CASE OF VRIONI AND OTHERS v. ALBANIA

FOURTH SECTION

CASE OF VRIONI AND OTHERS v. ALBANIA

(Application no. 2141/03)

JUDGMENT

STRASBOURG 

24 March 2009

FINAL

06/07/2009

This judgment may be subject to editorial revision.

In the case of Vrioni and Others v. Albania,

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

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 3 March 2009,

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

PROCEDURE

1. The case originated in an application (no. 2141/03) 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 five Albanian nationals, Mrs Valeria Vrioni (Benusi), Mr Julian Benusi, Mrs Cecili Benusi, Mrs Hartina Benusi and Mrs Klara Benusi (“the applicants”), on 21 December 2002.

2. The applicants were represented by Ms L. Sula, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their former Agents to the European Court of Human Rights, Mr S. Puto and Ms S. Meneri.

3. The applicants alleged that there had been a breach of Article 6 § 1 of the Convention on account of the quashing of a final decision in supervisory review proceedings and of the length of civil proceedings to which they had been a party. They also relied on Article 1 of Protocol No. 1, complaining of a violation of their right to the peaceful enjoyment of their possessions.

4. On 5 July 2005 the President of the Fourth Section of the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it was decided to examine the merits of the application at the same time as its admissibility.

5. The applicants and the Government each filed written observations (Rule 59 § 1 of the Rules of Court). The parties replied in writing to each other’s observations. In addition, third-party comments were received from K.G’s heir, who had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1936, 1934, 1930, 1971 and 1973 respectively, and live in Rome (Italy) and Tirana (Albania).

7. In pre-war Albania, the applicants’ father owned a villa and adjacent land measuring 1,377 square metres situated in Tirana.

8. In 1941 the Bank of Naples (“the Bank”) took a mortgage on the property, including the plot of land and the villa, as security for a loan the applicant had obtained from the bank. In 1945 the ownership of the Bank was transferred to the State, including the Bank’s liabilities, amongst which was the applicant’s loan.

9. On 21 April 1948 the Military Supreme Court found the applicants’ father guilty of political offences, sentenced him to seven years’ imprisonment and ordered confiscation of half of his property which had been deposited as a mortgage. The confiscation was carried out by a decision of the Executive Committee of Tirana City Council (Komiteti Ekzekutiv i K.P. Qytetit Tiranë) of 20 July 1948.

10. It transpires from the documents that ownership of the property was transferred to the State on 16 July 1957. On 4 September 1957, pursuant to Law no. 419 of 16 April 1947, the Ministry of Finance ordered the Mortgage Office to discharge the mortgage debt in relation to the applicants’ father’s property. On 5 October 1957 the applicants’ father sold his part of the property to P.D.

11. In 1959 the State sold its part of the property to K.G. Consequently, in 1959 the villa and its adjacent land were co-owned by P.D. and K.G.

A. First set of proceedings concerning restitution of the property

12. On 8 October 1992, under the Rehabilitation of Victims of Political Repression Act (Law no. 7514 of 30 September 1991), the financial unit of Tirana municipality allocated to the applicants the part of the villa owned at the material time by K.G., and half of the adjacent land. The municipality held that the property had been illegally confiscated and that consequently the applicants’ property rights should be restored in respect of that part of the property. Moreover, it ordered that the applicants’ title to the property be entered in the Tirana Land Registry.

1. Ordinary proceedings relating to the order granting title to the property

13. On an unspecified date K.G. lodged a civil action with the Tirana District Court, seeking to have the order granting title to the property annulled on the ground that he had been a bona fide purchaser. He maintained that the Rehabilitation of Victims of Political Repression Act was not applicable to private properties. Moreover, K.G. submitted that the villa had been transferred to the State because of the failure of the applicants’ father to pay off the mortgage.

