FOURTH SECTION
DECISION
Application no. 6491/06
Dashamir URUÇI
against Albania
The European Court of Human Rights (Fourth Section), sitting on
24 January 2012 as a Chamber composed of:
Lech Garlicki, President,
David Thór Björgvinsson,
Päivi Hirvelä,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
Markelian Koça, ad hoc judge,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 2 February 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Dashamir Uruçi, is an Albanian national who was born in 1948 and lives in Tirana. He is represented before the Court by Mr S. Puto, a lawyer practising in Tirana. The Albanian Government (“the Government”) were represented by their then Agents, Ms S. Meneri and Ms E. Hajro.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Domestic courts’ proceedings
3. On 5 June, 3 July and 14 October 2001 the applicant and his wife were the subject of articles in the daily newspaper “Rilindja Demokratike” (“the newspaper”).
4. On 29 October 2001 the applicant initiated criminal proceedings against B. K, the author of the press article which was published on
14 October 2001. On 4 July 2002 the proceedings were discontinued by a decision of the Tirana District Court (“the District Court”) pursuant to the Amnesty Act of 2002.
5. On 3 October 2002 the applicant lodged a civil action against the newspaper’s editorial board (redaksia e gazetës) represented by its editor-in-chief and sought non-pecuniary damage. On 21 January 2003 the Tirana District Court decided that the applicant’s personality and honour had been seriously tarnished by the press articles. It ordered the payment of 1,000,000 Albanian leks (approximately 7,000 euros at the time) to the applicant.
6. On an unspecified date Rilindja Demokratike sh.p.k. (“the company”), a limited liability company registered under Albanian law and which is the owner of the newspaper, filed an appeal. The appeal was signed by the newspaper’s editor-in-chief. The company argued, inter alia, that the editorial board did not constitute a legal entity and could not be a party to the said legal proceedings. Therefore, the court was under a duty to replace the defendant by summoning the company in its place, an act which was never carried out.
7. On 22 May 2003 the Tirana Court of Appeal (“the Court of Appeal”) upheld the District Court’s decision. It held that since the articles had been selected for publication by the editorial board, the latter was liable in its obligations towards third parties.
8. On 20 June 2003 the company appealed to the Supreme Court, relying on the same grounds of appeal as before the Court of Appeal. The appeal was signed by the newspaper’s editor-in-chief. On 23 April 2004 the Supreme Court declared the appeal inadmissible as it did not include any of the grounds of appeal prescribed by the Code of Civil Procedure (“CCP”).
2. Enforcement proceedings
9. On 11 July 2003 the District Court issued an execution writ in respect of the District Court’s decision of 21 January 2003. On the same day the bailiff notified the newspaper’s editorial board to comply with the judgment within ten days from its notification. The bailiff drew their attention to the mandatory enforcement of the judgment, should they fail to comply with the judgment voluntarily.
10. On 30 September 2003, following the failure of the editorial board to comply with the judgment, the bailiff ordered the attachment of the funds in the newspaper’s bank accounts. According to the information received by the banks involved, it was apparent that the newspaper’s editorial board had no bank accounts, except for one at the National Commercial Bank, which had virtually no available funds.
11. On 5 July 2004 the bailiff decided to discontinue the enforcement proceedings (pushojë ekzekutimin) on the ground that the newspaper’s editorial board had no assets.
12. The applicant contested the order and it would appear that he applied again to the bailiff. On 18 November 2004 and 21 April 2005, respectively, the bailiff ordered the seizure of funds in the newspaper’s editorial board’s bank accounts and served the order on the banks concerned in the territory of Albania.
13. The banks concerned reconfirmed that the newspaper’s editorial board did not hold any accounts. On 4 May 2005 the National Commercial Bank informed the bailiffs that there were no funds in the newspaper’s editorial board’s bank account.
14. On 1 November 2005 the applicant sent a letter to the Minister of Justice informing him of the continuous non-enforcement of the District Court’s judgment of 21 January 2003.
15. On 17 November 2005 the General Bailiff’s Directorate informed the applicant that their efforts in 2003 and 2005 had been unsuccessful owing to the lack of available funds in the newspaper’s editorial board’s bank account.
