AS TO THE ADMISSIBILITY OF
Application no. 26937/04
by Nikolaus and Jurgen TRESKA
against Albania and Italy
The European Court of Human Rights (Third Section), sitting on 29 June 2006 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr K. Traja,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 4 July 2000,
Having regard to the factual information submitted by the Governments at the request of the Judge Rapporteur pursuant to Rule 49 § 2 (a) of the Rules of Court and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Nikolaus and Jurgen Treska, are Albanian nationals who were born in 1934 and 1941 respectively and live in Durrës. They were represented before the Court by Mr M. Lana, a lawyer practising in Rome.
A. The circumstances of the case
The facts of the case, as submitted by the applicants and the Governments of Italy and Albania pursuant to Rule 49 § 2 (a) of the Rules of Court, may be summarised as follows.
1. The applicants' submissions
(a) Background to the case
In 1950 the applicants' father's villa and an adjacent plot of land were confiscated without compensation by the regime. The State subsequently built an annex to the villa.
On an unspecified date the Italian Government informed the Albanian Government of their intention to purchase the premises of the Italian Mission in Albania. Accordingly, they requested the Albanian Government to put at their disposal different proposals for the purchase of premises.
On 1 July 1991 the Italian Embassy in Albania entered into an agreement to purchase two buildings. One of the buildings, designated for use as the private residence of the head of the Mission, was the villa confiscated from the applicants' father.
On 5 August 1991 the applicants informed the Italian Ambassador in Tirana about their property claims to the villa, in view of the fact that it had been illegally confiscated from their father.
The transaction was concluded through an inter-State agreement authenticated by note verbale exchanges between the two governments.
Pursuant to the relevant provisions of Albanian law, as they stood at the material time, the land was inalienable; consequently the title to the buildings alone was transferred by the Albanian Government to the Italian Government.
The relevant property title was not entered in the Tirana Property Register.
(b) Judicial proceedings relating to restitution of property
On an unspecified date the applicants brought civil proceedings in the Tirana District Court claiming their title to the unlawfully confiscated property.
On 9 September 1992 the Tirana District Court allocated to the applicants their father's villa and ordered the Ministry of Foreign Affairs to make it possible for the applicants to enter into possession of that property. As the Ministry did not lodge an appeal, the decision became final.
(c) Administrative proceedings relating to restitution of property
Pursuant to the Property Restitution and Compensation Act (“the Property Act”), the applicants lodged an application with the Tirana Property Restitution and Compensation Commission (Komisioni i Kthimit dhe Kompensimit të Pronave), claiming their title to their father's property.
On 17 December 1994 the Commission, confirming the unlawfulness of the confiscation of the property, allocated to them the villa and the adjacent plot of land measuring 2,573 sq. m.
Moreover, the court also allocated to the applicants the annex to the villa as, pursuant to section 13 of the Property Act, the outlay by the State in respect of structural changes and annexes to the original building amounted to less than 20% of the property's original value.
In so far as it was impossible for the applicants to have the whole original plot of land returned to them, the Commission held that the State had an obligation to pay them compensation under the Property Act for a plot of land measuring 290 sq. m. and it ordered the restitution of the original plot of land measuring 2,283 sq. m.
Lastly, the Commission ordered that the applicants' title to the properties be entered in the Tirana Property Register.
The applicants were also provided with a certificate of registration of property issued by the Registry Office, registration no. 5401, dated 20 December 1994.
In reply to the applicants' requests for recovery of their property, on 20 January 1995 the Italian Ambassador to Albania informed them that their property claims to the Italian Embassy's premises had to be settled with the Albanian authorities.
On an unspecified date the applicants instituted proceedings against the Italian Embassy in Albania, before the Tirana District Court, in order to recover possession of their property.
On 31 October 2000 the Tirana District Court held that it did not have jurisdiction to deal with the case.
