Ministers’ Deputies

    Information documents

    CM/Inf/DH(2011)36        16 August 20111



    Cases concerning the non-enforcement in Albania of final domestic decisions relating to the right of applicants to restitution or compensation for property nationalised under the communist regime2

    General measures to comply with the European Court’s judgments

    Memorandum prepared by the Department for the execution of judgments and decisions of the European Court of Human Rights



    EXECUTIVE SUMMARY

    This memorandum has been prepared to assist the Committee of Ministers in its supervision of the execution of a number of judgments of the European Court by Albania revealing important structural problems of failure to enforce final domestic court and administrative decisions relating to the right of the applicants to restitution or compensation (whether pecuniary or in kind) for property nationalised under the communist regime (violations of Article 6§1 and Article 1 of Protocol No. 1), as well as the lack of an effective remedy in this respect (violation of Article 13 in conjunction with Article 6§1).

    The memorandum examines both the general measures already implemented and plans for further reform as set out in the Action plan (DH-DD(2011)316) provided by the authorities on 06/05/2011.

    Table of contents

    Introduction 3

    The European Court’s findings 3
    The Action plan submitted by the Albanian authorities 3

    Part 1. - Removing all obstacles to the enforcement of final domestic decisions awarding
    compensation under the Property Act
    4

    A. The right to restitution of property or compensation established by law 5

    B. The award of compensation 6

    C. The finalisation of the property registration process 10

    Part 2. - Providing effective remedies in cases of non-enforcement of final domestic decisions 10

    A. The reform of the bailiff service 10

    B. Ensuring effective judicial review in cases of non-execution 11

    Appendix - List of Albanian cases concerning non-execution of a final domestic judgment related to compensation/restitution of properties nationalised under the communist regime 13

    Introduction

    The European Court’s findings

    1. The European Court of Human Rights ( “the European Court”) in the Driza3 judgment observed that “the unjustified hindrance to the applicant’s attempts to obtain compensation pursuant to the Property Act […] arose from shortcomings in the Albanian legal order as a consequence of which an entire category of individuals have been and are still being deprived of their right to the peaceful enjoyment of their property as a result of the non-enforcement of court judgments (or administrative decisions) awarding compensation under the Property Act. Indeed, there are already dozens of identical applications before the Court. The escalating number of applications is an aggravating factor as regards the State’s responsibility under the Convention and is also a threat to the future effectiveness of the system put in place by the Convention, given that in the Court’s view, the legal vacuums detected […] may subsequently give rise to other numerous well-founded applications” (see §122 of the Driza judgment).

    2. The main shortcomings identified by the European Court are:

      · Failure to remove all obstacles to the award of compensation in lieu of restitution under the Property Act by ensuring the appropriate statutory, administrative and budgetary measures;

    In the cases of Beshiri4, Driza and Ramadhi5, the European Court found violations of Article 6§1 and Article 1 of Protocol No. 1 to the European Convention on Human Rights (“the Convention” or “the ECHR”) due to the non-enforcement of judgments of the domestic courts awarding compensation for property which had been nationalised under the communist regime.

      · Lack of an effective remedy ;

    In Driza, the European Court also found a violation of Article 13 in conjunction with Article 1 of Protocol No. 1 in respect of the ineffectiveness of remedies introduced by the Property Act.

    In Ramadhi, the European Court found that the authorities had deprived the applicants of their right to an effective remedy enabling them to secure the enforcement of their civil right to compensation, as they had failed to take the necessary measures to provide the means of enforcing decisions of the local Property Restitution and Compensation Commission (violation of Article 13 in conjunction with Article 6§1).

    In a subsequent case, Gjyli6, the European Court noted that judgments of the Constitutional Court were declaratory so that the Constitutional Court did not offer any adequate redress. In particular, it made no award of pecuniary and/or non-pecuniary damage, nor could it offer a clear perspective to prevent the alleged violation or its continuation (violation of Article 13 in conjunction with Article 6§1).

