PËRPARIMI SHA COMPANY AND OTHERS v. ALBANIA

THIRD SECTION

DECISION

Application no. 48729/08
PËRPARIMI SHA COMPANY against Albania
and 3 other applications
(see list appended)

The European Court of Human Rights (Third Section), sitting on 15 October 2024 as a Committee composed of:

 Ioannis Ktistakis, President,
 Darian Pavli,
 Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications 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 the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints concerning the applicants’ right to peaceful enjoyment of their possessions, as well as the first and second applicant companies’ right to a fair trial, to the Albanian Government (“the Government”), represented initially by their Agent, A. Hiçka, and subsequently by Mr O. Moçka, General State Advocate, and to declare inadmissible the remainder of the applications indicated as a partial decision in the appended table;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns a seizure order issued in the criminal proceedings against the third applicant, and, allegedly, affecting the property of all applicants. The complaints were brought under Article 6 of the Convention and Article 1 of Protocol No. 1.

2.  Following a massive explosion that occurred at the weapons-decommissioning facility in Gërdec, a village approximately thirty kilometres from Tirana, on 15 March 2008, which caused the death of twenty-six people and injuries to around 300 people, as well as destruction of property on large scale, criminal proceedings were instituted against thirty persons, including the third applicant, Mihal Delijorgji, on charges of homicide and destroying property with explosives, and the company Albdemil SHPK., of which the third applicant was a manager and which had carried out the dismantling of ammunition in the Gërdec facility.

3.  In these criminal proceedings the State submitted a civil claim seeking damages from the accused in the amount of 2,243,843,616 Albanian lek (ALL) (approximately 21,050,000 euros (EUR) at the time). By that time some of the victims of the Gërdec incident had already been compensated from the Council of Ministers’ reserve fund, as well as the country’s contingency fund budget.

4.  In order to secure that claim, at the prosecution’s request, on 22 March 2008 the Tirana District Court issued a seizure order, as an interim measure, allegedly covering property of all applicants. The seizure order concerned, inter alia, all bank accounts and immovable property of the third applicant. The effect of that order was that the applicants remained owners and in possession of their property, but were not allowed to dispose of it.

5.  The applicants lodged appeals, cassation appeals and constitutional complaints, challenging the lawfulness and justification of the seizure order. In particular, the first and second applicant companies complained that the District Court’s decision had infringed their property rights, was tantamount to terminating their business operations and would lead to their bankruptcy. The third applicant argued that most of the properties seized were unrelated to Albdemil SHPK The fourth applicant maintained that there was no connection between her property and the proceedings against the third applicant. The fifth applicant argued that he had no connection with the business activities of Albdemil SHPK and the third applicant had no share in his house. Thus, all applicants requested that the District Court decision be altered so as to exclude the assets unrelated to Albdemil SHPK.

6.  On 17 April 2008 the Tirana Court of Appeal dismissed all appeals, holding that the issue it had to address was lawfulness of the seizure order, and concluded that the seizure order had been lawful. The final decision was taken by the Constitutional Court on 26 December 2008. It held that the domestic courts’ decisions concerned a provisional measure and not a decision on the merits of the case.

7.  On 12 April 2012 the first applicant company brought a civil action in the Durrës District Court against the Tirana Prosecution Office and the third applicant, Mihal Delijorgji, demanding that part of its seized property be excluded from the seizure order. It relied on Article 612 of the Civil Procedure Code (see paragraph 12 below).

8.  On 12 June 2012 the Durrës District Court accepted the claim on the grounds that the property at issue was owned by the first applicant company and had no connection with the third applicant. No appeal was lodged, and the decision became final.

9.  On 14 February 2013, after the third applicant had been convicted, the seizure order was lifted.

RELEVANT DOMESTIC LAW

10.  Article 270 § 1 of the CCP empowers the prosecutor to seize properties of the defendant and any other savings or assets in his possession, in so far as the law provides for such a seizure, when “there are reasonable grounds to believe that the defendant cannot guarantee the payment of the penalty/fine, costs of the proceedings or any other obligation for which he is liable in relation to State property.”

11.  Article 273 provides that the enforcement of any orders concerning the seized property is carried out pursuant to the rules of the Code of Civil Procedure.

12. The Code of Civil Procedure (“the CCP”), under Chapter IX on “Remedies against enforcement of judgments [and other enforcement titles]” includes the following:

Article 529

Property exempted from seizure

“The debtor’s property exempted from seizure shall include:

1. items for personal use of the debtor and his or her family such as: clothing, sheets, covers and furniture, to the extent these items are necessary for their livelihood;

2. food and fuel necessary for the livelihood of the debtor and his or her family for up to three months;

(...)