(d) Judicial proceedings relating to the plot of land measuring 2,283 sq. m
(i) Proceedings before the Albanian court
On an unspecified date the applicants brought proceedings in the Tirana District Court seeking damages from the Italian Embassy in Tirana for its occupation of the plot of land measuring 2,283 sq. m.
The proceedings were adjourned several times by the District Court because of the absence of the representative of the Italian Embassy in Tirana.
On 24 April 1997 the Tirana District Court, in the absence of the Italian Embassy's representative, ordered the Embassy to pay the applicants a monthly rental fee, amounting to 3,424 United States dollars, for use of the plot of land measuring 2,283 sq. m. The decision became final and binding on 2 June 1997.
On 10 June 1997 the Tirana District Court, in enforcement proceedings, issued a writ for the enforcement of the Tirana District Court's judgment of 24 April 1997.
On 29 May 1998 and 8 November 1999, following the failure of the Italian Embassy in Albania to comply with the District Court's judgment of 24 April 1997 and invoking the inactivity of the Albanian authorities in enforcing a final decision, the applicants lodged two appeals with the Constitutional Court.
On 27 October 1998 the Constitutional Court dismissed the first appeal on the ground that the applicants had not exhausted all the possible means of recourse available to them in order to challenge the inactivity of the Bailiffs' Office.
On 10 March 2000 the Constitutional Court dismissed the applicants' second appeal, the reason being that the immunity of the Italian Embassy and the inviolability of its premises gave rise to a circumstance where the District Court's decision could not be enforced in practice.
(ii) Proceedings before the Italian court
On 18 June 2003, with a view to having the Tirana District Court judgment of 24 April 1997 validated by the Italian courts and enforced, the applicants applied to the Rome Court of Appeal for a writ of enforcement (delibazione).
On 22 December 2004, in a judgment served on the applicant on 24 January 2005, the Rome Court of Appeal rejected the applicants' request, as the proceedings before the Tirana District Court that led to the judgment of 24 April 1997 had been held in breach of the principle of equality of arms, which was an essential requirement for the recognition of a foreign judgment in Italy. According to the court, by sending confused and short-term notifications of hearings, the Albanian court had denied the Italian Embassy in Albania the opportunity to present the case effectively and to be able to enjoy the benefit of an equality of arms.
The applicants, anticipating an unsuccessful outcome, did not appeal against the Rome Court of Appeal decision of 22 December 2004.
2. The Italian Government's submissions
Following a request for factual information under Rule 49 § 2 (a) of the Rules of Court, the Italian Government, on 7 April 2005, having regard to the fact that the premises of the Italian Embassy in Albania had been legally purchased, contested the applicants' allegations of possession sine titulo.
They maintained that the lawfulness of the property title to the premises of the Italian Embassy in Albania stemmed from a valid international agreement between the two countries.
Furthermore, they stated that the Albanian court judgment, which had decided on the Italian Embassy's obligation to pay the applicants a rental fee for use of their property, had no binding effect in Italy; in fact the Rome District Court had dismissed the applicants' application for the validation of the above-mentioned judgment in Italy.
3. The Albanian Government's submissions
Following a request for factual information under Rule 49 § 2 (a) of the Rules of Court, the Albanian Government stated on 6 April 2005 that in 1991, following a request by the Italian Embassy in Albania, the Albanian Government had put at its disposal three State-owned premises. The Italian Embassy in Albania had arranged to purchase two buildings, one of which had been the former property of the applicants' father. The agreement had been validated by note verbale on 1 July 1991.
On 5 November 1991, by note verbale no. 2183, the Albanian Ministry of Foreign Affairs transmitted to the Italian Embassy in Albania the topographic maps of the properties purchased and confirmed the legitimacy of the ownership of the properties.
According to the Government, on 2 March 1994, by decision no. 108, the Albanian Council of Ministers had authorised the Ministry of Foreign Affairs to use the income from the transaction (a lump sum of approximately 1,936,713.37 euros) for the purchase of the premises of the Albanian Embassy in Rome.