16. On an unspecified date it would appear that the applicant lodged a complaint with the Constitutional Court on account of the non-enforcement of a final court judgment.
17. On 14 December 2005 the Constitutional Court by way of an administrative letter informed the applicant that it had examined his request and had decided that the issues raised therein were outside its jurisdiction.
18. On 15 April 2009 the Government informed this Court of a District Court’s decision of 18 December 2007 which had declared invalid the writ of execution of 11 July 2003. The proceedings in question were brought by the newspaper’s company, following – it would appear – the attempted enforcement of the decision against the company. The applicant had been summoned to intervene as a third party to those proceedings. In its decision, which was given in absentia, the District Court stated that the writ could not be enforced against the newspaper’s company as it had never been a party to the domestic legal proceedings. The District Court further added that, since the newspaper’s editorial board was neither a legal entity nor a physical person, having regard to the development and application of the law as it stood at the material time in 2007, the writ of execution remained
non-enforceable.
B. Relevant domestic law
1. Constitution
19. The Albanian Constitution, in so far as relevant, reads as follows:
Article 42 § 2
“In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, 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 determine: ... (f) complaints by individuals alleging a violation of their constitutional rights to a fair hearing, provided all legal remedies for the protection of those rights have been exhausted.”
2. The Constitutional Court Act (Law on organisation and functioning of the Constitutional Court of the Republic of Albania no. 8577 dated 10 February 2000)
20. Section 30 of the Constitutional Court Act stipulates the deadline for the submission of applications before that court. Individual applications for alleged violations of constitutional rights must be submitted no later than two years after the commission of the violation.
21. The same time-limit of two years applies in the event of the notification of a final judicial decision.
3. Case-law of the Albanian Constitutional Court
22. The Constitutional Court first accepted that the non-enforcement of a final court decision constituted a breach of an appellant’s right to a fair hearing in judgment no. 6/06 of 31 March 2006. Prior to that, the Constitutional Court used to dismiss such applications as falling outside its jurisdiction.
23. A detailed outline of the Constitutional Court’s case-law as regards the non-enforcement of final court decisions has been described in this Court’s judgment in Gjyli v. Albania, no. 32907/07, §§ 21-27, 29 September 2009.
4. Code of Civil Procedure
24. Article 451/a of the CCP provides that a final court judgment is binding on the parties, their heirs, the court that adopted the judgment and other courts and institutions.
25. Article 458 of the CCP provides for the possibility of a party to seek leave to appeal out of time.
26. Article 510 of the CCP stipulates that a judgment can be enforced only on the basis of an execution title, which includes, inter alia, a final court judgment. Under Article 511 of the CCP, an execution title is executed at the request of the creditor. An execution writ is issued for this purpose. In the wording of Article 515 of the CCP, an execution writ is enforced by the bailiff at, inter alia, the request of the creditor. The bailiff invites the debtor to comply voluntarily with the execution writ in accordance with the time-limits laid down in Article 517 of the CCP. Should the debtor fail to comply with a voluntary enforcement within the prescribed time-limits, the bailiff proceeds with a mandatory enforcement in accordance with Article 519 of the CCP.
27. Under Article 527 the bailiff is empowered to seize the debtor’s loans as well as movable and immovable property to the extent necessary for the enforcement of monetary obligations. At the debtor’s request, seizure may also be imposed on another property if the bailiff considers that it satisfies the creditor’s needs pursuant to Article 528.
28. Under Article 610 of the CCP, the parties may complain to the court of an act or failure to act by the bailiff within five days of the said act or omission. There is a right of appeal against the court decision in accordance with Article 611 of the CCP. The appeal has no suspensive effect on the execution.
29. The bailiff may decide to discontinue execution in accordance with Article 616 of the CCP if: a) the debtor complies with the execution writ; b) the creditor renounces, in writing, his right to the enforcement; c) the execution writ is repealed; ç) the debtor’s civil action in accordance with Article 610 of the CCP has been accepted by a final court decision; d) the bailiffs alone or in cooperation with the creditor do not find any assets belonging to the debtor within 6 months from the start of the enforcement proceedings. The parties may challenge the bailiff’s decision to discontinue enforcement at the district court in accordance with Article 617 of the CCP.
