CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 novembre 2011

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De Gaetano, judges, and Lawrence Early, Section Registrar, Having regard to the above application lodged on 10 November 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, Ms Violeta Ngjela, née Rizi, is an Albanian national who was born in 1938 and lives in Durrës. She was represented before the Court by Mr E. Todhe, a lawyer practising in Durrës. The Albanian Government (“the Government”) were represented by their then Agent, Mrs E. Hajro of the State Advocate’s Office. A.     The circumstances of the case 2.     The facts of the case, as submitted by the parties, may be summarised as follows. 3 .     On 22 July 1993 the Durrës District Court (“the District Court”) recognised the existence of the applicant’s father’s property rights over a plot of land measuring 520 sq. m situated in the city of Durrës ( vendim vërtetim fakti ). On an unspecified date, a six-storey building was constructed on that plot of land, including the bar-restaurant “Primavera”, located on the ground floor. 4 .     On an unspecified date the President of the then Court of Cassation made a request for supervisory review in respect of the decision of 22 July 1993. On 18 November 1994 the Court of Cassation decided to quash that decision on the ground that a thorough investigation had not been conducted by the lower court, and remitted the case for fresh examination. On 17 January 1995, following a request for interpretation, the then Court of Cassation ruled that its decision of 18 November 1994 had not had any effect on the outcome of the proceedings decided by way of the District Court decision of 5 May 1994 (see paragraph 7 below). 5.     It would appear that the rehearing proceedings were dismissed by the District Court on an unspecified date, following the applicant’s loss of interest in the case. 1. Proceedings concerning the restitution of property to the third parties (the Ks) 6.     On 1 April 1994 the Durrës Commission on Restitution and Compensation of Properties ( Komisioni i Kthimit dhe Kompensimit të Pronave – “the Commission”) recognised the Ks’ (third parties) inherited property title to a plot of land measuring 1,830 sq. m (“Commission decision no. 1”), including the right to first refusal on the premises of the bar-restaurant “Primavera”. 7 .     On an unspecified date the Ks requested the District Court to recognise their property title to the plot of land on which the “Primavera” had been built. On 5 May 1994 the District Court, relying on its decision of 22 July 1993 (see paragraph 3 above), dismissed their claim. It annulled Commission decision no. 1 and recognised the applicant’s and her siblings’ property rights over the plot of 520 sq. m. On an unspecified date the Ks appealed. 8.     On 16 September 1994 the Durrës Court of Appeal upheld the District Court’s decision recognising the applicant’s and her siblings’ title to the plot of 520 sq. m. However, it quashed the part of the District Court’s decision that had annulled Commission decision no. 1, in so far as the Commission had not been invited as a party to the proceedings. On an unspecified date the Ks appealed to the Court of Cassation. 9 .     On 22 November 1994 the Court of Cassation quashed both lower courts’ decisions. Deciding on the facts, it dismissed the Ks’ complaints in the light of their withdrawal from the case. The Commission decision of 1 April 1994 thus became enforceable. 2. Proceedings concerning the restitution of property to the applicant 10.     Interpreting the Court of Cassation decision of 22 November 1994 as having recognised the applicant and her siblings’ property title to the plot of land, on 2 February 1995 the Commission recognised the applicant’s and her siblings’ inherited property title to 520 sq. m (“Commission decision no.   2”), including the right to first refusal in respect of the premises of the “Primavera”. On 21 February 1995 the applicant’s siblings, by means of a contract of donation, donated their equal shares in the land to the applicant. 11.     On 7 February 1995 a contract of sale was concluded between a State-owned company, NTUS, the National Agency for Privatisation, (“the NAP”), and the applicant, whereby the latter acquired the premises of the “Primavera” for 1,607,310 Albanian leks (ALL). 12.     The applicant was also issued with a certificate of registration of property (no. 6085) by the Office for Registration of Immovable Property, dated 21 February 1995. 3. Proceedings concerning the validity of Commission decision no. 2 and the contract of sale 13.     On 18 September 1995 the Ks lodged a complaint with the District Court requesting the annulment of Commission decision no. 2. It appears from the file that the applicant was not a party to these proceedings. 14 .     On 16 October 1995 the District Court annulled Commission decision no. 2. Relying on the Court of Cassation decision of 22 November 1994 (see paragraph 9 above), it found that Commission decision no. 2 had been issued in breach of the law as the applicant’s property rights had been quashed. The District Court further noted that since the applicant had failed to pursue the application following the remittal of her case by virtue of the Court of Cassation decision of 18 November 1994 (see paragraph 4 above), it had dismissed the proceedings. This decision became final, no appeal having been filed against it. 15.     