FOURTH SECTION
CASE OF SHARRA AND OTHERS v. ALBANIA
(Applications 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)
JUDGMENT
This version was rectified on 22 March 2016
under Rule 81 of the Rules of Court
STRASBOURG
10 November 2015
This judgment is final but it may be subject to editorial revision.
In the case of Sharra and Others v. Albania,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
Nona Tsotsoria, President,
Ledi Bianku,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 22 October 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 that date:
PROCEDURE
1. The case originated in twelve applications (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) 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 61 Albanian nationals. Details of the applicants and representatives are set out in Appendix No. 1 attached to the judgment.
2. On 27 March 2013 the heir of Ms Gurie Dvorani, who was one of the initial applicants in application no. 4036/10, Ms Lejla Ago née Belli, expressed her wish to pursue the proceedings on her behalf. On 30 September 2014 the heirs of Ms Tefta Agolli, who was one of the initial applicants in application no. 20240/10, Mr Ilir Shijaku and Ms Deshira Keta née Shijaku, expressed their wish to pursue the proceedings on her behalf. On 13 March 2015 the heirs of Ms Naide (Nahide) Shkodra née Frashëri, who was one of the initial applicants in application no. 64399/09, Ms Rozafa Çabej née Shkodra and Ms Valbona Mardodaj née Shkodra, as appointed by way of a testament, expressed their wish to pursue the proceedings on her behalf. For practical reasons, the applicants Ms Gurie Dvorani, Ms Tefta Agolli and Ms Naide (Nahide) Shkodra née Frashëri will continue to be referred to in this judgment as the applicants, although their heirs are now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999‑VI and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 97-101, ECHR 2013).
3. The Albanian Government (“the Government”) were represented by their Agent, Ms A. Hicka of the State Advocate’s Office.
4. On 25 January 2010 and 20 December 2013 the applications were communicated to the Government.
5. As regards applications nos. 64376/09, 64399/09, 12889/10 and 29442/10 the Government failed to submit written observations by the time-limit allowed.
6. As regards applications nos. 347/10 and 33154/11, the applicants failed to submit claims for just satisfaction by the time-limit allowed.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Application no. 25038/08: Sharra
7. On 28 December 1994 the Vlora Commission on Property Restitution and Compensation (“the Commission”) recognised the applicant’s and other heirs’ inherited title to a number of plots of land measuring 46,750 sq. m, of which 900 sq. m were restored to them. As the remaining plot of land was occupied, the Commission decided that the applicant and the other heirs would be compensated in one of the ways provided for by law in respect of 45,850 sq. m. The Commission could not determine the boundaries of a plot of land measuring 13,750 sq. m and did not decide on the recognition of the applicant’s inherited property rights.
8. On 8 March 2011 the Court delivered its judgment in the case of Eltari v. Albania, no. 16530/06 as regards the authorities’ failure to pay compensation in respect of a plot measuring 10,500 sq. m, which was part of the Commission decision.
9. To date, no compensation has been paid.
B. Application no. 64376/09: Xibinaku and Others
10. On 21 March 1996 the Lushnjë Commission recognised the applicants’ inherited property rights over a plot of land measuring 576 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law. The applicants submitted that they were the remaining heirs of the above plot of land in respect of which the Court had already delivered the judgment in the case of Hamzaraj v. Albania (no. 1) (no. 45264/04, 3 February 2009).
11. To date, no compensation has been paid to the applicants.
C. Application no. 64399/09: Frashëri
12. On 18 May 1995 the Tirana Commission recognised the applicants’ inherited property rights over a plot of land measuring 1,000 sq. m. It ordered that the plot of land should be entirely restored to the applicants. On 11 February and 14 December 2000 the Tirana District Court and the Tirana Court of Appeal amended the Commission decision and ordered that the applicants would be compensated in one of the ways provided for by law of which 200 sq. m were restored to them. Since the remaining plot of land measuring 800 sq. m was occupied, the applicants would be compensated in one of the ways provided by law.
13. To date, no compensation has been paid.
D. Application no. 347/10: Maçi
14. On 13 September 1996 the Tirana Commission recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 16,500 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law.
15. To date, no compensation has been paid.
E. Application no. 1376/10: Çoka
16. On 25 October 1995 the Tirana Restitution and Compensation of Properties Commission (“the Commission”) recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 150,000 sq. m of which 29,700 sq. m were restored to them. Since the remaining plot land measuring 120,300 sq. m was occupied, the applicants would be compensated in one of the ways provided by law.
17. To date, no compensation has been paid.
F. Application no. 4036/10: Dvorani and Dume
18. On 10 December 1999 the Korçë Commission recognised the applicants’ inherited property rights over a plot of land measuring 11,000 sq. m of which 10,100 sq. m were to be compensated in one of the ways provided by law.
