THIRD SECTION

DECISION

Application no. 56080/19 2001 SH.P.K. against Albania

The European Court of Human Rights (Third Section), sitting on 30 May 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. 56080/19) 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 18 October 2019 by an Albanian company, “2001” sh.p.k., established in 2006 and having its headquarters in Lezha (“the applicant company”) which was represented by Mr P. Ndreca, a lawyer practising in Tirana;

the decision to give notice of the application to the Albanian Government (“the Government”), represented by their then Agent, Ms B. Lilo, and subsequently by Mr O. Moçka, General State Advocate;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the right of access to court and length of civil proceedings, as well as the question of exhaustion of domestic remedies, namely by lodging complaints before the Supreme Court and the Constitutional Court, in a context where those courts were understaffed with judges for a given period of time.

2. On 2 April 2009 the applicant company lodged an action for damages in the amount of 169,895,010 Albanian leks (approximately 1,300,000 euros (EUR) at the time) against a private party before the Tirana District Court.

3. On an unspecified date in 2012, the applicant company relied on its difficult financial situation to request from the court an exemption from the obligation to pay the court fee which, under domestic law, amounted to one percent of the amount claimed. The court rejected that request and ordered the applicant company to pay the relevant court fee.

4. On 16 May 2013 the Tirana District Court noted that the applicant company had not paid the court fee and discontinued the examination of the action. The applicant company lodged an appeal against that decision, arguing that it fulfilled the conditions to be exempted from the obligation to pay the court fee and that its right to a court could not be interfered with by way of the secondary legislation that provided for the obligation to pay the court fee.

5. On 20 November 2013 the Tirana Court of Appeal upheld the first instance court’s decision. It found that the obligation to pay the court fee was provided by law and the discontinuation of the proceedings by the first ‑ instance court had been justified. On 25 November 2013 the applicant company lodged a cassation appeal with the Supreme Court.

6. On 18 October 2019 the applicant company lodged with the Court the present application, which was subsequently communicated to the Government on 10 May 2021.

7 . On 14 July 2021 the Supreme Court rejected as inadmissible the applicant company’s cassation appeal.

8. On 28 February 2022 the applicant company submitted its final observations before the Court, including claims for just satisfaction.

9. Section 31 § 2 of the Judiciary Act (Law no. 98/2016 “On the Organisation of the Judiciary”) provides that, as a rule, the civil bench of the Supreme Court examines cassation appeals in benches of three judges.

10 . Under Article 399/6 of the Code of Civil Procedure (“CCP”) when a case is pending before a bench of the Supreme Court, complaints regarding the length of proceedings in its respect are to be heard by a different bench of the Supreme Court (see Bara and Kola v. Albania , nos. 43391/18 and 17766/19, § 37, 12 October 2021).

11 . Following numerous dismissals and resignations of judges from office, from 22 May 2019 to 18 March 2020 the Supreme Court lacked the statutory quorum of three judges to examine any actions before it. It regained the minimum quorum of judges on the last-mentioned date and additional judges were appointed in the following months.

12 . As regards the Constitutional Court, according to the official data, between 16 July 2018 and 14 November 2019 the court lacked the statutory quorum of three judges to examine any appeals before it. It regained the minimum quorum of judges on the last-mentioned date and additional judges were appointed in the following months.

THE COURT’S ASSESSMENT

13. The applicant company complained under Article 6 § 1 of the Convention that the domestic courts’ refusal to exempt it from the court fee and consider the merits of its action amounted to a violation of its right of access to court. Under the same provision, it also complained of the unreasonable length of the proceedings. Furthermore, relying on Article 13 of the Convention the applicant company complained that it had no effective domestic remedy in respect of its complaints.

14. The Government submitted that the applicant company had not exhausted domestic remedies. The applicant company contested that assertion, arguing that at the time when it had lodged its application with the Court there were no effective domestic remedies to exhaust.

15. The general principles concerning the exhaustion of domestic remedies and the principle of subsidiarity have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). With particular regard to Albania, following the amendments of 12 August 2016 concerning the jurisdiction of the Constitutional Court, in principle, a constitutional appeal became an effective remedy to be exhausted for all Convention complaints (see Fullani v. Albania (dec.), no. 4586/18, § 79, 20 September 2022). In addition, in respect of complaints about the length of proceedings, the new remedy introduced on 5 November 2017 should in principle be exhausted before bringing a complaint to the Court (see Bara and Kola v. Albania , nos. 43391/18 and 17766/19, § 119, 12 October 2021).