    The action plan provided by the Albanian authorities

    3. According to the authorities, the non-enforcement of final domestic decisions recognising the right to compensation is mainly due to difficulties related to:

    - the Law No. 9235, dated 29.07.2004 “on restitution and compensation of properties” and the fragmented legal framework on properties;

    - the lack of coordination between different state agencies and/or bodies as regards the circulation of documents and the inter-operability of their archives;

    - the lack of coordination of the different processes tackling property issues;
    - the lack of a standard national map;
    - the lack of an electronic database containing property claims and decisions of the Agency for restitution and compensation of properties;

    - the process of first registration of properties;

    - the lack of effective remedies against the non-enforcement of final decisions.

    - the process of legalisation of illegal properties.

    4. Accordingly, the authorities put in place a working group to draft the action plan. They also participated in a multilateral round table organised in Bucharest in February 2011 by the Department for the Execution of Judgments with the Romanian Ministry of Foreign Affairs, with the support of the Human Rights Trust Fund, on the theme “Property restitution/compensation: general measures to comply with European Court's judgments”. The work done by the technical group - which was explained orally to the Secretariat in the framework of a cooperation mission in Tirana on 7 April 2011, financed by the Human Rights Trust Fund - led to a consolidated action plan, approved by the Council of Ministers (decision No. 350) on 29/04/2011 and transmitted to the Secretariat on 6/05/2011.

    5. Based on the action plan provided by the authorities, the present memorandum contains a description and analysis of the national legal and administrative framework – including ongoing reforms and measures envisaged – placing emphasis on the progress made and underlying the remaining shortcomings regarding the non-enforcement of decisions related to property restitution or compensation (Part I). The issue of remedies is considered in Part II.

    6. To date, 20 additional applications against Albania concerning the issue of restitution of property and/or compensation have been communicated to the Albanian authorities by the European Court.

    ooOoo

    Part 1. Removing all obstacles to the enforcement of final domestic decisions awarding compensation under the Property Act

    7. In its reasoning under Article 46 of the Convention in the relevant judgments against Albania, the European Court considered that the respondent state should, above all, remove all obstacles to the award of compensation under the Property Act by ensuring that the appropriate statutory, administrative and budgetary measures are taken. Such measures should be made available as a matter of urgency7. In two other recent judgments8, the Court observed that the problems at the root of the violations found in those cases were complex and structural. The Court considered that the respondent state should take adequate legislative, administrative and financial measures to provide for awards of compensation, without undue delay, ordered by a final court decision in lieu of the restitution of property. The respondent state should, for example, designate a competent enforcement body, provide sufficient human and material resources, establish clear and simplified rules of procedure for the collection of claims, lay down realistic and binding time-limits for their processing and enforcement of related decisions, allocate the necessary budgetary funds, and remove all obstacles with a view to securing the expedient award of financial compensation or compensation in kind9, having regard to the principles established in the Court's case-law.

    8. It should be recalled that in the Qufaj10 judgment (§38), the European Court reiterated that it is not open to a state authority to cite lack of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances. But the delay may not be such as to impair the essence of the right protected under Article 6§111. In the Beshiri case, the European Court noted that the judgment in question remained unenforced for over five years, a situation for which the Albanian government had not provided any plausible justification. Citing a lack of state funds, as the government had done, did not justify the situation.

    A. The right to restitution of property or compensation established by law

        1) Reform to consolidate and simplify the legislative framework (The Property Act)

    9. The right to restitution or compensation is regulated by Law No. 9235 of 29/07/2004 “on restitution and compensation of property” (“the Property Act”). The Property Act has undergone several amendments during the past seventeen years. As currently in force12, it provides for the restitution, under certain circumstances, of the original property or for the award of compensation in the event of the authorities' being unable to return the original property. The Act provides for five forms of compensation: (a) property of the same kind; (b) property of any other kind; (c) shares in state-owned companies; (d) the value of a state-owned property in the course of privatisation, and (e) a sum of money (section 11).

    10. According to the Albanian authorities, one of the main shortcomings of the process of compensation/ restitution of properties is due to the difficulties encountered in the implementation of the above-mentioned law. Further, the legal framework on properties is too fragmented and it needs to be simplified and consolidated in order to have simple and clear compensation procedures. In the Action plan it is provided that by the end of November 2011 the legal improvements setting up a new financial compensation scheme will enter into force. Through the assistance of international institutions, the simplification and the consolidation of the legislation regulating the property issues is planned to be completed by the end of 2012.