19. To date, no compensation has been paid.
G. Application no. 12889/10: Asllani
20. On 23 October 1996 and 24 April 1998 the Korçë Commission recognised the applicant’s inherited property rights over a plot of land measuring 9,950 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law.
21. To date, no compensation has been paid.
H. Application no. 20240/10: Agolli
22. On 7 July 2006 the Tirana Commission recognised the applicants’ inherited property rights over a plot of land measuring 800 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law.
23. To date, no compensation has been paid.
I. Application no. 29442/10: Talipi (Peshkëpia)
24. On 28 February 1995 the Tirana Commission recognised the applicant’s inherited property rights over a plot of land measuring 335 sq. m of which 162 sq. m were restored to him. Since the remaining plot land measuring 173 sq. m was occupied, the applicant would be compensated in one of the ways provided by law.
25. To date, no compensation has been paid.
J. Application no. 29617/10: Kati
26. On 28 February 1995 the Tirana Commission recognised the applicants’ inherited property rights over a plot of land measuring 910 sq. m of which 630 sq. m were restored to them. Since the remaining plot land measuring 280 sq. m was occupied, the applicants would be compensated in one of the ways provided by law.
27. To date, no compensation has been paid.
K. Application no. 33154/11: Vrioni
28. On 21 December 1995 and 22 April 1996 the Berat Commission recognised the applicant’s inherited property rights over a plot of land measuring 3,435 sq. m of which 130 sq. m were restored to him. Since the remaining plot land measuring 3,305 sq. m was occupied, the applicant would be compensated in one of the ways provided by law.
29. To date, no compensation has been paid.
L. Application no. 2032/12: Lelo
30. On 10 August 2007 the Agency for Restitution and Compensation of Property (“the Agency”), which had replaced the Commission, recognised the applicant’s inherited property rights over a plot of land measuring 14,400 sq. m located in Vlora. Since the plot of land was occupied, the applicant would be compensated in one of the ways provided by law.
31. To date, no compensation has been paid.
II. RELEVANT DOMESTIC LAW
32. The relevant domestic law and practice has been described in detail in, inter alia, the judgment of 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). Additional relevant domestic legislation includes the following:
A. Constitution of Albania
33. The relevant part of the Constitution read as follows:
Article 41
“...
3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest.”
4. Expropriations or limitations of a property right that amount to expropriation are permitted only against fair/just compensation (përkundrejt një shpërblimi të drejtë).”
B. Property Act 2004
34. Under Article 13, as amended by Act no. 55/2012 of 10 May 2012, compensation should be determined on the basis of the market price, the type of property and its intended use.
C. Council of Ministers’ decisions
1. As regards the methodology for the valuation of immovable property (CMD no. 658 of 26 September 2012)
35. The decision sets out the methodology and rules to be used for the valuation of the immovable property. The decision states that the proposed methodology is based on international standards for the valuation of immovable property, according to which the property’s value equals the price of the sales contract.
36. According to the decision, the price of the sales contract indicates the market value related to the type of property and its intended use. The Immovable Property Registration Office (“IPRO”) is responsible for extracting the market value on the basis of official data contained in the sales contracts registered during a calendar year. Every month the IPRO updates the data on the basis of the sales contracts. During the last quarter of a calendar year, the IPRO groups the data on the basis of the type of property in respect of each cadastral area (zonë kadastrale) and district (qarku). It forwards the information to the Agency by mid-November.
37. By the end of December, the Agency processes all the data and submits the valuations to the Minister of Justice, who, in turns, seeks the final approval of the Council of Ministers. The data are processed as follows: a) extraction of the minimal and maximal prices of sales contracts for each type of property and cadastral area; b) calculation of the average price of sales contracts for each type of property and cadastral area; c) exclusion of the lowest and highest values (starting from 5% difference) of the sales contracts; d) calculation of the widely tradable value (moda) – the one most often referred to in the sales contracts – for each type of property and cadastral area drawn from the aggregate number of sales contracts; e) calculation of the average price drawn from the aggregate number of sales contracts. This process leads to the final calculation of the immovable property’s value.
38. The minimal number of sales contracts for a cadastral area has been capped to three. In that case, the value of the property would be the resultant average price of the three contracts. In the event that there are no transactions for a certain type of land in a cadastral area, an indirect method of calculation would be applied, according to which the value for that type of land would be calculated by grouping the sales contracts registered for that type of land in the closest administrative level in accordance with the following ascending order: village (komunë), municipality (bashki) and district (rreth).
