FIRST SECTION
DECISION
Application no. 47760/09
Jani MIHANI
against Albania
The European Court of Human Rights (First Section), sitting on 13 September 2016 as a Committee composed of:
Kristina Pardalos, President,
Robert Spano,
Pauliine Koskelo, judges
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 29 August 2009,
Having regard to the declaration submitted by the respondent Government on 22 April 2013 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Jani Mihani, is an Albanian national, who was born in 1961 and lives in Kavaja.
The Albanian Government (“the Government”) were represented by their then Agent, Ms L. Mandia of the State Advocate’s Office.
The applicant initially complained that there had been a breach of Articles 6 § 1 and 13 of the Convention as well as Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of a final court judgment. He also complained under Article 8 of the Convention which was communicated to the Government.
The circumstances of the case
On 20 October 2005 the applicant obtained a building permit, valid until 28 December 2006.
On 14 September 2006 the applicant requested an extension of the validity of the permit.
On 31 January 2008 the Kavaja municipality (Bashkia Kavajë) (“the municipality”) decided to reject the applicant’s request on the ground that he had no reasonable justification for the delay in starting construction works.
On 18 June 2008 the Durrës District Court annulled the decision and ordered that the validity of the permit be extended. On 14 April 2009 the Durrës Court of Appeal upheld the lower court’s decision. On 13 May 2009 an enforcement writ was issued.
On 2 December 2011 the municipality decided to extend the validity of the building permit.
On 12 December 2011 the bailiff office discontinued the enforcement proceedings on the ground that the final judgment had been fully enforced. The applicant had also withdrawn a claim for costs and expenses.
On 17 June 2012 the applicant informed the Court that he had already started the works in conformity with the municipality’s decision extending the validity of the building permit.
THE LAW
A. As regards Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention
The applicant complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention about the delayed enforcement of the final court judgment.
After the failure to reach a friendly settlement, by a letter of 22 April 2013, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“The Government of Albania offer to pay ex gratia to Mr. Jani Mihani, 1,000 euros to cover any and all non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.
The Government of Albania acknowledges the unreasonable duration of the domestic proceedings in which the applicant was involved and express regret for the delay in execution of the Durrës Court of Appeal’s decision no. 138 dated 14 April 2009.
The above mentioned amount is granted to the applicant, taking into account firstly that decision is executed and secondly that the applicant has relinquished from the enforcement of the writ in the conditions when it is fully executed.
This sum will be converted into the local currency at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case”.
In his letter of 25 May 2013, the applicant stated that he was not satisfied with the terms of the unilateral declaration because the pecuniary damage that he had sustained was higher than the amount offered by the Government.
The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list “for any other reason established by the Court, where it is no longer justified to continue the examination of the application”.
It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
The Court has established in a number of cases, including those brought against Albania, its practice concerning complaints about the violation of Articles 6 § 1 and 13 of the Convention on account of the length of proceedings and Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of final court judgments (see Gjyli v. Albania, no. 32907/07, §§ 19-28, 29 September 2009; and Luli and Others v. Albania, nos. 64480/09, 64482/09, 12874/10, 56935/10, 3129/12 and 31355/09, §§ 63-64, 1 April 2014).
The Court notes that, despite the use of the expression ex gratia, the Government’s unilateral declaration contains an acknowledgment of the violation of Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention and that the sum of money offered purports to compensate the applicant for the damage suffered as a result of the delayed enforcement of the final judgment.
Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the complaints under Articles 6 § 1 and 13 of the Convention as well as Article 1 of Protocol No. 1 to the Convention.
B. As regards Article 8 of the Convention
Relying on Article 8 of the Convention the applicant also complained about a breach of Article 8 of the Convention in that the authorities’ failure to enforce the final judgment in due time had breached his right to family life.
The Court notes that the applicant failed to institute any domestic proceedings in respect of this complaint and has not, therefore, put the substance of his complaint before the national authorities. Accordingly, this part of the application should be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 6 § 1 and 13 of the Convention as well as Article 1 of Protocol No.1 to the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the corresponding part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Done in English and notified in writing on 6 October 2016.
Renata DegenerKristina Pardalos
Deputy RegistrarPresident
Full & Egal Universal Law Academy