B. Relevant international and domestic law
1. Relevant international law
(a) Vienna Convention on Diplomatic Relations 1961 (entered into force in respect of Albania on 8 February 1998)
“For the purpose of the present Convention, the following expressions shall have the meanings hereunder assigned to them: (...) (i) the 'premises of the mission' are the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission.”
“1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.”
(b) United Nations Convention on Jurisdictional Immunities of States and Their Property (General Assembly Resolution 59/38 of 2 December 2004)
In accordance with its Articles 28 and 33, the Convention was opened for signature from 17 January 2005 and will remain open for signature until 17 January 2007. Neither Albania nor Italy have signed it. In its relevant parts the Convention reads as follows:
Article 5: State immunity
“A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention.”
Article 6: Modalities for giving effect to State immunity
“1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected.
2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State: (a) is named as a party to that proceeding; or (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State.”
Article 13: Ownership, possession and use of property
“Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to the determination of: (a) any right or interest of the State in, or its possession or use of, or any obligation of the State arising out of its interest in, or its possession or use of, immovable property situated in the State of the forum; (b) any right or interest of the State in movable or immovable property arising by way of succession, gift or bona vacantia; or (c) any right or interest of the State in the administration of property, such as trust property, the estate of a bankrupt or the property of a company in the event of its winding up.”
Article 19: State immunity from post-judgment measures of constraint
“No post-judgment measures of constraint, such as attachment, arrest or execution, against property of a State may be taken in connection with a proceeding before a court of another State unless and except to the extent that: (a) the State has expressly consented to the taking of such measures as indicated: (i) by international agreement; (ii) by an arbitration agreement or in a written contract; or (iii) by a declaration before the court or by a written communication after a dispute between the parties has arisen; or (b) the State has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding; or (c) it has been established that the property is specifically in use or intended for use by the State for other than government non-commercial purposes and is in the territory of the State of the forum, provided that post-judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed.”
2. Relevant Albanian domestic law
Article 42 § 2
“In the protection of his constitutional and legal rights, freedoms and interests, and in defending a criminal charge, everyone is entitled to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”
“(1) Any international agreement that has been ratified constitutes part of the domestic legal system after it is published in the Official Gazette of the Republic of Albania. It is implemented directly, except in cases where it is not self-executing and its implementation requires enactment of a law. The amending, supplementing and repealing of laws approved by the majority of all members of the Assembly, with the purpose of ratifying an international agreement, require the same majority. (2) An international agreement that has been ratified prevails over national laws that are incompatible with it. (3) In case of conflict, the norms issued by an international organisation prevail over the national laws if the agreement ratified by the Republic of Albania for its participation in the organisation expressly contemplates their direct applicability.”
“The Constitutional Court shall determine: ... (f) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”
Article 142 § 3
“State bodies shall comply with judicial decisions.”
(b) Property Restitution and Compensation Act (Law no. 7698 of 15 April 1993, as amended by Law no. 8084 of 1996 and abrogated by Law no. 9235 dated 29 July 2004)
The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) has undergone several amendments over the past ten years.
The new Property Act enacted in 2004 provides for two forms of restitution of property, namely the return, under certain circumstances, of the original property and compensation in the event of impossibility for the authorities to return the original property. The Act provides for five forms of compensation: (a) property of the same kind; (b) property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the privatisation process, (e) a sum of money (section 11).
The Property Act of 1993 (Law no. 7698 of 15 April 1993, as amended by Law no. 8084 of 1996), as in force at the time, in its relevant parts reads as follows:
“Former owners and their legal heirs have the right of ownership. A former owner of property shall have the right either to restitution of the original land or to compensation in kind if one of four conditions is met: (1) the land formerly owned was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) the land is not subject to Law no. 7501 of 19 July 1991; (3) the land is currently State-owned; or (4) the land has now been designated as being suitable for construction and lies within the boundaries of a town or city. The extent of restitution or compensation in kind shall not exceed 10,000 square metres in accordance with Article 1 § 4 of Decree no. 1359 of 5 February 1996, as amended by Law no. 8084 of March 7 1996.”