2. Review of the methodology by the Legal Affairs (Public Administration and Human Rights) Parliamentary Commission
39. On 29 April 2015 the Government submitted records of a parliamentary meeting of 7 May 2012 of the Legal Affairs Commission, which within the framework of a debate on the new draft law on property restitution and compensation, discussed, amongst other things, the methodology to be adopted for the valuation of immovable property.
40. The Minister of Justice affirmed the Government’s intention to provide compensation at the market value, whose calculation would be based on the international standards for valuation of immovable property. Three components would be used for the calculation of the market value, namely the prices actually negotiated, the type of property and its intended use. Property valuation would be updated on a yearly basis in order to reflect market fluctuations.
41. Property valuation maps would be adopted by way of a Government decision. Experts from the Ministry of Justice stated that contrary to the existing methodology, which calculated the property values on the basis of between 20 and 30 factors and which contained various inaccuracies, the proposed methodology would extract the data from the contractual transactions concluded between private parties as registered with the IPRO. Given the adequate number of data that had been collected, this would secure a low margin of error in property valuation and would exclude interference by the Government in setting property values.
42. Concerns were expressed as to whether the methodology should be adopted by way of a Government decision or by Parliament itself. Scepticism arose as regards the existence of a sufficient number of transactions that would enable correct property valuation. Reservations were also made as to whether the transactions necessarily represented the real market value, regard being had to the fact that parties generally did not declare the real purchase/sales price in order to avoid payment of high taxes. The proposed methodology might be at the expense of former owners as regards their entitlement to compensation.
3. As regards property valuation maps in 2013 and 2014
43. Relying on the decision on the methodology for the valuation of immovable property, 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 nos. 187 of 6 March 2013 and 514 of 30 July 2014).
III. COUNCIL OF EUROPE MATERIALS
44. Relevant materials were referred to in this Court’s judgments of 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. JOINDER OF THE APPLICATIONS
45. Given that all applications raise the same issue, the Court decides that they should be joined pursuant to Rule 42 § 1 of the Rules of Court.
II. 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
46. 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.
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
47. The Government did not contest the admissibility of these complaints.
48. The Court notes that these 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
49. The Government did not dispute the merits of the applicants’ complaints and acknowledged that the applications were the subject of well-established case-law in the light of the judgment in the case of Manushaqe Puto and Others, cited above.
50. Having regard to its findings in previous cases against Albania in respect of which the Government have 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), the Court finds that the domestic authorities’ failure over so many years to enforce the final 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.
51. The Court also concludes that there was 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).
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS
52. The applicants in applications nos. 64376/09, 64399/09, 1376/10, 4036/10, 29617/10, and 20240/10 complained under Article 6 § 1 about the length of proceedings as a result of the non-enforcement of the Commission decisions.
53. 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.
54. The Court considers that, in view of the findings in paragraphs 49-51 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 the issue of the length of the proceedings.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
55. The applicant in application no. 25038/08 complained about a breach of her property rights as regards the plot of land measuring 13,750 sq. m. The Court notes that, in the absence of recognition of her property by the Commission, the applicant cannot argue that she has a “claim” within the meaning of Article 1 of Protocol No. 1 to the Convention. The Court declares this complaint incompatible ratione materiae and rejects it in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
56. 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
(i) General observations
57. The applicants requested the Court to apply the property valuation maps of 2008 for the calculation of pecuniary damage. They submitted that the property valuation maps drawn up in 2013 and 2014 provided for a sharp decrease of the reference price. For example, there was a striking drop in price, by almost 50%, in respect of plots of lands located in the centre of Tirana, while the reference price in one of Tirana’s suburbs, Paskuqan, had increased and was higher than the plot of land in the city centre. In their view, the valuation maps 2014 disregarded the market-based assessment and were adopted with the sole purpose of lowering the reference price. The whole process lacked transparency, because the Government had failed to provide factual evidence on how the calculations were reached for determining the reference price. They alleged that, in the absence of figures on which they would have commented, the Government might well have chosen the three lowest-value transactions, which would explain a drastic decrease of the reference price. The applicants further contended that the valuation map 2014 should not be used retroactively in respect of applications lodged prior to their entry into force.
58. The applicant submitted that the Government had not taken any measures to fulfil the obligations arising from the pilot judgment Manushaqe Puto and Others, cited above. They contended that the Government worked against the interests of former owners by lowering the reference prices. Relying on this Court’s judgment in the case of Karagjozi and Others [Committee], cited above, § 64, they pointed to the Government’s failure to demonstrate that the reference prices “reflected the real market value and was ‘interest and inflation indexed”. They further submitted that, in the event the prices had not decreased by way of the valuation maps 2013 and 2014, the most advantageous reference price would have to be applied. Alternatively, they submitted experts’ reports arguing that the valuation maps did not reflect the real market value of the property. In determining the reference price, the experts took into consideration the price per sq. m of nearby apartment blocks, the rents in the nearby area, the fact that the property, insofar as relevant, was located in a residential and commercial area, the assumption that the property was free of any encumbrances and the development potential.