In the light of the invalidity of Commission decision no. 2, on 3   April 1996 the NAP and the Ks filed a complaint with the District Court against the contract of sale, alleging that it was null and void. 16.     On 2 October 1997 the Kavaja District Court annulled the contract of sale, relying on the same reasoning as in the decision of 16 October 1995 (see paragraph 14 above). It decided that the amount paid, indexed to take account of inflation, should be returned to the applicant. On 13 October 1997 the applicant appealed. 17.     On 20 May 1998 the Tirana Court of Appeal quashed the Kavaja District Court’s decision and remitted the case for re-examination by a different formation of that court, holding as follows: “In re-examining the case the District Court should take into account any overlapping of the plots of land allocated by the Commission’s decisions... The District Court should correctly identify the parties, summon the Commission and conduct a topographic study to look into and clarify the foregoing.” 18.     On 7 April 2000 the Durrës District Court declared Commission decision no. 2 null and void. It also declared void the contract of sale and ordered the NAP to reimburse the sum paid by the applicant, indexed to take account of inflation. On an unspecified date the applicant appealed. 19.     On 29 June 2000 the Durrës Court of Appeal (“the Court of Appeal”) quashed the District Court decision. It found that Commission decision no. 2 was still in force as it had not been challenged before the domestic courts. No reference was made to the District Court decision of 16   October 1995 (see paragraph 14 above). The proceedings initiated by the Ks were dismissed. On an unspecified date the Ks lodged an appeal with the Supreme Court. 20.     On 22 November 2001 the Supreme Court quashed the Court of Appeal’s decision and remitted the case for re-examination. It found that the Court of Appeal had failed to rule on all of the Ks’ complaints. 21.     On 7 October 2002 the Court of Appeal upheld the Durrës District Court’s decision of 7   April 2000. It found, inter alia , as follows: “The Court of Cassation by a decision ... in 1996 ... made an interpretation of the decision ... dated 22 November 1994. According to its interpretation, the plaintiffs’ [the Ks’] withdrawal resulted from the fact that they had become the owners of the plot of land as a result of the Commission decision of 1 April 1994 [Commission decision No. 1]. The Court of Cassation’s judgment of 22 November 1994 did not recognise the right of property of the defendant [i.e. the applicant] and, as such, it could not serve as a property title on the basis of which the Commission could act. The defendant argued that her property title was based on the District Court decision of 22 July 1993. However, this decision was quashed by the Court of Cassation decision of 18 November 1994.” 22.     On 11 November 2002 the applicant lodged an appeal with the Supreme Court. 23.     On 1 July 2004 the Supreme Court, by a majority, upheld the decision. It confirmed that the applicant’s right to property had not been recognised, finding that the Commission had not only committed procedural violations in awarding the property to the applicant, but had also misinterpreted the merits of the applicant’s case. The Supreme Court ordered that the sum paid by the applicant should be reimbursed in accordance with the terms of the decision of the Durrës District Court of 7 April 2000. On 28 January 2005 the applicant filed a constitutional complaint with the Constitutional Court. 24.     On 7 February 2005 the Constitutional Court declared the applicant’s complaint inadmissible, finding that it did not raise any breaches of the right to a fair hearing. Proceedings concerning the enforcement of the 2004 Supreme Court’s ruling 25.     On 24 October 2005 the NAP ordered that the amount of ALL   1,607,310 be returned to the applicant pursuant to the 2004 Supreme Court judgment. 26.     On 10 March 2011 the applicant informed the Court in writing that the judgment had been enforced on an unspecified date. No supporting documents were submitted by the applicant, despite the Registry’s request to do so in their letter of 18 February 2011. 4. Proceedings concerning the request for review before the Supreme Court 27.     On 11 April 2005 the applicant filed an application with the Supreme Court for review of its decision of 1 July 2004 in the light of new evidence and facts. She complained, inter alia , in the light of a letter from the Ministry of Territorial Adjustment and Tourism, that two of the three experts who had prepared the experts’ report had not been licensed by the authorities. 28.     On 11 November 2005 the Supreme Court rejected that application. It made reference to the previous court rulings, outlined the reasons for the applicant’s request for review and concluded that the request did not comply with Article 494 of the Code of Civil Procedure (see “Relevant domestic law” below). Judge N.K, who had also been in the majority which had ruled against the applicant in the Supreme Court’s decision of decision of 1 July 2004, was a member of the bench. 29.     On 6 March 2006 the applicant lodged a constitutional appeal. 30.     On an unspecified date the applicant renewed her request for review. 31.     On 24 March 2006 the Supreme Court rejected it as being substantially the same as the previous request. 32.     On 27 September 2006 the Constitutional Court declared the applicant’s complaint inadmissible, finding that the issues raised fell within the jurisdiction of the lower courts. 