COMPLAINTS
30. The applicant initially complained under Articles 6 § 1 and 13 of the Convention that the authorities had not enforced the District Court’s judgment of 21 January 2003.
31. Following the submission of new information by the Government on 15 April 2009, without making any specific complaints, the applicant argued that he had not been informed of the District Court’s decision of 18 December 2007 as a result of which the time-limit for appeal against it had lapsed. In his opinion, that decision had quashed the District Court’s decision of 21 January 2003.
32. The relevant parts of Articles 6 § 1 and 13 of the Convention provide:
“Article 6 § 1
In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
THE LAW
A. Article 6 § 1 complaints
1. As regards the non-enforcement of the District Court’s judgment of 21 January 2003
(a) The parties’ submissions
33. The Government argued that the applicant had failed to exhaust domestic remedies. In the first place, they maintained that the applicant did not lodge an action in accordance with Article 610 of the CCP against the bailiff’s actions. Secondly, they submitted that the applicant’s request to the Constitutional Court did not contain all the elements of a complaint, which explains its disposal by an administrative letter.
34. The applicant argued that the Constitutional Court had not considered the non-enforcement of final court decisions to be part of that court’s jurisdiction until March 2006, his complaint having therefore been dismissed. He further contended that the remedy available to him under Article 610 of the CPP concerned his right to complain about the bailiff’s actions, which were not in compliance with the writ of execution. In any case, that remedy would not result in any changes to the main decision on the merits or the writ of execution.
35. The applicant argued that the authorities’ efforts were ineffective as they should have seized the immovable property of the newspaper’s company and that they had not fully enforced the judgment given in his favour. The newspaper’s company had appealed against the District Court’s judgment of 21 January 2003 to the Court of Appeal and the Supreme Court, having thus acknowledged that the case was directed against them. The very same argument, which had been raised on appeal, was dismissed by the Court of Appeal and the Supreme Court on 22 May 2003 and 23 April 2004, respectively.
36. The Government underlined that the District Court’s judgment of 21 January 2003 was given against the editorial board and they contended that the authorities had taken all the necessary measures to enforce it. For example, the bailiff had informed the editorial board of the voluntary compliance. The bailiff then proceeded with the mandatory enforcement and ordered the seizure of the editorial board’s bank accounts. On the contrary, the applicant had not cooperated with the bailiff within the meaning of Article 616 (d) of the CCP. Thus, the Government blamed the applicant for not having requested the bailiff to proceed with the seizure of the newspaper’s company’s immovable property.
(b) The Court’s assessment
37. The Court finds it unnecessary to rule separately on the Government’s objection of non-exhaustion of domestic remedies, as, in any event, the complaint is inadmissible on the following grounds.
38. The Court reiterates that execution of a final judgment given by any court must be regarded as an integral part of the “trial” for the purposes of Article 6 of the Convention (see Hornsby v. Greece, 19 March 1997, § 40, Reports 1997-II). The State has a positive obligation to organise a system for enforcement of judgments that is effective both in law and in practice and ensures their enforcement without any undue delays (see Ruianu v. Romania, no. 34647/97, § 66, 17 June 2003). When the authorities are obliged to act in order to enforce a judgment and they fail to do so, their inactivity can engage the State’s responsibility under Article 6 § 1 of the Convention (see Scollo v. Italy, 28 September 1995, § 44, Series A no. 315-C).
39. The right of “access to court” does not impose an obligation on a State to execute every judgment of a civil character without having regard to the particular circumstances of a case (see Sanglier v. France, no. 50342/99, § 39, 27 May 2003). The State’s responsibility for enforcement of a judgment against a private person extends no further than the involvement of State bodies in the enforcement procedures (see Fuklev v. Ukraine, no. 71186/01, § 67 and §§ 90-91, 7 June 2005). The Court’s only task is to examine whether the measures taken by the authorities were adequate and sufficient. In cases such as the present one, where the debtor is a private person, the State has to act diligently in order to assist a creditor in execution of a judgment (see Fociac v. Romania, no. 2577/02, § 70, 3 February 2005).