        2) Institutional reform to improve coordination of different actors

    11. The lack of coordination between different state agencies and/or bodies is another deficiency in the process of restitution and/or compensation of properties identified by the Albanian authorities.

    To remedy this situation the authorities have envisaged the establishment of a coordination body in the Ministry of Justice by November 2011. This structure will develop, monitor and implement policies in the field of property rights. It will coordinate several state bodies such as: Agency for Restitution and Compensation of Properties (ARCP), Immovable Properties Registration Office (IPRO), Agency for Legalisation, Urbanisation and Integration of Informal Areas and Constructions (ALUIIAC), the Directorate for Administration and Sale of State-owned Properties (DASSP), Governmental Land Commission (GLC) and State Advocacy. Further, it will supervise and monitor the property compensation process and the implementation of the action plan.

        3) Amendments to streamline administrative procedures

    12. Recent amendments to the Property Act (Law No. 10207 of 23/12/2009) abolished the Regional Offices (former Commissions) for Property Restitution and Compensation. At present, the Property Restitution and Compensation Agency (PRCA) is the only administrative body in charge of the implementation of the Property Act, competent to decide on restitution and compensation claims. The PRCA is also responsible for the administration of the Compensation fund. The authorities13 consider that this reform makes possible the elimination of ineffective administrative steps and halve the time to treat a request.

    13. The Constitutional Court declared unconstitutional the right of the Director of the PRCA to review decisions delivered by former Regional Offices/Commissions for Property Restitution and Compensation (Articles 16 and 18 of Law No. 9235).

        4) Other measures

    14. The Agency for Restitution and Compensation of Properties has planned to set up an electronic database containing the cartographic and juridical status of each compensation claim. The consultation of this database will make it possible to establish – through cartographic superposition – whether a decision awarding compensation for a given property has already been taken. Concerning the cartographic component, the electronic database will be built over the standard map that will be prepared by the Agency for Preparation of Standard Maps. As all institutions concerned will use the same standard map the information (cartographic and legal) generated or processed by each of them will be fully interchangeable.

    Observations of the Secretariat:

    15. The various legislative reforms envisaged aimed at simplifying the legislative framework and setting up a simple and clear compensation mechanism planned for 2011 and 2012 are very promising. The conclusions of the European Court in the Driza and Ramadhi judgments - finding that the violations arose from shortcomings in the Albanian legal order - should guide the legislative process. In this respect, it might be important to recall that the European Court underlined the necessity to avoid frequent and fragmented amendments to the Property Law and dispersion of provisions related to compensation, in various laws, ordinances and regulations14. More details on the reforms envisaged would thus be useful. The authorities are also invited to specify what kind of assistance they require from international institutions as regards consolidation and simplification of the relevant legislation (see §10 above).

    16. The creation of a new coordination body in the Ministry of Justice is encouraging; however clarification is required on its concrete powers and its added value.

    17. In light of the scope of the powers exercised by the PRCA and the findings of the Constitutional Court in this respect (see §13 above), the authorities are once again invited to provide an assessment concerning its capacity to deal with the process of providing compensation for expropriated properties.

    18. The setting-up of the electronic database containing the cartographic and juridical status of each compensation claim and of a standard map are welcomed.

    B. The award of compensation

    19. According to the Property Act as amended, when restitution of property is not possible, compensation will be based on its market value. Article 23 of the Property Act 2004 established the Financial Compensation Fund which is to operate for a ten-year period, having commenced in 2005. Article 28 of the Law establishes a Fund for compensation in kind, which is not yet operational.

    20. Further, the government approved and issued a property valuation map. The map included the reference price per square metre throughout the country. All the prices per square meter are included in a single table, ranging from the lowest price of ALL 150 (€ 1.2) per m² in zone 2 of the town of Tepelena in Southern Albania, to the highest price of ALL 180,000 (€ 1,384) per m² in the former “bllok” area of Tirana, the capital city.

    21. The land value map is used by the PRCA to calculate the value of expropriated properties and subsequently the amount of compensation to be awarded to the former owners. It is revised periodically to take into account changes in property market value.