“Former owners shall be entitled to restitution of their former buildings without having to repay any outlay by the Government or other owners for structural changes, annexes, or floor additions to former private buildings where such outlay does not exceed 20% of the building's value.
Former owners shall be entitled to restitution of their former buildings once they have repaid more than 20% of the value of the outlay, where such outlay amounts to between twenty percent 20% and 50% of the building's value. The value of the outlay shall be calculated on the basis of construction prices at the time of the building's restitution. A building shall remain in co-ownership where the value of such outlay exceeds 50% of the building's value. ... The courts shall have authority to resolve disputes between parties.”
“When building land or agricultural land that has become building land is occupied by a permanent structure, compensation will be provided to the former owner within the limits of expropriation in one of the following forms: (a) state bonds of an equivalent value and the right of pre-emption of the holders to be exercised in the process of the privatisation of state enterprises, and in other activities funded by loans; (b) an equivalent plot or building land near to land designated as an urban area in the general development plans; (c) an equivalent plot of land designated as a tourist area in the general development plans.
The remaining portion for items (b) and (c) will be subject to other methods of compensation established under this Law.”
3. Relevant Italian domestic law
Section 64 of Law no. 218 of 31 May 1995 (Reform of the Italian system of International Private Law) provides that a foreign court's judgment shall be recognised in Italy without formal proceedings if it complies with the following requirements:
“(a) the judgment had been delivered by the competent court; (b) the other party had been informed promptly of the civil claim in accordance with the domestic laws of the State where the proceedings had been held and the guarantee of defence rights had not been breached; (c) the parties to the proceedings had been duly notified of the hearings or formally declared in absentia pursuant to the laws of the State in which the proceedings took place; (d) the judgment had become final according to the laws of the State in which it had been issued; (e) it did not contain provisions which ran counter to a final decision delivered by an Italian judge; (f) proceedings are not in progress in Italy in respect of the same act and between the same parties; (g) the judgment did not contain provisions which ran counter to the principles of the rule of law as applied by the Italian State;
1. Relying on Article 6 § 1 and 13 of the Convention the applicants complained about a violation of their right of access to a court in so far as the Italian court had rejected their request for a writ of enforcement of the Albanian court's decision.
2. The applicants complained under Article 6 § 1 in conjunction with Article 13 about the failure of the Albanian authorities to execute the court decisions and to enable them to recover possession of the property allocated to them.
3. The applicants argued that by possessing sine titulo their property (plot of land and the additional building) and invoking immunity before the Albanian courts, the Italian authorities had infringed their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1.
4. Lastly, the applicants argued that by selling their property the Albanian authorities had de facto expropriated it without compensation and had thus breached Article 1 of Protocol No. 1 to the Convention. They further asserted that the inability to obtain the enforcement of the decisions in their favour had amounted to a violation of their property rights under Article 1 of Protocol No. 1.
The applicants submitted complaints against both Italy and Albania under Article 6 § 1 in conjunction with 13 of the Convention and Article 1 of Protocol No. 1.
Article 6 § 1 provides in relevant part as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 13 provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
(a) Complaints under Article 6 § 1 and Article 13 of the Convention
(i) The applicants' submissions
Having regard to the outcome of the Rome Court of Appeal's decision, the applicants claimed that the facts of the case disclosed a violation of their right to have access to a court, as guaranteed by Article 6 of the Convention. They maintained that the Rome Court of Appeal had erroneously interpreted the claim for immunity made by the Italian Ambassador to Albania in the Albanian court as a hindrance to the effective submission of the case before the Albanian court and to the enjoyment of an equality of arms. Lastly, they contended that they had no effective domestic remedy in respect of the alleged violation (Article 13 of the Convention).