14. On 16 February 1995 the Tirana District Court rejected K.G.’s claim as ill-founded.

15. On 26 April 1995, following K.G.’s action, the Tirana Court of Appeal quashed the District Court’s judgment and, deciding on the merits, declared the order granting title to the property null and void since it had been issued by an authority not competent to decide on the matter. Moreover, the court designated the Commission on the Restitution and Compensation of Property (“the Commission”) as the competent authority to rule on restitution of property issues.

16. On an unspecified date the applicants lodged an appeal with the Supreme Court. On 7 July 1995 the Civil Division of the Supreme Court quashed the Court of Appeal judgment, finding that the order granting title to the property had been issued in 1992, that is to say, one year before the Commission was established. Consequently, the court held that the order should be considered as certifying lawful title.

2. Supervisory review

17. On an unspecified date the President of the Supreme Court lodged an application for supervisory review. He alleged that the Supreme Court’s judgment of 7 July 1995 had not been based on the law and that the Restitution and Compensation of Property Act should apply. On 22 May 1996 the Supreme Court (Joint Bench) quashed the Supreme Court judgment of 7 July 1995 and remitted the case to the Tirana District Court for fresh examination.

18. On 7 October 1996 the Tirana District Court rejected K.G.’s claim, upholding the applicants’ property rights over the villa on the ground that their ownership rights in relation to the villa had the force of res judicata: the matter had been ruled on firstly in the Supreme Court judgment of 7 July 1995, in so far as it upheld the validity of the order granting title to the property, and secondly in the Commission decision of 29 August 1996 (see paragraphs 20-21 below).

19. On 2 December 1996 and 5 February 1998 respectively, the Tirana Court of Appeal and the Supreme Court rejected K.G.’s claim, upholding the Tirana District Court’s judgment.

B. Second set of proceedings concerning restitution of the property

20. On an unspecified date, while the proceedings on the validity of the order granting title to the property were pending before the Tirana Court of Appeal, the applicants lodged an application with the Commission claiming property rights over the confiscated part of the villa.

21. On 29 August 1996 the Commission allocated the confiscated part of the villa to the applicants.

1. First set of judicial proceedings relating to the Commission decision

22. On an unspecified date K.G. brought a civil action before the Tirana District Court seeking to have the Commission decision of 29 August 1996 declared null and void. According to K.G.’s submissions, his part of the villa had been confiscated by the State on the ground that the applicants’ father had failed to pay off the mortgage in 1947.

23. On 19 May 1997 the Tirana District Court declared null and void the Commission decision of 29 August 1996 on the ground that K.G. had been a bona fide purchaser. The court held that the confiscation of the applicants’ father’s property had been due to the failure of the latter to pay off the mortgage and had not been carried out in execution of the Military Criminal Court sentence.

24. On 1 August 1997 and 16 January 1998 respectively, the Tirana Court of Appeal and the Civil Division of the Supreme Court rejected the applicants’ appeals as ill-founded.

2. The Constitutional Court proceedings

25. The applicants lodged an appeal with the Constitutional Court on the basis of Article 131 § f of the Constitution, arguing that the above courts’ judgments were unconstitutional on grounds of estoppel per rem judicatam.

26. In that connection the applicants maintained that the issue of title to the villa had been decided in their favour by the Tirana municipality decision of 8 October 1992, which had become final and enforceable firstly by reason of the Supreme Court’s judgment of 7 July 1995 in the ordinary proceedings, and then as a result of the same court’s judgment of 5 February 1998 in the supervisory review proceedings.

27. On 29 October 1998 the Constitutional Court quashed the courts’ judgments relating to the validity of the Commission decision of 29 August 1996 as unconstitutional. The court found as follows:

“The proceedings were unfair on two counts:

Firstly, the Commission violated the rules on jurisdiction set forth in Article 36 of the Code of Civil Procedure. According to this provision the Commission, as a non‑judicial institution, was not empowered to examine this civil dispute and adopt a decision, in so far as the issue was pending before the courts.