    22. According to the authorities’ action plan, the total number of applicants applying for compensation and the total financial bill for the compensation process should be established by 2013.

    23. In their action plan, the Albanian authorities, having regard to the legal expectations of the ex-owners for so many years, decided to maintain the principle of full compensation (100%) for the privation of property that occurred during the communist regime.

        1) The award of financial compensation currently in force and plans for the future

    24. For the period 2005-200915, the amount of financial compensation was limited to a maximum of 200 m². No information has been provided by the authorities in respect of 2010.

    25. As from 2011, the compensation scheme has been divided in two parts: (i) a transitory compensation scheme for 2011 and (ii) a final compensation scheme starting from January 2013.

(i) A transitory scheme for 2011

    26. On 9 March 2011, the Albanian authorities adopted a Council of Ministers' decision (No. 192) on a new financial compensation scheme which is now in force.

    The procedure

    27. The process of registration of claims for compensation started five days after the date of entry into force of this decision and continued for a month. As in previous years, all applications will be processed and decisions given within a three-month period.

    28. Any ex-owner holding a final decision can apply for compensation, except those who received financial compensation in past years. In order to apply for compensation, applicants must fill a form and submit a certain number of documents as provided in the Council of Ministers' decision.

    The criteria

    29. The 200 m² limit for the award of compensation has been abolished. The amount of compensation area depends on the overall area recognised for compensation. In practical terms, compensation will be paid for:

    - 200 m² for properties up to 1.500 m²

    - 300 m² for properties over 1.500 m²up to 3.000 m²

    - 400 m² for properties over 3.000 m² up to 5.000 m²

    - 500 m² for properties over 5.000 m²up to 10.000 m²

    - 600 m² for properties over 10.000 m²

    30. According to the authorities this new scheme is conceived to comply with the requirements of the European Court’s judgments delivered against Albania, in particular with the principle of equal treatment between the beneficiaries. In practice, if a pure fixed percentage scheme applied, an ex-owner holding a compensation decision for a small property would receive an insignificant amount of compensation given the low value of the land in a given area. Moreover, few ex-owners holding a compensation decision for properties in areas where the land value is high, would exhaust the entire compensation fund. In the light of this situation, the intention was that a reasonable number of ex-owners benefit from the scheme and a reasonable amount be given to each of them. Furthermore, the PRCA has concluded that a large number of compensation decisions concern relatively small areas. Accordingly, it is possible to compensate many of the applicants at this stage. Concerning other applicants, the Albanian authorities underline that this is a transitory scheme, which will be replaced by a final compensation scheme, based on payment in instalments, with a percentage criterion.

    (ii) A final compensation scheme, operational from January 2013.

    The procedure

    31. Ex-owners holding a valid definitive and enforceable compensation decision will benefit from the new scheme. The ex-owners must fill in a standard form, which can be obtained at the PRCA office or can be downloaded from the PRCA official website. Only those applications which are formally completed will be registered by PRCA.

    32. The accepted applications shall then be entered into an electronic database in chronological order. The ranking shall take into consideration the earliest date of the decision recognising the compensation, regardless of the fact that such a decision could be amended administratively and/or judicially. If an ex-owner holds more than one compensation decision (for different properties) each of them shall be ranked chronologically.

    33. The state shall have the discretion to determine whether the applicant shall be compensated financially or in kind. Ex-owners will have no right to choose or ask for one form of compensation over another. If an ex-owner refuses to accept the compensation proposed, he will loose his right to compensation.

    34. Once the period established by law for filing application for compensation expires, the PRCA will follow the necessary internal administrative procedures to begin the compensation scheme.

    The criteria

    35. The quantum of compensation shall be 100% and distributed in equal instalments. The scheme will be governed by amendments to the Property Act to be adopted in November 2011 (for details, see the Action plan, pages 4-6).

        2) The consolidation of the financial compensation fund

    36. On 25 February 2010, a new Law No. 10239 “on the establishment of a special compensation fund” was adopted. According to this law, the Compensation Fund is a special fund within the meaning of the budgetary law. The novelty of the law is that to compensate former owners, other sources of securing additional funds will be used. The main part of the fund will continue to come from the annual state budget allocated for the compensation of expropriated property. Additional sources will be provided via funds deriving from the sale at auction of state property for which no decisions of the property restitution and compensation commissions have been issued, as well as by the income generated during the process of the legalisation of illegal constructions according to Law No. 9482 of 03/04/2006, “on the legalisation, urbanisation and integration of illegal constructions”, which is currently being implemented.

