Information Note on the Court’s case-law 214

January 2018

Sharxhi and Others v. Albania - 10613/16

Judgment 11.1.2018 [Section I]

Article 6

Administrative proceedings

Article 6-1

Access to court

Domestic authorities’ failure to comply with interim court order restraining demolition of residential property: violation

Article 13

Effective remedy

Domestic authorities’ failure to comply with interim court order restraining demolition of residential property: violation

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Demolition of residential property: violation

Facts – The applicants were owners of flats and shops in a residential and service building. On 3 November 2013, without prior notice, officials of the National Constructions and Urban Planning Inspectorate, supported by the police, surrounded the residence, co rdoned it off with yellow police tape and prevented the residents from entering their flats. The applicants lodged a claim with the District Court, which on 7 November 2013 issued an interim order restraining demolition. On 27 November 2013 the Council of Ministers issued a decision ordering the expropriation of the residence in the public interest and awarding compensation to the residents. The residence was demolished between 4 and 8 December 2013. The proceedings regarding the level of compensation were stayed in January 2015 by the Supreme Court.

Before the European Court the applicants complained that, as a result of the authorities’ disregard of an administrative court injunction, there had been a breach of Article 6 § 1. They also complained under Ar ticle 1 of Protocol No. 1 of an interference with the peaceful enjoyment of their possessions and under Article 13 of the Convention of the lack of an effective domestic remedy.

Law

Article 6 § 1 of the Convention: The execution of a judgment given by a court – including a judgment given in interim proceedings – was to be regarded as an integral part of the “trial” for the purposes of Article 6. The right of access to a court guarante ed under that Article would be rendered illusory if a Contracting State’s legal system allowed a final binding judicial decision or an interlocutory order made pending the outcome of a final decision to remain inoperative to the detriment of one party. Tha t principle was of even greater importance in the context of administrative proceedings concerning a dispute whose outcome was decisive for a litigant’s civil rights.

It was not in dispute that Article 6 § 1 was applicable to the interim proceedings. The interim order, directed to any official body, had been issued with a view to preventing any possible demolition of the applicants’ building and was to remain in place until a decision had been given on the merits of the case. Before the domestic courts cou ld decide on the merits of the case, the Council of Ministers decided that the residence should be expropriated in the public interest and the building had been demolished. Therefore, the enforcement of the interim order and the outcome of the main proceed ings became redundant. The domestic courts at all levels observed that the Albanian authorities had failed to comply with the interim order. The national authorities had failed to comply in practice with the interim order thus depriving Article 6 § 1 of an y useful effect.

Conclusion : violation (unanimously).

Article 13 in conjunction with Article 6 § 1 of the Convention: The applicants complained that the authorities had failed to enforce the interim measure, which had made it impossible for them to have th e merits of their case properly examined. The principle of the rule of law which Contracting States undertook to respect when they ratified the Convention encompassed the duty to ensure that the competent authorities enforced judicial remedies when granted . There was no effective remedy in Albania in respect of the non-enforcement of final decisions and length of proceedings at the material time. Other than making a declaratory finding of a breach where final court decisions were not enforced, the Constitut ional Court was unable to offer any means of redress to remedy the situation. In such circumstances, there had been no effective remedy available to the applicants in respect of the non-enforcement of the interim order.

Conclusion : violation (unanimously).

Article 1 of Protocol No. 1 ( seizure of the building ): The applicants had been refused access to their properties for a period of one month and thus had effectively lost complete control over their properties and the opportunity to use and enjoy them. The continuous denial of access with the purpose of demolishing the residence constituted an interference with the peaceful enjoyment of their possessions, which interference was not lawful under domestic law because the authorities had disregarded the interi m order issued by the domestic courts.

Conclusion : violation (unanimously).

Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 ( seizure of the building ): The applicants had not been awarded any compensation by the domestic courts concerning the seizure of the building. They had not therefore had any effective remedy at their disposal for the purposes of Article 13 of the Convention.

Conclusion : violation (unanimously).

Article 1 of Protocol No. 1 ( expropriation and demolition of t he property ): The demolition of the building had deprived the applicants of any future possibility of enjoying their properties. In those circumstances, there had been an interference with their property rights in the form of a “deprivation” within the mea ning of the second sentence of the first paragraph of Article 1 of Protocol No. 1. Legitimate concerns arose about the adequacy of a procedure whereby the authorities could decide, in such a short time, to expropriate the applicants’ properties in the publ ic interest and immediately proceed with the demolition. In their decisions the domestic courts had concluded that both the authorities’ failure to comply with the interim order and the demolition of the residence had been unlawful. The whole procedure on the applicants’ expropriation had been carried out hastily and was manifestly not in accordance with domestic law.

Conclusion : violation (unanimously).

Article 13 of the Convention in conjunction with Article 1 of Protocol No. 1 ( expropriation and demolit ion of the property ): The case regarding the level of compensation had been pending before the Supreme Court since 2014. In January 2015 the Supreme Court stayed the proceedings without giving any reasons. The applicants had still not been compensated. A d elay of four years in paying compensation to the applicants, who had lost their homes and belongings, could not be considered effective. The applicants had thus been denied an effective remedy for the alleged breach of their rights under Article 1 of Proto col No. 1.

Conclusion : violation (unanimously).

Article 41: EUR 7,800 each to the first and second applicants and 13,000 each to the remaining 17 applicants in respect of non-pecuniary damage; EUR 13,098,600 jointly to all applicants in respect of pecunia ry damage.

The Court also found violations of Article 8, as regards the applicants’ right to respect for their home on account of the seizure and surrounding of the building, and of Article 13 in conjunction with Article 8 on account of the lack of an effe ctive remedy in that regard.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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