8. other items necessary for livelihood.”

Article 612

Action brought by a third party to claim an object

“Any person who claims to be the owner of an object subject to [judicial or other] enforcement, may bring a civil claim to protect his or her right and, as the case may be, to seek that that object be exempted from seizure and sale.

The claim shall be brought against the creditor and the debtor in the court of the place of the enforcement of the judgment. The competent court may order the suspension of the enforcement [order], with or without a guarantee, as a temporary measure.”

13.  Sections 1 and 3 of that Law (as amended by Law no. 10005 of 23 October 2008) provide that the State is liable for non-contractual pecuniary and non-pecuniary damage caused to natural or legal persons, domestic or foreign. State bodies have an obligation to compensate the damage, inter alia, when, through the exercise of their public functions, their lawful acts or omissions cause damage to the lawful interests of private natural or legal persons.

THE COURT’S ASSESSMENT

14.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

15.  The applicants, relying on Article 1 of Protocol No. 1 to the Convention, complained that the seizure order violated their right to peaceful enjoyment of their possessions. The first and second applicant companies also invoked Article 6 of the Convention. The Court, being master of the characterisation to be given in law to the facts of the case, will examine the complaints solely under Article 1 of Protocol No. 1 to the Convention (compare Ibrahimbeyov and Others v. Azerbaijan, no. 32380/13, § 39, 16 February 2023, and Zela v. Albania, no. 33164/11, § 50, 11 June 2024).

16.  The Government argued that the applicants had not exhausted available domestic remedies, in particular, a request that the seizure order be lifted, a civil action under Article 612 of the Code of Civil Procedure, and a civil action for compensation of any damages the applicants might have suffered as a consequence of the seizure order.

17.  The applicants argued that they had exhausted the remedies within the context of the proceedings in which the seizure order had been issued, and that they were not required to exhaust any further remedies. They also contended that the remedies relied on by the Government were not effective.

18.  The general principles on exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia ([GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014), and Gherghina v. Romania ((dec.) [GC], no. 42219/07, §§ 83‑89, 9 July 2015).

19.  The Court has held, in particular, that in the event of there being a number of domestic remedies in different fields of law which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 177, 25 June 2019). Accordingly, the Court has to determine in the instant case whether the remedies used by the applicants in the context of the proceedings in which the seizure order was issued, and the remedies relied on by the Government (see paragraph 16 above) had “essentially the same objective” with regard to the applicants’ complaints.

20.  The Court notes that the main purpose of the remedies the applicants used in the context of the criminal proceeding in which the seizure order had been issued was to challenge the lawfulness of the original seizure order (see paragraph 4 above), and that issue was examined by the domestic courts within those proceedings.

21.  As regards a request that a seizure order be lifted, its purpose is to reassess whether the conditions for maintaining the order still exist with the passage of time, and is a further remedy that can be used within the proceedings in which the seizure order has been issued.

22.  As regards the action under Article 612 of the CCP, its purpose is clearly different from the remedies against the seizure order as such, since in such proceedings third parties may request that their property be exempted from an “enforcement order” that is otherwise valid (see paragraph 12 above).

23.  As regards a civil claim against the State for compensation of damages, it is aimed at obtaining monetary compensation for any financial or other loss the applicants might have suffered as the result of the seizure order (paragraph 13 above).

24.  It follows that the remedies the applicants used do not have the same purpose as the three remedies relied on by the Government. The Court should now assess whether the three remedies mentioned above may be seen as effective remedies for the violation claimed under Article 1 of Protocol No. 1 to the Convention.

25.  As regards a civil action under Article 612 of the CCP, these proceedings necessarily involve assessment of ownership claims and, being of a civil nature, may be better suited to address all issues pertinent to one’s ownership rights.  The Court notes that the first applicant company successfully used that remedy in respect of some of its seized property (see paragraphs 7 and 8 above). These proceedings were concluded within two months.

26.  It follows that the civil action under Article 612 of the CCP was an available and effective remedy for the complaints under Article 1 of Protocol No. 1 submitted by the first, second, fourth and fifth applicants. However, only the first applicant company attempted that remedy, and then, inexplicably, only in respect of part of its assets. The second, fourth and fifth applicants have not even attempted that remedy. They have neither established that the remedy advanced by the Government was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving them from the requirement to exhaust it.