    37. In addition to the above-mentioned sources, income generated as a result of the implementation of other laws and bylaws as well as sums provided by donors, will be transferred to the Compensation Fund. As stipulated in the Property Act, the PRCA will administer the Compensation Fund according to the procedure set out in a Council of Ministers' decision and the proposal of the Minister of Finance. The latter, on 1 February of each year, shall transfer to the bank account of the PRCA the annual Compensation Fund. Unspent amounts can be retained in the account for subsequent years.

    38. Article 23 of the Property Act provides for the right to receive default interest covering the period running from the recognition of the right to property until the award of the financial compensation, calculated at the annual average of the Bank of Albania.

        3) Compensation in kind for former owners16

    39. The Property Act provided for the establishment of a fund for compensation in kind. It was planned that by 31 December 2008, the Council of Ministers would adopt the fund of state immovable properties as well as the modalities of its transfer to the PRCA.

    40. By decision No. 567 of 05/09/2007, the government laid down the criteria and the procedures for determining which state properties fall within the scope of the fund for compensation in kind. Section 1 lists the types of properties, for example: (a) public immovable property which is located in tourist areas; b) properties of the Ministry of Defence which are not used by the armed forces and have been approved by the President of the Republic; (c) available agricultural land belonging to the Ministry of Agriculture; (d) forests, pastures and meadows; and (e) property of state institutions which fall outside their intended activity.

    41. The PRCA is responsible for checking the legal status of each property submitted by the respective State institutions. The PRCA will submit to the Minister of Justice the final list of immovable properties which fall within the scope of the fund for compensation in kind. Upon the government’s approval, the list will be published in the Official Journal.

    42. According to the Albanian authorities, in order to establish the fund for compensation in kind, the Immovable Property Registration Office (IPRO) must conclude the process of first registration throughout the territory of Albania. This fund shall be established by 2018. In the meantime (until a fund for systematic compensation is established) the available "in kind" fund will be distributed. Compensation in kind will have priority over financial compensation, in order to ease the financial burden on the state

    Observations of the Secretariat:

    43. The participants at the Round table held in Romania on 17/02/2011 stressed the importance of determining financial implications of the compensation process before adopting or modifying relevant legislation. Thus, as a matter of urgency, the authorities are invited to indicate the procedure which will be followed for the definition of the financial cost and the provisional calendar of the compensation process.

    44. In order to respect the procedural aspects of Article 1 of Protocol No. 1, the authorities are invited to ensure the availability of judicial review of administrative decisions on compensation claims.

    45. The Secretariat recalls the findings of the European Court in the case of Delvina against Albania17 (§88), according to which a person who has obtained an enforceable judgment against the state as a result of successful litigation cannot be required to resort to enforcement proceedings in order to have it executed (see also Metaxas against Greece, judgment of 27 May 2004, § 19). In this respect, the Secretariat notes that the procedure for submitting an application to the PRCA seems to place a significant financial and administrative burden on applicants who have a final judicial or administrative decision which does not appear compatible with the above-mentioned findings of the European Court. Further action from the authorities on this issue is needed.

    46. Clarification is needed as to whether the transitory compensation scheme will also apply in 2012.

    47. Further information on the periodic review of the land value map would be useful.

    48. The reform undertaken in 2010 with the adoption of the Law “on the establishment of a special compensation fund” aimed at consolidating the central compensation fund and to secure its viability is particularly welcome. In this context, the authorities are invited to ensure to the extent possible the allocation of adequate resources to the compensation fund. Further information on its implementation is needed.

    49. The authorities are invited to provide information concerning the implementation in practice of Article 23 of the Property Act, concerning the right to default interest in cases where domestic final decisions awarding compensation have not been executed or have been executed with delay.

