CASE OF VJOLA SH.P.K. AND DE SH.P.K. v. ALBANIA

THIRD SECTION

CASE OF VJOLA SH.P.K. AND DE SH.P.K. v. ALBANIA

(Application no. 18076/12)

JUDGMENT
 

STRASBOURG

30 January 2024

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

In the case of Vjola SH.P.K. and DE SH.P.K. 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. 18076/12) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 2 March 2012 by two Albanian companies, Vjola SH.P.K. and DE SH.P.K. (“the applicant companies”), and were represented by Mr J. Daci, a lawyer practising in Tirana;

the decision to give notice of the complaints concerning the applicant companies’ right of access to court, length of proceedings and right of peaceful enjoyment of possessions to the Albanian Government (“the Government”), represented by then Minister of Justice Mr Y. Manjani, and, subsequently, by Mr O. Moçka, General State Advocate, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 9 January 2024,

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

SUBJECT MATTER OF THE CASE

1.  The present case concerns, essentially, length of proceedings and access to court in a civil case concerning property.

2.  In 2000 the applicant companies concluded two lease contracts giving them the right to use two forests for a period of twenty-five years, with the Kavaja Forest Service Directorate (“the Forest Service”). Both contracts were registered in the land register.

3.  In February 2004 a third party concluded two agreements with the Ministry of Territorial Planning and Tourism (“the Ministry”) concerning the development and lease of a forest with the purpose of constructing a tourist village. It would appear that this plot of land overlapped with the two plots of land leased by the applicant companies.

4.  On 18 May 2004 the third party demolished the fence which surrounded the plot of land and commenced construction works.

5.  On 27 May 2004 the applicant companies lodged a civil action against the third party, under Articles 310 and 312 of the Civil Code (“the CC”), requesting that the third party cease the interference with their legal possession of the plots of land at issue, and seeking the restoration of the land to its previous state, the payment of damages and the stay of construction works. They also asked that their claims be secured by an interim measure.

6.  In October 2004 the Ministry directed the Forest Service to annul the lease contracts concluded with the applicant companies and maintain the contracts concluded with the third party.

7.  On 14 February 2005 the Kavaja District Court (“the District Court”), without ever addressing the applicant companies’ request for an interim measure, discontinued the examination of the case on the ground that the applicant companies should have first requested the nullity of the agreements concluded in 2004 between the third party and the Ministry and, then, cessation of the interference with their legal possession of the plots of land.

8.  On 31 May 2005 the Durrës Court of Appeal remitted the case to the District Court.

9.  On 27 March 2006 the Supreme Court dismissed the third party’s appeal.

10.  On 26 December 2006 the District Court dismissed the applicant companies’ civil action holding that, given that the construction works had been completed in May 2006, the applicant companies could no longer rely on Article 312 of the CC. That Article applied only as long as the interference with the possession was ongoing (that is, not definitive). The applicant companies should have instead lodged an action under Article 313 of the CC. However, since the statutory six-month time-limit for lodging such an action had elapsed, it was no longer possible to lodge it. The District Court suggested that, in the light of the new circumstances, the applicant companies could lodge an action for the payment of damages against the Forest Service and the Ministry.

11.  On 23 April 2007 the Durrës Court of Appeal upheld the District Court’s decision.

12.  The applicant companies lodged an appeal with the Supreme Court complaining, amongst others, about the lower courts’ failure to examine their case against the circumstances which existed at the time when they had lodged the civil action.

13.  On 8 July 2010 the Supreme Court upheld the lower courts’ decisions. It held that the applicant companies had lost their possession over the plots of land from the moment the third party had completed construction of the tourist village. It also found that the authorities had unilaterally breached the lease contracts concluded with the applicant companies.

14.  In 2011 the applicant companies lodged a constitutional complaint.  On 26 September 2011 the Constitutional Court rejected the constitutional complaint on the ground that it concerned the assessment of evidence. It further reasoned that the lower courts had adequately reasoned their decisions.

15.  On 19 December 2011 the Forest Service concluded a lease contract with one of the applicant companies, Vjola SH.P.K., for the lease of the remaining plot of land.

16.  It would appear that the applicant company Vjola SH.P.K. paid rent until 2010 in accordance with the lease contract of 1998.

Relevant domestic law

17.  Article 310 of the CC states that any possessor is entitled to challenge instantly, by way of an appropriate means of defence, any act whose purpose is the interference with or stripping of his possession.

18.  Under Article 312 of the CC, any person who has been subjected to an interference with his possession may seek, within six months, the cessation of the interference as well as an injunction preventing its reoccurrence in the future.

19.  Under Article 313 of the CC, a possessor who has unlawfully been stripped of his possession may seek, within six months, the restoration of that possession.

THE COURT’S ASSESSMENT

20.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

21.  The general principles as regards the length of proceedings are summarised in the case of Frydlender v. France ([GC], no. 30979/96, § 43, ECHR 2000-VII).

22.  In the present case the length of the overall proceedings lasted seven years, four months and two days, of which about three years and two months before the Supreme Court.

23.  As to what was at stake for the applicant companies, the Court notes that the claim concerning the disturbance of their possession of the contested plots had a bearing on their rights arising out from a lease contract and required a prompt answer from the courts.

24.  As to the conduct of the applicant companies, there is nothing to suggest that they contributed to the length of proceedings.

