The ECHR found a violation of the requirements of Article 6, paragraph 1, Article 8, Article 13, read in conjunction with Article 8 of the Convention, Article 1 of Protocol No. 1, Article 13 of the Convention for the Protection of Human Rights and Fundame

Заголовок: The ECHR found a violation of the requirements of Article 6, paragraph 1, Article 8, Article 13, read in con Сведения: 2018-09-06 13:37:07

The ECHR judgment of 11 January 2018 in the case of Sharhhi and Others v. Albania (application No. 10613/16).

In 2016, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Albania.

In the case, the applicants successfully complained about the inability of the domestic authorities to enforce the court's decision on the application of interim measures in the form of suspension of the demolition of the property, and also that the authorities failed to enforce the court decision on interim measures of protection, which made it impossible to properly examine their case on the merits . The case involved violations of the requirements of article 6, paragraph 1, article 8, article 13, taken in conjunction with article 8 of the Convention, article 1 of Protocol No. 1 to the Convention, article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, examined in conjunction with Article 1 of the Protocol N 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

 

CIRCUMSTANCES OF THE CASE


The applicants were owners of apartments and shops in a residential building where non-residential premises were leased. On November 3, 2013, without prior notice, the building was surrounded by employees of the State Inspectorate for Urban Construction and Planning with the support of police officers who cordoned off the building with a yellow ribbon and prevented residents from entering their apartments. The applicants lodged a complaint with the district court, which on November 7, 2013 issued a decree on temporary interim measures in the form of suspension of the demolition of a residential property. On November 27, 2013, the Council of Ministers issued a decree to seize the building in favor of the state with payment of compensation to residents. From 4 to 8 December 2013 the building was demolished. The proceedings on the amount of compensation were suspended by the Supreme Court in January 2015.

The applicants complained to the Court that, as a result of the authorities' ignoring of the injunction by the respondent State, there had been a violation of Article 6 § 1 of the Convention. The applicants also appealed, invoking Article 1 of Protocol No. 1 to the Convention, interfering with their right to respect for property, and, referring to Article 13 of the Convention, to the lack of an effective domestic remedy.


ISSUES OF LAW


Article 13 of the Convention, examined in conjunction with Article 6 § 1 of the Convention. The applicants complained that the authorities failed to enforce the court decision on provisional interim measures, which made it impossible to properly examine their case on the merits. The principle of the rule of law, which the Contracting States undertook to comply with after the ratification of the Convention, implies the duty of the State to ensure that the competent authorities will ensure the application of an appropriate remedy. During the period relevant to the circumstances of the case, there were no effective remedies in Albania regarding the non-enforcement of the court decisions that came into force and the length of the trial. In the event that the enforceable judgments have not been enforced, the Constitutional Court could not provide any remedy to remedy the situation, except for the adoption of a declarative decision on the violation. In the circumstances, the applicants did not have an effective remedy in connection with the failure to comply with the court decision on interim measures of protection.

Concerning compliance with article 6, paragraph 1, of the Convention. Execution of the court decision, including the decision made in the framework of the security proceedings, should be considered as an integral part of the "court" for the purposes of Article 6 of the Convention. The right of access to a court guaranteed by the said article would be illusory if the legal system of a Contracting State allowed not to execute at the expense of one of the parties an enforceable and binding judgment or an interim ruling rendered before the final decision on the case was taken.

This principle is even more important in the context of administrative proceedings relating to the dispute, the outcome of which is decisive for the civil rights of the parties.

It was not disputed by the parties that Article 6 § 1 of the Convention was applicable to a secured judicial proceeding. A security order of the court, addressed to any state authority, was issued in order to prevent possible demolition of the building belonging to the applicants and should remain in force until a final decision on the case was made. Before the domestic courts could take a final decision on the case, the Council of Ministers decided that the building should have been seized in favor of the state and demolished. Accordingly, the execution of the decision on interim measures of security became unnecessary. The domestic courts at all levels noted that the Albanian authorities did not comply with the court's decision on provisional interim measures. The authorities of the respondent State in practice failed to comply with the court decision on provisional interim measures, thus depriving article 6, paragraph 1, of the Convention of any significant effect.

Concerning compliance with Article 1 of Protocol No. 1 to the Convention (seizure of the building). The applicants were denied access to their property for one month and, accordingly, did indeed lose full control over their property and the ability to use and dispose of it. The continued denial of access to the building and its subsequent demolition constituted an interference with the applicants' right to respect for their property, which was not legal under the laws of Albania, as the authorities ignored the court's decision on provisional interim measures.

Concerning compliance with Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 (seizure of the building). The domestic courts did not award the applicants compensation for the removal of the building, therefore, the applicants did not have an effective remedy for the purposes of Article 13 of the Convention.

Concerning compliance with Article 1 of Protocol No. 1 to the Convention (removal and demolition of the building). Demolition of the building deprived the applicants of any opportunity to use their property in the future. In such circumstances, there was an interference with the property rights of the applicants in the form of "deprivation" of property within the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention. In a natural way, there are doubts as to the proper nature of the procedure by which the authorities have been able, within such a short period of time, to decide to withdraw the applicants' property in favor of the state and immediately proceed with the demolition of this property. In their decisions, the domestic courts concluded that the authorities failed to comply with the court's decision on temporary interim measures and the demolition of the building was illegal. The entire procedure for seizing the applicants' property was carried out too quickly and with obvious violations of domestic law.

Concerning compliance with Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention (removal and demolition of the building). The case of the amount of compensation was considered by the Supreme Court since 2014. In January 2015, the Supreme Court suspended proceedings on the case without any explanation. The delay of four years with the payment of compensation to applicants who lost their homes and personal property could not be considered effective. Thus, the applicants were deprived of an effective remedy in connection with the alleged violation of their rights guaranteed by Article 1 of Protocol No. 1 to the Convention.


DECISION


The violation of the requirements of paragraph 1 of Article 6 of the Convention (unanimously) was committed.

The violation of the requirements of Article 13 of the Convention (unanimously) was committed in the case.

The case involved violation of the requirements of Article 1 of Protocol No. 1 to the Convention (seizure of the building) (unanimously adopted).

The case involved violation of the requirements of Article 13 of the Convention, considered in conjunction with Article 1 of Protocol No. 1 to the Convention (seizure of the building) (unanimously adopted).

In the case there was a violation of the requirements of Article 1 of Protocol No. 1 to the Convention (removal and demolition of the building) (unanimously adopted).

The case involved violation of the requirements of Article 13 of the Convention, considered in conjunction with Article 1 of Protocol No. 1 to the Convention (removal and demolition) (unanimously).


COMPENSATION


In application of Article 41 of the Convention, the Court awarded EUR 7,800 to the first applicant and the second applicant and EUR 13,000 to each of the remaining 17 applicants in respect of non-pecuniary damage. In addition, the European Court awarded all applicants jointly EUR 13,089,600 in respect of pecuniary damage.

The Court also found that there had been a violation of Article 8 of the Convention on the applicants' right to respect for their home in connection with the seizure and encirclement of the building and Article 13 of the Convention in conjunction with Article 8 of the Convention because of the lack of an effective remedy for the violation.

 

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