    50. In their action plan the authorities confirm that compensation in kind (restitution) shall have priority over financial compensation, to relieve the financial burden on the state. However the Secretariat notes that the fund for compensation in kind is not yet operational and that the authorities have planned its establishment only in 2018. Further information would thus be useful on the practical functioning of compensation in kind and the possible acceleration of the establishment of the fund for compensation in kind.

    C. The finalisation of the property registration process

    51. According to the Albanian authorities, the Immovable Property Registration Office (IPRO) must conclude the process of first registration throughout the territory of Albania. This will provide legal certainty for property titles. By the end of 2013 the cadastral areas currently undergoing the first registration process will be registered. The conclusion of this process as to the other remaining cadastral areas, in total 477, as well as for the forests and pastures throughout the whole territory depends on finding the necessary funds. The cost is calculated at approximately 10 million EUR, for a total of 678 800 properties.

    52. Amendments to the Property Act (Article 10, introduced by Law No. 9701 of 02/04/2007) provide that priority for registration is defined chronologically, according to the order in which the documents have been presented to the Registrar of the IPRO. The latter has the right to seek from the Chief Registrar the erasure of all registrations subsequent to a first registration which is in accordance with articles 192-197 of the Civil Code.

    53. Recently, the Constitutional Court18 considered that the erasure of a registration deprives the owner of the right to freely dispose of their property (§18 of the decision) and that Article 10 violates the property rights provided for under Article 41 of the Constitution. Furthermore, the Constitutional Court considered that the erasure of a registration of a property by an administrative structure limits the right to property, creates legal uncertainty for citizens and violates established rights.

    Observations of the Secretariat:

    54. The finalisation of the process of first registration of properties throughout the territory of Albania seems crucial for the security of property titles, as well as for the completion of the restitution and compensation process. Accordingly, the authorities are invited to accelerate the registration process and provide information on the measures taken to finalise it.

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    Part 2. Providing effective remedies in cases of non-enforcement of final domestic decisions

    A. The reform of the bailiff service

    55. In the cases of Beshiri, Bushati and Gjyli against Albania, the European Court noted that the bailiffs’ actions to enforce final judicial judgments were not effective19. In Beshiri, the European Court considered that the failure of the authorities (including bailiffs) to enforce the judgment ordering the authorities to offer the applicant a form of compensation in lieu of the restitution of two plots of land, amounted to an interference with their right to the peaceful enjoyment of their possessions within the meaning of Article 1 of Protocol No. 1 to the Convention.

    56. In Bushati, the European Court recalled that in such cases where the debtor is a private person, the state has to act diligently to assist a creditor in execution of a judgment. The European Court considered the bailiff's actions ineffectual and stated that they should have proceeded with coercive measures to enforce the judgment.

    57. To remedy those situations, Albania, supported by a project financed by the European Commission20, introduced a private bailiff service21 approved by Law No. 10031 of 11/12/2008. With the introduction of the new Law, Albania will have a two-track system, state and private, functioning in parallel. Furthermore, the Code of Civil Procedure was amended by Law No. 10052 of 29/12/2008, to accommodate the new system and improve the execution of decisions.

    58. According to the authorities, the introduction of a private bailiff service seeks partially to relieve the state bailiff service of its caseload. In addition, it is expected that the private bailiff service will be more efficient in cases where the state is debtor. Furthermore, the changes in the Code of Civil Procedure, in particular regarding procedural deadlines, will speed up the whole process of the execution of judicial decisions.

    59. With the scope of modernising the bailiff service, the General Bailiffs’ Directorate has envisaged general measures to improve the functioning of the service as well as to strengthen its capacities (see page 9-10 of the action plan) such as:

      - the implementation of the monitoring system, to improve the enforcement of writs of execution by the bailiffs’ offices;

      - the creation of an on-line registry of writs of execution that have to be enforced by the state or provide bailiffs’ offices;

      - the functioning of a well-organised system for processing and managing the workload, accompanied by the creation of the necessary infrastructure to support the smooth functioning of the system;

      - improvement of the infrastructure by renovating the new premises of General Bailiffs, by providing the necessary premises and logistics to help improve the performance of duties by the bailiffs;

      - continuous training of bailiffs, during the period 2009-2012, based on an agreement concluded with the School of Magistrates;

      - the conclusion of several inter-institutional agreements for cooperation.