27.  Accordingly, these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies in respect of the first, second, fourth and fifth applicants.

28.  The Court notes that the seizure order was issued in the context of criminal proceedings against the third applicant. The seizure of property in such circumstances normally relates to the control of the use of property, which falls within the ambit of the second paragraph of Article 1 of Protocol No. 1 to the Convention. The Court must establish whether it was lawful and “in accordance with the general interest”, and whether there existed a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Džinić v. Croatia, no. 38359/13, §§ 60 and 62, 17 May 2016, and the cases cited therein).

29.  Seizure of the applicant’s property was based on Article 270 § 1 of the CCP (see paragraph 10 above), and therefore was lawful.

30.  The Court also accepts that the interference pursued a legitimate aim, namely of securing payment of an obligation to the State.

31.  As regards the proportionality of the measure, the third applicant was the accused in the criminal proceedings in which the seizure order was issued. In these proceedings the State filed a claim for reimbursement of funds it had spent for assisting victims of the Gërdec incident. Given the considerable size of that claim (see paragraph 3 above), the Court finds it reasonable that the bank accounts and immovable property of the third applicant had been subject to the seizure order which served to secure the State’s claim against him.

32.  In that connection the Court notes that the purpose and effect of the seizure order was not to deprive the third applicant of his property. He continued to be its owner and to enjoy its possession. The only restriction was that he was not allowed to dispose of it.

33.  Moreover, the Court notes that not all property of the third applicant was subject to the seizure order since, under Article 529 of the CCP, a number of items, such as those serving daily needs and personal use of the debtor, are exempted from the seizure (see paragraph 12 above).

34.  Given all these circumstances, the Court finds that the seizure order issued against the third applicant was proportionate.

35.  Accordingly, the third applicant’s complaints concerning the initial issuing of the seizure order against him are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

36.  The Court notes that, with the passage of time, the third applicant could have lodged a request that the seizure order be lifted. Had he done so, the domestic courts would have had to assess whether the measure continued to be proportionate and necessary. The Court has already accepted that such a request is a remedy to be exhausted in circumstances where the seizure remained in effect over extended periods of time and where the applicants argue that it lost its relevance over time (compare Džinić, cited above, § 48, and BENet Praha, spol. s r.o. v. the Czech Republic, no. 33908/04, § 81, 24 February 2011).

37.  As to any possible damage the third applicant might have suffered due to the prolonged seizure of his property, he could have brought a civil action against the State, aimed at obtaining monetary compensation for any financial or other loss (compare Fu Quan, s.r.o. v. the Czech Republic [GC], no. 24827/14, § 169, 1 June 2023, and Zlatanov v. Bulgaria (dec.), no. 53050/21, §§ 184-85, 30 January 2024). Such a claim would have been possible, in principle, under the Civil Code and/or under Law No. 8510 (see paragraph 13 above).

38.  In that connection the Court notes that the third applicant did, indeed, submit before it a claim, inter alia, for pecuniary damages. However, he lodged no such claim under the relevant provisions of national law, where the domestic courts would be best placed to assess the proportionality of the continuing seizure order and/or to compensate him for damages, where they would have the capacity to select and evaluate the evidence (see Joannou v. Turkey, no. 53240/14, § 98, 12 December 2017).

39.  As regards the third applicant’s doubts about the prospect of success of any of the remedies concerned, the Court has pointed out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust them. One aspect of the exhaustion requirement is that in the domestic proceedings applicants must make a reasonable effort to use procedural means capable of preventing or remedying, as the case may be, the breach of the Convention, including evidential requests (see Vučković and Others, §§ 72 and 74, and Zlatanov, § 192, both cited above).

40.  Accordingly, the complaints of the third applicant concerning the prolonged seizure of his property must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

41.  The third and fourth applicants complained that the disproportionate seizure of their property, which resulted in a decrease of their income, had put at risk the health and life of their children contrary to Articles 3 and 8 of the Convention.

42.  The Court notes that the third and fourth applicants did not exhaust any domestic remedies in respect of these complaints. Accordingly, these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

43.  All applicants complained that they did not have an effective remedy within the meaning of Article 13 of the Convention for the protection of their Convention rights. The Court notes that the applicants had domestic remedies at their disposal, which they failed to pursue. It follows that the complaints under Article 13 of the Convention must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 14 November 2024.

 Olga Chernishova  Ioannis Ktistakis
 Deputy Registrar President

Appendix

List of cases: