THIRD SECTION

DECISION

Application no. 1377/16 PRODHIM VESHJE No. 2 SH.A. against Albania

The European Court of Human Rights (Third Section), sitting on 26 September 2023 as a Committee composed of:

Georgios A. Serghides , President , Darian Pavli, Oddný Mjöll Arnardóttir , judges , and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 1377/16) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 December 2015 by Prodhim Veshje No. 2 SH.A., a company incorporated in Albania (“the applicant company”) which was represented by Mr B. Rusi, a lawyer practising in Tirana;

the decision to give notice to the Albanian Government (“the Government”), represented by their then Agent, Mrs A. Hicka and subsequently by Mr O. Moçka, General State Advocate, of the complaints under Article 6 § 1 of the Convention concerning the applicant company’s right of access to a court and the right to a reasoned decision, as well as a complaint under Article 1 of Protocol No. 1 to the Convention concerning the court’s decision ordering it to pay damages and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the alleged violation of the applicant company’s right to a fair trial and its right to peaceful enjoyment of its possessions.

2. In 2006, a private party, A.M. started a construction on a plot of land claimed by the applicant company. In 2007 the applicant company brought a civil action, seeking termination of this construction. On 4 December 2007 the Tirana District Court (the District Court) granted immediate injunction ( masa e sigurimit të padisë ), halting the construction. That injunction was secured by a bank guarantee of EUR 100,000 deposited by the applicant company. That decision was upheld by the Appeal Court and the Supreme Court. On 29 September 2008 the District Court dismissed the applicant company’s main claim and lifted the injunction. On 5 February 2010 the Appeal Court upheld that decision, and it became final.

3. On 19 February 2010, A.M. and “A” company lodged a civil action against the applicant company for the payment of damages resulting from the imposition of the injunction order and the suspension of construction works, which were requested by the applicant company.

4 . The lawyer, acting on behalf of the applicant company through a power of attorney, participated at hearings held on 28 July, 30 September, 26 October 2010, and 20 February 2012. At a hearing held on 28 July 2010, he asked the court for a copy of the lawsuit and the evidence presented by the plaintiff, which were handed to him at that hearing. On 26 October 2010, he asked that the proceedings be stayed, pending the outcome of the criminal proceedings instituted against A.M. upon the applicant company’s criminal complaint for alleged forgery of a document. The request was denied. At a request of the applicant company’s lawyer the District Court adjourned hearings scheduled for 4 and 27 April, 29 June, 15 July, 7 December 2011, and 4 May 2012. The court denied other requests for adjournment of the hearings scheduled for 20 May and 3 June 2011, and 8 May 2012 because the requests were not supported by the relevant evidence or did not rely on the grounds prescribed by the Code of Civil Procedure.

5 . At a hearing held on 20 February 2012, two experts in accounting and real estate, appointed by the court, were invited to give oral evidence. At a request by the applicant company’s lawyer the District Court adjourned that hearing so that he could consult the experts’ opinion, of which he received a copy at that hearing. At a hearing held on 13 March 2012 the court decided to continue without the presence of the applicant company’s lawyer since he was absent without providing a justification and no request for adjournment had been submitted.

6 . The applicant company’s administrator or its lawyer did not attend any further hearings before the District Court, even though notifications of these hearings had been sent by the District Court. The notifications to the applicant company were sent to the address provided in the lawsuit by the plaintiff. The applicant company used the same address itself when submitting its request that the proceedings be stayed (see paragraph 4 above). The notifications of hearings sent to the applicant company’s lawyer were either personally signed by him or by his replacements. The applicant company’s lawyer did not raise any objections with the District Court concerning his or his client’s addresses.

7. On 16 May 2012 the District Court accepted the claim in part and ordered the applicant company to pay EUR 861,672 in damages and interests; to transfer the bank guarantee to the plaintiff; as well as the payment of ALL 7,174,244 (approximately EUR 51,650 at the time) as payment done by the plaintiff to other parties as a consequence of the injunction measure.

8. The applicant company appealed that decision. In its appeal it indicated the same address to which the District Court send notifications for hearings. The Appeal Court notified all parties of its hearing by means of a public notification. On 18 April 2013 the Appeal Court, without the applicant company’s representative being present, upheld the District Court’s decision. The ensuing applicant company’s appeal on points of law, in which it again indicated the same address, was dismissed de plano by the Supreme Court on 24 July 2014.

9. On 16 May 2015 the applicant company lodged a constitutional complaint claiming the violation of its right to be heard by a court; lack of reasoning of the courts’ decisions; irregular participation of a judge in the Court of Appeal’s panel; and violation of Article 1 of Protocol 1.

On 16 July 2015 the Constitutional Court, sitting as a bench of three judges, declared the applicant company’s constitutional complaint inadmissible.

THE COURT’S ASSESSMENT

10. The applicant company argued that its right of access to court was violated because of the District Court’s failure to ensure the attendance of its administrator at all hearings held before that court and of its lawyer at some of the hearings. Consequently, it claimed that it was unable to present its objections to its opponent’s claim before the District Court and that the court failed to give it a proper opportunity to comment on the expert’s findings concerning the amount of damages claimed by its opponent. The applicant company also asserted that the notifications of the court’s hearings had been sent to two incorrect addresses.

11. It is not the Court’s task to indicate the preferred ways of communicating with litigants, the domestic courts being better placed to assess the situation in the light of practical circumstances (see Gankin and Others v. Russia, nos. 2430/06 , 1454/08 , 11670/10 and 12938/12 , § 35, 31 May 2016). Nonetheless, it remains the responsibility of the Contracting States to ensure that the domestic authorities have acted with the requisite diligence in apprising the litigants of the proceedings so that their right to fair trial is not jeopardised. That responsibility coexists with the duty on the applicants not to contribute to bringing about situations of which they complain before the Court (see Avotiņš v. Latvia [GC], no. 17502/07 , § 124, ECHR 2016).

12. In the case at issue, the District Court sent all notifications to the applicant company’s address that it itself used in its correspondence with the District Court, in its appeal and appeal on points of law. The District Court also notified of all hearings the applicant company’s lawyer. In the Court’s view, the District Court thus properly notified the applicant company and its chosen representative of hearings before it. The applicant company’s lawyer did indeed attend several hearings (see paragraph 5 above) and asked that other hearings be adjourned, and the District Court accepted several such requests (see paragraphs 5 and 6 above).

13. Only after the applicant company’s lawyer did not appear at the hearing held on 13 March 2012 without asking for its adjournment or providing any justification for his absence, the District Court decided to continue without the presence of the applicant company’s lawyer. After that, neither the applicant company’s administrator nor its lawyer attended any further hearings before the District Court, even though notifications of these hearings had been sent by the District Court. In the Court’s view these circumstances show that the applicant company’s representatives themselves brought about the situation of which they are now complaining before the Court. Further to this, the Court notes that the applicant company’s lawyer did not raise any objections as to the addresses to which the District Court sent notifications of hearings. Nor did the applicant company raise any objections concerning the conduct of its lawyer before the domestic courts or before the Court.

14. The applicant company’s claim that its administrator not attending any hearings, independently of its lawyer’s attendance, was in breach of its right to a fair trial, lacks support in any domestic legal provision. The applicant company chose to be represented by its lawyer and gave him a power of attorney that granted him the authority to act on its behalf. It is the usual practice in civil proceedings that attendance of parties is satisfied through representation by lawyers of their choice.

15. As to the applicant company’s complaint that it had no opportunity to make submissions on the expert’s opinion, the Court notes that the hearing of 12 February 2012 was adjourned at a request of the applicant company’s lawyer so that he could give his comments on the expert’s opinion. The Court considers that thus the requisite steps were taken to ensure that the applicant company had an opportunity to comment on the expert opinion.

16. The Court also notes that the applicant company made no complaints as to the manner in which it had been informed of a hearing before the Appeal Court and the Supreme Court.

17. Therefore, the Court concludes that there is no indication that the domestic courts violated the right of the applicant company to take part in the proceedings, to present its arguments or to challenge the conclusions of the expert opinions. The authorities were diligent in informing the applicant company of the proceedings, and the latter could have been expected to take due care to receive mail at its declared address (see, for a similar situation, Immoterra International Denia, s.l. v. Spain [Committee], no. 60484/16, § 34, 26 May 2020, with further references). The applicant company itself bears responsibility for the situation it is complaining about to the Court.

18. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

19. The applicant company lodged an additional complaint under Article 6 § 1 of the Convention claiming that the domestic courts failed to adequately reason their decisions, especially concerning the way the damages were calculated.

20. As to this complaint, the Court agrees with the Government that the domestic courts have adequately reasoned their decisions, addressing the issues raised by the parties. The factual and legal reasons for the District and Appeal Courts decisions accepting the claim were set out at length. Moreover, the decision of the Supreme Court to reject de plano the applicant company’s appeal on points of law without giving extended reasons does not amount to a violation of Article 6 § 1 (see Marini v. Albania , no. 3738/02, § 106, 18 December 2007). Therefore, the applicant company’s complaint about alleged breach of its right to a reasoned decision is manifestly ill-founded.

21. The applicant company also raised a complaint under Article 1 of Protocol No.1, claiming a breach of its right to a peaceful enjoyment of possession, because the court-ordered damages imposed an excessive burden on it. The Court notes that in the present case the applicant company complained mainly of the manner in which the national courts interpreted and applied domestic law in proceedings between two private parties. Given the above assessment under Article 6 § 1 of the Convention, the Court reiterates that its jurisdiction to verify that domestic law has been correctly interpreted and applied is limited and that it is not its function to take the place of national courts, its role being rather to ensure that the decisions of those courts are not flawed by arbitrariness or otherwise manifestly unreasonable ( see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007-I).

22. The Court finds no basis on which to conclude that the decisions of the domestic courts were affected by any element of arbitrariness or that they were otherwise manifestly unreasonable.

23. In the light of the foregoing, the Court therefore concludes that the domestic courts’ judgments in the instant case did not constitute interference with the applicant company’s right to the peaceful enjoyment of its possessions.

24. It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 October 2023.

Olga Chernishova Georgios A. Serghides Deputy Registrar President