(ii) The Court's assessment
At the outset, the Court reiterates that it is not its task to substitute itself for the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Edificaciones March Gallego S.A. v. Spain, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 290, § 33). The Court's role is confined to ascertaining whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair (see, mutatis mutandis, Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, § 34).
Moreover, Article 35 § 1 requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, and the Akdıvar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions, 1996-IV, p. 1210, §§ 65-67). It is also established that a mere doubt as to the prospect of success is not sufficient to exempt an applicant from submitting a complaint to the competent authority (see the Whiteside v. the United Kingdom decision of 7 March 1994, application no. 20357/92, DR 76, p. 80).
In the light of the foregoing, the Court considers that the applicants were required by Article 35 § 1 of the Convention to lodge the above-mentioned complaint with the Italian Court of Cassation in order to obtain redress for the breaches alleged. Furthermore, it finds no exceptional circumstances capable of exempting them from the obligation to exhaust the above-mentioned domestic remedy.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
In view of its findings on the applicants' complaint under Article 6 § 1 of the Convention, the Court considers that the applicants did not substantiate their arguments under Article 13. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) Complaint under Article 1 of Protocol No.1
(i) The applicants' submissions
The applicants argued that the Italian Government are responsible because they knew or should have known that the premises purchased from the Albanian Government were properties confiscated without compensation. Moreover, they were aware that in 1991 a legislative framework for property restitution and compensation to former owners was in progress and yet they claimed immunity when they could have waived it.
Hence, by purchasing their property, Italy, which at that time had ratified the Convention and the Additional Protocol, had violated their property rights in breach of the responsibilities assumed under the Convention.
In the applicants' submission the Contracting States' responsibility continues even if they assume other international obligations after the entry into force of the Convention or its Protocols. It would be incompatible with the object and purpose of the Convention if the Contracting States, by assuming such obligations, were automatically absolved from their responsibility under the Convention (see Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, §§ 153 and 154, ECHR 2005).
In this connection, it is the Court's task to verify whether the measures undertaken by the State to comply with international obligations were compatible with the Convention or its Protocols (see Matthews v. the United Kingdom [GC], no. 24833/94, ECHR 1999-I; Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI; and Slivenko v. Latvia [GC], no. 48321/99, § 120, ECHR 2003-X).
Moreover, the applicants argued that by possessing their property (plot of land measuring 2,283 sq. m and the additional building annexed to the villa, which were not object of the bilateral agreement entered into between Albania and Italy in 1991) sine titulo, the Italian authorities had infringed their right to the peaceful enjoyment of their possessions, as guaranteed by Article 1 of Protocol No. 1.
Lastly, they complained that by invoking immunity the Italian Embassy had denied them the possibility of recovering their property and/or of benefiting from it, therefore in evident beach of Article 1 of Protocol No. 1.
(ii) The Court's assessment
The Court must first determine whether the facts complained of by the applicants are such as to engage the responsibility of Italy under the Convention. As it has consistently held, the responsibility of a State is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of a breach of Article 1, by which “[t]he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention” (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 57, §§ 25-26).
The Court must therefore determine whether the applicants were “within the jurisdiction” of Italy within the meaning of that provision. In other words, it must be established whether, despite the fact that the proceedings in issue did not take place on that State's soil, Italy may still be held responsible for their outcome and for the alleged impossibility of enforcing the Albanian authorities' decisions in the applicants' favour.
The Court reiterates that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. The case-law of the Court shows that its recognition of the exercise of extraterritorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercised all or some of the public powers normally to be exercised by that government (see Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, p. 29, § 91, and Banković and Others v. Belgium and 16 other Contracting States (dec.) [GC], no. 52207/99, § 71, ECHR 2001-XII). Even in the absence of effective control of a territory outside its borders, the State still has a positive obligation under Article 1 of the Convention to take the diplomatic, economic, judicial or other measures that it is in its power to take and are in accordance with international law to secure to applicants the rights guaranteed by the Convention (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 331, ECHR 2004-VII).
