Information Note on the Court’s case-law No. 102
November 2007
Driza v. Albania - 33771/02
Judgment 13.11.2007
Article 6
Civil proceedings
Article 6-1
Access to court
Fair hearing
Supervisory review of final judgments and lack of impartiality of the Supreme Court; failure to enforce judgments and administrative decisions for the restitution of property: violations
Article 13
Effective remedy
Applicants' inability to enforce awards of compensation by courts or administrative bodies in the absence of adequate procedures and statutory framework: violations
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Applicants' inability to enforce judgments or administrative decisions for the restitution of property and/or payment of compensation owing to systemic failings in domestic legal order: indication of appropriate statutory, administrative and budgetary measures
[This summary also covers the Judgment of the case Ramadhi and Others v. Albania, no. 38222/02, 13 November 2007]
Facts: These two cases concerned the applicants' inability to enforce awards under the Property Restitution and Compensation Act 1993 (“the Property Act”) in respect of land that had been expropriated from their fathers under the former Communist regime.
In Driza, the applicant obtained a court order declaring the nationalisation of his father's property unlawful and ordering restitution. As the authorities were unable to return the original property, the applicant was allocated two other plots of land in lieu in a decision that was upheld by a property restitution and compensation commission. The applicant was, however, unable to take possession because the plots were occupied by third parties. Two sets of proceedings were then brought challenging the applicant's title to the plots. In the first set, the applicant's claims to the smaller plot were dismissed by the Supreme Court-Joint Colleges following a successful application by the occupier for supervisory review of a final and binding judgment of the Administrative Division of the Supreme Court upholding the commission's decision. In the second set of proceedings, the Civil Division of the Supreme Court upheld an order of the district court setting aside the commission's decision in its entirety on the grounds that it had exceeded its jurisdiction. The applicant was awarded compensation but this has not been paid.
In Ramadhi and Others, the applicants obtained orders from a property restitution and compensation commission, inter alia, for the return of a plot of land and the payment of compensation. Although they were able to recover possession of the plot of land, they received no compensation. The applicants subsequently lodged a further application in respect of another plot of land. Although after an appeal to a district court three of the applicants ultimately succeeded in obtaining a land commission ruling upholding the validity of their title, the plots were nonetheless transferred to third parties by the local authorities.
Law: Article 6 § 1 – Driza: The applicant had complained that the annulment under the supervisory review procedure of a final judgment was contrary to the principle of legal certainty, that the Supreme Court-Joint Colleges was not impartial and that the authorities had failed to enforce final judgments.
(a) Legal certainty: By granting leave to have a final judgment reviewed and allowing the introduction of parallel sets of proceedings, the Supreme Court had set at naught an entire judicial process which had ended in a final and enforceable judicial decision that was res judicata.
(b) Impartiality: The supervisory-review proceedings had been instituted at the request of the President of the Supreme Court, who had already ruled against the applicant on the same matter. The President was also a member of the composition of the Supreme Court which had examined that request and decided on the merits to quash the final judgment given in the applicant's favour. This practice was incompatible with the principle of “subjective impartiality”, since no one could act as both plaintiff and judge. The objective impartiality of the Supreme Court-Joint Colleges also appeared open to doubt in that three of the judges who had already ruled on the case were called upon to decide the request for leave and, subsequently, the merits of the case, while another three judges had also had to decide on a matter on which they had already expressed their opinions.
(c) Non-enforcement of final judgments: The problem of the non-enforcement of final judgments in restitution of property cases clearly persisted in Albania notwithstanding indications previously given by the Court. The authorities' failure to take the necessary measures to comply with the Supreme Court's judgments had deprived the provisions of Article 6 § 1 of all useful effect.
Conclusion: violations (unanimously).
Ramadhi and Others – Non-enforcement of a final judgment: The land commission had ultimately upheld the title of three of the applicants to three specific plots of land after being ordered by the district court to reconsider their claims. However, by then the land had passed into the ownership of third parties. The three applicants' property rights were thus far from being determined and the State authorities had failed to enforce the district court's judgment.
Conclusion: violation (unanimously).
Article 13 – Driza: The Government had failed to establish an adequate procedure for dealing with compensation claims when the original property could not be returned to the owner. In particular, they had not set up the appropriate bodies or adopted maps for use in valuing properties. It was unlikely that a system would be put in place imminently or soon enough to enable the settlement of the dispute related to the determination of the applicants' rights.
Conclusion: violation (Article 13 in conjunction with Article 1 of Protocol No. 1 – unanimously).
Ramadhi and Others: Irrespective of whether the final decision to be executed took the form of a court judgment or a decision by an administrative authority, domestic law as well as the Convention provided that it was to be enforced. However, no steps had been taken to enforce the commission's decisions in the applicants' favour. There was no legislation governing the enforcement of the commission's decisions, in particular, no statutory time-limit for appealing against such decisions and no specific remedies to secure their enforcement. The determination of the appropriate form and manner of compensation had been left to the Council of Ministers, which had yet to adopt any detailed rules and methods. The decisions in the applicants' favour had remained unenforced for upwards of 11 years and the Government had not submitted any evidence that relevant measures were imminent.
Conclusion: violation (Article 13 in conjunction with Article 6 § 1 – unanimously).
Article 1 of Protocol No. 1 – Both cases: The authorities' failure over a number of years to enforce the judgments and/or decisions in the applicants' favour amounted to an interference with their right to the peaceful enjoyment of their possessions for which the Government had not produced any satisfactory explanation. A lack of funds could not justify a failure to enforce a final and binding judgment debt owed by the State.
Conclusion: violations (unanimously).
Article 46 – Both cases: The shortcomings noted in the Albanian legal system meant that an entire category of individuals had been and still were being deprived of their right to the peaceful enjoyment of their property through the non-enforcement of court judgments and commission decisions awarding them compensation. There were already dozens of identical applications before the Court. The escalating number of applications was an aggravating factor as regards the State's responsibility under the Convention and also a threat for the future effectiveness of the Convention system.
Albania was therefore called upon to remove all obstacles to the award of compensation under the Property Act by ensuring, as a matter of urgency, that appropriate statutory, administrative and budgetary measures were taken, including the adoption of property valuation plans and the designation of adequate funds.
Article 41 – Driza: Concerning the smaller plot of land, Albania was to return to the applicant a 1,650 sq. m. plot of land plus EUR 50,000 or, failing such restitution, to pay EUR 280,000 in respect of pecuniary and non-pecuniary damage. It was also to pay the applicant EUR 500,000 in respect of pecuniary and non-pecuniary damage concerning the larger plot.
Ramadhi and Others: Albania was to return a 30,500 sq. m. plot to the first three applicants and pay them, jointly, EUR 25,000 in respect of pecuniary and non-pecuniary damage. Failing such restitution, it was to pay them EUR 120,000 in respect of pecuniary and non-pecuniary damage. With regard to a 5,500 sq. m. plot plus shops, the applicants were awarded EUR 64,000 jointly in respect of pecuniary and non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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