59. Some applicants submitted that, by virtue of their indiscriminate application, the valuation maps 2014 unjustly equated the status of lawful former owners with the status of owners of unlawfully constructed buildings. In their view, the market, which was to remain free of any Government’s interference, should determine the property values. They further contended that the property valuation maps 2014 did not take into account the characteristics of the property, failed to provide for any default interest on delayed payments, non-pecuniary damages or legal costs and expenses incurred by the applicants.
(ii) Specific claims in respect of each application
60. The applicants made claims in respect of pecuniary and non-pecuniary damage as tabulated in Appendix No. 2.
61. As regards application no. 25038/08, the applicant submitted that her share was one-sixteenths of the plots of land measuring 35,850 sq. m. She submitted an expert’s report in respect of pecuniary damage according to which the reference price varied from 161 EUR/sq. m to 200 EUR/sq. m.
62. The applicants in application no. 64376/09 submitted that they were the remaining heirs of the same plot of land in respect of which the Court had awarded just satisfaction in the case of Hamzaraj, cited above (see also paragraph 10 above). Relying on the latter judgment, the applicants claimed a lump sum of EUR 87,000 in respect of pecuniary and non-pecuniary damage as well as cost and expenses, no detailed breakdown of such claims having been submitted. They submitted they owned fifty five-seventy seconds of the property.
63. As regards application no. 64399/09, the applicants claimed that the reference price was 120,000 ALL/sq. m. They contended that they owned the entire property.
64. As regards applications nos. 347/10 and 33154/11, the applicants submitted their claims for just satisfaction after the expiry of the time-limit fixed for that purpose (see also paragraph 6 above). Relying on an expert’s report, they claimed that the reference price was 30,059 ALL/sq. m in respect of application no. 347/10 and 25,000 ALL/sq. m in respect of application no. 33154/11.
65. The applicants in applications nos. 4036/10 and 29617/10 also submitted experts’ reports. As regards application no. 4036/10, the applicants submitted that both valuation maps of 2008 and 2013 provided for the same reference price, that is 10,000 ALL/sq. m. However, relying on the expert’s report, they claimed that the reference price was 13,246.8 ALL/sq. m. The applicants claimed that the reference price was 1,466 EUR/sq. m. in respect of application no. 29617/10.
66. As regards application no. 1376/10, the applicants requested that the Court apply the reference price of 20,473 ALL/sq. m indicated in the valuation maps 2008, instead of the reference price of 9,274 ALL/sq. m indicated in the valuation maps 2013. They owned two fifteenths of the plot of land.
67. The applicants also claimed that the reference price was 14,500 ALL/sq. m in respect of application no. 12889/10 as regards his one tenths of the property, 12,000 ALL/sq. m in respect of application no. 29442/10 and 857 EUR/sq. m in respect of application no. 20240/10.
68. As regards application no. 2032/12, the applicant requested that the Court apply the reference price of 11,523 ALL/sq. m as indicated in the property valuation maps 2013, instead of the reference price of 10,000 ALL/sq. m as indicated in the property valuation maps 2008.
(b) The Government
(i) General observations
69. The Government requested the Court to apply the property valuation maps 2014 for the calculation of pecuniary damage. They submitted that the property valuation maps 2014 had been drawn up pursuant to a Government decision on the methodology of the valuation of immovable property (CMD no. 658 of 26 September 2012). In accordance with that decision, the annual update of the maps relied on the data that were submitted by the ORIP on the basis of financial transactions that is sales contracts, registered in respect of each cadastral area. Three criteria were used to calculate the property value of a cadastral area, namely the market price, the type of property and its intended use. The property value reflected the average price of sales contracts in a cadastral area.
70. The Government acknowledged that the property valuation maps 2014 provided for lower reference prices than those of 2008. Such decrease was attributable to the economic crisis in Europe which had also affected the property market in Albania and to the improved methodology that was being applied in accordance with the international standards. The Government further submitted that the property valuation maps were referred to and used in relation to the expropriation of lawful owners and the legalisation of unlawfully constructed buildings. In their view, the valuation maps 2008 did not reflect the reality.
71. In the Government’s opinion, the pecuniary damage should be calculated by having regard to the type of land at the time the confiscation and/or nationalisation by the State took place. Its assessment should not be based on the changed destination of land, as it stood at present.
(ii) Specific comments in respect of each application
72. As regards application no. 25038/08, the Government submitted that the applicant should be compensated for one-twentieths of the entire property on the basis of the valuation maps 2008. They further submitted that a plot of land measuring 442 sq. m, which had been restored to the applicant and other heirs by virtue of a decision of 5 May 2009, should be deducted.
