FOURTH SECTION
Application no. 54710/12
Ndoc MARKU
against Albania
lodged on 15 June 2012
STATEMENT OF FACTS
The applicant, Mr Ndoc Marku, is an Albanian national, who was born in 1931 and lives in Laç.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 1 February 2007 the Tirana Court of Appeal, relying on Article 388 of the Code of Civil Procedure (“CCP”) and the Council of Ministers’ decision no. 748 of 11 November 2004, upheld a lower court’s decision, which had recognised, inter alia, the applicant’s status as a (national liberation) war veteran (vërtetimin e faktit juridik të njohjes së kohës së veteranit të LANC-it...si dhe njohjen e statusit të veteranit).
On 12 March 2007 an enforcement writ was issued in respect of the above decision.
On 26 September 2007 the bailiff’s office decided to conclude the enforcement proceedings (pushimin e ekzekutimit) on the grounds that the judgment was of a declaratory nature, that it was not directed against a debtor and that no rights or obligations had arisen there from.
Following the applicant’s request to the authorities, on 2 and 13 July 2007 and 4 March 2008 the Ministry of Defence informed the applicant that the Central Commission on war veterans (“the Central Commission”), which was the body responsible for the examination of applications for the recognition of war veteran status, had ceased to exist on 31 December 2006. No legislation had been subsequently adopted to enable its operation.
On an unspecified date in 2008 the applicant lodged a civil claim requesting the Central Commission to pay him the financial entitlements under domestic law.
On 8 December 2009 the Tirana Court of Appeal, finding that the applicant had not been recognised as having war veteran status, dismissed the claim. It held that the decision of 1 February 2007, which recognised the existence of a juridical fact on the basis of Article 388 of the CCP, was of a declaratory nature only.
On 10 February and 18 May 2012 the Supreme Court and the Constitutional Court, respectively, dismissed the applicant’s appeals.
B. Relevant domestic law
1. The legal framework governing the status of war veterans
(a) The Status of War Veterans Act (Law no. 7874 of 17 November 1994 as amended by laws nos. 8526 of 23 September 1999, 9568 of 19 June 2006 and 9724 of 3 May 2007
The Status of War Veterans Act laid down the requirements to be met by a person who wished to be recognised as a war veteran. The Act established local commissions and a Central Commission to examine individual applications. According to the Act, the status of war veteran gives rise to a monthly financial entitlement.
To date, it would appear that the Act has not been repealed.
(b) Implementing by-laws (Council of Ministers’ Decision (CMD) no. 190 of 3 May 1995 as amended by CMDs nos: 467 of 4 September 1995, 540 of 9 October 1995, 2 of 10 January 1996782 of 17 December 1998, 562 of 2 December 1999, 9 of 13 January 2000, 353 of 7 July 2000, 114 of 8 March 2001, 29 of 28 January 2002, 748 of 11 November 2004
The above CMDs specified the financial entitlement resulting from the recognition of war veteran status. As of January 2002, all decisions for the recognition of war veteran status would be taken by the Central Commission which operated at the Ministry of Defence. In 2004 it was decided that the Central Commission would continue its operations until 31 December 2006.
To date, it would appear that no other legal provision has been adopted to ensure the continuation of the Central Commission’s operations.
2. The Code of Civil Procedure
Article 388 of the Code of Civil Procedure provides that any interested party has the right to request by means of a court decision, the recognition (vërtetimin) of a fact, whose documentary evidence has disappeared, been lost and cannot be created again or cannot be obtained in any other way, provided that such a fact is material to the emergence, change or cessation of personal or property rights.
COMPLAINTS
Without invoking any Articles of the Convention, the applicant essentially complains that he has been deprived of the financial entitlements which should have accompanied his recognition as war veteran. However, there is currently no mechanism which would enable him to be recognised as a war veteran.
QUESTIONS TO THE PARTIES
1. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings in the present case?
2. Has there been a breach of the applicant’s right of access to court under Article 6 § 1 of the Convention? In particular:
a) Has the applicant been prevented from filing an application for the recognition of war veteran status? If yes, has this been justified?
b) Which entity, under domestic law, accepts applications for the recognition of war veteran status?
c) Which implementing by-laws govern the functioning and operation of such entity and the examination of applications? Is the entity operational at the present time?
3. Does a decision taken pursuant to Article 388 of the Code of Civil Procedure generate a right under domestic law? The parties are requested to submit domestic case-law as regards the interpretation of the said Article and the legal effect of decisions taken pursuant to it.
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