    Observations of the Secretariat:

    60. During bilateral contacts, several interlocutors underlined the expected positive effects of the private bailiff service. The measures provided in the action plan to increase the efficiency of the bailiff service are encouraging. However, explanations are needed on the concrete results achieved by the implementation of the reform of the private bailiff service.

    B. Ensuring effective judicial review in cases of non-execution

    61. In the case of Qufaj against Albania, the European Court found that “the Constitutional Court was competent to deal with the applicant company’s complaint relating to non-compliance with a final judgment as part of its jurisdiction to secure the right to a fair trial”. This element of the right to a fair hearing was embodied for the first time in the Constitutional Court’s judgment No. 6/06, subsequently upheld in its judgments nos. 43/07, 1/09 and 6/09.

    62. In the case of Ramadhi against Albania, the European Court underlined that Albania should above all introduce a remedy which secures genuinely effective redress for the violations of the Convention identified in the present judgment as well as in respect of all similar applications pending before it, in accordance with the principles for the protection of the rights laid down in Articles 6§1 and 13 of the Convention and Article 1 of Protocol No.1.

    63. In the case of Gjyli against Albania, the European Court noted that judgments of the Constitutional Court recognised that there had been a violation of the appellants’ right of access to a court on account of the non-enforcement of domestic courts’ judgments. However, their findings were declaratory so the Constitutional Court did not offer any adequate redress. In particular, it did made no award of pecuniary and/or non-pecuniary damage, nor could it offer a clear perspective on prevention the alleged violation or its continuation22.

    64. Law No. 8510 of 15/07/1999 “on the extra contractual liability of public administration bodies” provides that public administration bodies are responsible for damages caused to natural or legal persons in cases of an act or omission which may or not have a basis in law (i.e. legal or illegal). In such cases the injured party has the right to receive pecuniary and non-pecuniary damage, including the right to any loss of profit. To date no information has been provided by the Albanian authorities concerning the implementation of this law.

    65. Moreover, Article 450 of the Civil Code provides for the possibility to obtain financial compensation for the damage caused by delayed payment of a sum23. This provision has been referred to in a decision of the Albanian Constitutional Court (decision No. 8 of 23/03/2010). The Constitutional Court found that the applicant’s claim to obtain compensation for delayed execution of a final judgment constituted a new, distinct claim. Therefore the applicant had to apply before ordinary courts on the basis of Article 450 of the Civil Code to obtain compensation for the damage caused by a delayed payment of a sum. Only after the exhaustion of proceedings before the ordinary courts could the applicant institute proceedings before the Constitutional Court.

    Observations of the Secretariat:

    66. The Committee of Ministers has repeatedly highlighted the importance of ensuring without further delay an effective domestic remedy in Albania in line with the requirements of Article 13 of the ECHR and the European Court’s case-law. Apart from some general information on the recommendation to disseminate the law "on the extra contractual liability of public administration bodies" (see page 10, item c, of the action plan), no other information has been submitted by the authorities in this respect. The authorities are invited once again to inform the Committee of Ministers on measures taken or envisaged to comply with the European Court’s requirements. Information is needed in particular on the applicability and the efficiency of the remedies provided by Law No. 8510 “on the extra-contractual liability of public administration bodies” as well as by Article 450 of the Civil Code, in the light of the decision of the Constitutional Court.

    Appendix - List of Albanian cases concerning non-execution of a final domestic judgment related to compensation/restitution of properties nationalised under the communist regime

Application Number

English Case Title

10508/02

GJONBOCARI and others against Albania

33771/02

DRIZA against Albania

38222/02

RAMADHI AND 5 OTHERS against Albania

7352/03

BESHIRI and others against Albania

12306/04

NURI against Albania

35720/04

VRIONI against Albania and Italy

45264/04

HAMZARAJ against Albania (No. 1)

6397/04

BUSHATI against Albania

10810/05

CAUSH DRIZA against Albania24

49106/06

DELVINA against Albania25

16530/06

ELTARI against Albania26

1 This document has been classified restricted at the date of issue. It was declassified at the 1120th meeting of the Ministers’ Deputies (September 2011) (DH) (see CM/Del/Dec(2011)1120 Decisions adopted at the meeting).