73. As regards applications nos. 64376/09, 64399/09, 12889/10 and 29442/10, the Government failed to submit any comments on the applicants’ claims for just satisfaction within the time limit fixed for that purpose (see also paragraph 5 above).
74. As regards applications nos. 347/10 and 33154/11, the Government requested the Court to make no awards since the applicants failed to submit their claims for just satisfaction within the deadline fixed by the Court. Alternatively, the Government submitted that, in the event that the Court accepted the applicants’ belated submissions, they should be compensated based on reference prices shown in valuation maps of 2014, that is 3,667 ALL/sq. m in respect of application no. 33154/11. The Government did not submit any comments on the applicants’ claim for just satisfaction as regards application 347/10.
75. As regards application no. 1376/10, the Government conceded that, at present, the applicants’ plot of land was located in a cadastral area which solely consisted of construction land (tokë truall), whose reference price was 38,359 ALL/sq. m. The cadastral area did not indicate any reference price in respect of agricultural land. However, having regard to the fact that at the time of confiscation the plot of land had been agricultural, they proposed that the reference price for agricultural land in respect of another closer cadastral area should be applied, that is 551 ALL/ sq. m.
76. The Government made the same submissions in respect of applications nos. 4036/10 and 2032/12. They conceded that, at present, the applicants’ plots of land were located in a cadastral area which solely consisted of construction land (tokë truall), whose reference prices, on the basis of the valuation maps 2014, were 8,413 ALL/sq. m in respect of application no. 4036/10 and 8,300 ALL/sq. m in respect of application no. 2032/12. The cadastral areas did not indicate any reference price in respect of agricultural land. However, having regard to the fact that at the time of confiscation the plots of land had been agricultural, they proposed that the reference price for agricultural land in respect of the closest administrative level should be applied, that is 102 ALL/sq. m in respect of application no. 4036/10 and 281 ALL/ sq. m in respect of application no. 2032/12.
77. As regards applications nos. 20240/10 and 29617/10, the Government submitted that the applicants should be compensated based on the valuation map of 2014. In respect of both applications, the reference price was 57,126 ALL/sq. m according to the property valuation maps 2014.
2. The Court’s assessment
78. In view of the ineffective nature of the current system of compensation and having regard, in particular, to the fact that it is now between 8 and 21 years 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.
79. The Court reiterates its established principle that the pecuniary damage to be awarded in cases of unlawful expropriation should correspond to the current value of the property if restitutio in integrum were not possible (see Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, §§ 19‑24, ECHR 2001‑I, and Scordino v. Italy (no. 3) (just satisfaction)).
80. The Court examined a similar issue in Vrioni and Others v. Albania (just satisfaction), nos. 35720/04 and 42832/06, §§ 33-39, 7 December 2010, in which it reasoned and concluded that, in the case of unlawful expropriations, such as in the present applications, in respect of which the authorities awarded compensation in lieu of complete restoration of the property, the amount of compensation would correspond to the current value of the property.
81. In Vrioni and Others (just satisfaction), cited above, the Court awarded compensation on the basis of the property valuation maps adopted in 2008. This method of calculation of pecuniary damage has been consistently applied in all subsequent judgments adopted by the Court (see Manushaqe Puto and Others, cited above, § 125; Delvina v. Albania (just satisfaction), no. 49106/06, § 17, 21 May 2013; Karagjozi and Others [Committee], cited above, §§ 63 and 65; Siliqi and Others [Committee], cited above, § 27; and Metalla and Others [Committee], cited above, § 37).
82. In the present case, the Court has to determine whether it should refer to the property valuation maps 2008 or those of 2014 for the calculation of pecuniary damage. Having examined the parties’ arguments, the Court makes the following observations.
83. The pilot judgment Manushaqe Puto and Others, cited above, in relation to the authorities’ failure to pay compensation in lieu of the restoration of property was delivered by the Court on 31 July 2012. It became final on 17 December 2012. In its paragraph 121 and the operative provision no. 7 the Court decided not to adjourn the proceedings of cases that had been lodged prior to the delivery of that judgment, but to continue their examination after the judgment became final. In this connection, the present applications were lodged with the Court between 15 May 2008 and 19 December 2011. Notice of the applications was given to the Government on 25 January 2010 and 20 December 2013 (see paragraph 4 above).
84. The Court takes note of the Government’s arguments in favour of the application of the property valuation maps 2014 for the calculation of the pecuniary damage. It welcomes the fact that the property valuations are (supposed to be) updated every year on the basis of a methodology that was adopted by a Government decision in 2012. However, it is not persuaded by the Government’s proposals.