In line with this approach, the Court has found that the participation of a State in the defence of proceedings against it in another State does not, without more, amount to an exercise of extraterritorial jurisdiction (see McElhinney v. Ireland and the United Kingdom (dec.) [GC], no. 31253/96, 9 February 2000).
The Court reaffirmed that finding in the case of Kalogeropoulou and Others v. Greece and Germany ((dec.), no. 59021/00, ECHR 2002-X). As the case concerned a civil action brought by the applicants in the Greek courts with a view to obtaining compensation from the German State, the Court held that the German State's responsibility could not be engaged in respect of the Greek Minister of Justice's refusal to allow enforcement proceedings to be instituted and of the confirmation of that decision by the judgments of the Greek courts, on the ground that the applicants had failed to show that they were capable of coming within Germany's jurisdiction for the purposes of Article 1 of the Convention.
It is clear from the circumstances of the present case that the applicants were not within Italian jurisdiction. It must therefore be acknowledged that that State did not exercise jurisdiction over the applicants; the proceedings in issue were conducted exclusively in Albanian territory; the Albanian courts alone had sovereign authority in the applicants' case; and the Italian authorities had no direct or indirect influence over decisions and judgments delivered in Albania.
The fact that the applicants had informed the Ambassador of Italy that they claimed title to the property, that the Italian Government had entered into an agreement to purchase or that a decision had been given in favour of the return of the applicants' villa and the adjacent plot of land and that the Embassy had informed the applicant that it considered itself to be the owner of its premises, including the villa whose restitution to the applicants had been ordered, does not suffice to bring them within the jurisdiction of Italy for the purposes of Article 1 of the Convention. There is no other factor justifying a different conclusion.
It follows that Italy's responsibility cannot be engaged in respect of the situation of which the applicants complained, namely the Albanian authorities' refusal to execute the court decision in their favour and the judgments in which the Albanian courts dismissed their application for enforcement measures on the ground that the respondent authorities did not have the capacity to take part in the proceedings. Nor can it be engaged under Article 1 of the Convention by any failure to comply with the State's positive obligation to secure the Convention rights relied on by the applicants.
In the light of the foregoing, the Court considers that the applicants have not shown that they were capable of coming “within the jurisdiction” of Italy. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
2. In so far as the application is directed against Albania
(a) Complaint under Article 6 § 1 taken in conjunction with Article 13 of the Convention
(i) The applicants' submissions
The applicants complained under Article 6 § 1 of the Convention in conjunction with Article 13 of the Convention about the failure of the Albanian authorities to execute court decisions and to enable them to recover possession of the property allocated to them.
(ii) The Court's assessment
In previous cases the Court has held that the procedural guarantees laid down in Article 6 concerning fairness, publicity and promptness would be meaningless in the absence of any protection of the precondition for the enjoyment of those guarantees, namely access to a court. It has established this as an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlie much of the Convention. Thus, Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36).
The right of access to a court is not, however, absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is no reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Waite and Kennedy v. Germany [GC], no. 26083/94, ECHR 1999-I, § 59).
The Court must first examine whether the limitation pursued a legitimate aim. It notes in this connection that sovereign immunity is a concept of international law, developed out of the principle par in parem non habet imperium, by virtue of which one State is not subject to the jurisdiction of another State. The Court considers that the grant of sovereign immunity to a State in civil proceedings pursues the legitimate aim of complying with international law to promote comity and good relations between States through the respect of another State's sovereignty.
The Court must next assess whether the restriction was proportionate to the aim pursued. It recalls that the Convention has to be interpreted in the light of the rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties, and that Article 31 § 3 (c) of that Convention indicates that account is to be taken of “any relevant rules of international law applicable in the relations between the parties”. The Convention, including Article 6, cannot be interpreted in a vacuum. The Court must be mindful of the Convention's special character as a human rights treaty, and it must also take the relevant rules of international law into account (see, mutatis mutandis, Loizidou v. Turkey, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, § 43). The Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the grant of State immunity.