25.  As to the conduct of the national courts, the Court firstly notes that the District Court never addressed the applicant’s request for an interim measure. Furthermore, the proceedings before the Supreme Court were unreasonably lengthy, in particular given that there were no procedural steps taken between the lodging of the applicant companies’ appeal with the Supreme Court and the adoption of its decision. That contributed to the overall length of proceedings of more than seven years, in a dispute that by its nature required promptness.

26.  It follows that there has been a violation of the applicant companies’ right to a hearing within a reasonable time, contrary to Article 6 § 1 of the Convention.

27.  As regards the right of access to court, the Court notes that the applicant companies lodged a civil action attempting to protect their possession of land which was object of two lease contracts with the Forest Service. The applicant companies were granted the right to “use” that land for twenty-five years. However, a portion of the same land was also given for lease to another company which built a tourist village on it.

28.  The applicant companies opted for a civil action aimed at preventing further construction by the third party and the restoration of the land to its previous state.

29.  In these proceedings the applicant companies’ claim was dismissed on the ground that once the construction had been terminated, it was no longer possible to seek the restoration of the land to its previous sate, and that the applicant companies had to lodge a different civil action, the time-limit for which had already expired. These issues concern interpretation of domestic law. In that connection, the Court reiterates that it is not its task to substitute the national courts’ interpretation of domestic law with its own, and it is not called upon to deal with errors of fact or law allegedly committed by the national courts (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999‑I, and Yagtzilar and Others v. Greece, no. 41727/98, § 25, ECHR 2001‑XII).

30.  In determining whether a limitation on access to court was permissible under the Convention the Court will look, inter alia, into whether the applicants had available to them reasonable alternative means to protect effectively their rights (see, for example, Waite and Kennedy, cited above, § 68; see also, for a similar situation, Rogach v. Ukraine (dec.), no. 42152/10, § 31, 10 December 2019 [Committee]).

31.  Therefore, the main question is whether the applicant companies had access to court in order to have their grievances assessed by domestic courts. In that connection the Court notes that the dispute originated in breach of a lease contract because the State had not fulfilled its contractual obligations. It is a common feature of contractual law that, where fulfilment of a contract is not possible for reasons attributable to one of the parties, the other party may seek damages it has suffered as a result. It follows that the applicant companies had a possibility of seeking damages from the Forest Service and the Ministry. In such proceedings the extent of damages caused to the applicant companies because of non-fulfilment of the lease contract would have been assessed and the applicant companies would have been able to remedy their situation. There is no indication that such action would not have been entertained by the domestic courts.

32.  Having regard to the foregoing, it cannot be said that the limitation on the applicant companies’ right of access to court impaired the essence of the right or was disproportionate for the purposes of Article 6 § 1 of the Convention (compare Waite and Kennedy, cited above, § 73; A. v. the United Kingdom, no. 35373/97, § 86, ECHR 2002-X; and Gerdzhikov and Château Vallée Des Roses EOOD v. Bulgaria (dec.), no. 8947/05, § 47, 13 September 2011; and contrast Cordova c. Italie (no 1), no 40877/98, § 65, CEDH 2003-I, and Woś v. Poland, no. 22860/02, § 108, ECHR 2006-VII). It follows that this complaint is manifestly ill-founded and shall be dismissed pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

33.  Under Article 1 of Protocol No. 1, the applicant companies complained about the outcome of the proceedings concerning their claim for disturbance of their possession of the land that had been leased to them.

34.  The applicant companies were never, nor do they claim to have been, the owners of the land at issue, but concluded a lease contract with the State. The Court reiterates that a lease may be considered a proprietary interest attracting the protection of Article 1 of Protocol No. 1 to the Convention (see, Stretch v. the United Kingdom, no. 44277/98, §§ 32-35, 24 June 2003; Bruncrona v. Finland, no. 41673/98, § 79, 16 November 2004; and Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 140, ECHR 2005‑VI). Therefore, in the present case the interference with the applicant companies’ rights protected under Article 1 of Protocol No. 1 stems from the fact that the State authorities gave the same plot of land for exploitation by the applicant companies and a third company.

35.  However, the applicant companies only brought a civil action against a private party for disturbance of possession. These proceedings concerned only the factual possession of the land in question by the applicant companies, and not any issue as to their right to lease or any economic interest derived from that right. Therefore, these proceedings were not decisive for the alleged interference under Article 1 of Protocol No. 1 to the Convention because they could not address any issue concerning the breach by the State bodies of the lease contract concluded between the applicant companies and the State bodies.

36.  It follows that this complaint must be declared inadmissible as manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

37. The applicant company Vjola SH.P.K. claimed 1,550,000 euros (EUR) in respect of pecuniary damage, EUR 150,000 in respect of non-pecuniary damage and EUR 4,000 in respect of costs and expenses incurred before the domestic courts and the Court.

38.  The applicant company DE SH.P.K. claimed EUR 550,000 in respect of pecuniary damage, EUR 250,000 in respect of non-pecuniary damage and EUR 4,000 in respect of costs and expenses incurred before the domestic courts and the Court.

39.  The Government objected to these amounts.

40.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards each applicant company EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant companies.

41.  Having regard to the documents in its possession, the Court considers it reasonable to award each applicant company EUR 2,000 EUR covering costs under all heads, plus any tax that may be chargeable to the applicant companies.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay each applicant company within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant companies, in respect of non-pecuniary damage;

(ii)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable to the applicant companies, in respect of costs and expenses;

(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 30 January 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Georgios A. Serghides
 Deputy Registrar President