40. The Court notes that on 3 October 2002 the applicant lodged an action for damages against the editorial board. The District Court’s judgment of 21 January 2003, which became final on 23 April 2004 for the purposes of Article 6 § 1 of the Convention, accepted the action and ordered the editorial board to pay damages. On 11 July 2003 an execution writ was issued which was served on the bailiff responsible for enforcement. The Court will examine whether the bailiff’s actions were adequate and sufficient and whether he acted diligently in the enforcement procedure.
41. The Court notes that on 11 July 2003 the bailiff requested the editorial board to voluntarily comply with the judgment of 21 January 2003. In the absence of voluntary compliance, on 30 September 2003 the bailiff ordered the seizure of the editorial board’s bank accounts. However, only one available bank account existed, which had virtually no funds. Consequently, on 5 July 2004 the bailiff decided to discontinue the enforcement owing to the lack of funds.
42. The Court further notes that, at the applicant’s insistence, the bailiff ordered another seizure of the editorial board’s bank accounts on 18 November 2004 and 21 April 2005. The banks reconfirmed that the editorial board had no bank accounts and no funds in other accounts.
43. The Court cannot accept the applicant’s argument that the authorities should have seized the newspaper’s company’s immovable property for the enforcement of the judgment. In this connection, the Court observes that in all legal systems the enforcement of a final court decision contains limitations ad personam and ad rem. The applicant lodged his action against the editorial board. The domestic courts’ judgments found in his favour and ordered the editorial board to pay him damages. Moreover, the domestic courts found that the editorial board, not the newspaper’s company, was liable in its obligations towards third parties.
44. In these circumstances, the Court considers that the bailiff took prompt and adequate steps to secure the enforcement of the District Court’s judgment of 21 January 2003. The applicant did not indicate any other measure which the bailiff should have taken. It follows that this complaint must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.
2. As regards a breach of equality of arms on account of the
non-notification of the District Court’s decision of 18 December 2007
(a) The parties’ submissions
45. On 21 July 2009, following the Government’s submission of the District Court’s decision of 18 December 2007 (see paragraph 18 above), the applicant contended that the District Court’s decision was given in absentia. He claimed that he was never notified of its adoption and the name and signature on the notification form were not his. He therefore could not have made use of the time-limits which had expired by the time he took cognisance of the decision.
46. The Government submitted that the applicant had been notified of the adoption of the District Court’s decision of 18 December 2007 by signing the notification form on 10 January 2008. In addition, he had attended the hearings of 2 February and 12 March 2007. Moreover, from May to November 2007 the applicant had been unsuccessfully summoned four times to appear before the court (on 24 May, 25 September, 9 and
30 November 2007).
(b) The Court’s assessment
47. The Court is prepared to assume for the purposes of the case that the applicant, a third-party intervenor in the proceedings brought by the newspaper’s company, can, in principle, rely on Article 6 of the Convention in respect of this complaint (see, mutatis mutandis, Business Şi Investiţii Pentru Toţi v. Moldova, no. 39391/04, 13 October 2009; Ziętal v. Poland, no. 64972/01, 12 May 2009; and, Lipatnikova and Rudic v. Moldova, no. 40541/04, 23 October 2007). The same holds for his complaint under point 3 alleging a breach of the principle of legal certainty. The Court further reiterates that it is master of the characterisation to be given in law to the facts of the case. It does not consider itself bound by the characterisation given by an applicant or a Government (see Guerra and Others v. Italy,
19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I). It considers that it is necessary to examine this complaint from the perspective of the equality of arms.
48. The principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that proceedings should be adversarial (see Ruiz-Mateos v. Spain, judgment of 23 June 1993, Series A no. 262, p. 25, § 63). The principle of equality of arms – in the sense of a “fair balance” between the parties – requires that each party should be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, p. 19, § 33).