5. Additional information 33.     By a letter of 1 November 2007 the applicant informed the Registry that she had brought proceedings against the NAP for reimbursement of expenses incurred in the maintenance and renovation of the bar-restaurant “Primavera”. 34.     On 16 June 2006 and 20 December 2007 the District Court and the Court of Appeal, respectively, ruled in favour of the applicant. The parties have not provided copies of the courts’ decisions. However, an appeal before the Supreme Court appears to be currently pending. B.     Relevant domestic law 1. The Constitution 35.     The relevant parts of the Albanian Constitution read 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.” “Article 142 § 3 State bodies shall comply with judicial judgments.” 2. Code of Civil Procedure (“CCP”) 36.     Articles 494-502 of the CCP govern the review of court judgments. Article 494 provides that the review of a final decision may occur, inter alia , when: (a) new circumstances or new written evidence which are important to the case, which could not have been known to the party during the proceedings, are discovered; or (b) it is proved that witnesses’ statements or experts’ opinions on which the decision is based were false. 37.     Under Article 496 of the CCP a request for review is submitted within 30 days of the date on which the requesting party had knowledge of the ground for review and, in any case, not later than one year from the date on which the ground for review came into existence. Article 498 of the CCP states that an inadmissibility decision on the request for revision is taken by the Supreme Court without the parties being present. COMPLAINTS   38.     The applicant made a number of complaints under Article 6 § 1 of the Convention. In the first place, she complained that the proceedings concerning the validity of Commission decision no. 2 and the contract of sale were unfair in that the domestic courts had made a wrong assessment of the evidence. She further contended that the Supreme Court decision of 11 November 2005 lacked adequate reasons. Moreover, she complained about the lack of impartiality of the Supreme Court’s bench of 11 November 2005 owing to the participation of Judge N.K, who had previously rejected her appeal on 1 July 2004. 39.     On 14 February 2008, when the President of the Fourth Section gave notice of the application to the respondent Government, it was decided, prioprio motu , to also give notice of the complaint about the non-enforcement of the Supreme Court’s decision of 1 July 2004. 40.     The applicant complained that the unfairness of the proceedings concerning the validity of the contract of sale had given rise to a breach of her right to property as concerns the premises of the bar-restaurant “Primavera” under Article 1 of Protocol No. 1 to the Convention. She insisted on the restitution of the plot of land measuring 520 sq. m. THE LAW Article 6 § 1 complaints 1. As regards the alleged unfairness of the proceedings concerning the validity of Commission decision no. 2 and the contract of sale 41 .     Article 6 § 1 of the Convention, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 42.     The Court reiterates that under Article 35 § 1 of the Convention it examines a complaint if “all domestic remedies have been exhausted” and if it has been submitted “within a period of six months from the date on which the final decision was taken”. It is not open to the Court to set aside the application of the six-month rule even in the absence of a relevant objection from the Government (see Belaousof and Others v. Greece , no. 66296/01, § 38, 27 May 2004; Miroshnik v. Ukraine , no. 75804/01, § 55, 27 November 2008; and Toner v. the United Kingdom (dec.), no. 8195/08, 15 February 2011). 43.     In this connection, the Court reiterates that Article 35 § 1 of the Convention requires that the only remedies to be exhausted are those that are available and sufficient to afford redress in respect of the breaches alleged. However, an applicant is not obliged to have recourse to remedies which are inadequate or ineffective (see among many other authorities, Akdivar and Others v. Turkey , 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996-IV; Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V; and Demopoulos and Others v. Turkey (dec.), nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 70, ECHR 2010-...). Thus where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures about which he complains, or after the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003-I; and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009-...). The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule (see Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002; and Sapeyan v. Armenia , no. 35738/03, § 21, 13 January 2009). 44.     