THIRD SECTION
DECISION
Application no. 37570/18
Braniella ZERVA and Stylianos ZERVAS
against Albania
The European Court of Human Rights (Third Section), sitting on 12 March 2024 as a Committee composed of:
Georgios A. Serghides, President,
Darian Pavli,
Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 37570/18) 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”) on 2 August 2018 by two, respectively, Albanian and Greek nationals, Ms Braniella Zerva and Mr Stylianos Zervas (“the applicants”), who were born in 1973 and 1954 respectively, live in Rio and were represented by Mr K. Tsitselikis and A. Spathis, lawyers practising in Thessaloniki;
the decision to give notice of the complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention to the Albanian Government (“the Government”), initially represented by their Agent, Mr A. Metani, and, subsequently by Mr O. Moçka, General State Advocate, and to declare inadmissible the remainder of the application;
the fact that the Greek Government did not seek to exercise their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court);
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the fairness of the proceedings which lead to the applicants’ loss of ownership over a plot of land. It also concerns the said proceedings’ compatibility with the applicants’ right to property.
2. On 30 October 2013 the applicants lodged a court action against a private bailiff who had enforced a debt judgement against them and had forcefully sold one of their properties to pay a creditor. The applicants contested the enforced judgement. They also alleged that the bailiff had failed to notify them of the forced sale of their property and had ultimately sold it at a lower price.
3. On 9 June 2014 the Korça District Court rejected the action as belated and ill-founded. On 20 November 2014 the Korça Court of Appeal upheld that decision.
4. On 21 April 2017 the Supreme Court rejected the cassation appeal of the applicants who gained knowledge of that decision on 5 February 2018.
THE COURT’S ASSESSMENT
5. Under Article 6 § 1 of the Convention, the applicants complained that there had been breach of their right to a fair hearing on account of the authorities alleged failure to notify them of the proceedings against them. Further, they complained that the sale of their property breached of their rights under Article 1 of Protocol No. 1 to the Convention.
6. The general principles concerning the exhaustion of domestic remedies and the principle of subsidiarity have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). With particular regard to Albania, following the amendments of 12 August 2016 concerning the jurisdiction of the Constitutional Court, in principle, a constitutional appeal became an effective remedy to be exhausted for all Convention complaints (see Fullani v. Albania (dec.), no. 4586/18, § 79, 20 September 2022).
7. The Court agrees with the Government’s submission that by not lodging a constitutional appeal, the applicants have failed to exhaust domestic remedies. The applicants contended that the Albanian Constitutional Court was competent to rule “only on the constitutionality of laws”, however, as it has already been established in Fullani (cited above, § 79), as of 12 August 2016 a constitutional appeal became, in principle, an effective remedy to be exhausted for all Convention complaints.
8. The applicants gained knowledge of the impugned decision of the Supreme Court on 5 February 2018 and, accordingly, it was open to them to lodge a constitutional appeal with the Constitutional Court until 5 June 2018 (see Supergrav Albania Shpk v. Albania, no. 20702/18, § 7, 9 May 2023). Although between 16 July 2018 and 14 November 2019 the Constitutional Court could not rule on any appeals due to lack of quorum, the court continued to register appeals which were examined after the it regained quorum (see, for a similar situation, 2001 Sh.p.k. v. Albania (dec.) [Committee], no. 56080/19, § 12 and 16, 30 May 2023).
9. Having failed to lodge a constitutional appeal, the applicants’ complaints are inadmissible for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 11 April 2024.
Olga Chernishova Georgios A. Serghides
Deputy Registrar President