European Court of Human Rights

 

 

THIRD SECTION

CASE OF HABILAJ v. ALBANIA

(Application no. 2480/10)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

15 September 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Habilaj v. Albania,

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

          Andreas Zünd, President,
          Darian Pavli,
          Mikhail Lobov, Judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 25 August 2022,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application against Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 18 February 2009.

2.  The applicant was represented by Mr A. Hajdari, a lawyer practising in Tirana.

3.  The Albanian Government (“the Government”) were given notice of the application.

THE FACTS

4.  The applicant’s details and information relevant to the application are set out in the appended table.

5.  The applicant complained of the delayed enforcement of domestic decisions. He also raised other complaints under the Convention.

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

6.  The applicant complained principally of the delayed enforcement of a domestic decision given in his favour. He relied on Article 6 § 1 of the Convention, which reads as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

7.  The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997‑II).

8.  In the leading cases of Qufaj Co. Sh.p.k. v. Albania, no. 54268/00, 18 November 2004 and Gjyli v. Albania, no. 32907/07, 29 September 2009, the Court already found a violation in respect of issues similar to those in the present case.

9.  In the present case the applicant complained that the decision of 28 September 2005 of the Tirana Court of Appeal ordering his inclusion on the list of creditors of Vefa Holding sh.p.k. company had been enforced by the authorities with a delay of seven years.

10.  The Court observes that the decision of 28 September 2005 was amenable to appeal before the Supreme Court. On 1 February 2008 the Supreme Court decided to uphold the decision of 28 September 2005. On 12 March 2009 the Constitutional Court terminated the proceedings before it as the applicant had withdrawn his constitutional complaint in which he had complained about a breach of his right to a fair hearing as a result of the non-enforcement of the decision of the Tirana Court of Appeal. The Court notes that at the time there was no effective remedy in Albanian law for delays in the execution of a final judgement (see Gjyli v. Albania, no. 32907/07, §§ 53-61, 29 September 2009) so by the time the applicant filed his application with the Court, there was an ongoing situation of non-enforcement, without a national remedy. The Court also notes that the applicant cannot be reproached for having made use of a remedy at a time when the Court had not yet ruled on its compatibility with Article 35 of the Convention (see, for a similar approach most recently, Timofeyev and Postupkin v. Russia, nos. 45431/14 and 22769/15, § 112,19 January 2021). Accordingly, the calculation of the duration of the non-enforcement will start from 12 March 2009. Accordingly, the calculation of the duration of the non-enforcement will start from 12 March 2009.

11.  The Court notes that according to the parties’ submissions the court decision was finally enforced on 24 August 2012, via the decision no. 24 ordering the inclusion of the applicant on the list of creditors of the Vefa sh.p.k company under the compulsory administration and with the applicant having been paid 4,711,353 Albanian leks (ALL) (approximately 38,713.2 euros (EUR)). The decision was thus enforced with a more than three years and five months’ delay.

12.  Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decision in the applicant’s favour.

13.  This complaint is therefore admissible and discloses a breach of Article 6 § 1 of the Convention.

II.     OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

14.  The applicant also complained under Article 13 of the Convention and Article 1 of Protocol No. 1 about the delayed enforcement of the domestic decision in question. Having regard to the facts of the case, the submissions of the parties, and its findings above, the Court considers that it has examined the main legal question raised in the present application. It thus finds that the applicant’s remaining complaints are admissible but that there is no need to give a separate ruling on them (compare Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

III.   Remaining COMPLAINTS

15.  The applicant also complained that after his lawyer had submitted to the Court an invoice payable by the applicant in order to substantiate his just satisfaction claims, the State Advocate’s Office had verified whether his lawyer had declared these costs also with the tax authorities. He alleged that that inquiry into the tax matters of his representative before the Court following the submission of the just satisfaction claims amounted to a hindrance to the exercise of his right of individual petition under Article 34 of the Convention.

16.  The Court reiterates at the outset that a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Cooke v. Austria, no. 25878/94, § 46, 8 February 2000, and Ergi v. Turkey, 28 July 1998, § 105, Reports of Judgments and Decisions 1998-IV).

17.  The Court observes that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints. The expression “any form of pressure” must be taken to cover not only direct coercion and flagrant acts of intimidation of applicants or their legal representatives but also other improper indirect acts or contacts designed to dissuade or discourage them from pursuing a Convention remedy (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 130, ECHR 1999-IV, with further references, and Kurt v. Turkey, 25 May 1998, § 160, Reports 1998-III).

18.  The Court observes that such a course of action taken by the authorities may have given rise to its interpretation by the applicant as an attempt to intimidate him via his representative.

19.  However, the issue of whether or not a disputed measure taken by authorities amounts to unacceptable practices from the standpoint of Article 34 must be determined in the light of the particular circumstances of the case (see, among other authorities, Kurt, cited above, § 160).

20.  In the present case, having regard, in particular, to the scope of the authorities’ actions and to the fact that neither the applicant nor his lawyer was in a particularly vulnerable position, the Court considers that the circumstances of the inquiry do not reach the threshold of a measure contrary to the Member States’ obligations under Article 34 of the Convention. In view of the foregoing, the Court finds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention and that the applicant’s complaint in this regard should therefore be dismissed.

21.  The applicant also complained under various Convention provisions, that he had not been granted compensation for the full sum he had invested in the Vefa sh.p.k company under the compulsory administration. The Court has examined that part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention given that they were raised outside the six-month time-limit.

22.  It follows that this part of the application must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

23. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

24.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Qufaj Co. Sh.p.k., cited above, §§ 46-68, and Gjyli, cited above, §§ 62-76), the Court considers it reasonable to award the sums indicated in the appended table.

25.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaints concerning the delayed enforcement of the domestic decision under Article 6 of the Convention, and the other complaints under well-established case-law of the Court (see the appended table below) admissible, and the complaints regarding the failure to pay full compensation inadmissible;

2.      Holds that this application discloses a breach of Article 6 § 1 of the Convention concerning the delayed enforcement of a domestic decision;

3.      Holds that there is no need to examine the other remaining complaints under the Court’s well-established case-law (see appended table);

4.      Holds that the respondent State did not fail to comply with its obligations under Article 34 of the Convention;

5.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 15 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

      Viktoriya Maradudina                                              Andreas Zünd
    Acting Deputy Registrar                                                President

 

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention

(non-enforcement or delayed enforcement of domestic decisions)