Secondly, ... the Commission was not authorised to examine this issue, as it had been decided upon some years ago by the financial unit of Tirana municipality. In 1992 the financial unit, by means of a decision, awarded this part of the house to the heirs of ... [that is, the applicants].

...

Under these circumstances, the court considers the 1996 Commission decision to be null and void. As such, it cannot produce any effects, even though the financial unit of the municipality of Tirana had previously addressed the issue and reached the same conclusion.

By ruling in favour of K.G., the District Court and the Court of Appeal denied the applicants their property rights and conducted an unfair trial.

The violation of this constitutional right, which occurred at the three instances, consisted in the violation of the salient procedural principle according to which final judicial rulings are binding on the court and the parties to the proceedings and cannot be reviewed unless they are quashed by a higher court, or other requests for judicial review or challenges by third parties are being examined.

... the courts that examined this action by the interested party were not mindful of the fact that the claims in question were also the subject of another action against the applicant. The District Court rejected the other action as ill-founded and its judgment was upheld by the Court of Appeal in December 1996, thus becoming final.

Despite the fact that the court does not consider the judgment in question to have the force of res judicata, in the light of the differences in the constituent elements of the actions, their object in the material sense was nevertheless the same, namely the challenging of the applicants’ property rights by the defendant ...

... the court was not empowered to examine the merits of the case and reach a different conclusion from that of the first court, since in the instant case it was not examining any special request for judicial review.”

3. Second set of judicial proceedings relating to the Commission decision

28. On an unspecified date K.G. brought a civil action in the Tirana District Court seeking to have the Commission decision of 29 August 1996 set aside in compliance with the Constitutional Court’s judgment of 29 October 1998.

29. On 4 June 1999 the Tirana District Court declared the Commission decision of 29 August 1996 null and void.

30. On 10 February 2000 and 24 July 2000 respectively the Tirana Court of Appeal and the Civil Division of the Supreme Court dismissed the applicants’ appeals as ill-founded.

4. Second supervisory review

31. On an unspecified date K.G. lodged an application with the Supreme Court for supervisory review of the Tirana District Court’s judgment of 7 October 1996, the Tirana Court of Appeal judgment of 2 December 1996 and the Supreme Court’s judgment of 5 February 1998, as being in breach of the substantive laws.

32. On 12 May 2000 the Supreme Court (Joint Bench), ruling in supervisory review proceedings, quashed the above-mentioned judgments and, deciding on the merits, declared null and void the order of 8 October 1992 granting title to the property.

33. The applicants lodged an appeal with the Constitutional Court on the basis of Article 131 § f of the Constitution.

34. On 3 July 2002 the Constitutional Court decided de plano to declare the applicants’ appeal inadmissible as being “outside its jurisdiction”.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law

35. The Albanian Constitution provides:

Article 42 § 2

“In the protection of his constitutional and legal rights, freedoms and interests, or in the case of a criminal charge brought against him, everyone has the right to a fair and public hearing within a reasonable time by an independent and impartial court established by law.”

Article 131

“The Constitutional Court shall decide:

...

(f) in a ruling that shall be final, complaints by individuals alleging a violation of their constitutional right to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”

36. Under the Code of Civil Procedure of 1996, which was in force at the material time, judgments became final in the following circumstances:

Article 451

“Court judgments shall become legally binding on expiry of the time-limit for lodging an appeal if no such appeal has been lodged. If the judgment is not quashed following an appeal to a higher court, it shall become legally binding when the higher court delivers its judgment...”

37. According to the provisions in force at the material time, supervisory review was an extraordinary remedy which enabled courts to reopen proceedings following a final judgment (Rekurs në interes të ligjit). Between 1996 and its repeal in 2001 by Law no. 8812 of 17 May 2001, the supervisory review procedure was the subject of several legislative changes.