Turning to the present case it appears that the property allocated to the applicants by the Commission's decision has been designated as the private residence of the Italian Ambassador in Albania and accordingly constitutes “premises of the mission” within the meaning of Article 1 of the Vienna Convention on Diplomatic Relation.
The issue arising in the present case is whether the Albanian authorities' responsibility may be engaged on account of their refusal to enforce the Court's decision of 27 April 1997 concerning the property occupied by the Italian Embassy, and more generally, of the fact that they did not take the action sought by the applicants to restore their property which had been allocated by the Commission decision of 17 December 1994.
In this connection, the Court has held that measures taken by a High Contracting Party which reflect recognised rules of international law on State immunity cannot generally be regarded as imposing a disproportionate restriction on the right of access to a court as embodied in Article 6 § 1. It has also taken the view that, just as the right of access to a court is an inherent part of the fair-trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, §§ 52-56, ECHR 2001-XI; Fogarty v. the United Kingdom [GC], no. 37112/97, § 36, ECHR 2001-XI; McElhinney v. Ireland [GC], no. 31253/96, § 37, ECHR 2001-XI; Manoilescu and Dobrescu v. Romania (dec.), no. 60861/00, ECHR 2005; and Kalogeropoulou and Others, cited above).
There is nothing in the present case to warrant departing from that conclusion. Regard being had to the rules of international law set out above, the Albanian Government cannot therefore be required to override against their will the rule of State immunity, which is designed to ensure the optimum functioning of diplomatic missions (ne impediatur legatio) and, more generally, to promote comity and good relations between sovereign States.
Accordingly, the decisions in which the national courts refused to order the administrative authorities to take measures of constraint with regard to the property possessed by the Italian Embassy in Albania and also the non-enforcement of the court's decision of 24 April 1997 can be regarded as a justified restriction on the applicants' right of access to a court.
It follows that this complaint must be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
As to the applicants' submission that they had no effective remedy at their disposal in respect of the above complaint, the Court reiterates that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52). The Court has found above that the applicants' complaint under Article 6 § 1 is manifestly ill-founded. The applicants do not have an arguable claim and Article 13 is therefore not applicable to the case.
It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) Complaint under Article 1 of Protocol No. 1
(i) The applicants' submissions
The applicants complained that they had been deprived of their possessions in that the Albanian authorities had unlawfully transferred their property to third parties. They submitted that, pending a final outcome in the proceedings concerning their restitution request, they were effectively prohibited from alienating their property.
Moreover, the applicants argued that the benefit derived from the sale of their property by the Albanian Government implied de facto expropriation, within the meaning adopted in the case-law of the Court.
(ii) The Court's assessment
At the outset, the Court notes that the complaint under Article 1 of Protocol No. 1 comprises three distinct branches: the first concerns the alleged unlawfulness of the transfer of the property to the Italian Government; the second concerns the unlawful profit obtained by the Albanian Government from the sale of the applicants property; the third aspect concerns the failure of the authorities to enable the applicants to enjoy possession of the property restored to them by administrative and court decisions.
As to the applicants' argument that the transfer to the Italian authorities of the property belonging to their father had been unlawful, the Court notes that the transaction between the Albanian Government and the Italian Government, which the applicants considered to have been null and void, took place in 1991, in other words before 2 October 1996, the date on which Albania ratified the Convention and Protocol No. 1. It follows that this part of the complaint is incompatible ratione temporis with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
As to the second aspect, the Court observes that the applicants failed to lodge the above claim with the domestic courts and consequently, this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
Consequently, the analysis of the complaint will focus on the failure of the Albanian authorities to enable the applicants to assert their property rights stemming from the administrative decision dated 17 December 1994 and the court decision of 24 April 1997.