The Court recalls its extensive case-law to the effect that an application for retrial or reopening or similar extraordinary remedies cannot, as a general rule, be taken into account for the purposes of applying Article 35 § 1 of the Convention (see, for example, Denisov v. Russia (dec.), no. 33408/03, 6 May 2004; Williams v. the United Kingdom (dec.), no. 32567/06, 17 February 2009; and Laska and Lika v. Albania , nos. 12315/04 and 17605/04, §§ 50-51, 20 April 2010). Furthermore, remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicant cannot be considered as effective remedies within the meaning of Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), no. 47033/99, 2 June 1999; Gurepka v. Ukraine , no. 61406/00, § 60, 6 September 2005; and Tănase v. Moldova [GC], no. 7/08, § 122, ECHR 2010-...). Similarly, remedies which have no precise time-limits, thus creating uncertainty and rendering nugatory the six-month rule contained in Article 35 § 1 of the Convention, are not effective remedies within the meaning of Article 35 § 1 (see Denisov , cited above; Galstyan v. Armenia, no. 26986/03, § 39, 15 November 2007; Williams , cited above; and Tucka v. the United Kingdom (dec.), no. 34586/10, 18 January 2011). In particular, the Court observes that it has consistently rejected applications in which the applicants have submitted their complaints within six months from the decisions rejecting their requests for reopening of the proceedings on the ground that such decisions could not be considered “final decisions” for the purpose of Article 35 § 1 of the Convention (see, among other authorities, Kolu v. Finland (dec.), no. 56463/10, 3 May 2011; Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004-II; Riedl-Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002; and Babinsky v. Slovakia (dec.), no. 35833/97, 11 January 2000). 45.     The Court notes that the impugned proceedings ended on 7 February 2005. Subsequently, the applicant lodged two applications for review, which were finally rejected on 27 September 2006. It is clear from the terms of the relevant legislation, and in particular from the provisions of the CCP, that the examination and the outcome of the review of a final court decision is within the discretion of the Supreme Court. In the present case, the Supreme Court found that the applicant’s request did not comply with the grounds contained in Article 494 of the CCP. 46 .     The Court accordingly concludes that that the “final” decision in the present case was the Constitutional Court’s decision of 7 February 2005. However, the present application was lodged with the Court on 10 November 2006, more than six months from the date of the Constitutional Court’s decision. The applicant’s unsuccessful attempts to obtain a review of the final decision cannot bring the complaint within the six-month time-limit laid down in Article 35 § 1. It follows that this complaint has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 2. As regards the alleged unfairness of the review proceedings 47.     The Court reiterates that the Convention does not oblige States to allow individuals the opportunity of having their case re-opened once a judgment has become final. Moreover, Article 6 does not guarantee a right to re-open the proceedings which have been terminated by a final decision (see, amongst others, Kolu , cited above; Schelling v. Austria (no. 2) (dec.), no. 46128/07, 16 September 2010; Steck-Risch and Others v. Liechtenstein (dec.), no. 29061/08, 11 May 2010; Mumladze v. Georgia, no. 30097/03, § 35, 8 January 2008; compare and contrast San Leonard Band Club v. Malta , no. 77562/01, §§ 40-48, ECHR 2004 ‑ IX). Only the new proceedings, after the re-opening has been granted, can be regarded as concerning the determination of “civil rights and obligations” or of a “criminal charge” (see, for example, Alekseyenko v. Russia , no. 74266/01, § 55, 6 July 2009; Zasurtsev v. Russia , no. 67051/01, § 62, 27 April 2006; Vanyan v. Russia , no. 53203/99, § 56, 15 December 2005; and Kaisti v. Finland (dec.), no. 70313/01, 14 September 2004). 48.     In the instant case, the applicant’s requests for review were dismissed by the domestic courts. They did not therefore concern the determination of “civil rights and obligations” or of a “criminal charge” (see (see Rudan v. Croatia (dec.), no. 45943/99, 13 September 2001; and Erdemli v. Turkey (dec.), no. 33412/03, 5 February 2004). It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 3. As regards the non-enforcement of the Supreme Court’s decision of 1 July 2004 49.     The applicant did not complain about the non-enforcement of the Supreme Court’s decision of 1 July 2004. However, the Court decided of its own motion to give notice of this issue to the respondent Government and examine the complaint under Article 6 § 1 of the Convention. 50.     The Court notes that on 18 February 2011 the Registry asked the applicant to confirm whether the Supreme Court’s decision had been enforced. On 10 March 2011 the applicant informed the Court in writing that she had withdrawn the amount awarded on an unspecified date. No supporting documents were submitted. 51.     Having regard to the information in the foregoing paragraph, the Court finds that the Supreme Court’s decision of 1 July 2004 was enforced on an unspecified date. In the absence of any other claims by the applicant, the Court considers that this complaint has no arguable basis. It must therefore be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. B. Article 1 of Protocol No. 1 complaint 52.   The applicant complained, inter alia, that the unfairness of the proceedings concerning the validity of the contract of sale gave rise to a breach of Article 1 of Protocol No. 1. She insisted on the restitution of the plot of land measuring 520 sq. m. 53.     Article 1 of Protocol No. 1 reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 54.     Having regard to its findings in paragraphs 41–46 above, the Court finds that this complaint has been submitted out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Lawrence Early   Lech Garlicki   Registrar   President