Article 473 – Review in the interests of the law (Law no. 8431 of 14 December 1998)

“Final judgments, decisions and rulings of the divisions of the Supreme Court shall be amenable to supervisory review in the interests of the law for the reasons set forth in section 472(a), (b) and (c) on an application lodged by the parties to the proceedings within three years from the date on which the decision becomes binding.

The application for supervisory review will first be examined by a preliminary review panel of five judges and then by the full Supreme Court (Joint Bench). ... Judges of the Supreme Court who sat as members of the division that delivered the judgment, decision or ruling or as members of the preliminary review panel shall not sit on the panel that conducts the supervisory review of the final judgment...”

38. The relevant sections of the Property (Restitution and Compensation) Act have been described in Beshiri and Others v. Albania (no. 7352/03, §§ 21-29, 22 August 2006), Driza v. Albania (no. 33771/02, §§ 36-43, ECHR 2007‑... (extracts) and Ramadhi and Others v. Albania (no. 38222/02, §§ 23-30, 13 November 2007).

39. Section 5(d) of the Rehabilitation of Victims of Political Repression Act (Law no. 7514 of 30 September 1991) enabled the victims of repression under the dictatorship to claim back their properties which had been confiscated or nationalised.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

40. The applicants complained under Article 6 § 1 of the Convention about a violation of the principle of legal certainty, in so far as the final judgment in their favour had been quashed in supervisory review proceedings. They also complained about the length of the proceedings, which had lasted approximately eight years, with the case being considered by courts at sixteen instances.

The relevant parts of Article 6 § 1 of the Convention provide:

““In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... by [a] ... tribunal...”Admissibility

41. The Government contended that the Constitutional Court decision of 3 July 2002 declaring the applicants’ appeal inadmissible as being “outside its jurisdiction” could not be considered an effective remedy to be exhausted. Therefore, the final effective remedy within the meaning of Article 35 of the Convention was the Supreme Court’s judgment of 24 July 2000. The Government submitted that the application should be declared inadmissible as out of time, having been lodged on 21 December 2002.

42. The applicants submitted in reply that they had had recourse to the Constitutional Court twice, in 1998 and 2002. Their application had been declared admissible and a judgment had been given in their favour by the Constitutional Court in 1998 in respect of the first three sets of proceedings. However, their constitutional application of 2002 had been declared inadmissible by the Constitutional Court the same year, even though their complaints contained arguments on points of law and concerned proceedings that had called into question the force of the 1998 Constitutional Court judgment. The applicants maintained that the 2002 Constitutional Court inadmissibility decision should be considered as the final domestic judgment.

43. The Court reiterates its findings in Balliu v. Albania (dec.), no. 74727/01, 30 September 2004, subsequently confirmed in the Beshiri and Others v. Albania judgment (no. 7352/03, § 32, 22 August 2006), in which it held that a complaint to the Albanian Constitutional Court could be considered an effective remedy which had to be used for the purposes of Article 35 of the Convention where fair-trial issues arose. It considers that there are no reasons for it to depart from that finding in the circumstances of the present case.

44. The applicants did in fact avail themselves of this remedy. The Constitutional Court decision is dated 3 July 2002 and the applicants lodged their application with the Court on 21 December 2002. They have therefore complied with the six-month time-limit prescribed in Article 35 in respect of fair-trial issues.

45. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits

1. Legal certainty: quashing of a final judgment

(a) The parties’ submissions

46. The applicants challenged the fact that a final court judgment had been quashed in supervisory review proceedings in 2000. They considered this to be in breach of the principle of legal certainty.

47. The Government argued that the supervisory review procedure was guaranteed by law at the material time and was considered a necessary measure in the process of administering justice during the transitional period the country was going through. With a view to guaranteeing a fair trial, the request for supervisory review was examined by a selection panel which did not include any of the judges who had previously examined the case on one of the benches of the Supreme Court.