49. The principle of equality of arms would be devoid of substance if a party to the case were not notified of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise a right to appear established in domestic law (see Zagorodnikov v. Russia, no. 66941/01, § 30, 7 June 2007). Defective notification of court decisions can, in principle, raise an issue under Article 6 § 1 (see, inter alia, generally Hennings v. Germany, judgment of 16 December 1992, Series A no. 251-A, and Sukhorubchenko v. Russia, no. 69315/01, §§ 53-54, 10 February 2005). At the same time, Article 6 cannot be construed as conferring on litigants an automatic right to obtain a specific form of service of court documents, such as by registered mail (see Bogonos v. Russia (dec.), no. 68798/01, 5 February 2004).
50. As regards the factual circumstances of the case, the Government produced seven summonses of the District Court, by which the applicant was invited to intervene as a third party in the proceedings. The summonses covered the period between 22 December 2006 and 30 November 2007. At least four summonses were signed either by the applicant, his wife or son. One summons was unsigned; the signature on another summons appeared illegible; a note, stating that the applicant refused to sign, appeared on another summons. In addition, the records of 2 February and 12 March 2007 stated that the applicant attended the hearings on those dates.
51. In the absence of a challenge by the applicant to the authenticity of any of the above documents, the Court finds no reason not to rely on them. Given the summonses and his attendance at two hearings at least, the applicant could reasonably have been expected to make any submissions, as appropriate, and enquire about the progress of the proceedings. Furthermore, the Court considers that it is incumbent on the interested party to display appropriate diligence in the defence of his interests and to take the necessary steps to apprise himself of developments in the proceedings (see, among other authorities, Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001; Trukh v. Ukraine (dec.), no. 50966/99, 14 October 2003; and Aleksandr Shevchenko v. Ukraine, no. 8371/02, § 27, 26 April 2007).
52. The Court further notes that a form of service (dëftesë komunikimi) of 8 January 2008 informed the applicant of the judgment of 18 December 2007. It would appear that the form was mailed on 9 January 2008 and delivered by registered mail on 10 January 2008 to the applicant’s address. A stamp, bearing the inscription “paid postage, registered mail”, appears on the lower, left-hand side. Another stamp, indicating the date of 9 January 2008 and the name of the post office, appears on the upper, right-hand side. The date of acknowledgment of receipt read 10 January 2008.
53. Even assuming that the acknowledgment slip had not been signed by the applicant, the Court considers that he had an opportunity to raise all the above issues before the national courts by seeking leave to appeal out of time in accordance with Article 458 of the Code of Civil Procedure (see paragraph 25 above). However, the applicant failed to do so.
54. In these circumstances, the Court finds that the applicant was notified of the proceedings, was kept duly informed of the dates of hearings and was served with a copy of the judgment. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. As regards a breach of the principle of legal certainty
55. On 21 July 2009, following the Government’s submission of the District Court’s decision of 18 December 2007 (see paragraph 18 above), the applicant further submitted that the domestic courts had previously decided that the editorial board, as opposed to the newspaper’s company, was responsible for obligations to third parties. The decision of 18 December 2007 contradicted this finding, setting at naught an entire legal process.
56. The Government contended that the applicant had identified and continued legal proceedings against the wrong defendant, which was the editorial board. The applicant did not apply to have the mistake remedied, unlike other plaintiffs. Moreover, they argued that the applicant should have pressed charges against the author of the press article.
57. The Court considers that, regardless of whether the applicant complied with the six-month time-limit in the introduction of this complaint, it is inadmissible on the following grounds. The District Court’s decision of 18 December 2007 did not question the finality of its decision of 21 January 2003. It simply stated that the execution writ, in so far as it was directed against the editorial board, could not be enforced against the newspaper’s company. The Court considers that the District Court’s finding that the editorial board was neither a legal entity nor a physical person reflected the development, the interpretation and application of the law at the material time in 2007. The Court would further point to its findings in paragraphs 37-44 above as regards the authorities’ actions for the enforcement of the final court decision of 21 January 2003.
58. It follows that this complains is manifestly ill-founded and that it should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Article 13 complaint
59. The applicant complained under Article 13 of the Convention that there was no effective remedy to request the enforcement of the District Court’s judgment of 21 January 2003.
60. Having regard to the material in its possession, the findings in paragraphs 37-44 above and, in so far as this complaint falls within its competence, the Court finds that the facts of the case do not disclose any appearance of a violation of the applicant’s right to an effective remedy. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy