerning the enforcement proceedings and terminated them. It relied, inter alia, on the decision of 29 September 2008 which had rejected the applicant company’s action on the merits and had lifted the injunction.
5. On 5 February 2010 the Court of Appeal, composed of the same three judges who gave the decision of 11 November 2009, upheld the District Court’s decision concerning the applicant company’s civil action. The applicant company did not make a formal request that the three judges withdraw from the case.
6. On 4 March 2010 the applicant company lodged an appeal on points of law with the Supreme Court, complaining that the three judges of the Court of Appeals lacked impartiality because of their previous involvement in the decision of 11 November 2009; that a technical expert should have been appointed by the trial court; that it had been wrongly assessed that the plot of land at issue was not property of the applicant company; that the National Agency of Privatisation should have been invited to take part in the proceedings; and that its opponent had presented a forged document. On 25 March 2011 that appeal was dismissed de plano.
7. On 31 October 2013 the Constitutional Court, in a formation of eight judges, dismissed without prejudice the applicant company’s complaint because its vote was tied. The reasoning was limited to the fact that the court could not reach a majority on any of the issues raised in the case. The applicant company was informed of the possibility, under section 74 of the Constitutional Court Act, to lodge a fresh complaint at a later time.
8. In 2016, Law No. 99/2016 amended Section 73 § 4 of the Constitutional Court Act no. 8577/2000. Pursuant to these amendments, it is no longer possible to dismiss without prejudice an individual complaint due to a tied vote of the Constitutional Court. In cases in which that court cannot reach a five-member majority on any aspect of a constitutional complaint, which includes tied vote situations, the complaint is dismissed with prejudice in a final and definitive fashion.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION as regards the right of access to the constitutional court9. The Government argued that the applicant company had not properly exhausted domestic remedies because it had not lodged a fresh constitutional complaint to which it was entitled under Article 131 § 1 (f) of the Constitution. The Government further argued that the applicant company also failed to bring a civil action for damages against the State.
10. As regards the possibility of lodging a fresh constitutional complaint once the composition of the Constitutional Court was complete, the Court has already held that it could not accept that the mere possibility that circumstances might change, and that the applicant might receive a final determination of his or her constitutional complaint at some undefined future point in time could satisfy the requirements of legal certainty (see Marini v. Albania, no. 3738/02, § 121, 18 December 2007). It follows that the applicant company, in the circumstances of the present case, was not required to lodge a fresh constitutional complaint.
11. As to a civil action for damages against the State, the Court considers that such an action is not capable of remedying the applicant company’s lack of access to the Constitutional Court. Therefore, the Court dismisses the Government’s objection concerning the exhaustion of domestic remedies in respect of this complaint. The Court notes that it is not inadmissible on any other grounds and that, therefore, it has to be declared admissible.
12. It remains to be ascertained whether the decision to dismiss without prejudice the applicant company’s constitutional complaint because of the tied vote violated its right of access to the Constitutional Court. The general principles concerning access to the Albanian Constitutional Court as regards the dismissal of constitutional complaints because it could not reach a majority, before the changes introduced by law No. 99/2016 (see paragraph 8 above), have been summarised in the above-cited case of Marini (see §§ 118 – 123).
13. The Government contended that the situation of the present case was different from the above-cited case of Marini. Firstly, because the tied vote situation was not a structural problem of the Constitutional Court’s organisation, but it was a temporary situation not caused by that court itself. Secondly, the applicant company had the possibility to challenge before the Constitutional Court the legal provision that had caused the dismissal of its constitutional complaint because of the tied vote.
14. The Court sees no weighty arguments to distinguish the present case from the case of Marini. The applicant company’s constitutional complaint was dismissed because the members of the panel were divided and could not reach the five-member majority required by law. This left the applicant company without any final determination of its case and, accordingly, restricted the very essence of its right of access to the Constitutional Court (compare Marini, cited above, § 122). There was no immediate prospect that the situation would change, since one of the judges had recused himself because of his earlier participation in the Supreme Court’s Panel adjudicating the underlying case.
15. In these circumstances, the Court considers that the impugned decision of the Constitutional Court, dismissing the applicant company’s constitutional complaint due to the tied vote, amounted to an unjustified denial of the applicant company’s right of access to the Constitutional Court. There has accordingly been a violation of Article 6 § 1 of the Convention.
OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW16. The applicant company lodged two additional complaints under Article 6 § 1 of the Convention. Firstly, it complained that the Appeal Court bench that had dismissed its appeal had not been impartial, because it was the same panel that had accepted its opponent’s civil action just two months previously (see paragraph 5 above).
17. As to this complaint, the Court agrees with the Government that the applicant company has not exhausted the domestic remedies because it failed to lodge a request for the withdrawal of the Appeal Court’s panel, a possibility expressly provided under Articles 72 and 74 of the Code of Civil Procedure. These provisions stipulate that judges have the obligation to withdraw from a case whenever they consider that there is a conflict of interests, in which case it is for the president of the given court to accept a request for withdrawal and ensure replacement by another judge. Where a judge does not withdraw voluntarily, each party to the proceedings has the right to request his or her recusal. The request must be submitted within three days from becoming aware of the alleged grounds for judge’s withdrawal. The applicant company, failed to make use of the standard procedure for seeking withdrawal of judges it considered to be not impartial. In its constitutional complaint the applicant company expressly admitted that it had not lodged such a request.
18. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
19. As regards the complaint that the Supreme Court had rejected the applicant company’s appeal on points of law without giving reasons, the Court observes that the applicant appealed to the Supreme Court on the ground that the lower courts’ decisions were defective in law. The Court considers that the limited reasons given by the Supreme Court in its de plano decision formula, however, implicitly indicated that the applicant had not raised any of the points of law provided for by the relevant domestic provision, which is an admissibility requirement for leave to appeal being granted. The Court observes that where a Supreme Court refuses to accept a case on the basis that the legal grounds for such a case are not made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention (see Marini, cited above, § 106).
20. Accordingly, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
21. The applicant company claimed EUR 243,135 in respect of pecuniary and non-pecuniary damage and EUR 78,000 in respect of costs and expenses incurred before the domestic courts and for those incurred before the Court.
22. The Government deemed the sums claimed unfounded and excessive.
23. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. Given the nature of the applicant company’s complaint and of the violation found, the Court considers that the most appropriate form of redress in the present case would be the reopening of the proceedings before the Constitutional Court, should the applicant company so request, given that it is capable of providing restitutio in integrum as required under Article 41 of the Convention (compare Shkalla v. Albania, no. 26866/05, §§ 77-79, 10 May 2011, and X v. the Netherlands, no. 72631/17, § 61, 27 July 2021). In this connection, the Court notes that Article 71/c of the Law on the Functioning and Organisation of the Constitutional Court provides that the proceedings before the Constitutional Court may be reopened if an international court with binding jurisdiction over the Republic of Albania finds that an individual’s fundamental rights or freedoms have been violated “due to a [prior] decision of the Constitutional Court”. That being so, the finding of a violation constitutes sufficient just satisfaction in the present case.
24. As regards the costs and expenses before the domestic courts and the Court, according to the Court’s case-law, an applicant is entitled to their reimbursement only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 2,000 (two thousand euros), for the proceedings before the Court, plus any tax that may be chargeable to the applicant company.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint concerning the applicant company’s right of access to the Constitutional Court admissible, and decides that the remaining complaints are inadmissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant company;Holds(a) that the respondent State is to pay the applicant company, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses, 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;
Dismisses the applicant company’s claim for just satisfaction.Done in English, and notified in writing on 17 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President