85. In the first place, the property valuation maps 2014 were adopted after the introduction of the present applications, which are being examined in line with the directions laid down in the pilot judgment. In the Court’s view, reference to the valuation maps 2014 would give rise to disparities in the treatment of applicants insofar as reliance on the reference price is concerned.
86. Secondly, the Court would refer to the reservations made during the parliamentary meeting of 7 May 2012 to the effect that the transactions registered with the IPRO did not generally and necessarily reflect the real market value as a result of tax evasion committed by the parties to a sales contract. Consequently, the Court considers that reliance on the sales prices of registered transactions would be in blatant discord with the well-established principle that compensation, in cases of unlawful expropriation, should correspond to the market value, it not being for this Court to indicate measures to curb and combat tax evasion.
87. Thirdly, and closely linked to the second reason, the Court is concerned that property prices in some cities, particularly in areas experiencing a relatively high development growth, such as the centre of Tirana, the capital city, have experienced a sharp decline. The Court is not in a position to speculate the reasons for such decrease, but it is not convinced that they objectively reflect the current market value and that they were “interest and inflation indexed” in order to cover for the damage occasioned by the unavailability of compensation during all these years (compare Vrioni and Others (just satisfaction), cited above, § 37).
88. Neither can the Court accept the experts’ reports submitted by the applicants. Their assessment was mostly based on the sales prices of apartment blocks erected on adjacent plots of land instead of comparable values of nearby plots of land. In any event, the experts’ reports did not substantiate the reference prices to which they referred by reliance on supporting documents.
89. As regards application no. 25038/08, the parties disputed the applicant’s share of the property. Having regard to the material in its possession, the Court rules that the applicant should be awarded one-sixteenths of a plot measuring 35,350 sq. m, 10,500 sq. m having already been the subject of its judgment in the case of Eltari, cited above. It further notes that the plot of land measuring 442 sq. m which was restored to her and other heirs by a decision of 5 May 2009 was not part of the total plot of land measuring 35,300 sq. m to be awarded as compensation.
90. Having regard to the foregoing considerations, the Court concludes that it should determine the pecuniary damage on the basis of the property valuation maps 2008. Having regard to the material in its possession, the Court considers it reasonable to make the awards in respect of pecuniary and non-pecuniary damage as tabulated in Appendix No. 3.
91. As regards applications nos. 347/10 and 33154/11, the applicants’ representative did not submit their claims within the time-limit allowed (see paragraphs 6 and 65 above). Accordingly, the Court considers that there is no call to award the applicants any sum on that account (see, most recently, Apostu v. Romania, no. 22765/12, § 136, 3 February 2015). However, the Court considers that, in so far as the Commission decisions remain in force, the respondent State’s outstanding obligation to enforce them cannot be disputed. Accordingly, the applicants are still entitled to enforcement of those decisions. The Court reiterates that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been in had the requirements of Article 6 not been disregarded (see, amongst others, S.C. Prodcomexim SRL v. Romania (no. 2), no. 31760/06, § 52, 6 July 2010). Having regard to the violation found, the Court finds that in the present case this principle applies as well. It therefore considers that the Government must secure, by appropriate means, the enforcement of the Commission decisions in respect of applications nos. 347/10 and 33154/11.
B. Costs and expenses
92. The applicants made claims in respect of costs and expenses as tabulated in Appendix No. 2.
93. As regards application nos. 1376/10, 4036/10, 20240/10, 29617/10, and 2032/12 citing Gjyli v. Albania (no. 32907/07, § 72, 29 September 2009), according to which “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”, the Government left the matter to the Court’s discretion to determine the amount to be awarded under this head.
94. 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”.
95. As regards applications nos. 347/10 and 33154/11, the Court will not make an award in respect of costs and expenses, the claims having been submitted out of time (see, most recently, Apostu, cited above, § 136).
96. As regards applications nos. 12889/10 and 29442/10, the Court will not make an award in respect of costs and expenses, no supporting documents having been submitted.
97. Having regard to its findings in paragraphs 55-64, 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 considers it reasonable to make awards in respect of costs and expenses as tabulated in Appendix No. 3.
C. Default interest
98. 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 all applications;
2. 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 decisions and the length of the proceedings admissible and the remainder of the applications inadmissible;
3. 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 decisions;
4. Holds that it is not necessary to examine the complaint under Article 6 § 1 of the Convention as regards the length of the proceedings;
5. Holds
(a) that the respondent State must secure, by appropriate means, the enforcement of the domestic decisions given in the applicants’ favour in application nos. 347/10 and 33154/11 within three months;
(b) that the respondent State is to pay the applicants jointly, in applications nos. 25038/08, 64376/09, 64399/09, 1376/10, 4036/10, 12889/10, 20240/10, 29442/10, 29617/10 and 2032/12 within three months, the amounts referred to in paragraphs 90 and 97 of the judgment and tabulated in Appendix 3, plus any tax that may be chargeable, 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;
6. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 10 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıNona Tsotsoria
Deputy RegistrarPresident
APPENDIX 1 – LIST OF APPLICANTS
No.