16. The Court notes that on 18 October 2019 when the applicant company lodged the present application with the Court, the Supreme Court and the Constitutional Court were indeed prevented from ruling immediately on its complaint regarding its right of access to court which is now before the Court. However, it is not disputed that the situation was a temporary one which the domestic authorities were trying to address and that the higher courts were accepting appeals filed with them in the ordinary fashion. Neither is it disputed between the parties that on 14 July 2021, when the Supreme Court handed down its decision on the applicant company’s cassation appeal (see paragraph 7 above), the Constitutional Court was operational. Indeed, at that time the Constitutional Court had been operational for almost twenty-one months, since 14 November 2019 when it had regained the necessary quorum to rule on some appeals before it (see paragraph 12 above). Accordingly, although the practical possibility of having a constitutional appeal heard became available only after the date of lodging of its application, the applicant company was nevertheless required to exhaust that remedy in connection with its access to court complaint.

17 . In its latest submissions of 28 February 2022 before the Court, the applicant company did not clarify whether it had lodged a constitutional appeal against the Supreme Court’s decision. If it has lodged such a constitutional appeal, there is no indication that the Constitutional Court has entered a judgment on it yet. Therefore, this complaint before the Court is in any event premature (see in the same sense, Gjinarari v. Albania (dec.) [Committee], no. 52610/19, §§ 14 and 20, 22 November 2022). It remains open to the applicant company to resubmit the complaint with the Court after the exhaustion of domestic remedies.

18. As regards the alleged violation of the “reasonable time” requirement under Article 6 § 1 of the Convention, since 5 November 2017 the Albanian legal system has provided for a specific remedy in connection with this complaint which consists of a compensatory and/or acceleratory action under Article 399/1 et. seq. of the CCP (see Bara and Kola , cited above, §§ 37 and 119).

19. Between the last-mentioned date and 22 May 2019, when the Supreme Court temporarily lost the necessary quorum to rule on any action (see paragraphs 10 and 11 above), the applicant company’s case was pending before the Supreme Court. Therefore, it was open to the applicant company to lodge an action and obtain a ruling by the Supreme Court under Article 399/1 et. seq. of the CCP. Indeed, the court received and ruled on similar actions during that period (see Bara and Kola , cited above, §§ 39-43). However, the applicant company did not use that possibility to raise its complaint about the length of proceedings before the Supreme Court.

20. Between 22 May 2019 and 18 March 2020 the Supreme Court lacked the quorum to examine a possible action under Article 399/1 et. seq. of the CCP, which understandably may have created some reluctance for the applicant company to lodge such action with that court. However, once again it is not disputed before the Court that the lack of quorum was a temporary situation and therefore any actions lodged with the court during that period would be examined as soon as the Supreme Court regained the necessary quorum. Indeed, the Supreme Court regained the necessary quorum on 18 March 2020 (see paragraph 11 above) on which date there was no action pending before it lodged by the applicant company under Article 399/1 et. seq. of the CCP.

21. Lastly, there was nothing to prevent the applicant company from lodging such action with that court between the last-mentioned date and 24 July 2021 when the Supreme Court rejected the cassation appeal regarding the merits of the dispute before it (see paragraph 7 above and Bara and Kola , cited above, § 15, indicating that during that period the Supreme Court ruled on actions under Article 399/1 et. seq. of the CCP lodged by other parties).

22 . Accordingly, making an overall assessment of the specific circumstances of the present case and despite any reluctance created by the Supreme Court’s lack of sufficient judges over a given period, the Court considers that the applicant company was required nevertheless to give that court the opportunity to rule on its complaint about the alleged length of proceedings under Article 399/1 et. seq. of the CCP. Having failed to do so, the complaint is inadmissible for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

23. The applicant company had the possibility to submit its complaints before the domestic authorities (see paragraphs 17 and 22 above). Its complaint under Article 13, in conjunction with Article 6, of the Convention that it had no effective remedy to address its complaints is therefore manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 22 June 2023.

Olga Chernishova Georgios A. Serghides Deputy Registrar President