48. In the Government’s opinion, two sets of proceedings had been conducted against two administrative decisions recognising the applicants’ property rights. The first set of proceedings concerned the nullity of the 1992 decision by the financial unit of Tirana municipality which had recognised the applicants’ property rights. The second set of proceedings concerned the nullity of the 1996 Commission decision which had also recognised the applicants’ property rights.

49. The existence of two contradictory rulings – the Supreme Court’s judgment of 5 February 1998 and the Supreme Court’s judgment of
16 January 1998 – necessitated a review by a higher decision-making body in order to determine the matter. This had led to the adoption of a judgment by the Supreme Court (Joint Bench) on 12 May 2000 by means of supervisory review.

50. Finally, the Government maintained that the right to supervisory review had applied for five years, between 1996 and 2001, when it had been repealed by law.

(b) The third party’s submissions

51. The intervening third party, K.G’s heir (see paragraph 5 above), contended that there had been no breach of the principle of legal certainty. Consequently, there had been no violation of the right to a fair hearing under Article 6 § 1 of the Convention.

(c) The Court’s assessment

52. The right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII; Ryabykh v. Russia, no. 52854/99, §§ 51-56, ECHR 2003-IX; and Roşca v. Moldova, no. 6267/02, § 24, 22 March 2005).

53. Legal certainty presupposes respect for the principle of res judicata (see Brumărescu, cited above, § 62), that is, the principle of the finality of judgments. This principle insists that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Roşca, cited above, § 25).

54. The Court is competent to examine events from 2 October 1996 onwards, when the recognition by Albania of the right of individual petition took effect. It may, however, have regard to the facts prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see Broniowski v. Poland (dec.) [GC], no. 31443/96, § 74, ECHR 2002‑X). Turning to the present case, on 7 July 1995 the Civil Division of the Supreme Court upheld the applicants’ property rights. Supervisory review proceedings were initiated at the request of the President of the Supreme Court on 22 May 1996. The case was remitted for retrial and the proceedings concluded with a final judgment of the Supreme Court on 5 February 1998 upholding the applicants’ property rights. The Court considers that the judgment of 5 February 1998 is the final ruling for the purposes of its compatibility ratione temporis, after the Convention’s entry into force with regard to Albania on 2 October 1996.

55. Notwithstanding the above set of proceedings, in a parallel set of proceedings challenging a 1996 Commission decision recognising the applicants’ property rights, the Constitutional Court on 29 October 1998 recognised the Supreme Court’s judgment of 5 February 1998 as res judicata and declared the Supreme Court’s judgment of 16 January 1998 unconstitutional.

56. The Court disagrees with the Government’s argument that the supervisory review remedy was necessary during the transitional period and that the discrepancy between two final court judgments could be rectified by means of another supervisory review judgment.

57. Firstly, it recalls that the Supreme Court’s judgment of 16 January 1998 had been declared unconstitutional by the Constitutional Court’s judgment of 29 October 1998. As such, the Supreme Court’s judgment did not have any legal force and could not contradict any other judgment. The Court fails to see how the 2000 supervisory review proceedings could have rectified the existence of two contradictory rulings at a time when no discrepancy whatsoever existed, in the light of the 1998 Constitutional Court’s judgment. The fact that the third party had another view on the court judgments could not serve as a ground for re-examination.

58. Secondly, the Court reiterates that by virtue of Article 1 the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000‑XI). In this connection, it is the State’s responsibility to organise the legal system in such a way as to avoid the adoption of discordant judgments in parallel proceedings and to uphold the principle of legal certainty of final judgments, which was impaired by the use of the supervisory review procedure in the instant case (see, in relation to the quashing of a final judgment, Driza v. Albania, no. 33771/02, § 69, ECHR 2007‑... (extracts).

59. The Court considers that, by using the supervisory review procedure to quash the final judgment adopted on 5 February 1998, the Supreme Court set at nought an entire judicial process which had ended in a final and enforceable judicial decision, which thus had the force of res judicata. Hence, in the light of the above circumstances, the Court does not find any reason to depart from its findings in its established case-law on the matter (see paragraphs 52-53 above).