The Court considers that the administrative decision of the Property Restitution and Compensation Commission and the subsequent court decision in which the applicants' title to immovable property was upheld amounted to a claim against Albania that may be said to have been sufficiently established to qualify as an “asset” attracting the protection of Article 1 of Protocol No. 1. What the applicants were relying on was not a mere hope of restitution or a conditional claim whose fulfilment was subject to certain statutory requirements (in contrast to the position in Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, §§ 71-73, ECHR 2002-VII, and Kopecký v. Slovakia [GC], no. 44912/98, § 58, ECHR 2004-IX), but a decision which had become final, as it had not been challenged in the courts by the competent authorities, and which had been taken by the administrative authority empowered to order the restitution of property under Law no. 7698/1993.
Furthermore, the administrative decision in the applicants' favour was not invalidated by any subsequent judicial decision. In so far as it had become final, it amounted to an instrument of title to the property and the applicants could use it as a basis for applying to be entered in the land register as owners, without having to institute any further administrative or judicial proceedings. The decision must therefore be considered to have reasonably founded a legitimate expectation on their part of being able to recover possession of the property.
In this connection the Court notes that the applicants complained not of a particular act by the Albanian authorities but rather of their failure to act and their refusal to take steps to ensure that the property was actually returned to them. Indeed, it was not disputed that the applicants were unable to secure possession of the property because the relevant administrative authorities claimed that they had no capacity to take such action and, because it was allegedly impossible to initiate enforcement proceedings since the building in question was in the possession of the Italian Embassy in Albania.
The Court will ascertain, in the light of the general principle of the peaceful enjoyment of property laid down in the first sentence of the first paragraph of Article 1 of Protocol No. 1, whether the Albanian authorities, in refraining from taking the action sought by the applicants, struck a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see, among many other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 26, § 69).
In the instant case the Court has already found that the national authorities' refusal of the applicants' application for an order requiring the enforcement of the administrative and court decisions in their favour did not constitute a disproportionate restriction on their right of access to a court under Article 6 § 1 of the Convention. That consideration is also valid in the examination of this complaint.
Having regard to the circumstances of the case, the Court is in no doubt that the omission by the relevant Albanian authorities to take enforcement measures was “in the public interest” in view of the need to avoid disrupting relations between Albania and Italy and hindering the proper functioning of that foreign State's diplomatic mission in Albania.
Furthermore, Italy had notified the Albanian authorities, through the Albanian Ministry of Foreign Affairs, that it had title to the building in issue. Although the applicants maintained that the title was unlawful, the Court notes that to date it has not been invalidated by any final judicial decision.
Although the Court can accept that the failure, over a period of several years to enforce the final decisions in the applicants' favour must have caused them a feeling of injustice and frustration, they have nevertheless not lost their claim against Albania. The Court notes that no domestic court has invalidated the applicants' title to the properties in issue. It observes in this connection that the national courts simply refused their request for enforcement measures on the ground that the respondent Albanian authorities lacked the capacity to take part in the proceedings, without examining – because of the legal nature of the action brought by the applicants in the national courts – the validity of the conflicting instruments of title or comparing them.
Furthermore, the applicants' title to the property in question cannot expire with the passing of time; on the contrary, it can be converted into an entitlement to future compensation to be paid by the respondent Government pursuant to the domestic law in force relating to compensation for former owners.
Indeed, section 11 of the Property Act entitles former owners, if not to restitution of the original property itself at least to alternative measures of reparation, including compensation in the form provided by law.
Since allocation of the original property had been impossible, the applicants were entitled to compensation from the Albanian State but nevertheless failed to avail themselves of that remedy.
In those circumstances, the fact that the Albanian authorities omitted to take steps to restore possession of the property in issue to the applicants - on “public-interest” grounds directly linked to observance of the principle of State immunity, universally enshrined in both conventional and customary international law – did not upset the requisite balance between the protection of the individual right to the peaceful enjoyment of possessions and the requirements of the general interest.
It follows that this complaint must be rejected as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Boštjan
TRESKA NIKOLAUS AND J. v. ALBANIA and ITALY DECISION
TRESKA NIKOLAUS AND J. v. ALBANIA and ITALY DECISION