Case name and no.
Name of applicants
(year of birth)
Country of residence
Represented by
Introduction date
1.
Sharra, no. 25038/08
Zamira Sharra (1956)
Albania
A. Brovina, lawyer
15 May 2008
2.
Xibinaku and Others, no. 64376/09
Miriam Xibinaku (1948)
Sanie Kaceli (1948)
Miron Nuri (1952)
Qeriman Nuri (1935)
Malfor Nuri (1964)
Erina Llapaj (1952)
Liliana Llapaj (1956)
Nermin Harxhi (1957)
Edmond Harxhi (1959)
Shpresa Tartari (1940)
Mirgjin Tartari (1941)
Behare Tartari (1953)
Enjana Tartari (1980)
Stela Tartari (1983)
Ledi Tartari (1991)
Mirjane Tartari (1955)
Arlind Tartari (1982)
Ariona Tartari (1986)
Albania
Canada
Albania
Italy
United States of America
Albania
Italy
Albania
S. Puto, lawyer
4 December 2009
3.
Frashëri, no. 64399/09
Tarik Shkreli (1950)
Fiqirete Frashëri (1930)
Hajri Frashëri (1951)
Hysref Frashëri (1956)
Ilona Ziso (1962)
Naide (Nahide) Shkodra (1929) as substituted by her heirs Rozafa Çabej née Shkodra and Valbona Mardodaj née Shkodra
Albania
S. Puto, lawyer
4 December 2009
4.
Maçi, no. 347/10
Musa Maçi (1934)
Kujtim Maçi (1943) (also representing
Giorgia dall’Olmo (Maçi) (1925),
Roberto Maçi (1948),
Alessandro Maçi (1955) and
Tomor Maçi (1937))
Albania
Albania
Italy
A. Tartari, lawyer
13 December 2009
5.
Çoka, no. 1376/10
Sotir Çoka (1932)
Tefta Çoka (1938)
Teodor Çoka (1964)
Arben Çoka (1960)
Albania
S. Puto and A. Memi née Prifti, lawyers
22 December 2009
6.
Dvorani and Dume, no. 4036/10
Shpetim Dvorani (1938)
Valter Dvorani (1952)
Pranvera Dvorani née Bejleri (1954)
Diana Dvorani née Qyteti (1958)
Gurie Dvorani née Starova (1925) as substituted by her heir Lejla Ago née Belli (1944)
Svjetllana Dume (1949)
Besa Dume (1952)
Fatbardha Dume (1954)
Albania
S. Puto, lawyer
23 December 2009
7.
Asllani, no. 12889/10
Albert Asllani (1939)
Albania
S. Dodbiba, lawyer
5 February 2010
8.
Agolli, no. 20240/10
Tefta Agolli (1931) as substituted by her heirs Ilir Shijaku (1950) and Deshira Keta née Shijaku (1954)
Arben Agolli (1957)
Sokol Agolli (1951)
Kreshnik Agolli (1956)
Ganimet Agolli (1931)
Afërdita Agolli (1954)
Elira Agolli (1963)
Semiha Agolli (1935)
Artur Agolli (1958)
Valbona Permeti née Agolli (1963)
Flutura Agolli (1946)
Parid Agolli (1979)
Albania
A. Hajdari and A. Brovina, lawyers
6 April 2010
9.
Talipi (Peshkëpia), no. 29442/10
Bardhyl Talipi (Peshkëpia) (1946)
United States of America
S. Dodbiba, lawyer
10 April 2010
10.
Kati, no. 29617/10
Fabian Kati (1963)
Anila Kati (1956)
Albania
A. Hajdari and A. Brovina, lawyers
20 May 2010
11.
Vrioni, no. 33154/11
Turhan Vrioni (1944)
Albania
A. Tartari, lawyer
11 May 2011
12.
Lelo, no. 2032/12
Ervin Lelo (1974)
Albania
S. Puto, lawyer
19 December 2011
APPENDIX 2 – APPLICANTS’ CLAIMS FOR JUST SATISFACTION AS WELL AS FOR COSTS AND EXPENSES
No.
Application name and no.
Pecuniary damage
Non-pecuniary damage
Costs and expenses
1.
Sharra, no. 25038/08
EUR 550,000 as regards the property value of her shares on the basis of an expert’s report.