60. There has therefore been a violation of Article 6 § 1 of the Convention on account of the quashing of the final judgment of 5 February 1998 given in the applicants’ favour, in that the domestic authorities infringed the principle of legal certainty and the applicants’ “right to a court” under Article 6 § 1 of the Convention.

2. Length of proceedings

(a) The parties’ submission

61. The applicants submitted that three sets of proceedings had been conducted over eight years concerning the same property, on almost identical grounds and involving the same parties.

62. The Government argued that two separate sets of proceedings had been conducted, extending over five years. No unjustified delays had been observed by the judicial authorities at any level of jurisdiction. In the Government’s opinion, the fact that the two sets of proceedings had been conducted independently of each other did not constitute grounds for a complaint concerning the length of proceedings, since they had both concluded at the same time. The Government contended that despite the outcome of the domestic courts’ judgments, the applicants had never had actual possession of their property. For that reason the length of proceedings could not be considered a decisive and essential factor for the applicants.

(b) The Court’s assessment

63. The Court notes that the applicants’ title to the property was recognised by the Supreme Court’s judgment of 5 February 1998 which had obtained the force of res judicata. The enjoyment of that right was thwarted by the initiation of the parallel proceedings and the supervisory review proceedings.

64. On that latter account, the Court considers that it does not have to rule separately on the merits of the length of proceedings complaint. In the circumstances, it is more appropriate to address the matter in the context of its Article 41 award.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

65. The applicants alleged that they had been the victims of a breach of Article 1 of Protocol No. 1 to the Convention on account of the quashing of a final judgment in their favour.

Article 1 of Protocol No. 1 provides:

“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

66. The Court notes that the complaint under this head is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsThe parties’ submissions

67. The applicants contended that the Supreme Court’s 2000 judgment given by means of supervisory review had deprived them of their property rights.

68. The Government argued that the Supreme Court’s 2000 supervisory review judgment had not infringed the applicants’ right to property under Article 1 of Protocol No. 1 to the Convention. That judgment had rectified the unlawfulness of previous judgments resulting from erroneous application of the law.

69. In the Government’s opinion the principle of the peaceful enjoyment of one’s possessions applied to cases where the owner was in possession of his property without any de jure or de facto barriers. In the instant case, the applicants had had a court judgment in their favour, but another court judgment had existed at the same time declaring the 1996 Commission decision null and void. Under these circumstances, in view of the fact that the rulings of the two judgments in question were contradictory, Article 1 of Protocol No. 1 to the Convention did not apply.The third party’s submissions

70. The intervening third party, K.G’s heir (see paragraph 5 above), disputed the applicants’ right to property, claiming that K.G. had owned the house since 1959.

3. The Court’s assessment

71. The Court reiterates that “possessions” can be “existing possessions” or assets, including, in certain well-defined situations, claims. A final court judgment which recognises one’s title to property may be regarded as a “possession” for the purposes of Article 1 of Protocol No. 1 (see Brumărescu, cited above, § 70).

72. The Court observes that the applicants had their title to the property recognised by a final judgment of the Supreme Court on 5 February 1998. It appears that the applicants did not take possession of the property since it was occupied by third parties. In 2000 a judgment issued in supervisory review proceedings annulled the applicants’ title to the property.

73. Given the fact that the property had been entered in the Land Register under the applicants’ name and that the applicants’ property rights had been upheld by the final judgment of the Supreme Court of 5 February 1998, subsequently overturned in supervisory review proceedings, the Court finds that the applicants had a “possession” for the purposes of Article 1 of Protocol No. 1 to the Convention.