2 A number of other cases against Albania concerning non–enforcement of domestic decisions are currently pending before the Committee of Ministers, but since they are not related to restitution of property and/or compensation but concern other State obligations or decisions against private individuals, the specific issues they raise will be addressed when such cases are examined by the Committee of Ministers.

3 Driza against Albania, judgment of 13/11/2007, final on 02/06/2008 (application No 33771/02); see also Ramadhi, §90.

4 Beshiri against Albania, judgment of 22/08/2006 (application No. 7352/03)

5 Ramadhi against Albania, judgment of 13/11/2007 (application No. 38222/02)

6 Gjyli against Albania, judgment of 29/09/2009 (application No. 32907/07)

7 See Driza §§122-126 and Ramadhi § 94.

8 See Delvina (No. 49106/06) §87 and Eltari (No. 16530/06) §99.

9 Compensation in kind meaning “restitution or restoration”

10 Qufaj against Albania, judgment of 18/11/2004 (application No. 54268/00)

11 See Hornsby v. Greece, judgment of 19 March 1997, Reports of Judgments and Decisions 1997-II, p. 510-511, § 40; and Burdov against Russia, No. 59498/00, § 34-35, ECHR 2002-III; see also Jasiūnienė against Lithuania, No. 41510/98, § 27, 6 March 2003.

12 Amended by Law No. 9388, 04/05/2005 ; Decision of the Constitutional Court No. 26, 02/11/2005 ; Law No. 9583, 17/7/2006 ; Law No. 9684, 06/02/2007 ; Decision of the Constitutional Court No. 11, 04/04/2007 ; Law No. 9898, 10/04/2008 ; Law No. 10 095, 12/3/2009 ; Law No. 10 186, 5/11/2009 ; Law No. 10 207, 23/12/2009.

13 As confirmed by the Director of the PRCA during the bilateral contacts in Tirana on 2-3 February 2010.

14 §§ 235 of the judgment in Maria Atanasiu and others (application No. 30767/05 et 33800/06).

15 of 25 may 2010, §§ 15-23.

16 567 of 5 September 2007.

17 Delvina v. Albania , judgment of 08/03/2011 (application n°49106/06)

18 The Albanian Constitutional Court seised by the People's Advocate delivered a decision on 23/04/2010 (decision V-17/10) repealing as unconstitutional the second and third paragraphs of the said Article 10 as well as the second paragraph of Article 39 /a of Law No. 7843, dated 13/07/1994 "On the registration of real estate" (complemented by Law No. 9701 and Instruction No.4, of the Council of Ministers).

19 See § 65 of Beshiri, § 59 of Gjyli and § 80-86 of Bushati. See also Marini (3738/02) and Driza (33771/02).

20 EURALIUS II (European Assistance Mission to the Justice System in Albania), a project funded by the European Commissions under the Albania CARDS 2006 programme.

21 The Minister of Justice declared that the Private Service would be operational in June 2010.

22 In the case Burdov No. 2 (No. 33509/04), the Court recalled that Article 13 gives direct expression to the States' obligation, enshrined in Article 1 of the Convention, to protect human rights first and foremost within their own legal system. It therefore requires that the States provide a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see Kudła against Poland [GC], No. 30210/96, § 152, ECHR 2000-XI) (see § 97 -100 of Burdov No. 2 judgment)).

23 Article 450: “The compensation for the damage caused by the delayed payment of a sum of money, consists of default interests running from the date of commencement of default of the debtor in the official currency of the state where the payment is done. The rate of interest is determined by law. At the end of each year default interests are added to the principal amount of money due on the basis of which their calculation is made. Legal interests are paid without the creditor being obliged to prove any damage. When the creditor proves to have suffered a greater harm than the default interest, the debtor is obliged to pay him the rest of the damage”.

24 Judgment of 15 March 2011, final on 15 June 2011, transmitted to the Committee of Ministers. It will be considered for classification at the 1128th Meeting (December 2011).

25 Judgment of 8 March 2011, final on 8 June 2011, transmitted to the Committee of Ministers. It will be considered for classification at the CM/DH Meeting of December 2011.

26 Judgment of 8 March 2011, not yet transmitted to the Committee of Ministers.



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