EUR 150,000
EUR 6,122 (receipts submitted).
2.
Xibinaku and Others, no. 64376/09
EUR 87,000 in respect of pecuniary and non-pecuniary damage as well as costs and expenses) in respect of the applicants’ shares.
3.
Frashëri, no. 64399/09
EUR 640,000 as regards the property value of the plot of land measuring 800 sq. m on the basis of the valuation maps 2008.
EUR 30,000
EUR 1,365 (receipt submitted).
4.
Maçi, no. 347/10
ALL 500,000,000, the equivalent of EUR 3,515,860, as regards the property value of the plot of land measuring 16,500 sq. m on the basis of an expert’s report.
None.
None.
5.
Çoka, no. 1376/10
EUR 2,345,620 as regards the property value of the plot of land measuring 16,040 sq. m, in respect of the applicants’ shares on the basis of the valuation maps 2008.
EUR 60,000
EUR 1,000 (receipt submitted).
6.
Dvorani and Dume, no. 4036/10
EUR 959,500 as regards the property value of the plot of land measuring 10,100 sq. m on the basis of an expert’s report.
EUR 120,000
EUR 2,740 (receipt submitted) (1,000 legal expenses and 1,740 for the expert’s report in respect of which no separate receipt was submitted).
7.
Asllani, no. 12889/10
EUR 1,100,000 as regards the property value of the plot of land measuring 9,950 sq. m, in respect of the applicant’s share, on the basis of the valuation maps 2008.
EUR 50,000
EUR 1,000 (no receipt submitted).
8.
Agolli, no. 20240/10
EUR 685,600 as regards the property value of the plot of land measuring 800 sq. m on the basis of the valuation maps 2008.
EUR 175,500
EUR 2,530 (receipt submitted).
9.
Talipi (Peshkëpia), no. 29442/10
EUR 15,600 as regards the property value of the plot of land measuring 173 sq. m on the basis of the valuation maps 2008.
EUR 50,000
EUR 3,000 (no receipt submitted).
10.
Kati, no. 29617/10
EUR 205,240 as regards the property value of the plot of land measuring 280 sq. m, on the basis of the valuation maps 2008.
EUR 30,000
EUR 10,030 (receipt submitted) (EUR 4,030 in respect of legal expenses and 6,000 for the expert’s report).
11.
Vrioni, no. 33154/11
ALL 82,625,000 as regards the property value of the plot of land measuring 3,305 sq. m, in respect of the applicant’s share, on the basis of an expert’s report.
None.
None.
12.
Lelo, no. 2032/12
EUR 296,305 as regards the property value of the plot of land measuring 14,400 sq. m, in respect of the applicant’s share, on the basis of the valuation maps 2013.
EUR 15,000
EUR 550 (receipt submitted).
APPENDIX 3 – THE COURT’S AWARD
No.
Application name and no.
Pecuniary and non-pecuniary damage
Costs and expenses
1.
Sharra, no. 25038/08
EUR 191,400 (one hundred and ninety one thousand four hundred).
EUR 850 (eight hundred and fifty).
2.
Xibinaku and Others, no. 64376/09
EUR 87,000 (eighty seven thousand).
3.
Frashëri, no. 64399/09
EUR 670,000 (six hundred and seventy thousand).
EUR 850 (eight hundred and fifty)
4.
Maçi, no. 347/10
None (claims submitted out of time).
None (no claims submitted).
5.
Çoka, no. 1376/10
EUR 2,331,400 (two million three hundred and thirty-one thousand four hundred).
EUR 850 (eight hundred and fifty).
6.
Dvorani and Dume, no. 4036/10
EUR 748,900 (seven hundred and forty eight thousand nine hundred).
EUR 850 (eight hundred and fifty).
7.
Asllani, no. 12889/10
EUR 106,300 (one hundred and six thousand three hundred).
None (no receipt submitted).
8.
Agolli, no. 20240/10
EUR 732,450 (seven hundred and thirty two thousand four hundred and fifty).
EUR 850 (eight hundred and fifty).
9.
Talipi (Peshkëpia), no. 29442/10
EUR 19,300 (nineteen thousand three hundred).
None (no receipt submitted).
10.
Kati, no. 29617/10
EUR 117,600 (one hundred and seventeen thousand six hundred)[1].
EUR 850 (eight hundred and fifty).
11.
Vrioni, no. 33154/11
None (claims submitted out of time).
None (no claims submitted).
12.
Lelo, no. 2032/12
EUR 258,200 (two hundred and fifty eight thousand two hundred).
EUR 550 (five hundred and fifty).
[1]. Rectified on 22 March 2016: The award was halved from EUR 235,200 to EUR 117,600 in order to reflect the applicants’ share of the property.
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