74. The Court notes that this complaint is linked to the one examined under Article 6 § 1 in relation to the quashing of a final court judgment (see paragraphs 52-60 above). Having found that the authorities acted in breach of Article 6 § 1 of the Convention, the Court observes that the applicants had enforceable claims deriving from the judgment in question. As a result of the supervisory review proceedings, the quashing of the enforceable judgment frustrated the applicants’ reliance on a binding judicial decision and deprived them of an opportunity of enforcing their title to their property.

75. In these circumstances the Court considers that the quashing of the judgment of 5 February 1998 was incompatible with Article 1 of Protocol No. 1. There has therefore been a violation of that Article.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

76. 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

77. The applicants claimed 1,047,678 euros (EUR) in respect of pecuniary damage and EUR 450,000 in respect of non-pecuniary damage. As regards the claim in respect of pecuniary damage, the applicants submitted an expert valuation of the property, consisting of the house measuring 244.12 sq. m and the surrounding plot of land measuring
400 sq. m, which assessed its value at EUR 800,000, and estimated the loss of profits between 1992 and 2005 at EUR 247,678.

78. The Government submitted that a finding of a violation in respect of the applicants’ complaints would constitute adequate satisfaction.

79. The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation under the Convention to put an end to the breach and make reparation for its consequences. If the domestic law allows only partial reparation to be made, Article 41 of the Convention gives the Court the power to award compensation to the party injured by the act or omission that has led to the finding of a violation of the Convention. The Court enjoys certain discretion in the exercise of that power, as the adjective “just” and the phrase “if necessary” attest (see Driza, cited above, § 130.)

80. Among the matters which the Court takes into account when assessing compensation are pecuniary damage (the loss actually suffered as a direct result of the alleged violations) and non-pecuniary damage (reparation for the anxiety, inconvenience and uncertainty caused by the violation), and other non-pecuniary loss (see, among other authorities, Ernestina Zullo v. Italy, no. 64897/01, § 25, 10 November 2004).

81. In addition, if one or more heads of damage cannot be calculated precisely or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make a global assessment (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000‑IV).

82. The Court recalls that in the instant case it has found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of a final court judgment which recognised the applicants’ property rights. There is therefore a causal link between the violations found and the applicants’ claim for pecuniary damage.

83. The Court considers that the very nature of the final judgments in the applicants’ favour and the fact that the property is still occupied by a bona fide third party mean that restitutio in integrum is impossible. Consequently, compensation should be awarded in lieu.

84. The Court considers it reasonable to compensate the applicants for pecuniary damage in relation to their half of the property and to the loss of profits by awarding a lump sum. The Court cannot accept the amounts presented by the applicants and, in particular, considers it speculative to attempt to assess what the applicants’ loss of profits might have been.

85. Having regard to the material in its possession and making an assessment on an equitable basis, the Court awards the applicants a lump sum of EUR 450,000 in respect of pecuniary and non-pecuniary damage relating to the property.

B. Costs and expenses

86. The applicants claimed a lump sum of EUR 20,000 for legal expenses incurred in the domestic proceedings and the Strasbourg proceedings. They did not provide a detailed breakdown to substantiate their claim for costs and expenses.

87. According to the Court’s case-law, applicants are entitled to the reimbursement of their 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. To this end, Rule 60 §§ 2 and 3 of the Rules of Court stipulates 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”. In the present case, noting that the applicants have failed to produce any documents – such as itemised bills or invoices – in support of their claim, the Court does not make any award under this head.

C. Default interest

88. The Court considers it appropriate that the default interest 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. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention as regards the quashing of the Supreme Court’s judgment of 5 February 1998;

3. Holds that no separate issue arises under Article 6 § 1 of the Convention in relation to the length of the proceedings;

4. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amount, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;

EUR 450,000 (four hundred and fifty thousand euros), plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage;

(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;

6. Dismisses the remainder of the applicant’s claims for just satisfaction.

Done in English, and notified in writing on 24 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıNicolas Bratza
              Deputy RegistrarPresident

Full & Egal Universal Law Academy